FOURTH AMENDMENT TO FOURTH AMENDED AND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP OF FOAMEX L.P.
Dated as of February 27, 1998
by and among
FMXI, INC.,
TRACE FOAM COMPANY, INC.
TRACE SPV LLC
TRACE FOAM LLC
and
FOAMEX INTERNATIONAL INC.
FOURTH AMENDMENT TO FOURTH AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP OF FOAMEX L.P.
This Fourth Amendment (this "Amendment") is made as of February 27,
1998, by and among FMXI, Inc., a Delaware corporation, Trace Foam Company, Inc.,
a Delaware corporation ("Trace Foam"), Trace SPV LLC, a Delaware limited
liability company ("Trace SPV"), Trace Foam LLC, a Delaware limited liability
company ("Trace LLC"), and Foamex International Inc., a Delaware corporation
("FII"), and amends the Fourth Amended and Restated Agreement of Limited
Partnership of Foamex L.P., dated as of December 14, 1993, as amended on June
28, 1994, June 12, 1997, and December 23, 1997 (the "Fourth Partnership
Agreement"). Capitalized terms used but not otherwise defined herein shall have
the respective meanings assigned to such terms in the Fourth Partnership
Agreement.
WHEREAS, pursuant to an Agreement and Plan of Merger, dated as of
February 27, 1998, FMXI, Inc., a 1% managing general partner of the Partnership
(FMXI, Inc. prior to the Merger, "Old FMXI"), merged (the "Merger") with and
into ▇▇▇▇▇ Industries, Inc., a 1% non-managing general partner of the
Partnership ("▇▇▇▇▇"), which surviving entity changed its name to FMXI, Inc.
("FMXI");
WHEREAS, Trace Foam Company, Inc. ("Trace Foam") contributed (the "SPV
Contribution") its 1% non-managing general partnership interest in Foamex L.P.
(the "Interest") to Trace SPV;
WHEREAS, Trace SPV contributed (the "TFLLC Contribution" and, together
with the SPV Contribution, the "Contribution") the Interest to Trace LLC;
WHEREAS, Trace LLC contributed the Interest to Foamex L.P., a Delaware
corporation (the "Partnership"), for good and valuable consideration pursuant to
the Transfer Agreement, dated as of February 27, 1998, by and between Trace LLC
and the Partnership (the "Transfer Agreement"); and
WHEREAS, the Partners wish to amend the Fourth Partnership Agreement
to reflect the Merger of ▇▇▇▇▇ and Old FMXI, the Contribution, and the
transactions contemplated by the Transfer Agreement (collectively, the
"Transaction").
NOW THEREFORE, in consideration of the premises and the mutual
agreements contained herein and for other good, valuable and binding
consideration, the receipt and sufficiency of which are hereby acknowledged, and
subject to the terms hereof, the parties hereto, intending to be legally bound,
hereby amend the Fourth Partnership Agreement as follows:
Section 1. Withdrawal of Trace Foam and FMXI Merger. Notwithstanding
any of the terms or provisions of the Fourth Partnership Agreement to the
contrary, (i) upon the consummation of the Contribution, upon the execution,
delivery and performance of the Transfer Agreement and upon the execution and
delivery of this Amendment, Trace Foam, Trace SPV and Trace LLC shall each
withdraw from the Partnership as a non-managing general partner of the
Partnership and (ii) upon the consummation of the Merger and upon the execution
and delivery of this Amendment, FMXI shall be the Managing General Partner of
the Partnership in the place of Old FMXI and ▇▇▇▇▇ shall no longer be a general
partner of the Partnership.
Section 2. Amendment of Article 1.
(a) The following definitions contained in Article 1 of the Fourth
Partnership Agreement are hereby amended and restated in their entirety as
follows:
"FII Partner's Participation Percentage" means 98%.
"Managing General Partner's Participation Percentage" means 2%.
"Participation Percentages" means the FII Partner's Participation
Percentage, the Managing General Partner's Participation Percentage
and participation percentage associated with any additional
Partnership Interests in the Partnership.
"Partners" means the Managing General Partner and the Limited
Partner(s); provided, that any Partner that ceases to hold all of its
Partnership Interest shall be deemed to have withdrawn as a Partner of
the Partnership.
(b) The following definitions are hereby deleted from Article 1 of
the Fourth Partnership Agreement:
"▇▇▇▇▇"
"▇▇▇▇▇ Partner"
"▇▇▇▇▇ Partner's Participation Percentage"
"▇▇▇▇▇ Partner Interest"
"21 Foam"
"21 Foam Partner"
2
"21 Foam Partner's Participation Percentage"
"21 Foam Partner Interest"
Section 3. Profits. Sections 4.1(a), (b), (c) and (d) of the Fourth
Partnership Agreement are hereby deleted and new Sections 4.1(a) and (b) are
added as follows:
(a) first, 100% to the Managing General Partner until the aggregate
allocations of Profits pursuant to this Section 4.1(a) are equal to the
aggregate allocation of Losses pursuant to Section 4.2(b); and
(b) second, among the Partners in proportion to their Participation
Percentages.
Section 4. Allocation of Losses. Sections 4.2(a), (b), (c) and (d)
of the Fourth Partnership Agreement are hereby deleted and new Sections 4.2(a)
and (b) are added as follows:
(a) first, among the Partners in proportion to their Participation
Percentages until the positive Capital Account balances of any Partner are
reduced to zero; and
(b) second, the balance to the Managing General Partner.
