Exhibit 4.2.22
AMENDED AND RESTATED
RECEIVABLES INTERCREDITOR AGREEMENT
THIS AMENDED AND RESTATED RECEIVABLES INTERCREDITOR AGREEMENT
(the "Agreement"), is made and entered into as of June 12, 1997, by and among
The Bank of Nova Scotia and Citicorp USA, Inc., as Administrative Agents under
the Credit Agreement (collectively, the "Administrative Agent") 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 Agreement amends and restates that certain Intercreditor Agreement
by and between Trustee and Citibank N.A., dated as of November 18, 1993 (the
"Original Agreement").
W I T N E S S E T H:
WHEREAS, Citibank N.A. and Trustee entered into the Original
Agreement to confirm the relative rights in certain collateral of the Trustee as
Trustee for the holders of the Senior Secured Notes, and Citibank N.A., as
administrative agent, for certain lenders under the Existing Credit Agreement;
WHEREAS, pursuant to the Credit Agreement, dated as of June
12, 1997 (as amended, supplemented, amended and restated or modified from time
to time or refinanced, refunded or replaced in whole or in part from time to
time and regardless of whether the indebtedness outstanding or permitted to be
outstanding thereunder is increased or decreased, the "Credit Agreement"), among
Foamex L.P., a Delaware limited partnership ("Foamex"), General Felt Industries,
Inc., a Delaware corporation ("GFI"; together with Foamex being the
"Borrowers"), Trace Foam Company, Inc., a Delaware corporation and a general
partner of Foamex, FMXI, Inc., a Delaware corporation and a general partner of
Foamex, the lenders, the collateral agent and funding agent thereunder and the
Administrative Agents, the Borrowers have repaid the Existing Credit Agreement;
WHEREAS, pursuant to the Credit Agreement, the Administrative
Agents, for themselves and the benefit of the Lenders, and each of the Borrowers
and Foamex Capital Corporation ("FCC") have entered into the Loan Documents,
pursuant to which the Borrowers and certain of their Subsidiaries have granted
security interests in substantially all of their assets including the Trustee
Collateral (ad defined below) to secure the "Obligations" (as defined in the
Credit Agreement);
WHEREAS, Foamex, GFI, FCC and the Trustee have entered into
the Senior Secured Note Indenture (as defined in the Credit Agreement), dated as
of June 3, 1993, and Foamex, FCC, GFI, PFI
and the Trustee have entered into the Supplemental Indenture (senior Secured)
(as defined in the Credit Agreement);
WHEREAS, Foamex, FCC and GFI have entered into certain
security agreements, pledge agreements, collateral assignments and other
agreements, each dated as of June 3, 1993 in favor of the Trustee for the
benefit of the holders of the Senior Secured Notes, pursuant to which Foamex,
FCC and GFI, respectively, have granted (and any future "Guarantors" (as defined
in the Senior Secured Note Indenture) will grant) a security interest in the
"Collateral" (as defined in the Security Agreements dated June 3, 1993 in favor
of the Trustee made by Foamex L.P. and FCC and by GFI, the "Trustee Security
Agreements") of Foamex, FCC, GFI, and any future Guarantors under the Senior
Secured Notes, the Senior Secured Note Indenture and the "Collateral Documents"
(as defined in the Senior Secured Note Indenture);
WHEREAS, the Credit Agreement replaces and refinances the
Existing Credit Agreement and constitutes the "Credit Agreement" for purposes of
the Senior Secured Note Indenture; and
WHEREAS, the Administrative Agent and Foamex have requested
that the Trustee confirm certain matters set forth in the Original Agreement.
NOW THEREFORE, in consideration of the premises, covenants and
agreements contained herein, the parties hereto agree as follows:
1. Definitions. Terms which are capitalized and not otherwise
defined herein shall be defined as such terms are defined in the Credit
Agreement as in effect on the date hereof. As used herein, the following terms
shall have the following meanings:
"Bondholders, shall mean the holders, from time to time, of
the Senior Secured Notes.
