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FOAMEX L.P. and FOAMEX CAPITAL CORPORATION, as Issuers
FOAMEX INTERNATIONAL INC., as Parent Guarantor
GENERAL FELT INDUSTRIES, INC., as Guarantor
AND
STATE STREET BANK AND TRUST COMPANY
as Trustee
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DISCHARGE OF INDENTURE
Dated as of February 27, 1998
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$160,000,000
9-1/2% Senior Secured Notes
due 2000
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DISCHARGE OF INDENTURE
THIS DISCHARGE OF INDENTURE (the "Discharge of Indenture"), dated as
of February 27, 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"),
Foamex International Inc., a Delaware corporation ("FII"), as Parent Guarantor,
General Felt Industries, Inc., a Delaware corporation wholly-owned by Foamex
("GFI"), as Guarantor, and State Street Bank and Trust Company, as successor in
interest to Shawmut Bank, National Association, as Trustee (the "Trustee").
WHEREAS, Foamex, FCC, GFI and the Trustee executed an indenture,
dated as of June 3, 1993 (the "Original Indenture"), relating to the Issuers'
9-1/2% Senior Secured Notes due 2000 (the "Securities"); and
WHEREAS, Foamex, FCC, GFI, Perfect Fit Industries, Inc., a Delaware
corporation ("PFI"), and the Trustee amended the Original Indenture by entering
into a First Supplemental Indenture, dated as of November 18, 1993, in order to
add PFI as a Guarantor in accordance with Section 4.07 and Section 9.01(2) of
the Original Indenture; and
WHEREAS, Foamex, FCC, FII, GFI, PFI and the Trustee further amended
the Original Indenture, as supplemented by the First Supplemental Indenture, by
entering into a Second Supplemental Indenture, dated as of December 14, 1993, in
order to add FII as a Parent Guarantor in accordance with Section 9.01(4) and
Section 11.02 of the Original Indenture; and
WHEREAS, Foamex, FCC, FII, GFI, PFI and the Trustee further amended
the Original Indenture, as supplemented by the First Supplemental Indenture and
the Second Supplemental Indenture by entering into a Third Supplemental
Indenture, dated as of August 1, 1996, to unconditionally release and discharge
PFI from all its obligations as a Guarantor under the Original Indenture, in
accordance with Section 9.01(2) and Section 12.05 of the Original Indenture; and
WHEREAS, Foamex, FCC, FII, GFI and the Trustee further amended the
Original Indenture, as supplemented by the First Supplemental Indenture, the
Second Supplemental Indenture and the Third Supplemental Indenture by entering
into a Fourth Supplemental Indenture, dated as of May 28, 1997, in order to
change and eliminate certain provisions of the Original Indenture in accordance
with Article 9.02 of the Original Indenture (the Original Indenture as so
supplemented is referred to herein as the "Indenture"); and
WHEREAS, pursuant to Section 8.01 of the Indenture, the Issuers
desire to terminate their obligations with respect to the
$4,523,000 principal amount of Securities outstanding (the "Defeased
Securities"), and are depositing funds with the Trustee in payment of the
principal of, premium and interest on such Defeased Securities to the date of
redemption; and
WHEREAS, in accordance with Section 8.01 of the Indenture, the
Issuers have requested that the Trustee unconditionally release and discharge
the Issuers, the Parent Guarantor and the Guarantor from all their obligations
under the Indenture and unconditionally release all Collateral with respect to
the Securities (other than amounts on deposit in the trust pursuant to the
procedures for the termination of the Issuers' Obligations under the Indenture).
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I.
REDEMPTION AND DEPOSIT
Section 1.1. Redemption.
(a) The Defeased Securities are hereby designated by the Issuers
for redemption pursuant to Section 3.07 of the Indenture on June 1, 1998
(the "Redemption Date"), and at the price equal to 101.583% of the
principal amount thereof (the "Redemption Price") together with interest
accrued thereon to the Redemption Date.
(b) The designation for redemption described in subsection (a) of
this Section 1.1 shall be, and is hereby declared to be, irrevocable upon
the execution and delivery of this Agreement. The Trustee agrees to cause
proper notice of such redemption to be given at least 30 days but not more
than 60 days before the Redemption Date, in the name of the Issuers
substantially in the form of Exhibit A hereto in accordance with the
requirements of the Indenture, including without limitation, Section 3.03
thereof.
