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FOAMEX L.P. AND FOAMEX CAPITAL CORPORATION
as Issuers
AND
THE BANK OF NEW YORK
as Trustee
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THIRD
SUPPLEMENTAL INDENTURE
Dated as of September 30, 1998
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$150,000,000
9-7/8% Senior Subordinated Notes
due 2007
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THIRD SUPPLEMENTAL INDENTURE
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THIS THIRD SUPPLEMENTAL INDENTURE (the "Supplemental Indenture"), dated as
of September 30, 1998, by and among Foamex L.P., a Delaware limited partnership
("Foamex"), Foamex Capital Corporation, a Delaware corporation wholly-owned by
Foamex ("FCC"; Foamex and FCC collectively referred to as the "Issuers"), and
The Bank of New York, a New York banking corporation, as Trustee (the
"Trustee").
WHEREAS, Foamex, FCC, General Felt Industries, Inc., a Delaware corporation
("GFI"), Foamex Fibers, Inc., a Delaware corporation ("Foamex Fibers"), and the
Trustee executed an indenture, dated as of June 12, 1997 (the "Indenture"),
relating to the Issuers' 9-7/8% Senior Subordinated Notes due 2007 (the "Notes")
as amended on December 23, 1997 and February 27, 1998; and
WHEREAS, Article 9.2 of the Indenture provides that the Issuers and the
Trustee may execute and deliver one or more supplemental indentures, with the
consent of the Holders (as defined in the Indenture) of at least a majority in
principal amount of the outstanding Notes to, among other things, change or
eliminate certain provisions of the Indenture; and
WHEREAS, the Issuers and the Trustee desire to amend the Indenture for the
purpose of changing and eliminating certain of such provisions; and
WHEREAS, the Issuers have received consents to such modifications from the
Holders of at least a majority in principal amount of the outstanding Notes; and
WHEREAS, all conditions precedent provided for in the Indenture relating to
this Supplemental Indenture have been complied with;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration the receipt and sufficiency of which is hereby
acknowledged, Foamex and FCC, jointly and severally, and the Trustee for the
benefit of each other and for the equal and ratable benefit of the Holders of
the Notes agree as follows:
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ARTICLE I.
EFFECTIVENESS AND EFFECT
Section 1.1 Effectiveness and Effect.
This Supplemental Indenture shall take effect on the date hereof, provided,
however, that the amendments provided for in Article Two hereof shall become
operative only upon, and simultaneously with, the date on which the Notes (as
such term is defined in the Offer as defined below), validly tendered pursuant
to Foamex's Offer to Purchase and Consent Solicitation, dated September 2, 1998,
as it may be amended or amended and restated, (the "Offer"), are accepted for
purchase and such amendments provided for in Article Two hereof shall have no
force or effect prior to the operative time specified in this Section. Subject
to the foregoing, the provisions set forth in this Supplemental Indenture shall
be deemed to be, and shall be construed as part of, the Indenture. All
references to the Indenture in the Indenture or in any other agreement, document
or instrument delivered in connection therewith or pursuant thereto shall be
deemed to refer to the Indenture as amended by this Supplemental Indenture.
Except as amended hereby, the Indenture shall remain in full force and effect.
ARTICLE II.
AMENDMENT OF THE INDENTURE
Section 2.1 Deletion of Certain Provisions.
Each of the following provisions of the Indenture is hereby deleted and
eliminated in its entirety, without any redesignation of any other provision of
the Indenture:
ss. 4.3 Reports
ss. 4.4 Compliance Certificate
ss. 4.5 Taxes
ss. 4.6 Stay, Extension and Usury Laws
ss. 4.7 Restricted Payments
ss. 4.8 Dividend and Other Payment Restrictions Affecting Subsidiaries
ss. 4.9 Incurrence of Indebtedness and Issuance of Preferred Stock
ss. 4.11 Transactions With Affiliates
ss. 4.12 Liens
ss. 4.13 Line of Business
ss. 4.14 Corporate Existence
ss. 4.16 Anti-Layering
ss. 4.17 Sale and Leaseback Transactions
ss. 4.18 Limitation on Issuances and Sales of Capital Stock of
Restricted Subsidiaries
ss. 4.19 Payments for Consent
ss. 4.20 Additional Guarantees
All references in the Indenture, as amended by this Section 2.1, to any of
the provisions deleted and eliminated as provided above shall also be deemed
deleted and eliminated.
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Section 2.2 Amendment of Section 4.10.
Section 4.10 of the Indenture is hereby amended and restated to read in its
entirety as follows:
"Section 4.10. Asset Sales.
