EXHIBIT 4.4.2.1
Execution Copy
THIRD AMENDED AND RESTATED FOAMEX INTERNATIONAL GUARANTY
This THIRD AMENDED AND RESTATED FOAMEX INTERNATIONAL GUARANTY, dated as of
March 25, 2002 (as amended, supplemented, amended and restated or otherwise
modified from time to time, this "Guaranty"), is made by Foamex International
Inc., a Delaware corporation (the "Guarantor"), in favor of Citicorp USA, Inc.
("Citicorp"), as collateral agent under the Credit Agreement referred to below
(together with any successor(s) thereto or assignee(s) thereof in such capacity,
the "Collateral Agent") for each of the Secured Parties, for the benefit of the
Secured Parties.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to a Credit Agreement, dated as of June 12, 1997, as
amended and restated as of February 27, 1998, as further amended and restated as
of June 29, 1999 and as further amended and restated as of March 25, 2002 (as
further amended, supplemented, amended and restated or modified from time to
time, the "Credit Agreement"), among Foamex L.P. (the "Borrower"), FMXI, Inc., a
Delaware corporation and the managing general partner of the Borrower ("FMXI"),
the financial institutions party thereto from time to time as lenders (the
"Lenders"), the financial institutions party thereto from time to time as
issuing banks (the "Issuing Banks"), the Collateral Agent, Citicorp, as
administrative agent for the Lenders and the Issuing Banks (in such capacity,
the "Administrative Agent"), and The Bank of Nova Scotia, as funding agent and
syndication agent for the Lenders and the Issuing Banks (in such capacities, the
"Funding Agent" and the "Syndication Agent", respectively, and together with the
Administrative Agent and the Collateral Agent, the "Agents"), the Lenders and
the Issuing Banks have extended Loans and Commitments to make Credit Extensions
to the Borrower;
WHEREAS, as a condition precedent to the effectiveness of the Credit
Agreement, the Guarantor is required to execute and deliver this Guaranty;
WHEREAS, the Guarantor has duly authorized the execution, delivery and
performance of this Guaranty; and
WHEREAS, it is in the best interests of the Guarantor to execute this
Guaranty inasmuch as the Guarantor will derive substantial direct and indirect
benefits from the Credit Extensions made and to be made from time to time to the
Borrower by the Lenders and the Issuing Banks pursuant to the Credit Agreement;
NOW THEREFORE, for good and valuable consideration the receipt of which is
hereby acknowledged, and in order to induce the Lenders and the Issuing Banks to
make and maintain Credit Extensions to the Borrower pursuant to the Credit
Agreement, the Guarantor agrees, for the benefit of each Secured Party, as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Terms. The following terms (whether or not
underscored) when used in this Guaranty, including its preamble and recitals,
shall have the following meanings (such definitions to be equally applicable to
the singular and plural forms thereof):
"Agents" is defined in the first recital.
"Borrower" is defined in the first recital.
"Collateral Agent" is defined in the preamble.
"Credit Agreement" is defined in the first recital.
"Credit Extensions" means the Loans and the Letters of Credit.
"FMXI" is defined in the first recital.
"Foamex" is defined in the first recital.
"Guarantor" is defined in the preamble.
"Guaranty" is defined in the preamble.
"Obligations" means all Obligations (as defined in the Credit Agreement) of
the Borrower and all obligations (monetary or otherwise) of each other Obligor
(as defined in the Credit Agreement) arising under or in connection with the
Credit Agreement or any other Loan Document.
"Process Agent" is defined in Section 6.11.1.
"Secured Parties" means, collectively, the Lenders, the Issuing Banks, the
Agents, any Lender in its capacity as a counterparty to a Hedging Obligation and
any other holder of any of the Secured Obligations.
SECTION 1.2. Credit Agreement Definitions. Unless otherwise defined herein
or the context otherwise requires, terms used in this Guaranty, including its
preamble and recitals, have the meanings provided in the Credit Agreement.
