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FOAMEX-JPS AUTOMOTIVE L.P. AND FOAMEX-JPS CAPITAL CORPORATION, as Issuers
FOAMEX INTERNATIONAL INC., as Guarantor
AND
FLEET NATIONAL BANK
as Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of May 28, 1997
$116,745,000
Senior Secured Discount Debentures
due 2004
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FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE (the "First Supplemental Indenture"),
dated as of May 28, 1997, by and among Foamex-JPS Automotive L.P., a Delaware
limited partnership (the "Company"), Foamex-JPS Capital Corporation, a Delaware
corporation wholly-owned by the Company ("FJCC"; the Company and FJCC
collectively referred to as the "Issuers"), Foamex International Inc., a
Delaware corporation ("Holdings"), as Guarantor, and Fleet National Bank
(formerly known as Shawmut Bank Connecticut, N.A.), as Trustee (the "Trustee").
WHEREAS, the Company, FJCC, Holdings and the Trustee executed an
indenture, dated as of June 28, 1994 (the "Indenture"), relating to $116,745,000
of the Issuers' Senior Secured Discount Debentures due 2004 (the "Securities");
and
WHEREAS, Article 9.02 of the Indenture provides that the Company, FJCC,
Holdings 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 Securities to, among
other things, change or eliminate certain provisions of the Indenture; and
WHEREAS, the Company, FJCC, Holdings 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
Securities; and
WHEREAS, all conditions precedent provided for in the Indenture
relating to this First 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, the Company and FJCC, jointly and severally, Holdings, as
Guarantor, and the Trustee for the benefit of each other and for the equal and
ratable benefit of the Holders of the Securities agree as follows:
ARTICLE I.
EFFECTIVENESS AND EFFECT
Section 1.1 Effectiveness and Effect.
This First 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
tenders of Notes (as such term is defined in the Offer as defined below) are
accepted pursuant to Foamex L.P.'s Offer to Purchase and Consent Solicitation,
dated May 12, 1997 (as the same may have been amended, extended or otherwise
modified) (the "Offer"), 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 First
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 First
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. 4.03 Reports
ss. 4.04 Compliance Certificate
ss. 4.05 Taxes
ss. 4.06 Stay, Extension and Usury Laws
ss. 4.07 Limitation on Restricted Payments
ss. 4.08 Limitation on Dividend and Other Payment
Restrictions Affecting Subsidiaries
ss. 4.09 Limitation on Additional Debt
ss. 4.11 Limitation on Transactions With Affiliates
ss. 4.12 Limitation on Liens
ss. 4.13 Partnership and Corporate Existence
ss. 4.14 Liquidation
ss. 4.16 Amendments to Agreements
ss. 4.17 Maintenance of Properties
ss. 4.18 Maintenance of Insurance
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.
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.
(a) To the extent that the assets which are the
subject of any Asset Sale constitute Collateral, the Issuers or the
applicable subsidiary shall enter into appropriate security documents
and the Net Proceeds of such Asset Sale shall, to the extent permitted
by law, be subject to a perfected Lien in favor of the Trustee, which
Lien shall have the same priority as the Lien on the Collateral which
was the subject of such Asset Sale.
(b) To the extent that assets subject to an Asset
Sale consist of Collateral or other assets of the Company, the Issuers
shall apply 100% of the Net Proceeds thereof to either (i) an offer to
redeem outstanding Debentures at 101% of the Accreted Value thereof on
or prior to July 1, 1999 or at 101% of the principal amount thereof
plus accrued interest after July 1, 1999 or (ii) the payment of
principal, premium, if any, and accrued interest with respect to an
optional redemption of Debentures as and to the extent then permitted
under Section 3.07 hereof. To the extent that assets subject to an
Asset Sale consist of assets of a subsidiary, 100% of the Net Proceeds
thereof may be applied to the permanent repayment of Indebtedness of
subsidiaries of the Issuers. If Net Proceeds remain after giving effect
to such application, and such Net Proceeds may be distributed to the
Issuers without causing a default under any instrument or agreement in
existence as of the Closing Date or under any other instrument
governing Indebtedness of any subsidiary of the Issuers, such Net
Proceeds or any remaining portion thereof will be required to be
applied by the Issuers to (i) an offer to redeem outstanding Debentures
at 101% of the Accreted Value thereof on or prior to July 1, 1999 or at
101% of the principal amount thereof plus accrued interest after July
1, 1999 or (ii) the payment of principal, premium, if any, and accrued
interest with respect to an optional redemption of Debentures as and to
the extent then permitted under Section 3.07 hereof.
