EXECUTION COPY
Dated as of August 30,
2006
AMENDMENT
NO. 6 TO THE CREDIT AGREEMENT (this “Amendment No. 6”)
among Headwaters Incorporated, a Delaware corporation (the
“Borrower”), the Lenders (as defined in the Credit
Agreement referred to below), Xxxxxx Xxxxxxx & Co. Incorporated, as collateral agent
(the “Collateral Agent”), and Xxxxxx Xxxxxxx Senior
Funding, Inc. (“Xxxxxx Xxxxxxx”), as administrative agent
(the “Administrative Agent”; together with the Collateral
Agent, the “Agents”).
PRELIMINARY
STATEMENTS:
(1)
The Borrower, certain financial institutions and other persons from time to time
parties thereto (collectively, the “Lenders”),
the Agents, JPMorgan Chase Bank, N.A. (as successor to JPMorgan Chase Bank), as
syndication agent, and Xxxxxx Xxxxxxx and X.X. Xxxxxx Securities Inc., as joint
lead arrangers and joint bookrunners, have entered into that certain Credit
Agreement dated as of September 8, 2004 (as amended and modified pursuant to
consents dated November 6, 2004 and December 16, 2004, Amendment No. 2 to the
Credit Agreement dated March 14, 2005, Amendment No. 3 to the Credit Agreement
dated May 19, 2005, Amendment No. 4 to the Credit Agreement dated October 26,
2005 and Amendment No. 5 to the Credit Agreement dated June 27, 2006, the
“Credit Agreement”; capitalized terms used herein
but not defined shall be used herein as defined in the Credit Agreement).
(2)
The Borrower has requested additional Revolving Loan Commitments in a principal
amount of up to $40,000,000. The Required Lenders are willing to consent to the
increase in the Revolving Loan Commitments and to amend the Credit Agreement so
as to permit the inclusion of additional Lenders with Revolving Loan Commitments
(it being understood that no existing Lender shall be under any obligation to
provide any portion of the Additional Revolving Loan Commitments referred to
herein).
(3)
The Borrower, the Agents and the Lenders have agreed, subject to the terms and
conditions hereinafter set forth, to amend the Credit Agreement in certain
additional respects as set forth below.
NOW,
THEREFORE, in consideration of the premises and for other good and valuable consideration
(the receipt and sufficiency of which is hereby acknowledged), the parties hereto hereby
agree as follows:
SECTION
1. Amendment of Credit Agreement. The Credit Agreement is, effective as of the
date hereof and subject to the satisfaction of the conditions precedent set forth in
Section 2 below, hereby amended as follows:
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(a)
Section 1.01 is amended by adding in the appropriate alphabetical
order the following new definitions:
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“‘Additional
Revolving Lender’ means a Person with an Additional Revolving Loan Commitment
pursuant to a Revolving Lender Joinder Agreement, it being understood that an Additional
Revolving Lender may be an existing Lender.” |
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“‘Additional
Revolving Loan Commitment’ means, with respect to an Additional Revolving Lender, the
commitment of such Additional Revolving Lender to make Revolving Loans from time to time
after the effective date of its Revolving Lender Joinder Agreement, in an amount in US
Dollars set forth next to the name of such Additional Revolving Lender on the Commitment
Schedule to its Revolving Lender Joinder Agreement. The aggregate amount of the Additional
Revolving Loan Commitments shall not exceed Forty Million and 00/100 Dollars
($40,000,000).” |
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“‘Revolving
Lender Joinder Agreement’ means an agreement in substantially the form of Exhibit
I.” |
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(b)
Section 1.01 is further amended as follows:
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(i)
Clause (v) of the definition of “Consolidated Funded Indebtedness” is
amended and restated in its entirety to read as follows:
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“(v)
Contingent Obligations (A) in
respect of any of the Indebtedness described in the foregoing clauses (i),
(ii), (iii) and (iv), (B) resulting from any Investment made under Section
6.13.4 or (C) consisting of the amount of any obligation secured by a Lien
permitted under Section 6.15.19.” |
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(ii)
The definition of “Exempt Property” is amended by (A) substituting for
the word “and” where it appears immediately before clause
(iv) of such definition a comma and (B) inserting at the end of such
definition the following: “and (v) at any time, property that at
such time is subject to a Lien permitted under Section 6.15.19".