ARTICLE II
GUARANTY PROVISIONS
SECTION 2.1. Guaranty. The Guarantor hereby absolutely, unconditionally and
irrevocably
(a) guarantees the full and punctual payment when due, whether at
stated maturity, by required prepayment, declaration, acceleration, demand
or otherwise, of all Obligations of the Borrower under the Credit
Agreement, the Notes and the other Loan
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Documents to which it is a party and all Obligations by each other Obligor
under the Loan Documents to which it is a party now or hereafter existing,
whether for principal, interest, fees, expenses or otherwise (including all
such amounts which would become due but for the operation of the automatic
stay under Section 362(a) of Title 11 of the United States Code xx.xx. 101
et. seq. (as amended from time to time, the "Bankruptcy Code") and the
operation of Sections 502(b) and 506(b) of the Bankruptcy Code, and
(b) indemnifies and holds harmless each Secured Party and each holder
of a Note for any and all costs and expenses (including reasonable
attorney's fees and expenses) incurred by such Secured Party or such
holder, as the case may be, in enforcing any rights under this Guaranty;
This Guaranty constitutes a guaranty of payment when due and not of collection,
and the Guarantor specifically agrees that it shall not be necessary or required
that any Secured Party or any holder of any Note exercise any right, assert any
claim or demand or enforce any remedy whatsoever against the Borrower or any
other Obligor (or any other Person) before or as a condition to the obligations
of the Guarantor hereunder.
SECTION 2.2. Acceleration of Guaranty. The Guarantor agrees that, in the
event of the dissolution or insolvency of the Borrower, any other Obligor or the
Guarantor, or the inability or failure of the Borrower, any other Obligor or the
Guarantor to pay debts as they become due, or an assignment by the Borrower, any
other Obligor or the Guarantor for the benefit of creditors, or the commencement
of any case or proceeding in respect of the Borrower, any other Obligor or the
Guarantor under any bankruptcy, insolvency or similar laws, and if such event
shall occur at a time when any of the Obligations of the Borrower and each other
Obligor may not then be due and payable, the Guarantor agrees that it will pay
to the Lenders forthwith the full amount which would be payable hereunder by the
Guarantor if all such Obligations were then due and payable.
SECTION 2.3. Guaranty Absolute, etc. This Guaranty shall in all respects be
a continuing, absolute, unconditional and irrevocable guaranty of payment, and
shall remain in full force and effect until all Obligations of the Borrower and
each other Obligor have been paid in full in cash, all obligations of the
Guarantor hereunder shall have been paid in full in cash, all Letters of Credit
have been terminated or expired (or cash collateralized or backstop letters of
credit have been issued in favor of the relevant Issuing Bank, acceptable in
form and substance to such Issuing Bank) and all Commitments shall have
terminated. The Guarantor guarantees that the Obligations of the Borrower and
each other Obligor will be paid strictly in accordance with the terms of the
Credit Agreement and each other Loan Document under which they arise, regardless
of any law, regulation or order now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of any Secured Party or any holder of
any Note with respect thereto. The liability of the Guarantor under this
Guaranty shall be absolute, unconditional and irrevocable irrespective of:
(a) any lack of validity, legality or enforceability of the Credit
Agreement, any Note or any other Loan Document;
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(b) the failure of any Secured Party or any holder of any Note
(i) to assert any claim or demand or to enforce any right or
remedy against the Borrower, any other Obligor or any other Person
(including any other guarantor (including the Guarantor)) under the
provisions of the Credit Agreement, any Note, any other Loan Document
or otherwise, or
(ii) to exercise any right or remedy against any other guarantor
(including the Guarantor) of, or collateral securing, any Obligations
of the Borrower or any other Obligor;
(c) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations of the Borrower or any other
Obligor, or any other extension, compromise or renewal of any Obligation of
the Borrower or any other Obligor;
(d) any reduction, limitation, impairment or termination of any
Obligations of the Borrower or any other Obligor for any reason, including
any claim of waiver, release, surrender, alteration or compromise, and
shall not be subject to (and the Guarantor hereby waives any right to or
claim of) any defense or setoff, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality, nongenuineness,
irregularity, compromise, unenforceability of, or any other event or
occurrence affecting, any Obligations of the Borrower, any other Obligor or
otherwise;
(e) any amendment to, rescission, waiver, or other modification of, or
any consent to departure from, any of the terms of the Credit Agreement,
any Note or any other Loan Document;
(f) any addition, exchange, release, surrender or non-perfection of
any collateral, or any amendment to or waiver or release or addition of, or
consent to departure from, any other guaranty, held by any Secured Party or
any holder of any Note securing any of the Obligations of the Borrower or
any other Obligor; or
(g) any other circumstance which might otherwise constitute a defense
available to, or a legal or equitable discharge of, the Borrower, any other
Obligor, any surety or any guarantor.
