Exhibit 4.16.11
AMENDMENT NO. 1
TO DEBTOR-IN-POSSESSION CREDIT AGREEMENT
AMENDMENT NO. 1 TO DEBTOR-IN-POSSESSION CREDIT AGREEMENT ("this
Amendment"), dated as of April 28, 2006, among FOAMEX L.P., as a debtor and
debtor-in-possession under Chapter 11 of the Bankruptcy Code (the "Borrower"),
the affiliates of the Borrower party hereto, the lenders party hereto and SILVER
POINT FINANCE, LLC, as Administrative Agent (the "Administrative Agent").
WHEREAS, the Borrower, certain of its affiliates as guarantors, each as a
debtor and debtor-in-possession under Chapter 11 of the Bankruptcy Code, Foamex
Canada Inc. as a debtor company and applicant under the Companies' Creditors
Arrangement Act (Canada) as a guarantor, the lenders party thereto and the
Administrative Agent, are parties to a certain Debtor-in-Possession Credit
Agreement, dated as of September 22, 2005, as amended (as amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement");
WHEREAS, the Borrower, the Guarantors, the Lenders and the Administrative
Agent desire to amend certain provisions of the Credit Agreement, including,
without limitation, to permit certain asset dispositions described in the letter
(the "Asset Disposition Letter"), dated March 24, 2006, from Foamex to Bank of
America, N.A. and Silver Point Finance, LLC (a copy of which letter is attached
as Exhibit A hereto);
NOW, THEREFORE, subject to the conditions precedent set forth in Section 3
hereof, the Borrower, the Guarantors, the 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 Each of the Lenders hereby consents to the terms and provisions of the
Asset Disposition Letter and agrees that the Credit Agreement is amended to
permit the dispositions of assets described in the Asset Disposition Letter on
the terms (including, without limitation, the sale treatment, mandatory
prepayment and application of disposition proceeds terms) described therein.
Without limitation of the foregoing, (i) Section 3.3 of the Credit Agreement is
amended to conform to the mandatory prepayment and application of disposition
proceeds terms of the Asset Disposition Letter (including, in the case of
dispositions of Equipment described in the third paragraph of the Asset
Disposition Letter, the exclusion of such dispositions from the mandatory
prepayment requirement in Section 3.3(a) of the Credit Agreement as provided in
clause (i) of the second parenthetical of such Section 3.3(a)) and (ii) the
assets described in the second paragraph of the Asset Disposition Letter shall
be Specified Assets and the disposition thereof shall be treated as dispositions
under Section 7.11(xii) of the Credit Agreement.
2.2 Section 5.2 of the Credit Agreement is amended by (i) deleting the
words "its chief financial officer" in the last sentence of each of clauses (b)
and (c) thereof and
substituting therefor the words "its chief financial officer or treasurer or
another officer of Foamex acceptable to the Administrative Agent" and (ii)
deleting the words "the chief financial officer of Foamex" where used in clause
(e) thereof and substituting therefor the words "the chief financial officer or
treasurer of Foamex or another officer of Foamex acceptable to the
Administrative Agent".
2.3 Each of the Lenders hereby agrees that, notwithstanding Schedule 7.24
to the Credit Agreement, for purposes of Section 7.24 of the Credit Agreement
cumulative net cash flow for any fiscal period of Foamex shall be defined to be
the sum of the change in the balance of the line items captioned as 1) Cash and
Cash Equivalents and 2) Revolving Credit Borrowings on the consolidated balance
sheets of Foamex and its consolidated Subsidiaries as at the first and last days
of such fiscal period, as those changes represent an increase or decrease in
cash flow.
2.4 The definition of "Borrowing Base" in Annex A to the Credit Agreement
is amended in its entirety to read as follows:
"Borrowing Base" means the term "Borrowing Base" as defined, together
with the terms used therein, in Amendment No. 2, dated as of April 28,
2006, to the Working Capital Agreement.
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 Borrower, the
Guarantors, the 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 (other than the amendment to the definition of "Applicable
Margin" in Annex A to the Working Capital Agreement set forth in the amendment
to the Working Capital Agreement, dated as of the date first set forth above),
which amendment shall be in form and substance satisfactory to the
Administrative Agent and the Lenders.
SECTION 4. CONSENT TO AMENDMENTS TO SENIOR LENDERS INTERCREDITOR AGREEMENT
AND WORKING CAPITAL 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.
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4.2 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 B 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 internal 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.
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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.
"BORROWER"
FOAMEX L.P., a Debtor and Debtor-in-Possession
By: FMXI, Inc., its Managing General Partner,
a Debtor and Debtor-in-Possession
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Vice President
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"GUARANTORS"
FOAMEX L.P., a Debtor and Debtor-in-Possession
By: FMXI, Inc., its Managing General Partner,
a Debtor and Debtor-in-Possession
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------
Title: Vice President
-----------------------------------
FMXI, INC., a Debtor and Debtor-in-Possession
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Vice President
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FOAMEX INTERNATIONAL INC., a Debtor and
Debtor-in-Possession
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Senior Vice President
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FOAMEX CANADA INC., a Debtor Company and
Applicant
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Treasurer
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FOAMEX CAPITAL CORPORATION, a Debtor
and Debtor-in-Possession
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Vice President
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FOAMEX LATIN AMERICA, INC., a Debtor and
Debtor-in-Possession
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Vice President
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FOAMEX MEXICO, INC., a Debtor and Debtor-
in-Possession
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Vice President
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FOAMEX MEXICO II, INC., a Debtor and Debtor-
in Possession
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Vice President
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FOAMEX ASIA, INC., a Debtor and Debtor-in-
Possession
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Vice President
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FOAMEX CARPET CUSHION LLC, a Debtor and
Debtor-in-Possession
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Vice President
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"ADMINISTRATIVE AGENT"
SILVER POINT FINANCE, LLC, as the
Administrative Agent
By: /s/ Xxxxxxx Xxxxxxxx
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Title: Authorized Signatory
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"LENDERS"
SPF CDO I, LTD.
By: /s/ Xxxxxxx Xxxxxxxx
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Title: Authorized Signatory
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FIELD POINT I, LTD.
By: /s/ Xxxxxxx Xxxxxxxx
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Title: Authorized Signatory
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SPCP GROUP, L.L.C.
By: /s/ Xxxxxxx Xxxxxxxx
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Title: Authorized Signatory
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