--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
FOAMEX L.P. AND FOAMEX CAPITAL CORPORATION, as Issuers
FOAMEX INTERNATIONAL INC., as Parent Guarantor and
GENERAL FELT INDUSTRIES, INC., as Guarantor
AND
FLEET NATIONAL BANK
as Trustee
FOURTH SUPPLEMENTAL INDENTURE
Dated as of May 28, 1997
$160,000,000
9-1/2% Senior Secured Notes
due 2000
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
1
FOURTH SUPPLEMENTAL INDENTURE
THIS FOURTH SUPPLEMENTAL INDENTURE (the "Fourth 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 Shawmut Bank, N.A.), as Trustee (the "Trustee").
WHEREAS, Foamex, FCC, GFI and the Trustee executed an indenture,
dated as of June 3, 1993 (the "Original Indenture"), relating to the Issuers'
9-1/2 % Senior Secured Notes due 2000 (the "Securities"); and
WHEREAS, Foamex, FCC, GFI, Perfect Fit Industries Inc., a Delaware
corporation ("PFI"), and the Trustee amended the Original Indenture by entering
into a First Supplemental Indenture dated as of November 18, 1993 in order to
add PFI as a Guarantor in accordance with Section 4.07 and Section 9.01(2) of
the Original Indenture; and
WHEREAS, Foamex, FCC, FII, GFI, PFI and the Trustee further amended
the Original Indenture, as supplemented by the First Supplemental Indenture, by
entering into a Second Supplemental Indenture, dated as of December 14, 1993 in
order to add FII as a Parent Guarantor in accordance with Section 9.01(4) and
Section 11.02 of the Original Indenture; and
WHEREAS, Foamex, FCC, FII, GFI, PFI and the Trustee further amended
the Original Indenture, as supplemented by the First Supplemental Indenture and
the Second Supplemental Indenture by entering into a Third Supplemental
Indenture (the Original Indenture, as supplemented by the First Supplemental
Indenture, the Second Supplemental Indenture and the Third 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 12.05 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
2
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 Fourth 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 Fourth 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
Fourth 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
Fourth 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:
3
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
ss. 4.17 Maintenance of Properties
ss. 4.18 Maintenance of Insurance
ss. 4.19 Foreign Subsidiaries
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 Net Proceeds thereof
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, the Issuers shall apply 100% of the Net
Proceeds thereof to (i) an offer to redeem outstanding Securities at
101% of the principal amount thereof or (ii) the payment of
principal, premium, if any, and accrued interest with respect to an
optional redemption of the Securities, as and to the extent then
permitted under Section 3.07 hereof; provided that if such
Collateral is subject to a Lien which is and is permitted to be pari
passu with the Lien in favor of the Trustee, the Issuers shall only
be required to apply a pro rata portion of such Net Proceeds to the
offer or redemption as set forth in this Section 4.10(b). To the
extent that assets subject to an Asset Sale are not, and are not
required to be, subject to a Lien in favor of the Trustee, the
Issuers shall apply 100% of the Net Proceeds thereof to the
prepayment of Obligations of Foamex and its subsidiaries outstanding
in respect of or
4
under the Credit Agreement and the Senior Note Indenture to the
extent required thereunder. If (x) no Obligations of Foamex or its
subsidiaries are outstanding in respect of or under the Credit
Agreement or the Senior Note Indenture or (y) the holders of such
Indebtedness 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 all such Indebtedness, then such Net Proceeds or any remaining
portion thereof will be required to be applied by the Issuers to (i)
an offer to redeem outstanding Securities at 101% of the principal
amount thereof or (ii) the payment of principal, premium, if any,
and accrued interest with respect to an optional redemption of the
Securities as and to the extent then permitted under Section 3.07
hereof.
(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 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 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 (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 Foamex 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 (d)(i) above or
applied to reimburse the applicable Issuer or any of their
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, such Replacement Assets are
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
5
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 purchase 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 herein, are at least equal to $5,000,000 at
which time the Issuers shall apply all such Net Proceeds 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 Securities or any other Indebtedness of the Issuers
secured by a pari passu Lien on such Collateral, then the Issuers
may apply such Net Proceeds to the prepayment of any other
Indebtedness of the Issuers to the extent required, and any Net
Proceeds remaining in the Collateral Account after all such offers
or redemptions required or permitted by the Indenture shall be held
in the Collateral Account as Collateral and shall be permitted to be
reinvested by the Issuers 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 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 and appropriate Collateral Documents in a form reasonably
satisfactory to the Trustee, under the Securities, this Indenture
and the Collateral Documents.
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."
6
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,
7
(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; 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
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 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. However, the Issuers' obligations in
Sections 2.03, 2.04, 2.05, 2.06, 2.07, 4.01, 7.07, 7.08,
8
8.03 and 8.04, the Guarantors' obligations in Section 12.01 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 issuer's option."
Section 2.6 Amendment of 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. Collateral Documents.
-------------- ---------------------
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 the Collateral Documents. Each
Securityholder, by its acceptance of a Security, consents and agrees
to the terms of the Collateral Documents (including, 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 each of the
Collateral Documents and to perform its respective obligations and
exercise its
9
respective rights thereunder in accordance therewith. The Issuers
and the Guarantors 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
and 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 Securities secured hereby, according to
the intent and purposes herein expressed. The Issuers and each
Guarantor 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 the Guarantors under this Indenture and the Securities, 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. Recording and Opinions.
