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EXHIBIT 4(b)(4)
UNIVERSAL FOREST PRODUCTS, INC.
-----------------------------------
FIRST AMENDMENT
Dated as of November 13, 1998
to
NOTE AGREEMENTS
Dated as of May 1, 1994
-----------------------------------
Re: $40,000,000 7.15% Senior Notes
Due May 5, 2004
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FIRST AMENDMENT TO NOTE AGREEMENTS
THIS FIRST AMENDMENT dated as of November 13, 1998 (this "First
Amendment") to the Note Agreements each dated as of May 1, 1994 is between
UNIVERSAL FOREST PRODUCTS, INC., a Michigan corporation (the "Company"), and
each of the institutions which is a signatory to this First Amendment
(collectively, the "Noteholders").
RECITALS:
A. The Company and each of the Noteholders have heretofore entered into
separate and several Note Agreements each dated as of May 1, 1994 (collectively,
the "Note Agreements"). The Company has heretofore issued the $40,000,000 7.15%
Senior Notes Due May 5, 2004 (the "Notes") dated May 5, 1994 pursuant to the
Note Agreements.
B. The Company and the Noteholders now desire to amend the Note
Agreements in the respects, but only in the respects, hereinafter set forth.
C. Capitalized terms used herein shall have the respective meanings
ascribed thereto in the Note Agreements unless herein defined or the context
shall otherwise require.
D. All requirements of law have been fully complied with and all other
acts and things necessary to make this First Amendment a valid, legal and
binding instrument according to its terms for the purposes herein expressed have
been done or performed.
NOW, THEREFORE, upon the full and complete satisfaction of the
conditions precedent to the effectiveness of this First Amendment set forth in
Section 3.1 hereof, and in consideration of good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, the Company and the
Noteholders do hereby agree as follows:
SECTION 1. AMENDMENTS.
Section 1.1. Section 5.3 of the Note Agreements shall be and is hereby
amended in its entirety to read as follows:
"Section 5.3. Taxes, Claims for Labor and Materials;
Compliance with Laws. (a) The Company will promptly pay and
discharge, and will cause each Subsidiary promptly to pay and
discharge, all lawful taxes, assessments and governmental charges or
levies imposed upon the Company or such Subsidiary, respectively, or
upon or in respect of all or any part of the property or business of
the Company or such Subsidiary, all trade accounts payable in
accordance with usual and customary business terms, and all claims for
work, labor or materials, which if unpaid might become a Lien upon any
property of the Company or such Subsidiary; provided that the Company
or such Subsidiary shall not be required to pay any such tax,
assessment, charge, levy, account payable or claim if (1) the
validity, applicability or amount thereof is being contested in good
faith by appropriate actions or proceedings which will prevent the
forfeiture or sale of any property of the Company or such Subsidiary or
any material interference with the use thereof by the Company or such
Subsidiary, and (2) the Company or such Subsidiary shall set aside on
its books, reserves deemed by it to be adequate with respect thereto,
or (3) to the extent that failure to pay any
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of the foregoing or comply with any of the foregoing relates solely to
Subsidiaries which are not Wholly-owned Subsidiaries of the Company or
Guarantors and if all such non Wholly-owned Subsidiaries do not, if
considered in the aggregate as a single Subsidiary, constitute a
Significant Subsidiary and such failure could not materially and
adversely affect the properties, business, prospects, profits or
condition (financial or otherwise) of the Company or of the Company and
its Subsidiaries, taken as a whole (but the Company shall provide
notice to the holders of the Notes of the occurrence of any such
failure to comply or failure to pay described in this provision).
(b) The Company will promptly comply and will cause each
Subsidiary to promptly comply with all laws, ordinances or governmental
rules and regulations to which it is subject, including, without
limitation, the Occupational Safety and Health Act of 1970, as amended,
ERISA and all Environmental Laws, the violation of which could
materially and adversely affect the properties, business, prospects,
profits or condition (financial or otherwise) of the Company or of the
Company and its Subsidiaries, taken as a whole, or would result in any
Lien not permitted under Section 5.9, provided that the foregoing does
not apply to Subsidiaries which are not Wholly-owned Subsidiaries of
the Company or Guarantors if all such non Wholly-owned Subsidiaries do
not, if considered in the aggregate as a single Subsidiary, constitute
a Significant Subsidiary."
