SEVENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
Exhibit 4.9.7
SEVENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS SEVENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (this “Amendment”), dated as of December 13, 2012 is entered into by and among the Lenders signatory hereto, BANK OF AMERICA, N.A., as Agent for the Lenders (in such capacity, “Agent”), HEADWATERS CONSTRUCTION MATERIALS, INC., a Utah corporation (“HCM”), TAPCO INTERNATIONAL CORPORATION, a Michigan corporation (“Tapco”), HEADWATERS RESOURCES, INC., a Utah corporation (“HRI”, and together with HCM, Tapco, and each of HRI’s, HCM’s and Tapco’s subsidiaries identified on the signature pages hereof, each individually a “Borrower”, and collectively, the “Borrowers”), and the other Borrowers signatory hereto.
RECITALS
A. Borrowers, Agent and the lenders party thereto from time to time (each a “Lender” and collectively the “Lenders”) have previously entered into that certain Loan and Security Agreement dated as of October 27, 2009 (as amended, supplemented, restated and modified from time to time, the “Loan Agreement”), pursuant to which the Lenders have made certain loans and financial accommodations available to Borrowers. Terms used herein without definition shall have the meanings ascribed to them in the Loan Agreement.
B. Borrowers have requested that Agent and the Lenders amend the Loan Agreement, which Agent and the Lenders are willing to do pursuant to the terms and conditions set forth herein.
C. Borrowers are entering into this Amendment with the understanding and agreement that, except as specifically provided herein, none of Agent’s or any Lender’s rights or remedies as set forth in the Loan Agreement are being waived or modified by the terms of this Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1. Amendments to Loan Agreement.
(a) The following definitions are hereby added to Section 1.1 of the Loan Agreement in their proper alphabetical order:
“Kleer Acquisition: the acquisition of certain assets of Kleer Lumber, Inc., a Massachusetts corporation, pursuant to that certain Asset Purchase Agreement, dated on or about December 14, 2012, among Tapco, Kleer Lumber, Inc. and any other party identified on the signature pages thereto (the “Kleer Acquisition Agreement”).”
“Kleer Acquisition Loan: Debt owing by Tapco to Parent in connection with the Kleer Acquisition that (a) is not secured by a Lien, (b) does not exceed $5,000,000, (c) is incurred prior to the Kleer Acquisition Payment Date, and (d) the proceeds of which are used solely to fund the purchase consideration payable by Tapco in connection with the Kleer Acquisition.”
“Kleer Acquisition Payment Date: two (2) Business Days prior to the Closing Date (as defined in the Kleer Acquisition Agreement) of the Kleer Acquisition.”
“Seventh Amendment Effective Date: December 13, 2012.”
(b) Clause (e) of the definition of “Permitted Acquisition” in Section 1.1 of the Loan Agreement is hereby amended and restated in its entirety to read as follows:
“(e) as soon as available, but not less than 30 days (or 15 days in the case of the Kleer Acquisition) prior to such Acquisition, the Borrowers have provided Agent (i) notice of such Acquisition and (ii) a copy of all available business and financial information reasonably requested by Agent, including pro forma financial statements, statements of cash flow, financial covenant projections, and Availability projections;”
(c) Clause (f)(i) of the definition of “Permitted Acquisition” in Section 1.1 of the Loan Agreement is hereby amended and restated in its entirety to read as follows:
“(i) 15 Business Days (or 10 Business Days in the case of the Kleer Acquisition) prior to the anticipated closing date of such Acquisition, Borrowers shall have provided the Agent with the then current drafts of the acquisition agreement and other material documents relative to such Acquisition, which agreement and documents must be reasonably acceptable to Agent and”
(d) Clause (g) of the definition of “Permitted Acquisition” in Section 1.1 of the Loan Agreement is hereby amended and restated in its entirety to read as follows:
“(g) the aggregate purchase consideration payable (including deferred payment obligations) in respect of all Acquisitions made (i) during any calendar year shall not exceed $10,000,000 and (ii) during the term of this Agreement shall not exceed $30,000,000, provided, however, that the Kleer Acquisition shall not be subject to this clause (g) so long as: (A) the aggregate purchase consideration payable (including deferred payment obligations) in connection with the Kleer Acquisition shall not exceed $45,000,000, (B) the Kleer Acquisition is consummated prior to December 31, 2012 and (C) either (X) Parent between the Seventh Amendment Effective Date and the Kleer Acquisition Payment Date, (I) sells or issues any Equity Interests and (II) makes a capital contribution to Tapco with the proceeds of such sale or issuance of its Equity Interests in an aggregate amount of at least the aggregate purchase consideration payable (including deferred payment obligations) in respect of the Kleer Acquisition), which such proceeds are used by Tapco to fund the Kleer Acquisition in its entirety, or (Y) after giving effect to the Kleer Acquisition and the payment of all consideration in connection therewith, the aggregate amount of the unpaid balance of Revolver Loans outstanding does not exceed $15,000,000.”
