Exhibit 10.93.9
EXECUTION VERSION
AMENDMENT NO. 10 AND WAIVER TO
THE CREDIT AGREEMENT
Dated as of September 30,
2009
AMENDMENT NO. 10 AND WAIVER TO THE
CREDIT AGREEMENT (this “ Amendment ”)
among Headwaters Incorporated, a Delaware corporation (the “
Borrower ”), the Lenders (as defined in the
Credit Agreement referred to below), Morgan Stanley & Co.
Incorporated, as collateral agent (the “ Collateral
Agent ”), and Morgan Stanley Senior Funding, Inc.
(“ Morgan Stanley ”), 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 Morgan Stanley and J.P. Morgan
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, Amendment No. 5 to the Credit
Agreement dated June 27, 2006, Amendment No. 6 to the
Credit Agreement dated August 30, 2006, Amendment No. 7
to the Credit Agreement dated January 12, 2007, Amendment
No. 8 to the Credit Agreement dated August 15, 2008 and
Amendment No. 9 and Waiver to the Credit Agreement dated as of
June 26, 2009 and as modified by the Revolving Loan Extension
and Commitment Reduction Agreement dated as of September 2,
2009, 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
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 and the Pledge and Security Agreement . The Credit
Agreement and pursuant to Section 1(m) the Pledge and Security
Agreement are, effective as of the date hereof and subject to the
satisfaction of the conditions precedent set forth in
Section 4 below, hereby amended as follows:
(a) Section 1.1 of the Credit
Agreement is amended by adding in the appropriate alphabetical
order the following new definitions:
“Term Loan Priority
Accounts” means any deposit accounts or securities accounts
that are intended to solely contain identifiable proceeds of the
Term Loan Priority Collateral (it being understood that any
property in such deposit accounts or securities accounts which is
not identifiable proceeds of Term Loan Priority Collateral shall
not be Term Loan Priority Collateral solely by virtue of being on
deposit in any such deposit account or securities account); in each
case with such immaterial
Headwaters – Amendment No. 10 to the
Credit Agreement
modifications to the foregoing as
may be acceptable to Ropes & Gray LLP as counsel to
certain of the Term B1 Lenders.
“Term Loan Priority
Collateral” means all Collateral other than ABL Priority
Collateral including, for the avoidance of doubt, the following
(further including for the avoidance of doubt, any such assets
that, but for the application of Section 552 of the Federal
bankruptcy code would be Term Loan Priority Collateral):
(a) all equipment, fixtures, real property, intellectual
property and investment property (other than any Investment
Property included in clauses (d) and (g) of the
definition of ABL Priority Collateral); (b) except to the
extent constituting ABL Priority Collateral, all instruments,
documents and general intangibles, (c) all commercial tort
claims, (d) any business interruption insurance or key person
life insurance, (e) all other Collateral, other than the ABL
Priority Collateral and proceeds thereof, and (f) all
collateral security and guarantees with respect to the foregoing,
and all cash, money, insurance proceeds, instruments, securities,
financial assets and deposit accounts received as proceeds of any
Collateral, other than the ABL Priority Collateral (including
proceeds of the ABL Priority Collateral); in each case with such
immaterial modifications to the foregoing as may be acceptable to
Ropes & Gray LLP as counsel to certain of the Term B1
Lenders.
(b) The definition of “ABL
Priority Collateral” contained in Section 1.1 to the
Credit Agreement is amended in full to read as follows:
“ABL Priority
Collateral” means (a) all accounts receivable and
inventory owned by the Borrower and its Subsidiaries (other than
accounts receivable which constitute identifiable proceeds of Term
Loan Priority Collateral), (b) all deposit accounts (other
than Term Loan Priority Accounts) of the Borrower and its
Subsidiaries, except for those which may be excluded pursuant to
the ABL Facility Documents (“Excluded Deposit
Accounts”); provided, however, that to the extent that
identifiable proceeds of Term Loan Priority Collateral are
deposited in any such deposit accounts, such identifiable proceeds
shall be treated as Term Loan Priority Collateral, (c) all
support obligations in respect of the accounts receivable described
in clause (a), including letters of credit and guaranties issued in
support of accounts receivable or proceeds of collateral; provided,
that to the extent any of the foregoing also relates to Term Loan
Priority Collateral only that portion related to the items referred
to in clause (a) shall be included in the ABL Priority
Collateral, (d) all securities accounts of the Borrower and
its Subsidiaries, except for those which may be excluded pursuant
to the ABL Facility Documents (“Excluded Security
Accounts”) to the extent the cash or Cash Equivalent
Investments contained therein were derived from accounts
receivable, inventory or deposit accounts described in clauses
(a) and (b); provided, however, that to the extent that
identifiable proceeds of Term Loan Priority Collateral are
deposited in any such securities accounts, such identifiable
