as Holdings,
as Lead Borrower
(to be merged with and into POLYMER GROUP, INC.),
as Administrative Agent and Collateral Agent,
as Syndication Agent,
and
RBC CAPITAL MARKETS,
as co-Documentation Agents,
MORGAN STANLEY SENIOR FUNDING, INC.,
BARCLAYS CAPITAL
and
RBC CAPITAL MARKETS,
as Joint Lead Arrangers and Joint Bookrunners
Page | ||||
ARTICLE I | ||||
DEFINITIONS AND ACCOUNTING TERMS | ||||
Section 1.01 Defined Terms | 1 | |||
Section 1.02 Other Interpretive Provisions | 58 | |||
Section 1.03 Accounting Terms and Determinations | 58 | |||
Section 1.04 Rounding | 59 | |||
Section 1.05 Times of Day | 59 | |||
Section 1.06 Letter of Credit Amounts | 59 | |||
Section 1.07 Currency Equivalents Generally | 59 | |||
ARTICLE II | ||||
THE COMMITMENTS AND CREDIT EXTENSIONS | ||||
Section 2.01 The Loans | 60 | |||
Section 2.02 Borrowings, Conversions and Continuations of Loans | 61 | |||
Section 2.03 Letters of Credit | 63 | |||
Section 2.04 Swing Line Loans | 72 | |||
Section 2.05 Prepayments | 76 | |||
Section 2.06 Termination or Reduction of Commitments | 78 | |||
Section 2.07 Repayment of Loans | 79 | |||
Section 2.08 Interest | 79 | |||
Section 2.09 Fees | 80 | |||
Section 2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate and Applicable Fee Rate | 81 | |||
Section 2.11 Evidence of Debt | 82 | |||
Section 2.12 Payments Generally; Administrative Agent’s Clawback | 82 | |||
Section 2.13 Sharing of Payments by Lenders | 86 | |||
Section 2.14 Increase in Revolving Credit Facility | 87 | |||
Section 2.15 Designation of Lead Borrower as Borrowers’ Agent | 88 | |||
Section 2.16 Defaulting Lenders | 89 | |||
ARTICLE III | ||||
TAXES, INCREASED COSTS PROTECTION AND ILLEGALITY | ||||
Section 3.01 Taxes | 90 | |||
Section 3.02 Illegality | 93 | |||
Section 3.03 Inability to Determine Rates | 94 | |||
Section 3.04 Increased Costs; Reserves on Eurodollar Rate Loans | 94 | |||
Section 3.05 Compensation for Losses | 95 | |||
Section 3.06 Mitigation Obligations; Replacement of Lenders | 96 | |||
Section 3.07 Survival | 96 |
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Page | ||||
ARTICLE IV | ||||
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS | ||||
Section 4.01 Conditions of Initial Credit Extension | 96 | |||
Section 4.02 Conditions to All Credit Extensions | 99 | |||
ARTICLE V | ||||
REPRESENTATIONS AND WARRANTIES | ||||
Section 5.01 Existence, Qualification and Power; Compliance with Laws | 100 | |||
Section 5.02 Authorization; No Contravention | 100 | |||
Section 5.03 Governmental Authorization; Other Consents | 100 | |||
Section 5.04 Binding Effect | 101 | |||
Section 5.05 Financial Statements; No Material Adverse Effect | 101 | |||
Section 5.06 Litigation | 102 | |||
Section 5.07 No Default | 102 | |||
Section 5.08 Ownership of Property; Liens; Intellectual Property; Insurance | 102 | |||
Section 5.09 Environmental Compliance | 102 | |||
Section 5.10 Taxes | 103 | |||
Section 5.11 ERISA Compliance | 104 | |||
Section 5.12 Subsidiaries; Equity Interests | 104 | |||
Section 5.13 Margin Regulations; Investment Company Act | 104 | |||
Section 5.14 Disclosure | 104 | |||
Section 5.15 Solvency | 105 | |||
Section 5.16 Subordination of Junior Financing | 105 | |||
Section 5.17 Collateral Documents | 105 | |||
Section 5.18 Labor Matters | 105 | |||
Section 5.19 [Reserved] | 105 | |||
Section 5.20 [Reserved] | 105 | |||
Section 5.21 Anti-Terrorism Law | 105 | |||
ARTICLE VI | ||||
AFFIRMATIVE COVENANTS | ||||
Section 6.01 Financial Statements | 106 | |||
Section 6.02 Certificates; Other Information | 108 | |||
Section 6.03 Notices | 111 | |||
Section 6.04 Payment of Obligations | 111 | |||
Section 6.05 Preservation of Existence, Etc. | 111 | |||
Section 6.06 Maintenance of Properties | 112 | |||
Section 6.07 Maintenance of Insurance | 112 | |||
Section 6.08 Compliance with Laws | 113 | |||
Section 6.09 Books and Records | 113 | |||
Section 6.10 Inspection Rights | 113 | |||
Section 6.11 Covenant to Guarantee Obligations and Give Security | 114 | |||
Section 6.12 Compliance with Environmental Laws | 116 | |||
Section 6.13 Further Assurances and Post Closing Covenants | 116 |
-ii-
Page | ||||
Section 6.14 [Reserved] | 118 | |||
Section 6.15 Collateral Administration | 118 | |||
Section 6.16 Corporate Separateness | 120 | |||
Section 6.17 Consolidated Fixed Charge Coverage Ratio | 120 | |||
Section 6.18 Maintenance of Cash Management System | 121 | |||
ARTICLE VII | ||||
NEGATIVE COVENANTS | ||||
Section 7.01 Liens | 122 | |||
Section 7.02 Investments | 125 | |||
Section 7.03 Indebtedness | 128 | |||
Section 7.04 Fundamental Changes | 131 | |||
Section 7.05 Dispositions | 132 | |||
Section 7.06 Restricted Payments | 134 | |||
Section 7.07 Change in Nature of Business | 138 | |||
