[Execution Copy]
FII INTERCREDITOR AGREEMENT
THIS FII INTERCREDITOR AGREEMENT, dated as of February 27, 1998, is
among (i) CITICORP USA, INC. ("Citicorp"), as collateral agent (in such
capacity, the "Foamex Collateral Agent") on behalf of certain financial
institutions (collectively referred to as the "Foamex Lenders") which are now,
or may from time to time hereafter become, parties to the Foamex Credit
Agreement referred to below, (ii) CITICORP, as intercreditor collateral agent
(in such capacity, the "New GFI Intercreditor Collateral Agent") under the New
GFI Intercreditor Agreement (as defined below) on behalf of the holders of the
Obligations (as such term is defined in the FII Guaranty)(the "FII Guaranty
Secured Parties"), 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 June 12, 1997,
as amended and restated as of February 27, 1998 (as amended, supplemented,
amended and restated or otherwise modified from time to time, the "Foamex Credit
Agreement"), among Foamex L.P., a Delaware limited partnership, the lenders
party thereto and the administrative agents party thereto, the lenders have
extended commitments to make Credit Extensions (as defined in the Foamex Credit
Agreement) (the "Foamex Credit Extensions") thereunder;
WHEREAS, pursuant to the New GFI Intercreditor Agreement, dated as of
the date hereof (as amended, supplemented, amended and restated or otherwise
modified from time to time, the "New GFI Intercreditor Agreement"), among the
New GFI Administrative Agents, the Term Collateral Agent (as defined therein)
and the New GFI Intercreditor Collateral Agent, the New GFI Intercreditor Agent
has agreed to act as collateral agent on behalf of the FII Guaranty Secured
Parties;
WHEREAS, Foamex International Inc., a Delaware corporation ("FII"), has
entered into a second amended and restated guaranty, dated as of February 27,
1998 (the "Foamex International Guaranty") pursuant to which it has guaranteed
the obligations of Foamex under the Foamex Credit Agreement and the other Loan
Documents (as defined in the Foamex Credit Agreement);
WHEREAS, FII, has entered into a guaranty, dated as of February 27,
1998 (the "FII Guaranty") pursuant to which it has guaranteed certain
obligations of New GFI;
WHEREAS, FII and FMXI, Inc. ("FMXI") have entered into the Partnership
Pledge Agreement, dated as of the date hereof (as amended, supplemented, amended
and restated or otherwise modified from time to time, the "Partnership Pledge
Agreement"), pursuant to which FII and FMXI have each pledged its partnership
interests in Foamex (the "Partnership Pledge Agreement Collateral");
WHEREAS, FII has entered into the Foamex International Pledge
Agreement, dated as of the date hereof (as amended, supplemented, amended and
restated or otherwise modified from time to time, the "FII Pledge Agreement"),
pursuant to which FII has pledged its equity interests in New GFI (the "FII
Pledge Agreement 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 FII among
the Intercreditor Collateral Agent and the Secured Parties and decisions
relating to the exercise of remedies under the New GFI Intercreditor Agreement
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 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 FII 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
Foamex Credit Agreement, the Foamex International Guaranty or the
FII Guaranty.
"Citicorp" is defined in the preamble.
"Collateral" means, collectively, the Partnership Pledge Agreement
Collateral and the FII Pledge Agreement Collateral.
"Collateral Documents" means, collectively, the Partnership Pledge
Agreement and the FII Pledge Agreement, and all other documents, agreements and
instruments from time to time evidencing a security interest purported to be
granted in the Collateral.
"Event of Default" means any Foamex Credit Agreement Event of Default
or any New GFI Intercreditor Agreement Event of Default.
"Excess Party" is defined in clause (a) of Section 3.2.
"FII" is defined in the third recital.
"FII Guaranty" is defined in the fourth recital.
"FII Guaranty Secured Parties" is defined in the preamble.
"FII Guaranty Requisite Secured Parties" means the Requisite Secured
Parties (as defined in the New GFI Intercreditor Agreement).
"FII Pledge Agreement" is defined in the sixth recital.
"FII Pledge Agreement Collateral" is defined in the sixth recital.
"FMXI" is defined in the fifth recital.
"Foamex Collateral Agent" is defined in the preamble.
"Foamex Credit Agreement" is defined in the first recital.
"Foamex Credit Agreement Event of Default" has the meaning assigned to
the term "Event of Default" in the Foamex Credit Agreement.
"Foamex Credit Extensions" is defined in the first recital.
"Foamex International Guaranty" is defined in the third recital.
"Foamex Lenders" is defined in the preamble.
"Foamex Requisite Lenders" means the Requisite Lenders (as defined in
the Foamex Credit Agreement).
"Intercreditor Collateral Agent" is defined in the preamble.
"New GFI Intercreditor Agreement" is defined in the second recital.
"New GFI Intercreditor Agreement Event of Default" has the meaning
assigned to the term "Event of Default" in the New GFI Intercreditor Agreement.
"New GFI Intercreditor Collateral Agent" is defined in the preamble.
"Notifying Secured Party" means (a) in respect of the Partnership
Pledge Agreement Collateral, the Foamex Collateral Agent and (b) in respect of
the FII Pledge Agreement Collateral,
the New GFI Intercreditor Collateral Agent.
"Partnership Pledge Agreement" is defined in the fifth recital.
