[Execution Copy]
NEW GFI INTERCREDITOR AGREEMENT
THIS NEW GFI INTERCREDITOR AGREEMENT, dated as of February 27, 1998, is
among (i) CITICORP USA, INC. ("Citicorp") and THE BANK OF NOVA SCOTIA, as
administrative agents (in such capacity, the "New GFI Administrative Agents") on
behalf of certain financial institutions (collectively referred to as the "New
GFI Lenders") which are now, or may from time to time hereafter become, parties
to the New GFI Facility referred to below, (ii) CITICORP, as collateral agent
(in such capacity, the "Term Collateral Agent") on behalf of certain financial
institutions which are now, or may from time to time hereafter become, parties
to the Term Facility referred to below as the Holder of the New GFI Note (as
defined below), and (iii) CITICORP, acting in its capacity as collateral agent
hereunder (together with its successors and assigns, the "Intercreditor
Collateral Agent") for the Secured Parties.
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, dated as of February 27,
1998 (as amended, supplemented, amended and restated or otherwise modified from
time to time, the "New GFI Facility"), among Foamex Carpet Cushion Inc., a
Delaware corporation ("New GFI"), the New GFI Lenders and the Administrative
Agents, the New GFI Lenders have extended commitments to make Credit Extensions
(as defined in the Credit Agreement) thereunder;
WHEREAS, pursuant to the Credit Agreement, dated as of February 27,
1998 (as amended, supplemented, amended and restated or otherwise modified from
time to time, the "Term Facility"), among Foamex L.P., a Delaware limited
partnership, the lenders party thereto and the administrative agents party
thereto, and assumed by Trace Foam LLC ("TFLLC"), the lenders have extended term
loans to Foamex thereunder;
WHEREAS, in connection with the sale of all non-real estate assets by
General Felt Industries, Inc. ("GFI") to New GFI, New GFI has issued a
promissory note in an original principal amount of $70,200,000 (the "New GFI
Note") to GFI which has been guaranteed by Foamex International, Inc., a
Delaware corporation ("FII");
WHEREAS, as security for its obligations under the Term Facility, TFLLC
has pledged and assigned all of its rights and interests in the New GFI Lease
and the New GFI Note (including an
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assignment of all of its rights and interests in all collateral securing the New
GFI Note) to the Term Collateral Agent under the Pledge Agreement, dated as of
the date hereof (as amended, supplemented, amended and restated or otherwise
modified from time to time, the "GFI Pledge Agreement"), as a result of which
the Term Collateral Agent (a) has rights as the Holder of the New GFI Note to,
inter alia, receive payments thereunder and to grant consents, waivers,
amendments and other changes and modifications thereto and thereunder, (b) has
rights with respect to the New GFI Lease to, inter alia, receive payments
thereunder and to grant consents, waivers, amendments and other changes and
modifications thereto and thereunder, and (c) to enter into and bind GFI to the
terms and conditions and other agreements contained in this Agreement;
WHEREAS, New GFI has entered into the Security Agreement, dated as of
the date hereof (as amended, supplemented, amended and restated or otherwise
modified from time to time, the "Security Agreement"), pursuant to which New GFI
has granted a lien to the Intercreditor Collateral Agent, for its benefit and
the benefit of the secured parties referred to therein, in and to all of the
collateral described therein (the "Security Agreement Collateral");
WHEREAS, New GFI has entered into the Contract Assignment and Security
Agreement, dated as of the date hereof (as amended, supplemented, amended and
restated or otherwise modified from time to time, the "Contract Assignment
Agreement"), pursuant to which New GFI has granted a lien to the Intercreditor
Collateral Agent, for its benefit and the benefit of the secured parties
referred to therein, in and to all of the collateral described therein (the
"Contract Assignment Agreement Collateral");
WHEREAS, New GFI has entered into the Mortgages, each dated as of the
date hereof (as amended, supplemented, amended and restated or otherwise
modified from time to time, collectively the "Mortgages"), pursuant to which New
GFI has granted a lien to the Intercreditor Collateral Agent, for its benefit
and the benefit of the secured parties referred to therein, in and to all of the
collateral described therein (the "Mortgage Collateral");
WHEREAS, the Secured Parties and the Intercreditor Collateral Agent
wish to set forth certain additional agreements among them with respect to,
among other things, the appointment, duties and responsibilities of the
Intercreditor Collateral Agent, the allocation of certain payments by the
Obligors among the Intercreditor Collateral Agent and the Secured Parties and
decisions relating to the exercise of remedies under the New GFI Facility, the
New GFI Note, the Term Facility and the Collateral Documents; and
NOW, THEREFORE, in consideration of the premises and other covenants
set forth in this Agreement, and for other good and
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valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE 1.
