EXHIBIT 4.10.12
EXECUTION COPY
INTERCREDITOR AGREEMENT
This INTERCREDITOR AGREEMENT, dated as of March 25, 2002, is entered into
among CITICORP USA, INC., as Senior Agent (as defined below), U.S. BANK NATIONAL
ASSOCIATION, as trustee and collateral agent under the Indenture referred to
below, and Foamex L.P., a Delaware limited partnership (the "Borrower").
W I T N E S S E T H :
WHEREAS, the Borrower, the financial institutions party to the Senior
Credit Agreement referred to below as lenders and issuing banks, Citicorp USA,
Inc., as administrative agent and collateral agent for such lenders and issuing
banks (in such capacity, the "Senior Agent") and The Bank of Nova Scotia, as
funding agent and syndication agent for such lenders and issuing banks, propose
to enter into an Amended and Restated 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 such agreement may be amended, amended and restated, supplemented or
otherwise modified, from time to time at the option of the parties thereto and
any other agreements pursuant to which any of the indebtedness, commitments,
obligations, costs, expenses, fees, reimbursements, indemnities or other
obligations payable or owing thereunder may be refinanced, restructured,
renewed, extended, increased, refunded or replaced as any such other agreements
may from time to time at the option of the parties thereto be amended, amended
and restated, supplemented, renewed or otherwise modified, being collectively
referred to herein the "Senior Credit Agreement"); and
WHEREAS, the Borrower, Foamex Capital Corporation, a Delaware corporation
("Foamex Capital") and U.S. Bank National Association, as the trustee and the
collateral agent (in its capacity as collateral agent, the "Trustee") under the
Indenture referred to below, propose to enter into an Indenture, dated as of
March 25, 2002 (as such Indenture may be amended, amended and restated,
supplemented or otherwise modified, from time to time at the option of the
parties thereto, the "Indenture") governing the rights and duties of the
Borrower and Foamex Capital under the 10 3/4% Senior Secured Notes due 2009 (the
"Senior Secured Notes"); and
WHEREAS, it is a condition precedent to the effectiveness of the Senior
Credit Agreement that the Senior Agent (for itself and for the benefit of the
Senior Lenders), the Trustee (for itself and for the benefit of the Noteholders)
and the Borrower enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and
obligations herein set forth and for other good and valuable consideration, the
adequacy and receipt of which are hereby acknowledged, and in reliance upon the
representations, warranties and covenants herein contained, the parties hereto,
intending to be legally bound, hereby agree as follows:
Section 1. Definitions. As used in this Agreement, the following terms
shall have the following meanings (such meanings to be equally applicable to
both the singular and the plural form of the terms indicated) and capitalized
terms defined in the Senior Credit Agreement used (but not otherwise defined)
herein shall have the meanings ascribed to them in the Senior Credit Agreement:
"Agreement" shall mean this Agreement, as amended, supplemented or
otherwise modified from time to time in accordance with the terms hereof.
"Bankruptcy Code" shall mean title 11 of the United States Code (11 U.S.C.
101 et seq.), as amended from time to time and any successor statute.
"Business Day" shall mean any day other than Saturday, Sunday and a day
that is a legal holiday under the laws of the State of New York or on which
banking institutions in the State of New York are required or authorized by law
or other governmental action to close.
"Common Collateral" shall mean all of the assets of the Borrower or any of
its Subsidiaries whether real, personal or mixed, constituting both Senior
Lender Collateral and Noteholder Collateral.
"Comparable Noteholder Collateral Document" means, in relation to any
Common Collateral subject to any Senior Lender Collateral Document, that
Noteholder Collateral Document which creates a security interest in the same
Common Collateral, granted by the Borrower or same Guarantor, as applicable.
"Discharge of Senior Lender Claims" shall mean, except to the extent
otherwise provided in Section 5.6, payment in full of the principal of, interest
and premium, if any, on all indebtedness outstanding under the Senior Credit
Agreement and any other Future First-Lien Credit Facility or, with respect to
Hedging Obligations or letters of credit outstanding thereunder, delivery of
cash collateral or backstop letters of credit in respect thereof in compliance
with the Senior Credit Agreement or such First-Lien Credit Facility, as
applicable, in each case after or concurrently with termination of all
commitments to extend credit thereunder, and payment in full of any other Senior
Lender Claims that are due and payable at or prior to the time such principal
and interest are paid.
"Future First-Lien Credit Facility" shall mean any First-Lien Credit
Facility (as defined in the Indenture) that is designated by the Borrower as a
"First-Lien Credit Facility" for purposes of the Indenture (other than the
Senior Credit Agreement referenced in the recitals hereto), provided that the
Required Lenders under any Senior Credit Agreement then in effect have consented
to such designation.
"Future Other First-Lien Obligations" shall mean all Obligations of the
Borrower or any of its Subsidiaries in respect of cash management services or
Hedging Obligations that are designated by the Borrower as "Credit Agreement
Obligations" for purposes of the Indenture (other than any Senior Lender Cash
Management Obligations and Senior Lender Hedging Obligations), provided that the
Required Lenders under any Senior Credit Agreement then in effect have consented
to such designation.
"Guarantor" means Foamex Capital and each Subsidiary of the Borrower that
is a guarantor of the Noteholder Claims.
"Hedging Obligations" means, with respect to any Person, the obligations of
such Person under (a) interest rate or currency swap agreements, interest rate
or currency cap agreements, interest rate or currency collar agreements and (b)
other agreements or arrangements designed to protect such Person against
fluctuations in interest rates and/or currency exchange rates.
"Indebtedness" means, with respect to any specified Person without
duplication, any indebtedness of such Person, whether or not contingent (a) in
respect of borrowed money; (b) evidenced by bonds, notes, debentures or other
similar instruments or letters of credit (or
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reimbursement agreements in respect thereof); (c) in respect of banker's
acceptances; (d) representing obligations in connection with Capital Leases; (e)
representing the balance deferred and unpaid of the purchase price of any
property, except any such balance that constitutes an accrued expense or trade
payable, if and to the extent any of the preceding items (other than letters of
credit) would appear as a liability upon a balance sheet of the specified Person
prepared in accordance with GAAP. In addition, the term "Indebtedness" includes
all Indebtedness of other secured by a Lien on any asset of the specified Person
(whether or not such Indebtedness is assumed by the specified Person) to the
extent of the fair market value of such asset where the Indebtedness so secured
is not the Indebtedness of such Person and, to the extent not otherwise
included, the guaranty by the specified Person of the Indebtedness of any other
Person. The amount of any Indebtedness outstanding as of any date will be (i)
the accreted value of the Indebtedness, in the case of any Indebtedness issued
with original issue discount; and (ii) the principal amount of the Indebtedness,
together with any interest on the Indebtedness that is more than 30 days past
due, in the case of any other Indebtedness. Hedging Obligations and Obligations
under the Tax Sharing Agreement shall not constitute Indebtedness, except to the
extent they appear on the balance sheet of the Borrower. Indebtedness of the
Borrower and its Restricted Subsidiaries (as defined in the Indenture) shall not
include (A) any Indebtedness of a Receivables Subsidiary (as defined in the
Indenture) solely by reason of representations, warranties, covenants and
indemnities entered into by the Borrower or any of its Restricted Subsidiaries
which are reasonably customary in a Receivables Transaction (as defined in the
Indenture) and (B) any Indebtedness of the Borrower or any of its Restricted
Subsidiaries that has been either satisfied and discharged or defeased through
covenant defeasance or legal defeasance.
