Exhibit 4.10.20
Execution Copy
AMENDMENT NO. 6 TO CREDIT AGREEMENT
This AMENDMENT NO. 6 TO CREDIT AGREEMENT, dated as of December 21, 2001
(the "Amendment"), amends in certain respects the Credit Agreement dated as of
February 27, 1998 (as amended, amended and restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among Foamex Carpet
Cushion, Inc. ("New GFI" or the "Borrower"), the institutions from time to time
party thereto as Lenders, the institutions from time to time party thereto as
Issuing Banks, Citicorp USA, Inc. ("Citicorp") as collateral agent (the
"Collateral Agent") and The Bank of Nova Scotia, as funding agent (the "Funding
Agent", and together with the Collateral Agent, the "Administrative Agents").
W I T N E S S E T H:
WHEREAS, the Borrower has requested the consent of the Requisite Lenders to
the consummation of certain transactions described in a summary, entitled
"Transformation to Foamex Vision 2005," which was made available to the
Administrative Agents on November 26, 2001 (the "Transformation Plan");
WHEREAS, the consent of the Requisite Lenders is necessary for the
consummation by the Borrower of the Transformation Plan and the Borrower has
requested the Requisite Lenders to so consent to the Transformation Plan;
WHEREAS, the Requisite Lenders are willing, on the terms and conditions set
forth herein, to consent to the Transformation Plan;
NOW, THEREFORE, in consideration of the above recitals of the Borrower, 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:
SECTION 2.1. Amendment to Article 1 of the Credit Agreement. Article 1 of
the Credit Agreement is hereby amended by the following:
2.1.1 New Definitions. The following definitions are hereby inserted
in Section 1.01 of the Credit Agreement in their appropriate
alphabetical place:
"Amendment No. 6 Effective Date" has the meaning given to the
term "Amendment Effective Date" in the Amendment No. 6 to Credit
Agreement, dated as of December 21, 2001, among New GFI, the Lenders
party thereto, the Issuing Banks and the Administrative Agents.
"Transformation Plan" means certain restructuring and other
related transactions
described in a summary entitled "Transformation to Foamex Vision
2005," made available to the Administrative Agents on November 26,
2001.
2.1.2 Amendment to the definition of EBDAIT. The definition of EBDAIT
is hereby amended by (a) deleting the semicolon at the end of clause
(a)(iv) thereof, (b) adding the underlined word "plus" at the end of
clause (a)(iv) thereof, (c) adding a new clause (v) to read as
follows: "(v) any cash charges incurred in connection with the
Transformation Plan in an aggregate amount not to exceed $1,700,000
and (d) adding a semicolon at the end of the new clause (v) thereof.
2.1.3 Amendment to the definition of Fixed Charges. The definition of
Fixed Charges is hereby amended by inserting at the end of clause (b)
thereof, a new clause to read as follows: "provided, however, if a
scheduled payment of principal is required to be made in a subsequent
period because the scheduled principal payment date is a non-Business
Day in the current period, such scheduled payment shall be included in
the current period as if such payment were made in the current
period".
2.1.4 Amendment to the definition of Net Worth. The definition of Net
Worth is hereby amended by amending and restating the last sentence to
the end thereof, and adding a new clause to such sentence to read as
follows: "Any calculation of Net Worth under this Agreement (i) after
the Effective Date shall not be modified, adjusted, or recalculated in
accordance with Statement of Financial Accounting Standards No. 130,
such as for currency translations and minimum pension adjustments, and
(ii) shall exclude from the calculation thereof any charges incurred
in connection with the Transformation Plan in an aggregate amount not
to exceed $4,500,000.
SECTION 2.2. Amendment to Section 9.02 of the Credit Agreement. Section
9.02 of the Credit Agreement is hereby amended by (a) deleting the word "and" at
the end of clause (ii) thereof, (b) adding the word "and" at the end of clause
(iii) thereof and (c) adding a new clause (iv) to read as follows: "(iv) leases,
subleases, sales or other dispositions of Property resulting from the
Transformation Plan."
SECTION 2.3. Amendment to Section 9.08 of the Credit Agreement. Section
9.08 of the Credit Agreement is hereby amended by (a) deleting the word "and" at
the end of clause (v) thereof and replacing it with ";", (b) adding the word
"and" at the end of clause (vi) thereof and (c) adding a new clause (vii) to
read as follows: "(vii) the sublease by the Borrower to Foamex of real
properties leased by the Borrower located in Morrisville, Pennsylvania and Pico
Rivera, California."