"Lender Obligations" shall mean, collectively, the
"obligations" (as defined in the Credit Agreement), and all loans, advances,
debts, liabilities, obligations, covenants and duties of any kind or nature
owing by any borrower, guarantor or other obligor under any other "Credit
Agreement" (as defined in the Senior Secured Note Indenture), or any notes,
guaranties or other instruments or agreements relating thereto, whether arising
by reason of an extension of credit, opening or amendment of a letter of credit
or payment of any draft drawn thereunder, loan, guaranty, indemnification,
Interest Rate Contract, foreign exchange contract or in any other manner,
whether direct or indirect (including those acquired by assignment), absolute or
contingent, or due or to become due.
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"Lender Security Interest" shall mean the liens and security
interests granted to the Lenders, at any time and from time to time, to secure
the Lender Obligations pursuant to the Loan Documents.
"New 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.
"Receivables" shall mean, with respect to any Person or
entity, all of the following property and interests in property of such Person
or entity, whether now existing or existing in the future or hereafter acquired
or arising: (i) accounts, (ii) accounts receivable, including, without
limitation, all rights to payment created by or arising from sales of goods,
leases of goods or the rendition of services no matter how evidenced, whether or
not earned by performance, (iii) all unpaid seller's or lessor's rights
including, without limitation, rescission, replevin, reclamation and stoppage in
transit, relating to any of the foregoing or arising therefrom, (iv) all rights
to any goods or merchandise represented by any of the foregoing after creation
of the foregoing, including, without limitation, returned or repossessed goods,
(v) all reserves and credit balances with respect to any such accounts
receivable or account debtors, (vi) all letters of credit, security or
guarantees for any of the foregoing, (vii) all insurance policies or reports
relating to any of the foregoing, (viii) all collection or deposit accounts
relating to any of the foregoing, (ix) all proceeds of any of the foregoing, and
(x) all books and records relating to any of the foregoing.
"Receivables Security Agreements" shall mean, collectively,
the Subsidiary Security Agreement, the GFI Security Agreement, the Subsidiary
Security Agreements, and any other security agreement executed by a Subsidiary
or Affiliate of any Borrower granting the Administrative Agent a security
interest in such Person's Receivables to secure the Lender Obligations or such
Person's guaranty thereof, as the same may be amended, modified, extended,
refinanced, refunded or replaced from time to time.
"Trustee Collateral" shall mean the "Collateral" as defined in
each of the Trustee Security Agreements as such Trustee Security Agreements are
in effect on the date hereof.
"Trustee Security Agreements" shall mean the security
agreements, pledge agreements, collateral assignments and other agreements
evidencing the Liens granted in favor of the Trustee to secure the Note
Obligations, as the same may be amended,
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modified, extended, refinanced, refunded or replaced from time to time.
"Trustee Security Interest" shall mean the liens and security
interests granted to the Trustee, at any time and from time to time, to secure
the Note Obligations pursuant to the Trustee Security Agreements.
"UCC" shall mean the Uniform Commercial Code as in effect in
the State of New York on the date hereof.
2. Scope of Security Interests. The Trustee represents and
warrants to the Administrative Agent that, as of the date hereof, the Trustee
Security Interest does not include any lien on or security interest in
Receivables, except for books and records relating both to Receivables and the
Trustee Collateral.
3. No Challenge.
(a) Neither the Trustee nor any Bondholder shall take any
direct or indirect action, or vote in any way, so as to challenge in a
bankruptcy or insolvency proceeding or otherwise (i) the validity, priority or
enforceability of the Lender Obligations or the Lender Security Interest, (ii)
the rights of the Administrative Agent and the Lenders set forth in the Credit
Agreement or any of the Loan Documents, or (iii) the validity or enforceability
of any provision of this Paragraph 3(a).
