SECOND AMENDMENT TO TENSAR HOLDINGS COMMODITIES PURCHASE FACILITY DOCUMENTS Dated as of July 26, 2007
Exhibit 10.30
EXECUTION COPY
SECOND AMENDMENT TO TENSAR HOLDINGS COMMODITIES PURCHASE
FACILITY DOCUMENTS
Dated as of July 26, 2007
FACILITY DOCUMENTS
Dated as of July 26, 2007
This
SECOND AMENDMENT TO TENSAR HOLDINGS COMMODITIES PURCHASE FACILITY DOCUMENTS (this “Amendment”) is between TCH FUNDING CORP. (“TCH”), TENSAR CORPORATION (f/ka Tensor
Holdings, Inc.) (“Tensar Holdings”), ARCAPITA INVESTMENT FUNDING LIMITED (“AIFL”) and AIA
LIMITED (“AIA”).
PRELIMINARY STATEMENTS:
A. Tensar, TCH, AIFL, AIA and the Agent entered into a Murabaha Facility Agreement,
dated as of October 31, 2005 (as amended, supplemented or otherwise modified from time to
time,
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 has requested that TCH amend the Tensar Holdings Commodities Purchase
Agreement and certain related documentation in connection with a reorganization of the Tensar
Parties.
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) Schedule 1 of the Tensar Holdings Commodities Purchase Agreement is
hereby amended to add the following new defined term in appropriate alphabetical order:
“Tensar International” shall mean Tensar
International Corporation, a Delaware corporation.
“US Guarantors” shall mean Tensar Holdings
and each of its Domestic Subsidiaries which has
provided a Guarantee with respect to the
Obligations.
(b) 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) to any person (other than
Tensar or any US Guarantor) or (y) Luxco or any of
its subsidiaries to any person (other than Tensar
Holdings, Tensar or any subsidiary of Tensar
Holdings 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.
(c) The definition of “Change in Control” set forth on Schedule 1 of 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 Holdings 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);”
(d) The definition of “Consolidated Fixed Charges” set forth in Schedule 1 of the
Tensar Holdings Commodities Purchase Agreement is hereby amended and restated 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
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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
Holdings and its Subsidiaries (other than payments
made by Tensar Holdings or any of its Subsidiaries to
Tensar Holdings 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 Holdings and its Subsidiaries during such
period in accordance with Section 1.06(iii)(y) of
Schedule 4.
(e) The definition of “Consolidated Net Income” set forth in Schedule 1 of the Tensar
Holdings Commodities Purchase Agreement is hereby amended and restated as follows:
“Consolidated Net Income” shall mean, for
any period, the net income or loss of Tensar Holdings and
its Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP;
provided that there shall be excluded (a) the
income of any Subsidiary of Tensar Holdings to the extent
that the declaration or payment of dividends or similar
distributions by such Subsidiary of that income is
not at the time permitted by operation of the terms
of any agreement, instrument, or Requirement
of Law applicable to such Subsidiary, (b) the income or
loss of any person accrued prior to the date it becomes a
Subsidiary of Tensar Holdings or is merged into or
consolidated with Tensar Holdings or any of its
Subsidiaries or the date that such person’s assets are
acquired by Tensar Holdings or any of its Subsidiaries,
(c) the income of any person (other than a Subsidiary of
Tensar Holdings) in which any other person (other
than Tensar Holdings or a wholly owned Subsidiary of
Tensar Holdings or any director holding qualifying shares
in accordance with applicable law) has an interest,
except to the extent of the amount of dividends or other
distributions actually paid to Tensar Holdings or a
wholly owned Subsidiary thereof by such person during
such period, (d) any gains attributable to sales of
assets out of the ordinary course of business and (e)
the Consolidated Net Income of the Merex Companies
shall be excluded.
