PLAN SUPPORT AGREEMENT
Exhibit
3
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
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 Claim1
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.
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.]
1 Capitalized
terms used herein and not otherwise defined shall have the meanings set
forth in
the Foamex Plan.
|
|
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
|
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
]
