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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549



FORM 10-Q

ý   QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the quarterly period ended July 3, 2010

Or

o

 

TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the transition period from                                    to
Commission file number: 1-14330



POLYMER GROUP, INC.
(Exact name of registrant as specified in its charter)

Delaware   57-1003983
(State or other jurisdiction of
incorporation or organization)
  (I.R.S. Employer Identification No.)

9335 Harris Corners Parkway, Suite 300
Charlotte, North Carolina

 


28269
(Address of principal executive offices)   (Zip Code)

Registrant's telephone number, including area code: (704) 697-5100

Former name, former address and former fiscal year, if changed since last report: None

        Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes  ý No  o

        Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes  ý No.  o

        Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of "large accelerated filer," "accelerated filer," and "smaller reporting company" in Rule 12b-2 of the Exchange Act.

Large accelerated filer o   Accelerated filer o   Non-accelerated filer ý   Smaller reporting company o
        (Do not check if a smaller
reporting company)
   

        Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes  o No  ý

        On August 3, 2010, there were 21,337,352 shares of Class A common stock, 81,917 shares of Class B common stock and 24,319 shares of Class C common stock outstanding. No shares of Class D or Class E common stock were outstanding as of such date. The par value for each class of common stock is $.01 per share.


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POLYMER GROUP, INC.
INDEX TO FORM 10-Q

 
   
  Page  

IMPORTANT INFORMATION REGARDING THIS FORM 10-Q

    3  


PART I. FINANCIAL INFORMATION


 

 

4

 

Item 1.

 

Financial Statements

    4  

Item 2.

 

Management's Discussion and Analysis of Financial Condition and Results of Operations

    45  

Item 3.

 

Quantitative and Qualitative Disclosures About Market Risk

    75  

Item 4.

 

Controls and Procedures

    77  

PART II. OTHER INFORMATION

   
79
 

Item 1.

 

Legal Proceedings

    79  

Item 1A.

 

Risk Factors

    79  

Item 2.

 

Unregistered Sales of Equity Securities and Use of Proceeds

    79  

Item 3.

 

Defaults Upon Senior Securities

    79  

Item 5.

 

Other Information

    79  

Item 6.

 

Exhibits

    79  

Signatures

    80  

2


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IMPORTANT INFORMATION REGARDING THIS FORM 10-Q

        Readers should consider the following information as they review this Form 10-Q:

        The terms "Polymer Group," "Company," "we," "us," and "our" as used in this Form 10-Q refer to Polymer Group, Inc. and its subsidiaries.

Safe Harbor-Forward-Looking Statements

        From time to time, we may publish forward-looking statements relative to matters such as, including, without limitation, anticipated financial performance, business prospects, technological developments, new product introductions, cost savings, research and development activities and similar matters. The Private Securities Litigation Reform Act of 1995 provides a safe harbor for forward-looking statements. Forward-looking statements are generally accompanied by words such as "estimate," "project," "predict," "believe," "expect," "anticipate," "intend," "target" or other words that convey the uncertainty of future events or outcomes.

        Various statements contained in this report, including those that express a belief, expectation or intention, as well as those that are not statements of historical fact are, or may be deemed to be, forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. These forward-looking statements speak only as of the date of this report. Unless required by law, we do not undertake any obligation to update these statements and caution against any undue reliance on them. These forward-looking statements are based on current expectations and assumptions about future events. Although management considers these expectations and assumptions to be reasonable, they are inherently subject to significant business, economic, competitive, regulatory and other risks, contingencies and uncertainties, most of which are difficult to predict and many of which are beyond our control. See Item 1A. "Risk Factors" in our Annual Report on Form 10-K. There can be no assurance that these events will occur or that our results will be as anticipated.

        Important factors that could cause actual results to differ materially from those discussed in such forward-looking statements include:

3


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ITEM 1.     FINANCIAL STATEMENTS


POLYMER GROUP, INC.

CONSOLIDATED BALANCE SHEETS (Unaudited)

(In Thousands, Except Share Data)

 
  July 3,
2010
  January 2,
2010
As Restated
 

ASSETS

             

Current assets:

             
 

Cash and cash equivalents

  $ 62,749   $ 59,521  
 

Accounts receivable, net

    144,173     127,976  
 

Inventories

    109,086     106,820  
 

Deferred income taxes

    3,830     3,612  
 

Other current assets

    35,542     34,382  
           
     

Total current assets

    355,380     332,311  

Property, plant and equipment, net

    311,306     330,415  

Intangibles and loan acquisition costs, net

    8,079     9,006  

Deferred income taxes

    2,648     2,777  

Other assets

    30,438     27,029  
           
     

Total assets

  $ 707,851   $ 701,538  
           

LIABILITIES AND SHAREHOLDERS' EQUITY

             

Current liabilities:

             
 

Short-term borrowings

  $ 8,419   $ 3,690  
 

Accounts payable and accrued liabilities

    197,719     148,042  
 

Income taxes payable

    4,845     3,940  
 

Deferred income taxes

    38      
 

Current portion of long-term debt

    14,075     16,921  
           
   

Total current liabilities

    225,096     172,593  

Long-term debt

    316,001     322,021  

Deferred income taxes

    20,035     21,425  

Other noncurrent liabilities

    33,964     61,280  
           
   

Total liabilities

    595,096     577,319  

Commitments and contingencies

             

Polymer Group, Inc. shareholders' equity:

             
 

Preferred stock—0 shares issued and outstanding

         
 

Class A common stock—21,337,029 and 20,875,378 issued and outstanding at July 3, 2010 and January 2, 2010, respectively

    213     209  
 

Class B convertible common stock—82,917 and 83,807 shares issued and outstanding at July 3, 2010 and January 2, 2010, respectively

    1     1  
 

Class C convertible common stock—24,319 and 24,319 shares issued and outstanding at July 3, 2010 and January 2, 2010, respectively

         
 

Class D convertible common stock—0 shares issued and outstanding

         
 

Class E convertible common stock—0 shares issued and outstanding

         
 

Additional paid-in capital

    212,965     211,768  
 

Retained deficit

    (138,054 )   (137,367 )
 

Accumulated other comprehensive income

    29,231     41,570  
           
   

Total Polymer Group, Inc. shareholders' equity

    104,356     116,181  

Noncontrolling interests

    8,399     8,038  
           
   

Total equity

    112,755     124,219  
           
     

Total liabilities and equity

  $ 707,851   $ 701,538  
           

See Accompanying Notes.

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POLYMER GROUP, INC.

CONSOLIDATED STATEMENTS OF OPERATIONS (Unaudited)

(In Thousands, Except Per Share Data)

 
  Three Months
Ended
July 3, 2010
  Three Months
Ended
July 4, 2009
As Restated
 

Net sales

  $ 289,747   $ 206,040  

Cost of goods sold

    236,471     163,406  
           

Gross profit

    53,276     42,634  

Selling, general and administrative expenses

    35,206     25,507  

Acquisition and integration expenses

    156      

Special charges, net

    5,115     5,882  

Other operating income, net

    (311 )   (2,623 )
           

Operating income

    13,110     13,868  

Other expense:

             
 

Interest expense, net

    8,044     6,659  
 

Foreign currency and other loss, net

    390     2,112  
           

Income before income tax expense and discontinued operations

    4,676     5,097  
 

Income tax expense

    2,913     1,927  
           

Income from continuing operations

    1,763     3,170  

Income from discontinued operations

        1,966  
           

Net income

    1,763     5,136  

Net (income) loss attributable to noncontrolling interests

    (205 )   1,099  
           

Net income attributable to Polymer Group, Inc. 

  $ 1,558   $ 6,235  
           

Earnings per common share attributable to Polymer Group, Inc. common shareholders:

             
 

Basic:

             
   

Continuing operations

  $ 0.07   $ 0.21  
   

Discontinued operations

        0.10  
           
 

Basic

  $ 0.07   $ 0.31  
           
 

Diluted

  $ 0.07   $ 0.31  
           

See Accompanying Notes.

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POLYMER GROUP, INC.

CONSOLIDATED STATEMENTS OF OPERATIONS (Unaudited)

(In Thousands, Except Per Share Data)

 
  Six Months
Ended
July 3, 2010
  Six Months
Ended
July 4, 2009
As Restated
 

Net sales

  $ 569,117   $ 416,050  

Cost of goods sold

    467,504     323,930  
           

Gross profit

    101,613     92,120  

Selling, general and administrative expenses

    68,726     52,489  

Acquisition and integration expenses

    1,680      

Special charges, net

    9,357     8,773  

Other operating income, net

    (1,228 )   (2,975 )
           

Operating income

    23,078     33,833  

Other expense (income):

             
 

Interest expense, net

    16,699     14,098  
 

Gain on reacquisition of debt

        (2,431 )
 

Foreign currency and other loss, net

    878     3,577  
           

Income before income tax expense and discontinued operations

    5,501     18,589  
 

Income tax expense

    5,895     9,462  
           

Income (loss) from continuing operations

    (394 )   9,127  

Income from discontinued operations

        3,907  
           

Net income (loss)

    (394 )   13,034  

Net (income) loss attributable to noncontrolling interests

    (293 )   2,762  
           

Net income (loss) attributable to Polymer Group, Inc. 

  $ (687 ) $ 15,796  
           

Earnings (loss) per common share attributable to Polymer Group, Inc. common shareholders:

             
 

Basic:

             
   

Continuing operations

  $ (0.03 ) $ 0.60  
   

Discontinued operations

        0.20  
           
 

Basic

  $ (0.03 ) $ 0.80  
           
 

Diluted

  $ (0.03 ) $ 0.80  
           

See Accompanying Notes.

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POLYMER GROUP, INC.

CONSOLIDATED STATEMENTS OF CASH FLOWS (Unaudited)

(In Thousands)

 
  Six Months
Ended
July 3, 2010
  Six Months
Ended
July 4, 2009
As Restated
 

Operating activities:

             
 

Net income (loss) attributable to Polymer Group, Inc. 

  $ (687 ) $ 15,796  
 

Adjustments to reconcile net income (loss) attributable to Polymer Group, Inc. to net cash provided by operating activities:

             
   

Asset impairment charge

    709     3,193  
   

Deferred income taxes

    (1,396 )   158  
   

Depreciation and amortization

    23,404     25,271  
   

Gain on reacquisition of debt

        (2,431 )
   

Gain on firm commitment

    (406 )    
   

Gain on sale of assets, net

    (27 )    
   

Non-cash compensation

    2,722     1,805  
 

Changes in operating assets and liabilities:

             
   

Accounts receivable, net

    (23,244 )   18,440  
   

Inventories

    (6,887 )   17,120  
   

Other current assets

    2,938     (749 )
   

Accounts payable and accrued liabilities

    26,563     (19,881 )
   

Other, net

    (6,255 )   1,949  
           
   

Net cash provided by operating activities

    17,434     60,671  
           

Investing activities:

             
 

Purchases of property, plant and equipment

    (9,669 )   (14,960 )
 

Proceeds from sale of assets

    659     1,116  
 

Acquisition of intangibles and other

    (179 )   (142 )
           
   

Net cash used in investing activities

    (9,189 )   (13,986 )
           

Financing activities:

             
     

Proceeds from borrowings

    28,753     31,472  
     

Repayment of borrowings

    (32,563 )   (22,461 )
     

Reacquisition of debt

        (12,333 )
     

Loan acquisition costs

    (166 )   (126 )
           
       

Net cash used in financing activities

    (3,976 )   (3,448 )
           

Effect of exchange rate changes on cash

    (1,041 )   (440 )
           

Net increase in cash and cash equivalents

    3,228     42,797  

Cash and cash equivalents at beginning of period

    59,521     45,718  
           

Cash and cash equivalents at end of period

  $ 62,749   $ 88,515  
           

See Accompanying Notes.

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POLYMER GROUP, INC.

Notes to Consolidated Financial Statements

Note 1. Principles of Consolidation and Financial Statement Information

Principles of Consolidation

        Polymer Group, Inc. (the "Company") is a publicly-traded, leading global innovator, manufacturer and marketer of engineered materials, focused primarily on the production of nonwoven products. The Company has one of the largest global platforms in the industry, with fourteen manufacturing and converting facilities throughout the world, and a presence in nine countries. The Company's main sources of revenue are the sales of primary and intermediate products to the hygiene, medical, wipes and industrial markets.

        The accompanying unaudited interim consolidated financial statements include the accounts of Polymer Group, Inc. and all majority-owned subsidiaries after elimination of all significant intercompany accounts and transactions. The accounts of all foreign subsidiaries have been included on the basis of fiscal periods ended on the same dates as the accompanying unaudited interim consolidated financial statements. All amounts are presented in United States ("U.S.") dollars, unless otherwise noted.

        The accompanying unaudited interim consolidated financial statements and related notes should be read in conjunction with the consolidated financial statements of the Company and related notes contained in the Annual Report on Form 10-K/A for the period ended January 2, 2010. Certain information and footnote disclosures normally included in financial statements prepared in accordance with accounting principles generally accepted in the U.S. ("U.S. GAAP") have been condensed or omitted pursuant to applicable rules and regulations. In the judgment of management, these unaudited interim consolidated financial statements include all adjustments of a normal recurring nature and accruals necessary for a fair presentation of such statements. The results of operations for the interim period are not necessarily indicative of the results which may be realized for the full year. The Consolidated Balance Sheet data included herein as of January 2, 2010 have been derived from the audited consolidated financial statements included in the Company's Annual Report on Form 10-K/A.

Reclassification

        Certain amounts previously presented in the consolidated financial statements for prior periods have been reclassified to conform with the current period presentation. See Note 5 "Discontinued Operations."

        Additionally, the data presented herein for fiscal 2009 and the first quarter of fiscal 2010 has been restated to reflect the amounts reported in the Company's Annual Report on Form 10-K/A for the fiscal year ended January 2, 2010 and the Company's Quarterly Report on Form 10-Q/A for the quarter ended April 3, 2010.

Revenue Recognition

        Revenue from product sales is recognized when title and risks of ownership pass to the customer, which is on the date of shipment to the customer, or upon delivery to a place named by the customer, depending upon contract terms and when collectability is reasonably assured and pricing is fixed or determinable. Revenue includes amounts billed to customers for shipping and handling. Provision for rebates, promotions, product returns and discounts to customers is recorded as a reduction in determining revenue in the same period that the revenue is recognized.

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POLYMER GROUP, INC.

Notes to Consolidated Financial Statements (Continued)

Note 1. Principles of Consolidation and Financial Statement Information (Continued)

Use of Estimates

        The preparation of financial statements in conformity with U.S. GAAP and in accordance with the Financial Accounting Standards Board ("FASB") Accounting Standards Codification ("Codification" or "ASC") requires management to make estimates and assumptions that affect the amounts reported in the financial statements and the related disclosures within the accompanying notes. The accounting estimates that require management's most significant and subjective judgments include the valuation of allowances for accounts receivable and inventory, the assessment of recoverability of long-lived assets, the recognition and measurement of severance-related liabilities, the recognition and measurement of current and deferred income tax assets and liabilities (including the measurement of uncertain tax positions), the valuation and recognition of share-based compensation, valuation of obligations under the Company's pension and retirement benefit plans and the fair value of financial instruments and non-financial assets and liabilities. Actual results could differ from those estimates. These estimates are reviewed periodically to determine if a change is required.

Stock-Based Compensation

        The Company accounts for stock-based compensation related to its employee share-based plans in accordance with ASC Topic 718, "Compensation—Stock Compensation" ("ASC 718"). The compensation costs recognized are measured based on the grant-date fair value of the award. Consistent with ASC 718, awards are considered granted when all required approvals are obtained and when the participant begins to benefit from, or be adversely affected by, subsequent changes in the price of the underlying shares and, regarding awards containing performance conditions, when the Company and the participant reach a mutual understanding of the key terms of the performance conditions. Additionally, accruals for compensation costs for share-based awards with performance conditions are based on the probability of satisfying the performance conditions. The Company has estimated the fair value of each stock option grant by using the Black-Scholes option-pricing model. Assumptions are evaluated and revised, as necessary, to reflect market conditions and experience.

Special Charges

        The Company records severance-related expenses once they are both probable and estimable in accordance with ASC 712, "Compensation—Nonretirement Postemployment Benefits" ("ASC 712"), for severance provided under an ongoing benefit arrangement. One-time, involuntary benefit arrangements and disposal costs, contract termination costs and other exit costs are accounted in accordance with ASC 420, "Exit or Disposal Cost Obligations" ("ASC 420"). The Company reviews long-lived assets for impairment whenever events or changes in circumstances indicate that the carrying values may not be recoverable from future undiscounted cash flows. If the carrying amounts are not recoverable, the Company, consistent with the provisions of ASC 360, records a non-cash charge associated with the write-down of such assets to estimated fair value. Fair value is estimated based on the present value of expected future cash flows, appraisals and other indicators of value.

Derivatives

        The Company records all derivative instruments as either assets or liabilities on the balance sheet at their fair value in accordance with ASC 815, "Derivatives and Hedging" ("ASC 815"). Changes in the fair value of a derivative are recorded each period in current earnings or other comprehensive income,

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POLYMER GROUP, INC.

Notes to Consolidated Financial Statements (Continued)

Note 1. Principles of Consolidation and Financial Statement Information (Continued)


depending on whether a derivative is designated as part of a hedge transaction and, if it is, depending on the type of hedge transaction. Ineffective portions, if any, of all hedges are recognized in earnings.

        As more fully described in Note 13 "Derivative and Other Financial Instruments and Hedging Activities" to the consolidated financial statements, the Company, in the normal course of business, periodically enters into derivative financial instruments, principally swaps and forward contracts, with high-quality counterparties as part of its risk management strategy. These financial instruments are limited to non-trading purposes and are used principally to manage market risks and reduce the Company's exposure to fluctuations in foreign currency and interest rates. Most interest rate swaps and foreign exchange forward contracts have been designated as cash flow hedges of the variability in cash flows associated with interest payments to be made on variable rate debt obligations or fair value hedges of foreign currency-denominated transactions.

        The Company documents all relationships between hedging instruments and hedged items, as well as the risk-management objective and strategy for undertaking various hedge transactions and the methodologies that will be used for measuring effectiveness and ineffectiveness. This process includes linking all derivatives that are designated as cash flow or fair value hedges to specific assets and liabilities on the balance sheet or to specific firm commitments. The Company then assesses, both at the hedge's inception and on an ongoing basis, whether the derivatives that are used in hedging transactions are expected to be highly effective in offsetting changes in fair values or cash flows of hedged items. Such assessments are conducted in accordance with the originally documented risk management strategy and methodology for that particular hedging relationship.

        For cash flow hedges, the effective portion of recognized derivative gains and losses reclassified from other comprehensive income is classified consistent with the classification of the hedged item. For example, derivative gains and losses associated with hedges of interest rate payments are recognized in Interest expense, net in the Consolidated Statements of Operations.

        For fair value hedges, changes in the value of the derivatives, along with the offsetting changes in the fair value of the underlying hedged exposure are recorded in earnings each period in Foreign currency and other (gain) loss, net in the Consolidated Statements of Operations.

Gain on Reacquisition of Debt

        The Company, through its subsidiaries, may make market purchases of its first lien term loan under its Credit Facility (defined in Note 9 "Debt") from its existing lenders at a discount to the carrying value of the debt. Under these agreements, the Company's subsidiary will acquire the rights and obligations of a lender under the Credit Facility, to the extent of the amount of debt acquired, and the selling third-party lender will be released from its obligations under the Credit Facility. The Company accounts for such reacquisition of debt as a transfer of financial assets resulting in a sale and derecognizes such liability in accordance with the authoritative literature and includes such amounts in Gain on Reacquisition of Debt in the Consolidated Statements of Operations.

Accumulated Other Comprehensive Income

        Accumulated other comprehensive income of $29.2 million at July 3, 2010 consisted of $33.8 million of currency translation gains (net of income taxes of $3.5 million), ($2.2) million of transition net assets, gains or losses and prior service costs not recognized as components of net periodic benefit costs and

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POLYMER GROUP, INC.

Notes to Consolidated Financial Statements (Continued)

Note 1. Principles of Consolidation and Financial Statement Information (Continued)


$(2.4) million of cash flow hedge losses. Accumulated other comprehensive income of $41.6 million at January 2, 2010 consisted of $47.5 million of currency translation gains (net of income taxes of $7.9 million), ($2.6) million of transition net assets, gains or losses and prior service costs not recognized as components of net periodic benefit costs and $(3.3) million of cash flow hedge losses. Comprehensive income for the three months ended July 3, 2010 and July 4, 2009 amounted to a loss of $5.3 million and income of $10.8 million, respectively. Comprehensive income for the six months ended July 3, 2010 and July 4, 2009 amounted to a loss of $13.0 million and income of $16.9 million, respectively.

Recent Accounting Standards

        In June 2009, the FASB issued authoritative guidance which established the ASC as the source of authoritative U.S. GAAP recognized by the FASB to be applied to nongovernmental entities. Under the new guidance, as prescribed by ASC 105, "Generally Accepted Accounting Principles", accounting literature references in consolidated financial statements issued beginning in the third quarter of fiscal 2009 will primarily reference sections of the Codification instead of a specific original accounting pronouncement. The Company adopted the authoritative guidance in the third quarter of fiscal 2009.

        In September 2006, the FASB issued authoritative guidance that amends ASC 820, "Fair Value Measurements and Disclosures" ("ASC 820") by issuing ASC 820-10-65. ASC 820-10-65 provides additional guidance on estimating fair value when the volume and level of activity for an asset or liability have significantly decreased. ASC 820-10-65 also includes guidance on identifying circumstances that indicate a transaction is not orderly, and emphasizes that, regardless of whether the volume and level of activity for an asset or liability have decreased significantly and regardless of which valuation technique was used, the objective of a fair value measurement under ASC 820 remains the same—to estimate the price that would be received to sell an asset or transfer a liability in an orderly transaction between market participants at the measurement date under current market conditions. ASC 820-10-65 also requires expanded disclosures. ASC 820-10-65 was effective for interim and annual periods ending after June 15, 2009, with early adoption permitted for periods ending after March 15, 2009. The Company adopted ASC 820-10-65 as of July 4, 2009 and applied its provisions prospectively by providing the additional disclosures in its unaudited interim consolidated financial statements. See Note 14 "Fair Value of Financial Instruments and Non-Financial Assets and Liabilities" for additional information.

