EXHIBIT 10.93.5


 


Execution Copy


 


AMENDMENT
NO. 7 TO THE CREDIT AGREEMENT


 


Dated as of
January 12, 2007


AMENDMENT
NO. 7 TO THE CREDIT AGREEMENT (this “Amendment No. 7”) 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 and Amendment No. 6
to the Credit Agreement dated August 30, 2006 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 2 below, hereby amended as
follows:  


(a)           The definition of “Indebtedness” in
Section 1.1 is amended by adding “)” at the end of, but before the final comma
in, clause (iii) thereof. 


(b)           The definition of “Restricted
Payment” in Section 1.1 is amended by restating clause (ii) thereof to read as
follows:


“(ii) any redemption, retirement, purchase or other
acquisition for value, direct or indirect, of any Equity Interests of the
Borrower or any of its Subsidiaries now or hereafter outstanding, other than
(x) in exchange for, or out of the proceeds of, the substantially concurrent
sale (other than to a Subsidiary of the Borrower) of other Equity










 



Interests of the Borrower (other than Disqualified
Stock) and (y) premiums paid in connection with Rate Management Transactions,”


(c)           The definition of “Restricted
Payment” in Section 1.1 is amended by restating clause (iii) thereof to read as
follows:


“(iii) any redemption, purchase, retirement,
defeasance, prepayment or other acquisition for value, direct or indirect, of
any Indebtedness prior to the stated maturity thereof, other than any
redemption, purchase, retirement, defeasance, prepayment or other acquisition
of (x) the Obligations and (y) so long as no Default or Unmatured Default
exists at the time thereof or would arise after giving effect thereto, any
other Indebtedness (together with the related payment of any interest or any
consent fee in respect thereof) in part or full exchange for, or with the proceeds
of the issuance or incurrence of, any Subordinated Indebtedness permitted under
Section 6.14.8 or the issuance of any Equity Interests of the Borrower (subject
in each case to any mandatory prepayment of the Obligations required to be made
in accordance with Section 2.2(c)), in each case within one hundred eighty
(180) days of the issuance of such Subordinated Indebtedness or Equity
Interests,”


(d)           Section 6.10 is amended by restating
clause (iv) thereof to read as follows:


“(iv) so long as no Default or Unmatured Default
exists at the time thereof or would arise after giving effect thereto,
Restricted Payment in the aggregate amount of not more than fifteen million
dollars ($15,000,000).”


(e)           Section 6.13 is amended by adding to
the end thereof a Section 6.13.7 to read as follows:


“6.13.7 Investments consisting of Rate Management
Transactions otherwise permitted hereunder.”


(f)            Section 6.17 is amended by amending
and restating the last sentence thereof in its entirety to read as follows:


“Except to the extent set forth in the preceding
sentence, the Borrower will not, nor will it permit any Subsidiary to, enter
into or remain liable upon any Rate Management Transactions except for those
entered into in connection with a bona fide hedging transaction and not for
speculative purposes.”


section 2.           Conditions
to Effectiveness.  This Amendment No.
7 and the amendments contained herein shall become effective as of the date
hereof (the “Amendment
No. 7 Effective Date”) when each of the conditions set forth in
this Section 2 to this Amendment No. 7 shall have been fulfilled to the
satisfaction of the Administrative Agent.


(a)           Execution of Counterparts.  The Administrative Agent shall have received
counterparts of this Amendment No. 7, 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. 7.


(b)           Guarantor Consent.  The Administrative Agent shall have received
the Consent attached as Exhibit A 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. 7  at or before 5:00
P.M. (New York City time) on January 12, 2007 (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. 7 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. 7 and other matters relating to the Credit
Agreement from and after the last invoice to the extent invoiced. 


(d)           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. 7.


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. 7, 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. 7.


section 4.     Reference
to and Effect on the Loan Documents. 
(a) On and after the Amendment No. 7 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. 7.


(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. 7, 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.
7.


(c)           The execution, delivery and
effectiveness of this Amendment No. 7 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.



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section 5.     Execution
in Counterparts.  This Amendment No.
7 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. 7 by facsimile shall be
effective as delivery of a manually executed original counterpart of this
Amendment No. 7.


section 6.     Governing
Law.  This Amendment No. 7 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. 7 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. 7 to be executed by their
respective officers thereunto duly authorized, as of the date first above
written.


	
  

  	
  HEADWATERS INCORPORATED,

  
	
   

  	
   

  	
  as Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MORGAN STANLEY SENIOR FUNDING, INC.,

  
	
   

  	
   

  	
  as Administrative Agent, Swing Line Lender and

  as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MORGAN STANLEY & CO. INCORPORATED,

  
	
   

  	
   

  	
  as Collateral Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  



 









 



Lenders:


 


 


	
  

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
					



 









 



EXHIBIT A




CONSENT


Dated
as of January 12, 2007


Reference is made to the Credit
Agreement referred to in the foregoing Amendment No. 7 (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. 7 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. 7 Effective Date, except that, on and after the
Amendment No. 7 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. 7 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.;


BEST MASONRY & TOOL
SUPPLY, LLC


CHIHUAHUA STONE LLC;


COVOL COAL COMPANY, LLC;


COVOL ENGINEERED FUELS, LC;


COVOL SERVICES CORPORATION;


DON’S BUILDING SUPPLY, LLC


ELDORADO G-ACQUISITION CO.;


ELDORADO SC-ACQUISITION CO.;


ELDORADO STONE ACQUISITION
CO., LC;


ELDORADO STONE FUNDING CO.,
LLC;


ELDORADO STONE LLC;


ELDORADO STONE OPERATIONS
LLC;


ENVIRONMENTAL TECHNOLOGIES
GROUP, LLC;


GLOBAL CLIMATE RESERVE CORPORATION;


HCM FLEXCRETE, LLC;


HCM STONE, LLC;


HCM UTAH, INC.;


HEADWATERS CONSTRUCTION MATERIALS,
INC.;


HEADWATERS CONSTRUCTION MATERIALS, LLC;


HEADWATERS ENERGY SERVICES CORP.;


HEADWATERS ETHANOL OPERATORS, LLC;


HEADWATERS HEAVY OIL, LLC;


HEADWATERS CTL, LLC


HEADWATERS RESOURCES, INC.;


HEADWATERS SYNFUEL INVESTMENTS, LLC;


HEADWATERS TECHNOLOGY INNOVATION, LLC;


HEADWATERS SERVICES
CORPORATION;


L-B STONE LLC;


METAMORA PRODUCTS
CORPORATION;


METAMORA PRODUCTS CORPORATION
OF ELKLAND;


MTP, INC.;


TAPCO INTERNATIONAL
CORPORATION;


VFL TECHNOLOGY CORPORATION;


WAMCO CORPORATION


 


	
  each as a Guarantor

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:
   Scott K. Sorensen

  
	
   

  	
  Title:
  Chief Financial Officer