EXECUTION COPY
AMENDMENT NO. 1
TO CREDIT AGREEMENT
AMENDMENT NO. 1 TO CREDIT AGREEMENT ("this Amendment"), dated as of
December 1, 2003, among FOAMEX L.P., a Delaware limited partnership (the
"Borrower"), the affiliates of the Borrower party hereto, the lenders party
hereto and SILVER POINT FINANCE, LLC, as Administrative Agent (the
"Administrative Agent").
WHEREAS, the Borrower, certain of its affiliates as guarantors, the
lenders party thereto, and the Administrative Agent entered into that certain
Credit Agreement, dated as of August 18, 2003 (the "Credit Agreement"), pursuant
to which such lenders have made term loans to the Borrower;
WHEREAS, the Borrower, the Guarantors, the Majority Lenders and the
Administrative Agent desire to amend the Credit Agreement;
NOW, THEREFORE, the Borrower, the Guarantors, the Majority Lenders and
the Administrative Agent hereby agree as follows:
SECTION 1. CAPITALIZED TERMS. Capitalized terms used but not defined
herein shall have the respective meanings set forth in the Credit Agreement.
SECTION 2. AMENDMENTS. The Credit Agreement shall be, and upon the
fulfillment of the conditions set forth in Section 3 hereof is, amended as
follows:
2.1. Section 7.11(i) of the Credit Agreement is amended by adding
the phrase ", Subsidiaries of Foamex Asia Co., Ltd." immediately after the name
"Foamex Asia Co., Ltd." in clause (A) of the proviso thereto.
2.2. The defined term "Restricted Investment" in Annex A to the
Credit Agreement is amended by (i) deleting the word "and" at the end of clause
(n) of such defined term and substituting a semicolon therefor, (ii) deleting
the period at the end of such defined term and substituting "; and" therefor and
(iii) adding the following clause to the end of such defined term:
"(p) a loan made by Foamex in an amount not to exceed $4,000,000
as more fully described in a letter to the Lenders dated December
1, 2003 and acknowledged by the Administrative Agent; provided,
that (i) the loan shall be evidenced by a promissory note payable
to the order of Foamex and shall be secured by the collateral
described in such letter (such promissory note and the security
documents to be in form and substance reasonably acceptable to
the Administrative Agent), (ii) all payments of principal and
interest made on such loan shall be promptly applied to the
payment of principal on the Working Capital Revolving Loans,
(iii) the promissory note evidencing such loan and all security
therefor shall be pledged to the Administrative Agent pursuant to
the U.S. Security Agreement (which pledge shall constitute a
first priority security interest therein, subject only to the
Liens identified in clause (j) of the definition of Permitted
Liens) and such note shall be delivered to the Administrative
Agent duly endorsed to the order of the Administrative Agent (or
the Working Capital Agent as bailee for the Administrative Agent
under the Senior Lenders Intercreditor Agreement) and (iv) all
consents or approvals, including those under the Working Capital
Agreement, to permit such loan and pledge shall have been
obtained and shall be in full force and effect."
SECTION 3. EFFECTIVENESS. This Amendment shall become effective upon
the Administrative Agent receiving counterparts hereof duly executed and
delivered by the Borrower, the Guarantors, the Majority Lenders and the
Administrative Agent.
SECTION 4. COUNTERPARTS. This Amendment may be executed in
counterparts, each of which shall be an original, and all of which, taken
together, shall constitute a single instrument. This Amendment shall be governed
by, and construed in accordance with, the laws of the State of New York.
SECTION 5. REFERENCES TO CREDIT AGREEMENT. From and after the
effectiveness of this Amendment and the amendments contemplated hereby, all
references in the Credit Agreement to "this Agreement", "hereof", "herein", and
similar terms shall mean and refer to the Credit Agreement, as amended and
modified by this Amendment, and all references in other documents to the Credit
Agreement shall mean such agreement as amended and modified by this Amendment.
SECTION 6. RATIFICATION AND CONFIRMATION. The Credit Agreement is
hereby ratified and confirmed and, except as herein agreed, remains in full
force and effect. Each of the Borrower and the Guarantors represents and
warrants that (i) all representations and warranties contained in the Loan
Documents are correct in all material respects with the same effect as though
such representations and warranties had been made on and as of the date hereof
(except to the extent that such representations or warranties expressly related
to a specified prior date) and (ii) there exists no Default or Event of Default.
Each of the Guarantors hereby ratifies its Guarantee of the Obligations.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their respective authorized officers as of the day and year
first above written.
FOAMEX L.P.
By: FMXI, Inc., its Managing General Partner
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Vice President
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FMXI, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Vice President
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FOAMEX INTERNATIONAL INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Senior Vice President
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FOAMEX CANADA INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Treasurer
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FOAMEX CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Vice President
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FOAMEX LATIN AMERICA, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Vice President
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FOAMEX MEXICO, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Vice President
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FOAMEX MEXICO II, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Vice President
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FOAMEX ASIA, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Vice President
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FOAMEX CARPET CUSHION LLC
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Vice President
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SILVER POINT FINANCE, LLC,
as the Administrative Agent
By: /s/ Xxxx Xxxxxxx
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Title: Authorized Signatory
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TRS THEBE, LLC
By: /s/ Xxxxxxx X'Xxxxxx
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Title: Vice President
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A3 FUNDING LP
By: A3 Fund Management LLC,
its General Partner
By: /s/ Xxxxx Xxxxx
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Title: Vice President
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SPECIAL SITUATIONS INVESTING GROUP, INC.
By: /s/ Xxxx Xxxxxx
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Title: Vice President
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