Section 7.08 Transactions with Affiliates | 138 | |||
Section 7.09 Burdensome Agreements | 139 | |||
Section 7.10 Use of Proceeds | 140 | |||
Section 7.11 Accounting Changes | 140 | |||
Section 7.12 Prepayments, Etc. of Indebtedness | 140 | |||
Section 7.13 Permitted Activities of Holdings | 141 | |||
Section 7.14 Concentration Account | 141 | |||
Section 7.15 Designation of Subsidiaries | 141 | |||
ARTICLE VIII | ||||
EVENTS OF DEFAULT AND REMEDIES | ||||
Section 8.01 Events of Default | 142 | |||
Section 8.02 Remedies Upon Event of Default | 144 | |||
Section 8.03 Exclusion of Immaterial Subsidiaries | 145 | |||
Section 8.04 Application of Funds | 145 | |||
ARTICLE IX | ||||
AGENTS | ||||
Section 9.01 Appointment and Authority | 149 | |||
Section 9.02 Rights as a Lender | 150 | |||
Section 9.03 Exculpatory Provisions | 150 | |||
Section 9.04 Reliance by Administrative Agent | 151 | |||
Section 9.05 Delegation of Duties | 151 | |||
Section 9.06 Resignation of Administrative Agent | 151 | |||
Section 9.07 Non-Reliance on Administrative Agent and Other Lenders | 152 | |||
Section 9.08 No Other Duties, Etc. | 152 | |||
Section 9.09 Administrative Agent May File Proofs of Claim | 153 | |||
Section 9.10 Collateral and Guaranty Matters | 153 | |||
Section 9.11 Secured Cash Management Agreements and Secured Hedge Agreements | 154 | |||
Section 9.12 Withholding Tax | 154 |
-iii-
Page | ||||
ARTICLE X | ||||
MISCELLANEOUS | ||||
Section 10.01 Amendments, Etc. | 155 | |||
Section 10.02 Notices; Effectiveness; Electronic Communication | 158 | |||
Section 10.03 No Waiver; Cumulative Remedies; Enforcement | 159 | |||
Section 10.04 Expenses; Indemnity; Damage Waiver | 160 | |||
Section 10.05 Payments Set Aside | 162 | |||
Section 10.06 Successors and Assigns | 162 | |||
Section 10.07 Treatment of Certain Information; Confidentiality | 166 | |||
Section 10.08 Right of Setoff | 167 | |||
Section 10.09 Interest Rate Limitation | 168 | |||
Section 10.10 Counterparts; Integration; Effectiveness | 168 | |||
Section 10.11 Survival of Representations and Warranties | 168 | |||
Section 10.12 Severability | 168 | |||
Section 10.13 Replacement of Lenders | 168 | |||
Section 10.14 Governing Law; Jurisdiction Etc. | 169 | |||
Section 10.15 [Reserved] | 170 | |||
Section 10.16 Waiver of Jury Trial | 170 | |||
Section 10.17 No Advisory or Fiduciary Responsibility | 171 | |||
Section 10.18 Electronic Execution of Assignments and Certain Other Documents | 171 | |||
Section 10.19 USA PATRIOT Act Notice | 171 | |||
Section 10.20 Intercreditor Agreements and Collateral Agency Agreement | 172 |
-iv-
Schedules: | ||||
Schedule 1.01A | - | Guarantors | ||
Schedule 1.01B | - | Certain Security Interests and Guarantees | ||
Schedule 1.01C | - | Unrestricted Subsidiaries | ||
Schedule 1.01D | - | Excluded Subsidiaries | ||
Schedule 1.01E | - | Existing Letters of Credit | ||
Schedule 2.01A | - | Lenders; Applicable Percentage | ||
Schedule 2.01B | - | Tranche 1 Revolving Credit Lenders; Tranche 1 Revolving Credit Commitments; Tranche 1 Applicable Percentage | ||
Schedule 2.01C | - | Tranche 2 Revolving Credit Lenders; Tranche 2 Revolving Credit Commitments; Tranche 2 Applicable Percentage | ||
Schedule 5.01 | - | Compliance with Laws | ||
Schedule 5.05(a) | - | Material Dispositions Not Reflected in Financial Statements | ||
Schedule 5.06 | - | Litigation | ||
Schedule 5.11(a) | - | ERISA Compliance | ||
Schedule 5.12 | - | Subsidiaries and Other Equity Investments | ||
Schedule 6.02(vi) | - | Financial and Collateral Reports | ||
Schedule 6.13(d) | - | Post-Closing Matters | ||
Schedule 7.01(c) | - | Existing Liens | ||
Schedule 7.02(g) | - | Existing Investments | ||
Schedule 7.03(c) | - | Existing Indebtedness | ||
Schedule 7.08 | - | Transactions with Affiliates | ||
Schedule 7.09 | - | Existing Restrictions | ||
Schedule 10.02 | - | Administrative Agent’s Office | ||
Exhibits: | ||||
Exhibit A-1 | - | Form of Committed Loan Notice | ||
Exhibit A-2 | - | Form of Swing Line Loan Notice | ||
Exhibit B-1 | - | Form of Tranche 1 Revolving Credit Note | ||
Exhibit B-2 | - | Form of Tranche 2 Revolving Credit Note | ||
Exhibit B-3 | - | Form of Swing Line Note | ||
Exhibit C-1 | - | Form of Assignment and Assumption | ||
Exhibit C-2 | - | Form of Administrative Questionnaire | ||
Exhibit D | - | Form of Compliance Certificate | ||
Exhibit E | - | Form of Opinion of Counsel to Loan Parties | ||
Exhibit F | - | Form of Guaranty | ||
Exhibit G-1 | - | Form of Security Agreement | ||
Exhibit G-2 | - | Form of Perfection Certificate | ||
Exhibit H | - | Form of Solvency Certificate | ||
Exhibit I | - | Form of Borrowing Base Certificate | ||
Exhibit J | - | Form of Non-Bank Certificate |
-v-
-2-
Applicable Fee Rate | ||||||||||
