FIRST AMENDMENT TO MURABAHA FACILITY AGREEMENT Dated as of June 22, 2006
Exhibit 10.24
Execution
Copy
FIRST AMENDMENT TO MURABAHA FACILITY AGREEMENT
Dated as of June 22, 2006
Dated as of June 22, 2006
This FIRST AMENDMENT TO MURABAHA FACILITY AGREEMENT (this “Amendment”) is between TCH
FUNDING CORP. (“TCH”) and TENSAR HOLDINGS, INC. (“Tensar Holdings”).
PRELIMINARY STATEMENTS:
A. Tensar Holdings, TCH, Arcapita Investment Funding Limited and AIA Limited entered into a
Murabaha Facility Agreement, dated as of October 31, 2005 (the “Tensar Holdings Commodities
Purchase Agreement”); capitalized terms used and not otherwise defined herein shall have the
meanings ascribed to such terms in the Tensar Holdings Commodities Purchase Agreement); and
B. Tensar Holdings has requested that TCH amend the Tensar Holdings Commodities Purchase
Agreement, in connection with the acquisition by Tensar Holdings of The Tensar Group Limited.
NOW, THEREFORE, in consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Amendments to Tensar Holdings Commodities Purchase Agreement. Subject to
the satisfaction of the conditions set forth in Section 2 hereof:
(a) The definition of “Facility Amount”set forth in Section 2.1 of the Tensar
Holdings Commodities Purchase Agreement is hereby amended by replacing the dollar amount
“$52,500,000” with the dollar amount “$69,000,000”.
(b) Section 3.3 of the Tensar Holdings Commodities Purchase Agreement is hereby
amended and restated in its entirety as follows:
“(a) Any and all payments by Tensar Holdings to or for the account of TCH
hereunder or under any other Murabaha Document shall be made free and clear of and
without deduction for any and all present or future taxes, duties, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding taxes imposed on TCH’s net income, and franchise taxes imposed on it, by
the jurisdiction under the laws of which TCH is organized or any political
subdivision thereof (all such non-excluded taxes, duties, levies, imposts,
deductions, charges, withholdings, and liabilities being hereinafter referred to as
“Taxes”). If Tensar Holdings shall be required by law to deduct or withhold any
Taxes from or in respect of any sum payable under this Agreement or any other
Murabaha Document to TCH, (i) the sum payable shall be increased as necessary so that
after making all required deductions and withholdings (including deductions and withholdings applicable to
additional sums payable under this Section 3.3) TCH receives an amount equal to the
sum it would have received had no such deductions been made, (ii) Tensar Holdings
shall make such deductions and withholdings, (iii) Tensar Holdings shall pay the full
amount deducted or withheld to the relevant taxation authority or other authority in
accordance with applicable law, and (iv) Tensar Holdings shall furnish to TCH the
original or a certified copy of a receipt evidencing payment thereof.
Notwithstanding the foregoing, taxes imposed on TCH’s net income, and any franchise
taxes imposed on it by the jurisdiction under the laws of which TCH is organized and
any political subdivision thereof shall be included as Taxes to the extent that any
such Taxes are reported or required by any taxing authority to be reported for income
tax purposes in a manner that is consistent with the intentions set forth in Section
8.10, including any costs and expenses incurred in defending the positions set forth
in Section 8.10 to any taxing authority, to the extent Tensar Holdings requests TCH
to defend such positions.”
“(b) In addition, Tensar Holdings agrees to pay any and all present or future
stamp or documentary taxes and any other excise or property taxes or charges or
similar levies that arise from any payment made under this Agreement or any other
Murabaha Document or from the execution or delivery of, or otherwise with respect to,
this Agreement or any other Murabaha Document (hereinafter referred to as “Other
Taxes”).”
“(c) Tensar Holdings shall indemnify TCH, within 10 days after written demand
therefor, for the full amount of any Taxes or Other Taxes paid or incurred by TCH, on
or with respect to any payment by or on account of any obligation of Tensar Holdings
hereunder or under any other Murabaha Document (including Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section so that
TCH receives an amount equal to the sum it would have received or retained net of tax
in the absence of any tax imposed on any indemnification payments pursuant to this
Section) and any penalties, interest and expenses arising therefrom or with respect
thereto, whether or not such Taxes or Other Taxes were correctly or legally imposed
or asserted by the relevant Governmental Authority. A certificate as to the amount
of such payment or liability delivered to Tensar Holdings by TCH shall be conclusive
absent manifest error. For the avoidance of doubt, the payments made pursuant to the
parenthetical in the first sentence of this Section 3.3(c) shall be deemed to be
included as Taxes. ”
“(d) As soon as practicable after any payment of Taxes or Other Taxes pursuant
to this Section to a taxing authority as opposed to direct payments to TCH, and in
any event within 30 days of any such payment being due, Tensar Holdings shall deliver
(or cause to be delivered) to TCH the original or a certified copy of a receipt
issued by such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory to
TCH.”
