Exhibit 10.22
EXECUTION COPY
FIRST AMENDMENT TO LEASE/PURCHASE FACILITIES DOCUMENTS
Dated as of June 22, 2006
This FIRST AMENDMENT TO
LEASE/PURCHASE FACILITIES DOCUMENTS (this “
Amendment ”) is among THE TENSAR CORPORATION
LLC (“ Tensar ”), TCO FUNDING CORP .
(“ TCO ”), and CREDIT SUISSE as
administrative agent (in such capacity, the “
Administrative Agent ”).
PRELIMINARY STATEMENTS :
A. Tensar, TCO and the Administrative
Agent entered into a Lease and License Financing Purchase Option
Agreement, dated as of October 31, 2005 (as amended,
supplemented or otherwise modified from time to time, the “
Lease Agreement ”) and Tensar, TCO, the Administrative
Agent and certain other parties thereto, entered into a Working
Capital Murabaha Facility Agreement, dated as of October 31,
2005 (as amended, supplemented or otherwise modified from time to
time, the “ Commodities Purchase Agreement ”);
capitalized terms used and not otherwise defined herein shall have
the meanings ascribed to such terms in the Lease Agreement, and, if
not defined therein, in the Commodities Purchase Agreement;
and
B. Tensar has requested that TCO
and the Administrative Agent amend the Lease Agreement, the
Commodities Purchase Agreement and certain related documentation in
connection with the acquisition by Tensar 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:
2. Amendments to Lease
Agreement . Subject to the satisfaction of the
conditions set forth in Section 5 hereof:
(a) Schedule 1
of the Lease Agreement is hereby amended to add the following new
defined terms in appropriate alphabetical order:
“ Amendment Effective Date ” shall have the
meaning assigned thereto in Section 5 of the First Amendment
to the Lease/Purchase Facilities Documents.
“ First Amendment to the Lease/Purchase Facilities
Documents ” shall mean the First Amendment to
Lease/Purchase Facilities Documents, dated as of June 22,
2006, among TCO, Tensar Holdings, Tensar, the Administrative Agent
and the other Tensar Parties party thereto.
“ Foreign Security Documents ” shall have the
meaning assigned to such term in the Luxco Commodities Purchase
Agreement.
“ Luxco ” shall mean TTC Holdings
S.à.r.l, a private limited liability company
(société à responsabilité
limitée) registered with the Luxembourg Register of Commerce
and Companies
“ Luxco Commodities Purchase Agreement ” shall
mean the Luxco Murabaha Facility Agreement, dated as of the
Amendment Effective Date, among Tensar Holdings, Luxco, TCO,
Arcapita Investment Funding Limited, as agent for TCO, AIA Limited
as agent for Luxco, and Credit Suisse, as administrative agent, as
the same may be amended, supplemented or otherwise modified in
accordance with the terms thereof.
“ Luxco Commodities Purchase Facility ” shall
mean the Murabaha facility provided for in the Luxco Commodities
Purchase Agreement.
“ Luxco Security Documents ” shall have the
meaning assigned to such term in the Luxco Commodities Purchase
Agreement.
“ Luxco Subsidiary Guarantors ” shall have the
meaning assigned to such term in the Luxco Commodities Purchase
Agreement.
“ Share Purchase Agreement ” shall mean the
Share Purchase Agreement, dated May 16, 2006, among Tensar
Holdings, TTC UK Holdings Limited, 3i Group Plc, Electra General
Partner and the other vendors party thereto.
“ Tensar Group Limited Acquisition ” shall mean
the acquisition by Tensar Holdings pursuant to the Share Purchase
Agreement of all the Equity Interests in the Tensar Group Limited;
the aggregate amount of cash consideration for such acquisition is
approximately $86,900,000.
