EXHIBIT 10.5
SUPPLEMENT TO CREDIT AGREEMENT
THIS SUPPLEMENT TO CREDIT AGREEMENT (this "Supplement") is made this
28th day of January 1999 by
SMITTYBILT, INC., a Delaware corporation ("Smittybilt")
and XXXXXX FINANCIAL, INC., as Agent ("Agent") for the benefit of all Lenders
(as such term is defined below).
WHEREAS:
(A) XXXX INTERNATIONAL HOLDINGS, INC., a Delaware corporation ("Xxxx"
or "Holdings"), DEFLECTA-SHIELD CORPORATION, a Delaware corporation
("Deflecta"), XXXX INDUSTRIES, INCORPORATED, a Minnesota corporation ("LII"),
BELMOR AUTOTRON CORP., a Delaware corporation ("Autotron"), DFM CORP., an Iowa
corporation ("DFM"), AUTO VENTSHADE COMPANY, a Delaware corporation ("AVS")
(each of Deflecta, LII, Autotron, DFM and AVS, a "Borrower" and, collectively,
"Borrowers"), XXXX ACQUISITION CORP., a Minnesota corporation ("LAC"), BAC
ACQUISITION CO., a Delaware corporation ("BAC"), TRAILMASTER PRODUCTS, INC., a
Delaware corporation ("Trailmaster"), DELTA III, INC., a Delaware corporation
("Delta"), VENTSHADE HOLDINGS, INC., a Delaware corporation ("VHI") (each of
LAC, BAC, Trailmaster, Delta and VHI an "Active Subsidiary" and, collectively,
"Active Subsidiaries"), the financial institutions listed on the signature pages
thereof and their respective successors and assigns (each a "Lender" and,
collectively, "Lenders"); and Agent have entered into that certain Credit
Agreement, dated as of February 27, 1998 (as amended to the date hereof and as
it may further be amended, restated, supplemented or otherwise modified from
time to time, the "Credit Agreement"; capitalized terms used but not otherwise
defined herein shall have the meanings ascribed to such terms in the Credit
Agreement);
(B) Borrowers, Active Subsidiaries, Lenders and Agent have entered
into that certain Second Amendment to the Credit Agreement, dated as of December
23, 1998 (the "Second Amendment"), pursuant to which Lenders and Agent consented
to the SB Acquisition; provided, that, Smittybilt, Inc., a California
corporation ("Smittybilt-California"), agree to become a Borrower under the
Credit Agreement; and
(C) Smittybilt is the successor to Smittybilt-California by way of the
merger of Smittybilt-California with and into SB Holdings, Inc., a Delaware
corporation;
NOW, THEREFORE, in consideration of the agreements and provisions
contained herein, the parties hereto hereby agree as follows:
1. Joinder. Smittybilt hereby agrees to become a Borrower and a
Corporate Guarantor under the Credit Agreement and all other Loan Documents. On
and after the date hereof, each reference in the Credit Agreement or any other
Loan Document to "Borrower" or "Corporate Guarantor" shall also mean and be a
reference to Smittybilt. Smittybilt hereby agrees to be bound as a Borrower and
a Corporate Guarantor by all of the terms and provisions of the Credit Agreement
and each other Loan Document to the same extent as each other Borrower or
Corporate Guarantor, as the case may be.
2. Notes. Smittybilt and the other Borrowers shall jointly and
severally execute and deliver to each Lender, as applicable, the following
notes: (i) a Replacement Term A Note to evidence the Term Loan A, such Note to
be in the principal amount of such Lender's Pro Rata Share of such Term Loan A
and in substantially the form of Exhibit A hereto; (ii) a Replacement Term B
Note to evidence the Term Loan B, such Note to be in the principal amount of
such Lender's Pro Rata Share of such Term Loan B and in substantially the form
of Exhibit B hereto; (iii) a Replacement Term C Note to evidence the Term Loan
C, such Note to be in the principal amount of such Lender's Pro Rata Share of
such Term Loan C and in substantially the form of Exhibit C hereto and (iv) a
Replacement Revolving Note to evidence the Revolving Loans, such Note to be in
the principal amount of such Lender's Pro Rata Share of the Revolving Loan
Commitment and in substantially the form of Exhibit D hereto.
