Exhibit 4.16.8
EXECUTION COPY
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 SILVER POINT FINANCE, LLC, as Administrative Agent (the
"Administrative Agent").
WHEREAS, the Borrower, certain of its affiliates as guarantors, the lenders
party thereto and the Administrative Agent 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 term
loans to 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 conditions 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:
"Fifth Amendment Effective Date" means the date that Amendment No. 5
to Credit Agreement, dated as of June 13, 2005, becomes effective.
"'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 "Additional Term Loan Funding Conditions" in Annex A
to the Credit Agreement is hereby amended by deleting clauses (ii), (iii), (iv),
(v), (vi) and (vii) thereof and renumbering clause (viii) as clause (ii).
2.3. 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
Fiscal month of Foamex ending August 28, 2005 4.90
Fiscal month of Foamex ending October 2, 2005 4.85
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Relevant EBITDA Fiscal Month Amount
---------------------------- ------
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, 4.25
2006 and each fiscal month of Foamex ending
thereafter through and including the fiscal
month of Foamex ending April 30, 2006
Fiscal month of Foamex ending May 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
Fiscal month of Foamex ending May 27, 2007 and 3.25
each fiscal month of Foamex ending thereafter
2.4. 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
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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 Working
Capital 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.
2.5. Section 1.1(f) of the Credit Agreement is hereby amended by deleting
clause (ii) thereof, and renumbering clauses (iii) and (iv) thereof as clauses
(ii) and (iii) respectively.
2.6. Section 2.3 of the Credit Agreement is hereby amended by adding the
following two sentences at the end thereof:
The Borrowers agree, jointly and severally, to pay the Administrative Agent
the fees and compensation as set forth in the fee letter, dated the Fifth
Amendment Effective Date, between the Administrative Agent and the
Borrowers (the "Fifth Amendment Fee Letter") with such fees and other
compensation to be payable at such times as provided in the Fifth Amendment
Fee Letter. The fees and compensation set forth in the Fifth Amendment Fee
Letter shall be fully earned and non-refundable for any reason upon payment
thereof. The fees and other compensation set forth in the Fifth Amendment
Fee Letter are in addition to the fees and other compensation set forth in
the Fee Letter.
2.7. Section 3.3(d) 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
(provided that, at the time of such usage, the amount necessary to repay in full
the outstanding Foamex 13 1/2% Subordinated Notes at the scheduled maturity
thereof and pay fees and expenses incurred in connection therewith does not
exceed the sum of the undrawn amount of the Additional Term Loans plus the
unapplied portion of the proceeds from the Rubber and Felt Business Sale), 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 Term Loans and the Working Capital Term Loans
and/or use
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proceeds for working capital and general corporate purposes with proceeds
from the disposition of Designated Assets, to the extent permitted
hereunder and following the application of Net Proceeds from the
disposition of such Designated Assets in accordance with clause "first" of
the previous sentence and 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 Working Capital
Revolving Loans to the extent outstanding (subject to the proviso in the
last sentence of Section 3.3(a), without reduction of the Maximum Revolver
Amount (as defined in the Working Capital Agreement) or the establishment
of a Permanent Reserve) and the Working Capital Agent shall implement a
Reserve of the type specified in clause (ii) of the definition thereof in
the Working Capital Agreement in the amount of such proceeds so applied to
repay or prepay Working Capital Revolving Loans (which Reserve shall (x) be
implemented to permit Foamex to borrow Working Capital Revolving Loans
against such Reserve (provided, that the aggregate amount of such Working
Capital 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
Term Loans and the Working Capital Term Loans made on the Closing Date
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 Working Capital Revolving
Loans specified in Section 8.2 of the Working Capital Agreement are
satisfied, and (y) be reduced dollar for dollar by the amount of the
Working Capital 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 Working Capital
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
Working Capital Agreement, consenting to this Amendment and providing for
amendments to the Working Capital Agreement consistent with the amendments
herein contemplated, which amendment shall be in form and substance satisfactory
to the Administrative Agent and the Majority Lenders.
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3.4. The Administrative Agent shall have received, in form and substance
satisfactory to the Administrative Agent, a fully executed copy of the Fifth
Amendment Fee Letter, and the Administrative Agent shall have received payment
of all fees payable thereunder.
3.5. All proceedings taken in connection with the execution of this
Amendment, the Credit Agreement as amended by this Amendment, all other Loan
Documents and all documents and papers relating thereto shall be satisfactory in
form, scope and substance to the Administrative Agent and the Lenders.
SECTION 4. CONSENT TO AMENDMENTS TO WORKING CAPITAL AGREEMENT.
4.1. Each of the Lenders, by its signature to this Amendment, hereby
consents to the amendment to the Working Capital Agreement, a copy of which is
attached as Exhibit A hereto.
4.2. 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.
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.
7.1. [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
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Title: Vice President
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FMXI, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Vice President
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FOAMEX INTERNATIONAL INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Senior Vice President
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FOAMEX CANADA INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Treasurer
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FOAMEX CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Vice President
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FOAMEX LATIN AMERICA, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Vice President
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FOAMEX MEXICO, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Vice President
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FOAMEX MEXICO II, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Vice President
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FOAMEX ASIA, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Vice President
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FOAMEX CARPET CUSHION LLC
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Vice President
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SILVER POINT FINANCE, LLC,
as Administrative Agent
By: /s/ Xxxxxxx X. Xxxxxxx
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Title: Authorized Signatory
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FIELD POINT I, LTD.
By: /s/ Xxxxxxx X. Xxxxxxx
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Title: Authorized Signatory
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XXXXX XXXXX II, LTD.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Title: Authorized Signatory
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SIL LOAN FUNDING LLC
By: /s/ Xxxxxxxx X. Xxxxxx
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Title: Attorney-in-fact
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SSIG SPF ONE LQ, LLC
By: /s/ Xxxxxx Xxxxxxxxxx
--------------------------------
Title: Authorized Signatory
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SPCP GROUP, LLC
By: /s/ Xxxxxxx X. Xxxxxxx
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Title: Authorized Signatory
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SPCP GROUP III, LLC
By: /s/ Xxxxxxx X. Xxxxxxx
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Title: Authorized Signatory
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