Exhibit 4.10.14
EXECUTION COPY
AMENDMENT TO FOAMEX CREDIT AGREEMENT
This AMENDMENT TO FOAMEX CREDIT AGREEMENT, dated as of December 23,
1999 (this "Amendment"), amends in certain respects that certain Credit
Agreement dated as of June 12, 1997, as amended and restated as of February 27,
1998 as further amended and restated as of June 29, 1999 (as amended, amended
and restated, supplemented or otherwise modified from time to time, the "Credit
Agreement") among Foamex L.P., a Delaware limited partnership ("Foamex" or the
"Borrower"), FMXI, Inc., a Delaware corporation and managing general partner of
Foamex ("FMXI"), the institutions from time to time a party thereto as Lenders,
whether by execution of the Credit Agreement or an Assignment and Acceptance,
the institutions from time to time a party thereto as Issuing Banks, whether by
execution of the Credit Agreement or an Assignment and Acceptance, Citicorp USA,
Inc., a Delaware corporation ("Citicorp"), in its capacity as the collateral
agent for the Lenders and the Issuing Banks thereunder (in such capacity, the
"Collateral Agent") and The Bank of Nova Scotia ("Scotiabank"), in its capacity
as funding agent for the Lenders and Issuing Banks (in such capacity, the
"Funding Agent"; together with the Collateral Agent, the "Administrative
Agents").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrower (which has executed this Amendment) has requested
the undersigned, which constitute the Requisite Lenders, to amend the Credit
Agreement as set forth herein. The Lenders party hereto have agreed to amend the
Credit Agreement to accommodate the request of the Borrower contained herein,
subject to the terms set forth herein.
NOW, THEREFORE, in consideration of the above recital of the Borrower,
the Requisite Lenders and the Administrative Agents agree as follows:
SECTION 1. Defined Terms. Capitalized terms used herein and not
otherwise defined herein shall have the meanings provided to such terms in the
Credit Agreement.
SECTION 2. Amendments to the Credit Agreement. The Credit Agreement is
hereby amended as follows:
SECTION 2.1. Amendment to Article I. The following definition is added
to Article I of the Credit Agreement in the appropriate alphabetical place:
"`Special Dividend' has the meaning ascribed to such term in Section
9.06(iv)."
SECTION 2.2. Amendment to "Excess Cash Flow" Definition. The definition
of "Excess Cash Flow" in Section 1.01 of the Credit Agreement is hereby amended
by (v) deleting in clause (b)(v) the "s" at the end of the word "Sections", (w)
deleting in clause (b)(v) the text "and 9.06(iv)", (x) inserting in
clause (b)(v) immediately after the reference to "9.06(iii)" the following:
"(other than the Special Dividend)", (y) deleting in clause (b)(ix) the "." and
inserting a ";" in lieu thereof and (z) inserting at the end thereof, after
clause (b)(ix) the following: "provided, that both the payment of the Special
Dividend and any repayment by Foamex International of such Special Dividend
shall be excluded from the calculation of Excess Cash Flow."
SECTION 2.3. Amendment to Section 9.06 of the Credit Agreement. Clause
(iv) of Section 9.06 of the Credit Agreement is hereby amended and restated in
its entirety as follows:
"(iv) a one-time dividend in an amount not to exceed
$17,500,000 paid on or prior to December 31, 1999 (the "Special
Dividend") to the Managing General Partner and the Limited Partner to
permit Foamex International to repay in full its debt obligations to
the Borrower under the Tax Advance Agreement (but only if such
distributions are immediately repaid to the Borrower);"
SECTION 2.4. Amendment to Section 9.08 of the Credit Agreement. Clause
(vi) of Section 9.08 of the Credit Agreement is hereby amended by (x) inserting
after the word "Inventory" the following "(and also, solely with respect to
Recticel s.a. ("Recticel") and its Affiliates, the licensing of intellectual
property and the sale of services)" and (y) inserting immediately after the text
"TIHI and its Subsidiaries" the following: "or Recticel and its Affiliates".
SECTION 3. Conditions to Effectiveness. This Amendment shall become
effective on the date (the "Effective Date") on which the following conditions
precedent have been satisfied (unless waived by the Requisite Lenders):
(i) Documents. The Administrative Agents shall have received
on or before the Effective Date this Amendment (x) duly executed by the
Borrower and the Lenders which constitute the Requisite Lenders and (y)
in form and substance satisfactory to the Requisite Lenders.
(ii) Contracts; Consents. The Borrower shall have received all
material consents and authorizations required pursuant to any material
Contractual Obligation with any other Person and shall have obtained
all material consents and authorizations of, and effected all notices
to and filings with, any Governmental Authority, in each case, as may
be necessary to allow the Borrower to lawfully and without risk of
rescission, execute, deliver and perform, in all material respects, its
obligations under this Amendment.
