Email Address:
  
  Password:
  
  

Exhibit 10.16

EXECUTION COPY

AMENDMENT AND WAIVER
TO EQUIPMENT LEASE AGREEMENT

          This AMENDMENT AND WAIVER, dated as of January 19, 2011 (this “ Amendment and Waiver ”), to the Equipment Lease Agreement, dated as of June 24, 2010 (as amended, supplemented or otherwise modified from time to time, the “ Equipment Lease Agreement ”), between CHICOPEE, INC., a Delaware corporation (the “ Lessee ” or the “ Company ”) and GOSSAMER HOLDINGS, LLC, a Delaware limited liability company (the “ Lessor ”).

W I T N E S S E T H:

          WHEREAS, the Company has requested certain amendments and waivers to the Equipment Lease Agreement;

          WHEREAS, the Company has requested to terminate the Letter of Understanding; and

          WHEREAS, the Lessor is willing to consent to the requested amendments and waivers and hereby terminate the Letter of Understanding on the terms and conditions contained herein;

          NOW THEREFORE, the parties hereto hereby agree as follows:

          1.  Defined Terms . Unless otherwise defined herein, terms defined in the Equipment Lease Agreement and used herein shall have the meanings given to them in the Equipment Lease Agreement.

          2.  Amendments to Equipment Lease Agreement . The Equipment Lease Agreement is hereby amended by:

          (a) deleting the first sentence of Section 17(b)(viii) in its entirety and inserting in lieu thereof the following:

“Lessee shall (i) maintain at all times from the date hereof through the Basic Term Commencement Date each Acceptable Letter of Credit for the benefit of Lessor required to be delivered to Lessor on or prior to the date of the initial Advance and (ii) maintain at all times from the date of initial issuance thereof until the date occurring five years thereafter, each Supplemental Letter of Credit, in each case in order to secure the Lessee’s obligations under this Agreement.”

          (b) deleting Section 12(a)(xi) in its entirety and inserting in lieu thereof the following:

“(xi) (A) any dissolution, termination of existence, merger or consolidation of the Lessee or any Guarantor (other than the merger of PGI as contemplated by the Transactions (as defined in the Credit Agreement (as such term is defined after giving effect to the Amendment and Waiver))); provided that (1) the Lessee or any Guarantor may merge or consolidate with or into the Lessee or any Guarantor

 


 

if immediately before and after giving effect to such merger or consolidation, no Default exists or would result therefrom and (2) (A) so long as after giving effect to such merger or consolidation there is no Change of Control (without giving effect to the proviso in the definition thereof) and (B) immediately before and after giving effect to any merger or consolidation described in this proviso, no Default exists or would result therefrom, (I) the Lessee or any Guarantor may merge or consolidate with or into any other direct or indirect wholly-owned U.S. domestic Subsidiary of any Guarantor and (II) the Lessee or any Guarantor may merge or consolidate with or into any other Person provided that any merger or consolidation permitted by clause (I) or (II) above shall be subject to the satisfaction of the following additional conditions: (i) the surviving entity shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (ii) the surviving entity is engaged in Similar Business, (iii) the surviving entity shall, as applicable, expressly assume all the obligations of the Lessee under this Agreement and the other Operative Documents to which the Lessee is a party or all obligations of such Guarantor under the Guaranty and the other Operative Documents to which such Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to Lessor, (iv) such merger or consolidation complies with Applicable Laws in all material respects, (v) after giving effect to such merger or consolidation, PGI is in compliance (on a pro forma basis) with the financial covenants set forth in Appendix II of this Agreement, (vi) the Lessor shall have received a reaffirmation of guaranty duly executed by each Guarantor confirming that its guaranty continues to apply to the Lessee’s or its surviving entity’s obligations under this Agreement and the other Operative Documents, (vii) the Lessee shall have delivered to Lessor an Officer’s Certificate, and, with respect to any merger or consolidation described in clause (II) above, an opinion of counsel, in each case stating that such merger or consolidation and such supplement to this Agreement or any Guaranty comply with this Agreement (except that such opinion of counsel will not cover compliance with clauses (iv) and (v) above) and (viii) the Lessee shall have delivered to Lessor an Officer’s Certificate certifying that the representations and warranties of such entity set forth in this Agreement and each other Operative Document to which it is a party are true and correct on and as of the date of such merger or consolidation (or to the extent such representations and warranties specifically relate to an earlier date such representations and warranties are true and correct as of such earlier date);

(B) any Change of Control has occurred; or

(C) either the Lessee or any Guarantor sells or leases all, or substantially all, of its assets to any Person, other than Blackstone.”