(c) Section 5.2 of the Tensar Holdings Commodities Purchase Agreement is amended to
replace the phrase “each of the other Tensar Parties” with the phrase “each of its Subsidiaries”.
(d) Section 5.3 of the Tensar Holdings Commodities Purchase Agreement is amended to
replace the phrase “each of the other Tensar Parties” with the phrase “each of its Subsidiaries”.
(e) Section 1 of Schedule 1 to the Tensar Holdings Commodities Purchase Agreement is
amended to add each of the following new defined terms in its proper alphabetical order:
“Luxco” shall mean TTC Holdings S.a.r.l., a company incorporated in
the Grand Duchy of Luxembourg.
“Luxco Commodities Purchase Agreement” shall mean the Luxco Murabaha
Facility Agreement, dated as of the Amendment Effective Date, by and between
Tensar Holdings, Luxco, TCO Funding Corp., and Credit Suisse, as
administrative agent, as the same may be amended, supplemented or otherwise
modified in accordance with the terms hereof.
“Luxco Commodities Purchase Facility” shall mean the Murabaha facility
provided for in the Luxco Commodities Purchase Agreement.
“Tensar Group Limited Acquisition” shall mean the acquisition by
Tensar Holdings pursuant to the Share Purchase Agreement, dated as of May 16,
2006 of all the Equity Interests in Tensar Group Limited, a company
incorporated under the laws of England and Wales from the existing
shareholders of Tensar Group Limited; the aggregate amount of consideration
for such acquisition is approximately $86,900,000.
“UK Guarantors” shall mean Tensar Group Limited, Tensar International
Limited, Tensar Manufacturing Limited and TTC UK Holdings Limited and each
other subsidiary of Luxco which provides a guarantee under the Luxco
Commodities Purchase Agreement.
(f) The definition of “Asset Sale” set forth in Schedule 1 to the Tensar Holdings
Commodities Purchase Agreement is hereby amended and restated as follows:
“Asset Sale” shall mean the sale, lease, sub-lease, license,
sub-license, sale and leaseback, assignment, conveyance, transfer, issuance or
other disposition (by way of merger, casualty, condemnation or otherwise) by
(x) any Tensar Party (other than Luxco and its subsidiaries) or any of the
Subsidiaries (other than Luxco and its subsidiaries) to any person (other than
Tensar or any US Guarantor) or (y) Luxco or any of its subsidiaries to any
person (other than Tensar or any subsidiary thereof which is a Guarantor) of
(a) any Equity Interests of any of the Subsidiaries or (b) any other assets of
any Tensar Party or any of the Subsidiaries, including Equity Interests of any
person that is not a Subsidiary; provided that any asset sale or series of related asset
sales described in clause (b) above having a value not in excess of $250,000
shall be deemed not to be an “Asset Sale” for purposes of this Agreement.
(g) The definition of “Change in Control” set forth in Schedule 1 to the Tensar
Holdings Commodities Purchase Agreement is hereby amended to amend and restate clause (d) therein
as follows:
“(d) Tensar Holdings shall at any time fail to own directly or indirectly,
beneficially and of record, 100% of each class of issued and outstanding
Equity Interests in Holdings, Holdings shall fail to own directly or
indirectly, beneficially and of record, 100% of each class of issued and
outstanding Equity Interests in Tensar, or Tensar shall fail to own, directly
or indirectly, beneficially and of record, 100% of each class of issued and
outstanding Equity Interests in Luxco, in each case, free and clear of all
Liens (except Liens created by the Guarantee and Collateral Agreement, the
Luxco Security Documents or by the Second Lien Commodities Purchase Facility
Documents);”
(h) The definition of “Commodities Purchase Facility Documents” set forth in Section
1 of Schedule 1 to the Tensar Holdings Commodities Purchase Agreement is amended and restated in
its entirety as follows:
“Commodities Purchase Facility Documents” shall mean (i) the
Commodities Purchase Agreement and all other instruments, agreements and
other documents evidencing or governing the foregoing or providing for
any Guarantee, Lien or other right in respect thereof, including the
Reimbursement Letter and the Security Documents, as the same may be
amended, supplemented or otherwise modified in accordance with the terms
hereof and (ii) the Luxco Commodities Purchase Agreement and all other
instruments, agreements and other documents evidencing or governing the
foregoing or providing for any Guarantee, Lien or other right in respect
thereof, including the Security Documents, as the same may be amended,
supplemented or otherwise modified in accordance with the terms hereof
(the “Luxco Commodities Purchase Facility Documents”).
