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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
AND
THE BANK OF NEW YORK,
as Trustee
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SECOND SUPPLEMENTAL INDENTURE
Dated as of February 27, 1998
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$150,000,000
9-7/8% Senior Subordinated Notes
due 2007
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SECOND SUPPLEMENTAL INDENTURE
THIS SECOND SUPPLEMENTAL INDENTURE (the "Second 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, and The Bank of
New York, a New York banking corporation, as trustee (the "Trustee").
WHEREAS, Foamex, FCC, General Felt, Foamex Fibers and the Trustee executed
an indenture, dated as of June 12, 1997 (the "Original Indenture"), relating to
the Issuers' 9-7/8% Senior Subordinated Notes due 2007 (the "Notes"); and
WHEREAS, Foamex LLC and the Trustee amended the Original Indenture by
entering into a First Supplemental Indenture, dated as of December 23, 1997, in
order to add Foamex LLC as a Subsidiary Guarantor in accordance with Article 11
of the Original Indenture (the Original Indenture as so supplemented is referred
to herein as the "Indenture"); and
WHEREAS, Section 9.01 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, 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 11.03(a)
of the Indenture and (ii) Foamex LLC, a wholly owned subsidiary of Foamex,
merged with and into Foamex pursuant to Sections 5.01 and 11.03(a) of the
Indenture; 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 each of General Felt, Foamex Fibers and
Foamex LLC from all its
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obligations as a Subsidiary Guarantor under the Indenture, in accordance with
Section 11.04 of the Indenture; and
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, 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. 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.
Section 1.2. Further Assurances. Upon the request of General Felt,
Foamex Fibers and Foamex LLC 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.
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,
and Foamex LLC, and the Trustee
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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/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------
Name:
Title:
ATTEST: FOAMEX CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------ ------------------------------
Name:
Title:
ATTEST: GENERAL FELT INDUSTRIES, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------ ------------------------------
Name:
Title:
ATTEST: FOAMEX FIBERS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------ ------------------------------
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/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------
Name:
Title:
THE BANK OF NEW YORK
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------ ------------------------------
Name:
Title:
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