[EXECUTION FORM]
AMENDMENT NO. 5 TO CREDIT AGREEMENT
This AMENDMENT NO. 5 TO CREDIT AGREEMENT, dated as of March 3 0, 2001 (the
"Amendment"), amends in certain respects the Credit Agreement dated as of
February 27, 1998 (as amended, amended and restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among Foamex Carpet
Cushion, Inc. ("New GFI" or the "Borrower"), the institutions from time to time
party thereto as Lenders, the institutions from time to time party thereto as
Issuing Banks, Citicorp USA, Inc. ("Citicorp") as collateral agent (the
"Collateral Agent") and The Bank of Nova Scotia, as funding agent (the "Funding
Agent", and together with the Collateral Agent, the "Administrative Agents").
W I T N E S S E T H:
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WHEREAS, the Borrower (which has executed this Amendment) has requested the
undersigned, which constitute the Requisite Lenders, to amend the Credit
Agreement as set forth herein. The Lenders party hereto have agreed to amend the
Credit Agreement to accommodate the request of the Borrower contained herein,
subject to the terms set forth herein.
NOW, THEREFORE, in consideration of the above recital of the Borrower, the
Lenders party hereto and the Administrative Agents agree as follows:
SECTION 1. Defined Terms. Terms defined in the Credit Agreement and not
otherwise defined herein have the meanings given such terms in the Credit
Agreement.
SECTION 2. Amendments to the Credit Agreement. The Credit Agreement is
hereby amended as follows:
SECTION 2. 1. Amendment to Section 9.04 of the Credit Agreement. Clause
(ii) of Section 9.04 of the Credit Agreement is hereby amended and restated in
its entirety to read as follows: "(ii) (x) Investments in Cash Equivalents and
(y) Investments (I) made in connection with the Partners in Progress Volume
Rebate Incentive Program as described in Exhibit A to Amendment No. 5 to this
Agreement, dated as of March 30, 2001 among the parties hereto, (II) held in an
account with SEI Investments Management Corporation ("SEI") (or such other
investment manager reasonably acceptable to the Administrative Agents), (III)
made subject to a Lien in favor of the Collateral Agent pursuant to the Account
Control Agreement, dated as of March 30, 2001 (as amended, modified, redated,
amended and restated or otherwise changes in accordance with its terms being the
"Account Control Agreement"), among the Borrower, the Collateral Agent and SEI
and (IV) which constitute Cash Equivalents (as defined in the Account Control
Agreement).
SECTION 3. Conditions to Effectiveness. This Amendment shall become
effective on the date hereof (the "Amendment Effective Date"), provided, that
the following conditions precedent have been satisfied (unless waived by the
Requisite Lenders or unless the deadline for delivery has been extended by the
Administrative Agents):
(i) Documents. The Administrative Agents shall have received on or before
the Amendment Effective Date all of the following in form and substance
satisfactory to the Requisite Lenders:
(a) this Agreement duly executed by the parties thereto;
(b) the Account Control Agreement duly executed by the parties thereto; and
(c) such additional documentation as the Administrative Agents or any of
the Requisite Lenders may reasonably request.
(ii) Consents. The Borrower shall have received all material consents and
authorizations required pursuant to any material Contractual Obligation with any
other Person and shall have obtained all material consents and authorizations
of, and effected all notices to and filings with, any Governmental Authority, in
each case, as may be necessary to allow the Borrower to lawfully and without
risk of rescission, execute, deliver and perform, in all material respects, its
obligations under this Amendment and the Transaction Documents to which it is,
or is to be, a party and each other agreement or instrument to be executed and
delivered by it pursuant thereto or in connection therewith.
(iii) No Legal Impediments. No law, regulation, order, judgment or decree
of any Governmental Authority shall, and neither Administrative Agent shall have
received any notice that litigation is pending or threatened which is likely to,
impose or result in the imposition of a Material Adverse Effect.
(iv) No Change in Condition. No change in the condition (financial or
otherwise), business, performance, properties, assets, operations or prospects
of the Borrower or any of its Subsidiaries and its subsidiaries shall have
occurred since December 31, 1998, which change, in the judgment of the Lenders,
will have or is reasonably likely to have a Material Adverse Effect.
(v) No Default. After giving effect to this Amendment, no Event of Default
or Potential Event of Default shall have occurred.
(vi) Representations and Warranties. All of the representations and
warranties contained in Section 6.01 of the Credit Agreement and in any of the
other Loan Documents shall be true and correct in all material respects on and
as of the Amendment Effective Date.
SECTION 4. Representations and Warranties. The Borrower hereby represents
and warrants to the Lenders party hereto that (i) the execution, delivery and
performance of this Amendment by the Borrower are within the Borrower's
corporate powers and have been duly authorized by all necessary corporate
action, and (ii) this Amendment constitutes the legal, valid and binding
obligation of the Borrower, enforceable against the Borrower, in accordance with
its terms, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or limiting creditors'
rights generally or by equitable principles generally.
SECTION 5. Reference to and Effect on the Loan Documents.
5.1 Upon the effectiveness of this Amendment, on and after the date hereof
each reference in the Credit Agreement to "this Agreement", "hereunder",
"hereof', "herein" or words of like import, and each reference in the other Loan
Documents to the Credit Agreement, shall mean and be a reference to the Credit
Agreement as amended hereby.
5.2 Except as specifically amended above, all of the terms of the Credit
Agreement and all other Loan Documents shall remain unchanged and in full force
and effect.
5.3 The execution, delivery and effectiveness of this Amendment shall not,
except as expressly provided herein, operate as a waiver of any right, power or
remedy or any Lender or the Administrative Agents under the Credit Agreement or
any of the Loan Documents, nor constitute a waiver of any provision of the
Credit Agreement or any of the Loan Documents.
5.4 As of the Amendment Effective Date of, and after giving effect to, this
Amendment, the Borrower is in compliance in all material respects with all
applicable terms, conditions and covenants of the Credit Agreement and other
Loan Documents.
5.5 Upon delivery to New GFI by PricewaterhouseCoopers of the originally
executed Audit Opinion, if such Audit Opinion shall not be substantially in the
form and substance of Annex I hereto, such occurrence shall constitute an Event
of Default under the Credit Agreement.
SECTION 6. Execution in Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
SECTION 7. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
(WITHOUT REGARD TO NEW YORK CONFLICT OF LAWS PRINCIPLES).
SECTION 8. Guarantor Consent. By its signature below, Foamex International
consents to this Amendment in its individual capacity, and as a guarantor under
the Foamex International Guaranty, and as a guarantor hereby affirms its
obligations under such guaranty.
SECTION 9. Headings. Section headings in this Amendment are included herein
for convenience of reference only and shall not constitute a part of this
Amendment or be given any substantive effect.
SECTION 10. Successors and Assigns. This Amendment shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns.
IN WITNESS WHEREOF, this Amendment has been duly executed as of the date
first above written.
FOAMEX CARPET CUSHION, INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
FOAMEX INTERNATIONAL INC., individually
and as a guarantor
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
CITICORP USA, INC., as Administrative
Agent, Collateral Agent, Intercreditor
Agent and individually as a Lender
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
THE BANK OF NOVA SCOTIA, as
Administrative Agent, Funding Agent,
individually as a Lender and as
Intercreditor Agent
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