DEFINITIONS
SECTION a. Certain Terms. The following terms (whether or not
underscored) when used in this Agreement, including
its preamble and recitals, shall have the following
meanings (such definitions to be equally applicable
to the singular and plural forms thereof):
"Agreement" means this New GFI Intercreditor Agreement as in effect on
the date hereof, as the same may be amended, supplemented, amended and restated
or otherwise modified from time to time.
"Applicable Agreement" means, as the context requires, the New GFI
Facility or the New GFI Note.
"Collateral" means, collectively, the Security Agreement Collateral,
the Contract Assignment Agreement Collateral and the Mortgage Collateral.
"Collateral Documents" means, collectively, the Security Agreement, the
Contract Assignment Agreement, the Mortgages and all other documents, agreements
and instruments from time to time evidencing a security interest purported to be
granted in the Collateral.
"Contract Assignment Agreement" is defined in the sixth recital.
"Contract Assignment Agreement Collateral" is defined in the
sixth recital.
"Credit Extensions" is defined in the first recital.
"Event of Default" means any New GFI Facility Event of Default, any New
GFI Note Event of Default or any Term Facility Event of Default.
"Excess Party" is defined in clause (a) of Section 3.2.
"Fee and Expense Share Allocation" means a fraction determined by the
Intercreditor Collateral Agent as of the date on which the Intercreditor
Collateral Agent receives Proceeds (i) the numerator of which, in respect of any
Secured Party, shall equal all Fees and
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Expenses owing to such Secured Party and notified in writing by the applicable
Notifying Secured Party to the Intercreditor Collateral Agent as of such date
and (ii) the denominator of which shall equal all Fees and Expenses owing to all
Secured Parties and notified in writing by the applicable Notifying Secured
Party to the Intercreditor Collateral Agent as of such date.
"Fees and Expenses" is defined in clause (a)(ii)(A) of Section 4.2.
"FII" is defined in the third recital.
"GFI" is defined in the third recital.
"GFI Pledge Agreement" is defined in the fourth recital.
"Holder" is defined in the preamble.
"Intercreditor Collateral Agent" is defined in the preamble.
"Interest Obligations" is defined in clause (a)(ii)(B) of Section 4.2.
"Interest Share Allocation" means a fraction determined by the
Intercreditor Collateral Agent as of the date on which the Intercreditor
Collateral Agent receives Proceeds (i) the numerator of which, in respect of any
Secured Party, shall equal all Interest Obligations owing to such Secured Party
and notified in writing by the applicable Notifying Secured Party to the
Intercreditor Collateral Agent as of such date and (ii) the denominator of which
shall equal all Interest Obligations owing to all Secured Parties and notified
in writing by the applicable Notifying Secured Party to the Intercreditor
Collateral Agent as of such date.
"Mortgage Collateral" is defined in the seventh recital.
"Mortgages" is defined in the seventh recital.
"New GFI" is defined in the first recital.
"New GFI Administrative Agents" is defined in the preamble.
"New GFI Facility" is defined in the first recital.
"New GFI Facility Event of Default" has the meaning assigned to the
term "Event of Default" in the New GFI Facility.
"New GFI Lenders" is defined in the preamble.
"New GFI Note" is defined in the third recital.
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"New GFI Note Event of Default" has the meaning assigned to the term
"Event of Default" in the New GFI Note.
"Notifying Secured Party" means either of the New GFI Administrative
Agents or the Holder.
"Principal Allocation" means a fraction determined by the Intercreditor
Collateral Agent as of the date on which the Intercreditor Collateral Agent
receives Proceeds (i) the numerator of which, in respect of any Secured Party,
shall equal all Principal Obligations owing to such Secured Party and notified
in writing by the applicable Notifying Secured Party to the Intercreditor
Collateral Agent as of such date and (ii) the denominator of which shall equal
all Principal Obligations owing to all Secured Parties and notified in writing
applicable Notifying Secured Party to the Intercreditor Collateral Agent as of
such date.