Section 1.2. Section 5.6 of the Note Agreements shall be and is hereby
amended in its entirety to read as follows:
"Section 5.6. Consolidated Net Worth. The
Company will at all times keep and maintain Consolidated Net Worth at
an amount not less than the sum of (a) $155,000,000, plus
(b) 50% of Consolidated Net Earnings for the fiscal quarter of
the Company ending in December, 1998 and each fiscal year of the
Company ending thereafter, provided that if such Consolidated Net
Earnings of the Company is negative for the fiscal quarter ending in
December, 1998 or any fiscal year thereafter, as the case may be, the
amount added for such fiscal quarter or year shall be zero and it shall
not reduce the amount added for any other fiscal year, and plus 100% of
the net proceeds from the sale or other transfer of any capital stock
of the Company."
Section 1.3. Section 5.7 of the Note Agreements shall be and is hereby
amended in its entirety to read as follows:
"The Company will at all times keep and maintain the ratio of
Consolidated Net Earnings Available for Fixed Charges for any four of
the immediately preceding five fiscal quarters (taken as a single
accounting period) to Consolidated Fixed Charges for such period at not
less than 1.75 to 1.00.
For purposes of calculations under this Section 5.7,
Consolidated Net Earnings Available for Fixed Charges and Consolidated
Fixed Charges shall be adjusted for the period in respect of which any
such calculation is being made to give effect to (i) the audited "net
earnings" (determined in a manner consistent with the definition of
"Consolidated Net Earnings"
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contained in this Agreement) of any business entity acquired by the
Company or any Subsidiary (the "Acquired Business") and (ii) all
Indebtedness incurred by the Company or any Subsidiary in connection
with such acquisition, and shall be computed as if the Acquired
Business had been a Subsidiary throughout the period and all
Indebtedness incurred in connection with such acquisition had been
incurred at the beginning of such period in respect of which such
calculation is being made. In the case of any business entity acquired
during the twelve calendar month period immediately preceding the date
of any determination hereunder whose financial records are not, and are
not required to be in accordance with applicable laws, rules and
regulations, audited by the Company's independent public accountants at
the time of the acquisition thereof, the Company shall base such
determination upon the Company's internally audited net earnings of
such business entity for the immediately preceding fiscal year or the
net earnings of such business entity as audited by such business
entity's independent auditors for the immediately preceding fiscal
year."
Section 1.4. Section 5.8 of the Note Agreements shall be and is hereby
mended in its entirety to read as follows:
"Section 5.8. Limitations on Current Debt and Funded Debt. (a)
The Company will not permit or suffer the Adjusted Leveraged Ratio to
be greater than 0.60 to 1.0 at any time.
(b) The Company will not, and will not permit any Subsidiary
to, create, assume, guarantee or otherwise incur or any in manner be or
become liable in respect of (1) any Current Debt or Funded Debt of the
Company or any Subsidiary secured by Liens permitted by Section
5.9(A)(8), or (2) any other Current Debt or Funded Debt of a Subsidiary
(other than Qualified Current Debt and Qualified Funded Debt of a
Subsidiary Guarantor), or (3) any Attributable Indebtedness of Sale and
Leaseback Transactions of the Company or any Subsidiary, unless at the
time of creation, issuance, assumption, guarantee or incurrence thereof
and after giving effect thereto and to the application of the proceeds
thereof, the sum of (A) Current Debt and Funded Debt of the Company and
its Subsidiaries secured by Liens permitted by Section 5.9(A)(8), plus
(without duplication) (B) Current Debt and Funded Debt of Subsidiaries
(other than Qualified Current Debt and Qualified Funded Debt of
Subsidiary Guarantors) and (C) Attributable Indebtedness of Sale and
Leaseback Transactions of the Company and its Subsidiaries would not
exceed 15% of Consolidated Net Worth.
(c) Any Person which becomes a Subsidiary after the date
hereof shall for all purposes of this Section 5.8 be deemed to have
created, assumed or incurred at the time it becomes a Subsidiary all
Current Debt and Funded Debt of such Person existing immediately after
it becomes a Subsidiary."
Section 1.5. Section 5.9 of the Note Agreements is hereby amended
as follows:
(a) "and" at the end of clause (8) of Section 5.9(a) is
hereby deleted;
(b) the "period" at the end of clause (9) of Section 5.9
(a) is hereby deleted and a comma is substituted therefor; and
(c) a new clause (10) is hereby added to read as follows:
"(10) the Liens of any Stock Pledge Agreements."