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(iii)
The definition of “Investment” is amended and restated in its entirety
to read as follows:
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“‘Investment’of
a Person means any loan, advance (other than commission, travel and similar advances to
officers, employees made in the ordinary course of business), extension of credit (other
than Receivables arising in the ordinary course of business) or contribution of capital
by such Person; stocks, bonds, mutual funds, partnership interests, notes, debentures or
other securities owned by such Person; any deposit accounts and certificate of deposit
owned by such Person; structured notes, derivative financial instruments and other
similar instruments or contracts owned by such Person; and, in the case of any JV Entity
at any time, includes in any event (x) the amount of any Contingent Obligations incurred
by the Borrower in respect of such JV Entity unless such Contingent Obligations have been
released or terminated (without any payment being made in respect thereof) at such time
and (y) the amount of any obligation (contingent or otherwise) of a JV Entity secured by
a Lien permitted under Section 6.15.19, unless recourse to Headwaters and its
Subsidiaries is limited to the ownership interests in such JV Entity.” |
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(iv)
The definition of “JV Subsidiary” is amended and
restated in its entirety to read as follows:
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“‘JV
Subsidiary’ means (i) Blue Flint Ethanol LLC formed on June 3, 2005 and (ii) any
Person formed or invested in by the Borrower or one of its Subsidiaries after October 26,
2005 pursuant to Section 6.13.4.” |
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(v)
The definition of “JV Subsidiary Holding Company” is amended and
restated in its entirety to read as follows:
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“‘JV
Subsidiary Holding Company’ means each direct or indirect Subsidiary of the Borrower
that holds the Equity Interests in a JV Subsidiary in accordance with Section 6.31 and
that does not own any assets other than (i) Equity Interests in one or more JV
Subsidiaries, (ii) cash and deposit and securities accounts held for the purpose of
funding future Investments in the relevant JV Subsidiary and (iii) contracts and contract
rights related to its investment in the relevant JV Subsidiary.” |
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(vi)
The definition of “Lenders” is amended and restated in
its entirety to read as follows:
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“‘Lenders’means
the Initial Lenders and their respective successors and assigns, each Additional Term B1
Lender and its respective successors and assigns, and each Additional Revolving Lender
and its respective successors and assigns. Unless otherwise specified, the term “Lenders” includes
the Swing Line Lender and each LC Issuer, but in no event shall the term “Lender” include
Bank One.” |
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(vii)
The definition of “Revolving Loan Commitment” is
amended and restated in its entirety to read as follows:
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“Revolving
Loan Commitment” means, for each Lender, including, without limitation, each LC
Issuer and each Additional Revolving Lender, such Lender’s obligation to make
Revolving Loans to, and participate in Facility LCs issued upon the application of, the
Borrower in an aggregate amount not exceeding the amount set forth for such Lender on the
Commitment Schedule or Commitment Schedule to its Revolving Lender Joinder Agreement or
in any Assignment Agreement delivered pursuant to Section 12.3, as such amount may be
modified from time to time pursuant to the terms hereof.” |
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(c)
Section 6.13.4 is amended by deleting the figure “$85,000,000” where
it appears in subsection (a) thereof and replacing such deleted figure
with the following: “$100,000,000".
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(d)
The following new Section 6.14.13 is added to Article VI in the
appropriate numerical order:
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“Contingent
Obligations consisting of Investments permitted under Section 6.13.4.” |
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(e)
The following new Section 6.14.14 is added to Article VI in
the appropriate numerical order:
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“Contingent
Obligations permitted under Section 6.19.” |
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(f) The
following new Section 6.15.19 is added to Article VI in the appropriate
numerical order:
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“Liens
on assets constituting all or any part of, or created or acquired to facilitate, an
Investment made pursuant to Section 6.13.4 (including the relevant joint venture
interests, joint venture agreement and cash deposits to secure future equity
contributions) securing obligations of the relevant JV Subsidiary.” |
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(g) Section
6.19 is amended and restated in its entirety to read as follows:
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“Contingent
Obligations. The Borrower will not, nor will it permit any Subsidiary to, make or
suffer to exist any Contingent Obligation (including, without limitation, any Contingent
Obligation with respect to the obligations of a Subsidiary), except (i) the Reimbursement
Obligations, (ii) any guaranty of the Secured Obligations, (iii) any guaranty pursuant to
any of the Subordinated Indebtedness Documents, (iv) any guaranty of any Indebtedness
permitted by Section 6.14 or (v) any Contingent Obligation incurred in connection with
Investments permitted under Section 6.13.4.” |
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(h)
Section 6.23 is amended by deleting in its entirety the table set forth
therein and replacing such deleted table with the following:
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For fiscal year: Capital Expenditures
2005 $62,000,000
2006 $80,000,000
2007 and each year thereafter $100,000,000
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(i)
Section 6.26(a) is amended by amending and restating in its entirety the
first sentence thereof to read as follows:
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“(a)
Subject to the exceptions set forth in this
Section 6.26, the Borrower will cause, and will cause each other Credit Party
to cause, all of its owned Property whether now or hereafter acquired (other
than Exempt Property) to be subject at all times to first priority perfected
Liens in favor of the Administrative Agent for the benefit of the Holders of