Pricing | Average Excess | Tranche 1 Revolving | Tranche 2 Revolving | |||||||
Level | Availability | Credit Commitments | Credit Commitments | |||||||
1 | > $35,000,000 | 0.750 | % | 1.000 | % | |||||
2 | > $15,000,000 but ≤ $35,000,000 | 0.625 | % | 0.875 | % | |||||
3 | ≤ $15,000,000 | 0.500 | % | 0.750 | % |
-3-
Applicable Rate | ||||||
Base Rate- | ||||||
Loans | ||||||
(including | ||||||
Eurodollar Rate | Swing Line | |||||
Loans and Tranche 1 | Loans and | |||||
Pricing | Average Excess | Letter | Protective Ad- | |||
Level | Availability | of Credit Fees | vances) | |||
1 | > $35,000,000 | 3.25% | 2.25% | |||
2 | > $15,000,000 but | 3.50% | 2.50% | |||
≤ $35,000,000 | ||||||
3 | ≤ $15,000,000 | 3.75% | 2.75% |
-4-
Applicable Rate | ||||||
Base Rate | ||||||
Loans | ||||||
(including | ||||||
Eurodollar Rate | Swing Line | |||||
Loans and | Loans and | |||||
Pricing | Average Excess | Tranche 2 Letter | Protective Ad- | |||
Level | Availability | of Credit Fees | vances) | |||
1 | > $35,000,000 | 5.25% | 4.25% | |||
2 | > $15,000,000 but | 5.50% | 4.50% | |||
≤ $35,000,000 | ||||||
3 | ≤ $15,000,000 | 5.75% | 4.75% |
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SCORPIO ACQUISITION CORPORATION | ||||
By: | /s/ Jason Giordano | |||
Name: | Jason Giordano | |||
Title: | Vice President and Treasurer | |||
SCORPIO MERGER SUB CORPORATION, as Lead Borrower | ||||
By: | Jason Giordano | |||
Name: | Jason Giordano | |||
Title: | Vice President and Treasurer | |||
POLYMER GROUP, INC., as Lead Borrower | ||||
By: | /s/ Dennis E. Norman | |||
Name: | Dennis E. Norman | |||
Title: | Chief Financial Officer |
CHICOPEE, INC. DOMINION TEXTILE (USA), L.L.C. Fabrene, L.L.C. PGI Europe, Inc. PGI Polymer, Inc., as Borrowers | ||||
By: | /s/ Dennis E. Norman | |||
Name: | Dennis E. Norman | |||
Title: | Chief Financial Officer |
-2-
CITIBANK, N.A., as L/C Issuer | ||||
By: | /s/ Michael Smolow | |||
Name: | Michael Smolow | |||
Title: | Vice President | |||
CITIBANK, N.A., as Swing Line Lender | ||||
By: | /s/ Michael Smolow | |||
Name: | Michael Smolow | |||
Title: | Vice President | |||
CITIBANK, N.A., as Administrative Agent | ||||
By: | /s/ Michael Smolow | |||
Name: | Michael Smolow | |||
Title: | Vice President | |||
CITIBANK, N.A., as Collateral Agent | ||||
By: | /s/ Michael Smolow | |||
Name: | Michael Smolow | |||
Title: | Vice President | |||
CITIBANK, N.A., as an initial Lender | ||||
By: | /s/ Michael Smolow | |||
Name: | Michael Smolow | |||
Title: | Vice President |
-3-
MORGAN STANLEY SENIOR FUNDING, INC., as an initial Lender | ||||
By: | /s/ Lisa Hanson | |||
Name: | Lisa Hanson | |||
Title: | Authorized Signatory |
-4-
Morgan Stanley Bank, N.A. as an initial Lender | ||||
By: | /s/ Lisa Hanson | |||
Name: | Lisa Hanson | |||
Title: | Authorized Signatory |
-5-
BARCLAYS BANK PLC, as an initial Lender | ||||
By: | /s/ Ann Sutton | |||
Name: | Ann Sutton | |||
Title: | Director |
-6-
ROYAL BANK OF CANADA, as an initial Lender | ||||
By: | /s/ Pierre Noriega | |||
Name: | Pierre Noriega | |||
Title: | Authorized Signatory | |||
By: | /s/ Meredith Majesty | |||
Name: | Meredith Majesty | |||
Title: | Authorized Signatory |
-7-
Chicopee, Inc.
Dominion Textile (USA), L.L.C.
Fabrene, L.L.C.
PGI Europe, Inc.
PGI Polymer, Inc.
Beneficiary | LC# | Issue Date | Maturity Date | Amount of LC | ||||||||||||
Hartford | 61627983 | 11/23/2004 | 10/21/2011 | $ | 2,400,000 | |||||||||||
George JW Goodman | 63651342 | 6/26/2009 | 12/31/2011 | $ | 140,000 | |||||||||||
Gossamer Holdings | 63654659 | 6/24/2010 | 6/24/2011 | $ | 5,665,707 | |||||||||||
Total Citibank LC’s as of the Closing Date | $ | 8,205,707 | ||||||||||||||
Lender Name | Applicable Percentage | |||
Citibank, N.A. | 35 | % | ||
Morgan Stanley Senior Funding, Inc. | 12.5 | % | ||
Morgan Stanley Bank, N.A. | 12.5 | % | ||
Barclays Bank PLC | 20 | % | ||
Royal Bank of Canada | 20 | % | ||
Total: | 100 | % |
Tranche 1 Revolving | Tranche 1 Applicable | |||||||
Lender Name | Credit Commitment | Percentage | ||||||
Citibank, N.A. | $ | 14,875,000 | 35 | % | ||||
Morgan Stanley Senior Funding, Inc. | $ | 5,312,500 | 12.5 | % | ||||
Morgan Stanley Bank, N.A. | $ | 5,312,500 | 12.5 | % | ||||
Barclays Bank PLC | $ | 8,500,000 | 20 | % | ||||
Royal Bank of Canada | $ | 8,500,000 | 20 | % | ||||
Total: | $ | 42,500,000 | 100 | % |
Tranche 2 Revolving | Tranche 2 Applicable | |||||||
Lender Name | Credit Commitment | Percentage | ||||||
Citibank, N.A. | $ | 2,625,000 | 35 | % | ||||
Morgan Stanley Senior Funding, Inc. | $ | 937,500 | 12.5 | % | ||||
Morgan Stanley Bank, N.A. | $ | 937,500 | 12.5 | % | ||||
Barclays Bank PLC | $ | 1,500,000 | 20 | % | ||||
Royal Bank of Canada | $ | 1,500,000 | 20 | % | ||||
Total: | $ | 7,500,000 | 100 | % |
Chicopee, Inc.