(i) The definition of “Consolidated Financing Expense” set forth in Section 1 of
Schedule 1 to the Tensar Holdings Commodities Purchase Agreement is amended and restated in its
entirety as follows:
“Consolidated Financing Expense” shall mean, for any period, the sum
of (a) rent or profit expense or the Rental Rate portion of rent of Tensar
Holdings and its Subsidiaries for such period (including all Agreed Profit,
Supplemental Profit and the Rental Rate portion of Rent payable, agreed profit
under the this Agreement, Lease Agreement, the Commodities Purchase Agreement,
the Second Lien Commodities Purchase Agreement, the Luxco Commodities Purchase
Agreement and all commissions, discounts and other fees and charges
owed by Tensar and the Subsidiaries with respect to Murabaha Guarantee
Obligations, letters of credit and bankers’ acceptance financing), in each
case determined on a consolidated basis in accordance with GAAP, plus (b) any
profit expense or the rental rate portion of any rent of Tensar or any
Subsidiary
that is required to be capitalized rather than expensed for such
period in accordance with GAAP, plus (c) any other similar expense under GAAP.
(j) The definition of “Consolidated Fixed Charges” set forth in Section 1 of
Schedule 1 to the Tensar Holdings Commodities Purchase Agreement is amended and restated in its
entirety as follows:
“Consolidated Fixed Charges” shall mean, for any period, without
duplication, the sum of (a) Consolidated Financing Expense for such period
paid in cash, (b) the aggregate amount of scheduled Acquisition Cost payments
in respect of the Leased Assets or scheduled payments (whether or not made)
during such period to reduce the unpaid stated amount in respect of long term
Financing Obligations (including Purchase Price obligations under the Luxco
Commodities Purchase Facility (to the extent the Purchase Price for any
Metals Transaction thereunder is less than the Purchase Price for the
immediately preceding Metals Transaction), Capital Lease Obligations and
Synthetic Lease Obligations, but excluding payments applied to Purchase Price
under the Commodities Purchase Facility) of Tensar and its Subsidiaries
(other than payments made by Tensar or any of its Subsidiaries to Tensar or
another Subsidiary), (c) Capital Expenditures for such period, less Capital
Expenditures incurred in connection with the new BX geogrid manufacturing
line in Morrow, Georgia, and (d) the aggregate amount of Taxes paid in cash
(net of refunds received with respect to such Taxes) payable by Tensar and
its Subsidiaries during such period in accordance with Section 1.06(iii)(y)
of Schedule 4.
(k) The definition of “Current Assets” set forth in Schedule 1 to the Tensar
Holdings Commodities Purchase Agreement is hereby amended to replace the term “Tensar” with the
term “Tensar Holdings”.
(l) The definition of “Current Liabilities” set forth in Schedule 1 to the Tensar
Holdings Commodities Purchase Agreement is hereby amended to replace the term “Tensar” with the
term “Tensar Holdings”.
(m) The definition of “Excess Cash Flow” set forth in Schedule 1 to the Tensar
Holdings Commodities Purchase Agreement is hereby amended to amend and restate clause (iv) therein
as follows:
“(iv) permanent repayments of Financing Obligations (other than mandatory
prepayments of Acquisition Cost pursuant to the terms of the Put Option Letter
or mandatory prepayments of Purchase Price pursuant to Section 3.6 of the
Luxco Commodities Purchase Agreement) permitted hereunder made by Tensar and
its Subsidiaries during such fiscal year, but only to the extent that
such prepayments by their terms cannot be redrawn and do not occur in
connection with a refinancing of all or any portion of such Financing
Obligations and”
(n) The definition of “First Lien Leverage Ratio” set forth in Section 1 of Schedule
1 to the Tensar Holdings Commodities Purchase Agreement is amended and restated in its entirety as
follows:
“First Lien Leverage Ratio” shall mean, on any date, the ratio of (a)
Total Obligations with respect to the Lease Agreement, the Commodities
Purchase Agreement and the Luxco Commodities Purchase Agreement on such date
to (b) Consolidated EBITDA for the period of four consecutive fiscal quarters
most recently ended on or prior to such date, taken as one accounting period.
