Execution Copy
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT, dated as of
September 18, 2003 (this "Amendment"), is by and among Universal Forest
Products, Inc., a Michigan corporation (the "Company"), the Canadian Borrower,
the Lenders, Bank One, NA, a national banking association having its principal
office in Chicago, Illinois, as Agent, Wachovia Bank, N.A., as Syndication
Agent, and Standard Federal Bank, N.A., as Documentation Agent.
RECITAL
The Company, the Canadian Borrower, the Lenders, the Agent, the
Syndication Agent and the Documentation Agent are parties to a Credit Agreement
dated as of November 25, 2002 (the "Credit Agreement"). The Company, the
Canadian Borrower and the Guarantors desire to amend the Credit Agreement and
the Agent and the Lenders are willing to do so in accordance with the terms
hereof.
TERMS
In consideration of the premises and of the mutual agreements herein
contained, the parties agree as follows:
ARTICLE 1.
AMENDMENTS
The Credit Agreement shall be amended as follows:
1.1 The definition of Lien in Section 1.1 is amended by adding the
following to the end thereof: ", provided that the filing of financing
statements solely with respect to, or other lien or claim solely on, any
interest in Sale Receivables sold or otherwise transferred in a Permitted A/R
Sale Transaction shall not be considered a Lien."
1.2 The following new definitions are added to Article I in appropriate
alphabetical order:
"A/R Sale Obligations" shall mean the aggregate consolidated
obligations of the Company and its Subsidiaries pursuant to all sales and other
transfers of Sale Receivables in connection with Permitted A/R Sale
Transactions. For purposes of this definition, the amount of such obligations
shall be deemed to be, as of any date, the aggregate purchase price paid to date
for Sale Receivables by the purchaser thereof, net of any and all collections
and recourse payments with respect to such Sale Receivables that have been
received to by or on behalf of such purchaser (or, if determined by the Agent,
such other amount determined by the Agent based on the aggregate outstanding
principal amount thereof if all Permitted A/R Sale Transactions were structured
as on balance sheet financings, whether or not shown as a liability on a
consolidated balance sheet of the Company and its Subsidiaries), together with
any discount, interest, fees, indemnities, penalties, recourse obligations,
expenses or other amounts representative of yield or interest earned on such
investment or otherwise in connection therewith, to the extent that any of such
items are, as of the date of determination, outstanding and unpaid.
"A/R Subsidiary" shall mean a wholly-owned Subsidiary of the Company
that engages in no activities other than the purchase of accounts receivable
from other Subsidiaries of the Company and
from the Company and Permitted A/R Sale Transactions and any necessary related
activities and owns no assets other than accounts receivable so purchased
(including Sale Receivables), the proceeds of such accounts receivable, and such
other assets as are required in connection with Permitted A/R Sale Transactions,
and which Subsidiary shall be a Guarantor.
"Permitted A/R Sale Transaction" shall mean any transaction, or series
of transactions, under which Sale Receivables owned by the A/R Subsidiary are
sold or transferred to a third-party purchaser in exchange for consideration, in
cash or its equivalent, in an amount equal to the fair market value thereof, and
under which the A/R Subsidiary, the Company and/or another Subsidiary shall
continue to service the Sale Receivables as agent or sub-agent on behalf of the
purchaser thereof.
"Sale Receivables" shall mean, collectively (a) accounts receivable
that have been originated by the Company or a Subsidiary and transferred to the
A/R Subsidiary for sale pursuant to a Permitted A/R Sale Transaction; (b) all
proceeds of such accounts receivable; and (c) any and all instruments, contract
rights, chattel paper, or other general intangibles relating to or arising out
of such accounts receivable.
1.3 Reference in Section 2.1(d) to "$30,000,000" is deleted and
"$50,000,000" is substituted in place thereof.