"Indenture" shall have the meaning set forth in the recitals hereto.
"Insolvency or Liquidation Proceeding" shall mean (a) any voluntary or
involuntary case or proceeding under the Bankruptcy Code with respect to the
Borrower or any Guarantor, (b) any other voluntary or involuntary insolvency,
reorganization or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or other similar case or proceeding with respect to
the Borrower or any Guarantor or with respect to any of their respective assets,
(c) any liquidation, dissolution, reorganization or winding up of the Borrower
or any Guarantor whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy or (d) any assignment for the benefit of creditors or
any other marshalling of assets and liabilities of the Borrower or any
Guarantor.
"Lien" shall mean any mortgage, deed of trust, pledge, hypothecation,
assignment, security interest, deposit arrangement, encumbrance, lien or
preference priority or other security agreement or other preferential
arrangement whatsoever, including, without limitation, any right of setoff, any
conditional sale or other title retention agreement, the interest of a lessor
under a lease or any financing lease having substantially the same economic
effect as any of the foregoing and the filing of any financing statement naming
the owner of the asset to which such Lien relates as debtor.
"Noteholder Claims" shall mean all indebtedness, obligations and other
liabilities (contingent or otherwise) arising under or with respect to the
Noteholder Documents or any of them.
"Noteholder Collateral" shall mean all of the assets of the Borrower or any
Guarantor whether real, personal or mixed, in which the Noteholders or the
Trustee or any of them now or hereafter holds a Lien as security for any
Noteholder Claim.
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"Noteholder Collateral Documents" shall mean the Noteholder Security
Agreement, the Noteholder Mortgages, and any document or instrument executed and
delivered pursuant to any Noteholder Document at any time or otherwise pursuant
to which a Lien is granted by the Borrower or a Guarantor to secure the
Noteholder Claims or under which rights or remedies with respect to any such
Lien are governed, as the same may be amended, renewed, extended, supplemented
or modified from time to time.
"Noteholder Documents" shall mean the Indenture, the Notes (as defined in
the Indenture), the Noteholder Collateral Documents, any document or instrument
evidencing any Other Second-Lien Obligations (as defined in the Indenture) and
any other related document or instrument executed and delivered pursuant to any
Noteholder Document at any time or otherwise evidencing any Noteholder Claims,
as the same may be amended, renewed, extended, supplemented or modified from
time to time.
"Noteholder Mortgages" shall mean a collective reference to each mortgage,
deed of trust and any other document or instrument under which any Lien on real
property owned by the Borrower or any Subsidiary is granted to secure the
Noteholder Claims or under which rights or remedies with respect to any such
Liens are governed, as the same may be amended, renewed, extended, supplemented
or modified.
"Noteholder Security Agreement" shall mean the Pledge and Security
Agreement, dated as of March __, 2002, between the Borrower, the Guarantors and
the Trustee, as the same may be amended, renewed, extended, supplemented or
modified.
"Noteholders" shall mean the Persons holding Noteholder Claims.
"Obligations" shall mean any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness (including any obligation to post
cash collateral in respect of letters of credit and any other obligations), or
any obligation for cash management services or Hedging Obligations.
"Person" shall mean any person, individual, sole proprietorship,
partnership, joint venture, corporation, unincorporated organization,
association, institution, entity or other party, including, without limitation,
any government and any political subdivision, agency or instrumentality thereof.
"Pledged Collateral" shall mean the "Pledged Notes" and the "Pledged Stock"
under, and as defined in, the Security Agreement, cash and other items in the
Lockbox Accounts, and any other property in the possession of the Senior Agent
(or its agents or bailees).
"Recovery" shall have the meaning set forth in Section 6.5 hereof.
"Required Lenders" shall mean, with respect to any amendment or
modification of the Senior Credit Agreement, or any termination or waiver of any
provision of the Senior Credit Agreement, or any consent or departure by the
Borrower therefrom, those Senior Lenders, the approval of which is required to
approve such amendment or modification, termination or waiver or consent or
departure.
"Senior Agent" shall include, in addition to the Senior Agent referred to
in the recitals hereto, the then acting collateral agent for the Senior Lenders
(or if there is more than one
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agent, a majority of them) under the Senior Lender Documents and any successor
thereto exercising substantially the same rights and powers, or if there is no
acting Senior Agent under the Senior Credit Agreement, the Required Lenders.
"Senior Credit Agreement" shall have the meaning set forth in the recitals
hereto; provided that if at any time a Discharge of Senior Lender Claims occurs
with respect to the Senior Credit Agreement referenced in the recitals hereto
(without giving effect to Section 5.6), then, to the extent provided in Section
5.6, the term "Senior Credit Agreement" shall mean the Future First-Lien Credit
Facility designated by the Borrower in accordance with the terms of such
section.
"Senior Lender Cash Management Obligations" means all Obligations (as
defined in the Senior Credit Agreement or any Future First-Lien Credit Facility)
of the Borrower or any of its Subsidiaries in respect of cash management
services.
