Exhibit 10.5
AMENDMENT XX. 0
XXXXXXXXX XX. 0, dated as of November 15, 2002 (this "Amendment"), to the
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 further amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
by and among FOAMEX L.P. (the "Borrower"), FMXI, INC. ("FMXI"), the financial
institutions party thereto from time to time as lenders (the "Lenders"), the
financial institutions party thereto from time to time as issuing banks (the
"Issuing Banks"), CITICORP USA, INC., as administrative agent (in such capacity,
the "Administrative Agent") and as collateral agent for the Lenders and the
Issuing Banks, and THE BANK OF NOVA SCOTIA, as funding agent and as syndication
agent for the Lenders and the Issuing Banks. Capitalized terms used herein, but
not otherwise defined herein, have the meanings ascribed to such terms in the
Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Borrower and the Requisite Lenders have agreed to amend the
Credit Agreement subject to the terms and
conditions of this Amendment;
NOW THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the sufficiency of which is hereby
acknowledged, the parties hereto agree to the following:
1. Defined Terms. Capitalized terms used herein, but not defined herein,
have the respective meanings ascribed thereto in the Credit Agreement.
2. Amendments. As of the Effective Date (as defined below):
(a) Section 1.01 of the Credit Agreement is hereby amended by adding the
following definitions thereto in their proper alphabetical order:
(i) "'Account Debtor' has the meaning given to such term in the UCC."
(ii) "'Accounts Receivable' means, at any time, (a) the aggregate book
value of the Borrower's and its Subsidiaries' accounts receivable, net of
allowances, as set forth in the line item of the Current Balance Sheet
entitled `Accounts Receivable' or (b) if the Borrower has delivered a
supplemental Borrowing Base Certificate pursuant to the proviso to Section
7.01(g), the sum of the aggregate book value of (i) the Borrower's and its
Domestic Subsidiaries' outstanding trade receivables reflected on the
Borrower's most recently available aged trial balance reports, net of the
amount of allowances with respect to accounts receivable reflected on the
Current Balance Sheet and (ii) the Borrower's Non-Domestic Subsidiaries'
accounts receivable included in the line item of the Current Balance Sheet
entitled `Accounts Receivable.'"
(iii) "'Borrowing Base' means, at any time, the sum of (a) 65% of the
aggregate amount of the Accounts Receivable, (b) 50% of the amount of the
Inventory and (c)(i) $85,000,000 less (ii) an amount equal to the sum of
(A) the aggregate amount of voluntary prepayments of Term Loans made by the
Borrower pursuant to Section 3.01(a) and (B) the aggregate amount of
mandatory prepayments of Term Loans made by the Borrower pursuant to
Section 3.01(b) (excluding the amount of any prepayment made pursuant to
Section 3.01(b)(i) to the extent attributable to the Net Cash Proceeds of
Sale from the sale of Accounts Receivable or Inventory); provided, however,
that in no event shall the amount in this clause (c) be less than zero."
(iv) "'Borrowing Base Certificate' means a certificate substantially
in the form of Exhibit J, to be executed by the Borrower and delivered to
the Administrative Agent pursuant to Section 7.01(g), that sets forth the
calculations used in determining the Borrowing Base at such time."
(v) "'Current Balance Sheet' means, at any time, the Borrower's most
recent consolidated balance sheet delivered to the Administrative Agent
pursuant to Section 7.01(a)."
(vi) "'Domestic Subsidiary' means any Subsidiary of the Borrower that
is organized under the laws of any state of the United States or the
District of Columbia."
(vii) "'Inventory' means, at any time, the aggregate book value of the
Borrower's and its Subsidiaries' inventory as set forth in the line item of
the Current Balance Sheet entitled `Inventories.'"
(viii) "'Maximum Revolving Credit' means, at any time, the lesser of
(a) the Commitments in effect at such time and (b)(i) the Borrowing Base at
such time minus (ii) the aggregate principal amount of Term Loans
outstanding at such time."
(ix) "'Non-Domestic Subsidiary'" means any Subsidiary of the Borrower
that is not a Domestic Subsidiary."
(x) "'Responsible Officer' means, with respect to any Person, any of
the principal executive officers, managing members or general partners of
such Person, but in any event, with respect to financial matters, the chief
financial officer, treasurer or controller (or any officer having
substantially similar responsibilities as any of the foregoing) of such
Person."