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(f) The definition of “Excess Cash Flow” set forth on Schedule 1 of the Tensar Holdings
Commodities Purchase Agreement is hereby amended and restated as follows:
“Excess Cash Flow” shall mean, for any fiscal
year of Tensar Holdings, the excess of (a) the sum,
without duplication, of (i) Consolidated EBITDA for
such fiscal year and (ii) the decrease, if any, in
Current Assets minus Current Liabilities from the
beginning to the end of such fiscal year over (b) the
sum, without duplication, of (i) the amount of any
Taxes payable (net of refunds received with respect
to such Taxes in such fiscal year) in cash by
Holdings and its Subsidiaries with respect to such
fiscal year, (ii) Consolidated Financing Expense for
such fiscal year payable in cash, (iii) Capital
Expenditures made in cash in accordance with Section
1.10 of Schedule 4 during such fiscal year, except to
the extent financed with the proceeds of Financing
Obligations, equity issuances, casualty proceeds,
condemnation proceeds or other proceeds that would
not be included in Consolidated EBITDA, (iv)
permanent repayments of Financing Obligations (other
than mandatory prepayments of Acquisition Cost
pursuant to the terms of the Lease Agreement)
permitted hereunder made by Tensar Holdings 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 (v) the increase, if any, in Current
Assets minus Current Liabilities from the beginning
to the end of such fiscal year.
(g) The definition of “Existing Credit Facility” set forth on Schedule 1 of the Tensar
Holdings Commodities Purchase Agreement is hereby amended and restated as follows:
“Existing Credit Facility” shall mean the
credit facility of Holdings under the Second Amended
and Restated Credit Agreement, dated as of December
24, 2004, among Holdings, certain subsidiaries of
Holdings, General Electric Capital Corporation, as a
lender and as agent for all lenders and the other
lenders party thereto.
(h) The definition of “Existing Obligations set forth on Schedule 1 of the Tensar
Holdings Commodities Purchase Agreement is hereby amended and restated as follows:
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“Existing Obligations” shall mean (1) the
Existing Credit Facility, (ii) the Mezzanine Credit
Agreement, dated as of December 22, 2004, among
Tensar, certain subsidiaries of Holdings and the
lenders named therein and (iii) the PIK Notes issued
pursuant to the PIK Note Purchase Agreement, dated
as of December 22, 2004, as amended, among Tensar,
Holdings, Xxxxxx Xxxxx PCG, Inc., American Capital
Strategies, Ltd. and Xxxxx Event Trading Ltd.
(i) The definition of “Holdings” set forth in Schedule 1 of the Tensar Holdings
Commodities Purchase Agreement is hereby amended and restated as follows:
“Holdings” shall mean Tensar Holdings
Corporation, a Delaware corporation, formerly known
as The Tensar Corporation.
(j) Clause (i) of the definition of “Material Obligations” set forth on Schedule 1 of
the Tensar Holdings Commodities Purchase Agreement is hereby amended and restated as follows:
“(i) all Financing Obligations of the Tensar Parties
with respect to any Lease Document, any Commodities
Purchase Facility Document or any Second Lien
Commodities Purchase Facility Document and”
(k) The definition of “Subsidiary Gaurantor” set forth in Schedule 1 of the Tensar
Holdings Commodities Purchase Agreement is hereby amended and restated as follows:
“Subsidiary Gaurantor” shall mean,
initially, each Subsidiary of Holdings specified on
Annex 1(b) of this Schedule 1, and, at any time
thereafter, shall include each other Subsidiary of
Holdings that is not an Excluded Foreign Subsidiary.
(l) The definition of “Tensar Holdings” set forth in Schedule 1 of the Tensar Holdings
Commodities Purchase Agreement is hereby amended and restated as follows:
“Tensar Holdings” shall mean Tensar
Corporation, a Delaware corporation, formerly known
as Tensar Holdings, Inc.
(m) The definition of “Tensar” set forth in Schedule 1 of the Tensar Holdings Commodities
Purchase Agreement is hereby amended and restated as follows:
“Tensar” shall mean Tensar Corporation, LLC
a Georgia limited liability company, formerly known
as The Tensar Corporation, LLC.
