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FOAMEX L.P. AND FOAMEX CAPITAL CORPORATION
as Issuers
AND
THE BANK OF NEW YORK
as Trustee
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SECOND
SUPPLEMENTAL INDENTURE
Dated as of September 30, 1998
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$98,000,000
13-1/2% Senior Subordinated Notes
due 2005
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SECOND SUPPLEMENTAL INDENTURE
THIS SECOND SUPPLEMENTAL INDENTURE (the "Supplemental Indenture"),
dated as of September 30, 1998, 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"), and The Bank of New York, a New York banking corporation as Trustee
(the "Trustee").
WHEREAS, Foamex, FCC, General Felt Industries, Inc., a Delaware
corporation ("GFI"), Foamex Fibers, Inc., a Delaware corporation ("Foamex
Fibers"), and the Trustee executed an indenture, dated as of December 23, 1997,
(the "Indenture"), relating to the Issuers' 13-1/2% Senior Subordinated Notes
due 2005 (the "Notes") as amended on February 27, 1998; and
WHEREAS, Article 9.2 of the Indenture provides that the Issuers 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 Notes to, among other things, change or
eliminate certain provisions of the Indenture; and
WHEREAS, the Issuers 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 Notes;
and
WHEREAS, all conditions precedent provided for in the Indenture
relating to this 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, and the Trustee for the
benefit of each other and for the equal and ratable benefit of the Holders of
the Notes agree as follows:
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ARTICLE I.
EFFECTIVENESS AND EFFECT
Section 1.1 Effectiveness and Effect.
This 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 Notes
(as such term is defined in the Offer as defined below), validly tendered
pursuant to Foamex's Offer to Purchase and Consent Solicitation, dated September
2, 1998, as it may be amended or amended and restated, (the "Offer"), are
accepted for purchase 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 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
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. 4.3 Reports
ss. 4.4 Compliance Certificate
ss. 4.5 Taxes
ss. 4.6 Stay, Extension and Usury Laws
ss. 4.7 Restricted Payments
ss. 4.8 Dividend and Other Payment Restrictions Affecting
Subsidiaries
ss. 4.9 Incurrence of Indebtedness and Issuance of
Preferred Stock
ss. 4.11 Transactions With Affiliates
ss. 4.12 Liens
ss. 4.13 Line of Business
ss. 4.14 Corporate Existence
ss. 4.16 Anti-Layering
ss. 4.17 Sale and Leaseback Transactions
ss. 4.18 Limitation on Issuances and Sales of Capital
Stock of Restricted Subsidiaries
ss. 4.19 Payments for Consent
ss. 4.20 Additional Guarantees
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.
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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.
Each of the Issuers shall not, and shall not permit any of
their respective Restricted Subsidiaries to, consummate an Asset Sale
unless such Issuer (or the Restricted Subsidiary, as the case may be)
receives consideration at the time of such Asset Sale at least equal to
the fair market value (evidenced by an Officers' Certificate delivered
to the Trustee and a resolution of the Board of Directors) of the
assets or Equity Interests issued or sold or otherwise disposed of.
Within 365 days after the receipt of any Net Proceeds from an
Asset Sale, the Issuers may apply such Net Proceeds, at their option,
(a) to repay Senior Debt, or (b) to the acquisition of assets to be
used in a Permitted Business. Pending the final application of any such
Net Proceeds, the Issuers may temporarily reduce the Credit Facility or
otherwise invest such Net Proceeds in any manner that is not prohibited
by this Indenture. Any Net Proceeds from Asset Sales that are not
applied or invested as provided in the first sentence of this paragraph
will be deemed to constitute "Excess Proceeds." When the aggregate
amount of Excess Proceeds exceeds $15.0 million, the Issuers shall be
required to make an offer to all Holders of Notes (an "Asset Sale
Offer") to purchase the maximum principal amount of Notes that may be
purchased out of the Excess Proceeds, at an offer price in cash in an
amount equal to 100% of the principal amount thereof plus accrued and
unpaid interest and Liquidated Damages, if any, thereon to the date of
purchase, in accordance with the procedures set forth in Section 3.9 To
the extent that the aggregate amount of Notes tendered pursuant to an
Asset Sale Offer and indebtedness ranking pari passu in right of
payment with the Notes with similar repurchase rights is less than the
Excess Proceeds, the Issuers may use any remaining Excess Proceeds for
general corporate purposes. If the aggregate principal amount of Senior
Subordinated Notes surrendered by Holders thereof and indebtedness
ranking pari passu in right of payment with the Notes with similar
repurchase rights surrendered by the holders thereof exceeds the amount
of Excess Proceeds, a pro rata portion of the Excess Proceeds (based on
the principal amount of indebtedness surrendered) shall be applied to
the purchase of Senior Subordinated Notes, and the Trustee shall select
the Senior Subordinated Notes to be purchased on a pro rata basis;
provided, however, that the Issuers shall not be obligated to purchase
Senior Subordinated Notes in denominations other than integral
multiples of $1,000. Upon completion of such offer to purchase, the
amount of Excess Proceeds shall be reset at zero."