        In April 2009, guidance as prescribed by ASC 825, "Financial Instruments" ("ASC 825") was issued and requires, on an interim basis, disclosures about the fair value of financial instruments for public entities. ASC 825 is effective for interim and annual periods ending after June 15, 2009, with early adoption permitted for periods ending after March 15, 2009. An entity may early adopt ASC 825 only if it concurrently adopts both ASC 320, "Investments—Debt and Equity Securities" and ASC 820-10-65. The Company adopted ASC 825 effective July 4, 2009.

        In May 2009, the FASB issued authoritative guidance, as prescribed by ASC 855, "Subsequent Events", which established standards of accounting for events that occur after the balance sheet date and disclosures of events that occur after the balance sheet date but before the financial statements are issued. The new guidance introduces new terminology, defines a date through which management must evaluate subsequent events, and lists circumstances under which the Company must recognize and disclose subsequent events or transactions occurring after the balance sheet date. This guidance was effective for interim or annual financial periods ending after June 15, 2009 and was applied by the

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POLYMER GROUP, INC.

Notes to Consolidated Financial Statements (Continued)

Note 1. Principles of Consolidation and Financial Statement Information (Continued)


Company as of July 4, 2009. In February 2010, the FASB issued Accounting Standards Update ("ASU") 2010-09, "Amendments to Certain Recognition and Disclosure Requirements" ("ASU 2010-09") which is effective as of February 24, 2010. ASU 2010-09 clarified the guidance to indicate that SEC filers are required to evaluate subsequent events through the date financial statements are issued, but are not required to disclose the date through which subsequent events were evaluated.

        In June 2009, the FASB issued authoritative guidance to revise the approach to determine when a variable interest entity ("VIE") should be consolidated. The new consolidation model for VIEs considers whether the Company has the power to direct the activities that most significantly impact the VIEs economic performance and shares in the significant risks and rewards of the entity. The new guidance on VIEs requires companies to continually reassess VIEs to determine if they are required to apply the new criteria, as prescribed by ASC 810, to determine the accounting and reporting requirements related to VIEs. In December 2009, the FASB issued ASU 2009-17, "Amendments to Accounting for Variable Interest Entities," ("ASU 2009-17") to amend ASC 810 to clarify how enterprises should account for and disclose their involvement with VIEs. The Company adopted the revised guidance for the accounting for VIEs, pursuant to ASC 810, effective January 3, 2010. The adoption of the revised accounting guidance for VIEs did not have a significant effect on the Company's consolidated financial statements. See Note 4 "Acquisitions" for additional information.

        In August 2009, the FASB issued ASU 2009-05, "Measuring Liabilities at Fair Value", to amend ASC 820 to clarify how entities should estimate the fair value of liabilities. ASC 820, as amended, includes clarifying guidance for circumstances in which a quoted price in an active market is not available, the effect of the existence of liability transfer restrictions, and the effect of quoted prices for the identical liability, including when the identical liability is traded as an asset. The amended guidance in ASC 820 on measuring liabilities at fair value is effective for the first interim or annual reporting period beginning after August 28, 2009, with earlier application permitted. The Company adopted the amended guidance in ASC 820 beginning July 5, 2009 by providing additional disclosures in its interim consolidated financial statements.

        In October 2009, the FASB issued ASU 2009-13, "Multiple-Deliverable Revenue Arrangements—a consensus of the FASB Emerging Issues Task Force", to amend certain guidance in ASC 605, "Revenue Recognition" ("ASC 605"), specifically as related to "Multiple-Element Arrangements" ("ASC 605-25"). The amended guidance in ASC 605-25: (1) modifies the separation criteria by eliminating the criterion that requires objective and reliable evidence of fair value for the undelivered item(s), and (2) eliminates the use of the residual method of allocation and instead requires that arrangement consideration be allocated, at the inception of the arrangement, to all deliverables based on their relative selling price. The amended guidance in ASC 605-25 is effective prospectively for revenue arrangements entered into or materially modified in fiscal years beginning on or after June 15, 2010, with early application and retrospective application permitted. The Company prospectively applied the amended guidance in ASC 605-25 beginning January 3, 2010. The adoption of the amendments to ASC 605-25 did not have a significant effect on the Company's consolidated financial statements.

        In January 2010, the FASB issued ASU 2010-06, "Fair Value Measurements and Disclosures (Topic 820)—Improving Disclosures about Fair Value Measurements." This guidance clarifies and requires new disclosures about fair value measurements. The clarifications and requirement to disclose the amounts and reasons for significant transfers between Level 1 and Level 2, as well as significant transfers in and out of Level 3 of the fair value hierarchy established by ASC 820, were adopted by the Company in the

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POLYMER GROUP, INC.

Notes to Consolidated Financial Statements (Continued)

Note 1. Principles of Consolidation and Financial Statement Information (Continued)


first quarter of fiscal 2010. Note 14, "Fair Value of Financial Instruments and Non-Financial Assets and Liabilities" reflects the amended disclosure requirements. Additionally, the new guidance also requires that purchases, sales, issuance, and settlements be presented gross in the Level 3 reconciliation, which is used to price the hardest to value instruments (the "disaggregation guidance"). The disaggregation guidance will be effective beginning with interim periods in fiscal year 2011. Since this guidance only amends the disclosure requirements, the Company does not anticipate that the adoption of ASU 2010-06 will have a material impact on its consolidated financial statements.

Note 2. Concentration of Credit Risks and Accounts Receivable Factoring Agreements

        Accounts receivable potentially expose the Company to a concentration of credit risk. The Company provides credit in the normal course of business and performs ongoing credit evaluations on its customers' financial condition, as deemed necessary, but generally does not require collateral to support such receivables. Customer balances are considered past due based on contractual terms and the Company does not accrue interest on the past due balances. Also, in an effort to reduce its credit exposure to certain customers, as well as accelerate its cash flows, the Company has sold on a non-recourse basis, certain of its receivables pursuant to factoring agreements. The provision for losses on uncollectible accounts is determined principally on the basis of past collection experience applied to ongoing evaluations of the Company's receivables and evaluations of the risk of repayment. The allowance for doubtful accounts was approximately $8.4 million and $9.1 million at July 3, 2010 and January 2, 2010, respectively, which management believes is adequate to provide for credit losses in the normal course of business, as well as losses for customers who have filed for protection under bankruptcy laws. Once management determines that the receivables are not recoverable, the amounts are removed from the financial records along with the corresponding reserve balance. Sales to the Procter & Gamble Company ("P&G") accounted for 13% and 10% of the Company's sales in the first six months of fiscal 2010 and 2009, respectively.

        The Company has entered into a factoring agreement to sell, without recourse or discount, certain U.S. company-based receivables to an unrelated third-party financial institution. Under the current terms of this factoring agreement, the maximum amount of outstanding advances at any one time is $20.0 million, which limitation is subject to change based on the level of eligible receivables, restrictions on concentrations of receivables and the historical performance of the receivables sold. Additionally, the Company has entered into factoring agreements to sell without recourse or discount, certain non-U.S. company-based receivables to unrelated third-party financial institutions. Under the terms of the Company's senior credit facility agreements, the maximum amount of non-U.S. outstanding advances at any one time is $20.0 million.

        During the first six months of fiscal 2010, approximately $120.6 million of gross receivables have been sold under the terms of these factoring agreements, compared to approximately $97.6 million during the first six months of fiscal 2009. The sale of these receivables accelerated the collection of the Company's cash and reduced credit exposure. Such sales of accounts receivable are reflected as a reduction of Accounts receivable, net in the Consolidated Balance Sheets as they meet the applicable criteria noted in ASC 860, "Transfers and Servicing" ("ASC 860"), for financial instruments. The gross amount of trade receivables sold to the factoring companies and, therefore, excluded from the Company's accounts receivable, was $40.9 million and $35.1 million as of July 3, 2010 and January 2, 2010, respectively. The amount due from the factoring companies, net of advances received from the factoring companies, was $6.4 million and $6.1 million at July 3, 2010 and January 2, 2010, respectively,

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POLYMER GROUP, INC.

Notes to Consolidated Financial Statements (Continued)

Note 2. Concentration of Credit Risks and Accounts Receivable Factoring Agreements (Continued)


and is shown in Other current assets in the Consolidated Balance Sheets. Net of amounts due from factoring companies, the net outstanding balance of factored receivables was $34.5 million and $29.0 million at July 3, 2010 and January 2, 2010, respectively. The Company pays factoring fees associated with the sale of receivables based on the dollar value of the receivables sold. Such fees, which are considered to be primarily related to the Company's financing activities, are immaterial and are included in Foreign currency and other loss, net in the Consolidated Statements of Operations.

Note 3. Special Charges, Net

        The Company's operating income includes Special charges, net and this amount represents the consequences of corporate-level decisions or Board of Directors actions, principally associated with initiatives attributable to restructuring and realignment of manufacturing operations and management structures and pursuit of certain transaction opportunities. Additionally, the Company evaluates its long-lived assets for impairment whenever events or changes in circumstances, including the aforementioned, indicate that the carrying amounts may not be recoverable. A summary of such charges, net is presented in the following table (in thousands):

 
  Three Months
Ended
July 3,
2010
  Three Months
Ended
July 4,
2009
  Six Months
Ended
July 3,
2010
  Six Months
Ended
July 4,
2009
 

Asset impairment charges

    709   $ 1,593   $ 709   $ 3,193  

Restructuring and plant realignment costs

  $ 2,766     4,204   $ 6,983     5,488  

Other costs

    1,640     85     1,665     92  
                   

  $ 5,115   $ 5,882   $ 9,357   $ 8,773  
                   

Asset impairment charges

        During the second quarter of fiscal 2010, the Company recorded a non-cash impairment charge of $0.7 million related to the write-down of assets held for sale in Neunkirchen, Germany to their estimated fair value less costs to sell.

        During the second quarter of fiscal 2009, the Company recorded a non-cash impairment charge of $1.6 million related to the write-down of certain property and equipment in North Little Rock, Arkansas to their estimated fair value less costs to sell. During the first quarter of fiscal 2009, the Company recorded non-cash impairment charges of $1.6 million related to the write-down of assets held for sale in Neunkirchen, Germany to their estimated fair value less costs to sell. See Note 14 "Fair Value of Financial Instruments and Non-Financial Assets and Liabilities" for the fair value measurement disclosures related to these assets.

Restructuring and plant realignment costs

        Accrued costs for restructuring and plant realignment efforts are included in Accounts payable and accrued liabilities in the Consolidated Balance Sheets. These costs generally arise from restructuring initiatives intended to result in lower working capital levels and improved operating performance and profitability through: (i) reducing headcount at both the plant and corporate levels and the realignment of

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POLYMER GROUP, INC.

Notes to Consolidated Financial Statements (Continued)

Note 3. Special Charges, Net (Continued)


management structures; (ii) improving manufacturing productivity and reducing corporate costs; and (iii) rationalizing certain assets, businesses and employee benefit programs. The following table summarizes the components of the accrued liability with respect to the Company's business restructuring activities as of, and for, the six month period ended July 3, 2010 (in thousands):

Balance accrued at beginning of year

  $ 2,803  

2010 restructuring and plant realignment costs

    6,983  

Cash payments

    (7,181 )

Adjustments

    147  
       

Balance accrued at end of period

  $ 2,752  
       

        The restructuring and plant realignment costs in the second quarter of fiscal 2010 are comprised of: (i) $2.5 million of severance and other shut-down costs for restructuring activities in the United States; (ii) $0.3 million of severance and other shut-down costs for restructuring initiatives in Europe and Argentina.

        The restructuring and plant realignment costs in the first six months of fiscal 2010 are comprised of: (i) $6.5 million of severance and other shut-down costs for restructuring activities in the United States; (ii) $0.3 million of severance and other shut-down costs for restructuring initiatives in Europe; and (iii) $0.2 million of severance costs for restructuring initiatives in Argentina.

        On June 9, 2009, the Board of Directors of the Company approved a plan to consolidate its operations in the U.S. In June 2009, the Company communicated a plan to affected employees that it planned to close its North Little Rock, Arkansas manufacturing plant by the end of the first quarter of fiscal 2010 to better align the Company's capabilities with its long-term strategic direction and reduce overall operating costs. The plant closing included the reduction of approximately 140 positions when such efforts are completed. During the second quarter of fiscal 2010, the Company recognized $0.1 million of employee termination costs, $2.3 million for equipment relocation and associated shut-down costs related to the closure of the North Little Rock plant and $0.1 million for shutdown costs related to other plants. During the first six months of fiscal 2010, the Company recognized $0.3 million of employee termination costs, $6.1 million for equipment relocation and associated shut-down costs related to the closure of the North Little Rock plant and $0.1 million for shutdown costs related to other plants. The Company estimates that it will recognize total cash restructuring charges of approximately $18.5 million to $19.2 million during portions of fiscal 2009 and 2010, comprised of approximately $2.0 million related to employee termination expenses and $16.5 million to $17.2 million for equipment relocation and associated shut-down costs. Of the total spending, $17.7 million has been recognized from the commencement in 2009 through the end of the second quarter of fiscal 2010, including $11.2 million recognized in fiscal 2009. The Company expects to recognize the remaining $0.8 million to $1.5 million by the end of fiscal 2010.

        In March 2010, the Company communicated a plan to affected employees that it planned to close and dispose of the coating manufacturing line associated with its Argentina manufacturing operation in the second quarter of fiscal 2010 as part of the region's strategic plan. The closing included the reduction of approximately eighteen positions, of which six occurred in the first quarter and the remaining twelve positions in the second quarter. The Company recognized $0.2 million for employee termination costs in the first six months of fiscal 2010, which related to the terminations that were

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POLYMER GROUP, INC.

Notes to Consolidated Financial Statements (Continued)

Note 3. Special Charges, Net (Continued)


finalized in both the first and second quarters. The Company closed the manufacturing line in April 2010 and expects to sell the equipment for an amount in excess of its net book value, less costs to sell. Accordingly, no impairment charge was recorded in the first six months of fiscal 2010. The Company expects to use the proceeds to reduce its bank debt in Argentina.

        In April 2010, the Company announced that it planned to evaluate strategic alternatives to unlock shareholder value created by the Company's performance in fiscal 2009, its continued growth initiatives and its improved financial flexibility. The strategic alternatives could include, among other things, the sale, merger or recapitalization of the Company. The Company did not set a definitive timetable for the completion of its evaluation and there can be no assurances that the process will result in any transaction being announced or being completed.

        During the second quarter, the Company paid fees of approximately $0.5 million for professional services and incurred additional fees of approximately $1.0 million. The discussions regarding the transactions are still ongoing.

        The restructuring and plant realignment costs in the first six months of fiscal 2009 totaled $5.5 million. This was comprised of: (i) $3.2 million of severance and other shut-down costs associated with the previously announced closure of the Neunkirchen, Germany manufacturing plant; (ii) $2.1 million of severance and other shut-down costs related to facilities in the United States; and (iii) $0.2 million of severance costs related to restructuring initiatives in Canada.

Note 4. Acquisitions

        On October 30, 2009, the Company announced that it completed the purchase transaction of the remaining 40% stake in Dominion Nonwovens Sudamericana, S.A. from its partner, Guillermo E. Kraves. The purchase price was approximately $4.1 million. In accordance with ASC 810, the Company has accounted for this transaction as an equity transaction, and no gain or loss has been recognized on the transaction. The carrying amount of this noncontrolling interest has been adjusted in the amount of $0.6 million to reflect the change in ownership, and the difference between the purchase price and the amount by which the noncontrolling interest was adjusted resulted in a reduction to paid-in capital of $3.5 million. Additionally, the Company also paid $2.4 million to an affiliate of Mr. Kraves in satisfaction of amounts previously accrued for services.

        On December 2, 2009, the Company completed the initial phase of the acquisition, from Grupo Corinpa, S.L. ("Grupo Corinpa"), of certain assets and the operations of the nonwovens businesses of Tesalca-99, S.A. and Texnovo, S.A. (together with Tesalca-99, S.L., "Tesalca-Texnovo" or the "Sellers"), which are headquartered in Barcelona, Spain (the "Transaction"). The acquisition was completed by the Company through PGI Spain, which operates as a new wholly owned subsidiary of the Company.

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POLYMER GROUP, INC.

Notes to Consolidated Financial Statements (Continued)

Note 4. Acquisitions (Continued)

        The acquired assets include the net operating working capital as of November 30, 2009 (defined as current assets less current liabilities excluding financial liabilities associated with the operations) valued at $10.9 million, the customer lists and the current book of business. Concurrent with the Transaction, the Company entered into a seven year lease (beginning December 2, 2009 and ending December 31, 2016) with Tesalca-Texnovo that provides that PGI Spain is entitled to the full and exclusive use of the Sellers' land, building and equipment during the term of the lease (the "Building and Equipment Lease"). PGI Spain is obligated to make total lease payments of approximately €29.0 million to Tesalca-Texnovo during the term of the Building and Equipment Lease agreement. The first lease payment of approximately €1.25 million was made on March 31, 2010 and further quarterly payments of approximately €1.25 million will be due for the first three years of the lease. Further, the quarterly lease payments for the remaining four years will be approximately €0.9 million per quarter. Pursuant to ASC 840, the Building and Equipment Lease agreement has been accounted for as an operating lease. Furthermore, pursuant to ASC 840-20-25-2, PGI Spain will recognize rent expense on a straight-line basis over the lease term in Cost of goods sold in its Consolidated Statements of Operations. See Note 18, "Commitments and Contingencies" for additional information on the Building and Equipment Lease.

        Further, as part of the Transaction, PGI Spain granted the Sellers a put option over the assets underlying the Building and Equipment Lease (the "Phase II Assets") until December 31, 2012 (the "Put Option"). The Sellers right to exercise the Put Option is dependent upon whether the results of the operations of PGI Spain meet the EBITDAR (earnings before interest, taxes, depreciation, amortization and rent, all as defined in the acquisition agreement) performance projection of €7.7 million, excluding lease payments ("EBITDAR Projection"), for either fiscal year 2010 or 2011 (the "Performance Period"). Furthermore, the Sellers granted PGI Spain a call option over the assets underlying the Phase II Assets, which expires on December 31, 2012 (the "Call Option"). If the results of the operations of PGI Spain do not meet the EBITDAR Projection for the Performance Period, then the Sellers' Put Option cannot be exercised and thus would expire at the end of its term. In the event that either the Put Option or Call Option is not exercised, the parties are obligated to continue with the Building and Equipment Lease until December 31, 2016.

        Consideration for the acquired assets consisted of approximately 1.049 million shares of the Company's Class A common stock ("Issued Securities"), which represented approximately 5.0% of the outstanding share capital of the Company on December 2, 2009, taking into account the Issued Securities. The Issued Securities are subject to certain restrictions, including that the Issued Securities are not registered pursuant to the Securities Act of 1933 (see Note 15 "Earnings Per Share and Shareholder's Equity" for further details). On December 2, 2009, the fair value of the Issued Securities approximated $14.5 million.

        During the first six months of fiscal 2010, the Company incurred $1.7 million of acquisition and integration related expenses attributable to the acquisition of Tesalca-Texnovo. These expenses were attributable to accountant, legal and advisory fees of $0.7 million associated with due diligence and the closing of the Transaction. In addition, $0.8 million was incurred for employee termination costs pursuant to a facility restructuring. In January 2010, the Company communicated a plan to affected employees that it planned to restructure its manufacturing operations in Spain during the first quarter of fiscal 2010 to reduce its overall cost structure. The realignment included the reduction of approximately ten positions in the first quarter of fiscal 2010. There were no such expenses during the first quarter of fiscal

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POLYMER GROUP, INC.

Notes to Consolidated Financial Statements (Continued)

Note 4. Acquisitions (Continued)


2009. In accordance with ASC 805, these expenses are recorded as a period cost in Acquisition and integration expenses in the Company's Consolidated Statements of Operations.

        The Company recorded intangible assets of €0.6 million and €1.8 million associated with customer relationships and goodwill, respectively, in the purchase price allocation. The customer relationships intangible asset has an economic useful life of 5 years.

        The Company has concluded that Tesalca-Texnovo does not meet the criteria to be considered a variable interest entity. The Company reached this conclusion in accordance with its reevaluation of ASC 810, based on both the accounting guidance prior to the revisions that came into effect on January 3, 2010 and the revised accounting guidance that came into effect on January 3, 2010. Accordingly, the Company has concluded that it would not be appropriate to consolidate the financial results of Tesalca-Texnovo within its consolidated financial statements.

Note 5. Discontinued Operations

        During fiscal 2009, the Company determined that, in accordance with ASC 360, the assets of Fabpro Oriented Polymers LLC ("Fabpro") represented assets held for sale. Accordingly, the operations of Fabpro, previously included in the Oriented Polymers segment, have been reported as discontinued operations, as the cash flows of Fabpro are eliminated from the ongoing operations of the Company as a result of the disposal transaction, and the Company will have no continuing involvement in the operations of the business after the disposal transaction. The Company decided to sell this business as part of its continuing effort to evaluate its businesses and product lines for strategic fit within its operations. The Company completed the sale of Fabpro during the third quarter of fiscal 2009.

        As a result, this business has been accounted for as a discontinued operation in accordance with the authoritative guidance for the three and six months ended July 4, 2009. Accordingly, the results of operations of Fabpro have been segregated from continuing operations and included in Income from discontinued operations in the Consolidated Statements of Operations. In accordance with the authoritative guidance related to the reporting of cash flows, the Company elected not to separate the disclosure of cash flows pertaining to discontinued operations. Net cash flows from investing and financing activities of the discontinued operation were not significant.

        The following amounts, which relate to our Oriented Polymers segment, have been segregated from continuing operations and included in Income from discontinued operations (in thousands ) :

 
  Three Months
Ended
July 4,
2009
  Six Months
Ended
July 4,
2009
 

Net sales

  $ 13,638   $ 30,871  
           

Pre-tax income

  $ 1,966   $ 3,907  

Income tax expense

         
           

Net income

  $ 1,966   $ 3,907  
           

        Pre-tax income of discontinued operations includes interest expense allocated to Fabpro resulting from interest on debt that is required to be repaid as a result of the disposal transaction of $0.2 million and $0.4 million for the second quarter and first six months of fiscal 2009, respectively. Income tax

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POLYMER GROUP, INC.

Notes to Consolidated Financial Statements (Continued)

Note 5. Discontinued Operations (Continued)


expense associated with the income of Fabpro reflects a benefit for the utilization of net operating loss carryforwards, for which a valuation allowance had been previously established.

Note 6. Inventories

        Inventories are stated at the lower of cost or market primarily using the first-in, first-out method of accounting and consist of the following (in thousands):

 
  July 3,
2010
  January 2,
2010
Restated
 

Finished goods

  $ 54,216   $ 58,974  

Work in process

    15,261     13,281  

Raw materials and supplies

    39,609     34,565  
           

  $ 109,086   $ 106,820  
           

        Inventories are net of reserves, primarily for obsolete and slow-moving inventories, of approximately $7.5 million and $8.1 million at July 3, 2010 and January 2, 2010, respectively. Management believes that the reserves are adequate to provide for losses in the normal course of business.