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(n) The definition of “Tensar Parties” set forth in Schedule 1 of the Tensar Holdings
Commodities Purchase Agreement is hereby amended and restated as follows:
“Tensar Parties” shall mean Tensar
Corporation, a Delaware corporation (f/ka Tensar
Holdings, Inc.), Tensar Holdings Corporation (f/k/a
The Tensar Corporation) and each Subsidiary that is
or becomes a party to a Murabaha Document,
Lease/Purchase Facilities Document, Second Lien
Commodities Purchase Facility Document or Tensar
Holdings Commodities Purchase Facility Document.
(o) The definition of “Permitted Acquisition” set forth on Schedule 1 of the Tensar Holdings
Commodities Purchase Agreement is hereby amended by (i) replacing the phrase “Tensar or any of its
Subsidiaries” in first line thereof with the phrase “any subsidiary of Holdings” and (ii)
inserting the word “Holdings” immediately after the word “Tensar” in clause (ii) (B) and in clause
(iv) of the proviso therein.
(p) Section 1.08 of Schedule 2 of the Tensar Holdings Commodities Purchase Agreement is
hereby amended to amend and restate the last sentence therein as follows:
“Holdings is a wholly owned subsidiary of Tensar
Holdings and Tensar is an indirect wholly owned
subsidiary of Holdings.”
(q) Section 1.01(c) of Schedule 4 of the Tensar Holdings Commodities Purchase Agreement is
hereby amended and restated as follows:
“(c) unsecured intercompany Financing Obligations
(i) of Holdings and its Subsidiaries to the extent
permitted by Section 1.04(a) of this Schedule 4 and
(ii) of Tensar and its subsidiaries to the extent
permitted by Section 1.04(1) of this Schedule 4, so
long, in each case, as such Financing Obligations
are subordinated to the Obligations pursuant to the
Affiliate Subordination Agreement or such other
subordination agreement as is reasonably acceptable
to TCH and any interest of any Guarantor thereunder
is pledged to TCH pursuant to the Security
Documents;”
(r) Section 1.01(f) of Schedule 4 of the Tensar Holdings Commodities Purchase Agreement is
hereby amended and restated as follows:
“(f) Financing Obligations of any person that
becomes a Subsidiary of Tensar Holdings after the
date hereof; provided that (i) such
Financing Obligations exist at the time such person
becomes a
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Subsidiary and is not created in contemplation of or
in connection with such person becoming a
Subsidiary, (ii) immediately before and after such
person becomes a Subsidiary, no Default or Event of
Default shall have occurred and be continuing and
(iii) the aggregate principal amount of Financing
Obligations permitted by this Section 1.01(f) shall
not exceed $4,000,000 at any time outstanding;”
(s) Section 1.02(a) of Schedule 4 of the Tensar Holdings Commodities Purchase Agreement
is hereby amended and restated as follows:
“(a) Liens on property or assets of Tensar Holdings
and its Subsidiaries existing on the date hereof and
set forth in Annex 2 of this Schedule 4;
provided that such Liens shall secure only
those obligations which they secure on the date
hereof and refinancings, extensions, renewals and
replacements thereof permitted hereunder;”
(t) Section 1.02(c) of Schedule 4 of the Tensar Holdings Commodities Purchase Agreement
is hereby amended and restated as follows:
“(c) any Lien securing Financing Obligations
permitted by Section 1.01(f) of this Schedule 4
existing on any property or asset prior to the
acquisition thereof by Tensar Holdings or any
Subsidiary; provided that (i) such Lien is
not created in contemplation of or in connection
with such acquisition, (ii) such Lien does not apply
to any other property or assets of Tensar Holdings