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Section 1.6. Section 5.10(b)(1) of the Note Agreements shall be amended
in its entirely to read as follows:
"(1) the sale, lease, transfer or other disposition of assets of a
Subsidiary to the Company or a Wholly-owned Subsidiary, or of the Company to a
Wholly-owned Subsidiary; or"
Section 1.7. Section 5.10(c)(3) of the Note Agreements shall be and is
hereby amended by deleting therefrom ", except that such prohibition against any
such sale or other disposition to an Affiliate shall not be deemed or construed
to apply to the sale of the Subsidiary Stock of Universal Development and Real
Estate, Inc., a Michigan corporation, to its employees who, after giving
effect to such sale, shall no longer be employees of the Company or any of its
other Subsidiaries".
Section 1.8. Section 5.11 of the Note Agreements shall be and is hereby
amended in its entirety to read as follows:
"Section 5.11. Guaranties. The Company will not, and will not
permit any Subsidiary to, become or be liable in respect of any
Guaranty except Guaranties by the Company which are limited in amount
to a stated maximum dollar exposure or which constitute Guaranties of
obligations incurred by any Subsidiary in compliance with the
provisions of this Agreement; provided that nothing contained in this
Section 5.11 shall be deemed or construed to prohibit any Subsidiary
from executing and delivering the Subsidiary Note Guaranty or joining
the same as contemplated by Section 3.1(f) of the First Amendment and
Section 5.17, respectively, or from executing and delivering any
Subsidiary Bank Guaranty; provided that in each such case each
beneficiary of any such Guaranty shall have entered into and become a
party to the Intercreditor Agreement."
Section 1.9. The following shall be added as a new Section 5.17 to the
Note Agreements:
"Section 5.17.Guaranty by Subsidiaries. (a) Subject to
clause (b) of this SS.5.17, the Company will cause each Subsidiary
which delivers a Guaranty after the Closing Date to concurrently enter
into a Subsidiary Note Guaranty and within three Business Days
thereafter shall deliver to each of the holders of the Notes the
following items:
(1) an executed counterpart of the Subsidiary Note
Guaranty or a joinder agreement pursuant to which such
Subsidiary becomes a party to the Subsidiary Note Guaranty;
(2) a certificate signed by an authorized officer of
such Subsidiary making representations and warranties to the
effect of those contained in Paragraphs 2, 10, 12 and
17 of Exhibit B to the Note Agreements, but with respect to
such Subsidiary and the Subsidiary Note Guaranty;
(3) such documents and evidence with respect to such
Subsidiary as the Requisite Holders may reasonably request in
order to establish the existence and good standing of such
Subsidiary and the authorization of the transactions
contemplated by the Subsidiary Note Guaranty; and
(4) an opinion of counsel satisfactory to the
Requisite Holders to the effect that the Subsidiary Note
Guaranty or the joinder agreement pursuant to which
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such Subsidiary has become a party to the Subsidiary Note
Guaranty, as the case may be, has been duly authorized,
executed and delivered and constitutes the legal, valid and
binding contract and agreement of such Subsidiary enforceable
in accordance with its terms, except as an enforcement of such
terms may be limited by bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting the
enforcement of creditors' rights generally and by general
equitable principles.
(b) Notwithstanding the requirements of clause (a) of this
Section 5.17, the Company shall not be required to comply therewith if,
but only if, the Company can create or incur the Indebtedness evidenced
by any Guaranty entered into by a Subsidiary within the limitations of
Section 5.8(b).
(c) Nothing contained in this Section 5.17 shall be deemed or
construed to otherwise permit a Subsidiary of the Company to create,
assume, guarantee or otherwise incur or in any manner be or become
liable in respect of any Current Debt or Funded Debt which is not
otherwise within the limitations of Section 5.8 and the other
applicable provisions of this Agreement."
