EXECUTION COPY
AMENDMENT NO. 5 TO THE CREDIT AGREEMENT
Dated as of June 27, 2006
AMENDMENT NO. 5 TO THE CREDIT AGREEMENT (this "Amendment No. 5") among
Headwaters Incorporated, a Delaware corporation (the "Borrower"), the Lenders
(as hereinafter defined) party hereto, Xxxxxx Xxxxxxx & Co. Incorporated
("MS&Co."), 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. ("JPMCB") (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 and Amendment No. 4 to the Credit Agreement dated October 26, 2005,
the "Credit Agreement"; capitalized terms used herein but not defined shall be
used herein as defined in the Credit Agreement).
(2) The Borrower, the Agents and the Required Lenders have agreed,
subject to the terms and conditions hereinafter set forth, to amend the Credit
Agreement in certain 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 of this Amendment No. 5, hereby
amended as follows: Section 6.18 of the Credit Agreement is amended by inserting
", other than any consensual encumbrance or restriction that is contained in any
agreement, indenture or other instrument relating to Indebtedness permitted
under the definition of Permitted Indebtedness so long as such consensual
encumbrance or restriction is consistent with customary market terms for
Indebtedness similar to such Permitted Indebtedness".
SECTION 2. Conditions to Effectiveness. This Amendment No. 5 and the
amendment contained herein shall become effective as of the date hereof (the
"Amendment No. 5 Effective Date") when each of the conditions set forth in this
Section 2 to this Amendment No. 5 shall have been fulfilled to the satisfaction
of the Administrative Agent.
(i) Execution of Counterparts. The Administrative Agent shall
have received counterparts of this Amendment No. 5, duly executed and
delivered on behalf of each 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. 5.
(ii) Guarantor Consent. The Administrative Agent shall have
received the Consent attached hereto duly executed by each of the
Guarantors.
(iii) Payment of Fees and Expenses. The Borrower shall have
paid 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. 5 and
other matters relating to the Credit Agreement from and after the last
invoice to the extent invoiced.
(iv) No Default. No Default or Unmatured Default shall have
occurred and be continuing or would occur as a result of the
transactions contemplated by this Amendment No. 5.
SECTION 3. Confirmation of Representations and Warranties. Each of
the Credit Parties hereby represents and warrants, on and as of the date hereof,
that (a) the representations and warranties contained in the Credit Agreement
are correct and true in all material respects on and as of the date hereof,
before and after giving effect to this Amendment No. 5, 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 (b) no Default or Unmatured Default
has occurred and is continuing, or would occur as a result of the transactions
contemplated by this Amendment No. 5.
SECTION 4. Reference to and Effect on the Loan Documents. (a) On and
after the effectiveness of this Amendment No. 5, 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. 5.
(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. 5, 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.
5.
(c) The execution, delivery and effectiveness of this Amendment No. 5
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 5. Execution in Counterparts. This Amendment No. 5 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. 5 by facsimile shall be effective as delivery of a manually
executed original counterpart of this Amendment No. 5.
SECTION 6. Governing Law. This Amendment No. 5 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 7. Entire Agreement; Modification. This Amendment No. 5
constitutes the entire agreement of the parties hereto with respect to the
subject matter hereof, there being no other agreements or understandings, oral,
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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.
[SIGNATURES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 5
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/ Xxxxxx X. Xxxxxx
Title: Vice President
XXXXXX XXXXXXX & CO. INCORPORATED,
as Collateral Agent
By: /s/ Xxxxxx X. Xxxxxx
Title: Managing Director
[and other lenders]
CONSENT
Dated as of June 27, 2006
Reference is made to the Credit Agreement referred to in the foregoing
Amendment No. 5 (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. 5 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. 5 Effective Date, except that, on and after the Amendment No. 5
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. 5 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 ENERGY SERVICES CORP.;
BUILDERS EDGE, INC.; HEADWATERS ETHANOL OPERATORS, LLC;
CHIHUAHUA STONE LLC; HEADWATERS HEAVY OIL, LLC;
COMACO, INC.; HEADWATERS NANOKINETIX, INC.;
COVOL COAL COMPANY, LLC; HEADWATERS RESOURCES, INC.;
COVOL ENGINEERED FUELS, LC; HEADWATERS SYNFUEL INVESTMENTS, LLC;
COVOL SERVICES CORPORATION; HEADWATERS TECHNOLOGY INNOVATION GROUP, INC.;
EAGLE STONE & BRICK LLC; HYDROCARBON TECHNOLOGIES, INC.;
ELDORADO G-ACQUISITION CO.; HEADWATERS SERVICES CORPORATION;
ELDORADO SC-ACQUISITION CO.; L&S STONE LLC;
ELDORADO STONE ACQUISITION CO., LC; X-X XXXXX LLC;
ELDORADO STONE FUNDING CO., LLC; METAMORA PRODUCTS CORPORATION;
ELDORADO STONE LLC; METAMORA PRODUCTS CORPORATION OF ELKLAND;
ELDORADO STONE OPERATIONS LLC; MTP, INC.;
ENVIRONMENTAL TECHNOLOGIES GROUP, LLC; NORTHWEST STONE & BRICK LLC;
GLOBAL CLIMATE RESERVE CORPORATION; PALESTINE CONCRETE TILE COMPANY, L.P.;
HCM BLOCK & BRICK GENERAL, INC.; STONECRAFT INDUSTRIES LLC;
HCM BLOCK & BRICK PARTNER, LLC; SYNDECRETE LLC;
HCM BLOCK & BRICK, LLC; TAPCO HOLDINGS, INC.,
HCM MORTAR & STUCCO PARTNER, LLC;
HCM MORTAR & STUCCO, INC.; each as a Guarantor
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
