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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------------------------------------------------
FORM 8-K
Current Report Pursuant
to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): May 28, 1997
FOAMEX L.P.
FOAMEX CAPITAL CORPORATION
FOAMEX-JPS AUTOMOTIVE L.P.
FOAMEX-JPS CAPITAL CORPORATION
FOAMEX INTERNATIONAL INC.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation)
1-11432 05-0475617
1-11436 22-3182164
33-82028 13-3770906
33-82028-01 13-3770901
0-22624 05-0473908
(Commission File Number) (I.R.S. Employer Identification No.)
1000 Columbia Avenue,
Linwood, PA 19061
(Address of principal executive offices) (Zip Code)
(610) 859-3000
(Registrant's telephone number, including area code)
N/A
(Former name or former address, if changed since last report)
<PAGE>
ITEM 5. Other Events.
On May 12, 1997, Foamex International Inc. ("FII") issued a press
release announcing a refinancing plan designed to improve its financial and
operating flexibility and reduce interest expense. As part of this refinancing
plan, Foamex L.P. ("Foamex"), a 99% owned subsidiary of FII, commenced tender
offers with concurrent consent solicitations for a total of $489.7 million of
aggregate principal of public debt. A copy of such press release is filed
herewith as exhibit 99.1 and is incorporated herein by reference.
On May 28, 1997, Foamex, Foamex Capital Corporation ("FCC"), Foamex-JPS
Automotive L.P. ("FJPS"), Foamex-JPS Capital Corporation ("FJCC") and FII
entered into supplements (the "Supplemental Indentures") to the indentures
relating to the following issues of notes (the "Notes"): (a) the following
securities of Foamex and FCC: (i) 9-1/2% Senior Secured Notes due 2000 (the
"Senior Secured Notes"); (ii) 11-1/4% Senior Notes due 2002 (the "Senior
Notes"); (iii) 11-7/8% Senior Subordinated Debentures due 2004; and (iv) 11-7/8%
Senior Subordinated Debentures due 2004, Series B; and (b) the following
securities of FJPS and FJCC: Senior Secured Discount Debentures due 2004, Series
B (the "Discount Debentures"). The Supplemental Indentures, which are filed
herewith as exhibits 4.1 through 4.5, became effective on May 28, 1997, but the
proposed amendments for each issue of Notes will not become operative until the
date upon which the tender of all validly tendered Notes of that issue is
accepted.
The Supplemental Indentures provide for, among other things, (i) the
elimination of substantially all restrictive covenants, (ii) the removal from
the definition of events of default of all events other than nonpayment and
certain bankruptcy events, (iii) in the case of each of the Senior Secured
Notes, the Senior Notes, and the Discount Debentures, (A) the granting of a
shared lien in the collateral for such issue of Notes, with payment priority
preserved for the holders of the Notes, (B) the appointment of the agent for the
contemplated bank financing as the collateral agent for all collateral securing
both such issue of Notes and the bank financing, and (C) the execution of an
intercreditor agreement.
On May 28, 1997, FII issued a press release announcing the execution
and effects of the Supplemental Indentures. A copy of such press release is
filed herewith as exhibit 99.2 and is incorporated herein by reference.
ITEM 7. Financial Statements and Exhibits.
(a) Financial Statements of Business Acquired: None
(b) Pro Forma Financial Information: None
(c) Exhibits:
4.1 Fourth Supplemental Indenture, dated as of May 28,
1997, by and among Foamex and FCC, as Issuers, FII, as
Parent Guarantor, General Felt Industries, Inc.
("GFI"), as Guarantor, and Fleet National Bank
("Fleet"), as Trustee.
2
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4.2 Sixth Supplemental Indenture, dated as of May 28, 1997,
by and among Foamex and FCC, as Issuers, FII, as Parent
Guarantor, GFI, as Guarantor, and Fleet, as Trustee.
4.3 Fifth Supplemental Indenture, dated as of May 28, 1997,
by and among Foamex and FCC, as Issuers, FII, as Parent
Guarantor, GFI, as Guarantor, and Fleet, as Trustee.
4.4 Third Supplemental Indenture, dated as of May 28,
1997, by and among Foamex and FCC, as Issuers, GFI, as
Guarantor, and U.S. Trust Company of Texas, N.A., as
Trustee.
4.5 First Supplemental Indenture, dated as of May 28, 1997,
by and among FJPS and FJCC, as Issuers, FII, as
Guarantor, and Fleet, as Trustee.
99.1 Press Release dated May 12, 1997.
99.2 Press Release dated May 28, 1997.
3
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
FOAMEX L.P.
By: FMXI, Inc.
General Partner
DATE: June 3, 1997 By: /s/ Kenneth R. Fuette
-----------------------------
NAME: Kenneth R. Fuette
TITLE:Senior Vice President
of Finance
FOAMEX CAPITAL CORPORATION
DATE: June 3, 1997 By: /s/ Kenneth R. Fuette
-----------------------------
NAME: Kenneth R. Fuette
TITLE: Treasurer, Chief
Financial Officer
and Chief Accounting
Officer
FOAMEX-JPS AUTOMOTIVE L.P.
By: FJGP Inc.
General Partner
DATE: June 3, 1997 By: /s/ Kenneth R. Fuette
-----------------------------
NAME: Kenneth R. Fuette
TITLE:Senior Vice President
of Finance
FOAMEX-JPS CAPITAL CORPORATION
DATE: June 3, 1997 By: /s/ Kenneth R. Fuette
-----------------------------
NAME: Kenneth R. Fuette
TITLE: Senior Vice President
of Finance
FOAMEX INTERNATIONAL INC.
DATE: June 3, 1997 By: /s/ Kenneth R. Fuette
-----------------------------
NAME: Kenneth R. Fuette
TITLE:Senior Vice President
of Finance, Chief
Financial Officer and
Chief Accounting
Officer
4
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EXHIBIT INDEX
Exhibit No. Document
- ----------- --------
4.1 Fourth Supplemental Indenture, dated as of May 28, 1997, by and
among Foamex and FCC, as Issuers, FII, as Parent Guarantor, General
Felt Industries, Inc. ("GFI"), as Guarantor, and Fleet National
Bank ("Fleet"), as Trustee.
4.2 Sixth Supplemental Indenture, dated as of May 28, 1997, by and
among Foamex and FCC, as Issuers, FII, as Parent Guarantor, GFI, as
Guarantor, and Fleet, as Trustee.
4.3 Fifth Supplemental Indenture, dated as of May 28, 1997, by and
among Foamex and FCC, as Issuers, FII, as Parent Guarantor, GFI, as
Guarantor, and Fleet, as Trustee.
4.4 Third Supplemental Indenture, dated as of May 28, 1997, by and
among Foamex and FCC, as Issuers, GFI, as Guarantor, and U.S. Trust
Company of Texas, N.A., as Trustee.
4.5 First Supplemental Indenture, dated as of May 28, 1997, by and
among FJPS and FJCC, as Issuers, FII, as Guarantor, and Fleet, as
Trustee.
99.1 Press Release dated May 12, 1997.
99.2 Press Release dated May 28, 1997.
5
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
FOAMEX L.P. AND FOAMEX CAPITAL CORPORATION, as Issuers
FOAMEX INTERNATIONAL INC., as Parent Guarantor and
GENERAL FELT INDUSTRIES, INC., as Guarantor
AND
FLEET NATIONAL BANK
as Trustee
FOURTH SUPPLEMENTAL INDENTURE
Dated as of May 28, 1997
$160,000,000
9-1/2% Senior Secured Notes
due 2000
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
1
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FOURTH SUPPLEMENTAL INDENTURE
THIS FOURTH SUPPLEMENTAL INDENTURE (the "Fourth Supplemental
Indenture"), dated as of May 28, 1997, by and among Foamex L.P., a Delaware
limited partnership ("Foamex"), Foamex Capital Corporation, a Delaware
corporation wholly-owned by Foamex ("FCC"; Foamex and FCC collectively referred
to as the "Issuers"), Foamex International Inc., a Delaware corporation ("FII"),
as Parent Guarantor, General Felt Industries, Inc., a Delaware corporation
wholly-owned by Foamex ("GFI"), as Guarantor, and Fleet National Bank (formerly
known as Shawmut Bank, N.A.), as Trustee (the "Trustee").
WHEREAS, Foamex, FCC, GFI and the Trustee executed an indenture,
dated as of June 3, 1993 (the "Original Indenture"), relating to the Issuers'
9-1/2 % Senior Secured Notes due 2000 (the "Securities"); and
WHEREAS, Foamex, FCC, GFI, Perfect Fit Industries Inc., a Delaware
corporation ("PFI"), and the Trustee amended the Original Indenture by entering
into a First Supplemental Indenture dated as of November 18, 1993 in order to
add PFI as a Guarantor in accordance with Section 4.07 and Section 9.01(2) of
the Original Indenture; and
WHEREAS, Foamex, FCC, FII, GFI, PFI and the Trustee further amended
the Original Indenture, as supplemented by the First Supplemental Indenture, by
entering into a Second Supplemental Indenture, dated as of December 14, 1993 in
order to add FII as a Parent Guarantor in accordance with Section 9.01(4) and
Section 11.02 of the Original Indenture; and
WHEREAS, Foamex, FCC, FII, GFI, PFI and the Trustee further amended
the Original Indenture, as supplemented by the First Supplemental Indenture and
the Second Supplemental Indenture by entering into a Third Supplemental
Indenture (the Original Indenture, as supplemented by the First Supplemental
Indenture, the Second Supplemental Indenture and the Third Supplemental
Indenture, the "Indenture"), dated as of August 1, 1996 to unconditionally
release and discharge PFI from all its obligations as a Guarantor under the
Indenture, in accordance with Section 9.01(2) and Section 12.05 of the
Indenture; and
WHEREAS, Article 9.02 of the Indenture provides that Foamex, FCC,
any Guarantor and the Trustee may execute and deliver one or more supplemental
indentures, with the consent of the Holders (as defined in the Indenture) of at
least a majority in principal amount of the outstanding Securities to, among
other things, change or eliminate certain provisions of the Indenture; and
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WHEREAS, Foamex, FCC, FII, GFI and the Trustee desire to amend the
Indenture for the purpose of changing and eliminating certain of such
provisions; and
WHEREAS, the Issuers' have received consents to such modifications
from the Holders of at least a majority in principal amount of the outstanding
Securities; and
WHEREAS, all conditions precedent provided for in the Indenture
relating to this Fourth 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, FII, as Parent Guarantor,
GFI, as Guarantor, and the Trustee for the benefit of each other and for the
equal and ratable benefit of the Holders of the Securities agree as follows:
ARTICLE I.
EFFECTIVENESS AND EFFECT
Section 1.1 Effectiveness and Effect.
-----------------------
This Fourth Supplemental Indenture shall take effect on the date
hereof, provided, however, that the amendments provided for in Article Two
hereof shall become operative only upon, and simultaneously with, the date on
which the tenders of Notes (as such term is defined in the Offer as defined
below) are accepted pursuant to Foamex's Offer to Purchase and Consent
Solicitation, dated May 12, 1997 (as the same may have been amended, extended or
otherwise modified) (the "Offer"), and such amendments provided for in Article
Two hereof shall have no force or effect prior to the operative time specified
in this Section. Subject to the foregoing, the provisions set forth in this
Fourth Supplemental Indenture shall be deemed to be, and shall be construed as
part of, the Indenture. All references to the Indenture in the Indenture or in
any other agreement, document or instrument delivered in connection therewith or
pursuant thereto shall be deemed to refer to the Indenture as amended by this
Fourth Supplemental Indenture. Except as amended hereby, the Indenture shall
remain in full force and effect.
ARTICLE II.
AMENDMENT OF THE INDENTURE
Section 2.1 Deletion of Certain Provisions.
------------------------------
Each of the following provisions of the Indenture is hereby deleted
and eliminated in its entirety, without any redesignation of any other provision
of the Indenture:
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ss. 4.03 SEC Reports
ss. 4.04 Compliance Certificate
ss. 4.05 Taxes
ss. 4.06 Stay, Extension and Usury Laws
ss. 4.07 Limitation on Restricted Payments
ss. 4.08 Limitation on Dividend and Other Payment
Restrictions Affecting Subsidiaries
ss. 4.09 Limitation on Additional Debt
ss. 4.11 Limitation on Transactions With Affiliates
ss. 4.12 Limitation on Liens
ss. 4.13 Partnership and Corporate Existence
ss. 4.14 Liquidation
ss. 4.16 Amendments to Agreements
ss. 4.17 Maintenance of Properties
ss. 4.18 Maintenance of Insurance
ss. 4.19 Foreign Subsidiaries
All references in the Indenture, as amended by this Section 2.1, to
any of the provisions deleted and eliminated as provided above shall also be
deemed deleted and eliminated.
Section 2.2 Amendment of Section 4.10.
-------------------------
Section 4.10 of the Indenture is hereby amended and restated to read
in its entirety as follows:
"Section 4.10. Asset Sales.
------------- -----------
(a) To the extent that the assets which are the subject
of any Asset Sale constitute Collateral, the Net Proceeds thereof
shall, to the extent permitted by law, be subject to a perfected
Lien in favor of the Trustee, which Lien shall have the same
priority as the Lien on the Collateral which was the subject of such
Asset Sale.
(b) To the extent that assets subject to an Asset Sale
consist of Collateral, the Issuers shall apply 100% of the Net
Proceeds thereof to (i) an offer to redeem outstanding Securities at
101% of the principal amount thereof or (ii) the payment of
principal, premium, if any, and accrued interest with respect to an
optional redemption of the Securities, as and to the extent then
permitted under Section 3.07 hereof; provided that if such
Collateral is subject to a Lien which is and is permitted to be pari
passu with the Lien in favor of the Trustee, the Issuers shall only
be required to apply a pro rata portion of such Net Proceeds to the
offer or redemption as set forth in this Section 4.10(b). To the
extent that assets subject to an Asset Sale are not, and are not
required to be, subject to a Lien in favor of the Trustee, the
Issuers shall apply 100% of the Net Proceeds thereof to the
prepayment of Obligations of Foamex and its subsidiaries outstanding
in respect of or
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under the Credit Agreement and the Senior Note Indenture to the
extent required thereunder. If (x) no Obligations of Foamex or its
subsidiaries are outstanding in respect of or under the Credit
Agreement or the Senior Note Indenture or (y) the holders of such
Indebtedness entitled to receive payment elect not to receive the
payments provided for in the previous sentence, or (z) the
application of such Net Proceeds results in the complete prepayment
of all such Indebtedness, then such Net Proceeds or any remaining
portion thereof will be required to be applied by the Issuers to (i)
an offer to redeem outstanding Securities at 101% of the principal
amount thereof or (ii) the payment of principal, premium, if any,
and accrued interest with respect to an optional redemption of the
Securities as and to the extent then permitted under Section 3.07
hereof.
(c) An offer to redeem the Securities pursuant to this
Section 4.10 shall be made pursuant to the provisions of Section
3.09 hereof. Simultaneously with the notification of such offer of
redemption to the Trustee as required by Sections 3.01, 3.03 and
3.09 hereof, the Issuers shall provide the Trustee with an Officers'
Certificate setting forth the information required to be included
therein by Section 3.01 hereof and, in addition, setting forth the
calculations used in determining the amount of Net Proceeds to be
applied to the redemption of Securities.
(d) Notwithstanding any provision of this Section 4.10
to the contrary, the Issuers shall have no obligation to make an
offer to redeem the Securities if and to the extent that (i) the
Issuers or any of their subsidiaries has a bona fide intent to
reinvest the Net Proceeds from the Asset Sale in another asset or
business in the same or similar lines of business as Foamex and its
subsidiaries (the "Replacement Assets") and a definitive agreement
to reinvest such Net Proceeds is executed within 180 days after the
receipt thereof, (ii) with respect to any Net Proceeds consisting of
the proceeds of insurance paid on account of the loss of or damage
to any property, or compensation or other proceeds for any property
taken by condemnation, eminent domain or similar proceedings, such
Net Proceeds are applied as provided in subsection (d)(i) above or
applied to reimburse the applicable Issuer or any of their
subsidiaries for expenditures made, and costs incurred, to repair,
rebuild, replace or restore the property subject to such loss,
damage or taking and (iii) if the assets which were the subject of
such Asset Sale constitute Collateral, such Replacement Assets are
subject to a perfected Lien in favor of the Trustee, which Lien has
the same priority as the Collateral which was the subject of such
Asset Sale; provided, however, that, in the event that the Net
Proceeds resulting from any Asset Sale, after giving effect to the
reinvestment, if any, pursuant to this Section 4.10(d) or the
application of such Net Proceeds to an offer to repay or
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redeem Indebtedness as required by this Section 4.10, are less than
$5,000,000, the application of such remaining Net Proceeds to a
redemption or offer to purchase pursuant to the foregoing provisions
may be deferred until such time as such remaining Net Proceeds, plus
the aggregate amount of Net Proceeds resulting from any prior or
subsequent Asset Sale or Asset Sales not otherwise reinvested as
provided herein or applied to make an offer to repay or redeem
Indebtedness as required herein, are at least equal to $5,000,000 at
which time the Issuers shall apply all such Net Proceeds to a
redemption or offer to purchase pursuant to Section 4.10(b) hereof;
provided, further, that to the extent that the Net Proceeds of any
Asset Sale of assets constituting Collateral are not required to be
applied to the Securities or any other Indebtedness of the Issuers
secured by a pari passu Lien on such Collateral, then the Issuers
may apply such Net Proceeds to the prepayment of any other
Indebtedness of the Issuers to the extent required, and any Net
Proceeds remaining in the Collateral Account after all such offers
or redemptions required or permitted by the Indenture shall be held
in the Collateral Account as Collateral and shall be permitted to be
reinvested by the Issuers at any time pursuant to this Section
4.10(d)."
Section 2.3 Amendment of Section 5.01.
----------- -------------------------
Section 5.01 of the Indenture is hereby amended and restated to read
in its entirety as follows:
"Section 5.01. When Foamex or FCC May Merge, etc.
-------------- ----------------------------------
Neither Foamex nor FCC will consolidate or merge with or
into (whether or not Foamex or FCC, as the case may be, is the
surviving person), or sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its properties or
assets in one or more related transactions to, another corporation,
person or entity unless: the person formed by or surviving any such
consolidation or merger (if other than Foamex or FCC, as the case
may be) or the person to which such sale, assignment, transfer,
lease, conveyance or other disposition will have been made assumes
all the obligations of the Issuers, pursuant to a supplemental
indenture and appropriate Collateral Documents in a form reasonably
satisfactory to the Trustee, under the Securities, this Indenture
and the Collateral Documents.
The Issuers shall deliver to the Trustee prior to the
consummation of the proposed transaction an Officers' Certificate to
the foregoing effect and an Opinion of Counsel, stating that the
proposed transaction and such supplemental indenture comply with
this Indenture. The Trustee shall be entitled to conclusively rely
upon such Officers' Certificate and Opinion of Counsel."
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Section 2.4 Amendment of Section 6.01.
--------------------------
Section 6.01 of the Indenture is hereby amended and restated to read
in its entirety as follows:
"Section 6.01. Events of Default.
