Exhibit 99.1
PLAN SUPPORT AGREEMENT
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This Plan Statement Support Agreement is made and entered into as of
November 27, 2006 by and among (i) Foamex International Inc. ("Foamex
International") and certain of Foamex International's subsidiaries and
affiliates, each of which is a debtor and debtor in possession in a chapter 11
case pending before the United States Bankruptcy Court for the District of
Delaware (collectively, the "Foamex Group"), (ii) the holders of the Senior
Secured Notes (as defined below) identified on the signature pages hereto
(collectively, the "Supporting Secured Noteholders"), (iii) U.S. Bank National
Association, solely in its capacity as the Senior Secured Notes Indenture
Trustee (as defined below), (iv) D. E. Shaw Laminar Portfolios, L.L.C., Sigma
Capital Associates, LLC, Par IV Master Fund, Ltd., Sunrise Partners Limited
Partnership and Xxxxxxx, Sachs & Co. (each solely in its capacity as a holder of
Senior Secured Notes, as described in Recital C, hereof, and not in its capacity
as a Significant Equityholder under the Equity Commitment Agreement or the
Foamex Plan (each as defined below; collectively, the "Significant
Equityholders"), and (v) the Ad Hoc Committee of holders of Senior Secured Notes
(the "Ad Hoc Committee"). Each of Foamex Group, each Supporting Secured
Noteholder, each Significant Equityholder, the Senior Secured Notes Indenture
Trustee and the Ad Hoc Committee is referred to herein individually as a
"Party," and collectively, as the "Parties." As used herein, the phrases "this
Agreement", "hereto", "hereunder" and phrases of like import shall mean this
Plan Support Agreement.
RECITALS
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WHEREAS:
A. Foamex L.P. and Foamex Capital Corporation are the issuers of 10.75%
Senior Secured Notes due 2009 (collectively, the "Senior Secured Notes")
pursuant to the terms of that certain Indenture, dated as of March 2, 2002 (the
"Senior Secured Notes Indenture") by and among Foamex L.P., Foamex Capital
Corporation, the Guarantors (as defined therein) and U.S. Bank National
Association, as indenture trustee (the "Senior Secured Notes Indenture
Trustee");
B. The Ad Hoc Committee represents the interests of holders of the Senior
Secured Notes that own or have investment management responsibility for accounts
that own approximately $145,000,000 in principal amount of Senior Secured Notes.
The Supporting Secured Noteholders initially executing this Agreement own or
have investment management responsibility for accounts that own approximately
$75,000,000 in principal amount of Senior Secured Notes;
C. The Significant Equityholders collectively own or have investment
responsibility for accounts that own (i) 100% of the issued and outstanding
preferred stock of Foamex International, and (ii) approximately 53% of the
issued and outstanding common stock of Foamex International. In addition,
certain of the Significant Equityholders own or have investment responsibility
for accounts that own approximately $110,000,000 in principal amount of the
Senior Secured Notes.
D. Each Foamex Group member is in the process of restructuring its
financial obligations through the prosecution of jointly administered chapter 11
cases (collectively, the "Chapter 11 Cases") in the Bankruptcy Court for the
District of Delaware ("Bankruptcy Court");
E. Disputes have arisen between the Foamex Group, on the one hand, and the
Senior Secured Notes Indenture Trustee and the Ad Hoc Committee, on the other
hand, pursuant to which, among other things, the Foamex Group has disputed (i)
the aggregate amount of the Senior Secured Note claims as of September 19, 2005,
(ii) the rate at which interest on such claims should accrue and be paid during
the pendency of the Chapter 11 Cases, and (iii) the Senior Secured Noteholders'
alleged entitlement to be paid a prepayment premium or, alternatively, a change
of control premium, pursuant to the terms of the Senior Secured Notes Indenture
(the "Senior Secured Notes Disputes").
F. The Parties have negotiated and agreed upon the principal terms of a
consensual plan of reorganization for the Foamex Group, which plan of
reorganization incorporates a settlement of the Senior Secured Notes Disputes
(the "Senior Secured Notes Disputes Settlement"). Pursuant to the Senior Secured
Notes Disputes Settlement, assuming the Class of Senior Secured Notes votes to
accept the Foamex Plan (as defined below) (a) the Senior Secured Note Base
Claim(1) plus Post-Petition Interest shall be Allowed, (b) the Senior Secured
Note Premium Claim shall be Allowed in the amount of $7,500,000; and (c) the
Debtors shall dismiss with prejudice the Senior Secured Note Premium Claim
Litigation.
