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Home My WebLink About1990-393 I SBEOOOOl-376\es 09\11\90 4:15 RESOLUTION NO. fO.J'l3 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO, CALIFORNIA, APPROVING THE FORM OF A CERTAIN SECOND AMENDMENT TO THE LOAN AGREEMENT IN CONNECTION WITH THE $1,000,000 AGGREGATE PRINCIPAL AMOUNT OF 12-1/4% INDUSTRIAL DEVELOPMENT REVENUE BONDS (SCOTT PAPER COMPANY PROJECT), 1982 SERIES A WHEREAS, Scott Paper Company (the "Scott") has previously entered into a certain Loan Agreement dated as of June 1, 1982 (the "Loan Agreement") with the City of San Bernardino (the "City") in connection with the City of San Bernardino 12-1/4% Industrial Development Revenue Bonds ("Scott Paper Company Project"), 1982 Series A in the aggregate principal amount of $1,000,000 (the ltBondsll); and WHEREAS, subsequent to the issuance of the Bonds the City approved a certain amendment to the Loan Agreement dated as of January 10, 1984 (the "First Amendment") with Scott whereby Scotfoam Corporation assumed all of the obligations of Scott under the terms of the Loan Agreement and whereby the Facilities which were the subject of the Loan Agreement were sold to Scotfoam Corporation; and WHEREAS, subsequent to the execution of the First Amendment, Scotfoam Corporation and Knoll International Holdings, Inc., a Delaware Corporation ("KIHI") entered into a certain Assumption Agreement whereby Scotfoam Corporation - 1 - was merged into KIHI and KIHI assumed all of the obligations of Scotfoam Corporation under the terms of the First Amendment; and WHEREAS, KIHI formally changed its name to "21" International Holdings, Inc. as of August 31, 1990; and WHEREAS, "21" International Holdings, Inc. now seeks the City's approval of a certain Second Amendment to the Loan Agreement (the "Second Amendment"), a copy of which is attached hereto as Exhibit "A" and incorporated herein by this reference in order to facilitate the transfer of the obligations of 1121" International Holdings, Iue. to Foamex LP, a limited partnership organized and existing under the laws of the State of Delaware ("Foarnex"); and WHEREAS, pursuant to the terms of the Second Amendment, "21" International Holdings, Inc. has agreed to contribute all of its assets and all of the business of its Foamex Division to Foamex and seeks the approval of the City as to the assumption of all of the obligations of "21" International under the terms of the First Amendment; and WHEREAS, "21" International Holdings, Inc. has agreed to pay all of the administrative costs of the City as well as applicable attorneys' fees in connection with the approval of the Second Amendment. NOW, THEREFORE, THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO, CALIFORNIA, DO HEREBY FIND, RESOLVE, DETERMINE AND ORDER AS FOLLOWS: - 2 - Section 1. The Recitals hereinabove are true and correct and incorporated herein by this reference. Section 2. The Council hereby approves the form of the Second Amendment, a copy of which is attached hereto as Exhibit "A" and incorporated herein by this reference and authorizes the execution thereof by the City upon the approval of the Second Amendment by Bond Counsel to the City and upon the payment by "21" International Holdings, Inc. of all administrative costs and attorneys' fees in connection with the approval of the Second Amendment. - 3 - Section 3. This Resolution shall take effect upon the date of its adoption. I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and r~~'L'" AYES: Common Council of the City of meeting thereof, held on the 1990, by the following vote, to wit: Council Members rL~;tL,- ",-pgu"-' ~~tl.f / .M' j) 1// d Ln2i( I 1</l1f,"( 1~~41/;/#LAS / / /ili~j San Bernardino /7,fcA- at a day of foregoing resolution is hereby approved this , 1990. L()tn/.& ~d7/J; I rf" -;;12#4: C i/LMU '/''f! ~~~ 1~,~~~1' Cit Clerk - ~L NAYS: ABSENT: The ftzt;./pJ ity of o Approved as to form and legal content: JAMES F. PENMAN City Attorney BY:~ /City Atto y SBEOOOOl-376 - 4 - EXHIBIT "A" SECOND AMENDMENT SECOND AMENDMENT (hereinafter called "this Second Amendment"), dated as of the ~7th day of September, 1990, made by and among the CITY OF SAN BERNARDINO, a charter city of the State of California (the "City"), party of the first part, '21' INTERNATIONAL HOLDINGS, INC., a corporation organized and existing under the laws of the State of Delaware (the "Corporation"), party of the second part, and Foamsx, LP, a limited partnership orqanized and existing under the laws of the State of Delaware ("Foamex"), to be substituted hereby as party of the second part. w I ~ H !. ~ ~ !. :J: H: WHEREAS, for proper and lawful pUblic purposes, the City has duly authorized and issued $1,000,000 aggregate principal amount of its ~2%% Industrial Development Revenue Bonds (Scott Paper Company Project), 1982 series A (the "Bonds"), pursuant to the terms and provisions of the Trust Indenture, dated as of June 1, 1982 (the "Indenture"), between the city and Security Pacific National Bank, as Trustee (the "Trustee"); WHEREAS, the City entered into a Loan Aqreement dated as of June ~, 1982 (the "Agreement") with the Scott paper Company ("Scott") under whicb the City agreed to issue and sell tho Bonds and to loan the proceeds thereof to Scott to finance the Facilities (as defined therein), and under which Scott agreed to repay the loan that financed the Facilities through installment payments calculated to pay the principal of and interest on the Bonds; WHEREAS, the Agreement was amended by an Amendment dated as of January 10, 1984 (the ItFirst Amendment") in order to permit the SCOTFOAM CORPORATION ("Scotfoam") to assume all the obliqationa of Soott under the Agreement, to re~ease Scott in full from any and all liability for any and all its obligations and agreements under and pursuant to the Agreement, and to provide for irrevocable letters o~ credit to support payments under the