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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
FLEET NATIONAL BANK
as Trustee
SIXTH SUPPLEMENTAL INDENTURE
Dated as of May 28, 1997
$150,000,000
11-1/4% Senior Notes
due 2002
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SIXTH SUPPLEMENTAL INDENTURE
THIS SIXTH SUPPLEMENTAL INDENTURE (the "Sixth Supplemental Indenture"),
dated as of May 28, 1997, 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 Fleet National Bank (formerly known as The
Connecticut National Bank), as trustee (the "Trustee").
WHEREAS, Foamex, FCC and the Trustee executed an indenture, dated as of
October 13, 1992 (the "Original Indenture"), relating to the Issuers' 11-1/4 %
Senior Notes due 2002 (the "Securities"); and
WHEREAS, Foamex, FCC, GFI, and the Trustee amended the Original
Indenture by entering into a First Supplemental Indenture dated as of March 23,
1993 in order to add GFI as a Guarantor in accordance with Section 4.07 and
Section 9.01(2) of the Original Indenture; and
WHEREAS, Foamex, FCC, GFI, Perfect Fit Industries, Inc., a Delaware
corporation ("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 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 and the
Second Supplemental Indenture by entering into a Third 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, the
Second Supplemental Indenture and the Third Supplemental Indenture by entering
into a Fourth Supplemental Indenture, dated as of October 31, 1994 in order to
grant liens on certain real property of Foamex and GFI in favor of the Trustee
in accordance with Section 9.01(4) 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, the
Second Supplemental Indenture, the Third Supplemental Indenture and the Fourth
Supplemental Indenture, by entering into a Fifth Supplemental Indenture (the
Original Indenture, as supplemented by the First Supplemental Indenture, the
Second Supplemental Indenture, the Third Supplemental Indenture, the Fourth
Supplemental Indenture and the Fifth Supplemental Indenture, the "Indenture"),
dated as of August 1, 1996 to unconditionally release and discharge PFI from all
its obligations as a Guarantor under the Indenture, in accordance with Section
11.03 of the Indenture; and
WHEREAS, Article 9.02 of the Indenture provides that Foamex, FCC, any
Guarantor 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, Foamex, FCC, FII, GFI 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 Sixth 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, FII, as Parent Guarantor,
GFI, 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 Sixth 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'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 Sixth 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
Sixth 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 SEC 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
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. Sale of Assets.
(a) Intentionally Omitted.
(b) The Issuers shall apply 100% of the Net
Proceeds from an Asset Sale to the prepayment of
Obligations
outstanding in respect of or under the Credit
Agreement (unless the holders thereof elect not to receive such
prepayment) and an offer to redeem a principal amount of the then
outstanding Securities at 101% of the principal amount of such
Securities. Such offer with respect to the Securities shall be equal to
the Net Proceeds from such Asset Sale multiplied by a fraction, the
numerator of which is the principal amount of the Securities then
outstanding (determined as of the close of business on the day
immediately preceding the closing date of the Asset Sale) and the
denominator of which is the principal amount of the Securities then
outstanding plus the aggregate principal amount of funded and unfunded
commitments under the Credit Agreement (determined as of the close of
business on the day immediately preceding the closing date of the Asset
Sale), provided, that if the amount to be applied to Obligations
outstanding in respect of or under the Credit Agreement pursuant to the
foregoing exceeds such outstanding Obligations, the excess amount of
the Net Proceeds shall be applied to the offer with respect to the
Securities. After the Issuers make a repayment or redemption offer
pursuant to Section 3.09, any remaining funds may be used in any manner
not prohibited by the terms of this Indenture.
(c) An offer to redeem the Securities 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 Officer's
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 Securities.
(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 Securities if and to the extent that the Issuers
have a bona fide intent to reinvest the Net Proceeds from the Asset
Sale in another asset or business in the same or similar line of
business as Foamex and its subsidiaries and a definitive agreement to
reinvest the Net Proceeds thereof is executed within 180 days after the
receipt thereof; provided, however, that, in the event the Net Proceeds
resulting from any Asset Sale, after giving effect to the reinvestment,
if any, pursuant to this Section 4.10(d), are less than $5,000,000, the
application of such Net Proceeds to a redemption offer pursuant to
Section 4.10(b) may be deferred until such time as such 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 in this Section 4.10(d) or applied to a repayment or
redemption offer pursuant to Section 4.10(b), are at least equal to
$5,000,000, at which time Foamex shall apply all such Net Proceeds to
a redemption offer pursuant to Section 4.10(b)."