G. On November 27, 2006, the Foamex Group filed with the Bankruptcy Court
that certain Second Amended Joint Plan of Reorganization Under Chapter 11 of the
Bankruptcy Code (such plan, together with all plan-related documents,
agreements, supplements and instruments reasonably acceptable to each of the
Parties, the "Foamex Plan"). In addition, on November 27, 2006 the Foamex Group
filed, and the Bankruptcy Court approved, that certain Second Amended Disclosure
Statement for Debtors' Second Amended Plan of Reorganization Under Chapter 11 of
the Bankruptcy Code (the "Foamex Disclosure Statement").
H. Pursuant to the terms of this Agreement, the Parties have agreed to
support and, with respect to the Supporting Secured Noteholders and Significant
Equityholders, vote to accept (subject to the terms and conditions of this
Agreement and the receipt of the Foamex Disclosure Statement), to the extent
legally permissible, confirmation of the Foamex Plan;
I. In expressing such support and commitment, the Parties do not desire and
do not intend in any way to derogate from or diminish the solicitation
requirements of applicable securities and bankruptcy law, or the fiduciary
duties of the Foamex Group or any other Party having such duties.
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(1) Capitalized terms used herein and not otherwise defined shall have the
meanings set forth in the Foamex Plan.
AGREEMENT
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NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the Parties hereby
agree as follows:
1. Defined Terms. All capitalized terms used and not otherwise defined
herein shall have the meanings ascribed to them in the Foamex Plan.
2. Foamex Group's Support. The Parties believe that prompt consummation of
the Foamex Plan will best facilitate the Foamex Group's business and financial
restructuring and resolve the Senior Secured Notes Disputes, and is in the best
interests of the Foamex Group's creditors, shareholders and other parties in
interest. Accordingly, the Foamex Group hereby expresses its intention to seek
approval of the Foamex Plan. Without limiting the foregoing, for so long as this
Agreement remains in effect, and subject to each of the Supporting Secured
Noteholders, Significant Equityholders and the Ad Hoc Committee fulfilling its
respective obligations as contemplated herein, the Foamex Group agrees:
a. to use its best efforts to solicit the requisite votes in favor of,
and to obtain confirmation by the Bankruptcy Court of, the Foamex Plan;
b. to take such actions as may be necessary or appropriate to obtain
approval of the Senior Secured Notes Disputes Settlement (including, without
limitation, seeking approval thereof pursuant to Bankruptcy Rule 9019, which
approval may be obtained in connection with confirmation of the Foamex Plan);
c. not to pursue, propose or support, or encourage the pursuit, proposal
or support of, any plan of reorganization for any member of the Foamex Group
that is inconsistent with the Foamex Plan; and
d. to otherwise use its best efforts to take, or cause to be taken, all
actions, and to do, or cause to be done, all things necessary, proper or
advisable under applicable laws and regulations to consummate and make effective
the transactions contemplated by the Foamex Plan (including the Senior Secured
Notes Disputes Settlement)) at the earliest practicable date;
in all events expressly subject to the exercise (after consultation with outside
legal counsel and with prior notice to counsel to the Ad Hoc Committee and the
Significant Equityholders) by each member of the Foamex Group of its fiduciary
duties as a debtor and debtor in possession in the Chapter 11 Cases.
3. Agreement to Support the Foamex Plan
a. For so long as this Agreement remains in effect, and subject to the
Parties hereto fulfilling their respective obligations as provided herein, each
Supporting Secured Noteholder agrees to (i) support confirmation of the Foamex
Plan (including the Senior
Secured Notes Disputes Settlement) ; (ii) timely vote any and all Claims (as
defined in the Foamex Plan) held by such Senior Secured Noteholder to accept the
Foamex Plan (including the Senior Secured Notes Disputes Settlement), (iii) not
pursue, propose, support, or encourage the pursuit, proposal or support of, any
chapter 11 plan or other restructuring or reorganization for, or the liquidation
of, any member of the Foamex Group (directly or indirectly) that is inconsistent
with the Foamex Plan (including the Senior Secured Notes Disputes Settlement);
(iv) not, nor encourage any other person or entity to, delay, impede, appeal or
take any other negative action, directly or indirectly, to interfere with, the
acceptance or implementation of the Foamex Plan (including the Senior Secured
Notes Disputes Settlement); (v) not commence any proceeding or prosecute, join
in, or otherwise support any objection to oppose or object to the Foamex Plan
(including the Senior Secured Notes Disputes Settlement); (vi) support any
motion filed by, or any request made by, the Foamex Group with the Bankruptcy
Court pursuant to Bankruptcy Rule 9019 seeking approval of the Senior Secured
Notes Disputes Settlement, and (vii) support any motion filed by the Foamex
Group pursuant to section 1121 of the Bankruptcy Code seeking to extend the
period during which only the Foamex Group may solicit acceptances for the Foamex
Plan.
b. For so long as this Agreement remains in effect, and subject to the
Parties hereto fulfilling their respective obligations as provided herein, and
subject to the obligations of the Significant Equityholders under the Equity
Commitment Agreement (as defined below) not having been terminated, each
Significant Equityholder agrees to (i) support approval of the Senior Secured
Notes Disputes Settlement; (ii) timely vote any and all Claims held by such
Significant Equityholder to accept the Foamex Plan; and (iii) not, nor encourage
any other person or entity to, delay, impede, appeal or take any other negative
action, directly or indirectly, to interfere with, the acceptance or
implementation of the Senior Secured Notes Disputes Settlement.
c. For so long as this Agreement remains in effect, and subject to the
Parties hereto fulfilling their respective obligations as provided herein, the
Ad Hoc Committee and the Senior Secured Notes Indenture Trustee each agrees to
(i) support confirmation of the Foamex Plan (including the Senior Secured Notes
Disputes Settlement); (ii) not pursue, propose, support, or encourage the
pursuit, proposal or support of, any chapter 11 plan or other restructuring or
reorganization for, or the liquidation of, any member of the Foamex Group
(directly or indirectly) that is inconsistent with the Foamex Plan (including
the Senior Secured Notes Disputes Settlement); (iii) not, nor encourage any
other person or entity to, delay, impede, oppose, object to, appeal or take any
other negative action, directly or indirectly, to interfere with, the acceptance
or implementation of the Foamex Plan (including the Senior Secured Notes
Disputes Settlement); (iv) not commence any proceeding or prosecute, join in, or
otherwise support any objection to oppose or object to the Foamex Plan
(including the Senior Secured Notes Disputes Settlement);(v) support any motion
filed by, or any request made by, the Foamex Group with the Bankruptcy Court
pursuant to Bankruptcy Rule 9019 seeking approval of the Senior Secured Notes
Disputes Settlement, (vi) support any motion filed by the Foamex Group pursuant
to section 1121 of the Bankruptcy Code seeking to extend the period during which
only the Foamex Group may solicit acceptances for the Foamex Plan; and (vii)
execute a letter addressed to the holders of Senior Secured Notes in support of
the Foamex Plan and the Senior Secured Notes Disputes Settlement, which letter
shall be reasonably acceptable to the Parties hereto and shall be circulated by
the Debtors with the Foamex Disclosure Statement as part of theDebtors'
solicitation package.
4. Acknowledgement.
a. While the Parties agree herein to support approval of the Foamex
Plan, this Agreement is not and shall not be deemed to be a solicitation for
consent to the Foamex Plan in contravention of section 1125(b) of the Bankruptcy
Code. Notwithstanding anything to the contrary contained herein, any obligation
to vote in favor of the Foamex Plan as set forth above is expressly conditioned
on the receipt of the Foamex Plan and a copy of the Foamex Disclosure Statement
which shall have previously been approved by the Bankruptcy Court, after notice
and a hearing, as containing adequate information as required by Section 1125 of
the Bankruptcy Code.
b. Each Party further acknowledges that no securities of any Debtor are
being offered or sold hereby and that this Agreement neither constitutes an
offer to sell nor a solicitation of an offer to buy any securities of any
Debtor.
