FIRST AMENDMENT TO TCH SUBORDINATION AND INTERCREDITOR AGREEMENT Dated as of June 22, 2006
Exhibit 10.25
EXECUTION
COPY
FIRST AMENDMENT TO TCH SUBORDINATION AND INTERCREDITOR
AGREEMENT
Dated as of June 22, 2006
AGREEMENT
Dated as of June 22, 2006
This FIRST AMENDMENT TO TCH SUBORDINATION AND INTERCREDITOR AGREEMENT (this
“Amendment”) is by and among TCH FUNDING CORP., a Delaware corporation (“TCH”),
AMERICAN CAPITAL STRATEGIES, LTD. (“ACS”), AIG ANNUITY INSURANCE COMPANY, AMERICAN GENERAL LIFE
INSURANCE COMPANY, THE VARIABLE ANNUITY LIFE INSURANCE COMPANY and AMERICAN GENERAL LIFE AND
ACCIDENT INSURANCE COMPANY (collectively, “AIG” and together with ACS, the
“Subordinated Creditors”) in favor of Credit Suisse, in its capacity as administrative
agent under the Senior Credit Agreement (as hereinafter defined) (the “Senior Administrative
Agent”) and AMERICAN CAPITAL FINANCIAL SERVICES, INC., as agent under the Note Purchase
Agreement (as hereinafter defined) (“ACFS”). Capitalized terms used and not defined herein
shall have the meanings ascribed to such terms in the Tensar Holdings Subordination and
Intercreditor Agreement (as hereinafter defined).
PRELIMINARY STATEMENTS:
A. In connection with the transactions contemplated by the Lease/Purchase Facilities Documents
and the Second Lien Commodities Purchase Facility Documents, TCH, ACS, AIG, the Senior
Administrative Agent and ACFS entered into the TCH Subordination and Intercreditor Agreement, dated
as of October 31, 2005 (as amended, supplemented or otherwise modified from time to time, the
“TCH Subordination and Intercreditor Agreement”) and TCH, Tensar Holdings and TCO entered
into a Subordination and Intercreditor Agreement, dated as of October 31, 2005 (as amended,
supplemented or otherwise modified from time to time, the “Tensar Holdings Subordination and
Intercreditor Agreement”);
B. TCH, Tensar Holdings and TCO have agreed to amend the Tensar Holdings Subordination
and Intercreditor Agreement to provide, among other things, for an increase in the amount of
“Senior Obligations” (as defined therein); and
D. In connection with the amendment of the Tensar Holdings Subordination and
Intercreditor Agreement, the Senior Administrative Agent requires that the parties hereto enter
into this Amendment.
1. Amendment. Subject to the satisfaction of the conditions set forth in Section 2
hereof, the definition of “Tensar Holdings Subordination and Intercreditor Agreement” in Section 1
of the TCH Subordination and Intercreditor Agreement is hereby amended to insert the words “as the
same may be amended, supplemented or otherwise modified from time to time in accordance with the
terms of the Senior Documents and the Subordinated Documents” after the words “Exhibit B”.
2. Conditions to Effectiveness. This amendment will become effective upon receipt by
the Senior Administrative Agent of counterparts of this Amendment signed by each of TCH, ACS, AIG
and ACFS.
3. Reference to and Effect on the TCH Subordination and Intercreditor Agreement.
(a) Upon and after the effectiveness of this Amendment, each reference in the TCH
Subordination and Intercreditor Agreement to “this Agreement”, “hereunder”, “hereof or words of
like import referring to such TCH Subordination and Intercreditor Agreement (or “thereunder”,
“thereof or words of like import referring to such TCH Subordination and Intercreditor Agreement),
shall mean and be a reference to such TCH Subordination and Intercreditor Agreement as amended
hereby.
(b) Except as specifically amended by this Amendment, the TCH Subordination and Intercreditor
Agreement is and shall continue to be in full force and effect and is hereby in all respects
ratified and confirmed.
4. 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 and delivered
shall be deemed to be an original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this Amendment by facsimile
shall be effective as delivery of a manually executed counterpart of this Amendment, as the case
may be.
5. Severability. Any provision of this Amendment that is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction.
6. Governing Law. This Amendment shall be governed by, and construed in accordance
with, the laws of the State of New York.
[Signature pages follow]
2
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 written above.
| SUBORDINATED CREDITORS | ||||||
| AMERICAN CAPITAL STRATEGIES, LTD. | ||||||
| By: | /s/ Xxxxxxx X. XxxXxxxxx | |||||
| Title: Senior Vice President | ||||||
[FIRST AMENDMENT TO TCH SUBORDINATION AND INTERCREDITOR AGREEMENT]
| SUBORDINATED CREDITORS | ||||||
| AIG ANNUITY INSURANCE COMPANY | ||||||
| By: | /s/ Xxxxxxx X. Xxxxx
|
|||||
| Title: Managing Director | ||||||
| AMERICAN GENERAL LIFE INSURANCE COMPANY |
||||||
| By: | /s/ Xxxxxxx X. Xxxxx
|
|||||
| Title: Managing Director | ||||||
| THE VARIABLE ANNUITY LIFE INSURANCE COMPANY |
||||||
| By: | /s/ Xxxxxxx X. Xxxxx
|
|||||
| Title: Managing Director | ||||||
| AMERICAN GENERAL LIFE AND ACCIDENT INSURANCE COMPANY |
||||||
| By: | /s/ Xxxxxxx X. Xxxxx
|
|||||
| Title: Managing Director | ||||||
[FIRST AMENDMENT TO TCH SUBORDINATION AND INTERCREDITOR AGREEMENT]
| SENIOR CREDITORS: | ||||||
| CREDIT SUISSE, Cayman Islands Branch, as Administrative Agent |
||||||
| By: | /s/ Xxxx X’Xxxx
|
|||||
| Title: DIRECTOR | ||||||
| By: | /s/ Xxxxxx Xxxxx
|
|||||
| Title: ASSOCIATE | ||||||
[FIRST AMENDMENT TO TCH SUBORDINATION AND INTERCREDITOR AGREEMENT]
| SENIOR CREDITORS: | ||||||
| AMERICAN CAPITAL FINANCIAL SERVICES, INC. | ||||||
| By: | /s/ Xxxxxxx X. XxxXxxxxx | |||||
| Title: Senior Vice President | ||||||
[FIRST AMENDMENT TO TCH SUBORDINATION AND INTERCREDITOR AGREEMENT]
The undersigned hereby acknowledges and agrees to the foregoing terms and provisions.
| TCH FUNDING CORP. a Delaware corporation | ||||||
| By: | /s/ Xxxx X. XxXxxx
|
|||||
| Name: | Xxxx X. XxXxxx | |||||
| Title: | Vice President | |||||
[FIRST AMENDMENT TO TCH SUBORDINATION AND INTERCREDITOR AGREEMENT]