(c) An offer to redeem the Debentures pursuant to this Section
4.10 shall be made pursuant to the provisions of Section 3.09 hereof.
Simultaneously with the notification of such offer of redemption to the
Trustee as required by Sections 3.01, 3.03 and 3.09 hereof, the Issuers
shall provide the Trustee with an Officers' Certificate setting forth
the information required to be included therein by Section 3.01 hereof
and, in addition, setting forth the calculations used in determining
the amount of Net Proceeds to be applied to the redemption of
Debentures.
(d) Notwithstanding any provision of this Section 4.10 to the
contrary, the Issuers shall have no obligation to make an offer to
redeem the Debentures if and to the extent that (i) the Issuers or any
of their subsidiaries has a bona fide intent to reinvest the Net
Proceeds from the Asset Sale in another asset or business in the same
or similar lines of business as the Company and its subsidiaries (the
"Replacement Assets") and a definitive agreement to reinvest such Net
Proceeds is executed within 180 days after the receipt thereof, (ii)
with respect to any Net Proceeds consisting of the proceeds of
insurance paid on account of the loss of or damage to any property, or
compensation or other proceeds for any property taken by condemnation,
eminent domain or similar proceedings, such Net Proceeds are applied as
provided in subsection (i) above or applied to reimburse the applicable
Issuer or any of its subsidiaries for expenditures made, and costs
incurred, to repair, rebuild, replace or restore the property subject
to such loss, damage or taking and (iii) if the assets which were the
subject of such Asset Sale constitute Collateral, the Issuers or the
applicable subsidiary shall have entered into appropriate security
documents, and such Replacement Assets shall be subject to a perfected
Lien in favor of the Trustee, which Lien has the same priority as the
Collateral which was the subject of such Asset Sale; provided, however,
that, in the event that the Net Proceeds resulting from any Asset Sale,
after giving effect to the reinvestment, if any, pursuant to this
Section 4.10(d) or the application of such Net Proceeds to an offer to
repay or redeem Indebtedness as required by this Section 4.10, are less
than $5,000,000, the application of such remaining Net Proceeds to a
redemption or offer to redeem pursuant to the foregoing provisions may
be deferred until such time as such remaining Net Proceeds, plus the
aggregate amount of Net Proceeds resulting from any prior or subsequent
Asset Sale or Asset Sales not otherwise reinvested as provided herein
or applied to make an offer to repay or redeem Indebtedness as
required, are at least equal to $5,000,000, at which time all such Net
Proceeds shall be applied to a redemption or offer to purchase pursuant
to Section 4.10(b) hereof; provided, further, that to the extent that
the Net Proceeds of any Asset Sale of assets constituting Collateral
are not required to be applied to
the Debentures, then such Net Proceeds may be applied to the prepayment
of any other Indebtedness of the Issuers or their subsidiaries to the
extent required, and if there are Net Proceeds remaining in the
Collateral Account after all such offers or redemptions required or
permitted by this Indenture, then such remaining Net Proceeds shall be
held in the Collateral Account as Collateral and shall be permitted to
be reinvested by the Issuers or their subsidiaries at any time pursuant
to this Section 4.10(d)."
Section 2.3 Amendment of Section 5.01.
Section 5.01 of the Indenture is hereby amended and restated to read in
its entirety as follows:
"Section 5.01. When Foamex or FCC May Merge, etc.
Neither the Company nor FJCC will consolidate or merge with or
into (whether or not the Company or FJCC, as the case may be, is the
surviving person), or sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its properties or
assets in one or more related transactions to, another corporation,
person or entity unless the person formed by or surviving any such
consolidation or merger (if other than the Company or FJCC, as the case
may be) or the person to which such sale, assignment, transfer, lease,
conveyance or other disposition will have been made assumes all the
Obligations of the Issuers pursuant to a supplemental indenture and
appropriate Collateral Documents in a form reasonably satisfactory to
the Trustee, under the Debentures, this Indenture and the Collateral
Documents.