(e) The following is hereby added to the Loan Agreement as Section 10.1.10:
“10.1.10. Kleer Acquisition Equity Interests. If in connection with the consummation of the Kleer Acquisition, the conditions set forth in clause (g)(C)(X) of the definition of Permitted Acquisition have not been satisfied, Borrowers shall cause Parent to immediately make capital contributions to Borrowers using all proceeds received by Parent from any sales or issuances of its Equity Interests after the Kleer Acquisition Payment Date, until an aggregate amount of no less than an amount equal to the aggregate purchase consideration payable (including deferred payment obligations) in respect of the Kleer Acquisition has been contributed from Parent to Borrowers (it being understood that all such proceeds received by Parent shall be required to be immediately contributed to Borrowers until such minimum amount is met).”
(f) Section 10.2.1 of the Loan Agreement is hereby amended by:
(i) deleting the “and” at the end of clause (p) of such section,
(ii) replacing the “.” at the end of clause (q) of such section with “; and”, and
(iii) adding the following new clause (r) immediately following clause (q) of such section:
“(r) so long as between the Seventh Amendment Effective Date and the Kleer Acquisition Payment Date, Parent does not sell or issue any Equity Interests, the Kleer Acquisition Loan.”
(g) Clause (d) of Section 10.2.8 of the Loan Agreement is hereby amended and restated in its entirety as follows:
“(d) payments (other than those set forth in clause (a) above) on intercompany loans, except (i) payments by an Obligor to a Borrower, and (ii) repayment by Tapco of the Kleer Acquisition Loan so long as (A) such repayment is made solely using proceeds of a substantially contemporaneous capital contribution from Parent and (B) Borrowers have received capital contributions from Parent in an amount no less than an amount equal to the aggregate purchase consideration payable (including deferred payment obligations) in respect of the Kleer Acquisition in accordance with Section 10.1.10; provided, however, that for purposes of the foregoing clause (c) of this Section 10.2.8, no mandatory prepayments shall be made to the extent such prepayments are required on account of sales of Revolver Priority Collateral.”
2. Effectiveness of this Amendment. The following shall have occurred before this Amendment is effective:
(a) Amendment. Agent shall have received this Amendment and the attached Acknowledgement by Guarantors, executed by Borrowers, Guarantors and the Required Lenders in a sufficient number of counterparts for distribution to all parties.
(b) Amendment Fee. Agent shall have received, for the ratable benefit of each Lender signatory hereto, a non-refundable amendment fee in an amount equal to 0.15% times the aggregate Revolver Commitments of all Lenders signatory hereto, which shall be fully earned and due and payable on the date of this Amendment.
(c) Representations and Warranties. The representations and warranties set forth herein must be true and correct.
(d) No Default. No event has occurred and is continuing that constitutes an Event of Default.
(e) Other Required Documentation. All other documents and legal matters in connection with the transactions contemplated by this Amendment shall have been delivered or executed or recorded and shall be in form and substance satisfactory to Agent.
3. Representations and Warranties. Each Borrower represents and warrants as follows:
(a) Authority. Each Borrower has the requisite power and authority to execute and deliver this Amendment, and to perform its obligations hereunder and under the Loan Documents (as amended or modified hereby) to which it is a party. The execution, delivery and performance by each
Borrower of this Amendment have been duly approved by all necessary action and no other proceedings are necessary to consummate such transactions.
