ASSIGNMENT AGREEMENT
ASSIGNMENT AGREEMENT, dated as of December 16, 1996 (the "Effective
Date") among Foamex L.P. and Foamex Capital Corporation (the "Assignors"),
Citibank, N.A., New York (the "Assignee"), and Salomon Brothers Holding Company
Inc. (the "Company").
WHEREAS, the Assignors have entered into a Transaction (the
"Transaction") maturing June 14, 2000 with the Company, the terms of which are
attached hereto as Exhibit A.
WHEREAS, the Assignors wish to assign their rights and delegate their
obligations under the Transaction to the Assignee, and the Assignee wishes to
succeed to the rights and assume the obligations of the Assignors under the
Transaction.
WHEREAS, the Company consents herein to the assignment of the
Assignors' right and delegation of the Assignors' obligations under the
Transaction.
NOW, THEREFORE, the parties hereto agree as follows:
1. Assignment. The Assignors hereby assign, transfer and set over to
the Assignee all the right, title and interest, powers,
privileges and remedies of the Assignors under the Transaction,
including, without limitation, the right to receive all amounts
which may be due or owing to the Assignors under the Transaction
(including all amounts accrued as of the date hereof but not yet
payable and all amounts payable as damages or indemnities). The
Assignors authorize the Assignee to take all action necessary or
desirable to enforce the rights assigned hereunder. The Assignors
shall give all notices, make all filings and take such other
action as the Assignee reasonably requests to perfect and
preserve the Assignee's rights acquired hereby.
2. Assumption. The Assignors hereby delegates and the Assignee
hereby assumes all duties, liabilities and obligations of the
Assignors under the Transaction. Without limiting the foregoing,
the Assignee shall make all payments hereafter due and owing by
the Assignors to the Company under the Transaction (including all
amounts accrued as of the date hereof but not yet payable and all
amounts payable as damages or indemnities) when and as the
Assignors are obligated to make such payments.
3. Consent by Company. The Company hereby consents to the assignment
of rights and delegations of duties set forth in Paragraphs 1 and
2 and subject to Sub-paragraph 4(a) below, releases the Assignors
from all further obligations and liabilities hereafter arising
under the Transaction.
4. Indemnities.
(a) Subject to paragraph 2 above, the Assignors hereby agree to
indemnify and hold harmless the Assignee with respect to any
and all claims by any persons relating to liabilities
incurred by the Assignors pursuant to or under the
Transaction prior to the Effective Date.
(b) The Assignee hereby agrees to indemnify and hold harmless
the Assignors with respect to any and all claims by any
persons relating to liabilities incurred by the Assignee
pursuant to or under the Transaction on or after the
Effective Date.
5. Redocumentation. Except as expressly provided herein, all the
terms and conditions of the Transaction shall remain unchanged.
The Assignee and the Company may agree to execute a new
Confirmation providing that such Transaction shall be subject to
the Interest Rate and Currency Exchange between them, or
alternatively, may adopt the original Confirmation. The Assignee
and the Company further agree that as of the Effective Date of
this Agreement the original Transaction between the Assignors and
the Company shall be deemed assigned to the Assignee. All
references to the Assignors in the original Confirmation shall be
deemed to refer to the Assignee, and all payments which would,
under the Transaction, be made to the Assignors, shall
hereinafter be made to the Assignee.
6. Amendment or Termination of Transaction. The Assignee and the
Company may hereafter amend or terminate the Transaction without
the consent of the Assignors.
7. Representations and Warranties of the Parties hereto. The parties
hereto represent and warrant that each has all necessary
corporate consents, authorizations and approvals to execute,
deliver and perform its obligations under this Agreement, and
that this Agreement is a legal, valid and binding obligation
enforceable against it in accordance with its terms, subject to
applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally, and subject, as to enforceability to
general principles of equity (regardless of whether enforcement
is sought in a proceeding in equity or at law).
8. Representations and Warranties of the Assignors and the Company.
The Assignors and the Company severally represents and warrant to
the Assignee that, to the best of their knowledge, on the date
hereof, the Transaction is in full force and effect, there being
no default thereunder.
9. Fee Letter. The Assignee and the Assignors may, but are not
required to, execute a separate letter agreement (the "Fee
Letter"), pursuant to which the Assignee shall pay the Assignors
(or the Assignors shall pay the Assignee, as the case may be) a
fee in an amount specified in such Fee Letter, as additional
consideration for the Assignee's agreement to assume and the
Assignors' agreement to assign its rights and obligations under
the Transaction pursuant to the terms hereof. The Company shall
not be a party to or a beneficiary of any such Fee Letter, and
neither the validity or enforceability hereof nor the terms
hereof shall be affected by the existence, validity,
enforceability or terms of the Fee Letter.
10. Governing Law. This Agreement and the Transaction shall be
governed by, and construed in accordance with, the law of the
State of New York without reference to a choice of law doctrine.
11. Jurisdiction. Any action or proceeding relating in any way to
this Agreement or the Transaction may be brought and enforced in
the courts of the State of New York or of the United States for
the Southern District of New York. Any process or other legal
summons in connection with any such action or proceeding may be
served by mailing a copy thereof by certified or registered mail,
or any substantially similar form of mail, addressed to the
Assignee, the Assignors or the Company, as the case may be.
12. Amendments. This Agreement may be amended only by an instrument
in writing executed by the parties thereto.
13. Execution in Counterparts. This Agreement may be executed in
counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original and all of which
counterparts, taken together, shall constitute one of the same
agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered in New York City as of the date and year first above
written.
CITIBANK, N.A., NEW YORK
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title:
FOAMEX L.P. FOAMEX CAPITAL CORPORATION
By: /s/ X. X. Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
Name: X. X. Xxxxxxxxx Name: Xxxxxxx X. Xxxxxx
Title: Vice President - Treasurer Title: Chief Financial Officer
SALOMON BROTHERS HOLDING COMPANY INC.
By:
Name:
Title:
EXHIBIT A
June 10, 1993
Xx. Xxxxxx Xxxxxx
Foamex L.P.
c/o `21' International Holdings, Inc.
000 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
REVISED SWAP TRANSACTION
Dear Xx. Xxxxxx:
The purpose of this letter agreement is to set forth the terms and conditions of
the Swap Transaction entered into between Foamex L.P. and Foamex Capital
Corporation jointly and severally ("Counterparty") and Salomon Brothers Holding
Company Inc. ("Salomon") on the Trade Date specified below (the "Swap
Transaction"). This letter agreement constitutes a "Confirmation" as referred to
in the Swap Agreement specified below. This Confirmation supersedes and replaces
any previously executed Confirmation of this Swap Transaction.
1. The definitions and provisions contained in the 1991 ISDA Definitions (as
published by the International Swap Dealers Association, Inc.) (the
"Definitions") are incorporated into this Confirmation.
If you and we are parties to an Interest Rate and Currency Exchange Agreement
that sets forth the general terms and conditions applicable to Swap Transactions
between us (a "Swap Agreement"), this Confirmation supplements, forms a part of,
and is subject to, such Swap Agreement. If you and we are not yet parties to a
Swap Agreement, this Confirmation will supplement, form a part of, and be
subject to, a Swap Agreement upon its execution and delivery by you and us. All
provisions contained or incorporated by reference in such Swap Agreement shall
govern this Confirmation except as expressly modified below. In the event of any
inconsistency between this Confirmation and the Definitions or the Swap
Agreement, this Confirmation will govern. In addition, if a Swap Agreement has
not been executed, this Confirmation will itself evidence a complete binding
agreement between you and us as to the terms and conditions of the Swap
Transaction to which this Confirmation relates.
Each party is hereby advised, and each such party acknowledges, that the other
party has engaged in (or refrained from engaging in) substantial financial
transactions and has taken other material actions in reliance upon the parties'
entry into the Swap Transaction to which this Confirmation relates on the terms
and conditions set forth below.
Each party will make each payment specified in this Confirmation as being
payable by it, not later than the due date for value on that date in the place
of the account specified below, in freely transferable funds and in the manner
customary for payments in the required currency. If on any date amounts would
otherwise be payable in the same currency by each party to the other, then, on
such date, each party's obligation to make payment of any such amount will be
automatically satisfied and discharged and, if the aggregate amount that would
otherwise have been payable by one party exceeds the aggregate amount that would
otherwise have been payable by the other party, replaced by an obligation upon
the party by whom the larger aggregates amount would have been payable to pay to
the other party the excess of the larger aggregate amount over the smaller
aggregate amount.
This Confirmation will be governed by and construed in accordance with the laws
of the State of New York, without reference to choice of law doctrine, provided
that this provision will be superseded by any choice of law provision in the
Swap Agreement.
2. The terms of the particular Swap Transaction to which this Confirmation
relates are as follows:
Notional Amount: USD $150,000,000
Trade Date: June 10, 1993
Effective Date: June 14, 1993
Termination Date: June 14, 2000, subject to
adjustment in accordance
with the Modified Following
Business Day Convention
Fixed Amounts:
Fixed Rate Payer: Salomon
Fixed Rate Payer Payment Dates: Each December 14 and June 14,
commencing December 14, 1993,
through and including the
Termination Date.
Fixed Rate: 5.61 percent
Fixed Rate Day Count Fraction: 30/360
Floating Amounts:
Floating Rate Payer: Counterparty
Floating Rate Payer Payment Dates: Each December 14 and June 14,
commencing December 14, 1993,
through and including the
Termination Date.
Floating Rate Option: USD-LIBOR-BBA
Designated Maturity: Six months
Spread: None
Floating Rate Day Count Fraction: Actual/360
Reset Dates: The Floating Rate is set in
arrears. The Floating Rate
Reset Date with respect to
each Calculation Period is the
Payment Date for such
Calculation Period.
Compounding: Inapplicable
Calculation Agent: Salomon
Business Days: London, New York
Business Day Convention: Modified Following
3. Other Provisions
Documentation: To be provided by Salomon at
its own expense.
Documentation Legal Fees: Each party bears own
4. Account Details
Payments to Salomon: The Chase Manhattan Bank,
N.A., New York Account No.:
Salomon Brothers Holding Co.
Account No.: 000-0-000000
Payments to Counterparty: Please provide to expedite
payment.
Please __________ the foregoing correctly sets forth the terms of our agreement
by executing this copy of this Confirmation enclosed for that purpose and
returning it to us.
Very truly yours,
SALOMON BROTHERS HOLDING COMPANY INC.
By:
Authorized Agent
Accepted and confirmed as of the Trade Date:
`21' FOAM COMPANY, INC.
as General Partner of Foamex L.P.
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Vice President - Director
FOAMEX CAPITAL CORPORATION
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Vice President - Director