“ UK Guarantors ” shall mean Tensar Group
Limited, Tensar International Limited, Tensar Techologies Limited,
Tensar Manufacturing Limited and TTC UK Holdings Limited and each
other subsidiary of Luxco which provides a guarantee in respect of
Luxco’s obligations under the Luxco Commodities Purchase
Agreement pursuant to the terms thereof.
(b) The
definition of “Agreed Profit” set forth in
Schedule 1 of the Lease Agreement is hereby amended and
restated as follows:
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“ Agreed Profit ” shall mean “Agreed
Profit” as defined in the Commodities Purchase Agreement, the
Luxco Commodities Purchase Agreement and in the Second Lien
Commodities Purchase Agreement, as applicable.
(c) The
definition of “Asset Sale” set forth in Schedule 1
of the Lease 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.
(d) The
definition of “Change in Control” set forth in
Schedule 1 of the Lease 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);”
(e) The
definition of “Commodities Purchase Facilities
Documents” set forth in Schedule 1 of the Lease
Agreement is hereby amended and restated as follows:
“ Commodities Purchase Facility Documents ”
shall mean (i) the Commodities Purchase Agreement and all
other instruments, agreements and other documents evidencing
or
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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
and the Foreign Security Documents, as the same may be amended,
supplemented or otherwise modified in accordance with the terms
hereof.
(f) The
definition of “Consolidated Financing Expense” set
forth in Schedule 1 of the Lease Agreement is hereby amended
and restated 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, without duplication, all Agreed Profit,
Supplemental Profit and the Rental Rate portion of Rent payable,
agreed profit under the Luxco Commodities Purchase Agreement, the
Commodities Purchase Agreement and the Second Lien 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.
(g) The
definition of “Consolidated Fixed Charges” set
forth in Schedule 1 of the Lease 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
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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.
(h) The
definition of “Current Assets” set forth in
Schedule 1 of the Lease Agreement is hereby amended to replace
the term “Tensar” with the term “Tensar
Holdings”.
(i) The
definition of “Current Liabilities” set forth in
Schedule 1 of the Lease Agreement is hereby amended to replace
the term “Tensar” with the term “Tensar
Holdings”.
(j) The
definition of “Excess Cash Flow” set forth in
Schedule 1 of the Lease 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”
(k) The
definition of “First Lien Leverage Ratio” set forth in
Schedule 1 of the Lease Agreement is hereby amended and
restated as follows:
“ First Lien Leverage Ratio ” shall mean, on any
date, the ratio of (a) Total Obligations with respect to this
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.
(l) The
definition of “Metals Transaction” set forth in
Schedule 1 of the Lease Agreement is hereby amended and
restated as follows:
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“ Metals Transaction ” shall have the meaning
assigned to such term in the Commodities Purchase Facility
Agreement or to the term “Transaction” in the Luxco
Commodities Purchase Facility Agreement, as applicable.
(m) The
definition of “Murabaha Price” set forth in
Schedule 1 of the Lease Agreement is hereby amended and
restated as follows:
“ Murabaha Price ” shall have the meaning
assigned to such term in the Commodities Purchase Agreement, the
Luxco Commodities Purchase Agreement or the Second Lien Commodities
Purchase Agreement, as applicable.
(n) The
definition of “Permitted Acquisition” set forth in
Schedule 1 of the Lease Agreement is hereby amended to replace
the term “Section 4” in clause (B) thereof
with the term “Schedule 4”.
(o) The
definition of “Purchase Price” set forth in
Schedule 1 of the Lease Agreement is hereby amended and
restated as follows:
“ Purchase Price ” shall have the meaning set
forth in the Commodities Purchase Agreement, the Luxco Commodities
Purchase Agreement or the Second Lien Commodities Purchase
Agreement, as applicable.
(p) The
definition of “Unpaid Reimbursement Obligations” set
forth in Schedule 1 of the Lease Agreement is hereby amended and
restated as follows:
“ Unpaid Reimbursement Obligations ” shall have
the meaning assigned to such term in the Commodities Purchase
Agreement.
