Exhibit 10.93.7
Execution Version
AMENDMENT NO. 9 AND WAIVER TO THE
CREDIT AGREEMENT
Dated as of June 26,
2009
AMENDMENT NO. 9 AND WAIVER TO THE
CREDIT AGREEMENT (this “ Amendment No. 9
”) 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 and Amendment
No. 8 to the Credit Agreement dated August 15, 2008, 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 . The Credit Agreement is, effective as of the date
hereof and subject to the satisfaction of the conditions precedent
set forth in Section 3 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:
“ABL Collateral
Documents” means all agreements, instruments and documents
executed in connection with the ABL Loan Agreement that create or
are intended to create or evidence Liens to secure the ABL
Obligations.
“ABL Facility” means an
asset based revolving credit facility providing to the Borrower and
such Subsidiaries of the Borrower as shall be
“borrowers” thereunder, aggregate commitments of not
less than $50,000,000 and not more than $70,000,000 that have a
stated expiration date of no earlier than April 30,
2011.
Headwaters – Amendment No. 9 to the Credit
Agreement
“ABL Facility Documents”
means the ABL Loan Agreement, the ABL Collateral Documents, the
Intercreditor Agreement and the other documents to be entered into
by the Borrower and any other borrowers with the lenders under the
ABL Facility pursuant to the terms thereof.”
“ABL Loan Agreement”
means a loan agreement among the Borrower, such Subsidiaries of the
Borrower as may be co-borrowers thereunder and the lenders in
respect of the ABL Facility.
“ABL Obligations” has
the meaning specified in the ABL Loan Agreement.
“ABL Priority
Collateral” means (a) all accounts receivable and
inventory owned by Headwaters Construction Materials, Inc. and
Tapco International Corporation and their respective Subsidiaries,
(b) all accounts receivable owned by Headwaters Resources,
Inc. and its Subsidiaries, (c) all deposit accounts of
Headwaters Construction Materials, Inc., Tapco International
Corporation and Headwaters Resources, Inc. and their respective
Subsidiaries, except for those which may be excluded pursuant to
the ABL Facility Documents (“Excluded Deposit
Accounts”), (d) all support obligations in respect of
the accounts receivable described in clauses (a) and (b),
including letters of credit and guaranties issued in support of
accounts receivable or proceeds of collateral, (e) all
securities accounts of Headwaters Construction Materials, Inc.,
Tapco International Corporation and Headwaters Resources, Inc. and
their respective Subsidiaries, except for those except for those
which may be excluded pursuant to the ABL Facility Documents
(“Excluded Security Accounts”) to the extent the cash
or Cash Equivalent Instruments contained therein were derived from
accounts receivable, inventory or deposit accounts described in
clauses (a), (b) and (c), (f) all certificates of title,
documents or instruments evidencing ownership or title to any
inventory described in clauses (a) and (h), (g) 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’, (h) all accessions to, substitutions for,
and all replacements, products, and cash and non-cash 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’,
(i) 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’; and
(j) such additional Property as specified in the Intercreditor
Agreement as ‘ABL Priority
Collateral’.”
“Amendment No. 9 and
Waiver to the Credit Agreement” means, that Amendment
No. 9 and Waiver dated June 26, 2009 among the Borrower,
the Lenders, the Collateral Agent, and the Agents.
“Amendment No. 9
Effective Date” means the date Amendment No. 9 and
Waiver to the Credit Agreement shall become effective in accordance
with its terms.
“Boynton Appeal Bond”
means any appeal bond or similar instrument which the Borrower is
required to provide in order to stay any judgment rendered in the
Boynton Litigation in connection with any appeal of such
judgment.
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Headwaters – Amendment No. 9
to the Credit Agreement
“Boynton Litigation”
means Phillip E. Boynton, et al., v. Headwaters Incorporated
, U.S.D.C., Western Dist. TN, no. 1:02-cv-01111-JPM-egb, including
any appellate proceedings therefrom.
“Ratings” shall have the
meaning set forth in the Pricing Schedule.
“Term B1 Lenders” means
any Lender holding any Term B1 Loans.
(b) The definition of
“Alternate Base Rate” contained in Section 1.1 to
the Credit Agreement is amended by inserting immediately before the
period (“.”) at the end of such definition, the
following proviso:
“; provided that, at no
time shall the Alternate Base Rate be less than 4.00% per
annum.”.