5. Limitations on Transfer of Senior Secured Notes.
a. Each Supporting Secured Noteholder shall not (i) sell, transfer,
assign, pledge, grant a participation interest in or otherwise dispose, directly
or indirectly, of its right, title or interest in respect of the Senior Secured
Notes (to the extent held by it on the date hereof), in whole or in part, or any
interest therein, or (ii) grant any proxies, deposit any of its Senior Secured
Notes (to the extent held by it on the date hereof) into a voting trust, or
enter into a voting agreement with respect to any of such Senior Secured Notes,
unless the transferee agrees in writing at the time of such transfer to be bound
by this Agreement in its entirety without revision, and the transferor, within
three business days, provides written notice of such transfer to Foamex
International, together with a copy of the written agreement of the transferee
to be bound by this Agreement in its entirety without revision. Upon compliance
with the foregoing, (x) the transferee shall be deemed to constitute a
Supporting Secured Noteholder solely to the extent of such transferred rights
and obligations, and (y) the transferor shall be deemed to relinquish its rights
(and be released from its obligations) under this Agreement to the extent of
such transferred rights and obligations. No Supporting Secured Noteholder may
create any subsidiary or affiliate for the sole purpose of acquiring any Senior
Secured Notes or any other claims against or interests in any member of the
Foamex Group without first causing such subsidiary or affiliate to become a
party hereto.
b. Each Significant Equityholder shall not (i) sell, transfer, assign,
pledge, grant a participation interest in or otherwise dispose, directly or
indirectly, of its right, title or interest in respect of the Senior Secured
Notes (to the extent held by it on the date hereof), in whole or in part, or any
interest therein, or (ii) grant any proxies, deposit any of its Senior Secured
Notes (to the extent held by it on the date hereof) into a voting trust, or
enter into a voting agreement with respect to any of such Senior Secured Notes,
unless the transferee agrees in writing at the time of such transfer to be bound
by this Agreement in its entirety without revisions, and the transferor, within
three business days, provides written notice of such transfer to Foamex
International, together with a copy of the written agreement of the transferee
to be bound by this Agreement in its entirety without revision. Upon compliance
with the foregoing, (x) the transferee shall be deemed to constitute a
Significant Equityholder solely to the extent of such transferred rights and
obligations, and (y) the transferor shall be deemed to relinquish its
rights (and be released from its obligations) under this Agreement to the extent
of such transferred rights and obligations. No Significant Equityholder may
create any subsidiary or affiliate for the sole purpose of acquiring any Senior
Secured Notes or any other claims against any member of the Foamex Group without
first causing such subsidiary or affiliate to become a party hereto
6. Further Acquisition of Senior Secured Notes. This Agreement shall in no
way be construed to preclude any Supporting Secured Noteholder or any
Significant Equityholder from acquiring additional Senior Secured Notes or other
claims against any member of the Foamex Group. Any such additional Senior
Secured Notes or claims so acquired shall be automatically subject to the terms
of this Agreement.
7. Condition to each Party's Obligations. Each Party's obligations under
this Agreement are subject to the prior execution of this Agreement by the
following persons:
a. each member of the Foamex Group;
b. each Significant Equityholder;
c. each Supporting Secured Noteholder;
d. the Ad Hoc Committee (by its counsel), and
e. the Senior Secured Notes Indenture Trustee.
In no event shall this Agreement be effective with respect to any Party
until the conditions set forth in this Section 7 are satisfied.
8. Termination Events. This Agreement may terminate upon the occurrence of
any of the following events (each, a "Termination Event"):
a. any member of the Foamex Group has breached any of its material
obligations under this Agreement, has failed to diligently prosecute the
confirmation of the Foamex Plan or has announced its intention to pursue a
chapter 11 plan that differs materially from the Foamex Plan;
b. any Party (other than a member of the Foamex Group) shall have
breached any of its material obligations under this Agreement;
c. any of the Chapter 11 Cases shall have been dismissed or converted to
a case under chapter 7 of the Bankruptcy Code, or an interim or permanent
trustee shall be appointed in any of the Chapter 11 Cases, or a responsible
officer or an examiner with powers beyond the duty to investigate and report (as
set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code) shall be
appointed in any of the Chapter 11 Cases;
d. any court (including the Bankruptcy Court) shall declare, in a Final
Order, this Agreement to be unenforceable;
e. entry of an order by the Bankruptcy Court denying confirmation of the
Foamex Plan; or
f. if the effective date of the Foamex Plan shall not have occurred by
February 28, 2007.
