EXHIBIT 4.4.5
EXECUTION COPY
PATENT SECURITY AGREEMENT
PATENT SECURITY AGREEMENT, dated as of March 25, 2002, by FOAMEX L.P. (the
"Borrower") and each of the other entities listed on the signature pages hereof
or which becomes a party hereto pursuant to Section 7.10 of the Security
Agreement referred to below (each a "Grantor" and, collectively, the
"Grantors"), in favor of Citicorp USA, Inc. ("Citicorp"), as collateral agent
for the Secured Parties (as defined in the Credit Agreement referred to below)
(in such capacity, the "Collateral Agent").
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, dated as of June 12, 1997, as
amended and restated as of February 27, 1998, as further amended and restated as
of June 29, 1999 and as further amended and restated as of March 25, 2002 (as
further amended, amended and restated, supplemented or otherwise modified from
time to time, the "Credit Agreement") entered into among the Borrower, FMXI,
Inc., a Delaware corporation and the managing general partner of the Borrower
("FMXI"), the financial institutions from time to time party thereto as lenders
(the "Lenders"), the financial institutions from time to time party thereto as
issuing banks (the "Issuing Banks"), Citicorp USA, Inc., a Delaware corporation
("Citicorp"), in its capacities as the administrative agent and the collateral
agent for the Lenders and the Issuing Banks thereunder (in such capacities, the
"Administrative Agent" and the "Collateral Agent," respectively) and The Bank of
Nova Scotia, in its capacities as syndication agent and funding agent for the
Lenders and the Issuing Banks, the Lenders and the Issuing Banks have severally
agreed to make extensions of credit to the Borrower upon the terms and subject
to the conditions set forth therein; and
WHEREAS, the Grantors other than the Borrower are party to the Guaranty
pursuant to which they have guaranteed the Obligations; and
WHEREAS, all the Grantors are party to an Amended and Restated 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, in consideration of the premises and to induce the Lenders,
the Issuing Banks and the Administrative Agent to enter into the Credit
Agreement and to induce the Lenders and the Issuing Banks to make their
respective extensions of credit to the Borrower thereunder, each Grantor hereby
agrees with the Collateral Agent as follows:
SECTION 1. Defined Terms. Unless otherwise defined herein, terms defined in
the Credit Agreement or in the Security Agreement and used herein have the
meaning given to them in the Credit Agreement or the Security Agreement.
SECTION 2. 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"):
1
(a) all of its Patents and Patent Licenses to which it is a party,
including those referred to on Schedule I hereto;
(b) all reissues, continuations or extensions of the foregoing; and
(c) all Proceeds of the foregoing, including any claim by Grantor against
third parties for past, present or future infringement or dilution of any Patent
or any Patent licensed under any Patent License.
SECTION 3. 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.
[signature page follows]
2
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
Accepted and Agreed:
CITICORP USA, INC., as Collateral Agent
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