Secured Obligations to secure the Secured Obligations in accordance with the
terms and conditions of the Collateral Documents, subject in any case to Liens
permitted by Section 6.15 hereof.” |
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(j)
Section 6.33 is amended by amending and restating in its entirety the
introductory paragraph thereof to read as follows:
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“JV
Entities Separateness. The Borrower shall use its commercially reasonable efforts to
enter into joint ventures only on terms that comply, and that permit the Borrower to
cause each of its Subsidiaries and each JV Entity to comply, with the following (provided,
that if such terms are not available from the relevant joint venture parties after the
Borrower’s use of commercially reasonable efforts, then (x) the Borrower shall
nevertheless, in any event, comply with Section 6.31 and (y) all obligations of any JV
Entity for which the Borrower or one of its Subsidiaries becomes liable shall constitute
Investments for the purposes of Section 6.13.4 and shall be treated as Consolidated
Funded Indebtedness as provided in the definition thereof):" |
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(k) Article
XII is amended by adding in the appropriate numerical order the following new
Section 12.6:
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“12.6
Additional Revolving Loan Commitments. |
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12.6.1.
Joinder of Additional Revolving Lenders.
The Borrower and each Additional Revolving Lender hereby agrees that from and
after the effective date of such Additional Revolving Lender’s Revolving
Lender Joinder Agreement, such Additional Revolving Lender shall be a “Lender” for
all purposes under the Credit Agreement. |
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12.6.2.
Outstanding Revolving Loans. To the
extent any Revolving Loans are outstanding immediately prior to the effective
date of any Revolving Lender Joinder Agreement, each of the Lenders under such
Revolving Loans and each Additional Revolving Lender hereby agrees to execute
any assignment pursuant to Section 12.3 of the Credit Agreement which is
required to maintain the Pro Rata Share of the Revolving Loan Commitment of
each Lender under each such Revolving Loan in the same proportion immediately
before and after such effective date.” |
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(l)
The form of Revolving Lender Joinder Agreement attached as Exhibit A
hereto is attached to the Credit Agreement as Exhibit I thereto.
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SECTION 2.
Conditions to Effectiveness. This Amendment No. 6 and the amendments contained
herein shall become effective as of the date hereof (the “Amendment No. 6
Effective Date”) when each of the conditions set forth in this
Section 2 to this Amendment No. 6 shall have been fulfilled to the satisfaction of the
Administrative Agent.
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(a) |
Execution of Counterparts. The Administrative Agent shall have received
counterparts of this Amendment No. 6, duly executed and delivered on behalf of
the Borrower and the Required Lenders, or, as to any of the foregoing parties,
advice reasonably satisfactory to the Administrative Agent that such party has
executed a counterpart of this Amendment No. 6. |
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(b) |
Guarantor Consent. The Administrative Agent shall have received the
Consent attached as Exhibit B hereto duly executed by each of the Guarantors. |
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(c) |
Payment of Fees and Expenses. The Borrower shall have paid (i) an
amendment fee of 5 basis points for the account of each Lender that executes and
delivers this Amendment No. 6 at or before 5:00 P.M. (New York City time) on
August 30, 2006 (calculated on the outstanding principal amounts owed to such
Lender under its respective outstanding Loans and Commitments), subject to
successful achievement of the Amendment No. 6 Effective Date, and (ii) all
reasonable expenses (including the reasonable fees and expenses of Shearman
& Sterling LLP) incurred in connection with the preparation, negotiation and
execution of this Amendment No. 6 and other matters relating to the Credit
Agreement from and after the last invoice to the extent invoiced. |
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(d) |
Corporate Documents. The Administrative Agent shall have received: |
| (i) |
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certified
copies of the resolutions of the Board of Directors of the Borrower and
each Guarantor approving this Amendment No. 6 and the Additional Revolving
Commitments, and of all documents evidencing other necessary corporate
action and governmental and other third party approvals and consents, if
any, with respect to this Amendment No. 6 and the Additional Revolving
Commitments; |
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| (ii) |
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a
copy of a certificate of the Secretary of State of the jurisdiction of
incorporation of the Borrower, dated reasonably near the proposed
Amendment No. 6 Effective Date, certifying (A) as to a true and correct
copy of the charter of the Borrower and each amendment thereto on file in
such Secretary’s office and (B) that (1) such amendments are the only
amendments to the Borrower’s charter on file in such Secretary’s
office, (2) the Borrower has paid all franchise taxes to the date of such
certificate and (3) the Borrower is duly incorporated and in good standing
or presently subsisting under the laws of the State of the jurisdiction of
its incorporation; |
| (iii) |
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a
certificate of the Borrower signed on behalf of the Borrower by its President
or a Vice President and its Secretary or any Assistant Secretary, dated
the date hereof (the statements made in which certificate shall be true on
and as of the date hereof), certifying (A) that there have been no
amendments to the charter of the Borrower since the date of the Secretary
of State’s certificate referred to in Section 2(d)(ii) above, (B) a
true and correct copy of the bylaws of the Borrower as in effect on the
date on which the resolutions referred to in Section 2(d)(i) above were
adopted and on the date hereof, (C) the due incorporation and good
standing or valid existence of the Borrower as a corporation organized
under the laws of the jurisdiction of its incorporation, and the absence
of any proceeding for the dissolution or liquidation of the Borrower, (D)
the truth and correctness, in all material respects, of the
representations and warranties contained in the Credit Agreement on and as
of the date hereof, before and after giving effect to this Amendment No.