Agreement calculated to pay the principal of and interest on the Bonds. WHEREAS, Scotfoam merged with and into Knoll International Holdings, Inc., a Delaware corporation ("KIHI") and parent of Scotfoam, with KIHI being the surviving entity and the Facilities becoming part of KIHI's Foamex Division. WHEREAS, KIHI changed its name to '21' International Holdings, Inc. on August 31, ~990. WHEREAS, the Corporation has agreed to contribute supstantially all its assets and the business of its Foamex Division, inClUding the Facilities, to Foamex which is a new limited partnership to be headquartered in East Providence, Rhode Island to be operated by the current management of the Foamex Division. WHEREAS. the Corporation and Foamex desire to enter into this Second Amendment to the Agreement with the city in order to permit Foamex to assume all of the obligations of the Corporation under the Agreement. WHEREAS, Citibank, N.A., opened and issued a clean irrevocable letter of credit in favor of the Trustee for an amount not to exceed the aggregate of $1.121.875.00; NOW, THEREFORE, THIS AMENDMENT WITNESSETH that for and in consideration of the premises and of the covenants contained herein, the parties hereto, intending to be legally bound hereby, DO HEREBY AGREE as follows: ARTICLE r ASSUMPTION OF OBLIGATIONS section 1.01. Foamex hereby agrees to assume any and all Obligations of the Corporation under the Agreement and the First Amendment and to perform and to observe all other agreements of the Corporation thereunder, to the same extent as if Foamex had oriqinally executed the Agreement and the First Amendment. Section 1.02. Section 5.01 of the Agreement is hereby amended and restated as follows: Section 5.01. The Corporation covenants that it will maintain its existence, will not dissolve or otherwise dispose of all or substantially all its assets and will not ~onsolidate with or merqe into another entity; providod, however, that the corporation may consolidate with or merge into another entity, or sell or otherwise transfer to another entity all or substantially all its Assets, it the successor entity assumes in writing all the obligations of the Corporation herein. If consolidation, merger or sale or other transfer is made as permitted by this Section, the provisions of this Section shall continue in full force and effect and n~ further consolidation, merger or sale or other trans~r shall be made except in compliance with the provisions of this Section. ARTICLE II REPRESENTATIONS Section 2.01. Foamex is a limited partnership duly organized and in good standing under the laws of the State of -2- Delaware, is duly qualified and authorized to engage in business in the state of California, has power to enter into this Second Amendment and to perform and observe the agreements and covenants on its part contained herein, in the Agreement and the First Amendment, and by proper action has duly authorized the execution and delivery of this Second Amendment. ARTICLE III MISCELLANEOUS section 3.01. This Second Amendment may be executed in any number of counterparts, each of which, when so executed and delivered sha1l be an original; but such counterparts shall together constitute but one and the same Second Amendment. Section 3.02. If any clause, provision or section of this Second Amendment be held illegal or invalid by any court, the illegality or invalidity of such clause, provision or section shall not affect any of the remaining clauses, provisions or sections hereof, and this Second Amendment shall be construed and enforced as if such illegal or invalid clause, provision or section had not been contained herein. In case any agreement or obligation contained in this Second Amendment be held to be in violation of law, then such agreement or obligation shall be deemed to be the agreement or obligation of the city or Foamex, as the case may be, to the full extent permitted by law. Section 3.03. The article and section headings herein are for convenience only and shall not affect the construction hereof. Section 3.04. Amendment by Foamex assigns, whether so All covenants and agreements in this Second shall bind each ot its successors and expressed or not. seotion 3.05. All notices, certificates, requests or other communications to Foamex under the Agreement as more fully provided in Section 9.02 thereof shall be suffioiently given and shall be deemed given when mailed by registered mail, postage prepaid, addressed as !ollows: All notices, certificates, requests or other communications to the '21' International Holdings, Inc. under the Agreement as more fully provided in Seotion 9.02 thereof shall be sufficientlY given and shall be deemed given when mailed by registered ~a11, postage prepaid, addressed as follows: A duplicate copy of each notice, certifioate, request or other communication given under the Agreement to the City, Foamex, '21' International Holdings, Inc or the Trustee shall also be given to the other. Foamex, '21' International Holdings, Inc., the city and the Trustee may, by notice given hQreunder and as provided in Section 9.02 of the Agreement, designate any further or different -3- addresses to which subsequent notices, certificates, requests or other communications shall be sent. Section 3.06. Except as amended by this Second Amendment, the ,terms and provisions of the Agreement and the First Amendment shall remain in full force and effect. Section 3.07. The laws of the State of California Shall govern the construction of this Second Amendment. rN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date indicated below. CITY OF SAN BERNARDINO By Title: Date: [SEAL] Attest: City Clerk [SEAL) '21' International Holdings, Inc. Attest: [Assistant] Secretary By Title: Date: Foamex, LP By [SEAL] Attest: -4- , ACKNOWLEDGING AND APPROVING THIS SECOND AMENDMENT TO THE AGREEMENT: security Pacific National Bank, As Trustee. By: Name: Title: -5-