Section 2.3 Amendment of Section 5.1.
Section 5.1 of the Indenture is hereby amended and restated to read in
its entirety as follows:
"Section 5.1. Merger, Consolidation, or Sale of Assets.
The issuers may not consolidate or merge with or into (whether
or not the Issuers are the surviving entity), or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially
all of their properties or assets in one or more related transactions,
to another corporation, Person or entity unless (i) such Issuer is the
surviving entity or the entity or the Person formed by or surviving any
such consolidation or merger (if other than such Issuer) or to which
such sale, assignment, transfer, lease, conveyance or other disposition
shall have been made is organized and existing under the laws of the
United States, any state thereof or the District of Columbia, provided
that FCC may not consolidate or merge with or into any entity other
than a corporation satisfying such requirements for so long as Foamex
remains a partnership and (ii) the entity or Person formed by or
surviving any such consolidation or merger (if other than such Issuer)
or the entity or Person to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have been made assumes all
the obligations of such Issuer under the Notes and this Indenture
pursuant to a supplemental indenture in a form reasonably satisfactory
to the Trustee. In the case of a sale, assignment, lease, transfer,
conveyance or other disposition of all or
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substantially all of the assets of an Issuer, upon the assumption
provided for in clause (ii) above, such Issuer shall be discharged from
all further liability and obligation under this Indenture."
Section 2.4 Amendment of Section 6.1.
Section 6.1 of the Indenture is hereby amended and restated to read in
its entirety as follows:
"Section 6.1. Events of Default.
An "Event of Default" occurs if:
(a) the Issuers default for 30 days in the payment of interest
on, or Liquidated Damages, if any, with respect to the Notes (whether
or not prohibited by the subordination provisions of this Indenture);
(b) the Issuers default in the payment when due of the
principal of or premium, if any, on the Notes (whether or not
prohibited by the subordination provisions of this Indenture);
(c) Intentionally omitted;
(d) Intentionally omitted;
(e) Intentionally omitted;
(f) Intentionally omitted;
(g) the Issuers or any of their respective Significant
Subsidiaries or any group of Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary pursuant to or within the meaning
of Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order
for relief against it in an
involuntary case,
(iii) consents to the appointment of a
Custodian of it or for all or
substantially all of its property,
(iv) makes a general assignment for the
benefit of its creditors,
(v) generally is not paying its debts
as they become due; or
(h) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(i) is for relief against the Issuers or any
of their Significant Subsidiaries or any group of Subsidiaries
that, taken as a whole, would constitute a Significant
Subsidiary in an involuntary case;
(ii) appoints a custodian of the Issuers or
any of their respective Significant Subsidiaries or any group
of Subsidiaries that, taken as a whole, would constitute a
Significant Subsidiary or for all or substantially all of the
property of the Issuers or any of their Significant
Subsidiaries or any group of Subsidiaries that, taken as a
whole, would constitute a Significant Subsidiary; or
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(iii) orders the liquidation of the Issuers or
any of their respective Significant Subsidiaries or any group
of Subsidiaries that, taken as a whole, would constitute a
Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60
consecutive days."
Section 2.5 Amendment of Section 8.1.
Section 8.1 of the Indenture is hereby amended and restated to read in
its entirety as follows:
"Section 8.1. Termination of Issuers' Obligations.
This Indenture shall cease to be of further effect (except
that the Issuers' and the Subsidiary Guarantors' obligations under
Section 7.7 and 8.4 and the Issuers' Trustee's and Paying Agent's
obligations under Section 8.3 shall survive) when all outstanding Notes
theretofore authenticated and issued have been delivered (other than
destroyed, lost or stolen Notes which have 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 under this Indenture if:
(1) the Issuers irrevocably 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 an irrevocable trust
agreement in form and substance satisfactory to the Trustee, money or
United States Government Obligations sufficient to pay principal and
interest on the Notes 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 irrevocable trust shall have been irrevocably
instructed to pay such money or the proceeds of such United States
Government Obligations to the Trustee and (ii) the Trustee shall have
been irrevocably instructed to apply such money or the proceeds of such
United States Government Obligations to the payment of said principal
and interest with respect to the Notes; and
(2) no Event of Default or event (including such deposit)
which, with notice or lapse of time, or both, would become an Event of
Default with respect to the Notes shall have occurred and be continuing
on the date of such deposit.
