Exhibit 4.15.7
AMENDMENT NO. 4
TO CREDIT AGREEMENT
AMENDMENT NO. 4 TO CREDIT AGREEMENT ("this Amendment"), dated as of March
31, 2005, among FOAMEX L.P., a Delaware limited partnership (the "Borrower"),
the affiliates of the Borrower party hereto, the lending institutions party
hereto and BANK OF AMERICA, N.A., as Administrative Agent (the "Administrative
Agent").
WHEREAS, the Borrower, certain of its affiliates as guarantors, the lenders
party thereto, the Administrative Agent, Banc of America Securities LLC ("BAS")
and GECC Capital Markets Group, Inc., as co-lead arrangers, BAS, as sole book
manager, General Electric Capital Corporation, as syndication agent, and
Congress Financial Corporation (Central) and Bank One, NA (Main Office Chicago),
as co-documentation agents, entered into a certain Credit Agreement, dated as of
August 18, 2003 (as amended, restated, supplemented or otherwise modified from
time to time, the "Credit Agreement"), pursuant to which such lenders have
agreed, subject to certain terms and conditions, to make revolving advances and
term loans to the Borrower and to issue or to cause the issuance of letters of
credit for the account of the Borrower;
WHEREAS, the Borrower, the Guarantors, the Lenders and the Administrative
Agent desire to amend certain provisions of the Credit Agreement;
NOW, THEREFORE, subject to the conditions precedent set forth in Section 3
hereof, the Borrower, the Guarantors, the Lenders and the Administrative Agent
hereby agree as follows:
SECTION 1. CAPITALIZED TERMS. Capitalized terms used but not defined herein
shall have the respective meanings set forth in the Credit Agreement.
SECTION 2. AMENDMENTS TO CREDIT AGREEMENT.
2.1 Annex A to the Credit Agreement is hereby amended by adding the
following defined term in the correct alphabetical order:
"Fourth Amendment Effective Date" means the effective date of Amendment No.
4, dated as of March 31, 2005, to this Agreement.
2.2 The definition of "Additional B Term Loans" in Annex A to the Credit
Agreement is hereby amended by (a) adding "(i)" after the word "solely" in the
first sentence of such definition, (b) adding the words "and/or (ii) in an
aggregate amount not to exceed $25,000,000 of such additional term loans, to
repay principal on the Revolving Loans" immediately after the words "and to pay
fees and expenses incurred in connection therewith" in the first sentence of
such definition and (c) adding the following new sentence to the end of such
definition:
The Administrative Agent and the Lenders agree that, unless requested
otherwise by Foamex or requested by the Majority Lenders during the
continuance of an Event of
Default, permitted repayments of Revolving Loans with proceeds of
Additional B Term Loans shall be without reduction of the Maximum Revolver
Amount or any Revolving Credit Commitment.
2.3 The definition of "Applicable Margin" in Annex A to the Credit
Agreement is hereby amended by amending and restating in its entirety the second
sentence of such definition to read as follows:
The Applicable Margins shall be adjusted (up or down) prospectively,
determined by reference to the pricing grid set forth below, on the date (each a
"Calculation Date") that is the first day of the first calendar month following
the date on which Financial Statements are required to be delivered to the
Administrative Agent pursuant to Section 5.2(a) or (b) as at and for the fiscal
quarter or Fiscal Year just ended (whichever ended later), as the case may be,
based upon the Fixed Charge Coverage Ratio for the four consecutive fiscal
quarter period of Foamex ending on the last day of such fiscal quarter or Fiscal
Year, as applicable; provided, however, that (i) the initial Applicable Margins
shall be as set forth in the immediately preceding paragraph until the
Calculation Date based upon the date required for delivery of the Financial
Statements pursuant to Section 5.2(b) for the fiscal quarter of Foamex ending on
or about June 27, 2004, on and after which (except as provided in clause (ii) of
this proviso below) the Pricing Level shall be determined by the Fixed Charge
Coverage Ratio for the four consecutive fiscal quarter period of Foamex ending
on the last day of the most recently ended fiscal quarter of Foamex preceding
the applicable Calculation Date, (ii) the Applicable Margins shall be based on
Pricing Level I during the period from the Fourth Amendment Effective Date until
the Calculation Date based upon the date required for delivery of the Financial
Statements pursuant to Section 5.2(b) for the fiscal quarter of Foamex ending on
or about March 31, 2005, on and after which the Pricing Level shall be
determined by the Fixed Charge Coverage Ratio for the four consecutive fiscal
quarter period of Foamex ending on the last day of the most recently ended
fiscal quarter of Foamex preceding the applicable Calculation Date and (iii) if
the Financial Statements referred to above are not delivered on or prior to the
date required hereunder for delivery of such Financial Statements, then the
Applicable Margins shall be based on Pricing Level I.
