EXHIBIT 4.2.3
SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
March 25, 2002, between Foamex Carpet Cushion LLC, a Delaware limited liability
company (the "New Subsidiary Guarantor"), a direct or indirect domestic
Restricted Subsidiary of either Foamex L.P., a Delaware limited partnership
("Foamex"), or Foamex Capital Corporation ("FCC", each of Foamex and FCC an
"Issuer" and together, the "Issuers") and The Bank of New York, as Trustee under
the indenture referred to below (the "Trustee"). Capitalized terms used herein
and not defined herein shall have the meaning ascribed to them in the Indenture
(as defined below).
W I T N E S S E T H
WHEREAS, the Issuers have heretofore executed and delivered to the Trustee
an indenture (as amended, supplemented or otherwise modified, the "Indenture"),
dated as of December 23, 1997, providing for the issuance of an aggregate
principal amount of $98,000,000 of 13 1/2% Senior Subordinated Notes due 2005
(the "Notes");
WHEREAS, Section 11.5 of the Indenture provides that under certain
circumstances the Issuers may cause, and Section 11.3 of the Indenture provides
that under certain circumstances the Issuers must cause, certain of its
subsidiaries to execute and deliver to the Trustee a supplemental indenture
pursuant to which such subsidiaries shall unconditionally guarantee all of the
Issuers' Obligations under the Notes pursuant to a Note Guarantee on the terms
and conditions set forth herein; and
WHEREAS, pursuant to Section 9.1 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the New
Subsidiary Guarantor and the Trustee mutually covenant and agree for the equal
and ratable benefit of the Holders of the Notes as follows:
1. Capitalized Terms. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. Agreement to Note Guarantee. The New Subsidiary Guarantor hereby agrees,
jointly and severally with all other Subsidiary Guarantors, to guarantee the
Issuers' Obligations under the Notes and the Indenture on the terms and subject
to the conditions set forth in Article 11 and Article 12 of the Indenture and to
be bound by all other applicable provisions of the Indenture.
3. No Recourse Against Others. No past, present or future director,
officer, employee, incorporator, shareholder or agent of any Subsidiary
Guarantor, as such, shall have any liability for any obligations of the Issuers
or any Subsidiary Guarantor under the Notes, any Note Guarantees, the Indenture
or this Supplemental
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder by accepting a Note waives and
releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes.
4. New York Law to Govern. The internal law of the State of New York shall
govern and be used to construe this Supplemental Indenture.
5. Counterparts. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
6. Effect of Headings. The Section headings herein are for convenience only
and shall not affect the construction hereof.
7. The Trustee. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the correctness of the recitals of fact
contained herein, all of which recitals are made solely by the New Subsidiary
Guarantor.
8. Effect of Supplemental Indenture. Except as amended by this Supplemental
Indenture, the terms and provisions of the Indenture shall remain in full force
and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
FOAMEX CARPET CUSHION LLC
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
THE BANK OF NEW YORK,
as Trustee
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
ACKNOWLEDGED AND AGREED
this 25th day of March, 2002:
FOAMEX L.P.
By: FMXI, Inc., its Managing General Partner
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
FOAMEX CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