(b) Enforceability. This Amendment has been duly executed and delivered by each Borrower. This Amendment and each Loan Document to which each Borrower is a party (as amended or modified hereby) is the legal, valid and binding obligation of such Borrower, enforceable against such Borrower in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally or by general principles of equity, and is in full force and effect.
(c) Representations and Warranties. The representations and warranties contained in each Loan Document to which each Borrower is a party (other than any such representations or warranties that, by their terms, are specifically made as of a date other than the date hereof) are correct on and as of the date hereof as though made on and as of the date hereof.
(d) Due Execution. The execution, delivery and performance of this Amendment are within the power of each Borrower, have been duly authorized by all necessary corporate action, have received all necessary governmental approval, if any, and do not contravene any law or any contractual restrictions binding on such Borrower.
(e) No Default. No event has occurred and is continuing that constitutes an Event of Default.
4. Choice of Law. The validity of this Amendment, its construction, interpretation and enforcement, the rights of the parties hereunder, shall be determined under, governed by, and construed in accordance with the internal laws of the State of California, without giving effect to any conflict of law principles (but giving effect to Federal laws relating to national banks). The consent to forum and arbitration provisions set forth in Section 14.15 of the Loan Agreement are hereby incorporated in this Amendment by reference.
5. Counterparts. This Amendment may be executed in any number of counterparts and by different parties and separate counterparts, each of which when so executed and delivered, shall be deemed an original, and all of which, when taken together, shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Amendment by telefacsimile or a substantially similar electronic transmission shall have the same force and effect as the delivery of an original executed counterpart of this Amendment. Any party delivering an executed counterpart of this Amendment by telefacsimile or a substantially similar electronic transmission shall also deliver an original executed counterpart, but the failure to do so shall not affect the validity, enforceability or binding effect of such agreement.
6. Reference to and Effect on the Loan Documents.
(a) Upon and after the effectiveness of this Amendment, each reference in the Loan Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Loan Agreement, and each reference in the other Loan Documents to “the Loan Agreement”, “thereof” or words of like import referring to the Loan Agreement, shall mean and be a reference to the Loan Agreement as modified and amended hereby.
(b) Except as specifically amended above, the Loan Agreement and all other Loan Documents are and shall continue to be in full force and effect and are hereby in all respects ratified and
confirmed and shall constitute the legal, valid, binding and enforceable obligations of Guarantors and Borrowers, as applicable, to Agent and the Lenders.
(c) The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of Agent or any Lender under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents.
(d) To the extent that any terms and conditions in any of the Loan Documents shall contradict or be in conflict with any terms or conditions of the Loan Agreement, after giving effect to this Amendment, such terms and conditions are hereby deemed modified or amended accordingly to reflect the terms and conditions of the Loan Agreement as modified or amended hereby.
7. Ratification. Each Borrower hereby restates, ratifies and reaffirms each and every term and condition set forth in the Loan Agreement, as amended hereby, and the Loan Documents effective as of the date hereof.
8. Estoppel. To induce Lenders to enter into this Amendment and to continue to make advances to Borrowers under the Loan Agreement, each Borrower and each Guarantor hereby acknowledges and agrees that, as of the date hereof, there exists no right of offset, defense, counterclaim or objection in favor of such Borrower as against Agent or any Lender with respect to the Obligations.
9. Integration. This Amendment, together with the other Loan Documents, incorporates all negotiations of the parties hereto with respect to the subject matter hereof and is the final expression and agreement of the parties hereto with respect to the subject matter hereof.
10. Severability. In case any provision in this Amendment shall be invalid, illegal or unenforceable, such provision shall be severable from the remainder of this Amendment and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
[Remainder of Page Left Intentionally Blank]
IN WITNESS WHEREOF, the parties have entered into this Amendment as of the date first above written.
