AMENDMENT NO. 1 TO
DEBTOR-IN-POSSESSION
CREDIT AGREEMENT
AMENDMENT NO. 1 TO
DEBTOR-IN-POSSESSION CREDIT AGREEMENT (this " Amendment ") dated as of March
24, 2009 by and among Foamex L.P., a Delaware limited partnership
(" Borrower ") and the financial institutions listed on the
signature pages hereof (the " Lenders "). Capitalized terms
used in this Amendment but not otherwise defined herein shall have
the meanings given to such terms in the Credit Agreement referred
to below (as applicable).
RECITALS:
WHEREAS, the Borrower, certain Affiliates, the Lenders,
and Bank of America, N.A. as administrative agent (the "
Administrative Agent ") entered into a Debtor-In-Possession
Credit Agreement dated as of February 24, 2009 (the " Credit
Agreement ");
WHEREAS , the Borrower has requested that the Lenders
amend the Credit Agreement as hereinafter provided; and
WHEREAS, the Lenders are willing to amend the Credit
Agreement on the terms and conditions set forth herein.
NOW, THEREFORE,
in consideration of the premises
and the covenants and agreements contained herein, the parties
hereto agree as follows:
Section
1. Amendment to Annex A of the Credit
Agreement . The
definition of "Stated Termination Date" in Annex A of the Credit
Agreement is hereby amended and restated in its entirety to read as
follows:
" Stated Termination Date "
means 120 days from the Filing Date unless (a) Borrower or any
other Person fails to file an APA with the Bankruptcy Court within
35 days after the Filing Date and (b) Borrower has complied and
continues to comply with Section 7.13(e) , then, upon the occurrence of all events in
clauses (a) and (b) above, the Stated Termination Date shall be the
date that is the earlier of (i)(A) 35 days from the Filing
Date plus
(B) the number of days that elapsed
from the period beginning on the 35th day after the Filing Date and
ending on the day that the Borrower delivers an APA for filing with
the Bankruptcy Court plus (C) 60 days and (ii) 180 days after the Filing
Date. In no event shall the Stated Termination Date extend beyond
180 days from the Filing Date. If at any time pursuant to the
definition above, the "Stated Termination Date" will be a day that
is not a Business Day, the "Stated Termination Date" shall be
deemed to be the Business Day immediately following such day unless
such Business Day is more than 180 days from the Filing Date, in
which case, the "Stated Termination Date" shall be deemed to be the
Business Day immediately preceding such day.
Section
2. Representations and Warranties.
The Borrower represents and warrants
that:
(a) subject
to the entry and terms of the Financing Orders, it has all
requisite limited partnership power and authority to enter into
this Amendment and to carry out the transactions contemplated
hereby;
(b) subject
to the entry and terms of the Financing Orders, it has duly
authorized by all necessary limited partnership or other action the
execution, delivery and performance of this Amendment;
(c) this
Amendment and the Credit Agreement as amended hereby are its valid
and binding obligations, enforceable agai