SECTION 2.4. Reinstatement, etc. The Guarantor agrees that this Guaranty
shall continue to be effective or be reinstated, as the case may be, if at any
time any payment (in whole or in part) of any of the Obligations is rescinded or
must otherwise be restored by any Secured Party or any holder of any Note, upon
the insolvency, bankruptcy or reorganization of the Borrower, any other Obligor
or otherwise, all as though such payment had not been made.
SECTION 2.5. Waiver, etc. The Guarantor hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Obligations of the Borrower or any other Obligor and this Guaranty and any
requirement that the Collateral Agent, any other
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Secured Party or any holder of any Note protect, secure, perfect or insure any
security interest or Lien, or any property subject thereto, or exhaust any right
or take any action against the Borrower, any other Obligor or any other Person
(including any other guarantor) or entity or any collateral securing the
Obligations of the Borrower or any other Obligor, as the case may be.
SECTION 2.6. Postponement of Subrogation, etc. The Guarantor agrees that it
will not exercise any rights which it may acquire by way of rights of
subrogation under this Guaranty, by any payment made hereunder or otherwise,
until the prior payment in full in cash of all Obligations of the Borrower and
each other Obligor, the termination or expiration of each Letter of Credit
(unless such Letter of Credit has been cash collateralized or a backstop letter
of credit has been issued in favor of the relevant Issuing Bank, acceptable in
form and substance to such Issuing Bank) and the termination of all Commitments.
Any amount paid to the Guarantor on account of any such subrogation rights prior
to the payment in full in cash of all Obligations of the Borrower and each other
Obligor shall be held in trust for the benefit of the Secured Parties and each
holder of a Note and shall immediately be paid to the Collateral Agent for the
benefit of the Secured Parties and each holder of a Note and credited and
applied against the Obligations the Borrower and each other Obligor, whether
matured or unmatured, in accordance with the terms of the Credit Agreement;
provided, however, that if
(a) the Guarantor has made payment to the Secured Parties and each
holder of a Note of all or any part of the Obligations of the Borrower or
any other Obligor, and
(b) all Obligations of the Borrower and each other Obligor have been
paid in full in cash, all Letters of Credit have been terminated or expired
(or have been cash collateralized or backstop letters of credit have been
issued in favor of the relevant Issuing Bank, acceptable in form and
substance to such Issuing Bank) and all Commitments have been terminated,
each Secured Party and each holder of a Note agrees that, at the Guarantor's
request, the Collateral Agent, on behalf of the Secured Parties and the holders
of the Notes, will execute and deliver to the Guarantor appropriate documents
(without recourse and without representation or warranty) necessary to evidence
the transfer by subrogation to the Guarantor of an interest in the Obligations
of the Borrower and each other Obligor resulting from such payment by the
Guarantor. In furtherance of the foregoing, for so long as any Obligations or
Commitments remain outstanding, the Guarantor shall refrain from taking any
action or commencing any proceeding against the Borrower or any other Obligor
(or its successors or assigns, whether in connection with a bankruptcy
proceeding or otherwise) to recover any amounts in the respect of payments made
under this Guaranty to any Secured Party or any holder of a Note.
SECTION 2.7. Successors, Transferees and Assigns; Transfers of Notes, etc.
This Guaranty shall:
(a) be binding upon the Guarantor, and its successors, transferees and
assigns; and
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(b) inure to the benefit of and be enforceable by the Collateral Agent
and each other Secured Party.
Without limiting the generality of the foregoing clause (b), any Lender may
assign or otherwise transfer (in whole or in part) any Note or Credit Extension
held by it to any other Person or entity, and such other Person or entity shall
thereupon become vested with all rights and benefits in respect thereof granted
to such Lender under any Loan Document (including this Guaranty) or otherwise,
subject, however, to any contrary provisions in such assignment or transfer, and
to the provisions of Article XIII of the Credit Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties. The Guarantor hereby
represents and warrants unto the Collateral Agent and the Secured Parties as set
forth in this Article III acknowledging that the Collateral Agent and the
Secured Parties are relying thereon without independent inquiry.