or any of the Subsidiaries and (iii) in the case of
Mortgaged Property, such Lien does not (A)
materially interfere with the use, occupancy and
operation of any Mortgaged Property, (B) materially
reduce the fair market value of such Mortgaged
Property but for such Lien or (C) result in any
material increase in the cost of operating,
occupying or owning or leasing such Mortgaged
Property;”
(u) Section 1.02(h) of Schedule 4 of the Tensar Holdings Commodities Purchase Agreement
is hereby amended and restated as follows:
“(h) zoning restrictions, easements, rights-of-way,
restrictions on use of real property and other
similar encumbrances incurred in the ordinary course
of business which, in the aggregate, are not
substantial
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in amount and do not materially detract from the
value of the property subject thereto or interfere
with the ordinary conduct of the business of Tensar
Holdings or any of its Subsidiaries or the ability
of Tensar Holdings or any of its Subsidiaries to
utilize such property for its intended purpose;”
(v) Section 1.02(i) of Schedule 4 of the Tensar Holdings Commodities Purchase Agreement
is hereby amended and restated as follows:
“(i) Liens securing Financing Obligations, in an
amount not to exceed $4,000,000 at any time
outstanding, incurred to finance the acquisition (or
construction) of fixed or capital assets by Tensar
Holdings or any of its Subsidiaries;
provided that (i) such security interests
are incurred, and the Financing Obligations secured
thereby is created, within 90 days after such
acquisition (or construction), (ii) such Liens do
not at any time encumber any property other than the
property financed by such Financing Obligations and
(iii) the amount of Financing Obligations secured
thereby is not increased;”
(w) Section 1.02(k) of Schedule 4 of the Tensar Holdings Commodities Purchase Agreement
is hereby amended and restated as follows:
“(k) any interest or title of a lessor or sublessor
under any lease entered into by Tensar Holdings or
any of its Subsidiaries in the ordinary course of
business and covering only the assets so leased;”
(x) Section 1.04(a) of Schedule 4 of the Tensar Holdings Commodities Purchase Agreement
is hereby amended and restated as follows:
“(a) (i) Investments by Tensar Holdings, Holdings,
Tensar International, Tensar and the Subsidiaries
existing on the date hereof in the Equity Interests
of Holdings, Tensar International, Tensar and the
Subsidiaries and (ii) additional Investments by
Xxxxxx Xxxxxxxx, Xxxxxxxx, Xxxxxx Xxxxxxxxxxxxx,
Xxxxxx and the Subsidiaries in the Equity Interests
of Holdings and its subsidiaries; provided
that if such Investment shall be in the form of a
loan or advance, such loan or advance shall be
unsecured and subordinated to the Obligations
pursuant to an Affiliate Subordination Agreement;”
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(y) Section 1.04(l)(i) of Schedule 4 of the Tensar Holdings Commodities Purchase
Agreement is hereby amended and restated as follows:
“(i) to Tensar Holdings to the extent that Holdings
may pay dividends to Tensar Holdings pursuant to
Section 1.06 of this Schedule 4 (and in lieu of
paying such dividends) and”
(z) Section 1.04(m) of Schedule 4 of the Tensar Holdings Commodities Purchase Agreement
is hereby amended and restated as follows:
“(m) in addition to Investments permitted by
clauses (a) through (1) above, additional
Investments by Holdings and its Subsidiaries so
long as the aggregate amount invested, loaned or
advanced pursuant to this clause (m) (determined
without regard to any writedowns or write-offs of
such investments, loans and advances) does not
exceed $4,000,000 in the aggregate.”
