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FOAMEX L.P. AND FOAMEX CAPITAL CORPORATION,
as joint and several obligors
GENERAL FELT INDUSTRIES, INC., FOAMEX FIBERS, INC.
AND FOAMEX LLC, as withdrawing guarantors
▇▇▇▇▇ INDUSTRIES, INC.,
as intermediate obligor
AND
THE BANK OF NEW YORK,
as Trustee
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FIRST SUPPLEMENTAL INDENTURE
Dated as of February 27, 1998
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$98,000,000
13-1/2% Senior Subordinated Notes
due 2005
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FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE (the "First Supplemental Indenture"),
dated as of February 27, 1998, by and among Foamex L.P., a Delaware limited
partnership ("Foamex"), and Foamex Capital Corporation, a Delaware corporation
("FCC" and, together with Foamex, the "Issuers"), as joint and several obligors,
General Felt Industries, Inc., a Delaware corporation ("General Felt"), Foamex
Fibers, Inc., a Delaware corporation ("Foamex Fibers"), and Foamex LLC, a
Delaware limited liability company, as withdrawing guarantors, ▇▇▇▇▇ Industries,
Inc., a Delaware corporation and the successor to ▇▇▇▇▇ Holdings Corp.
("▇▇▇▇▇"), as withdrawing intermediate obligor, and The Bank of New York, a New
York banking corporation, as trustee (the "Trustee").
WHEREAS, Foamex, FCC, General Felt, Foamex Fibers, Foamex LLC, ▇▇▇▇▇ 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"); and
WHEREAS, Section 9.1 of the Indenture provides for the execution and
delivery by Foamex, FCC, any Subsidiary Guarantor and the Trustee of one or more
supplemental indentures, without the consent of the Holders (as defined in the
Indenture) of the Notes, for the purposes specified therein; and
WHEREAS, Section 14.4 of the Indenture provides for, upon the delivery
of certain documents, the execution by the Trustee of a supplemental indenture
to evidence the release of ▇▇▇▇▇ from its obligations under the Indenture; and
WHEREAS, in compliance with the terms of the Indenture (including
Section 4.10 thereof), Foamex desires to transfer all of the common stock of
General Felt to Trace Foam LLC, a Delaware limited liability company, pursuant
to that certain Transfer Agreement, dated as of the date hereof, by and between
Foamex and Trace Foam; and
WHEREAS, on the date hereof, (i) Foamex Fibers, a wholly owned
subsidiary of General Felt, merged with and into General Felt pursuant to
Section 11.3(a) of the Indenture and (ii) Foamex LLC, a wholly owned subsidiary
of Foamex, merged with and into Foamex pursuant to Sections 5.1 and 11.3(a) of
the Indenture; and
WHEREAS, the ▇▇▇▇▇ Acquisition Transactions (as defined in the
Indenture) were consummated on December 23, 1997; and
WHEREAS, Foamex, FCC, General Felt, Foamex Fibers, Foamex LLC, ▇▇▇▇▇ and
the Trustee desire to amend the Indenture without the consent of any Holder to
unconditionally release and
discharge (i) each of General Felt, Foamex Fibers and Foamex LLC from all its
obligations as a Subsidiary Guarantor under the Indenture, in accordance with
Section 11.4 of the Indenture and (ii) ▇▇▇▇▇ from all its obligations as an
intermediate obligor under the Indenture, in accordance with Section 14.4 of the
Indenture.
WHEREAS, all conditions precedent provided for in the Indenture relating
to this Second 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, General Felt, Foamex Fibers
and Foamex LLC, as withdrawing guarantors, ▇▇▇▇▇, as withdrawing intermediate
obligor, 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:
ARTICLE I.
RELEASE AND DISCHARGE
Section 1.1 Release as a Guarantor or Obligor. General Felt, Foamex
Fibers and Foamex LLC are each hereby unconditionally released and discharged
from all of its obligations as a Subsidiary Guarantor under the Indenture. ▇▇▇▇▇
is hereby unconditionally released and discharged from all of its obligations
under the Indenture.
Section 1.2 Further Assurances. Upon the request of General Felt, Foamex
Fibers, Foamex LLC and ▇▇▇▇▇ at any time after the date hereof, the Trustee
shall forthwith execute and deliver such further instruments of release,
direction or authorization and other documents as may be reasonably requested in
order to effectuate the purposes of this Agreement.
ARTICLE II.
AMENDMENT OF ARTICLE 1
Section 2.1 Definitional Amendments. The following definition contained
in Section 1.01 of Article 1 of the Indenture is hereby amended and restated in
its entirety as follows:
"Subsidiary Guarantor" means those Restricted Subsidiaries
required to execute a Note Guarantee pursuant to Section 4.20 and any other
Subsidiary that executes a Note Guarantee.
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Section 2.2 Mutatis Mutandis Effect. The Indenture is hereby amended
mutatis mutandis to reflect the amendment of the defined term incorporated in
the Indenture pursuant to Section 2.1 above.
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ARTICLE III.
MISCELLANEOUS
Section 3.1 Counterparts.
This Second 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 Second 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 Second Supplemental Indenture by
Foamex, FCC, General Felt, Foamex Fibers, Foamex LLC, ▇▇▇▇▇ and the Trustee
shall bind their successors and assigns, whether so expressed or not.
Section 3.5 GOVERNING LAW.
THIS SECOND 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 Second Supplemental Indenture.
Except as amended by this Second 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
Second 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, General Felt, Foamex
Fibers, Foamex LLC and ▇▇▇▇▇, and the
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Trustee shall not be responsible or accountable in any way whatsoever for or
with respect to the validity or execution or sufficiency of this Second
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 Second
Supplemental Indenture to be executed by their duly authorized representative as
of the date hereof.
ATTEST: FOAMEX L.P.
----------------------- By: FMXI, INC.
its Managing General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name:
Title:
ATTEST: FOAMEX CAPITAL CORPORATION
----------------------- By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------
Name:
Title:
ATTEST: GENERAL FELT INDUSTRIES, INC.
-------------------- By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name:
Title:
ATTEST: FOAMEX FIBERS, INC.
-------------------- By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name:
Title:
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ATTEST: FOAMEX LLC
------------------- By: Foamex L.P.,
its Sole Member
By: FMXI, Inc.,
its Managing General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name:
Title:
ATTEST: ▇▇▇▇▇ INDUSTRIES, INC.
-------------------- By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name:
Title:
THE BANK OF NEW YORK
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name:
Title:
