Exhibit 4.2.13
AMENDMENT NO. 1 TO
COMPANY SECURITY AGREEMENT
THIS AMENDMENT NO. 1 TO COMPANY SECURITY AGREEMENT (the
"Amendment"), is made and entered into as of June 12, 1997, by Foamex L.P., a
Delaware limited partnership ("Foamex") and Foamex Capital Corporation, a
Delaware corporation ("FCC" and together with Foamex, the "Companies") and Fleet
National Bank (formerly known as Shawmut Bank, N.A.), a national banking
association, as trustee (the "Trustee"), for the holders of the Senior Secured
Notes. This Amendment amends certain provisions of the Company Security
Agreement by and among the Companies and Trustee, dated as of June 3, 1993 (the
"Security Agreement").
WHEREAS, the Companies and Trustee entered into the Security
Agreement to secure the Obligations of the Companies 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 Trustee have executed the Fourth Supplemental Indenture
to the Senior Secured Note Indenture, which provides for, among other things,
the granting by the Companies 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 Companies have 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 Security 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 4(c). Section 4(c) of the
Security Agreement is hereby amended and restated in its entirety as follows:
"(c) Security Interest. The Collateral is (or, to the extent
Collateral is acquired after the date hereof, will be) owned or
otherwise held by one or the other of the Companies; the security
interest created hereby in the Collateral is as valid, enforceable,
perfected (except with respect to motor vehicles, trailers and rolling
stock) and first priority security interest in such Collateral, subject
to Liens permitted pursuant to the Senior Secured Note Indenture
("Authorized Liens"); as of the date hereof (and after giving effect to
the use of proceeds of the issuance of the Senior Secured Notes), there
are no other security interests in, or Liens on the Collateral or any
portion thereof, except for Authorized Liens; and no financing
statement, notice of Lien, assignment or collateral assignment,
mortgage or deed of trust covering the Collateral or any portion
thereof ("Lien Notice") exists or is on file in any public office,
except with respect to Authorized Liens, Liens listed on Schedule A
hereto, the Lien created by this Security Agreement and the other
Collateral Documents and Liens to be released in connection with the
use of proceeds of the issuance of the Senior Secured Notes;".
Section 2.2. Amendment of Section 5.
(a) Section 5(g) of the Security Agreement is hereby amended
and restated in its entirety as follows:
"(g) Rights of Trustees. Subject to the terms of any
Intercreditor Agreement, upon the occurrence and during the continuance
of an Event of Default, the Trustee shall have the right at any time to
make any payments and do any other acts the Trustee may deem necessary
to protect its security interests in the Collateral, including, without
limitation, the rights
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to pay, purchase, contest or compromise any encumbrance,
charge or Lien which, in the judgment of the Trustee, appears to be
prior to or superior to the security interests granted hereunder, and
challenge any action or proceeding purporting to affect its security
interests in the Collateral. The Companies hereby agree, jointly and
severally, to reimburse the Trustee for all payments made and expenses
incurred under this Security Agreement including reasonable fees,
expenses and disbursements of attorneys and paralegals acting for the
Trustee, including any of the foregoing payments under or acts taken to
perfect or protect its security interests in the Collateral, which
amounts shall be secured under this Security Agreement, and agree they
shall be bound by any payment made or act taken by the Trustee
hereunder. The Trustee shall have no obligation to make any of the
foregoing payments or perform any of the foregoing acts."
(b) Section 5(k) of the Security Agreement is hereby amended
by deleting the first sentence of such Section.
(c) Section 5(n) of the Security Agreement is hereby deleted.
(d) Section 5(o) of the Security Agreement is hereby amended
by deleting the first sentence of such Section.
Section 2.3. Amendment of Section 6. The first paragraph of
Section 6 of the Security Agreement is hereby amended and restated in its
entirety as follows:
"Upon the occurrence and during the continuance of an
Event of Default, the Trustee may, subject to the provisions of the
Senior Secured Note Indenture and any Intercreditor Agreement, without
notice to or demand upon the Companies, do any one or more of the
following:".
Section 2.4. Amendment of Section 8(h). Section 8(h) of the
Security Agreement is hereby amended and restated in its entirety as follows:
"(h) Interpretation of Security Agreement. All terms not
defined herein or in the 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 Security 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 Company Security Agreement or the Senior Secured
Note Indenture conflicts with an
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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 Security
Agreement shall not be relevant in determining the meaning of this
Security 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. The Companies' Representations and Warranties .
The Companies represent and warrant to 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 Security Agreement shall remain in
full force and effect.
Section 4.5. Trustee. The Trustee accepts the amendments of
the Security 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 Companies, 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: FOAMEX L.P.
/s/ Xxxxxx X. Xxxx By: FMXI, INC.
---------------------------------------- its Managing General Partner
By:/s/ Xxxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
ATTEST: FOAMEX CAPITAL CORPORATION
/s/ Xxxxxx X. Xxxx By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------------- -------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
ATTEST: FLEET NATIONAL BANK
as Trustee
/s/ Xxxxxx X. Xxxx
---------------------------------------- By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxx X. Beezely
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 FMXI, INC., the Managing General Partner of Foamex L.P., a Delaware
limited partnership, 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 FMXI, 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 Xxxxxxxxx the Vice
President of FOAMEX CAPITAL CORPORATION, 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 corporation, 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
------------------------------------------------
Notary Public, State of New York
------------------------------------------------
Printed Name: Xxxxx X. Xxxxxx
------------------------------------------------
My Commission Expires:
April 1, 1998
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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 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
------------------------------------------------
Notary Public, State of New York
------------------------------------------------
Printed Name: Xxxxx X. Xxxxxx
------------------------------------------------
My Commission Expires:
April 1, 1998
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