The Company shall deliver to the Trustee prior to the
consummation of the proposed transaction an Officers' Certificate to
the foregoing effect and an Opinion of Counsel, stating that the
proposed transaction and such supplemental indenture comply with this
Indenture. The Trustee shall be entitled to conclusively rely upon such
Officers' Certificate and Opinion of Counsel."
Section 2.4 Amendment to Section 6.01.
Section 6.01 of the Indenture is hereby amended and restated to read in
its entirety as follows:
"Section 6.01. Events of Default.
An "Event of Default" occurs if:
(1) the Issuers default in the payment of interest or
Liquidated Damages on any Debenture when the same becomes
due and payable and the Default continues for a period of 30 days;
(2) the Issuers default in the payment of the
principal of any Debenture when the same becomes due and payable
at maturity, upon redemption, in connection with a Change of Control
or otherwise;
(3) Intentionally omitted;
(4) Intentionally omitted;
(5) Intentionally omitted;
(6) the Company, FJCC or any of their respective
subsidiaries pursuant to or within the meaning of any Bankruptcy Law:
(a) commences a voluntary case,
(b) consents to the entry of an order for
relief against it in an involuntary case,
(c) consents to the appointment of a
Custodian of it or for all or substantially all of
its property,
(d) makes a general assignment for the
benefit of its creditors,
(e) admits in writing its inability to pay
debts as the same become due;
(7) a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that:
(a) is for relief against the Company, FJCC
or any of their respective subsidiaries in an
involuntary case,
(b) appoints a Custodian of the Company,
FJCC or any of their respective subsidiaries or for
all or substantially all of their property,
(c) orders the liquidation of the Company,
FJCC or any of their respective subsidiaries, and the
order or decree remains unstayed and in effect for 60
days; or
(8) Intentionally omitted.
The term "Bankruptcy Law" means title 11, U.S. Code or any
similar Federal or state law for the relief of debtors.
The term "Custodian" means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law."
Section 2.5 Amendment of Section 8.01.
Section 8.01 of the Indenture is hereby amended and restated to read in
its entirety as follows:
"Section 8.01. Termination of Issuers' Obligations.
This Indenture and the Collateral Documents shall cease to be
of further effect (except that the Issuers' obligations under Section
7.07 and 8.04 and the Issuers', Trustee's and Paying Agent's
obligations under Section 8.03 shall survive) when all outstanding
Debentures theretofore authenticated and issued have been delivered
(other than destroyed, lost or stolen Debentures which have been
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 and the obligations of
Holdings under this Indenture if 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 a trust agreement in form and substance satisfactory to the Trustee,
money or U.S. Government Obligations sufficient to pay principal and
interest on the Debentures 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 trust shall have been irrevocably instructed to
pay such money or the proceeds of such U.S. Government Obligations to
the Trustee and (ii) the Trustee shall have been irrevocably instructed
to apply such money or the proceeds of such U.S. Government Obligations
to the payment of said principal and interest with respect to the
Debentures. Then, this Indenture shall cease to be of further effect
(except as provided in this paragraph) and all Collateral with respect
to the Debentures (other than amounts on deposit in the trust pursuant
to the immediately preceding paragraph) shall be released. In addition,
the Trustee, on demand of the Issuers, shall execute proper instruments
acknowledging confirmation of and discharge under this Indenture.
However, the Issuers' obligations in Sections 2.03, 2.04, 2.05, 2.06,
2.07, 4.01, 4.06, 7.07, 7.08, 8.03 and 8.04, Holdings' obligations in
Sections 4.06 and 12.01, and the Trustee's and Paying Agent's
obligations in Section 8.03, shall survive until the Debentures are no
longer outstanding. Thereafter, only the Issuers' obligations in
Section 7.07 and 8.04 and the Issuers', Trustee's and Paying Agent's
obligations in Section 8.03 shall survive.
