-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, UtLknfxVO4Ojv8C9GBVNQ+AbnYdV+epUTGwrOB0B82kgmg8nNijwyouEYogEn0YM BZpdG80D0+It2ZA8K31BVA== 0001038838-05-000588.txt : 20050611 0001038838-05-000588.hdr.sgml : 20050611 20050601135508 ACCESSION NUMBER: 0001038838-05-000588 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 20050527 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20050601 DATE AS OF CHANGE: 20050601 FILER: COMPANY DATA: COMPANY CONFORMED NAME: HEADWATERS INC CENTRAL INDEX KEY: 0001003344 STANDARD INDUSTRIAL CLASSIFICATION: MISCELLANEOUS PRODUCTS OF PETROLEUM & COAL [2990] IRS NUMBER: 870547337 STATE OF INCORPORATION: DE FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-32459 FILM NUMBER: 05870024 BUSINESS ADDRESS: STREET 1: 10653 SOUTH RIVERFRONT PARKWAY STREET 2: SUITE 300 CITY: SOUTH JORDAN STATE: UT ZIP: 84095 BUSINESS PHONE: 801-984-9400 MAIL ADDRESS: STREET 1: 10653 SOUTH RIVERFRONT PARKWAY STREET 2: SUITE 300 CITY: SOUTH JORDAN STATE: UT ZIP: 84095 FORMER COMPANY: FORMER CONFORMED NAME: COVOL TECHNOLOGIES INC DATE OF NAME CHANGE: 19951113 8-K 1 form8k052705.txt FORM 8-K DATED MAY 27, 2005 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D. C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported): May 27, 2005 Headwaters Incorporated ------------------------------------------------------ (Exact name of registrant as specified in its charter) Delaware 0-27808 87-0547337 - ---------------------------- ------------- ---------------------- (State or other jurisdiction (Commission (I.R.S. Employer of incorporation) File Number) Identification Number) 10653 South River Front Parkway, Suite 300 South Jordan, UT 84095 ------------------------------------------ ---------- (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (801) 984-9400 Not Applicable ------------------------------------------------------------- (Former name or former address, if changed since last report) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions: [ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) [ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) [ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) [ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) Certain statements contained in this Current Report on Form 8-K are forward-looking statements within the meaning of federal securities laws and Headwaters intends that such forward-looking statements be subject to the safe-harbor created thereby. Forward-looking statements include Headwaters' expectations as to the managing and marketing of coal combustion products, the production and marketing of building materials and products, the licensing of technology and chemical sales to alternative fuel facilities, the receipt of product sales, license fees and royalty revenues, the development, commercialization, and financing of new technologies and other strategic business opportunities and acquisitions, and other information about Headwaters. Such statements that are not purely historical by nature, including those statements regarding Headwaters' future business plans, the operation of facilities, the availability of tax credits, the availability of feedstocks, and the marketability of the coal combustion products, building products, and synthetic fuel, are forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995 regarding future events and our future results that are based on current expectations, estimates, forecasts, and projections about the industries in which we operate and the beliefs and assumptions of our management. Actual results may vary materially from such expectations. Words such as "expects," "anticipates," "targets," "goals," "projects," "believes," "seeks," "estimates," or variations of such words and similar expressions, are intended to identify such forward-looking statements. Any statements that refer to projections of our future financial performance, our anticipated growth and trends in our businesses, and other characterizations of future events or circumstances, are forward-looking. In addition to matters affecting the coal combustion products, alternative fuel, and building products industries or the economy generally, factors which could cause actual results to differ from expectations stated in forward-looking statements include, among others, the risk factors described in Item 7 in Headwaters' Annual Report on Form 10-K for the fiscal year