Exhibit 4.2.11
AMENDMENT NO. 1 TO
SUBSIDIARY PLEDGE AGREEMENT
THIS AMENDMENT NO. 1 TO SUBSIDIARY PLEDGE AGREEMENT, (the
"Amendment") is made and entered into as of June 12, 1997, by General Felt
Industries, Inc., a Delaware corporation, having its principal office at 0000
Xxxxxxxx Xxxxxx, Xxxxxxx, XX 00000 (the "Pledgor") and Fleet National Bank
(formerly known as Shawmut Bank, N.A.), a national banking association, having
an office at Xxx Xxxxxxx Xxxxxx, Xxxxxx, XX 00000 as trustee (the "Trustee"),
for the holders of the Senior Secured Notes. This Amendment amends certain
provisions of the Subsidiary Pledge Agreement between the Pledgor and the
Trustee, dated as of June 3, 1993 (the "Pledge Agreement").
WHEREAS, the Pledgor and the Trustee entered into the Pledge
Agreement to secure the Obligations of the Pledgor to the Securityholders
pursuant to the terms of the Senior Secured Note Indenture;
WHEREAS, Foamex L.P. and Foamex Capital Corporation, as
issuers, General Felt Industries, Inc., as guarantor, Foamex International Inc.,
as parent guarantor, and the Trustee have executed the Fourth Supplemental
Indenture to the Senior Secured Note Indenture, which provides for, among other
things, the granting by the Pledgor of certain Liens in the Collateral, the
transfer of possession of the Collateral to a collateral agent pursuant to the
terms of an intercreditor agreement, and the amendment of the Collateral
Documents; and
WHEREAS, the Pledgor has requested that the Trustee enter into
the Intercreditor Agreement and this Amendment.
NOW, THEREFORE, in consideration of the premises, the mutual
agreements and covenants contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
Article I.
DEFINITIONS
Section 1.1. Definitions. Unless otherwise defined herein:
(a) the terms defined in the introductory paragraph and the
Recitals to this Amendment shall have the respective meanings specified
therein;
(b) capitalized terms used herein and not otherwise defined
shall have the meaning ascribed to them in the Pledge Agreement; and
(c) the following terms shall have the meanings specified
below:
"Intercreditor Agreement" means an intercreditor agreement
entered into between the Trustee and the holder of another Lien in the
Collateral, on the terms and subject to the conditions set forth in the
Senior Secured Note Indenture, including, without limitation, the
Intercreditor Agreement, dated as of the date hereof, between the
Trustee and The Bank of Nova Scotia and Citicorp USA, Inc.
Article II.
AMENDMENT OF PROVISIONS
Section 2.1. Amendment of Section 3. Section 3 of the Pledge
Agreement is hereby amended and restated in its entirety as follows:
"SECTION 3. Delivery of Collateral. All certificates or
instruments representing or evidencing the Collateral shall either (a)
be held pursuant to the terms of the Intercreditor Agreement, or (b) be
delivered to and held by or on behalf of the Trustee pursuant hereto
and shall be in suitable form for transfer by delivery, or shall be
accompanied by duly executed instruments of transfer or assignment in
blank, all in form and substance satisfactory to the Trustee."
Section 2.2. Amendment of Section 4.
(a) Section 4(c) of the Pledge Agreement is hereby amended and
restated in its entirety as follows:
"(c) The Pledgor is the legal, record and beneficial owner of
the Collateral, free and clear of any Lien or claims of any person
except for Liens not prohibited by the terms of the Senior Secured Note
Indenture and the security interest created by this Company Pledge
Agreement and any other Collateral Document."
(b) Section 4(e) of the Agreement is hereby amended and
restated in its entirety as follows:
"(e) Upon the delivery to either (i) the agent under the
Intercreditor Agreement, or (ii) the Trustee of the Collateral and (as
to certain proceeds thereof) the filing of Uniform Commercial Code (the
"UCC") financing statements, the pledge of the Collateral pursuant to
this Company Pledge Agreement creates a valid and perfected first
priority security interest in the Collateral,
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securing the payment of the Obligations for the benefit of the
Trustee and the Securityholders, and enforceable as such against all
creditors of the Pledgor and any persons purporting to purchase any of
the Collateral from the Pledgor other than as permitted by the Senior
Secured Note Indenture."