|
BORROWERS: |
| |
|
|
| |
|
HEADWATERS RESOURCES, INC., |
| |
|
a Utah corporation |
| |
|
|
| |
|
|
| |
|
By: |
/s/ Xxxxxx X. Xxxxxx |
|
|
Name: |
Xxxxxx X. Xxxxxx |
|
|
Title: |
CFO |
|
|
|
|
|
|
METAMORA PRODUCTS CORPORATION OF |
| |
|
a Pennsylvania corporation |
| |
|
|
| |
|
|
| |
|
By: |
/s/ Xxxxxx X. Xxxxxx |
|
|
Name: |
Xxxxxx X. Xxxxxx |
|
|
Title: |
CFO |
|
|
|
|
|
|
HEADWATERS SERVICES CORPORATION, |
| |
|
a Utah corporation |
| |
|
|
| |
|
|
| |
|
By: |
/s/ Xxxxxx X. Xxxxxx |
|
|
Name: |
Xxxxxx X. Xxxxxx |
|
|
Title: |
CFO |
|
|
|
|
|
|
HEADWATERS CONSTRUCTION MATERIALS, |
| |
|
a Utah corporation |
| |
|
|
| |
|
|
| |
|
By: |
/s/ Xxxxxx X. Xxxxxx |
|
|
Name: |
Xxxxxx X. Xxxxxx |
|
|
Title: |
CFO |
|
|
|
|
|
|
HCM UTAH, LLC, |
| |
|
a Utah limited liability company |
| |
|
|
| |
|
|
| |
|
By: |
/s/ Xxxxxx X. Xxxxxx |
|
|
Name: |
Xxxxxx X. Xxxxxx |
|
|
Title: |
CFO |
|
|
HEADWATERS CONSTRUCTION MATERIALS, | ||
|
a Texas limited liability company | ||
|
|
| |
|
|
| |
|
By: |
/s/ Xxxxxx X. Xxxxxx |
|
|
Name: |
Xxxxxx X. Xxxxxx |
|
|
Title: |
CFO |
|
|
|
|
|
|
HCM STONE, LLC, | ||
|
a Utah limited liability company | ||
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxxx X. Xxxxxx |
|
|
Name: |
Xxxxxx X. Xxxxxx |
|
|
Title: |
CFO |
|
|
|
|
|
|
DUTCH QUALITY STONE, INC., | ||
|
an Ohio corporation | ||
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxxx X. Xxxxxx |
|
|
Name: |
Xxxxxx X. Xxxxxx |
|
|
Title: |
CFO |
|
|
|
|
|
|
ELDORADO SC-ACQUISITION CO., | ||
|
a Utah corporation | ||
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxxx X. Xxxxxx |
|
|
Name: |
Xxxxxx X. Xxxxxx |
|
|
Title: |
CFO |
|
|
|
|
|
|
ELDORADO STONE LLC, | ||
|
a Delaware limited liability company | ||
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxxx X. Xxxxxx |
|
|
Name: |
Xxxxxx X. Xxxxxx |
|
|
Title: |
CFO |
|
|
ELDORADO STONE ACQUISITION CO., LLC, | ||
|
a Utah limited liability company | ||
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxxx X. Xxxxxx |
|
|
Name: |
Xxxxxx X. Xxxxxx |
|
|
Title: |
CFO |
|
|
|
|
|
|
ELDORADO STONE FUNDING CO., LLC, | ||
|
a Utah limited liability company | ||
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxxx X. Xxxxxx |
|
|
Name: |
Xxxxxx X. Xxxxxx |
|
|
Title: |
CFO |
|
|
|
|
|
|
STONECRAFT MANUFACTURING, LLC, | ||
|
an Ohio limited liability company | ||
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxxx X. Xxxxxx |
|
|
Name: |
Xxxxxx X. Xxxxxx |
|
|
Title: |
CFO |
|
|
|
|
|
|
CHIHUAHUA STONE, LLC, | ||
|
a Utah limited liability company | ||
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxxx X. Xxxxxx |
|
|
Name: |
Xxxxxx X. Xxxxxx |
|
|
Title: |
CFO |
|
|
|
|
|
|
ELDORADO STONE OPERATIONS, LLC, | ||
|
a Utah limited liability company | ||
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxxx X. Xxxxxx |
|
|
Name: |
Xxxxxx X. Xxxxxx |
|
|
Title: |
CFO |
|
|
|
|
|
|
X-X XXXXX, LLC, | ||
|
a Utah limited liability company | ||
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxxx X. Xxxxxx |
|
|
Name: |
Xxxxxx X. Xxxxxx |
|
|
Title: |
CFO |
|
|
TAPCO INTERNATIONAL CORPORATION, | ||
|
a Michigan corporation | ||
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxxx X. Xxxxxx |
|
|
Name: |
Xxxxxx X. Xxxxxx |
|
|
Title: |
CFO |
|
|
|
|
|
|
METAMORA PRODUCTS CORPORATION, |
| |
|