SECTION 2.4. Amendment to Section 10.03 of the Credit Agreement. Section
10.03 of the Credit Agreement is amended by deleting the entries therein for the
fourth fiscal quarter of 2001 through the fourth fiscal quarter of 2002 and
replacing them with the following:
"Fiscal Quarter Minimum Ratio
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Fourth fiscal quarter of 2001 0.70:1.00
First fiscal quarter of 2002 0.70:1.00
Second fiscal quarter of 2002 0.70:1.00
Third fiscal quarter of 2002 0.80:1.00
Fourth fiscal quarter of 2002 0.80:1.00
SECTION 2.5. Amendment to Section 10.04(b) of the CreditAgreement. Section
10.04(b) of the Credit Agreement is amended by deleting the Maximum Ratio
therein for (a) the fourth fiscal quarter of 2001 and replacing it with a
Maximum Ratio of 2.50:1:00 and (b) the first fiscal quarter of 2002 and
replacing it with a Maximum Ratio of 2.35:1:00.
SECTION 3. Conditions to Effectiveness. This Amendment shall become
effective on the date hereof (the " Amendment Effective Date"), provided, that
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 Amendment Effective Date all of the following in form and
substance satisfactory to the Requisite Lenders:
(a) this Amendment duly executed by the parties thereto; and
(b) such additional documentation as the Administrative Agents or
any of the Requisite Lenders may reasonably request.
(ii) Consents. The Borrower 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 the
Borrower to lawfully and without risk of rescission, execute, deliver and
perform, in all material respects, its obligations under this Amendment 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.
(iii) 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, impose or result in the imposition of a
Material Adverse Effect.
(iv) No Change in Condition. No change in the condition (financial or
otherwise), business, performance, properties, assets, operations or
prospects of the Borrower or any of its Subsidiaries and its subsidiaries
shall have occurred since December 31, 1998, which change, in the judgment
of the Lenders, will have or is reasonably likely to have a Material
Adverse Effect.
(v) No Default. After giving effect to this Amendment, no Event of
Default or Potential Event of Default shall have occurred.
(vi) Representations and Warranties. All of the representations and
warranties contained in Article VI of the Credit Agreement and in any of
the other Loan Documents shall be true and correct in all material respects
on and as of the Amendment Effective Date.
SECTION 4. Representations and Warranties. The Borrower hereby represents
and warrants to the Lenders party hereto that (i) the execution, delivery and
performance of this Amendment by the Borrower are within the Borrower's
corporate powers and have been duly authorized by all necessary corporate
action, and (ii) this Amendment constitutes the legal, valid and binding
obligation of the Borrower, enforceable against the Borrower, 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.
SECTION 5. Reference to and Effect on the Loan Documents.
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5.1 Upon the effectiveness of this 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.
5.2 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.
5.3 The execution, delivery and effectiveness of this Amendment shall not,
except as expressly provided herein, operate as a waiver of any right, power or
remedy of any Lender or the Administrative Agents 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.
5.4 As of the Amendment Effective Date of, and after giving effect to, this
Amendment, the Borrower is in compliance in all material respects with all
applicable terms, conditions and covenants of the Credit Agreement and other
Loan Documents.
SECTION 6. Execution in Counterparts. This 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 7. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
(WITHOUT REGARD TO NEW YORK CONFLICT OF LAWS PRINCIPLES).
SECTION 8. Headings. Section headings in this Amendment are included herein
for convenience of reference only and shall not constitute a part of this
Amendment or be given any substantive effect.
SECTION 9. Successors and Assigns. This Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the date
first above written.
FOAMEX CARPET CUSHION, INC.
By /s/ X.X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
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FOAMEX INTERNATIONAL INC.,
individually and as a guarantor
By /s/ X.X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
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CITICORP USA, INC., as Administrative
Agent, Collateral Agent, Intercreditor
Agent and individually as a Lender
By /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Vice President
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XXX XXXX XX XXXX XXXXXX, as
Administrative Agent, Funding Agent,
individually as a Lender, and as
Intercreditor Agent
By /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Managing Director
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