"Partnership Pledge Agreement Collateral" is defined in the fifth
recital.
"Principal Obligations" means, collectively, the aggregate amounts
owing to the Secured Parties with respect to (i) the outstanding principal
amount of the Obligations (as defined in the Foamex Credit Agreement) and (ii)
without duplication, the outstanding principal amount of the Guaranteed
Obligations (as defined in the FII Guaranty).
"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 entitled thereto pro
rata in accordance with the amount of the Secured Obligations owing to such
party is of the aggregate amount of all Secured Obligations.
"Related Parties" is defined in clause (a) of Section 5.2.
"Requisite Secured Parties" means (a) with respect to the Partnership
Pledge Agreement Collateral, (i) the Foamex Requisite Lenders and (ii), after
payment in full of all Secured Obligations with respect to the Foamex Credit
Agreement, the FII Guaranty Requisite Secured Parties, and (b) with respect to
the FII Pledge Agreement Collateral, (i) FII Guaranty Requisite Secured Parties
and (ii), after payment in full of all Secured Obligations with respect to the
FII Guaranty, the Foamex Requisite Lenders.
"Secured Obligations" means, collectively, (a) the Obligations (as
defined in the Foamex Credit Agreement) and (b) the Obligations (as defined in
the FII Guaranty).
"Secured Parties" means collectively, (i) the Lenders, the Issuing
Banks, the Credit Agents and each provider of a Hedging
Obligation (as each such term is defined in the Foamex Credit Agreement), (ii)
the FII Guaranty Secured Parties, (iii) the Foamex Collateral Agent, (iv) the
New GFI Intercreditor Collateral Agent and (v) the Intercreditor Collateral
Agent.
"TFLLC" means Trace Foam LLC, a Delaware limited liability
company.
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 Foamex Credit Agreement.
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 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. 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 c. Required Notices. Each Notifying Secured
Party shall give notice promptly to the
Intercreditor Collateral Agent of:
i. the occurrence of any Event of Default of which
it has knowledge;
ii. the acceleration by it of the maturity of any
Secured Obligations owed to it; and
iii. any proceeding which it has commenced against FII
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 Foamex
Collateral Agent and the New GFI Intercreditor Collateral Agent.
ARTICLE 3.
SHARING OF PAYMENTS, ETC.
SECTION a. Sharing Excess Payments. Nothing contained
in this Agreement is intended to limit FII'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
(to the extent such Secured Party is not then
entitled to receive such amounts) in
accordance with the terms of the applicable
Collateral Document.
SECTION b. Method of Sharing.
i. If any Secured Party (an "Excess Party") shall
obtain any payment or other recovery with respect
to Collateral which such Secured Party is not then
entitled to receive in accordance with the terms of
the applicable Collateral Document (whether
voluntary, involuntary, by application of setoff,
or otherwise) on account of any Collateral in
payment of obligations constituting part of the
Secured Obligations, such Excess Party shall hold
such amount in trust for the Ratable benefit of the
other Secured Parties entitled thereto in accordance
with the terms of the applicable Collateral Document;
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(o) 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
FII 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.
ARTICLE 4.
EXERCISE OF REMEDIES; APPLICATION OF CERTAIN 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
applicable Requisite Secured Parties may
request, and shall take such actions to
enforce the applicable Collateral Documents
and to foreclose upon, collect and dispose of
all or any portion of the Collateral as may be
directed by the applicable 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 Certain Proceeds of the Foamex
International Guaranty and the FII Guaranty.
Upon the receipt by the Foamex Collateral
Agent under the Foamex International Guaranty
or the New GFI Intercreditor Collateral Agent
under the FII Guaranty of proceeds not derived
from the sale or other disposition of
Collateral, such proceeds shall be shared
Ratably among the Secured Parties.
SECTION c. Application of Proceeds of Collateral
Documents. Proceeds of Collateral shall be
applied as set forth in the applicable
Collateral Document.
SECTION d. 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 with
the prior written consent of the applicable
Requisite Secured Parties.
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 FII and, in the absence of
other written instructions from 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, Ratably
according to such Secured Party's Secured
Obligations, 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 FII under the Collateral
Documents, in all cases as to which the
Intercreditor Collateral Agent is not
reimbursed by FII; 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 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 applicable
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 FII of its obligations 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
FII), 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 Party, and such
instructions of the applicable Notifying Secured
Party, 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.
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 Foamex Collateral
Agent and the New GFI Intercreditor 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 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 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.
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 FII as if 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
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 FII. 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 FII, AND ANY AMENDMENT,
MODIFICATION OR WAIVER MAY BE MADE TO THIS
AGREEMENT WITHOUT CONSENT OF, OR NOTICE TO,
FII. FII IS NOT (NOR SHALL IT BE DEEMED TO
BE) A THIRD PARTY BENEFICIARY UNDER THIS
AGREEMENT.
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: Attorney-In-Fact
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention:
Facsimile Number: 000-000-0000
CITICORP USA, INC.,
as the New GFI Intercreditor
Collateral Agent,
By:/s/ Xxx Xxxxxx
-----------------------
Title: Attorney-In-Fact
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention:
Facsimile Number: 000-000-0000
CITICORP USA, INC.,
as the Foamex
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 INTERNATIONAL INC.
By:/s/ Xxxxxx X. Xxxxxxxxx
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Title:
