EXHIBIT 99.6
PLAN SUPPORT AGREEMENT
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
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
-----------------------------------------------
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
CONCORDIA MAC29 LTD, acting
by and through Concordia Advisors, L.L.C.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------------
Xxxxxx X. Xxxxxxx, Authorized Signatory
CONCORDIA DISTRESSED DEBT FUND, L.P., acting by
and through Concordia Advisors, L.L.C.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------------
Xxxxxx X. Xxxxxxx, Authorized Signatory
CONCORDIA INSTITUTIONAL MULIT-STRATEGY FUND, LTD.,
acting by and through Concordia Advisors, L.L.C.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------------
Xxxxxx X. Xxxxxxx, Authorized Signatory
CONCORDIA PARTNERS, L.P., acting by and through
Concordia Advisors, L.L.C.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------------
Xxxxxx X. Xxxxxxx, Authorized Signatory