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 Foamex nor FCC will consolidate or merge with
or into (whether or not Foamex or FCC, 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 Foamex or FCC, 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 in a
form reasonably satisfactory to the Trustee, under the Securities and
this Indenture.
The Issuers 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 of 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 on any
Security 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
Security 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) Foamex, FCC 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; or
(7) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(a) is for relief against Foamex, FCC or
any of their respective subsidiaries in an involuntary case,
(b) appoints a Custodian of Foamex, FCC or
any of their respective subsidiaries or for all or
substantially all of their property,
(c) orders the liquidation of Foamex, FCC
or any of their respective subsidiaries, and the order or
decree remains unstayed and in effect for 60 days.
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 Mortgages 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 Securities theretofore authenticated and
issued have been delivered (other than destroyed, lost or stolen
Securities 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 any Guarantor under this Indenture
and the Mortgages if the Issuers 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
Securities 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 Securities.
Then, this Indenture shall cease to be of further
effect (except as provided in this paragraph), and all Collateral with
respect to the Securities (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 and the Mortgages. 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, the Guarantors' obligations in Section 11.01 and the Trustee's
and Paying Agent's obligations in Section 8.03 shall survive until the
Securities 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 Securities,
other than such deposit, and shall acknowledge in writing the discharge
of the Issuers' and Guarantors' 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 Securities, 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 issuers' option."
Section 2.6. Amendment of Article 13.
Article 13 of the Indenture is hereby amended and restated to read in
its entirety as follows:
"ARTICLE 13.
COLLATERAL AND SECURITY
Section 13.01. Mortgages.
The due and punctual payment of the principal of,
premium, if any, and interest on the Securities 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 Securities and performance of all
other Obligations of the Issuers and any Guarantor to the
Securityholders or the Trustee under this Indenture and the Securities,
according to the terms hereunder or thereunder, shall be secured as
provided in this Indenture and in the Mortgages. The Trustee is
authorized and directed to enter into each of the Mortgages and to
perform its respective obligations and exercise its respective rights
and obligations (including, without limitation, the provisions
providing for foreclosure and release of Collateral) hereunder and
thereunder in accordance herewith and therewith. Foamex and GFI 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 Mortgages, to
assure and confirm to the Trustee the Liens in the Collateral
contemplated hereby and by the Mortgages, as from time to time
constituted, so as to render the same available for the security and
benefit of this Indenture and of the Securities secured thereby,
according to the intent and purposes herein expressed. Foamex and GFI
shall take, upon the request of the Trustee, any and all actions
reasonably required to cause the Mortgages to create and maintain, as
security for the Obligations of Foamex and GFI under this Indenture and
the Securities, valid, enforceable and perfected Liens in and on the
Collateral, in favor of the Trustee, subject, however, to the
provisions of Sections 13.03 and 13.07 hereof.
Section 13.02. Recording and Opinions
(a) The Issuers shall furnish to the Trustee promptly
after the execution and delivery of the Sixth 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, the Mortgages or other instruments necessary
to make effective the Liens intended to be created by the Mortgages,
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 Liens
effective.
(b) The Issuers shall furnish to the Trustee within
three (3) months after each anniversary of the date of the Sixth
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, mortgages or other instruments of further assurance as is
necessary to maintain the Liens of the Mortgages and reciting the
details of such action or (ii) in the opinion of such Counsel, no such
action is necessary to maintain such Liens.