"Senior Lender Claims" shall mean (a) all Indebtedness outstanding under
one or more of the Senior Lender Documents, including any Future First-Lien
Credit Facilities, the Indebtedness under each of which (i) constitutes
Permitted Debt (as defined in the Indenture) or is otherwise permitted by the
Indenture and (ii) is designated by the Borrower as "Credit Agreement
Obligations" for purposes of the Indenture, (b) all other Obligations not
constituting Indebtedness of the Borrower or a Guarantor under the Senior Lender
Documents or any such other Future First-Lien Credit Facility, including,
without limitation, all Senior Lender Hedging Obligations and Senior Lender Cash
Management Obligations and (c) all Future Other First-Lien Obligations. Senior
Lender Claims shall include all interest accrued or accruing (or which would,
absent the commencement of an Insolvency or Liquidation Proceeding, accrue)
after the commencement of an Insolvency or Liquidation Proceeding in accordance
with and at the rate specified in the Senior Credit Agreement whether or not the
claim for such interest is allowed as a claim in such Insolvency or Liquidation
Proceeding. To the extent any payment with respect to the Senior Lender Claims
(whether by or on behalf of any Borrower, as proceeds of security, enforcement
of any right of setoff or otherwise) is declared to be fraudulent or
preferential in any respect, set aside or required to be paid to a debtor in
possession, trustee, receiver or similar Person, then the obligation or part
thereof originally intended to be satisfied shall be deemed to be reinstated and
outstanding as if such payment had not occurred. Notwithstanding anything to the
contrary contained in the first sentence of this definition, any Obligation
under the Senior Lender Documents or any Future First-Lien Credit Facility
(including, without limitation, any such Obligation in respect of cash
management services or Hedging Obligations) shall constitute a "Senior Lender
Claim" if the Senior Agent shall have received a representation from the
Borrower in the Senior Lender Documents evidencing such Obligation (or a
certificate from an authorized officer of the Borrower delivered in connection
with such Senior Lender Documents) that such Obligation constitutes a "Credit
Agreement Obligation", under and as defined in the Indenture (whether or not
such Obligation was at any time determined not to have been permitted to be
incurred under the Indenture).
"Senior Lender Collateral" shall mean all of the assets of Foamex
International, FMXI, the Borrower or any of the Borrower's Subsidiaries whether
real, personal or mixed, in which the Senior Lenders or the Senior Agent or any
of them now or hereafter holds a Lien as security for any Senior Lender Claim.
"Senior Lender Collateral Documents" shall mean the Security Agreement, the
Mortgages, the Mexican Security Documents, and any Loan Document or other
document or
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instrument pursuant to which a Lien is granted securing the Senior Lender
Claims, as the same may be amended, renewed, extended, supplemented or modified
from time to time.
"Senior Lender Documents" shall mean the Senior Credit Agreement, the
Foamex International Guaranty, the Guaranty, and each of the other Loan
Documents (including, without limitation, each document or instrument evidencing
a Senior Lender Hedging Obligation or Senior Lender Cash Management Obligation),
all documents and instruments evidencing any other obligation under the Senior
Credit Agreement or any Future First-Lien Credit Facility or any Future Other
First-Lien Obligations, and any other related document or instrument executed or
delivered pursuant to any Senior Lender Document at any time or otherwise
evidencing any Senior Lender Claims, as any such document or instrument may from
time to time be amended, renewed, restated, supplemented or otherwise modified.
"Senior Lender Hedging Obligations" means Obligations (as defined in the
Senior Credit Agreement or any Future First-Lien Credit Facility) constituting
Hedging Obligations of the Borrower or any of its Subsidiaries.
"Senior Lenders" shall mean the Persons holding Senior Lender Claims,
including, without limitation, the Senior Agent.
"Trustee" shall include, in addition to the Trustee referred to in the
recitals hereto, the then acting collateral agent under the Indenture and any
successor thereto exercising substantially the same rights and powers, or if
there is no acting collateral agent under the Indenture, the Noteholders holding
a majority in principal amount of Noteholder Claims then outstanding.
"Uniform Commercial Code" or "UCC" shall mean the Uniform Commercial Code
of the State of New York, as amended.
Section 2. Lien Priorities.
2.1 Subordination. Notwithstanding the date, manner or order of grant,
attachment or perfection of any Liens granted to the Trustee or the Noteholders
on the Common Collateral or of any Liens granted to the Senior Agent or the
Senior Lenders on the Common Collateral and notwithstanding any provision of the
UCC, or any applicable law or the Noteholder Documents or the Senior Lender
Documents or any other circumstance whatsoever, the Trustee, on behalf of itself
and the Noteholders, hereby agrees that: (a) any Lien on the Common Collateral
securing the Senior Lender Claims now or hereafter held by the Senior Agent or
the Senior Lenders shall be senior and prior to any Lien on the Common
Collateral securing the Noteholder Claims; and (b) any Lien on the Common
Collateral now or hereafter held by the Trustee or the Noteholders regardless of
how acquired, whether by grant, statute, operation of law, subrogation or
otherwise, shall be junior and subordinate in all respects to all Liens on the
Common Collateral securing the Senior Lender Claims. All Liens on the Common
Collateral securing the Senior Lender Claims shall be and remain senior to all
Liens on the Common Collateral securing the Noteholder Claims for all purposes,
whether or not such Liens securing the Senior Lender Claims are subordinated to
any Lien securing any other obligation of the Borrower or any Guarantor.
2.2 Prohibition on Contesting Liens. Each of the Trustee, for itself and on
behalf of each Noteholder, and the Senior Agent, for itself and on behalf of
each Senior Lender, agrees that it shall not (and hereby waives any right to)
contest or support any other Person in
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contesting, in any proceeding (including, without limitation, any Insolvency or
Liquidation Proceeding), the priority, validity or enforceability of a Lien held
by the Senior Lenders in the Senior Lender Collateral or by the Noteholders in
the Common Collateral, as the case may be.
2.3 No New Liens. So long as the Discharge of Senior Lender Claims has not
occurred, (a) the parties hereto agree that, after the date hereof, if the
Trustee shall hold any Lien on any assets of Foamex International or any of its
Subsidiaries securing the Noteholder Claims that are not also subject to the
first-priority Lien of the Senior Agent under the Senior Lender Documents, the
Trustee, upon demand by the Senior Agent, will either release such Lien or
assign it to the Senior Agent as security for the Senior Lender Claims, and (b)
the Borrower agrees not to grant any Lien on any of its assets, or permit any
Subsidiary of the Borrower to ▇▇▇▇▇ ▇ ▇▇▇▇ on any of its assets, in favor of the
Trustee or the Noteholders unless it, or such Subsidiary, has granted a similar
Lien on such assets in favor of the Senior Agent or the Senior Lenders.
Section 3. Enforcement.
