EXECUTION COPY
AMENDMENT NO. 1 TO FOAMEX INTERNATIONAL GUARANTY
This AMENDMENT NO. 1 TO FOAMEX INTERNATIONAL GUARANTY, dated as of March
12, 1999 (this "Amendment") amends in certain respects the 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 intercreditor collateral agent under the New GFI
Intercreditor Agreement (together with any successor(s) thereto in such
capacity, the "Collateral Agent") for each of the Secured Parties, for the
benefit of the Secured Parties, pursuant to the New GFI Credit Agreement, dated
as of February 27, 1998 (as amended, amended and restated, supplemented or
modified from time to time, the "Credit Agreement") entered into among Foamex
Carpet Cushion, Inc., a Delaware corporation, the institutions from time to time
a party thereto as lenders, the institutions from time to time a party thereto
as issuing banks, Citicorp USA, Inc. and The Bank of Nova Scotia, in its
capacity as funding agent.
W I T N E S S E T H:
WHEREAS, the Guarantor (which has executed this Amendment) has requested
the undersigned, to amend the Guaranty as set forth herein. The Collateral Agent
has agreed to amend the Guaranty to accommodate the request of the Guarantor
contained herein, subject to the terms set forth herein.
NOW, THEREFORE, in consideration of the above recital, the Guarantor and
the Collateral Agent agree as follows:
SECTION 1. Defined Terms. Terms defined in the Guaranty and the Credit
Agreement 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 Guarantor and the Collateral Agent
hereby agree to amend 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".
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:
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(a) this Amendment duly executed and in form and substance
satisfactory to the Collateral Agent; and
(b) 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 Collateral Agent 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 Credit
Agreement and 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.
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.
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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.
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the date
first above written.
FOAMEX CARPET CUSHION, INC.
By /s/ X. X. Xxxxxxxxx
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Name: X. X. Xxxxxxxxx
Title: Vice President
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FOAMEX INTERNATIONAL INC., as a guarantor
By /s/ X. X. Xxxxxxxxx
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Name: X. X. Xxxxxxxxx
Title: Senior Vice President
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CITICORP USA, INC., as Collateral Agent
By /s/ Shapleigh X. Xxxxx
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Name: Shapleigh X. Xxxxx
Title: Vice President
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