Section 13.03. Release of Collateral
(a) Subject to subsections (b) and (c) of this
Section 13.03, Collateral may be released from the Liens created by the
Mortgages at any time or from time to time at the sole cost and expense
of the Issuers (and without providing any replacement Collateral) (i)
upon payment in full of the Securities in accordance with the terms
thereof and of this Indenture and all other Obligations of Foamex and
GFI then due and owing under this Indenture, the Securities and the
Mortgages; (ii) 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; (iii)
upon the sale or other disposition of such Collateral not constituting
an Asset Sale by virtue of clause (iii) of the definition of Asset
Sales contained in Section 1.01 of this Indenture; (iv) upon the sale
of the stock or assets of GFI provided that the Trustee shall not
release any Lien on any Collateral pursuant to such clause unless and
until it shall have received from Foamex an Officers' Certificate
certifying that all conditions precedent hereunder have been met and
such other documents required by Section 13.04 hereof; (v) upon the
termination of any leasehold interest of Foamex or GFI as lessee if
such leasehold interest is not extended or renewed; (vi) as provided in
Section 8.01; and (vii) as provided in Section 13.07. 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 Mortgages.
(b) At any time when an Event of Default shall have
occurred and be continuing and the maturity of the Notes 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
Securityholders.
(c) The release of any Collateral from the liens of
the Mortgages will not be deemed to impair the security under this
Indenture in contravention of the provisions hereof and of the
Mortgages if and to the extent the Collateral is released pursuant to
this Indenture and the Mortgages.
(d) Notwithstanding anything to the contrary
contained in this Indenture or the Mortgages, in addition to any other
Liens, any of the Issuers or any Guarantor may grant additional Liens
on the Collateral in favor of any third person, as provided in Section
13.07 and upon the granting of any such Lien, the Trustee is authorized
(i) to amend the Mortgages to reflect the grant of such Liens and (ii)
to enter into an intercreditor agreement, as set forth in Section
13.07(c).
Section 13.04. Certificates of the Issuers
The Issuers will furnish to the Trustee prior to each
proposed release of Collateral pursuant to this Indenture and the
Mortgages 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 Section 314(d) may be made
by an Officer of the General Partner, on behalf of Foamex (or Foamex,
if Foamex is a corporation) or FCC, as the case may be, except in cases
where TIA Section 1314(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 13.05. Authorization of Actions to be Taken by the Trustee
Under the Mortgages
The Trustee may, in its sole discretion and without
the consent of the Securityholders, on behalf of the Securityholders,
take all actions it deems necessary or appropriate in order to (a)
enforce any of the terms of the Mortgages and (b) collect and receive
any and all amounts payable in respect of the Obligations of the
Issuers and the Guarantors 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
Mortgages, and such suits and proceedings as the Trustee may deem
expedient to preserve or protect its interests and the interests of the
Securityholders 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 Liens of the Mortgages).
Section 13.06. Authorization of Receipt of Funds by the Trustee Under
the Mortgages
The Trustee is authorized to receive any funds for
the benefit of the Securityholders distributed under the Mortgages, and
to make further distributions of such funds to the Securityholders
according to the provisions of this Indenture and the Mortgages.
Section 13.07. 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 13.07(a), the Trustee shall transfer its rights
under any of the Mortgages to the holder of any Lien permitted pursuant
to the terms of Sections 13.03(d) and/or 13.07(a), and shall amend the
Mortgages 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 13.07(c).
(c) Upon the request of the Issuers or any Guarantor,
and subject to Section 13.07(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
"Mortgage" for purposes of this Indenture, and in the event of a
conflict between any such intercreditor agreement and any other
Mortgage, 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 13.07 hereof."
ARTICLE III.
MISCELLANEOUS
Section 3.1. Counterparts.
This Sixth 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 Sixth 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 Sixth Supplemental
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 SIXTH 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 Sixth Supplemental Indenture.
Except as amended by this Sixth 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 Sixth 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, 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 Sixth
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 Sixth Supplemental
Indenture to be executed by their duly authorized representative as of the date
hereof.
ATTEST: FOAMEX CAPITAL CORPORATION
/s/ Xxxxxx Xxxx By: /s/ Xxxxxx X. Xxxxx, Xx.
Name: Xxxxxx X. Xxxxx, Xx.
Title: Vice President
ATTEST: FOAMEX L.P.
/s/ Xxxxxx Xxxx By: FMXI, 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
ATTEST: GENERAL FELT INDUSTRIES, INC.
/s/ Xxxxxx Xxxx
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx 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 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/ 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 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/ 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, 1997
---------------------
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 The Connecticut
National Bank), 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, 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. Xxxxxx the Vice
President of GENERAL FELT INDUSTRIES, 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 General Felt Industries, 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