Dominion Textile (USA), L.L.C.
Fabrene, L.L.C.
PGI Europe, Inc.
PGI Polymer, Inc.
Pristine Brands Corporation
159422 Canada Inc.
Albuma S.A.S.
Bonlam, S.A. de C.V.
Bonlam Holdings B.V.
Chicopee Asia, Limited
Chicopee Holdings B.V.
Chicopee Holdings C.V.
Difco Performance Fabrics, Inc.
Dominion Nonwovens Sudamericana S.A.
Dominion Textile Inc.
Dominion Textile Mauritius Inc.
DT Acquisition Inc.
Entralalas DHA S.A.
Fabrene, Inc.
Fusetex Participacoes S/C
Geca-Tapes B V
Geca-Tapes (S) Pte Ltd
Nanhai Nanxin Non-Woven Co. Ltd.
Nordlys S.A.S
PGI Colombia LTDA
PGI Holdings B V
PGI Non-woven (Foshan) Co., Ltd.
PGI Nonwovens B.V.
PGI Nonwovens (China) Co., Ltd.
PGI Nonwovens Limited
PGI Nonwovens (Mauritius)
PGI Neunkirchen GmbH
PGI Nonwovens Switzerland Sarl
PGI Spain S.L.
• | Month-end A/R summary aging | ||
• | Reconciliation of A/R aging to GL | ||
• | A/R Rollforward | ||
• | Reconciliation of Inventory Perpetual to GL Month-end General Ledger |
Owner | Address | Uses | ||
Chicopee, Inc. | 1203 S. Chicopee Road | Manufacturing, Warehousing and Research | ||
Benson, NC 27504 | and Development | |||
Chicopee, Inc. | 111 Excellence Way | Manufacturing, Warehousing and Research | ||
Mooresville, NC | and Development | |||
Chicopee, Inc. | 1020 Shenandoah Village Drive | Manufacturing, Warehousing and Research | ||
Waynesboro, VA 22980 | and Development |
• | Promissory Note having an outstanding amount of $6,252,523 (€4,674,783) as of January 1, 2011, by PGI Neunkirchen, GMBH as debtor. | ||
• | Promissory Note having an outstanding amount of $5,869,851 as of January 1, 2011, by Dominion Textile Mauritius Inc. as debtor. | ||
• | Promissory Note having an outstanding amount of $37,000,000 as of January 25, 2011, by Chicopee Holdings BV as debtor. | ||
• | Promissory Note having an outstanding amount of $10,815,714.94 as of January 28, 2011, by Bonlam SA de CV as debtor. |
c/o The Blackstone Group
345 Park Avenue
New York, NY 10154
Attention: Jason Giordano
Facsimile: (212) 583-5749
Email: Giordano@Blackstone.com
c/o The Blackstone Group
345 Park Avenue
New York, NY 10154
Attention: Jason Giordano
Facsimile: (212) 583-5749
Email: Giordano@Blackstone.com
9335 Harris Corners Pkwy, Suite 300
Charlotte, North Carolina 38269
Attention: Daniel Rikard
Facsimile: (704) 697-5122
Email: rikardd@pginw.com
Website: http://www.polymergroupinc.com
c/o POLYMER GROUP, INC.
9335 Harris Corners Pkwy, Suite 300
Charlotte, North Carolina 38269
Attention: Daniel Rikard
Facsimile: (704) 697-5122
Email: rikardd@pginw.com
c/o POLYMER GROUP, INC.
9335 Harris Corners Pkwy, Suite 300
Charlotte, North Carolina 38269
Attention: Daniel Rikard
Facsimile: (704) 697-5122
Email: rikardd@pginw.com
c/o POLYMER GROUP, INC.
9335 Harris Corners Pkwy, Suite 300
Charlotte, North Carolina 38269
Attention: Daniel Rikard
Facsimile: (704) 697-5122
Email: rikardd@pginw.com
c/o POLYMER GROUP, INC.
9335 Harris Corners Pkwy, Suite 300
Charlotte, North Carolina 38269
Attention: Daniel Rikard
Facsimile: (704) 697-5122
Email: rikardd@pginw.com
c/o POLYMER GROUP, INC.
9335 Harris Corners Pkwy, Suite 300
Charlotte, North Carolina 38269
Attention: Daniel Rikard
Facsimile: (704) 697-5122
Email: rikardd@pginw.com
Business Contact:
Citibank, N.A.