-----------------
An "Event of Default" occurs if:
(1) the Issuers default in the payment of interest on
any Security when the same becomes due and payable and the Default
continues for a period of 30 days;
(2) the Issuers default in the payment of the principal
of any Security when the same becomes due and payable at maturity,
upon redemption, in connection with a Change of Control or
otherwise;
(3) Intentionally omitted;
(4) Intentionally omitted;
(5) Intentionally omitted;
(6) Foamex, FCC or any of their respective subsidiaries
pursuant to or within the meaning of any Bankruptcy Law:
(a) commences a voluntary case,
(b) consents to the entry of an order for
relief against it in an involuntary case,
(c) consents to the appointment of a
Custodian of it or for all or substantially all of its
property,
(d) makes a general assignment for the
benefit of its creditors,
(e) admits in writing its inability to pay
debts as the same become due; or
(7) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(a) is for relief against Foamex, FCC or any
of their respective subsidiaries in an involuntary case,
(b) appoints a Custodian of Foamex, FCC or
any of their respective subsidiaries or for all or
substantially all of their property,
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(c) orders the liquidation of Foamex, FCC or
any of their respective subsidiaries, and the order or
decree remains unstayed and in effect for 60 days; or
(8) Intentionally omitted.
The term "Bankruptcy Law" means title 11, U.S. Code or
any similar Federal or state law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law."
Section 2.5 Amendment of Section 8.01.
-------------------------
Section 8.01 of the Indenture is hereby amended and restated to read
in its entirety as follows:
"Section 8.01. Termination of Issuers' Obligations.
-----------------------------------
This Indenture and the Collateral Documents shall cease
to be of further effect (except that the Issuers' obligations under
Section 7.07 and 8.04 and the Issuers', Trustee's and Paying Agent's
obligations under Section 8.03 shall survive) when all outstanding
Securities theretofore authenticated and issued have been delivered
(other than destroyed, lost or stolen Securities which have been
replaced or paid) to the Trustee for cancellation and the Issuers
have paid all sums payable by the Issuers hereunder. In addition,
the Issuers may terminate all of their obligations and the
obligations of any Guarantor under this Indenture if the Issuers
deposit in trust with the Trustee or at the option of the Trustee,
with a trustee reasonably satisfactory to the Trustee and the
Issuers under the terms of a trust agreement in form and substance
satisfactory to the Trustee, money or U.S. Government Obligations
sufficient to pay principal and interest on the Securities to
maturity or redemption, as the case may be, and to pay all other
sums payable by them hereunder, provided that (i) the trustee of the
trust shall have been irrevocably instructed to pay such money or
the proceeds of such U.S. Government Obligations to the Trustee and
(ii) the Trustee shall have been irrevocably instructed to apply
such money or the proceeds of such U.S. Government Obligations to
the payment of said principal and interest with respect to the
Securities.
Then, this Indenture shall cease to be of further effect
(except as provided in this paragraph), and all Collateral with
respect to the Securities (other than amounts on deposit in the
trust pursuant to the immediately preceding paragraph) shall be
released. In addition, the Trustee, on demand of the Issuers, shall
execute proper instruments acknowledging confirmation of and
discharge under this Indenture. However, the Issuers' obligations in
Sections 2.03, 2.04, 2.05, 2.06, 2.07, 4.01, 7.07, 7.08,
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8.03 and 8.04, the Guarantors' obligations in Section 12.01 and the
Trustee's and Paying Agent's obligations in Section 8.03 shall
survive until the Securities are no longer outstanding. Thereafter,
only the Issuers' obligations in Section 7.07 and 8.04 and the
Issuers', Trustee's and Paying Agent's obligations in Section 8.03
shall survive.
After such deposit made pursuant to this Section 8.01,
the Trustee shall release all Collateral for the Securities, other
than such deposit, and shall acknowledge in writing the discharge of
the Issuers' and Guarantors' obligations under this Indenture except
for those surviving obligations specified above and the release of
such Collateral.
In order to have money available on a payment date to
pay principal or interest on the Securities, the U.S. Government
Obligations shall be payable as to principal or interest at least
one Business Day before such payment date in such amounts as will
provide the necessary money. U.S. Government Obligations shall not
be callable at the issuer's option."
Section 2.6 Amendment of Article 10.
-----------------------
Article 10 of the Indenture is hereby amended and restated to read
in its entirety as follows:
"ARTICLE 10
COLLATERAL AND SECURITY
-----------------------
Section 10.01. Collateral Documents.
-------------- ---------------------
The due and punctual payment of the principal of,
premium, if any, and interest on the Securities when and as the same
shall be due and payable, whether on an interest payment date, at
maturity, by acceleration, repurchase, redemption or otherwise, and
interest on the overdue principal of and interest (to the extent
permitted by law), if any, on the Securities and performance of all
other Obligations of the Issuers and any Guarantor to the
Securityholders or the Trustee under this Indenture and the
Securities, according to the terms hereunder or thereunder, shall be
secured as provided in the Collateral Documents. Each
Securityholder, by its acceptance of a Security, consents and agrees
to the terms of the Collateral Documents (including, without
limitation, the provisions providing for foreclosure and release of
Collateral) as the same may be in effect or may be amended from time
to time in accordance with the terms thereof and hereof and
authorizes and directs the Trustee to enter into each of the
Collateral Documents and to perform its respective obligations and
exercise its
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respective rights thereunder in accordance therewith. The Issuers
and the Guarantors will do or cause to be done all such acts and
things as may be necessary or proper, or as may be required by the
provisions of the Collateral Documents, to assure and confirm to the
Trustee the security interest in the Collateral contemplated hereby
and by the Collateral Documents, as from time to time constituted,
so as to render the same available for the security and benefit of
this Indenture and of the Securities secured hereby, according to
the intent and purposes herein expressed. The Issuers and each
Guarantor shall take, upon request of the Trustee, any and all
actions reasonably required to cause the Collateral Documents to
create and maintain, as security for the Obligations of the Issuers
and the Guarantors under this Indenture and the Securities, valid
and enforceable, perfected (except as expressly provided therein),
Liens in and on all the Collateral, in favor of the Trustee, and
subject to no other Liens, other than as provided herein and
therein.
Section 10.02. Recording and Opinions.
-------------- ----------------------
(a) The Issuers shall furnish to the Trustee promptly
after the execution and delivery of this Fourth Supplemental
Indenture an Opinion of Counsel either (i) stating that in the
opinion of such counsel all action has been taken with respect to
the recording, registering and filing of this Indenture, financing
statements or other instruments necessary to make effective the Lien
intended to be created by the Collateral Documents, and reciting the
details of such action, or (ii) stating that, in the opinion of such
counsel, no such action is necessary to make such Lien effective.
(b) The Issuers shall furnish to the Trustee within 3
months after each anniversary of the date of this Fourth
Supplemental Indenture, an Opinion of Counsel, dated as of such
date, stating either that (i) in the opinion of such counsel, all
action has been taken with respect to the recording, registering
filing, re-recording, re-registering and refiling of all
supplemental indentures, financing statements, continuation
statements or other instruments of further assurance as is necessary
to maintain the Lien of the Collateral Documents and reciting the
details of such action or (ii) in the opinion of such Counsel, no
such action is necessary to maintain such Lien.
Section 10.03. Release of Collateral.
-------------- ---------------------
(a) Subject to subsections (b), (c) and (d) of this
Section 10.03, Collateral may be released from the Lien and security
interest created by the Collateral Documents at any time or from
time to time at the sole cost and expense of the Issuers (i) upon
payment in full of the Securities in
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accordance with the terms thereof and of this Indenture and all
other Obligations of the Issuers and the Guarantors then due and
owing under this Indenture, the Securities and the Collateral
Documents; (ii) with respect to inventory, upon the sale of such
inventory in the ordinary course of business; (iii) upon the sale or
other disposition of such Collateral constituting an Asset Sale if
such sale or other disposition is not prohibited under this
Indenture and if the Net Proceeds of such sale or other disposition
are applied in accordance with this Indenture; (iv) upon the sale or
other disposition of such Collateral not constituting an Asset Sale
by virtue of clause (v) of the definition of Asset Sales contained
in Section 1.01 of this Indenture; (v) to the extent a Lien is
granted on such Collateral pursuant to clause (vi) of the definition
of Permitted Liens contained in Section 1.01 of this Indenture; (vi)
with respect to amounts in the Collateral Account consisting of Net
Proceeds of Asset Sales, upon the expenditure of such cash if such
expenditure is made in accordance with this Indenture; (vii) with
respect to amounts in the Collateral Account consisting of Excess
Proceeds, upon the written request of either Issuer to the Trustee
to release all or any part of such Excess Proceeds (and without
providing any replacement Collateral) and the certification of such
Issuer that such Excess Proceeds are to be used within 10 days for a
bona fide business purpose, (viii) with respect to amounts in the
Collateral Account consisting of the proceeds of sales of Collateral
to subsidiaries of Foamex that are not Guarantors (at the time of
and immediately following such sale), upon the written request of
either Issuer to the Trustee to release all or any part of such
proceeds so long as such proceeds are immediately used to purchase
Collateral; (ix) with respect to any Permitted Investments, upon the
sale of such Permitted Investments (and without providing any
replacement Collateral); (x) upon the sale of the stock or assets of
a subsidiary as provided in clause (viii) of the penultimate
paragraph of Section 4.07 hereof; (xi) with respect to the GFI Note
or any intercompany note evidencing a loan of Excess Proceeds, upon
the repayment, forgiveness or other termination of such note; (xii)
as provided in Section 8.01; and (xiii) as provided in Section
10.09; provided that, with respect to clauses (i), (iii), (iv), (v),
(vi), (vii), (viii), (x), (xi), (xii) and (xiii) above, the Trustee
shall not release any Lien on any Collateral pursuant to such
clauses unless and until it shall have received from the Company an
Officers' Certificate certifying that all conditions precedent
hereunder have been met and such other documents required by Section
10.04 hereof. Upon compliance with the above provisions, the Trustee
shall execute, deliver or acknowledge any necessary or proper
instruments of termination, satisfaction or release to evidence the
11
<PAGE>
release of any Collateral permitted to be released pursuant to this
Indenture or the Collateral Documents.
(b) Notwithstanding any provision of Section 10.04 to
the contrary, the disposition of inventory in the ordinary course of
the Issuers' or the Guarantors' businesses and the release of Excess
Proceeds in the ordinary course of the Issuers' or the Guarantors'
businesses, as applicable, may be made without delivery to the
Collateral Trustee of certificates required by Section 314(d) of the
TIA. However, in lieu of such certificates, the Issuers shall
deliver semi-annual Officers' Certificates to the Trustee to the
effect that all such dispositions have been made in the ordinary
course of the Issuers' or the Guarantors' businesses, as applicable,
and that the proceeds therefrom have been applied in a manner
permitted by this Indenture. The Trustee shall, in the absence of
negligence or bad faith on its part, be entitled to rely on
Officers' Certificates and Opinions of Counsel with respect to the
Issuers' and the Guarantors' compliance with the provisions of
Section 10.03 hereof.
(c) At any time when a Default or Event of Default shall
have occurred and be continuing and the maturity of the Notes shall
have been accelerated (whether by declaration or otherwise) and the
Trustee shall have delivered a notice of acceleration to the
Issuers, no release of Collateral pursuant hereto shall be effective
as against the Securityholders.
(d) The release of any Collateral from the terms of the
Collateral Documents will not be deemed to impair the security under
this Indenture in contravention of the provisions hereof and of the
Collateral Documents if and to the extent the Collateral is released
pursuant to this Indenture and the Collateral Documents.
(e) Notwithstanding anything to the contrary contained
in this Indenture or the Collateral Documents, in addition to any
other Liens, any of the Issuers or any Guarantor may grant
additional Liens on the Collateral in favor of any third person, as
provided in Section 10.09 and upon the granting of any such Lien,
the Trustee is authorized (i) to amend the Collateral Documents to
reflect the grant of such Liens and (ii) to enter into an
intercreditor agreement, as set forth in Section 10.09(c).
Section 10.04. Certificates of the Company.
------------- ---------------------------
The Issuers will furnish to the Trustee prior to each
proposed release of Collateral pursuant to the Collateral Documents
other than by reason of transactions referred to in the Section
10.03(b) above, all documents
12
<PAGE>
required by Section 314(d) of the TIA. The Trustee may, to the
extent permitted by Sections 7.01 and 7.02 hereof, accept as
conclusive evidence of compliance with the foregoing provisions the
appropriate statements contained in such instruments. Any
certificate or opinion required by TIA ss. 314(d) may be made by an
Officer of the General Partner, on behalf of Foamex (or Foamex, if
Foamex is a corporation) or FCC, as the case may be, except in cases
where TIA ss. 314(d) requires that such certificate or opinion be
made by an independent engineer, appraiser or other expert within
the meaning of Section 314(d) of the TIA.
Section 10.05. Authorization of Actions to be Taken by the Trustee
Under the Collateral Documents and the Intercreditor Agreement.
Each Securityholder, by acceptance of a Security,
consents and agrees to the terms of the Intercreditor Agreement as
the same may be in effect or may be amended from time to time in
accordance with the terms thereof and hereof and authorizes and
directs the Trustee to enter into the Intercreditor Agreement and to
perform its respective obligations and exercise its respective
rights thereunder in accordance therewith. The Trustee may, in its
sole discretion and without the consent of the Securityholders, on
behalf of the Securityholders, take all actions it deems necessary
or appropriate in order to (a) enforce any of the terms of the
Collateral Documents and the Intercreditor Agreement and (b) collect
and receive any and all amounts payable in respect of the
Obligations of the Issuers and the Guarantors hereunder. The Trustee
shall have the power to institute and to maintain such suits and
proceedings as it may deem expedient to prevent any impairment of
the Collateral by any acts that may be unlawful or in violation of
the Collateral Documents, the Intercreditor Agreement or this
Indenture, and such suits and proceedings as the Trustee may deem
expedient to preserve or protect its interests and the interests of
the Securityholders in the Collateral (including power to institute
and maintain suits or proceedings to restrain the enforcement of or
compliance with any legislative or other governmental enactment,
rule or order that may be unconstitutional or otherwise invalid if
the enforcement of, or compliance with, such enactment, rule or
order would impair the security interest hereunder or be prejudicial
to the interests of the Securityholders or of the Trustee).
Section 10.06. Authorization of Receipt of Funds by the Trustee
Under the Collateral Documents and the Intercreditor Agreement.
The Trustee is authorized to receive any funds for the
benefit of the Securityholders distributed under the Collateral
Documents and the Intercreditor Agreement, and to
13
<PAGE>
make further distributions of such funds to the Securityholders
according to the provisions of this Indenture, and the Collateral
Documents.
Section 10.07. Conflicts.
------------- ---------
As between the Credit Agent and the Trustee, each of
this Indenture and the Collateral Documents is expressly made
subject to the Intercreditor Agreement.
Section 10.08. Permitted Investments.
------------- ---------------------
The Trustee will cooperate with the Issuers or any
subsidiaries in ensuring that any Permitted Investments held by or
pledged to the Trustee as Collateral may be freely and promptly sold
or disposed of by the Issuers or such subsidiaries.
Section 10.09. Authorization of Additional Liens and Actions to be
Taken in Connection Therewith.
(a) The Issuers or any Guarantor or any subsidiary
thereof may grant additional Liens on the Collateral to secure
indebtedness permitted pursuant to the terms of this Indenture so
long as the Securityholders retain the right to receive payment upon
a disposition of the Collateral prior to the holders of any such
other Liens.
(b) Upon the request of the Issuers or any Guarantor,
and subject to Section 10.09(a), the Trustee shall transfer
possession of the Collateral or its rights under any Collateral
Document to the holder of any Lien permitted pursuant to the terms
of Sections 10.03(e) and/or 10.09(a), and shall amend the Collateral
Documents and the Intercreditor Agreement to reflect the granting of
such a Lien, the transfer of such Collateral and/or rights and the
terms of any intercreditor agreement entered into pursuant to
Section 10.09(c).
(c) Upon the request of the Issuers or any Guarantor,
and subject to Section 10.09(a), the Trustee shall enter into an
intercreditor agreement providing for, among other things, (i) the
appointment of an agent as the collateral agent for any Collateral
which is subject to a Lien in favor of the Trustee and in favor of
any third party and (ii) the right of such collateral agent (A) to
take such action which the collateral agent, at the direction of the
holders of a majority of the outstanding principal amount of
Indebtedness secured by such Collateral, deems necessary or
desirable to preserve or protect the Collateral or to enhance the
likelihood or maximize the amount of repayment of the Indebtedness
secured thereby, including delaying any proceedings with respect to
the realization on such Collateral, and (B) to manage, supervise and
otherwise deal
14
<PAGE>
with the Collateral. Any such intercreditor agreement shall deemed
to be a "Collateral Document" for purposes of this Indenture, and in
the event of a conflict between any such intercreditor agreement and
any other Collateral Document, the terms of such intercreditor
agreement shall govern.
(d) The Trustee shall, in the absence of negligence or
bad faith on its part, be entitled to rely on Officers' Certificates
and Opinions of Counsel with respect to the Issuers' and the
Guarantors' compliance with the provisions of Section 10.09 hereof."
Section 2.7 Amendment of Section 12.02.
----------- --------------------------
Section 12.02 of the Indenture is hereby amended and restated to
read in its entirety as follows:
"Section 12.02. When a Guarantor May Merge, etc.
-------------- -------------------------------
No Guarantor will consolidate or merge with or into
(whether or not such Guarantor is the surviving person), another
corporation, person or entity whether or not affiliated with such
Guarantor (but excluding Contributions to subsidiaries and any
consolidation or merger if the surviving corporation is no longer a
subsidiary) unless: the person formed by or surviving any such
consolidation or merger (if other than such Guarantor) assumes all
the obligations of such Guarantor pursuant to a supplemental
indenture and appropriate Collateral Documents in a form reasonably
satisfactory to the Trustee, under the Securities, this Indenture
and the Collateral Documents.
The Guarantor shall deliver to the Trustee prior to the
consummation of the proposed transaction an Officers' Certificate to
the foregoing effect and an Opinion of Counsel, stating that the
proposed transaction and such supplemental indenture comply with
this Indenture. The Trustee shall be entitled to conclusively rely
upon such Officers' Certificate and Opinion of Counsel."
ARTICLE III.
MISCELLANEOUS
Section 3.1 Counterparts.
----------- ------------
This Fourth 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.
15
<PAGE>
Section 3.2 Severability.
----------- ------------
In the event that any provision in this Fourth 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 Fourth Supplemental Indenture
by Foamex, FCC, FII, GFI and the Trustee shall bind their successors and
assigns, whether so expressed or not.
Section 3.5 GOVERNING LAW.
----------- -------------
THIS FOURTH 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 Fourth Supplemental Indenture.
----------- ---------------------------------------
Except as amended by this Fourth 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
Fourth 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, FII and GFI, and the
Trustee shall not be responsible or accountable in any way whatsoever for or
with respect to the validity or execution or sufficiency of this Fourth
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.]
16
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Supplemental Indenture to be executed by their duly authorized representative as
of the date hereof.
ATTEST: FOAMEX CAPITAL CORPORATION
/s/TAMBRA KING
____________________ By: /s/PHILIP N. SMITH, JR.
___________________________
Name: Philip N. Smith, Jr.
Title: Vice President
ATTEST: FOAMEX L.P.
/s/TAMBRA KING
____________________ By: FMXI, INC.
its Managing General Partner
By: /s/PHILIP N. SMITH, JR.
__________________________
Name: Philip N. Smith, Jr.
Title: Vice President
ATTEST: FOAMEX INTERNATIONAL INC.