(o) The definition of “Material Obligations” set forth in Schedule 1 to the Tensar
Holdings Commodities Purchase Agreement is hereby amended by inserting the words “any Luxco
Commodity Purchase Facility Document,” immediately after the words “any Lease Document”.
(p) The definition of “Permitted Acquisition” set forth in Schedule 1 to theTensar
Holdings Commodities Purchase Agreement is hereby amended to replace the term “Section 4” in clause
(B) thereof with the term “Schedule 4”.
(q) The definition of “Related Financing Documents” set forth in Schedule 1 to the
Tensar Holdings Commodities Purchase Agreement is hereby amended by inserting the words “the Luxco
Commodity Purchase Facility Documents,” immediately after the words “the Lease Documents”.
(r) The definition of “wholly-owned subsidiary” set forth in Schedule 1 to the
Tensar Holdings Commodities Purchase Agreement is hereby amended to replace the term “Tensar” with
the term “Tensar Holdings”.
(s) Section 1.14 of Schedule 2 to the Tensar Holdings Commodities Purchase Agreement
is hereby amended to amend and restate the first sentence thereof as follows:
“Except with respect to the tax returns of The Tensar Group Limited for the
period ended September 30, 2002, each of the Tensar Parties and each of the
Subsidiaries has timely filed or timely caused to be filed all Federal, state,
local and foreign tax returns or materials required to be filed by it and all
such tax returns are correct and complete in all materal requests.”
(t) Section 1.19(a) of Schedule 2 to the Tensar Holdings Commodities Purchase
Agreement is hereby amended to amend and resated clause (i) therein as follows:
“(i) in the case of the Pledged Securities described therein when financing
statements in appropriate form are filed in the offices specified on Annex
19(a) to this Schedule 2 (as such schedule may be supplemented for any new
Subsidiary in connection with the execution of an Assumption Agreement (as
defined in the Guarantee and Collateral Agreement), or solely with respect
to certificated Pledged Securities which have elected to be treated as
securities under Article 8 of the UCC, when such Pledged Securities are
delivered to TCO and”
(u) Section 1.11 of Schedule 3 to the Tensar Holdings Commodities Purchase Agreement
is hereby amended by inserting the words “Luxco Commodities Purchase Agreement,” immediately after
the words “the Lease,”.
(v) Each of Section 1.01(d), Section 1.01(f), Section 1.01(j) and Section 1.01(k) of
Schedule 4 to the Tensar Holdings Commodities Purchase Agreement is hereby amended to replace the
number “2,500,000” appearing therein with the number “4,000,000”.
(w) Section 1.01(e) of Schedule 4 to the Tensar Holdings Commodities Purchase
Agreement is hereby amended and restated as follows:
“(e) Financing Obligations of Tensar under (i) the Lease Agreement and the
Commodities Purchase Facility in an aggregate stated amount (excluding profit
amount) not to exceed $192,000,000 less the amount of any prepayment
reductions in the amount of the Lease or Commodities Purchase Facility, (ii)
the Luxco Commodities Purchase Facility Agreement in an aggregate stated
amount (excluding profit amount) not to exceed $80,000,000 and Financing
Obligations of the Guarantors and the UK Guarantors under any Guarantees in
respect of such Financing Obligations and any Permitted Refinancing
Obligations in respect of any such Financing Obligations and (iii) of Tensar
and Tensar Holdings under the Second Lien Commodities Purchase Facility in
aggregate stated amount (excluding profit amount) not to exceed $84,000,000
and Financing Obligations of the Guarantors under any Guarantees in respect of
such Financing Obligations and any Permitted Refinancing Obligations in
respect of any such Financing Obligations;”
(x) Section 1.04(a) of Schedule 4 to the Tensar Holdings Commodities Purchase
Agreement is hereby amended to amend and restate clause (ii)(B) therein as follows:
“(B) the aggregate amount of Investments by the Tensar Parties (other than
Luxco and its subsidiaries) in Subsidiaries of Tensar that are not
Subsidiary Guarantors shall not exceed $14,000,000, at any time outstanding;
provided that the aggregate amount of Investments in Subsidiaries of
Tensar other than Luxco or the Luxco Subsidiary Guarantors shall not exceed
$4,000,000, at any time outstanding and”
(y) Section 1.04(m) of Schedule 4 to the Tensar Holdings Commodities Purchase
Agreement is hereby amended to replace the number “2,500,000” with the number “4,000,000”.