(c) Section 4(f) of the Pledge Agreement is hereby amended and
restated in its entirety as follows:
"(f) Except as set forth in the Intercreditor Agreement, no
consent of any other person and no consent, authorization, approval, or
other action by, and no notice to or filing with, any governmental
authority or regulatory body is required either (i) for the pledge by
the Pledgor of the Collateral pursuant to this Company Pledge Agreement
or for the execution, delivery or performance of this Company Pledge
Agreement by the Pledgor (except for filings necessary to perfect Liens
on the proceeds of the Collateral) or (ii) for the exercise by the
Trustee of the voting or other rights provided for in this Company
Pledge Agreement or the remedies in respect of the Collateral pursuant
to this Company Pledge Agreement, except, in each case, as may be
required in connection with such disposition by laws affecting the
offering and sale of securities."
Section 2.3. Amendment of Section 6.
(a) Section 6(e) of the Pledge Agreement is hereby amended and
restated in its entirety as follows:
"(e) Subject to the terms of the Intercreditor Agreement, upon
the occurrence and during the continuance of an Event of Default, (i)
all rights of the Pledgor to exercise the voting and other consensual
rights that it would otherwise be entitled to exercise pursuant to
Section 6(a) shall cease, and all such rights shall thereupon become
vested in the Trustee, which shall thereupon have the sole right to
exercise such voting and other consensual rights, and (ii) all interest
and principal payments and dividends or other distributions payable in
respect of the Collateral shall be paid to the Trustee and the
Pledgor's right to receive such payments pursuant to Sections 6(b) and
6(c) hereof shall immediately cease."
(b) Section 6(f) of the Pledge Agreement is hereby amended and
restated in its entirety as follows:
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"(f) Subject to the terms of the Intercreditor Agreement, upon
the occurrence and during the continuance of an Event of Default, the
Pledgor shall execute and deliver (or cause to be executed and
delivered) to the Trustee all such proxies and other instruments as the
Trustee may reasonably request for the purpose of enabling the Trustee
to exercise the voting and other rights that it is entitled to exercise
pursuant to Section 6(e) above."
Section 2.4. Amendment of Section 7(b). Section 7(b) of the
Pledge Agreement is hereby amended and restated in its entirety as follows:
"(b) Except as not prohibited by the Senior Secured Note
Indenture, the Pledgor agrees that it will not (i) enter into any
agreement or understanding that purports to or may restrict or inhibit
the Trustee's rights or remedies hereunder, including, without
limitation, the Trustee's right to sell or otherwise dispose of the
Collateral, (ii) permit any Issuer to merge or consolidate, unless all
outstanding capital stock owned by the Pledgor (or, in the case of a
surviving corporation organized under the laws of a jurisdiction other
than within the United States, an amount equal to the lesser of (A) all
of the shares of capital stock of such surviving corporation owned by
the Pledgor at such time, and (B) sixty-five percent (65%) of the total
combined voting power of all classes of capital stock of such surviving
corporation outstanding at such time) of the surviving corporation is,
upon such merger or consolidation, pledged hereunder to the Trustee
(or, in the case of a surviving corporation organized under the laws of
a jurisdiction other than within the United States, to a Restricted
Guarantor) or (iii) fail to pay or discharge any tax, assessment or
levy of any nature not later than five days prior to the date of any
proposed sale under any judgment, writ or warrant of attachment with
regard to the Collateral."
Section 2.5. Amendment of Section 12. Section 12 of the Pledge
Agreement is hereby amended by adding the following phrase after the title
thereof "Remedies Upon Event of Default": "Except as otherwise set forth in an
Intercreditor Agreement:".
Section 2.6. Amendment of Section 16.9. Section 16.9 of the
Pledge Agreement is hereby amended and restated as follows:
"SECTION 16.9 Interpretation of Subsidiary Pledge Agreement.