(b) The definition of "EBDAIT" in Section 1.01 of the Credit Agreement is
hereby amended by adding before the semicolon at the end of clause (a)(vi) of
such definition the following clause: "plus (vii) the cash portion of the
restructuring and other charges recorded in the fourth Fiscal Quarter of 2002 in
an aggregate amount not to exceed $9,250,000".
(c) The definition of "Net Worth" in Section 1.01 the Credit Agreement is
hereby amended by adding the designation "(w)" after the phrase "consolidated
assets" in clause (iii) of such definition and by adding the following clauses
at the end of such definition: ", (x) charges for goodwill impairment in
accordance with Financial Accounting Standards Nos. 141 and 142, (y) charges for
asset impairments in accordance with Financial Accounting Standard No. 144 and
(z) the restructuring and other charges recorded in the fourth Fiscal Quarter of
2002 in an aggregate amount not to exceed $10,000,000".
(d) The definition of "Revolving Loan Commitment Availability" in Section
1.01 of the Credit Agreement is hereby amended by deleting it in its entirety
and inserting in lieu thereof the following definition:
2
"'Revolving Loan Commitment Availability' means, at any
time, the lesser of (a)(i) the Commitments then in effect minus
(ii) the Revolving Credit Obligations outstanding at such time
and (b)(i) the Borrowing Base at such time minus (ii) the sum of
(A) the Revolving Credit Obligations outstanding at such time and
(B) the aggregate principal amount of the Term Loans outstanding
at such time."
(e) Section 2.03(a)(ii)(A) of the Credit Agreement is hereby amended by
deleting in clause (II) thereof the phrase "Revolving Loan Commitment Amount"
and inserting in lieu thereof the phrase "Maximum Revolving Credit".
(f) Section 2.03(d)(i)(B) of the Credit Agreement is hereby amended by
adding the following sentence at the end thereof:
"For the avoidance of doubt, Reimbursement Obligations not
paid on or before the Reimbursement Date shall bear interest
after the Reimbursement Date, until such Reimbursement
Obligations are paid in full, at a rate equal to the default rate
then applicable to Base Rate Loans."
(g) The Credit Agreement is hereby amended by adding the following new
clause (vii) to Section 3.01(b) thereof.
"(vii) If at any time, the aggregate amount of Revolving
Credit Obligations outstanding exceeds the Maximum Revolving
Credit at such time, the Borrower shall promptly (and in any
event, within one Business Day) first prepay the outstanding
Swing Loans and then prepay the outstanding Revolving Loans in an
aggregate amount equal to the lesser of (A) such excess and (B)
the aggregate of Revolving Loans and Swing Loans each then
outstanding. If any such excess remains after repayment in full
of the aggregate outstanding Swing Loans and Revolving Loans, the
Borrower shall provide Cash Collateral in respect of outstanding
Letter of Credit Obligations in an amount equal to the lesser of
(x) such remaining excess and (y) the amount of Letter of Credit
Obligations then outstanding."
(h) Section 4.03(c) of the Credit Agreement is hereby amended by adding the
following parenthetical immediately after the phrase "less one-eighth of one
percent (0.125%)": "(including any and all adjustments to such Application
Margin made in accordance with the definition thereof)".
(i) The Credit Agreement is hereby amended by adding the following new
paragraph (e) to Section 5.02 thereof:
"(e) A Potential Event of Default with respect to the
Borrower's obligations under Section 7.01(g) shall not have
occurred and be continuing. After giving effect to the Revolving
Loans requested by the Borrower to be made or the Letter of
Credit requested by the Borrower to be issued, as applicable, on
any such date and the use of proceeds thereof, the outstanding
Revolving Credit Obligations shall not exceed the Maximum
Revolving Credit at such time."
3
(j) Section 7.01(d) of the Credit Agreement is hereby amended by adding the
following sentence at the end thereof: "Notwithstanding anything in the
foregoing clause (ii) to the contrary, the Borrower shall deliver to the
Administrative Agent and the Lenders its Compliance Certificate for Fiscal Year
2002 no later than March 31, 2003; provided, however, that nothing in this
sentence shall require the Borrower to deliver to the Administrative Agent and
the Lenders its Form 10-K, financial statements and other documents for Fiscal
Year 2002 required to be delivered pursuant to Section 7.01(c) earlier than what
would otherwise be required under Section 7.1(c)."