"Principal Obligations" means, collectively, the aggregate amounts
owing to the Secured Parties with respect to (i) the outstanding principal of
the Obligations and (ii) the outstanding principal amount of the New GFI Note.
"Proceeds" is defined in clause (a) of Section 4.2.
"Ratable" or "Ratably" means, in the context of (i) the benefit of or
any distribution or realization of Collateral, or (ii) a distribution of any
Proceeds, an allocation thereof among the Secured Parties pro rata in accordance
with the amount of the Secured Obligations owing to such party is of an
aggregate amount of all Secured Obligations.
"Related Parties" is defined in clause (a) of Section 5.2.
"Requisite Secured Parties" means the New GFI Lenders and/or the Holder
which, in the aggregate, have Voting Percentages which exceed 50%; provided,
however, that if the Term Facility is paid in full in cash and cash equivalents
and the New GFI Note (as defined in the Term Facility) is still outstanding, the
Requisite Lenders will constitute the Requisite Secured Parties.
"Secured Parties" means, collectively (a) the Credit Agents and the New
GFI Lenders, (b) providers of Hedging Obligations which are Lenders and (c) the
Holder.
"Secured Obligations" means the Principal Obligations and the
Interest Obligations.
"Security Agreement" is defined in the fifth recital.
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"Security Agreement Collateral" is defined in the fifth recital.
"Term Collateral Agent" is defined in the preamble.
"Term Facility" is defined in the second recital.
"Term Facility Event of Default" has the meaning assigned to the term
"Event of Default" in the Term Facility.
"Voting Percentage" means, relative to any New GFI Lender or the
Holder, the percentage which the outstanding amount of the Principal Obligations
owing to such New GFI Lender or the Holder is of the aggregate amount of all
Principal Obligations.
SECTION b. Definitions. Unless otherwise defined
herein or the context otherwise requires,
terms used in this Agreement, including its
preamble and recitals, have the meanings
provided in the New GFI Facility.
ARTICLE 2.
CERTAIN RIGHTS OF SECURED PARTIES
SECTION a. Acceleration. It is expressly understood
and agreed by each Secured Party that
Indebtedness owing to any Secured Party from
any Obligor may be accelerated in accordance
with the terms of the Applicable Agreement
governing such Indebtedness, and, subject to
Section 2.2, that this Agreement does not
limit or affect such right or any other rights
afforded to the Secured Parties under the
Applicable Agreements.
SECTION b. Restrictions on Collection of Secured
Obligations from Collateral. Except as
provided in this Agreement (including Section
4.1), no Secured Party or group of Secured
Parties shall have any right to require the
Intercreditor Collateral Agent to take, nor
shall any such Secured Party or group of
Secured Parties take, any action with respect
to the Collateral or any portion thereof
(including the foreclosure, sale or other
liquidation thereof) or any Proceeds thereof,
or to require any application of any Proceeds
thereof in payment of all or any portion of
the Secured Obligations.
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SECTION c. Individual Rights. Except as expressly
provided in this Agreement, each Secured Party
shall have such rights as may be provided to
it by its Applicable Agreement, the Collateral
Documents and by applicable law.
SECTION d. Required Notices. Each Notifying Secured
Party shall give notice promptly to the
Intercreditor Collateral Agent of:
1. the occurrence of any Event of Default of which
it has knowledge;
2. the acceleration by it of the maturity of any
Secured Obligations owed to it by any Obligor; and
3. any proceeding which it has commenced against any
Obligor pursuant to the exercise of any individual
rights it may have either under an Applicable
Agreement, any document or instrument delivered in
connection therewith or under applicable law.
Promptly following receipt, the Intercreditor Collateral Agent shall give a copy
of each notice which it has received pursuant to this Section to the New GFI
Administrative Agents and the Term Collateral Agent.
ARTICLE 3.
SHARING OF PAYMENTS, ETC.
SECTION a. Sharing Excess Payments. Nothing contained
in this Agreement is intended to limit any
Obligor's obligation to make payment of all
Secured Obligations owed by it to the Secured
Parties and the Intercreditor Collateral Agent
strictly in accordance with the terms of the
Applicable Agreement and instruments or
agreements delivered in connection therewith.