3. Schedules. The Schedules to the Credit Agreement are hereby
supplemented by and to the extent of the Supplements to Credit Agreement
Schedules (the "Schedule Supplements") attached hereto. Smittybilt hereby
certifies that such Schedule Supplements are true, accurate and complete as of
the date hereof.
4. Representations and Warranties. Smittybilt hereby represents and
warrants to the Lenders and the Agent that:
4.1 No Default. After giving effect to this Supplement, no Default
or Event of Default shall have occurred or be continuing.
4.2 Existing Representations and Warranties. As of the date hereof
and after giving effect to this Supplement, each and every one of the
representations and warranties of the Loan Parties set forth in the Credit
Agreement and the other Loan Documents are true, accurate and complete in all
respects and with the same effect as though made on the date hereof, and each is
hereby incorporated herein in full by reference as if restated herein in its
entirety, except for (i) changes in the ordinary course of business which are
not prohibited by the Credit Agreement and the other Loan Documents and which do
not, either singly or in the aggregate, have a Material Adverse Effect and (ii)
any representation or warranty limited by its terms to a specific date that is
prior to the date hereof.
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4.3 Authority; Enforceability. (i) The execution, delivery and
performance by Smittybilt of this Supplement are within its organizational
powers and have been duly authorized by all necessary action (corporate or
otherwise) on the part of Smittybilt, (ii) this Supplement is the legal, valid
and binding obligation of Smittybilt, enforceable against Smittybilt in
accordance with its terms, and (iii) this Supplement and the execution, delivery
and performance by Smittybilt thereof does not: (A) contravene the terms of its
corporate charter or by-laws; (B) conflict with or result in any breach or
contravention of, or the creation of any Lien under, any document (other than
the Loan Documents) evidencing any contractual obligation to which it is a party
or any order, injunction, writ or decree to which it or its property is subject;
or (C) violate any requirement of law.
5. Reference to and Effect Upon the Credit Agreement. The execution,
delivery and effectiveness of this Supplement shall not operate as a waiver of
any right, power or remedy of the Agent or any Lender under the Credit Agreement
nor constitute a waiver of any provision of the Credit Agreement. Upon the
effectiveness of this Supplement, each reference in:
(i) the Credit Agreement to "this Credit Agreement", "hereunder",
"hereof", "herein" or words of similar import shall mean and be a reference to
the Credit Agreement as supplemented hereby;
(ii) the other Loan Documents to the "Credit Agreement" shall mean
and be a reference to the Credit Agreement as supplemented hereby; and
(iii) the Loan Documents to the "Loan Documents" shall be deemed
to include this Supplement.
6. Miscellaneous.
6.1 Expenses. The Loan Parties agree to pay the Agent upon demand
for all reasonable expenses, including reasonable attorneys' fees and expenses
of the Agent, incurred by the Agent in connection with the preparation,
negotiation and execution of this Supplement.
6.2. Headings. Section headings in this Supplement are included
herein for convenience of reference only and shall not constitute a part of this
Supplement for any other purposes.
6.3 Law. THIS SUPPLEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
6.4 Successors. This Supplement shall be binding upon the Loan
Parties, the Lenders and the Agent and their respective successors and assigns
(permitted assigns in the
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case of the Loan Parties), and shall inure to the benefit of the Loan Parties,
the Lenders and the Agent and the successors and assigns (permitted assigns in
the case of the Loan Parties) of the Loan Parties, Lenders and the Agent.
6.5 Execution in Counterparts. This Supplement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute one and the same
instrument.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplement to
be executed and delivered by their respective officers thereunto duly authorized
as of the date first written above.
SMITTYBILT, INC.
By: /s/ Xxx Xxxxxxxx
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Name: Xxx Xxxxxxxx
Title: Chairman of the Board
ACKNOWLEDGED AND ACCEPTED BY:
XXXXXX FINANCIAL, INC.,
AS AGENT
By: /s/ Xxxxxxxx Xxxxx
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Name: Xxxxxxxx Xxxxx
Title: Assistant Vice President
[SIGNATURE PAGE TO SUPPLEMENT TO CREDIT AGREEMENT]
