THIRD AMENDMENT TO
AMENDED AND RESTATED TAX SHARING AGREEMENT OF FOAMEX L.P.
THIS THIRD AMENDMENT TO AMENDED AND RESTATED TAX SHARING AGREEMENT OF
FOAMEX L.P. (the "Amendment") is made as of February 27, 1998, by and between
Foamex L.P., a Delaware limited partnership ("Foamex"), Foamex International
Inc., a Delaware corporation ("FII") and FMXI, Inc., a Delaware corporation (the
"GP").
W I T N E S S E T H:
WHEREAS, Foamex, FII, Xxxxx Industries, Inc. ("Xxxxx"), Trace Foam Company,
Inc., a Delaware corporation ("Trace Foam"), FMXI, Inc., a Delaware corporation
("FMXI"), and certain other parties entered into that certain First Amended and
Restated Tax Sharing Agreement, dated as of December 14, 1993, as amended on
June 12, 1997, and December 23, 1997 (the "Original Agreement");
WHEREAS, FMXI has merged (the "Merger") with and into Xxxxx, pursuant to an
Agreement and Plan of Merger, dated as of February 27, 1998, with Xxxxx as the
surviving entity, changing its name to FMXI, Inc.;
WHEREAS, Trace has contributed to Trace SPV LLC, whom in turn has
contributed to Trace Foam LLC the 1% non-managing partnership interest in Foamex
(the "Interest");
WHEREAS, Trace Foam LLC has transferred the Interest to Foamex pursuant to
the Transfer Agreement by and between Trace Foam LLC, a Delaware limited
liability company, and Foamex, dated February 27, 1998 (the "Contribution"); and
WHEREAS, Foamex, GP, and FII entered into that certain Fourth Amendment
(the "Fourth Amendment") to the Fourth Amended and Restated Agreement of Limited
Partnership of Foamex L.P., dated as of February 27, 1998, to reflect the change
in the partners of Foamex (the "Partnership Agreement");
NOW, THEREFORE, in consideration of the premises and the mutual covenants
set forth herein and for other good and valid consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, agree as follows:
1. Amendment. The parties hereto agree that the Participation Percentages
for purposes of the Original Agreement shall have meaning set forth in the
Partnership Agreement.
2. Governing Law. This Amendment shall be governed by and construed and
enforced in accordance with the laws of the State of New York.
3. Limitation. Except as expressly set forth herein, this Amendment shall
not be deemed to waive, amend or modify any term or condition of the Original
Agreement, each of which shall remain in full force and effect and are hereby
ratified and confirmed.
4. Counterparts. This Amendment may be executed in any number of
counterparts, each of which when executed and delivered will be deemed to be an
original, and all of which taken together will be deemed to be but one and the
same instrument.
-2-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the date
first above written.
FOAMEX L.P.
By: FMXI, INC.
Its: Managing General Partner
By:
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
FOAMEX INTERNATIONAL INC.
By:____________________________
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
FMXI, INC.
By:____________________________
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
-3-