Unassociated Document


     

    Exhibit
      4.16.12


    AMENDMENT
      NO. 2

     

    TO
      DEBTOR-IN-POSSESSION CREDIT AGREEMENT

     

    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/
                George L. Karpinski

            
	 	 	
              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/
                George L. Karpinski

            
	 	 	
              Title:

            	
              Vice
                President

            
	 	 	 	 
	 	
              FMXI,
                INC., a Debtor and Debtor-in-Possession

            
	 	 	 	 
	 	
              By:

            	
              /s/
                George L. Karpinski

            
	 	
              Title:

            	
              Vice
                President

            
	 	 	 	 
	 	 	 	 
	 	
              FOAMEX
                INTERNATIONAL INC., a Debtor and

            
	 	
              Debtor-in-Possession

            
	 	 
	 	
              By:

            	
              /s/
                George L. Karpinski

            
	 	
              Title:

            	
              Senior
                Vice President

            


    

     

    
      
         

      

      
        5

        
          

        

      

      
         

      

    

    
      	 	 	 
	 	
              FOAMEX
                CANADA INC., a Debtor Company and

            
	 	
              Applicant

            
	 	 
	 	
              By:

            	
              /s/
                George L. Karpinski

            
	 	
              Title:

            	
              Treasurer

            
	 	 	 
	 	
              FOAMEX
                CAPITAL CORPORATION, a Debtor

            
	 	
              and
                Debtor-in-Possession

            
	 	 
	 	
              By:

            	
              /s/
                George L. Karpinski

            
	 	
              Title:

            	
              Vice
                President

            
	 	 	 	 
	 	
              FOAMEX
                LATIN AMERICA, INC., a Debtor and

            
	 	
              Debtor-in-Possession

            
	 	 	 	 
	 	
              By:

            	
              /s/
                George L. Karpinski

            
	 	
              Title:

            	
              Vice
                President

            
	 	 	 	 
	 	
              FOAMEX
                MEXICO, INC., a Debtor and Debtor-

            
	 	
              in-Possession

            
	 	 	 	 
	 	
              By:

            	
              /s/
                George L. Karpinski

            
	 	
              Title:

            	
              Vice
                President

            
	 	 	 	 
	 	
              FOAMEX
                MEXICO II, INC., a Debtor and Debtor-

            
	 	
              in
                Possession

            
	 	 
	 	
              By:

            	
              /s/
                George L. Karpinski

            
	 	
              Title:

            	
              Vice
                President

            
	 	 	 	 


    

     

    
      
         

      

      
        6

        
          

        

      

      
         

      

    

    
      	 	
              FOAMEX
                ASIA, INC., a Debtor and Debtor-in-

            
	 	
              Possession

            
	 	 
	 	
              By:

            	
              /s/
                George L. Karpinski

            
	 	
              Title:

            	
              Vice
                President

            
	 	 	 	 
	 	
              FOAMEX
                CARPET CUSHION LLC, a Debtor and

            
	 	
              Debtor-in-Possession

            
	 	 
	 	
              By:

            	
              /s/
                George L. Karpinski

            
	 	
              Title:

            	
              Vice
                President

            
	 	 	 	 


    

     

    
      
         

      

      
        7

        
          

        

      

      
         

      

    

    
      	 	
              "ADMINISTRATIVE
                AGENT"

            
	 	 	 	 
	 	
              SILVER
                POINT FINANCE, LLC, as the Administrative Agent

            
	 	 
	 	
              By:

            	
              /s/
                Richard Petrilli

            
	 	
              Title:

            	
              Authorized
                Signatory

            
	 	 	 
	 	
              "LENDERS"

            
	 	 
	 	
              SPF
                CDO I, LLC

            
	 	 
	 	
              By:

            	
              /s/
                Richard Petrilli

            
	 	
              Title:

            	
              Authorized
                Signatory

            
	 	 	 
	 	
              FIELD
                POINT I, LTD.

            
	 	 
	 	
              By:

            	
              /s/
                Richard Petrilli

            
	 	
              Title:

            	
              Authorized
                Signatory

            
	 	 	 
	 	
              FIELD
                POINT II, LTD.

            
	 	 
	 	
              By:

            	
              /s/
                Richard Petrilli

            
	 	
              Title:

            	
              Authorized
                Signatory

            
	 	 	 
	 	
              FIELD
                POINT III, LTD.

            
	 	 
	 	
              By:

            	
              /s/
                Richard Petrilli

            
	 	
              Title:

            	
              Authorized
                Signatory

            
	 	 	 
	 	
              FIELD
                POINT IV, LTD.

            
	 	 
	 	
              By:

            	
              /s/
                Richard Petrilli

            
	 	
              Title:

            	
              Authorized
                Signatory

            
	 	 	 


    

     

    
      
         

      

      
        8

        
          

        

      

      
         

      

    

    
      	 	
              SPECIAL
                SITUATIONS INVESTING 

            
	 	
              GROUP,
                INC.

            
	 	 
	 	
              By:

            	
              /s/
                Albert Dombrowski

            
	 	
              Title:

            	
              Authorized
                Signatory

            


    

     

     

    9