390 Greenwich St, 1/F
New York, NY 10013
Attention: Michael Smolow
Telephone: (212) 723-3761
Facsimile: (646) 861-6221
Email: michael.smolow@citi.com
Citigroup Global Loans
1615 Brett Road
New Castle, DE 19720
Attention: Tracey Wilson
Telephone: (302) 894-6094
Email: tracey.l.wilson@citi.com
1615 Brett Road
New Castle, DE 19720
Attention: Tracey Wilson
Telephone: 302-894-6094
[BORROWER NAME] | ||||
By: | ||||
Name: | ||||
Title: | ||||
1 | Not required for a Committed Loan Notice requesting only a conversion of Loans to the other Type or a continuation of Eurodollar Rate Loans. |
1615 Brett Road
New Castle, DE 19720
Attention: Tracey Wilson
Telephone: 302-894-6094
[BORROWER NAME] | ||||
By: | ||||
Name: | ||||
Title: | ||||
[BORROWER NAME] | ||||
By: | ||||
Name: | ||||
Title: | ||||
Amount of | ||||||||||||
Principal | Outstanding | |||||||||||
End of Interest | or Interest | Principal | ||||||||||
Type of | Amount | Period | Paid | Balance | Notation | |||||||
Date | Loan | of Loan | (If Applicable) | this Date | This Date | Made By | ||||||
B-2-1
[BORROWER NAME] | ||||
By: | ||||
Name: | ||||
Title: | ||||
B-2-2
Amount of | Outstanding | |||||||||||
End of Interest | Principal | Principal | ||||||||||
Type of | Amount | Period | or Interest Paid | Balance | Notation | |||||||
Date | Loan | of Loan | (If Applicable) | this Date | This Date | Made By | ||||||
B-2-3
B-2-1
[BORROWER NAME] | ||||
By: | ||||
Name: | ||||
Title: | ||||
B-2-2
Amount of | Outstanding | |||||||||||
End of Interest | Principal | Principal | ||||||||||
Amount | Period | or Interest Paid | Balance | Notation | ||||||||
Date | Type of Loan | of Loan | (If Applicable) | this Date | This Date | Made By | ||||||
�� | ||||||||||||
B-2-3
1 | For bracketed language here and elsewhere in this form relating to the Assignor(s), if the assignment is to a single Assignor, choose the first bracketed language. If the assignment is to multiple Assignees, choose the second bracketed language. | |
2 | For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a single Assignee, choose the first bracketed language. If the assignment is to multiple Assignees, choose the second bracketed language. | |
3 | Select as appropriate. | |
4 | Include bracketed language if there are either multiple Assignors or multiple Assignees. |
C-1-1
1. | Assignor[s]: | |||||
2. | Assignee[s]: | |||||
[for each Assignee, indicate [Affiliate][Approved Fund] of [identify Lender]] | ||||||
3. | Borrowers: Scorpio Merger Sub Corporation (prior to the Merger, “Lead Borrower”), to be merged with and into Polymer Group, Inc., (the “Company” and, after the Merger, the “Lead Borrower”), as the Lead Borrower, and the other Borrowers from time to time parties to the Credit Agreement. | |||||
4. | Administrative Agent: Citibank, N.A., as the administrative agent under the Credit Agreement. | |||||
5. | Credit Agreement: Credit Agreement, dated as of January 28, 2011 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Scorpio Acquisition Corporation, Scorpio Merger Sub Corporation (prior to the Merger, the “Lead Borrower”), to be merged with and into Polymer Group, Inc., (the “Company” and, after the Merger, the “Lead Borrower”), the other Borrowers from time to time party thereto, Citibank, N.A., as Administrative Agent, the other agents listed therein and each Lender from time to time party thereto. |
C-1-2
6. | Assigned Interest: |
Aggregate | ||||||||||||||||||||
Amount of | ||||||||||||||||||||
Tranche 1 | Amount of | |||||||||||||||||||
Revolving | Tranche 1 | |||||||||||||||||||
Credit | Revolving | |||||||||||||||||||
Commitment | Credit | |||||||||||||||||||
/Tranche 1 | Commitment | |||||||||||||||||||
Revolving | / Tranche 1 | Percentage | ||||||||||||||||||
Credit Loans for | Revolving | Assigned of | ||||||||||||||||||
all | Credit Loans | Commitment | CUSIP | |||||||||||||||||
Assignor[s]1 | Assignee[s]2 | Lenders3 | Assigned | /Loans4 | Number | |||||||||||||||
$ | $ | % | ||||||||||||||||||
$ | $ | % | ||||||||||||||||||
$ | $ | % | ||||||||||||||||||
$ | $ | % |
Aggregate | ||||||||||||||||||||
Amount of | ||||||||||||||||||||
Tranche 2 | Amount of | |||||||||||||||||||
Revolving | Tranche 2 | |||||||||||||||||||
Credit | Revolving | |||||||||||||||||||
Commitment | Credit | |||||||||||||||||||
/Tranche 2 | Commitment | |||||||||||||||||||
Revolving | / Tranche 2 | Percentage | ||||||||||||||||||
Credit Loans for | Revolving | Assigned of | ||||||||||||||||||
all | Credit Loans | Commitment | CUSIP | |||||||||||||||||
Assignor[s] | Assignee[s] | Lenders | Assigned | /Loans | Number | |||||||||||||||
$ | $ | % | ||||||||||||||||||
$ | $ | % | ||||||||||||||||||
$ | $ | % | ||||||||||||||||||
$ | $ | % |
1 | List each Assignor, as appropriate. | |
2 | List each Assignee, as appropriate | |
3 | Amounts in this column and in the column immediately to the right to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date. | |
4 | Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder. |
C-1-3
7. | [Trade Date: ]1 |
ASSIGNOR: [NAME OF ASSIGNOR] | ||||
By: | ||||
Title: | ||||
ASSIGNEE: [NAME OF ASSIGNEE] | ||||
By: | ||||
Title: | ||||
[Consented to and]2 Accepted: CITIBANK, N.A., as Administrative Agent | ||||
By: | ||||
Title: | ||||
1 | To be completed if the Assignor and the Assignee intend that the minimum assignment amount is to be determined as of the Trade Date. | |
2 | To be completed if the Assignor and the Assignee intend that the minimum assignment amount is to be determined as of the Trade Date. |
C-1-4
[Consented to]1 POLYMER GROUP, INC. | ||||
By: | ||||
Title: | ||||
[Consented to]2 | ||||
By: | ||||
Title: | ||||
1 | To be added only if the consent of the Lead Borrower is required by Section 10.06 of the Credit Agreement. | |
2 | To be added only if the consent of the other parties (e.g., Swing Line Lender, L/C Issuer) is required by Section 10.06 of the Credit Agreement. |
C-1-5
ASSIGNMENT AND ASSUMPTION
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1-2
C-2-1
FAX ALONG WITH COMMITMENT LETTER TO: | Tracey Wilson | |||
FAX # 212-994-0849 | ||||
$ | Type of Credit FacilityABL Revolver | |||||||
IV. Domestic Address: | V. Eurodollar Address: | |
Primary | Secondary | |||||
Credit Contact | Operations Contact | Operations Contact | ||||