1.4 Section 5.2(f) is amended by adding the following to the end
thereof: ", provided, further, that for purposes of this Section 5.2(f), the
sale or transfer by the A/R Subsidiary of Sale Receivables pursuant to Permitted
A/R Sale Transactions shall not be deemed to be asset transfers, to the extent
that net collections from such Sale Receivables are used by the purchaser
thereof to acquire additional Sale Receivables from the A/R Subsidiary under one
or more subsequent Permitted A/R Sale Transactions, and such net collections are
in fact so used within six months after purchaser's receipt thereof."
1.5 Section 5.2(i) is amended by adding the following to the end
thereof: ", and except that the A/R Subsidiary and the Company may agree, as
part of any Permitted A/R Sale Transaction, not to allow, grant or create any
Lien upon any of the Sale Receivables."
1.6 A new Section 5.2(n) is added as follows:
(n) Permitted A/R Sale Obligations. Permit or suffer the
aggregate A/R Sale Obligations to exceed $35,000,000 at any time.
1.7 Each reference in Section 6.1(f) to "Indebtedness", other than the
reference to Indebtedness inside the parenthetical in line 3 of Section 6.1(f),
shall be deleted and "Indebtedness or A/R Sale Obligations" shall be substituted
in each place thereof.
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ARTICLE 2.
REPRESENTATIONS
Each Borrower represents and warrants to the Agent and the Lenders
that:
2.1 The execution, delivery and performance by it of this Amendment
have been duly authorized by all necessary corporate action and are not in
contravention of any material law, rule or regulation, or any judgment, decree,
writ, injunction, order or award of any arbitrator, court or governmental
authority, or of the terms of its charter or by-laws, or of any material
contract or undertaking to which it is a party or by which it or its property is
bound or affected and do not result in the imposition of any Lien except for
Permitted Liens.
2.2 This Amendment is the legal, valid and binding obligations of it
enforceable against it in accordance with their respective terms; except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to creditors' rights and except that
the remedy of specific performance and injunctive and other forms of equitable
relief are subject to equitable defenses and to the discretion of the court
before which any proceedings may be brought.
2.3 After giving effect to the amendments herein contained, the
representations and warranties contained in Article IV of the Credit Agreement
and in any other Loan Document shall be true and correct in all material
respects on and as of the date hereof as if such representations and warranties
were made on and as of the date hereof.
2.4 No Event of Default or Default exists on the date hereof.
ARTICLE 3.
CONDITIONS PRECEDENT.
This Amendment shall become effective as of the date hereof, provided
that each of the following has been satisfied:
3.1 This Amendment shall be signed by the Borrowers, the Agent and the
Required Lenders.
3.2 Each Guarantor shall have executed the Consent and Agreement
attached hereto.
3.3 The Borrowers shall deliver to the Agent such board resolutions,
incumbency certificates and legal opinions required by the Agent.
3.4 The Borrowers shall deliver to the Agent such other agreements and
documents in connection herewith as requested by the Agent.
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ARTICLE 4.
MISCELLANEOUS.
4.1 References in any Loan Document to the Credit Agreement shall be
deemed to be references to the Credit Agreement as amended hereby and as further
amended from time to time.
4.3 Each Borrower acknowledges and agrees that the Agent, the
Syndication Agent, the Documentation Agent and the Lenders have fully performed
all of their obligations under all documents executed in connection with the
Loan Documents and all actions taken by the Agent, the Syndication Agent, the
Documentation Agent and/or the Lenders are reasonable and appropriate under the
circumstances and within their rights under the Loan Documents. Each Borrower
represents and warrants that it is not aware of, and hereby waives, any claims
or causes of action against the Agent, the Syndication Agent, the Documentation
Agent or any Lender, any participant lender or any of their successors or
assigns.
4.4 Except as expressly amended hereby, each Borrower agrees that the
Loan Documents are ratified and confirmed and shall remain in full force and
effect and that it has no set off, counterclaim, defense or other claim or
dispute with respect to any Loan Document or any transactions in connection
therewith. Terms used but not defined herein shall have the respective meanings
ascribed thereto in the Credit Agreement.