(k) The Credit Agreement is hereby amended by adding the following new
clause (g) to Section 7.01 thereof:
"(g) Borrowing Base Certificate. Together with each delivery
of financial statements pursuant to Section 7.01(a), a Borrowing
Base Certificate executed by a Responsible Officer of the
Borrower setting forth the information required thereby with
respect to the last day of the applicable Fiscal Month; provided,
however, that the Borrower may deliver to the Administrative
Agent at any time thereafter an updated Borrowing Base
Certificate executed by a Responsible Officer of the Borrower
setting forth the Accounts Receivable referred to in clause (b)
of the definition thereof."
(l) The Credit Agreement is hereby amended by adding the following new
Section 8.16 thereto:
"8.16 Borrowing Base Determination.
(a) The Borrower shall furnish to the Administrative
Agent any information which the Administrative Agent may
reasonably request regarding the determination and
calculation of the Borrowing Base including correct and
complete copies of any invoices, underlying agreements,
instruments or other documents and the identity of all
Account Debtors in respect of Accounts Receivable referred
to therein.
(b) The Borrower shall promptly notify the
Administrative Agent in writing in the event that at any
time the Borrower receives or otherwise gains knowledge that
(i) the Borrowing Base is less than 90% of the Borrowing
Base reflected in the most recent Borrowing Base Certificate
delivered pursuant to Section 7.01(g) or that (ii) the
outstanding Revolving Credit Obligations exceed the Maximum
Revolving Credit.
(c) The Administrative Agent may, at the Borrower's
sole cost and expense, make test verifications of the
Accounts Receivable and physical verifications of the
Inventory in any manner and through any medium that the
Administrative Agent considers advisable, and the Borrower
shall furnish all such assistance and information as the
Administrative Agent may require in connection therewith."
4
(m) Section 9.18 of the Credit Agreement is hereby amended by deleting it
in its entirety and inserting in lieu thereof the following:
"9.18. Transaction Documents. Other than the Transaction
Documents containing the terms and provisions of the Permitted
Subordinated Indebtedness, the Senior Secured Notes and the
Transaction Documents with respect to Hedging Obligations,
foreign exchange contracts or cash management obligations (other
than deposit account control agreements, lockbox agreements or
other similar third-party agreements entered into pursuant to the
terms of the Loan Documents among the Borrower or any of its
Subsidiaries, the Collateral Agent and a financial institution
where the Borrower or such Subsidiary maintains a deposit account
for the purposes of perfecting the Collateral Agent's Lien on
such deposit account), none of the Credit Parties shall amend,
supplement or otherwise modify the Transaction Documents or cause
the Transaction Documents to be amended, supplemented or
otherwise modified without the prior written consent of the
Requisite Lenders, except for such amendments, supplements or
other modifications deemed by the Administrative Agent to be
immaterial or not adverse to the interests of the Lenders."
(n) Article X of the Credit Agreement is hereby amended by deleting it in
its entirety and replacing it with the new Article X set forth on Schedule A
hereto.
(o) The Credit Agreement is hereby amended by adding a new Exhibit J
thereto in the form attached hereto as Schedule B.
3. Amendment Fees. During the period between the Effective Date and
November 15, 2002, in consideration for its approval of this Amendment, each
Lender that executes and delivers to the Administrative Agent its signature page
to this Amendment shall receive a fee equal to 1.0% of the sum of (a) its
Commitment and (b) the principal amount of its Term Loans outstanding on the
Effective Date (collectively, the "Amendment Fees").
4. Effectiveness. This Amendment shall become effective as of the date (the
"Effective Date") when the conditions precedent set forth on Exhibit A hereto
are satisfied.
5. Representations and Warranties. Each Loan Party hereby represents and
warrants that (a) this Amendment has been duly authorized, executed and
delivered by such party, (b) assuming the effectiveness of this Amendment, no
Default or Event of Default has occurred and is continuing on and as of the date
hereof and (c) the representations and warranties of each of the Loan Parties
contained in the Credit Agreement and the other Loan Documents are true and
correct on and as of the date hereof as if made on and as of the date hereof
other than as referred to herein, except to the extent such representations and
warranties expressly relate to a different specific date.