After such deposit made pursuant to this Section 8.01, the
Trustee shall release all Collateral for the Debentures, other than
such deposit, and shall acknowledge in writing the discharge of the
Issuers' and Holdings' obligations under this Indenture except for
those surviving obligations specified above, and the release of such
Collateral.
In order to have money available on a payment date to
pay principal or interest on the Debentures, the U.S. 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. U.S.
Government Obligations shall not be callable at the issuer's option."
Section 2.6 Amendment to Article 10.
Article 10 of the Indenture is hereby amended and restated to read in
its entirety as follows:
"ARTICLE 10
COLLATERAL AND SECURITY
Section 10.01. Pledge Agreement
The due and punctual payment of the principal of, premium and
Liquidated Damages, if any, and interest on the Debentures when and as
the same shall be due and payable, whether on an interest payment date,
at maturity, by acceleration, repurchase, redemption or otherwise, and
interest on the overdue principal of and interest (to the extent
permitted by law), if any, on the Debentures and performance of all
other Obligations of the Issuers and Holdings to the Holders of
Debentures or the Trustee under this Indenture and the Debentures,
according to the terms hereunder or thereunder, shall be secured as
provided in the Collateral Documents. Each Holder of Debentures, by its
acceptance of a Debenture, consents and agrees to the terms of the
Collateral Documents (including, in each case, without limitation, the
provisions providing for foreclosure and release of Collateral) as the
same may be in effect or may be amended from time to time in accordance
with the terms thereof and hereof and authorizes and directs the
Trustee to enter into the Collateral Documents and to perform its
obligations and exercise its rights thereunder in accordance therewith.
The Issuers and Holdings will do or cause to be done all such acts and
things as may be necessary or proper, or as may be required by the
provisions of the Collateral Documents, to assure and confirm to the
Trustee the security interest in the Collateral contemplated hereby, by
the Collateral Documents, as from time to time
constituted, so as to render the same available for the
security and benefit of this Indenture and of the Debentures secured
hereby, according to the intent and purposes herein expressed. The
Issuers and Holdings shall take, upon request of the Trustee, any and
all actions reasonably required to cause the Collateral Documents to
create and maintain, as security for the Obligations of the Issuers and
Holdings under this Indenture and the Debentures, valid and
enforceable, perfected (except as expressly provided therein) Liens in
and on all the Collateral, in favor of the Trustee, and subject to no
other Liens, other than as provided herein and therein.
Section 10.02. Recordings and Opinions
(a) The Issuers shall furnish to the Trustee promptly after
the execution and delivery of this First Supplemental Indenture an
Opinion of Counsel either (i) stating that in the opinion of such
counsel all action has been taken with respect to the recording,
registering and filing of this Indenture, financing statements or other
instruments necessary to make effective the Lien intended to be created
by the Collateral Documents, and reciting the details of such action,
or (ii) stating that, in the opinion of such counsel, no such action is
necessary to make such Lien effective and also stating what action is
to be taken within the next 12 months to maintain the Lien of the
Collateral Documents.
(b) The Issuers shall furnish to the Trustee within 3 months
after each anniversary of the date of this First Supplemental
Indenture, an Opinion of Counsel, dated as of such date, stating either
that (i) in the opinion of such counsel, all action has been taken with
respect to the recording, registering, filing, re-recording,
re-registering and refiling of all supplemental indentures, financing
statements, continuation statements or other instruments of further
assurance as is necessary to maintain the Lien of the Collateral
Documents and reciting the details of such action or (ii) in the
opinion of such Counsel, no such action is necessary to maintain such
Lien and also stating what action is to be taken within the next 12
months to maintain the Lien of the Collateral Documents.