All terms not defined herein or in the
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Senior Secured Note Indenture shall have the meaning set forth in the
applicable Uniform Commercial Code, except where the context otherwise
requires. To the extent a term or provision of this Subsidiary Pledge
Agreement conflicts with the Senior Secured Note Indenture, the Senior
Secured Note Indenture shall control with respect to the subject matter
of such term or provision. To the extent a term or provision of this
Subsidiary Pledge Agreement or the Senior Secured Note Indenture
conflicts with an Intercreditor Agreement, the Intercreditor Agreement
shall control with respect to the subject matter of such term or
provision. Acceptance of or acquiescence in a course of performance
rendered under this Subsidiary Pledge Agreement shall not be relevant
to determine the meaning of this Subsidiary Pledge Agreement even
though the accepting or acquiescing party had knowledge of the nature
of the performance and opportunity for objection."
Article III.
REPRESENTATIONS AND WARRANTIES
Section 3.1. Pledgor's Representations and Warranties . The
Pledgor represents and warrants to the Trustee that this Amendment is authorized
pursuant to the terms of the Senior Secured Note Indenture.
Article IV.
MISCELLANEOUS
Section 4.1. Counterparts. This Amendment may be executed in
counterparts, each of which when so executed shall be deemed to be an original,
but all such counterparts shall together constitute one and the same instrument.
Section 4.2. Severability. In the event that any provision in
this Amendment shall be held to be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 4.3. Headings. The article and section headings herein
are for convenience only and shall not effect the construction hereof.
Section 4.4. Effect of Amendment. Except as amended by this
Amendment, the terms and provisions of the Pledge Agreement shall remain in full
force and effect.
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Section 4.5. Trustee. The Trustee accepts the amendments of
the Pledge Agreement effected by this Amendment, but only upon the terms and
conditions set forth herein. Without limiting the generality of the foregoing,
the Trustee assumes no responsibility for the correctness of the recitals herein
contained, which shall be taken as the statements of the Pledgor, and the
Trustee shall not be responsible or accountable in any way whatsoever for or
with respect to the validity or execution or sufficiency of this Amendment, and
the Trustee makes no representation with respect thereto.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their duly authorized representative as of the date
hereof.
ATTEST: GENERAL FELT INDUSTRIES, INC.
/s/ Xxxxxx X. Xxxx By: /s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx Xxxxxxxxx
Title: Vice President
ATTEST: FLEET NATIONAL BANK
as Trustee
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By:/s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
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XXXXX XX XXX XXXX
XXXXXX XX XXX XXXX
BEFORE ME, the undersigned, a Notary Public in and for said
State and County, on this day personally appeared Xxxxxx Xxxxxxxxx the Vice
President of GENERAL FELT INDUSTRIES, INC., a Delaware corporation, known to me
to be the person and officer whose name is subscribed to the foregoing
instrument, and acknowledged to me that the same was the act of the said GENERAL
FELT INDUSTRIES, INC., and that he executed the same as the act of such
corporation with the authority of the board of directors for the purposes and
consideration therein expressed and in the capacity therein stated.
/s/ Xxxxx X. Xxxxxx
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Notary Public, State of New York
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Printed Name: Xxxxx X. Xxxxxx
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My Commission Expires:
April 1, 1998
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STATE OF NEW YORK
COUNTY OF NEW YORK
BEFORE ME, the undersigned, a Notary Public in and for said
State and County, on this day personally appeared Xxxxxx X. Beezely, Vice
President of FLEET NATIONAL BANK (formerly known as Shawmut Bank, N.A.), known
to me to be the person and officer whose name is subscribed to the foregoing
instrument, and acknowledged to me that the same was the act of the said bank
and that he executed the same as the act of such bank for the purposes and
consideration therein expressed and in the capacity therein stated.
/s/ Xxxxx X. Xxxxxx
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Notary Public, State of New York
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Printed Name: Xxxxx X. Xxxxxx
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My Commission Expires:
April 1, 1998
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