a Michigan corporation |
| |
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxxx X. Xxxxxx |
|
|
Name: |
Xxxxxx X. Xxxxxx |
|
|
Title: |
CFO |
|
|
|
|
|
|
MTP, INC., |
| |
|
an Ohio corporation |
| |
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxxx X. Xxxxxx |
|
|
Name: |
Xxxxxx X. Xxxxxx |
|
|
Title: |
CFO |
|
|
|
|
|
|
ATLANTIC SHUTTER SYSTEMS, INC., |
| |
|
a South Carolina corporation |
| |
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxxx X. Xxxxxx |
|
|
Name: |
Xxxxxx X. Xxxxxx |
|
|
Title: |
CFO |
|
|
|
|
|
|
INSPIRE SERVICES, LLC, |
| |
|
a Michigan limited liability company |
| |
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxxx X. Xxxxxx |
|
|
Name: |
Xxxxxx X. Xxxxxx |
|
|
Title: |
CFO |
|
|
|
|
|
|
STONECRAFT SALES, LLC, |
| |
|
a Michigan limited liability company |
| |
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxxx X. Xxxxxx |
|
|
Name: |
Xxxxxx X. Xxxxxx |
|
|
Title: |
CFO |
|
|
AGENT AND LENDERS: |
| |
|
|
| |
|
BANK OF AMERICA, N.A., |
| |
|
as Agent and as a Lender |
| |
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxxxx X. Xxxxx |
|
|
Name: |
Xxxxxxx X. Xxxxx |
|
|
Title: |
Senior Vice President |
|
|
|
|
|
|
U.S. BANK NATIONAL ASSOCIATION, |
| |
|
as a Lender |
| |
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxxxxx X. Xxxx |
|
|
Name: |
Xxxxxxxx X. Xxxx |
|
|
Title: |
Vice President |
|
|
|
|
|
|
ZIONS FIRST NATIONAL BANK, |
| |
|
as a Lender |
| |
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxx X. Xxxxx |
|
|
Name: |
Xxxxx X. Xxxxx |
|
|
Title: |
Senior Vice President |
|
ACKNOWLEDGEMENT BY GUARANTORS
Dated as of December 13, 2012
Each of the undersigned, being a Guarantor (each a “Guarantor” and, collectively, the “Guarantors”) under that certain Guaranty and Security Agreement dated as of October 27, 2009 (as amended, supplemented or otherwise modified from time to time, the “Guaranty”), hereby acknowledges and agrees to the foregoing Seventh Amendment to Loan and Security Agreement (the “Amendment”) and confirms and agrees that the Guaranty is and shall continue to be, in full force and effect and is hereby ratified and confirmed in all respects except that, upon the effectiveness of, and on and after the date of the Amendment, each reference in such Guaranty to the Loan Agreement (as defined in the Amendment), “thereunder”, “thereof” or words of like import referring to the “Loan Agreement”, shall mean and be a reference to the Loan Agreement as amended or modified by the Amendment. Although Agent has informed Guarantors of the matters set forth above, and each Guarantor has acknowledged the same, each Guarantor understands and agrees that Agent has no duty under the Loan Agreement, the Guaranty or any other agreement with any Guarantor to so notify any Guarantor or to seek such an acknowledgement, and nothing contained herein is intended to or shall create such a duty as to any advances or transaction hereafter.
|
GUARANTORS: |
| |
|
|
|
|
|
HEADWATERS INCORPORATED, |
| |
|
a Delaware corporation |
| |
|
|
|
|
|
By: |
/s/ Xxxxxx X. Xxxxxx |
|
|
Name: |
Xxxxxx X. Xxxxxx |
|
|
Title: |
CFO |
|
|
|
|
|
|
|
|
|
|
HEADWATERS PLANT SERVICES, INC., |
| |
|
a Utah corporation |
| |
|
|
| |
|
|
| |
|
By: |
/s/ Xxxxxx X. Xxxxxx |
|
|
Name: |
Xxxxxx X. Xxxxxx |
|
|
Title: |
CFO |
|