The right, however, of any Secured Party under
the Applicable Agreement, the Collateral
Documents and under this Agreement (including
Article IV hereof) to hold and apply in
payment of any Secured Obligation owed to it
any amounts received by it as a result of the
realization, sale or other remedial
disposition of, or foreclosure on, any
Collateral shall be subject to such Secured
Party's obligation to distribute such amounts
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(to the extent such amounts exceed the
Ratable amount of such Secured Party of all
amounts then being applied in payment of all
Secured Obligations) among all Secured
Parties and the Intercreditor Collateral
Agent in accordance with Section 3.2.
SECTION b. Method of Sharing.
i. If any Secured Party (an "Excess Party") shall
obtain any payment or other recovery (whether
voluntary, involuntary, by application of setoff,
or otherwise) on account of any Collateral in
payment of obligations constituting part of the
Secured Obligations owed to it in excess of the
amount it is then entitled to receive under the
terms of this Agreement, such Excess Party shall
hold such amount in trust for the Ratable benefit
of the other Secured Parties in accordance with the
terms of this Agreement and shall pay an amount
equal to such excess to the Intercreditor
Collateral Agent for distribution to the Secured
Parties in accordance with the terms of this
Agreement; provided, that if the Excess Party is
required to return any such recovery, each Secured
Party receiving a portion of such recovery shall
return to the Excess Party its Ratable share of the
sum required to be returned.
ii. Each party hereto acknowledges for all purposes
(including for purposes of Sections 9-305 and 8-
313(0) of the Uniform Commercial Code as in effect
in the State of New York) that any Collateral
(including instruments, money, negotiable
instruments or certified securities) in which the
Intercreditor Collateral Agent or such Secured
Party may from time to time hold a possessory
security interest shall also be held on behalf of
the other Secured Parties, and the Intercreditor
Collateral Agent and each Secured Party agrees, and
each Obligor consents, that, at such time as any of
such Collateral is released from the Lien of any
Secured Party, it shall be delivered to the
Intercreditor Collateral Agent or, if there shall
be no Intercreditor Collateral Agent, to any other
Secured Party(s) whose Liens shall then be in
effect, or such other Person as shall be designated
by such Secured Party(s), to be held as security
for the Secured Obligations then outstanding.
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ARTICLE 4.
EXERCISE OF REMEDIES; APPLICATION OF PROCEEDS;
CERTAIN VOTING MATTERS
SECTION a. Decisions Relating to Exercise of Remedies;
Limit on Individual Rights. The
Intercreditor Collateral Agent shall,
subject to Section 5.1, make such demands
and give such notices under the Collateral
Documents as the Requisite Secured Parties
may request, and shall take such actions to
enforce the Collateral Documents and to
foreclose upon, collect and dispose of all
or any portion of the Collateral as may be
directed by the Requisite Secured Parties;
provided, however, that all such directions
shall be binding upon each Secured Party for
all purposes. No Secured Party shall have
any right to exercise, individually, any
rights or remedies under any Collateral
Document (unless required by applicable law,
in which case any recovery thereunder shall
be subject to the terms of Article III), it
being understood and agreed that all of such
rights and remedies shall be exercised
solely by and through the Intercreditor
Collateral Agent for the benefit of all of
the Secured Parties.
SECTION b. Application of Proceeds of Collateral;
Priority.