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Each of the Issuers shall not, and shall not permit any of their respective
Restricted Subsidiaries to, consummate an Asset Sale unless such Issuer (or the
Restricted Subsidiary, as the case may be) receives consideration at the time of
such Asset Sale at least equal to the fair market value (evidenced by an
Officers' Certificate delivered to the Trustee and a resolution of the Board of
Directors) of the assets or Equity Interests issued or sold or otherwise
disposed of.
Within 365 days after the receipt of any Net Proceeds from an Asset Sale,
the Issuers may apply such Net Proceeds, at their option, (a) to repay Senior
Debt, or (b) to the acquisition of assets to be used in a Permitted Business.
Pending the final application of any such Net Proceeds, the Issuers may
temporarily reduce the Credit Facility or otherwise invest such Net Proceeds in
any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset
Sales that are not applied or invested as provided in the first sentence of this
paragraph will be deemed to constitute "Excess Proceeds." When the aggregate
amount of Excess Proceeds exceeds $15.0 million, the Issuers shall be required
to make an offer to all Holders of Notes (an "Asset Sale Offer") to purchase the
maximum principal amount of Notes that may be purchased out of the Excess
Proceeds, at an offer price in cash in an amount equal to 100% of the principal
amount thereof plus accrued and unpaid interest and Liquidated Damages, if any,
thereon to the date of purchase, in accordance with the procedures set forth in
Section 3.9 To the extent that the aggregate amount of Notes tendered pursuant
to an Asset Sale Offer and indebtedness ranking pari passu in right of payment
with the Notes with similar repurchase rights is less than the Excess Proceeds,
the Issuers may use any remaining Excess Proceeds for general corporate
purposes. If the aggregate principal amount of Senior Subordinated Notes
surrendered by Holders thereof and indebtedness ranking pari passu in right of
payment with the Notes with similar repurchase rights surrendered by the holders
thereof exceeds the amount of Excess Proceeds, a pro rata portion of the Excess
Proceeds (based on the principal amount of indebtedness surrendered) shall be
applied to the purchase of Senior Subordinated Notes, and the Trustee shall
select the Senior Subordinated Notes to be purchased on a pro rata basis;
provided, however, that the Issuers shall not be obligated to purchase Senior
Subordinated Notes in denominations other than integral multiples of $1,000.
Upon completion of such offer to purchase, the amount of Excess Proceeds shall
be reset at zero."
Section 2.3 Amendment of Section 5.1.
Section 5.1 of the Indenture is hereby amended and restated to read in its
entirety as follows:
"Section 5.1. Merger, Consolidation, or Sale of Assets.
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The issuers may not consolidate or merge with or into (whether or not the
Issuers are the surviving entity), or sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of their properties or assets in
one or more related transactions, to another corporation, Person or entity
unless (i) such Issuer is the surviving entity or the entity or the Person
formed by or surviving any such consolidation or merger (if other than such
Issuer) or to which such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made is organized and existing under the laws of the
United States, any state thereof or the District of Columbia, provided that FCC
may not consolidate or merge with or into any entity other than a corporation
satisfying such requirements for so long as Foamex remains a partnership and
(ii) the entity or Person formed by or surviving any such consolidation or
merger (if other than such Issuer) or the entity or Person to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made assumes all the obligations of such Issuer under the Notes and this
Indenture pursuant to a supplemental indenture in a form reasonably satisfactory
to the Trustee. In the case of a sale, assignment, lease, transfer, conveyance
or other disposition of all or
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substantially all of the assets of an Issuer, upon the assumption provided for
in clause (ii) above, such Issuer shall be discharged from all further liability
and obligation under this Indenture."
Section 2.4 Amendment of Section 6.1.
Section 6.1 of the Indenture is hereby amended and restated to read in its
entirety as follows:
"Section 6.1. Events of Default.
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An "Event of Default" occurs if:
(a) the Issuers default for 30 days in the payment of interest on, or
Liquidated Damages, if any, with respect to the Notes (whether or not prohibited
by the subordination provisions of this Indenture);
(b) the Issuers default in the payment when due of the principal of or
premium, if any, on the Notes (whether or not prohibited by the subordination
provisions of this Indenture);
(c) Intentionally omitted;
(d) Intentionally omitted;
(e) Intentionally omitted;
(f) Intentionally omitted;
(g) the Issuers or any of their respective Significant Subsidiaries or any
group of Subsidiaries that, taken as a whole, would constitute a Significant
Subsidiary pursuant to or within the meaning of Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in an
involuntary case,
(iii) consents to the appointment of a Custodian of it or for all or
substantially all of its property,
(iv) makes a general assignment for the benefit of its creditors,
(v) generally is not paying its debts as they become due; or
(h) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(i) is for relief against the Issuers or any of their Significant
Subsidiaries or any group of Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary in an involuntary case;
(ii) appoints a custodian of the Issuers or any of their respective
Significant Subsidiaries or any group of Subsidiaries that, taken as a
whole, would constitute a Significant Subsidiary or for all or
substantially all of the property of the Issuers or any of their
Significant Subsidiaries or any group of Subsidiaries that, taken as a
whole, would constitute a Significant Subsidiary; or
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(iii) orders the liquidation of the Issuers or any of their respective
Significant Subsidiaries or any group of Subsidiaries that, taken as a
whole, would constitute a Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60 consecutive days."