SECTION 3.1.1. Corporate Existence; Compliance with Law. The Guarantor (a)
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware; (b) has the requisite corporate power and
authority and the legal right to own, pledge, mortgage or otherwise encumber its
properties and to conduct its business as now and heretofore conducted; (c) is
in compliance with its Constituent Documents; and (d) is in compliance with all
material Requirements of Law.
SECTION 3.1.2. Corporate Power; Authorization. The execution and delivery
by the Guarantor of the Loan Documents to which it is a party and all
instruments and documents to be delivered by the Guarantor thereunder, and the
performance of its obligations thereunder: (a) are within the Guarantor's
corporate power; (b) have been duly authorized by all necessary or proper
corporate action; (c) are not in contravention of any provision of the
Guarantor's Constituent Documents; (d) will not violate any law or regulation,
or any order or decree of any court or Governmental Authority; (e) will not
conflict with or result in the breach or termination of, constitute a default
under (with or without the giving of notice, the lapse of time or both) or a
tortious interference with or accelerate any performance required by, any
material indenture, mortgage, deed of trust, lease, agreement or other
instrument to which the Guarantor is a party or by which the Guarantor or any of
its property is bound; (f) will not result in the creation or imposition of any
Lien upon any of the property of the Guarantor, other than Liens created
pursuant to the terms of the Loan Documents; and (g) do not require the consent
or approval of any Governmental Authority, or any other Person which has not
been obtained.
SECTION 3.1.3. No Adverse Condition. No action has been taken by any
competent authority which restrains, prevents or imposes material adverse
conditions upon, or seeks to restrain, prevent or impose material adverse
conditions upon, the consummation of any of the transactions contemplated by the
Loan Documents or the Transaction Documents.
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SECTION 3.1.4. Enforceability. The obligations of the Guarantor under this
Guaranty are enforceable against the Guarantorin accordance with their terms.
ARTICLE IV
COVENANTS, ETC.
SECTION 4.1. Covenants. The Guarantor covenants and agrees that the
Guarantor will perform the obligations set forth in this Article IV until all of
the Obligations (other than indemnities or Obligations in respect of cash
management services not yet due) are paid in full or, in the case of contingent
Obligations (other than indemnities or Obligations in respect of cash management
services not yet due), Cash Collateral has been deposited in the Cash Collateral
Account in the full amount of such Obligations on terms satisfactory to the
Lenders), unless the Requisite Lenders shall otherwise give prior written
consent thereto.
SECTION 4.1.1. Sale of Assets; Liens. The Guarantor shall not (a) sell,
assign, transfer, lease, convey or otherwise dispose of any Property, whether
now owned or hereafter acquired, or any income or profits therefrom, or enter
into any agreement to do so except (i) sales of assets for no less than their
Fair Market Value, (ii) the dissolution of any of Foamex Delaware, Inc., Foamex
Aviation, Inc. or JPSGP, Inc., (iii) in connection with the Transactions or (b)
directly or indirectly create, incur, assume or permit to exist any Lien on or
with respect to any of its Property, except (i) Liens securing the Obligations
and (ii) Liens permitted by the Credit Agreement.
SECTION 4.1.2. Conduct of Business. The Guarantor shall not engage in any
business other than acting as a holding company and holding the Investments of
the Guarantor permitted under Section 4.1.6.
SECTION 4.1.3. Transactions with Affiliates. Except in respect of
transactions (a) described in Schedule 6.01-Z of the Credit Agreement and (b)
contemplated by the Transaction Documents, the Guarantor shall not directly or
indirectly enter into any transactions (including, without limitation, the
purchase, sale, lease or exchange of any property or the rendering of any
service), with any of the Guarantor's Affiliates (other than the Borrower and
its Subsidiaries) on terms that are less favorable to it than terms that could
be obtained in an arm's-length transaction with an unrelated party at that time.