9. Termination of this Agreement.
a. Upon the occurrence of any of the Termination Events described in
paragraphs 8(c), (d) or (e) herein, this Agreement shall terminate automatically
and without further notice or action by any Party.
b. Upon the occurrence of any other Termination Event set forth herein,
this Agreement shall terminate only upon written notice to the breaching Party
from each of the non-breaching Parties and a failure by the breaching Party to
remedy such breach within three (3) business days, provided however, that the
right to terminate hereunder shall not preclude any non-breaching Party from
seeking specific performance or any other remedy available under applicable law
for breach of this Agreement.
c. Specific Performance; Damages. This Agreement, including without
limitation the Parties' agreement herein to support confirmation of the Foamex
Plan, is intended as a binding commitment enforceable in accordance with its
terms. Each Party acknowledges and agrees that the exact nature and extent of
damages resulting from a breach of this Agreement are uncertain at the time of
entering into this Agreement and that breach of this Agreement would result in
damages that would be difficult to determine with certainty. It is understood
and agreed that money damages would not be a sufficient remedy for any breach of
this Agreement and that the Parties shall each be entitled to specific
performance and injunctive relief as remedies for any such breach, and further
agree to waive, and to use their best efforts to cause each of their
representatives to waive, any requirement for the securing or posting of any
bond in connection with such remedy. Such remedies shall not be deemed to be the
exclusive remedies for the breach of this Agreement by any Party or its
representatives, but shall be in addition to all other remedies available at law
or in equity. In the event of litigation relating to this Agreement, if a court
of competent jurisdiction determines that any Party or any of its
representatives have breached this Agreement, such breaching Party shall be
liable and pay to the non-breaching Parties the reasonable legal fees incurred
by such non-breaching Parties in connection with such litigation, including any
appeal therefrom.
10. Effect of Termination. Upon termination of this Agreement, all
obligations hereunder shall terminate and shall be of no further force and
effect; provided, however, that any claim for breach of this Agreement shall
survive termination and all rights and remedies with respect to such claims
shall not be prejudiced in any way; but provided further, that the breach of
this Agreement by one or more Parties shall not create any rights or remedies
against any non-breaching Party unless such non-breaching Party has participated
in or aided and abetted the breach by the breaching Party or Parties. Except as
set forth above in this paragraph 10, upon such termination, any obligations of
the non-breaching Parties set forth in this Agreement shall be null and void ab
initio and all claims, causes of action, remedies, defenses,
setoffs, rights or other benefits of such non-breaching Parties shall be fully
preserved without any estoppel, evidentiary or other effect of any kind or
nature whatsoever.
11. Representations and Warranties. Each member of the Foamex Group, each
Supporting Secured Noteholder, each Significant Equityholder, the Ad Hoc
Committee and the Senior Secured Notes Indenture Trustee represents and warrants
to each other Party, severally but not jointly, that the following statements
are true, correct and complete as of the date hereof:
a. Corporate Power and Authority. It is duly organized, validly
existing, and in good standing under the laws of the state of its organization,
and has all requisite corporate, partnership or other power and authority to
enter into this Agreement and to carry out the transactions contemplated by, and
to perform its respective obligations under, this Agreement.
b. Authorization. The execution and delivery of this Agreement and the
performance of its obligations hereunder have been duly authorized by all
necessary corporate, partnership or other action on its part.
c. Binding Obligation. This Agreement has been duly executed and
delivered by it and constitutes its legal, valid and binding obligation,
enforceable in accordance with the terms hereof.
d. No Conflicts. The execution, delivery and performance by it (when
such performance is due) of this Agreement do not and shall not (i) violate any
provision of law, rule or regulation applicable to it or any of its subsidiaries
or its certificate of incorporation or bylaws or other organizational documents
or those of any of its subsidiaries or (ii) conflict with, result in a breach of
or constitute (with due notice or lapse of time or both) a default under any
material contractual obligation to which it or any of its subsidiaries is a
party.
