[EXECUTION COPY]
AMENDMENT NO. 2 TO FOAMEX CREDIT AGREEMENT
This AMENDMENT TO FOAMEX CREDIT AGREEMENT, dated as of February 18, 2000
(this "Amendment"), amends in certain respects that certain Credit Agreement
dated as of June 12, 1997, as amended and restated as of February 27, 1998 as
further amended and restated as of June 29, 1999 (as amended, amended and
restated, supplemented or otherwise modified from time to time, the "Credit
Agreement") among Foamex L.P., a Delaware limited partnership ("Foamex" or the
"Borrower"), FMXI, Inc., a Delaware corporation and managing, general partner of
Foamex ("FMXI"), the institutions from time to time a party thereto as Lenders,
whether by execution of the Credit Agreement or an Assignment and Acceptance,
the institutions from time to time a party thereto as Issuing Banks, whether by
execution of the Credit Agreement or an Assignment and Acceptance, Citicorp USA,
Inc., a Delaware corporation ("Citicorp"), in its capacity as the collateral
agent for the Lenders and the Issuing Banks thereunder (in such capacity, the
"Collateral Agent") and The Bank of Nova Scotia ("Scotiabank"), in its capacity
as funding agent for the Lenders and Issuing Banks (in such capacity, the
"Funding Agent"; together with the Collateral Agent, the "Administrative
Agents").
W I T N E S S E T H:
WHEREAS, the Borrower (which has executed this Amendment) has requested the
undersigned, which constitute the Requisite Lenders, to amend the Credit
Agreement as set forth herein. The Lenders party hereto have agreed to amend the
Credit Agreement to accommodate the request of the Borrower contained herein,
subject to the terms set forth herein.
NOW, THEREFORE, in consideration of the above recital of the Borrower, the
Requisite Lenders and the Administrative Agents agree as follows:
SECTION 1. Defined Terms. Capitalized terms used herein and not otherwise
defined herein shall have the meanings provided to such terms in the Credit
Agreement.
SECTION 2. Amendments to the Credit Agreement. The Credit Agreement is
hereby amended as follows:
SECTION 2. 1. Amendment to Section 7.01 of the Credit Agreement. Clause (c)
of Section 7.01 of the Credit Agreement is hereby amended by inserting in the
penultimate line thereof, immediately after the language "for the fiscal year
ended December 31, 1999" the following:
", contain a going concern qualification,".
SECTION 3. Conditions to Effectiveness. This Amendment shall become
effective on the date (the "Effective Date") on which the following conditions
precedent have been satisfied (unless waived by the Requisite Lenders):
(i) Documents. The Administrative Agents shall have received on or
before the Effective Date (A) this Amendment (x) duly executed by the
Borrower and the Lenders which constitute the Requisite Lenders and (y) in
form and substance satisfactory to the Requisite Lenders and (B) copies of
the draft PricewaterhouseCoopers audit opinion with respect to Foamex and
its Subsidiaries for the period ended December 31, 1999 (the "Audit
Opinion"), substantially in form and substance of Annex I attached hereto.
(ii) Contracts; Consents. The Borrower shall have received all
material consents and authorizations required pursuant to any material
Contractual Obligation with any other Person and shall have obtained all
material consents and authorizations of, and effected all notices to and
filings with, any Governmental Authority, in each case, as may be necessary
to allow the Borrower to lawfully and without risk of rescission, execute,
deliver and perform, in all material respects, its obligations under this
Amendment.
(iii) No Legal Impediments. No law, regulation, order, judgment or
decree of any Governmental Authority shall, and neither Administrative
Agent shall have received, on or prior to the Effective Date, any notice
that litigation is pending or threatened which is likely to, impose or
result in the imposition of a Material Adverse Effect.
(iv) No Default. Both immediately before and after giving effect to
this Amendment, no Potential Event of Default or Event of Default shall
have occurred.
(v) Representations and Warranties. All of the representations and
warranties contained in Article VI of the Credit Agreement and in any of
the other Loan Documents shall be true and correct in all material respects
on and as of the Effective Date.
SECTION 4. Representations and Warranties. The Borrower hereby represents
and warrants to the Lenders party hereto that (i) the execution, delivery and
performance of this Amendment by the Borrower are within the Borrower's
partnership powers and have been duly authorized by all necessary partnership
action, and (ii) this Amendment constitutes the legal, valid and binding
obligation of the Borrower, enforceable against the Borrower, 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.