3.1 Exercise of Remedies.
(a) So long as the Discharge of Senior Lender Claims has not occurred,
whether or not any Insolvency or Liquidation Proceeding has been commenced by or
against any Borrower or Guarantor, (i) the Trustee and the Noteholders will not
exercise or seek to exercise any rights or remedies (including setoff) with
respect to any Common Collateral, institute any action or proceeding with
respect to such rights or remedies, including, without limitation, any action of
foreclosure, contest, protest or object to any foreclosure proceeding or action
brought by the Senior Agent or any Senior Lender, the exercise of any right
under any Lockbox Agreement, landlord waiver or bailee's letter or similar
agreement or arrangement to which the Trustee or any Noteholder is a party, or
any other exercise by any such party, of any rights and remedies relating to the
Common Collateral under the Senior Lender Documents or otherwise, or object to
the forbearance by the Senior Lenders from bringing or pursuing any foreclosure
proceeding or action or any other exercise of any rights or remedies relating to
the Common Collateral and (ii) the Senior Agent and the Senior Lenders shall
have the exclusive right to enforce rights, exercise remedies (including,
without limitation, setoff and the right to credit bid their debt) and make
determinations regarding release, disposition, or restrictions with respect to
the Common Collateral without any consultation with or the consent of the
Trustee or any Noteholder; provided, however, (A) that in any Insolvency or
Liquidation Proceeding commenced by or against the Borrower or any Guarantor,
the Trustee may file a claim or statement of interest with respect to the
Noteholder Claims, and (B) the Trustee may take any action not adverse to the
Liens on the Common Collateral securing the Senior Lender Claims in order to
preserve or protect its rights in the Common Collateral. In exercising rights
and remedies with respect to the Common Collateral, the Senior Agent and the
Senior Lenders may enforce the provisions of the Senior Lender Documents and
exercise remedies thereunder, all in such order and in such manner as they may
determine in the exercise of their sole discretion. Such exercise and
enforcement shall include, without limitation, the rights of an agent appointed
by them to sell or otherwise dispose of Common Collateral upon foreclosure, to
incur expenses in connection with such sale or disposition, and to exercise all
the rights and remedies of a secured lender under the Uniform Commercial Code of
any applicable jurisdiction and of a secured creditor under bankruptcy or
similar laws of any applicable jurisdiction.
(b) The Trustee, on behalf of itself and the Noteholders, agrees that it
will not take or receive any Common Collateral or any proceeds of Common
Collateral in connection with
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the exercise of any right or remedy (including setoff) with respect to any
Common Collateral, unless and until the Discharge of Senior Lender Claims has
occurred. Without limiting the generality of the foregoing, unless and until the
Discharge of Senior Lender Claims has occurred, except as expressly provided in
the proviso in Section 3.1(a)(ii) above, the sole right of the Trustee and the
Noteholders with respect to the Common Collateral is to hold a Lien on the
Common Collateral pursuant to the Noteholder Documents for the period and to the
extent granted therein and to receive a share of the proceeds thereof, if any,
after the Discharge of the Senior Lender Claims has occurred.
(c) Subject to the proviso in Section 3.1(a)(ii) above, (a) the Trustee,
for itself or on behalf of the Noteholders, agrees that the Trustee and the
Noteholders will not take any action that would hinder any exercise of remedies
undertaken by the Senior Agent under the Senior Loan Documents, including any
sale, lease, exchange, transfer or other disposition of the Common Collateral,
whether by foreclosure or otherwise, and (b) the Trustee, for itself and on
behalf of the Noteholders, hereby waives any and all rights it or the
Noteholders may have as a junior lien creditor or otherwise to object to the
manner in which the Senior Agent or the Senior Lenders seek to enforce or
collect the Senior Lender Claims or the Liens granted in any of the Senior
Lender Collateral.
3.2 Cooperation. Subject to the proviso in Section 3.1(a)(ii) above, the
Trustee, on behalf of itself and the Noteholders, agrees that, unless and until
the Discharge of Senior Lender Claims has occurred, it will not commence, or
join with any Person (other than the Senior Lenders and the Senior Agent upon
the request thereof) in commencing any enforcement, collection, execution, levy
or foreclosure action or proceeding with respect to any Lien held by it under
any of the Noteholder Documents or otherwise.
Section 4. Payments.
4.1 Application of Proceeds. As long as the Discharge of Senior Lender
Claims has not occurred, the cash proceeds of Common Collateral received in
connection with the sale of, or collection on, such Common Collateral upon the
exercise of remedies, shall be applied by the Senior Agent to the Senior Lender
Claims in such order as specified in the Senior Credit Agreement until Discharge
of Senior Lender Claims has occurred. Upon Discharge of the Senior Lender
Claims, the Senior Agent shall deliver to the Trustee any proceeds of Common
Collateral held by it in the same form as received, with any necessary
endorsements or as a court of competent jurisdiction may otherwise direct.
4.2 Payments Over. Any Common Collateral or proceeds thereof received by
the Trustee or any Noteholder in connection with the exercise of any right or
remedy (including setoff) relating to the Common Collateral in contravention of
this Agreement shall be segregated and held in trust and forthwith paid over to
the Senior Agent for the benefit of the Senior Lenders in the same form as
received, with any necessary endorsements or as a court of competent
jurisdiction may otherwise direct. The Senior Agent is hereby authorized to make
any such endorsements as agent for the Trustee or any such Noteholder. This
authorization is coupled with an interest and is irrevocable.
Section 5. Other Agreements.
5.1 Releases.
(a) If in connection with:
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(i) the exercise of the Senior Agent's remedies in respect of the
Common Collateral provided for in Section 3.1, including any sale, lease,
exchange, transfer or other disposition of such Common Collateral;
(ii) any sale, lease, exchange, transfer or other disposition of
Common Collateral permitted under the terms of the Senior Credit Agreement
(whether or not an event of default under, and as defined therein, has
occurred and is continuing) and permitted or not prohibited under Section
4.10 of the Indenture (Asset Sales); or
(iii) any agreement between the Senior Agent and the Borrower to
release the Senior Agent's Lien on any portion of the Common Collateral or
to release any Guarantor from its obligations under its guaranty of the
Senior Lender Claims, which release is not otherwise prohibited by the
terms of the Noteholder Documents;
the Senior Agent, for itself or on behalf of any of the Senior Lenders, releases
any of its Liens on any part of the Common Collateral (or any Guarantor from its
obligations under its guaranty of the Senior Lender Claims), the Liens, if any,
of the Trustee, for itself or for the benefit of the Noteholders, on such Common
Collateral (and the obligations of such Guarantor under its guaranty of the
Noteholder Claims) shall be automatically, unconditionally and simultaneously
released and the Trustee, for itself or on behalf of any such Noteholder,
promptly shall execute and deliver to the Senior Agent or the Borrower such
termination statements, releases and other documents as the Senior Agent or the
Borrower may request to effectively confirm such release.
(b) The Trustee, for itself and on behalf of the Noteholders, hereby
irrevocably constitutes and appoints the Senior Agent and any officer or agent
of the Administrative Agent, with full power of substitution, as its true and
lawful attorney-in-fact with full irrevocable power and authority in the place
and stead of the Trustee or such holder or in the Senior Agent's own name, from
time to time in the Senior Agent's discretion, for the purpose of carrying out
the terms of this Section 5.1, to take any and all appropriate action and to
execute any and all documents and instruments which may be necessary or
desirable to accomplish the purposes of this Section 5.1, including, without
limitation, any financing statements, endorsements or other instruments or
transfer or release.