(iii) No Legal Impediments. No law, regulation, order,
judgment or decree of any Governmental Authority shall, and neither
Administrative Agent shall have received, on or prior to the Effective
Date, any notice that litigation is pending or threatened which is
likely to, impose or result in the imposition of a Material Adverse
Effect.
(iv) No Default. Both immediately before and after giving
effect to this Amendment, no Potential Event of Default or Event of
Default shall have occurred.
(v) Representations and Warranties. All of the representations
and warranties contained in Article VI of the Credit Agreement and in
any of the other Loan Documents shall be true and correct in all
material respects on and as of the Effective Date.
2
SECTION 4. Representations and Warranties. The Borrower hereby
represents and warrants to the Lenders party hereto that (i) the execution,
delivery and performance of this Amendment by the Borrower are within the
Borrower's partnership powers and have been duly authorized by all necessary
partnership action, and (ii) this Amendment constitutes the legal, valid and
binding obligation of the Borrower, enforceable against the Borrower, in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws relating to or
limiting creditors' rights generally or by equitable principles generally.
SECTION 5. Reference to and Effect on the Loan Documents.
SECTION 5.1. Upon the effectiveness of this Amendment, on and after the
date hereof each reference in the Credit Agreement to "this Agreement",
"hereunder", "hereof", "herein" or words of like import, and each reference in
the other Loan Documents to the Credit Agreement, shall mean and be a reference
to the Credit Agreement as amended hereby.
SECTION 5.2. Except as specifically amended above, all of the terms of
the Credit Agreement and all other Loan Documents shall remain unchanged and in
full force and effect.
SECTION 5.3. The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of any Lender or either Administrative Agent under
the Credit Agreement or any of the Loan Documents, nor constitute a waiver of
any provision of the Credit Agreement or any of the Loan Documents.
SECTION 5.4. As of the Effective Date (after giving effect to this
Amendment), the Borrower is in compliance in all material respects with all
applicable terms, conditions and covenants of the Credit Agreement and other
Loan Documents.
SECTION 6. Execution in Counterparts. This Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute one and the same
agreement.
SECTION 7. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO NEW YORK CONFLICTS OF LAWS PRINCIPLES.
SECTION 8. Guarantor Consent. By its signature below, Foamex
International hereby (i) consents to this Amendment in its capacity as a
guarantor under the Foamex International Guaranty and (ii) affirms its
obligations under such guaranty.
SECTION 9. Headings. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment or be given any substantive effect.
3
SECTION 10. Successors and Assigns. This Amendment shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the
date first above written.
BORROWER
FOAMEX L.P.
By: FMXI, Inc., Its Managing General Partner
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
FMXI, INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
FOAMEX INTERNATIONAL INC., as a guarantor
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
CITICORP USA, INC., as Administrative Agent,
Collateral Agent, individually as a Lender, and as
Intercreditor Collateral Agent
By /s/ Shapleigh ▇. ▇▇▇▇▇
-----------------------
Name: Shapleigh ▇. ▇▇▇▇▇
Title: Managing Director
CITIBANK, N.A., as Issuing Bank
By /s/ Shapleigh ▇. ▇▇▇▇▇
-----------------------
Name: Shapleigh ▇. ▇▇▇▇▇
Title: Managing Director
THE BANK OF NOVA SCOTIA, as Administrative Agent,
Funding Agent, Issuing Bank, individually as a
Lender, and as Intercreditor Agent
By /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
AERIES FINANCE LTD.
By_______________________________________
Name:
Title:
ALLSTATE INSURANCE COMPANY
By_______________________________________
Name:
Title:
By_______________________________________
Name:
Title:
ARCHIMEDES FUNDING, L.L.C.
By: ING Capital Advisors, Inc.,
as Collateral Manager
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President and
Portfolio Manager
BALANCED HIGH-YIELD FUND I LTD.
By: BHF (USA) Capital Corporation acting as
Attorney-In-Fact
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Associate
BANKBOSTON, N.A.
By_______________________________________
Name:
Title:
THE BANK OF NEW YORK
By_______________________________________
Name:
Title:
BHF (USA) CAPITAL CORPORATION
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Associate
CAPTIVA FINANCE LTD.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
CARAVELLE INVESTMENT FUND L.L.C.
By: Caravelle Advisors, L.L.C.
By_______________________________________
Name:
Title:
CERBERUS PARTNERS, L.P.
By_______________________________________
Name:
Title:
CERES FINANCE LTD.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Authorized Signatory
CHASE SECURITIES INC.,
as agent for The Chase Manhattan Bank
By_______________________________________
Name:
Title:
CIC
By:______________________
Name:
Title:
COMMERCIAL LOAN FUNDING TRUST I
By: ▇▇▇▇▇▇ Commercial Paper Inc., not in its
individual capacity, but solely as
Administrative Agent
By_______________________________________
Name:
Title:
By_______________________________________
Name:
Title:
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE
By /s/ ▇▇▇▇▇ ▇'▇▇▇▇▇
Name: ▇▇▇▇▇ ▇'▇▇▇▇▇
Title: Vice President
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: First Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
CRESCENT/MACH I PARTNERS, L.P.
