EXECUTION COPY
AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED FOAMEX INTERNATIONAL GUARANTY
This AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED FOAMEX INTERNATIONAL
GUARANTY, dated as of March 11, 1999 (this "Amendment"), amends in certain
respects the Second Amended and Restated Foamex International Guaranty (as
amended, amended and restated, supplemented or otherwise modified from time to
time, the "Guaranty"), dated as of February 27, 1998, made by Foamex
International Inc., a Delaware corporation (the "Guarantor"), in favor of
Citicorp USA, Inc., as Collateral Agent (together with any successor(s) thereto
in such capacity, the "Collateral Agent") for each of the Secured Parties (as
defined in the Guaranty), for the benefit of the Secured Parties, pursuant to
that certain credit agreement, dated as of June 12, 1997, as amended and
restated as of February 27, 1998 (as amended, amended and restated, supplemented
or otherwise modified from time to time, the "Credit Agreement"), among Foamex
L.P. (the "Borrower"), FMXI, Inc., certain institutions party thereto from time
to time as lenders (the "Lenders"), certain institutions party thereto from time
to time as issuing banks, Citicorp USA, Inc., as collateral agent for the
Lenders (the "Collateral Agent") and the issuing banks, and The Bank of Nova
Scotia, as funding agent for the Lenders and the Issuing Banks (together with
the Collateral Agent, the "Administrative Agents").
W I T N E S S E T H:
WHEREAS, the Borrower and the Guarantor (which has executed this
Amendment) have requested the undersigned, to amend the Guaranty as set forth
herein. The Lenders party hereto have agreed to amend the Guaranty to
accommodate the request of the Borrower and the Guarantor contained herein,
subject to the terms set forth herein.
NOW, THEREFORE, in consideration of the above recital of the Borrower,
the Guarantor and the Collateral Agent agree as follows:
SECTION 1. Defined Terms. Terms defined in the Guaranty and the Credit
Agreement and not otherwise defined herein have the meanings given such terms in
the Guaranty or the Credit Agreement, as the case may be.
SECTION 2. Amendment to the Guaranty. The Guaranty is hereby amended
as follows:
2.1. Amendment to Section 4.1.1. The Borrower, the Guarantor and the
Collateral Agent hereby agree to an amendment of clause (A)(iii) of Section
4.1.1 of the Guaranty by inserting the following language between the phrase
"the proceeds of which shall be retained by the Guarantor" and the word "and":
"or may be used by the Guarantor to repay indebtedness owed to
Subsidiaries of the Guarantor".
-1-
SECTION 3. Conditions to Effectiveness. This Amendment shall become
effective on the date hereof (the "Effective Date"), provided, that the
following conditions precedent have been satisfied (unless waived, or unless the
deadline for delivery has been extended, by the Collateral Agent):
(i) Documents. The Collateral Agent shall have received on or
before the Effective Date all of the following in form and substance
satisfactory to the Collateral Agent:
(a) this Amendment duly executed and in form and substance
satisfactory to the Collateral Agent;
(b) Amendment No. 2 to the Foamex L.P. Credit Agreement,
dated as of June 12, 1997, as amended and restated as of February
27, 1998 (as amended, amended and restated, supplemented or
otherwise modified from time to time, the "Credit Agreement"),
among Foamex L.P. ("Foamex" or the "Borrower"), FMXI, Inc.
("FMXI"), the institutions from time to time party thereto as
Lenders, the institutions from time to time party thereto as
Issuing Banks, Citicorp USA, Inc. ("Citicorp") as collateral
agent (the "Collateral Agent") and The Bank of Nova Scotia, as
funding agent (the "Funding Agent", and together with the
Collateral Agent, the "Administrative Agents"), duly executed and
in form and substance satisfactory to the Administrative Agents;
and
(c) such additional documentation as the Collateral Agent
may reasonably request.
(ii) Representations and Warranties. All of the representations
and warranties contained in Article III of the Guaranty shall be true
and correct in all material respects on and as of the Effective Date.
SECTION 4. Representations and Warranties. The Guarantor hereby
represents and warrants to the Lenders party hereto that (i) the execution,
delivery and performance of this Amendment by the Guarantor are within the
Guarantor=s corporate powers and have been duly authorized by all necessary
corporate action, and (ii) this Amendment constitutes the legal, valid and
binding obligation of the Guarantor, enforceable against the Guarantor, in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws relating to or
limiting creditors= rights generally or by equitable principles generally.
SECTION 5. Reference to and Effect on the Loan Documents.
5.1. Upon the effectiveness of this Amendment, on and after the date
hereof each reference in the Guaranty to "this Agreement", "hereunder",
"hereof", "herein" or words of like import, and each reference in the other Loan
Documents to the Guaranty, shall mean and be a reference to the Guaranty as
amended hereby.
5.2. Except as specifically amended above, all of the terms of the
Guaranty and all other Loan Documents shall remain unchanged and in full force
and effect.
5.3. The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of the Collateral Agent under the Guaranty or any of the Loan
Documents, nor constitute a waiver of any provision of the Guaranty or any of
the Loan Documents.
-2-
5.4. As of the Effective Date (after giving effect to this Amendment),
the Guarantor is in compliance in all material respects with all applicable
terms, conditions and covenants of the Guaranty.
SECTION 6. Execution in Counterparts. This Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute one and the same
agreement.
SECTION 7. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO NEW YORK CONFLICTS OF LAWS PRINCIPLES.
SECTION 8. Headings. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment or be given any substantive effect.
SECTION 9. Successors and Assigns. This Amendment shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
-3-
IN WITNESS WHEREOF, this Amendment has been duly executed as of the date
first above written.
FOAMEX L.P.
By: FMXI, Inc., Its Managing General Partner
By /s/ Xxxxxx X. Xxxxx, Xx.
------------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Vice President
-4-
FOAMEX INTERNATIONAL INC., as a guarantor
By /s/ Xxxxxx X. Xxxxx, Xx.
------------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Senior Vice President
-5-
CITICORP USA, INC., as Collateral Agent
By /s/ Shapleigh X. Xxxxx
-----------------------------
Name: Shapleigh X. Xxxxx
Title: Vice President
-6-