(aa) Section 1.05(a) of Schedule 4 of the Tensar Holdings Commodities Purchase Agreement
is hereby amended and restated as follows:
“(a) the sale by Tensar Holdings and its
subsidiaries of inventory in the ordinary course of
business;”
(bb) Section 1.05(b) of Schedule 4 of the Tensar Holdings Commodities Purchase Agreement
is hereby amended and restated as follows:
“(b) the sale or discount by Tensar Holdings or any
of its subsidiaries in each case without recourse
and in the ordinary course of business of overdue
accounts receivable arising in the ordinary course
of business, but only in connection with the
compromise or collection thereof consistent with
customary industry practice (and not as part of any
bulk sale or financing transaction);”
(cc) Section 1.05(h) of Schedule 4 of the Tensar Holdings Commodities Purchase Agreement
is hereby amended and restated as follows:
“(h) if at the time thereof and immediately after
giving effect thereto no Event of Default or Default
shall have occurred and be continuing, (w) the
merger or consolidation of any wholly owned
subsidiary of Holdings into or with Holdings in a
transaction in which Holdings is the surviving
corporation, (x) the merger or consolidation
of any wholly owned
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subsidiary of Holdings into or with any other wholly
owned subsidiary of Holdings in a transaction in
which the surviving entity is a wholly owned
Subsidiary of Holdings and no person other than
Holdings or a wholly owned subsidiary receives any
consideration (provided that if any party to
any such transaction is (A) a Tensar Party, the
surviving entity of such transaction shall be a
Tensar Party and (B) a Domestic Subsidiary, the
surviving entity of such transaction shall be a
Domestic Subsidiary), (y) Permitted Acquisitions by
Holdings or any of its subsidiaries (otherwise
permitted by Section 1.04(h) of this Schedule 4), and
(z) the sale, lease, sub-lease, license, sub-license
or other disposition of any part of its business,
assets or property (except any Equity Interests of
Tensar Holdings) so long as (i) such sale, lease,
sub-lease, license, sub-license or other disposition
is for consideration at least 80% of which is cash
(and no portion of the remaining consideration shall
be in the form of Financing Obligations of Holdings
or any of its Subsidiaries), (ii) such consideration
is at least equal to the fair market value of the
assets being sold, transferred, leased, licensed or
disposed of and (iii) the fair market value of all
assets sold, transferred, leased, licensed or
disposed of pursuant to this clause (z) shall not
exceed $40,000,000 in the aggregate.”
(dd) Section 1.06(a) of Schedule 4 of the Tensar Holdings Commodities Purchase Agreement
is hereby amended and restated as follows:
“(a) Declare or make, or agree to declare or make,
directly or indirectly, any Restricted Payment
(including pursuant to any Synthetic Purchase
Agreement), or incur any obligation (contingent or
otherwise) to do so; provided,
however, that (i) any wholly-owned
Subsidiary of Holdings may declare and pay dividends
or make other distributions to its equity holders,
(ii) so long as no Event of Default or Default shall
have occurred and be continuing or would result
therefrom, Holdings may make distributions to Tensar
Holdings so that Tensar Holdings may, repurchase its
Equity Interests owned by employees of Tensar
Holdings or the Subsidiaries or make payments to
employees of Tensar Holdings or the Subsidiaries
upon termination of employment in connection with
the exercise of stock options, stock
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appreciation rights or similar equity incentives or
equity based incentives pursuant to management
incentive plans or in connection with the death or
disability of such employees in an aggregate amount
not to exceed $2,000,000 in any fiscal year and (iii)
Holdings may make Restricted Payments to Tensar
Holdings (x) in an amount not to exceed, when taken
together with the aggregate amount of all loans or
advances made pursuant to Section 1.04(1) of this
Schedule 4 for such purpose, $350,000 in any fiscal
year to the extent necessary to pay general corporate
and overhead expenses incurred by Tensar Holdings in
the ordinary course of business and (y) in an amount
necessary to pay the Tax liabilities of Tensar
Holdings directly attributable to (or arising as a
result of) the operations of Holdings and its
Subsidiaries; provided that (A) the amount of
such dividends pursuant to clause (iii)(y) shall not
exceed the amount that Holdings and its Subsidiaries
would be required to pay in respect of United States
Federal, State and local Taxes were Holdings and its
Subsidiaries to pay such Taxes as stand-alone
taxpayers and (B) all Restricted Payments made to
Tensar Holdings pursuant to clause (iii) shall be
used by Tensar Holdings for the purpose specified
herein within 20 days of the receipt thereof and (iv)
Tensar may make restricted Payments to Tensar
International and Tensar International may make
Restricted Payments to Holdings and Holdings may make
Restricted Payments to Tensar Holdings in any amount
provided Tensar Holdings immediately pays such amount
to TCH pursuant to the terms of this Agreement.
