AMENDMENT NO. 1
TO CREDIT AGREEMENT
AMENDMENT NO. 1 TO CREDIT AGREEMENT ("this Amendment"), dated as of
December 1, 2003, 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 (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 the Credit Agreement;
NOW, THEREFORE, 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. The Credit Agreement shall be, and upon the
fulfillment of the conditions set forth in Section 3 hereof is, amended as
follows:
2.1. Section 7.11(i) of the Credit Agreement is amended by adding the
phrase ", Subsidiaries of Foamex Asia Co., Ltd." immediately after the name
"Foamex Asia Co., Ltd." in clause (A) of the proviso thereto.
2.2. The defined term "Restricted Investment" in Annex A to the Credit
Agreement is amended by (i) deleting the word "and" at the end of clause (n) of
such defined term and substituting a semicolon therefor, (ii) deleting the
period at the end of such defined term and substituting "; and" therefor and
(iii) adding the following clause to the end of such defined term:
"(p) a loan made by Foamex in an amount not to exceed $4,000,000 as more
fully described in a letter to the Lenders dated December 1, 2003 and
acknowledged by the Administrative Agent; provided, that (i) the loan shall
be evidenced by a promissory note payable to the order of Foamex and shall
be secured by the collateral described in such letter (such promissory note
and the security documents to be in form and substance reasonably
acceptable to the Administrative Agent), (ii) all payments of principal and
interest made on such
loan shall be promptly applied to the payment of principal on the Revolving
Loans, (iii) the promissory note evidencing such loan and all security
therefor shall be pledged to the Administrative Agent pursuant to the U.S.
Security Agreement (which pledge shall constitute a first priority security
interest therein) and such note shall be delivered to the Administrative
Agent duly endorsed to the order of the Administrative Agent and (iv) all
consents or approvals, including those under the Term Loan B Agreement, to
permit such loan and pledge shall have been obtained and shall be in full
force and effect."
SECTION 3. EFFECTIVENESS. This Amendment shall become effective upon:
(a) the Administrative Agent receiving counterparts hereof duly
executed and delivered by the Borrower, the Guarantors, the Majority
Lenders and the Administrative Agent; and
(b) the Administrative Agent receiving (x) a counterpart of a Fee
Letter (the "Fee Letter") between the Borrower and the Administrative Agent
duly executed and delivered by the Borrower, which Fee Letter shall be in
form and substance satisfactory to the Administrative Agent and shall
provide for the payment by the Borrower to the Administrative Agent, for
the ratable benefit of each of the Lenders delivering to the Administrative
Agent its executed signature page to this Amendment on or before December
5, 2003, of a certain amendment fee referred to in the Fee Letter and (y)
payment of the amendment fee referred to in clause (x) above.
SECTION 4. 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 5. 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 6. 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)
and (ii) there exists no Default or Event of Default. Each of the Guarantors
hereby ratifies its Guarantee of the Obligations.
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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: Vice President
--------------------------------
FOAMEX CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------
Title: Vice President
--------------------------------
FOAMEX LATIN AMERICA, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------
Title: Vice President
--------------------------------
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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: ________________________________
Title: ________________________________
GENERAL ELECTRIC CAPITAL CORPORATION
By: ________________________________
Title: ________________________________
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BANK ONE, NA (Main Office Chicago)
By: ________________________________
Title: ________________________________
THE CIT GROUP/COMMERCIAL SERVICES, INC.
By: ________________________________
Title: ________________________________
CONGRESS FINANCIAL CORPORATION
(CENTRAL)
By: ________________________________
Title: ________________________________
STATE OF CALIFORNIA PUBLIC EMPLOYEES' RETIREMENT SYSTEM
By: ________________________________
Title: ________________________________
ORIX FINANCIAL SERVICES, INC.
By: ________________________________
Title: ________________________________
XXXXX FARGO FOOTHILL, LLC
By: ________________________________
Title: ________________________________
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