EXHIBIT 4.3.5
COPYRIGHT 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 (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
Copyright 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:
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 Copyright 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 "Copyright Collateral"):
all of its Copyrights and Copyright Licenses to which it is a party,
including those referred to on Schedule I hereto;
all reissues, continuations or extensions of the foregoing; and
all Proceeds of the foregoing, including any claim by such Grantor against
third parties for past, present, future infringement or dilution of any
Copyright or Copyright licensed under any Copyright License.
Security Agreement. The security interest granted pursuant to this
Copyright 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 Copyright
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
Copyright 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 Copyright Security Agreement, the terms of the Intercreditor
Agreement shall govern.
[signature page follows]
2
IN WITNESS WHEREOF, each Grantor has caused this Copyright 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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice-President
Address:
Foamex L.P.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: Chief Financial Officer
Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇
Accepted and Agreed:
U.S. BANK NATIONAL ASSOCIATION, as Collateral Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
3