[Execution Form]
FIRST AMENDMENT TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT, dated as of December 23, 1997
(the "First Amendment"), amends in certain respects the Credit Agreement dated
as of June 12, 1997 (the "Credit Agreement"), among Foamex L.P. ("Foamex"),
General Felt Industries, Inc. ("GFI"; and together with Foamex, the
"Borrowers"), Trace Foam Company, Inc. ("Trace Foam"), FMXI, Inc. ("FMXI"), the
institutions from time to time party thereto as Lenders, the institutions from
time to time party thereto as Issuing Banks and Citicorp USA, Inc., as
collateral agent for the Lenders and the Issuing Banks (the "Collateral Agent")
and The Bank of Nova Scotia, as funding agent for the Lenders and the Issuing
Banks (the "Funding Agent"; together with the Collateral Agent, the
"Administrative Agents").
R E C I T A L S:
-----------------
WHEREAS, in connection with the contribution of the assets of Xxxxx
Holdings Corp. and certain of its subsidiaries to (and the assumption of the
liabilities of Xxxxx Holdings Corp. and certain of its subsidiaries by) Foamex,
the Borrowers have requested the undersigned, which constitute the Requisite
Lenders, to amend the Credit Agreement as set forth herein. The Lenders party
hereto have agreed to amend the Credit Agreement to accommodate the request of
the Borrowers contained herein, subject to the terms set forth herein.
NOW, THEREFORE, in consideration of the above recitals each of the
Borrowers, Trace Foam, FMXI, the Lenders party hereto and the Administrative
Agents agree as follows:
SECTION 1. Defined Terms. Terms defined in the Credit Agreement and not
otherwise defined herein have the meanings given such terms in the Credit
Agreement.
SECTION 2. Amendments to the Credit Agreement. The Credit Agreement is
hereby amended as follows:
2.1. Section 1.01 of the Credit Agreement is amended by adding the
following definitions to such section in alphabetical order:
"Bridge Financing" means the up to $180 million in principal amount of
bridge loans made by the Bridge Financing Lender to Xxxxx Acquisition Subsidiary
to pay in part the merger consideration for Xxxxx Holdings pursuant to the Xxxxx
Merger Agreement and to provide funds for the Defeasance of the Existing Xxxxx
Notes not exchanged for New Foamex Notes.
"Bridge Financing Lender" means Scotiabank, in its individual capacity.
"Contribution" means the contribution (including all of the membership
interests in Xxxxx LLC) of all of the assets of Xxxxx Holdings by Foamex
International and Xxxxx Holdings to Foamex in exchange for a non-managing
general partnership Equity Interest of Foamex issued to Foamex International or
Xxxxx Industries.
"Xxxxx Acquisition Subsidiary" means Merger Acquisition Corp., a
Delaware corporation and a wholly-owned Subsidiary of Foamex International.
"Xxxxx Guaranty" means the Guaranty, dated as of December 23, 1997,
executed by Xxxxx Industries in favor of the Administrative Agents, the Lenders
and Issuing Banks pursuant to which Xxxxx Industries guarantees all of the
Obligations of the Borrowers, as the same may be amended, supplemented or
modified from time to time.
"Xxxxx Holdings" means Xxxxx Holdings Corp., a Delaware corporation.
"Xxxxx Indenture Trustee" means IBJ Xxxxxxxxx Bank & Trust Company.
"Xxxxx Industries" means Xxxxx Industries, Inc., a Delaware
corporation.
"Xxxxx LLC" means Foamex LLC, a Delaware limited liability company, and
(i) prior to the Contribution, a wholly-owned Subsidiary of Xxxxx Industries and
(ii) after giving effect to the Contribution, a wholly-owned Subsidiary of
Foamex.
"Xxxxx Merger Agreement" means the Agreement and Plan of Merger
Agreement, dated as of December 8, 1997 among Xxxxx Holdings, Foamex
International and Xxxxx Acquisition Subsidiary providing for the merger of Xxxxx
Holdings and Xxxxx Acquisition Subsidiary.
"Xxxxx Restructuring" means the proposed plan of consolidation of plant
operations and administrative functions of Xxxxx Industries and Foamex, all as
more fully described on page 12 of the financial information in the memorandum
dated December, 1997 relating to Foamex delivered to the Lenders.
"Xxxxx Transaction Documents" means (i) the Xxxxx Merger Agreement,
(ii) the Exchange Offer Documents and (iii) all agreements, notes and other
documents relating to the Bridge Financing.
"Defeasance" means with respect to the Existing Xxxxx Notes, either (i)
the Existing Xxxxx Indenture shall cease to be of further effect, whether by
virtue of the fact that all of such securities have been called for redemption,
and the redemption price and all accrued and unpaid interest to the redemption
date shall have been deposited with the Xxxxx Indenture Trustee, or otherwise,
or (ii) all obligations of Xxxxx Industries under the Existing Xxxxx Indenture
shall have been terminated as a result of a legal defeasance, in each case other
than certain provisions relating to registration and transfer of securities and
the Xxxxx Indenture Trustee.
"Exchange Offer" means the private placement exchange offer of Foamex
pursuant to the Exchange Offer Documents pursuant to which the consenting
holders of the Existing Xxxxx Notes will, on the First Amendment Date, exchange
such Existing Xxxxx Notes for an equal principal amount of New Foamex Notes.
"Exchange Offer Documents" means the New Foamex Indenture and the New
Foamex Registration Rights Agreement.
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"Existing Xxxxx Indenture" means the Indenture, dated as of August 29,
1995, between Xxxxx Industries and the Xxxxx Indenture Trustee, as in effect on
the First Amendment Date.
"Existing Xxxxx Notes" means the 13 1/2 % Senior Subordinated Notes due
2005 issued by Xxxxx Industries and governed by the terms of the Existing Xxxxx
Indenture.
"First Amendment" means the First Amendment to Credit Agreement, dated
as of December 23, 1997, among the Borrowers, the Lenders party thereto, the
Collateral Agent and the Funding Agent.
"First Amendment Date" means the Effective Date (as such term is
defined in the First Amendment).
"New Foamex Notes" means the 13 1/2 % Senior Subordinated Notes due
2005 issued by Foamex pursuant to the terms of the New Foamex Indenture, as such
notes may be amended, supplemented or otherwise modified from time to time.
"New Foamex Indenture" means the indenture, dated as of the First
Amendment Date, pursuant to which the New Foamex Notes were issued, as such
agreement may be amended, supplemented or otherwise modified from time to time.
"New Foamex Registration Rights Agreement" means the Registration
Rights Agreement dated December 23, 1997 between Foamex and FCC, as issuers,
entered into for the benefit of the holders of the New Foamex Notes and
providing for the registration thereof under the Securities Act.
"Term D Loans" is defined in Section 2.04(e).
"Term D Note" means a promissory note of Foamex payable to any Lender,
in the form of Exhibit A-6 hereto (as such promissory note may be amended,
endorsed or otherwise modified from time to time), evidencing the aggregate
Indebtedness of Foamex to such Lender resulting from outstanding Term D Loans,
and also means all other promissory notes accepted from time to time in
substitution therefor or renewal thereof.