/s/TAMBRA KING
____________________ By: /s/PHILIP N. SMITH, JR.
__________________________
Name: Philip N. Smith, Jr.
Title: Vice President
ATTEST: FLEET NATIONAL BANK
as Trustee
/s/SUSAN C. MERKER
____________________ By: /s/ELIZABETH C. HAMMER
__________________________
Name: Elizabeth C. Hammer
Title: Vice President
ATTEST: GENERAL FELT INDUSTRIES, INC.
/s/TAMBRA KING
____________________ By: /s/ROBERT H. NELSON
__________________________
Name: Robert H. Nelson
Title: Vice President
17
<PAGE>
STATE OF NEW YORK
COUNTY OF NEW YORK
BEFORE ME, the undersigned, a Notary Public in and for said State and
County, on this day personally appeared PHILIP N. SMITH, JR., the Vice President
of FOAMEX CAPITAL CORPORATION, known to me to be the person and officer whose
name is subscribed to the foregoing instrument, and acknowledged to me that the
same was the act of the said Foamex Capital Corporation, and that he executed
the same as the act of such corporation with the authority of the board of
directors for the purposes and consideration therein expressed and in the
capacity therein stated.
/s/ELEANOR McKENNA
-------------------------------
Notary Public, State of New York
Printed Name: Eleanor McKenna
My Commission Expires:
Oct. 9, 1998
- ---------------------
STATE OF NEW YORK
COUNTY OF NEW YORK
BEFORE ME, the undersigned, a Notary Public in and for said State and
County, on this day personally appeared PHILIP N. SMITH, JR., the Vice President
of FMXI, INC., the Managing General Partner of Foamex L.P., a Delaware limited
partnership, known to me to be the person and officer whose name is subscribed
to the foregoing instrument, and acknowledged to me that the same was the act of
the said FMXI, Inc., and that he executed the same as the act of such
corporation with the authority of the board of directors for the purposes and
consideration therein expressed and in the capacity therein stated.
/s/ELEANOR McKENNA
-------------------------------
Notary Public, State of New York
Printed Name: Eleanor McKenna
My Commission Expires:
OCT. 9, 1998
- ---------------------
18
<PAGE>
STATE OF NEW YORK
COUNTY OF NEW YORK
BEFORE ME, the undersigned, a Notary Public in and for said State and
County, on this day personally appeared PHILIP N. SMITH, JR., the Vice President
of FOAMEX INTERNATIONAL INC., known to me to be the person and officer whose
name is subscribed to the foregoing instrument, and acknowledged to me that the
same was the act of the said Foamex International Inc., and that he executed the
same as the act of such corporation with the authority of the board of directors
for the purposes and consideration therein expressed and in the capacity therein
stated.
/s/ELEANOR McKENNA
-------------------------------
Notary Public, State of New York
Printed Name: Eleanor McKenna
My Commission Expires:
OCT. 9, 1998
- ---------------------
STATE OF NEW YORK
COUNTY OF NEW YORK
BEFORE ME, the undersigned, a Notary Public in and for said State and
County, on this day personally appeared ELIZABETH C. HAMMER, Vice President of
FLEET NATIONAL BANK (formerly known as Shawmut Bank, N.A.), known to me to be
the person and officer whose name is subscribed to the foregoing instrument, and
acknowledged to me that the same was the act of the said bank and that he
executed the same as the act of such bank for the purposes and consideration
therein expressed and in the capacity therein stated.
/s/KAREN R. FELT
----------------------------------
Notary Public, State of Connecticut
Printed Name: Karen R. Felt
My Commission Expires:
02-28-99
- ---------------------
19
<PAGE>
STATE OF NEW YORK
COUNTY OF NEW YORK
BEFORE ME, the undersigned, a Notary Public in and for said State and
County, on this day personally appeared ROBERT H. NELSON, the Vice President of
GENERAL FELT INDUSTRIES, INC., known to me to be the person and officer whose
name is subscribed to the foregoing instrument, and acknowledged to me that the
same was the act of the said General Felt Industries, Inc., and that he executed
the same as the act of such corporation with the authority of the board of
directors for the purposes and consideration therein expressed and in the
capacity therein stated.
/s/ELEANOR McKENNA
--------------------------------
Notary Public, State of New York
Printed Name: Eleanor McKenna
My Commission Expires:
OCT. 9, 1998
- ---------------------
20
<PAGE>
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
FOAMEX L.P. AND FOAMEX CAPITAL CORPORATION, as Issuers
FOAMEX INTERNATIONAL INC., as Parent Guarantor
GENERAL FELT INDUSTRIES, INC., as Guarantor
AND
FLEET NATIONAL BANK
as Trustee
SIXTH SUPPLEMENTAL INDENTURE
Dated as of May 28, 1997
$150,000,000
11-1/4% Senior Notes
due 2002
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
SIXTH SUPPLEMENTAL INDENTURE
THIS SIXTH SUPPLEMENTAL INDENTURE (the "Sixth Supplemental Indenture"),
dated as of May 28, 1997, by and among Foamex L.P., a Delaware limited
partnership ("Foamex"), Foamex Capital Corporation, a Delaware corporation
wholly-owned by Foamex ("FCC"; Foamex and FCC collectively referred to as the
"Issuers"), Foamex International Inc., a Delaware corporation ("FII"), as Parent
Guarantor, General Felt Industries, Inc., a Delaware corporation wholly-owned by
Foamex ("GFI"), as Guarantor, and Fleet National Bank (formerly known as The
Connecticut National Bank), as trustee (the "Trustee").
WHEREAS, Foamex, FCC and the Trustee executed an indenture, dated as of
October 13, 1992 (the "Original Indenture"), relating to the Issuers' 11-1/4 %
Senior Notes due 2002 (the "Securities"); and
WHEREAS, Foamex, FCC, GFI, and the Trustee amended the Original
Indenture by entering into a First Supplemental Indenture dated as of March 23,
1993 in order to add GFI as a Guarantor in accordance with Section 4.07 and
Section 9.01(2) of the Original Indenture; and
WHEREAS, Foamex, FCC, GFI, Perfect Fit Industries, Inc., a Delaware
corporation ("PFI") and the Trustee further amended the Original Indenture, as
supplemented by the First Supplemental Indenture, by entering into a Second
Supplemental Indenture, dated as of November 18, 1993 in order to add PFI as a
Guarantor in accordance with Section 4.07 and Section 9.01(2) of the Original
Indenture; and
WHEREAS, Foamex, FCC, FII, GFI, PFI and the Trustee further amended the
Original Indenture, as supplemented by the First Supplemental Indenture and the
Second Supplemental Indenture by entering into a Third Supplemental Indenture,
dated as of December 14, 1993 in order to add FII as a Parent Guarantor in
accordance with Section 9.01(4) and Section 11.02 of the Original Indenture; and
WHEREAS, Foamex, FCC, FII, GFI, PFI and the Trustee further amended the
Original Indenture, as supplemented by the First Supplemental Indenture, the
Second Supplemental Indenture and the Third Supplemental Indenture by entering
into a Fourth Supplemental Indenture, dated as of October 31, 1994 in order to
grant liens on certain real property of Foamex and GFI in favor of the Trustee
in accordance with Section 9.01(4) of the Original Indenture; and
<PAGE>
WHEREAS, Foamex, FCC, FII, GFI, PFI and the Trustee further amended the
Original Indenture, as supplemented by the First Supplemental Indenture, the
Second Supplemental Indenture, the Third Supplemental Indenture and the Fourth
Supplemental Indenture, by entering into a Fifth Supplemental Indenture (the
Original Indenture, as supplemented by the First Supplemental Indenture, the
Second Supplemental Indenture, the Third Supplemental Indenture, the Fourth
Supplemental Indenture and the Fifth Supplemental Indenture, the "Indenture"),
dated as of August 1, 1996 to unconditionally release and discharge PFI from all
its obligations as a Guarantor under the Indenture, in accordance with Section
11.03 of the Indenture; and
WHEREAS, Article 9.02 of the Indenture provides that Foamex, FCC, any
Guarantor and the Trustee may execute and deliver one or more supplemental
indentures, with the consent of the Holders (as defined in the Indenture) of at
least a majority in principal amount of the outstanding Securities to, among
other things, change or eliminate certain provisions of the Indenture; and
WHEREAS, Foamex, FCC, FII, GFI and the Trustee desire to amend the
Indenture for the purpose of changing and eliminating certain of such
provisions; and
WHEREAS, the Issuers have received consents to such modifications from
the Holders of at least a majority in principal amount of the outstanding
Securities; and
WHEREAS, all conditions precedent provided for in the Indenture
relating to this Sixth 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, FII, as Parent Guarantor,
GFI, as Guarantor, and the Trustee for the benefit of each other and for the
equal and ratable benefit of the Holders of the Securities agree as follows:
ARTICLE I.
EFFECTIVENESS AND EFFECT
Section 1.1. Effectiveness and Effect.
This Sixth Supplemental Indenture shall take effect on the date hereof,
provided, however, that the amendments provided for in Article Two hereof shall
become operative only upon, and simultaneously with, the date on which the
tenders of Notes (as such term is defined in the Offer as defined below) are
accepted pursuant to Foamex's Offer to Purchase and Consent Solicitation, dated
May 12, 1997 (as the same may have been amended, extended
<PAGE>
or otherwise modified) (the "Offer"), and such amendments provided for in
Article Two hereof shall have no force or effect prior to the operative time
specified in this Section. Subject to the foregoing, the provisions set forth in
this Sixth Supplemental Indenture shall be deemed to be, and shall be construed
as part of, the Indenture. All references to the Indenture in the Indenture or
in any other agreement, document or instrument delivered in connection therewith
or pursuant thereto shall be deemed to refer to the Indenture as amended by this
Sixth Supplemental Indenture. Except as amended hereby, the Indenture shall
remain in full force and effect.
ARTICLE II.
AMENDMENT OF THE INDENTURE
Section 2.1. Deletion of Certain Provisions.
Each of the following provisions of the Indenture is hereby deleted and
eliminated in its entirety, without any redesignation of any other provision of
the Indenture:
ss. 4.03 SEC Reports
ss. 4.04 Compliance Certificate
ss. 4.05 Taxes
ss. 4.06 Stay, Extension and Usury Laws
ss. 4.07 Limitation on Restricted Payments
ss. 4.08 Limitation on Dividend and Other Payment Restrictions
Affecting Subsidiaries
ss. 4.09 Limitation on Additional Debt
ss. 4.11 Limitation on Transactions With Affiliates
ss. 4.12 Limitation on Liens
ss. 4.13 Partnership and Corporate Existence
ss. 4.14 Liquidation
ss. 4.16 Amendments to Agreements
All references in the Indenture, as amended by this Section 2.1, to any
of the provisions deleted and eliminated as provided above shall also be deemed
deleted and eliminated.
Section 2.2. Amendment of Section 4.10.
Section 4.10 of the Indenture is hereby amended and restated to read in
its entirety as follows:
"Section 4.10. Sale of Assets.
(a) Intentionally Omitted.
(b) The Issuers shall apply 100% of the Net
Proceeds from an Asset Sale to the prepayment of
Obligations
<PAGE>
outstanding in respect of or under the Credit
Agreement (unless the holders thereof elect not to receive such
prepayment) and an offer to redeem a principal amount of the then
outstanding Securities at 101% of the principal amount of such
Securities. Such offer with respect to the Securities shall be equal to
the Net Proceeds from such Asset Sale multiplied by a fraction, the
numerator of which is the principal amount of the Securities then
outstanding (determined as of the close of business on the day
immediately preceding the closing date of the Asset Sale) and the
denominator of which is the principal amount of the Securities then
outstanding plus the aggregate principal amount of funded and unfunded
commitments under the Credit Agreement (determined as of the close of
business on the day immediately preceding the closing date of the Asset
Sale), provided, that if the amount to be applied to Obligations
outstanding in respect of or under the Credit Agreement pursuant to the
foregoing exceeds such outstanding Obligations, the excess amount of
the Net Proceeds shall be applied to the offer with respect to the
Securities. After the Issuers make a repayment or redemption offer
pursuant to Section 3.09, any remaining funds may be used in any manner
not prohibited by the terms of this Indenture.
(c) An offer to redeem the Securities pursuant to
this Section 4.10 shall be made pursuant to the provisions of Section
3.09 hereof. Simultaneously with the notification of such offer of
redemption to the Trustee as required by Sections 3.01, 3.03 and 3.09
hereof, the Issuers shall provide the Trustee with an Officer's
Certificate setting forth the information required to be included
therein by Section 3.01 hereof and, in addition, setting forth the
calculations used in determining the amount of Net Proceeds to be
applied to the redemption of Securities.
(d) Notwithstanding any provision of this Section
4.10 to the contrary, the Issuers shall have no obligation to make an
offer to redeem the Securities if and to the extent that the Issuers
have a bona fide intent to reinvest the Net Proceeds from the Asset
Sale in another asset or business in the same or similar line of
business as Foamex and its subsidiaries and a definitive agreement to
reinvest the Net Proceeds thereof is executed within 180 days after the
receipt thereof; provided, however, that, in the event the Net Proceeds
resulting from any Asset Sale, after giving effect to the reinvestment,
if any, pursuant to this Section 4.10(d), are less than $5,000,000, the
application of such Net Proceeds to a redemption offer pursuant to
Section 4.10(b) may be deferred until such time as such Net Proceeds,
plus the aggregate amount of Net Proceeds resulting from any prior or
subsequent Asset Sale or Asset Sales not otherwise reinvested as
provided in this Section 4.10(d) or applied to a repayment or
redemption offer pursuant to Section 4.10(b), are at least equal to
<PAGE>
$5,000,000, at which time Foamex shall apply all such Net Proceeds to
a redemption offer pursuant to Section 4.10(b)."
Section 2.3. Amendment of Section 5.01.
Section 5.01 of the Indenture is hereby amended and restated to read in
its entirety as follows:
"Section 5.01. When Foamex or FCC May Merge, etc.
Neither Foamex nor FCC will consolidate or merge with
or into (whether or not Foamex or FCC, as the case may be, is the
surviving person), or sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its properties or
assets in one or more related transactions to, another corporation,
person or entity unless the person formed by or surviving any such
consolidation or merger (if other than Foamex or FCC, as the case may
be) or the person to which such sale, assignment, transfer, lease,
conveyance or other disposition will have been made assumes all the
obligations of the Issuers, pursuant to a supplemental indenture in a
form reasonably satisfactory to the Trustee, under the Securities and
this Indenture.
The Issuers shall deliver to the Trustee prior to the
consummation of the proposed transaction an Officers' Certificate to
the foregoing effect and an Opinion of Counsel, stating that the
proposed transaction and such supplemental indenture comply with this
Indenture. The Trustee shall be entitled to conclusively rely upon such
Officers' Certificate and Opinion of Counsel."
Section 2.4. Amendment of Section 6.01.
Section 6.01 of the Indenture is hereby amended and restated to read in
its entirety as follows:
"Section 6.01. Events of Default.
An "Event of Default" occurs if:
(1) the Issuers default in the payment of interest on any
Security when the same becomes due and payable and the Default
continues for a period of 30 days;
(2) the Issuers default in the payment of the principal of any
Security when the same becomes due and payable at maturity, upon
redemption, in connection with a Change of Control or otherwise;
(3) Intentionally omitted;
<PAGE>
(4) Intentionally omitted;
(5) Intentionally omitted;
(6) Foamex, FCC or any of their respective subsidiaries
pursuant to or within the meaning of any Bankruptcy Law:
(a) commences a voluntary case,
(b) consents to the entry of an order for
relief against it in an involuntary case,
(c) consents to the appointment of a
Custodian of it or for all or substantially all of its
property,
(d) makes a general assignment for the
benefit of its creditors,
(e) admits in writing its inability to pay
debts as the same become due; or
(7) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(a) is for relief against Foamex, FCC or
any of their respective subsidiaries in an involuntary case,
(b) appoints a Custodian of Foamex, FCC or
any of their respective subsidiaries or for all or
substantially all of their property,
(c) orders the liquidation of Foamex, FCC
or any of their respective subsidiaries, and the order or
decree remains unstayed and in effect for 60 days.
The term "Bankruptcy Law" means title 11, U.S. Code
or any similar Federal or state law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law."
Section 2.5. Amendment of Section 8.01.
Section 8.01 of the Indenture is hereby amended and restated to read in
its entirety as follows:
"Section 8.01. Termination of Issuers' Obligations.
This Indenture and the Mortgages shall cease to be of
further effect (except that the Issuers' obligations under Section 7.07
and 8.04 and the Issuers', Trustee's and
<PAGE>
Paying Agent's obligations under Section 8.03 shall
survive) when all outstanding Securities theretofore authenticated and
issued have been delivered (other than destroyed, lost or stolen
Securities which have been replaced or paid) to the Trustee for
cancellation and the Issuers have paid all sums payable by the Issuers
hereunder. In addition, the Issuers may terminate all of their
obligations and the obligations of any Guarantor under this Indenture
and the Mortgages if the Issuers deposit in trust with the Trustee or
at the option of the Trustee, with a trustee reasonably satisfactory to
the Trustee and the Issuers under the terms of a trust agreement in
form and substance satisfactory to the Trustee, money or U.S.
Government Obligations sufficient to pay principal and interest on the
Securities to maturity or redemption, as the case may be, and to pay
all other sums payable by them hereunder, provided that (i) the trustee
of the trust shall have been irrevocably instructed to pay such money
or the proceeds of such U.S. Government Obligations to the Trustee and
(ii) the Trustee shall have been irrevocably instructed to apply such
money or the proceeds of such U.S. Government Obligations to the
payment of said principal and interest with respect to the Securities.
Then, this Indenture shall cease to be of further
effect (except as provided in this paragraph), and all Collateral with
respect to the Securities (other than amounts on deposit in the trust
pursuant to the immediately preceding paragraph) shall be released. In
addition, the Trustee, on demand of the Issuers, shall execute proper
instruments acknowledging confirmation of and discharge under this
Indenture and the Mortgages. However, the Issuers' obligations in
Sections 2.03, 2.04, 2.05, 2.06, 2.07, 4.01, 4.06, 7.07, 7.08, 8.03 and
8.04, the Guarantors' obligations in Section 11.01 and the Trustee's
and Paying Agent's obligations in Section 8.03 shall survive until the
Securities are no longer outstanding. Thereafter, only the Issuers'
obligations in Section 7.07 and 8.04 and the Issuers', Trustee's and
Paying Agent's obligations in Section 8.03 shall survive.
After such deposit made pursuant to this Section
8.01, the Trustee shall release all Collateral for the Securities,
other than such deposit, and shall acknowledge in writing the discharge
of the Issuers' and Guarantors' obligations under this Indenture except
for those surviving obligations specified above and the release of such
Collateral.
In order to have money available on a payment date to
pay principal or interest on the Securities, the U.S. Government
Obligations shall be payable as to principal or interest at least one
Business Day before such payment date in such amounts as will provide
the necessary money. U.S.
<PAGE>
Government Obligations shall not be callable at the issuers' option."
Section 2.6. Amendment of Article 13.
Article 13 of the Indenture is hereby amended and restated to read in
its entirety as follows:
"ARTICLE 13.
COLLATERAL AND SECURITY
Section 13.01. Mortgages.
