Exhibit 4.16.4
AMENDMENT NO. 2
TO CREDIT AGREEMENT
AMENDMENT NO. 2 TO CREDIT AGREEMENT ("this Amendment"), dated as of June
25, 2004, among FOAMEX L.P., a Delaware limited partnership (the "Borrower"),
the affiliates of the Borrower party hereto, the lenders party hereto and SILVER
POINT FINANCE, LLC, as Administrative Agent (the "Administrative Agent").
WHEREAS, the Borrower, certain of its affiliates as guarantors, the lenders
party thereto and the Administrative Agent entered into a certain Credit
Agreement, dated as of August 18, 2003 (as amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement"), pursuant to which
such lenders have agreed, subject to certain terms and conditions, to make a
term loan to the Borrower;
WHEREAS, the Borrower, the Guarantors, the Majority Lenders and the
Administrative Agent desire to amend certain provisions of the Credit Agreement;
NOW, THEREFORE, subject to the condition precedent set forth in Section 3
hereof, the Borrower, the Guarantors, the Majority Lenders and the
Administrative Agent hereby agree as follows:
Section 1. Capitalized Terms. Capitalized terms used but not defined herein
shall have the respective meanings set forth in the Credit Agreement.
Section 2. Amendments to Credit Agreement.
2.1. The definition of "Restricted Investment" in Appendix A to the Credit
Agreement is hereby amended by (i) deleting the "and" at the end of clause (n)
thereof, (ii) adding the word "and" at the end of clause (o) thereof and (iii)
adding a new clause (p) which reads as follows:
(p) investments held by Foamex consisting solely of a promissory note
in an original principal amount of $300,000 and preferred stock, in
each case issued in exchange for the Promissory Note in the original
principal amount of $1,802,807 that is set forth as the thirteenth
item on Schedule I, by the issuer of such original Promissory Note.
2.2. Section 7.11 of the Credit Agreement is hereby amended by adding the
parenthetical "(other than sales and issuances by the Parent of equity interests
in the Parent)" immediately following the words "equity interests" appearing in
the fourth line thereof.
2.3. The proviso to Section 7.12 of the Credit Agreement is hereby amended
by adding a new clause (D) immediately following clause (C) thereof which reads
as follows:
(D) Parent may make a dividend in respect of its common stock of
rights to purchase preferred capital stock of the Parent, such rights
and
preferred capital stock to be governed by and be subject to a rights
agreement and certificate of designations of preferred stock in form
and substance satisfactory to the Administrative Agent (it being
agreed by the Administrative Agent that a Rights Agreement between the
Parent and Mellon Investor Services LLC, as rights agent,
substantially in the form of the 6/9/2004 draft thereof, document
NY5:647730.12, and a certificate of designations, substantially in the
form attached as Exhibit A to such draft agreement, are satisfactory
to the Administrative Agent).
Section 3. Effectiveness. This Amendment shall become effective upon the
Administrative Agent receiving counterparts hereof duly executed and delivered
by the Borrower, the Guarantors, the Majority Lenders and the Administrative
Agent.
Section 4. Counterparts. This Amendment may be executed in counterparts,
each of which shall be an original, and all of which, taken together, shall
constitute a single instrument. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
Section 5. References to Credit Agreement. From and after the effectiveness
of this Amendment and amendments contemplated hereby, all references in the
Credit Agreement to "this Agreement", "hereof", "herein", and similar terms
shall mean and refer to the Credit Agreement, as amended and modified by this
Amendment, and all references in other documents to the Credit Agreement shall
mean such agreement as amended and modified by this Amendment.
Section 6. Ratification and Confirmation. The Credit Agreement is hereby
ratified and confirmed and, except as herein agreed, remains in full force and
effect. Each of the Borrower and the Guarantors represents and warrants that (i)
all representations and warranties contained in the Loan Documents are correct
in all material respects with the same effect as though such representations and
warranties had been made on and as of the date hereof (except to the extent that
such representations or warranties expressly related to a specified prior date,
in which case such representations and warranties shall be correct in all
material respects as of such specified prior date) and (ii) there exists no
Default or Event of Default. Each of the Guarantors hereby ratifies its
Guarantee of the Obligations.
[Remainder of page intentionally left blank]
- 2 -
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the day and year
first above written.
FOAMEX L.P.
By: FMXI, Inc., its Managing General Partner
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------
Title: Vice President
------------------------------
FMXI, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------
Title: Vice President
------------------------------
FOAMEX INTERNATIONAL INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------
Title: Senior Vice President
------------------------------
FOAMEX CANADA INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------
Title: Treasurer
------------------------------
FOAMEX CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------
Title: Vice President
------------------------------
FOAMEX LATIN AMERICA, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------
Title: Vice President
------------------------------
FOAMEX MEXICO, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------
Title: Vice President
------------------------------
FOAMEX MEXICO II, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------
Title: Vice President
------------------------------
FOAMEX ASIA, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------
Title: Vice President
------------------------------
FOAMEX CARPET CUSHION LLC
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------
Title: Vice President
------------------------------
SILVER POINT FINANCE, LLC,
as Administrative Agent
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Title: Chief Financial Officer
------------------------------
TRS THEBE, LLC
By: /s/ Xxxxxx Xxxxxxxx
------------------------------
Title: Vice President
------------------------------
SIL LOAN FUNDING LLC
By: /s/ Xxxxxxxxxxx Xxxxx
------------------------------
Title: Director
------------------------------
A3 FUNDING LP
By: A3 Fund Management LLC,
its General Partner
By: /s/ Xxxxx X. Gendaa
------------------------------
Title: Senior Vice President
------------------------------
SPECIAL SITUATIONS INVESTING GROUP, INC.
By: _____________________________
Title: _____________________________