Note 7. Intangibles and Loan Acquisition Costs

        Intangibles and loan acquisition costs consist of the following (in thousands):

 
  July 3,
2010
  January 2,
2010
 

Cost:

             
 

Goodwill

  $ 2,234   $ 2,588  
 

Customer relationships

    706     818  
 

Proprietary technology

    3,204     3,027  
 

Loan acquisition costs

    4,544     4,378  
 

Other

    1,840     2,114  
           

    12,528     12,925  

Less accumulated amortization

    (4,449 )   (3,919 )
           

  $ 8,079   $ 9,006  
           

        As discussed earlier in Note 4 "Acquisitions", the Company recognized both goodwill and customer relationships in Euros as intangible assets attributable to the Spain acquisition. The customer relationships intangible asset has an economic useful life of 5 years and will be amortized over a 5-year period.

        In accordance with ASC 350, the Company will not amortize the goodwill, but instead will evaluate goodwill for impairment at least on an annual basis beginning with fiscal year 2010. Furthermore, the Company will perform a test for impairment on a more frequent basis should an event occur that indicates the goodwill might be impaired.

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POLYMER GROUP, INC.

Notes to Consolidated Financial Statements (Continued)

Note 7. Intangibles and Loan Acquisition Costs (Continued)

        In September 2009, the Company amended its Credit Facility, which included a substantial modification to its first lien term loan, which modification has been treated as an extinguishment of debt pursuant to ASC 470-50, "Debt". As a result, a portion of the unamortized loan acquisition costs associated with the November 2005 financing in the amount of $3.5 million were written-off and, together with $1.6 million of third-party costs incurred in connection with the amendment, were included in Loss on extinguishment of debt in the Consolidated Statements of Operations in the third quarter of fiscal 2009. In addition, approximately $2.6 million of financing costs associated with the amendment of the Credit Facility were capitalized in the third quarter of fiscal 2009. Additionally, the Company capitalized approximately $0.2 million of financing costs associated with the conversion of $10.0 million of the Revolving Credit Facility in the second quarter of fiscal 2010. See Note 9 "Debt" for additional disclosures related to the amendment to the Credit Facility.

        Components of amortization expense are shown in the table below (in thousands):

 
  Three Months
Ended
July 3,
2010
  Three Months
Ended
July 4,
2009
  Six Months
Ended
July 3,
2010
  Six Months
Ended
July 4,
2009
 

Amortization of:

                         
 

Intangibles with finite lives, included in selling, general and administrative expenses

  $ 187   $ 173   $ 384   $ 348  
 

Loan acquisition costs included in interest expense, net

    222     273     437     608  
                   
 

Total amortization expense

  $ 409   $ 446   $ 821   $ 956  
                   

        Intangibles are amortized over periods generally ranging from 4 to 6 years. Loan acquisition costs are amortized over the life of the related debt.

Note 8. Accounts Payable and Accrued Liabilities

         Accounts payable and accrued liabilities in the Consolidated Balance Sheets includes salaries, wages, incentive compensation and other fringe benefits of $20.2 million and $17.9 million as of July 3, 2010 and January 2, 2010, respectively.

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POLYMER GROUP, INC.

Notes to Consolidated Financial Statements (Continued)

Note 9. Debt

        Long-term debt consists of the following (in thousands):

 
  July 3,
2010
  January 2,
2010
 

Credit Facility, as defined below, interest rates for U.S. dollar borrowings are based on a specified base plus a specified margin; due in mandatory quarterly payments of approximately $1.0 million, subject to additional payments from annual excess cash flows, as defined by the Credit Facility, and are subject to certain terms and conditions:

             
 

First Lien Term Loan (Tranche 1)—interest at 2.60% and 2.50% as of July 3, 2010 and January 2, 2010, respectively, with any remaining unpaid balance due November 22, 2012

 
$

16,066
 
$

17,123
 
 

First Lien Term Loan (Tranche 2)—interest at 7.00% and 7.00% as of July 3, 2010 and January 2, 2010, respectively, with any remaining unpaid balance due November 22, 2014

   
272,410
   
273,346
 

Argentine Facility:

             
 

Argentine Peso Loan—interest at 18.31% as of July 3, 2010 and 18.85% at January 2, 2010, denominated in Argentine pesos due in 24 remaining quarterly payments of approximately $0.2 million ($0.4 million for two quarterly payments in 2010) beginning in February 2010

   
5,462
   
6,307
 
 

Argentine Peso Loan for working capital—interest at 18.25% as of July 3, 2010 and 18.85% at January 2, 2010, denominated in Argentine pesos due in 10 remaining quarterly payments of approximately $0.1 million ($0.2 million for two quarterly payments in 2010) beginning in January 2010

   
1,462
   
1,892
 
 

United States Dollar Loan—interest at 3.20% as of July 3, 2010 and 3.25% as of January 2, 2010, denominated in U.S. dollars due in 24 remaining quarterly payments of approximately $0.9 million ($1.7 million per quarter in 2010) beginning in March 2010

   
22,429
   
25,880
 

Mexico Term Loan—interest at 8.34% as of July 3, 2010 and 8.05% as of January 2, 2010; denominated in U.S. dollars due in 18 remaining quarterly payments of approximately $0.7 million

   
11,864
   
13,841
 

Other

   
383
   
553
 
           

   
330,076
   
338,942
 

Less: Current maturities

   
(14,075

)
 
(16,921

)
           

 
$

316,001
 
$

322,021
 
           

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POLYMER GROUP, INC.

Notes to Consolidated Financial Statements (Continued)

Note 9. Debt (Continued)

Credit Facility

        Prior to the most recent amendment (discussed herein), the Company's credit facility (the "Credit Facility"), which was entered into on November 22, 2005 and amended as of December 8, 2006, consisted of a $410.0 million first-lien term loan (the "Term Loan") and a $45.0 million secured revolving credit facility (the "Revolving Credit Facility") maturing on November 22, 2010. In addition, the interest rate for both the Term Loan and the Revolving Credit Facility was based on a spread over the London Interbank Offered Rate ("LIBOR") of 2.25%, or 1.25% over a defined Alternate Base Rate. The Credit Facility also included customary representations and warranties, covenants and events of default, including, in certain circumstances, acceleration of obligations thereunder upon an event of default.

        On September 17, 2009, the Company entered into Amendment No. 2 (the "Amendment") to the Credit Agreement. As a result of the Amendment, the Company extended the maturity date of approximately $295.7 million of its then-outstanding $317.6 million Term Loan to November 22, 2014. As a result of the Amendment, availability under the Revolving Credit Facility matures in two tranches: $15.0 million (Tranche 1) on November 22, 2010 and $30.0 million (Tranche 2) on November 22, 2013, unless the Tranche 1 Term Loan exceeds $10.0 million on August 24, 2012. If that condition is met, then the Tranche 2 Revolver matures on August 24, 2012. In conjunction with the execution of the Amendment, the Company repaid approximately $24.0 million of net outstanding borrowings under the Term Loan.

        The Amendment also: (i) allows for additional Term Loan tranches that extend the maturity date of the Term Loan to November 22, 2014 at an interest rate of LIBOR plus 4.5% (with a LIBOR floor of 2.5%); (ii) allows for additional Revolving Credit Facility tranches that extend the maturity date of the Revolving Credit Facility to November 22, 2013 at an interest rate of LIBOR plus 4.5% (with a LIBOR floor of 2.5%); (iii) removes the requirement for future step downs or step ups in financial covenants; (iv) establishes price protection for the new tranches requiring matching yields if any future tranches are established at yields at least 25 basis points above the current loan tranches; (v) revised certain definitions and baskets related to permitted investments, acquisitions and assets sales; and (vi) required repayment of $24.0 million of net outstanding borrowings under the Term Loan at the closing. If outstanding borrowings under the original Term Loan tranche that matures November 22, 2012 exceed $10.0 million on August 24, 2012, the new Revolving Credit Facility tranche will mature August 24, 2012.

        As of July 3, 2010, the Term Loan consists of $16.1 million of net outstanding amounts maturing on November 22, 2012 ("Tranche 1 Term Loan") and $272.4 million maturing on November 22, 2014 ("Tranche 2 Term Loan"). Similarly, as of July 3, 2010, the Revolving Credit Facility consisted of $5.0 million of availability maturing on November 22, 2010 ("Tranche 1 Revolver") and $40.0 million of availability maturing on November 22, 2013 ("Tranche 2 Revolver"), under which there were no amounts outstanding as of July 3, 2010. Effective May 4, 2010, the components of the revolving credit facilities reflect the conversion of $10.0 million of its Tranche 1 Revolver commitments to Tranche 2 Revolver commitments. The additional $10.0 million of Tranche 2 Revolver commitments assumed the same maturity date (November 22, 2013) and interest rate (LIBOR plus 4.5%, with a LIBOR floor of 2.5%) as the existing Tranche 2 Revolver. Principal payments of approximately $1.0 million will continue to be due quarterly.

        All borrowings under the Credit Facility are U.S. dollar denominated and are guaranteed, on a joint and several basis, by each and all of the direct and indirect domestic subsidiaries of the Company. The Credit Facility and the related guarantees are secured by (i) a lien on substantially all of the assets of the

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POLYMER GROUP, INC.

Notes to Consolidated Financial Statements (Continued)

Note 9. Debt (Continued)


Company, its domestic subsidiaries and certain of its non-domestic subsidiaries, (ii) a pledge of all or a portion of the stock of the domestic subsidiaries of the Company and of certain non-domestic subsidiaries of the Company, and (iii) a pledge of certain secured intercompany notes. Commitment fees under the Credit Facility are equal to 0.50% of the daily unused amount of the Tranche 1 Revolver and 0.75% of the daily unused amount of the Tranche 2 Revolver. The Credit Facility limits restricted payments to $5.0 million, including cash dividends, in the aggregate since the effective date of the Credit Facility. The Credit Facility contains covenants and events of default customary for financings of this type, including leverage and interest expense coverage covenants, as well as default provisions related to certain types of defaults by the Company or its subsidiaries in the performance of their obligations regarding borrowings in excess of $10.0 million. The Credit Facility requires that the Company maintain a leverage ratio of not more than 3.50:1.00 as of July 3, 2010 and through the remaining term of the Credit Facility. The interest expense coverage ratio requirement at July 3, 2010 and through the remaining term of the Credit Facility requires that it not be less than 3.00:1.00. The Company was in compliance with the financial covenants under the Credit Facility at July 3, 2010. These ratios are calculated on a trailing four-quarter basis. As a result, any decline in the Company's future operating results will negatively impact its coverage ratios. Although the Company expects to remain in compliance with these covenant requirements, the Company's failure to comply with these financial covenants, without waiver or amendment from its lenders, could have a material adverse effect on its liquidity and operations, including limiting the Company's ability to borrow under the Credit Facility.

        The Term Loan requires mandatory payments of approximately $1.0 million per quarter. Under the Amendment, the Company has the option to either prorate such principal payments across the two tranches or to apply them to the tranche with the earliest maturity date. In addition, the Credit Facility, as amended, requires the Company to use a percentage of proceeds from excess cash flows, as defined by the Credit Facility and determined based on year-end results, to reduce its then outstanding balances under the Credit Facility. Excess cash flows required to be applied to the repayment of the Credit Facility are generally calculated as 50% of the net amount of the Company's available cash generated from operations adjusted for the cash effects of interest, taxes, capital expenditures, changes in working capital and certain other items. The amount of excess cash flows for future periods is based on year-end results. Any such amount would be payable in March 2011 and classified, in addition to the mandatory payments of approximately $1.0 million per quarter, in the Current portion of long-term debt in the Consolidated Balance Sheets as of July 3, 2010. The Company currently estimates that there will not be any additional excess cash flow requirement with respect to fiscal 2010. There was no additional excess cash flow requirement with respect to fiscal 2009. The Company may, at its discretion and based on projected operating cash flows, the current market value of the Term Loan and anticipated cash requirements, elect to make additional repayments of debt under the Credit Facility in excess of the mandatory debt repayments and excess cash flow payments, or may reacquire its debt in conjunction with its debt repurchase program.

        The Company, through its subsidiaries, may make market purchases of the Term Loan under its Credit Facility from its existing lenders at a discount to the carrying value of its debt. Under these agreements, the Company's subsidiary will acquire the rights and obligations of a lender under the Credit Facility to the extent of the amount of debt acquired, and the selling third-party lender will be released from its obligations under the Credit Facility. The Company accounts for such reacquisition of debt as a transfer of financial assets resulting in a sale and derecognizes such liability in accordance with the provisions of ASC 860. During the first quarter of fiscal 2009, the Company reacquired $15.0 million

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POLYMER GROUP, INC.

Notes to Consolidated Financial Statements (Continued)

Note 9. Debt (Continued)


of principal amount of debt, via cash payment, and recognized a gain on such reacquisition of $2.4 million, net of the write-off of deferred financing fees of $0.2 million, and has included such amount in Gain on Reacquisition of Debt in the Consolidated Statements of Operations.

        The interest rate applicable to borrowings under the Tranche 1 Term Loan and Tranche 1 Revolver is based on the three-month or the one-month LIBOR plus a specified margin. The applicable margin for borrowings under both the Tranche 1 Term Loan and Tranche 1 Revolver is 225 basis points. Further, the Company may, from time to time, elect to use an Alternate Base Rate for its borrowings under the Revolving Credit Facility and Term Loan based on the bank's base rate plus a margin of 75 to 125 basis points based on the Company's total leverage ratio.

        The interest rate applicable to borrowings under the Tranche 2 Term Loan and Tranche 2 Revolver is based on LIBOR plus a margin of 450 basis points, with a LIBOR floor of 250 basis points.

        In accordance with the terms of the Credit Facility, the Company maintained its position in an interest rate swap agreement originally entered into in February 2007. The agreement effectively converted $240.0 million of notional principal amount of debt from a variable LIBOR rate to a fixed LIBOR rate of 5.085% and terminated on June 29, 2009. Additionally, in February 2009, the Company entered into another interest rate swap agreement, which was effective June 30, 2009 and matures on June 30, 2011, and effectively converts $240.0 million of notional principal amount of debt from a variable LIBOR rate to a fixed LIBOR rate of 1.96%. These agreements are more fully described in Note 13, "Derivatives and Other Financial Instruments and Hedging Activities" and Note 14, "Fair Value of Financial Instruments and Non-Financial Assets and Liabilities."

        There were no borrowings under the Revolving Credit Facility as of July 3, 2010 or January 2, 2010. Average daily borrowings under the Revolving Credit Facility, which were primarily LIBOR rate-based borrowings, were $2.9 million at an average interest rate of 5.6% for the period from January 3, 2010 to July 3, 2010. Subject to certain terms and conditions, a maximum of $25.0 million of the Credit Facility may be used for letters of credit. As of July 3, 2010, the Company has effectively reserved capacity under the Revolving Credit Facility in the amount of $16.3 million relating to standby and documentary letters of credit outstanding. These letters of credit are primarily provided to certain administrative service providers and financial institutions. None of these letters of credit had been drawn on at July 3, 2010.

        As of July 3, 2010, the Company also had other outstanding letters of credit in the amount of $4.4 million primarily provided to certain raw material vendors. None of these letters of credit had been drawn on at July 3, 2010.

        In fiscal 2009, the Company entered into short-term credit facilities to finance insurance premium payments. The outstanding indebtedness under these short-term borrowing facilities was $0.4 million and $0.3 million as of July 3, 2010 and January 2, 2010, respectively. These facilities mature at various dates through October 2010. Borrowings under these facilities are included in Short-term borrowings in the Consolidated Balance Sheets.

Subsidiary Indebtedness

        In fiscal 2008, the Company's operations in Argentina entered into short-term credit facilities to finance working capital requirements. The outstanding indebtedness under these short-term borrowing facilities was $8.0 million and $3.4 million as of July 3, 2010 and January 2, 2010, respectively. These facilities mature at various dates through September 2010. As of July 3, 2010, the average interest rate

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POLYMER GROUP, INC.

Notes to Consolidated Financial Statements (Continued)

Note 9. Debt (Continued)


on these borrowings was 3.21%. Borrowings under these facilities are included in Short-term borrowings in the Consolidated Balance Sheets.

        In January 2007, the Company's subsidiary in Argentina entered into an arrangement with banking institutions in Argentina to finance the installation of a new spunmelt line at the joint venture facility near Buenos Aires, Argentina. The maximum borrowings available under the arrangement, excluding any interest added to principal, amount to 26.5 million Argentine pesos with respect to an Argentine peso-denominated loan and $30.3 million with respect to a U.S. dollar-denominated loan and are secured by pledges covering (i) the subsidiary's existing equipment lines; (ii) the outstanding stock of the subsidiary; and (iii) the new machinery and equipment being purchased, as well as a trust assignment agreement related to a portion of receivables due from certain major customers of the subsidiary. As of July 3, 2010, the outstanding indebtedness was approximately $29.3 million, consisting of $6.9 million of Argentine peso-denominated loans and a $22.4 million U.S. dollar-denominated loan. As of January 2, 2010, the outstanding indebtedness was approximately $34.1 million, consisting of $8.2 million of Argentine peso-denominated loans and a $25.9 million U.S. dollar-denominated loan. Current maturities of this debt amount to $7.2 million as of July 3, 2010. The interest rate applicable to borrowings under these term loans is based on LIBOR plus 290 basis points for the U.S. dollar-denominated loan and Buenos Aires Interbanking Offered Rate plus 475 basis points for the Argentine peso-denominated loan. Principal and interest payments began in July 2008 with the loans maturing as follows: approximately $1.4 million in September 2012, approximately $22.4 million in April 2016 and the balance of $5.5 million maturing in May 2016.

        In April 2009, the Company amended its Argentine Facility to effectively defer $3.8 million of 2009 scheduled payments under the facility for a period of twelve months. Accordingly, the Company has classified such payments, along with scheduled 2010 maturities, as a current portion of long-term debt in its Consolidated Balance Sheets as of July 3, 2010 and January 2, 2010.

        In March 2009, the Company's subsidiary in Mexico entered into a term credit facility (the "Mexico Credit Facility") with a banking institution in Mexico to finance a portion of the installation of a new spunmelt line near San Luis Potosi, Mexico. The maximum borrowings available under the Mexico Credit Facility, excluding any interest added to principal, amount to $14.5 million with respect to a U.S. dollar-denominated loan and is secured by pledges covering (i) the subsidiary's existing equipment lines; and (ii) the new machinery and equipment being purchased. The interest rate applicable to borrowings under the Mexico Credit Facility is based on three-month LIBOR plus 780 basis points. A series of 22 quarterly principal payments commenced on October 1, 2009; interest payments commenced on July 1, 2009. As of July 3, 2010, outstanding indebtedness under the Mexico Credit Facility was approximately $11.9 million.

Note 10. Income Taxes

        During the three and six months ended July 3, 2010, the Company recognized income tax expense of $2.9 million and $5.9 million, respectively, on consolidated income before income taxes from continuing operations of $4.7 million and $5.5 million. During the three and six months ended July 4, 2009, the Company recognized income tax expense of $1.9 million and $9.5 million, respectively, on consolidated income before income taxes from continuing operations of $5.1 million and $18.6 million. The Company's income tax expense in any period is different than such expense determined at the U.S. federal statutory rate primarily due to losses in certain jurisdictions for which no income tax benefits are

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POLYMER GROUP, INC.

Notes to Consolidated Financial Statements (Continued)

Note 10. Income Taxes (Continued)


anticipated, foreign withholding taxes for which tax credits are not anticipated, institution of a flat tax regime in Mexico, U.S. state income taxes, changes in the amounts recorded for tax uncertainties in accordance with ASC 740-10, "Income Taxes", and foreign taxes calculated at statutory rates different than the U.S. federal statutory rate.

        The total unrecognized tax benefits of $41.3 million as of July 3, 2010 represent the amount of unrecognized tax benefits that, if recognized, would affect the effective income tax rate in future periods. Included in the balance of unrecognized tax benefits as of July 3, 2010 was $27.7 million related to tax positions for which it is reasonably possible that the total amounts could significantly change during the next twelve months. This amount represents a decrease in unrecognized tax benefits comprised of items related to negotiations of the settlement of foreign taxes and the lapse of statutes of limitations.

        During the six months ended July 3, 2010, the Company increased the liability for unrecognized tax benefits by $0.6 million, net of additional interest and penalties of $0.6 million. During the six months ended July 4, 2009, the Company increased the liability for unrecognized tax benefits by $1.1 million, which included interest and penalties of $0.1 million.

        Management judgment is required in determining tax provisions and evaluating tax positions. Although management believes its tax positions and related provisions reflected in the consolidated financial statements are fully supportable, it recognizes that these tax positions and related provisions may be challenged by various tax authorities. These tax positions and related provisions are reviewed on an ongoing basis and are adjusted as additional facts and information become available, including progress on tax audits, changes in interpretations of tax laws, developments in case law and closing of statute of limitations. The Company's tax provision includes the impact of recording reserves and any changes thereto.

        During the second quarter, the Company determined that it may be subject to "Personal Holding Company" ("PHC") tax for past periods. As a result, on August 17, 2010, the Company filed a Form10-K/A (Amendment No.1) for the fiscal year ended January 2, 2010 and Form 10-Q/A (Amendment No.1) for the quarterly period ended April 3, 2010, collectively referred to as the "Amendments". While the circumstances associated with the PHC issue are more fully described in the Amendments, briefly stated, the PHC rules are commonly understood by tax professionals to be focused on penalizing individuals who use holding companies to hold personal investments when the individual tax rates exceed corporate tax rates, and are therefore not typically applicable to public companies, such as the Company, whose primary source of income is from operating activities. As a result of an evaluation of Sections 541 through 547 of the Internal Revenue Code relating to the PHC rules, and based on requested ownership information received from its majority stockholders, however, management determined that a tax liability associated with uncertain tax positions should have been recorded in prior periods in accordance with the provisions set forth in Financial Accounting Standards Board Accounting Standards Codification 740, "Income Taxes" ("ASC 740"). As further described in the Amendments, despite the contingent liability recognized in the financial statements, the Company believes the PHC rules were not intended to apply to its situation.

        In August 2010, the Company began discussions with the IRS to seek a ruling and bring resolution to the PHC issue. However, we cannot be certain of the outcome of discussions with the IRS and whether such outcome will result in an amount of taxes, interest or penalties required to be paid that is materially higher or lower than the liability established on the Company's balance sheet. Additionally, the results of current tax audits and reviews related to open tax years have not been finalized, and management

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POLYMER GROUP, INC.

