Exhibit 4.15.13
AMENDMENT NO. 2
TO DEBTOR-IN-POSSESSION CREDIT AGREEMENT
AMENDMENT NO. 2 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 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, 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, the
Administrative Agent, Banc of America Securities LLC, as sole lead arranger and
sole book manager, General Electric Capital Corporation, as syndication agent,
and Wachovia Bank, National Association and Xxxxx Fargo Foothill, LLC, as
co-documentation agents, 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 3.4 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 3.4(a) of the Credit Agreement as provided in
clause (i) of the second parenthetical of such Section 3.4(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 "Applicable Margin" in Annex A to the Credit
Agreement is amended in its entirety to read as follows:
"Applicable Margin" means
(a) with respect to Base Rate Revolving Loans and all other
Obligations (other than LIBOR Rate Revolving Loans), 1.375% (1.00%
from and after May 1, 2006); and
(b) with respect to LIBOR Rate Revolving Loans, 2.875% (2.50% from and
after May 1, 2006).
2.5 The definition of "Borrowing Base" in Annex A to the Credit Agreement
is amended in its entirety to read as follows:
"Borrowing Base" means, with respect to a Borrower or Foamex Canada,
at any time, an amount equal to (a) the sum of (A) up to eighty-five (85%)
of the Net Amount of Eligible Accounts of such Borrower or Foamex Canada,
as the case may be; plus (B) up to the lesser of (i) seventy percent (70%)
of the value of Eligible Inventory of such Borrower or Foamex Canada, as
the case may be, valued at the lower of cost (on a first-in, first-out
basis) or market and (ii) eighty-five percent (85%) of the Orderly
Liquidation Value of Eligible Inventory of such Borrower or Foamex Canada,
as the case may be; plus (C) up to an amount equal to fifty percent (50%)
of the undrawn amount of all Letters of Credit issued solely to support the
payment by such Borrower or Foamex Canada, as the case may be, of the
purchase price of inventory purchased by such Borrower or Foamex Canada, as
the case may be, in the ordinary course of its business that has not yet
been delivered to such Borrower or Foamex Canada, as the case may be, but
in any event without duplication of any inventory included in
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the calculation of clause (B) above; plus (D) in the case of Foamex, up to
an amount equal to (i) the lesser of (x) $42,000,000 and (y) the Fixed
Assets Value minus (ii) $1,312,500 on the first Business Day of Foamex's
April 2006 fiscal month and an additional $1,312,500 on the first Business
Day of each of Foamex's July, October, January and April fiscal months
thereafter; minus (b) Permanent Reserves established against such Borrower
or Foamex Canada, as the case may be, and other Reserves from time to time
established by the Administrative Agent in its reasonable credit judgment
with respect to such Borrower or Foamex Canada, as the case may be;
provided, that the aggregate Revolving Loans and Letters of Credit advanced
or issued against Eligible Inventory and Eligible Accounts of Foamex Canada
shall not exceed $25,000,000.
2.6 The Borrower, the Administrative Agent and each of the Lenders agree
that (1) the sum of (x) the aggregate undrawn amount of all merchandise Letters
of Credit plus, without duplication, (y) the aggregate unpaid reimbursement
obligations with respect to all merchandise Letters of Credit shall not at any
time exceed $10,000,000 and (2) the Administrative Agent shall not have any
obligation to issue or cause to be issued any merchandise Letter of Credit or to
provide Credit Support for any merchandise Letter of Credit if doing so would
result in a violation of clause (1) above.
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 Term Loan B 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 Term
Loan B Agreement, consenting to this Amendment and providing for amendments to
the Term Loan B Agreement consistent with the amendments herein contemplated
(other than the amendments contemplated in Sections 2.4 and 2.6 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 TERM LOAN B 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 Term Loan B 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
--------------------------------
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
-------------------------------------
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
-------------------------------------
FOAMEX MEXICO II, INC., a Debtor and Debtor-
in Possession
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Vice President
-------------------------------------
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
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Title: Vice President
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"ADMINISTRATIVE AGENT"
BANK OF AMERICA, N.A., as the Administrative Agent
By: /s/ Xxxxxxx X. Xxxxxx
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Title: Vice President
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"LENDERS"
BANK OF AMERICA, N.A.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Title: Vice President
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GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ Xxxxxxx Xxxx
-------------------------------------
Title: Duly Authorized Signatory
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WACHOVIA BANK, NATIONAL
ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Title: Vice President
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XXXXX FARGO FOOTHILL, LLC
By: /s/ Xxxx Xxxxxxx
-------------------------------------
Title: Vice President
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XXXXXXX XXXXX CAPITAL, a
division of Xxxxxxx Xxxxx
Business Financial Services
Inc.
By: /s/ Xxxxx Xxxx
-------------------------------------
Title: Vice President
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THE CIT GROUP/BUSINESS CREDIT, INC.
By: /s/ Xxxxxxx X. XxXxxxxx
-------------------------------------
Title: Assistant Vice President
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