i. Any and all amounts actually received by the
Intercreditor Collateral Agent in connection with
the enforcement of any Collateral Document after
the occurrence and during the continuance of an
Event of Default, including the proceeds of any
collection, sale or other disposition of all or any
part of the Collateral (collectively, the
"Proceeds"), shall, promptly upon receipt by the
Intercreditor Collateral Agent, be applied
(i) first, to the payment in full of all amounts
owing to the Intercreditor Collateral Agent in respect of any
fees and expenses (including attorneys' fees and expenses and
fees and expenses of its agents) incurred by or on behalf of
the Intercreditor Collateral Agent as a result of
administering this Agreement or the Collateral or exercising
any rights (including foreclosure of the Collateral) in its
capacity as Intercreditor Collateral Agent;
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(ii) second, following payment of all obligations
under clause (i), to the payment in full of the Secured
Obligations, or in the event that such Proceeds are
insufficient to pay in full the Secured Obligations, to the
Secured Obligations of the Secured Parties in the following
order of priority:
(A) to all fees indemnities, gross-ups,
expense reimbursements and other Secured Obligations
owing to the Secured Parties and not described in
clauses (ii)(B) and (ii)(C) below (collectively,
"Fees and Expenses"), such amounts to be allocated to
each Secured Party in accordance with its Fee and
Expense Share Allocation; then
(B) to all interest (including default
interest) and fees owing to the Secured Parties
(collectively, "Interest Obligations"), such amounts
to be allocated to each Secured Party in accordance
with its Interest Share Allocation; then
(C) to all Principal Obligations owing to
the Secured Parties, such amounts to be allocated to
each Secured Party in accordance with its Principal
Allocation; then
(D) to all other obligations owed to the
Secured Parties by New GFI Ratably; and
(iii) third, to New GFI or as a court of competent
jurisdiction shall direct.
Until Proceeds are so applied, the Intercreditor Collateral Agent and
each Secured Party shall hold all Proceeds received by it in trust for
the benefit of all Secured Parties in accordance with the terms of this
Agreement and in its custody in accordance with its regular procedures
for handling deposited funds.
ii. The priorities of allocation set forth in clause (a)
shall apply in all circumstances, including with
respect to any distribution made in any case or
proceeding under any bankruptcy law or insolvency law
involving creditors' rights generally.
iii. Not less than two Business Days prior to making any
application of monies pursuant to this Section, the
Intercreditor Collateral Agent shall notify each of
the Secured Parties and shall request each Secured
Party to furnish to the Intercreditor
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Collateral Agent such information as is necessary for
the Intercreditor Collateral Agent to effect such
application in accordance with this Agreement.
iv. It is understood and agreed among the Secured
Parties that notwithstanding the timing or order of
perfection of any Lien on any Collateral, all Liens
granted by any Obligor with respect to the
Collateral and all other rights to Collateral
(including set-off rights) are pari passu as among
the Secured Parties for all purposes, with no
Secured Party's Lien to have priority or preference
over any other Secured Party's Lien on any
Collateral.
v. Payments by the Intercreditor Collateral Agent to
the Secured Parties in respect of the Secured
Obligations shall be made to the New GFI
Administrative Agents, in the case of the New GFI
Administrative Agents and the New GFI Lenders, and
to the Term Collateral Agent, in the case of the
Term Collateral Agent as Holder, in each case for
distribution in accordance with the Applicable
Agreement and/or Pledge Agreement, as the case may
be.
SECTION c. Certain Voting Matters. Prior to the
occurrence and during the continuance of an
Event of Default, the Intercreditor Collateral
Agent shall not take any action or give any
consent to release any Collateral except (i)
as permitted by the New GFI Facility and the
New GFI Note or (ii) upon a vote of the
Lenders and the Holder.
ARTICLE 5.
INTERCREDITOR COLLATERAL AGENT
SECTION a. Actions. Each Secured Party hereby
authorizes and appoints the Intercreditor
Collateral Agent to act on behalf of such
Secured Party as Intercreditor Collateral
Agent for and representative of such Secured
Party under this Agreement and the Collateral
Documents, to enforce the rights provided
under the Collateral Documents and the
obligations of the Obligors thereunder and, in
the absence of other written instructions from
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the Requisite Secured Parties received from
time to time by the Intercreditor Collateral
Agent (with respect to which the
Intercreditor Collateral Agent agrees that
it will, subject to the terms of this
Section, comply in good faith except as
otherwise advised by counsel), to exercise
such powers hereunder and thereunder as are
specifically delegated to or required of the
Intercreditor Collateral Agent by the terms
hereof and thereof, together with such
powers as may be reasonably incidental
thereto. Each Secured Party agrees (which
agreement shall survive any termination of
this Agreement) to indemnify the
Intercreditor Collateral Agent, pro rata
according to such Secured Party's Voting
Percentage, from and against any and all
liabilities, obligations, losses, damages,
claims, penalties, actions, judgments,
suits, costs, expenses or disbursements of
any kind or nature whatsoever which may at