(q) The
definition of “wholly-owned subsidiary” set forth in
Schedule 1 of the Lease Agreement is hereby amended to replace
the term “Tensar” with the term “Tensar
Holdings”.
(r) Annex
1(c) to Schedule 1 of the Lease Agreement is hereby amended
and restated as set forth on Annex D hereto.
(s) Section 1.14
of Schedule 2 of the Lease 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
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by it and all such tax returns are correct and complete in all
materal requests.”
(t) Section 1.19(a)
of Schedule 2 of the Lease 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 1.01(d) of
Schedule 4 of the Lease Agreement is hereby amended to replace
the number “2,500,000” with the number
“4,000,000”.
(v) Section 1.01(e) of
Schedule 4 of the Lease Agreement is hereby amended and
restated as follows:
“(e) Financing Obligations (i) of Tensar Holdings and
Tensar under the Commodities Purchase Facility Agreement in an
aggregate stated amount (excluding profit amount) not to exceed
$40,000,000 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, (ii) of Tensar Holdings and Luxco under 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 Holdings and Tensar 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;”
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(w) Section 1.01(f)
of Schedule 4 of the Lease Agreement is hereby amended to
replace the number “2,500,000” with the number
“4,000,000”.
(x) Section 1.0l(k)
of Schedule 4 of the Lease Agreement is hereby amended to
replace the number “2,500,000” with the number
“4,000,000”.
(y) Section 1.02(i)
of Schedule 4 of the Lease Agreement is hereby amended to
replace the number “2,500,000” with the number
“4,000,000”.
(z) Section 1.04(a)
of Schedule 4 of the Lease Agreement is hereby amended to
amend and restate clause (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”
(aa) Section 1.04(m)
of Schedule 4 of the Lease Agreement is hereby amended to
replace the number “2,500,000” with the number
“4,000,000”.
(bb) Section 1.04
of Schedule 4 of the Lease Agreement is hereby further 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”
(cc)
Section 1.05(f) of Schedule 4 of the Lease Agreement is
hereby amended and restated as follows:
“(f) the purchase and sale of commodities by Tensar under the
Commodities Purchase Agreement and the purchase and sale of
commodities by Luxco under the Luxco Commodities Purchase
Agreement;”
(dd) Section 1.08(b)
of Schedule 4 of the Lease Agreement is hereby amended to
insert the following parenthetical at the end of clause
(ii) therein:
“(other than the issuance or sale of Equity Interests in
connection with intercompany Investments otherwise permitted under
Section 1.04 of this Schedule 4)”
(ee) Section 1.08
of Schedule 4 of the Lease Agreement is hereby further amended
to add the following new clause (d) at the end thereof:
8
“(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.”
(ff) Sections 1.10,
1.11, 1.12, 1.13 and 1.14 of Schedule 4 of the Lease Agreement
are hereby amended and restated as set forth on Annex A
hereto.
(gg) Annex
7 to Schedule 4 of the Lease Agreement is hereby amended to
add transactions set forth on Annex E hereto.
(hh) Annex
8 to Schedule 4 of the Lease Agreement is hereby amended and
restated as set forth on Annex F hereto.
(ii) Annex
17 to Schedule 4 of the Lease Agreement is hereby amended and
restated as set forth on Annex G hereto.
(jj) Section 1
of Schedule 7 of the Lease Agreement is hereby amended to
replace the phrase “the payment in full of the Acquisition
Cost and the Rent” in the last sentence thereof, the phrase
“the payment in full of the Obligations”.
(kk) Section 4(c)
of Schedule 7 of the Lease Agreement is hereby amended and
restated as follows
“(c) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in
Section 25. Nothing in this Agreement will affect the right of
any party to this Agreement to serve process in any other manner
permitted by law.”