Notes to Consolidated Financial Statements (Continued)

Note 10. Income Taxes (Continued)


believes that the ultimate outcomes of these audits and reviews will not have a material adverse effect on the Company's financial position, results of operations or cash flows.

        As of July 3, 2010, the Company has a number of open tax years. The major jurisdictions where the Company files income tax returns include Argentina, Canada, China, Colombia, France, Germany, Mexico, The Netherlands, Spain and the United States. The U.S. federal tax returns have been examined through fiscal 2004 and the foreign jurisdictions generally remain open and subject to examination by the relevant tax authorities for the tax years 2003 through 2009. Although the results of current tax audits and reviews related to open tax years have not been finalized, management believes that the ultimate outcomes will not have a material adverse effect on the Company's financial position, results of operations or cash flows.

        The Company continues to recognize interest and/or penalties related to income taxes as a component of income tax expense. There were income tax refunds receivable of $2.8 million and $3.9 million at July 3, 2010 and January 2, 2010, respectively. These amounts are included in Other current assets in the Consolidated Balance Sheets.

Note 11. Pension and Postretirement Benefit Plans

        The Company and its subsidiaries sponsor multiple defined benefit plans and other postretirement benefits that cover certain employees. Benefits are primarily based on years of service and the employee's compensation. It is the Company's policy to fund such plans in accordance with applicable laws and regulations.

        Components of net periodic benefit costs for the three and six months ended July 3, 2010 and July 4, 2009 are as follows (in thousands):

 
  Pension Benefits  
 
  Three Months Ended   Six Months Ended  
 
  July 3, 2010   July 4, 2009   July 3, 2010   July 4, 2009  

Current service costs

  $ 486   $ 515   $ 988   $ 1,018  

Interest costs on projected benefit obligation and other

    1,556     1,637     3,152     3,239  

Return on plan assets

    (1,442 )   (1,523 )   (2,922 )   (3,013 )

Amortization of transition obligation and other

    55     124     106     245  
                   

Periodic benefit cost, net

  $ 655   $ 753   $ 1,324   $ 1,489  
                   

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POLYMER GROUP, INC.

Notes to Consolidated Financial Statements (Continued)

Note 11. Pension and Postretirement Benefit Plans (Continued)

 
  Postretirement Benefits  
 
  Three Months Ended   Six Months Ended  
 
  July 3, 2010   July 4, 2009   July 3, 2010   July 4, 2009  

Current service costs

  $ 19   $ 9   $ 38   $ 17  

Interest costs on projected benefit obligation and other

    86     72     171     142  

Return on plan assets

            (11 )    

Amortization of transition obligation and other

    (75 )   (83 )   (138 )   (163 )
                   

Periodic benefit cost, net

  $ 30   $ (2 ) $ 60   $ (4 )
                   

        As of July 3, 2010, the Company had contributed $2.2 million to its pension and postretirement benefit plans for the 2010 benefit year. The Company's contributions include amounts required to be funded with respect to a defined benefit pension plan relating to one of the Company's Canadian operations. The Company presently anticipates contributing an additional $3.9 million to fund its plans in 2010, for a total of $6.1 million.

Note 12. Stock Option and Restricted Stock Plans

Stock Option Plan

        The Polymer Group, Inc. 2003 Stock Option Plan (the "2003 Option Plan"), which expires December 3, 2013, was approved by the Company's Board of Directors and shareholders and is administered by the Compensation Committee of the Board of Directors. The 2003 Option Plan approved the issuance of 400,000 non-qualified stock options to acquire shares of the Company's Class A Common Stock. All options awarded provide for an exercise price of $6.00 per share, have a five-year life and vest, based on the achievement of various service and financial performance criteria, over a four-year period, with the initial awards beginning their vesting terms as of January 4, 2004. Vesting of the stock options may be accelerated on the occurrence of a change in control, as defined in the 2003 Option Plan, or other events. With respect to post-vesting restrictions, the 2003 Option Plan provides that each option must be exercised, if at all, upon the earlier to occur of (i) the date that is five years after the award date of the option or (ii) concurrently upon the consummation of a change in control. As of July 3, 2010 and January 2, 2010, the Company had awarded grants of non-qualified stock options to purchase 174,097 shares of the Company's Class A Common Stock. In March 2009, the Board of Directors approved a measure to cease making awards under the 2003 Option Plan.

        The Company accounts for the 2003 Option Plan in accordance with ASC 718. As of July 3, 2010, with respect to the 55,988 options to purchase Class A Common Stock awarded under the 2003 Option Plan, 11,500 are subject to future vesting based on the attainment of future performance targets that have not been established as of July 3, 2010. Accordingly, pursuant to ASC 718, 55,988 options to purchase Class A Common Stock have been considered granted under the 2003 Option Plan as of July 3, 2010. During the first six months of fiscal 2010, 116,109 options were exercised and 2,000 options were forfeited. The compensation costs related to the 2003 Option Plan were not material for the three and six months ended July 3, 2010 and July 4, 2009 and were included in Selling, general and administrative expenses in the Consolidated Statements of Operations.

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POLYMER GROUP, INC.

Notes to Consolidated Financial Statements (Continued)

Note 12. Stock Option and Restricted Stock Plans (Continued)

        Information regarding the Company's stock options granted, as defined by ASC 718, and outstanding as of July 3, 2010 is as follows:

 
  Vested   Expected
to Vest
 

For options granted and outstanding:

             
 

Number of options

    44,488     11,500  
 

Weighted average exercise price

  $ 6.00   $ 6.00  
 

Aggregate intrinsic value (in 000s)

  $ 601   $ 155  

For nonvested options:

             
 

Compensation cost not yet recognized (in 000s)

        $ 99  
 

Weighted average period of recognition (years)

          0.5  

        ASC 718 requires the estimation of forfeitures when recognizing compensation expense and that the estimate of forfeiture be adjusted over the requisite service period should actual forfeitures differ from such estimates. Changes in estimated forfeitures, if significant, are recognized through a cumulative adjustment, which is recognized in the period of change and which impacts the amount of unamortized compensation expense to be recognized in future periods.

Restricted Stock Plans

        The Company's shareholders and Board of Directors approved the 2004 Polymer Group, Inc. Restricted Stock Plan for Directors (the "2004 Restricted Plan"), which expires in 2014, for the issuance of restricted shares of the Company's Class A Common Stock to directors of the Company, as defined in the 2004 Restricted Plan. The 2004 Restricted Plan approved for issuance 200,000 restricted shares and is administered by a committee of the Company's Board of Directors not eligible to receive restricted shares under the 2004 Restricted Plan. In May 2009, the Company's shareholders approved an increase in the number of shares reserved for issuance under the 2004 Restricted Plan from 200,000 shares to 300,000 shares.

        In the first six months of fiscal 2010 and fiscal 2009, the Company awarded 23,475 and 52,612 restricted shares, respectively, to members of the Company's Board of Directors for their Board service to the Company. In addition, 5,307 shares were surrendered to satisfy withholding tax requirements in the first six months of fiscal 2010. The cost associated with these restricted stock grants, which vest over periods ranging to twenty-four months, totaled approximately $0.1 million and $0.3 million for the three and six months ended July 3, 2010 and was included in Selling, general and administrative expenses in the Consolidated Statements of Operations. For the three and six months ended July 4, 2009, these costs approximated $0.1 million and $0.2 million, respectively. Compensation cost not yet recognized for awards under the 2004 Directors Plan was approximately $0.2 million and the weighted average period of recognition for such compensation was 1.0 years as of July 3, 2010.

        Additionally, in April 2007, 50,000 restricted shares were issued pursuant to the terms of the Executive Employment Agreement entered into with the Company's Chief Executive Officer. Such shares vest over a four year service period effective April 23, 2007, and such vesting will be accelerated upon a change in control, as defined therein, and the completion of a minimum service period. The compensation costs associated with such restricted shares issued under the terms of the Executive

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POLYMER GROUP, INC.

Notes to Consolidated Financial Statements (Continued)

Note 12. Stock Option and Restricted Stock Plans (Continued)


Employment Agreement totaled $0.1 million and $0.2 million for the three and six months ended July 3, 2010, respectively and were included in Selling, general and administrative expenses in the Consolidated Statements of Operations. For the three and six months ended July 4, 2009, these costs approximated $0.1 million and $0.2 million, respectively. Compensation cost not yet recognized for such nonvested restricted shares issued under the terms of the Executive Employment Agreement was approximately $0.3 million and the weighted average period of recognition for such compensation was 0.4 years as of July 3, 2010.

        As of July 3, 2010, there remain 69,899 shares of the Company's Class A Common Stock available to be awarded under the 2004 Restricted Plan.

        The Polymer Group, Inc. 2005 Employee Restricted Stock Plan (the "2005 Stock Plan") was approved by the Company's Board of Directors and shareholders and is administered by the Compensation Committee of the Company's Board of Directors. The 2005 Stock Plan, which expires in 2015, approved for issuance 482,000 restricted shares to employees of the Company. Other than for certain shares initially awarded and immediately vested on January 20, 2006, March 12, 2008 and April 9, 2009, shares awarded under the 2005 Stock Plan primarily vest 25% on each of the grant's first four anniversary dates based on a combination of service and/or the achievement of certain performance targets. Vesting of the restricted shares, other than those shares issued pursuant to the terms of the Executive Employment Agreement entered into with the Company's Chief Executive Officer, may be accelerated on the occurrence of a change in control, as defined in the 2005 Stock Plan, or other events. Vesting of shares awarded under the Executive Employment Agreement will be accelerated under a change in control, as defined therein, and the completion of a minimum service period.

        In March 2009, the Board of Directors approved a measure to cease making awards under the 2005 Stock Plan. During the first six months of fiscal 2010, 11,309 shares were surrendered by employees to satisfy withholding tax requirements and 5,000 shares were forfeited. During the first six months of fiscal 2009, 32,237 restricted shares were considered re-granted to certain employees of the Company in accordance with ASC 718. In addition, 45,395 shares were surrendered during the first six months of fiscal 2009 by employees to satisfy withholding tax requirements and 60,047 shares were forfeited.

        The compensation costs associated with the 2005 Stock Plan totaled $0.4 million and $0.7 million for the three and six months ended July 3, 2010, respectively, and were included in Selling, general and administrative expenses in the Consolidated Statements of Operations. For the three and six months ended July 4, 2009, these costs approximated $0.5 million and $0.6 million, respectively. As of July 3, 2010, awards of 367,009 shares of the Company's Class A Common Stock were outstanding.

        The Company accounts for the 2005 Stock Plan in accordance with ASC 718. As of July 3, 2010, of the 367,009 shares awarded and outstanding under the 2005 Stock Plan, 20,985 shares are subject to future vesting based on the attainment of future performance targets, which targets had not been established as of July 3, 2010. Accordingly, pursuant to the provisions of ASC 718, 346,024 restricted shares are considered granted under the 2005 Stock Plan as of July 3, 2010. Compensation cost not yet recognized for nonvested restricted shares considered granted under the 2005 Stock Plan was approximately $0.6 million as of July 3, 2010, and the weighted average period of recognition for such compensation was 1.0 years as of July 3, 2010.

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POLYMER GROUP, INC.

Notes to Consolidated Financial Statements (Continued)

Note 12. Stock Option and Restricted Stock Plans (Continued)

        The Polymer Group, Inc. 2008 Long-Term Stock Incentive Plan (the "2008 LTI Stock Plan") was approved by the Company's shareholders and Board of Directors and is administered by the Compensation Committee of the Company's Board of Directors. The 2008 LTI Stock Plan, which expires in 2018 unless terminated by the Company's Board of Directors sooner, originally reserved for issuance 425,000 shares of the Company's Class A Common Stock to employees of the Company. In May 2009, the Company's shareholders approved an increase in the number of shares reserved for issuance under the 2008 LTI Stock Plan from 425,000 shares to 1,075,000 shares. The Compensation Committee may, from time to time, award a variety of equity-based incentives under the 2008 LTI Stock Plan to such employees and in such amounts and with specified restrictions as it determines appropriate in the circumstances. Such awards may be granted under the 2008 LTI Stock Plan in the form of either incentive stock options, non-statutory stock options, stock appreciation rights, restricted stock, restricted stock units, stock awards, performance awards or other types of stock awards that involve the issuance of, or that are valued by reference to, shares of the Company's Class A Common Stock. Vesting, which will be determined by the Compensation Committee of the Company's Board of Directors, may be accelerated on the occurrence of a change in control or other events, as defined. All restricted stock units will be settled in the form of restricted shares upon vesting.

        Beginning in fiscal year 2008, various awards were approved and issued to certain employees of the Company under the 2008 LTI Stock Plan. During the first six months of fiscal 2010, the Company awarded 210,470 service-based restricted stock of the Company's Class A Common Stock and 261,619 restricted stock units, of which 247,580 would vest based on the achievement of 2010 performance targets and the completion of requisite service periods. Additionally, 252,728 restricted stock units were converted to restricted stock, of which 83,398 vested upon award, based on the Company achieving the maximum level of the performance targets for fiscal 2009. Also, during the first six months of fiscal 2010, 72,565 shares were surrendered by employees to satisfy withholding tax requirements and 34,437 shares were forfeited.

        During the first six months of fiscal 2009, the Company awarded 297,853 service-based restricted shares of the Company's Class A Common Stock and 144,322 restricted stock units, of which 128,746 would vest based on the achievement of 2009 performance targets and the completion of requisite service periods and 122,512 were performance-based. In addition, 122,512 performance-based restricted stock units were forfeited since the performance criteria were not satisfied and the awards contained no carryforward provisions. Also, 39,136 shares were surrendered to satisfy withholding tax obligations, 5,176 restricted stock units were converted to restricted shares and 1,529 restricted stock units were forfeited.

        As of July 3, 2010, awards of 681,836 restricted shares of the Company's Class A Common Stock, of which 206,288 shares were vested, and 296,188 restricted stock units were outstanding. All restricted stock units will be settled in the form of restricted shares upon vesting. As of July 3, 2010, 96,976 shares are considered available for future grant under the 2008 LTI Stock Plan. The compensation costs associated with the 2008 LTI Stock Plan totaled $0.9 million and $1.7 million for the three and six months ended July 3, 2010, respectively, and were included in Selling, general and administrative expenses in the Consolidated Statements of Operations. For the three and six months ended July 4, 2009, these costs approximated $0.8 million and $0.9 million, respectively. Compensation cost not yet recognized

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POLYMER GROUP, INC.

Notes to Consolidated Financial Statements (Continued)

Note 12. Stock Option and Restricted Stock Plans (Continued)


for awards under the 2008 LTI Stock Plan was approximately $8.2 million as of July 3, 2010, and the weighted average period of recognition for such compensation was 1.1 years as of July 3, 2010.

Other Compensation Arrangement

        On March 31, 2010, the Company entered into a new employment agreement with its Chief Executive Officer that provides for a one-time award of equity and cash at the expiration date of the agreement (the "Retirement Incentive"). The equity award component is dependent upon an ending stock price at the measurement date, defined in the agreement, and will range between 20,000 shares and 100,000 shares. The cash award will be equal to thirty percent of the future value of the aforementioned equity award component, but will not be less than $250,000 or greater than $1,000,000.

        Management has concluded that the stock award component should be accounted for as a "Equity-classified award" as defined with ASC 718, since the Company intends to issue PGI common shares. In addition, the Company currently intends for the future stock award to be issued under the 2008 LTI Stock Plan. Further, management has concluded that the cash award should be accounted for as a "Liability-classified award" as defined with ASC 718, since the Company intends to pay cash for this compensation component. As of July 3, 2010, the Company anticipates that it will recognize compensation expense of $1.4 million from the period March 31, 2010 through April 2013.

Note 13. Derivative and Other Financial Instruments and Hedging Activities

        The Company is exposed to certain risks arising from business operations and economic factors. The Company uses derivative financial instruments to manage market risks and reduce its exposure to fluctuations in interest rates and foreign currencies. All hedging transactions are authorized and executed under clearly defined policies and procedures, which prohibit the use of financial instruments for trading purposes.

        The Company uses interest-rate derivative instruments to manage its exposure related to movements in interest rates with respect to its debt instruments. On February 12, 2009, as disclosed in Note 9 "Debt," to mitigate its interest rate exposure as required by the Credit Facility, the Company entered into a pay-fixed, receive-variable interest rate swap (the "2009 Swap"), which effectively converts the variable LIBOR-based interest payments associated with $240.0 million of the Term Loan to fixed amounts at a LIBOR rate of 1.96%. This interest rate swap agreement became effective on June 30, 2009 and expires on June 30, 2011. Cash settlements will be made monthly and the floating rate will be reset monthly, coinciding with the reset dates of the Credit Facility.

        In accordance with ASC 815, the Company designated the 2009 Swap as a cash flow hedge of the variability of interest payments with changes in fair value of the 2009 Swap recorded in Accumulated other comprehensive income in the Consolidated Balance Sheets. As of September 17, 2009, in conjunction with the Amendment and in accordance with ASC 815-30, the Company concluded that 92% (which represents the approximate percentage of the Tranche 1 Term Loan debt considered extinguished by the Amendment) of the 2009 Swap was no longer effective; accordingly, 92% of $3.9 million related to the 2009 Swap and included in Accumulated Other Comprehensive Income was frozen and will be reclassified to earnings as future interest payments are made throughout the term of the 2009 Swap. This portion of the notional amount no longer met the criteria for cash flow hedge accounting treatment in accordance with ASC 815. See Note 14 "Fair Value of Financial Instruments and

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POLYMER GROUP, INC.

Notes to Consolidated Financial Statements (Continued)

Note 13. Derivative and Other Financial Instruments and Hedging Activities (Continued)


Non-Financial Assets and Liabilities" for the fair value measurement disclosures for these assets and liabilities.

        Through June 2009, the Company had a pay-fixed, receive-variable interest rate swap, effectively converting the variable LIBOR-based interest payments associated with $240.0 million of the debt to fixed amounts at a LIBOR rate of 5.085% (the "2007 Swap"). This interest rate swap agreement became effective on May 8, 2007 and expired on June 29, 2009. Cash settlements were made quarterly and the floating rate was reset quarterly, coinciding with the reset dates of the Credit Facility.

        The impact of these swaps on Interest expense, net in the Consolidated Statements of Operations was an increase of $1.0 million and $2.0 million for the three and six months ended July 3, 2010, respectively. For the three and six months ended July 4, 2009, the impact was an increase of 2.3 million and $4.5 million, respectively.

        On February 8, 2010, the Company entered into a series of foreign exchange forward contracts (put options and call options) with a third-party financial institution that provided for a floor and ceiling price on payments related to the Company's new line under construction in Suzhou, China. The objective of the combination foreign exchange forward contracts is to hedge the changes in fair value of a firm commitment to purchase equipment attributable to changes in foreign currency rates between the Euro and U.S. dollar through the date of acceptance of the equipment. The notional amount of the contracts with the third party, which expire on various dates through fiscal 2012, was €25.6 million, which will result in a U.S. dollar equivalent range of $34.6 million to $36.2 million. Cash settlements under the forward contracts coincide with the payment dates on the equipment purchase contract. As of July 3, 2010, the Company has recorded the asset associated with the previously unrecognized firm commitment and the liability associated with the hedging agreement. The following table summarizes the aggregate notional amount and estimated fair value of the Company's derivative instruments as of July 3, 2010 and January 2, 2010 (in thousands):

 
  As of July 3, 2010   As of January 2, 2010  
 
  Notional   Fair Value   Notional   Fair Value  

Cash flow hedges:

                         
 

Interest rate swaps (1)

  $ 18,693   $ 270   $ 18,693   $ 283  

Interest rate swaps—undesignated (1)

    221,307     3,113     221,307     3,256  

Foreign currency hedges:

                         
 

Foreign exchange contracts

    28,827     2,428          

Foreign exchange contracts—undesignated

                 
                   

Net value

  $ 268,827   $ 5,811   $ 240,000   $ 3,539  
                   

(1)
Comprised of a $240.0 million notional amount interest rate swap agreement that was executed, became effective on June 20, 2009 and matures on June 30, 2011.

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POLYMER GROUP, INC.

Notes to Consolidated Financial Statements (Continued)

Note 13. Derivative and Other Financial Instruments and Hedging Activities (Continued)

        The following tables summarize the effect on income by derivative instruments for the following periods:

 
  For the Three Months Period Ended  
 
  Amount of Gain
(Loss) Recognized
in Accumulated
OCI on Derivative
(Effective Portion)
  Amount of Gain
(Loss) Reclassified
from Accumulated
OCI into Income
(Effective Portion) (1)
 
Derivatives in Cash Flow Hedging Relationships
  July 3, 2010   July 4, 2009   July 3, 2010   July 4, 2009  

Derivatives designated as hedging instruments:

                         
 

Interest rate contracts

  $ 39   $ (983 ) $ (560 ) $ (2,264 )

Derivatives not designated as hedging instruments

    N/A     N/A     N/A     N/A  

(1)
Amount of Gain (Loss) (Effective Portion) Reclassified from Accumulated Other Comprehensive Income into Income is located in Interest Expense, net in the Consolidated Statements of Operations. There is no ineffective portion.

 
  For the Six Months Period Ended  
 
  Amount of Gain
(Loss) Recognized
in Accumulated
OCI on Derivative
(Effective Portion)
  Amount of Gain
(Loss) Reclassified
from Accumulated
OCI into Income
(Effective Portion) (1)
 
Derivatives in Cash Flow Hedging Relationships
  July 3, 2010   July 4, 2009   July 3, 2010   July 4, 2009  

Derivatives designated as hedging instruments:

                         
 

Interest rate contracts

  $ 12   $ (3,490 ) $ (1,120 ) $ (4,458 )

Derivatives not designated as hedging instruments

    N/A     N/A     N/A     N/A  

(1)
Amount of Gain (Loss) (Effective Portion) Reclassified from Accumulated Other Comprehensive Income into Income is located in Interest Expense, net in the Consolidated Statements of Operations. There is no ineffective portion.

        For the three and six months ended July 3, 2010, the Company recognized $0.4 million in foreign currency and other loss, net for the gain on the firm commitment related to its foreign exchange contract.

        See Note 14, "Fair Value of Financial Instruments and Non-Financial Assets and Liabilities" for additional disclosures related to the Company's derivative instruments.

