AMENDMENT NO. 6 to
MARGIN LOAN CREDIT AGREEMENT
THIS AMENDMENT NO. 6 (this "Amendment"), dated as of December 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 otherwise 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 I of the Credit Agreement (Definitions).
(i) Article I is hereby amended by adding the following definitions in
their appropriate alphabetical place:
"'Demand Note' shall mean that certain Demand Note dated as of
December 1, 1998, between Trace Foam Sub, Inc. and the Lender.";
"'Restricted Junior Payment' means (a) any dividend or distribution,
direct or indirect, on account of any Equity Interests in the Borrower now or
hereafter outstanding, (b) any redemption, retirement, sinking fund or similar
payment, purchase or other acquisition for value, direct or indirect, of any
Equity
Interests in the Borrower now or hereafter outstanding, (c) any payment
or prepayment of principal of, premium, if any, or interest, fees or other
charges on or with respect to, and any redemption, purchase, retirement,
defeasance, sinking fund or similar payment and any claim for rescission with
respect to, any subordinated Indebtedness and (d) any payment made to redeem,
purchase, repurchase or retire, or to obtain the surrender of, any outstanding
warrants, options or other rights to acquire Equity Interests in the Borrower
now or hereafter outstanding.";
"'Trace Foam Sub Guaranty' shall mean that certain Guaranty by Trace
Foam Sub in favor of the Lender, dated December 30, 1998, which guarantees the
Indebtedness of the Borrower under this Agreement."
(ii) The definition of "Loan Documents" is hereby amended by adding the
following terms immediately after the words "the Contract Assignment Agreement"
therein:
", the Demand Note and the Trace Foam Sub Guaranty".
SECTION 2.2. Amendment to Article II to the Credit Agreement Interest and
Fees). Clause (f) of Section 2.1 of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"(f) Repayment of the Loan. The Borrower shall make a scheduled
repayment of the full outstanding principal amount of the Loan on January 31,
1999."
SECTION 2.3. Amendment to Article IX to the Credit Agreement (Negative
Covenants).
(i) Section 9.1 is hereby amended by (a) deleting the word "and" at the
end of clause (viii), (b) deleting the "." and substituting "; and" at the end
of clause (ix) and (c) adding the following clause (x) after clause (ix):
"(x) Indebtedness of the Borrower and Trace Foam Sub, Inc. under the
Demand Note and the Trace Foam Sub Guaranty."
(ii) Clause (vi) of Section 9.2 is hereby amended by adding the phrase at
the end thereof:
"and the Demand Note."
(iii) Section 9.4 is hereby amended by adding the following sentence at
the end thereof:
"Notwithstanding the foregoing, the Borrower and Trace Foam Sub,
Inc. may enter into and perform all obligations under the Demand Note and the
Trace Foam Sub Guaranty."
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(iv) Article IX is hereby amended by adding the following as Section 9.9:
"9.9. Restricted Junior Payments. The Borrower shall not declare or
make any Restricted Junior Payment."
ARTICLE III
EFFECTIVENESS
This Amendment shall become effective, as of the date hereof (the
"Effective Date"), subject to (i) the execution and delivery of this Amendment
by the Borrower and the Lender and (ii) satisfaction of the conditions to
effectiveness contained within Section 4.1 of Amendment No. 5, dated as of
December 30, 1998, to the other Credit Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Lender to enter into this Amendment, the
Borrower hereby reaffirms, except as set forth in Annex A hereto, 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
WITHOUT REGARD TO NEW YORK CHOICE OF LAW PRINCIPLES.
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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