5.2 Insurance. Unless and until the Discharge of Senior Lender Claims has
occurred, the Senior Agent and the Senior Lenders shall have the sole and
exclusive right, subject to the rights of the Borrower under the Senior Lender
Documents, to adjust settlement for any insurance policy covering the Common
Collateral in the event of any loss thereunder and to approve any award granted
in any condemnation or similar proceeding affecting the Common Collateral.
Unless and until the Discharge of Senior Lender Claims has occurred, all
proceeds of any such policy and any such award if in respect to the Common
Collateral shall be paid to the Senior Agent for the benefit of the Senior
Lenders to the extent required under the Senior Credit Agreement and thereafter
to the Trustee for the benefit of the Noteholders to the extent required under
the applicable Noteholder Documents and then to the owner of the subject
property or as a court of competent jurisdiction may otherwise direct; provided,
however, that from and after the Revolving Loan Commitment Termination Date, all
such proceeds shall be paid to the Senior Agent for the benefit of the Senior
Lenders until the Discharge of Senior Lender Claims has occurred and thereafter
to the Trustee for the benefit of the Noteholders to the extent required under
the applicable Noteholder Documents and then to the owner of the subject
property or as a court of competent jurisdiction may otherwise direct. If the
Trustee or any Noteholder shall, at any time, receive any proceeds of any such
insurance policy or any such award in contravention
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of this Agreement, it shall pay such proceeds over to the Senior Agent in
accordance with the terms of Section 4.2.
5.3 Amendments to Noteholder Collateral Documents.
(a) Without the prior written consent of the Senior Agent and the Required
Lenders, no Noteholder Collateral Document may be amended, supplemented or
otherwise modified or entered into to the extent such amendment, supplement or
modification, or the terms of any new Noteholder Collateral Document, would be
inconsistent with any of the terms of the Senior Lender Documents. The Trustee
agrees that each Noteholder Collateral Document shall include the following
language:
"Notwithstanding anything herein to the contrary, the lien and security
interest granted to the Trustee pursuant to this Agreement and the exercise
of any right or remedy by the Trustee hereunder are subject to the
provisions of the Intercreditor Agreement, dated as of March 25, 2002 (the
"Intercreditor Agreement") among Citicorp USA, Inc., as Senior Agent, and
U.S. Bank National Association, as Trustee, and Foamex L.P. In the event of
any conflict between the terms of the Intercreditor Agreement and this
Agreement, the terms of the Intercreditor Agreement shall govern."
In addition, the Trustee agrees that each Noteholder Mortgage covering any
Common Collateral shall contain such other language as the Senior Agent may
reasonably request to reflect the subordination of such Noteholder Mortgage to
the Mortgage covering such Common Collateral.
(b) In the event the Senior Agent or the Senior Lenders enter into any
amendment, waiver or consent in respect of any of the Senior Lender Collateral
Documents for the purpose of adding to, or deleting from, or waiving or
consenting to any departures from any provisions of, any Senior Lender
Collateral Document or changing in any manner the rights of the Senior Agent,
the Senior Lenders, the Borrower or the Guarantors thereunder, then such
amendment, waiver or consent shall apply automatically to any comparable
provision of the Comparable Noteholder Collateral Document without the consent
of the Trustee or the Noteholders and without any action by the Trustee, the
Borrower or any Guarantor; provided, however, (A) that no such amendment, waiver
or consent shall have the effect of removing assets subject to the Lien of the
Noteholder Collateral Documents, except to the extent that a release of such
Lien is permitted by Section 5.1 and (B) notice of such amendment, waiver or
consent shall have been given to the Trustee.
5.4 Rights As Unsecured Creditors. Notwithstanding anything to the contrary
in this Agreement, the Trustee and the Noteholders may exercise rights and
remedies as an unsecured creditor against the Borrower and its Subsidiaries in
accordance with the terms of the Noteholder Documents and applicable law.
Nothing in this Agreement shall prohibit the receipt by the Trustee or any
Noteholders of the required payments of interest and principal so long as such
receipt is not the direct or indirect result of the exercise by the Trustee or
any Noteholder of rights or remedies as a secured creditor or enforcement of any
Lien held by any of them in contravention of this Agreement. In the event the
Trustee or any Noteholder becomes a judgment lien creditor in respect of Common
Collateral as a result of its enforcement of its rights as an unsecured
creditor, such judgment lien shall be subordinated to the Liens securing Senior
Lender Claims on the same basis as the other Liens securing the Noteholder
Claims are so subordinated to such Senior Lender Claims under this Agreement.
Nothing in this Agreement modifies any rights or remedies the Senior Agent or
the Senior Lenders may have with respect to the Senior Lender Collateral.
10
5.5 Bailee for Perfection.
(a) The Senior Agent agrees to hold the Pledged Collateral that is part of
the Common Collateral in its possession or control (or in the possession or
control of its agents or bailees) as bailee for the Trustee and any assignee
solely for the purpose of perfecting the security interest granted in such
Pledged Collateral pursuant to the Noteholder Security Agreement, subject to the
terms and conditions of this Section 5.5.
(b) Until the Discharge of Senior Lender Claims has occurred, the Senior
Agent shall be entitled to deal with the Pledged Collateral in accordance with
the terms of the Senior Lender Documents as if the Lien of the Trustee under the
Noteholder Security Agreement did not exist. The rights of the Trustee shall at
all times be subject to the terms of this Agreement and to the Senior Agent's
rights under the Senior Lender Documents.
(c) The Senior Agent shall have no obligation whatsoever to the Trustee or
any Noteholder to assure that the Pledged Collateral is genuine or owned by the
Borrower or one of its Subsidiaries or to preserve rights or benefits of any
Person except as expressly set forth in this Section 5.5. The duties or
responsibilities of the Senior Agent under this Section 5.5 shall be limited
solely to holding the Pledged Collateral as bailee for the Trustee for purposes
of perfecting the Lien held by the Trustee.
(d) The Senior Agent shall not have by reason of the Noteholder Security
Agreement or this Agreement or any other document a fiduciary relationship in
respect of the Trustee or any Noteholder.
(e) Upon the Discharge of Senior Lender Claims, the Senior Agent shall
deliver to the Trustee the Pledged Collateral together with any necessary
endorsements (or otherwise allow such Senior Agent to obtain control of such
Pledged Collateral) or as a court of competent jurisdiction may otherwise
direct.
