EXHIBIT 4.3.3
PATENT SECURITY AGREEMENT, dated as of March 25, 2002, by Foamex L.P. (the
"Foamex") and each of the other entities listed on the signature pages hereof
(together with Foamex, each a "Grantor" and, collectively, the "Grantors"), U.S.
Bank National Association ("U.S. Bank"), as trustee under the Indenture referred
to below and as collateral agent thereunder for the Secured Parties (as defined
in the Security Agreement referred to below) (in such capacity, the "Collateral
Agent").
W I T N E S S E T H:
WHEREAS, pursuant to the terms, conditions and provisions of the Indenture,
dated as of the date hereof (as amended, restated, supplemented or otherwise
modified from time to time, the "Indenture"), among Foamex, Foamex Capital
Corporation, a Delaware corporation (together with Foamex, the "Company"), the
guarantors named therein and the Collateral Agent, as trustee (in such capacity,
the "Trustee"), the Company is issuing, as of the date hereof, $300,000,000 of
10 3/4 % Senior Secured Notes due 2009 and may, from time to time, issue
additional notes in accordance with the provisions of the Indenture
(collectively, the "Notes"); and
WHEREAS, all the Grantors are party to a Pledge and Security Agreement of
even date herewith in favor of the Collateral Agent (the "Security Agreement")
pursuant to which the Grantors are required to execute and deliver this Patent
Security Agreement;
NOW, THEREFORE, for and in consideration of the premises, and of the mutual
covenants herein contained, and in order to induce the Trustee to enter into the
Indenture and the Initial Purchasers to purchase the Notes, each Grantor hereby
agrees with the Collateral Agent as follows:
SECTION 1. Defined Terms. Unless otherwise defined herein, terms defined in
the Indenture or in the Security Agreement and used herein have the meaning
given to them in the Indenture or the Security Agreement.
Grant of Security Interest in Patent Collateral. Each Grantor, as
collateral security for the full, prompt and complete payment and performance
when due (whether at stated maturity, by acceleration or otherwise) of the
Secured Obligations of such Grantor, hereby mortgages, pledges and hypothecates
to the Collateral Agent for the benefit of the Secured Parties, and grants to
the Collateral Agent for the benefit of the Secured Parties a lien on and
security interest in, all of its right, title and interest in, to and under the
following Collateral of such Grantor (the "Patent Collateral"):
all of its Patents and Patent Licenses to which it is a party, including
those referred to on Schedule I hereto;
all reissues, continuations or extensions of the foregoing; and
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all Proceeds of the foregoing, including any claim by such Grantor against
third parties for past, present or future infringement or dilution of any Patent
or any Patent licensed under any Patent License.
Security Agreement. The security interest granted pursuant to this Patent
Security Agreement is granted in conjunction with the security interest granted
to the Collateral Agent pursuant to the Security Agreement and each Grantor
hereby acknowledges and affirms that the rights and remedies of the Collateral
Agent with respect to the security interest in the Patent Collateral made and
granted hereby are more fully set forth in the Security Agreement, the terms and
provisions of which are incorporated by reference herein as if fully set forth
herein. Notwithstanding anything herein to the contrary, the security interest
granted to the Collateral Agent pursuant to this Patent Security Agreement and
the exercise of any right or remedy by the Collateral Agent hereunder are
subject to the provisions of the Intercreditor Agreement. In the event of any
conflict between the terms of the Intercreditor Agreement and this Patent
Security Agreement, the terms of the Intercreditor Agreement shall govern.
[signature page follows]
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IN WITNESS WHEREOF, each Grantor has caused this Patent Security Agreement
to be executed and delivered by its duly authorized offer as of the date first
set forth above.
Very truly yours,
FOAMEX L.P.
By: FMXI, Inc., its Managing General Partner
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice-President
Address:
Foamex L.P.
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attn.: Chief Financial Officer
Telecopier No. (000) 000-0000
Accepted and Agreed:
U.S. BANK NATIONAL ASSOCIATION, as Collateral Agent
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
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