proceeds shall be treated as Term Loan Priority Collateral,
(e) all certificates of title, documents or instruments
evidencing ownership or title to any inventory described in clauses
(a) and (g); provided, that to the extent any of the foregoing
also relates to Term Loan Priority Collateral, only that portion
related to the items referred to in clauses (a) and
(g) shall be included in the ABL Priority Collateral,
(f) all monies, whether or not in the possession of any agent
for the ABL Facility, a lender under the ABL Facility, a bailee or
Affiliate of such agent or lender that were derived from or consist
of any of the Property described in this definition of ‘ABL
Priority Collateral’, (g) all accessions to,
substitutions for, and all replacements, products, and cash and
non-cash
2
Headwaters – Amendment No. 10
to the Credit Agreement
proceeds of the foregoing, including
proceeds of and unearned premium with respect to insurance policies
and claims against any Person for loss, damage or destruction of
any of the Property described in this definition of ‘ABL
Priority Collateral’, and (h) all books and records
(including customer lists, files, correspondence, tapes, computer
programs, print-outs and computer records) pertaining to any of the
Property described in this definition of ‘ABL Priority
Collateral’; provided, that to the extent any of the
foregoing also relates to Term Loan Priority Collateral, only that
portion related to the items referred to in clauses
(a) through (g) shall be included in the ABL Priority
Collateral; in each case with such immaterial modifications to the
foregoing as may be acceptable to Ropes & Gray LLP as
counsel to certain of the Term B1 Lenders.
(c) The definition of
“Consolidated EBITDA” contained in Section 1.1 of
the Credit Agreement is amended by replacing the words “at
any time that Section 6.21.1(b) is in effect” where they
appear in clause (iii) immediately before the proviso thereto
with the following: “at any time after the Amendment
No. 9 Effective Date”.
(d) The definition of
“Revolving Loan Termination Date” contained in
Section 1.1 of the Credit Agreement is amended by substituting
for the date “September 30, 2009” where it appears in
clause (a) thereof the date “October 30,
2009.”
(e) Section 2.2(e) of the
Credit Agreement is amended by deleting the last sentence
thereof.
(f) Section 2.5.4 of the Credit
Agreement is amended by deleting the parenthetical at the end
thereof.
(g) Section 6.18 of the Credit
Agreement is amended by restating clause (y) thereof in its
entirety to read as follows: “(y) under the ABL Loan
Agreement, so long as the terms of such encumbrance or
restriction permit the creation or assumption of Liens
securing the Obligations of the Borrower and its Subsidiaries under
this Agreement and do not restrict the making of distributions to
the Borrower for the making of payments of the Obligations under
this Agreement that are required hereunder, other than restrictions
on the use of ABL Priority Collateral that are provided for under
the Intercreditor Agreement”.
(h) Section 6.20 of the Credit
Agreement is amended as follows:
(i) the heading of such Section is
amended and restated in its entirety to read as follows: “
Subordinated Indebtedness and Amendments to Subordinated
Indebtedness Documents; Amendments to ABL Facility Documents
.”;
(ii) the figure “(a)” is
inserted immediate after such heading; and
(iii) a new sub-clause (b) is
added to such Section, to read as follows:
“(b) The Borrower will not,
and will not permit any Subsidiary to, amend, amend and restate,
supplement or otherwise modify, or consent to or suffer to occur
the amendment, amendment and restatement, supplementation or other
modification of, any ABL Facility Document, other than as permitted
by the terms of the Intercreditor Agreement.”
(i) Section 6.32 of the Credit
Agreement is amended by restating clause (v) thereof in its
entirety to read as follows: “(v) under the ABL Loan
Agreement, so long as the terms of such
3
Headwaters – Amendment No. 10
to the Credit Agreement
prohibitions or conditions on the
creation or assumption of Liens permit the creation or
assumption of Liens securing the Obligations of the Borrower and
its Subsidiaries under this Agreement and do not restrict the
making of distributions to the Borrower for the making of payments
of the Obligations under this Agreement that are required
hereunder, other than restrictions on the use of ABL Priority
Collateral that are provided for under the Intercreditor
Agreement”.
(j) A new Section 6.34 is added
to the Credit Agreement, to read as follows:
“6.34 Amendments to Conform
to ABL Facility Documents . In the event that any covenant or
event of default provided under the ABL Facility Documents is more
restrictive to the Borrower and its Subsidiaries than the covenants
and events of default under the Credit Agreement, including,
without limitation, financial covenants, the ABL Facility Documents
shall permit, and the Borrower shall execute and deliver upon the
closing under the ABL Facility Documents, or promptly thereafter,
but in no event more than 20 days following such closing, an
amendment to the Credit Agreement providing for the addition of any
such additional or more restrictive covenants or events of
default.”
(k) Se