2.4 The definition of "Borrowing Cutoff Amount" in Annex A to the Credit
Agreement is hereby amended by replacing the table set forth therein with the
following table:
Relevant EBITDA Fiscal Month Amount
---------------------------- ------
Fiscal month of Foamex ending 3.50
October 26, 2003 and each fiscal
month of Foamex ending thereafter
through and including the fiscal month
of Foamex ending March 28, 2004
2
Relevant EBITDA Fiscal Month Amount
---------------------------- ------
Fiscal month of Foamex ending 3.25
April 25, 2004 and each fiscal month
of Foamex ending thereafter through
and including the fiscal month of
Foamex ending August 22, 2004
Fiscal month of Foamex ending 3.50
September 26, 2004 and each fiscal
month of Foamex ending thereafter
through and including the fiscal month
of Foamex ending January 2, 2005
Fiscal month of Foamex ending 3.55
January 30, 2005
Fiscal month of Foamex ending 4.10
February 27, 2005
Fiscal month of Foamex ending April 4.35
3, 2005
Fiscal month of Foamex ending May 4.50
1, 2005
Fiscal month of Foamex ending May 4.60
29, 2005
Fiscal month of Foamex ending July 5.00
3, 2005
Fiscal month of Foamex ending July 5.00
31, 2005
Fiscal month of Foamex ending 4.90
August 28, 2005
Fiscal month of Foamex ending 4.85
October 2, 2005
Fiscal month of Foamex ending 4.75
October 30, 2005
Fiscal month of Foamex ending 4.15
December 4, 2005 and each fiscal
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Relevant EBITDA Fiscal Month Amount
---------------------------- ------
month of Foamex ending thereafter
through and including the fiscal month
of Foamex ending January 29, 2006
Fiscal month of Foamex ending 4.00
February 26, 2006 and each fiscal
month of Foamex ending thereafter
through and including the fiscal month
of Foamex ending April 30, 2006
Fiscal month of Foamex ending May 3.75
28, 2006 and each fiscal month of
Foamex ending thereafter through and
including the fiscal month of Foamex
ending July 30, 2006
Fiscal month of Foamex ending 3.50
August 27, 2006 and each fiscal
month of Foamex ending thereafter
through and including the fiscal month
of Foamex ending October 29, 2006
Fiscal month of Foamex ending 3.35
December 4, 2006 and each fiscal
month of Foamex ending thereafter
through and including the fiscal month
of Foamex ending April 29, 2007
Fiscal month of Foamex ending May 3.25
27, 2007 and each fiscal month
of Foamex ending thereafter
2.5 The definition of "Fixed Charges" in Annex A to the Credit Agreement is
hereby amended by (a) adding "and the Delaware County (PA) Industrial Revenue
Bonds, in each instance," immediately after the words "Foamex 13 1/2%
Subordinated Notes" in clause (ii) of such definition, (b) deleting the comma at
the end of subclause (E) of clause (vii) of such definition and substituting
"and" therefor and (c) deleting subclauses (G) and (H) from clause (vii) of such
definition.
2.6 The definition of "Junior Term Loan Funding Conditions" in Annex A to
the Credit Agreement is hereby amended by (a) adding "(other than up to
$25,000,000 of Additional B Term Loans made on or after the Fourth Amendment
Effective Date used to repay principal on the Revolving Loans)" after the words
"in respect of or under the Additional B Term Loans" in clause (v) thereof and
(b) adding "and not used to repay Term Loans or Additional
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B Term Loans as permitted under clause second of the fifth sentence of Section
3.4(f)" immediately after the words "to the extent permitted for such purpose"
in clause (v) thereof.
2.7 The definition of "Revolving Loan Application Order" in Annex A to the
Credit Agreement is hereby amended by deleting the words "clause fifth" and
substituting therefor the words "clause fourth".
2.8 Section 1.3A(a)(i) of the Credit Agreement is hereby amended by (a)
adding "(other than the portion of the Additional B Term Loans made on or after
the Fourth Amendment Effective Date used, to the extent permitted hereunder, to
repay principal on the Revolving Loans)" immediately after the words "the amount
of the Additional B Term Loans" in clause (i) of the proviso in the first
sentence thereof and (b) adding "and are not applied to the Term Loans or
Additional B Term Loans as permitted under clause "second" of the fifth sentence
of Section 3.4(f)" immediately after the words "clause "first" of the fifth
sentence of Section 3.4(f)" in clause (iii) of the proviso in the first sentence
thereof.
2.9 Section 3.4(a) of the Credit Agreement is hereby amended by deleting
each reference to "clause seventh of the fifth sentence of Section 3.4(f)"
appearing in the proviso to the last sentence thereof and substituting "clauses
second and seventh of the fifth sentence of Section 3.4(f)" therefor.