any time be imposed on, incurred by, or
asserted against the Intercreditor
Collateral Agent in any way relating to or
arising out of this Agreement or the
Collateral Documents, including the
reimbursement of the Intercreditor
Collateral Agent for all reasonable
out-of-pocket expenses (including attorneys'
fees and expenses) incurred by the
Intercreditor Collateral Agent hereunder or
in connection herewith or in enforcing the
obligations of any Obligor under the
Collateral Documents, in all cases as to
which the Intercreditor Collateral Agent is
not reimbursed by such Obligor; provided,
that no Secured Party shall be liable for
the payment of any portion of such
liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs,
expenses or disbursements determined by a
court of competent jurisdiction in a final
proceeding to have resulted solely from the
Intercreditor Collateral Agent's gross
negligence or wilful misconduct. The
Intercreditor Collateral Agent shall not be
required to take or omit to take any action
hereunder or under any Applicable Agreement
or the Collateral Documents, or to prosecute
or defend any suit in respect of this
Agreement, any Applicable Agreement or the
Collateral Documents unless indemnified to
its satisfaction by the Secured Parties
against
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loss, costs, liability, and expense. If any
indemnity in favor of the Intercreditor
Collateral Agent shall become, in the
Intercreditor Collateral Agent's
determination, inadequate or impaired, it
may call for additional indemnity and cease
to do the acts indemnified against until
such additional indemnity is given. The
Intercreditor Collateral Agent may delegate
its duties hereunder to affiliates, agents,
attorneys-in-fact and receivers (which term
includes receivers as managers) selected in
good faith by the Intercreditor Collateral
Agent.
SECTION b. Exculpation.
i. The Intercreditor Collateral Agent shall have no
duties or responsibilities except those expressly
set forth in this Agreement or the Collateral
Documents, and the Intercreditor Collateral Agent
shall not by reason of this Agreement or the
Collateral Documents (or otherwise) be a trustee
for any Secured Party or have any fiduciary
obligation to any Secured Party. Neither the
Intercreditor Collateral Agent nor any of its
directors, officers, employees or agents
(collectively, the "Related Parties") shall be
liable to any Secured Party for any action taken or
omitted to be taken by it under this Agreement or
any of the Collateral Documents, or in connection
herewith or therewith, if directed to do so (or to
refrain from taking any action) by the Requisite
Secured Parties, except for its own wilful
misconduct or gross negligence, nor shall the
Intercreditor Collateral Agent or any Related
Parties be responsible for any recitals or
representations or warranties herein or therein or
in any other agreement delivered in connection
therewith, or for the effectiveness,
enforceability, validity or due execution of this
Agreement or any of the Collateral Documents or in
any other agreement delivered in connection
therewith, nor for the creation, perfection or
priority of any Liens purported to be created under
any Collateral Document or the validity,
genuineness, enforceability, existence, value or
sufficiency of any Collateral, nor shall the
Intercreditor Collateral Agent or any Related
Parties be obligated to make any inquiry respecting
the performance by any Obligor of its obligations
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hereunder or thereunder or in any other agreement
delivered in connection therewith. Any such inquiry
by the Intercreditor Collateral Agent shall not
obligate it to make any further inquiry or to take
any action. The Intercreditor Collateral Agent shall
be entitled to rely upon advice of counsel concerning
legal matters and upon any notice, consent,
certificate, statement, or writing which it believes
to be genuine and to have been presented by a proper
Person. The Intercreditor Collateral Agent may employ
agents and attorneys-in-fact and shall not be
responsible for the negligence or misconduct of any
such agents or attorneys-in-fact selected by it with
reasonable care.
ii. The Intercreditor Collateral Agent shall be
entitled to rely upon any certification, notice or
other communication (including any thereof by
telex, telecopy, telegram or cable) reasonably
believed by it to be genuine and correct and to
have been signed or sent by or on behalf of the
proper Person or Persons, and upon advice and
statements of legal counsel (including counsel to
any Obligor), independent accountants and other
experts selected by the Intercreditor Collateral
Agent with reasonable care. As to any matters not
expressly provided for by this Agreement, the
Intercreditor Collateral Agent shall in all cases
be fully protected in acting, or in refraining from
acting, hereunder in accordance with instructions
signed by the applicable Notifying Secured Parties,
and such instructions of the applicable Notifying
Secured Parties, and any action taken or failure to
act pursuant thereto, shall be binding on all of
the Secured Parties.
iii. The Intercreditor Collateral Agent shall not be
required to take any action that is in its opinion
contrary to law or to the terms of this Agreement
or any or all of the Collateral Documents, or which
would in its opinion subject it or any of its
Related Party to liability. The Intercreditor
Collateral Agent shall, in all cases, be fully
justified in failing or refusing to act hereunder
and under the Collateral Documents unless it shall
be fully indemnified to its satisfaction against
any and all liability and expense which may be
incurred by it by reason of taking or continuing to
take any such action.
