Exhibit 10.27
SECOND AMENDMENT TO LEASE/PURCHASE FACILITIES DOCUMENTS
Dated as of June 28, 2006
This SECOND AMENDMENT TO
LEASE/PURCHASE FACILITIES DOCUMENTS (this “
Amendment ”) is among THE TENSAR CORPORATION
LLC (“ Tensar ”), TCO FUNDING CORP.
(“TCO”), CREDIT SUISSE as administrative agent
(in such capacity, the “ Administrative Agent
”), and the other Tensar Parties party hereto.
PRELIMINARY STATEMENTS:
A. Tensar, TCO and the
Administrative Agent 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 Commodities Purchase Agreement;
and
B. Tensar has requested that TCO
and the Administrative Agent amend the Commodities Purchase
Agreement and the Reimbursement Letter to provide for a $5,000,000
increase in the aggregate amount of Guarantee Obligations and
Aggregate Goods Undertakings which may be outstanding and to
provide for the issuance of such Guarantee Obligations in pounds
sterling or euros.
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
Commodities Purchase Agreement . Subject to the
satisfaction of the conditions set forth in Section 3
hereof:
(a) Section 1.1
of the Commodities Purchase Agreement is hereby amended to add the
following definitions in appropriate alphabetical order:
“
Alternative Currency ” shall mean pounds sterling and
euros, provided that such currency at the time of any issuance or
renewal, as applicable, of a Foreign L/C is freely tradeable and
convertible into dollars.
“
Calculation Date ” shall mean, with respect to each
Foreign Guarantee Obligation, during the period that such Foreign
Guarantee Obligation is outstanding (or the Reimbursement
Obligation in connection therewith has not been fully satisfied)
(i) the last Business Day of a fiscal month of Tensar,
(ii) the date on which such Guarantee Obligation is entered
into or renewed, (iii) the date on which TCO is asked to pay
amounts in respect of such Guarantee Obligations, (iv) each
Value Date for a Goods Transaction (immediately prior to the
payment of any amounts
due on such
date), (v) the date of any Goods Purchase Request,
(vi) the date on which the Obligations are accelerated
pursuant to Article VI or Schedule 5, (vii) such
other dates as Tensar may reasonably request from time to time, and
(viii) such other dates as TCO or the Administrative Agent may
select from time to time in their reasonable discretion.
“
Dollar Equivalent ” shall mean, at any time
(i) as to any amount denominated in an Alternative Currency,
the equivalent amount in dollars as determined on the basis of the
Exchange Rate for the purchase of dollars with such Alternative
Currency as of the most recent Calculation Date and (ii) as to
any amount denominated in dollars, the amount thereof at such
time.
“
EMU ” shall mean Economic and Monetary Union as
contemplated in the Treaty on European Union.
“ EMU
Legislation ” shall mean the legislative measures of the
European Union for the introduction of, changeover to or operation
of the Euro in one or more member states, being in part legislative
measures to implement EMU.
“
euro ” or “ € ” shall mean the single
currency of the European Union as constituted by the Treaty on
European Union and as referred to in the EMU Legislation.
“
Exchange Rate ” shall mean, on any day, with respect
to any Alternative Currency, the spot rate at which Dollars are
offered on such day by the Administrative Agent in New York, New
York for such Alternative Currency.
“
Foreign Guarantee Obligations ” shall mean a Guarantee
Obligation denominated in an Alternative Currency.
“
Judgment Currency ” shall have the meaning specified
in Section 8.16(a).
“
Judgment Currency Conversion Date ” shall have the
meaning specified in Section 8.16(a).
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“
pounds sterling ” or “£” shall mean
lawful money of the United Kingdom.
(b) The
definition of “Reimbursement Obligation” contained in
Section 1.1 of the Commodities Purchase Agreement is hereby
amended to insert the following sentence at the end thereof:
“The amount of any Reimbursement Obligation at any time shall
be deemed to be the Dollar Equivalent of such Reimbursement
Obligations as of the most recent Calculation Date”.
(c) Section 2.3(b)
of the Commodities Purchase Agreement is hereby amended to replace
the number “$5,000,000” with the number
“$10,000,000”.
(d) The
Commodities Purchase Agreement is hereby amended by adding the
following new Section 8.16 at the end thereof:
8.16
Judgment Currency. The obligations of Tensar
hereunder and under the other Lease/Purchase Facilities Documents
to make payments in dollars shall not be discharged or satisfied by
any tender or recovery pursuant to any judgment expressed in or
converted into any currency other than dollars, except to the
extent that such tender or recovery results in the effective
receipt by TCO of the full amount of dollars expressed to be
payable to TCO under this Agreement or the other Lease/Purchase
Facilities Documents. If, for the purpose of obtaining or enforcing
judgment in any court or in any jurisdiction, it becomes necessary
to convert into or from any currency other than dollars (such other
currency being hereinafter referred to as the “ Judgment
Currency ”) an amount due in dollars, the conversion
shall be made, at the rate of exchange prevailing, in each case, as
of the date immediately preceding the day on which the judgment is
given (such Business Day being hereinafter referred to as the
“ Judgment Currency Conversion Date ”).
(b) If
there is a change in the rate of exchange prevailing between the
Judgment Currency Conversion Date and the date of actual payment of
the amount due, Tensar covenants and agrees to pay, or cause to be
paid, such additional amounts, if any (but in any event not a
lesser amount), as may be necessary to ensure that the amount paid
in the Judgment Currency, when converted at the rate of exchange
prevailing on the date of payment, will produce the amount of
dollars which could have been purchased with the
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amount of
Judgment Currency stipulated in the judgment or judicial award at
the rate of exchange prevailing on the Judgment Currency Conversion
Date.
2. Amendments to
Reimbursement Letter . Subject to the satisfaction
of the conditions set forth in Section 3 hereof:
(a) The
first paragraph of the Reimbursement Letter is hereby amended to
replace the parenthetical in the third to last line thereof with
the following “(as amended, supplemented or otherwise
modified from time to time, the “Facility
Agreement” ).
(b) The
third paragraph of the Reimbursement Letter is hereby amended
(i) by replacing the number “$5,000,000” with the
number “$10,000,000” and (ii) by adding the
following sentence at the end thereof: “The amount of any
Guarantee Obligation at any time shall be deemed to be the Dollar
Equivalent of such Guarantee Obligations as of the most recent
Calculation Date”.
(c) The
fourth paragraph of the Reimbursement Letter is hereby amended
(i) by replacing the phrase “we have notified yo
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