2.2. The following definitions contained in Section 1.01 of the Credit
Agreement are hereby amended as follows:
(a) The definition of "Applicable Margin" is hereby amended by (i)
deleting the "and" at the end of clause (a) thereof, (ii) changing the "." at
the end of clause (b) (iii) thereof to "; and" and (iii) adding a new clause (c)
at the end of clause (b) thereto to read as follows:
"(c) with respect to the unpaid principal amount of each Term
D Loan maintained as a LIBO Rate Loan, the applicable percentage set
forth below under the column entitled "Applicable Margin for Term D
LIBO Rate Loans", and with respect to the unpaid principal amount of
each Term D Loan maintained as a Base Rate Loan, the applicable
percentage below under the column entitled "Applicable Margin for Term
D Base Rate Loans":
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Total Net Debt Applicable Applicable
to EBDAIT Margin For Term D Margin For Term D
Ratio Base Rate Loans LIBO Rate Loans
------------------ ------------------ -----------------
Less than 4.0:1 1.25% 2.25%
Greater than or equal to 1.50% 2.50%
4.00:1 and less than
4.50:1
Greater than or equal to 1.75% 2.75%".
4.50:1
(b) The definition of "Change of Control" is amended by adding the
phrase ", Xxxxx Industries" after the term "FMXI" in clauses (b) and (c) of the
definition thereof.
(c) The definition of "EBDAIT" is amended by adding the following
proviso to the end thereof to read as follows: "provided, however, that there
shall be excluded from the computation of EBDAIT (i) gains and/or losses
incurred in the fourth Fiscal Quarter of Fiscal Year 1997 in connection with the
disposition of GFI's Dalton, Georgia Facility not to exceed $500,000, (ii)
non-recurring charges incurred in connection with the acquisition of the assets
and liabilities of Xxxxx Holdings and its Subsidiaries in an aggregate amount
not to exceed $27,500,000, (iii) other non-recurring charges incurred during the
fourth Fiscal Quarter of Fiscal Year 1997 in an aggregate amount not to exceed
$17,500,000 and (iv) the redemption premium paid on the Existing Xxxxx Notes".
(d) The definition of "Foamex Mexico Group" is amended by (i) deleting
the "and" at the end of clause (c) thereof, (ii) amending clause (b) thereof to
read "(b) Foamex de Cuautitlan S.A. de C.V.," (iii) adding a new clause (e)
thereto to read as follows: "and (e) any other direct or indirect wholly owned
Subsidiary of any such Mexican Subsidiary permitted to be created or acquired
hereunder".
(e) The definition of "Funded Debt" is amended by adding a new last
sentence thereto to read as follows:
"For purposes of calculating Funded Debt, only the face amount of the
New Foamex Notes shall be included therein."
(f) The definition of "General Partners" is amended and restated in its
entirety to read as follows:
"General Partners" means collectively, each of Trace Foam and Xxxxx
Industries, as general partners, and the Managing General Partner.
(g) The definition of "L/C Sublimit" is amended and restated in its
entirety to read as follows:
"`L/C Sublimit' means $50,000,000."
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(h) The definition of "Loan Documents" is hereby amended by adding the
phrase ", the Xxxxx Guaranty," after the term "Partnership Pledge Agreement"
contained therein.
(i) The definition of "Net Worth" is amended by amending and restating
clause (a) thereof in its entirety to read as follows:
"(a) the sum of (i) total consolidated assets of such Person
plus (ii) non-recurring charges incurred in connection with
the acquisition of the assets and liabilities of Xxxxx
Holdings and its Subsidiaries in an aggregate amount not to
exceed $27,500,000, plus (iii) the redemption premium paid on
the Existing Xxxxx Notes".
(j) The definition of "Permitted Subordinated Indebtedness" is amended
by (i) changing the word "and" before clause (f) thereof to "," and (ii) adding
new clauses (g), (h) and (i) immediately prior to the period at the end thereof
to read as follows:
"(g) the New Foamex Notes in a principal amount not to exceed
a principal amount equal to $100,000,000 minus the principal amount of
Existing Xxxxx Notes redeemed or defeased pursuant to the Defeasance,
(h) other subordinated Indebtedness of Foamex having terms no
more disadvantageous to the Borrowers and the Lenders than those terms
set forth in the New Foamex Subordinated Notes and incurred in
connection with the Contribution and Assumption, and
(i) other subordinated Indebtedness of Foamex satisfying the
requirements of Section 11.01(s) in an amount not to exceed the
principal amount of New Foamex Notes so refinanced, transaction costs
associated therewith and associated redemption premiums."
(k) The definition of "Proceeds of Issuance of Equity Interests or
Indebtedness" is amended by adding the following proviso to the end thereof to
read as follows: "provided, however, that (i) the issuance by Foamex
International of Equity Interests pursuant to the Merger Agreement, (ii) the
issuance by Foamex of Equity Interests to Xxxxx Industries and/or Foamex
International in consideration of the Contribution, (iii) the issuance of the
New Foamex Notes or (iv) the issuance of Permitted Subordinated Indebtedness
described in clauses (h) and (i) of the definition thereof, in each such case,
shall not constitute Proceeds of Issuance of Equity Interests or Indebtedness."
(l) The definition of "Pro Rata Share" is amended (i) by replacing the
"and" at the end of clause (c) thereto and replacing it with a "," and (ii) by
adding a new clause (e) thereto immediately prior to the period at the end
thereof to read as follows: "and (e) with respect to Term D Loans, the
percentage obtained by dividing (i) such Lender's Term D Loans by (ii) the
aggregate amount of all Term D Loans".
(m) The definition of "Permitted Businesses" is amended by adding a new
clause (c) thereto to read as follows:
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and "(c) the businesses engaged in by Xxxxx Industries and its
Subsidiaries on the First Amendment Date and similar lines of business
engaged in by Xxxxx Industries and its Subsidiaries on the First
Amendment Date."
(n) The definition of "TEFSA" is amended and restated in its entirety
to read as follows:
"TEFSA" means Foamex de Cuautitlan S.A. de C.V.
(o) The definition of "Term Loans" is amended and restated in its
entirety to read as follows:
"`Term Loans' means, collectively, the Term A Loans, the Term
B Loans, the Term C Loans and the Term D Loans."
(p) The definition of "Term Notes" is amended and restated in its
entirety to read as follows:
"`Term Notes' means, collectively, the Term A Notes, the Term
B Notes, the Term C Notes and the Term D Notes."
(q) The definition of "Transaction Costs" is hereby amended by adding
the phrase "and the Xxxxx Transaction Documents" after the term "Loan Documents"
contained therein.
(r) The definition of "Transaction Documents" is hereby amended by
adding the phrase ", the New Foamex Notes, the New Foamex Indenture, the New
Foamex Registration Rights Agreement, the Xxxxx Transaction Documents, the
documents, agreements and other writings related to the Xxxxx Restructuring and"
after the term "Tax Advance Agreement" contained therein.
2.3. Section 1.03 of the Credit Agreement is amended by adding the
following sentences thereto:
"For purposes of calculating (a) the Total Net Debt to EBDAIT Ratio,
Xxxxx Holdings and its Subsidiaries (including the results of
operations of SIMCO Corporation for the full Fiscal Year 1997) shall be
deemed to have become Subsidiaries of Foamex on the first day of Fiscal
Year 1997 and (b) the amount of Excess Cash Flow in respect of Fiscal
Year 1997 shall be calculated as if Xxxxx Holdings and its Subsidiaries
had become Subsidiaries of Foamex on the first day of fiscal year
1998."