6, as though made on and as of the date hereof, other than any such
representations or warranties that, by their terms, refer to a specific
date, and (E) that no Default or Unmatured Default has occurred and is
continuing, or would occur as a result of the transactions contemplated by
this Amendment No. 6; and |
| (iv) |
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a
certificate of the Secretary or an Assistant Secretary of the Borrower
certifying the names and true signatures of the officers of the Borrower
and each Guarantor authorized to sign this Amendment No. 6 or the Consent,
as applicable. |
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(e) |
Legal Opinion. The Administrative Agent shall have received a favorable
opinion of the General Counsel of the Borrower, in substantially the form of
Exhibit C hereto and as to such other matters as any Lender Party through the
Administrative Agent may reasonably request. |
SECTION 3.
Reference to and Effect on the Loan Documents. (a) On and after the
Amendment No. 6 Effective Date, each reference in the Credit Agreement to “hereunder”,
“hereof” or words of like import referring to the Credit Agreement, and
each reference in the other transaction documents to the “Credit Agreement”,
“thereunder”, “thereof” or words of like import
referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement
as modified by this Amendment No. 6.
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(b) |
The Credit Agreement, the Pledge and Security Agreement, the Notes and each of
the other Loan Documents, as specifically amended by this Amendment No. 6, are
and shall continue to be in full force and effect and are hereby in all respects
ratified and confirmed. Without limiting the generality of the foregoing, the
Collateral Documents and all of the Collateral described therein do and shall
continue to secure the payment of all Obligations of the Credit Parties under
the Loan Documents, in each case as amended by this Amendment No. 6. |
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(c) |
The execution, delivery and effectiveness of this Amendment No. 6 shall not,
except as expressly provided herein, operate as a waiver of any right, power or
remedy of any Lender or any Agent under any of the Loan Documents, nor
constitute a waiver of any provision of any of the Loan Documents. |
SECTION 4.
Execution in Counterparts. This Amendment No. 6 may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of which when
so executed shall be deemed to be an original and all of which taken together shall
constitute but one and the same agreement. Delivery of an executed counterpart of a
signature page to this Amendment No. 6 by facsimile shall be effective as delivery of a
manually executed original counterpart of this Amendment No. 6.
SECTION 5.
Governing Law. This Amendment No. 6 shall be governed by, and construed in
accordance with, the laws of the State of New York, and shall be subject to the
jurisdictional and service provisions of the Credit Agreement, as if this were a part of
the Credit Agreement.
SECTION 6.
Release of Collateral. The Required Lenders hereby consent to the release of
assets currently constituting part of the Collateral that are to be subject to a lien
permitted under Section 6.15.19 of the Credit Agreement, as amended by this Amendment No.
6, and hereby authorize the Administrative Agent and the Collateral Agent to execute and
deliver in accordance with the Loan Documents any documentation to evidence such release.
SECTION
7. Entire Agreement; Modification. This Amendment No. 6 constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof, there being no
other agreements or understandings, oral, written or otherwise, respecting such subject
matter, any such agreement or understanding being superseded hereby, shall be binding
upon and inure to the benefit of the parties hereto and their respective successors and
assigns, and may not be amended, extended or otherwise modified, except in a writing
executed in whole or in counterparts by each party hereto.
