AMENDMENT No. 1 TO
TAX DISTRIBUTION ADVANCE AGREEMENT
This Amendment No. 1 To Tax Distribution Advance Agreement
(the "Amendment") dated as of June 12, 1997 is made by and between Foamex
International Inc., a Delaware corporation and the successor to Foamex-JPS
Automotive L.P. ("FII"), and Foamex L.P., a Delaware limited partnership
("Foamex"). This Amendment amends the Tax Distribution Advance Agreement entered
into between Foamex-JPS Automotive L.P. ("Partners") and Foamex L.P., dated
December 11, 1996 (the "Agreement").
WHEREAS, Partners and Foamex entered into the Agreement to
provide for certain advances of Tax Sharing Payments from Foamex to Partners;
and
WHEREAS, Partners has been merged with and into FII.
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; and
(b) capitalized terms used herein and not otherwise defined shall have
the meaning ascribed to them in the Agreement.
ARTICLE II.
AMENDMENT OF PROVISIONS
Section 2.1. Amendment of Definition of FJPS. The definition
of the term "FJPS" in the Agreement is hereby amended and restated in its
entirety as follows:
"FJPS" means Foamex-JPS Automotive L.P. and its successors,
including, Foamex International Inc.
Section 2.2. Amendment of Section 2.1(b). Section 2.1(b)
of the Agreement is hereby amended and restated in its entirety as follows:
(b) "Availability" at any point in time shall mean $25
million, less all previous Advances.
Section 2.3. Amendment of Section 3.1(b). Section 3.1(b) of
the Agreement is hereby amended and restated in its entirety as follows:
"(b) Each Advance shall bear interest at a fixed rate per
annum equal to 13.25%."
Section 2.4. Amendment of Annex A. Annex A of the Agreement is
hereby replaced in its entirety by Annex A to this Amendment.
ARTICLE III.
MISCELLANEOUS
Section 3.1. 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 3.2. 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 3.3. Headings. The article and section headings herein
are for convenience only and shall not effect the construction hereof.
Section 3.4. Effect of Amendment. Except as amended by this
Amendment, the terms and provisions of the Agreement shall remain in full force
and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment
as of the date first above written.
FOAMEX INTERNATIONAL INC.
By:/s/ Xxxxxx X. Xxxxx, Xx.
Name: Xxxxxx X. Xxxxx, Xx.
Title: Vice President and
Secretary
FOAMEX L.P.
By: FMXI, Inc.
Its: managing general partner
By:/s/ Xxxxxx X. Xxxxx, Xx.
Name: Xxxxxx X. Xxxxx, Xx.
Title: Vice President and
Secretary
PROMISSORY NOTE
$25,000,000 New York, New York
June 12, 1997
THE UNDERSIGNED FOAMEX INTERNATIONAL INC., a Delaware
corporation ("Maker"), HEREBY PROMISES TO PAY to the order of FOAMEX L.P., a
Delaware limited partnership ("Payee"), on December 31, 1999, the principal
amount of TWENTY FIVE MILLION DOLLARS ($25,000,000), or, if less, the
outstanding Advances of Maker by Payee pursuant to the terms of that certain Tax
Distribution Advance Agreement dated as of December 11, 1996, as amended June
12, 1997 (the "Tax Distribution Advance Agreement") between Maker and Payee
together, in each case, with all accrued and outstanding interest in respect of
such principal amount. This promissory note amends and restates the promissory
note of Foamex-JPS Automotive L.P. payable to Foamex L.P. in an amount of up to
$17 million, dated December 11, 1996.
Maker promises to pay the interest on and principal of this
Note in accordance with the terms and conditions of the Tax Distribution Advance
Agreement.
Both principal and interest are payable in lawful money of the
United States of America in same day or immediately available funds to the
account of Payee at 0000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxx 00000, or at
such other place or places as any subsequent holder of this Note may, from time
to time, designate in writing. Whenever any payment to be made hereunder shall
be stated to be due on a day that is not a Business Day, such payment shall be
due instead on the next succeeding Business Day, and such extension of time
shall in such case be included in the computation of such payment of interest
and not in the computation of the succeeding payment of interest.
Payee or any subsequent holder of this Note shall have the
right to assign its rights hereunder or any interest herein without the prior
written consent of Maker.
This Note is subject to the terms and conditions of the Tax
Distribution Advance Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
All the covenants, stipulations, promises and agreements made
by or contained in this Note or in the Tax Distribution Advance Agreement on
behalf of the undersigned shall bind its successors, whether so expressed or
not.
No failure on the part of Payee to exercise, and no delay in
exercising, any right under this Note shall operate as a waiver thereof, nor
shall any single or partial exercise of any
such right preclude any other or further exercise thereof or the exercise of any
other right.
IN WITNESS WHEREOF, the undersigned has executed this Note as
of the date first set forth above.
FOAMEX INTERNATIONAL INC.
By: /s/ Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
