Exhibit 10.76.1
AMENDMENT NO. 1 TO THE CREDIT AGREEMENT dated as of December 4, 2003
among HEADWATERS INCORPORATED, a Delaware corporation (the "Borrower"), the
banks, financial institutions and other institutional lenders parties to the
Credit Agreement referred to below (collectively, the "Lenders") and GENERAL
ELECTRIC CAPITAL CORPORATION, as agent (the "Agent") for the Lenders.
PRELIMINARY STATEMENTS:
(1) The Borrower, the Subsidiary Guarantors (as defined therein), the
Lenders and the Agent have entered into a Credit Agreement dated as of September
19, 2002 (as amended, supplemented or otherwise modified through the date
hereof, the "Credit Agreement"). Capitalized terms not otherwise defined in this
Amendment have the same meanings as specified in the Credit Agreement.
(2) The Borrower and the Required Lenders have agreed to amend the
Credit Agreement as hereinafter set forth.
(3) The Required Lenders are, on the terms and conditions stated below,
willing to grant the request of the Borrower and the Borrower and the Required
Lenders have agreed to amend the Credit Agreement as hereinafter set forth.
SECTION 1. Amendment to 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, hereby amended as follows:
(a) The definition of "Excess Cash Flow" contained in Article
I of the Credit Agreement is amended by (i) deleting clause (b)(vi)
therein and (ii) renumbering the existing clause (b)(vii) as clause
(b)(vi).
(b) Section 2.05(b)(i) is amended by adding at the end of the
first sentence thereof the phrase "less the aggregate principal amount
of all optional prepayments of the Facilities made during such Fiscal
Year pursuant to Section 2.05 (so long as, in the case of the Revolving
Credit Facility, such prepayment is accompanied by a permanent
reduction in the Revolving Credit Commitments)".
(c) Section 5.02(f) is amended by replacing each reference
therein to "$10,000,000" with the number "$25,000,000".
(d) Section 5.02(f) is amended by adding at the end of each of
clauses (i) and (vii)(D), the following sub-clause (aa):
"and (aa) the aggregate amount of Net Cash Proceeds
from the sale or issuance by the Borrower or any of its
Restricted Subsidiaries of any Equity Interests not required
to prepay the Advances pursuant to Section 2.05(b)(iii);
provided that the sum of (x), (y), (z) and (aa) shall not
exceed $50,000,000 in the aggregate;"
(e) Section 5.02(j) is amended by replacing clause (iv)
therein with the following clause (iv):
"(iv) prepayments of the Debt in respect of the
Mezzanine Facility with the Net Cash Proceeds from the sale or
issuance by the Borrower or any of its Restricted Subsidiaries
of any Equity Interests or Subordinated Debt to the extent
that such Net Cash Proceeds are not required to prepay the
Facilities pursuant to Section 2.05(b),".
SECTION 2. Conditions of Effectiveness. This Amendment shall become effective as
of the date first above written when, and only when, the Agent shall have
received counterparts of this Amendment executed by the Borrower and the
Required Lenders or, as to any of the Lenders, advice satisfactory to the Agent
that such Lender has executed this Amendment and the consent attached hereto
executed by each Loan Party (other than the Borrower). This Amendment is subject
to the provisions of Section 9.01 of the Credit Agreement. Section 1 hereof
shall become effective when, and only when, the Agent shall have additionally
received all of the following documents, each such document (unless otherwise
specified) dated the date of receipt thereof by the Agent (unless otherwise
specified) and in sufficient copies for each Lender, in form and substance
satisfactory to the Agent (unless otherwise specified):
(a) Counterparts of the Consent appended hereto (the
"Consent"), executed by each of the Loan Parties (other than the
Borrower).
(b) A certificate signed by a duly authorized officer of the
Borrower stating that:
(i) The representations and warranties contained in
Section 3 are correct on and as of the date of such
certificate as though made on and as of such date other than
any such representations or warranties that, by their terms,
refer to a date other than the date of such certificate; and
(ii) No event has occurred and is continuing that
constitutes a Default.
SECTION 3. Representations and Warranties of the Borrower. The Borrower
represents and warrants as follows:
(a) The execution, delivery and performance by the Borrower of
this Amendment and the Credit Agreement as amended by this Amendment
are within the Borrower's corporate powers, have been duly authorized
by all necessary corporate action and do not (i) contravene the
Borrower's charter or by-laws, (ii) violate any law, rule or regulation
(including, without limitation, Regulation X of the Board of Governors
of the Federal Reserve System), or any order, writ, judgment,
injunction, decree, determination or award, binding on or affecting the
Borrower or any of its Subsidiaries or any of their properties, (iii)
conflict with or result in the breach of, or constitute a default
under, any contract, loan agreement, indenture, mortgage, deed of
trust, lease or other instrument binding on or affecting the Borrower,
any of its Subsidiaries or any of their properties or (iv) except for
the Liens created under the Collateral Documents result in or require
the creation or imposition of any Lien upon or with respect to any of
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the properties of the Borrower or any of its Subsidiaries, except such
contraventions, violations or conflicts which could not be reasonably
likely to have a Material Adverse Effect.
(b) No Governmental Authorization and no notice to or filing
with, any Governmental Authority or any other third party is required
for the due execution, delivery or performance by the Borrower of this
Amendment or the Credit Agreement as amended by this Amendment.
(c) This Amendment has been duly executed and delivered by the
Borrower. This Amendment and the Credit Agreement as amended by this
Amendment are legal, valid and binding obligations of the Borrower,
enforceable against the Borrower in accordance with their respective
terms, except to the extent that such enforcement may be subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other
laws of general application relating to or affecting enforcement of
creditors' rights and laws concerning equitable remedies.