SECTION 4.1.4. Indebtedness. Neither the Guarantor nor any of its
Subsidiaries (other than the Borrower and its Subsidiaries) shall directly or
indirectly create, incur, assume or otherwise become or remain directly or
indirectly liable with respect to, any Indebtedness, except (a) Indebtedness in
respect of the Guaranty or the Obligations, (b) Indebtedness in respect of loans
constituting Investments of the Borower permitted under Section 9.04 of the
Credit Agreement, (c) unsecured Accommodation Obligations with respect to
obligations of the Borrower and its Subsidiaries and (d) other unsecured
Indebtedness of the Guarantor in an aggregate principal amount not to exceed
$50,000,000 at any time.
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SECTION 4.1.5. Restriction on Fundamental Changes. The Guarantor shall not
enter into any merger or consolidation, or liquidate, wind-up or dissolve (or
suffer any liquidation or dissolution), purchase or otherwise acquire, in one
transaction or series of transactions, all or substantially all of the Equity
Interests in, or other evidence of beneficial ownership of, or the business,
property or assets of, any Person except in connection with the Transactions.
SECTION 4.1.6. Investments. The Guarantor shall not directly or indirectly
make or own any Investment, except (a) Investments in cash and Cash Equivalents,
(b) Investments held by the Guarantor set forth on Schedule I hereto, (c) other
Investments in existence on the date hereof in an aggregate amount not to exceed
$1,000,000, (d) direct cash Investments in the Borrower or any Subsidiary
Guarantor, (e) other Investments in any Fiscal Year not in excess of $25,000,000
and (f) Investments contemplated by the Transactions.
SECTION 4.1.7. Constituent Documents. Neither the Guarantor nor any of its
Subsidiaries (other than the Borrower and its Subsidiaries) shall amend, modify
or otherwise change any of the terms or provisions in any of its Constituent
Documents as in effect on the date hereof other than amendments or modifications
deemed immaterial by the Administrative Agents, provided that the Guarantor may
dissolve any of Foamex Delaware, Inc., Foamex Aviation, Inc. and JPSGP, Inc.
upon at least 10 days notice to the Collateral Agent.
SECTION 4.1.8. Transaction Documents. Neither the Guarantor nor any of its
Subsidiaries (other than the Borrower and its Subsidiaries) shall amend,
supplement or otherwise modify any of the terms or provisions in any of the
Transaction Documents to which it is a party other than amendments, supplements
or modifications deemed immaterial by the Agents.
ARTICLE V
SUBORDINATION
The Guarantor hereby agrees that any Indebtedness of the Borrower now or
hereafter owing to the Guarantor (the "Guarantor Subordinated Debt") is hereby
subordinated to all of the Obligations and to all "Senior Indebtedness" as
defined in the Foamex 13 1/2% Subordinated Note Indenture and the Foamex 9 7/8%
Subordinated Note Indenture, as the case may be, in each case whether
heretofore, now or hereafter created, on the terms set forth in Article 10 of
the Foamex 13 1/2% Subordinated Note Indenture to the same extent as if such
Indebtedness constituted Indebtedness evidenced by the Foamex 13 1/2%
Subordinated Notes and the Foamex 9 7/8% Subordinated Note Indenture, as the
case may be, and to the extent necessary to comply with Section 4.15 of the
Foamex 13 1/2% Subordinated Note Indenture and the Foamex 9 7/8% Subordinated
Note Indenture, as the case may be, the terms of which section are incorporated
herein by reference. In addition, the Guarantor Subordinated Debt is
subordinated on the following terms: The Guarantor Subordinated Debt shall not
be paid in whole or in part except as otherwise permitted under the terms of the
Credit Agreement. The Guarantor will not accept any payment of or on account of
any Guarantor Subordinated Debt at any time in contravention of the foregoing.