(ee) Section 1.07 of Schedule 4 of the Tensar Holdings Commodities Purchase Agreement is
hereby amended and restated as follows:
“Except for transactions by or among Tensar Parties
and except as set forth on Annex 7 to this Schedule
4, sell or transfer any property or assets to, or
purchase or acquire any property or assets from, or
otherwise engage in any other transactions with, any
of its Affiliates, except that (a) Tensar Holdings
and any of its subsidiaries may engage in any of the
foregoing transactions in the ordinary course of
business at prices and on terms and conditions not
less favorable to Tensar Holdings or such subsidiary
than could be obtained on an arm’s-length basis from
unrelated
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third parties, (b) Restricted Payments may be made
to the extent provided in Section 1.06 of this
Section 4 and (c) if no Default or Event of Default
has occurred and is continuing, Holdings may pay to
the Sponsor or its Affiliates (i) an annual
management fee in an amount not to exceed $1,000,000
per year and (ii) deferred merger and acquisition
fees earned in connection with the Acquisition, in
an amount not to exceed $5,775,000 in the
aggregate.”
(ff) Section 1.08(a)(ii) of Schedule 4 of the Tensar Holdings Commodities Purchase
Agreement is hereby amended and restated as follows:
“(ii) with respect to Holdings, engage in any
business activities, other than the business
conducted by it as of the date hereof, or have any
assets or liabilities other than its ownership of
the Equity Interest in Tensar International, Tensar
Polytechnologies, Inc., Geopier Foundation Company,
Inc., Geotechnical Reinforcement Company, Inc.,
North American Green, Inc. and liabilities
incidental thereto, including its liabilities
pursuant to the Lease/Purchase Facilities Documents
and the Second Lien Commodities Purchase Facility
Documents and liabilities consisting of
administrative expenses of Tensar International and
its Subsidiaries.”
(gg) Section 1.08(b) of Schedule 4 of the Tensar Holdings Commodities Purchase Agreement
is hereby amended and restated as follows:
“(b) With respect to the subsidiaries of Holdings,
engage at any time in any business or business
activity other than the business conducted by it as
of the date hereof and business activities
reasonably incidental thereto. Except as permitted
under this Agreement, no Tensar Party shall (i) make
any changes in any of its business objective,
purposes or operations that could reasonably be
expected to have or result in a Material Adverse
Effect, (ii) make any change in its capital
structure as described in Annex 8 to this Schedule 4
(other than as permitted or contemplated by Section
1.08(a)(i) of this Schedule 4) including the
issuance or sale of any shares of Equity Interests,
warrants or other securities convertible into Equity
Interests or any revision of the terms of its
outstanding Equity Interests (other than the
issuance or sale of Equity Interest in
connection with
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intercompany Investments otherwise permitted under
Section 1.04 of this Schedule 4); or (iii) amend its
charter or bylaws in a manner that would adversely
affect TCH or such Tensar Party’s duty or ability to
pay the Obligations.”
(hh) Section 1.08(c) of Schedule 4 of the Tensar Holdings Commodities Purchase Agreement t
is hereby amended and restated as follows:
“(c) Enter into any Hedging Agreement other than (a)
any such agreement or arrangement entered into in
the ordinary course of business and consistent with
prudent business practice to hedge or mitigate risks
to which Tensar Holdings or any of its Subsidiaries
is exposed in the conduct of its business or the
management of its liabilities or (b) any such
agreement entered into to hedge against fluctuations
in interest rates or currency incurred in the
ordinary course of business and consistent with
prudent business practice; provided that in
each case such agreements or arrangements shall not
have been entered into for speculative purposes.”