(b) Neither the Administrative Agent nor any Lender shall take
any direct or indirect action, or vote in any way, so as to challenge in a
bankruptcy or insolvency proceeding or otherwise (i) the validity, priority or
enforceability of the Note Obligations or the Trustee Security Interest, (ii)
the rights of the Trustee and the Bondholders set forth in the Senior Secured
Note Indenture or any of the Trustee Security Agreements, or (iii) the validity
or enforceability of any provision of this Paragraph 3(b).
(c) Nothing in this Section 3 shall be deemed to permit any
Borrower, GFI or any other affiliate of Foamex to enter into any transaction
that is prohibited by the terms of the Credit Agreement or the Senior Secured
Note Indenture.
4. Access to Books and Records. If the Trustee or the
Administrative Agent obtains possession of any of the Borrowers' books and
records relating to both Receivables and the Trustee Collateral (in connection
with any enforcement of their respective security interests or otherwise), then
each of the Trustee and the Administrative Agent shall, upon the other's request
and at the other's expense, permit the other to review and copy all such books
and records. The Trustee grants the Administrative Agent a nonexclusive license
(to the extent such a license is permitted to be granted) to use, at the
Administrative
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Agent's expense and during regular business hours, all of the Borrowers'
computer hardware and software which the Trustee may possess or have the right
to use from time to time in order to permit the Administrative Agent to exercise
its rights under the preceding sentence and under the Receivables Security
Agreements. The foregoing license, being computed with an interest, shall be
irrevocable and shall terminate when this Agreement terminates. The Trustee and
the Administrative Agent shall cooperate with each other so that both the
Trustee and the Administrative Agent have reasonable access to the books and
records (including, without limitation, computer hardware and software)
described in this Section 4.
5. Trustee's Waivers.
(a) The Trustee hereby waives any right it may have to require
the Administrative Agent or the Lenders to marshal the Receivables of any Person
or entity in favor of the Trustee or the Bondholders.
(b) Each Lender has entered into the Credit Agreement and the
Receivables Security Agreements in reliance on this Agreement, and the Trustee
hereby waives notice of acceptance of the terms of this Agreement, and notice of
reliance by the Administrative Agent and the Lenders on this Agreement in making
any Loans or extending any other financial accommodations to the Borrowers under
the Loan Documents.
(c) The Trustee acknowledges that neither the Administrative
Agent nor any Lender has made any warranties or representations with respect to
the due execution, legality, validity, completeness or enforceability of any of
the Loan Documents, the collectability of the Lender Obligations or any matter
whatsoever related to the Lender Obligations or the Receivables of any Person or
entity (except as expressly set forth herein); provided that such acknowledgment
by the Trustee shall neither prejudice nor in any way qualify its right, or the
right of the Bondholders, to rely on representations and warranties made or
deemed to be made to them by any Borrower or any of its affiliates concerning
such matters.
(d) The Trustee agrees that the Administrative Agent and the
Lenders shall have no liability to the Trustee for, and the Trustee hereby
waives any claim which the Trustee may have at any time against the
Administrative Agent or any of the Lenders arising out of any and all actions
which the Administrative Agent or any of the Lenders in good faith and in a
commercially reasonable manner, take or omit to take with respect to (i) the
Credit Agreement or any other Loan Document, (ii) collection of the Lender
Obligations or (iii) foreclosure upon and sale, liquidation or other
disposition, or valuation, use, protection or release, of any Receivables (other
than books and records constituting part of the Receivables and part of the
Trustee Collateral) or any guaranty.
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(e) The Trustee hereby waives promptness, diligence, notice of
acceptance, notice of modification of any of the terms of the Credit Agreement,
the Receivables Security Agreements or any other Loan Document or the exercise
of any rights and remedies thereunder to the extent related to Receivables,
except as required by law.