Note 14. Fair Value of Financial Instruments and Non-Financial Assets and Liabilities

        The Company adopted ASC 820, which outlines a valuation framework and creates a fair value hierarchy that distinguishes between market assumptions based on market data (observable inputs) and a reporting entity's own assumptions about market data (unobservable inputs). The standard increases the consistency and comparability of fair value measurements and related disclosures. Fair value is identified, under the standard, as the price that would be received to sell an asset or paid to transfer a liability at the measurement date (an exit price). The financial derivatives are valued based on

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POLYMER GROUP, INC.

Notes to Consolidated Financial Statements (Continued)

Note 14. Fair Value of Financial Instruments and Non-Financial Assets and Liabilities (Continued)


the prevailing market yield information on the date of measurement. The guidance establishes three levels of inputs that may be used to measure fair value, as follows:

        Level 1—Inputs are quoted prices (unadjusted) in active markets for identical assets or liabilities that the Company has the ability to access at the measurement date. An active market is defined as a market in which transactions for the assets or liabilities occur with sufficient frequency and volume to provide pricing information on an ongoing basis.

        Level 2—Inputs include quoted prices for similar assets and liabilities in active markets, quoted prices for identical or similar assets or liabilities in markets that are not active (markets with few transactions), inputs other than quoted prices that are observable for the asset or liability (i.e., interest rates, yield curves, etc.), and inputs that are derived principally from or are corroborated by observable market data correlation or other means (market corroborated inputs).

        Level 3—Unobservable inputs, only used to the extent that observable inputs are not available, that reflect the Company's assumptions about the pricing of an asset or liability.

        In accordance with the fair value hierarchy described above, the following table shows the fair value of the Company's financial assets and liabilities that are required to be measured at fair value, on a recurring basis, as of July 3, 2010 and January 2, 2010. The firm commitment identified within the table below is recorded on the Company's Consolidated Balance Sheets within Property, plant and equipment, net and the foreign exchange contract identified within the table below is recorded on the Company's Consolidated Balance Sheets within Accounts payable and accrued liabilities . The interest rate swap agreements that are identified within the table below are recorded on the Company's Consolidated Balance Sheets within Other noncurrent liabilities (in thousands):

 
  As of
July 3, 2010
  Quoted Prices in
Active Markets
for Identical
Assets (Level 1)
  Significant Other
Observable
Inputs (Level 2)
  Unobservable
Inputs
(Level 3)
 

Firm commitment

  $ 2,834       $ 2,834      

Derivative liabilities:

                         
 

Interest rate swap agreements

    (3,384 )       (3,384 )    
 

Foreign exchange contract

    (2,428 )       (2,428 )    

 

 
  As of
January 2, 2010
  Quoted Prices in
Active Markets
for Identical
Assets (Level 1)
  Significant Other
Observable
Inputs (Level 2)
  Unobservable
Inputs
(Level 3)
 

Derivative liabilities:

                         
 

Interest rate swap agreements

    (3,539 )       (3,539 )    

        The fair value of the interest rate swap agreements and foreign forward exchange contracts are based on indicative price information obtained via a third-party valuation. The unrealized loss in the interest rate swap's fair value of $0.3 million during the first six months of fiscal 2010 was allocated in accordance with ASC 820, with $0.3 million charged to Interest expense, net in the Consolidated Statement of Operations.

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POLYMER GROUP, INC.

Notes to Consolidated Financial Statements (Continued)

Note 14. Fair Value of Financial Instruments and Non-Financial Assets and Liabilities (Continued)

        In accordance with the fair value hierarchy described above, the following table shows the fair value of the Company's non-financial assets and liabilities that are required to be measured at fair value, on a non-recurring basis as of July 3, 2010 and the corresponding fair value measurements that were recorded during the period ended July 3, 2010 (in thousands):

 
  Fiscal Period
Ended
July 3, 2010
  Quoted Prices in
Active Markets
for Identical
Assets Level 1
  Significant Other
Observable
Inputs Level 2
  Unobservable
Inputs
Level 3
  (1)
Total
Gains (Losses)
 

Long-lived assets held for sale (2)

  $ 6,099       $ 4,899   $ 1,200   $ (709 )

(1)
In accordance with the provisions of the Impairment or Disposal of Long-Lived Assets Subsections of FASB Codification Subtopic 360-10, long-lived assets held for sale with a carrying amount of $6.8 million, were written down to their fair value of $6.1 million, net of the costs to sell based on current market conditions, resulting in a loss of $0.7 million, which was included in earnings for the period.

(2)
Long-lived assets held for sale in Level 2 Inputs reflect the current sales price at which certain property held for sale is currently being marketed based on local market conditions, less costs to sell. The equipment included in Level 3 assets reflects management's best estimate at which the respective equipment will be sold based on market conditions for used equipment, less costs to sell.

        The Company has estimated the fair values of financial instruments using available market information and appropriate valuation methodologies. However, considerable judgment is required in interpreting market data to develop estimates of fair value for non-traded financial instruments. Accordingly, such estimates are not necessarily indicative of the amounts that the Company would realize in a current market exchange. The carrying value of cash and cash equivalents, accounts receivable, inventories, other accounts payable and accrued liabilities and short-term borrowings are reasonable estimates of their fair values. The carrying amount and estimated fair value of the Company's long-term debt as of July 3, 2010 and January 2, 2010 is presented in the following table (in thousands):

 
  As of July 3, 2010   As of January 2, 2010  
 
  Carrying Value   Fair Value   Carrying Value   Fair Value  

Long-term debt (including current portion)

  $ 330,076   $ 324,520   $ 338,942   $ 333,189  

        See Note 13, "Derivatives and Other Financial Instruments and Hedging Activities" for additional disclosures related to the Company's derivative instruments.

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POLYMER GROUP, INC.

Notes to Consolidated Financial Statements (Continued)

Note 15. Earnings Per Share and Shareholders' Equity

        The following is a reconciliation of basic net income/(loss) per common share attributable to Polymer Group, Inc. common shareholders to diluted net income/(loss) per common share attributable to Polymer Group, Inc. common shareholders for the three and six months ended July 3, 2010 (in thousands, except per share data):

 
  Net Income (Loss)
Attributable to
Polymer Group, Inc.
(EPS Numerator)
  Average Shares
Outstanding
(EPS Denominator)
  Earnings (Loss)
Per Common
Share
 

Three months ended July 3, 2010

                   

Basic

  $ 1,558     20,876.5   $ 0.07  

Potential shares exercisable under share-based plans

          569.5        

Less: shares which could be repurchased under treasury stock method

          (197.8 )      
                 

Diluted

  $ 1,558     21,248.2   $ 0.07  
                 

Six months ended July 3, 2010

                   

Basic

  $ (687 )   20,695.5   $ (0.03 )

Potential shares exercisable under share-based plans

          569.5        

Less: shares which could be repurchased under treasury stock method

          (213.1 )      
                 

Diluted

  $ (687 )   21,051.9   $ (0.03 )
                 

        Under the treasury stock method, for the three and six months ended July 3, 2010 shares represented by the exercise of 22,057 and 22,057 nonvested restricted shares, respectively, were not included in diluted earnings per share because to do so would have been anti-dilutive.

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POLYMER GROUP, INC.

Notes to Consolidated Financial Statements (Continued)

Note 15. Earnings Per Share and Shareholders' Equity (Continued)

        The following is a reconciliation of basic income per common share attributable to Polymer Group, Inc. to diluted income per common share attributable to Polymer Group, Inc. common shareholders for the three and six months ended July 4, 2009 (in thousands, except per share data):

 
  Net Income (Loss)
Attributable to
Polymer Group, Inc.
(EPS Numerator)
As Restated
  Average Shares
Outstanding
(EPS Denominator)
  Earnings Per
Common Share
As Restated
 

Three months ended July 4, 2009

                   

Basic

  $ 6,235     19,694.7   $ 0.31  

Potential shares exercisable under share-based plans

          241.9        

Less: shares which could be repurchased under treasury stock method

          (141.5 )      
                 

Diluted

  $ 6,235     19,795.1   $ 0.31  
                 

Six months ended July 4, 2009

                   

Basic

  $ 15,796     19,694.7   $ 0.80  

Potential shares exercisable under share-based plans

          179.2        

Less: shares which could be repurchased under treasury stock method

          (163.9 )      
                 

Diluted

  $ 15,796     19,710.0   $ 0.80  
                 

        Under the treasury stock method, shares represented by the exercise of 37,500 options, and 96,328 nonvested restricted shares, were not included in diluted earnings per share because to do so would have been anti-dilutive.

        As of July 3, 2010, the Company's authorized capital stock consisted of the following classes of stock:

Type
  Par Value   Authorized Shares  

Preferred stock

  $ .01     173,000  

Class A common stock

  $ .01     39,200,000  

Class B convertible common stock

  $ .01     800,000  

Class C convertible common stock

  $ .01     118,453  

Class D convertible common stock

  $ .01     498,688  

Class E convertible common stock

  $ .01     523,557  

        All classes of the common stock have the same voting rights. In accordance with the Amended and Restated Certificate of Incorporation, all shares of Class B, C, D and E Common Stock may be converted into an equal number of shares of Class A Common Stock. The shares of preferred stock may be issued from time to time with such designation, preferences, participation rights and optional or special rights (including, but not limited to, dividend rates, voting rights, maturity dates and the like) as determined by the Board of Directors.

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POLYMER GROUP, INC.

Notes to Consolidated Financial Statements (Continued)

Note 15. Earnings Per Share and Shareholders' Equity (Continued)

        A reconciliation of equity attributable to Polymer Group, Inc. and the noncontrolling interests for the six months ended July 3, 2010 is as follows (in thousands):

 
   
   
  Polymer Group, Inc. Shareholders    
 
 
  Total   Comprehensive
Income (loss)
  Retained
Deficit
  Accumulated
Other
Comprehensive
Income
  Common
Stock
  Paid-in
Capital
  Noncontrolling
Interest
 

Balance, January 2, 2010 (As Restated)

  $ 124,219         $ (137,367 ) $ 41,570   $ 210   $ 211,768   $ 8,038  

Compensation recognized on share-based awards

    2,726                       4     2,722        

Surrender of shares to satisfy withholding tax obligations

    (1,525 )                           (1,525 )      

Comprehensive income (loss):

                                           
 

Net income (loss)

    (394 ) $ (687 )   (687 )                     293  
 

Other comprehensive income (loss), net of tax:

                                           
   

Cash flow hedge adjustment, net of reclassification adjustment

    1,132     1,132           1,132                    
   

Employee benefit plans

    183     183           183                    
   

Currency translation adjustments

    (13,586 )   (13,654 )         (13,654 )               68  
                                       
 

Other comprehensive loss

    (12,271 )   (12,339 )                           68  
                                       

Comprehensive loss

    (12,665 ) $ (13,026 )                           361  
                               

Balance, July 3, 2010

  $ 112,755         $ (138,054 ) $ 29,231   $ 214   $ 212,965   $ 8,399  
                                 

Note 16. Segment Information

        The Company's reportable segments consist of its primary operating divisions—Nonwovens and Oriented Polymers. This reflects how the overall business is managed by the Company's senior management and reviewed by the Board of Directors. Each of these businesses sells to different end-use markets, such as hygiene, medical, wipes and industrial markets. Sales to P&G accounted for more than 10% of the Company's sales in each of the periods presented. Sales to this customer are reported primarily in the Nonwovens segment and the loss of these sales would have a material adverse effect on this segment. The segment information presented in the table below excludes the results of Fabpro. The Company concluded that Fabpro qualifies as an asset held for sale and, consistent with ASC 360, presented Fabpro as a discontinued operation for all reported periods presented. The Company completed the sale of Fabpro during the third quarter of fiscal 2009. The Company recorded charges in the Consolidated Statements of Operations during the three and six months ended July 3, 2010 and the three and six months ended July 4, 2009 relating to acquisition and integration expenses and special charges, net that have not been allocated to the segment data.

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POLYMER GROUP, INC.

Notes to Consolidated Financial Statements (Continued)

Note 16. Segment Information (Continued)

        Financial data by segment for continuing operations is as follows (in thousands):

 
  Three Months Ended   Six Months Ended  
 
  July 3,
2010
  July 4,
2009
As Restated
  July 3,
2010
  July 4,
2009
As Restated
 

Net sales

                         
 

Nonwovens

  $ 262,321   $ 187,259   $ 517,295   $ 378,887  
 

Oriented Polymers

    27,426     18,781     51,822     37,163  
                   

  $ 289,747   $ 206,040   $ 569,117   $ 416,050  
                   

Operating income

                         
 

Nonwovens

  $ 25,125   $ 25,568   $ 49,956   $ 53,580  
 

Oriented Polymers

    1,868     262     1,476     1,596  
 

Unallocated Corporate

    (8,612 )   (6,080 )   (17,317 )   (12,570 )
                   

    18,381     19,750     34,115     42,606  
 

Acquisition and integration expenses

    (156 )       (1,680 )    
 

Special charges, net

    (5,115 )   (5,882 )   (9,357 )   (8,773 )
                   

  $ 13,110   $ 13,868   $ 23,078   $ 33,833  
                   

Depreciation and amortization expense

                         
 

Nonwovens

  $ 10,931   $ 11,438   $ 22,204   $ 22,673  
 

Oriented Polymers

    144     408     292     789  
 

Unallocated Corporate

    183     190     468     380  
                   
 

Depreciation and amortization expense included in operating income

    11,258     12,036     22,964     23,842  
 

Amortization of loan acquisition costs

    222     273     437     608  
                   

  $ 11,480   $ 12,309   $ 23,401   $ 24,450  
                   

Capital spending

                         
 

Nonwovens

  $ 5,001   $ 11,463   $ 9,484   $ 14,755  
 

Oriented Polymers

    (20 )   14     185     70  
 

Corporate

        90         135  
                   

  $ 4,981   $ 11,567   $ 9,669   $ 14,960  
                   

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POLYMER GROUP, INC.

Notes to Consolidated Financial Statements (Continued)

Note 16. Segment Information (Continued)

 

 
  July 3,
2010
  January 2,
2009
As Restated
 

Division assets

             
 

Nonwovens

  $ 725,649   $ 740,591  
 

Oriented Polymers

    42,597     36,255  
 

Corporate

    4,621     3,763  
 

Eliminations

    (65,016 )   (79,071 )
           

  $ 707,851   $ 701,538  
           

        Geographic Data:

        Geographic data for the Company's continuing operations, based on the geographic region that sales are made from, are presented in the following table (in thousands):

 
  Three Months Ended   Six Months Ended  
 
  July 3,
2010
  July 4,
2009
As Restated
  July 3,
2010
  July 4,
2009
As Restated
 

Net sales

                         
 

United States

  $ 85,946   $ 71,524   $ 166,035   $ 147,738  
 

Canada

    26,212     18,186     49,713     36,127  
 

Europe

    67,391     36,591     138,267     75,278  
 

Asia

    30,700     26,139     62,071     50,343  
 

Latin America

    79,498     53,600     153,031     106,564  
                   

  $ 289,747   $ 206,040   $ 569,117   $ 416,050  
                   

Operating income

                         
 

United States

  $ (2,968 ) $ 2,173   $ (7,072 ) $ 8,308  
 

Canada

    1,279     29     483     1,510  
 

Europe

    3,907     432     6,774     1,279  
 

Asia

    6,843     5,178     13,013     10,993  
 

Latin America

    9,320     11,938     20,917     20,516  
                   

    18,381     19,750     34,115     42,606  
 

Acquisition and integration expenses

    (156 )       (1,680 )    
 

Special charges, net

    (5,115 )   (5,882 )   (9,357 )   (8,773 )
                   

  $ 13,110   $ 13,868   $ 23,078   $ 33,833  
                   

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POLYMER GROUP, INC.

Notes to Consolidated Financial Statements (Continued)

Note 16. Segment Information (Continued)

 
  Three Months Ended   Six Months Ended  
 
  July 3,
2010
  July 4,
2009
As Restated
  July 3,
2010
  July 4,
2009
As Restated
 

Depreciation and amortization expense

                         
 

United States

  $ 3,914   $ 3,536   $ 7,605   $ 7,239  
 

Canada

    134     400     272     775  
 

Europe

    1,311     1,912     2,774     3,734  
 

Asia

    1,717     2,335     3,701     4,668  
 

Latin America

    4,182     3,853     8,612     7,426  
                   
 

Depreciation and amortization expense included in operating income

    11,258     12,036     22,964     23,842  
 

Amortization of loan acquisition costs

    222     273     437     608  
                   

  $ 11,480   $ 12,309   $ 23,401   $ 24,450  
                   

 

 
  July 3,
2010
  January 2,
2010
As Restated
 

Property, plant and equipment, net

             
 

United States

  $ 81,248   $ 91,700  
 

Canada

    4,877     5,052  
 

Europe

    26,572     33,203  
 

Asia

    62,543     54,596  
 

Latin America

    136,066     145,864  
           

  $ 311,306   $ 330,415  
           

Note 17. Foreign Currency and Other (Gain) Loss, Net

        Components of foreign currency (gain) loss are shown in the table below (in thousands):

 
  Three Months Ended   Six Months Ended  
 
  July 3,
2010
  July 4,
2009
As Restated
  July 3,
2010
  June 4,
2009
As Restated
 

Included in operating income

  $ (123 ) $ (2,233 ) $ (853 ) $ (2,200 )

Included in other expense (income)

    535     1,766     753     3,126  
                   

  $ 412   $ (467 ) $ (100 ) $ 926  
                   

        For international subsidiaries which have the U.S. dollar as their functional currency, local currency transactions are remeasured into U.S. dollars, using current rates of exchange for monetary assets and liabilities. Gains and losses from the remeasurement of such monetary assets and liabilities are reported in Other operating income, net in the Consolidated Statements of Operations. Likewise, for international subsidiaries which have the local currency as their functional currency, gains and losses from the remeasurement of monetary assets and liabilities not denominated in the local currency are reported in

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POLYMER GROUP, INC.

Notes to Consolidated Financial Statements (Continued)

Note 17. Foreign Currency and Other (Gain) Loss, Net (Continued)


Other operating income, net in the Consolidated Statements of Operations. Additionally, currency gains and losses have been incurred on intercompany loans between subsidiaries, and to the extent that such loans are not deemed to be permanently invested, such currency gains and losses are reflected in Foreign currency and other loss, net in the Consolidated Statements of Operations.

        The Company includes gains and losses on receivables, payables and other operating transactions as a component of operating income in Other operating income, net . Other foreign currency gains and losses, primarily related to intercompany loans and debt and other non-operating activities, are included in Foreign currency and other loss, net .

Note 18. Commitments and Contingencies

        The Company is not currently a party to any pending legal proceedings other than routine litigation incidental to the business of the Company, none of which are deemed material.

        The Company has a commitment to make payments of approximately $32.9 million (€26.5 million, using the € to $ exchange rate as of July 3, 2010) that are attributable to the Building and Equipment Lease agreement between PGI Spain and Tesalca-Texnovo. See Note 4, "Acquisitions" for additional disclosures related to the Building and Equipment Lease agreement.

        On January 19, 2010, we entered into a firm purchase commitment (the "Purchase Agreement") to acquire a new spunmelt line to be installed at our manufacturing facility in Suzhou, China. We are currently working with banks in China to secure outside financing for a portion of this capital project. If we are unable to secure outside financing, the capital project will be funded using a combination of existing cash balances, internal cash flows and existing U.S. based credit facilities. As of July 3, 2010, the estimated total remaining payments with respect to the China expansion project were approximately $58.4 million, which are expected to be expended through second quarter of fiscal year 2012.

        On June 24, 2010, Chicopee, Inc. ("Chicopee"), a wholly owned subsidiary of Polymer Group, Inc., entered into an Equipment Lease Agreement (the "Agreement") with Gossamer Holdings, LLC, a Delaware limited liability company ("Gossamer"). Pursuant to the Agreement, Chicopee will lease an integrated manufacturing line for the production of heat sealed polypropylene nonwoven fabrics (the "Equipment") from Gossamer for a seven-year period (the "Basic Term") beginning upon Chicopee's acceptance of the Equipment (the "Basic Term Commencement Date"), which is expected to occur in the third quarter of 2011. The capitalized cost amount, which is subject to adjustment, is expected to approximate $53.0 million to $56.5 million. From the Basic Term Commencement Date to the fourth anniversary of the Basic Term Commencement Date, Chicopee will make annual lease payments of approximately $8.4 million to $9.0 million to Gossamer. The aggregate monthly lease payments to Gossamer under the Agreement, which is subject to adjustment, is expected to approximate $58.8 million to $62.7 million. From the fourth anniversary of the Basic Term Commencement Date to the end of the Basic Term, Chicopee's annual lease payments may change in accordance with an adjustment to the Basic Term Lease Rate Factor, as defined in the Agreement.

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POLYMER GROUP, INC.

Notes to Consolidated Financial Statements (Continued)

Note 19. Supplemental Cash Flow Information

        Noncash investing or financing activities in the first six months of fiscal 2010 included the surrender of 67,049 shares of the Company's Class A Common Stock to the Company by participants in the various stock compensation plans in the amount of $1.5 million to satisfy employee withholding tax obligations.

        Noncash investing or financing activities in the first six months of fiscal 2009 included the surrender of 84,561 shares of the Company's Class A Common Stock to the Company by participants in the various stock compensation plans in the amount of $0.4 million to satisfy employee withholding tax obligations. Also, the Company recorded $24.0 million of property, plant and equipment additions, for which payment had not been made as of July 4, 2009.

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ITEM 2.    MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

         The following discussion and analysis provides information which management believes is relevant to an assessment and understanding of our consolidated results of operations and financial condition. The discussion should be read in conjunction with the consolidated financial statements and notes thereto contained in Item 1 of Part I to this Quarterly Report on Form 10-Q. In addition, Also, numbers pertaining to periods in fiscal 2009 have been restated as appropriate. it should be noted that our gross profit margins may not be comparable to other companies since some entities classify shipping and handling costs in cost of goods sold and others, including us, include such costs in selling, general and administrative expenses. Similarly, some entities, including us, include foreign currency gains and losses resulting from operating activities as a component of operating income, and some entities classify all foreign currency gains and losses outside of operating income.

Overview

        We are a leading global innovator, manufacturer and marketer of engineered materials, focused primarily on the production of nonwovens. Nonwovens are high value-added, high performance and low-cost alternative materials developed as an outgrowth of paper, textile and chemical technologies, with critical characteristics including absorbency, tensile strength, softness and barrier properties. Our products, which typically comprise only a small percentage of the final product's total cost, are the critical substrates and components for disposable consumer applications such as baby diapers, feminine hygiene products, household and personal wipes, disposable medical applications, such as surgical gowns and drapes, and for various durable industrial applications including furniture and bedding, filtration and protective apparel.

