FIRST AMENDMENT TO
AMENDED AND RESTATED TAX SHARING AGREEMENT OF FOAMEX L.P.
THIS FIRST AMENDMENT TO AMENDED AND RESTATED TAX SHARING
AGREEMENT OF FOAMEX L.P. (the "Amendment") is made as of June 12, 1997, by and
between Foamex L.P., a Delaware limited partnership ("Foamex"), Foamex
International Inc., a Delaware corporation ("FII"), FMXI, Inc., a Delaware
corporation ("FMXI"), and Trace Foam Company, Inc., a Delaware corporation
("Trace").
W I T N E S S E T H:
WHEREAS, Foamex, FII, FMXI, Trace and certain other parties
entered into that certain First Amended and Restated Tax Sharing Agreement,
dated as of December 14, 1993 (the "Original Agreement");
WHEREAS, Foamex, FMXI, Trace, FII and Foamex-JPS Automotive
L.P. ("FJPS") entered into that certain First Amendment (the "First Amendment")
to Fourth Amended and Restated Agreement of Limited Partnership of Foamex L.P.,
dated as of June 28, 1994, which amended the Original Agreement to reflect the
change in the partners of Foamex (the Original Agreement as amended by the First
Amendment is referred to as the "Agreement"); and
WHEREAS, Foamex-JPS Automotive L.P., a 98% limited partner in
Foamex is being merged with and into FII, and the parties wish to amend the
Agreement to reflect such merger.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants set forth herein and for other good and valid consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto, intending to be legally bound, agree as follows:
1. Amendment. The parties hereto agree that upon consummation
of the merger of FJPS into FII for all purposes of the Agreement FII shall be
deemed to be the successor to FJPS's 98% limited partnership interest in Foamex.
FII hereby agrees to become a party to the Agreement, as required by Section
7(u) of the Agreement and agrees to be bound by the terms and conditions of the
Agreement.
2. Governing Law. This Amendment shall be governed by and
construed and enforced in accordance with the laws of the State of New York.
4. Limitation. Except as expressly set forth herein, this
Amendment shall not be deemed to waive, amend or modify any term or condition of
the Agreement, each of which shall remain in full force and effect and are
hereby ratified and confirmed.
5. Counterparts. This Amendment may be executed in any number
of counterparts, each of which when executed and delivered will be deemed to be
an original, and all of which taken together will be deemed to be but one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly authorized
as of the date first above written.
FOAMEX L.P.
By: FMXI, INC.
its Managing General Partner
By:/s/ Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
FOAMEX INTERNATIONAL INC.
By:/s/ Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
FMXI, INC.
By:/s/ Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
TRACE FOAM COMPANY, INC.
By:/s/ Xxxxxx X. Xxxxx, Xx.
Name: Xxxxxx X. Xxxxx, Xx.
Title: Vice President