6. Administrative Agent's Waivers.
(a) The Administrative Agent hereby waives any right it may
have to require the Trustee or the Bondholders to marshal the Trustee Collateral
in favor of the Administrative Agent or the Lenders.
(b) The Trustee, on behalf of the Bondholders, has entered
into the Senior Secured Note Indenture and the Collateral Documents in reliance
on this Agreement, and the Bondholders have purchased, and in the future will
purchase, the Senior Secured Notes in reliance on this Agreement, and the
Administrative Agent hereby waives notice of acceptance of the terms of this
Agreement, and notice of reliance by the Trustee or the Bondholders on this
Agreement in entering into the Senior Secured Note Indenture or purchasing the
Senior Secured Notes, respectively.
(c) The Administrative Agent acknowledges that none of the
Trustee or the Bondholders has made any warranties or representations with
respect to the due execution, legality, validity, completeness or enforceability
of the Senior Secured Note Indenture, the Senior Secured Notes or the Collateral
Documents, or any matter whatsoever related to the Senior Secured Notes or the
Trustee Collateral (except as expressly set forth herein); provided that such
acknowledgment by the administrative Agent shall neither prejudice nor in any
way qualify its right, or the right of the Lenders, to rely on representations
and warranties made or deemed to be made to the Administrative Agent or the
Lenders by any Borrower or any of its affiliates concerning such matters.
(d) The Administrative Agent agrees that the Trustee or the
Bondholders shall have no liability to the Administrative Agent for, and the
Administrative Agent hereby waives any claim which the Administrative Agent may
have at any time against any of the Trustee or the Bondholders arising out of,
any and all actions which the Trustee or any of the Bondholders in good faith
and in a commercially reasonably manner consistent with the New Intercreditor
Agreement, take or omit to take with respect to (i) the Senior Secured Note
Indenture, the Senior Secured Notes or the Trustee Security Agreements, (ii)
collection of the Senior Secured Notes or (iii) foreclosure upon and sale,
liquidation or other disposition, or valuation, use, protection or release, of
the Trustee Collateral (other than books and records constituting part of the
Trustee Collateral and part of the Receivables) or any guaranty.
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(e) The Administrative Agent hereby waives promptness,
diligence, notice of acceptance, notice of modification of any of the terms of
the Note Obligations, the Senior Secured Note Indenture or the Collateral
Documents or the exercise of any rights and remedies thereunder, except as
required by law.
7. Bankruptcy Issues.
(a) This Agreement shall be applicable both before and after
the commencement, whether voluntary or involuntary, of any case of any Borrower
under the Bankruptcy Code ( a "Bankruptcy Case") and all references herein shall
be deemed to apply to any Borrower as a debtor-in-possession and to any trustee
in bankruptcy for the estate of any Borrower.
(b) If:
(i) any Borrower or any Borrower's estate becomes the subject
of a case under the Bankruptcy Code, and
(ii) the Lenders desire to permit the use of their cash
collateral under Section 363 of the Bankruptcy Code or to provide
financing under Section 364 of the Bankruptcy Code, in either case
secured by Receivables arising after the commencement of any such
Bankruptcy Case and in either case for the normal business purposes of
the applicable Borrower; and
(iii) in connection with any such use of cash collateral or
financing, the applicable Borrower and each other obligor under such
cash collateral usage or financing arrangement (whether a Borrower or
any affiliate of a Borrower) grants to the Trustee, pursuant to court
order, a first priority security interest in all of its personal
property (other than its Receivables) arising after the commencement of
such Bankruptcy Case which would have constituted Trustee Collateral
but for the occurrence of such Bankruptcy Case;
then the Trustee agrees that (x) adequate notice of such financing to the
Trustee shall have been provided if (i) with respect to any motion seeking
emergency or preliminary authorization to use cash collateral or for
post-petition financing, the Trustee receives notice, by telecopy, overnight
courier or hand delivery to the Trustee at its address set forth herein, two (2)
business days before the entry of any order approving such cash collateral usage
or financing and (ii) with respect to any other motions, such notice as is
required by law; (y) the Trustee shall not object to such cash collateral usage
or financing based on: (I) any claim that the Trustee's liens and security
interest are not adequately protected, (II) any objection to the nature or scope
of any adequate protection granted to the Lenders in the form of replacement or
additional liens on Receivables arising after the commencement of such
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Bankruptcy Case, or (III) any proposed application of pre-petition Receivables
proceeds to the Lenders' pre-petition claims, and (z) the Trustee shall not seek
to have the automatic stay lifted with respect to the Trustee Collateral for any
of the reasons enumerated in the preceding clause (y) so long as such cash
collateral usage or financing has not been terminated.