SECTION 5.1. Upon the effectiveness of this Amendment, on and after the
date hereof each reference in the Credit Agreement to "this Agreement",
"hereunder", "hereof", "herein" or words of like import, and each reference in
the other Loan Documents to the Credit Agreement, shall mean and be a reference
to the Credit Agreement as amended hereby.
SECTION 5.2. Except as specifically amended above, all of the terms of the
Credit Agreement and all other Loan Documents shall remain unchanged and in full
force and effect.
SECTION 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 any Lender or either Administrative Agent under the
Credit Agreement or any of the Loan Documents, nor constitute a waiver of any
provision of the Credit Agreement or any of the Loan Documents.
SECTION 5.4. As of the Effective Date (after giving effect to this
Amendment), the Borrower is in compliance in all material respects with all
applicable terms, conditions and covenants of the Credit Agreement and other
Loan Documents.
SECTION 5.5. Upon delivery to Foamex by PricewaterhouseCoopers of the
originally executed Audit Opinion, if such Audit Opinion shall not be
substantially in the form and substance of Annex I hereto, such occurrence shall
constitute an Event of Default under the Credit Agreement, unless waived by the
Administrative Agents in their sole discretion.
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. Guarantor Consent. By its signature below, Foamex International
hereby (i) consents to this Amendment in its capacity as a guarantor under the
Foamex International Guaranty and (ii) affirms its obligations under such
guaranty.
SECTION 9. 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 10. Successors and Assigns. This Amendment shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns.
[REMAFNDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, this Amendment has been duly executed as of the date
first above written.
BORROWER
FOAMEX L.P.
By: FMXI, Inc., Its Managing General
Partner
By /s/ Xxxxxx X. Xxxxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
FMXI, INC.
By /s/ Xxxxxx X. Xxxxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
FOAMEX INTERNATIONAL INC., as a guarantor
By /s/ Xxxxxx X. Xxxxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Senior Vice President
CITICORP USA, INC., as
Administrative Agent, Collateral
Agent, individually as a Lender,
and as Intercreditor Collateral Agent
By /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
CITIBANK, N.A., as Issuing Bank
By /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA, as
Administrative Agent, Funding
Agent, Issuing Bank, individually
as a Lender, and as Intercreditor
Agent
By /s/ Xxxxx X. Xxxxx
------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
AG CAPITAL FUNDING PARTNERS, L.P.
By /s/ Xxxxxxx Xxxxxx
-----------------
Name: Xxxxxxx Xxxxxx
Title: Authorized Signatory
BALANCED HIGH-YIELD FUND I LTD.
By: BHF (USA) Capital Corporation
acting as Attorney-In-Fact
By
-----------------
Name:
Title:
By /s/ Xxxxx Xxxxxx
-----------------
Name: Xxxxx Xxxxxx
Title: Vice President
BHF (USA) CAPITAL CORPORATION
By
-----------------
Name:
Title:
By /s/ Xxxxx Xxxxxx
-----------------
Name: Xxxxx Xxxxxx
Title: Vice President
CERBERUS PARTNERS, L.P.
By /s/ Xxxx X. Neporent
--------------------
Name: Xxxx X. Newporent
Title: Managing Director
COMMERCIAL LOAN FUNDING TRUST I
By: Xxxxxx Commercial Paper Inc.,
not in its individual capacity, but
solely as Administrative Agent
By /s/ Xxxxxxx Xxxxxxx
-------------------
Name: Xxxxxxx Xxxxxxx
Title: Authorized Signatory
By
-------------------
Name:
Title:
CREDIT INDUSTRIEL ET COMMERCIAL
By /s/ Xxxxx X'Xxxxx
------------------
Name: Xxxxx X'Xxxxx
Title: Vice President
By /s/ Xxxx Xxxxxxx
-----------------
Name: Xxxx Xxxxxxx
Title: First Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By /s/ Xxxxx X. Xxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
CYPRESSTREE INVESTMENT MANAGEMENT
COMPANY, INC.
