Exhibit 4.2.15
AMENDMENT NO. 1 TO
SUBSIDIARY SECURITY AGREEMENT
THIS AMENDMENT NO. 1 TO SUBSIDIARY SECURITY AGREEMENT (the
"Amendment"), is made and entered into as of June 12, 1997, by General Felt
Industries, Inc., a Delaware corporation (the "Company") 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 Subsidiary Security Agreement by and
between the Company and Trustee, dated as of June 3, 1993 (the "Security
Agreement").
WHEREAS, the Company and Trustee entered into the Security
Agreement to secure the Obligations of the Company 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 Company 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 Company has 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 the Company; 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 to pay, purchase, contest or compromise any
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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 Company hereby agrees 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(p) 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 Company, 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 Subsidiary Security Agreement or the Senior
Secured Note Indenture conflicts with an Intercreditor Agreement, the
Intercreditor Agreement
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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 Company's Representations and Warranties .
The Company represents and warrants 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 Company, 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/ Tambra S. King By: FMXI, INC.
- ---------------------------------------- its Managing General Partner
By:/s/ George Karpinski
---------------------------------
Name: George Karpinski
Title: Vice President
ATTEST: FOAMEX CAPITAL CORPORATION
/s/ Tambra S. King By: /s/ George Karpinski
- ---------------------------------------- -------------------------------
Name: George Karpinski
Title: Vice President
ATTEST: FLEET NATIONAL BANK
as Trustee
- ---------------------------------------- By: /s/ Gerald P. Beezley
---------------------------------
Name: Gerald P. Beezely
Title: Vice President
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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 George Karpinski 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/ Susan Y. Choung
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Notary Public, State of New York
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Printed Name: Susan Y. Choung
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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 George Karpinski 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/ Susan Y. Choung
------------------------------------------------
Notary Public, State of New York
------------------------------------------------
Printed Name: Susan Y. Choung
------------------------------------------------
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 Gerald P. 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/ Susan Y. Choung
------------------------------------------------
Notary Public, State of New York
------------------------------------------------
Printed Name: Susan Y. Choung
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My Commission Expires:
April 1, 1998
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