5.6 When Discharge of Senior Lender Claims Deemed to Not Have Occurred. If
at any time after the Discharge of Senior Lender Claims has occurred the
Borrower designates any Future First-Lien Credit Facility to be the "Senior
Credit Agreement" hereunder, then such Discharge of Senior Lender Claims shall
automatically be deemed not to have occurred for all purposes of this Agreement
(other than with respect to any actions taken prior to the date of such
designation as a result of the occurrence of such first Discharge of Senior
Lender Claims), and such Future First-Lien Credit Facility shall automatically
be treated as the Senior Credit Agreement for all purposes of this Agreement,
including without limitation for purposes of the Lien priorities and rights in
respect of Collateral set forth herein. Upon receipt of notice of such
designation (including the identity of the new Senior Agent), the Trustee shall
promptly deliver to the Senior Agent the Pledged Collateral together with any
necessary endorsements (or otherwise allow such Senior Agent to obtain control
of such Pledged Collateral).
Section 6. Insolvency or Liquidation Proceedings.
6.1 Financing Issues. If any Borrower or Guarantor shall be subject to any
Insolvency or Liquidation Proceeding and the Senior Agent shall desire to permit
the use of cash collateral or to permit the Borrower to obtain financing under
section 363 or section 364 of the Bankruptcy Code ("DIP Financing"), then the
Trustee, on behalf of itself and the Noteholders, agrees that it will raise no
objection to such use or DIP Financing and will not request adequate protection
or any other relief in connection therewith (except to the extent permitted by
Section
11
6.3) and, to the extent the Liens securing the Senior Lender Claims are
subordinated or pari passu with such DIP Financing, will subordinate its Liens
in the Common Collateral to such DIP Financing (and all Obligations relating
thereto) on the same basis as the other Liens securing the Noteholder Claims are
so subordinated to Senior Lender Claims under this Agreement.
6.2 Relief from the Automatic Stay. Until the Discharge of Senior Lender
Claims has occurred, the Trustee, on behalf of itself and the Noteholders,
agrees that none of them shall seek relief from the automatic stay or any other
stay in any Insolvency or Liquidation Proceeding in respect of the Common
Collateral, without the prior written consent of the Senior Agent and the
Required Lenders.
6.3 Adequate Protection. The Trustee, on behalf of itself and the
Noteholders, agrees that none of them shall contest (or support any other Person
contesting) (a) any request by the Senior Agent or the Senior Lenders for
adequate protection or (b) any objection by the Senior Agent or the Senior
Lenders to any motion, relief, action or proceeding based on the Senior Agent or
the Senior Lenders claiming a lack of adequate protection. Notwithstanding the
foregoing contained in this Section 6.3, in any Insolvency or Liquidation
Proceeding, (i) if the Senior Lenders (or any subset thereof) are granted
adequate protection in the form of additional collateral in connection with any
DIP Financing or use of its cash collateral under section 363 or section 364 of
the Bankruptcy Code, then the Trustee, on behalf of itself or any of the
Noteholders, may seek or request adequate protection in the form of a
replacement Lien on such additional collateral, which Lien is subordinated to
the Liens securing the Senior Lender Claims and such DIP Financing (and all
Obligations relating thereto) on the same basis as the other Liens securing the
Noteholder Claims are so subordinated to the Senior Lender Claims under this
Agreement, and (ii) in the event the Trustee, on behalf of itself and the
Noteholders, seeks or requests adequate protection and such adequate protection
is granted in the form of additional collateral, then the Trustee, on behalf of
itself or any of the Noteholders, agrees that the Senior Agent shall also be
granted a senior Lien on such additional collateral as security for the Senior
Lender Claims and any such DIP Financing and that any Lien on such additional
collateral securing the Noteholder Claims shall be subordinated to the Liens on
such collateral securing the Senior Lender Claims and any such DIP Financing
(and all Obligations relating thereto) and any other Liens granted to the Senior
Lenders as adequate protection on the same basis as the other Liens securing the
Noteholder Claims are so subordinated to such Senior Lender Claims under this
Agreement.
6.4 No Waiver. Nothing contained herein shall prohibit or in any way limit
the Senior Agent or any Senior Lender from objecting in any Insolvency or
Liquidation Proceeding or otherwise to any action taken by the Trustee or any of
the Noteholders, including, without limitation, the seeking by the Trustee or
any Noteholder of adequate protection or the asserting by the Trustee or any
Noteholder of any of its rights and remedies under the Noteholder Documents or
otherwise.
6.5 Preference Issues. If any Senior Lender is required in any Insolvency
or Liquidation Proceeding or otherwise to turn over or otherwise pay to the
estate of the Borrower or any Guarantor any amount (a "Recovery"), then the
Senior Lender Claims shall be reinstated to the extent of such Recovery and the
Senior Lenders shall be entitled to a Discharge of Senior Lender Claims with
respect to all such recovered amounts. If this Agreement shall have been
terminated prior to such Recovery, this Agreement shall be reinstated in full
force and effect, and such prior termination shall not diminish, release,
discharge, impair or otherwise affect the obligations of the parties hereto from
such date of reinstatement.
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Section 7. Reliance; Waivers; etc.
7.1 Reliance. The consent by the Senior Lenders to the execution and
delivery of the Noteholder Documents and the grant to the Trustee on behalf of
the Noteholders of a Lien on the Common Collateral and all loans and other
extensions of credit made or deemed made on and after the date hereof by the
Senior Lenders to the Borrower shall be deemed to have been given and made in
reliance upon this Agreement. The Trustee, on behalf of itself and the
Noteholders, acknowledges that it and the Noteholders have, independently and
without reliance on the Senior Agent or any Senior Lender, and based on
documents and information deemed by them appropriate, made their own credit
analysis and decision to enter into the Indenture, this Agreement and the
transactions contemplated hereby and thereby and they will continue to make
their own credit decision in taking or not taking any action under the Indenture
or this Agreement.
7.2 No Warranties or Liability. The Trustee, on behalf of itself and
Noteholders, acknowledges and agrees that each of the Senior Agent and the
Senior Lenders have made no express or implied representation or warranty,
including, without limitation, with respect to the execution, validity,
legality, completeness, collectibility or enforceability of any of the Senior
Lender Documents. The Senior Lenders will be entitled to manage and supervise
their respective loans and extensions of credit to the Borrower in accordance
with law and as they may otherwise, in their sole discretion, deem appropriate,
and the Senior Lenders may manage their loans and extensions of credit without
regard to any rights or interests that the Trustee or any of the Noteholders
have in the Common Collateral or otherwise, except as otherwise provided in this
Agreement. Neither the Senior Agent nor any Senior Lender shall have any duty to
the Trustee or any of the Noteholders to act or refrain from acting in a manner
which allows, or results in, the occurrence or continuance of an event of
default or default under any agreements with the Borrower (including, without
limitation, the Noteholder Documents), regardless of any knowledge thereof which
they may have or be charged with.