As: Attorney-in-Fact and on behalf of
First Allmerica Financial Life
Insurance Company as Portfolio
Manager
By /s/ Xxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxx X. Xxxxxxx
Title: Principal
DELANO COMPANY
By: Pacific Investment Management
Company, as its Investment Advisor
By /s/ Xxxxxxx Xxxxxxx
--------------------
Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President
By: PIMCO Management Inc., a general
partner
By /s/ Xxxxxxx Xxxxxxx
--------------------
Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President
GENERAL ELECTRIC CAPITAL CORPORATION
By /s/ Xxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxx X. Xxxxxxx
Title: Duly Authorized Signatory
IMPERIAL BANK
By: /s/ Xxx Xxxxxxx
---------------
Name: Xxx Xxxxxxx
Title: Senior Managing Director
ING HIGH INCOME PRINCIPAL
PRESERVATIONS FUND HOLDINGS, INC.
By: ING Captial Advisors LLC, as
Investment Advisor
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President and
Portfolio Manager
ARCHIMEDES FUNDING, L.L.C.
By: ING Captial Advisors LLC, as
Collateral Manager
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President and
Portfolio Manager
KZH CRESCENT LLC
By /s/ Xxxxx Xxxx
---------------
Name: Xxxxx Xxxx
Title: Authorized Agent
KZH CRESCENT-2 LLC
By /s/ Xxxxx Xxxx
---------------
Name: Xxxxx Xxxx
Title: Authorized Agent
KZH CYPRESSTREE-1 LLC
By /s/ Xxxxx Xxxx
---------------
Name: Xxxxx Xxxx
Title: Authorized Agent
KZH LANGDALE LLC
By /s/ Xxxxx Xxxx
---------------
Name: Xxxxx Xxxx
Title: Authorized Agent
KZH ING-1 LLC
By /s/ Xxxxx Xxxx
---------------
Name: Xxxxx Xxxx
Title: Authorized Agent
KZH ING-2 LLC
By /s/ Xxxxx Xxxx
---------------
Name: Xxxxx Xxxx
Title: Authorized Agent
KZH SOLEIL LLC
By /s/ Xxxxx Xxxx
---------------
Name: Xxxxx Xxxx
Title: Authorized Agent
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By /s/ Xxxxxx X. Xxxx
-------------------
Name: Xxxxxx X. Xxxx
Title: Second Vice President
MASSMUTUAL HIGH YIELD PARTNERS II, LLC
By: HYP MANAGEMENT INC. AS MANAGING
MEMBER
By /s/ Xxxxxx X. Xxxxx
--------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
XXXXXXX XXXXX XXXXXX XXXXXX & XXXXX
By /s/ Xxxxx Xxxx
---------------
Name: Xxxxx Xxxx
Title: Managing Director
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By /s/ Xxxxxxxxx Xxxxxxx
----------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Senior Vice President
NATEXIS BANQUE, BFCE (formerly Banque
Francaise du Commerce Exterieur)
By /s/ Xxxxx X. Xxxxxx, Xx.
-------------------------
Name: Xxxxx X. Xxxxxx, Xx.
Title: Vice President and Group Manager
By /s/ Xxxxxx Xxxxxx
------------------
Name: Xxxxxx Xxxxxx
Title: Associate
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: Its Authorized Representative
NORTHWOODS CAPITAL LIMITED
By: Xxxxxx, Xxxxxx & Co.,
as Collateral Manager
By /s/ Xxxxxxx Xxxxxx
---------------
Name: Xxxxxxx Xxxxxx
Title: Authorized Signatory
PILGRIM PRIME RATE TRUST
By: Pilgrim Investments, Inc., as
its Investment Manager
By /s/ Xxxxx X. Xxxxx
-------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
ROYALTON COMPANY
By: Pacific Investment Management
Company, as its Investment Advisor
By /s/ Xxxxxxx Xxxxxxx
--------------------
Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President
By: PIMCO Management Inc., a general
partner
By /s/ Xxxxxxx Xxxxxxx
--------------------
Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President
XXX XXXXXX
PRIME RATE INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By /s/ Xxxxxx X. Xxxxxx
---------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
XXX XXXXXX CLO I, LIMITED
By: Xxx Xxxxxx AmericanManagement Inc.,
as Collateral Manager
By /s/ Xxxxxx X. Xxxxxx
---------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