ended September 30, 2004, Quarterly Reports on Form 10-Q, and other periodic filings and prospectuses. Although Headwaters believes that its expectations are based on reasonable assumptions within the bounds of its knowledge of its business and operations, there can be no assurance that our results of operations will not be adversely affected by such factors. Unless legally required, we undertake no obligation to revise or update any forward-looking statements for any reason. Readers are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date of this report. Item 1.01. Entry into a Material Definitive Agreement. - ------------------------------------------------------ On May 27, 2005 Headwaters announced that it has repaid $50 million of its senior secured second lien debt. A copy of this press release is attached hereto as exhibit 99.1. Amendment No. 3 to Headwaters senior debt Credit Agreement is attached hereto as exhibit 10.93.1 Item 9.01. Financial Statements and Exhibits. - --------------------------------------------- (c) Exhibits. Exhibit 10.93.1: Amendment No. 3 to the Credit Agreement among Headwaters and various lenders dated as of May 19, 2005. Exhibit 99.1: Press release announcing repayment of $50 million of senior secured second lien debt. 2 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. Date: June 1, 2005 HEADWATERS INCORPORATED (Registrant) By: /s/ Kirk A. Benson ------------------------- Kirk A. Benson Chief Executive Officer (Principal Executive Officer) 3 EX-10.93.1 2 ex10931form8k052705.txt HEADWATERS - FIRST LIEN AMENDMENT NO. 3 EXECUTION COPY AMENDMENT NO. 3 TO THE CREDIT AGREEMENT Dated as of May 19, 2005 AMENDMENT NO. 3 TO THE CREDIT AGREEMENT (this "Amendment No. 3") among Headwaters Incorporated, a Delaware corporation, (the "Borrower"), the Lenders (as hereinafter defined) party hereto, Morgan Stanley & Co. Incorporated ("MS&Co."), 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. ("JPMCB") (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, restated, supplemented or otherwise modified, 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. 3, hereby amended as follows: (a) Section 6.10(iv) of the Credit Agreement is hereby amended and restated in its entirety 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, (A) at any time after September 8, 2005 the Borrower may prepay the Second Lien Financing with cash on hand, including cash proceeds from any litigation settlements and (B) the Borrower may apply an aggregate amount of up to $50,000,000 in cash proceeds from any litigation settlements to prepayment of the Second Lien Financing, in each case with respect to this clause (iv), including any prepayment premium and additional amounts or costs payable in connection with such prepayment." SECTION 2. Conditions to Effectiveness. This Amendment No. 3 and the amendments contained herein shall become effective as of the date hereof (the NYDOCS03/768241.1 Headwaters - First Lien Amendment No. 3 2 "Amendment No. 3 Effective Date") when each of the conditions set forth in this Section 2 to this Amendment No. 3 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. 3, 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. 3. (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. 3 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 Agreement. SECTION 3. Confirmation of Representations and Warranties. Each of the Credit Parties hereby represents and warrants, on and as of the date hereof, that 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. 3, 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. SECTION 4. Reference to and Effect on the Loan Documents. (a) On and after the effectiveness of this Amendment No. 3, 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. 3. (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. 3, 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. 3. (c) The execution, delivery and effectiveness of this Amendment No. 3 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. NYDOCS03/768241.1 Headwaters - First Lien Amendment No. 3 3 SECTION 5. Execution in Counterparts. This Amendment No. 3 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. 3 by facsimile shall be effective as delivery of a manually executed original counterpart of this Amendment No. 3. SECTION 6. Governing Law. This Amendment No. 3 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. 