SECOND AMENDMENT TO FOURTH AMENDED AND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP OF FOAMEX L.P.
Dated as of June 12, 1997
by and among
FMXI, INC.
TRACE FOAM COMPANY, INC.
and
FOAMEX INTERNATIONAL INC.
SECOND AMENDMENT TO FOURTH AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP OF FOAMEX L.P.
This Second Amendment (this "Amendment") is made as of June
12, 1997, by and among FMXI, Inc., a Delaware corporation ("FMXI"), Trace Foam
Company, Inc., a Delaware corporation ("Trace") and Foamex International Inc., a
Delaware corporation ("FII"), and amends the Fourth Amended and Restated
Agreement of Limited Partnership of Foamex L.P. (the "Partnership"), dated as of
December 14, 1993, as amended on June 28, 1994 (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, Foamex-JPS Automotive L.P. ("FJPS"), a 98% limited
partner in Foamex, has been merged with and into FII;
WHEREAS, the Partners wish to amend the Fourth Partnership
Agreement to admit FII as a limited partner of the Partnership in the place of
FJPS.
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. Admission of FII. Notwithstanding any of the terms
or provisions of the Fourth Partnership Agreement to the contrary, upon the
merger of FJPS with and into FII and the execution and delivery of this
Amendment, FII shall be and hereby is admitted to the Partnership as a limited
partner of the Partnership in the place of FJPS. FII, as a limited partner of
the Partnership, hereby agrees to be bound by the terms and conditions of the
Fourth Partnership Agreement and this Amendment.
Section 2. Continuation of Partnership. The parties hereto
agree that the consummation of the transactions contemplated in this Amendment,
the admission of FII as a limited 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 3. 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 4. 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 5. Further Assurances. 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.
Section 6. Waiver. Any failure of any of the parties to comply
with any obligation, covenant, agreement or condition 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 7. 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 8. 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 9. 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 10. 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.
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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.
TRACE FOAM COMPANY, INC.,
as General Partner
/s/ Xxxxxx X. Xxxxx, Xx.
-----------------------------
By: Xxxxxx X. Xxxxx, Xx.
Title: Vice President
FMXI, INC.,
as Managing General Partner
/s/ Xxxxxx X. Xxxxx, Xx.
-----------------------------
By: Xxxxxx X. Xxxxx, Xx.
Title: Vice President
FOAMEX INTERNATIONAL, INC.,
as Limited Partner and Successor to
Foamex-JPS Automotive L.P.
/s/ Xxxxxx X. Xxxxx, Xx.
-----------------------------
By: Xxxxxx X. Xxxxx, Xx.
Title: Vice President
