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
”).
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:
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“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
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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.
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