(ii) The first sentence of Section 1.10 of Schedule 4 of the Tensar Holdings
Commodities Purchase Agreement is hereby amended and restated as follows:
“Permit the aggregate amount of Capital
Expenditures made by Tensar Holdings and its
subsidiaries in any period set forth below to
exceed the amount set forth below for such period:”
2. Conditions to Effectiveness. The effectiveness of the amendments, additions and
modifications contained in this Amendment are conditioned upon satisfaction of each 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) the Agent and TCH shall have each received counterparts of this Amendment signed by each
of the Tensar Parties listed on the signature pages hereto, AIFL and AIA;
(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;
(c) the Agent, TCH, AIFL and AIA shall have each received payment in immediately available
funds of all expenses incurred by the Agent (including, without limitation, legal fees and
expenses) that are then due and payable and reimbursable under the Second Lien Commodities Purchase
Facility Documents and/or Tensar Holdings Commodities Purchase Facility Documents and for which
invoices have been presented; and
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(d) the Agent and TCH shall have received (i) an Assumption Agreement duly executed and
delivered by Tensar International, (ii) organizational documents of Tensar International,
certified by the Secretary of State of the State of Delaware, (iii) revised stock certificates
and stock powers of each of the Tensar Parties, to the extent necessary to secure and perfect the
equity interest thereof in connection with the reorganization, (iv) a legal opinion of King &
Spalding LLP in form and substance reasonably acceptable to Agent, (v) corporate resolutions of
each of the Tensar Parties party hereto authorizing the reorganization and confirming corporate
benefit in connection therewith, and (vi) such other documents, instruments and opinions,
including that of Luxembourg counsel, as reasonably requested by, and in form and substance
reasonably satisfactory to, the Agent.
3. Representations and Warranties. Tensar Holdings represents and warrants to
Agent and TCH as follows:
(a) Authority. Each Tensar Party party hereto has the corporate or other
organizational power and authority to execute and deliver this Amendment and to perform its
obligations hereunder and under each of the Tensar Holdings Commodities Purchase Facility
Documents, as applicable, amended. The execution, delivery and performance by each Tensar Party
party hereto of this Amendment and each of the Second Lien Commodities Purchase Facility Documents
and/or Tensar Holdings Commodities Purchase Facility Documents, each as amended and the
consummation by Tensar and Tensar Holdings of the transactions contemplated hereby and thereby
have been duly authorized by all necessary corporate or other organizational action of such
Person. 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 any of Second
Lien Commodities Purchase Facility Documents or Tensar Holdings Commodities Purchase Facility
Documents, 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
each Tensar Party that is party hereto. Assuming the conditions precedent in Section 2 of this
Amendment have been satisfied, this Amendment and each of the Second Lien Commodities Purchase
Facility Documents and the Tensar Holdings Facility Documents (i) constitutes a legal, valid and
binding obligation of each Tensar Party that is a party hereto or thereto, as applicable,
enforceable against such Tensar Party 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 any of the Guarantors, as
applicable, nor the performance by Tensar Holdings or the Guarantors of their respective
obligations under this Amendment or any of the Second Lien Commodities Purchase Facility Documents
or Tensar Holdings Commodities Purchase Facility Documents, each as amended, will adversely affect
the validity, perfection or priority of TCO’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 Lease/Purchase Facility Documents, the Luxco
Commodities Purchase Facility Documents, Second Lien Commodities Purchase Facility Documents
and the Tensar Holdings Commodities Purchase Facility Documents (other than any such
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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.
(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, thereof or of the Second Lien Commodities Purchase Facility Documents
and/or the Tensar Holdings Commodities Purchase Facility Documents, each as amended, by any Tensar
Party 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 or operating agreement of any Tensar Party 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 any Tensar Party 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 any
Tensar Party or any Subsidiary (other than Liens created under the Lease/Purchase Facility
Documents, the Luxco Commodities Purchase Facility Documents and the Second Lien 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.
(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 Purchaser 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.
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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 Purchaser under the Tensar Holdings Commodities Purchase Facility
Documents of any kind whatsoever.
[Signature pages follow]
16
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 CORPORATION (f/k/a Tensar Holdings, Inc.) |
||||
| By: | /s/ Xxxxxx X. Xxxx | |||
| Name: | Xxxxxx X. Xxxx | |||
| Title: | President and CEO | |||
| ARCAPITA INVESTMENT FUNDING LIMITED, a Cayman Islands limited liability company |
||||
| By: | /s/ Xxxxxxxx Xxxxxxxxx | |||
| Name: | Xxxxxxxx Xxxxxxxxx | |||
| Title: | DIRECTOR | |||
| AIA LIMITED, a Cayman Islands limited liability company |
||||
| By: | /s/ Xxxxxxxxxxx Xxxx | |||
| Name: | Xxxxxxxxxxx Xxxx | |||
| Title: | VICE-PRESIDENT | |||
