Exhibit 4.15.9
WAIVER AND AGREEMENT
TO CREDIT AGREEMENT
WAIVER AND AGREEMENT TO CREDIT AGREEMENT ("this Waiver and Agreement"),
dated as of August 14, 2005, among FOAMEX L.P., a Delaware limited partnership
(the "Borrower"), the affiliates of the Borrower party hereto, the lending
institutions party hereto and BANK OF AMERICA, N.A., as Administrative Agent
(the "Administrative Agent").
WHEREAS, the Borrower, certain of its affiliates as guarantors, the lenders
party thereto, the Administrative Agent, Banc of America Securities LLC ("BAS")
and GECC Capital Markets Group, Inc., as co-lead arrangers, BAS, as sole book
manager, General Electric Capital Corporation, as syndication agent, and
Congress Financial Corporation (Central) and JPMorgan Chase Bank, N.A., as
co-documentation agents, 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 revolving advances and
term loans to the Borrower and to issue or to cause the issuance of letters of
credit for the account of the Borrower;
WHEREAS, the Borrower has requested that the Administrative Agent and the
Lenders (i) waive (x) a certain Event of Default under the Credit Agreement
relating to the Foamex 13 1/2% Subordinated Notes, (y) compliance with Section
7.24 of the Credit Agreement for the test period ended July 3, 2005 and (z)
compliance with Sections 3.4(g) and 7.34, and the second sentence of Section
5.2(e), of the Credit Agreement until 12:01 a.m. (New York time) on September
30, 2005, (ii) agree that up to $19,611,000 of the proceeds from sales of
Designated Assets consummated prior to the date hereof (excluding the
$17,000,000 of such proceeds that were previously released) (the "Closed
Designated Asset Sales") that were permitted pursuant to clause second of the
fifth sentence of Section 3.4(f) of the Credit Agreement to be used for the
purposes set forth therein may instead be used for working capital purposes and
for general corporate purposes permitted under the Credit Agreement and (iii)
agree that any Reserve established pursuant to the sixth sentence of Section
3.4(f) of the Credit Agreement with respect to the Closed Designated Asset Sales
in an amount not in excess of $19,611,000 (excluding the $17,000,000 of such
proceeds that were previously released) be released;
NOW, THEREFORE, subject to the conditions precedent set forth in Section 4
hereof, the Borrower, the Guarantors, the 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. WAIVERS. Each of the Administrative Agent and the Lenders hereby
waives Section 9.1(d) of the Credit Agreement solely with respect to (a) the
failure of Foamex and Foamex Capital to repay at maturity the Foamex 13 1/2%
Subordinated Notes and any accrued and unpaid interest thereon and (b) any
default with respect to any other Debt arising from the failure to repay at
maturity the Foamex 13 1/2% Subordinated Notes and any accrued and unpaid
interest thereon (clauses (a) and (b) are referred to herein collectively as the
"Foamex 13 1/2% Subordinated Notes Payment Default"); provided, that (i) such
waiver shall be in effect only until 12:01 a.m. (New York time) on September 30,
2005 and (ii) the Majority Lenders may elect to revoke such waiver by written
notice to the Borrower, whereupon such waiver shall be of no further force or
effect, if (w) any or all of the Senior Secured Notes are declared due and
payable as a result of the Foamex 13 1/2% Subordinated Notes Payment Default,
which acceleration is not rescinded within five days, or any holder of the
Senior Secured Notes (or the trustee under the Senior Secured Notes Indenture or
any other Person on behalf of such holder) exercises any rights or remedies with
respect to Collateral as a result of the Foamex 13 1/2% Subordinated Notes
Payment Default, (x) any of the holders of the Term Loan B Obligations or the
Term Loan B Agent declares a default or event of default under the Term Loan B
Agreement as a result of the Foamex 13 1/2% Subordinated Notes Payment Default,
demands payment of any amounts owing under the Term Loan B Agreement as a result
of the Foamex 13 1/2% Subordinated Notes Payment Default or exercises any other
rights or remedies under the Term Loan B Agreement or any document or agreement
executed in connection therewith as a result of the Foamex 13 1/2% Subordinated
Notes Payment Default, (y) any holder or holders of any secured Debt of any Loan
Party (other than the Senior Secured Notes) in an outstanding principal amount
exceeding $500,000 (or any agent, trustee or other representative of any such
holder) exercises any rights or remedies with respect to any assets securing
such Debt as a result of the Foamex 13 1/2% Subordinated Notes Payment Default
or (z) any assets of any Loan Party are attached or seized (by judicial order or
otherwise) as a result of the Foamex 13 1/2% Subordinated Notes Payment Default.
Each of the Administrative Agent and the Lenders hereby waives compliance with
(x) Section 7.24 of the Credit Agreement for the test period ended July 3, 2005
and (y) Sections 3.4(g) and 7.34, and the second sentence of Section 5.2(e), of
the Credit Agreement until 12:01 a.m. (New York time) on September 30, 2005.
Nothing in this Section 2 shall constitute a waiver of any provision of the
Credit Agreement or any Event of Default under the Credit Agreement except to
the extent expressly set forth herein.