2.4. Section 2.01(d) of the Credit Agreement is amended by adding a new
clause (v) thereto to read as follows:
"and (v) and up to $40,000,000 in principal amount of Revolving Loans
may be utilized on the First Amendment Date to repay in part the Bridge
Financing."
2.5. Section 2.02(a) of the Credit Agreement is amended by changing the
amount of $10,000,000" therein to "$15,000,000".
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2.6. Section 2.03(a)(iv) of the Credit Agreement is amended and restated in
its entirety to read as follows:
"(iv) which is in a currency other than Dollars unless otherwise agreed to
by the Issuing Bank and the
Administrative Agents."
2.7. Section 2.04(d) of the Credit Agreement is amended and restated to
read as follows:
"(d) Use of Proceeds of Term Loans. The proceeds of the Term
Loans shall be used solely (i) in the case of all Term Loans, to fund
the Refinancing (other than Term D Loans) and to pay Transaction Costs,
(ii) in the case of Term A Loans made after the Effective Date, to fund
the Delayed Purchases or to refund Swing Loans or Revolving Loans used
to fund Delayed Purchases and (iii) in the case of Term D Loans to pay
in part the cash merger consideration under the Xxxxx Merger Agreement
and the Defeasance."
2.8. A new Section 2.04(e) is hereby added to the Credit Agreement to
read as follows:
"(e) Term D Loans. (i) As of the First Amendment Date, the
loans made pursuant to the Bridge Financing, after giving effect to any
prepayment thereof on the First Amendment Date, shall be assumed by
Foamex (such loans being the "Term D Loans") and the terms and
conditions thereof shall be amended and restated by the provisions of
this Agreement relating to Term D Loans and, from and after the First
Amendment Date, all Term D Loans shall in all respects be deemed Term
Loans and Loans hereunder; provided, that, the aggregate amount of Term
D Loans shall not exceed an amount equal to the difference of (i)
$140,000,000 minus (ii) an amount equal to the excess, if any of (I)(x)
the face amount of New Foamex Notes outstanding on the First Amendment
Date plus (y) the face amount of any other Permitted Subordinated
Indebtedness issued on the First Amendment Date plus (z) the aggregate
value of any contribution to the equity of Foamex made on the First
Amendment Date over (II) $70,000,000.
(ii) On the First Amendment Date, Scotiabank, as the initial
Term D Loan Lender, shall be deemed (upon receipt of payment therefor,
as set forth in the immediately following sentence) to have assigned to
certain Lenders (as set forth on Exhibit C to the First Amendment), and
each such Lender shall be deemed to have purchased, Term D Loans in the
principal amount indicated on such signature pages. Upon such payment
therefor as agreed upon between Scotiabank and such Lender, such Lender
shall be a Lender of Term D Loans hereunder.
(iii) Term D Loans are hereby designated `Designated Senior
Debt' for all purposes of the New Foamex Subordinated Note Indenture
and the New Foamex Subordinated Notes."
2.9. A new Section 3.01(b)(ix) is hereby added to the Credit Agreement
to read as follows:
"(ix) On each Quarterly Payment Date set forth below, Foamex
shall make a scheduled repayment of the aggregate outstanding principal
amount (expressed as a percentage of the original principal amount of
the Term D Loans), if any, of all Term D
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Loans in an amount equal to the amount set forth below opposite the applicable
Quarterly Payment Date:
Percentage of Original
Period Principal Amount
------ ----------------------
March 31, 1998 0.25%
June 30, 1998 0.25%
September 30, 1998 0.25%
December 31, 1998 0.25%
March 31, 1999 0.25%
June 30, 1999 0.25%
September 30, 1999 0.25%
December 31, 1999 0.25%
March 31, 2000 0.25%
June 30, 2000 0.25%
September 30, 2000 0.25%
December 31, 2000 0.25%
March 31, 2001 0.25%
June 30, 2001 0.25%
September 30, 2001 0.25%
December 31, 2001 0.25%
March 31, 2002 0.25%
June 30, 2002 0.25%
September 30, 2002 0.25%
December 31, 2002 0.25%
March 31, 2003 0.25%
June 30, 2003 0.25%
September 30, 2003 0.25%
December 31, 2003 0.25%
March 31, 2004 0.25%
June 30, 2004 0.25%
September 30, 2004 0.25%
December 31, 2004 0.25%
March 31, 2005 0.25%
June 30, 2005 0.25%
September 30, 2005 0.25%
December 31, 2005 0.25%
March 31, 2006 23%
June 30, 2006 23%
September 30, 2006 23%
December 31, 2006 23%
Section 2.10. The proviso to Section 3.02(b)(ii) of the Credit
Agreement is amended by (a) replacing the "or" prior to the term "Term C Loan"
with a "," and (b) adding the phrase "or Term D Loan" after the phrase "Term C
Loan" contained therein.
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Section 2.11. Section 4.02(b)(vi) of the Credit Agreement is amended by
changing the number "twelve (12)" contained therein to "fifteen (15)".
Section 2.12. Section 6.01(a)(iv) of the Credit Agreement is amended by
(a) adding the phrase "or, in the case of any such Subsidiary that is a limited
liability company, a limited liability company," after the phrase "is a
corporation" in subclause (A) thereof, (b) adding the phrase "or, in the case of
any such Subsidiary that is a limited liability company, a foreign limited
liability company," after the phrase "foreign corporation" in subclause (B)
thereof, and (c) adding the phrase "or, in the case of any such Subsidiary that
is a limited liability company, limited liability company authority," after the
phrase "corporate power" in subclause (C) thereof.
Section 2.13. Section 6.01(b)(i) of the Credit Agreement is amended by
adding the phrase "or, in the case of any such Subsidiary that is a limited
liability company (or any other limited liability company), limited liability
company power," after the phrase "corporate power" contained therein.
Section 2.14. Section 6.01(h) of the Credit Agreement is amended by (a)
changing the date "June 29, 1997" therein to "September 28, 1997", (b) deleting
the term "estimated" therefrom and (c) changing the date "June 30, 1997" therein
to the date "September 28, 1997".
Section 2.15. Section 6.01(aa) of the Credit Agreement is amended by
(a) adding the phrase ", the New Foamex Indenture" after the phrase "the
Subordinated Debenture Indenture" in the first sentence thereof, (b) adding the
phrase ", the New Foamex Notes" after the phrase "the Subordinated Debentures"
in the first sentence thereof and (c) adding the phrase "and the New Foamex
Indenture" after the phrase "the 1993 Subordinated Debenture Indenture" in the
second sentence thereof.
Section 2.16. Section 6.01(bb) of the Credit Agreement is amended by
adding the phrase ", the New Foamex Indenture" after each appearance of the
phrase "the Subordinated Debenture Indenture" in such section.
Section 2.17. Section 7.01(f) of the Credit Agreement is amended by
changing the reference of "Fiscal Year 1997" to "Fiscal Year 1998".
Section 2.18. Section 8.01 of the Credit Agreement is amended by adding
the phrase "or, in the case of any such Subsidiary that is a limited liability
company, limited liability company existence," after the phrase " corporate
existence" contained therein.