5
6. Reference to and Effect on the Credit Agreement and the Other Loan
Documents. Except as specifically amended herein, the Loan Documents shall
remain in full force and effect and are each hereby ratified and confirmed. In
furtherance of the foregoing, (a) Foamex International reaffirms the terms and
conditions of the Foamex International Guaranty and acknowledges and agrees that
the Foamex International Guaranty remains in full force and effect and is hereby
reaffirmed, ratified and confirmed and (b) FMXI and each of the Subsidiary
Guarantors reaffirms the terms and conditions of the Guaranty and acknowledges
and agrees that the Guaranty remains in full force and effect and is hereby
reaffirmed, ratified and confirmed. The execution, delivery and effectiveness of
this Amendment shall not, except as expressly provided herein, operate as an
amendment, waiver or modification of any right, power or remedy of the
Administrative Agent, the Issuing Banks or the Lenders under any of the Loan
Documents, nor constitute an amendment, waiver or modification of any other
provisions of the Loan Documents. This Amendment shall be a Loan Document for
the purposes of the Credit Agreement and the other Loan Documents.
7. Applicable Law. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
8. Fees, Costs and Expenses. The Borrower agrees to pay on demand in
accordance with the terms of Section 13.02 of the Credit Agreement all costs and
expenses of the Administrative Agent in connection with the preparation,
reproduction, execution and delivery of this Amendment, including the reasonable
fees and expenses of counsel for the Administrative Agent with respect thereto.
9. Counterparts and Headings. This Amendment may be executed in two or more
counterparts, each of which shall constitute an original but all of which when
taken together shall constitute but one contract. Delivery of an executed
signature page of this Amendment by facsimile transmission shall be as effective
as delivery of a manually executed counterpart hereof. The headings of this
Amendment are for convenience of reference only, are not part of this Amendment
and are not to affect the construction of, or to be taken into consideration
when interpreting, this Amendment.
6
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their duly authorized officers, all as of the date and year
first above written.
CITICORP USA, INC., as Administrative Agent
and as a Lender
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
[Signature Page to Amendment No. 1]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their duly authorized officers, all as of the date and year
first above written.
CITIBANK N.A., as Issuing Bank
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
[Signature Page to Amendment No. 1]
THE BANK OF NOVA SCOTIA, as a Lender
and as an Issuing Bank
By: /s/ Xxxx X. Xxxxxx
------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
[Signature Page to Amendment No. 1]
LENDER:
AVALON CAPITAL LTD. 2
By: INVESCO Senior Secured Management, Inc.
As Portfolio Advisor
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Authorized Signatory
LENDER:
CERES II FINANCE LTD.
By: INVESCO Senior Secured Management, Inc.
As Sub-Managing Agent (Financial)
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Authorized Signatory
LENDER:
CHARTER VIEW PORTFOLIO
By: INVESCO Senior Secured Management, Inc.
As Investment Advisor
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Authorized Signatory
LENDER:
AMARA 2 FINANCE, LTD.
By: INVESCO Senior Secured Management, Inc.
As Financial Manager
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Authorized Signatory
[Signature Page to Amendment No. 1]
LENDER:
OASIS COLLATERALIZED HIGH INCOME
PORTFOLIOS-1 LTC.
By: INVESCO Senior Secured Management, Inc.
As Subadvisor
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Authorized Signatory
LENDER:
CERES FINANCE LTD.
By: INVESCO Senior Secured Management, Inc.
As Sub-Managing Agent
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Authorized Signatory
LENDER:
STRATA FUNDING LTD.
By: INVESCO Senior Secured Management, Inc.
As Sub-Managing Agent
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Authorized Signatory
LENDER:
ING PRIME RATE TRUST
By: ING Investments, LLC
as its investment manager
By: /s/ Xxxxxxx X. XxXxxxx, CFS
------------------------------
Name: Xxxxxxx X. XxXxxxx, CFS
Title: Vice President
LENDER:
KATONAH III, LTD.
-----------------------------------
(Type or Print Name of Institution)
By: /s/ Xxxxx Xxxxx Xxxxx
------------------------------
Name: Xxxxx Xxxxx Xxxxx
Title: Authorized Officer
Katonah Capital, LLC,
as Manager
LENDER:
METROPOLITAN LIFE INSURANCE COMPANY
-----------------------------------
(Type or Print Name of Institution)
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director
LENDER:
Xxxxx X. Xxxxxx & Co., Inc. as Collateral
Manager for :
APEX (IDM) CDO I, Ltd.