(c) The definition of
“Applicable Margin” contained in Section 1.1 to
the Credit Agreement is amended by inserting immediately after the
words “Pricing Schedule” in the third line of such
definition, the following proviso thereof:
“, provided that,
(A) from and after the date of closing of the new ABL
Facility, the Applicable Margin shall be increased by the greater
of (x) 100 basis points and (y) an amount such that the
Applicable Margin for the Term B1 Loans for Eurodollar Loans and
Floating Rate Loans shall exceed (in each case) the respective
applicable margins on loans comparable to Eurodollar Loans and
Floating Rate Loans made under such ABL Facility by 200 basis
points, and (B) if the Borrower, after incurring Indebtedness
under the ABL Facility, has not repaid at least $50,000,000 in
aggregate principal amount of Term B1 Loans following the Amendment
No. 9 Effective Date and on or before December 31, 2009,
then commencing as of January 1, 2010 the Applicable Margin
shall be increased by 25 basis points every quarter until such
aforementioned payment is made”.
(d) The definition of
“Consolidated EBITDA” contained in Section 1.1 to
the Credit Agreement is amended by (i) substituting a comma
(“,”) for the word “and” immediately
following the words “goodwill and intangible assets” in
the fourth line of such definition, (ii) inserting,
immediately following the words “in any fiscal year
thereafter” in the sixth line of such definition, the
following new subparagraphs:
“, (vii) at any time that
Section 6.21.1(b) is in effect solely for purposes of
calculations under Section 6.21 and 6.22, any charges
recognized in connection with the Boynton Litigation up to an
amount not to exceed $21,425,000 (less any reversals or reductions
of such charge) and (viii) any non-cash losses resulting from
the issuance of Equity Interests in exchange for Convertible
Notes”,
(iii) substituting a comma
(“,”) for the word “and” immediately
following the words “on a consolidated basis” in the
eighth line of such definition, and (iv) inserting,
immediately following the figure “$24,755,000.00” in
the ninth line of such definition, the following new
subparagraph:
“and (iii) at any time
that Section 6.21.1(b) is in effect, future gains earned by
the Borrower resulting from any retirement of
Indebtedness”.
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Headwaters – Amendment No. 9
to the Credit Agreement
(e) The definition of
“Consolidated Future Maturities” contained in
Section 1.1 to the Credit Agreement is amended by
(i) substituting a semi-colon (“;”) for the period
(“.”) at the end of the definition, and
(ii) inserting immediately after the semi-colon inserted
pursuant to subparagraph (i) hereof, the following proviso
thereof:
“ provided that, in
respect of each Measurement Period referred to in
Section 6.22(z), if the Revolving Loan Commitments have been
refinanced with commitments under an ABL Facility, Consolidated
Future Maturities shall not include any scheduled payments of
principal of the Loans due and payable in February 2011 and April
2011 pursuant to Section 2.1.2(e) and any mandatory prepayment
of principal required under Section 2.2.”.
(f) The definition of
“Eurodollar Base Rate” contained in Section 1.1 to
the Credit Agreement is amended by inserting immediately before the
period (“.”) at the end of the definition, the
following proviso thereof:
“, provided that, at no
time shall the Eurodollar Base Rate be less than 3.00% per
annum.”.
(g) The definition of
“Financing” contained in Section 1.1 to the Credit
Agreement is amended by inserting immediately after the period
(“.”) at the end of the definition the words “For
the avoidance of doubt, the term “Financing” shall not
include any Indebtedness incurred under the ABL
Facility.”
(h) The definition of
“Intercreditor Agreement” contained in Section 1.1
of the Credit Agreement is amended and restated in its entirety to
read as follows:
““Intercreditor
Agreement” means an intercreditor agreement between the
Collateral Agent and the agent under the ABL Loan Agreement, and
acknowledged by the Borrower and each other Loan Party, reasonably
satisfactory to Ropes & Gray LLP, as counsel to certain of
the Term B1 Lenders and in the form to which the Required Lenders
shall not have objected after they have been given a period of
three Business Days to review a substantially final version
thereof.”