        We have one of the largest global platforms in our industry, with fourteen manufacturing and converting facilities throughout the world, and a presence in nine countries. We are strategically located near many of our key customers in order to increase our effectiveness in addressing local and regional demand as many of our products do not ship economically over long distances. We work closely with our customers, which include well-established multi-national and regional consumer and industrial product manufacturers, and use innovative technologies to provide engineered solutions to meet increasing consumer demand for more sophisticated products. We believe that we are one of the leading participants in the majority of the markets in which we compete and have, we believe, one of the broadest and most advanced technology portfolios in the industry.

        We compete primarily in the worldwide nonwovens market. According to certain industry sources, the nonwovens market was in excess of $20.0 billion in annual sales in 2008. Historically, the global market has been expected to grow at a five-year compound annual growth rate (CAGR) of 6.0 to 8.0%. The change in macro-economic conditions in 2008 and 2009 negatively impacted certain market segments, specifically durable products used in industrial applications. The severe and unexpected decline in the global marketplace has made long-term growth forecasts difficult. Based on available data, we still expect continued growth in the market in the range of 3.0% to 5.0% CAGR, with higher growth rates expected in the developing regions and in end-use market segments that are more disposable in nature. Demand in certain developing regions is still forecasted to grow in excess of a 10.0% CAGR over the next five years. Demand in developed regions (North America, Western Europe and Japan) over this period is expected to increase by a 1.0 to 3.0% CAGR, driven by increased penetration, the development of new applications for nonwovens and a recovery of certain underlying markets beginning in 2010. We believe that future growth will depend upon the continuation of improvements in technology and raw materials, which should result in the development of high-performance nonwovens, leading to new uses and markets. We believe our global platform and technological leadership, with an increasing presence in the higher-growth developing regions, will allow us to achieve growth and increased profitability. However, our growth rate may differ from the

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industry averages depending upon the regions and markets we choose to operate in and the technology that we develop.

        The Nonwovens segment develops and sells products in various consumer and industrial markets, including hygiene, medical, industrial, and wiping. Nonwovens segment sales were approximately $804.8 million, $971.4 million and $885.7 million of our consolidated net sales for fiscal 2009, 2008 and 2007, respectively, and represented approximately 91%, 91% and 89% of our consolidated net sales in each of those years.

        Nonwovens are categorized as either disposable or durable. We primarily compete in disposable products, which account for approximately 70% of our total nonwoven sales. We believe that disposable products are less cyclical and will have higher growth rates in the future, driven primarily by the increasing adoption of these materials in developing economies due to rising per capita income and population growth. We sell a diverse array of durable products to a variety of niche industrial end markets. Our products are a mix of roll goods and downstream and integrated finished products. We endeavor to add value to our products through our printing, laminating and small roll converting capabilities and, in some instances, convert product ourselves and sell directly to the end consumer. With this downstream presence we are a more valuable supplier to our customers with a more efficient distribution chain and knowledge of the consumer of the end product.

        The Oriented Polymers segment provides flexible packaging products that utilize coated and uncoated oriented polyolefin fabrics. Oriented Polymers segment sales were approximately $77.8 million, $101.8 million and $114.1 million for fiscal 2009, 2008 and 2007, respectively, and represented approximately 9%, 9% and 11% of our consolidated net sales in each of those years.

        The Oriented Polymers segment utilizes extruded polyolefin processes and woven technologies to produce a wide array of products for industrial packaging, building products and protective apparel markets. These include housewrap, lumberwrap, fiberglass packaging tubes, steel wrap, performance fabrics for firemen turnout gear and other performance fabrics. Our woven slit film component of the business primarily competes in niche markets, delivering more complex products versus supplying uncoated markets such as carpet backing fabric, geotextiles and bags. The industrial packaging markets in which we compete include applications such as lumberwrap, steel wrap and fiberglass packaging. The building products applications include high-strength protective coverings, printed billboard material and specialized components that are integrated into a variety of industrial products (e.g., roofing substrates and flame-retardant fabric). We maintain leading market positions in this segment, as evidenced by our #2 position in North America in flame-retardant performance fabrics. We are focusing efforts on diversifying away from large volume, commodity products within this division through continued product innovation.

        During the quarter ended July 4, 2009, we determined that, pursuant to Financial Accounting Standards Accounting Standards Codification ("ASC") Topic 360, the assets of Fabpro Oriented Polymers, LLC ("Fabpro") represented assets held for sale. Accordingly, the operations of Fabpro, previously included in the Oriented Polymers segment, have been reported as discontinued operations, as the cash flows of Fabpro were eliminated from our ongoing operations, and we will have no continuing involvement in the operations of the business after the disposal transaction. We decided to sell this business as part of our continuing effort to evaluate our businesses and product lines for strategic fit within our operations. We completed the sale of Fabpro during the third quarter of fiscal 2009.

        As a result, Fabpro has been accounted for as a discontinued operation for the periods presented in this report. Accordingly, the results of operations of Fabpro have been segregated from continuing operations and included in Income from discontinued operations in the Consolidated Statements of Operations included in Item 1 of Part I to this Quarterly Report on Form 10-Q.

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        Approximately three-fourths of our sales are generated from disposable products that are not as significantly impacted by macro market swings, providing a base of volume demand that is relatively stable during times of economic downturns. In late 2008 and continuing through 2009, the general worldwide economy experienced a downturn resulting in slower economic activity. Certain portions of our business were negatively affected by the macro economic changes, most specifically the portion of our business serving the industrial markets associated with durable goods applications. The most notable impacts were in our European and North American regions where we experienced significant decreases in our sales volumes. If certain of the markets we serve deteriorate further based on a resurgence of recessionary trends, our business, financial condition and results of operations may be materially and adversely affected. Conversely, as worldwide economic purchase volumes declined, the cost of our raw materials declined significantly, beginning in the fourth quarter of 2008. This dramatic change, combined with other specific business initiatives to improve profits, resulted in a positive impact to our overall earnings in 2009, primarily in the first six months, offsetting the negative impacts of lower volumes.

Raw Materials

        The primary raw materials used to manufacture most of our products are polypropylene resin, polyester fiber, polyethylene resin and, to a lesser extent, rayon and tissue paper. These primary raw materials are available from multiple sources and we purchase such materials from a variety of global suppliers. In certain regions of the world, we may source certain raw materials from a limited number of suppliers or on a sole-source basis. The prices of polypropylene, polyethylene and polyester are a function of, among other things, manufacturing capacity, demand and the price of crude oil and natural gas liquids. Historically, the prices of polypropylene and polyethylene resins and polyester fibers have fluctuated. We have not historically hedged the exposure to raw material increases, but we have certain customer contracts that contain price adjustment provisions which provide for the pass-through of any cost increases or decreases in raw materials, although there is often a lag between the time that we incur the new raw material cost and the time that we adjust the selling price to our customers. In periods of rising raw material costs, to the extent we are not able to pass along price increases of raw materials, or to the extent any such price increases are delayed, our cost of goods sold would increase and our operating profit would correspondingly decrease. Increases in raw material costs that cannot be passed on to customers could have a material adverse effect on our results of operations and financial condition. By way of example, if the price of polypropylene was to rise $.01 per pound, and we were not able to pass along any of such increase to our customers, we would realize a decrease of approximately $5.2 million, on an annualized basis, in our reported pre-tax operating income. In the event of such an increase, the impact on operating income would be reduced by any pass-through of the increase in the form of higher selling prices on contract business. There can be no assurance that the prices of our raw materials, including polypropylene, polyethylene and polyester, will not substantially increase in the future, or that we will be able to pass on any increases to our customers not covered by contracts with price escalation clauses. In periods of declining raw material costs, our cost of goods would decrease and our operating profit would correspondingly increase; however, such increases would be offset, in whole or in part, by reductions in selling prices offered to customers by contract or in light of current market conditions. See Item 3 "Quantitative and Qualitative Disclosures About Market Risk" included in this Form 10-Q.

        During fiscal 2009, we experienced increases in the cost of polypropylene resin versus the cost of such resin at the end of fiscal 2008 and continue to experience significant volatility in resin prices. During the first six months of fiscal 2010, the volatility of raw material costs has continued, increasing significantly in the Americas during the first four months of the year, followed by decreases in May and June, with additional increases forecasted by industry sources for the remaining months of fiscal year 2010. We have seen similar trends in Europe, while experiencing more stable pricing in raw materials in the Asian markets. Additionally, on a global basis, other raw material costs continue to fluctuate, in a

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much narrower range, in response to certain global economic factors, including the regional supply versus demand dynamics for the raw materials and the volatile price of oil. If raw material prices were to continue to increase at the rate experienced for the first six months, our results may be materially and adversely affected.

        We believe that the loss of any one or more of our suppliers would not have a long-term material adverse effect on us because other manufacturers with whom we conduct business would be able to fulfill our requirements. However, the loss of certain of our suppliers could, in the short-term, adversely affect our business until alternative supply arrangements were secured or alternative suppliers were qualified with customers. We have not experienced, and do not expect, any significant disruptions in supply as a result of shortages in raw materials.

Business Acquisitions

    Spain

        On December 2, 2009, we completed the initial phase of the acquisition, from Grupo Corinpa, S.L. ("Grupo Corinpa"), of certain assets and the operations of the nonwovens businesses of Tesalca-99, S.A. and Texnovo, S.A. (together with Tesalca-99, S.L., "Tesalca-Texnovo" or the "Sellers"), which are headquartered in Barcelona, Spain (the "Spain Business Acquisition"). We completed the Spain Business Acquisition through PGI Spain, which operates as a new wholly owned subsidiary.

        The acquired assets include the net operating working capital as of November 30, 2009 (defined as current assets less current liabilities excluding financial liabilities associated with the operations), the customer lists and the current book of business. Concurrent with the Spain Business Acquisition, we entered into a seven year lease (beginning December 2, 2009 and ending December 31, 2016) with Tesalca-Texnovo that provides that PGI Spain is entitled to the full and exclusive use of the Sellers' land, building and equipment during the term of the lease (the "Building and Equipment Lease"). PGI Spain is obligated to remit approximately €29.0 million to Tesalca-Texnovo during the term of the Building and Equipment Lease agreement. Pursuant to ASC 840, the Building and Equipment Lease agreement has been accounted for as an operating lease. Furthermore, pursuant to ASC 840-20-25-2, PGI Spain will recognize rent expense on a straight-line basis over the lease term.

        Further, as part of the Spain Business Acquisition, PGI Spain granted the Sellers a put option over the assets underlying the Building and Equipment Lease (the "Phase II Assets") until December 31, 2012 (the "Put Option"). The Sellers' right to exercise the Put Option is dependent upon whether the results of the operations of PGI Spain meet the annual EBITDAR (earnings before interest, taxes, depreciation, amortization and rent, all as defined in the acquisition agreement) performance projection of €7.7 million, excluding lease payments ("EBITDAR Projection"), for either fiscal year 2010 or 2011 (the "Performance Period"). Furthermore, the Sellers granted PGI Spain a call option over the assets underlying the Phase II Assets, which expires on December 31, 2012 (the "Call Option"). If the results of the operations of PGI Spain do not meet the EBITDAR Projection for the Performance Period, then the Sellers' Put Option cannot be exercised and thus would expire at the end of its term. In the event that either the Put Option or Call Option is not exercised, the parties are obligated to continue with the Building and Equipment Lease until December 31, 2016.

        Consideration for the acquired assets consisted of approximately 1.049 million shares of our Class A common stock ("Issued Securities"), which represented approximately 5.0% of our outstanding share capital, on December 2, 2009, taking into account the Issued Securities. The Issued Securities are subject to certain restrictions, including that the Issued Securities are not registered pursuant to the Securities Act of 1933. On December 2, 2009, the fair value of the Issued Securities approximated $14.5 million.

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        We have concluded that Tesalca-Texnovo does not meet the criteria to be considered a variable interest entity. We reached this conclusion in accordance with our reevaluation of ASC 810, based on both the accounting guidance prior to the revisions that came into effect on January 3, 2010 and the revised accounting guidance that came into effect on January 3, 2010. Accordingly, we have concluded that it would not appropriate to consolidate the financial results of Tesalca-Texnovo within our consolidated financial statements.

        For further details regarding this acquisition, see Note 4 "Acquisitions" to the consolidated financial statements included in Item 1 of Part I to this Quarterly Report on Form 10-Q.

    Argentina

        In the fourth quarter of fiscal 2009, we completed the acquisition of the 40% non-controlling ownership interest in our Argentina business, Dominion Nonwovens Sudamericana, S.A. The purchase price was approximately $4.1 million. For further details regarding this transaction, see Note 4 "Acquisitions" to the consolidated financial statements included in Item 1 of Part I to this Quarterly Report on Form 10-Q.

Recent Expansion Initiatives

        On January 19, 2010, we entered into a firm purchase commitment (the "Suzhou Purchase Agreement") to acquire a new spunmelt line to be installed at our manufacturing facility in Suzhou, China. We are currently working with banks in China to secure outside financing for a portion of this capital project. If we are unable to secure outside financing, the capital project will be funded using a combination of existing cash balances, internal cash flows and existing U.S. based credit facilities.

        On June 24, 2010, Chicopee, Inc. ("Chicopee"), a wholly owned subsidiary of Polymer Group, Inc. entered into an Equipment Lease Agreement (the "Agreement") with Gossamer Holdings, LLC, a Delaware limited liability company ("Gossamer"). Pursuant to the Agreement, Chicopee will lease an integrated manufacturing line for the production of heat sealed polypropylene nonwoven fabrics (the "Equipment") from Gossamer for a seven-year period (the "Basic Term") beginning upon Chicopee's acceptance of the Equipment (the "Basic Term Commencement Date"), which is expected to occur in the third quarter of 2011. The capitalized cost amount, which is subject to adjustment, is expected to approximate $53.0 million to $56.5 million. From the Basic Term Commencement Date to the fourth anniversary of the Basic Term Commencement Date, Chicopee will make annual lease payments of approximately $8.4 million to $9.0 million to Gossamer. The aggregate monthly lease payments to Gossamer under the Agreement, which is subject to adjustment, is expected to approximate $58.8 million to $62.7 million. From the fourth anniversary of the Basic Term Commencement Date to the end of the Basic Term, Chicopee's annual lease payments may change in accordance with an adjustment to the Basic Term Lease Rate Factor, as defined in the Agreement.

        We have completed six expansions in the past five years, including four in high growth regions in Latin America and Asia, to address growing demand for regional hygiene and global medical products. Capital expenditures during the five-year period ended January 2, 2010 totaled $285.6 million and included five fully commercialized spunmelt facilities, including start-ups in Mexico (mid-2009), Argentina (late 2007), Suzhou, China (late 2006), Mooresville, North Carolina (late 2006) and Colombia (late 2005) and the retrofit of an existing hydroentanglement line at our Benson, North Carolina facility (late 2007).

Plant Consolidation and Realignment

        We review our businesses on an ongoing basis relative to current and expected market conditions, attempting to match our production capacity and cost structure to the demands of the markets in which we participate, and strive to continuously streamline our manufacturing operations consistent with

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world-class standards. Our strategy with respect to the consolidation efforts in the U.S. and Europe is focused on the elimination of cash fixed costs at the closed plant sites, and the transfer of business and equipment to sites in regions with lower variable costs and which are closer to our customers, as necessary and practical, to retain the existing business with the potential to expand sales volumes.

        On June 9, 2009, the Board of Directors approved management's plan to consolidate our operations in the U.S. in order to better align our manufacturing capabilities with our long-term strategic direction and to reduce overall operating costs. Our plans included the closure of our North Little Rock, Arkansas manufacturing plant and the relocation of certain equipment from that manufacturing facility to our Benson, North Carolina manufacturing plant. These activities also include the upgrade of certain assets and capabilities at the Benson, North Carolina plant. We anticipate that these actions, when fully implemented, will result in improved profitability and a more efficient manufacturing cost structure, which will be partially offset by the loss of margin from exited businesses. We estimate the net effect of these initiatives to contribute additional profits of approximately $6.0 million to $9.0 million on an annualized basis.

        Further, in January 2009, we made the decision to exit our automotive business as our industrial business had been negatively impacted as a result of the economic downturn.

        In fiscal 2009, we incurred special charges, net of $21.0 million, including $17.1 million of restructuring and plant realignment costs, $3.4 million of non-cash asset impairment charges resulting from our evaluation of our long-lived assets for recoverability, and other costs of $0.4 million. These restructuring costs are continuing into fiscal 2010 until the planned relocation of the assets and the closure of our facility in North Little Rock, Arkansas is complete.

        In the future, we may or may not decide to undertake certain restructuring efforts to improve our competitive position, especially in the more mature markets of the U.S., Europe and Canada. In such mature markets, the prices for certain roll goods continue to fluctuate based on supply and demand dynamics relative to the assets employed in that geographic region. We actively and continuously pursue initiatives to prolong the useful life of our long-lived assets through product and process innovation. In some instances we may decide, as was the case with our plans to consolidate operations in the U.S. and Europe, and as further described in Note 3 "Special Charges, Net" to the consolidated financial statements included in Item 1 of Part I to this Quarterly Report on Form 10-Q, that our fixed cost structure will be enhanced through consolidation. To the extent further decisions are made to improve our long-term performance, such actions could result in cash restructuring charges and asset impairment charges associated with the consolidation, and such charges could be material.

Results of Operations

        As described above in "Raw Materials" and in Item 3 "Quantitative and Qualitative Disclosures About Market Risk," we are significantly impacted by variability in raw material costs, including polypropylene resin and other resins and fibers. For the fiscal year ended January 2, 2010, we generated an overall gross margin of approximately 21%, which is significantly higher than historical gross margins, which ranged from 15% to 16% from fiscal 2006 through fiscal 2008. There are many contributors to the improvement in gross margin percentage, with the increase in fiscal year 2009 primarily generated by dramatic declines in raw material costs experienced during the fourth quarter of fiscal 2008, which had a significant positive impact on gross margin for the first quarter of fiscal 2009 as profits improved on a lower sales dollar base to reflect lower raw material costs. During the first quarter, and continuing into the second quarter of fiscal 2010, there was a significant increase in the cost of polypropylene resin and other raw materials. Additionally, the potential exists for further volatility in resin prices in fiscal 2010, which typically results in changes in selling prices for our products on somewhat of a lag basis as determined by raw material pricw escalator clauses in many of our customer agreements. Therefore, the results generated for the first six months of fiscal 2010 may not be indicative of financial performance

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achieved for the remainder of the 2010 fiscal year. The first six months of fiscal 2010 was also impacted by the contribution of the operations of our business in Spain that was acquired on December 2, 2009, resulting in higher volumes, sales and expenses when compared to the prior year period.

        The following table sets forth the percentage relationships to net sales of certain Consolidated Statements of Operations items for the three and six months ended July 3, 2010 in comparison to such items for the three and six months ended July 4, 2009 and in comparison with the 2008 and 2009 fiscal years:

 
  Fiscal Year Ended   Three Months Ended   Six Months Ended  
 
  2009
As Restated
  2008
As Restated
  July 3, 2010   July 4, 2009
As Restated
  July 3, 2010   July 4, 2009
As Restated
 

Net sales

    100.0 %   100.0 %   100.0 %   100.0 %   100.0 %   100.0 %

Cost of goods sold:

                                     
 

Materials

    46.9     55.0     54.4     46.2     53.3     45.2  
 

Labor

    8.1     7.2     6.8     8.0     7.0     8.2  
 

Overhead

    24.2     21.5     20.4     25.1     21.9     24.5  
                           

    79.2     83.7     81.6     79.3     82.2     77.9  
                           

Gross profit

    20.8     16.3     18.4     20.7     17.8     22.1  

Selling, general and administrative expenses

    13.1     11.0     12.2     12.4     12.1     12.6  

Acquisition and integration expenses

    0.2         0.1           0.3        

Special charges, net

    2.4     1.9     1.7     2.9     1.5     2.1  

Other operating (income) loss, net

    (0.4 )   0.4     (0.1 )   (1.3 )   (0.1 )   (0.7 )
                           

Operating income (loss)

    5.5     3.0     4.5     6.7     4.0     8.1  

Other expense (income):

                                     
 

Interest expense, net

    3.0     2.9     2.8     3.2     2.9     3.4  
 

Gain on reacquisition of debt

    (0.3 )                   (0.6 )
 

Loss on extinguishment of debt

    0.6                                
 

Foreign currency and other (gain) loss, net

    0.5     (0.2 )   0.1     1.0     0.2     0.8  
                           

Income (loss) before income taxes and discontinued operations

    1.7     0.3     1.6     2.5     0.9     4.5  
 

Income tax expense

    1.4     0.6     1.0     1.0     1.0     2.3  
                           

Income (loss) from continuing operations

    0.3     (0.3 )   0.6     1.5     (0.1 )   2.2  

Income (loss) from discontinued operations

    0.5     0.2         1.0         0.9  

Gain on sale of discontinued operations

    1.0                      
                           

Net income from discontinued operations

    1.5     0.2         1.0         0.9  
                           

Net income (loss)

    1.8     (0.1 )   0.6     2.5     (0.1 )   3.1  

Less: net (income) loss attributable to noncontrolling interests

    0.2     0.5     (0.1 )   0.5     0.0     0.7  
                           

Net income (loss) attributable to Polymer Group, Inc. 

    2.0 %   0.4 %   0.5 %   3.0 %   (0.1 )%   3.8 %
                           

Comparison of Three Months Ended July 3, 2010 and July 4, 2009

        Our reportable segments consist of our two operating divisions, Nonwovens and Oriented Polymers. For additional information regarding segment data, see Note 14 "Segment Information" to the unaudited interim consolidated financial statements included in Item 1 of Part I to this Quarterly Report on Form 10-Q. The segment information presented in the table below excludes the results of Fabpro, as

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the operating results of Fabpro are presented as a discontinued operation. The following table sets forth components of our net sales and operating income (loss) by operating division for the three months ended July 3, 2010, the three months ended July 4, 2009 and the corresponding change (in millions):

 
  Three months ended    
 
 
  July 3,
2010
  July 4,
2009
As Restated
  Change  

Net sales

                   
 

Nonwovens

  $ 262.3   $ 187.2   $ 75.1  
 

Oriented Polymers

    27.4     18.8     8.6  
               

  $ 289.7   $ 206.0   $ 83.7  
               

Operating income (loss)

                   
 

Nonwovens

  $ 25.2   $ 25.6   $ (0.4 )
 

Oriented Polymers

    1.9     0.3     1.6  
 

Unallocated Corporate, net of eliminations

    (8.7 )   (6.1 )   (2.6 )
               

    18.4     19.8     (1.4 )
 

Acquisition and integration expenses

    (0.2 )       (0.2 )
 

Special charges, net

    (5.1 )   (5.9 )   0.8  
               

  $ 13.1   $ 13.9   $ (0.8 )
               

        The amounts for acquisition and integration expenses and special charges, net have not been allocated to our reportable business divisions because our management does not evaluate such charges on a division-by-division basis. Division operating performance is measured and evaluated before such items.