7.3 No Waiver of Lien Priorities.
(a) No right of the Senior Lenders, the Senior Agent or any of them to
enforce any provision of this Agreement shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Borrower
or the Guarantors or by any act or failure to act by any Senior Lender or the
Senior Agent, or by any noncompliance by any Person with the terms, provisions
and covenants of this Agreement, any of the Senior Lender Documents or any of
the Noteholder Documents, regardless of any knowledge thereof which the Senior
Agent or the Senior Lenders, or any of them, may have or be otherwise charged
with;
(b) Without in any way limiting the generality of the foregoing paragraph
(but subject to the rights of the Borrower and the Guarantors under the Senior
Lender Documents), the Senior Lenders, the Senior Agent and any of them, may, at
any time and from time to time, without the consent of, or notice to, the
Trustee or any Noteholder, without incurring any liabilities to the Trustee or
any Noteholder and without impairing or releasing the lien priorities and other
benefits provided in this Agreement (even if any right of subrogation or other
right or remedy of the Trustee or any Noteholder is affected, impaired or
extinguished thereby) do any one or more of the following:
(i) change the manner, place or terms of payment or change or extend
the time of payment of, or renew, exchange, amend, increase or alter, the
terms of any of the Senior Lender Claims or any Lien in any Senior Lender
Collateral or guaranty thereof or any liability of the Borrower or any
Guarantor, or any liability incurred directly or
13
indirectly in respect thereof (including, without limitation, any increase
in or extension of the Senior Lender Claims, without any restriction as to
the amount, tenor or terms of any such increase or extension or otherwise
amend, renew, exchange, extend, modify or supplement in any manner any
Liens held by the Senior Lenders, the Senior Lender Claims or any of the
Senior Lender Documents;
(ii) sell, exchange, release, surrender, realize upon, enforce or
otherwise deal with in any manner and in any order any part of the Senior
Lender Collateral or any liability of the Borrower or any Guarantor to the
Senior Lenders or the Senior Agent, or any liability incurred directly or
indirectly in respect thereof;
(iii) settle or compromise any Senior Lender Claim or any other
liability of the Borrower or any Guarantor or any security therefor or any
liability incurred directly or indirectly in respect thereof and apply any
sums by whomsoever paid and however realized to any liability (including,
without limitation, the Senior Lender Claims) in any manner or order; and
(iv) exercise or delay in or refrain from exercising any right or
remedy against the Borrower or any security or any Guarantor or any other
Person, elect any remedy and otherwise deal freely with the Borrower and
the Senior Lender Collateral and any security and any guarantor or any
liability of the Borrower or any Guarantor to the Senior Lenders or any
liability incurred directly or indirectly in respect thereof;
(c) The Trustee, on behalf of itself and the Noteholders, also agrees that
the Senior Lenders and the Senior Agent shall have no liability to the Trustee
or any Noteholder, and the Trustee, on behalf of itself and the Noteholders,
hereby waives any claim against any Senior Lender or the Senior Agent, arising
out of any and all actions which the Senior Lenders or the Senior Agent may take
or permit or omit to take with respect to: (i) the Senior Lender Documents, (ii)
the collection of the Senior Lender Claims or (iii) the foreclosure upon, or
sale, liquidation or other disposition of, the Senior Lender Collateral. The
Trustee, on behalf of itself and the Noteholders, agrees that the Senior Lenders
and the Senior Agent have no duty to them in respect of the maintenance or
preservation of the Senior Lender Collateral, the Senior Lender Claims or
otherwise; and
(d) The Trustee, on behalf of itself and the Noteholders, agrees not to
assert and hereby waives, to the fullest extent permitted by law, any right to
demand, request, plead or otherwise assert or otherwise claim the benefit of,
any marshalling, appraisal, valuation or other similar right that may otherwise
be available under applicable law or any other similar rights a junior secured
creditor may have under applicable law.
7.4 Obligations Unconditional. All rights, interests, agreements and
obligations of the Senior Agent and the Senior Lenders and the Trustee and the
Noteholders, respectively, hereunder shall remain in full force and effect
irrespective of:
(a) any lack of validity or enforceability of the Senior Lender Documents
or any Noteholder Documents;
(b) any change in the time, manner or place of payment of, or in any other
terms of, all or any of the Senior Lender Claims or Noteholder Claims, or any
amendment or waiver or other modification, including, without limitation, any
increase in the amount thereof, whether by
14
course of conduct or otherwise, of the terms of the Senior Credit Agreement or
any other Senior Lender Document or of the terms of the Indenture or any other
Noteholder Document;
(c) any exchange of any security interest in any Common Collateral or any
other collateral, or any amendment, waiver or other modification, whether in
writing or by course of conduct or otherwise, of all or any of the Senior Lender
Claims or Noteholder Claims or any guarantee thereof;
(d) the commencement of any Insolvency or Liquidation Proceeding in respect
of the Borrower or any Guarantor; or
(e) any other circumstances which otherwise might constitute a defense
available to, or a discharge of, any Borrower or Guarantor in respect of the
Senior Lender Claims, or of the Trustee or any Noteholder in respect of this
Agreement.
Section 8. Miscellaneous.
8.1 Conflicts. In the event of any conflict between the provisions of this
Agreement and the provisions of the Senior Lender Documents or the Noteholder
Documents, the provisions of this Agreement shall govern.
8.2 Continuing Nature of this Agreement. This Agreement shall continue to
be effective until the Discharge of Senior Lender Claims shall have occurred.
This is a continuing agreement of lien subordination and the Senior Lenders may
continue, at any time and without notice to the Trustee or any Noteholder, to
extend credit and other financial accommodations and lend monies to or for the
benefit of the Borrower constituting Senior Lender Claims on the faith hereof.
The Trustee, on behalf of itself and the Noteholders, hereby waives any right it
may have under applicable law to revoke this Agreement or any of the provisions
of this Agreement. The terms of this Agreement shall survive, and shall continue
in full force and effect, in any Insolvency or Liquidation Proceeding.
8.3 Amendments; Waivers. No amendment, modification or waiver of any of the
provisions of this Agreement by the Trustee or the Senior Agent shall be deemed
to be made unless the same shall be in writing signed on behalf of the party
making the same or its authorized agent and each waiver, if any, shall be a
waiver only with respect to the specific instance involved and shall in no way
impair the rights of the parties making such waiver or the obligations of the
other parties to such party in any other respect or at any other time. The
Borrower and Guarantors shall not have any right to amend, modify or waive any
provision of this Agreement without the consent of the Trustee or the Senior
Agent, as applicable, nor shall any consent or signed writing be required of any
of them to effect any amendment, modification or waiver of any provision of this
Agreement, except that no amendment, modification or waiver affecting any
obligation or right of the Borrower or any Guarantor hereunder shall be made
without the consent of the Borrower.