The due and punctual payment of the principal of,
premium, if any, and interest on the Securities when and as the same
shall be due and payable, whether on an interest payment date, at
maturity, by acceleration, repurchase, redemption or otherwise, and
interest on the overdue principal of and interest (to the extent
permitted by law), if any, on the Securities and performance of all
other Obligations of the Issuers and any Guarantor to the
Securityholders or the Trustee under this Indenture and the Securities,
according to the terms hereunder or thereunder, shall be secured as
provided in this Indenture and in the Mortgages. The Trustee is
authorized and directed to enter into each of the Mortgages and to
perform its respective obligations and exercise its respective rights
and obligations (including, without limitation, the provisions
providing for foreclosure and release of Collateral) hereunder and
thereunder in accordance herewith and therewith. Foamex and GFI will do
or cause to be done all such acts and things as may be necessary or
proper, or as may be required by the provisions of the Mortgages, to
assure and confirm to the Trustee the Liens in the Collateral
contemplated hereby and by the Mortgages, as from time to time
constituted, so as to render the same available for the security and
benefit of this Indenture and of the Securities secured thereby,
according to the intent and purposes herein expressed. Foamex and GFI
shall take, upon the request of the Trustee, any and all actions
reasonably required to cause the Mortgages to create and maintain, as
security for the Obligations of Foamex and GFI under this Indenture and
the Securities, valid, enforceable and perfected Liens in and on the
Collateral, in favor of the Trustee, subject, however, to the
provisions of Sections 13.03 and 13.07 hereof.
Section 13.02. Recording and Opinions
(a) The Issuers shall furnish to the Trustee promptly
after the execution and delivery of the Sixth Supplemental Indenture an
Opinion of Counsel either (i)
<PAGE>
stating that in the opinion of such counsel all
action has been taken with respect to the recording, registering and
filing of this Indenture, the Mortgages or other instruments necessary
to make effective the Liens intended to be created by the Mortgages,
and reciting the details of such action, or (ii) stating that, in the
opinion of such counsel, no such action is necessary to make such Liens
effective.
(b) The Issuers shall furnish to the Trustee within
three (3) months after each anniversary of the date of the Sixth
Supplemental Indenture, an Opinion of Counsel, dated as of such date,
stating either that (i) in the opinion of such counsel, all action has
been taken with respect to the recording, registering, filing,
re-recording, re-registering and refiling of all supplemental
indentures, mortgages or other instruments of further assurance as is
necessary to maintain the Liens of the Mortgages and reciting the
details of such action or (ii) in the opinion of such Counsel, no such
action is necessary to maintain such Liens.
Section 13.03. Release of Collateral
(a) Subject to subsections (b) and (c) of this
Section 13.03, Collateral may be released from the Liens created by the
Mortgages at any time or from time to time at the sole cost and expense
of the Issuers (and without providing any replacement Collateral) (i)
upon payment in full of the Securities in accordance with the terms
thereof and of this Indenture and all other Obligations of Foamex and
GFI then due and owing under this Indenture, the Securities and the
Mortgages; (ii) upon the sale or other disposition of such Collateral
constituting an Asset Sale if such sale or other disposition is not
prohibited under this Indenture and if the Net Proceeds of such sale or
other disposition are applied in accordance with this Indenture; (iii)
upon the sale or other disposition of such Collateral not constituting
an Asset Sale by virtue of clause (iii) of the definition of Asset
Sales contained in Section 1.01 of this Indenture; (iv) upon the sale
of the stock or assets of GFI provided that the Trustee shall not
release any Lien on any Collateral pursuant to such clause unless and
until it shall have received from Foamex an Officers' Certificate
certifying that all conditions precedent hereunder have been met and
such other documents required by Section 13.04 hereof; (v) upon the
termination of any leasehold interest of Foamex or GFI as lessee if
such leasehold interest is not extended or renewed; (vi) as provided in
Section 8.01; and (vii) as provided in Section 13.07. Upon compliance
with the above provisions, the Trustee shall execute, deliver or
acknowledge any necessary or proper instruments of termination,
satisfaction or release to evidence the release of any Collateral
permitted to be released pursuant to this Indenture or the Mortgages.
<PAGE>
(b) At any time when an Event of Default shall have
occurred and be continuing and the maturity of the Notes shall have
been accelerated (whether by declaration or otherwise) and the Trustee
shall have delivered a notice of acceleration to the Issuers, no
release of Collateral pursuant hereto shall be effective as against the
Securityholders.
(c) The release of any Collateral from the liens of
the Mortgages will not be deemed to impair the security under this
Indenture in contravention of the provisions hereof and of the
Mortgages if and to the extent the Collateral is released pursuant to
this Indenture and the Mortgages.
(d) Notwithstanding anything to the contrary
contained in this Indenture or the Mortgages, in addition to any other
Liens, any of the Issuers or any Guarantor may grant additional Liens
on the Collateral in favor of any third person, as provided in Section
13.07 and upon the granting of any such Lien, the Trustee is authorized
(i) to amend the Mortgages to reflect the grant of such Liens and (ii)
to enter into an intercreditor agreement, as set forth in Section
13.07(c).
Section 13.04. Certificates of the Issuers
The Issuers will furnish to the Trustee prior to each
proposed release of Collateral pursuant to this Indenture and the
Mortgages all documents required by Section 314(d) of the TIA. The
Trustee may, to the extent permitted by Sections 7.01 and 7.02 hereof,
accept as conclusive evidence of compliance with the foregoing
provisions the appropriate statements contained in such instruments.
Any certificate or opinion required by TIA Section 314(d) may be made
by an Officer of the General Partner, on behalf of Foamex (or Foamex,
if Foamex is a corporation) or FCC, as the case may be, except in cases
where TIA Section 1314(d) requires that such certificate or opinion be
made by an independent engineer, appraiser or other expert within the
meaning of Section 314(d) of the TIA.
Section 13.05. Authorization of Actions to be Taken by the Trustee
Under the Mortgages
The Trustee may, in its sole discretion and without
the consent of the Securityholders, on behalf of the Securityholders,
take all actions it deems necessary or appropriate in order to (a)
enforce any of the terms of the Mortgages and (b) collect and receive
any and all amounts payable in respect of the Obligations of the
Issuers and the Guarantors hereunder. The Trustee shall have the power
to institute and to maintain such suits and proceedings as it
<PAGE>
may deem expedient to prevent any impairment of the
Collateral by any acts that may be unlawful or in violation of the
Mortgages, and such suits and proceedings as the Trustee may deem
expedient to preserve or protect its interests and the interests of the
Securityholders in the Collateral (including power to institute and
maintain suits or proceedings to restrain the enforcement of or
compliance with any legislative or other governmental enactment, rule
or order that may be unconstitutional or otherwise invalid if the
enforcement of, or compliance with, such enactment, rule or order would
impair the Liens of the Mortgages).
Section 13.06. Authorization of Receipt of Funds by the Trustee Under
the Mortgages
The Trustee is authorized to receive any funds for
the benefit of the Securityholders distributed under the Mortgages, and
to make further distributions of such funds to the Securityholders
according to the provisions of this Indenture and the Mortgages.
Section 13.07. Authorization of Additional Liens and Actions to be
Taken in Connection Therewith
(a) The Issuers or any Guarantor or any subsidiary
thereof may grant additional Liens on the Collateral to secure
indebtedness permitted pursuant to the terms of this Indenture so long
as the Securityholders retain the right to receive payment upon a
disposition of the Collateral prior to the holders of any such other
Liens.
(b) Upon the request of the Issuers or any Guarantor,
and subject to Section 13.07(a), the Trustee shall transfer its rights
under any of the Mortgages to the holder of any Lien permitted pursuant
to the terms of Sections 13.03(d) and/or 13.07(a), and shall amend the
Mortgages to reflect the granting of such a Lien, the transfer of such
Collateral and/or rights and the terms of any intercreditor agreement
entered into pursuant to Section 13.07(c).
(c) Upon the request of the Issuers or any Guarantor,
and subject to Section 13.07(a), the Trustee shall enter into an
intercreditor agreement providing for, among other things, (i) the
appointment of an agent as the collateral agent for any Collateral
which is subject to a Lien in favor of the Trustee and in favor of any
third party and (ii) the right of such collateral agent (A) to take
such action which the collateral agent, at the direction of the holders
of a majority of the outstanding principal amount of Indebtedness
secured by such Collateral, deems necessary or desirable to preserve or
protect the Collateral or to enhance the likelihood or maximize the
amount of repayment of the Indebtedness secured thereby, including
delaying any
<PAGE>
proceedings with respect to the realization on such
Collateral, and (B) to manage, supervise and otherwise deal with the
Collateral. Any such intercreditor agreement shall deemed to be a
"Mortgage" for purposes of this Indenture, and in the event of a
conflict between any such intercreditor agreement and any other
Mortgage, the terms of such intercreditor agreement shall govern.
(d) The Trustee shall, in the absence of negligence
or bad faith on its part, be entitled to rely on Officers' Certificates
and Opinions of Counsel with respect to the Issuers' and the
Guarantors' compliance with the provisions of Section 13.07 hereof."
ARTICLE III.
MISCELLANEOUS
Section 3.1. Counterparts.
This Sixth 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 Sixth 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 Sixth Supplemental
Indenture by Foamex, FCC, FII, GFI and the Trustee shall bind their successors
and assigns, whether so expressed or not.
Section 3.5. GOVERNING LAW.
THIS SIXTH 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 Sixth Supplemental Indenture.
<PAGE>
Except as amended by this Sixth 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 Sixth 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, FII and GFI
and the Trustee shall not be responsible or accountable in any way whatsoever
for or with respect to the validity or execution or sufficiency of this Sixth
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.]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Sixth Supplemental
Indenture to be executed by their duly authorized representative as of the date
hereof.
ATTEST: FOAMEX CAPITAL CORPORATION
/s/ Tambra King By: /s/ Philip N. Smith, Jr.
Name: Philip N. Smith, Jr.
Title: Vice President
ATTEST: FOAMEX L.P.
/s/ Tambra King By: FMXI, INC.
its Managing General Partner
By: /s/ Philip N. Smith, Jr.
Name: Philip N. Smith, Jr.
Title: Vice President
ATTEST: FOAMEX INTERNATIONAL INC.
/s/ Tambra King By: /s/ Philip N. Smith, Jr.
Name: Philip N. Smith, Jr.
Title: Vice President
ATTEST: FLEET NATIONAL BANK
as Trustee
/s/ Susan C. Merker
By: /s/ Elizabeth C. Hammer
Name: Elizabeth C. Hammer
Title: Vice President
ATTEST: GENERAL FELT INDUSTRIES, INC.
/s/ Tambra King
By: /s/ Robert H. Nelson
Name: Robert H. Nelson
Title: Vice President
<PAGE>
STATE OF NEW YORK
COUNTY OF NEW YORK
BEFORE ME, the undersigned, a Notary Public in and for said
State and County, on this day personally appeared Philip N. Smith, Jr., the
Vice President of FOAMEX CAPITAL CORPORATION, known to me to be the person and
officer whose name is subscribed to the foregoing instrument, and acknowledged
to me that the same was the act of the said Foamex Capital Corporation, and
that he executed the same as the act of such corporation with the authority
of the board of directors for the purposes and consideration therein
expressed and in the capacity therein stated.
/s/ Eleanor McKenna
Notary Public, State of New York
Printed Name: Eleanor McKenna
My Commission Expires:
October 9, 1998
STATE OF NEW YORK
COUNTY OF NEW YORK
BEFORE ME, the undersigned, a Notary Public in and for said
State and County, on this day personally appeared Philip N. Smith, Jr. the Vice
President of FMXI, INC., the Managing General Partner of Foamex L.P., a Delaware
limited partnership, known to me to be the person and officer whose name is
subscribed to the foregoing instrument, and acknowledged to me that the same was
the act of the said FMXI, Inc., and that he executed the same as the act of such
corporation with the authority of the board of directors for the purposes and
consideration therein expressed and in the capacity therein stated.
/s/ Eleanor McKenna
-------------------------------
Notary Public, State of New York
Printed Name: Eleanor McKenna
My Commission Expires:
October 9, 1998
- ---------------------
<PAGE>
STATE OF NEW YORK
COUNTY OF NEW YORK
BEFORE ME, the undersigned, a Notary Public in and for said
State and County, on this day personally appeared Philip N. Smith, Jr., the Vice
President of FOAMEX INTERNATIONAL INC., known to me to be the person and officer
whose name is subscribed to the foregoing instrument, and acknowledged to me
that the same was the act of the said Foamex International Inc., and that he
executed the same as the act of such corporation with the authority of the board
of directors for the purposes and consideration therein expressed and in the
capacity therein stated.
/s/ Eleanor McKenna
-------------------------------
Notary Public, State of New York
Printed Name: Eleanor McKenna
My Commission Expires:
October 9, 1997
- ---------------------
STATE OF NEW YORK
COUNTY OF NEW YORK
BEFORE ME, the undersigned, a Notary Public in and for said
State and County, on this day personally appeared Elizabeth C. Hammer,
Vice President of FLEET NATIONAL BANK (formerly known as The Connecticut
National Bank), known to me to be the person and officer whose name is
subscribed to the foregoing instrument, and acknowledged to me that the
same was the act of the said bank and that he executed the same as the act
of such bank for the purposes and consideration therein expressed and in the
capacity therein stated.
/s/ Karen R. Felt
Notary Public, State of Connecticut
Printed Name: Karen R. Felt
My Commission Expires:
February 28, 1999
<PAGE>
STATE OF NEW YORK
COUNTY OF NEW YORK
BEFORE ME, the undersigned, a Notary Public in and for said
State and County, on this day personally appeared Robert H. Nelson the Vice
President of GENERAL FELT INDUSTRIES, INC., known to me to be the person and
officer whose name is subscribed to the foregoing instrument, and acknowledged
to me that the same was the act of the said General Felt Industries, Inc., and
that he executed the same as the act of such corporation with the authority
of the board of directors for the purposes and consideration therein
expressed and in the capacity therein stated.
/s/ Eleanor McKenna
Notary Public, State of New York
Printed Name: Eleanor McKenna
My Commission Expires:
October 9, 1998
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
FOAMEX L.P. AND FOAMEX CAPITAL CORPORATION, as Issuers
FOAMEX INTERNATIONAL INC., as Parent Guarantor
GENERAL FELT INDUSTRIES, INC., as Guarantor
AND
FLEET NATIONAL BANK
as Trustee
FIFTH SUPPLEMENTAL INDENTURE
Dated as of May 28, 1997
$126,000,000
11-7/8% Senior Subordinated Debentures
due 2004
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
1
<PAGE>
FIFTH SUPPLEMENTAL INDENTURE
THIS FIFTH SUPPLEMENTAL INDENTURE (the "Fifth Supplemental
Indenture"), dated as of May 28, 1997, by and among Foamex L.P., a Delaware
limited partnership ("Foamex"), Foamex Capital Corporation, a Delaware
corporation wholly-owned by Foamex ("FCC"; Foamex and FCC collectively referred
to as the "Issuers"), Foamex International Inc., a Delaware corporation ("FII"),
as Parent Guarantor, General Felt Industries, Inc., a Delaware corporation
wholly-owned by Foamex ("GFI"), as Guarantor, and Fleet National Bank (formerly
known as Shawmut Bank, N.A.), as trustee (the "Trustee").
WHEREAS, Foamex, FCC and the Trustee executed an indenture, dated as
of October 13, 1992 (the "Original Indenture"), relating to the Issuers' 11-7/8%
Senior Subordinated Debentures due 2004 (the "Securities"); and
WHEREAS, Foamex, FCC, GFI, and the Trustee amended the Original
Indenture by entering into a First Supplemental Indenture, dated as of March 23,
1993 in order to add GFI as a Guarantor in accordance with Section 4.07 and
Section 9.01(2) of the Original Indenture; and
WHEREAS, Foamex, FCC, GFI, Perfect Fit Industries, Inc. ("PFI") and
the Trustee further amended the Original Indenture, as supplemented by the First
Supplemental Indenture, by entering into a Second Supplemental Indenture, dated
as of November 18, 1993 in order to add PFI as a Guarantor in accordance with
Section 4.07 and Section 9.01(2) of the Original Indenture; and
WHEREAS, Foamex, FCC, FII, GFI, PFI and the Trustee further amended
the Original Indenture, as supplemented by the First Supplemental Indenture and
the Second Supplemental Indenture, by entering into a Third Supplemental
Indenture, dated as of December 14, 1993 in order to add FII as a Parent
Guarantor in accordance with Section 9.01(4) and Section 11.02 of the Original
Indenture; and
WHEREAS, Foamex, FCC, FII, GFI, PFI and the Trustee further amended
the Original Indenture, as supplemented by the First Supplemental Indenture, the
Second Supplemental Indenture, and the Third Supplemental Indenture, by entering
into a Fourth Supplemental Indenture (the Original Indenture, as supplemented by
the First Supplemental Indenture, the Second Supplemental Indenture, the Third
Supplemental Indenture, and the Fourth Supplemental Indenture, the "Indenture"),
dated as of August 1, 1996 to unconditionally release and discharge PFI from all
its obligations as a Guarantor under the Indenture in accordance with Section
12.17 of the Indenture; and
2
<PAGE>
WHEREAS, Article 9.02 of the Indenture provides that Foamex, FCC, any
Guarantor and the Trustee may execute and deliver one or more supplemental
indentures, with the consent of the Holders (as defined in the Indenture) of at
least a majority in principal amount of the outstanding Securities to, among
other things, change or eliminate certain provisions of the Indenture; and
WHEREAS, Foamex, FCC, FII, GFI and the Trustee desire to amend the
Indenture for the purpose of changing and eliminating certain of such
provisions; and
WHEREAS, the Issuers have received consents to such modifications from
the Holders of at least a majority in principal amount of the outstanding
Securities; and
WHEREAS, all conditions precedent provided for in the Indenture
relating to this Fifth 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, FII, as Parent Guarantor,
GFI, as Guarantor, and the Trustee for the benefit of each other and for the
equal and ratable benefit of the Holders of the Securities agree as follows:
ARTICLE I.
EFFECTIVENESS AND EFFECT
Section 1.1. Effectiveness and Effect.
This Fifth Supplemental Indenture shall take effect on the date
hereof, provided, however, that the amendments provided for in Article Two
hereof shall become operative only upon, and simultaneously with, the date on
which the tenders of Notes (as such term is defined in the Offer as defined
below) are accepted pursuant to Foamex's Offer to Purchase and Consent
Solicitation, dated May 12, 1997 (as the same may have been amended, extended or
otherwise modified) (the "Offer"), and such amendments provided for in Article
Two hereof shall have no force or effect prior to the operative time specified
in this Section. Subject to the foregoing, the provisions set forth in this
Fifth Supplemental Indenture shall be deemed to be, and shall be construed as
part of, the Indenture. All references to the Indenture in the Indenture or in
any other agreement, document or instrument delivered in connection therewith or
pursuant thereto shall be deemed to refer to the Indenture as amended by this
Fifth Supplemental Indenture. Except as amended hereby, the Indenture shall
remain in full force and effect.
3
<PAGE>
ARTICLE II.
AMENDMENT OF THE INDENTURE
Section 2.1. Deletion of Certain Provisions.
