[Execution Copy]
FIRST AMENDMENT TO PATENT SECURITY AGREEMENT
FIRST AMENDMENT TO PATENT SECURITY AGREEMENT, dated as of December 23,
1997 (the "Amendment") by FOAMEX L.P., a Delaware limited partnership (the
"Grantor"), in favor of CITICORP USA, INC., as collateral agent (together with
any successor(s) thereto in such capacity, the "Collateral Agent") for each of
the Secured Parties.
WHEREAS, the Grantor and the Collateral Agent are parties to a Patent
Security Agreement dated as of June 12, 1997 (as amended, supplemented, amended
and restated or modified from time to time, the "Patent Security Agreement") and
a Foamex Security Agreement dated as of June 12, 1997 (as amended, supplemented,
amended and restated or modified from time to time, the "Security Agreement").
WHEREAS, pursuant to a Credit Agreement, dated as of June 12, 1997 (as
amended, supplemented, amended and restated or modified from time to time, the
"Existing Credit Agreement"), among the Grantor, General Felt Industries, Inc.,
a Delaware corporation ("GFI"; and if together with the Grantor, the
"Borrowers"), Trace Foam Company, Inc., a Delaware corporation and general
partner of the Grantor ("Trace Foam"), FMXI, Inc., a Delaware corporation and
managing general partner of the Grantor ("FMXI"), the Lenders, the Issuing Banks
and Citicorp USA, Inc., as Collateral Agent for the Lenders and the Issuing
Banks and The Bank of Nova Scotia, as Funding Agent for the Lenders and the
Issuing Banks (together with the Collateral Agent, the "Administrative Agents"),
the Lenders and the Issuing Banks have extended Commitments to make Credit
Extensions to the Borrowers;
WHEREAS, the Existing Credit Agreement is to be amended by the First
Amendment to Credit Agreement, dated as of December 23, 1997 (the "First
Amendment to Credit Agreement", the Existing Credit Agreement as amended by the
First Amendment to Credit Agreement and as further amended, supplemented,
amended and restated or otherwise modified from time to time being the "Credit
Agreement"), among the Grantor, GFI, Trace Foam, FMXI, the Lenders, the Issuing
Banks and the Administrative Agents;
WHEREAS, as a condition precedent to the effectiveness of the First
Amendment to Credit Agreement, the Grantor is required to execute and deliver
this Amendment;
WHEREAS, the Grantor has duly authorized the execution, delivery and
performance of this Amendment; and
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in order to induce the Lenders
and the Issuer to make Credit
Extensions to the Borrowers pursuant to the Credit Agreement, the Grantor
agrees, for the benefit of each Secured Party, as follows:
Section 1. Definitions. Except as otherwise defined in this Amendment,
terms defined in the Security Agreement are used herein as defined therein.
Section 2. Amendments. Subject to the satisfaction of the conditions
precedent specified in Section 3 below, but effective as of the date hereof,
Attachment 1 of the Patent Security Agreement is hereby amended by adding the
information set forth in Attachment 1 hereto.
Section 3. Conditions Precedent. As provided in Section 2 above, the
amendments set forth in Section 2 shall become effective, as of the date hereof,
upon the due execution and delivery of this Amendment by the Grantor and the
Collateral Agent.
Section 4. Miscellaneous. Except as herein provided, the Patent Security
Agreement shall remain unchanged and in full force and effect. This Amendment
may be executed in any number of counterparts, all of which taken together shall
constitute one and the same amendatory instrument and any of the parties hereto
may execute this Amendment by signing any such counterpart. This Amendment shall
be governed by, and construed in accordance with, the internal laws of the State
of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the day and year first above written.
FOAMEX L.P.
By FMXI, INC., the Managing General Partner
By: /s/ Xxxxxx X. Xxxxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Senior Vice President
CITICORP USA, INC.,
as Collateral Agent
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Attorney-in-Fact