Name: | ||||||
Title: | ||||||
Address: | ||||||
Telephone: | ||||||
Facsimile: | ||||||
E Mail Address: | ||||||
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Letter of | Draft Documentation | |||||
Credit Contact | Contact | Local Counsel | ||||
Name: | ||||||
Title: | ||||||
Address: | ||||||
Telephone: | ||||||
Facsimile: | ||||||
E Mail Address: | ||||||
Pay to: | ||||
Pay to: | ||||
(Bank Name) | ||||
(ABA #) | (City/State) | |||
(Account #) | (Account Name) | |||
(Attention) |
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Pay to: | Citibank, N.A. | |
ABA # 021-000-089 | ||
New York, NY | ||
Acct. # 3685-2248 | ||
Attn: Tracey Wilson | ||
Ref: Polymer Group, Inc. |
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[Use following paragraph 1 for fiscal year-end financial statements] | |||
1. | Attached hereto asExhibit [A] is the consolidated balance sheet of Holdings and its Subsidiaries and, if different, Holdings and its Restricted Subsidiaries, in each case as at the fiscal year ended [ ], and the related consolidated statements of income or operations, stockholders’ equity and cash flows for such fiscal year (or, in lieu of such additional audited financial statements for Holdings and its Restricted Subsidiaries, a reconciliation, reflecting such financial information for Holdings and its Restricted Subsidiaries, on the one hand, and Holdings and its Subsidiaries, on the other hand), setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, audited and accompanied by a report and opinion of Grant Thornton LLP or any other independent registered public accounting firm of nationally recognized standing1, which report and opinion has been prepared in accordance with generally accepted auditing standards and is not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit. | ||
[Use following paragraph 1 for fiscal quarter-end financial statements] |
1 | Grant Thornton LLP will be used for 2010 fiscal year. |
1. | Attached hereto asExhibit [A] is the consolidated balance sheet of Holdings and its Subsidiaries and, if different, Holdings and its Restricted Subsidiaries, in each case as at the fiscal quarter ended [�� ], and the related (i) consolidated statements of income or operations for such fiscal quarter and for the portion of the fiscal year then ended and (ii) consolidated statements of cash flows for the portion of the fiscal year then ended, setting forth in each case in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year (or, in lieu of such audited financial statements for Holdings and its Restricted Subsidiaries, a reconciliation, reflecting such financial information for Holdings and its Restricted Subsidiaries, on the one hand, and Holdings and its Subsidiaries, on the other hand), all in reasonable detail and each of which fairly presents in all material respects the financial condition, results of operations, stockholders’ equity and cash flows of Holdings and its Subsidiaries and Holdings and its Restricted Subsidiaries, as applicable, in accordance with GAAP, subject only to normal year-end adjustments and the absence of footnotes. |
1. | Attached hereto asExhibit [A] is the unaudited consolidated balance sheet of Holdings and its Subsidiaries and, if different, Holdings and its Restricted Subsidiaries, in each case as at the fiscal month ended [ ], and the related (i) consolidated statements of income or operations for such fiscal month and for the portion of the fiscal year then ended and (ii) consolidated statements of cash flows for the portion of the fiscal year then ended (or, in lieu of such unaudited financial statements for Holdings and its Restricted Subsidiaries, a reconciliation, reflecting such financial information for Holdings and its Restricted Subsidiaries, on the one hand, and Holdings and its Subsidiaries, on the other hand), all in reasonable detail and each of which fairly presents in all material respects the financial condition, results of operations, stockholders’ equity and cash flows of Holdings and its Subsidiaries and Holdings and its Restricted Subsidiaries, as applicable, in accordance with GAAP, subject only to normal year-end adjustments and the absence of footnotes. | ||
2. | Attached hereto asExhibit [B] are (i) a report setting forth the information required by Section 3.03(c) of the Security Agreement or confirming that there has been no change in such information since the Closing Date or the date of the last such report, (ii) a description of each Disposition Casualty Event and Account Debtor Change during the last fiscal quarter covered by this Compliance Certificate and (iii) a list of each Subsidiary that identifies each Subsidiary as a Restricted Subsidiary or an Unrestricted Subsidiary as of the date of delivery of this Compliance Certificate or a confirmation that there is no change in such information since the later of the Closing Date or the date of the last such list. | ||
3. | Except as otherwise disclosed to the Administrative Agent in writing pursuant to the Credit Agreement, at no time during the period covered by the statement of |
income of operations included in the financial statements referred to above did a Default or an Event of Default exist. | |||
4. | Exhibit [C] attached hereto sets forth true, accurate and reasonably detailed calculations with respect to the Average Excess Availability (x) in the case of a delivery of annual or quarterly financial statements, for the fiscal quarter ended on the date of the balance sheet included in such financial statements and (y) in the case of a delivery of monthly financial statements, for the fiscal month ended on the date of the balance sheet included in such financial statements. | ||
5. | The Consolidated Fixed Charge Coverage Ratio for the for the 12-month period ending on the balance sheet date of the financial statements referred to above is [__]:1.0, and Exhibit [D] attached hereto sets forth a true and accurate calculation of such Consolidated Fixed Charge Coverage Ratio. |
SCORPIO ACQUISITION CORPORATION, as Holdings | ||||
By: | ||||
Name: | ||||
Title: | ||||
COMPLIANCE CERTIFICATE
COMPLIANCE CERTIFICATE
COMPLIANCE CERTIFICATE
COMPLIANCE CERTIFICATE