Each of the following provisions of the Indenture is hereby deleted
and eliminated in its entirety, without any redesignation of any other provision
of the Indenture:
ss. 4.03 SEC Reports
ss. 4.04 Compliance Certificate
ss. 4.05 Taxes
ss. 4.06 Stay, Extension and Usury Laws
ss. 4.07 Limitation on Restricted Payments
ss. 4.08 Limitation on Dividend and Other Payment Restrictions
Affecting Subsidiaries
ss. 4.09 Limitation on Additional Debt
ss. 4.11 Limitation on Transactions With Affiliates
ss. 4.12 Limitation on Liens
ss. 4.13 Partnership and Corporate Existence
ss. 4.14 Liquidation
ss. 4.17 Amendments to Agreements
Section 2.2. Amendment of Section 4.10.
Section 4.10 of the Indenture is hereby amended and restated to read
in its entirety as follows:
"Section 4.10. Sale of Assets.
(a) Intentionally omitted.
(b) The Issuers shall apply 100% of the Net Proceeds
from an Asset Sale to the prepayment of obligations outstanding in
respect of Senior Indebtedness. If (x) no Senior Indebtedness is
outstanding, or (y) the holders of Senior Indebtedness entitled to
receive payment elect not to receive the payments provided for in
the previous sentence or (z) the application of such Net Proceeds
results in the complete prepayment of all Senior Indebtedness, then
such Net Proceeds or any remaining portion thereof shall be applied
by the Issuers to an offer to redeem the Securities then outstanding
at 101% of the principal amount of such Securities pursuant to the
provisions of Section 3.09 hereof. After the Issuers make a
redemption offer pursuant to Section 3.09, any remaining funds may
be used in any manner not prohibited by the terms of this Indenture.
4
<PAGE>
(c) An offer to redeem the Securities pursuant to this
Section 4.10 shall be made pursuant to the provisions of Section
3.09 hereof. Simultaneously with the notification of such offer of
redemption to the Trustee as required by Sections 3.01, 3.03 and
3.09 hereof, the Issuers shall provide the Trustee with an Officer's
Certificate setting forth the information required to be included
therein by Section 3.01 hereof and, in addition, setting forth the
calculations used in determining the amount of Net Proceeds to be
applied to the redemption of Securities.
(d) In the event that the Issuers shall make any payment
of Net Proceeds to the Trustee which should properly have been made
to the holders of Senior Indebtedness for the prepayment of
outstanding Indebtedness pursuant to the provisions of this Section
4.10, such payment shall be held by the Trustee for the benefit of
such holders of Senior Indebtedness and shall be paid forthwith over
and delivered for application in accordance with the provisions of
this Section 4.10. With respect to such holders of Senior
Indebtedness, the Trustee undertakes to perform only such
obligations on the part of the Trustee as are specifically set forth
in this Section 4.10(d), and no implied covenants or obligations
with respect to such holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be
deemed to owe any fiduciary duty to such holders of Senior
Indebtedness and shall not be liable to them if the Trustee shall
distribute any such payment or any portion thereof to the
Securityholders, except if such distribution is made as a result of
the willful misconduct or gross negligence of the Trustee. The
Trustee shall not be charged with knowledge of the existence of any
facts which would prohibit the making of any distribution by the
Trustee to the Securityholders pursuant to Section 3.09 and this
Section 4.10 unless it shall have received at the Corporate Trust
Office at least three Business Days prior to such distribution
written notice of such facts that would cause such distribution to
violate this Section 4.10. Only Foamex, FCC, a Representative or a
holder of Senior Indebtedness who has no Representative may give
such notice. If Net Proceeds are received by Securityholders which,
pursuant to the provisions of this Section 4.10, should properly
have been received by the holders of Senior Indebtedness, for the
prepayment of outstanding Senior Indebtedness, the Securityholders
who receive such Net Proceeds shall hold such Net Proceeds in trust
for, and pay such Net Proceeds over to, such holders.
(e) Notwithstanding any provision of this Section 4.10
to the contrary, the Issuers shall have no obligation to make an
offer to redeem the Securities if and to the extent that the Issuers
have a bona fide intent to reinvest the Net Proceeds from the Asset
Sale in another asset or
5
<PAGE>
business in the same or similar line of business as Foamex and its
subsidiaries and a definitive agreement to reinvest the Net Proceeds
thereof is executed within 180 days after the receipt thereof;
provided, however, that, in the event the Net Proceeds resulting
from any Asset Sale, after giving affect to the reinvestment, if
any, pursuant to this Section 4.10(e), and after giving effect to
repayments of Senior Indebtedness pursuant to Section 4.10(b), are
less than $5,000,000, the application of such Net Proceeds to a
redemption offer pursuant to Section 4.10(b) may be deferred until
such time as such Net Proceeds, plus the aggregate amount of Net
Proceeds resulting from any prior or subsequent Asset Sale or Asset
Sales not otherwise reinvested as provided in this Section 4.10(e)
or applied to a repayment of Senior Indebtedness pursuant to Section
4.10(b), are at least equal to $5,000,000, at which time Foamex
shall apply all such Net Proceeds to a redemption offer pursuant to
Section 4.10(b)."
Section 2.3. Amendment of Section 5.01.
-------------------------
Section 5.01 of the Indenture is hereby amended and restated to read
in its entirety as follows:
"Section 5.01. When Foamex or FCC May Merge, etc.
----------------------------------
Neither Foamex nor FCC will consolidate or merge with or
into (whether or not Foamex or FCC, as the case may be, is the
surviving person), or sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its properties or
assets in one or more related transactions to, another corporation,
person or entity unless the person formed by or surviving any such
consolidation or merger (if other than Foamex or FCC, as the case
may be) or the person to which such sale, assignment, transfer,
lease, conveyance or other disposition will have been made assumes
all the obligations of the Issuers, pursuant to a supplemental
indenture in a form reasonably satisfactory to the Trustee, under
the Securities and this Indenture.
The Issuers shall deliver to the Trustee prior to the
consummation of the proposed transaction an Officers' Certificate to
the foregoing effect and an Opinion of Counsel stating that the
proposed transaction and such supplemental indenture comply with
this Indenture. The Trustee shall be entitled to conclusively rely
upon such Officers' Certificate and Opinion of Counsel."
Section 2.4. Amendment of Section 6.01.
-------------------------
Section 6.01 of the Indenture is hereby amended and restated to read
in its entirety as follows:
6
<PAGE>
"Section 6.01. Events of Default.
An "Event of Default" occurs if:
(1) the Issuers default in the payment of interest on
any Security when the same becomes due and payable and the Default
continues for a period of 30 days, whether or not such payment is
prohibited by the provisions of Article 10 hereof;
(2) the Issuers default in the payment of the principal
of any Security when the same becomes due and payable at maturity,
upon redemption, in connection with a Change of Control or
otherwise, whether or not such payment is prohibited by the
provisions of Article 10 hereof;
(3) Intentionally omitted;
(4) Intentionally omitted;
(5) Intentionally omitted;
(6) Foamex, FCC or any of their respective subsidiaries
pursuant to or within the meaning of any Bankruptcy Law:
(a) commences a voluntary case,
(b) consents to the entry of an order for
relief against it in an involuntary case,
(c) consents to the appointment of a
Custodian of it or for all or substantially all of its
property,
(d) makes a general assignment for the
benefit of its creditors,
(e) admits in writing its inability to pay
debts as the same become due; or
(7) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(a) is for relief against Foamex, FCC or any
of their respective subsidiaries in an involuntary case,
(b) appoints a Custodian of Foamex, FCC or
any of their respective subsidiaries or for all or
substantially all of their property,
(c) orders the liquidation of Foamex, FCC or
any of their respective subsidiaries, and the
7
<PAGE>
order or decree remains unstayed and in effect for 60
days.
The term "Bankruptcy Law" means title 11, U.S. Code or
any similar Federal or state law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law."
Section 2.5. Amendment of Section 8.01.
-------------------------
Section 8.01 of the Indenture is hereby amended and restated to read
in its entirety as follows:
"Section 8.01. Termination of Issuers' Obligations.
-----------------------------------
This Indenture shall cease to be of further effect
(except that the Issuers' obligations under Section 7.07 and 8.04
and the Issuers', any Guarantor's, Trustee's and Paying Agent's
obligations under Section 8.03 shall survive) when all outstanding
Securities theretofore authenticated and issued have been delivered
(other than destroyed, lost or stolen Securities which have been
replaced or paid) to the Trustee for cancellation and the Issuers
have paid all sums payable by the Issuers hereunder. In addition,
the Issuers may terminate all of their obligations and the
obligations of any Guarantor under this Indenture if the Issuers
deposit in trust with the Trustee or at the option of the Trustee,
with a trustee reasonably satisfactory to the Trustee and the
Issuers under the terms of a trust agreement in form and substance
satisfactory to the Trustee, money or U.S. Government Obligations
sufficient to pay principal and interest on the Securities to
maturity or redemption, as the case may be, and to pay all other
sums payable by them hereunder, provided that (i) the trustee of the
trust shall have been irrevocably instructed to pay such money or
the proceeds of such U.S. Government Obligations to the Trustee and
(ii) the Trustee shall have been irrevocably instructed to apply
such money or the proceeds of such U.S. Government Obligations to
the payment of said principal and interest with respect to the
Securities.
Then, this Indenture shall cease to be of further effect
(except as provided in this paragraph), and the Trustee, on demand
of the Issuers, shall execute proper instruments acknowledging
confirmation of and discharge under this Indenture. The Issuers may
make the deposit only if Article 10 hereof does not prohibit such
payment. However, the Issuers' obligations in Sections 2.03, 2.04,
2.05, 2.06, 2.07, 4.01, 7.07, 7.08, 8.03 and 8.04, and the Trustee's
and Paying Agent's obligations in Section 8.03 shall survive until
the Securities are no longer outstanding, Thereafter, only the
Issuers' obligations in
8
<PAGE>
Section 7.07 and 8.04 and the Issuers', Trustee's and Paying Agent's
obligations in Section 8.03 shall survive.
After such irrevocable deposit made pursuant to this
Section 8.01 and satisfaction of the other conditions set forth
herein, the Trustee upon request shall acknowledge in writing the
discharge of the Issuers' and the Guarantor's obligations under this
Indenture except for those surviving obligations specified above.
In order to have money available on a payment date to
pay principal or interest on the Securities, the U.S. Government
Obligations shall be payable as to principal or interest at least
one Business Day before such payment date in such amounts as will
provide the necessary money. U.S. Government Obligations shall not
be callable at the issuer's option."
ARTICLE III.
MISCELLANEOUS
Section 3.1. Counterparts.
------------
This Fifth 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 Fifth 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 Fifth Supplemental Indenture by
Foamex, FCC, FII, GFI and the Trustee shall bind their successors and assigns,
whether so expressed or not.
Section 3.5. GOVERNING LAW.
-------------
THIS FIFTH 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.
9
<PAGE>
Section 3.6. Effect of Fifth Supplemental Indenture.
--------------------------------------
Except as amended by this Fifth 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
Fifth 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, FII and GFI and the
Trustee shall not be responsible or accountable in any way whatsoever for or
with respect to the validity or execution or sufficiency of this Fifth
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.]
10
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Fifth
Supplemental Indenture to be executed by their duly authorized representative as
of the date hereof.
ATTEST: FOAMEX CAPITAL CORPORATION
/s/TAMBRA KING By: /s/ PHILIP N. SMITH, JR.
- ---------------------- ------------------------------
Name: Philip N. Smith Jr.
Title: Vice President
ATTEST: FOAMEX L.P.
/s/TAMBRA KING By: FMXI, INC.
- ---------------------- its Managing General Partner
By: /s/ PHILIP N. SMITH, JR.
------------------------------
Name: Philip N. Smith, Jr.
Title: Vice President
ATTEST: FOAMEX INTERNATIONAL INC.
/s/TAMBRA KING By: /s/ PHILIP N. SMITH, JR.
- ----------------------- -------------------------------
Name: Philip N. Smith, Jr.
Title: Vice President
ATTEST: FLEET NATIONAL BANK
as Trustee
/s/SUSAN C. MERKER
- ----------------------- By: /s/ ELIZABETH C. HAMMER
-----------------------------
Name: Elizabeth C. Hammer
Title: Vice President
ATTEST:
/s/TAMBRA KING GENERAL FELT INDUSTRIES, INC.
- --------------------
By: /s/ROBERT H. NELSON
------------------------------
Name: Robert H. Nelson
Title: Vice President
11
<PAGE>
STATE OF NEW YORK
COUNTY OF NEW YORK
BEFORE ME, the undersigned, a Notary Public in and for said State and
County, on this day personally appeared PHILIP N. SMITH, JR., the Vice President
of FOAMEX CAPITAL CORPORATION, known to me to be the person and officer whose
name is subscribed to the foregoing instrument, and acknowledged to me that the
same was the act of the said Foamex Capital Corporation, and that he executed
the same as the act of such corporation with the authority of the board of
directors for the purposes and consideration therein expressed and in the
capacity therein stated.
/s/ELEANOR McKENNA
-------------------------------
Notary Public, State of New York
Printed Name: Eleanor McKenna
My Commission Expires:
Oct. 9, 1998
- ---------------------
STATE OF NEW YORK
COUNTY OF NEW YORK
BEFORE ME, the undersigned, a Notary Public in and for said State and
County, on this day personally appeared PHILIP N. SMITH, JR., the Vice President
of FMXI, INC., the Managing General Partner of Foamex L.P., a Delaware limited
partnership, known to me to be the person and officer whose name is subscribed
to the foregoing instrument, and acknowledged to me that the same was the act of
the said FMXI, Inc., and that he executed the same as the act of such
corporation with the authority of the board of directors for the purposes and
consideration therein expressed and in the capacity therein stated.
/s/ELEANOR McKENNA
-------------------------------
Notary Public, State of New York
Printed Name: Eleanor McKenna
My Commission Expires:
Oct. 9, 1998
- ---------------------
12
<PAGE>
STATE OF NEW YORK
COUNTY OF NEW YORK
BEFORE ME, the undersigned, a Notary Public in and for said State and
County, on this day personally appeared PHILIP N. SMITH, JR., the Vice President
of FOAMEX INTERNATIONAL INC., known to me to be the person and officer whose
name is subscribed to the foregoing instrument, and acknowledged to me that the
same was the act of the said Foamex International Inc., and that he executed the
same as the act of such corporation with the authority of the board of directors
for the purposes and consideration therein expressed and in the capacity therein
stated.
/s/ELEANOR McKENNA
-------------------------------
Notary Public, State of New York
Printed Name: Eleanor McKenna
My Commission Expires:
Oct. 9, 1998
- ---------------------
STATE OF NEW YORK
COUNTY OF NEW YORK
BEFORE ME, the undersigned, a Notary Public in and for said State and
County, on this day personally appeared ELIZABETH C. HAMMER, Vice President of
FLEET NATIONAL BANK (formerly known as Shawmut Bank, N.A.), known to me to be
the person and officer whose name is subscribed to the foregoing instrument, and
acknowledged to me that the same was the act of the said bank and that he
executed the same as the act of such bank for the purposes and consideration
therein expressed and in the capacity therein stated.
/s/KAREN R. FELT
----------------------------------
Notary Public, State of Connecticut
Printed Name: Eleanor McKenna
My Commission Expires:
02-28-99
- ---------------------
13
<PAGE>
STATE OF NEW YORK
COUNTY OF NEW YORK
BEFORE ME, the undersigned, a Notary Public in and for said State and
County, on this day personally appeared ROBERT H. NELSON, the Vice President of
GENERAL FELT INDUSTRIES, INC., known to me to be the person and officer whose
name is subscribed to the foregoing instrument, and acknowledged to me that the
same was the act of the said General Felt Industries, Inc., and that he executed
the same as the act of such corporation with the authority of the board of
directors for the purposes and consideration therein expressed and in the
capacity therein stated.
/s/ELEANOR McKENNA
--------------------------------
Notary Public, State of New York
Printed Name: Eleanor McKenna
My Commission Expires:
Oct. 9, 1998
- ---------------------
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
FOAMEX L.P. AND FOAMEX CAPITAL CORPORATION, as Issuers
GENERAL FELT INDUSTRIES, INC., as Guarantor
AND
U.S. TRUST COMPANY OF TEXAS, N.A.
as Trustee
THIRD SUPPLEMENTAL INDENTURE
Dated as of May 28, 1997
$7,000,000
11-7/8% Senior Subordinated Debentures
due 2004
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
THIRD SUPPLEMENTAL INDENTURE
THIS THIRD SUPPLEMENTAL INDENTURE (the "Third Supplemental Indenture"),
dated as of May 28, 1997, by and among Foamex L.P., a Delaware limited
partnership ("Foamex"), Foamex Capital Corporation, a Delaware corporation
wholly-owned by Foamex ("FCC"; Foamex and FCC collectively referred to as the
"Issuers"), General Felt Industries, Inc., a Delaware corporation wholly-owned
by Foamex ("GFI"), as Guarantor, and U.S. Trust Company of Texas, N.A., a
national banking association, as trustee (the "Trustee").
WHEREAS, Foamex, FCC, GFI and the Trustee executed an indenture, dated
as of March 23, 1993 (the "Original Indenture"), relating to the Issuers'
11-7/8% Senior Subordinated Debentures due 2004 (the "Securities"); and
WHEREAS, Foamex, FCC, GFI, Perfect Fit Industries Inc., a Delaware
corporation ("PFI"), and the Trustee amended the Original Indenture by entering
into a First Supplemental Indenture dated as of November 18, 1993 in order to
add PFI as a Guarantor in accordance with Section 4.07 and Section 9.01(2) of
the Original Indenture; and
WHEREAS, Foamex, FCC, GFI, PFI and the Trustee further amended the
Original Indenture, as supplemented by the First Supplemental Indenture, by
entering into a Second Supplemental Indenture (the Original Indenture, as
supplemented by the First Supplemental Indenture and the Second Supplemental
Indenture, the "Indenture"), dated as of August 1, 1996 to unconditionally
release and discharge PFI from all its obligations as a Guarantor under the
Indenture, in accordance with Section 9.01(2) and Section 12.17 of the
Indenture; and
WHEREAS, Section 9.02 of the Indenture provides that Foamex, FCC, any
Guarantor and the Trustee may execute and deliver one or more supplemental
indentures, with the consent of the Holders (as defined in the Indenture) of at
least a majority in principal amount of the Securities, to, among other things,
change or eliminate certain provisions of the Indenture; and
WHEREAS, Foamex, FCC, GFI and the Trustee desire to amend the Indenture
for the purpose of changing and eliminating certain of such provisions; and
WHEREAS, the Issuers' have received consents to such modifications from
the Holders of at least a majority in principal amount of the outstanding
Securities; and
<PAGE>
WHEREAS, all conditions precedent provided for in the Indenture
relating to this Third 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, GFI, as Guarantor, and the
Trustee for the benefit of each other and for the equal and ratable benefit of
the Holders of the Securities agree as follows:
ARTICLE I.
EFFECTIVENESS AND EFFECT
Section 1.1 Effectiveness and Effect.
This Third Supplemental Indenture shall take effect on the date hereof,
provided, however, that the amendments provided for in Article Two hereof shall
become operative only upon, and simultaneously with, the date on which the
tenders of Notes (as such term is defined in the Offer as defined below) are
accepted pursuant to Foamex's Offer to Purchase and Consent Solicitation, dated
May 12, 1997 (as the same may have been amended, extended or otherwise modified)
(the "Offer"), and such amendments provided for in Article Two hereof shall have
no force or effect prior to the operative time specified in this Section.
Subject to the foregoing, the provisions set forth in this Third Supplemental
Indenture shall be deemed to be, and shall be construed as part of, the
Indenture. All references to the Indenture in the Indenture or in any other
agreement, document or instrument delivered in connection therewith or pursuant
thereto shall be deemed to refer to the Indenture as amended by this Third
Supplemental Indenture. Except as amended hereby, the Indenture shall remain in
full force and effect.
ARTICLE II.
AMENDMENT OF THE INDENTURE
Section 2.1 Deletion of Certain Provisions.
Each of the following provisions of the Indenture is hereby deleted and
eliminated in its entirety, without any redesignation of any other provision of
the Indenture:
ss. 4.03 SEC Reports
ss. 4.04 Compliance Certificate
ss. 4.05 Taxes
ss. 4.06 Stay, Extension and Usury Laws
ss. 4.07 Limitation on Restricted Payments
ss. 4.08 Limitation on Dividend and Other Payment
Restrictions Affecting Subsidiaries
<PAGE>
ss. 4.09 Limitation on Additional Debt
ss. 4.11 Limitation on Transactions With Affiliates
ss. 4.12 Limitation on Liens
ss. 4.13 Partnership and Corporate Existence
ss. 4.14 Liquidation
ss. 4.17 Amendments to Agreements
All references in the Indenture, as amended by this Section 2.1, to any
of the provisions deleted and eliminated as provided above shall also be deemed
deleted and eliminated.
Section 2.2 Amendment of Section 4.10.
Section 4.10 of the Indenture is hereby amended and restated to read in
its entirety as follows:
"Section 4.10. Sale of Assets.
(a) Intentionally Omitted.
(b) The Issuers shall apply 100% of the Net Proceeds
from an Asset Sale to the prepayment of Obligations outstanding in
respect of Senior Indebtedness. If (u) no Senior Indebtedness is
outstanding, or (v) the holders of Senior Indebtedness entitled to
receive payment elect not to receive the payments provided for in the
previous sentence or (w) the application of such Net Proceeds results
in the complete prepayment of all Senior Indebtedness, then such Net
Proceeds or any remaining portion thereof shall be applied by the
Issuers to an offer to redeem the Senior Subordinated Debentures then
outstanding pursuant to the provisions set forth in the Senior
Subordinated Debenture Indenture. If (x) no Senior Subordinated
Debentures are outstanding, or (y) the holders of the Senior
Subordinated Debentures entitled to receive payment elect not to
receive the payments provided for in the previous sentence or (z) the
application of such Net Proceeds results in the complete prepayment of
the Senior Subordinated Debentures, then such Net Proceeds or any
remaining portion thereof shall be applied by the Issuers to an offer
to redeem the Securities then outstanding at 101% of the principal
amount of such Securities pursuant to the provisions of Section 3.09
hereof. After the Issuers make a redemption offer pursuant to Section
3.09, any remaining funds may be used in any manner not prohibited by
the terms of this Indenture.
(c) An offer to redeem the Securities pursuant to
this Section 4.10 shall be made pursuant to the provisions of Section
3.09 hereof. Simultaneously with the notification of such offer of
redemption to the Trustee as required by Sections 3.01, 3.03 and 3.09
hereof, the Issuers shall provide the Trustee with an Officer's
Certificate setting forth the information required to be included
<PAGE>
therein by Section 3.01 hereof and, in addition,
setting forth the calculations used in determining the amount of Net
Proceeds to be applied to the redemption of Securities.
(d) In the event that the Issuers shall make any
payment of Net Proceeds to the Trustee which should properly have been
made to the holders of Senior Indebtedness and/or the Senior
Subordinated Debentures for the prepayment of outstanding Indebtedness
pursuant to the provisions of this Section 4.10, such payment shall be
held by the Trustee for the benefit of such holders of Senior
Indebtedness and/or the Senior Subordinated Debentures, as applicable,
and shall be paid forthwith over and delivered for application in
accordance with the provisions of this Section 4.10. With respect to
such holders of Senior Indebtedness and/or Senior Subordinated
Debentures, the Trustee undertakes to perform only such obligations on
the part of the Trustee as are specifically set forth in this Section
4.10(d), and no implied covenants or obligations with respect to such
holders of Senior Indebtedness and/or Senior Subordinated Debentures
shall be read into this Indenture against the Trustee. The Trustee
shall not be deemed to owe any fiduciary duty to such holders of Senior
Indebtedness and/or Senior Subordinated Debentures and shall not be
liable to them or to the Securityholders if the Trustee shall
distribute any such payment or any portion thereof to the
Securityholders, except if such distribution is made as a result of the
willful misconduct or gross negligence of the Trustee. The Trustee
shall not be charged with knowledge of the existence of any facts which
would prohibit the making of any distribution by the Trustee to the
Securityholders pursuant to Section 3.09 and this Section 4.10 unless
it shall have received at the Corporate Trust Office at least three
Business Days prior to such distribution written notice of such facts
that would cause such distribution to violate this Section 4.10. Only
Foamex, FCC, a Representative or a holder of Senior Indebtedness who
has no Representative or the Senior Subordinated Debenture Trustee may
give such notice. If Net Proceeds are received by Securityholders
which, pursuant to the provisions of this Section 4.10, should properly
have been received by (y) the holders of Senior Indebtedness for the
prepayment of outstanding Senior Indebtedness, and/or (z) the holders
of Senior Subordinated Debentures, for the prepayment of the Senior
Subordinated Debentures, the Securityholders who receive such Net
Proceeds shall hold such Net Proceeds in trust for, and pay such Net
Proceeds over to, such holders.
(e) Notwithstanding any provision of this Section
4.10 to the contrary, the Issuers shall have no obligation to make an
offer to redeem the Securities if and to the extent that the Issuers
have a bona fide intent to reinvest the Net Proceeds from the Asset
Sale in another asset or business in the same or similar line of
business as Foamex
<PAGE>
and its subsidiaries and a definitive agreement to
reinvest the Net Proceeds thereof is executed within 180 days after the
receipt thereof; provided, however, that, in the event the Net Proceeds
resulting from any Asset Sale, after giving effect to the reinvestment,
if any, pursuant to this Section 4.10(e), and after giving effect to
repayments of Senior Indebtedness and the Senior Subordinated
Debentures pursuant to Section 4.10(b), are less than $5,000,000, the
application of such Net Proceeds to a redemption offer pursuant to
Section 4.10(b) may be deferred until such time as such Net Proceeds,
plus the aggregate amount of Net Proceeds resulting from any prior or
subsequent Asset Sale or Asset Sales not otherwise reinvested as
provided in this Section 4.10(e) or applied to a repayment of Senior
Indebtedness and the Senior Subordinated Debentures pursuant to Section
4.10(b), are at least equal to $5,000,000, at which time Foamex shall
apply all such Net Proceeds to a redemption offer pursuant to Section
4.10(b)."
Section 2.3 Amendment of Section 5.01.
Section 5.01 of the Indenture is hereby amended and restated to read in
its entirety as follows:
"Section 5.01. When Foamex or FCC May Merge, etc.
Neither Foamex nor FCC will consolidate or merge with
or into (whether or not Foamex or FCC, as the case may be, is the
surviving person), or sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its properties or
assets in one or more related transactions to, another corporation,
person or entity unless the person formed by or surviving any such
consolidation or merger (if other than Foamex or FCC, as the case may
be) or the person to which such sale, assignment, transfer, lease,
conveyance or other disposition will have been made assumes all the
obligations of the Issuers, pursuant to a supplemental indenture in a
form reasonably satisfactory to the Trustee, under the Securities and
this Indenture.
The Issuers shall deliver to the Trustee prior to the
consummation of the proposed transaction an Officers' Certificate to
the foregoing effect and an Opinion of Counsel, stating that the
proposed transaction and such supplemental indenture comply with this
Indenture. The Trustee shall be entitled to conclusively rely upon such
Officers' Certificate and Opinion of Counsel."
Section 2.4 Amendment of Section 6.01.
Section 6.01 of the Indenture is hereby amended and restated to read in
its entirety as follows:
<PAGE>
"Section 6.01. Events of Default.
An "Event of Default" occurs if:
(1) the Issuers default in the payment of interest on any
Security when the same becomes due and payable and the Default
continues for a period of 30 days, whether or not such payment is
prohibited by the provisions of Article 10 hereof;
(2) the Issuers default in the payment of the principal of any
Security when the same becomes due and payable at maturity, upon
redemption, in connection with a Change of Control or otherwise,
whether or not such payment is prohibited by the provisions of Article
10 hereof;
(3) Intentionally omitted;
(4) Intentionally omitted;
(5) Intentionally omitted;
(6) Foamex, FCC or any of their respective
subsidiaries pursuant to or within the meaning of any Bankruptcy Law:
(a) commences a voluntary case,
(b) consents to the entry of an order for
relief against it in an involuntary case,
(c) consents to the appointment of a
Custodian of it or for all or substantially all of its
property,
(d) makes a general assignment for the benefit
of its creditors,
(e) admits in writing its inability to pay debts
as the same become due; or
(7) a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that:
(a) is for relief against Foamex, FCC or
any of their respective subsidiaries in an involuntary
case,
(b) appoints a Custodian of Foamex, FCC or
any of their respective subsidiaries or for all or
substantially all of their property,
<PAGE>
(c) orders the liquidation of Foamex, FCC or
any of their respective subsidiaries, and the order or
decree remains unstayed and in effect for 60 days.
The term "Bankruptcy Law" means title 11, U.S. Code
or any similar Federal or state law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law."
Section 2.5 Amendment of Section 8.01.
Section 8.01 of the Indenture is hereby amended and restated to read in
its entirety as follows:
"Section 8.01. Termination of Issuers' Obligations.
This Indenture shall cease to be of further effect
(except that the Issuers' obligations under Section 7.07 and 8.04 and
the Issuers', any Guarantor's, Trustee's and Paying Agent's
obligations under Section 8.03 shall survive) when all outstanding
Securities theretofore authenticated and issued have been delivered
(other than destroyed, lost or stolen Securities which have been
replaced or paid) to the Trustee for cancellation and the Issuers have
paid all sums payable by the Issuers hereunder. In addition, the
Issuers may terminate all of their obligations and the obligations of
any Guarantor under this Indenture if the Issuers deposit in trust
with the Trustee or at the option of the Trustee, with a trustee
reasonably satisfactory to the Trustee and the Issuers under the terms
of a trust agreement in form and substance satisfactory to the
Trustee, money or U.S. Government Obligations sufficient to pay
principal and interest on the Securities to maturity or redemption, as
the case may be, and to pay all other sums payable by them hereunder,
provided that (i) the trustee of the trust shall have been irrevocably
instructed to pay such money or the proceeds of such U.S. Government
Obligations to the Trustee and (ii) the Trustee shall have been
irrevocably instructed to apply such money or the proceeds of such
U.S. Government Obligations to the payment of said principal and
interest with respect to the Securities.
Then, this Indenture shall cease to be of further
effect (except as provided in this paragraph), and the Trustee, on
demand of the Issuers, shall execute proper instruments acknowledging
confirmation of and discharge under this Indenture. The Issuers may
make the deposit only if Article 10 hereof does not prohibit such
payment.
<PAGE>
However, the Issuers' obligations in Sections 2.03,
2.04, 2.05, 2.06, 2.07, 4.01, 7.07, 7.08, 8.03 and 8.04, and the
Trustee's and Paying Agent's obligations in Section 8.03 shall survive
until the Securities are no longer outstanding. Thereafter, only the
Issuers' obligations in Section 7.07 and 8.04 and the Issuers',
Trustee's and Paying Agent's obligations in Section 8.03 shall
survive.
After such irrevocable deposit made pursuant to this
Section 8.01 and satisfaction of the other conditions set forth
herein, the Trustee upon request shall acknowledge in writing the
discharge of the Issuers' and Guarantors' obligations under this
Indenture except for those surviving obligations specified above.
In order to have money available on a payment date to
pay principal or interest on the Securities, the U.S. Government
Obligations shall be payable as to principal or interest at least one
Business Day before such payment date in such amounts as will provide
the necessary money. U.S. Government Obligations shall not be
callable at the issuers' option."
ARTICLE III.
MISCELLANEOUS
Section 3.1 Counterparts.
This Third 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 Third 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 Third Supplemental
Indenture by Foamex, FCC, GFI and the Trustee shall bind their
successors and assigns, whether so expressed or not.
Section 3.5 GOVERNING LAW.
<PAGE>
THIS THIRD 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 Third Supplemental Indenture.
Except as amended by this Third 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
Third 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, GFI and the Trustee shall
not be responsible or accountable in any way whatsoever for or with respect to
the validity or execution or sufficiency of this Third Supplemental Indenture,
and the Trustee makes no representation with respect thereto.
Section 3.8 Indemnification of Trustee.
Each of Foamex, FCC and GFI, jointly and severally agree to indemnify
the Trustee and to hold the Trustee harmless from and against any and all
claims, demands, causes of action, losses, damages, liabilities, costs and
expenses (including, without limitation, attorneys' fees and court costs) at any
time asserted against or incurred by the Trustee by reason of, arising out of or
in connection with the execution of this Third Supplemental Indenture, except
for the Trustee's own negligent action, its own negligent failure to act, or its
own bad faith or willful misconduct.
Section 3.9 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.]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be executed by their duly authorized representative as
of the date hereof.
ATTEST: FOAMEX CAPITAL CORPORATION
/s/ Tambra King By: /s/ Philip N. Smith
Name: Philip N. Smith
Title: Vice President
ATTEST: FOAMEX L.P.
/s/ Tambra King By: FMXI, INC.
its Managing General Partner
By: /s/ Philip N. Smith, Jr.
Name: Philip N. Smith Jr.
Title: Vice President
ATTEST: U.S. TRUST COMPANY OF
TEXAS, N.A.
as Trustee
By: /s/ Bill Barber
Name: Bill Barber
Title: Vice President
ATTEST: GENERAL FELT INDUSTRIES, INC.
/s/ Tambra King
By: /s/ Robert H. Nelson
Name: Robert H. Nelson
Title: Vice President
<PAGE>
STATE OF NEW YORK
COUNTY OF NEW YORK
BEFORE ME, the undersigned, a Notary Public in and for said
State and County, on this day personally appeared Philip N. Smith, Jr., the
Vice President of FOAMEX CAPITAL CORPORATION, known to me to be the person
and officer whose name is subscribed to the foregoing instrument, and
acknowledged to me that the same was the act of the said Foamex Capital
Corporation, and that he executed the same as the act of such corporation
with the authority of the board of directors for the purposes and
consideration therein expressed and in the capacity therein stated.
/s/ Eleanor McKenna
Notary Public, State of New York
Printed Name: Eleanor McKenna
My Commission Expires:
October 9, 1998
STATE OF NEW YORK
COUNTY OF NEW YORK
BEFORE ME, the undersigned, a Notary Public in and for said
State and County, on this day personally appeared Philip N. Smith, Jr., the Vice
President of FMXI, INC., the Managing General Partner of Foamex L.P., a Delaware
limited partnership, known to me to be the person and officer whose name is
subscribed to the foregoing instrument, and acknowledged to me that the same was
the act of the said FMXI, Inc., and that he executed the same as the act of such
corporation with the authority of the board of directors for the purposes and
consideration therein expressed and in the capacity therein stated.
/s/ Eleanor McKenna
-------------------------------
Notary Public, State of New York
Printed Name: Eleanor McKenna
My Commission Expires:
October 9, 1998
- ---------------------
<PAGE>
STATE OF NEW YORK
COUNTY OF NEW YORK
BEFORE ME, the undersigned, a Notary Public in and for said
State and County, on this day personally appeared Bill Barber, Vice President of
U.S. TRUST COMPANY OF TEXAS, N.A., known to me to be the person and officer
whose name is subscribed to the foregoing instrument, and acknowledged to me
that the same was the act of the said bank and that he executed the same as the
act of such bank for the purposes and consideration therein expressed and in the
capacity therein stated.
/s/ Linda Z. Shannon
----------------------------------
Notary Public, State of Texas
Printed Name: Linda Z. Shannon
My Commission Expires:
9-16-98
- ---------------------
STATE OF NEW YORK
COUNTY OF NEW YORK
BEFORE ME, the undersigned, a Notary Public in and for said
State and County, on this day personally appeared Robert H. Nelson, the
Vice President of GENERAL FELT INDUSTRIES, INC., known to me to be the person
and officer whose name is subscribed to the foregoing instrument, and
acknowledged to me that the same was the act of the said General Felt
Industries, Inc., and that he executed the same as the act of such corporation
with the authority of the board of directors for the purposes and
consideration therein expressed and in the capacity therein stated.
/s/ Eleanor McKenna
Notary Public, State of New York
Printed Name: Eleanor McKenna
My Commission Expires:
October 9, 1998
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
FOAMEX-JPS AUTOMOTIVE L.P. AND FOAMEX-JPS CAPITAL CORPORATION, as Issuers
FOAMEX INTERNATIONAL INC., as Guarantor
AND
FLEET NATIONAL BANK
as Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of May 28, 1997
$116,745,000
Senior Secured Discount Debentures
due 2004
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE (the "First Supplemental Indenture"),
dated as of May 28, 1997, by and among Foamex-JPS Automotive L.P., a Delaware
limited partnership (the "Company"), Foamex-JPS Capital Corporation, a Delaware
corporation wholly-owned by the Company ("FJCC"; the Company and FJCC
collectively referred to as the "Issuers"), Foamex International Inc., a
Delaware corporation ("Holdings"), as Guarantor, and Fleet National Bank
(formerly known as Shawmut Bank Connecticut, N.A.), as Trustee (the "Trustee").
WHEREAS, the Company, FJCC, Holdings and the Trustee executed an
indenture, dated as of June 28, 1994 (the "Indenture"), relating to $116,745,000
of the Issuers' Senior Secured Discount Debentures due 2004 (the "Securities");
and
WHEREAS, Article 9.02 of the Indenture provides that the Company, FJCC,
Holdings and the Trustee may execute and deliver one or more supplemental
indentures, with the consent of the Holders (as defined in the Indenture) of at
least a majority in principal amount of the outstanding Securities to, among
other things, change or eliminate certain provisions of the Indenture; and
WHEREAS, the Company, FJCC, Holdings and the Trustee desire to amend
the Indenture for the purpose of changing and eliminating certain of such
provisions; and
WHEREAS, the Issuers' have received consents to such modifications from
the Holders of at least a majority in principal amount of the outstanding
Securities; and
WHEREAS, all conditions precedent provided for in the Indenture
relating to this First 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, the Company and FJCC, jointly and severally, Holdings, as
Guarantor, and the Trustee for the benefit of each other and for the equal and
ratable benefit of the Holders of the Securities agree as follows:
<PAGE>
ARTICLE I.
EFFECTIVENESS AND EFFECT
Section 1.1 Effectiveness and Effect.
This First Supplemental Indenture shall take effect on the date hereof,
provided, however, that the amendments provided for in Article Two hereof shall
become operative only upon, and simultaneously with, the date on which the
tenders of Notes (as such term is defined in the Offer as defined below) are
accepted pursuant to Foamex L.P.'s Offer to Purchase and Consent Solicitation,
dated May 12, 1997 (as the same may have been amended, extended or otherwise
modified) (the "Offer"), and such amendments provided for in Article Two hereof
shall have no force or effect prior to the operative time specified in this
Section. Subject to the foregoing, the provisions set forth in this First
Supplemental Indenture shall be deemed to be, and shall be construed as part of,
the Indenture. All references to the Indenture in the Indenture or in any other
agreement, document or instrument delivered in connection therewith or pursuant
thereto shall be deemed to refer to the Indenture as amended by this First
Supplemental Indenture. Except as amended hereby, the Indenture shall remain in
full force and effect.