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 Section 2.3, 2.4, 2.5, 2.6, 2.7, 4.1, 7.7, 7.8,
8.3 and 8.4, and the Trustee's and Paying Agent's obligations in
Section 8.3 shall survive until the Notes are no longer outstanding.
Thereafter, only the Issuers', Trustee's and Paying Agents' obligations
in Section 8.3 shall survive.
After such irrevocable deposit made pursuant to this Section
8.1 and satisfaction of the other conditions set forth herein, the
Trustee upon written request of the Issuer shall acknowledge in writing
the discharge of the Issuers' and the Subsidiary 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 Notes, the United States 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. United States Government Obligations shall not be
callable at the Issuers' options.
The Issuers shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the United
States Government Obligations deposited pursuant to this Section 8.1 or
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the principal and interest received in respect thereof other than any
such tax, fee or other charge which by law is for the account of the
Holders of outstanding Notes."
Section 2.6 Amendment of Section 11.3.
Section 11.3 of the Indenture is hereby amended and restated to read in
its entirety as follows:
"Section 11.3. Subsidiary Guarantors May Consolidate, Etc., on
Certain Terms
(a) Except as set forth in Articles 4 and 5 hereof, nothing
contained in this Indenture shall prohibit a merger between a
subsidiary Guarantor and another Subsidiary Guarantor or a merger
between a Subsidiary Guarantor and the Issuers.
(b) Except as provided in Section 11.3(a) hereof or in a
transaction referred to in Section 11.4 hereof, no Subsidiary Guarantor
may consolidate with or merge with or into (whether or not such
Subsidiary Guarantor is the surviving Person), another corporation,
Person or entity whether or not affiliated with such Subsidiary
Guarantor unless, subject to the provisions of the following paragraph,
the Person formed by or surviving any such consolidation or merger (if
other than such Subsidiary Guarantor) assumes all the obligations of
such Subsidiary Guarantor pursuant to a supplemental indenture in form
and substance reasonably satisfactory to the Trustee, under the Notes
and the Indenture.
(c) In the case of any such consolidation, merger, sale or
conveyance and upon the assumption by the successor Person, by
supplemental indenture, executed and delivered to the Trustee and
substantially in the form of Exhibit D hereto, of the Note Guarantee
endorsed upon the Notes and the due and punctual performance of all of
the covenants and conditions of this Indenture to be performed by the
Subsidiary Guarantor, such successor Person shall succeed to and be
substituted for the Subsidiary Guarantor with the same effect as if it
had been named herein as a Subsidiary Guarantor. Such successor Person
thereupon may cause to be signed any or all of the Note Guarantees to
be endorsed upon all of the Notes issuable hereunder which theretofore
shall not have been signed by the Issuers and delivered to the Trustee.
All of the Note Guarantees so issued shall in all respects have the
same legal rank and benefit under this Indenture as the Note Guarantees
theretofore and thereafter issued in accordance with the terms of this
Indenture as though all of such Note Guarantees had been issued at the
date of the execution hereof."
ARTICLE III.
MISCELLANEOUS
Section 3.1 Counterparts.
This 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 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 affect the construction hereof.
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Section 3.4 Successors and Assigns.
Any covenants and agreements in this Supplemental Indenture by Foamex,
FCC and the Trustee shall bind their successors and assigns, whether so
expressed or not.
Section 3.5 GOVERNING LAW.
THIS 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 Supplemental Indenture.
Except as amended by this 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
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 and FCC, 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 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.]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be executed by their duly authorized representative as of the date
hereof.
ATTEST: FOAMEX CAPITAL CORPORATION
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------- ----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
ATTEST: FOAMEX L.P.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: FMXI, INC.
------------------- its Managing General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------
Name: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
THE BANK OF NEW YORK
as Trustee
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Treasurer
▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇, the undersigned, a Notary Public in and for said
State and County, on this day personally appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 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/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Notary Public, State of Pennsylvania
Printed Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
My Commission Expires:
April 26, 1999
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STATE OF PENNSYLVANIA
COUNTY OF DELAWARE
BEFORE ME, the undersigned, a Notary Public in and for said
State and County, on this day personally appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 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/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Notary Public, State of Pennsylvania
Printed Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
My Commission Expires:
April 26, 1999
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