The Guarantor agrees to file all claims against the Borrower in any bankruptcy
or other proceeding in which the filing of claims is required by law in respect
of any Guarantor Subordinated Debt, and the Collateral Agent shall be entitled
to all of the Guarantor's rights
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thereunder. If for any reason the Guarantor fails to file such claim at least
thirty (30) days prior to the last date on which such claim should be filed, the
Collateral Agent, as the Guarantor's attorney-in-fact, is hereby authorized to
do so in the Guarantor's name or, in the Collateral Agent's discretion, to
assign such claim to and cause proof of claim to be filed in the name of the
Collateral Agent or its nominee. In all such cases, whether in administration,
bankruptcy or otherwise, the Person or Persons authorized to pay such claim
shall pay to the Collateral Agent the full amount payable on the claim in the
proceeding, and, to the full extent necessary for that purpose, the Guarantor
hereby assigns to the Collateral Agent all the Guarantor's rights to any
payments or distributions to which the Guarantor otherwise would be entitled. If
the amount so paid is greater than the Guarantor's liability hereunder, the
Collateral Agent will pay the excess amount to the party entitled thereto. In
addition, the Guarantor hereby appoints the Collateral Agent as its
attorney-in-fact to exercise all of the Guarantor's voting rights with respect
to the Guarantor Subordinated Debt in connection with any bankruptcy proceeding
or any plan for the reorganization of the Borrower.
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.1. Loan Document. This Guaranty is a Loan Document executed
pursuant to the Credit Agreement and shall (unless otherwise expressly indicated
herein) be construed, administered and applied in accordance with the terms and
provisions thereof, including Article XIII thereof.
SECTION 6.2. Binding on Successors, Transferees and Assigns; Assignment. In
addition to, and not in limitation of, Section 2.7, this Guaranty shall be
binding upon the Guarantor and the Guarantor's successors, transferees and
assigns and shall inure to the benefit of and be enforceable by each Secured
Party and each holder of a Note and their respective successors, transferees and
assigns (to the full extent provided pursuant to Section 2.7); provided,
however, that the Guarantor may not assign any of its obligations hereunder
without the prior written consent of all of the Lenders.
SECTION 6.3. Amendments, etc. No amendment to or waiver of any provision of
this Guaranty, nor consent to any departure by the Guarantor herefrom, shall in
any event be effective unless the same shall be in writing and signed by the
Collateral Agent (on behalf of the Lenders or the Requisite Lenders, as the case
may be) and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
SECTION 6.4. Notices. All notices and other communications provided for
hereunder shall be in writing and may be personally served, telecopied, telexed
or sent by courier service or United States certified mail and shall be deemed
to have been given when delivered in person or by courier service, upon receipt
of a telecopy or telex or four (4) Business Days after deposit in the United
States mail with postage prepaid and properly addressed. For the purposes
hereof, the address of the Guarantor shall be the address specified on the
signature page hereof, or at such other address as may be designated by the
Guarantor in a written notice to the Collateral Agent.
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SECTION 6.5. No Waiver; Remedies. In addition to, and not in limitation of,
Section 2.3 and Section 2.5, no failure on the part of any Secured Party or any
holder of a Note to exercise, and no delay in exercising, any right hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right hereunder preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 6.6. Captions. Section captions used in this Guaranty are for
convenience of reference only, and shall not affect the construction of this
Guaranty.
SECTION 6.7. Setoff. In addition to, and not in limitation of, any rights
of any Secured Party or any holder of a Note under applicable law, each Secured
Party and each such holder shall, upon the occurrence and during the continuance
of any Event of Default described in Section 11.01(f) or 11.01(g) of the Credit
Agreement or, with the consent of the Requisite Lenders, any other Event of
Default, have the right to appropriate and apply to the payment of the
obligations of the Guarantor owing to it hereunder, whether or not then due, and
the Guarantor hereby grants to each Secured Party and each such holder a
continuing security interest in, any and all balances, credits, deposits,
accounts or moneys of the Guarantor then or thereafter maintained with such
Secured Party, or such holder or any agent or bailee for such Secured Party or
such holder; provided, however, that any such appropriation and application
shall be subject to the provisions of Section 13.06 of the Credit Agreement.
SECTION 6.8. Severability. Wherever possible each provision of this
Guaranty shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Guaranty.
SECTION 6.9. No Release. This Guaranty amends and restates in its entirety
the Second Amended and Restated Foamex International Guaranty dated as of
February 27, 1998, made by the Guarantor in favor of the Collateral Agent and
shall not release the Guarantor's obligations under such guaranty.
SECTION 6.10. Certain Consents and Waivers of the Guarantor.