Section 1.10. The following shall be added as a new Section 5.18 to the Note
Agreements:
"Section 5.18. Stock Pledge Agreement. If the Company
shall enter into any stock pledge agreement (each, a "Stock Pledge
Agreement") pursuant to which the Company shall grant to the Collateral
Agent or any other Institutional Holder a pledge of and security
interest in the capital stock of any Subsidiary, then and in such
event, the Company shall concurrently with the execution and delivery
of such Stock Pledge Agreement deliver to each of the holders of the
Notes the following items:
(a) an executed counterpart of the Stock Pledge
Agreement;
(b) a certificate signed by an executive officer
of the Company making representations and warranties to the
effect of those contained in Paragraphs 2, 10, 12 and 17 of
Exhibit B to the Note Agreements, but with respect to such
Stock Pledge Agreement and to the effect that such Stock
Pledge Agreement constitutes a first and prior perfected
security interest in the capital stock which is the subject of
such Stock Pledge Agreement free and clear of all Liens of
creditors of the Company, other than the Lien of such Stock
Pledge Agreement;
(c) such modifications, amendments or supplements to
the Intercreditor Agreement as may be deemed necessary by the
Requisite Holders to confirm that any proceeds realized from
the enforcement by the Collateral Agent or such other
Institutional Holder of its rights pursuant to such Stock
Pledge Agreement as pledgee of such capital stock shall be
applied in accordance with the terms and provisions of the
Intercreditor Agreement; and
(d) an opinion of counsel satisfactory to the
Requisite Holders to the effect that (1) such Stock
Pledge Agreement has been duly authorized, executed and
delivered and constitutes the legal, valid and binding
contract and agreement of the Company enforceable in
accordance with its terms, except as an enforcement of such
terms may be limited by bankruptcy, insolvency,
reorganization, moratorium and
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similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles and (2) such
Stock Pledge Agreement creates a valid and perfected first and
prior security interest in and pledge of the capital stock of
the Subsidiary which is the subject of such Stock Pledge
Agreement."
Xxxxxxx 0.00. Xxxxxxxx 0.0(x), (x), (x), (x), (x) and (l) of the Note
Agreements shall be and are hereby amended in their entirety to read as follows:
"(f) Default shall be made in the payment when due (whether by
lapse of time, by declaration, by call for redemption or otherwise) of
the principal of or interest on any Indebtedness for borrowed money
(other than the Notes) of the Company or any Subsidiary aggregating in
excess of $3,000,000 and such default shall continue beyond the period
of grace, if any, allowed with respect thereto; provided, that an Event
of Default shall not be deemed to have occurred under this Section 6(f)
if any of the foregoing events occur only with respect to Subsidiaries
which are not Wholly-owned Subsidiaries of the Company or Guarantors
and if all such non-Wholly-owned Subsidiaries do not, if considered in
the aggregate as a single Subsidiary, constitute a Significant
Subsidiary; or
(g) Default or the happening of any event shall occur under
any indenture, agreement or other instrument under which any
Indebtedness for borrowed money (other than the Notes) of the Company
or any Subsidiary aggregating in excess of $3,000,000 is outstanding
and such default or event shall result in the acceleration of the
maturity of any Indebtedness for borrowed money of the Company or any
Subsidiary outstanding thereunder; provided, that an Event of Default
shall not be deemed to have occurred under this Section 6(g) if any of
the foregoing events occur only with respect to Subsidiaries which are
not Wholly-owned Subsidiaries of the Company or Guarantors and if all
such non-Wholly-owned Subsidiaries do not, if considered in the
aggregate as a single Subsidiary, constitute a Significant Subsidiary;
or
(i) Final judgment or judgments for the payment of money
aggregating in excess of $1,000,000 (net of insurance proceeds to the
extent the insurer has acknowledged liability with respect thereto) is
or are outstanding against the Company or any Subsidiary or against any
property or assets of either and any one of such judgments has remained
unpaid, unvacated, unbonded or unstayed by appeal or otherwise for a
period of 45 days from the date of its entry, provided, that an Event
of Default shall not be deemed to have occurred under this Section 6(i)
if any of the foregoing events occur only with respect to Subsidiaries
which are not Wholly-owned Subsidiaries of the Company or Guarantors
and if all such non-Wholly-owned Subsidiaries do not, if considered in
the aggregate as a single Subsidiary, constitute a Significant
Subsidiary; or
(j) A custodian, liquidator, trustee or receiver is appointed
for the Company or any Subsidiary or for the major part of the property
of either and is not discharged within 30 days after such appointment,
provided, that an Event of Default shall not be deemed to have occurred
under this of Section 6(j) if any of the foregoing events occur only
with respect to Subsidiaries which are not Wholly-owned Subsidiaries of
the Company or Guarantors and if all such non-Wholly-owned Subsidiaries
do not, if considered in the aggregate as a single Subsidiary,