Section 2.5 Amendment of Section 8.1.
Section 8.1 of the Indenture is hereby amended and restated to read in its
entirety as follows:
"Section 8.1. Termination of Issuers' Obligations.
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This Indenture shall cease to be of further effect (except that the
Issuers' and the Subsidiary Guarantors' obligations under Section 7.7 and 8.4
and the Issuers' Trustee's and Paying Agent's obligations under Section 8.3
shall survive) when all outstanding Notes theretofore authenticated and issued
have been delivered (other than destroyed, lost or stolen Notes which have
replaced or paid) to the Trustee for cancellation and the Issuers have paid all
sums payable by the Issuers hereunder. In addition, the Issuers may terminate
all of their obligations under this Indenture if:
(1) the Issuers irrevocably deposit in trust with the Trustee or at the
option of the Trustee, with a trustee reasonably satisfactory to the Trustee and
the Issuers under the terms of an irrevocable trust agreement in form and
substance satisfactory to the Trustee, money or United States Government
Obligations sufficient to pay principal and interest on the Notes to maturity or
redemption, as the case may be, and to pay all other sums payable by them
hereunder, provided that (i) the trustee of the irrevocable trust shall have
been irrevocably instructed to pay such money or the proceeds of such United
States Government Obligations to the Trustee and (ii) the Trustee shall have
been irrevocably instructed to apply such money or the proceeds of such United
States Government Obligations to the payment of said principal and interest with
respect to the Notes; and
(2) no Event of Default or event (including such deposit) which, with
notice or lapse of time, or both, would become an Event of Default with respect
to the Notes shall have occurred and be continuing on the date of such deposit.
Then, this Indenture shall cease to be of further effect (except as
provided in this paragraph), and the Trustee, on demand of the Issuers, shall
execute proper instruments acknowledging confirmation of and discharge under
this Indenture. The Issuers may make the deposit only if Article 10 hereof does
not prohibit such payment. However, the Issuers' obligations in Section 2.3,
2.4, 2.5, 2.6, 2.7, 4.1, 7.7, 7.8, 8.3 and 8.4, and the Trustee's and Paying
Agent's obligations in Section 8.3 shall survive until the Notes are no longer
outstanding. Thereafter, only the Issuers', Trustee's and Paying Agents'
obligations in Section 8.3 shall survive.
After such irrevocable deposit made pursuant to this Section 8.1 and
satisfaction of the other conditions set forth herein, the Trustee upon written
request of the Issuer shall acknowledge in writing the discharge of the Issuers'
and the Subsidiary Guarantors' obligations under this Indenture except for those
surviving obligations specified above.
In order to have money available on a payment date to pay principal or
interest on the Notes, the United States Government Obligations shall be payable
as to principal or interest at least one Business Day before such payment date
in such amounts as will provide the necessary money. United States Government
Obligations shall not be callable at the Issuers' options.
The Issuers shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the United States Government
Obligations deposited pursuant to this Section 8.1 or
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the principal and interest received in respect thereof other than any such tax,
fee or other charge which by law is for the account of the Holders of
outstanding Notes."
Section 2.6 Amendment of Section 11.3.
Section 11.3 of the Indenture is hereby amended and restated to read in its
entirety as follows:
"Section 11.3. Subsidiary Guarantors May Consolidate, Etc., on Certain Terms
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(a) Except as set forth in Articles 4 and 5 hereof, nothing contained in
this Indenture shall prohibit a merger between a subsidiary Guarantor and
another Subsidiary Guarantor or a merger between a Subsidiary Guarantor and the
Issuers.
(b) Except as provided in Section 11.3(a) hereof or in a transaction
referred to in Section 11.4 hereof, no Subsidiary Guarantor may consolidate with
or merge with or into (whether or not such Subsidiary Guarantor is the surviving
Person), another corporation, Person or entity whether or not affiliated with
such Subsidiary Guarantor unless, subject to the provisions of the following
paragraph, the Person formed by or surviving any such consolidation or merger
(if other than such Subsidiary Guarantor) assumes all the obligations of such
Subsidiary Guarantor pursuant to a supplemental indenture in form and substance
reasonably satisfactory to the Trustee, under the Notes and the Indenture.