Section 10.03. Release of Collateral
(a) Subject to subsections (b), (c) and (d) of this Section
10.03, Collateral may be released from the Lien and security interest
created by the Collateral Documents at any time or from time to time at
the sole cost and expense of the Issuers (i) upon payment in full of
the Debentures in accordance with the terms thereof and of this
Indenture and all other Obligations of the Issuers and Holdings then
due and owing under this Indenture, the Debentures and the
Collateral Documents; (ii) with respect to inventory (if such
inventory constitutes Collateral), upon the sale of such inventory in
the ordinary course of business; (iii) upon the sale or other
disposition of such Collateral constituting an Asset Sale if such sale
or other disposition is not prohibited under this Indenture and if the
Net Proceeds of such sale or other disposition are applied in
accordance with this Indenture; (iv) upon the sale or other disposition
of such Collateral not constituting an Asset Sale by virtue of clause
(v) of the definition of Asset Sales contained in Section 1.01 of this
Indenture; (v) to the extent a Lien is granted on such Collateral
pursuant to clause (vi) of the definition of Permitted Liens contained
in Section 1.01 of this Indenture; (vi) with respect to amounts in the
Collateral Account consisting of Net Proceeds of Asset Sales, upon the
expenditure of such cash if such expenditure is made in accordance with
this Indenture; (vii) with respect to amounts in the Collateral Account
consisting of the proceeds of sales of Collateral to subsidiaries of
the Company, upon the written request of either Issuer to the Trustee
to release all or any part of such proceeds so long as such proceeds
are immediately used to purchase Collateral; (viii) as provided in
Section 8.01; and (ix) as provided in Section 10.07; provided that,
with respect to clauses (i), (iii), (iv), (v), (vi), (vii), (viii) and
(ix) above, the Trustee shall not release any Lien on any Collateral
pursuant to such clauses unless and until it shall have received from
the Company an Officers' Certificate certifying that all conditions
precedent hereunder have been met and such other documents required by
Section 10.04 hereof. Upon compliance with the above provisions, the
Trustee shall execute, deliver or acknowledge any necessary or proper
instruments of termination, satisfaction or release to evidence the
release of any Collateral permitted to be released pursuant to this
Indenture or the Collateral Documents.
(b) Notwithstanding any provision of Section 10.04 to the
contrary, the disposition of inventory (if such inventory constitutes
Collateral) in the ordinary course of business may be made without
delivery to the Collateral Trustee of certificates required by Section
314(d) of the TIA. However, if at any time the Collateral includes
inventory, then in lieu of such certificates, the Issuers shall deliver
semi-annual Officers' Certificates to the Trustee to the effect that
all such dispositions have been made in the ordinary course of business
and that the proceeds therefrom have been applied in a manner permitted
by this Indenture. The Trustee shall, in the absence of negligence or
bad faith on its part, be entitled to rely on Officers' Certificates
and Opinions of Counsel with respect to the Issuers' compliance with
the provisions of Section 10.03 hereof.
(c) At any time when a Default or Event of Default shall have
occurred and be continuing and the maturity of the Debentures shall
have been accelerated (whether by declaration or otherwise) and the
Trustee shall have delivered a notice of acceleration to the Issuers,
no release of Collateral pursuant hereto shall be effective as against
the Holders of Debentures.
(d) The release of any Collateral from the terms of the
Collateral Documents in contravention of the provisions hereof and
thereof will not be deemed to impair the security under this Indenture.
(e) Notwithstanding anything to the contrary contained in this
Indenture or the Collateral Documents, in addition to any other Liens,
any of the Issuers may grant additional Liens on the Collateral in
favor of any third person, as provided in Section 10.07 and upon the
granting of any such Lien, the Trustee is authorized (i) to amend the
Collateral Documents to reflect the grant of such Liens and (ii) to
enter into an intercreditor agreement, as set forth in Section
10.07(c).
Section 10.04. Certificates of the Company
The Issuers will furnish to the Trustee prior to each proposed
release of Collateral pursuant to the Collateral Documents other than
by reason of transactions referred to in the Section 10.03(b) above,
all documents required by Section 314(d) of the TIA. The Trustee may,
to the extent permitted by Sections 7.01 and 7.02 hereof, accept as
conclusive evidence of compliance with the foregoing provisions the
appropriate statements contained in such instruments. Any certificate
or opinion required by TIA ss. 314(d) may be made by an Officer of the
General Partner, on behalf of the Company (or the Company, if the
Company is a corporation) or FJCC, as the case may be, except in cases
where TIA ss. 314(d) requires that such certificate or opinion be made
by an independent engineer, appraiser or other expert within the
meaning of Section 314(d) of the TIA.
