AMENDMENT NO. 2 TO DEBTOR-IN-POSSESSION CREDIT AGREEMENT
Exhibit
4.16.12
AMENDMENT
NO. 2
AMENDMENT
NO. 2 TO DEBTOR-IN-POSSESSION CREDIT AGREEMENT ("this
Amendment"),
dated
as of May 12, 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;
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 Section
7.25 of the Credit Agreement is amended and restated to read in its entirety
as
follows:
"7.25 EBITDA .
Foamex
shall not permit EBITDA for any fiscal period of Foamex set forth below to
be
less than the amount set forth opposite such fiscal period:
|
Fiscal
Period
|
Amount
|
|
One
fiscal month period ending on October 30, 2005
|
$3,900,000
|
|
Two
consecutive fiscal month period ending on December 4, 2005
|
7,950,000
|
|
Three
consecutive fiscal month period ending on January 1, 2006
|
5,800,000
|
|
Four
consecutive fiscal month period ending on January 29, 2006
|
8,250,000
|
|
Five
consecutive fiscal month period ending on February 26 2006
|
11,750,000
|
|
Fiscal
Period
|
Amount
|
|
Six
consecutive fiscal month period ending on April 2, 2006
|
16,250,000
|
|
Seven
consecutive fiscal month period ending on April 30, 2006
|
45,104,000
|
|
Eight
consecutive fiscal month period ending on May 28, 2006
|
53,944,000
|
|
Nine
consecutive fiscal month period ending on July 2, 2006
|
56,426,000
|
|
Ten
consecutive fiscal month period ending on July 30, 2006
|
61,710,000
|
|
Eleven
consecutive fiscal month period ending on August 27, 2006
|
67,970,000
|
|
Twelve
consecutive fiscal month period ending on October 1, 2006
|
79,942,000
|
|
Twelve
consecutive fiscal month period ending on October 29, 2006
|
83,593,000
|
|
Twelve
consecutive fiscal month period ending on December 3, 2006
|
78,733,000
|
|
Twelve
consecutive fiscal month period ending on December 31, 2006
|
75,644,000
|
|
Twelve
consecutive fiscal month period ending on January 28, 2007
|
76,100,000
|
|
Twelve
consecutive fiscal month period ending on February 25, 2007
|
77,700,000"
|
2.2 Section
7.27 of the Credit Agreement is amended and restated to read in its entirety
as
follows:
"7.27 Leverage
Ratio .
Foamex
shall not permit the Leverage Ratio as of each date set forth below to be
greater than the applicable ratio set forth opposite such date below:
|
Date
|
Leverage
Ratio
|
|
April
30, 2006
|
2.50
: 1.00
|
|
May
28, 2006
|
2.25
: 1.00
|
|
July
2, 2006
|
2.25
: 1.00
|
|
July
30, 2006
|
2.25
: 1.00
|
|
August
27, 2006
|
2.25
: 1.00
|
|
October
1, 2006
|
2.25
: 1.00
|
|
October
29, 2006
|
2.25
: 1.00
|
2
|
December
3, 2006
|
2.25
: 1.00
|
|
December
31, 2006
|
2.25
: 1.00
|
|
January
28, 2007
|
2.25
: 1.00
|
|
February
25, 2007
|
2.25
: 1.00"
|
2.3 The
definition of "Applicable Margin" in Annex A to the Credit Agreement is amended
and restated to read in its entirety as follows:
"'Applicable
Margin'
means
(a)
prior
to May 12, 2006,
(i)
with
respect to Base Rate Loans and all other Obligations (other than LIBOR Rate
Loans), 8.0%, and
(ii)
with
respect to LIBOR Rate Loans, 10.0%;
provided,
however,
that
commencing with the fiscal quarter of the Loan Parties ended January 1, 2006,
if
the EBITDA of the Loan Parties for the immediately preceding twelve-month period
of the Loan Parties ("TTM
EBITDA")
is, as
of the last day of any fiscal quarter of the Loan Parties (each, a "Test
Date"),
less
than $58,000,000 (each such period, a "Specified
Period"),
the
Applicable Margin shall be increased by 0.75% per annum beginning on the first
day of the month following the date on which the financial reports of the Loan
Parties for such Specified Period are (or are required to be) delivered to
the
Administrative Agent pursuant to Section
5.2(c)
(such
first day, a "Reset
Date")
until
the next succeeding Reset Date on which the financial reports of the Loan
Parties (delivered to the Administrative Agent pursuant to Section
5.2(c))
evidence that the TTM EBITDA of the Loan Parties for the most recent Test Date
equals or exceeds $58,000,000, at which time the increase in the Applicable
Margin shall no longer be applicable until any subsequent Specified Period;
and
(b)
on
and after May 12, 2006,
(i)
with
respect to Base Rate Loans and all other Obligations (other than LIBOR Rate
Loans), 3.375%, and
(ii)
with
respect to LIBOR Rate Loans, 5.375%."