(c) In the case of any such consolidation, merger, sale or conveyance and
upon the assumption by the successor Person, by supplemental indenture, executed
and delivered to the Trustee and substantially in the form of Exhibit D hereto,
of the Note Guarantee endorsed upon the Notes and the due and punctual
performance of all of the covenants and conditions of this Indenture to be
performed by the Subsidiary Guarantor, such successor Person shall succeed to
and be substituted for the Subsidiary Guarantor with the same effect as if it
had been named herein as a Subsidiary Guarantor. Such successor Person thereupon
may cause to be signed any or all of the Note Guarantees to be endorsed upon all
of the Notes issuable hereunder which theretofore shall not have been signed by
the Issuers and delivered to the Trustee. All of the Note Guarantees so issued
shall in all respects have the same legal rank and benefit under this Indenture
as the Note Guarantees theretofore and thereafter issued in accordance with the
terms of this Indenture as though all of such Note Guarantees had been issued at
the date of the execution hereof."
ARTICLE III.
MISCELLANEOUS
Section 3.1 Counterparts.
This Supplemental Indenture may be executed in counterparts, each of which
when so executed shall be deemed to be an original, but all such counterparts
shall together constitute one and the same instrument.
Section 3.2 Severability.
In the event that any provision in this Supplemental Indenture shall be
held to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 3.3 Headings.
The article and section headings herein are for convenience only and shall
not affect the construction hereof.
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Section 3.4 Successors and Assigns.
Any covenants and agreements in this Supplemental Indenture by Foamex, FCC
and the Trustee shall bind their successors and assigns, whether so expressed or
not.
Section 3.5 GOVERNING LAW.
THIS SUPPLEMENTAL INDENTURE, SHALL BE DEEMED TO BE A CONTRACT UNDER THE
INTERNAL LAWS OF THE STATE OF NEW YORK AND FOR ALL PURPOSES SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF SUCH STATE.
Section 3.6 Effect of Supplemental Indenture.
Except as amended by this Supplemental Indenture, the terms and provisions
of the Indenture shall remain in full force and effect.
Section 3.7 Trustee.
The Trustee accepts the modifications of the Trust effected by this
Supplemental Indenture, but only upon the terms and conditions set forth in the
Indenture. Without limiting the generality of the foregoing, the Trustee assumes
no responsibility for the correctness of the recitals herein contained, which
shall be taken as the statements of Foamex and FCC, and the Trustee shall not be
responsible or accountable in any way whatsoever for or with respect to the
validity or execution or sufficiency of this Supplemental Indenture, and the
Trustee makes no representation with respect thereto.
Section 3.8 Definitions.
Capitalized terms used but not defined herein shall have the respective
meanings ascribed to them in the Indenture.
[The remaining portion of this page is intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be executed by their duly authorized representative as of the date
hereof.
ATTEST: FOAMEX CAPITAL CORPORATION
Xxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
ATTEST: FOAMEX L.P.
Xxxx X. Xxxxxxx By: FMXI, INC.
------------------ its Managing General Partner
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
THE BANK OF NEW YORK
as Trustee
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: Assistant Treasurer
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XXXXX XX XXXXXXXXXXXX
XXXXXX XX XXXXXXXX
XXXXXX XX, the undersigned, a Notary Public in and for said State and
County, on this day personally appeared Xxxxxx X. Xxxxxxxxx the Vice President
of FOAMEX CAPITAL CORPORATION, known to me to be the person and officer whose
name is subscribed to the foregoing instrument, and acknowledged to me that the
same was the act of the said Foamex Capital Corporation, and that he executed
the same as the act of such corporation with the authority of the board of
directors for the purposes and consideration therein expressed and in the
capacity therein stated.
/s/ Xxxxxxxx X. Xxxxx
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Notary Public, State of Pennsylvania
Printed Name: Xxxxxxxx X. Xxxxxx
My Commission Expires:
April 26, 1999
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PENNSYLVANIA
COUNTY OF DELAWARE
BEFORE ME, the undersigned, a Notary Public in and for said State and
County, on this day personally appeared Xxxxxx X. Xxxxxxxxx the Vice President
of FMXI, INC., the Managing General Partner of Foamex L.P., a Delaware limited
partnership, known to me to be the person and officer whose name is subscribed
to the foregoing instrument, and acknowledged to me that the same was the act of
the said FMXI, Inc., and that he executed the same as the act of such
corporation with the authority of the board of directors for the purposes and
consideration therein expressed and in the capacity therein stated.
/s/ Xxxxxxxx X. Xxxxx
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Notary Public, State of Pennsylvania
Printed Name: Xxxxxxxx X. Xxxxxx
My Commission Expires:
April 26, 1999
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