Section 10.05. Authorization of Actions to be Taken by the Trustee
Under the Collateral Documents
The Trustee may, in its sole discretion and without the
consent of the Holders of Debentures, on behalf of the Holders of
Debentures, take all actions it deems necessary or appropriate in order
to (a) enforce any of the terms of the Collateral Documents and (b)
collect and receive any and all amounts payable in respect of the
Obligations of the Issuers and Holdings hereunder. The Trustee shall
have the power to institute and to maintain such suits and proceedings
as it may deem expedient to prevent any impairment of the Collateral by
any acts that may be
unlawful or in violation of the Collateral Documents or this
Indenture, and such suits and proceedings as the Trustee may deem
expedient to preserve or protect its interests and the interests of the
Holders of Debentures in the Collateral (including power to institute
and maintain suits or proceedings to restrain the enforcement of or
compliance with any legislative or other governmental enactment, rule
or order that may be unconstitutional or otherwise invalid if the
enforcement of, or compliance with, such enactment, rule or order would
impair the security interest hereunder or be prejudicial to the
interests of the Holders of Debentures or of the Trustee).
Section 10.06. Authorization of Receipt of Funds by the Trustee
Under the Collateral Documents
The Trustee is authorized to receive any funds for the benefit
of the Holders of Debentures distributed under the Collateral
Documents, and to make further distributions of such funds to the
Holders of Debentures according to the provisions of this Indenture and
the Collateral Documents.
Section 10.07. Authorization of Additional Liens and Actions to be
Taken in Connection Therewith
(a) The Issuers or any Guarantor or any subsidiary thereof may
grant additional Liens on the Collateral to secure indebtedness
permitted pursuant to the terms of this Indenture so long as the
Securityholders retain the right to receive payment upon a disposition
of the Collateral prior to the holders of any such other Liens.
(b) Upon the request of the Issuers or any Guarantor, and
subject to Section 10.07(a), the Trustee shall transfer possession of
the Collateral or its rights under any Collateral Document to the
holder of any Lien permitted pursuant to the terms of Sections 10.03(e)
and/or 10.07(a), and shall amend the Collateral Documents and the
Intercreditor Agreement to reflect the granting of such a Lien, the
transfer of such Collateral and/or rights and the terms of any
intercreditor agreement entered into pursuant to Section 10.07(c).
(c) Upon the request of the Issuers or any Guarantor, and
subject to Section 10.07(a), the Trustee shall enter into an
intercreditor agreement providing for, among other things, (i) the
appointment of an agent as the collateral agent for any Collateral
which is subject to a Lien in favor of the Trustee and in favor of any
third party and (ii) the right of such collateral agent (A) to take
such action which the collateral agent, at the direction of the holders
of a majority of the outstanding principal amount of Indebtedness
secured by such Collateral, deems necessary or desirable to preserve or
protect the Collateral or to
enhance the likelihood or maximize the amount of repayment of
the Indebtedness secured thereby, including delaying any proceedings
with respect to the realization on such Collateral, and (B) to manage,
supervise and otherwise deal with the Collateral. Any such
intercreditor agreement shall deemed to be a "Collateral Document" for
purposes of this Indenture, and in the event of a conflict between any
such intercreditor agreement and any other Collateral Document, the
terms of such intercreditor agreement shall govern.
(d) The Trustee shall, in the absence of negligence or bad
faith on its part, be entitled to rely on Officers' Certificates and
Opinions of Counsel with respect to the Issuers' and the Guarantors'
compliance with the provisions of Section 10.07 hereof."
Section 2.7 Amendment of Section 12.02.
Section 12.02 of the Indenture is hereby amended and restated to read
in its entirety as follows:
"Section 12.02. When Holdings May Merge, etc.
Holdings will not consolidate with or merge with or into
(whether or not Holdings is the surviving person), or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially
all of its properties or assets in one or more related transactions to
another corporation, person or entity unless the entity or person
formed by or surviving such consolidation or merger (if other than
Holdings) or the person to which such sale, assignment, transfer,
lease, conveyance or other disposition will have been made assumes all
the obligations of Holdings pursuant to a supplemental indenture in
form reasonably satisfactory to the Trustee, under the Debentures and
this Indenture.