SECTION 3. CLOSED DESIGNATED ASSET SALE PROCEEDS. Each of the
Administrative Agent and the Lenders hereby agrees that (i) up to $19,611,000 of
the proceeds from the Closed Designated Asset Sales (excluding the $17,000,000
of such proceeds that were previously released) that were permitted pursuant to
clause second of the fifth sentence of Section 3.4(f) of the Credit Agreement to
be used for the purposes set forth therein may instead be used for working
capital purposes and for general corporate purposes permitted under the Credit
Agreement
and (ii) any Reserve established pursuant to the sixth sentence of Section
3.4(f) of the Credit Agreement with respect to the Closed Designated Asset Sales
in an amount not in excess of $19,611,000 (excluding the $17,000,000 of such
proceeds that were previously released) is released. The foregoing agreements
shall constitute an amendment to Section 3.4(f) of the Credit Agreement.
SECTION 4. EFFECTIVENESS. This Waiver and Agreement shall become effective
on such date as the following conditions precedent are satisfied:
4.1 Counterparts of this Waiver and Agreement executed by the
Borrowers, the Guarantors, the Lenders and the Administrative Agent shall
have been delivered to the Administrative Agent.
4.2 The Administrative Agent shall have received an amendment to the
Senior Lenders Intercreditor Agreement, duly executed by the Term Loan B
Agent, Foamex and those Affiliates of Foamex party thereto, in form and
substance satisfactory to the Administrative Agent.
4.3 The Administrative Agent shall have received a copy, certified by
a senior officer of Foamex as true and complete, of a waiver and agreement
to the Term Loan B Agreement, consenting to this Waiver and Agreement and
providing for the waivers and agreements to the Term Loan B Agreement
consistent with the waivers and agreements herein contemplated, which
waiver and agreement shall be in form and substance satisfactory to the
Administrative Agent and the Majority Lenders.
4.4 The Administrative Agent for the sole account of the Bank shall
have received, in form and substance satisfactory to the Administrative
Agent and the Bank, a fully executed fee letter, dated the date hereof (the
"Fee Letter"), between the Administrative Agent and the Borrower and the
Administrative Agent shall have received payment of all fees payable
thereunder.
4.5 The Borrower shall have paid to the Administrative Agent, for the
ratable benefit of the Lenders, a waiver fee in an aggregate amount equal
to (x) .20% times (y) the sum on the date hereof of the Revolving Credit
Commitments of all of the Lenders plus the aggregate unpaid principal
balance of the Term Loans owing to all of the Lenders (such fee to be
payable to each Lender based upon its respective Pro Rata Share thereof at
such time determined as if there were no Junior Term Loan Commitments).
SECTION 5. CONSENT TO AMENDMENTS TO SENIOR LENDERS INTERCREDITOR AGREEMENT
AND WAIVER AND AGREEMENT WITH RESPECT TO TERM LOAN B AGREEMENT.
5.1 Each of the Lenders, by its signature to this Waiver and
Agreement, hereby authorizes the Administrative Agent to enter into the
amendment to the Senior Lenders Intercreditor Agreement referred to in
Section 4.2 of this Waiver
and Agreement and agrees to be bound by the provisions of the Senior
Lenders Intercreditor Agreement as so amended.
5.2 Each of the Lenders, by its signature to this Waiver and
Agreement, hereby consents to the waiver and agreement to the Term Loan B
Agreement, a copy of which is attached as Exhibit A hereto.
SECTION 6. TERMINATION OF JUNIOR TERM LOAN COMMITMENTS. Each of the
Borrower, the Guarantors, the Lenders and the Administrative Agent hereby agrees
that the Junior Term Loan Commitment of each of the Junior Term Lenders is
hereby terminated and of no further force or effect and each of the Junior Term
Lenders is hereby irrevocably and unconditionally discharged and released of any
liability or obligation to make a Junior Term Loan.
SECTION 7 COUNTERPARTS. This Waiver and Agreement may be executed in
counterparts, each of which shall be an original, and all of which, taken
together, shall constitute a single instrument. This Waiver and Agreement shall
be governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 8 REFERENCES TO CREDIT AGREEMENT. From and after the
effectiveness of this Waiver and Agreement and the waivers and agreements
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 waived and modified by this Waiver and Agreement, and all
references in other documents to the Credit Agreement shall mean such agreement
as waived and modified by this Waiver and Agreement.
SECTION 9. 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 and its grant of a security interest
in the Collateral in which it has an interest to secure the payment of the
Obligations.
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IN WITNESS WHEREOF, the parties hereto have caused this Waiver and
Agreement 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
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Title: Vice President
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FMXI, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Vice President
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FOAMEX INTERNATIONAL INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Senior Vice President
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FOAMEX CANADA INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Treasurer
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FOAMEX CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Vice President
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FOAMEX LATIN AMERICA, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Vice President
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FOAMEX MEXICO, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Vice President
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FOAMEX MEXICO II, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Vice President
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FOAMEX ASIA, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Vice President
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FOAMEX CARPET CUSHION LLC
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Vice President
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BANK OF AMERICA, N.A., Individually and
as Administrative Agent
By: /s/ Xxxxxxx X. Xxxxxx
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Title: Vice President
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GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxx XxXxxxxx
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Title: Duly Authorized Signatory
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JPMORGAN CHASE BANK, N.A.
By: /s/ Xxxxxxx Xxxxxx
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Title: Account Executive
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CONGRESS FINANCIAL CORPORATION
(CENTRAL)
By: /s/ Xxxxxx X. Xxxxxx
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Title: Vice President
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STATE OF CALIFORNIA PUBLIC EMPLOYEES'
RETIREMENT SYSTEM
By: /s/ Xxxxxxx Clabar
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Title: Investment Officer
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PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxxx
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Title: Vice President
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XXXXX FARGO FOOTHILL, LLC
By: /s/ Xxxx Xxxxxxx
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Title: Vice President
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