SECTION 4. Reference to and Effect on the Loan Documents. (a) On and after the
effectiveness of this Amendment, each reference in the Credit Agreement to "this
Agreement", "hereunder", "hereof' or words of like import referring to the
Credit Agreement, and each reference in the Notes and each of the other Loan
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 amended by this Amendment.
(b) The Credit Agreement, the Notes and each of the other Loan
Documents, as specifically amended by this Amendment, 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 Loan Parties under the Loan Documents, as amended by this
Amendment.
(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 any Lender or the Agent under
any of the Loan Documents, nor constitute a waiver of any provision of
any of the Loan Documents.
SECTION 5. Costs, Expenses and Taxes. The Borrower agrees to pay on demand all
costs and expenses of the Agent in connection with the preparation, execution,
delivery and administration, modification and amendment of this Amendment and
the other instruments and documents to be delivered hereunder (including,
without limitation, the reasonable fees and expenses of counsel for the Agent)
in accordance with the terms of Section 9.04 of the Credit Agreement.
SECTION 6. Execution in Counterparts. This Amendment 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
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which taken together shall constitute but one and the same agreement. Delivery
of an executed counterpart of a signature page to this Amendment by telecopier
shall be effective as delivery of a manually executed counterpart of this
Amendment.
SECTION 7. Governing Law. This Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
HEADWATERS INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Secretary, V.P.
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GENERAL ELECTRIC CAPITAL CORPORATION,
as Agent and as Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Manager-Operations
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ARK II CLO 2001-1, Limited
By: Patriarch Partners II, LLC,
as Collateral Manager
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Title: Manager
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Aurum CLO 2002-1 Ltd.,
by Columbia Management Advisors, Inc.,
as Investment Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Sr. Vice President &
Portfolio Manager
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CIT LENDING SERVICES CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Vice President
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Columbian Floating Rate Advantage Fund,
by Columbian Management Advisors, Inc.
as Advisor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Sr. Vice President &
Portfolio Manager
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Franklin CLO I, Limited
Franklin CLO II, Limited
Franklin CLO III, Limited
Franklin CLO IV, Limited
Franklin Floating Rate Trust
Franklin Floating Rate Master Series
Franklin Floating Rate Daily Access Fund
By: /s/ ▇▇▇▇▇ ▇▇▇▇
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Title: Asst. Vice President
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GoldenTree High Yield Opportunities II, LP
By: GoldenTree Asset Management, LP
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Title: Portfolio Manager
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GoldenTree High Yield Opportunities I, LP
By: GoldenTree Asset Management, LP
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Title: Portfolio Manager
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GoldenTree Loan Opportunities I, Limited
By: GoldenTree Asset Management, LP
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Title: Portfolio Manager
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GoldenTree Loan Opportunities II, Limited
By: GoldenTree Asset Management, LP
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Title: Portfolio Manager
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ORIX FUNDING LLC
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Asst. Vice President
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Reliant Standard Life Insurance
By: GoldenTree Asset Management, LP
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Title: Portfolio Manager
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SRF 2000, INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Asst. Vice President
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SunAmerica Life Insurance Company
By: /s/ W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Vice President
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University of Chicago
By: GoldenTree Asset Management, LP
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Title: Portfolio Manager
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Agreed as of the date first above written:
Zions Bank
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Title: Vice President
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CONSENT
Dated as of December 4, 2003
Each of the undersigned, as Loan Parties under the Loan Documents
referred to in the Credit Agreement referred to in the foregoing Amendment,
hereby consents to such Amendment and hereby confirms and agrees that (a)
notwithstanding the effectiveness of such Amendment, each Loan Document to which
such Loan Party is a party is, and shall continue to be, in full force and
effect and is hereby ratified and confirmed in all respects, except that, on and
after the effectiveness of such Amendment, each reference in each such Loan
Document to the "Credit Agreement", "thereunder", "thereof' or words of like
import shall mean and be a reference to the Credit Agreement, as amended by such
Amendment, and (b) the Collateral Documents to which such Loan Party is a party
and all of the Collateral described therein do, and shall continue to, secure
the payment of all of the Secured Obligations (in each case, as defined
therein).
HEADWATERS TECHNOLOGY INNOVATION GROUP, INC.,
HEADWATERS NANOKINETIX, INC.,
HEADWATERS CLEAN COAL CORP.,
HYDROCARBON TECHNOLOGIES, INC.,
COVOL SERVICES CORPORATION,
HTI CHEMICAL SUB, INC.
F/K/A CHEMSAMPCO, INC.,
HEADWATERS OLYSUB CORPORATION,
UTAH SYNFUEL #1, L.P.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President, General Counsel and
Secretary
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AMERICAN CONSTRUCTION MATERIALS, INC.,
GLOBAL CLIMATE RESERVE CORPORATION,
ISG RESOURCES, INC.,
BEST MASONY & TOOL SUPPLY, INC.
F/K/A J. ▇▇▇▇▇▇ ▇▇▇▇▇ INTERESTS, INC.,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, INC.,
UNITED TERRAZZO SUPPLY CO, INC.,
MAGNA WALL, INC.,
ISG MANUFACTURED PRODUCTS, INC.,
ISG PARTNER, INC.,
ISG CAPITAL CORPORATION,
ISG SWIFT CRETE, INC.,
DON'S BUILDING SUPPLY, L.P.,
PALESTINE CONCRETE TITLE COMPANY, L.P.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President,
General Counsel and Secretary
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