3 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. [Signatures follow.] NYDOCS03/768241.1 Headwaters - First Lien Amendment No. 3 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written. HEADWATERS INCORPORATED By /s/ Steven G. Stewart ---------------------------------- Title: Chief Financial Officer MORGAN STANLEY SENIOR FUNDING, INC., as Administrative Agent and as a Lender By /s/ Todd Vannucci ---------------------------------- Title: Executive Director MORGAN STANLEY & CO. INCORPORATED, as Collateral Agent By /s/ Todd Vannucci ---------------------------------- Title: Executive Director [And Other Lenders] NYDOCS03/768241.1 Headwaters - First Lien Amendment No. 3 CONSENT Dated as of May 19, 2005 Reference is made to the Credit Agreement referred to in the foregoing Amendment No. 3 (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. 3 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. 3 Effective Date, except that, on and after the Amendment No. 3 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. 3 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. ACM BLOCK & BRICK GENERAL, INC., ACM BLOCK & BRICK PARTNER, LLC, ACM BLOCK & BRICK, LLC, ACM BLOCK & BRICK, LP, ACM FLEXCRETE, LP, ACM GEORGIA, INC., AMERICAN CONSTRUCTION MATERIALS, INC., BEST MASONRY & TOOL SUPPLY, INC., CHIHUAHUA STONE LLC, COVOL ENGINEERED FUELS, LC, COVOL SERVICES CORPORATION, DON'S BUILDING SUPPLY, L.P., EAGLE STONE & BRICK LLC, ELDORADO ACQUISITION, LLC, ELDORADO G-ACQUISITION CO., ELDORADO SC-ACQUISITION CO., ELDORADO STONE ACQUISITION CO., LLC, ELDORADO STONE CORPORATION, ELDORADO STONE FUNDING CO., LLC, ELDORADO STONE LLC, ELDORADO STONE OPERATIONS LLC, NYDOCS03/768241.1 Headwaters - First Lien Amendment No. 3 GLOBAL CLIMATE RESERVE CORPORATION, each as a Guarantor By /s/ Steven G. Stewart -------------------------------- Name: Steven G. Stewart Title: Chief Financial Officer NYDOCS03/768241.1 Headwaters - First Lien Amendment No. 3 HEADWATERS CLEAN COAL CORP., HEADWATERS HEAVY OIL, INC., HEADWATERS NANOKINETIX, INC., HEADWATERS OLYSUB CORPORATION, HEADWATERS TECHNOLOGY INNOVATION GROUP, INC., HTI CHEMICAL SUBSIDIARY, INC. HYDROCARBON TECHNOLOGIES, INC., ISG MANUFACTURED PRODUCTS, INC., ISG PARTNER, INC., ISG RESOURCES, INC., ISG SERVICES CORPORATION, ISG SWIFT CRETE, INC., L&S STONE LLC, L-B STONE LLC, LEWIS W. OSBORNE, INC., MAGNA WALL, INC., NORTHWEST PROPERTIES LLC, NORTHWEST STONE & BRICK CO., INC., NORTHWEST STONE & BRICK LLC, PALESTINE CONCRETE TILE COMPANY, L.P., STONECRAFT INDUSTRIES LLC, TEMPE STONE LLC, UNITED TERRAZZO SUPPLY CO., INC., VFL TECHNOLOGY CORPORATION, each as a Guarantor By /s/ Steven G. Stewart -------------------------------- Name: Steven G. Stewart Title: Chief Financial Officer ELDORADO FUNDING CO., as a Guarantor By /s/ Steven G. Stewart --------------------------------- Name: Steven G. Stewart Title: President NYDOCS03/768241.1 Headwaters - First Lien Amendment No. 3 TAPCO HOLDINGS, INC., TAPCO INTERNATIONAL CORPORATION, VANTAGE BUILDING PRODUCTS CORPORATION, MTP, INC., ATLANTIC SHUTTER SYSTEMS, INC., METAMORA PRODUCTS CORPORATION, METAMORA PRODUCTS CORPORATION OF ELKLAND, WAMCO CORPORATION, BUILDERS EDGE, INC., COMACO, INC., each as a Guarantor By /s/ Steven G. Stewart ---------------------------------- Name: Steven G. Stewart Title: Vice President, Finance NYDOCS03/768241.1 Headwaters - First Lien Amendment No. 3 EX-99.1 3 ex991form8k052705.txt PRESS RELEASE DATED MAY 27, 2005 NEWS BULLETIN RE: Headwaters Incorporated FROM: 10653 South River Front Parkway, Suite 300 South Jordan, UT 84095 FINANCIAL (801) 984-9400 RELATIONS BOARD NYSE: HW - -------------------------------------------------------------------------------- FOR FURTHER INFORMATION AT THE COMPANY: AT FINANCIAL RELATIONS BOARD: Sharon Madden Tricia Ross Director of Investor Relations Analyst Contact (801) 984-9400 (617) 520-7064 FOR IMMEDIATE RELEASE: MAY 27, 2005 HEADWATERS INCORPORATED REPAYS $50 MILLION OF ITS SENIOR SECURED SECOND LIEN DEBT SOUTH JORDAN, UTAH, MAY 27, 2005 - HEADWATERS INCORPORATED (NYSE: HW), announced today that it has repaid $50 million of its senior secured 2nd lien debt reducing future interest expense by as much as $4.2 million per year, or approximately $0.05 per share. The early prepayment reduces Headwaters' 2nd lien debt balance to $50 million from the original amount of $150 million. The interest rate on Headwaters' 2nd lien debt is 550 basis