Net sales

        Net sales were $289.7 million for the three months ended July 3, 2010, an increase of $83.7 million, or 40.6%, from the comparable period of fiscal 2009 net sales of $206.0 million. Net sales for fiscal 2010 increased in the Nonwovens segment from comparable 2009 results by 40.1%, and net sales in fiscal 2010 in the Oriented Polymers segment increased 50.5% from 2009 results. A reconciliation of the change in net sales between the three months ended July 3, 2010 and the three months ended July 4, 2009 is presented in the following table (in millions):

 
  Nonwovens   Oriented
Polymers
  Total  

Net sales—three months ended July 4, 2009

  $ 187.2   $ 18.8   $ 206.0  

Change in sales due to:

                   

Volume

    44.0     7.1     51.1  

Price/mix

    33.3     0.7     34.0  

Foreign currency translation

    (2.2 )   0.8     (1.4 )
               

Net sales—three months ended July 3, 2010

  $ 262.3   $ 27.4   $ 289.7  
               

        The net volume increase of $44.0 million in Nonwovens sales is primarily attributable to sales generated from the new acquisition in Europe, PGI Spain, that occurred in December, 2009, along with additional volume sold from our capacity expansion in Mexico in the second half of fiscal year 2009. Additionally, we achieved a 15% increase in volumes from our businesses in South America compared to the second quarter of 2009 due to successful hygiene volume growth initiatives in the region and recovery from the impacts of adverse economic and political conditions present in the prior year period. Volumes in the rest of the Nonwovens business were relatively stable compared to the prior year period,

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including slightly higher volumes in our European business, excluding the PGI Spain acquisition. Oriented Polymers' sales volumes for building, packaging, agriculture and apparel products improved as demand in the industrial markets we participate in showed some recovery from the depressed levels of 2009.

        Sales in the Nonwovens segment were also positively impacted by higher price/mix, primarily due to price increases resulting from the pass-through of higher raw material costs. As raw material costs have steadily increased beginning in late 2009 and during fiscal 2010, we have raised selling prices to our customers where required by contract terms, and where appropriate based on market conditions. In general, with respect to contracted business there is usually a lag between the change in raw material cost and the change in sales price. The magnitude of the lag varies within the business and the company implemented initiatives during fiscal 2009 to improve its ability to better match the frequency of selling price changes with changes in raw material costs. The lag is most pronounced in our U.S. region due to the high concentration of business subject to specific price escalators. As raw material costs have declined in North America in recent months, our selling prices would be expected to decline accordingly if such lower cost levels are sustained.

        Net sales decreased $1.4 million due to the foreign currency translation, primarily in the European regions, compared to the prior year period. Further discussion of foreign currency exchange rate risk is contained in Item 3 "Quantitative and Qualitative Disclosures About Market Risk" included below.

Gross margin as a percent of sales

        Gross margin as a percent of sales for the three months ended July 3, 2010 declined to 18.4% from 20.7% in the second quarter of fiscal 2009, primarily driven by higher sales levels and higher raw material costs. In the first half of 2009, our gross margin as a percent of sales benefitted from the significant drop in raw material costs experienced in the fourth quarter 2008 and into the first quarter of 2009 without a corresponding drop in sales prices due to the sales price lag mentioned above. As raw material prices increased in second half of 2009 and into the first half of 2010, we did not experience the same benefit for the three month period ending July 3, 2010. Despite higher labor and energy rates in 2010 compared to 2009, manufacturing costs as a percent of sales were lower on the base business due to efficiencies from cost reduction activities and lower depreciation expense, offset in part by activities and costs associated with the relocation, reinstallation and startup of the U.S. carded equipment restructuring during the first half of 2010. Additionally, while there is no depreciation expense in cost of goods sold associated with PGI Spain, the operating lease payments are reflected in the cost of goods sold, which impacts the gross profit margin as well. The raw material component of the cost of goods sold as a percentage of net sales increased from 46.2% in the second quarter 2009 to 54.4% for the second quarter of 2010, whereas our labor and overhead components of the cost of goods sold decreased as a percentage of net sales from the three month period of fiscal 2009 to the comparable period of 2010. As a percentage of sales, labor decreased from 8.0% to 6.8% and overhead decreased from 25.1% to 20.4%. All of the above percentages were also impacted by increases in selling prices resulting from the pass-through of higher raw material costs.

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Operating income

        A reconciliation of the change in operating income between the three months ended July 4, 2009 and the three months ended July 3, 2010 is presented in the following table (in millions):

Operating income—three months ended July 4, 2009 (As Restated)

  $ 13.9  

Change in operating income due to:

       
 

Volume

    12.8  
 

Price/mix

    34.2  
 

Higher raw material costs

    (35.1 )
 

Higher manufacturing costs

    (0.2 )
 

Foreign currency

    (3.9 )
 

Lower depreciation and amortization expense

    0.8  
 

Higher acquisition and integration expenses

    (0.2 )
 

Lower special charges, net

    0.8  
 

All other, primarily higher SG&A spending

    (10.0 )
       

Operating income—three months ended July 3, 2010

  $ 13.1  
       

        Consolidated operating income decreased 12.9% to $13.1 million for the three months ended July 3, 2010 as compared to $13.9 million in the comparative period in 2009. The volume growth detailed above, including the additional gross profit generated from PGI Spain, contributed $12.8 million of additional profit compared to the prior year period. Raw material costs were $35.1 million higher in second quarter of 2010 compared to 2009. This higher cost was partially offset by increases in sales price/mix of $34.2 million, primarily resulting from selling price increases related to the pass-through of higher raw material costs associated with both index-based selling agreements and market based pricing trends. The increase in average selling price also reflects the results of selling effectiveness initiatives and changes in product mix. The net affect of the above factors and initiatives resulted in a decrease in our operating income of $0.9 million in 2010 compared to 2009. Manufacturing costs approximated the second quarter of 2009 costs due to the previously mentioned improvements in productivity and overall costs that effectively offset inflationary increases in labor rates and higher energy costs along with additional costs incurred as we ramp up relocated capacity at our Benson, North Carolina facility. As the U.S. dollar strengthened against most currencies, specifically in our European regions, During the quarter, the net changes in foreign currency exchange rates on a year-over-year basis negatively impacted operating income by $3.9 million.

        Selling, general and administrative (SG&A) expenses increased $9.7 million, from $25.5 million in 2009 to $35.2 million in 2010, due primarily to the incremental SG&A associated with PGI Spain. Additionally, other volume-related expenses, such as distribution and selling and marketing costs increased along with higher compensation costs associated with our annual incentive plan, and other spending associated with investments in capabilities to enable us to better address future market needs and execute on our strategic plan. During the second quarter we also recognized approximately $1.7 million of expense to establish a liability associated with sales-related taxes in certain of our foreign jurisdictions. Similar taxes amounted to $0.1 million in the second quarter of 2009. We do not expect to recognize the same magnitude of expense on an on-going basis as was recorded in the second quarter. Selling, general and administrative costs as a percent of net sales decreased from 12.4% in the second quarter of fiscal 2009 to 12.2% for the same period of fiscal 2010. This percentage is also impacted by higher selling prices resulting from the pass-through of raw material cost changes.

        Special charges for the three months ended July 3, 2010 of approximately $5.1 million included non-cash impairment charges of $0.7 million related to the write-down of certain property in Neunkirchen, Germany to their estimated fair value less costs to sell, restructuring and plant realignment costs of (i) $2.5 million of severance and other shutdown costs related to facilities in the United States

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associated with the consolidation of our carded business in Benson, North Carolina, (ii) $0.3 million of severance and other shutdown costs related to facilities in Europe and Latin America, and $1.6 million of other costs, primarily related to professional fees associated with evaluating various strategic alternatives to unlock shareholder value.

        Additionally, we incurred $0.2 million of acquisition and integration expenses associated with the Spain Business Acquisition during the 2010.

Interest and Other Expense

        Net interest expense increased from $6.7 million during the three months ended July 4, 2009 to $8.0 million during the three months ended July 3, 2010. The increase in net interest expense was largely due to higher interest rates on our term loan borrowings and the impact of the interest rate swap, including the portion of the swap that was frozen in Accumulated other comprehensive income related to the amendment of our Credit Facility (defined below) in September 2009, partially offset by the impact of reduced term loan borrowings.

        During fiscal 2007, we entered into a cash flow hedge agreement, effective May 8, 2007 and which expired on June 29, 2009, which effectively converted $240.0 million of notional principal amount of debt from a variable LIBOR rate to a fixed LIBOR rate of 5.085%. Additionally, in February 2009, we entered into a new cash flow hedge agreement, which became effective June 30, 2009 and matures on June 30, 2011 (the "Interest Rate Swap") which, originally, effectively converted $240.0 million of notional principal amount of debt from a variable LIBOR rate to a fixed LIBOR rate of 1.96%.

        In connection with the amendment of our Credit Facility in September 2009, substantially all of the borrowings under the Credit Facility are subject to a LIBOR floor of 2.5%. As a result of the new LIBOR floor, the effectiveness of the Interest Rate Swap has been modified. See Item 3 "Quantitative and Qualitative Disclosures About Market Risk" included below and Note 13 "Derivatives and Other Financial Instruments and Hedging Activities" included in Item 1 of Part I of this Quarterly Report on Form 10-Q. As the LIBOR hedge is lower than the LIBOR floor of 2.5%, while the Interest Rate Swap is in place, if LIBOR rates are lower than 1.96%, we will pay additional interest costs equal to the difference in the actual LIBOR rate and the 1.96% hedge rate. If actual LIBOR rates are higher than the 1.96% hedge rate, but below the LIBOR floor of 2.5%, we will receive a credit for the difference between the actual rate and the hedge rate. If actual LIBOR rates are higher than the LIBOR floor of 2.5%, we will pay interest at the 1.96% LIBOR rate plus the applicable margin.

        Foreign currency and other loss (gain), net improved by $1.7 million, from a $2.1 million loss during the second quarter of fiscal 2009 to a $0.4 million loss in the second quarter of fiscal 2010, primarily due to the effect of movement in foreign currency rates. On February 8, 2010, we entered into a series of foreign currency exchange forward contracts (put options and call options) that provided for a floor and ceiling price on payments related to our new line under construction in Suzhou, China, with the objective to hedge changes in the fair value of the firm commitment to purchase equipment. During the period ended July 3, 2010, we recognized a gain on the change in the fair value of the hedge instrument compared to the change in the value of the firm commitment as of July 30, 2010 for the ineffective portion of the hedge of $0.4 million. See Item 3 "Quantitative and Qualitative Disclosures About Market Risk", Note 13 "Derivatives and Other Financial Instruments and Hedging Activities", and Note 14 "Fair Value of Financial Instruments and Non-Financial Assets and Liabilities" included in Item 1 of Part I of this Quarterly Report on Form 10-Q.

Income Tax Expense

        During the three months ended July 3, 2010, we recognized income tax expense of $2.9 million on consolidated income before income taxes and discontinued operations of $4.7 million. During the three months ended July 4, 2009, we recognized income tax expense of $1.9 million on consolidated income

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before income taxes and discontinued operations of $5.1 million. Our income tax expense in any period is different than such expense determined at the U.S. federal statutory rate, primarily due to losses in certain jurisdictions for which no income tax benefits are anticipated, foreign withholding taxes for which tax credits are not anticipated, the institution of a flat tax regime in Mexico, U.S. state income taxes, changes in the amounts recorded for tax uncertainties and foreign taxes calculated at statutory rates different than the U.S. federal statutory rate.

Discontinued Operations

        Income from the operations of discontinued business is comprised of the net operating results of Fabpro for the second quarter of fiscal 2009. During the second quarter of fiscal 2009, we concluded that Fabpro constituted an asset held for sale and, accordingly, we have presented Fabpro as a discontinued operation. We completed the sale of Fabpro during the third quarter of fiscal 2009. Income from discontinued operations was $2.0 million during the three months ended July 4, 2009.

Net (Income) Loss Attributable to Noncontrolling interests

        Noncontrolling interests represents the minority partners' interest in the income or loss of consolidated subsidiaries which are not wholly owned by us. During the second quarter of fiscal 2009, these interests included a 40% minority interest in Dominion Nonwovens Sudamerica S.A. (our Argentine subsidiary) and a 20% minority interest in Nanhai Nanxin Non-Woven Co. Ltd. (one of our subsidiaries in China). We completed a buyout of our minority interest partner in Argentina in the fourth quarter of fiscal 2009.

Net Income Attributable to Polymer Group, Inc.

        As a result of the above, we recognized net income attributable to Polymer Group, Inc. of $1.6 million, or $0.07 per share, for the three months ended July 3, 2010 compared to net income attributable to Polymer Group, Inc. of $6.2 million, or $0.31 per share, for the three months ended July 4, 2009.

Adjusted EBITDA

        Adjusted EBITDA from continuing operations, a non-GAAP financial measure defined and reconciled below, for the second quarter of fiscal 2010 increased 6.1% to $32.4 million compared to $30.6 million in the second quarter of 2009. Adjusted EBITDA in the second quarter benefitted from the profit contribution from PGI Spain and from higher sales volumes generated by new capacity expansions, offset by the negative affects of higher raw material costs and higher SG&A. Depreciation and amortization expense included in Adjusted EBITDA of $11.2 million, decreased by $0.8 million from 2009 to 2010.

Comparison of Six Months Ended July 3, 2010 and July 4, 2009

        Our reportable segments consist of our two operating divisions, Nonwovens and Oriented Polymers. For additional information regarding segment data, see Note 16 "Segment Information" to the unaudited interim consolidated financial statements included in Item 1 of Part I to this Quarterly Report on Form 10-Q. The segment information presented in the table below excludes the results of Fabpro, as the operating results of Fabpro are presented as a discontinued operation. The following table sets forth

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components of our net sales and operating income (loss) by operating division for the six months ended July 3, 2010, the six months ended July 4, 2009 and the corresponding change (in millions):

 
  Six months ended    
 
 
  July 3,
2010
  July 4,
2009
As Restated
  Change  

Net sales

                   
 

Nonwovens

  $ 517.3   $ 378.9   $ 138.4  
 

Oriented Polymers

    51.8     37.2     14.6  
               

  $ 569.1   $ 416.1   $ 153.0  
               

Operating income (loss)

                   
 

Nonwovens

  $ 50.1   $ 53.6   $ (3.5 )
 

Oriented Polymers

    1.5     1.6     (0.1 )
 

Unallocated Corporate, net of eliminations

    (17.5 )   (12.6 )   (4.9 )
               

    34.1     42.6     (8.5 )
 

Acquisition and integration expenses

    (1.7 )         (1.7 )
 

Special charges, net

    (9.3 )   (8.8 )   (0.5 )
               

  $ 23.1   $ 33.8   $ (10.7 )
               

        The amounts for acquisition and integration expenses and special charges, net have not been allocated to our reportable business divisions because our management does not evaluate such charges on a division-by-division basis. Division operating performance is measured and evaluated before such items.

Net sales

        Net sales were $569.1 million for the six months ended July 3, 2010, an increase of $153.0 million, or 36.8%, from the comparable period of fiscal 2009 net sales of $416.1 million. Net sales for fiscal 2010 improved in the Nonwovens segment from comparable 2009 results by 36.5%, and net sales in fiscal 2010 in the Oriented Polymers segment increased 39.2% from 2009 results. A reconciliation of the change in net sales between the six months ended July 3, 2010 and the six months ended July 4, 2009 is presented in the following table (in millions):

 
  Nonwovens   Oriented
Polymers
  Total  

Net sales—six months ended July 4, 2009

  $ 378.9   $ 37.2   $ 416.1  

Change in sales due to:

                   

Volume

    88.6     13.0     101.6  

Price/mix

    49.5     (0.2 )   49.3  

Foreign currency translation

    0.3     1.8     2.1  
               

Net sales—six months ended July 3, 2010

  $ 517.3   $ 51.8   $ 569.1  
               

        The net volume increase of $88.6 million in Nonwovens sales is primarily attributable to sales generated from the new acquisition in Europe, PGI Spain, that occurred in December 2009. Volumes were higher in all regions except the U.S. for the first six months of fiscal year 2010. The predominant amount of the volume decline in the U.S. was related to product volume sold from carded technologies and the associated closure of our North Little Rock facility. We achieved increases in Latin America and Asia volumes in excess of 15% compared to the first half of 2009. In our Latin America region, volume increased due to increased sales volumes achieved in our Mexico operations, made possible by the installation of a new line during the second half of 2009, continued sales growth in our Argentina facility

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and an improvement in certain hygiene markets in South America where economic and political environments in certain countries negatively impacted sales demand in 2009, primarily affecting our operations in Colombia. The Asia volume increases reflect continued growth in the medical and hygiene markets. In Europe, we have experienced a stabilization of underlying demand and achieved an increase in volumes in our consumer disposables and we have experienced a rebound in wipes demand. Oriented Polymers' sales volumes for building, packaging, agriculture and apparel products improved as demand in the industrial markets we participate in showed some recovery from the depressed levels of 2009.

        Foreign currency translation rates resulted in higher sales for the first six months of 2010 compared to the prior year period of $2.1 million. Further discussion of foreign currency exchange rate risk is contained in Item 3 "Quantitative and Qualitative Disclosures About Market Risk" included below.

Gross margin as a percent of sales

        Gross margin as a percent of sales for the six months ended July 3, 2010 declined to 17.8% from 22.1% in the first six months of 2009, primarily driven by higher sales levels and higher raw material costs. In the first half of 2009, our gross margin as a percent of sales benefitted from the significant drop in raw material costs experienced in the fourth quarter 2008 and into the first quarter of 2009 without a corresponding drop in sales prices due to the sales price lag mentioned above. As raw material prices increased in second half of 2009 and into the first half of 2010, we did not experience the same benefit for the three month period ending July 3, 2010. Manufacturing costs were higher for the six month period predominantly due to higher costs in the U.S. associated with our plant consolidation activities, offset by improvements in our other regions. Additionally, while there is no depreciation expense in cost of goods sold associated with PGI Spain, the operating lease payments are reflected in the cost of goods sold, which impacts the gross profit margin as well. The raw material component of the cost of goods sold as a percentage of net sales increased from 45.2% in the second quarter 2009 to 53.3% for the second quarter of 2010, whereas our labor and overhead components of the cost of goods sold decreased as a percentage of net sales from the three month period of fiscal 2009 to the comparable period of 2010. As a percentage of sales, labor decreased from 8.2% to 7.0% and overhead decreased from 24.5% to 21.9%. All of the above percentages were also impacted by increases in selling prices resulting from the pass-through of higher raw material costs.

Operating income

        A reconciliation of the change in operating income between the six months ended July 4, 2009 and the six months ended July 3, 2010 is presented in the following table (in millions):

Operating income—six months ended July 4, 2009 (As Restated)

  $ 33.8  

Change in operating income due to:

       
 

Volume

    26.8  
 

Price/mix

    47.9  
 

Higher raw material costs

    (59.3 )
 

Higher manufacturing costs

    (4.4 )
 

Foreign currency

    (4.9 )
 

Lower depreciation and amortization expense

    0.9  
 

Higher acquisition and integration expenses

    (1.7 )
 

Higher special charges, net

    (0.6 )
 

Increased share-based compensation costs

    (0.9 )
 

All other, primarily higher SG&A spending

    (14.5 )
       

Operating income—six months ended July 3, 2010

  $ 23.1  
       

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        Consolidated operating income was $23.1 million in the six months ended July 3, 2010 as compared to $33.8 million in the comparative period in 2009. Raw material costs were up $59.3 million on a year-to-date basis compared to the same period in 2009. This higher cost was partially offset by increases in sales price/mix of $47.9 million, primarily resulting from selling price increases related to the pass-through of higher raw material costs associated with both index-based selling agreements and market based pricing trends. The increase in average selling price also reflects the results of selling effectiveness initiatives and changes in product mix. The net affect of the above factors and initiatives resulted in a decrease in our operating income of $11.4 million in 2010 compared to 2009. A large portion of the impact is accounted for by the effects of the sales price to raw material lag effect with respect to contracted business in a rising raw material environment, whereby in 2009 we experienced a positive impact as selling prices were higher in the first quarter of 2009 relative to raw material costs in the previous quarter. Manufacturing costs were $4.4 million higher than the prior year, predominantly accounted for by increases in the U.S. region. The U.S. business was unfavorably impacted due to the timing associated with the start-up activities related to our carded consolidation efforts involving the Benson, North Carolina and North Little Rock, Arkansas plants, coupled with higher employee costs across the region. While spending has decreased for the U.S. carded locations as expected, the 2010 production volumes are temporarily negatively impacted by the timing of the machinery and equipment relocation, installation and start-up activities. This resulted in higher inefficiencies and under absorption of variable and fixed costs. Changes in foreign currency rates resulted in translation of earnings and the remeasurement of monetary assets and liabilities outside of the U.S. at a lower rate, resulting in a $4.9 million negative impact to operating income.

        Selling, general and administrative expenses were $68.7 million for the six month period ended July 3, 2010 compared to $52.5 million for the six month period ended July 4, 2009. The largest amount of the increase is represented by costs associated with the PGI Spain acquisition that was completed in December 2009. Additionally, other volume-related expenses, such as distribution and selling and marketing costs increased along with higher compensation costs associated with our annual incentive plan, and other spending. We recognized $2.3 million of incentive compensation costs during the first quarter associated with a decision by the Board of Directors to make a discretionary payment associated with our 2009 performance, a portion of which was paid in December 2009 and the remainder paid in March 2010, coupled with accrued compensation costs associated with our 2010 annual incentive plan. There was $0.7 million of incentive compensation expense recognized in the first quarter of 2009 for expense related to the 2008 short term incentive plan performance period, but no other incentive compensation expense was recognized during the year due to the lack of a formal incentive program during 2009. During the second quarter we also recognized approximately $1.7 million of expense to establish a liability associated with sales-related taxes in certain of our foreign jurisdictions. Similar taxes amounted to $0.2 million in the 6 months of fiscal 2009. We do not expect to recognize the same magnitude of expense on an on-going basis as was recorded in the second quarter. Selling, general and administrative costs as a percent of net sales decreased from 12.6% in the first six months of fiscal 2009 to 12.1% for the same period of fiscal 2010. This percentage is impacted by the increase in selling prices resulting from the pass-through of lower raw material costs.