ELC (cAYMAN) CDO I, Ltd.
-----------------------------------
(Type or Print Name of Institution)
By: /s/ Xxxxx Xxxxx
------------------------------
Name: Xxxxx Xxxxx
Title: Managing Direcotr
LENDER:
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By: Xxxxx X. Xxxxxx & Company Inc. as
Investment Advisor
-----------------------------------
(Type or Print Name of Institution)
By: /s/ Xxxxx Xxxxx
------------------------------
Name: Xxxxx Xxxxx
Title: Managing Direcotr
LENDER:
MASSMUTUAL HIGH YIELD PARTNERS II LLC
By: HYP Management, Inc., as Managing
Member
-----------------------------------
(Type or Print Name of Institution)
By: /s/ Xxxxx Xxxxx
------------------------------
Name: Xxxxx Xxxxx
Title: Managing Direcotr
LENDER:
TCW Leveraged Income Trust II, L.P.
By: TCW Advisors (Bermuda), Ltd.
as General Partner
-----------------------------------
(Type or Print Name of Institution)
By: /s/ Xxxx X. Gold
------------------------------
Name: Xxxx X. Gold
Title: Managing Direcotr
By: TCW Investment Management Company,
as Investment Adviser
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Managing Direcotr
LENDER:
Crescent/Mach I Partners, L.P.
By: TCW Asset Management Company
Its Investment Manager
-----------------------------------
(Type or Print Name of Institution)
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Managing Direcotr
LENDER:
THE FOOTHILL GROUP, INC.
-----------------------------------
(Type or Print Name of Institution)
By: /s/ Xxxx X. Xxxxx
------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
LENDER:
APEX (TRIMARAN) CDO I, LTD.
By Trimaran Advisors, L.L.C.
-----------------------------------
(Type or Print Name of Institution)
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Managing Director
LENDER:
APEX (TRIMARAN) CDO I, LTD.
By Trimaran Advisors, L.L.C.
-----------------------------------
(Type or Print Name of Institution)
By:
------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Managing Director
LENDER:
CREDIT INDUSTRIEL ET COMMERCIAL
-----------------------------------
(Type or Print Name of Institution)
By: /s/ Xxxxx X'Xxxxx
------------------------------
Name: Xxxxx X'Xxxxx
Title: Vice President
By: /s/ Xxxx Xxxxxxx
------------------------------
Name: Xxxx Xxxxxxx
Title: First Vice President
LENDER:
ALLSTATE LIFE INSURANCE COMPANY
-----------------------------------
(Type or Print Name of Institution)
By: /s/ Xxxxx Xxxxxxx
------------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Authorized Signatory
LENDER:
AIMCO CDO Series 2000-A
-----------------------------------
(Type or Print Name of Institution)
By: /s/ Xxxxx Xxxxxxx
------------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Authorized Signatory
LENDER:
AIMCO CLO SERIES 2001-A
-----------------------------------
(Type or Print Name of Institution)
By: /s/ Xxxxx Xxxxxxx
------------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Authorized Signatory
LENDER:
General Electric Capital Corporation
------------------------------------
(Type or Print Name of Institution)
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Duly Authorized Signatory
LENDER:
KZH Sterling LLC
-----------------------------------
(Type or Print Name of Institution)
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Authorized Agent
LENDER:
KZH Soleil - 2 LLC
-----------------------------------
(Type or Print Name of Institution)
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Authorized Agent
LENDER:
KZH Soleil LLC
-----------------------------------
(Type or Print Name of Institution)
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Authorized Agent
LENDER:
KZH ING-2 LLC
-----------------------------------
(Type or Print Name of Institution)
By: /s/ Xxxxxxx Iarrabino
------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Authorized Agent
LENDER:
KZH CypressTree-1 LLC
-----------------------------------
(Type or Print Name of Institution)
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Authorized Agent
LENDER:
KZH Crescent LLC
-----------------------------------
(Type or Print Name of Institution)
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Authorized Agent
LENDER:
KZH Crescent-2 LLC
-----------------------------------
(Type or Print Name of Institution)
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Authorized Agent
LENDER:
OAK HILL SECURITIES FUND, L.P.