ARTICLE II.
AMENDMENT OF THE INDENTURE
Section 2.1 Deletion of Certain Provisions.
Each of the following provisions of the Indenture is hereby deleted and
eliminated in its entirety, without any redesignation of any other provision of
the Indenture:
ss. 4.03 Reports
ss. 4.04 Compliance Certificate
ss. 4.05 Taxes
ss. 4.06 Stay, Extension and Usury Laws
ss. 4.07 Limitation on Restricted Payments
ss. 4.08 Limitation on Dividend and Other Payment
Restrictions Affecting Subsidiaries
ss. 4.09 Limitation on Additional Debt
ss. 4.11 Limitation on Transactions With Affiliates
ss. 4.12 Limitation on Liens
ss. 4.13 Partnership and Corporate Existence
ss. 4.14 Liquidation
ss. 4.16 Amendments to Agreements
ss. 4.17 Maintenance of Properties
ss. 4.18 Maintenance of Insurance
<PAGE>
All references in the Indenture, as amended by this Section 2.1, to any
of the provisions deleted and eliminated as provided above shall also be deemed
deleted and eliminated.
Section 2.2 Amendment of Section 4.10.
Section 4.10 of the Indenture is hereby amended and restated to read in
its entirety as follows:
"Section 4.10. Asset Sales.
(a) To the extent that the assets which are the
subject of any Asset Sale constitute Collateral, the Issuers or the
applicable subsidiary shall enter into appropriate security documents
and the Net Proceeds of such Asset Sale shall, to the extent permitted
by law, be subject to a perfected Lien in favor of the Trustee, which
Lien shall have the same priority as the Lien on the Collateral which
was the subject of such Asset Sale.
(b) To the extent that assets subject to an Asset
Sale consist of Collateral or other assets of the Company, the Issuers
shall apply 100% of the Net Proceeds thereof to either (i) an offer to
redeem outstanding Debentures at 101% of the Accreted Value thereof on
or prior to July 1, 1999 or at 101% of the principal amount thereof
plus accrued interest after July 1, 1999 or (ii) the payment of
principal, premium, if any, and accrued interest with respect to an
optional redemption of Debentures as and to the extent then permitted
under Section 3.07 hereof. To the extent that assets subject to an
Asset Sale consist of assets of a subsidiary, 100% of the Net Proceeds
thereof may be applied to the permanent repayment of Indebtedness of
subsidiaries of the Issuers. If Net Proceeds remain after giving effect
to such application, and such Net Proceeds may be distributed to the
Issuers without causing a default under any instrument or agreement in
existence as of the Closing Date or under any other instrument
governing Indebtedness of any subsidiary of the Issuers, such Net
Proceeds or any remaining portion thereof will be required to be
applied by the Issuers to (i) an offer to redeem outstanding Debentures
at 101% of the Accreted Value thereof on or prior to July 1, 1999 or at
101% of the principal amount thereof plus accrued interest after July
1, 1999 or (ii) the payment of principal, premium, if any, and accrued
interest with respect to an optional redemption of Debentures as and to
the extent then permitted under Section 3.07 hereof.
<PAGE>
(c) An offer to redeem the Debentures pursuant to this Section
4.10 shall be made pursuant to the provisions of Section 3.09 hereof.
Simultaneously with the notification of such offer of redemption to the
Trustee as required by Sections 3.01, 3.03 and 3.09 hereof, the Issuers
shall provide the Trustee with an Officers' Certificate setting forth
the information required to be included therein by Section 3.01 hereof
and, in addition, setting forth the calculations used in determining
the amount of Net Proceeds to be applied to the redemption of
Debentures.
(d) Notwithstanding any provision of this Section 4.10 to the
contrary, the Issuers shall have no obligation to make an offer to
redeem the Debentures if and to the extent that (i) the Issuers or any
of their subsidiaries has a bona fide intent to reinvest the Net
Proceeds from the Asset Sale in another asset or business in the same
or similar lines of business as the Company and its subsidiaries (the
"Replacement Assets") and a definitive agreement to reinvest such Net
Proceeds is executed within 180 days after the receipt thereof, (ii)
with respect to any Net Proceeds consisting of the proceeds of
insurance paid on account of the loss of or damage to any property, or
compensation or other proceeds for any property taken by condemnation,
eminent domain or similar proceedings, such Net Proceeds are applied as
provided in subsection (i) above or applied to reimburse the applicable
Issuer or any of its subsidiaries for expenditures made, and costs
incurred, to repair, rebuild, replace or restore the property subject
to such loss, damage or taking and (iii) if the assets which were the
subject of such Asset Sale constitute Collateral, the Issuers or the
applicable subsidiary shall have entered into appropriate security
documents, and such Replacement Assets shall be subject to a perfected
Lien in favor of the Trustee, which Lien has the same priority as the
Collateral which was the subject of such Asset Sale; provided, however,
that, in the event that the Net Proceeds resulting from any Asset Sale,
after giving effect to the reinvestment, if any, pursuant to this
Section 4.10(d) or the application of such Net Proceeds to an offer to
repay or redeem Indebtedness as required by this Section 4.10, are less
than $5,000,000, the application of such remaining Net Proceeds to a
redemption or offer to redeem pursuant to the foregoing provisions may
be deferred until such time as such remaining Net Proceeds, plus the
aggregate amount of Net Proceeds resulting from any prior or subsequent
Asset Sale or Asset Sales not otherwise reinvested as provided herein
or applied to make an offer to repay or redeem Indebtedness as
required, are at least equal to $5,000,000, at which time all such Net
Proceeds shall be applied to a redemption or offer to purchase pursuant
to Section 4.10(b) hereof; provided, further, that to the extent that
the Net Proceeds of any Asset Sale of assets constituting Collateral
are not required to be applied to
<PAGE>
the Debentures, then such Net Proceeds may be applied to the prepayment
of any other Indebtedness of the Issuers or their subsidiaries to the
extent required, and if there are Net Proceeds remaining in the
Collateral Account after all such offers or redemptions required or
permitted by this Indenture, then such remaining Net Proceeds shall be
held in the Collateral Account as Collateral and shall be permitted to
be reinvested by the Issuers or their subsidiaries at any time pursuant
to this Section 4.10(d)."
Section 2.3 Amendment of Section 5.01.
Section 5.01 of the Indenture is hereby amended and restated to read in
its entirety as follows:
"Section 5.01. When Foamex or FCC May Merge, etc.
Neither the Company nor FJCC will consolidate or merge with or
into (whether or not the Company or FJCC, as the case may be, is the
surviving person), or sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its properties or
assets in one or more related transactions to, another corporation,
person or entity unless the person formed by or surviving any such
consolidation or merger (if other than the Company or FJCC, as the case
may be) or the person to which such sale, assignment, transfer, lease,
conveyance or other disposition will have been made assumes all the
Obligations of the Issuers pursuant to a supplemental indenture and
appropriate Collateral Documents in a form reasonably satisfactory to
the Trustee, under the Debentures, this Indenture and the Collateral
Documents.
The Company shall deliver to the Trustee prior to the
consummation of the proposed transaction an Officers' Certificate to
the foregoing effect and an Opinion of Counsel, stating that the
proposed transaction and such supplemental indenture comply with this
Indenture. The Trustee shall be entitled to conclusively rely upon such
Officers' Certificate and Opinion of Counsel."
Section 2.4 Amendment to Section 6.01.
Section 6.01 of the Indenture is hereby amended and restated to read in
its entirety as follows:
"Section 6.01. Events of Default.
An "Event of Default" occurs if:
(1) the Issuers default in the payment of interest or
Liquidated Damages on any Debenture when the same becomes
<PAGE>
due and payable and the Default continues for a period of 30 days;
(2) the Issuers default in the payment of the
principal of any Debenture when the same becomes due and payable
at maturity, upon redemption, in connection with a Change of Control
or otherwise;
(3) Intentionally omitted;
(4) Intentionally omitted;
(5) Intentionally omitted;
(6) the Company, FJCC or any of their respective
subsidiaries pursuant to or within the meaning of any Bankruptcy Law:
(a) commences a voluntary case,
(b) consents to the entry of an order for
relief against it in an involuntary case,
(c) consents to the appointment of a
Custodian of it or for all or substantially all of
its property,
(d) makes a general assignment for the
benefit of its creditors,
(e) admits in writing its inability to pay
debts as the same become due;
(7) a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that:
(a) is for relief against the Company, FJCC
or any of their respective subsidiaries in an
involuntary case,
(b) appoints a Custodian of the Company,
FJCC or any of their respective subsidiaries or for
all or substantially all of their property,
(c) orders the liquidation of the Company,
FJCC or any of their respective subsidiaries, and the
order or decree remains unstayed and in effect for 60
days; or
(8) Intentionally omitted.
The term "Bankruptcy Law" means title 11, U.S. Code or any
similar Federal or state law for the relief of debtors.
<PAGE>
The term "Custodian" means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law."
Section 2.5 Amendment of Section 8.01.
Section 8.01 of the Indenture is hereby amended and restated to read in
its entirety as follows:
"Section 8.01. Termination of Issuers' Obligations.
This Indenture and the Collateral Documents shall cease to be
of further effect (except that the Issuers' obligations under Section
7.07 and 8.04 and the Issuers', Trustee's and Paying Agent's
obligations under Section 8.03 shall survive) when all outstanding
Debentures theretofore authenticated and issued have been delivered
(other than destroyed, lost or stolen Debentures which have been
replaced or paid) to the Trustee for cancellation and the Issuers have
paid all sums payable by the Issuers hereunder. In addition, the
Issuers may terminate all of their obligations and the obligations of
Holdings under this Indenture if the Issuers irrevocably deposit in
trust with the Trustee or at the option of the Trustee, with a trustee
reasonably satisfactory to the Trustee and the Issuers under the terms
of a trust agreement in form and substance satisfactory to the Trustee,
money or U.S. Government Obligations sufficient to pay principal and
interest on the Debentures to maturity or redemption, as the case may
be, and to pay all other sums payable by them hereunder, provided that
(i) the trustee of the trust shall have been irrevocably instructed to
pay such money or the proceeds of such U.S. Government Obligations to
the Trustee and (ii) the Trustee shall have been irrevocably instructed
to apply such money or the proceeds of such U.S. Government Obligations
to the payment of said principal and interest with respect to the
Debentures. Then, this Indenture shall cease to be of further effect
(except as provided in this paragraph) and all Collateral with respect
to the Debentures (other than amounts on deposit in the trust pursuant
to the immediately preceding paragraph) shall be released. In addition,
the Trustee, on demand of the Issuers, shall execute proper instruments
acknowledging confirmation of and discharge under this Indenture.
However, the Issuers' obligations in Sections 2.03, 2.04, 2.05, 2.06,
2.07, 4.01, 4.06, 7.07, 7.08, 8.03 and 8.04, Holdings' obligations in
Sections 4.06 and 12.01, and the Trustee's and Paying Agent's
obligations in Section 8.03, shall survive until the Debentures are no
longer outstanding. Thereafter, only the Issuers' obligations in
Section 7.07 and 8.04 and the Issuers', Trustee's and Paying Agent's
obligations in Section 8.03 shall survive.
<PAGE>
After such deposit made pursuant to this Section 8.01, the
Trustee shall release all Collateral for the Debentures, other than
such deposit, and shall acknowledge in writing the discharge of the
Issuers' and Holdings' obligations under this Indenture except for
those surviving obligations specified above, and the release of such
Collateral.
In order to have money available on a payment date to
pay principal or interest on the Debentures, the U.S. Government
Obligations shall be payable as to principal or interest at least one
Business Day before such payment date in such amounts as will provide
the necessary money. U.S.
Government Obligations shall not be callable at the issuer's option."
Section 2.6 Amendment to Article 10.
Article 10 of the Indenture is hereby amended and restated to read in
its entirety as follows:
"ARTICLE 10
COLLATERAL AND SECURITY
Section 10.01. Pledge Agreement
The due and punctual payment of the principal of, premium and
Liquidated Damages, if any, and interest on the Debentures when and as
the same shall be due and payable, whether on an interest payment date,
at maturity, by acceleration, repurchase, redemption or otherwise, and
interest on the overdue principal of and interest (to the extent
permitted by law), if any, on the Debentures and performance of all
other Obligations of the Issuers and Holdings to the Holders of
Debentures or the Trustee under this Indenture and the Debentures,
according to the terms hereunder or thereunder, shall be secured as
provided in the Collateral Documents. Each Holder of Debentures, by its
acceptance of a Debenture, consents and agrees to the terms of the
Collateral Documents (including, in each case, without limitation, the
provisions providing for foreclosure and release of Collateral) as the
same may be in effect or may be amended from time to time in accordance
with the terms thereof and hereof and authorizes and directs the
Trustee to enter into the Collateral Documents and to perform its
obligations and exercise its rights thereunder in accordance therewith.
The Issuers and Holdings will do or cause to be done all such acts and
things as may be necessary or proper, or as may be required by the
provisions of the Collateral Documents, to assure and confirm to the
Trustee the security interest in the Collateral contemplated hereby, by
the Collateral Documents, as from time to time
<PAGE>
constituted, so as to render the same available for the
security and benefit of this Indenture and of the Debentures secured
hereby, according to the intent and purposes herein expressed. The
Issuers and Holdings shall take, upon request of the Trustee, any and
all actions reasonably required to cause the Collateral Documents to
create and maintain, as security for the Obligations of the Issuers and
Holdings under this Indenture and the Debentures, valid and
enforceable, perfected (except as expressly provided therein) Liens in
and on all the Collateral, in favor of the Trustee, and subject to no
other Liens, other than as provided herein and therein.
Section 10.02. Recordings and Opinions
(a) The Issuers shall furnish to the Trustee promptly after
the execution and delivery of this First Supplemental Indenture an
Opinion of Counsel either (i) stating that in the opinion of such
counsel all action has been taken with respect to the recording,
registering and filing of this Indenture, financing statements or other
instruments necessary to make effective the Lien intended to be created
by the Collateral Documents, and reciting the details of such action,
or (ii) stating that, in the opinion of such counsel, no such action is
necessary to make such Lien effective and also stating what action is
to be taken within the next 12 months to maintain the Lien of the
Collateral Documents.
(b) The Issuers shall furnish to the Trustee within 3 months
after each anniversary of the date of this First Supplemental
Indenture, an Opinion of Counsel, dated as of such date, stating either
that (i) in the opinion of such counsel, all action has been taken with
respect to the recording, registering, filing, re-recording,
re-registering and refiling of all supplemental indentures, financing
statements, continuation statements or other instruments of further
assurance as is necessary to maintain the Lien of the Collateral
Documents and reciting the details of such action or (ii) in the
opinion of such Counsel, no such action is necessary to maintain such
Lien and also stating what action is to be taken within the next 12
months to maintain the Lien of the Collateral Documents.
Section 10.03. Release of Collateral
(a) Subject to subsections (b), (c) and (d) of this Section
10.03, Collateral may be released from the Lien and security interest
created by the Collateral Documents at any time or from time to time at
the sole cost and expense of the Issuers (i) upon payment in full of
the Debentures in accordance with the terms thereof and of this
Indenture and all other Obligations of the Issuers and Holdings then
due and owing under this Indenture, the Debentures and the
<PAGE>
Collateral Documents; (ii) with respect to inventory (if such
inventory constitutes Collateral), upon the sale of such inventory in
the ordinary course of business; (iii) upon the sale or other
disposition of such Collateral constituting an Asset Sale if such sale
or other disposition is not prohibited under this Indenture and if the
Net Proceeds of such sale or other disposition are applied in
accordance with this Indenture; (iv) upon the sale or other disposition
of such Collateral not constituting an Asset Sale by virtue of clause
(v) of the definition of Asset Sales contained in Section 1.01 of this
Indenture; (v) to the extent a Lien is granted on such Collateral
pursuant to clause (vi) of the definition of Permitted Liens contained
in Section 1.01 of this Indenture; (vi) with respect to amounts in the
Collateral Account consisting of Net Proceeds of Asset Sales, upon the
expenditure of such cash if such expenditure is made in accordance with
this Indenture; (vii) with respect to amounts in the Collateral Account
consisting of the proceeds of sales of Collateral to subsidiaries of
the Company, upon the written request of either Issuer to the Trustee
to release all or any part of such proceeds so long as such proceeds
are immediately used to purchase Collateral; (viii) as provided in
Section 8.01; and (ix) as provided in Section 10.07; provided that,
with respect to clauses (i), (iii), (iv), (v), (vi), (vii), (viii) and
(ix) above, the Trustee shall not release any Lien on any Collateral
pursuant to such clauses unless and until it shall have received from
the Company an Officers' Certificate certifying that all conditions
precedent hereunder have been met and such other documents required by
Section 10.04 hereof. Upon compliance with the above provisions, the
Trustee shall execute, deliver or acknowledge any necessary or proper
instruments of termination, satisfaction or release to evidence the
release of any Collateral permitted to be released pursuant to this
Indenture or the Collateral Documents.
(b) Notwithstanding any provision of Section 10.04 to the
contrary, the disposition of inventory (if such inventory constitutes
Collateral) in the ordinary course of business may be made without
delivery to the Collateral Trustee of certificates required by Section
314(d) of the TIA. However, if at any time the Collateral includes
inventory, then in lieu of such certificates, the Issuers shall deliver
semi-annual Officers' Certificates to the Trustee to the effect that
all such dispositions have been made in the ordinary course of business
and that the proceeds therefrom have been applied in a manner permitted
by this Indenture. The Trustee shall, in the absence of negligence or
bad faith on its part, be entitled to rely on Officers' Certificates
and Opinions of Counsel with respect to the Issuers' compliance with
the provisions of Section 10.03 hereof.
<PAGE>
(c) At any time when a Default or Event of Default shall have
occurred and be continuing and the maturity of the Debentures shall
have been accelerated (whether by declaration or otherwise) and the
Trustee shall have delivered a notice of acceleration to the Issuers,
no release of Collateral pursuant hereto shall be effective as against
the Holders of Debentures.
(d) The release of any Collateral from the terms of the
Collateral Documents in contravention of the provisions hereof and
thereof will not be deemed to impair the security under this Indenture.
(e) Notwithstanding anything to the contrary contained in this
Indenture or the Collateral Documents, in addition to any other Liens,
any of the Issuers may grant additional Liens on the Collateral in
favor of any third person, as provided in Section 10.07 and upon the
granting of any such Lien, the Trustee is authorized (i) to amend the
Collateral Documents to reflect the grant of such Liens and (ii) to
enter into an intercreditor agreement, as set forth in Section
10.07(c).
Section 10.04. Certificates of the Company
The Issuers will furnish to the Trustee prior to each proposed
release of Collateral pursuant to the Collateral Documents other than
by reason of transactions referred to in the Section 10.03(b) above,
all documents required by Section 314(d) of the TIA. The Trustee may,
to the extent permitted by Sections 7.01 and 7.02 hereof, accept as
conclusive evidence of compliance with the foregoing provisions the
appropriate statements contained in such instruments. Any certificate
or opinion required by TIA ss. 314(d) may be made by an Officer of the
General Partner, on behalf of the Company (or the Company, if the
Company is a corporation) or FJCC, as the case may be, except in cases
where TIA ss. 314(d) requires that such certificate or opinion be made
by an independent engineer, appraiser or other expert within the
meaning of Section 314(d) of the TIA.