(c) The Issuers shall deliver the Officers Certificates required
by Sections 3.01, 3.03 and 11.04 of the Indenture and the Opinon of
Counsel required by Section 11.04.
Section 1.2. Irrevocable Deposit.
(a) In accordance with Section 8.01 of the Indenture and for the
purposes of providing payment of (i) the interest accrued on the Defeased
Securities to the Redemption Date and (ii) the Redemption Price of the
Defeased Securities on such Redemption Date (the aggregate of such
payments required for purposes of clauses (i) and
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(ii) above being hereinafter referred to as the "Redemption
Requirements"), the Issuers hereby irrevocably deposit with the Trustee,
in trust for the holders of the Defeased Securities, and irrevocably
appropriate and set aside exclusively for such payment, subject to the
terms and conditions set forth herein, $4,809,441.59 (the "Deposit"). The
Deposit constitutes funds sufficient to pay the Redemption Requirements on
the Redemption Date. The Trustee hereby acknowledges receipt of the
Deposit.
(b) The deposit of the moneys with the Trustee pursuant to
subsection (a) of this Section 1.2 shall constitute an irrevocable deposit
in trust solely for the payment of the Defeased Securities (including the
Redemption Requirements thereof), and solely for the benefit of the
holders thereof pursuant to the terms of the Indenture and this Agreement.
(c) The Trustee shall invest the Deposit in either (i) an interest
bearing bank account constituting Cash Equivalents or (ii) U.S. Government
Obligations, in each case with a maturity no later than one Business Day
prior to the Redemption Date.
(d) The Issuers hereby agree that they shall not have any
beneficial interest in or rights to the Deposit or proceeds thereof or
interest or income earned thereon, on deposit with the Trustee pursuant to
subsection (a) of this Section 1.2 or payments made therefrom so long as
any of the Defeased Securities or any amounts owing to the Trustee
hereunder remain unpaid. After all such amounts have been paid, the
Trustee shall promptly return the balance of the Deposit to the Issuers.
ARTICLE II.
RELEASE AND DISCHARGE
Section 2.1. Release of Foamex and FCC as Issuers. The Issuers are
hereby unconditionally released and discharged from all of their obligations
under the Indenture and the Collateral Documents, except as expressly set forth
in Section 8.01 of the Indenture.
Section 2.2. Release of FII and GFI as Parent Guarantor and Guarantor,
respectively. FII and GFI are hereby unconditionally released and discharged
from all of their obligations as Parent Guarantor and Guarantor, respectively,
under the Indenture and the Collateral Documents, except as expressly set forth
in Section 8.01 of the Indenture.
Section 2.3. Release of Collateral. The Trustee hereby releases all of
its liens, claims, right, title and interest in and to the Collateral.
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Section 2.4. Further Assurances. Upon the request of the Issuers, FII
or GFI, as the case may be, at any time after the date hereof, the Trustee shall
forthwith execute and deliver such further instruments of release, direction or
authorization and other documents as may be reasonably requested in order to
effectuate the purposes of this Agreement.
ARTICLE III.
MISCELLANEOUS
Section 3.1. Counterparts. This Discharge of 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
Discharge of 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 effect the construction hereof.
Section 3.4. Successors and Assigns. Any covenants and agreements in
this Discharge of Indenture by Foamex, FCC, FII, GFI and the Trustee shall bind
their successors and assigns, whether so expressed or not.
Section 3.5. GOVERNING LAW. THIS DISCHARGE OF 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. Trustee. The Trustee assumes no responsibility for the
correctness of the recitals herein contained, which shall be taken as the
statements of Foamex, FCC, FII and GFI, 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 Discharge of Indenture, and the Trustee makes
no representation with respect thereto.
Section 3.7. 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 Discharge of
Indenture to be executed by their duly authorized representative as of the date
hereof.
ATTEST: FOAMEX CAPITAL CORPORATION
By: /s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
ATTEST: FOAMEX L.P.
------------------------------ By: FMXI, INC.
Its: Managing General Partner
By: /s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
ATTEST: FOAMEX INTERNATIONAL INC.
By: /s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title: Senior Vice President
ATTEST: STATE STREET BANK AND TRUST COMPANY
as Trustee
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title:
ATTEST: GENERAL FELT INDUSTRIES, INC.
By: /s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
