THIRD AMENDMENT TO FOURTH AMENDED AND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP OF FOAMEX L.P.
Dated as of December 23, 1997
by and among
FMXI, INC.
TRACE FOAM COMPANY, INC.,
FOAMEX INTERNATIONAL INC.
and
XXXXX INDUSTRIES, INC.
THIRD AMENDMENT TO FOURTH AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP OF FOAMEX L.P.
This Third Amendment (this "Amendment") is made as of December
23, 1997, by and among FMXI, Inc., a Delaware corporation ("FMXI"), Trace Foam
Company, Inc., a Delaware corporation ("Trace"), Foamex International Inc., a
Delaware corporation ("FII"), and Xxxxx Industries, Inc., a Delaware corporation
("Xxxxx"), 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 and June 12, 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, a newly formed wholly owned subsidiary of Foamex
International Inc. ("FII") has merged (the "Merger") with and into Xxxxx
Holdings Corp. ("Xxxxx Holdings"), a Delaware corporation which owns all of the
outstanding common stock of Xxxxx, pursuant to an Agreement and Plan of Merger,
dated as of December 8, 1997, and as a result of which Merger, Xxxxx Holdings
has become a wholly owned subsidiary of FII and following such Merger, Xxxxx
Holdings merged with Xxxxx;
WHEREAS, Xxxxx has contributed all of its retail business to
Foamex LLC, a newly formed Delaware limited liability company ("FLLC"); and
WHEREAS, Xxxxx desires to contribute its interest in FLLC and all
of its other assets to Foamex subject to all of its liabilities for a
partnership interest (the "Contribution").
WHEREAS, the Partners wish to amend the Fourth Partnership
Agreement to admit Xxxxx as a non-managing general partner of the Partnership.
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 Xxxxx. Notwithstanding any of the terms
or provisions of the Fourth Partnership Agreement to the contrary, upon the
execution and delivery of this Amendment, Xxxxx shall be and hereby is admitted
to the Partnership as a non-managing general partner of the Partnership. Xxxxx,
as a non-managing general partner of the Partnership, hereby agrees to be bound
by the terms and conditions of the Fourth Partnership Agreement and this
Amendment.
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 97%.
"Managing General Partner's Participation Percentage"
means 1%.
"Partners" means the Managing General Partner, the 21 Foam
Partner, the Xxxxx 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.
"21 Foam Partner's Participation Percentage" means 1%.
(b) The following definitions are hereby added to Article 1 of
the Fourth Partnership Agreement in alphabetical order:
"Xxxxx" means Xxxxx Industries, Inc.
"Xxxxx Partner" means Xxxxx in its capacity as a general
partner of the Partnership, and any transferee of the Xxxxx
Partner Interest admitted as a general partner of the Partnership
under the terms hereof.
"Xxxxx Partner Interest" means the interest of Xxxxx in
the Partnership, including the right of the Xxxxx Partner to any
and all benefits to which it may be entitled under this
Agreement, together with the obligations of Xxxxx Partner
hereunder.
"Xxxxx Partner's Participation Percentage" means 1%.
Section 3. Profits. Sections 4.1(b) and (c) of the Fourth
Partnership Agreement are hereby deleted and new Sections 4.1(b), (c), and (d)
are added as follows:
(b) second, 50% to the 21 Foam Partner and 50% to the Managing
General Partner until the aggregate allocations of Profits pursuant to
Section 4.1(a) is equal to the aggregate allocation of Losses pursuant
to Section 4.2(b);
(c) third, 100% to the Xxxxx Partner until the aggregate
allocations of Profits pursuant to this Section 4.1(c) is equal to the
aggregate allocation of Losses pursuant to Section 4.2(c); and
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(d) fourth, among the Partners in proportion to their
Participation Percentages.