Section 10.05. Authorization of Actions to be Taken by the Trustee
Under the Collateral Documents
The Trustee may, in its sole discretion and without the
consent of the Holders of Debentures, on behalf of the Holders of
Debentures, take all actions it deems necessary or appropriate in order
to (a) enforce any of the terms of the Collateral Documents and (b)
collect and receive any and all amounts payable in respect of the
Obligations of the Issuers and Holdings hereunder. The Trustee shall
have the power to institute and to maintain such suits and proceedings
as it may deem expedient to prevent any impairment of the Collateral by
any acts that may be
<PAGE>
unlawful or in violation of the Collateral Documents or this
Indenture, and such suits and proceedings as the Trustee may deem
expedient to preserve or protect its interests and the interests of the
Holders of Debentures in the Collateral (including power to institute
and maintain suits or proceedings to restrain the enforcement of or
compliance with any legislative or other governmental enactment, rule
or order that may be unconstitutional or otherwise invalid if the
enforcement of, or compliance with, such enactment, rule or order would
impair the security interest hereunder or be prejudicial to the
interests of the Holders of Debentures or of the Trustee).
Section 10.06. Authorization of Receipt of Funds by the Trustee
Under the Collateral Documents
The Trustee is authorized to receive any funds for the benefit
of the Holders of Debentures distributed under the Collateral
Documents, and to make further distributions of such funds to the
Holders of Debentures according to the provisions of this Indenture and
the Collateral Documents.
Section 10.07. Authorization of Additional Liens and Actions to be
Taken in Connection Therewith
(a) The Issuers or any Guarantor or any subsidiary thereof may
grant additional Liens on the Collateral to secure indebtedness
permitted pursuant to the terms of this Indenture so long as the
Securityholders retain the right to receive payment upon a disposition
of the Collateral prior to the holders of any such other Liens.
(b) Upon the request of the Issuers or any Guarantor, and
subject to Section 10.07(a), the Trustee shall transfer possession of
the Collateral or its rights under any Collateral Document to the
holder of any Lien permitted pursuant to the terms of Sections 10.03(e)
and/or 10.07(a), and shall amend the Collateral Documents and the
Intercreditor Agreement to reflect the granting of such a Lien, the
transfer of such Collateral and/or rights and the terms of any
intercreditor agreement entered into pursuant to Section 10.07(c).
(c) Upon the request of the Issuers or any Guarantor, and
subject to Section 10.07(a), the Trustee shall enter into an
intercreditor agreement providing for, among other things, (i) the
appointment of an agent as the collateral agent for any Collateral
which is subject to a Lien in favor of the Trustee and in favor of any
third party and (ii) the right of such collateral agent (A) to take
such action which the collateral agent, at the direction of the holders
of a majority of the outstanding principal amount of Indebtedness
secured by such Collateral, deems necessary or desirable to preserve or
protect the Collateral or to
<PAGE>
enhance the likelihood or maximize the amount of repayment of
the Indebtedness secured thereby, including delaying any proceedings
with respect to the realization on such Collateral, and (B) to manage,
supervise and otherwise deal with the Collateral. Any such
intercreditor agreement shall deemed to be a "Collateral Document" for
purposes of this Indenture, and in the event of a conflict between any
such intercreditor agreement and any other Collateral Document, the
terms of such intercreditor agreement shall govern.
(d) The Trustee shall, in the absence of negligence or bad
faith on its part, be entitled to rely on Officers' Certificates and
Opinions of Counsel with respect to the Issuers' and the Guarantors'
compliance with the provisions of Section 10.07 hereof."
Section 2.7 Amendment of Section 12.02.
Section 12.02 of the Indenture is hereby amended and restated to read
in its entirety as follows:
"Section 12.02. When Holdings May Merge, etc.
Holdings will not consolidate with or merge with or into
(whether or not Holdings is the surviving person), or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially
all of its properties or assets in one or more related transactions to
another corporation, person or entity unless the entity or person
formed by or surviving such consolidation or merger (if other than
Holdings) or the person to which such sale, assignment, transfer,
lease, conveyance or other disposition will have been made assumes all
the obligations of Holdings pursuant to a supplemental indenture in
form reasonably satisfactory to the Trustee, under the Debentures and
this Indenture.
Holdings shall deliver to the Trustee prior to the
consummation of the proposed transaction an Officers' Certificate to
the foregoing effect and an Opinion of Counsel, stating that the
proposed transaction and such supplemental indenture comply with this
Indenture. The Trustee shall be entitled to conclusively rely upon such
Officers' Certificate and Opinion of Counsel."
ARTICLE III.
MISCELLANEOUS
Section 3.1 Counterparts.
This First Supplemental Indenture may be executed in counterparts, each
of which when so executed shall be deemed to
<PAGE>
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 First 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 First Supplemental Indenture by
the Company, FJCC, Holdings and the Trustee shall bind their successors and
assigns, whether so expressed or not.
Section 3.5 GOVERNING LAW.
THIS FIRST 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 First Supplemental Indenture.
Except as amended by this First 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
First 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 the Company, FJCC, and Holdings, and
the Trustee shall not be responsible or accountable in any way whatsoever for or
with respect to the validity or execution or sufficiency of this First
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.]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be executed by their duly authorized representative as
of the date hereof.
ATTEST: FOAMEX-JPS CAPITAL CORPORATION
/s/ Tambra King By: /s/ Philip N. Smith, Jr.
Name: Philip N. Smith, Jr.
Title: Vice President
ATTEST: FOAMEX-JPS AUTOMOTIVE L.P.
/s/ Tambra King By: FJGP INC.
its Managing General Partner
By: /s/ Philip N. Smith, Jr.
Name: Philip N. Smith, Jr.
Title: Vice President
ATTEST: FOAMEX INTERNATIONAL INC.
/s/ Tambra King By: /s/ Philip N. Smith, Jr.
Name: Philip N. Smith, Jr.
Title: Vice President
ATTEST: FLEET NATIONAL BANK
as Trustee
/s/ Susan C. Merker
By: /s/ Elizabeth C. Hammer
Name: Elizabeth C. Hammer
Title: Vice President
<PAGE>
STATE OF NEW YORK
COUNTY OF NEW YORK
BEFORE ME, the undersigned, a Notary Public in and for said
State and County, on this day personally appeared Philip N. Smith, Jr., the
Vice President of FOAMEX-JPS CAPITAL CORPORATION, known to me to be the
person and officer whose name is subscribed to the foregoing instrument, and
acknowledged to me that the same was the act of the said Foamex-JPS Capital
Corporation, and that he executed the same as the act of such corporation
with the authority of the board of directors for the purposes and
consideration therein expressed and in the capacity therein stated.
/s/ Eleanor McKenna
Notary Public, State of New York
Printed Name: Eleanor McKenna
My Commission Expires:
October 9, 1998
STATE OF NEW YORK
COUNTY OF NEW YORK
BEFORE ME, the undersigned, a Notary Public in and for said
State and County, on this day personally appeared Philip N. Smith, Jr., the Vice
President of FJGP INC., the Managing General Partner of Foamex-JPS Automotive
L.P., a Delaware limited partnership, known to me to be the person and officer
whose name is subscribed to the foregoing instrument, and acknowledged to me
that the same was the act of the said FJGP Inc., and that he executed the same
as the act of such corporation with the authority of the board of directors for
the purposes and consideration therein expressed and in the capacity therein
stated.
/s/ Eleanor McKenna
-------------------------------
Notary Public, State of New York
Printed Name: Eleanor McKenna
My Commission Expires:
October 9, 1998
- ---------------------
<PAGE>
STATE OF NEW YORK
COUNTY OF NEW YORK
BEFORE ME, the undersigned, a Notary Public in and for said
State and County, on this day personally appeared Philip N. Smith, Jr., the Vice
President of FOAMEX INTERNATIONAL INC., known to me to be the person and officer
whose name is subscribed to the foregoing instrument, and acknowledged to me
that the same was the act of the said Foamex International Inc., and that he
executed the same as the act of such corporation with the authority of the board
of directors for the purposes and consideration therein expressed and in the
capacity therein stated.
/s/ Eleanor McKenna
-------------------------------
Notary Public, State of New York
Printed Name: Eleanor McKenna
My Commission Expires:
October 9, 1998
- ---------------------
STATE OF NEW YORK
COUNTY OF NEW YORK
BEFORE ME, the undersigned, a Notary Public in and for said
State and County, on this day personally appeared Elizabeth C. Hammer,
Vice President of FLEET NATIONAL BANK (formerly known as Shawmut Bank, N.A.),
known to me to be the person and officer whose name is subscribed to the
foregoing instrument, and acknowledged to me that the same was the act of the
said bank and that he executed the same as the act of such bank for the
purposes and consideration therein expressed and in the capacity therein
stated.
/s/ Karen R. Felt
Notary Public, State of Connecticut
Printed Name: Karen R. Felt
My Commission Expires:
February 28, 1999
<PAGE>
Press Release Contact: Kenneth R. Fuette Trina Hardiman
610 859-3081 Matthew Doering
David E. Bright Gavin Anderson & Co.
212 230-0488 212 373-0229
FOR IMMEDIATE RELEASE
FOAMEX INTERNATIONAL ANNOUNCES $530 MILLION REFINANCING
---------------------------------------------
Foamex L.P. to Repurchase Public Debt Totaling $373.0 Million and
$116.7 Million Principal Amount of Foamex-JPS Automotive
Senior Secured Discount Debentures
---------------------------------------------
Company to Establish $480.0 Million Credit Facility and Offer $150.0 Million of
Senior Subordinated Notes in the Rule 144A Market
LINWOOD, PENNSYLVANIA, May 12, 1997 - Foamex International Inc.
(NASDAQ:FMXI) announced today steps designed to improve its financial and
operating flexibility and to reduce interest expense. As part of these
steps, Foamex L.P., a 99%-owned subsidiary of Foamex International Inc.,
today commenced tender offers with concurrent consent solicitations for a
total of $489.7 million of aggregate principal of public debt, including:
1) $104.3 million of aggregate principal of its 9 1/2% Senior Secured
Notes due 2000 for an aggregate consideration of 104.193% of
principal plus accrued interest, comprised of a tender price of
102.193% and a consent fee of 2%;
<PAGE>
2) $135.9 million of aggregate principal of its 11 1/4% Senior Notes
due 2002 for an aggregate consideration of 105.709% of principal
plus accrued interest, comprised of a tender price of 103.709% and
a consent fee of 2%;
3) $125.8 million of aggregate principal of its 11 7/8% Senior
Subordinated Debentures due 2004 for an aggregate consideration of
107.586% of principal plus accrued interest, comprised of a tender
price of 105.586% and a consent fee of 2%;
4) $7.0 million of aggregate principal of its 11 7/8% Senior
Subordinated Debentures, Series B due 2004 for an aggregate
consideration of 107.586% of principal plus accrued interest,
comprised of a tender price of 105.586% and a consent fee of 2%; and
5) $116.7 million principal amount of the Foamex-JPS Automotive L.P.
Senior Secured Discount Debentures due 2004 for an aggregate
consideration of 88% of principal amount, which represents
approximately 116.2% of the projected accreted value as of June 9,
1997, comprised of a tender price of 86% of principal amount and a
consent fee of 2%.
The consent solicitations will expire on May 23, 1997 and the tender
offers will expire on June 9, 1997. Donaldson, Lufkin & Jenrette Securities
Corp. (212 892-4753) is acting as the dealer manager for the tender offers and
the consent solicitations. Holders who tender their securities in the tender
offers will be deemed to have submitted consents in the consent solicitations.
Holders may not deliver consents without tendering their securities. Holders
must tender their securities prior to 12:00 midnight, May 23, 1997 in order to
receive the
2
<PAGE>
consent fee. Holders who tender their securities after such date and
before the expiration date of June 9, 1997 will receive the tender price for
their securities, but will not receive the consent fee.
Foamex L.P. also plans to repay all borrowings under the terms of its
existing credit facility which had outstanding borrowings of $10.0 million as of
March 30, 1997.
The Company said that it expects to fund the repurchase with the
proceeds of:
- A $480.0 million Foamex L.P. credit facility arranged by The Bank
of Nova Scotia and Citicorp USA, Inc., including an estimated
$150.0 million revolver. The Company added that upon completion of
the refinancing transactions, it expects to have approximately
$100.0 million of revolver availability to fund future growth.
- A $150.0 million offering of Foamex L.P. Senior Subordinated
Notes in the Rule 144A market.
- Cash on hand.
Marshall S. Cogan, the Company's Chairman and Chief Executive Officer,
said that as a result of its refinancing activities, assuming no material
changes in interest rates and the tendering of substantially all of the
Company's outstanding public debt, Foamex International expects to achieve
annualized interest expense savings of between $8.0 million and $11.0 million.
The Company added that it also expects to take a one-time charge, net
of tax, of between $41.0 million and $47.0 million in the second quarter of 1997
related to the early
3
<PAGE>
extinguishment of debt, the write-off of debt issuance costs and
additional one-time charges related to other aspects of the refinancing.
Foamex expects to complete its refinancing activities by the end of the
second quarter of 1997.
The Company stated that future interest expense, and the ability to
realize the expected savings in interest expense, will vary based on a variety
of factors, including fluctuation in interest rates in general; the pricing of
the credit agreement and the Senior Subordinated Notes; and the percentage of
securities tendered in the tender offers. In addition, if the refinancing is
consummated, variable rate debt will comprise a larger percentage of the
Company's overall indebtedness than in the past, and as a result, future
fluctuation in interest rates will have a greater impact on the Company's
interest expenses than in the past. The Company also noted that the size of the
expected one-time pre-tax charge in the second quarter of 1997 related to the
refinancing will vary based on a variety of factors, including the percentage of
securities tendered in the tender offers and other factors beyond the Company's
control.
Consummation of the tender offers, the consent solicitations, the bank
financing and the Senior Subordinated Note offering are subject to conditions,
several of which are beyond the Company's control, and there can be no assurance
that such transactions will be consummated.
Foamex is the largest manufacturer and marketer of flexible
polyurethane and advanced polymer foam products in North America. Foamex's
quality foams are utilized primarily in
4
<PAGE>
four end-markets: carpet cushion and other carpet products; cushioning
foams for furniture, bedding, packaging and health care; automotive
applications, including trim and accessories; and industrial and consumer
technical foams, including those for filtration. For more information about
Foamex, visit is web site at http://www.foamex.com.
This news release shall not constitute an offer to sell or the
solicitation of an offer to buy the securities offered by Foamex L.P. in the
private placement. The securities offered by Foamex L.P. in the private
placements will not be registered under the Securities Act of 1933, as amended,
and may not be offered or sold in the United States absent registration or an
exemption from the registration requirements of the Securities Act of 1933, as
amended.
This news release contains forward-looking statements related to future
earnings. Actual results may differ. Cautionary statements regarding
forward-looking information may be found in the 1996 Annual Report and Forms
10-K on file with the Securities and Exchange Commission.
Editors note: Foamex's company logo and executive photos can be
retrieved in digital form by media without any charge from Weick Photo DataBase
(972) 392-0888.
# # #
5
<PAGE>
Foamex
Press Release
Contact: Kenneth R. Fuette Trina Hardiman
610 859-3081 Matthew Doering
David E. Bright Gavin Anderson & Co.
212 230-0488 212 373-0229
FOR IMMEDIATE RELEASE
FOAMEX INTERNATIONAL ANNOUNCES AMENDMENTS
TO CERTAIN INDENTURES
LINWOOD, PENNSYLVANIA, May 28, 1997 - Foamex International Inc. (NASDAQ:FMXI)
announced today that in connection with previously announced tender offers with
concurrent consent solicitations of Foamex L.P., its 99% owned subsidiary, for
five issues of public debt, Foamex L.P., Foamex Capital Corporation, Foamex-JPS
Automotive L.P., Foamex-JPS Capital Corporation and Foamex International Inc.
entered into Supplemental Indentures to the indentures relating to the following
issues of the debt: (i) 9-1/2% Senior Secured Notes due 2000; (ii) 11-1/4%
Senior Notes due 2002; (iii) 11-7/8% Senior Subordinated Debentures due 2004;
(iv) 11-7/8% Senior Subordinated Debentures due 2004, Series B, of Foamex L.P.
and Foamex Capital Corporation, and (v) Senior Secured Discount Debentures due
2004, Series B, of Foamex-JPS Automotive L.P. and Foamex-JPS Capital
Corporation.
The Supplemental Indentures became effective today, but the proposed
amendments for each issue of notes will not become operative until the date upon
which the tender of all validly tendered notes of that issue is accepted.
The Supplemental Indentures provide for, among other things, (i)
elimination of substantially all restrictive covenants, (ii) the removal from
the definition of events of default of all events other the nonpayment and
certain bankruptcy events, (iii) in the case of each of the Senior Secured
Notes, the Senior Notes, and the Senior Secured Discount Debentures, (A) the
granting of a shared lien in the collateral for such issue of notes, with
payment priority preserved for the holders of the notes, (B) the appointment of
the agent for the contemplated bank financing as the collateral agent for all
collateral securing
<PAGE>
both such issue of notes and the bank financing and (C) the execution of an
intercreditor agreement.
Foamex L.P. commenced the tender offers and concurrent consent
solicitations on May 12, 1997. The debt has an aggregate principal amount of
approximately $489.7 million.
Donaldson, Lufkin & Jenrette Securities Corp. (212 892-4753) is acting
as the dealer manager for the tender offers and the consent solicitations.
Holders who tender their securities in the tender offer will be deemed to have
submitted consents in the consent solicitations. Holders may not deliver
consents without tendering their securities. Holders must have tendered their
securities prior to 12:00 noon EDT, Wednesday, May 28, 1997 in order to receive
the consent fee. Holders who have tendered or will tender their securities after
such date and before the expiration date of June 9, 1997 will receive the tender
price for their securities, but will not receive the consent fee.
Consummation of the tender offers and the consent solicitations as well
as the previously announced bank financing and the Senior Subordinated Note
offering are subject to conditions, several of which are beyond the Company's
control, and there can be no assurance that such transactions will be
consummated.
Foamex L.P. is the largest manufacturer and marketer of flexible
polyurethane and advanced polymer foam products in North America. Foamex's
quality forms are utilized primarily in four end-markets: carpet cushion and
other carpet products; cushioning foams for furniture, bedding, packaging and
health care; automotive applications, including trim and accessories; and
industrial and consumer technical foams, including those for filtration. For
more information about Foamex, visit its web site at http://www.foamex.com.
This news release shall not constitute an offer to sell or the
solicitation of an offer to buy the securities offered by Foamex L.P. in the
private placement. The securities offered by Foamex L.P. in the private
placement will not be registered under the Securities Act of 1933, as amended,
and may not be offered or sold in the United States absent registration or an
exemption from the registration requirements of the Securities Act of 1933, as
amended.
This news release contains forward-looking statement related to future
earnings. Actual results may differ. Cautionary statements regarding
forward-looking information may be found in the 1996 Annual Report and Forms
10-K on file with the Securities and Exchange Commission
Editor's note: Foamex's company logo and executive photos can be
retrieved in digital form by media without any charge from Wieck Photo DataBase
(972) 392-0888.
2