constitute a Significant Subsidiary; or
(k) The Company or any Subsidiary becomes insolvent or
bankrupt, is generally
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not paying its debts as they become due or makes an assignment for the
benefit of creditors, or the Company or any Subsidiary applies for or
consents to the appointment of a custodian, liquidator, trustee or
receiver for the Company or such Subsidiary or for the major part of
the property of either, provided, that an Event of Default shall not be
deemed to have occurred under this Section 6(k) if any of the foregoing
events occur only with respect to Subsidiaries which are not
Wholly-owned Subsidiaries of the Company or Guarantors and if all such
non-Wholly-owned Subsidiaries do not, if considered in the aggregate as
a single Subsidiary, constitute a Significant Subsidiary; or
(l) Bankruptcy, reorganization, arrangement or insolvency
proceedings, or other proceedings for relief under any bankruptcy or
similar law or laws for the relief of debtors, are instituted by or
against the Company or any Subsidiary and, if instituted against the
Company or any Subsidiary, are consented to or are not dismissed within
60 days after such institution, provided, that an Event of Default
shall not be deemed to have occurred under this Section 6(l) if any of
the foregoing events occur only with respect to Subsidiaries which are
not Wholly-owned Subsidiaries of the Company or Guarantors and if all
such non-Wholly-owned Subsidiaries do not, if considered in the
aggregate as a single Subsidiary, constitute a Significant Subsidiary;
or"
Section 1.12. The following shall be added as a new Section 6.1(m) to
the Note Agreements:
"6.1(m) For any reason the Subsidiary Note Guaranty or any
Stock Pledge Agreement shall cease to be in full force and effect for
any reason whatsoever, including, without limitation, a determination
by any governmental body or court that any of such agreements is
invalid, void or unenforceable or any Person which is a party thereto
shall contest or deny in writing the validity or enforceability of any
of its obligations under any such agreement."
Section 1.13. Section 6.3 of the Note Agreements shall be and is
hereby amended by adding the words "or paragraph (m)," after the word
"inclusive," in the second sentence of said Section 6.3.
Section 1.14. Section 6.4 of the Note agreements shall be and is
hereby amended by adding the words "or paragraph (m)," after the word
"inclusive," in said Section 6.4.
Section 1.15. The definitions in Section 8.1 of the Note
Agreements of the terms "Chesapeake Transaction", "Consolidated Adjusted Net
Worth", "Indebtedness", "Person", "SFAS 106", "SFAS 106 Adjustment" and "SFAS
Transition Obligation" shall be and are hereby
deleted in their entirety.
Section 1.16. The following terms and definitions shall be added
as new defined terms in alphabetical order to Section 8.1 of the Note
Agreements:
"Adjusted Leverage Ratio" shall mean, as of any date, the
ratio of (a) the Total Seasonally Adjusted Debt as of such date to (b)
the Total Adjusted Capitalization as of such date.
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"Bank Credit Agreement" shall mean the $175,000,000 Revolving
Credit Agreement dated November 13, 1998 by and among the Company,
various lenders party thereto from time to time and NBD Bank, as Agent.
"Banks" or "the Banks" shall mean the Banks party to the Bank
Credit Agreement.
"Collateral Agent" shall mean NBD Bank, in its role as
Collateral Agent under the Intercreditor Agreement.
"Consolidated Net Worth" shall mean, as of any date, the
amount of any capital stock, paid in capital and similar equity
accounts plus (or minus in the case of a deficit) the capital surplus
and retained earnings of the Company and the Subsidiaries and the
amount of any foreign currency translation adjustment account shown as
a capital account of the Company and its Subsidiaries, all on a
consolidated basis in accordance with GAAP.
"Contingent Liabilities" of any Person shall mean, as of any
date, all obligations of such Person or of others for which such Person
is contingently liable, as obligor, guarantor, surety or in any other
capacity, or in respect of which obligations such Person assures a
creditor against loss or agrees to take any action to prevent any such
loss (other than endorsements of negotiable instruments for collection
in the ordinary course of business), including without limitation all
reimbursement obligations of such Person in respect of any letters of
credit, surety bonds or similar obligations and all obligations of such
Person to advance funds to, or to purchase assets, property or services
from, any other Person in order to maintain the financial condition of
such other Person.
"Financial Contract" of a Person shall mean (a) any
exchangetraded or overthecounter futures, forward, swap or option
contract or other financial instrument with similar characteristics, or
(b) any agreements, devices or arrangements providing for payments
related to fluctuations of interest rates, exchange rates or forward
rates, including, but not limited to, interest rate exchange
agreements, forward currency exchange agreements, interest rate cap or
collar protection agreements, forward rate currency or interest rate
options.
"First Amendment" shall mean the First Amendment to this
Agreement dated as of November 13, 1998.
"Indebtedness" of any Person shall mean, as of any date, (a)
all obligations of such Person for borrowed money, (b) all obligations
of such Person as lessee under any Capitalized Lease, (c) the unpaid
purchase price for goods, property or services acquired by such Person,
except for accounts payable and other accrued liabilities arising in
the ordinary course of business which are not materially past due, (d)
all obligations of such Person to purchase goods, property or services
where payment therefor is required regardless of whether delivery of
such goods or property or the performance of such services is ever made
or tendered (generally referred to as "take or pay contracts"), other
than obligations incurred in the ordinary course of business, (e) all
obligations of such Person in respect of any Financial Contract (valued
in an amount equal to the highest termination payment, if any, that
would be payable by such Person upon termination for any reason on the
date of determination), (f) to the extent not included in the
foregoing, obligations and liabilities which would be classified as
part of Total Debt, and (g) all obligations of others similar in
character to those described in clauses (a) through (f) of this
definition for which such Person is contingently liable, as obligor,
guarantor, surety or in any other capacity, or in respect of which
obligations such Person assures a creditor against loss or agrees to
take any action to
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prevent any such loss (other than endorsements of negotiable
instruments for collection in the ordinary course of business),
including without limitation all reimbursement obligations of such
Person in respect of letters of credit, surety bonds or similar
obligations and all obligations of such Person to advance funds to, or
to purchase assets, property or services from, any other Person in
order to maintain the financial condition of such other Person.
"Intercreditor Agreement" shall mean the Intercreditor
Agreement dated as of November 13, 1998 by and among the Noteholders,
the Banks and the Collateral Agent.
"Person" shall include an individual, a corporation, a limited
liability company, an association, a partnership, a trust or estate, a
joint stock company, an unincorporated organization, a joint venture, a
trade or business (whether or not incorporated), a government (foreign
or domestic) and any agency or political subdivision thereof, or any
other entity.
"Qualified Current Debt" and "Qualified Funded Debt" shall
mean Current Debt or Funded Debt, as the case may, of a Guarantor which
is a party to the Subsidiary Note Guaranty on the Closing Date or any
Person who has become a party to the Subsidiary Note Guaranty after the
Closing Date in accordance with Section 5.17; provided that the obligee
of such Current Debt or Funded Debt shall have entered into the
Intercreditor Agreement.
"Significant Subsidiary" shall mean any one or more
Subsidiaries which, if considered in the aggregate as a single
Subsidiary, would comprise 10% or more of the total assets of the
Company and its Subsidiaries on a consolidated basis.
"Subsidiary Bank Guaranty" shall mean any Guaranty of any
Subsidiary of the Company with respect to the payment of sums due and
owing under the Bank Credit Agreement.
"Subsidiary Note Guaranty" shall mean any Guaranty of any
Subsidiary of the Company with respect to the payment of the Notes and
all other sums due and owing by the Company under this Agreement, which
Guaranty shall be in the form attached to the First Amendment as
Exhibit B.
"Stock Pledge Agreement" shall have the meaning set forth in
Section 5.18.
"Total Adjusted Capitalization" shall mean, as of any date,
the sum of Consolidated Net Worth and Total Seasonally Adjusted Debt
as of such date.
"Total Debt" as of any date, shall mean, without duplication,
all of the following for the Company and its Subsidiaries on a
consolidated basis: (a) all Indebtedness for borrowed money and similar
monetary obligations evidenced by bonds, notes, debentures,
acceptances, Capitalized Lease obligations or otherwise, (b) all
liabilities secured by any Lien existing on property owned or acquired
by the Company or any Subsidiary subject thereto, whether or not the
liability secured thereby shall have been assumed, (c) all
reimbursement obligations under outstanding letters of credit, bankers'
acceptances or similar instruments in respect of drafts which (i) may
be presented or (ii) have been presented and have not yet been paid and
are not included in clause (a) above, and (d) all guarantees and other
Contingent Liabilities relating to indebtedness, obligations or
liabilities of the type described in the foregoing clauses (a), (b) and
(c).
"Total Seasonally Adjusted Debt" shall mean, as of the end of
any fiscal quarter of the Company, the following appropriate amount for
such fiscal quarter end: (a) for any fiscal quarter ending in March or
June, 85% of Total Debt as of the end of such fiscal quarter, and (b)
for any fiscal quarter ending in September or December, 115% of Total
Debt as of the end of such fiscal quarter.
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Section 1.17. The definition of "Company Control Group" in Section 8.1
of the Note Agreements is hereby amended in its entirety to read as follows:
"Company Control Group" shall mean all, or any combination of,
any one or more of the individuals comprising Current Management and
who, as of the date of any determination hereof: (a) is employed on a
full-time basis by the Company as a director or officer of the Company,
and (b) has been so employed for at least three years preceding such
date of determination, except Xxxx Xxxxxx who shall in any event be
deemed to be a member of the Company Control Group for so long as he is
employed on a full-time basis by the Company as a director or officer."
Section 1.18. The definition of "Consolidated Total Capitalization" in
Section 8.1 of the Note Agreements shall be and is hereby amended by
substituting the phrase "Consolidated Net Worth" for the phrase "Consolidated
Adjusted Net Worth" as such phrase appears therein.
Section 1.19. The definition of "Current Management" in Section 8.1 of
the Note Agreements is hereby amended in its entirety to read as follows:
"Current Management" shall mean Xxxxx X. Xxxxxxx, Xxxxxxx X.
Xxxxxx, Xxxxxxx Xxxxxx, Xxxx Xxxxxx, Xxxxx X. Xxxx, Xxxxxxx X. Xxxxx
and Xxxxxxxxx X. Xxxxxx, whether in case of each of the foregoing, such
Person owns capital stock of the Company directly or beneficially.
Section 1.20. The definition of "Funded Debt" in Section 8.1 of the
Note Agreements is hereby amended in its entirety to read as follows:
"Funded Debt" of any Person shall mean (a) all Indebtedness of
such Person for borrowed money or which has been incurred in connection
with the acquisition of assets in each case having a final maturity of
one or more than one year from the date of origin thereof (or which is
renewable or extendible at the option of the obligor for a period or
periods more than one year from the date of origin), including all
payments in respect thereof that are required to be made within one
year from the date of any determination of Funded Debt, whether or not
the obligation to make such payments shall constitute a current
liability of the obligor under GAAP, (b)all Capitalized Rentals of such
Person, (c) all Guaranties by such Person of Funded Debt of others, and
(d) if, during the 365-day period immediately preceding the date of any
determination of Funded Debt of such Person, there shall not have been
a period of at least 30 consecutive days during which Indebtedness of
such Person outstanding under all revolving credit or similar
agreements are equal to zero, then, and in such an event, an amount
equal to the highest aggregate amount of all such Indebtedness
outstanding during any period of 30 consecutive days selected by such
Person during such preceding 365-day period.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
12
Section 2.1. To induce the Noteholders to execute and deliver
this First Amendment (which representations shall survive the execution and
delivery of this First Amendment), the Company represents and warrants to the
Noteholders that:
(a) this First Amendment has been duly authorized, executed
and delivered by it and this First Amendment constitutes the legal,
valid and binding obligation, contract and agreement of the Company
enforceable against it in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws or equitable principles relating to or
limiting creditors' rights generally;
(b) the Note Agreements, as amended by this First Amendment,
constitute the legal, valid and binding obligations, contracts and
agreements of the Company enforceable against it in accordance with
their respective terms, except as enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws or
equitable principles relating to or limiting creditors' rights
generally;
(c) the execution, delivery and performance by the Company of
this First Amendment (i) has been duly authorized by all
requisite corporate action and, if required, shareholder action,
(ii) does not require the consent or approval of any
governmental or regulatory body or agency, and (iii) will not
(A) violate (1) any provision of law, statute, rule or
regulation or its certificate of incorporation or bylaws, (2)
any order of any court or any rule, regulation or order of any other
agency or government binding upon it, or (3) any provision of
any material indenture, agreement or other instrument to which it is a
party or by which its properties or assets are or may be bound, or
(B) result in a breach or constitute (alone or with due notice
or lapse of time or both) a default under any indenture, agreement or
other instrument referred to in clause (iii)(A)(3) of this
Section 2.1(c);
(d) as of the date hereof and after giving effect to this
First Amendment, no Default or Event of Default has occurred which is
continuing; and
(e) all the representations and warranties contained in
Section 3.1 of the Note Agreements and Exhibit B thereto are
true and correct in all material respects with the same force and
effect as if made by the Company on and as of the date hereof.
SECTION 3. CONDITIONS TO EFFECTIVENESS OF THIS FIRST AMENDMENT.