(i) The definition of
“Material Indebtedness” contained in Section 1.1
of the Credit Agreement is amended by inserting immediate before
the phrase “any Indebtedness” contained therein the
following: “the ABL Facility and.”
(j) The definition of
“Restricted Payment” contained in Section 1.1 of
the Credit Agreement is amended by (i) substituting a comma
(“,”) for the word “and” immediately
following the words “the Obligations” in the twelfth
line of such definition; (ii) substituting the letter in
parentheses “(y)” therein with “(z)”; and
(iii) inserting immediately after “the
Obligations,” in the twelfth line the words “
(y) Indebtedness under the ABL Facility”.
(k) The definition of
“Revolving Loan Termination Date” contained in
Section 1.1 of the Credit Agreement is amended by inserting,
immediately after the date referenced in subparagraph
(a) thereof and right before the comma (“,”), the
following parenthetical to read as follows:
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Headwaters – Amendment No. 9
to the Credit Agreement
“(or with respect to any
Lender, such later date as may be agreed in writing between such
Lender and the Borrower and acknowledged by the Administrative
Agent)”.
(l) Section 2.2(c) of the
Credit Agreement is amended by substituting the following in its
entirety for such Section:
“Upon the consummation of any
Financing by the Borrower or any Subsidiary of the Borrower, within
three (3) Business Days after the Borrower’s or any of
its Subsidiaries’ receipt of any Net Cash Proceeds, the
Borrower shall make a mandatory prepayment of the Loans, subject to
the provisions governing the application of payments set forth in
Section 2.2(e), (i) in an amount equal to one hundred
percent (100%) of such Net Cash Proceeds, in the case of a
debt Financing of the type described in clause (ii) of the
definition thereof; provided that such percentage shall be
reduced to 0% if the Total Leverage Ratio after giving effect to
such transaction would be less than 3.50:1.00 (calculated on a pro
forma basis after giving effect to such transaction), and
(ii) in an amount equal to one hundred percent (100%) of
such Net Cash Proceeds, in the case of an equity Financing of the
type described in clause (i) of the definition thereof;
provided that such percentage shall be reduced to 0% if the
Total Leverage Ratio after giving effect to such transaction would
be less than 3.50:1.00 (calculated on a pro forma basis after
giving effect to such transaction). Furthermore, if the Borrower
has not otherwise prepaid at least $25,000,000 of the outstanding
principal amount of the Term B1 Loans pursuant to
Section 2.2(b) and/or (c) and/or Section 2.7 between
the Amendment No. 9 Effective Date and December 31, 2009
and the Borrower incurs Indebtedness permitted under
Section 6.14.12, the Borrower shall prepay at least
$25,000,000 in aggregate principal amount of Term B1 Loans on or
before December 31, 2009, it being understood that the
prepayment required under this sentence is applicable regardless of
the availability of Net Cash Proceeds of any
Financing.”
(m) Section 2.5 of the Credit
Agreement is amended by (i) substituting the following text in
its entirety for such Section Heading:
“ Commitment Fee; Aggregate
Revolving Loan Commitment; Letter of Credit Facility; ABL Consent
Fee .”,
and (ii) inserting at the end
of such Section, the following new “Sub-section 2.5.4”
to read as follows:
“2.5.4. ABL Consent Fee
. Upon the closing of the ABL Facility, the Borrower shall pay to
the Administrative Agent for the account of the Term B1 Lenders
consenting to Amendment No. 9 and Waiver to the Credit
Agreement based on their outstanding principal amounts of Term B1
Loans as of the Amendment No. 9 Effective Date (reduced by any
amounts prepaid between the Amendment No. 9 Effective Date and
the closing of the ABL Facility), an additional consent fee of 25
basis points (less the amount of fees and expenses paid to
Ropes & Gray LLP by the Borrower as a result of
Section 6.14.12(a)).”.
(n) Section 5.5 of the Credit
Agreement is amended and restated in its entirety to read as
follows:
“5.5 Material Adverse
Change . Since September 30, 2008, there has been no
Material Adverse Change.”.
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Headwaters – Amendment No. 9
to the Credit Agreement
(o) Section 6.12 of the Credit
Agreement is amended by inserting the following new sub-section
6.12.6 to read as follows:
“6.12.6 Other dispositions or
transfers of Property, provided that (a)