1. | Consolidated EBITDA of Holdings, the Borrowers and their respective Restricted Subsidiaries for the relevant twelve month period (see Attachment 1 hereto); | $ | |||||
2. | Only for purposes of the calculation of the Consolidated Fixed Charge Coverage Ratio under, and as provided in, Section 6.17 of the Credit Agreement, any Specified Equity Contribution made in respect of such period in compliance with the limitations set forth in Section 6.17 of the Credit Agreement; | $ | |||||
3. | Taxes based on income or profits or capital (but not capital gains taxes), including, without limitation, state, franchise and similar taxes (such as the Delaware franchise tax, the Pennsylvania capital tax, the Texas margin tax and provincial income taxes paid in Canada) and foreign withholding taxes and penalties and interest relating to taxes, net of cash refunds received, of Holdings, the Borrowers and their respective Restricted Subsidiaries paid in cash during the relevant twelve month period (excluding any amounts deposited on the Closing Date in an escrow fund to cover liabilities, costs and expenses related to the application of the “personal holding company” rules of the Code); | $ | |||||
4. | Unfinanced Capital Expenditures made by Holdings, the Borrowers and their respective Restricted Subsidiaries during the relevant twelve month period; | $ | |||||
5. | Restricted Payments made pursuant to Section 7.06(h), (i) and (k) of the Credit Agreement during the relevant twelve month period; | $ | |||||
6. | Item 1 plus Item 2 | $ | |||||
7. | Sum of Item 3 through Item 5 | $ | |||||
8. | Item 6 minus Item 7 | $ | |||||
9. | Debt Service Charges payable by Holdings, the Borrowers and their respective Restricted Subsidiaries in cash during the relevant twelve month period | $ | |||||
10. | Consolidated Fixed Charge Coverage Ratio (Item 8 divided by Item 9) | :1.0 |
EXHIBIT D TO
COMPLIANCE CERTIFICATE
1. | Consolidated Net Income for the relevant 12-month period. | $ | |||||
2. | Increased (without duplication) by the following, in each case (other than clauses (h), (j) and (k)) to the extent deducted (and not added back) in determining Consolidated Net Income for the relevant twelve month period: | $ | |||||
(a) provision for taxes based on income or profits or capital gains, including, without limitation, state, franchise and similar taxes (such as the Delaware franchise tax, the Pennsylvania capital tax, Texas margin tax and provincial capital taxes paid in Canada) and foreign withholding taxes and penalties and interest relating to taxes of such Person paid or accrued during the such period deducted and not added back in computing Consolidated Net Income;plus | $ | ||||||
(b) the sum of (x) Consolidated Interest Expense of such Person for such period (including (1) net losses on Swap Obligations or other derivative instruments entered into for the purpose of hedging interest rate risk, (2) bank fees and (3) costs of surety bonds in connection with financing activities, in each case, to the extent included in Consolidated Interest Expense), (y) all cash dividends or other distributions paid (excluding items eliminated in consolidation) on any series of Preferred Stock of any Restricted Subsidiary during such period and (z) all dividends and other distributions accrued (excluding items eliminated in consolidation) on any series of Disqualified Equity Interests during such period, in each case, to the extent the same was deducted (and not added back) in calculating Consolidated Net Income;plus; | $ | ||||||
(c) Consolidated Depreciation and Amortization Expense |
of such Person for such period to the extent the same were deducted (and not added back) in computing Consolidated Net Income;plus | $ | |||||||
(d) any other non-cash charges, including any write-offs or write-downs, reducing Consolidated Net Income for the such period (providedthat if any such non-cash charges represent an accrual or reserve for potential cash items in any future period, the cash payment in respect thereof in such future period shall be subtracted from Consolidated EBITDA to such extent, and excluding amortization of a prepaid cash item that was paid in a prior period);plus | $ | |||||||
(e) the amount of any restructuring charges, integration costs, retention charges, stock option and any other equity-based compensation expenses, start-up or initial costs for any individual new production line, division or new line of business; or other business optimization expenses or reserves including, without limitation, costs or reserves associated with improvements to IT and accounting functions, costs associated with establishing new facilities, deducted (and not added back) in the such period in computing Consolidated Net Income, including any one-time costs incurred in connection with acquisitions before or after the Closing Date and costs related to the closure and/or consolidation of facilities;plus | $ | |||||||
(f) income attributable to non-controlling interests in Subsidiaries to the extent deducted (and not added back) in the such period in calculating Consolidated Net Income;plus | $ | |||||||
(g) the amount of management, monitoring, consulting, customary transaction and advisory fees (including termination fees) and related indemnities and expenses paid or accrued in such period under the Sponsor Management Agreements or otherwise to the Sponsor to the extent otherwise permitted under Section 7.08 of the Credit Agreement (and similar fees paid by Holdings or its Affiliates to investors in Holdings or its Affiliates prior to the Closing Date) and deducted (and not added back) in the such period in computing Consolidated Net Income;plus | $ | |||||||
(h) the amount of net cost savings, synergies and operating | $ |