8.4 Information Concerning Financial Condition of the Borrower and its
Subsidiaries. The Senior Agent and the Senior Lenders, on the one hand, and the
Trustee and the Noteholders, on the other hand, shall each be responsible for
keeping themselves informed of (a) the financial condition of the Borrower and
its Subsidiaries and all endorsers and/or guarantors of the Noteholder Claims or
the Senior Lender Claims and (b) all other circumstances bearing upon the risk
of nonpayment of the Noteholder Claims or the Senior Lender Claims. The Senior
Agent and the Senior Lenders shall have no duty to advise the Trustee or any
Noteholder of information
15
known to it or them regarding such condition or any such circumstances or
otherwise. In the event the Senior Agent or any of the Senior Lenders, in its or
their sole discretion, undertakes at any time or from time to time to provide
any such information to the Trustee or any Noteholder, it or they shall be under
no obligation (x) to provide any additional information or to provide any such
information on any subsequent occasion, (y) to undertake any investigation or
(z) to disclose any information which, pursuant to accepted or reasonable
commercial finance practices, such party wishes to maintain confidential.
8.5 Subrogation. The Trustee, on behalf of itself and the Noteholders,
hereby waives any rights of subrogation it may acquire as a result of any
payment hereunder until the Discharge of Senior Lender Claims has occurred.
8.6 Application of Payments. All payments received by the Senior Lenders
may be applied, reversed and reapplied, in whole or in part, to such part of the
Senior Lender Claims as the Senior Lenders, in their sole discretion, deem
appropriate. The Trustee, on behalf of itself and the Noteholders, assents to
any extension or postponement of the time of payment of the Senior Lender Claims
or any part thereof and to any other indulgence with respect thereto, to any
substitution, exchange or release of any security which may at any time secure
any part of the Senior Lender Claims and to the addition or release of any other
Person primarily or secondarily liable therefor.
8.7 Consent to Jurisdiction; Waivers. The parties hereto consent to the
jurisdiction of any state or federal court located in New York, New York, and
consent that all service of process may be made by registered mail directed to
such party as provided in Section 8.8 below for such party. Service so made
shall be deemed to be completed three (3) days after the same shall be posted as
aforesaid. The parties hereto waive any objection to any action instituted
hereunder based on forum non conveniens, and any objection to the venue of any
action instituted hereunder. Each of the parties hereto waives any right it may
have to trial by jury in respect of any litigation based on, or arising out of,
under or in connection with this Agreement or any other Loan Document, or any
course of conduct, course of dealing, verbal or written statement or action of
any party hereto.
8.8 Notices. All notices to the Noteholders and the Senior Lenders
permitted or required under this Agreement may be sent to the Trustee and the
Senior Agent, respectively. Unless otherwise specifically provided herein, any
notice or other communication herein required or permitted to be given shall be
in writing and may be personally served, telecopied, electronically mailed or
sent by courier service or U.S. mail and shall be deemed to have been given when
delivered in person or by courier service, upon receipt of a telecopy or
electronic mail or four Business Days after deposit in the U.S. mail (registered
or certified, with postage prepaid and properly addressed). For the purposes
hereof, the addresses of the parties hereto shall be as set forth below each
party's name on the signature pages hereto, or, as to each party, at such other
address as may be designated by such party in a written notice to all of the
other parties.
8.9 Further Assurances. The Trustee, on behalf of itself and the
Noteholders, agrees that each of them shall take such further action and shall
execute and deliver to the Senior Agent and the Senior Lenders such additional
documents and instruments (in recordable form, if requested) as the Senior Agent
or the Senior Lenders may reasonably request to effectuate the terms of and the
lien priorities contemplated by this Agreement.
8.10 Governing Law. This Agreement has been delivered and accepted at and
shall be deemed to have been made at New York, New York and shall be
interpreted, and the
16
rights and liabilities of the parties bound hereby determined, in accordance
with the laws of the State of New York.
8.11 Binding on Successors and Assigns. This Agreement shall be binding
upon the Senior Agent, the Senior Lenders, the Trustee, the Noteholders and
their respective permitted successors and assigns.
8.12 Specific Performance. The Senior Agent may demand specific performance
of this Agreement. The Trustee, on behalf of itself and the Noteholders hereby
irrevocably waives any defense based on the adequacy of a remedy at law and any
other defense which might be asserted to bar the remedy of specific performance
in any action which may be brought by the Senior Agent.
8.13 Section Titles; Time Periods. The section titles contained in this
Agreement are and shall be without substantive meaning or content of any kind
whatsoever and are not a part of this Agreement. In the computation of time
periods, unless otherwise specified, the word "from" means "from and including"
and each of the words "to" and "until" means "to but excluding" and the word
"through" means "to and including".
8.14 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be an original and all of which shall together
constitute one and the same document.
8.15 Authorization. By its signature, each Person executing this Agreement
on behalf of a party hereto represents and warrants to the other parties hereto
that it is duly authorized to execute this Agreement.
8.16 No Third Party Beneficiaries. This Agreement and the rights and
benefits hereof shall inure to the benefit of the Senior Agent and the Senior
Lenders and their respective successors and assigns and, to the extent
applicable, the Borrower, the Guarantors, the Trustee and the Noteholders and
their respective permitted successors and assigns. No other Person, shall have
or be entitled to assert rights or benefits hereunder. Notwithstanding anything
to the contrary in this Agreement, the Borrower shall cause the Guarantors to
comply with the terms of this Agreement.
8.17 Effectiveness. This Agreement shall become effective when executed and
delivered by the parties hereto. This Agreement shall be effective both before
and after the commencement of any Insolvency or Liquidation Proceeding. All
references to the Borrower or Guarantors shall include any Borrower or Guarantor
as debtor and debtor-in-possession and any receiver or trustee for the Borrower
or any Guarantor (as the case may be) in any Insolvency or Liquidation
Proceeding.
17
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
Senior Agent:
CITICORP USA, INC., as Senior Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
Address:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy no.: (▇▇▇) ▇▇▇-▇▇▇▇
email address: ▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
Trustee:
U.S. BANK NATIONAL ASSOCIATION, as
Collateral Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy no.: (▇▇▇) ▇▇▇-▇▇▇▇
email address: ▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
FOAMEX L.P.
By: FMXI, Inc.,
its Managing General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
Address:
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopy no: (▇▇▇) ▇▇▇-▇▇▇▇
email address: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