-------------- ----------------------
(a) The Issuers shall furnish to the Trustee promptly
after the execution and delivery of this Fourth 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.
(b) The Issuers shall furnish to the Trustee within 3
months after each anniversary of the date of this Fourth
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.
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 Securities in
10
accordance with the terms thereof and of this Indenture and all
other Obligations of the Issuers and the Guarantors then due and
owing under this Indenture, the Securities and the Collateral
Documents; (ii) with respect to inventory, 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 Excess
Proceeds, upon the written request of either Issuer to the Trustee
to release all or any part of such Excess Proceeds (and without
providing any replacement Collateral) and the certification of such
Issuer that such Excess Proceeds are to be used within 10 days for a
bona fide business purpose, (viii) with respect to amounts in the
Collateral Account consisting of the proceeds of sales of Collateral
to subsidiaries of Foamex that are not Guarantors (at the time of
and immediately following such sale), 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; (ix) with respect to any Permitted Investments, upon the
sale of such Permitted Investments (and without providing any
replacement Collateral); (x) upon the sale of the stock or assets of
a subsidiary as provided in clause (viii) of the penultimate
paragraph of Section 4.07 hereof; (xi) with respect to the GFI Note
or any intercompany note evidencing a loan of Excess Proceeds, upon
the repayment, forgiveness or other termination of such note; (xii)
as provided in Section 8.01; and (xiii) as provided in Section
10.09; provided that, with respect to clauses (i), (iii), (iv), (v),
(vi), (vii), (viii), (x), (xi), (xii) and (xiii) 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
11
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 in the ordinary course of
the Issuers' or the Guarantors' businesses and the release of Excess
Proceeds in the ordinary course of the Issuers' or the Guarantors'
businesses, as applicable, may be made without delivery to the
Collateral Trustee of certificates required by Section 314(d) of the
TIA. However, 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 the Issuers' or the Guarantors' businesses, as applicable,
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' and the Guarantors' 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 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.
(d) The release of any Collateral from the terms of the
Collateral Documents will not be deemed to impair the security under
this Indenture in contravention of the provisions hereof and of the
Collateral Documents if and to the extent the Collateral is released
pursuant to this Indenture and the Collateral Documents.
(e) Notwithstanding anything to the contrary contained
in this Indenture or the Collateral Documents, 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 10.09 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 10.09(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
12
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 Foamex (or Foamex, if
Foamex is a corporation) or FCC, 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 and the Intercreditor Agreement.
Each Securityholder, by acceptance of a Security,
consents and agrees to the terms of the Intercreditor Agreement 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 Intercreditor Agreement and to
perform its respective obligations and exercise its respective
rights thereunder in accordance therewith. 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
Collateral Documents and the Intercreditor Agreement 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 Collateral Documents, the Intercreditor Agreement 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 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 security interest hereunder or be prejudicial
to the interests of the Securityholders or of the Trustee).
Section 10.06. Authorization of Receipt of Funds by the Trustee
Under the Collateral Documents and the Intercreditor Agreement.
The Trustee is authorized to receive any funds for the
benefit of the Securityholders distributed under the Collateral
Documents and the Intercreditor Agreement, and to
13
make further distributions of such funds to the Securityholders
according to the provisions of this Indenture, and the Collateral
Documents.
Section 10.07. Conflicts.
------------- ---------
As between the Credit Agent and the Trustee, each of
this Indenture and the Collateral Documents is expressly made
subject to the Intercreditor Agreement.
Section 10.08. Permitted Investments.
------------- ---------------------
The Trustee will cooperate with the Issuers or any
subsidiaries in ensuring that any Permitted Investments held by or
pledged to the Trustee as Collateral may be freely and promptly sold
or disposed of by the Issuers or such subsidiaries.
Section 10.09. 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 10.09(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 10.09(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 10.09(c).
(c) Upon the request of the Issuers or any Guarantor,
and subject to Section 10.09(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
14
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 10.09 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 a Guarantor May Merge, etc.
-------------- -------------------------------
No Guarantor will consolidate or merge with or into
(whether or not such Guarantor is the surviving person), another
corporation, person or entity whether or not affiliated with such
Guarantor (but excluding Contributions to subsidiaries and any
consolidation or merger if the surviving corporation is no longer a
subsidiary) unless: the person formed by or surviving any such
consolidation or merger (if other than such Guarantor) assumes all
the obligations of such Guarantor pursuant to a supplemental
indenture and appropriate Collateral Documents in a form reasonably
satisfactory to the Trustee, under the Securities, this Indenture
and the Collateral Documents.
The Guarantor 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 Fourth 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.
15
Section 3.2 Severability.
----------- ------------
In the event that any provision in this Fourth 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 Fourth 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 FOURTH 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 Fourth Supplemental Indenture.
----------- ---------------------------------------
Except as amended by this Fourth 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
Fourth 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 Fourth
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.]
16
IN WITNESS WHEREOF, the parties hereto have caused this Fourth
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
00
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 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:
Oct. 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 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:
OCT. 9, 1998
---------------------
00
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 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:
OCT. 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:
02-28-99
---------------------
00
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:
OCT. 9, 1998
---------------------
20
