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FOAMEX L.P. AND FOAMEX CAPITAL CORPORATION, as Issuers
GENERAL FELT INDUSTRIES, INC., as Guarantor
AND
U.S. TRUST COMPANY OF TEXAS, N.A.
as Trustee
THIRD SUPPLEMENTAL INDENTURE
Dated as of May 28, 1997
$7,000,000
11-7/8% Senior Subordinated Debentures
due 2004
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THIRD SUPPLEMENTAL INDENTURE
THIS THIRD SUPPLEMENTAL INDENTURE (the "Third 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"), General Felt Industries, Inc., a Delaware corporation wholly-owned
by Foamex ("GFI"), as Guarantor, and U.S. Trust Company of Texas, N.A., a
national banking association, as trustee (the "Trustee").
WHEREAS, Foamex, FCC, GFI and the Trustee executed an indenture, dated
as of March 23, 1993 (the "Original Indenture"), relating to the Issuers'
11-7/8% Senior Subordinated Debentures due 2004 (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, GFI, PFI and the Trustee further amended the
Original Indenture, as supplemented by the First Supplemental Indenture, by
entering into a Second Supplemental Indenture (the Original Indenture, as
supplemented by the First Supplemental Indenture and the Second 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 9.01(2) and Section 12.17 of the
Indenture; and
WHEREAS, Section 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 Securities, to, among other things,
change or eliminate certain provisions of the Indenture; and
WHEREAS, Foamex, FCC, 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 Third 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, 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 Third 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 Third 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 Third
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. 4.17 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 Senior Indebtedness. If (u) no Senior Indebtedness is
outstanding, or (v) the holders of Senior Indebtedness entitled to
receive payment elect not to receive the payments provided for in the
previous sentence or (w) the application of such Net Proceeds results
in the complete prepayment of all Senior Indebtedness, then such Net
Proceeds or any remaining portion thereof shall be applied by the
Issuers to an offer to redeem the Senior Subordinated Debentures then
outstanding pursuant to the provisions set forth in the Senior
Subordinated Debenture Indenture. If (x) no Senior Subordinated
Debentures are outstanding, or (y) the holders of the Senior
Subordinated Debentures entitled to receive payment elect not to
receive the payments provided for in the previous sentence or (z) the
application of such Net Proceeds results in the complete prepayment of
the Senior Subordinated Debentures, then such Net Proceeds or any
remaining portion thereof shall be applied by the Issuers to an offer
to redeem the Securities then outstanding at 101% of the principal
amount of such Securities pursuant to the provisions of Section 3.09
hereof. After the Issuers make a 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) In the event that the Issuers shall make any
payment of Net Proceeds to the Trustee which should properly have been
made to the holders of Senior Indebtedness and/or the Senior
Subordinated Debentures for the prepayment of outstanding Indebtedness
pursuant to the provisions of this Section 4.10, such payment shall be
held by the Trustee for the benefit of such holders of Senior
Indebtedness and/or the Senior Subordinated Debentures, as applicable,
and shall be paid forthwith over and delivered for application in
accordance with the provisions of this Section 4.10. With respect to
such holders of Senior Indebtedness and/or Senior Subordinated
Debentures, the Trustee undertakes to perform only such obligations on
the part of the Trustee as are specifically set forth in this Section
4.10(d), and no implied covenants or obligations with respect to such
holders of Senior Indebtedness and/or Senior Subordinated Debentures
shall be read into this Indenture against the Trustee. The Trustee
shall not be deemed to owe any fiduciary duty to such holders of Senior
Indebtedness and/or Senior Subordinated Debentures and shall not be
liable to them or to the Securityholders if the Trustee shall
distribute any such payment or any portion thereof to the
Securityholders, except if such distribution is made as a result of the
willful misconduct or gross negligence of the Trustee. The Trustee
shall not be charged with knowledge of the existence of any facts which
would prohibit the making of any distribution by the Trustee to the
Securityholders pursuant to Section 3.09 and this Section 4.10 unless
it shall have received at the Corporate Trust Office at least three
Business Days prior to such distribution written notice of such facts
that would cause such distribution to violate this Section 4.10. Only
Foamex, FCC, a Representative or a holder of Senior Indebtedness who
has no Representative or the Senior Subordinated Debenture Trustee may
give such notice. If Net Proceeds are received by Securityholders
which, pursuant to the provisions of this Section 4.10, should properly
have been received by (y) the holders of Senior Indebtedness for the
prepayment of outstanding Senior Indebtedness, and/or (z) the holders
of Senior Subordinated Debentures, for the prepayment of the Senior
Subordinated Debentures, the Securityholders who receive such Net
Proceeds shall hold such Net Proceeds in trust for, and pay such Net
Proceeds over to, such holders.
(e) 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(e), and after giving effect to
repayments of Senior Indebtedness and the Senior Subordinated
Debentures pursuant to Section 4.10(b), 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(e) or applied to a repayment of Senior
Indebtedness and the Senior Subordinated Debentures 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, whether or not such payment is
prohibited by the provisions of Article 10 hereof;
(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,
whether or not such payment is prohibited by the provisions of Article
10 hereof;
(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 shall cease to be of further effect
(except that the Issuers' obligations under Section 7.07 and 8.04 and
the Issuers', any Guarantor's, 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 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 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 Sections 2.03,
2.04, 2.05, 2.06, 2.07, 4.01, 7.07, 7.08, 8.03 and 8.04, 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 irrevocable deposit made pursuant to this
Section 8.01 and satisfaction of the other conditions set forth
herein, the Trustee upon request shall acknowledge in writing the
discharge of the Issuers' and 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 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."
ARTICLE III.
MISCELLANEOUS
Section 3.1 Counterparts.
This Third 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 Third 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 Third Supplemental
Indenture by Foamex, FCC, GFI and the Trustee shall bind their
successors and assigns, whether so expressed or not.
Section 3.5 GOVERNING LAW.
THIS THIRD 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 Third Supplemental Indenture.
Except as amended by this Third 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
Third 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, 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 Third Supplemental Indenture,
and the Trustee makes no representation with respect thereto.
Section 3.8 Indemnification of Trustee.
Each of Foamex, FCC and GFI, jointly and severally agree to indemnify
the Trustee and to hold the Trustee harmless from and against any and all
claims, demands, causes of action, losses, damages, liabilities, costs and
expenses (including, without limitation, attorneys' fees and court costs) at any
time asserted against or incurred by the Trustee by reason of, arising out of or
in connection with the execution of this Third Supplemental Indenture, except
for the Trustee's own negligent action, its own negligent failure to act, or its
own bad faith or willful misconduct.
Section 3.9 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 Third
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
Name: Xxxxxx X. Xxxxx
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: U.S. TRUST COMPANY OF
TEXAS, N.A.
as Trustee
By: /s/ Xxxx Xxxxxx
Name: Xxxx 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 Xxxx Xxxxxx, Vice President of
U.S. TRUST COMPANY OF TEXAS, 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. Xxxxxxx
----------------------------------
Notary Public, State of Texas
Printed Name: Xxxxx X. Xxxxxxx
My Commission Expires:
9-16-98
---------------------
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. 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