(c) Except to the extent specifically stated herein, this
Agreement shall not affect or limit the rights of the Trustee and the
Bondholders, or the Administrative Agent and the Lenders, in connection with (i)
any use or proposed use of cash collateral or debtor-in-possession financing or
proposed debtor-in-possession financing (including, without limitation, any
right to object to the form of, or any provision of, any cash collateral usage
or financing order, to the extent such objection is not expressly prohibited by
Section 7(b) hereof), (ii) any effort to seek adequate protection or relief from
the automatic stay or (iii) any Bankruptcy Case.
(d) Notwithstanding anything to the contrary contained in
Section 10 hereof, if the Administrative Agent or any of the Lenders is required
under any bankruptcy or other law to return to any Borrower, the estate in
bankruptcy thereof, any third party, or trustee, receiver or other
representative of any Borrower, any payment or distribution of assets, whether
in cash, property, or securities, including, without limitation, any Receivables
previously received by the Administrative Agent or such Lender on account of the
Lender Obligations (a "Reinstatement Distribution"), then to the extent
permitted by law, this Agreement shall be reinstated with respect to any such
Reinstatement Distribution. Neither the Administrative Agent nor any Lender
shall be required to contest its obligation to return such Reinstatement
Distribution if the Administrative Agent or such Lender elects for any reason
not to contest such obligation.
8. Representations and Warranties. Each of the parties hereto
represents and warrants to the other as follows:
(a) it has the corporate power and authority to execute,
deliver and perform this Agreement and has taken all necessary corporate actions
to authorize the execution, delivery and performance by it of this Agreement;
(b) no consent or authorization of, or filing with, any person
(including, without limitation, any governmental body, agency or official) is
required in connection with the execution, delivery or performance by it, or the
validity or enforceability against it, of this Agreement; and
(c) this Agreement has been duly executed and delivered by it
and constitutes a legal, valid and binding obligation, enforceable against it in
accordance with its terms, except as may be limited by applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally and subject,
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as to enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law).
9. Absolute Nature of Obligations. The Administrative Agent
and the Trustee each agrees that the terms and conditions of this Agreement
shall be absolute and unconditional irrespective of:
(i) any lack of validity or enforceability of, or any default
or event of default occurring under, the Credit Agreement, the other Loan
Documents, the Senior Secured Note Indenture, the Senior Secured Notes or the
Collateral Documents;
(ii) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Lender Obligations or the Note
Obligations, or any amendment or waiver of, or any consent to departure from,
the Credit Agreement, the Other Loan Documents, the Senior Secured Note
Indenture, the Senior Secured Notes or the Collateral Documents;
(iii) any exchange, release or non-perfection of any
Collateral or any "Collateral" (as defined in each Trustee Security Agreement)
or any release or amendment or waiver of or consent to departure from any
guaranty, for all or any of the Lender Obligations or Note Obligations; or
(iv) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, any Borrower or any guarantor.
10. Termination. This Agreement shall remain in full force and
effect and be enforceable against each party hereto according to its terms and
shall terminate upon the indefeasible payment in full of the Lender Obligations
or the Note Obligations.
