Exhibit 4.16.13
CONSENT
UNDER DEBTOR-IN-POSSESSION CREDIT AGREEMENT
CONSENT UNDER DEBTOR-IN-POSSESSION CREDIT AGREEMENT ("this Consent"), dated
as of June 19, 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 desires to make payment, on a monthly basis
(commencing with the month of June 2006), of cash interest in arrears on the
Senior Secured Notes at the non-default contract interest rate set forth in the
Senior Secured Note Indenture (10-3/4% per annum) as additional adequate
protection to the holders of the Senior Secured Notes;
WHEREAS, the Borrower has requested that the Majority Lenders and the
Administrative Agent consent to such adequate protection;
NOW, THEREFORE, subject to the condition precedent set forth in Section 3
hereof, the Borrower, the Guarantors, the Majority 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. CONSENT. The Majority Lenders and the Administrative Agent
hereby consent to the payment by the Borrower, on a monthly basis (commencing
with the month of June 2006), of cash interest in arrears on the Senior Secured
Notes at the non-default contract interest rate set forth in the Senior Secured
Note Indenture (10-3/4% per annum) as additional adequate protection to the
holders of the Senior Secured Notes; provided, that (i) in no event shall any
such payment consist of interest accrued on the Senior Secured Notes prior to
June 1, 2006, (ii) such provision of adequate protection shall be sought by the
Borrower pursuant to a motion, and authorized by the Bankruptcy Court pursuant
to an order, in form and substance satisfactory to the Administrative Agent and
(iii) no such payment shall be permitted to be made if a Default or an Event of
Default exists at the time of the payment or would result therefrom. The
Borrower and the Guarantors hereby agree to the terms of the above consent.
SECTION 3. EFFECTIVENESS. This Consent shall become effective on such date
as counterparts of this Consent executed by the Borrower, the Guarantors, the
Majority Lenders and the Administrative Agent shall have been delivered to the
Administrative Agent.
SECTION 4. COUNTERPARTS. This Consent may be executed in counterparts, each
of which shall be an original, and all of which, taken together, shall
constitute a single instrument. This Consent 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 Consent, all references in the Credit Agreement to "this Agreement",
"hereof", "herein", and similar terms shall mean and refer to the Credit
Agreement, as modified by this Consent, and all references in other documents to
the Credit Agreement shall mean such agreement as modified by this Consent.
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.
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IN WITNESS WHEREOF, the parties hereto have caused this Consent 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
---------------------------------------
Title: Vice President
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FOAMEX LATIN AMERICA, INC., a Debtor and
Debtor-in-Possession
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------------
Title: Vice President
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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
---------------------------------------
4
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
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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, LLC
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------------
Title: Authorized Signatory
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FIELD POINT I, LTD.
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------------
Title: Authorized Signatory
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FIELD POINT II, LTD.
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------------
Title: Authorized Signatory
---------------------------------------
FIELD POINT III, LTD.
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------------
Title: Authorized Signatory
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FIELD POINT IV, LTD.
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------------
Title: Authorized Signatory
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