Section 5. Amendment of Section 5.4. The words "or the 21 Foam
Partner" are hereby deleted from the final sentence of Section 5.4.
Section 6. Amendment of Section 7.1. The final two sentences of
Section 7.1 are hereby deleted.
Section 7. Amendment of Section 11.2(b). Section 11.2(b) of the
Fourth Partnership Agreement is hereby amended and restated in its entirety as
follows:
(b) to the Limited Partner to the extent it is a creditor, in
satisfaction of liabilities of the Partnership (whether by payment or the
making of reasonable provision for the payment thereof);
Section 8. Deficit Capital Account Balances. Section 11.3 of the
Fourth Partnership Agreement is hereby amended and restated as follows:
If, following the distributions and allocations upon the
liquidation of the Managing General Partner Interest in the Partnership, such
Partner's Capital Account has a deficit balance (after giving effect to all
contributions, distributions and allocations for all taxable years, including
the year during which such liquidation occurs), such Partner shall contribute to
3
the capital of the Partnership the amount necessary to restore such deficit
balance to zero within the time limits specified in Regulations Section
1.704-1(b)(2)(ii)(b)(3).
Section 9. Amendment of Section 13.7. The proviso at the end of
Section 13.7 is hereby deleted in its entirety.
Section 10. Notices. Sections 13.10(a) and (b) of the Fourth
Partnership Agreement are hereby deleted and a new Section 13.10(a) is added as
follows:
(a) If to the FII Partner, Managing General Partner and/or
Partnership:
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Section 11. Continuation of Partnership. The parties hereto agree
that the consummation of the transactions contemplated in this Amendment, the
Merger and the withdrawal of Trace Foam as a non-managing general partner of the
Partnership will not dissolve the Partnership and that the business of the
Partnership shall be continued by the Managing General Partner.
Section 12. Interim Closing. Each of the parties hereto who is a
Partner pursuant to the Fourth Partnership Agreement prior to this Amendment
agrees that it will be allocated income or loss for tax purposes pursuant to an
interim closing of the books as of the date hereof pursuant to the relevant
provisions of the Fourth Partnership Agreement.
Section 13. Effect of Amendment. On and after the date hereof, each
reference in the Fourth Partnership Agreement to "this Agreement", "hereof",
"hereunder" or words of like import referring to the Fourth Partnership
Agreement shall mean and be a reference to the Fourth Partnership Agreement as
amended by this Amendment. The Fourth Partnership Agreement, as amended by this
Amendment, shall continue to be in full force and effect and is hereby in all
respects ratified and confirmed.
Section 14. Further Assurances; Consent to Transactions. From time to
time upon request and without further consideration, each of the parties hereto
shall, and shall cause its subsidiaries and affiliates to, execute, deliver and
acknowledge all such further instruments and do such further acts as any other
party hereto may reasonably require to evidence or implement the transactions
contemplated by this Amendment. Notwithstanding anything to the contrary
contained in the Fourth Partnership Agreement, each of the parties hereto hereby
consents to any and all of the transactions contemplated by this Amendment,
including the Transactions.
Section 15. Waiver. Any failure of any of the parties to comply with
any obligation, covenant, agreement or condition
4
herein may be waived by any of the parties entitled to the benefit thereof only
by a written instrument signed by each such party granting such waiver, but such
waiver or failure to insist upon strict compliance with such obligation,
representation, warranty, covenant, agreement or condition shall not operate as
a waiver of or estoppel with respect to any subsequent or other failure.
Section 16. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of Delaware regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws thereof.
Section 17. Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
and delivered by means of facsimile transmission or otherwise, each of which
when so executed and delivered shall be deemed to be an original and all of
which when taken together shall constitute but one and the same Amendment.
Section 18. Severability. If any provision of this Amendment shall be
held to be illegal, invalid or unenforceable under any applicable law, then such
contravention or invalidity shall not invalidate the entire Amendment. Such
provision shall be deemed to be modified to the extent necessary to render it
legal, valid and enforceable, and if no such modification shall render it legal,
valid and enforceable, then this Amendment shall be construed as if not
containing the provision held to be invalid, and the rights and obligations of
the parties shall be construed and enforced accordingly.
Section 19. Headings. The headings used herein are for convenience of
reference only, are not a part of this Amendment and are not to affect the
construction of, or to be taken into consideration in interpreting, any
provision of this Amendment or the Fourth Partnership Agreement.
[The remainder of this page is intentionally blank.]
5
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their respective duly authorized officers thereunto as of the
date first written above.
FMXI, INC.,
as Managing General Partner
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
TRACE FOAM COMPANY, INC.,
as Withdrawing General Partner
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
----------------------------------
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Vice President
TRACE SPV LLC,
as Withdrawing General Partner
By: Trace Foam Company, Inc.
Its: Sole Member
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
----------------------------------
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Vice President
TRACE FOAM LLC,
as Withdrawing General Partner
By: Trace SPV LLC
Its: Sole Member
By: Trace Foam Company, Inc.
Its: Sole Member
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
-------------------------------
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Vice President
6
FOAMEX INTERNATIONAL INC.,
as Limited Partner
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
7