(z) Section 1.04 of Schedule 4 to the Tensar Holdings Commodities Purchase Agreement
is hereby amended (i) to delete the word “and” at the end of clause (l) thereof, (ii) reletter
clause (m) as clause (n) and (iii) insert the following new clause (m):
“(m) the Tensar Group Limited Acquisition; and”
(aa) Section 1.05(g) of Schedule 4 to the Tensar Holdings Commodities Purchase
Agreement is amended and restated as follows:
“(g) the purchase and sale of commodities by Tensar pursuant to the Second
Lien Commodities Purchase Agreement and the Commodities Purchase Facility
Agreement and the purchase and sale of commodities by Luxco under the Luxco
Commodities Purchase Agreement;”
(bb) Section 1.08 of Schedule 4 to the Tensar Holdings Commodities Purchase
Agreement is hereby amended to add the following new clause (d) at the end thereof:
“(d) With respect to Luxco, engage in any business activities or have any
assets or liabilities other than its ownership of the Equity Interests in
TTC UK Holdings Limited and liabilities incidental thereto, including its
liabilities pursuant to the Luxco Commodities Purchase Agreement.”
(cc) Section 1.10 of Schedule 4 to the Tensar Holdings Commodities Purchase
Agreement is amended and restated in its entirety as follows:
1.10 Capital Expenditures. Permit the aggregate amount of Capital
Expenditures made by Tensar and its Subsidiaries in any period set forth below to
exceed the amount set forth below for such period:
| Fiscal Year | Amount | |||
2006 |
$ | 25,000,000 | ||
2007 |
$ | 12,000,000 | ||
2008 and each fiscal year thereafter |
$ | 10,000,000 | ||
(ee) Section 4(c) of Schedule 6 to the Tensar Holdings Commodities Purchase Agreement is
hereby amended and restated in its entirety as follows:
“(c) Each party to this Agreement irrevocably consents to service of process
in the manner provided for notices in Section 8.1. Nothing in this Agreement
will affect the right of any party to this Agreement to serve process in any
other manner permitted by law.”
(ff) Each of Annex 1(c) to Schedule 1 to the Commodities Purchase Agreement, Annex 7 to
Schedule 4 to the Commodities Purchase Agreement, Annex 8 to Schedule 4 to the Commodities Purchase
Agreement and Annex 17 to Schedule 4 to the Commodities Purchase Agreement is hereby supplemented
to include the information set forth on Annex A with respect to such annex or schedule, as
applicable.
2. Conditions to Effectiveness. The effectiveness of the amendments
contained in Section 1 of this Amendment are conditioned upon satisfaction of the following
conditions precedent (the date on which all such conditions precedent have been satisfied being referred to herein
as the “Amendment Effective Date”):
(a) TCH shall have received counterparts of this Amendment signed by each of Tensar
Holdings and TCH;
(b) each of the representations and warranties in Section 3 below shall be true and
correct in all material respects on and as of the Amendment Effective Date; and
(c) TCH shall have received payment in immediately available funds of all expenses
incurred by TCH (including, without limitation, legal fees) that are then due and payable and
reimbursable under the Tensar Holdings Commodities Purchase Agreement and for which invoices have
been presented.
3. Representations and Warranties. Tensar Holdings represents and warrants
to TCH as follows:
(a) Authority. Tensar Holdings has the corporate or other organizational
power and authority to execute and deliver this Amendment and to perform its obligations hereunder
and under the Tensar Holdings Commodities Purchase Agreement (as amended hereby). The execution,
delivery and performance by Tensar Holdings of this Amendment and the Tensar Holdings Commodities
Purchase Agreement (as amended hereby) and the consummation by Tensar Holdings of the transactions
contemplated hereby and thereby have been duly authorized by all necessary corporate or other
organizational action of Tensar Holdings. No material consent or authorization of, filing with,
notice to, or other act by or in respect of, any Governmental Authority or any other person is
required in connection with the execution, delivery, performance, validity or enforceability of
this Amendment or the Tensar Holdings Commodities Purchase Agreement (as amended hereby), except
such as have been made or obtained and are in full force and effect.
(b) Enforceability. This Amendment has been duly executed and delivered on
behalf of Tensar Holdings. Assuming the conditions precedent in Section 5 of this Amendment have
been satisfied, each of this Amendment and the Tensar Holdings Commodities Purchase Agreement (as
amended hereby) (i) constitutes a legal, valid and binding obligation of Tensar Holdings
enforceable against Tensar Holdings in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
the enforcement of creditors’ rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law) and (ii) is in full force and effect.