11. Limitation of Liability. In exercising any of the rights
and remedies granted to them hereunder, the Administrative Agent and the Lenders
on the one hand, and the Trustee and the Bondholders on the other hand, shall
have no duty to collect any sums due in respect of the Note Obligations or the
Lender Obligations, respectively, or to enforce, protect or preserve any rights
pertaining thereto except as may be required by law.
12. Miscellaneous.
(a) Notices. All notices, requests and other communciations to
any party hereunder shall be given in writing and shall be given to such party
at its address by registered mail or air courier or its telecopier number in
either case set forth on the signature pages hereof or such other address or
facsimile number as such party may hereafter specify by notice to each of the
other parties hereto; provided, however, that no
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notices, requests or other communications may be given by facsimile or similar
teletransmission unless receipt is confirmed. Each such notice, request or other
communication shall be effective (i) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid, or (ii) if given by any other means (including, without
limitation, by air courier), when delivered at the address or number specified.
(b) Governing Law: Severability. This Agreement shall be
governed by, and construed in accordance with, the internal laws (as opposed to
conflict of laws principles) of the State of New York. Wherever possible, each
provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but, if any provision of this
Agreement shall be prohibited or invalid under applicable law, such provision
shall be ineffective only to the extent of such prohibition or invalidity and
without invalidating the remaining provisions of this Agreement.
(c) Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns. The Administrative Agent's successors shall include (i)
each Persons constituting a "Credit Agent" (as defined in the Senior Secured
Note Indenture), and (ii) if there is no agent under any successor "Credit
Agreement" (as defined in the Senior Secured Note Indenture), then each holder
of Indebtedness under such "Credit Agreement." The Trustee's successors shall
include any Person replacing the Trustee as Trustee pursuant to the terms of the
Senior Secured Note Indenture. Upon the request of any such successor Credit
Agent, the Trustee shall enter into an intercreditor agreement with such Credit
Agent that is identical in substance to this Agreement, with appropriate
conforming changes to reflect changes in the identity of the Credit Agent and/or
the "Credit Agreement" (as defined in the Senior Secured Note Indenture). Upon
the request of any such successor Trustee, the Credit Agent shall enter into an
intercreditor agreement with such Trustee that is identical in substance to this
Agreement, with appropriate conforming changes to reflect changes to reflect
changes in the identity of the Trustee.
(d) Amendments, Modifications and Waivers. No amendment,
modification or waiver of any provision of this Agreement shall be effective
unless the same shall be in writing and signed by each of the parties hereto or
their respective successors and assigns, and then such amendment, modification
or waiver shall be effective only to the specific instance and for the specific
purpose for which it is given.
(e) Headings. The section headings contained in this Agreement
are and shall be without substantive meaning or content whatsoever and are not
part of this Agreement.
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(f) Holders Bound. The Trustee is signing below as trustee for
the holders of the Senior Secured Notes and their successors and assigns and the
Administrative Agent is signing below as agent for the Lenders and their
successors and assigns.
(g) New Intercreditor Agreement Controls. To the extent a term
or provision of this Agreement conflicts with a New Intercreditor Agreement, the
New Intercreditor Agreement shall control with respect to the subject matter of
such term or provision.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
representative as of the date first above written.
CITICORP, USA, Inc. As
Administrative Agent
By /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Attorney-in-Fact
Address:
Fax No.:
THE BANK OF NOVA SCOTIA, as
Administrative Agent
By: /s/ Xxxxx X. Xxxxx
---------------------------------------
Name: Xxxxx X. Xxxxx
Title: Sr. Relationship Manager
Address: Xxx Xxxxxxx Xxxxx, XX, XX 00000
Fax No.: (000) 000-0000
FLEET NATIONAL BANK, as Trustee
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
Address: Xxx Xxxxxxx Xxxxxx,
Xxxxxx, XX 00000
Fax No.: (000) 000-0000
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