FIRST AMENDMENT TO SUBORDINATION AND INTERCREDITOR AGREEMENT Dated as of June 22, 2006
Exhibit 10.26
EXECUTION
COPY
FIRST AMENDMENT TO SUBORDINATION AND INTERCREDITOR AGREEMENT
Dated as of June 22, 2006
Dated as of June 22, 2006
This FIRST AMENDMENT TO SUBORDINATION AND INTERCREDITOR AGREEMENT (this
“Amendment”) is among TCH FUNDING CORP. (“TCH”), TENSAR HOLDINGS, INC. (“Tensar
Holdings”) and TCO FUNDING CORP. (“TCO”).
PRELIMINARY STATEMENTS:
A. TCH, Tensar Holdings and TCO entered into the Subordination and Intercreditor Agreement,
dated as of October 31, 2005 (as amended, supplemented or otherwise modified from time to time, the
“Subordination and Intercreditor Agreement”); capitalized terms used and not otherwise
defined herein shall have the meanings ascribed to such terms in the Subordination and
Intercreditor Agreement and, if note defined therein, in the First Lien Credit Agreement;
B. Tensar has requested that up to $90,000,000 in additional financing obligations be provided
under Lease/Purchase Facilities Documents (such Lease/Purchase Facilities Documents, as amended and
restated, and as amended, modified or otherwise supplemented from time to time, the “Amended
and Restated Lease/Purchase Facilities Documents” and collectively with the Second Lien
Commodities Purchase Facility Documents, the “Amended Senior Documents”); and
C. It is a condition precedent to the effectiveness of the Amended Senior Documents that TCH,
Tensar Holdings and TCO enter into this Amendment.
1. Amendments. Subject to the satisfaction of the conditions set forth in Section 3
hereof:
(a) Section 1 of the Subordination and Intercreditor Agreement is hereby amended to add the
following new defined terms in appropriate alphabetical order:
“Amendment Effective Date” shall mean June 22, 2006.
“Luxco Commodities Purchase Agreement” shall mean the
Luxco Murabaha Facility Agreement, dated as of the Amendment
Effective Date, among 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 thereof.
“Luxco”
shall mean TTC Holdings S.àr.x.x., a private
limited liability company (société a responsabilité limitée)
registered with the Luxembourg Register of Commerce and
Companies.
(b) The definition of “Lease/Purchase Facilities Documents” in Section 1 of the Subordination
and Intercreditor Agreement is hereby amended to insert the words “Luxco Commodities Purchase
Agreement,” immediately before the words “Lease Agreement”.
(c) The defined term “Senior Obligations” in Section 1 of the Subordination and Intercreditor
Agreement is hereby amended to delete the amount “$261,000,000” in section (b)(i) of such
definition, and to insert the amount “$351,000,000” in place thereof.
(d) Section 2.7 of the Subordination and Intercreditor Agreement is hereby amended to insert
the words “, Luxco Commodities Purchase Agreement” immediately following the words “Working Capital
Murabaha Facility Agreement”.
2. Confirmation and Consent. TCH and Tensar Holdings each hereby confirms that each
has consented to the terms of the Amended Senior Documents and that all extensions of credit
thereunder (including the additional extensions of credit provided thereunder) shall be Senior
Obligations, subject to the terms of the Subordination and Intercreditor Agreement, as amended
hereby.
3. Conditions to Effectiveness. The amendments contained in Section 1 of this
Amendment will become effective upon the receipt by Tensar Holdings, TCH and TCO of
counterparts of this Amendment signed by each of TCO, TCH and Tensar Holdings.
4. Reference
to and Effect on Subordination and Intercreditor Agreement.
(a) Upon and after the effectiveness of this Amendment, each reference in the Subordination
and Intercreditor Agreement to “this Agreement”, “hereunder”, “hereof or words of like import
referring to such Subordination and Intercreditor Agreement (or “thereunder”, “thereof or words of
like import referring to such Subordination and Intercreditor Agreement), shall mean and be a
reference to such Subordination and Intercreditor Agreement as amended hereby.
(b) Except as specifically amended by this Amendment, the Subordination and Intercreditor
Agreement is and shall continue to be in full force and effect and is hereby in all respects
ratified and confirmed.
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.
[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.
| TCO Funding Corp. | ||||||
| By: | /s/ Xxxx X. XxXxxx
Title: Vice President |
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| TCH Funding Corp. | ||||||
| By: | /s/ Xxxx X. XxXxxx
Title: Vice President |
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| Tensar Holdings, Inc. | ||||||
| By: | /s/ Xxxxxx X. Xxxx | |||||
Title: CEO and President |
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[FIRST
AMENDMENT TO TENSAR SUBORDINATION AND INTERCREDITOR AGREEMENT]