By: TCW Asset Management Company Its
Investment Manager
By_______________________________________
Name:
Title:
CYPRESSTREE INVESTMENT MANAGEMENT COMPANY, INC.
As: Attorney-in-Fact and on behalf of First
Allmerica Financial Life Insurance Company as
Portfolio Manager
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Principal
DEBT STRATEGIES FUND, INC.
By_______________________________________
Name:
Title:
DEEPROCK & COMPANY
By_______________________________________
Name:
Title:
DELANO COMPANY
By:Pacific Investment Management Company,
as its Investment Advisor
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
By:PIMCO Management Inc., a general partner
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
DLJ CAPITAL FUNDING, INC.
By_______________________________________
Name:
Title:
FLEET NATIONAL BANK
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
GENERAL ELECTRIC CAPITAL CORPORATION
By_______________________________________
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P.
By_______________________________________
Name:
Title:
▇▇▇▇▇▇▇ SACHS INTERNATIONAL BANK
By_______________________________________
Name:
Title:
IMPERIAL BANK
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
KZH CRESCENT LLC
By /s/ ▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Authorized Agent
KZH CRESCENT-2 LLC
By /s/ ▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Authorized Agent
KZH CYPRESSTREE-1 LLC
By /s/ ▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Authorized Agent
KZH LANGDALE LLC
By /s/ ▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Authorized Agent
KZH ING-1 LLC
By /s/ ▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Authorized Agent
KZH ING-2 LLC
By /s/ ▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Authorized Agent
KZH SOLEIL LLC
By /s/ ▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Authorized Agent
THE MAINSTAY FUNDS,
on behalf of its high yield corporate bond fund
series By: Mackay ▇▇▇▇▇▇▇ LLC, its Investment
Advisor
By /s/ ▇▇▇▇▇▇ ▇. Nisi
Name: ▇▇▇▇▇▇ ▇. Nisi
Title: Director
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Second Vice President and Associate
General Counsel
MASSMUTUAL HIGH YIELD PARTNERS II, LLC
By: HYP MANAGEMENT INC. AS
MANAGING MEMBER
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Director
▇▇▇▇▇▇▇ ▇▇▇▇▇ GLOBAL INVESTMENT SERIES:
INCOME STRATEGIES PORTFOLIO
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Asset Management, L.P.,
as Investment Advisor
By_____________________________________
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING RATE FUND, INC.
By_______________________________________
Name:
Title:
METROPOLITAN LIFE INSURANCE COMPANY
By_______________________________________
Name:
Title:
THE MITSUBISHI TRUST AND BANKING CORPORATION
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
ML CBO IV (CAYMAN) LTD.
By: Highland Capital Management L.P.,
as Collateral Manager
By_______________________________________
Name:
Title:
NATEXIS BANQUE, BFCE (formerly Banque Francaise du
Commerce Exterieur)
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Vice President and Group Manager
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Associate
NATIONSBANK, N.A.
By_______________________________________
Name:
Title:
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By_______________________________________
Name:
Title:
ORIX USA CORPORATION
By /s/ Hiroyuki Mayauchi
Name: Hiroyuki Mayauchi
Title: Executive Vice President
PAMCO CAYMAN LTD.
By: Highland Capital Management, L.P.,
as Collateral Manager
By_______________________________________
Name:
Title:
▇▇▇ CAPITAL FUNDING, L.P.
By:Highland Capital Management, L.P.,
as Collateral Manager
By_______________________________________
Name:
Title:
PILGRIM PRIME RATE TRUST
By:Pilgrim Investments, Inc.,
as its Investment Manager
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
ROYALTON COMPANY
By:Pacific Investment Management Company,
as its Investment Advisor
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
By:PIMCO Management Inc., a general partner
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
SENIOR HIGH INCOME PORTFOLIO, INC.
By_______________________________________
Name:
Title:
SENIOR DEBT PORTFOLIO
By:Boston Management and Research,
as Investment Advisor
By /s/ ▇▇▇▇▇ ▇. Page
Name: ▇▇▇▇▇ ▇. Page
Title: Vice President
STRATA FUNDING LTD.
By /s/ ▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Director
▇▇▇▇▇▇▇▇▇ CAPITAL
By_______________________________________
Name:
Title:
TCW LEVERAGED INCOME TRUST, L.P.
By: TCW Advisers (Bermuda), Ltd.,
as General Partner
By_______________________________________
Name:
Title:
By: TCW Investment Management Company,
as Investment Adviser
By_______________________________________
Name:
Title:
▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL PRIME RATE INCOME
TRUST
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
▇▇▇ ▇▇▇▇▇▇ CLO I, LIMITED
By:▇▇▇ ▇▇▇▇▇▇ American Capital Management Inc., as
Collateral Manager
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President