Section 2.19. Section 9.02 of the Credit Agreement is amended by (a)
replacing the amount "$50,000,000" appearing in clause (iii) thereof with the
phrase "$100,000,000; provided, however, that the aggregate amount of such sales
to and such Investments in Subsidiary Guarantors other than GFI, Foamex Fibers
and Xxxxx LLC shall not exceed $50,000,000", (b) amending clause (vi) thereof by
adding the words "or lease" after the word "sale" in the first and second lines
thereof, (c) deleting the word "and" after clause (viii) thereof, (d) adding the
word "and" after the ";" at the end of clause (ix) thereof and (e) adding a new
clause (x) thereto to read as follows:
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"(x) sales or other dispositions of assets in connection
with the Xxxxx Restructuring;".
Section 2.20. Section 9.04 of the Credit Agreement is amended by (a)
changing the phrase "$50,000,000, in the aggregate at any time outstanding"
appearing in clause (vi) thereof "$100,000,000 in the aggregate at any time
outstanding; provided, however, that the aggregate amount of all such sales or
transfers to and all loans or advances to Subsidiary Guarantors other than GFI,
Foamex Fibers and Xxxxx LLC shall not exceed $50,000,000 in the aggregate at any
time outstanding, "(b) deleting the word "and" after clause (x) thereof, (c)
adding the word "and" after the ";" at the end of clause (xi) thereof, (d)
adding a new clause (xii) thereto to read as follows:
"(xii) Investments made by Foamex in Xxxxx LLC on the First
Amendment Date in connection with the Contribution;".
"and (e) by adding a new last sentence to the proviso thereto to read
as follows:
"Notwithstanding the foregoing, the Borrowers shall not be required to
enter into Lockbox Agreements relating to deposit accounts maintained
by Xxxxx Industries or it Subsidiaries until the later of the 60th day
after the First Amendment Date and such later date as consented to by
the Administrative Agents".
Section 2.21. Clause (iii) of Section 9.05 of the Credit Agreement is
amended and restated in its entirety to read as follows :
"(iii) Accommodation Obligations of the Subsidiary Guarantors
in connection with their guaranty of (A) the New Foamex Subordinated
Notes, but only to the extent set forth in the New Foamex Subordinated
Note Indenture and (B) the New Foamex Notes, but only to the extent set
forth in the New Foamex Indenture;".
Section 2.22. Clause (ii)(x) of Section 9.06 of the Credit Agreement is
amended and restated in its entirety to read as follows :
"(x) regularly scheduled interest payments in respect of the
New Foamex Subordinated Notes, the Subordinated Debentures, the 1993
Subordinated Debentures and the New Foamex Notes if such interest
payments are permitted to be made pursuant to the terms of the New
Foamex Subordinated Notes and the New Foamex Subordinated Note
Indenture, the Subordinated Debentures and the Subordinated Debenture
Indenture, the 1993 Subordinated Debentures and the 1993 Subordinated
Debenture Indenture or the New Foamex Notes and the New Foamex
Indenture, as the case may be,".
Section 2.23. Section 9.07 of the Credit Agreement is amended by adding
the phrase (a) ", New Foamex Notes" after the phrase "the Senior Notes" and (b)
"New Foamex Indenture" after the phrase "the Senior Note Indenture" contained
therein.
Section 2.24. Section 9.08 of the Credit Agreement is amended by (a)
deleting the "or" immediately prior to clause (vii) thereof and (b) adding
immediately prior to the period at the end thereof a new clause (viii) thereto
to read as follows:
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"or (viii) the Contribution, the transactions contemplated by the Xxxxx
Transaction Documents and the Xxxxx Restructuring".
Section 2.25. Section 9.09 of the Credit Agreement is amended by (a)
changing the word "or" at the end of clause (i) of the proviso of the first
sentence thereto and (b) adding a new clause (iii) thereto prior to the period
at the end of such sentence to read as follows:
"and (iii) each General Partner may dividend or transfer the Equity
Interests it owns in Foamex International or Trace Foam Sub to TIHI or
a wholly-owned Subsidiary thereof".
Section 2.26. Section 9.13 of the Credit Agreement is amended by adding
the phrase "or to Xxxxx Industries or its Subsidiaries in connection with the
Contribution" immediately prior to the period at the end thereof.
Section 2.27. Section 9.14 of the Credit Agreement is amended by
changing the phrase "on the Effective Date" to the phrase "on the First
Amendment Date except to reflect the issuance of Equity Interests to Xxxxx
Industries and/or its Subsidiaries in connection with the Contribution".
Section 2.28. Section 9.16 of the Credit Agreement is amended by (a)
amending and restating clause (iv) thereof in its entirety to read as follows:
"(iv) repayments of the Existing Secured Debt, the New Foamex
Subordinated Notes, the Subordinated Debentures, the 1993 Subordinated
Debentures and the New Foamex Notes to the extent required to be made
pursuant to the terms of the Existing Secured Debt Indentures, the New
Foamex Subordinated Note Indenture, the Subordinated Debenture
Indenture, the 1993 Subordinated
Debenture Indenture and the New Foamex Indenture, respectively;
(b) deleting the "and" immediately prior to clause (v) thereof and (c)
adding immediately prior to the period at the end thereof a new clause
(vi) thereto to read as follows:
"or (vi) repayments of Indebtedness incurred pursuant to the
provisions of Section 9.01(vii)(x)."
Section 2.29. Article X of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"ARTICLE X
FINANCIAL COVENANTS
Each Borrower covenants and agrees that so long as any Commitments are
outstanding and thereafter until all of the Obligations are paid in full (or, in
the case of contingent Obligations (other than indemnities 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:
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10.1 Minimum Net Worth. The Net Worth of Foamex 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 Borrowers 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)
---------------------------------------- --------------------------
Second fiscal quarter of 1997 $(154.3)
Third fiscal quarter of 1997 (151.0)
Fourth fiscal quarter of 1997 (146.4)
First fiscal quarter of 1998 (142.0)
Second fiscal quarter of 1998 (136.4)
Third fiscal quarter of 1998 (128.9)
Fourth fiscal quarter of 1998 (121.4)
First fiscal quarter of 1999 (117.2)
Second fiscal quarter of 1999 (111.9)
Third fiscal quarter of 1999 (104.8)
Fourth fiscal quarter of 1999 (97.6)
First fiscal quarter of 2000 (92.8)
Second fiscal quarter of 2000 (86.7)
Third fiscal quarter of 2000 (78.4)
Fourth fiscal quarter of 2000 (70.2)
First fiscal quarter of 2001 (64.8)
Second fiscal quarter of 2001 (57.9)
Third fiscal quarter of 2001 (48.6)
Fourth fiscal quarter of 2001 (39.4)
First fiscal quarter of 2002 (33.4)
Second fiscal quarter of 2002 (25.7)
Third fiscal quarter of 2002 (15.5)
Fourth fiscal quarter of 2002 (5.3)
First fiscal quarter of 2003 1.2
Second fiscal quarter of 2003 9.6
-12-
Fiscal Quarter Minimum Net Worth(in
millions)
---------------------------------------- -------------------------
Third fiscal quarter of 2003 20.7
Fourth fiscal quarter of 2003 31.9
First fiscal quarter of 2004 38.9
Second fiscal quarter of 2004 47.8
Third fiscal quarter of 2004 59.7
Fourth fiscal quarter of 2004 71.6
First fiscal quarter of 2005 79.5
Second fiscal quarter of 2005 89.7
Third fiscal quarter of 2005 103.2
Fourth fiscal quarter of 2005 116.8
First fiscal quarter of 2006 123.8
Second fiscal quarter of 2006 131.8
Third fiscal quarter of 2006 136.8
Fourth fiscal quarter of 2006 and 141.8
thereafter
10.2 Minimum Interest Coverage Ratio. Interest Coverage Ratio of Foamex
and its Subsidiaries on a consolidated basis, as determined as of the last day
of each fiscal quarter of the Borrowers 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
-------------- -------------
Second fiscal quarter of 1997 2.50:1.00
Third fiscal quarter of 1997 2.50:1.00
Fourth fiscal quarter of 1997 2.50:1.00
First fiscal quarter of 1998 2.10:1.00
Second fiscal quarter of 1998 2.10:1.00
Third fiscal quarter of 1998 2.10:1.00
Fourth fiscal quarter of 1998 2.10:1.00
First fiscal quarter of 1999 2.10:1.00
-13-
Fiscal Quarter Minimum Ratio
-------------- -------------
Second fiscal quarter of 1999 2.10:1.00
Third fiscal quarter of 1999 2.10:1.00
Fourth fiscal quarter of 1999 2.25:1.00
First fiscal quarter of 2000 2.25:1.00
Second fiscal quarter of 2000 2.25:1.00
Third fiscal quarter of 2000 2.25:1.00
Fourth fiscal quarter of 2000 2.50:1.00
First fiscal quarter of 2001 2.50:1.00
Second fiscal quarter of 2001 2.50:1.00
Third fiscal quarter of 2001 2.50:1.00
Fourth fiscal quarter of 2001 2.75:1.00
First fiscal quarter of 2002 2.75:1.00
Second fiscal quarter of 2002 2.75:1.00
Third fiscal quarter of 2002 2.75:1.00
Fourth fiscal quarter of 2002 3.00:1.00
First fiscal quarter of 2003 3.00:1.00
Second fiscal quarter of 2003 3.00:1.00
Third fiscal quarter of 2003 3.00:1.00
Fourth fiscal quarter of 2003 3.00:1.00
First fiscal quarter of 2004 3.00:1.00
Second fiscal quarter of 2004 3.00:1.00
Third fiscal quarter of 2004 3.00:1.00
Fourth fiscal quarter of 2004 3.00:1.00
First fiscal quarter of 2005 3.00:1.00
Second fiscal quarter of 2005 3.00:1.00
Third fiscal quarter of 2005 3.00:1.00
-14-
Fiscal Quarter Minimum Ratio
-------------- -------------
Fourth fiscal quarter of 2005 3.00:1.00
First fiscal quarter of 2006 3.00:1.00
Second fiscal quarter of 2006 and thereafter 3.00:1.00
10.3 Minimum Fixed Charge Coverage Ratio. Fixed Charge Coverage Ratio
of Foamex and its Subsidiaries on a consolidated basis, as determined as of the
last day of each fiscal quarter of the Borrowers 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
-------------- -------------
Second fiscal quarter of 1997 1.10:1.00
Third fiscal quarter of 1997 1.10:1.00
Fourth fiscal quarter of 1997 1.10:1.00
First fiscal quarter of 1998 1.00:1.00
Second fiscal quarter of 1998 1.00:1.00
Third fiscal quarter of 1998 1.10:1.00
Fourth fiscal quarter of 1998 1.10:1.00
First fiscal quarter of 1999 1.10:1.00
Second fiscal quarter of 1999 1.10:1.00
Third fiscal quarter of 1999 1.10:1.00
Fourth fiscal quarter of 1999 1.10:1.00
First fiscal quarter of 2000 1.10:1.00
Second fiscal quarter of 2000 1.10:1.00
Third fiscal quarter of 2000 1.10:1.00
Fourth fiscal quarter of 2000 1.10:1.00
First fiscal quarter of 2001 1.10:1.00
Second fiscal quarter of 2001 1.10:1.00
Third fiscal quarter of 2001 1.10:1.00
Fourth fiscal quarter of 2001 1.10:1.00
-15-
Fiscal Quarter Minimum Ratio
-------------- -------------
First fiscal quarter of 2002 1.10:1.00
Second fiscal quarter of 2002 1.10:1.00
Third fiscal quarter of 2002 1.10:1.00
Fourth fiscal quarter of 2002 1.10:1.00
First fiscal quarter of 2003 1.10:1.00
Second fiscal quarter of 2003 1.10:1.00
Third fiscal quarter of 2003 1.10:1.00
Fourth fiscal quarter of 2003 1.10:1.00
First fiscal quarter of 2004 1.00:1.00
Second fiscal quarter of 2004 1.00:1.00
Third fiscal quarter of 2004 1.00:1.00
Fourth fiscal quarter of 2004 1.00:1.00
First fiscal quarter of 2005 1.00:1.00
Second fiscal quarter of 2005 1.00:1.00
Third fiscal quarter of 2005 1.00:1.00
Fourth fiscal quarter of 2005 1.00:1.00
First fiscal quarter of 2006 1.00:1.00
Second fiscal quarter of 2006 and thereafter 1.00:1.00
10.4 Maximum Leverage Ratio. Total Net Debt to EBDAIT Ratio of Foamex
and its Subsidiaries on a consolidated bases, as determined as of the last day
of each fiscal quarter of the Borrowers set forth below for the four fiscal
quarter period ending on such date, shall not exceed the maximum ratio set forth
below:
Fiscal Quarter Minimum Ratio
-------------- -------------
Second fiscal quarter of 1997 5.00:1.00
Third fiscal quarter of 1997 5.00:1.00
Fourth fiscal quarter of 1997 5.75:1.00
-16-
Fiscal Quarter Minimum Ratio
-------------- -------------
First fiscal quarter of 1998 5.75:1.00
Second fiscal quarter of 1998 5.75:1.00
Third fiscal quarter of 1998 5.75:1.00
Fourth fiscal quarter of 1998 5.00:1.00
First fiscal quarter of 1999 5.00:1.00
Second fiscal quarter of 1999 5.00:1.00
Third fiscal quarter of 1999 5.00:1.00
Fourth fiscal quarter of 1999 4.50:1.00
First fiscal quarter of 2000 4.50:1.00
Second fiscal quarter of 2000 4.50:1.00
Third fiscal quarter of 2000 4.50:1.00
Fourth fiscal quarter of 2000 3.90:1.00
First fiscal quarter of 2001 3.90:1.00
Second fiscal quarter of 2001 3.90:1.00
Third fiscal quarter of 2001 3.90:1.00
Fourth fiscal quarter of 2001 3.50:1.00
First fiscal quarter of 2002 3.50:1.00
Second fiscal quarter of 2002 3.50:1.00
Third fiscal quarter of 2002 3.50:1.00
Fourth fiscal quarter of 2002 3.25:1.00
First fiscal quarter of 2003 3.25:1.00
Second fiscal quarter of 2003 3.25:1.00
Third fiscal quarter of 2003 3.25:1.00
Fourth fiscal quarter of 2003 3.00:1.00
First fiscal quarter of 2004 3.00:1.00
Second fiscal quarter of 2004 3.00:1.00
-17-
Fiscal Quarter Minimum Ratio
-------------- -------------
Third fiscal quarter of 2004 3.00:1.00
Fourth fiscal quarter of 2004 3.00:1.00
First fiscal quarter of 2005 3.00:1.00
Second fiscal quarter of 2005 3.00:1.00
Third fiscal quarter of 2005 3.00:1.00
Fourth fiscal quarter of 2005 3.00:1.00
First fiscal quarter of 2006 3.00:1.00
Second fiscal quarter of 2006 and thereafter 3.00:1.00
Section 2.30. Section 11.01(p) of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
(p) New Foamex Subordinated Notes and Existing Secured Debt.
Any "Event of Default" (or any event or occurrence or circumstance
which would become an "Event of Default" with the passage of time or
the giving of notice or both) as defined in the New Foamex Subordinated
Note Indenture, the New Foamex Indenture or any indenture or other
document relating to the Existing Secured Debt shall have occurred and
be continuing. Any of the terms of the New Foamex Subordinated Notes,
New Foamex Notes or any Existing Secured Debt Indenture or other
document relating to the Existing Secured Debt shall be amended,
supplemented or otherwise modified without the prior written consent of
the Requisite Lenders (except for such amendments, supplements or
modifications deemed immaterial by the Administrative Agents)."
Section 2.31. A new Section 11.01(s) is hereby added to the Credit
Agreement to read as follows:
"(s) Refinancing of the New Foamex Notes. Foamex shall have failed to
refinance in full the aggregate amount of New Foamex Notes on or prior to March
1, 2005 pursuant to the issuance of new subordinated indebtedness of Foamex
having terms, conditions, covenants, subordination, maturity and redemption
provisions and all other material agreements no more disadvantageous to Foamex
or to the Lenders or Agents as those contained in the New Foamex Subordinated
Notes and issued pursuant to documentation in form and substance satisfactory to
the Requisite Lenders."
SECTION 3. Consent of the Requisite Lenders. The Requisite Lenders
hereby consent to (a) the amendment and restatement of (i) the Foamex
International Guaranty substantially in the form attached hereto as Exhibit A,
(ii) the Schedules to the Credit Agreement in the form attached hereto as
Exhibit B, (b) the execution and delivery of amendments or supplements to the
Loan Documents by the Collateral Agent and to make all filings and to take all
such other actions as the
-18-
Collateral Agent and the Administrative Agents deem necessary or
advisable to subject the assets of Xxxxx Industries and its Subsidiaries to the
Lien of the Loan Documents upon consummation of the Contribution and (c) an
amendment to the Partnership Agreement to be in form and substance satisfactory
to the Administrative Agents and their counsel to admit Xxxxx Industries as a
general partner of Foamex..
SECTION 4. Conditions to Effectiveness. This Agreement shall become
effective on the date (the "Effective Date") when the following conditions
precedent have been satisfied (unless waived by the Requisite Lenders or unless
the deadline for delivery has been extended by the Administrative Agents):
(i) Documents. The Administrative Agents shall have received
on or before the Effective Date all of the following in form and
substance satisfactory to the Requisite Lenders:
(a) this Agreement and all other agreements,
documents and instruments, described in the List of Closing
Documents, attached hereto and made a part hereof as Exhibit
C, each duly executed where appropriate and in form and
substance satisfactory to the Requisite Lenders; without
limiting the foregoing, the Borrowers hereby direct their
counsel, Xxxxxxx Xxxx & Xxxxxxxxx, and each of their local
counsel, to prepare and deliver to the Administrative Agents,
the Lenders, the Issuing Banks and Xxxxx, Xxxxx & Xxxxx,
counsel to the Funding Agent, the opinions referred to in such
List of Closing Documents; and
(b) such additional documentation as either
Administrative Agent or any of the Requisite Lenders may
reasonably request.
(ii) Perfection of Liens. The Collateral Agent shall have
received evidence that all Liens granted to the Collateral Agent with
respect to all Collateral (including without limitation, all of the
assets of Xxxxx Industries and Xxxxx LLC) are perfected and of first
priority, except as otherwise permitted under this Agreement or as set
forth in the Intercreditor Agreements. The Borrowers and Xxxxx LLC
shall have complied with Section 8.14 of the Credit Agreement.
(iii) Consummation of Transaction. The transactions
contemplated by the Xxxxx Transaction Documents shall have been
consummated in accordance with the terms thereof, without any waiver or
forbearance of the terms and conditions therefor set forth therein
without the prior written consent of the Administrative Agents, and
Foamex shall have irrevocably accepted for exchange in accordance with
the Exchange Offer or shall have been defeased or called for redemption
in accordance with the terms of the Existing Xxxxx Indenture all of the
outstanding Existing Xxxxx Notes.
(iv) Issuance of New Foamex Notes or Other Subordinated Debt.
(i) The New Foamex Notes shall have been issued in accordance with the
Exchange Offer and the New Foamex Indenture (and the related exchange
agreements) without any waiver or forbearance of the terms and
conditions therefor set forth in the New Foamex Note Exchange
-19-
Memorandum (or such related exchange agreements) by any party thereto
without the prior written consent of the Administrative Agents or (ii)
other Permitted Subordinated Indebtedness of Foamex (the "Other
Subordinated Debt) shall have been issued by Foamex pursuant to
documentation acceptable to the Administrative Agents. Such New Foamex
Notes shall be in a minimum principal amount which, together with (i)
the amount of any Equity Interests utilized by Foamex International in
connection with the Xxxxx Merger Agreement and (ii) the gross cash
proceeds of sale of the Other Subordinated Debt, shall equal at least
$60,000,000.
(v) Payment of Obligations Under Bridge Financing. The
Borrowers shall have paid the Bridge Financing with the proceeds of
Revolving Loans so that the aggregate outstanding principal amount
thereof prior to the amendment and restatement of such Bridge Financing
under this Amendment as Term D Loans shall not exceed the difference of
(i) $140,000,000 minus (ii) an amount equal to the excess, if any of
(I)(x) the face amount of New Foamex Notes outstanding on the First
Amendment Date plus (y) the face amount of any other Permitted
Subordinated Indebtedness issued on the First Amendment Date plus (z)
the aggregate value of any contribution to the equity of Foamex made on
the First Amendment Date over (II) $70,000,000
(vi) Consents. Each of the Borrowers, each of the Borrowers'
Subsidiaries, each General Partner, and Xxxxx Industries and its
subsidiaries shall have received all material consents and
authorizations required pursuant to any material Contractual Obligation
with any other Person and shall have obtained all material consents and
authorizations of, and effected all notices to and filings with, any
Governmental Authority, in each case, as may be necessary to allow each
of the Borrowers, any of the Borrowers' Subsidiaries and each General
Partner, Xxxxx Industries and its subsidiaries to lawfully and without
risk of rescission, (i) execute, deliver and perform, in all material
respects, its obligations under this Agreement, the other Loan
Documents and the Transaction Documents to which it is, or is to be, a
party and each other agreement or instrument to be executed and
delivered by it pursuant thereto or in connection therewith and (ii)
create and perfect or continue the validity and perfection of the Liens
on the Collateral to be owned by it in the manner and for the purpose
contemplated by the Loan Documents.
(vii) No Legal Impediments. No law, regulation, order,
judgment or decree of any Governmental Authority shall, and neither
Administrative Agent shall have received any notice that litigation is
pending or threatened which is likely to (i) enjoin, prohibit or
restrain the making of the Loans and/or the issuance of Letters of
Credit and/or the Exchange Offer, the Contribution or the consummation
of the other transactions contemplated by the Xxxxx Transaction
Documents or (ii) impose or result in the imposition of a Material
Adverse Effect.
(viii) No Change in Condition. No change in the condition
(financial or otherwise), business, performance, properties, assets,
operations or prospects of either Borrower or any of its Subsidiaries
or Xxxxx Industries and its subsidiaries shall have occurred since
December 29, 1996, which change, in the judgment of the Lenders, will
have or is reasonably likely to have a Material Adverse Effect.
-20-
(ix) No Default. No Event of Default or Potential Event of
Default shall have occurred and be continuing or would result from the
consummation of the Contribution, the Exchange Offer or the other
transactions contemplated by the Xxxxx Transaction Documents.
(x) Representations and Warranties. All of the representations
and warranties contained in Section 6.01 and in any of the other Loan
Documents shall be true and correct in all material respects on and as
of the Effective Date.
(xi) Financial Information, etc. The Administrative Agents
shall have received on or prior to the Effective Date the consolidated
pro forma balance sheet of Foamex as at September 28, 1997 (giving pro
forma effect as of such date to the Contribution and the other
transactions contemplated by the Xxxxx Transaction Documents and this
Agreement and the then existing legal and capital structure of the
Borrowers and their respective Subsidiaries), and detailed financial
projections through Fiscal Year 2007 on an annual basis, in each case
in form and substance reasonably satisfactory to the Administrative
Agents and the Lenders.
(xii) Compliance Certificate. The Administrative Agents shall
have received a Compliance Certificate on a pro forma basis as if the
Credit Extensions to be made on the Effective Date and Contribution and
the other transactions contemplated by the Xxxxx Transaction Documents
had occurred as of September 28, 1997 and as to such other items
therein as the Administrative Agents may reasonably request, dated the
Effective Date, duly executed (and with all schedules thereto duly
completed) and delivered by the chief executive, financial or
accounting officer of the Borrowers. Such Compliance Certificate shall
be used for the determination of the Applicable Margin as to all Loans
and the Applicable Commitment Fee Margin.
(xiii) Solvency, etc. The Administrative Agents shall have
received the solvency certificates, dated the Effective Date, duly
executed and delivered by the chief financial or accounting Authorized
officer of each of the Borrowers.
(xiv) Amendment Fee Paid. There shall have been paid to the
Funding Agent, for the pro rata account of each of the Lenders
executing this First Amendment on or prior to the Effective Date, an
amendment fee equal to .075% of such Lender's aggregate Commitments and
Loans (other than Term D Loans).
SECTION 5. Representations and Warranties. The Borrowers and the
General Partners hereby represent and warrant to the Lenders party hereto that
(i) the execution, delivery and performance of this First Amendment by each
Borrower and the General Partners are within their respective partnership and
corporate powers and have been duly authorized by all necessary partnership and
corporate action, and (ii) this First Amendment constitutes the legal, valid and
binding obligation of each Borrower and each General Partner, enforceable
against each of them, respectively, in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium
or other laws relating to or limiting creditors' rights generally or by
equitable principles generally.
-21-
SECTION 6. Reference to and Effect on the Loan Documents.
6.1. Upon the effectiveness of this First Amendment, on and after the
date hereof each reference in the Credit Agreement to "this Agreement",
"hereunder", "hereof", "herein" or words of like import, and each reference in
the other Loan Documents to the Credit Agreement, shall mean and be a reference
to the Credit Agreement as amended hereby.
6.2. Except as specifically amended above, all of the terms of the
Credit Agreement and all other Loan Documents shall remain unchanged and in full
force and effect.
6.3. The execution, delivery and effectiveness of this First Amendment
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of any Lender or either Administrative Agent under the
Credit Agreement or any of the Loan Documents, nor constitute a waiver of any
provision of the Credit Agreement or any of the Loan Documents.
SECTION 7. Execution in Counterparts. This First Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement.
SECTION 8. Governing Law. This First Amendment shall be governed by,
and shall be construed and enforced in accordance with, the laws of the State
of New York.
SECTION 9. Guarantor Consent. By its signature below, each of Foamex
International, Foamex and GFI consents to this First Amendment in its separate
capacity as a guarantor under the Foamex International Guaranty, the Foamex
Guaranty and the GFI Guaranty, respectively, and each hereby affirms its
obligations under such guaranties.
SECTION 10. Headings. Section headings in this First Amendment are
included herein for convenience of reference only and shall not constitute a
part of this First Amendment or be given any substantive effect.
-22-
IN WITNESS WHEREOF, this First Amendment has been duly executed as of
the date first above written.
FOAMEX L.P.
By: FMXI, Inc.,
Its Managing General Partner
By:/s/ Xxxxxx Xxxxxxxxx
________________________________
Title: Vice President
GENERAL FELT INDUSTRIES, INC.
By:/s/ Xxxxxx Xxxxxxxxx
________________________________
Title: Vice President
TRACE FOAM COMPANY, INC.
By: (illegible)
________________________________
Title: Executive Vice President
FMXI, INC.
By:/s/ Xxxxxx Xxxxxxxxx
________________________________
Title: Vice President
FOAMEX INTERNATIONAL INC., as guarantor
By:/s/ Xxxxxx Xxxxxxxxx
________________________________
Name: Xxxxxx X. Xxxxxxxxx
Title: Sr. Vice President
CITICORP USA, INC., as
Administrative Agent,
Collateral Agent,
individually as a Lender,
and as Intercreditor
Collateral Agent
By: (illegible)
________________________________
Title: Attorney-in-Fact
-23-
CITIBANK, N.A., as Issuing Bank
By: (illegible)
________________________________
Title: Attorney-in-Fact
THE BANK OF NOVA SCOTIA, as
Administrative Agent,
Funding Agent, Issuing
Bank, individually as a
Lender, and as
Intercreditor Agent
By: (illegible)
________________________________
Title: Sr. Relationship Manager
ALLSTATE INSURANCE COMPANY
By:/s/ Xxxxxxxx X. Xxxxxx
________________________________
Name: Xxxxxxxx X. Xxxxxx
Title: Authorized Signatory
By:/s/ Xxxxx X. Zinkuta
________________________________
Name: Xxxxx X. Zinkuta
Title: Authorized Signatory
BANKBOSTON, N.A.
By:/s/ Xxxxx Xxxxxxxxx
________________________________
Name: Xxxxx Xxxxxxxxx
Title: Vice President
KZH - SOLEIL CORPORATION
By:/s/ X. Xxxxxx
________________________________
Name: Xxxxxxxx X. Xxxxxx
Title: Authorized Agent
THE BANK OF NEW YORK
By:/s/ Xxxxxx X. Xxxxxxx
________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
BANKERS TRUST COMPANY
By:/s/ Xxxxxxx Xxxxxxx
________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
-24-
COMMERCIAL LOAN FUNDING TRUST I
By: Wilmington Trust Company solely in its
capacity as owner trustee and not in its
individual capacity
By:/s/ Xxxxxxx Xxxxxxx
________________________________
Name: Xxxxxxx Xxxxxxx
Title: Authorized Signatory
BHF-BANK AKTIENGESELLSCHAFT
By:/s/ Xxxxx Xxxx
________________________________
Name: Xxxxx Xxxx
Title: Vice President
By: (illegible)
________________________________
Name: (illegible)
Title: Assistant Vice President
COMPAGNIE FINANCIERE DE CIC ET D
L'UNION EUROPEENNE
By:/s/ Xxxxx X'Xxxxx
________________________________
Name: Xxxxx X'Xxxxx
Title: Vice President
By:/s/ Xxxx Xxxxxxx
________________________________
Name: Xxxx Xxxxxxx
Title: First Vice President
CORESTATES BANK, N.A.
By:/s/ Xxxxx Xxxxx
________________________________
Name: Xxxxx X. Xxxxx
Title: Vice President
By:
________________________________
Name:
Title:
-00-
XXXXXX XXXXXXXX XXX XXXX BRANCH
By: /s/ Xxxxxx Xxx
________________________________
Name: Xxxxxx Xxx
Title: First Vice President
DEEPROCK & COMPANY
By: (illegible)
________________________________
Name: Xxxxx Xxxxx Management
Title: Investment Advisor
XXXXXX FINANCIAL, INC.
By: /s/ Xxxxxx Xxxxxxxx
________________________________
Name: Xxxxxx X. Xxxxxxxx
Title: Sr. Vice President
ORIX USA CORPORATION
By: /s/ Xxxxxxxx Xxxxxxxx
________________________________
Name: Xxxxxxxx Xxxxxxxx
Title: Executive Vice President
PILGRIM AMERICA PRIME RATE TRUST
By: /s/ Xxxxxxx X. Xxxxxxxx
________________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
THE FUJI BANK, LIMITED, NEW YORK
BRANCH
By: /s/ Xxxxx Xxxxxxxx
________________________________
Name: Xxxxx Xxxxxxxx
Title: Vice President and Manager
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ XX Xxxxxxxx
________________________________
Name: Xxxxx Xxxxxxxx
Title: Duly Authorized Signatory
-26-
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By: /s/ X. Xxxxxxx
________________________________
Name: Xxxxxxxxx Xxxxxxx
Title: Senior Vice President
METROPOLITAN LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxxx
________________________________
Name: Xxxxx X. Xxxxxxx
Title: Director
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By: /s/ Xxxxxxxx X. Xxxxxxxx
________________________________
Name: Xxxxxxxx X. Xxxxxxxx
Managing Director
PAMCO CAYMAN LTD.
By: Protective Asset Management, L.L.C., as
Collateral Manager
By: /s/ Xxxxx Xxxxxxx
________________________________
Name: Xxxxx Xxxxxxx CFA, CPA
Title: President
Protective Asset Management
Company
KZH -ING-1 CORPORATION
By: /s/ X. Xxxxxx
________________________________
Name: Xxxxxxxx X. Xxxxxx
Title: Authorized Agent
OCTAGON CREDIT INVESTORS LOAN
PORTFOLIO
(a unit of The Chase Manhattan Bank)
By: /s/ Xxxxx X. XxXxxxx
________________________________
Name: Xxxxx X. XxXxxxx
Managing Director
-27-
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
SENIOR HIGH INCOME PORTFOLIO, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
________________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Authorized Signatory
THE SANWA BANK, LIMITED
By: /s/ Xxxxxxxxx Xxxxxxx
________________________________
Name: Xxxxxxxxx Xxxxxxx
Title: Vice President
NATIONSBANK, N.A.
By /s/ Xxxxxx Xxxxxx
________________________________
Name: Xxxxxx X. Xxxxxx
Title: Vice President
CYPRESS TREE INVESTMENT MANAGEMENT
COMPANY, INC.
As: Attorney-in-Fact and on behalf of First
Allmerica Life Insurance Company
By: /s/ Xxxxxx Xxxxxxx
________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Assistant Vice President
-28-
CRESCENT/MACH I PARTNERS, L.P.
By: TCW Asset Management Company
Its Investment Manager
By: (illegible)
________________________________
Name:
Title:
DEBT STRATEGIES FUND, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
________________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Authorized Signatory
FLEET NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxxxxxxx
________________________________
Name: Xxxxx X. Xxxxxxxxxxx
Title: A.V.P.
XXX XXXXXX AMERICAN CAPITAL PRIME
RATE INCOME TRUST
By: /s/ Xxxxxxx X. Xxxxxxx
________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President & Director
ROYALTON COMPANY
By: Pacific Investment Management Company,
as its Investment Advisor
By: (illegible)
________________________________
Name:
Title:
PPM AMERICA, INC., as attorney in fact, on
behalf of Xxxxxxx National Life Insurance
Company
By: (illegible)
________________________________
Name: (illegible)
Title: Managing Director
-29-
THE SAKURA BANK, LTD.
By: /s/ Y. Nagura
________________________________
Name: Y. Nagura
Title: Vice President
SENIOR DEBT PORTFOLIO
By: Boston Management and Research,
as Investment Advisor
By: (illegible)
________________________________
Name:
Title:
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ Xxxxxxxxxxx X. Xxxxxx
________________________________
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Authorized Signatory
XXX XXXXXX CLO I, LIMITED
By: Xxx Xxxxxx American Capital Management
Inc., as Collateral Manager
By: /s/ Xxxxxxx Xxxxxxx
________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President & Director
ALLIED SIGNAL INC.
By: Xxxxxxxx Capital Management, Inc., as
Attorney-in-Fact
By: /s/ Xxxxx X. Xxxxxxx
________________________________
Name: Xxxxx X. Xxxxxxx
Title: S.V.P. - Xxxxxxxx Capital Mgt.
-30-
TCW LEVERAGED INCOME TRUST, L.P.
By: TCW Advisers (Bermuda), Ltd., as
General Partner
By: (illegible)
________________________________
Name:
Title:
By: TCW Investment Management Company, as
Investment Adviser
By: (illegible)
________________________________
Name:
Title:
KZH-CRESCENT CORPORATION
By: /s/ V. Company
________________________________
Name: Xxxxxxxx X. Xxxxxx
Title: Authorized Agent
CAPTIVA FINANCE LTD.
By: /s/ Xxxx X. Xxxxxxxxx
________________________________
Name: Xxxx X. Xxxxxxxxx
Title: Director
STRATA FUNDING LTD.
By: /s/ Xxxx X. Xxxxxxxxx
________________________________
Name: Xxxx X. Xxxxxxxxx
Title: Director
AERIES FINANCE LTD.
By: /s/ Ian Xxxxx Xxxxx
Name: Ian Xxxxxx Xxxxx
Title: Director
NATEXIS BANQUE (formerly Banque Francaise
due Commerce Exterieur)
By: /s/ Xxxx Xxxxx /s/(illegible)
________________________________
Name: Xxxx Xxxxx (illegible)
Title: Associate Vice President