12. Additional Representations of Supporting Secured Noteholders and
Significant Equityholders.
a. Each Supporting Secured Noteholder represents that, as of the date
hereof, it owns or has investment management responsibility for accounts that
own Senior Secured Notes in the principal amount set forth on the schedule
provided by counsel to the Ad Hoc Committee to counsel for the Foamex Group on
the date hereof.
b. Each Significant Equityholder represents that, as of the date
hereof, it owns or has investment management responsibility for accounts that
own Senior Secured Notes in the principal amount set forth on the schedule
provided by counsel to the Significant Equityholders to counsel for the Foamex
Group on the date hereof.
13. Amendment or Waiver. Except as otherwise specifically provided herein,
this Agreement may not be modified, waived, amended or supplemented unless such
modification, waiver, amendment or supplement is in writing and has been signed
by each Party. No waiver of any of the provisions of this Agreement shall be
deemed or constitute a waiver of
any other provision of this Agreement, whether or not similar, nor shall any
waiver be deemed a continuing waiver (unless such waiver expressly provides
otherwise).
14. Relationship to Equity Commitment Agreement. The Significant
Equityholders and Foamex International are parties to that certain Equity
Commitment Agreement, dated as October 13, 2006 (as amended, modified or
supplemented from time to time, the "Equity Commitment Agreement"), which is
scheduled to be considered for approval by the Bankruptcy Court on November 27,
2006. Nothing in this Agreement amends, replaces, supercedes or otherwise
affects the terms and conditions of the Equity Commitment Agreement, the
obligations of the parties thereto or the rights of the parties thereto to take
any action in respect of the Equity Commitment Agreement. For the avoidance of
doubt, nothing in this Agreement, nor any action taken or not taken in
accordance with this Agreement, constitutes amodification, waiver or release, or
estoppel in respect of any term, condition, right or obligation of the Equity
Commitment Agreement by any party thereto.
15. Direction to Senior Secured Notes Indenture Trustee. The execution and
delivery of this Agreement by the Supporting Secured Noteholders and the
Significant Equityholders who, in the aggregate, own or have investment
management responsibility for accounts that own Senior Secured Notes having a
principal amount in excess of $151,000,000, shall constitute an instruction to
the Senior Secured Notes Indenture Trustee in accordance with the terms of the
Senior Secured Notes Indenture to (a) execute and deliver this Agreement, (b) do
and perform all actions contemplated by this Agreement, and (c) do and perform
all actions contemplated by the Foamex Plan.
16. Notices. Any notice required or desired to be served, given or
delivered under this Agreement shall be in writing, and shall be deemed to have
been validly served, given or delivered if provided by personal delivery, or
upon receipt of fax delivery, as follows:
a. if to any member of the Foamex Group, to Xxxx X. Xxxxxxxx and Xxxxx
X. Xxxxxxx, Xxxx Xxxxx, Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, fax: 000-000-0000;
b. if to the Supporting Secured Noteholders or the Ad Hoc Committee, to
Xxxx Xxxxxx, Xxxxxxx Xxxx & Xxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, fax: 000-000-0000;
c. if to the Significant Equityholders, to Xxxxx X. Xxxxxxx, Xxxxxx
Xxxxxxxx, Xxxxx & Xxxxxxxx LLP, Xxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
fax: 000-000-0000; and
d. if to the the Senior Secured Notes Indenture Trustee, to Xxxxxxxx
Xxxxxxx, King & Spalding, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
fax: 000-000-0000.
17. Governing Law; Jurisdiction. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO ANY CONFLICTS OF LAW PROVISION WHICH WOULD REQUIRE THE APPLICATION OF
THE LAW OF ANY
OTHER JURISDICTION. By its execution and delivery of this Agreement, each of the
Parties hereto hereby irrevocably and unconditionally agrees for itself that any
legal action, suit or proceeding against it with respect to any matter under or
arising out of or in connection with this Agreement or for recognition or
enforcement of any judgment rendered in any such action, suit or proceeding,
shall be brought in the United States Bankruptcy Court for the District of
Delaware. By execution and delivery of this Agreement, each of the Parties
hereto irrevocably accepts and submits itself to the exclusive jurisdiction of
such court, generally and unconditionally, with respect to any such action, suit
or proceeding, and waives any objection it may have to venue or the convenience
of the forum.