          3.  Amendments to Appendix I . Appendix I of the Equipment Lease Agreement is hereby amended by:

(a) deleting the last sentence of the definition of “Affiliate”.

(b) deleting the definition of “Credit Agreement” in its entirety and inserting in lieu thereof the following:

- 2 -


 

           “Credit Agreement” shall mean the Credit Agreement (as amended, restated, supplemented or otherwise modified from time to time) to be dated as of the Closing Date (as defined therein) among Scorpio Acquisition Corporation, Scorpio Merger Sub Corporation (to be merged with and into PGI), as the lead borrower, the other borrowers from time to time party thereto, Citibank, N.A., as administrative agent and collateral agent, the other agents listed therein and each lender from time to time party thereto. References to the Credit Agreement or any terms defined therein shall mean the Credit Agreement as in effect as of the Amendment and Waiver Effective Date without regard to any subsequent amendments, supplements or modifications thereto.

          (c) amending the definition of “Documents” to delete the words “the Letter of Understanding”.

          (d) deleting the definition of “Letter of Understanding” in its entirety.

          (e) deleting the definition of “MattlinPatterson” in its entirety.

          (f) amending the definition of “Operative Documents” to delete the words “the Letter of Understanding”.

          (g) amending the definition of “Permitted Liens” to delete the word “and” before clause (vii) thereof and adding the following new clause (viii):

          “and (viii) any Liens with respect to the Site or the Facility permitted under the Credit Agreement or the Indenture (as defined in Appendix II hereto) provided that a SNDA is duly executed by each mortgagee of the Site.

(h) adding the following new definitions, to appear in proper alphabetical order:

           “Amendment and Waiver” shall mean the Amendment and Waiver, dated as of January 19, 2011, to the Equipment Lease Agreement, dated as of June 24, 2010 (as amended, supplemented or otherwise modified from time to time) between the Company and the Lessor.

           “Amendment and Waiver Effective Date” has the meaning specified in Section 7 of the Amendment and Waiver.

           “Blackstone” means Blackstone Capital Partners V L.P. and its Affiliates and funds or partnerships managed by them or any of their Affiliates, but not including any of their portfolio companies.

           “Change of Control” means (a) prior to any initial public offering of Lessee or any Guarantor (or any newly-formed Affiliate of any Guarantor formed to be the issuer in such initial public offering), Blackstone ceases to own, directly or indirectly, on a fully-diluted basis, more than 50% of the aggregate shares of voting stock of PGI and (b) after any initial public offering of Lessee or any Guarantor (or any newly-formed Affiliate of any Guarantor formed to be the issuer in such initial public offering), Blackstone ceases to own, directly or indirectly, on a fully-diluted basis, more than 30% of the aggregate shares of voting stock of PGI and, no other Person or group of Persons (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act or any successor provision) own, directly or indirectly, on a fully-diluted basis, more than the aggregate shares of voting stock of PGI then held by Blackstone; provided

- 3 -


 

however , that a “Change of Control” shall not be deemed to have occurred following an event described in clause (b) of this definition if, within ten (10) Business Days following the occurrence of such event, Lessee (1) delivers to Lessor a new Supplemental Letter of Credit (which letter of credit shall be in addition to any existing letters of credit that have been issued to Lessor on behalf of Lessee and remain in full force and effect) or (2) elects to have the definition of Total Leverage Ratio set forth on Appendix II to this Agreement automatically amended as of such date of election (without any further action by Lessee or Lessor) to read as follows:

Total Leverage Ratio . The Total Leverage Ratio as of the end of any fiscal quarter of PGI for which financial statements are available shall not exceed for the fiscal quarter ending immediately prior to the date of the event described in clause (b) of the definition of Change of Control (the Total Leverage Ratio for such fiscal quarter being calculated on a pro forma basis to reflect such Change of Control) and for each fiscal quarter thereafter, 3.50 to 1.00.”

           “Indenture” means the Indenture, to be dated as of the Issue Date (as defined therein), between PGI (as survivor of the merger with Scorpio Merger Sub Corporation), the guarantors party thereto and Wilmington Trust Company, as trustee, together with the initial Supplemental Indenture executed following the Issue Date (as defined therein). References to the Indenture or any terms defined therein shall mean the Indenture as in effect as of the Amendment and Waiver Effective Date without regard to any subsequent amendments, supplements or modifications thereto.

          ” Similar


This is only a partial view of this document. We have millions of legal documents and clauses drafted by top law firms. learn more search for free browse for free learn more