[SIGNATURE PAGES
FOLLOW]
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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment No. 6 to be executed by
their respective officers thereunto duly authorized, as of the date first above written.
HEADWATERS INCORPORATED,
as Borrower
By: /s/ Xxxxx X. Xxxxxxxx
Title: Chief Financial Officer
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as Administrative Agent, Swing Line Lender
and as a Lender
By: /s/ Xxxxxxx X. Xxxxxxxx
Title: Vice President
XXXXXX XXXXXXX & CO. INCORPORATED,
as Collateral Agent
By: /s/ Xxxxxxx X. Xxxxxxxx
Title: Managing Director
[and other lenders]
EXHIBIT B
CONSENT
Dated as of August 30,
2006
Reference
is made to the Credit Agreement referred to in the foregoing Amendment No. 6 (capitalized
terms used herein and not defined being used herein as defined in the Credit Agreement).
Each of the undersigned, in its capacity as a Guarantor under the Guaranty Agreement and
as a Grantor under the Pledge and Security Agreement, hereby (i) consents to the
execution, delivery and performance of Amendment No. 6 and agrees that each of the
Guaranty Agreement and the Pledge and Security Agreement is, and shall continue to be, in
full force and effect and is hereby in all respects ratified and confirmed on the
Amendment No. 6 Effective Date, except that, on and after the Amendment No. 6 Effective
Date, each reference to “the Credit Agreement”,
“thereunder”, “thereof”, “therein” or
words of like import referring to the Credit Agreement shall mean and be a reference to
the Credit Agreement as amended and otherwise modified by Amendment No. 6 and (ii)
confirms that the Collateral Documents to which each of the undersigned is a party and all
of the Collateral described therein do, and shall continue to, secure the payment of all
of the Secured Obligations.
ATLANTIC SHUTTER SYSTEMS, INC.; HEADWATERS RESOURCES, INC.;
BEST MASONRY & TOOL SUPPLY, LP HEADWATERS SYNFUEL INVESTMENTS, LLC;
BUILDERS EDGE, INC.; HEADWATERS TECHNOLOGY INNOVATION GROUP, INC.;
CHIHUAHUA STONE LLC; HYDROCARBON TECHNOLOGIES, INC.;
COMACO, INC.; HEADWATERS SERVICES CORPORATION;
COVOL COAL COMPANY, LLC; L&S STONE LLC;
COVOL ENGINEERED FUELS, LC; X-X XXXXX LLC;
COVOL SERVICES CORPORATION; METAMORA PRODUCTS CORPORATION;
DON'S BUILDING SUPPLY, LP METAMORA PRODUCTS CORPORATION OF ELKLAND;
EAGLE STONE & BRICK LLC; MTP, INC.;
ELDORADO G-ACQUISITION CO.; NORTHWEST STONE & BRICK LLC;
ELDORADO SC-ACQUISITION CO.; PALESTINE CONCRETE TILE COMPANY, L.P.;
ELDORADO STONE ACQUISITION CO., LC; STONECRAFT INDUSTRIES LLC;
ELDORADO STONE FUNDING CO., LLC; SYNDECRETE LLC;
ELDORADO STONE LLC; TAPCO HOLDINGS, INC.,
ELDORADO STONE OPERATIONS LLC; TAPCO INTERNATIONAL CORPORATION;
ENVIRONMENTAL TECHNOLOGIES GROUP, LLC; TEMPE STONE LLC
GLOBAL CLIMATE RESERVE CORPORATION; VANTAGE BUILDING PRODUCTS CORPORATION;
HCM BLOCK & BRICK GENERAL, INC.; VFL TECHNOLOGY CORPORATION;
HCM BLOCK & BRICK PARTNER, LLC; WAMCO CORPORATION
HCM BLOCK & BRICK, LLC;
HCM FLEXCRETE, LP;
HCM MORTAR & STUCCO PARTNER, LLC; each as a Guarantor
HCM MORTAR & STUCCO, INC.;
HCM MORTAR & STUCCO HOLDING, LLC;
HCM STONE, LLC; By: /s/ Xxxxx X. Xxxxxxxx
HCM UTAH, INC.; Name: Xxxxx X. Xxxxxxxx
HEADWATERS CONSTRUCTION MATERIALS, INC.; Title: Chief Financial Officer
HEADWATERS ENERGY SERVICES CORP.;
HEADWATERS ETHANOL OPERATORS, LLC;
HEADWATERS HEAVY OIL, LLC;
HEADWATERS NANOKINETIX, INC.;