2.10 Section 3.4(f) of the Credit Agreement is hereby amended by (a) adding
"and in the fifth sentence of this Section 3.4(f)" immediately after the words
"except as provided in the first parenthetical of this sentence" in the proviso
to the first sentence thereof, (b) amending and restating clause two of the
fifth sentence thereof to read as follows:
second, at the option of Foamex, in the event (and only such event) that
(x) the average aggregate Availability for all Borrowers for the thirty
consecutive day period ending on the Business Day immediately preceding the
date of such repurchase or repayment is greater than the sum of (i)
$10,000,000 plus (ii) the Availability Required Amount in effect on the
Business Day immediately preceding the date of such repurchase or
repayment, (y) immediately after giving effect to such repurchase or
repayment, the aggregate Availability of all the Borrowers is greater than
the sum of (i) $10,000,000 plus (ii) the Availability Required Amount in
effect on the date of such repurchase or repayment, and (z) at the time of
such repurchase or repayment there exists no Default or Event of Default
(and no Default or Event of Default would result therefrom), to repurchase
at par or a discount on the open market or repay at maturity Foamex 13 1/2%
Subordinated Notes and/or to repay principal on Additional B Term Loans
made on or after the Fourth Amendment Effective Date used, to the extent
permitted hereunder, to repay principal on Revolving Loans; provided, that
until the Term Loans are paid in full, no such repayments of Additional B
Term Loans shall be permitted unless concurrently therewith an amount of
proceeds of such disposition of Designated Assets (in addition to those Net
Proceeds required to be applied pursuant to clause first and other clauses
of this sentence) equal to such proceeds used to repay principal of
Additional B Term Loans as provided above (one-half of such proceeds after
$8,000,000 of principal on the Term Loans is
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repaid with proceeds of dispositions of Designated Assets pursuant to this
clause second) are also applied to scheduled installments of principal on
the Term Loans in inverse order of maturity,
, (c) adding "and/or repay principal on Additional B Term Loans and Term Loans"
immediately after the words "If Foamex elects pursuant to clause "second" of the
previous sentence to repurchase or repay Foamex 13 1/2 % Subordinated Notes" at
the beginning of the sixth sentence thereof and (d) adding "and/or to repay
principal on Additional B Term Loans and Term Loans in accordance with clause
"second" of the previous sentence, as appropriate" immediately after the words
"in accordance with Section 7.12(E)" in the sixth sentence thereof.
2.11 Section 7.24 of the Credit Agreement is hereby amended and restated in
its entirety to read as follows:
7.24 Fixed Charge Coverage Ratio. Foamex shall not permit the Fixed Charge
Coverage Ratio for any fiscal quarter period of Foamex set forth below
to be less than the ratio set forth opposite such fiscal quarter
period:
Fiscal Quarter Period Ratio
--------------------- -----
Fiscal quarter of Foamex ending on or 0.56:1.00
about March 31, 2005
Two consecutive fiscal quarter period of 0.65:1.00
Foamex ending on or about June 30, 2005
Three consecutive fiscal quarter period of 0.75:1.00
Foamex ending on or about September 30,
2005
Four consecutive fiscal quarter period of 0.81:1.00
Foamex ending on or about December 31,
2005
Four consecutive fiscal quarter period of 0.89:1.00
Foamex ending on or about March 31,
2006
Each four consecutive fiscal quarter 1.00:1.00
period of Foamex ending on or about June
30, 2006 and thereafter
2.12 Section 7.16 of the Credit Agreement is hereby amended by deleting the
clause "or clause seventh of the fifth sentence of Section 3.4(f)" immediately
after the words "second sentence of Section 3.4(f)" in clause (e) thereof and
substituting "or clauses second or seventh of the fifth sentence of Section
3.4(f)" therefor.
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2.13 Section 7.27 of the Credit Agreement is hereby amended by adding the
following proviso at the end of clause (ii) thereof immediately before the
period:
; provided, that during the period commencing on the Fourth Amendment
Effective Date and ending on January 15, 2006 so long as the aggregate
Borrowing Bases of all the Borrowers and Foamex Canada is equal to or
greater than $190,000,000 (calculated without giving effect to any
reduction in the Borrowing Bases pursuant to the parenthetical below), the
minimum Availability required to be maintained by the Borrowers shall be
$10,000,000 (it being agreed that if this proviso shall be in effect, in
determining compliance with such $10,000,000 minimum Availability test, the
aggregate Borrowing Bases of all the Borrowers and Foamex Canada shall be
deemed reduced by $5,000,000)
SECTION 3. EFFECTIVENESS. This Amendment shall become effective on such
date as the following conditions shall have been satisfied in full:
3.1 Counterparts of this Amendment executed by the Borrowers, the
Guarantors, the Lenders and the Administrative Agent shall have been delivered
to the Administrative Agent.