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iv. The Intercreditor Collateral Agent may deem and
treat the payee of any promissory note or other
evidence of indebtedness relating to the Secured
Obligations as the owner thereof for all purposes
hereof unless and until a written notice of the
assignment or transfer thereof, signed by such
payee and in form reasonably satisfactory to the
Intercreditor Collateral Agent, shall have been
filed with the Intercreditor Collateral Agent. Any
request, authority or consent of any Person who at
the time of making such request or giving such
authority or consent is the holder of any such note
or other evidence of indebtedness shall be
conclusive and binding on any subsequent holder,
transferee or assignee of such note or other
evidence of indebtedness and of any note or notes
or other evidences of indebtedness issued in
exchange therefor.
SECTION c. Successor. The Intercreditor Collateral
Agent may resign as such at any time upon at
least 60 days' notice to the New GFI
Administrative Agents and the Term Collateral
Agent. If the Intercreditor Collateral Agent
at any time shall resign, the Requisite
Secured Parties may appoint another Secured
Party as a successor Intercreditor Collateral
Agent. If the Requisite Secured Parties do
not make such appointment within ten Business
Days prior to the scheduled resignation date
of the Intercreditor Collateral Agent, the
retiring Intercreditor Collateral Agent shall
appoint a new Intercreditor Collateral Agent
from among the Secured Parties or, if no
Secured Party accepts such appointment, from
among commercial banking institutions or trust
institutions generally. In furtherance of the
foregoing, upon the announcement that the
Intercreditor Collateral Agent will resign in
its capacity as the Intercreditor Collateral
Agent, each Obligor and the Secured Parties
agree to use their best efforts to promptly
appoint another Intercreditor Collateral
Agent. Upon the acceptance of any appointment
as the Intercreditor Collateral Agent
hereunder, such successor Intercreditor
Collateral Agent shall be entitled to receive
from the retiring Intercreditor Collateral
Agent such documents of transfer and
assignment as such successor Intercreditor
Collateral Agent may reasonably request, and
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shall thereupon succeed to and become vested
with all rights, powers, privileges and
duties of the retiring Intercreditor
Collateral Agent, and the retiring
Intercreditor Collateral Agent shall be
discharged from its duties and obligations
under this Agreement and the Collateral
Documents. After the retiring Intercreditor
Collateral Agent's resignation hereunder as
the Intercreditor Collateral Agent, the
provisions of this Article V shall inure to
its benefit as to any actions taken or
omitted to be taken by it while it was the
Intercreditor Collateral Agent under this
Agreement and the Collateral Documents and
Section 4.2 shall continue to inure to its
benefit.
SECTION d. Collateral Documents. Each Secured Party
hereby authorizes the Intercreditor Collateral
Agent to enter into amendments, modifications
and consents to each of the Collateral
Documents and to this Agreement, on behalf of
and for the benefit of such Secured Party, as
may be necessary or appropriate, in the
determination of the Intercreditor Collateral
Agent, to better protect, perfect or continue
the pledge to, or security interest of, the
Intercreditor Collateral Agent and the Secured
Parties respecting the Collateral subject
thereto or to cure any defect or ambiguity in
any Collateral Document or this Agreement.
SECTION e. Credit Extensions by Citicorp. Citicorp and
each other Affiliate thereof which may at any
time be acting as both the Intercreditor
Collateral Agent and a Secured Party
hereunder, shall have the same rights and
powers with respect to any loans made by it,
as any Secured Party and may exercise the same
as if it were not the Intercreditor Collateral
Agent or affiliated with the Intercreditor
Collateral Agent, and the term "Secured Party"
and, when appropriate, "holder" shall include
Citicorp or such Affiliate in its individual
capacity.