3. Amendments to Commodities
Purchase Agreement. Subject to the satisfaction of the
conditions set forth in Section 5 hereof:
(a) the
definition of Maximum Facility Amount contained in Section 1.1
of the Commodities Purchase Agreement is hereby amended by
replacing the dollar amount “$30,000,000” with the
dollar amount “$40,000,000”.
(b) Sections 3.7(c),
(d), (e) and (f) of the Commodities Purchase Agreement
are hereby amended and restated as follows:
“(c) Not later than the third Business Day following the
receipt by Tensar Holdings, Tensar or any of the Subsidiaries of
Net Cash Proceeds arising from completion of any Asset Sale or the
occurrence of any Recovery Event, and to the extent that less than
100% of the Net Cash Proceeds from such Asset Sale or Recovery
Event have been applied towards the payment of the Acquisition
Cost
9
of the Leased Assets under the Lease Agreement pursuant to an
exercise of the Asset Sales Option under the Put Option Letter and
toward the repayment of Murabaha Prices in respect of Metals
Transactions pursuant to Section 3.6 of the Luxco Commodities
Purchase Agreement, Tensar shall remit any such excess Net Cash
Proceeds to TCO to repay one or more Murabaha Prices in respect of
Metals Transactions (in the direct order of the Payment Dates
therefor) and, thereafter, to be remitted to TCO to be held as cash
collateral in accordance with Section 2.4.
(d) In the event and on each occasion that an Equity Issuance
occurs, and to the extent that less than 50% of the Net Cash
Proceeds from such Equity Issuance have been applied towards the
payment of the Acquisition Cost of the Leased Assets under the
Lease Agreement pursuant to an exercise of the Equity Issuance
Option under the Put Option Letter and toward the repayment of
Murabaha Prices in respect of Metals Transactions pursuant to
Section 3.6 of the Luxco Commodities Purchase Agreement,
Tensar shall remit such excess Net Cash Proceeds to TCO to repay
one or more Murabaha Prices in respect of Metals Transactions (in
the direct order of the Payment Dates therefor) and, thereafter, to
be remitted to TCO to be held as cash collateral in accordance with
Section 2.4.
(e) In the event that any Tensar Party receives Net Cash
Proceeds from the issuance or other incurrence of Financing
Obligations of any Tensar Party (other than Financing Obligations
permitted to be incurred under Section 1.01 of Schedule 4
hereto), and to the extent that less than 100% of the Net Cash
Proceeds from the issuance or incurrence of such Financing
Obligations have been applied towards the payment of the
Acquisition Cost of the Leased Assets under the Lease Agreement
pursuant to an exercise of the Financing Obligation Option under
the Put Option Letter and toward the repayment of Murabaha Prices
in respect of Metals Transactions pursuant to Section 3.6 of
the Luxco Commodities Purchase Agreement, Tensar shall remit such
excess Net Cash Proceeds to TCO to repay one or more Murabaha
Prices in respect of Metals Transactions (in the direct order of
the Payment Dates therefor) and, thereafter, to be remitted to TCO
to be held as cash collateral in accordance with
Section 2.4.
(f) Not later than the earlier of (1) 90 days after
the end of each fiscal year of Tensar, commencing with the
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fiscal year ending on December 31, 2006, and (2) the date
which is five Business Days after the date on which the financial
statements with respect to such period are delivered pursuant to
Schedule 3 hereto, and to the extent that an amount
less than (A) the ECF Percentage times (B) the Excess
Cash Flow for the fiscal year then ended has been applied towards
the payment of the Acquisition Cost of the Leased Assets under the
Lease Agreement pursuant to an exercise of the ECF Option under the
Put Option Letter and toward the repayment of Murabaha Prices in
respect of Metals Transactions pursuant to Section 3.6 of the
Luxco Commodities Purchase Agreement, Tensar shall remit such
excess amount to TCO to repay one or more Murabaha Prices in
respect of Metals Transactions (in the direct order of the Payment
Dates therefor) and, thereafter, to be remitted to TCO to be held
as cash collateral in accordance with
Section 2.4.”