3.2 The Administrative Agent shall have received an amendment to the Senior
Lenders Intercreditor Agreement, duly executed by the Term Loan B Agent, Foamex
and those Affiliates of Foamex party thereto, in form and substance satisfactory
to the Administrative Agent.
3.3 The Administrative Agent shall have received a copy, certified by a
Responsible Officer of Foamex as true and complete, of an amendment to the Term
Loan B Agreement, consenting to this Amendment and providing for amendments to
the Term Loan B Agreement consistent with certain amendments herein
contemplated, which amendment shall be in form and substance satisfactory to the
Administrative Agent and the Majority Lenders.
3.4 The Administrative Agent shall have received, in form and substance
satisfactory to the Administrative Agent and the Bank, two fully executed fee
letters, dated the date hereof (the "Fee Letters"), each between the
Administrative Agent and the Borrowers and the Administrative Agent shall have
received payment of all fees payable thereunder.
SECTION 4. CONSENT TO AMENDMENTS TO SENIOR LENDERS INTERCREDITOR AGREEMENT
AND TERM LOAN B AGREEMENT.
4.1 Each of the Lenders, by its signature to this Amendment, hereby
authorizes the Administrative Agent to enter into the amendment to the Senior
Lenders Intercreditor Agreement referred to in Section 3.2 of this Amendment and
agrees to be bound by the provisions of the Senior Lenders Intercreditor
Agreement as so amended.
4.2 Each of the Lenders, by its signature to this Amendment, hereby
consents to the amendment to the Term Loan B Agreement, a copy of which is
attached as Exhibit A hereto.
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SECTION 5. COUNTERPARTS. This Amendment may be executed in counterparts,
each of which shall be an original, and all of which, taken together, shall
constitute a single instrument. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
SECTION 6. REFERENCES TO CREDIT AGREEMENT. From and after the effectiveness
of this Amendment and the amendments contemplated hereby, all references in the
Credit Agreement to "this Agreement", "hereof", "herein", and similar terms
shall mean and refer to the Credit Agreement, as amended and modified by this
Amendment, and all references in other documents to the Credit Agreement shall
mean such agreement as amended and modified by this Amendment.
SECTION 7. RATIFICATION AND CONFIRMATION. The Credit Agreement is hereby
ratified and confirmed and, except as herein agreed, remains in full force and
effect. Each of the Borrower and the Guarantors represents and warrants that (i)
all representations and warranties contained in the Loan Documents are correct
in all material respects with the same effect as though such representations and
warranties had been made on and as of the date hereof (except to the extent that
such representations or warranties expressly related to a specified prior date,
in which case such representations and warranties shall be correct in all
material respects as of such specified prior date) and (ii) there exists no
Default or Event of Default. Each of the Guarantors hereby ratifies its
Guarantee of the Obligations and its grant of a security interest in the
Collateral in which it has an interest to secure the payment of the Obligations.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the day and year
first above written.
FOAMEX L.P.
By: FMXI, Inc., its Managing General Partner
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------
Title: Vice President
--------------------------------
FMXI, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------
Title: Vice President
-------------------------------------
FOAMEX INTERNATIONAL INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------
Title: Senior Vice President
-------------------------------------
FOAMEX CANADA INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------
Title: Treasurer
-------------------------------------
FOAMEX CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------
Title: Vice President
-------------------------------------
FOAMEX LATIN AMERICA, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------
Title: Vice President
-------------------------------------
FOAMEX MEXICO, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------
Title: Vice President
-------------------------------------
FOAMEX MEXICO II, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------
Title: Vice President
-------------------------------------
FOAMEX ASIA, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------
Title: Vice President
-------------------------------------
FOAMEX CARPET CUSHION LLC
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------
Title: Vice President
-------------------------------------
BANK OF AMERICA, N.A., Individually and as
Administrative Agent
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Title: Vice President
-------------------------------------
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxx XxXxxxxx
-------------------------------------
Title: Duly Authorized Signatory
-------------------------------------
JPMORGAN CHASE BANK, N.A.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Title: Vice President
-------------------------------------
CONGRESS FINANCIAL CORPORATION
(CENTRAL)
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Title: Vice President
-------------------------------------
STATE OF CALIFORNIA PUBLIC
EMPLOYEES' RETIREMENT SYSTEM
By: /s/ J. Xxxxxxx Xxxxxxx, Xx.
-------------------------------------
Title:
-------------------------------------
PNC BANK, NATIONAL ASSOCIATION
By: /s/ W. Xxxxx Xxxxxxxxxx
-------------------------------------
Title:
-------------------------------------
XXXXX FARGO FOOTHILL, LLC
By: /s/ Xxxx Xxxxxxx
-------------------------------------
Title: Vice President
-------------------------------------
