AMENDMENT NO. 5 to
MARGIN LOAN CREDIT AGREEMENT
THIS AMENDMENT NO. 5 (this "Amendment"), dated as of June 30, 1998 is
entered into between Trace International Holdings, Inc. (the "Borrower" or the
"Company") and The Bank of Nova Scotia (including its successors and assigns,
the "Lender").
W I T N E S S E T H:
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WHEREAS, pursuant to the Margin Loan Credit Agreement dated as of August
15, 1997 (as amended, amended and restated, supplemented or modified from time
to time, the "Credit Agreement"), entered into between the Borrower and the
Lender, the Lender extended Commitments to make Loans to the Borrower; and
WHEREAS, the Borrower has requested, and the Lender has agreed to, an
amendment to the Credit Agreement;
NOW THEREFORE, for good and valuable consideration the receipt of which is
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Use of Defined Terms; Rules of Usage. Unless otherwise
defined or the context otherwise requires, terms for which meanings are provided
in the Credit Agreement shall, when capitalized, have such meanings when used in
this Amendment.
ARTICLE II
AMENDMENT
SECTION 2.1. Amendment to Article IX to the Credit Agreement (Negative
Covenants).
(a) Section 9.2 of the Credit Agreement is hereby amended and restated to
read in its entirety as follows:
"9.2. Investments. The Borrower shall not make any Investment in any
Investment Entity or any Subsidiary thereof other than (i) any Investment
existing on the Closing Date (as defined in the Other Credit Agreement), (ii)
110,000 shares of Foamex International, Inc. common stock described in the
proviso to the definition of "Restricted Management Payment", (iii) as required
by Section 4(c) of the TIHI CHF Guaranty, (iv) the New Investments, (v)
Permitted Vendor Guarantees and (vi) Investments in CHF made with proceeds of
the Term D Loan. The Borrower shall not and shall not permit any Subsidiary to
sell, transfer or otherwise dispose of (i) any Equity Interest in Trace Foam Sub
or any of its assets or (ii) any Subject Asset to another Subsidiary of the
Borrower unless, in the case of this clause (ii), (x) such transferee Subsidiary
is a direct, wholly-owned Subsidiary of the Borrower and (y) the Borrower shall
have given prior written notice of such transaction to the Lender."
ARTICLE III
EFFECTIVENESS
This Amendment shall become effective, as of the date hereof, subject to
the execution and delivery of this Amendment by the Borrower and the Lender.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Lender to enter into this Amendment, the Borrower
hereby reaffirms, as of the date hereof, the representations and warranties
contained in Article VI of the Credit Agreement; provided, however, that this
representation shall be deemed to be qualified by the Schedules to the Other
Credit Agreement.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.1. Ratification of and References to the Credit Agreement. This
Amendment shall be deemed to be an amendment to the Credit Agreement, and the
Credit Agreement, as amended hereby, is hereby ratified, approved and confirmed
in each and every respect. All references to the Credit Agreement in any other
document, instrument, agreement or writing shall hereafter be deemed to refer to
the Credit Agreement as amended hereby.
SECTION 5.2. Headings. The various headings of this Amendment are inserted
for convenience only and shall not affect the meaning or interpretation of this
Amendment or any provisions hereof.
SECTION 5.3. Execution in Counterparts. This Amendment may be executed by
the parties hereto in several counterparts, each of which shall be deemed to be
an original and all of which shall constitute together but one and the same
agreement.
SECTION 5.4. Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
TRACE INTERNATIONAL HOLDINGS, INC.
By /s/ Xxxxxx X. Xxxxx, Xx.
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Name: Xxxxxx X. Xxxxx, Xx.
Title: Senior Vice President
THE BANK OF NOVA SCOTIA,
By /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Senior Relationship Manager