SECTION f. Deposits, etc. The Intercreditor Collateral
Agent and its Affiliates may accept deposits
from, lend money to, and generally engage in
any kind of business with any Obligor or any
Subsidiary or Affiliate of any Obligor as if
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the Intercreditor Collateral Agent were not
the Intercreditor Collateral Agent hereunder.
ARTICLE 6.
MISCELLANEOUS
SECTION a. Waivers, Amendment, etc. The provisions of
this Agreement may from time to time be
amended, modified, or waived, if such
amendment, modification or waiver is in
writing and consented to by Requisite Secured
Parties; provided, however, that no such
amendment, modification, or waiver shall
affect the rights or obligations of the
Intercreditor Collateral Agent or modify
Article V unless consented to by the
Intercreditor Collateral Agent.
SECTION b. Notices. All notices and other
communications provided to the Intercreditor
Collateral Agent or any Secured Party under
this Agreement shall be in writing or given by
facsimile transmission and addressed,
delivered or telecopied to such Person at its
address or facsimile number set forth below
its signature hereto (or in a notice sent in
accordance with the terms of the relevant
Applicable Agreement) or at such other address
or facsimile number as may be designated by
such Person in a notice to such other
Persons). Any notice, if mailed and properly
addressed with postage prepaid, shall be
deemed given when received; any notice, if
transmitted by facsimile transmission, shall
be deemed given when received.
SECTION c. Severability. Any provision of this
Agreement which is prohibited or unenforceable
in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without
invalidating the remaining provisions of this
Agreement or affecting the validity or
enforceability of such provision in any other
jurisdiction.
SECTION d. Counterparts. This Agreement may be
executed by the parties hereto in several
counterparts, each of which shall be deemed to
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be an original and all of which shall
constitute together but one and the same
agreement.
SECTION e. GOVERNING LAW. THIS AGREEMENT SHALL BE
DEEMED TO BE A CONTRACT MADE UNDER AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF
NEW YORK.
SECTION f. Successors and Assigns. This Agreement
shall be binding upon and shall inure to the
benefit of the Intercreditor Collateral Agent
and each Secured Party and their respective
successors, transferees and assigns.
SECTION g. Conflict. In the event of a conflict
between the provisions of this Agreement and
the provisions of any Collateral Document, the
provisions of this Agreement shall control.
SECTION h. NO RIGHTS FOR OBLIGORS. THIS AGREEMENT
CONSTITUTES AN AGREEMENT AMONG AND FOR THE
BENEFIT OF THE SECURED PARTIES AND THE
INTERCREDITOR COLLATERAL AGENT ONLY, AND
NOTHING CONTAINED HEREIN SHALL CONFER OR BE
DEEMED TO CREATE ANY RIGHTS OR BENEFITS FOR
THE BENEFIT OF ANY OBLIGOR, AND ANY AMENDMENT,
MODIFICATION OR WAIVER MAY BE MADE TO THIS
AGREEMENT WITHOUT CONSENT OF, OR NOTICE TO,
ANY OBLIGOR. NO OBLIGOR IS (OR SHALL BE
DEEMED TO BE) A THIRD PARTY BENEFICIARY UNDER
THIS AGREEMENT.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
CITICORP USA, INC.,
as Intercreditor Collateral
Agent,
By:/s/ Xxx Xxxxxx
--------------------------
Title:
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention:
Facsimile Number: 000-000-0000
CITICORP USA, INC.,
as a New GFI Administrative
Agent,
By:/s/ Xxx Xxxxxx
--------------------------
Title:
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention:
Facsimile Number: 000-000-0000
THE BANK OF NOVA SCOTIA,
as a New GFI Administrative
Agent,
By:/s/ Xxxxx Xxxxx
---------------------------
Title:
Address: Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Facsimile Number: 000-000-0000
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CITICORP USA, INC.,
as Holder and Term Collateral
Agent,
By:/s/ Xxx Xxxxxx
---------------------------
Title:
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention:
Facsimile Number: 000-000-0000
ACKNOWLEDGED AND AGREED TO:
FOAMEX CARPET CUSHION, INC.
By:/s/ Xxxxxx X. Xxxxxxxxx
------------------------
Title:
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