SECTION 6.10.1. Personal Jurisdiction. (i) THE GUARANTOR IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE
JURISDICTION OF ANY NEW YORK STATE COURT OR FEDERAL COURT SITTING IN NEW YORK,
NEW YORK, AND ANY COURT HAVING JURISDICTION OVER APPEALS OF MATTERS HEARD IN
SUCH COURTS, IN ANY ACTION OR PROCEEDING ARISING OUT OF, CONNECTED WITH, RELATED
TO OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED IN CONNECTION WITH THIS
GUARANTY, WHETHER ARISING IN CONTRACT, TORT, EQUITY OR OTHERWISE, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY AGREEMENT, AND THE GUARANTOR IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR
PROCEEDING MAY BE HEARD AND
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DETERMINED IN SUCH STATE COURT OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH
FEDERAL COURT. THE GUARANTOR IRREVOCABLY DESIGNATES AND APPOINTS CORPORATION
SERVICE COMPANY, 0000 XXXXXX XX XXX XXXXXXXX, 00XX XXXXX, XXX XXXX, XXX XXXX
00000, AS ITS AGENT (THE "PROCESS AGENT") FOR SERVICE OF ALL PROCESS IN ANY SUCH
PROCEEDING IN ANY SUCH COURT, SUCH SERVICE BEING ACKNOWLEDGED TO BE EFFECTIVE
AND BINDING SERVICE IN EVERY RESPECT. THE GUARANTOR AGREES THAT A FINAL
JUDGEMENT ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGEMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
THE GUARANTOR WAIVES IN ALL DISPUTES ANY OBJECTION THAT IT MAY HAVE TO THE
LOCATION OF THE COURT CONSIDERING THE DISPUTE.
(ii) THE GUARANTOR AGREES THAT THE COLLATERAL AGENT SHALL HAVE THE RIGHT TO
PROCEED AGAINST THE BORROWER OR ITS PROPERTY IN A COURT IN ANY LOCATION TO
ENABLE THE ADMINISTRATIVE AGENTS, THE LENDERS AND THE ISSUING BANKS TO ENFORCE A
JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF THE ADMINISTRATIVE AGENTS, ANY
LENDER OR ANY ISSUING BANK. THE BORROWER WAIVES ANY OBJECTION THAT IT MAY HAVE
TO THE LOCATION OF THE COURT IN WHICH THE ADMINISTRATIVE AGENTS, ANY LENDER OR
ANY ISSUING BANK MAY COMMENCE A PROCEEDING DESCRIBED IN THIS SECTION.
SECTION 6.10.2. Service of Process. THE GUARANTOR IRREVOCABLY CONSENTS TO
THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO THE PROCESS AGENT OR THE GUARANTOR'S NOTICE ADDRESS
SPECIFIED BELOW, SUCH SERVICE TO BECOME EFFECTIVE (5) FIVE DAYS AFTER SUCH
MAILING. THE GUARANTOR IRREVOCABLY WAIVES ANY OBJECTION (INCLUDING WITHOUT
LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE OR BASED ON THE GROUNDS OF
FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY
SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT TO WHICH IT IS A PARTY IN ANY JURISDICTION SET FORTH ABOVE. NOTHING
HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW OR SHALL LIMIT THE RIGHT OF THE COLLATERAL AGENT TO BRING PROCEEDINGS
AGAINST THE GUARANTOR IN THE COURTS OF ANY OTHER JURISDICTION.
SECTION 6.11. Governing Law, Entire Agreement, etc. THIS GUARANTY SHALL BE
DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF NEW YORK (INCLUDING FOR SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK). EXCEPT AS SET FORTH IN
SECTION 6.10, THIS GUARANTY AND THE OTHER LOAN DOCUMENTS CONSTITUTE THE ENTIRE
UNDERSTANDING
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AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDE
ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT THERETO.
SECTION 6.12. Waiver of Jury Trial. THE GUARANTOR HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS GUARANTY OR ANY OTHER LOAN DOCUMENT OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF
THE SECURED PARTIES OR SUCH GUARANTOR. THE GUARANTOR ACKNOWLEDGES AND AGREES
THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION AND
THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDERS ENTERING INTO THE
CREDIT AGREEMENT.
SECTION 6.13. Counterparts. This Guaranty 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.
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
Foamex International Inc.
By /s/ Xxxxxx X. Xxxxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Senior Vice President
Notice address:
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attn: Chief Financial Officer
Telecopier No.: 000-000-0000
