EXHIBIT 4.2.19
AMENDMENT NO. 1 TO
COLLATERAL ASSIGNMENT OF PATENTS AND TRADEMARKS
THIS AMENDMENT NO. 1 TO COLLATERAL ASSIGNMENT OF PATENTS AND
TRADEMARKS (the "Amendment"), is made and entered into as of June 12, 1997, by
Foamex Capital Corporation, a Delaware corporation ("Grantor"), and Fleet
National Bank (formerly known as Shawmut Bank, N.A.), a national banking
association, as trustee (the "Trustee"), for the holders of the Senior Secured
Notes. This Amendment amends certain provisions of the Collateral Assignment of
Patents and Trademarks by and between Grantor and the Trustee, dated as of June
3, 1993 (the "Collateral Assignment").
WHEREAS, Grantor and the Trustee entered into the Collateral
Assignment to secure the Obligations of Grantor to the Securityholders pursuant
to the terms of the Senior Secured Note Indenture;
WHEREAS, Foamex L.P. and Foamex Capital Corporation, as
issuers, General Felt Industries, Inc., as guarantor, Foamex International Inc.,
as parent guarantor, and the Trustee have executed the Fourth Supplemental
Indenture to the Senior Secured Note Indenture, which provides for, among other
things, the granting by Grantor of certain liens in the Collateral, the transfer
of possession of the Collateral to a collateral agent pursuant to the terms of
an intercreditor agreement, and the amendment of the Collateral Documents; and
WHEREAS, Grantor has requested that the Trustee enter into the
Intercreditor Agreement and this Amendment.
NOW, THEREFORE, in consideration of the premises, the mutual
agreements and covenants contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
Article I.
DEFINITIONS
Section 1.1. Definitions. Unless otherwise defined herein:
(a) the terms defined in the introductory paragraph
and the Recitals to this Amendment shall have the respective meanings
specified therein;
(b) capitalized terms used herein and not otherwise
defined shall have the meaning ascribed to them in the Collateral
Assignment; and
(c) the following terms shall have the meanings
specified below:
"Intercreditor Agreement" means an intercreditor agreement
entered into between the Trustee and the holder of another lien in the
Collateral, on the terms and subject to the conditions set forth in the
Senior Secured Note Indenture, including, without limitation, the
Intercreditor Agreement, dated as of the date hereof, between the
Trustee and The Bank of Nova Scotia and Citicorp USA, Inc.
Article II.
AMENDMENT OF PROVISIONS
Section 2.1. Amendment of Section 2. Section 2 of the
Collateral Assignment is hereby amended and restated in its entirety as follows:
"2.(a)(b) Subject to the terms of the Intercreditor
Agreement, upon the occurrence and during the continuance of an Event
of Default (as defined in the Senior Secured Note Indenture), the
Trustee may, subject to the provisions of Article 6 of the Senior
Secured Note Indenture, without notice to or demand upon Grantor
(except where required by law), exercise any one or more of the rights
set forth in Section 6 of the Company Security Agreement, including,
without limitation, the right to revise, update, amend and otherwise
complete the Assignment of Patent and Trademark Registrations,
Applications and Licenses attached as Exhibit A hereto, as the Trustee
may determine to be necessary or desirable to assign or otherwise
transfer the Patents, Trademarks and Licenses covered by this
Collateral Assignment to any person (as defined in the Senior Secured
Note Indenture), including, without limitation, the Trustee or any of
the Securityholders."
Section 2.2. Addition of New Section 8. A new Section 8 is
hereby amended to the Collateral Assignment as follows:
"8. To the extent a term or provision of this
Collateral Assignment conflicts with the Intercreditor Agreement, the
Intercreditor Agreement shall govern with respect to the subject matter
of such term or provision."
Article III.
REPRESENTATIONS AND WARRANTIES
Section 3.1. Grantor's Representations and Warranties .
Grantor represents and warrants to the Trustee that this
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Amendment is authorize pursuant to the terms of the Senior Secured Note
Indenture.
Article IV.
MISCELLANEOUS
Section 4.1. Counterparts. This Amendment may be executed in
counterparts, each of which when so executed shall be deemed to be an original,
but all such counterparts shall together constitute one and the same instrument.
Section 4.2. Severability. In the event that any provision in
this Amendment shall be held to be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 4.3. Headings. The article and section headings herein
are for convenience only and shall not effect the construction hereof.
Section 4.4. Effect of Amendment. Except as amended by this
Amendment, the terms and provisions of the Security Agreement shall remain in
full force and effect.
Section 4.5. Trustee. The Trustee accepts the amendments of
the Collateral Assignment effected by this Amendment, but only upon the terms
and conditions set forth herein. Without limiting the generality of the
foregoing, the Trustee assumes no responsibility for the correctness of the
recitals herein contained, which shall be taken as the statements of Grantor,
and the Trustee shall not be responsible or accountable in any way whatsoever
for or with respect to the validity or execution or sufficiency of this
Amendment, and the Trustee makes no representation with respect thereto.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their duly authorized representative as of the date
hereof.
ATTEST: FOAMEX CAPITAL CORPORATION
/s/ Xxxxxx X. Xxxx By:/s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx Xxxxxxxxx
Title: Vice President
FLEET NATIONAL BANK
as Trustee
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
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XXXXX XX XXX XXXX
XXXXXX XX XXX XXXX
BEFORE ME, the undersigned, a Notary Public in and for said
State and County, on this day personally appeared XXXXXX XXXXXXXXX, the Vice
President of FOAMEX CAPITAL CORPORATION, a Delaware corporation, known to me to
be the person and officer whose name is subscribed to the foregoing instrument,
and acknowledged to me that the same was the act of the said FOAMEX CAPITAL
CORPORATION, and that he executed the same as the act of such corporation with
the authority of the board of directors for the purposes and consideration
therein expressed and in the capacity therein stated.
/s/ Xxxxx X. Xxxxxx
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Notary Public, State of New York
Printed Name: Xxxxx X. Xxxxxx
My Commission Expires:
April 1, 1998
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STATE OF NEW YORK
COUNTY OF NEW YORK
BEFORE ME, the undersigned, a Notary Public in and for said
State and County, on this day personally appeared XXXXXX X. BEEZELY, Vice
President of FLEET NATIONAL BANK (formerly known as Shawmut Bank, N.A.), known
to me to be the person and officer whose name is subscribed to the foregoing
instrument, and acknowledged to me that the same was the act of the said bank
and that he executed the same as the act of such bank for the purposes and
consideration therein expressed and in the capacity therein stated.
/s/ Xxxxx X. Xxxxxx
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Notary Public, State of New York
Printed Name: Xxxxx X. Xxxxxx
My Commission Expires:
April 1, 1998
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