Holdings shall deliver to the Trustee prior to the
consummation of the proposed transaction an Officers' Certificate to
the foregoing effect and an Opinion of Counsel, stating that the
proposed transaction and such supplemental indenture comply with this
Indenture. The Trustee shall be entitled to conclusively rely upon such
Officers' Certificate and Opinion of Counsel."
ARTICLE III.
MISCELLANEOUS
Section 3.1 Counterparts.
This First 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 First 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 effect the construction hereof.
Section 3.4 Successors and Assigns.
Any covenants and agreements in this First Supplemental Indenture by
the Company, FJCC, Holdings and the Trustee shall bind their successors and
assigns, whether so expressed or not.
Section 3.5 GOVERNING LAW.
THIS FIRST 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 First Supplemental Indenture.
Except as amended by this First 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
First 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 the Company, FJCC, and Holdings, 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 First
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.]
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be executed by their duly authorized representative as
of the date hereof.
ATTEST: FOAMEX-JPS CAPITAL CORPORATION
/s/ Xxxxxx Xxxx By: /s/ Xxxxxx X. Xxxxx, Xx.
Name: Xxxxxx X. Xxxxx, Xx.
Title: Vice President
ATTEST: FOAMEX-JPS AUTOMOTIVE L.P.
/s/ Xxxxxx Xxxx By: FJGP INC.
its Managing General Partner
By: /s/ Xxxxxx X. Xxxxx, Xx.
Name: Xxxxxx X. Xxxxx, Xx.
Title: Vice President
ATTEST: FOAMEX INTERNATIONAL INC.
/s/ Xxxxxx Xxxx By: /s/ Xxxxxx X. Xxxxx, Xx.
Name: Xxxxxx X. Xxxxx, Xx.
Title: Vice President
ATTEST: FLEET NATIONAL BANK
as Trustee
/s/ Xxxxx X. Xxxxxx
By: /s/ Xxxxxxxxx X. Xxxxxx
Name: Xxxxxxxxx X. Xxxxxx
Title: Vice President
STATE OF NEW YORK
COUNTY OF NEW YORK
BEFORE ME, the undersigned, a Notary Public in and for said
State and County, on this day personally appeared Xxxxxx X. Xxxxx, Xx., the
Vice President of FOAMEX-JPS 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-JPS 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/ Xxxxxxx XxXxxxx
Notary Public, State of New York
Printed Name: Xxxxxxx XxXxxxx
My Commission Expires:
October 9, 0000
XXXXX XX XXX XXXX
XXXXXX XX XXX XXXX
BEFORE ME, the undersigned, a Notary Public in and for said
State and County, on this day personally appeared Xxxxxx X. Xxxxx, Xx., the Vice
President of FJGP INC., the Managing General Partner of Foamex-JPS Automotive
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 FJGP 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/ Xxxxxxx XxXxxxx
-------------------------------
Notary Public, State of New York
Printed Name: Xxxxxxx XxXxxxx
My Commission Expires:
October 9, 1998
---------------------
STATE OF NEW YORK
COUNTY OF NEW YORK
BEFORE ME, the undersigned, a Notary Public in and for said
State and County, on this day personally appeared Xxxxxx X. Xxxxx, Xx., the Vice
President of FOAMEX INTERNATIONAL INC., 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 International 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/ Xxxxxxx XxXxxxx
-------------------------------
Notary Public, State of New York
Printed Name: Xxxxxxx XxXxxxx
My Commission Expires:
October 9, 1998
---------------------
STATE OF NEW YORK
COUNTY OF NEW YORK
BEFORE ME, the undersigned, a Notary Public in and for said
State and County, on this day personally appeared Xxxxxxxxx X. Xxxxxx,
Vice President of FLEET NATIONAL BANK (formerly known as Shawmut Bank, N.A.),
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 bank and that he executed the same as the act of such bank for the
purposes and consideration therein expressed and in the capacity therein
stated.
/s/ Xxxxx X. Felt
Notary Public, State of Connecticut
Printed Name: Xxxxx X. Felt
My Commission Expires:
February 28, 1999