points above LIBOR, compared to the interest rate on Headwaters' first lien debt of 225 basis points above LIBOR. The Company paid a 3% premium in connection with this early repayment and will immediately expense approximately $1.3 million of debt acquisition costs as a result of this early repayment. As previously announced, Headwaters reached a legal settlement in May and received an initial payment of $50 million, which was used for the debt repayment. Since September 30, 2004, Headwaters has repaid approximately $300 million of its debt, resulting in expected indebtedness of approximately $675 million. About Headwaters Incorporated Headwaters Incorporated is a world leader in creating value through innovative advancements in the utilization of natural resources. Headwaters is a diversified growth company providing products, technologies and services to the energy, construction and home improvement industries. Through its alternative energy, coal combustion products, and building products businesses, the Company earns a growing revenue stream that provides the capital needed to expand and acquire synergistic new business opportunities. Forward Looking Statements Certain statements contained in this report are forward-looking statements within the meaning of federal securities laws and Headwaters intends that such forward-looking statements be subject to the safe-harbor created thereby. Forward-looking statements include Headwaters' expectations as to the managing and marketing of coal combustion products, the production and marketing of -more- building materials and products, the licensing of technology and chemical sales to alternative fuel facilities, the receipt of product sales, license fees and royalty revenues, the development, commercialization, and financing of new technologies and other strategic business opportunities and acquisitions, and other information about Headwaters. Such statements that are not purely historical by nature, including those statements regarding Headwaters' future business plans, the operation of facilities, the availability of tax credits, the availability of feedstocks, and the marketability of the coal combustion products, building products, and synthetic fuel, are forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995 regarding future events and our future results that are based on current expectations, estimates, forecasts, and projections about the industries in which we operate and the beliefs and assumptions of our management. Actual results may vary materially from such expectations. Words such as "expects," "anticipates," "targets," "goals," "projects," "believes," "seeks," "estimates," variations of such words, and similar expressions are intended to identify such forward-looking statements. Any statements that refer to projections of our future financial performance, our anticipated growth and trends in our businesses, and other characterizations of future events or circumstances, are forward-looking. In addition to matters affecting the coal combustion product, alternative fuel, and building products industries or the economy generally, factors which could cause actual results to differ from expectations stated in forward-looking statements include, among others, the factors described in the captions entitled "Forward-looking Statements" and "Risk Factors" in Item 7 in Headwaters' Annual Report on Form 10-K for the fiscal year ended September 30, 2004, Quarterly Reports on Form 10-Q, and other periodic filings and prospectuses. Although Headwaters believes that its expectations are based on reasonable assumptions within the bounds of its knowledge of its business and operations, there can be no assurance that our results of operations will not be adversely affected by such factors. Unless legally required, we undertake no obligation to revise or update any forward-looking statements for any reason. Readers are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date of this report. Our internet address is www.headwaters.com. There we make available, free of charge, our annual report on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K and any amendments to those reports, as soon as reasonably practicable after we electronically file such material with, or furnish it to, the SEC. Our reports can be accessed through the investor relations section of our web site. -----END PRIVACY-ENHANCED MESSAGE-----