18. Headings. The headings of the sections, paragraphs and subsections of
this Agreement are inserted for convenience only and shall not affect the
interpretation hereof.
19. Interpretation. This Agreement is the product of negotiations of the
Parties, and in the enforcement or interpretation hereof, is to be interpreted
in a neutral manner, and any presumption with regard to interpretation for or
against any Party by reason of that Party having drafted or caused to be drafted
this Agreement, or any portion hereof, shall not be effective in regard to the
interpretation hereof.
20. Successors and Assigns. This Agreement is intended to bind and inure to
the benefit of the Parties and their respective successors, assigns, heirs,
transferees, executors, administrators and representatives.
21. No Third-Party Beneficiaries. Unless expressly stated herein, this
Agreement shall be solely for the benefit of the Parties hereto and no other
person or entity shall be a third-party beneficiary hereof.
22. No Waiver of Participation and Reservation of Rights. Except as
expressly provided in this Agreement and in any amendment among the Parties,
nothing herein is intended to, or does, in any manner waive, limit, impair or
restrict the ability of each of the Parties to protect and preserve its rights,
remedies and interests, including without limitation, its claims against any of
the other Parties (or their respective affiliates or subsidiaries) or its full
participation in the Chapter 11 Cases. If the transactions contemplated by this
Agreement or in the Foamex Plan are not consummated, or if this Agreement is
terminated for any reason, the Parties fully reserve any and all of their
rights.
23. No Admissions. This Agreement shall in no event be construed as or be
deemed to be evidence of an admission or concession on the part of any Party of
any claim or fault or liability or damages whatsoever. Each of the Parties
denies any and all wrongdoing or liability of any kind and does not concede any
infirmity in the claims or defenses which it has asserted or could assert. No
Party shall have, by reason of this Agreement, a fiduciary relationship in
respect of any other Party or any party in interest in these Chapter 11 Cases,
or any member of the Foamex Group, and nothing in this Agreement, expressed or
implied, is intended to or shall be so construed as to impose upon any Party any
obligations in respect of this Agreement except as expressly set forth herein.
In the event that the Bankruptcy Court does not approve the Senior Secured Notes
Disputes Settlement, nothing contained in this Agreement, the Foamex Plan, the
Foamex Disclosure Statement or any negotiations or writings in connection
therewith shall in any way be construed as, or be deemed to be evidence of an
admission, concession or agreement as to the merits or legal positions of, any
of the Parties with respect to the Senior Secured Notes Disputes Settlement and
the Parties shall not use this Agreement, the Foamex Plan, the Foamex Disclosure
Statement or any negotiations or writings in connection therewith as evidence of
any such admission, concession or agreement.
24. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which shall
constitute one and the same Agreement. Delivery of an executed signature page of
this Agreement by facsimile shall be effective as delivery of a manually
executed signature page of this Agreement.
25. Representation by Counsel. Each Party acknowledges that it has been
represented by counsel in connection with this Agreement and the transactions
contemplated herein. Accordingly, any rule of law or any legal decision that
would provide any Party with a defense to the enforcement of the terms of this
Agreement against such Party based upon lack of legal counsel shall have no
application and is expressly waived.
26. Entire Agreement. This Agreement and the above-described schedules
provided to counsel for the Foamex Group constitute the entire agreement between
the Parties and supersede all prior and contemporaneous agreements,
representations, warranties and understandings of the Parties, whether oral,
written or implied, as to the subject matter hereof.
27. Several not Joint. The agreements, representations and obligations of
the Parties under this Agreement are, in all respects, several and not joint.
Any breach of this Agreement by any Party shall not result in liability for any
other non-breaching Party.
[Remainder of page intentionally blank; remaining
pages are signature pages.]
IN WITNESS WHEREOF, the undersigned have each caused this Agreement to be
duly executed and delivered by their respective, duly authorized officers as of
the date first above written.
FOAMEX INTERNATIONAL INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx
Executive Vice-President, Chief
Administrative Officer, Chief Restructuring
Officer and General Counsel
FMXI, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------------
Xxxxxxx X. Xxxxxxxxx
Vice-President, Chief Restructuring
Officer and Secretary
FOAMEX, L.P.