4.5 This Amendment may be signed upon any number of counterparts with
the same effect as if the signatures thereto and hereto were upon the same
instrument, and telecopied signatures shall be enforceable as originals.
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IN WITNESS WHEREOF, the parties signing this Amendment have
caused this Amendment to be executed and delivered as of the day and year first
above written.
UNIVERSAL FOREST PRODUCTS, INC.
By:
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Its:
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UNIVERSAL FOREST PRODUCTS NOVA SCOTIA
ULC
By:
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Its:
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BANK ONE, NA, as a Lender and as Agent
By:
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Its:
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XXXX XXX, XX, XXXXXX BRANCH
By:
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Its:
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WACHOVIA BANK, NA, as a Lender and as
Syndication Agent
By:
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Its:
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STANDARD FEDERAL BANK, NA, as a Lender
and as Documentation Agent
By:
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Its:
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BANK OF MONTREAL
By:
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Its:
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BANK OF MONTREAL
By:
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Its:
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COMERICA BANK
By:
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Its:
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COMERICA BANK, CANADA BRANCH
By:
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Its:
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KEYBANK NATIONAL ASSOCIATION
By:
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Its:
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NATIONAL CITY BANK
By:
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Its:
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BANK OF AMERICA
By:
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Its:
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FIFTH THIRD BANK
By:
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Its:
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HUNTINGTON NATIONAL BANK
By:
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Its:
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PROVIDENT BANK
By:
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Name:
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Its:
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CONSENT AND AGREEMENT
As of the date and year first above written, each of the
undersigned hereby:
(a) fully consents to the terms and provisions of the above
Amendment and the consummation of the transactions contemplated hereby, and
agrees to all terms and provisions of the above letter applicable to it;
(b) agrees that its Guaranty and all other Loan Documents
executed by the undersigned in connection with the Credit Agreement or otherwise
in favor of the Agent and/or the Lenders (collectively, the "Documents") are
hereby ratified and confirmed and shall remain in full force and effect, and the
undersigned acknowledges that it has no setoff, counterclaim, defense or other
claim or dispute with respect to any Document or any transactions in connection
therewith; and
(c) acknowledges that it is in its interest and to its
financial benefit to execute this consent and agreement.
UNIVERSAL FOREST
PRODUCTS RMS, LLC
By:
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Its:
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UFP TRANSPORTATION, INC.
By:
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Its:
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UNIVERSAL FOREST PRODUCTS, INC.
By:
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Its:
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UNIVERSAL FOREST PRODUCTS
INDIANA LIMITED PARTNERSHIP
By:
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Its:
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UNIVERSAL FOREST PRODUCTS
TEXAS LIMITED PARTNERSHIP
By:
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Its:
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UNIVERSAL FOREST PRODUCTS
HOLDING COMPANY, INC.
By:
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Its:
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UNIVERSAL FOREST PRODUCTS
WESTERN DIVISION, INC.
By:
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Its:
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XXXXXXXX HOLDING COMPANY, INC.
By:
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Its:
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UNIVERSAL FOREST PRODUCTS
EASTERN DIVISION, INC.
By:
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Its:
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UNIVERSAL FOREST PRODUCTS XXXXXXXX LLC
By:
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Its:
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UNIVERSAL TRUSS, INC.
By:
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Its:
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UNIVERSAL FOREST PRODUCTS
RECLAMATION CENTER, INC.
By:
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Its:
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UNIVERSAL FOREST PRODUCTS OF MODESTO L.L.C.
By:
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Its:
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TRESSTAR, LLC
By:
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Its:
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UFP VENTURES, INC.
By:
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Its:
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CONSOLIDATED BUILDING COMPONENTS, INC.
By:
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Its:
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UFP REAL ESTATE, INC.
By:
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Its:
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SYRACUSE REAL ESTATE, LLC
By:
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Its:
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UFP VENTURES II, INC.
By:
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Its:
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