By: Oak Hill Securities GenPar, L.P.
its General Partner
By: Oak Hill Securities MGP, Inc.,
its General Partner
By: /s/ Xxxxx X. Xxxxx
------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
LENDER:
OAK HILL SECURITIES FUDN II, L.P.
By: Oak Hill Securities GenPar II, L.P.
its General Partner
By: Oak Hill Securities MGP II, Inc.,
its General Partner
By: /s/ Xxxxx X. Xxxxx
------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
LENDER:
THE CIT Group/Commercial Services, Inc.
---------------------------------------
(Type or Print Name of Institution)
By: /s/ Xxxx Xxxxxxxxxx
------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Assistant Vice President
LENDER:
Natexis Banques Populaires
-----------------------------------
(Type or Print Name of Institution)
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Associate
LENDER:
XXX XXXXXX
PRIME RATE INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Director
LENDER:
XXX XXXXXX
SENIOR INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Director
LENDER:
General Motors Employees Global Group
Pension Trust
-----------------------------------
(Type or Print Name of Institution)
By: State Street Bank & Trust Co.,
as Trustee
By: /s/ Xxxxxx Blood
------------------------------
Name: Xxxxxx Blood
Title: Assistant Vice President
By: Xxxxxx Capital Management, Inc.,
as Adviser
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
LENDER:
GALAXY CLO 1999-1, LTD.
By: /s/ W. Xxxxxxx Xxxxxx
------------------------------
Name: W. Xxxxxxx Xxxxxx
Title: Authorized Agent
LENDER:
SUN AMERICA LIFE INSURANCE COMPANY
By: /s/ W. Xxxxxxx Xxxxxx
------------------------------
Name: W. Xxxxxxx Xxxxxx
Title: Authorized Agent
LENDER:
Centurion CDO II, Ltd.
By: American Express Asset Management
Group Inc. as Collateral Manager
---------------------------------------
(Type or Print Name of Institution)
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
LENDER:
Sequils-Centurion V, Ltd.
By: American Express Asset Management
Group Inc. as Collateral Manager
---------------------------------------
(Type or Print Name of Institution)
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
LENDER:
Centurion CDO VI
By: American Express Asset Management
Group Inc. as Collateral Manager
---------------------------------------
(Type or Print Name of Institution)
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
LENDER:
XXXXXXX & CO.
By: Boston Management and Research
as Investment Advisor
---------------------------------------
(Type or Print Name of Institution)
By: /s/ Payson X. Xxxxxxxxx
------------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
LENDER:
SENIOR DEBT PORTFOLIO
By: Boston Management and Research
as Investment Advisor
---------------------------------------
(Type or Print Name of Institution)
By: /s/ Payson X. Xxxxxxxxx
------------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
Acknowledged and Agreed to as of
November 15, 2002 by:
FOAMEX L.P.
By: FMXI, Inc., its Managing General Partner
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
FOAMEX INTERNATIONAL INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Senior Vice President
FMXI, Inc.
FOAMEX CAPITAL CORPORATION
FOAMEX CARPET CUSHION LLC
FOAMEX LATIN AMERICA, INC.
FOAMEX MEXICO, INC.
FOAMEX MEXICO II, INC.