By FMXI, INC., Foamex L.P.'s Managing General
Partner
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------------
Xxxxxxx X. Xxxxxxxxx
Vice-President, Chief Restructuring
Officer and Secretary
FOAMEX CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------------
Xxxxxxx X. Xxxxxxxxx
Vice-President, Chief Restructuring
Officer and Secretary
FOAMEX CARPET CUSHION LLC
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------------
Xxxxxxx X. Xxxxxxxxx
Vice-President, Chief Restructuring
Officer and Secretary
FOAMEX ASIA, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------------
Xxxxxxx X. Xxxxxxxxx
Vice-President, Chief Restructuring
Officer and Secretary
FOAMEX LATIN AMERICA, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------------
Xxxxxxx X. Xxxxxxxxx
Vice-President, Chief Restructuring
Officer and Secretary
FOAMEX MEXICO, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------------
Xxxxxxx X. Xxxxxxxxx
Vice-President, Chief Restructuring
Officer and Secretary
FOAMEX MEXICO II, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------------
Xxxxxxx X. Xxxxxxxxx
Vice-President, Chief Restructuring
Officer and Secretary
XXXXXXX GLOBAL DISTRESSED OPPORTUNITIES MASTER
FUND, L.P., by Xxxxxxx Investment Company, LLC,
as general partner
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------------
Xxxxxx X. Xxxxx, III, Executive Vice
President
JEFFERIES BUCKEYE MASTER FUND LTD., by Jefferies
Asset Management, LLC, its investment adviser
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------------
Xxxxxx X. Xxxxxx
EVP and CFO
XXXXXX CAPITAL MANAGEMENT, INC., as agent on
behalf of certain discretionary accounts
By: /s/ Xxxxx Xxxxxxxx
-------------------------------------------
Xxxxx Xxxxxxxx, General Counsel and Chief
Compliance Officer
NORTHEAST INVESTORS TRUST
By: /s/ Xxxxx Xxxxxx
-------------------------------------------
Xxxxx Xxxxxx
VENOR CAPITAL MANAGEMENT LP
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------------
Xxxxxxx Xxxxxxx
AD HOC COMMITTEE OF SENIOR SECURED NOTEHOLDERS
By: /s/ Xxxx Xxxxxx
-------------------------------------------
Xxxx Xxxxxx
Its Counsel
U.S. BANK NATIONAL ASSOCIATION, solely in its
capacity as Senior Secured Notes Indenture
Trustee
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------------
Xxxxx X. Xxxxxx
Vice President
X. X. XXXX LAMINAR PORTFOLIOS, L.L.C., solely in
the capacity as a holder of Senior Secured Notes
By: /s/ Xxxxxx Xxxxxx
-------------------------------------------
SIGMA CAPITAL ASSOCIATES, LLC, solely in the
capacity as a holder of Senior Secured Notes
By: Sigma Capital Management, LLC
By: /s/ Xxxxx Xxxxxxxx
--------------------------------------------
PAR IV MASTER FUND LTD., solely in the capacity
as a holder of Senior Secured Notes
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------------
Director
SUNRISE PARTNERS LIMITED PARTNERSHIP, solely in
the capacity as a holder of Senior Secured Notes
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------
Vice President
XXXXXXX, XXXXX & CO., solely in the capacity as
a holder of Senior Secured Notes
By: /s/ Xxxxxxx Xxxx
--------------------------------------------
Managing Director
TQA SPECIAL OPPORTUNITIES MASTER FUND LTD.
By: /s/ Xxxxxxxxxxx Xxxxxxxxx
-------------------------------------------
Xxxx Xxxxxxxxx n his capacity as a Director
BASSO CAPTIAL MANAGEMENT, LLC
By: /s/ Xxxxx Xxx
-------------------------------------------
Xxxxx Xxx, Authorized Signatory
ALJ CAPITAL MANAGEMENT, LLC, as agent for ALJ
Capital I, L.P. and ALJ Capital II, L.P.
By: /s/ Xxxxxxxx X. Xxxx
-------------------------------------------
Xxxxxxxx X. Xxxx, Authorized Signatory