2.4 The
following definitions are hereby added to Annex A to the Credit Agreement in
appropriate alphabetical order:
"'Annualized
EBITDA'
means,
as of any date of determination, the product of (i) the aggregate amount of
EBITDA for those fiscal months of Foamex commencing on or after October 30,
2005, and ending on or prior to such date of determination, multiplied by (ii)
a
fraction, the numerator of which shall be the number 12 and the denominator
of
which shall be the total number of fiscal months of Foamex that have elapsed
since October 30, 2005."
3
"'Funded
Indebtedness'
means,
with respect to Foamex at any date of determination, the principal amount of
all
Indebtedness of Foamex outstanding on such date, determined on a consolidated
basis in accordance with GAAP, incurred under (i) this Agreement, (ii) the
Working Capital Agreement, (iii) Capital Leases, and (iv) the industrial revenue
bonds described on Schedule 6.9 hereto."
"'Leverage
Ratio'
means,
on any date of determination, the ratio of (i) Funded Indebtedness of
Foamex outstanding on such date, to (ii) EBITDA for the period of twelve
consecutive fiscal months of Foamex most recently ended as of such date (or,
in
the case of any date prior to October 1, 2006, Annualized EBITDA for the period
ending on such date), all determined on a consolidated basis in accordance
with
GAAP."
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 a copy, certified by a Responsible
Officer of Foamex as true and complete, of a consent from the Working Capital
Agent and the Working Capital Lenders, consenting to this Amendment, which
consent shall be in form and substance satisfactory to the Administrative Agent
and the Lenders.
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 internal 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, 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]
4
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
|
||
|
Title:
|
Vice
President
|
||
|
"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
|
||
|
Title:
|
Vice
President
|
||
|
FOAMEX
INTERNATIONAL INC., a Debtor and
|
|||
|
Debtor-in-Possession
|
|||
|
By:
|
/s/
Xxxxxx X. Xxxxxxxxx
|
||
|
Title:
|
Senior
Vice President
|
||
5
|
FOAMEX
CANADA INC., a Debtor Company and
|
|||
|
Applicant
|
|||
|
By:
|
/s/
Xxxxxx X. Xxxxxxxxx
|
||
|
Title:
|
Treasurer
|
||
|
FOAMEX
CAPITAL CORPORATION, a Debtor
|
|||
|
and
Debtor-in-Possession
|
|||
|
By:
|
/s/
Xxxxxx X. Xxxxxxxxx
|
||
|
Title:
|
Vice
President
|
||
|
FOAMEX
LATIN AMERICA, INC., a Debtor and
|
|||
|
Debtor-in-Possession
|
|||
|
By:
|
/s/
Xxxxxx X. Xxxxxxxxx
|
||
|
Title:
|
Vice
President
|
||
|
FOAMEX
MEXICO, INC., a Debtor and Debtor-
|
|||
|
in-Possession
|
|||
|
By:
|
/s/
Xxxxxx X. Xxxxxxxxx
|
||
|
Title:
|
Vice
President
|
||
|
FOAMEX
MEXICO II, INC., a Debtor and Debtor-
|
|||
|
in
Possession
|
|||
|
By:
|
/s/
Xxxxxx X. Xxxxxxxxx
|
||
|
Title:
|
Vice
President
|
||
6
|
FOAMEX
ASIA, INC., a Debtor and Debtor-in-
|
|||
|
Possession
|
|||
|
By:
|
/s/
Xxxxxx X. Xxxxxxxxx
|
||
|
Title:
|
Vice
President
|
||
|
FOAMEX
CARPET CUSHION LLC, a Debtor and
|
|||
|
Debtor-in-Possession
|
|||
|
By:
|
/s/
Xxxxxx X. Xxxxxxxxx
|
||
|
Title:
|
Vice
President
|
||
7
|
"ADMINISTRATIVE
AGENT"
|
|||
|
SILVER
POINT FINANCE, LLC, as the Administrative Agent
|
|||
|
By:
|
/s/
Xxxxxxx Xxxxxxxx
|
||
|
Title:
|
Authorized
Signatory
|
||
|
"LENDERS"
|
|||
|
SPF
CDO I, LLC
|
|||
|
By:
|
/s/
Xxxxxxx Xxxxxxxx
|
||
|
Title:
|
Authorized
Signatory
|
||
|
FIELD
POINT I, LTD.
|
|||
|
By:
|
/s/
Xxxxxxx Xxxxxxxx
|
||
|
Title:
|
Authorized
Signatory
|
||
|
FIELD
POINT II, LTD.
|
|||
|
By:
|
/s/
Xxxxxxx Xxxxxxxx
|
||
|
Title:
|
Authorized
Signatory
|
||
|
FIELD
POINT III, LTD.
|
|||
|
By:
|
/s/
Xxxxxxx Xxxxxxxx
|
||
|
Title:
|
Authorized
Signatory
|
||
|
FIELD
POINT IV, LTD.
|
|||
|
By:
|
/s/
Xxxxxxx Xxxxxxxx
|
||
|
Title:
|
Authorized
Signatory
|
||
8
|
SPECIAL
SITUATIONS INVESTING
|
|||
|
GROUP,
INC.
|
|||
|
By:
|
/s/
Xxxxxx Xxxxxxxxxx
|
||
|
Title:
|
Authorized
Signatory
|
||
9