Section 4. Allocation of Losses. Sections 4.2(b) and (c) of the
Fourth Partnership Agreement are hereby deleted and new Sections 4.2(b), (c),
and (d) are added as follows:
(b) second, 50% to the 21 Foam Partner and 50% to the Managing
General Partner until the negative Capital Account balance of the 21
Foam Partner equals $140,000,000;
(c) third, 100% to the Xxxxx Partner until the negative Capital
Account balance of the Xxxxx Partner equals $100,000,000; and
(d) fourth; the balance to the Managing General Partner.
Section 5. Amendment of Section 7.1. A new last sentence is
added to Section 7.1 as follows: "The Xxxxx Partner shall take no action that
would bind the Partnership."
Section 6. 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, Xxxxx Partner and the 21 Foam Partner
to the extent they are creditors, in satisfaction of liabilities of the
Partnership (whether by payment or the making of reasonable provision
for the payment thereof);
Section 7. 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, the Xxxxx Partner
Interest, or 21 Foam 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 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 8. Notices. Sections 13.10(b) and (c) of the Fourth
Partnership Agreement are hereby deleted and a new Section 13.10(b) amended as
follows:
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(b) If to the FII Partner, Xxxxx Partner, Managing General
Partner and/or Partnership:
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Section 9. Certificates. A new Section 13.14 is added to the
Fourth Partnership Agreement as follows:
13.14. Certificate of Interest.
Notwithstanding anything to the contrary contained in this
Agreement:
(a) The interest of each Partner in the Partnership shall be
evidenced by a Certificate of Interest. The Certificates of Interest in
the Partnership, together with a Certificate Transfer Ledger, shall be
maintained at the principal office of the Partnership. Each such
Certificate of Interest shall be serially numbered and shall be issued
by, or at the written direction of, the Managing General Partner. All
Certificates of Interest shall be executed in the name of the
Partnership by the Managing General Partner or its designee(s). Each
Certificate of Interest shall state on its face the name of the
registered holder thereof and the then interest in the Partnership held
by the registered holder.
(b) Certificates of Interest in the Partnership may be
transferred by the lawful holders thereof only in connection with the
pledge or transfer of all or part of the interest of such holder in the
Partnership, and only in accordance with the provisions of this
Agreement. All such transfers shall be effected by duly executed and
acknowledged instruments of assignment, each of which shall be duly
recorded on the Certificate Transfer Ledger. No effect shall be given to
any purported assignment of a Certificate of Interest, or transfer of
the interest in the Partnership evidenced thereby, unless such
assignment and transfer shall be in compliance with the terms and
provisions of this Agreement, and any attempted assignment or transfer
in contravention hereof shall be ineffectual.
(c) In the event that a Certificate of Interest shall be lost,
stolen, destroyed or mutilated, the Partnership may cause a replacement
Certificate of Interest to be issued upon such terms and conditions as
shall be fixed by the Managing General Partner, including, without
limitation, provision for indemnity and the posting of a bond or other
adequate security as security therefor. No replacement Certificate of
Interest shall be issued to any person unless such person has
surrendered the Certificate of Interest to be replaced, or has complied
with the terms of this Section 13.14.
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(d) The Partnership Interests are intended to be "securities"
governed by Article 8 of the New York Uniform Commercial Code.
Section 10. Continuation of Partnership. The parties hereto agree
that the consummation of the transactions contemplated in this Amendment and the
admission of Xxxxx 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 11. 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 12. 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 13. 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 14. 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 15. 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.
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Section 16. 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 17. 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 18. 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.]
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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 Xxxxxxxxx
--------------------
By: Xxxxxx Xxxxxxxxx
Title: Vice President
FOAMEX INTERNATIONAL INC.,
as Limited Partner
/s/ Xxxxxx Xxxxxxxxx
--------------------
By: Xxxxxx Xxxxxxxxx
Title: Vice President
XXXXX INDUSTRIES, INC.
as Non-Managing General Partner
By:/s/ Xxxxxx Xxxxxxxxx
--------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
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