Section 3.1. This First Amendment shall not become effective
until, and shall become effective when, each and every one of the following
conditions shall have been satisfied:
(a) executed counterparts of this First Amendment, duly
executed by the Company and the holders of at least 66-2/3% of the
outstanding principal of the Notes, shall have been delivered to the
Noteholders;
(b) the Noteholders shall have received evidence satisfactory
to them that the Company has entered into the Bank Credit Agreement in
the form annexed hereto as Exhibit A (the "Bank Credit
Agreement");
(c) the Noteholders shall have received a copy of the
resolutions of the Board of Directors of the Company certified by its
Secretary or an Assistant Secretary authorizing the execution, delivery
and performance (i) by the Company of this First Amendment,
(ii) by the Company of the Bank Credit Agreement, and (iii) by
each of the Company's Subsidiaries which has entered into the
Subsidiary Note Guaranty;
(d) the representations and warranties of the Company set
forth in Section 2 hereof are
13
true and correct on and with respect to the date hereof;
(e) the Noteholders shall have received the favorable opinion
of counsel to the Company as to the matters set forth in Sections 2.1
(A), 2.1(b) and 2.1(c) hereof, which opinion shall be in form and
substance satisfactory to the Noteholders;
(f) the Noteholders shall have received the Subsidiary Note
Guaranty in the form annexed hereto as Exhibit B from each
Subsidiary which is concurrently delivering a Subsidiary Bank Guaranty;
(g) the Noteholders shall have received a certificate signed
by an authorized officer of each such Subsidiary making representations
and warranties to the effect of those contained in Sections 2.1(A),
2.1(b) and 2.1(c), but with respect to such Subsidiary and the
Subsidiary Note Guaranty, as applicable;
(h) the Noteholders shall have received such documents and
evidence with respect to each such Subsidiary as any holder of the
Notes may reasonably request in order to establish the existence and
good standing of any such Subsidiary and the authorization of the
transactions contemplated by the Subsidiary Note Guaranty;
(i) the Noteholders shall have received an opinion of counsel
to each Subsidiary which is a party to the Subsidiary Note Guaranty
satisfactory to the Noteholders to the effect that the Subsidiary Note
Guaranty has been duly authorized, executed and delivered and
constitutes the legal, valid and binding contract and agreement of each
Subsidiary which is a party thereto, enforceable in accordance with its
terms, except as an enforcement of such terms may be limited by
bankruptcy, insolvency, reorganization, moratorium and similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles; and
(j) the Noteholders, the Banks and the Collateral Agent shall
have entered into the Intercreditor Agreement in the form annexed
hereto as Exhibit C.
Upon receipt of all of the foregoing, this First Amendment shall become
effective.
SECTION 4. PAYMENT OF NOTEHOLDERS' COUNSEL FEES AND EXPENSES.
Section 4.1. The Company agrees to pay upon demand, the
reasonable fees and expenses of Xxxxxxx and Xxxxxx, counsel to the Noteholders,
in connection with the negotiation, preparation, approval, execution and
delivery of this First Amendment.
SECTION 5. MISCELLANEOUS.
Section 5.1. This First Amendment shall be construed in
connection with and as part of each of the Note Agreements, and except as
modified and expressly amended by this First Amendment, all terms, conditions
and covenants contained in the Note Agreements and the Notes are hereby ratified
and shall be and remain in full force and effect.
Section 5.2. Any and all notices, requests, certificates and
other instruments executed and delivered after the execution and delivery of
this First Amendment may refer to the Note Agreements without making specific
reference to this First Amendment but nevertheless all such references shall
include this First Amendment unless the context otherwise requires.
Section 5.3. The descriptive headings of the various Sections or parts
of this First
14
Amendment are for convenience only and shall not affect the meaning or
construction of any of the provisions hereof.
Section 5.4. This First Amendment shall be governed by and
construed in accordance with New York law.
[Intentionally Blank]
Section 5.5. The execution hereof by you shall constitute a
contract between us for the uses and purposes hereinabove set forth, and this
First Amendment may be executed in any number of counterparts, each executed
counterpart constituting an original, but all together only one agreement.
UNIVERSAL FOREST PRODUCTS, INC.
By:
-------------------------------------
Its:
------------------------------------
Accepted and Agreed to:
[VARIATION]
By:
-------------------------------------
Its:
------------------------------------
15
[BANK CREDIT AGREEMENT]
EXHIBIT A
16
[FORM OF GUARANTY]
EXHIBIT B
17
[FORM OF INTERCREDITOR AGREEMENT]
EXHIBIT C