Neither the execution or delivery of this Amendment by Tensar Holdings or the performance by Tensar
Holdings of its obligations under this Amendment or the Tensar Holdings Commodities Purchase
Agreement (as amended hereby), will adversely affect the validity, perfection or priority of TCH’s
Lien (for the ratable benefit of Secured Parties) on any of the Collateral or its ability to
realize thereon.
(c) Representations and Warranties. After giving effect to this Amendment,
the representations and warranties contained in the Tensar Holdings Commodities Purchase Agreement
(other than any such representations and warranties that, by their terms, are specifically made as
of a date other than the date hereof) are true and correct in all material respects on and as of
the date hereof as though made on and as of the date hereof; provided, that each of Schedule
4.7(a) to the Guarantee and Collateral Agreement, is hereby supplemented to include the information
set forth on Annex A with respect to such schedule.
(d) No Conflicts. Neither the execution and delivery of this Amendment, nor
the consummation of the transactions contemplated hereby, nor the performance of and compliance
with the terms and provisions hereof, thereof or of the Tensar Holdings Commodities Purchase
Agreement (as amended hereby) by Tensar Holdings will, at the time of such performance, (i) violate
(x) any provision of law, statute, rule or regulation, or of the certificate or articles of
incorporation or other constitutive documents or by-laws of Tensar Holdings or any Subsidiary, (y)
any order of any Governmental Authority or arbitrator or (z) any provision of any indenture,
agreement or other instrument to which Tensar Holdings or any Subsidiary is a party or by which any
of them or any of their property is or may be bound, (ii) be in conflict with, result in a breach
of or constitute (alone or with notice or lapse of time or both) a default under, or give rise to
any right to accelerate or to require the prepayment, repurchase or redemption of any obligation
under any such indenture, agreement or other instrument or (iii) result in the creation or
imposition of any Lien upon or with respect to any property or assets now owned or hereafter
acquired by Tensar Holdings or any Subsidiary (other than Liens created under the Tensar Holdings
Commodities Purchase Facility Documents).
(e) No Default. After giving effect to this Amendment, no event has
occurred and is continuing that constitutes a Default or Event of Default.
4. Reference to and Effect on the Tensar Holdings Commodities Purchase Facility
Documents.
(a) Upon and after the effectiveness of this Amendment, each reference in the Tensar
Holdings Commodities Purchase Agreement to “this Agreement”, “hereunder”, “hereof” or words of like
import referring to the Tensar Holdings Commodities Purchase Agreement, and each reference in the
other Tensar Holdings Commodities Purchase Facility Documents to the Tensar Holdings Commodities
Purchase Agreement (or “thereunder”, “thereof” or words of like import referring to the Tensar
Holdings Commodities Purchase Agreement), shall mean and be a reference to the Tensar Holdings
Commodities Purchase Agreement as amended hereby. This Amendment is a Tensar Holdings Commodities
Purchase Facility Document.
(b) Except as specifically amended by this Amendment, the Tensar Holdings
Commodities Purchase Facility Documents 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 Security Documents and all of the Collateral described therein do and shall continue
to secure the payment of all Financing Obligations under and as defined therein, in each case as
modified hereby.
(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 Secured Party
under any of the Tensar Holdings Commodities Purchase Facility Documents, or, except as expressly
provided herein, constitute a waiver or amendment of any provision of any of the Tensar Holdings
Commodities Purchase Facility Documents.
5. 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.
6. 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.
7. Governing Law. This Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York.
8. Reaffirmation. Tensar Holdings hereby reaffirms and admits the validity
and enforceability of the Tensar Holdings Commodities Purchase Facility Documents, all of Tensar
Holdings’ obligations thereunder and all Liens and security interests created thereunder and agrees
and admits that such Liens secure the Obligations and as of the date hereof, it has no defenses to,
or offsets or counterclaim against, any of its Obligations to, or the Liens and security interests
created in favor of, any Secured Party under the Tensar Holdings Commodities Purchase Facility
Documents of any kind whatsoever.
[Signature pages follow]
Execution
Copy
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.
| TCH FUNDING CORP. |
||||
| By: | /s/ Xxxx X. XxXxxx | |||
| Name: | Xxxx X. XxXxxx | |||
| Title: | Vice President | |||
| TENSAR HOLDINGS, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxx | |||
| Name: | Xxxxxx X. Xxxx | |||
| Title: | CEO and President | |||