(c) Section 5.2
of the Commodities Purchase Agreement is hereby amended to replace
the phrase “each of the other Tensar Parties” with the
phrase “each of its Subsidiaries”.
(d) Section 5.3
of the Commodities Purchase Agreement is hereby amended to replace
the phrase “each of the other Tensar Parties” with the
phrase “each of its Subsidiaries”.
(e) Schedule 1
of the Commodities Purchase Agreement is hereby amended to add the
following new defined terms in appropriate alphabetical
order:
“ Amendment Effective Date ” shall have the
meaning assigned thereto in Section 5 of the First Amendment
to the Lease/Purchase Facilities Documents.
“ First Amendment to the Lease/Purchase Facilities
Documents ” shall mean the First Amendment to
Lease/Purchase Facilities Documents, dated as of June 22,
2006, among TCO, Tensar Holdings, Tensar, the Administrative Agent
and the other Tensar Parties party thereto.
“ Foreign Security Documents ” shall have the
meaning assigned to such term in the Luxco Commodities Purcahse
Agreement.
“ Luxco ” shall mean TTC Holdings
S.à.r.l., a private limited liability company
(société à responsabilité
limitée) registered with the Luxembourg Register of Commerce
and Companies
“ Luxco Commodities Purchase Agreement ” shall
mean the Luxco Murabaha Facility Agreement, dated as of the
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Amendment Effective Date, among Tensar Holdings, Luxco, TCO,
Arcapita Investment Funding Limited, as agent for TCO, AIA limited
as agent for Luxco, 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.
“ Luxco Commodities Purchase Facility Documents
” shall have the meaning assigned to such term in the
definition of Commodities Purchase Facility Documents.
“ Luxco Security Documents ” shall have the
meaning assigned to such term in the Luxco Commodities Purchase
Agreement.
“ Luxco Subsidiary Guarantors ” shall have the
meaning assigned to such term in the Luxco Commodities Purchase
Agreement.
“ Put Option Letter ” shall have the meaning
assigned to such term in the Lease Agreement.
“ Share Purchase Agreement ” shall mean the
Share Purchase Agreement, dated May 16, 2006, among Tensar
Holdings, TTC UK Holdings Limited, 3i Group Plc, Electra General
Partner and the other vendors party thereto.
“ Tensar Group Limited Acquisition ” shall mean
the acquisition by Tensar Holdings pursuant to the Share Purchase
Agreement of all the Equity Interests in the Tensar Group Limited;
the aggregate amount of cash consideration for such acquisition is
approximately $86,900,000.
“ UK Guarantors ” shall mean Tensar Group
Limited, Tensar International Limited, Tensar Techologies Limited,
Tensar Manufacturing Limited and TTC UK Holdings Limited and each
other subsidiary of Luxco which provides a guarantee in respect of
Luxco’s obligations under the Luxco Commodities Purchase
Agreement pursuant to the terms thereof.
(f) The
definition of “Asset Sale” set forth in Schedule 1
of the Commodities Purchase Agreement is hereby amended and
restated as follows:
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“ 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 Yensar
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 of the 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 Facilities
Documents” set forth in Schedule 1 of the Commodities
Purchase Agreement is hereby amended and restated as follows:
“ Commodities Purchase Facility Documents ”
shall mean (i) this 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
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or other right in respect thereof, including the Security Documents
and the Foreign 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 Schedule 1 of the Commodities Purchase Agreement is hereby
amended and restated 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, without duplication, all Agreed Profit,
Supplemental Profit and the Rental Rate portion of Rent payable,
agreed profit under this Agreement, the Second Lien Commodities
Purchase Agreement and the Luxco Commodities Purchase Agreement and
all commissions, discounts and other fees and charges owed by
Tensar and the Subsidiaries with respect to 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
Schedule 1 of the 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
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