expense reductions projected by Holdings in good faith to be realized as a result of actions initiated or to be initiated or taken on or prior to the date that is 12 months after the Closing Date or 12 months after the consummation of any acquisition, amalgamation, merger or operational change or other action, plan or transaction and prior to or during such period (calculated on apro formabasis as though such cost savings had been realized on the first day of such period), net of the amount of actual benefits realized during such period from such actions;providedthat (x) such cost savings are reasonably identifiable and quantifiable, (y) no cost savings shall be added pursuant to this clause (h) to the extent duplicative of any expenses or charges relating to such cost savings that are either excluded in computing Consolidated Net Income or included (i.e., added back) in computing “Consolidated EBITDA” for such period and (z) the aggregate amount added back pursuant to this clause (h) included in any four quarter period shall not exceed the greater of $20.0 million and 10.0% of Consolidated EBITDA for such four quarter period;provided, further, that the adjustments pursuant to this clause (h) may be incremental to (but not duplicative of)pro forma adjustments made pursuant to the definition of “Consolidated Fixed Charge Coverage Ratio;”plus | ||||||||
(i) any costs or expense incurred by the Lead Borrower or a Restricted Subsidiary pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement, to the extent that such cost or expenses are funded with cash proceeds contributed to the capital of the Lead Borrower or net cash proceeds of an issuance of Equity Interests of the Lead Borrower (other than Disqualified Equity Interests) solely to the extent that such net cash proceeds are excluded from the calculation of the “Available Amount”;plus | $ | |||||||
(j) (i) lease expense for the use of land, building and equipment of Tesalca-99, S.A. and Texnovo, S.A. in connection with the purchase of certain assets by the Borrowers as of November 30, 2009 (the “Tesalca-Texnovo Acquisition”); (ii) losses incurred as a result of the Tesalca-Texnovo Acquisition for the period from November 30, 2009 through January 2, 2010; |
and (iii) the annualized Consolidated EBITDA attributable to each of Tesalca-99, S.A. and Texnovo, S.A. after giving effect to the Tesalca-Texnovo Acquisition;plus | $ | ||||||
(k) the annualized incremental Consolidated EBITDA contribution of the Borrowers’ spunmelt lines in San Luis Potosi, Mexico and Cali Columbia, in each case, based on the actual run-rate performance for the third quarter of 2010; | $ | ||||||
(l) Sum of Item 2(a) through Item 2(k). | $ | ||||||
3. | Decreased by (without duplication) non-cash gains increasing Consolidated Net Income for the relevant twelve month period, excluding any non-cash gains to the extent they represent the reversal of an accrual or reserve for a potential cash item that reduced Consolidated EBITDA in any prior period. | $ | |||||
4. | Increased, without duplication, by (A) the Acquired EBITDA of any Person, property, business or asset acquired by Holdings, any Borrower or any Restricted Subsidiary (other than in the ordinary course of business) during the relevant twelve month period (but not the Acquired EBITDA of any related Person, property, business or assets to the extent not so acquired), including the commencement of activities constituting such business, and the Acquired EBITDA of any Converted Restricted Subsidiary, based on the actual Acquired EBITDA of such Acquired Entity or Business or Converted Restricted Subsidiary for the relevant twelve month period (including the portion thereof occurring prior to such acquisition or conversion) and (B) excluding the Disposed EBITDA of any Sold Entity or Business and the Disposed EBITDA of any Converted Unrestricted Subsidiary, based on the actual Disposed EBITDA of such Sold Entity or Business or Converted Unrestricted Subsidiary for such period (including the portion thereof occurring prior to such sale, transfer, disposition or conversion). | $ | |||||
Consolidated EBITDA(Item 1 plus Item 2(l) minus Item 3 plus Item 4). | $ |
as Administrative Agent and Collateral Agent
under the Credit Agreement, as hereinafter
defined (the “Agent”)
Re: | Credit Agreement dated as of January 28, 2011 (the “Credit Agreement”), among Scorpio Merger Sub Corporation, a Delaware corporation (“Merger Sub”), Polymer Group, Inc., a Delaware corporation (the “Company”), Scorpio Acquisition Corporation, a Delaware corporation (“Holdings”), PGI Polymer, Inc., a Delaware corporation, Chicopee, Inc., a Delaware corporation, Fabrene, L.L.C., a Delaware limited liability company, Dominion Textile (USA), L.L.C., a Delaware limited liability company, and PGI Europe, Inc., a Delaware corporation (collectively, together with Merger Sub and the Company, the “Borrowers”) the lending institutions identified in the Credit Agreement (the “Lenders”), the other parties named therein and the Agent |
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-8-
Subsidiary | Jurisdiction of Organization | |
PGI Polymer, Inc. | Delaware | |
Chicopee, Inc. | Delaware | |
Fabrene, L.L.C. | Delaware | |
Dominion Textile (USA), L.L.C. | Delaware | |
PGI Europe, Inc. | Delaware |
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SCORPIO ACQUISITION CORPORATION | ||||
By: | ||||
Name: | ||||
Title: | ||||
SCORPIO MERGER SUB CORPORATION | ||||
By: | ||||
Name: | ||||
Title: |
POLYMER GROUP, INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
PGI POLYMER, INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
CHICOPEE, INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
FABRENE, L.L.C. | ||||
By: | ||||
Name: | ||||
Title: | ||||
DOMINION TEXTILE (USA), L.L.C. | ||||
By: | ||||
Name: | ||||
Title: | ||||
PGI EUROPE, INC. | ||||
By: | ||||
Name: | ||||
Title: |
-2-
but Discontinued
-2-
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POLYMER GROUP, INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
1615 Brett Road
New Castle, DE 19720
Attention: Tracey Wilson
Telephone: 302-894-6094
POLYMER GROUP, INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
NON-BANK TAX CERTIFICATE
(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
1-1
[Lender] | ||||
By: | ||||
Name: | ||||
Title: | ||||
[Address] | ||||
1-2
NON-BANK TAX CERTIFICATE
(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
2-1
[Lender] | ||||
By: | ||||
Name: | ||||
Title: | ||||
[Address] | ||||
2-2
NON-BANK TAX CERTIFICATE
(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
3-1
[Participant] | ||||
By: | ||||
Name: | ||||
Title: | ||||
[Address] | ||||
3-2
NON-BANK TAX CERTIFICATE
(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
4-1
[Participant] | ||||
By: | ||||
Name: | ||||
Title: | ||||
[Address] | ||||
4-2