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:
<PAGE>
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
