WAIVER TO CREDIT AGREEMENT
WAIVER, dated as of March 15, 2005 (this "Waiver"), by and 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,
a Delaware limited liability company ("Silver Point"), as administrative agent
(in such capacity, and any successor in such capacity, 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
the Lenders have agreed, subject to certain terms and conditions, to make term
loans to the Borrower;
WHEREAS, the Borrower, the Guarantors, the Majority Lenders and the
Administrative Agent desire to waive a certain provision 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:
1. Capitalized Terms. All terms which are defined in the Financing
Agreement and not otherwise defined herein are used herein as defined therein.
2. Waiver and Consent.
(a) Pursuant to the request of the Borrower and in accordance with
Section 11.1 of the Credit Agreement, the Majority Lenders hereby waive
compliance with the Fixed Charge Coverage Ratio set forth in Section 7.24 of the
Credit Agreement for the four consecutive fiscal quarter period of Foamex ending
on or about December 31, 2004.
(b) The waiver set forth in Section 2(a) above (i) shall be effective
only in this specific instance and for the specific purposes set forth herein,
and (ii) does not allow for any other or further departure from the terms and
conditions of the Credit Agreement or any other Loan Document, which terms and
conditions shall continue in full force and effect.
3. Conditions. This Waiver shall become effective only upon receipt by the
Administrative Agent of counterparts of this Waiver, duly executed by the
Borrower, the Guarantor, the Administrative Agent and the Majority Lenders.
4. References to Credit Agreement. From and after the effectiveness of this
Waiver and the waiver 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 modified by this Waiver, and all
references in other documents to the Credit Agreement shall mean such agreement
as modified by this Waiver.
5. Continued Effectiveness of the Financing Agreement.
(a) 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 each of the Borrower and the Guarantors hereby
ratifies its grant of a security interest in the Collateral in which it has an
interest to secure the payment of the Obligations.
(b) No Waivers. Except as otherwise expressly provided herein, this
Waiver is not a waiver of, or consent to, any Default or Event of Default now
existing or hereafter arising under the Credit Agreement or any other Loan
Document shall not operate as an amendment of any right, power or remedy of the
Administrative Agent or the Lenders under the Credit Agreement or any Loan
Document, nor shall it constitute an amendment of any provision of the Credit
Agreement or any other Loan Document, and the Administrative Agent and the
Lenders expressly reserve all of their rights and remedies under the Credit
Agreement and the other Loan Documents, under applicable law or otherwise.
6. Miscellaneous.
(a) Counterparts. This Waiver may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which shall be deemed to be an original, but all of which taken together shall
constitute one and the same agreement. Delivery of an executed counterpart of
this Waiver by telefacsimile or electronic mail shall be equally effective as
delivery of an original executed counterpart of this Waiver.
(b) Headings. Section and paragraph headings herein are included for
convenience of reference only and shall not constitute a part of this Waiver for
any other purpose.
(c) Governing Law. This Waiver shall be governed by, and construed in
accordance with, the laws of the State of New York.
(d) Expenses. The Borrower will pay on demand all reasonable fees,
costs and expenses of the Administrative Agent in connection with the
preparation, execution and delivery of this Waiver and all documents incidental
hereto, including, without limitation, the reasonable fees, disbursements and
other charges of Xxxxxxx Xxxx & Xxxxx LLP, counsel to the Administrative Agent.
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IN WITNESS WHEREOF, the parties hereto have caused this Waiver and Consent
to be executed by their respective officers thereunto duly authorized, as of the
date 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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SILVER POINT FINANCE, LLC,
as Administrative Agent
By: /s/ Xxxxxxx X. Xxxxxxx
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Title: Authorized Signatory
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FIELD POINT I, LTD.
By: /s/ Xxxxxxx X. Xxxxxxx
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Title: Authorized Signatory
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FIELD POINT II, LTD.
By: /s/ Xxxxxxx X. Xxxxxxx
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Title: Authorized Signatory
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SIL LOAN FUNDING LLC
By: /s/ Xxxxx Xxxxx
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Title: Attorney-in-Fact
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A3 FUNDING LP, on its own behalf and on
behalf of its affiliate assigns
By: A3 Fund Management LLC,
its General Partner
By:
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Title:
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SSIG SPF ONE LQ, LLC
By:
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Title:
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SPCP GROUP, LLC
By: /s/ Xxxxxxx X. Xxxxxxx
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Title: Authorized Signatory
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SPCP GROUP III, LLC
By: /s/ Xxxxxxx X. Xxxxxxx
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Title: Authorized Signatory
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