EXECUTION COPY
AMENDMENT NO. 1 TO THE ASSET
PURCHASE AGREEMENT
THIS AMENDMENT No. 1 TO THE ASSET
PURCHASE AGREEMENT (this “ Amendment ”) is made
as of April 30, 2009 by and among MP Foam DIP LLC, a Delaware
limited liability company(“ Purchaser ”), and
Foamex International Inc., a Delaware corporation (“
Foamex Inc. ”), Foamex L.P., a Delaware limited
partnership (“ Foamex ”), FMXI, LLC, a Delaware
limited liability company (“ FMXI ”), Foamex
Latin America, Inc., a Delaware corporation (“ Foamex
Latin America ”), Foamex Asia, Inc., a Delaware
corporation (“ Foamex Asia ”), Foamex Carpet
Cushion LLC, a Delaware limited liability company (“
Foamex Carpet ”), Foamex Mexico, Inc., a
Delawarecorporation (“ Foamex Mexico ”) and
Foamex Canada Inc., a Canadian corporation (“ Foamex
Canada ”, and, together with Foamex Inc., Foamex, FMXI,
Foamex Latin America, Foamex Asia, Foamex Carpet and Foamex Mexico,
“ Sellers ”).
W I T N E S S E T H :
WHEREAS, Purchaser and Sellers have
entered into that certain Asset Purchase Agreement, dated as of
March 25, 2009, relating to the purchase and sale of certain assets
of Sellers (the “ Purchase Agreement
”);
WHEREAS, on April 7, 2009 a hearing
was held in the Bankruptcy Court to consider the Approval Order,
which hearing was adjourned and continued on April 9, 2009
(together, the “ Bid Procedures Hearing ”), and
during the Bid Procedures Hearing and in the Approval Order, the
Bankruptcy Court, among other things, declined to approve the
Break-Up Fee, but did approve the Reimbursable Expenses, as
provided for in the Purchase Agreement;
WHEREAS, during the Bid Procedures
Hearing, the Bankruptcy Court judge indicated that at the Sale
Hearing the Bankruptcy Court would be willing to consider a
break-up fee in favor of Purchaser in the event that Purchaser is
not the winning bidder in the Auction (if any);
WHEREAS, the parties hereto wish to
amend certain terms of the Purchase Agreement to reflect the
outcome of the Bid Procedures Hearing and the actual Approval Order
entered by the Bankruptcy Court, as set forth herein;
and
WHEREAS, all capitalized terms not
otherwise defined herein shall have such meanings as ascribed to
them in the Purchase Agreement;
NOW THEREFORE, in consideration of
the premises and mutual covenants contained herein, the parties
hereto hereby agree as follows:
1.
Break-Up Fee . Notwithstanding anything to the contrary
contained in the Purchase Agreement, including Section 12.11(c)
thereof, in no event shall the Break-Up Fee be payable, and
therefore Section 10.2(b) of the Purchase Agreement shall be
inoperable solely to the extent that it applies to the Break-Up
Fee, unless the Break-Up Fee is approved by the Bankruptcy Court
and, in such case, only under the circumstances and in the amount
as approved
by the Bankruptcy Court, provided
that any Break-Up Fee in excess of $2,000,000 shall also require
the approval of Sellers.
2.
Definition of “Approval Order”.
(a) The
definition of “Approval Order” set forth in Section 1.1
of the Purchase Agreement shall be amended and restated in its
entirety as follows:
“ Approval Order
” shall mean an order approving, among other things, (a) the
Bidding Procedures, (b) the right of Purchaser to credit bid the
Purchaser DIP Claim (in part or in whole) towards the Purchase
Price (to the extent permissible under section 363(k) of the
Bankruptcy Code) and (c) the Reimbursable Expenses, substantially
in the form attached hereto as Exhibit A .”
(b) Exhibit
A to the Purchase Agreement shall be amended and restated in its
entirety as set forth on Exhibit A to this Amendment.
3.
Covenants, Conditions and Other Provisions Regarding Break-Up
Fee.
(a) Purchaser
waives the performance by Sellers of any covenant or agreement
contained in the Purchase Agreement which would obligate any Seller
to obtain the entry of the Approval Order that contains the
Break-Up Fee, including any such covenant or agreement contained in
Section 7.6 of the Purchase Agreement.
(b) For
the purpose
