Exhibit 3.2.6
FIFTH AMENDMENT TO FOURTH AMENDED AND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP OF FOAMEX L.P.
Dated as of March 25, 2002
By and among
FMXI, INC.
and
FOAMEX INTERNATIONAL INC.
FIFTH AMENDMENT TO FOURTH AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP OF FOAMEX L.P.
This Fifth Amendment (this "Amendment") is made as of March 25, 2002, by
and among FMXI, Inc., a Delaware corporation, and Foamex International Inc., a
Delaware corporation ("FII"), and amends the Fourth Amended and Restated
Agreement of Limited Partnership of Foamex L.P., dated as of December 14, 1993,
as amended on June 28, 1994, June 12, 1997, December 23, 1997 and February 27,
1998 (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, simultaneously with the execution of this Amendment, FII will
contribute (the "Contribution") all of its interest in Foamex Carpet Cushion LLC
to Foamex L.P., and the parties hereto wish to adjust their respective
Participation Percentages to reflect such contribution;
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. 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 the percentage set forth
opposite FII's name on Schedule I to be attached hereto within thirty days
following the date hereof, such Schedule I to be prepared by the Partners to
reflect the Contribution in a manner satisfactory to each of the Partners.
"Managing General Partner's Participation Percentage" means the percentage
set forth opposite the Managing General Partner's name on Schedule I to be
attached hereto within thirty days following the date hereof, such Schedule I to
be prepared by the Partners to reflect the Contribution in a manner satisfactory
to each of the Partners.
Section 2. Interim Closing. The Partners agree that each Partner 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 3. 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 4. Further Assurances; Consent to Transactions. 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 hereby 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,
including the Transactions.
Section 5. Waiver. Any failure of any of the parties to comply with any
obligations, 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, covenants,
agreement or condition shall not operate as a waiver of or estoppel with respect
to any subsequent or other failure.
Section 6. 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 7. 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 8. 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 Agreement. 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 9. Headings. The headings used herein are for convenience of
reference only, are not 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 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.
FMXI, INC.,
as Managing General Partner
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
FOAMEX INTERNATIONAL INC..
as Limited Partner
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