FOAMEX ASIA, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
[Signature Page to Amendment No. 1]
Schedule A
ARTICLE X
FINANCIAL COVENANTS
The Borrower covenants and agrees that so long as any Commitments are
outstanding and thereafter until all of the Obligations (other than indemnities
and Obligations in respect of cash management services not yet due) are paid in
full (or, in the case of contingent Obligations (other than indemnities and
Obligations in respect of cash management services not yet due), Cash Collateral
has been deposited in the Cash Collateral Account in the full amount of such
Obligations on terms satisfactory to the Lenders), unless the Requisite Lenders
shall otherwise give prior written consent thereto:
10.1 Minimum Net Worth. The Net Worth of the Borrower and its Subsidiaries
on a consolidated basis at all times during any period from the last day of the
Fiscal Quarter in each Fiscal Year of the Borrower set forth below to the next
to last day of the next succeeding Fiscal Quarter shall not be less than the
minimum amount set forth opposite the first such Fiscal Quarter:
Fiscal Quarter Minimum Net Worth
(in millions)
Fourth Fiscal Quarter of 2002 $ (162.0)
First Fiscal Quarter of 2003 $ (174.5)
Second Fiscal Quarter of 2003 $ (179.0)
Third Fiscal Quarter of 2003 $ (177.0)
Fourth Fiscal Quarter of 2003 $ (177.5)
First Fiscal Quarter of 2004 $ (177.5)
Second Fiscal Quarter of 2004 $ (175.0)
Third Fiscal Quarter of 2004 $ (173.0)
Fourth Fiscal Quarter of 2004 $ (171.0)
First Fiscal Quarter of 2005 $ (167.0)
Second Fiscal Quarter of 2005 $ (161.0)
Third Fiscal Quarter of 2005 $ (154.0)
Fourth Fiscal Quarter of 2005 $ (149.0)
First Fiscal Quarter of 2006 $ (144.0)
Second Fiscal Quarter of 2006 $ (137.0)
Third Fiscal Quarter of 2006 $ (129.0)
Fourth Fiscal Quarter of 2006 and thereafter $ (123.0)
10.2 Minimum Interest Coverage Ratio. The Interest Coverage Ratio of the
Borrower and its Subsidiaries on a consolidated basis as determined as of the
last day of each Fiscal Quarter of the Borrower set forth below for the
four-Fiscal Quarter period ending on such date shall not be less than the
minimum ratio set forth opposite such Fiscal Quarter:
Fiscal Quarter Minimum Ratio
Fourth Fiscal Quarter of 2003 1.30:1.00
First Fiscal Quarter of 2004 1.45:1.00
Second Fiscal Quarter of 2004 1.60:1.00
Third Fiscal Quarter of 2004 1.60:1.00
Fourth Fiscal Quarter of 2004 1.60:1.00
First Fiscal Quarter of 2005 1.70:1.00
Second Fiscal Quarter of 2005 1.75:1.00
Third Fiscal Quarter of 2005 1.85:1.00
Fourth Fiscal Quarter of 2005 2.00:1.00
First Fiscal Quarter of 2006 2.05:1.00
Second Fiscal Quarter of 2006 2.05:1.00
Third Fiscal Quarter of 2006 2.10:1.00
Fourth Fiscal Quarter of 2006 and thereafter 2.10:1.00
10.3 Minimum Fixed Charge Coverage Ratio. The Fixed Charge Coverage Ratio
of the Borrower and its Subsidiaries on a consolidated basis as determined as of
the last day of each Fiscal Quarter of the Borrower set forth below for the
four-Fiscal Quarter period ending on such date shall not be less than the
minimum ratio set forth opposite such Fiscal Quarter:
Fiscal Quarter Minimum Ratio
Fourth Fiscal Quarter of 2003 1.00:1.00
First Fiscal Quarter of 2004 1.15:1.00
Second Fiscal Quarter of 2004 1.25:1.00
Third Fiscal Quarter of 2004 1.00:1.00
Fourth Fiscal Quarter of 2004 0.75:1.00
First Fiscal Quarter of 2005 0.70:1.00
Second Fiscal Quarter of 2005 0.65:1.00
Third Fiscal Quarter of 2005 0.45:1.00
Fourth Fiscal Quarter of 2005 0.45:1.00
First Fiscal Quarter of 2006 0.45:1.00
Second Fiscal Quarter of 2006 0.45:1.00
Third Fiscal Quarter of 2006 0.45:1.00
Fourth Fiscal Quarter of 2006 and thereafter 0.55:1.00
10.4 Maximum Leverage Ratio. The Total Net Debt (which shall include, for
the purposes of this Section 10.4 only, accounts payable of the Borrower and its
Domestic Subsidiaries that are greater than 30 days past due) to EBDAIT Ratio of
the Borrower and its Subsidiaries on a consolidated basis, as determined as of
the last day of each Fiscal Quarter of the Borrower set forth below for the
four-Fiscal Quarter period ending on such date shall not exceed the maximum
ratio set forth below:
Fiscal Quarter Maximum Ratio
Fourth Fiscal Quarter of 2003 7.20:1.00
First Fiscal Quarter of 2004 6.25:1.00
Second Fiscal Quarter of 2004 6.00:1.00
Third Fiscal Quarter of 2004 5.80:1.00
Fourth Fiscal Quarter of 2004 5.65:1.00
First Fiscal Quarter of 2005 5.60:1.00
Second Fiscal Quarter of 2005 5.25:1.00
Third Fiscal Quarter of 2005 5.05:1.00
Fourth Fiscal Quarter of 2005 4.75:1.00
First Fiscal Quarter of 2006 4.70:1.00
Second Fiscal Quarter of 2006 4.75:1.00
Third Fiscal Quarter of 2006 4.65:1.00
Fourth Fiscal Quarter of 2006 and thereafter 4.50:1.00
10.5 Minimum EBDAIT. The EBDAIT of the Borrower and its Subsidiaries on a
consolidated basis for each period referred to below shall be not less than the
amount set forth below opposite such period:
Period Minimum EBDAIT
The three-Fiscal Month period ending on the last day of the $ 8,000,000
ninth Fiscal Month of 2002
The three-Fiscal Month period ending on the last day of the $ 8,500,000
twelfth Fiscal Month of 2002
The four-Fiscal Month period ending on the last day of the $11,600,000
first Fiscal Month of 2003
The five-Fiscal Month period ending on the last day of the $16,700,000
second Fiscal Month of 2003
The six-Fiscal Month period ending on the last day of the $24,500,000
third Fiscal Month of 2003
The seven-Fiscal Month period ending on the last day of the $31,800,000
fourth Fiscal Month of 2003
The eight-Fiscal Month period ending on the last day of the $39,300,000
fifth Fiscal Month of 2003
The nine-Fiscal Month period ending on the last day of the $48,500,000
sixth Fiscal Month of 2003
The ten-Fiscal Month period ending on the last day of the $56,500,000
seventh Fiscal Month of 2003
The eleven-Fiscal Month period ending on the last day of the $66,900,000
eighth Fiscal Month of 2003
The twelve-Fiscal Month period ending on the last day of the $80,000,000
ninth Fiscal Month of 2003
The twelve-Fiscal Month period ending on the last day of the $86,000,000
tenth Fiscal Month of 2003
The twelve-Fiscal Month period ending on the last day of the $92,000,000
eleventh Fiscal Month of 2003
The twelve-Fiscal Month period ending on the last day of the $101,000,000
twelfth Fiscal Month of 2003
10.6 Maximum Capital Expenditures. The Capital Expenditures made by the
Borrower and its Subsidiaries on a consolidated basis, as determined for (a) the
fourth Fiscal Quarter of 2002 shall not be greater than $4,500,000, (b) the
two-Fiscal-Quarter period ending on the last day of the first Fiscal Quarter of
2003 shall not be greater than $9,500,000, (c) the three-Fiscal-Quarter period
ending on the last day of the second Fiscal Quarter of 2003 shall not be greater
than $14,500,000 and (d) the four-Fiscal-Quarter period ending on each of the
last day of the third Fiscal Quarter of 2003 and the fourth Fiscal Quarter of
2003 shall not be greater than $19,500,000 and $20,500,000, respectively.
Schedule B
EXHIBIT J
FORM OF
BORROWING BASE CERTIFICATE
Foamex L.P.
Borrowing Base Certificate
As of __/__/__
Citicorp USA, Inc.,
as Administrative Agent under the
Credit Agreement referred to below
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Pursuant to provisions of the 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
further amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), by and among Foamex L.P. (the "Borrower"), FMXI, Inc., the
financial institutions party thereto from time to time as lenders (the
"Lenders"), the financial institutions party thereto from time to time as
issuing banks (the "Issuing Banks"), Citicorp USA, Inc., as administrative agent
(in such capacity, the "Administrative Agent") and as collateral agent for the
Lenders and the Issuing Banks, and The Bank of Nova Scotia, as funding agent and
as syndication agent for the Lenders and the Issuing Banks, the undersigned
Responsible Officer of the Borrower hereby certifies that (a) the borrowing base
calculation set forth on Exhibit A attached hereto is true, complete and correct
as of the close of business on the period end set forth above and (b) no
Potential Event of Default or Event of Default has occurred and is continuing on
the date hereof. Capitalized terms used herein or in the attached information
but not defined herein or therein being used herein or therein as defined in the
Credit Agreement.
FOAMEX L.P.
By: FMXI, Inc., its Managing General Partner
By: -----------------------
Name:
Title:
