Exhibit 4.15.8
AMENDMENT NO. 5
TO CREDIT AGREEMENT
AMENDMENT NO. 5 TO CREDIT AGREEMENT ("this Amendment"), dated as of June
13, 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 JPMorgan Chase Bank, N.A., 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 Majority Lenders and the
Administrative Agent desire to amend certain provisions of the Credit Agreement;
NOW, THEREFORE, subject to the condition precedent set forth in Section 3
hereof, the Borrower, the Guarantors, the Majority 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 terms in the correct alphabetical order:
"Rubber and Felt Business" means, collectively, the rubber and felt
carpet cushion businesses of Foamex.
"Rubber and Felt Business Sale" means the sale on April 29, 2005 by
Foamex to Xxxxxxx & Xxxxx, Incorporated of the Rubber and Felt Business.
2.2 The definition of "Borrowing Cutoff Amount" in Annex A to the Credit
Agreement is hereby amended by adding the following parenthetical clause after
the phrase "an amount equal to EBITDA" in clause (v) thereof: "(provided that,
clause
(ix) of the definition of EBITDA shall not be applicable to the calculation of
EBITDA for this purpose)" and by replacing the table set forth therein with the
following table:
Relevant EBITDA Fiscal Month Amount
---------------------------- ------
Fiscal month of Foamex ending October 26, 2003 3.50
and each fiscal month of Foamex ending
thereafter through and including the fiscal
month of Foamex ending March 28, 2004
Fiscal month of Foamex ending April 25, 2004 3.25
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 September 26, 3.50
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 January 30, 2005 3.55
Fiscal month of Foamex ending February 27, 2005 4.10
Fiscal month of Foamex ending April 3, 2005 4.35
Fiscal month of Foamex ending May 1, 2005 4.50
Fiscal month of Foamex ending May 29, 2005 4.60
Fiscal month of Foamex ending July 3, 2005 5.00
Fiscal month of Foamex ending July 31, 2005 5.00
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Relevant EBITDA Fiscal Month Amount
---------------------------- ------
Fiscal month of Foamex ending August 28, 2005 4.90
Fiscal month of Foamex ending October 2, 2005 4.85
Fiscal month of Foamex ending October 30, 2005 4.75
Fiscal month of Foamex ending December 4, 2005 4.50
and each fiscal month of Foamex ending
thereafter through and including the fiscal
month of Foamex ending January 29, 2006
Fiscal month of Foamex ending February 26, 2006 4.25
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 28, 2006 and 3.90
each fiscal month of Foamex ending thereafter
through and including the fiscal month of
Foamex ending July 30, 2006
Fiscal month of Foamex ending August 27, 2006 3.55
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 December 4, 2006 3.45
and each fiscal month of Foamex ending
thereafter through and including the fiscal
month of Foamex ending April 29, 2007
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Relevant EBITDA Fiscal Month Amount
---------------------------- ------
Fiscal month of Foamex ending May 27, 2007 and 3.25
each fiscal month of Foamex ending thereafter
2.3 The definition of "EBITDA" in Annex A to the Credit Agreement is hereby
amended by (i) deleting the word "and" at the end of clause (vi) thereof and
substituting a comma therefor and (ii) adding the language ", (viii) as
disclosed in writing by Foamex to the Administrative Agent and the Lenders in
that certain letter dated June 10, 2005, a) the charge in an amount equal to
$2,600,000 applicable to the fiscal month of Foamex ended May 29, 2005 and (b) a
charge in an amount up to $6,500,000, plus the aggregate amount of fees and
expenses incurred by Foamex in connection with Amendment No. 5 to this Agreement
and Amendment No. 5 to the Term Loan B Agreement, applicable to the fiscal month
of Foamex ended July 3, 2005, and (ix) for purposes of determining the Fixed
Charge Coverage Ratio for any fiscal period ending on or prior to October 1,
2006, the following shall be added to EBITDA for the respective fiscal period:
an amount equal to $3,400,000 applicable to the fiscal quarter of Foamex ended
July 3, 2005, an amount equal to $5,300,000 applicable to the fiscal quarter of
Foamex ended October 2, 2005, an amount equal to $8,100,000 applicable to the
fiscal quarter of Foamex ended January 1, 2006, an amount equal to $9,200,000
applicable to the fiscal quarter of Foamex ended April 2, 2006, an amount equal
to $7,300,000 applicable to the fiscal quarter of Foamex ended July 2, 2006, and
an amount equal to $5,700,000 applicable to the fiscal quarter of Foamex ended
October 1, 2006 reflecting the effect of the Rubber and Felt Business Sale as
disclosed in writing by Foamex to the Administrative Agent and the Lenders in
that certain letter dated June 10, 2005" immediately before the period at the
end of such definition.
2.4 The definition of "Junior Term Loan Funding Conditions" in Annex A to
the Credit Agreement is hereby amended by deleting the amount "$10,000,000" in
each of clauses (i) and (ii) thereof and substituting therefor the amount
"$25,000,000".
2.5 Section 3.4(f) of the Credit Agreement is hereby amended by (a) adding
the phrase "(A) an amount not to exceed $17,000,000 in the aggregate, to be used
by Foamex for working capital and general corporate purposes permitted hereunder
or (B)" immediately after the words "second, at the option of Foamex," at the
beginning of clause second of the fifth sentence thereof and (b) amending and
restating the sixth sentence thereof to read as follows:
If Foamex elects pursuant to clause "second" of the previous
sentence to repurchase or repay Foamex 13 1/2% Subordinated Notes
and/or repay principal on Additional B Term Loans and Term Loans
and/or use proceeds for working capital and general corporate
purposes with proceeds from the disposition of Designated Assets,
following the application of Net Proceeds from the disposition of
such Designated Assets in accordance with clause "first" of the
previous sentence and
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pending such repurchase, repayment and/or use for working capital
and general corporate purposes, the remaining proceeds of such
disposition shall be applied to repay or prepay Revolving Loans
to the extent outstanding (subject to the proviso in the last
sentence of Section 3.4(a), without reduction of the Maximum
Revolver Amount or the establishment of a Permanent Reserve) and
the Administrative Agent shall implement a Reserve of the type
specified in clause (ii) of the definition thereof in the amount
of such proceeds so applied to repay or prepay Revolving Loans
(which Reserve shall (x) be implemented to permit Foamex to
borrow Revolving Loans against such Reserve (provided, that the
aggregate amount of such Revolving Loans borrowed may not exceed
the original amount of such Reserve) to repurchase or repay
Foamex 13 1/2% Subordinated Notes in accordance with Section
7.12(E) and/or to repay principal on Additional B Term Loans and
Term Loans and/or use proceeds for working capital and general
corporate purposes in accordance with clause "second" of the
previous sentence, as appropriate, so long as on the date of such
borrowing and repurchase or repayment the conditions precedent to
the borrowing of such Revolving Loans specified in Section 8.2
are satisfied, and (y) be reduced dollar for dollar by the amount
of the Revolving Loans so made and used for such purpose).
SECTION 3. EFFECTIVENESS. This Amendment shall become effective on such
date as the following conditions precedent are satisfied:
3.1 Counterparts of this Amendment executed by the Borrowers, the
Guarantors, the Majority 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 the 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 for the sole account of the Administrative
Agent and the Bank shall have received, in form and substance satisfactory to
the Administrative Agent and the Bank, a fully executed fee letter, dated the
date hereof (the "Fee Letter"), between the Administrative Agent and the
Borrower and the Administrative Agent shall have received payment of all fees
payable thereunder.
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3.5 The Borrower shall have paid to the Administrative Agent, for the
ratable benefit (based upon their respective Pro Rata Shares in effect
immediately prior to the effectiveness of this Amendment) of the Lenders who
have delivered to the Administrative Agent an executed signature page to this
Amendment prior to 5:00 p.m. on June 13, 2005, an amendment fee in the amount of
$300,000.
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.
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
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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
---------------------------------------
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FOAMEX MEXICO II, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------------
Title: Vice President
---------------------------------------
FOAMEX ASIA, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------------
Title: Vice President
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FOAMEX CARPET CUSHION LLC
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Vice President
---------------------------------------
BANK OF AMERICA, N.A., Individually and as
Administrative Agent
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Title: Vice President
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GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxx XxXxxxxx
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Title: Duly Authorized Signatory
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JPMORGAN CHASE BANK, N.A.
By: /s/ Xxxxxxx X. Xxxx
---------------------------------------
Title: Portfolio Manager
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CONGRESS FINANCIAL CORPORATION (CENTRAL)
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Title: Vice President
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STATE OF CALIFORNIA PUBLIC EMPLOYEES'
RETIREMENT SYSTEM
By: /s/ Xxxxxxx Clabar
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Title: Investment Officer
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PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxxx
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Title: Vice President
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XXXXX FARGO FOOTHILL, LLC
By: /s/ Xxxx Xxxxxxx
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Title: Vice President
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