        For the first six months of 2010, special charges were $9.4 million, consisting of non-cash impairment charges of $0.7 million related to the write-down of certain property in Neunkirchen, Germany to their estimated fair value less costs to sell, restructuring and plant realignment costs of (i) $6.5 million of severance and other shutdown costs related to facilities in the United States associated with the consolidation of our carded business in Benson, North Carolina, (ii) $0.5 million of severance and other shutdown costs related to facilities in Europe and Latin America, and $1.7 million of other costs, primarily related to professional fees associated with evaluating various strategic alternatives to unlock shareholder value. Special charges for the six months ended July 4, 2009 of approximately $8.8 million included non-cash impairment charges of $3.2 million related to the write-down of certain property and equipment In North Little Rock, Arkansas, and Neunkirchen, Germany to their estimated

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fair value less costs to sell, and restructuring and plant realignment costs comprised of: (i) $3.2 million of severance and other shut-down costs in Europe related to the ongoing restructuring efforts of the European operations; (ii) $2.1 million of severance and other shutdown costs related to facilities in the United States; and (iii) $0.2 million of severance costs related to restructuring initiatives in Canada.

Interest and Other Expense

        Net interest expense increased from $14.1 million during the six months ended July 4, 2009 to $16.7 million during the six months ended July 3, 2010. The increase in net interest expense was largely due to higher interest rates on our term loan borrowings and the impact of the Interest Rate Swap which also includes the portion of the swap that was frozen in Accumulated other comprehensive income related to the amendment of our Credit Facility in September 2009, partially offset by the impact of reduced term loan borrowings.

        During fiscal 2007, we entered into a cash flow hedge agreement, effective May 8, 2007 and which expired on June 29, 2009, which effectively converted $240.0 million of notional principal amount of debt from a variable LIBOR rate to a fixed LIBOR rate of 5.085%. Additionally, in February 2009, we entered into a new cash flow hedge agreement, which became effective June 30, 2009 and matures on June 30, 2011 which, originally, effectively converted $240.0 million of notional principal amount of debt from a variable LIBOR rate to a fixed LIBOR rate of 1.96%.

        In connection with the amendment of our Credit Facility in September 2009, substantially all of the borrowings under the Credit Facility are subject to a LIBOR floor of 2.5%. As a result of the new LIBOR floor, the effectiveness of the Interest Rate Swap has been modified. See Item 3 "Quantitative and Qualitative Disclosures About Market Risk" included below and Note 13 "Derivatives and Other Financial Instruments and Hedging Activities" included in Item 1 of Part I of this Quarterly Report on Form 10-Q. As the LIBOR hedge is lower than the LIBOR floor of 2.5%, while the Interest Rate Swap is in place, if LIBOR rates are lower than 1.96%, we will pay additional interest costs equal to the difference in the actual LIBOR rate and the 1.96% hedge rate. If actual LIBOR rates are higher than the 1.96% hedge rate, but below the LIBOR floor of 2.5%, we will receive a credit for the difference between the actual rate and the hedge rate. If actual LIBOR rates are higher than the LIBOR floor of 2.5%, we will pay interest at the 1.96% LIBOR rate plus the applicable margin.

        During the first quarter of fiscal 2009, we reacquired $15.0 million of debt, via cash payment, and recognized a gain on such reacquisition of $2.4 million, net of the write-off of deferred financing fees of $0.2 million.

        Foreign currency and other loss, net increased by $2.8 million, from $0.8 million in the first six months of fiscal 2008 to $5.0 million in the first six months of fiscal 2009, primarily due to movement in foreign currency rates. On February 8, 2010, we entered into a series of foreign currency exchange forward contracts (put options and call options) that provided for a floor and ceiling price on payments related to our new line under construction in Suzhou, China, with the objective to hedge changes in the fair value of the firm commitment to purchase equipment. During the period ended July 3, 2010, we recognized a gain on the change in the fair value of the hedge instrument compared to the change in the value of the firm commitment as of July 30, 2010 for the ineffective portion of the hedge of $0.4 million. See Item 3 "Quantitative and Qualitative Disclosures About Market Risk", Note 13 "Derivatives and Other Financial Instruments and Hedging Activities", and Note 14 "Fair Value of Financial Instruments and Non-Financial Assets and Liabilities" included in Item 1 of Part I of this Quarterly Report on Form 10-Q.

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Income Tax Expense

        During the six months ended July 3, 2010, we recognized income tax expense of $5.9 million on consolidated income before income taxes of $5.5 million. During the six months ended July 4, 2009, we recognized income tax expense of $9.5 million on consolidated income before income taxes of $18.6 million. Our income tax expense in any period is different than such expense determined at the U.S. federal statutory rate primarily due to losses in certain jurisdictions for which no income tax benefits are anticipated, foreign withholding taxes for which tax credits are not anticipated, U.S. state income taxes, changes in the amounts recorded for tax uncertainties and foreign taxes calculated at statutory rates different than the U.S. federal statutory rate.

Income from Discontinued Operations

        Discontinued operations are comprised of the net operating results of Fabpro for the six-month periods of fiscal 2009. During the second quarter of fiscal 2009, we concluded that Fabpro constituted an asset held for sale and, accordingly, we have presented Fabpro as a discontinued operation. Income from discontinued operations was $3.9 million during the six months ended July 4, 2009.

Net Loss Attributable to Noncontrolling interests

        Noncontrolling interests represents the minority partners' interest in the income or loss of consolidated subsidiaries which are not wholly owned by us. During the second quarter of fiscal 2009, these interests included a 40% minority interest in Dominion Nonwovens Sudamerica S.A. (our Argentine subsidiary) and a 20% minority interest in Nanhai Nanxin Non-Woven Co. Ltd. (one of our subsidiaries in China). We completed a buyout of our minority interest partner in Argentina in the fourth quarter of fiscal 2009.

Net Income Attributable to Polymer Group, Inc.

        As a result of the above, we recognized a net loss attributable to Polymer Group, Inc. of $(0.7) million, or $(0.03) per share, for the six months ended July 3, 2010 compared to net income of $15.8 million, or $0.80 per share, for the six months ended July 4, 2009.

Adjusted EBITDA

        Adjusted EBITDA from continuing operations, a non-GAAP financial measure defined and reconciled below, for the first six months of fiscal 2010 was $60.3 million compared to $68.4 million in the first half of 2009. As previously noted, Adjusted EBITDA in the first quarter of 2009 benefitted from the significant drop in raw material costs. The lack of such benefit in 2010, combined with an increasing raw material environment, higher costs associated with the transition of business in the U.S. and higher SG&A costs, more than offset contributions from higher sales volumes and the profit contribution from PGI Spain. Depreciation and amortization expense included in Adjusted EBITDA was $23.0 million for the first six months of 2010 and $23.8 million for the first six months of 2009.

NON-GAAP FINANCIAL MEASURE

        Adjusted EBITDA (as defined below) is used in this document as a "non-GAAP financial measure," which is a measure of our financial performance that is different from measures calculated and presented in accordance with generally accepted accounting principles, or GAAP, within the meaning of applicable Securities and Exchange Commission rules. A non-GAAP financial measure, such as EBITDA or Adjusted EBITDA, should not be viewed as an alternative to GAAP measures of performance such as (1) net income determined in accordance with GAAP or (2) operating cash flows determined in accordance with GAAP. The calculation of Adjusted EBITDA may not be comparable to the calculation of similarly titled measures reported by other companies.

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        As defined in our credit agreement, Adjusted EBITDA equals net income (loss) before income and franchise tax expense (benefit), interest expense, net, depreciation and amortization, noncontrolling interests net of cash distributions, write-off of loan acquisition costs, non-cash compensation, foreign currency gain and losses, net, and special charges, net of unusual or non-recurring gains. We present Adjusted EBITDA, as defined in our credit agreement, as the measurement used as a basis for determining compliance with several covenants thereunder. It is also generally consistent with the metric used by management as a performance measurement for certain performance-based incentive compensation plans. In addition, we consider Adjusted EBITDA an important supplemental measure of our performance and believe it is frequently used by securities analysts, investors and other interested parties in the evaluation of companies in our industry.

        Included below is a reconciliation of net income attributable to Polymer Group, Inc. to Adjusted EBITDA, which illustrates the differences in these measures of operating performance.

        The following table reconciles Adjusted EBITDA to net income attributable to Polymer Group Inc. for the periods presented (in thousands):

 
  Three
Months
Ended
July 3, 2010
  Three
Months
Ended
July 4, 2009
As Restated
  Six
Months
Ended
July 3, 2010
  Six
Months
Ended
July 4, 2009
As Restated
 

Net income attributable to Polymer Group, Inc. 

  $ 1,558   $ 6,235   $ (687 )   15,796  

Income & franchise tax expense

    3,074     2,022     6,233     9,828  

Interest expense, net

    8,044     6,659     16,699     14,098  

Depreciation and amortization included in operating income

    11,258     12,034     22,964     23,841  

Noncontrolling interests, net of tax & cash disbursements

    205     (1,099 )   293     (2,762 )

Non-cash compensation

    1,467     1,382     2,722     1,805  

Foreign currency (gain) loss, net

    412     (467 )   (99 )   925  

Unrealized gains with respect to hedging agreements

    (406 )       (406 )    

Special charges, net

    5,115     5,882     9,357     8,773  

Less income from discontinued operations

        (1,966 )       (3,907 )

Unusual or non-recurring charges (gains), net

    1,711     (106 )   3,203     34  
                   

Adjusted EBITDA

  $ 32,438   $ 30,576   $ 60,279     68,431  
                   

        Fiscal 2009 data included in the calculation for the three months ended July 4, 2009 has been adjusted for the effect of discontinued operations.

LIQUIDITY AND CAPITAL RESOURCES

        Our principal sources of liquidity for operations and expansion are currently funds generated from operations and borrowing availability under the credit facility ("Credit Facility"), consisting of a Term Loan of $410.0 million and a Revolving Credit Facility of $45.0 million at the original borrowing date. As a result of an amendment to the Credit Facility on September 17, 2009 (the "Amendment"), the maturity date of approximately $295.7 million of our then-outstanding $317.6 million Term Loan was extended to November 22, 2014, with the remainder due November 22, 2012 (after mandatory annual payments of $4.1 million and additional payments, if any, under the excess cash flow provision of the Credit Facility or optional payments). In addition, the maturity date of approximately $40.0 million of our available $45.0 million Revolving Credit Facility was extended to November 22, 2013, under certain circumstances summarized below, with the remaining $5.0 million of availability maturing on November 22, 2010. The

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Credit Facility, as amended, contains covenants and events of default customary for financings of this type, including leverage and interest expense coverage covenants. At July 3, 2010, we were in compliance with such financial covenants. See "Liquidity Summary" below for further discussion of financial covenants. Additionally, as of July 3, 2010, we had no outstanding borrowings under the Revolving Credit Facility and capacity under the Revolving Credit Facility had been reserved for outstanding letters of credit in the amount of $16.3 million. As of July 3, 2010, we also had other outstanding letters of credit in the amount of $4.4 million primarily for certain raw material vendors. None of these letters of credit had been drawn on at July 3, 2010.

 
  July 3,
2010
  January 2,
2010
As Restated
 
 
  (In Millions)
 

Balance sheet data:

             
 

Cash and cash equivalents

  $ 62.7   $ 59.5  
 

Working capital

    130.3     159.7  
 

Total assets

    707.9     701.5  
 

Total debt

    338.5     342.6  
 

Total shareholders' equity

    112.8     124.2  

        We had working capital of approximately $130.3 million at July 3, 2010 compared with $159.7 million at January 2, 2010. As compared to year-end, our working capital balances decreased primarily as a result of the reclassification of $24.5 million of potential PHC tax exposure from long term to current liabilities. Higher sales volumes and sales prices resulted in an increase in accounts receivable balances, however this increase was offset by disciplined inventory management, higher levels of accounts payable and accrued liabilities and the impact of foreign currency changes. The raw material impact on inventory balances was essentially fully offset by lower unit volumes on hand at the end of the second quarter compared to the beginning of the year.

        Accounts receivable at July 3, 2010 was $144.2 million as compared to $128.0 million on January 2, 2010, an increase of $16.2 million. The net increase in accounts receivable during the first half of fiscal 2010 is primarily attributable to (a) higher sales volumes, (b) higher overall selling prices and (c) decreased reserves for potentially uncollectible accounts, partially offset by the effects of currency movements. Even though overall accounts receivable increased, past-due balances were lower at the end of the second quarter, which resulted in a lower reserve requirement. Accounts receivable represented approximately 45 days of sales outstanding at July 3, 2010 as compared to 48 days of sales outstanding at January 2, 2010. We believe that our reserves adequately protect us against foreseeable increased collection risk.

        We have factoring agreements to sell, without recourse or discount, certain trade receivables to unrelated third-party financial institutions. Under the current terms of these factoring agreements, there are maximum amounts of outstanding advances at any one time.

        Inventories at July 3, 2010 were $109.1 million, an increase of $2.3 million from inventories at January 2, 2010 of $106.8 million. The net increase in inventory during the first six months of fiscal 2010 is due to (a) higher unit costs related to inventory at the end of the second quarter of fiscal 2010 compared to year-end 2009 and (b) a reduction in inventory reserves, partially offset by the effects of currency movements. The overall increase was comprised of component increases in raw materials and work-in-process of $5.0 million and $2.0 million, respectively, largely offset by a net decrease in finished goods of $4.7 million. We had inventory representing approximately 42 days of cost of sales on hand at July 3, 2010 compared to 49 days of cost of sales on hand at January 2, 2010.

        Accounts payable and accrued liabilities at July 3, 2010 were $197.7 million as compared to $148.0 million at January 2, 2010, an increase of $49.7 million. The increase in accounts payable and

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accrued liabilities during the first six months of fiscal 2010 was primarily related to the reclassification of $24.5 million of potential PHC tax exposure to a current liability due to our expectation that we would proactively seek a ruling from the IRS in fiscal year 2010, and higher accounts payable resulting from improved terms with certain vendors achieved during the year associated with our global procurement initiatives and higher raw material unit costs at the end of the first quarter of 2010 compared to the end of fiscal year 2009, partially offset by the effects of currency movements. Accounts payable and accrued liabilities balances can also be impacted by accruals with respect to incentive compensation plans and the timing of payroll cycles, acceptance of vendor discounts, changes in terms regarding purchases of raw materials from certain vendors, as well as the movement of certain purchases of raw materials, for which there is limited availability, to vendors that require us to pay cash prior to delivery and changes in restructuring accruals. Accounts payable and accrued liabilities represented approximately 76 days of cost of sales outstanding at July 3, 2010 compared to 68 days of cost of sales outstanding at January 2, 2010.

 
  Six Months Ended  
 
  July 3,
2010
  July, 2009
As Restated
 
 
  (In Millions)
 

Cash flow data:

             
 

Net cash provided by operating activities

  $ 17.4   $ 60.7  
 

Net cash used in investing activities

    (9.2 )   (14.0 )
 

Net cash used in financing activities

    (4.0 )   (3.4 )

Operating Activities

        Net cash provided by operating activities was $17.4 million during the first six months of fiscal 2010 compared to $60.7 million during the first six months of fiscal 2009. During the first six months of 2009, working capital levels were significantly impacted as volumes were declining and sales prices were lower to reflect lower raw material costs. As such, lower working capital provided a source of cash of approximately $15.0 million during the first six months of fiscal 2009. During the first half of 2010, working capital levels, net of non-cash changes and balance sheet reclassifications, increased, requiring a $2.3 million use of cash. This difference contributed significantly in the decrease in operating cash flows compared to the prior year period. Additionally, our net income was lower, which reflected an increase in gross profit offset by higher expenses. As sales volumes change and as raw material costs change, inventory and accounts receivable balances are expected to rise and fall, accordingly, resulting in changes in our levels of working capital balances and cash flow going forward. Based on current trends of increased volume and higher raw material costs, the level of net cash provided by operating activities in fiscal year 2009 is not expected to be sustained in 2010.

        Our restructuring and plant realignment activities in the first six months of fiscal years 2010 and 2009 are discussed in Note 3 "Special Charges, Net" to the unaudited interim consolidated financial statements included in Item 1 of Part I to this Quarterly Report on Form 10-Q.

        The restructuring and plant realignment costs of $7.0 million in the first six months of fiscal 2010 are comprised of: (i) $0.3 million of employee severance and retention costs and $6.1 million of equipment relocation and other shutdown costs related to the North Little Rock, Arkansas facility; (ii) $0.2 million related to employee severance related to the anticipated sale of a line in Argentina; and (iii) $0.4 million of other shutdown costs related to previously announced facility closings, primarily in Europe and U.S.

        The restructuring and plant realignment costs in the first six months of fiscal 2009 are comprised of: (i) $3.2 million of severance and other shut-down costs in Europe; (ii) $2.1 million of severance and other shutdown costs related to facilities in the United States; and (iii) $0.2 million of severance costs related to restructuring initiatives in Canada.

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        Our strategy with respect to the consolidation efforts in the U.S. and Europe is focused on the elimination of cash fixed costs at the closed plant sites, and the transfer of business and equipment to sites in regions with lower variable costs and which are closer to our customers, as necessary and practical, to retain the existing business with the potential to expand future sales volumes.

        We review our business on an ongoing basis relative to current and expected market conditions, attempting to match our production capacity and cost structure to the demands of the markets in which we participate, and strive to continuously streamline our manufacturing operations consistent with world-class standards. Accordingly, in the future we may decide to undertake certain restructuring efforts to improve our competitive position, especially in the more mature markets of the U.S., Europe and Canada. In such mature markets, the prices for certain roll goods continue to fluctuate based on supply and demand dynamics relative to the assets employed in that geographic region. We actively and continuously pursue initiatives to prolong the useful life of our long-lived assets through product and process innovation. In some instances we may decide, as was the case with our current plans to consolidate operations in the U.S., as further described in Note 3 "Special Charges, Net" to our consolidated financial statements included in Item 1 of Part I to this Quarterly Report on Form 10-Q, that our fixed cost structure will be enhanced through consolidation. To the extent further decisions are made to improve our long-term performance, such actions could result in cash restructuring charges and asset impairment charges associated with the consolidation, and such charges could be material.

        We expect to make future cash payments, primarily through the fourth quarter of fiscal 2010, of approximately $4.0 million to $4.5 million associated with approved restructuring initiatives, of which $2.8 million has been accrued as of July 3, 2010. In addition, we currently anticipate future proceeds from the sale of closed facilities and idled equipment in the range of $6.0 million to $7.0 million, which is expected to be received in fiscal 2010 or 2011.

        Future cash payments are significantly influenced by, among other things, actual operating results in each of our tax jurisdictions, changes in tax law, changes in the company's tax structure and any resolutions of uncertain tax positions, such as our on-going resolution efforts associated with our potential PHC exposure.

Investing and Financing Activities

        Net cash used for investing activities amounted to $9.2 million and $14.0 million in the first six months of fiscal 2010 and fiscal 2009, respectively. Capital expenditures during the first six months of fiscal 2010 totaled $9.6 million, a decrease of $5.4 million from capital spending of $15.0 million in the same period in 2009. Capital expenditures have been lower in the first half of 2010 primarily due to the timing of payments associated with our expansion projects announced for Suzhou, China and Waynesboro, Virginia. As a result, we expect capital expenditures to increase significantly in the second half of fiscal year 2010. We estimate our annual minimum sustaining capital expenditures to be $5.0 million to $10.0 million. As business conditions and working capital requirements change, we actively manage our capital expenditures, enabling us to appropriately balance cash flows from operations with capital expenditures.

        As discussed in further detail in Note 13, "Derivative and Other Financial Instruments and Hedging Activities" to our consolidated financial statements included in Item 1 of Part I to this Quarterly Report on Form 10-Q, on February 8, 2010 we entered into a series of foreign exchange forward contracts (put options and call options) with a third-party financial institution (the "2010 FX Forward Contracts") that provide for a floor and ceiling price (collar) for changes in foreign currency rates between the Euro and U.S. dollar through the date of acceptance of the equipment associated with the new spunmelt equipment to be installed in Suzhou, China. The objective of the combination 2010 FX Forward Contracts is to hedge the changes in fair value of the firm commitment related to the aforementioned equipment purchase agreement. The call/put options set a maximum and minimum strike price of 1.41

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and 1.35 (Euro to U.S. dollar), respectively. The cash settlements under the 2010 FX Forward Contracts coincide with the payment dates on the equipment purchase agreement. The notional amount of the contracts with the third party, which expire on various dates in fiscal year 2010 through early fiscal 2012, was €25.6 million, which will result in U.S. dollar equivalent range of $34.5 million to $36.1 million.

        Net cash used in financing activities amounted to $4.0 million in the first six months of fiscal 2010, compared to $3.4 million of net cash used in financing activities in the first six months of fiscal 2009. In the first six months of 2010, we repaid, on a net basis, $3.8 million of debt whereas we borrowed, on a net basis, $9.0 million of debt during the same period in fiscal 2009. Additionally, in the first six months of 2009, we used $12.4 million to repurchase $15.0 million of our first-lien term loan.

Dividends

        Our Board of Directors has not declared a dividend on our common stock since emergence from bankruptcy in March 2003.

        The Credit Facility limits restricted payments, including cash dividends, to $5.0 million in the aggregate since the effective date of the Credit Facility. We do not currently have any plans to pay dividends on our common stock.

Liquidity Summary

        As discussed more fully in Note 9 "Debt" to our consolidated financial statements included in Item 1 of Part I to this Quarterly Report on Form 10-Q we have a Credit Facility, which we entered into on November 22, 2005 and which we amended on December 8, 2006 and September 17, 2009, which consists of a $410.0 million (at the original loan date) Term Loan and a $45.0 million Revolving Credit Facility. As of July 3, 2010, the Term Loan consisted of $16.0 million of net outstanding amounts maturing on November 22, 2012 ("Tranche 1 Term Loan") and $272.4 million maturing on November 22, 2014 ("Tranche 2 Term Loan"). As of July 3, 2010, the Revolving Credit Facility consisted of $5.0 million of availability maturing on November 22, 2010 ("Tranche 1 Revolver") and $40.0 million of availability maturing on November 22, 2013 ("Tranche 2 Revolver"), under which there are no amounts outstanding as of July 3, 2010. Effective May 4, 2010, the Company further converted $10.0 million of its Tranche 1 Revolver commitments to Tranche 2 Revolver commitments (the "2010 Revolver Conversion"). Interest will continue to be payable on a quarterly basis. Principal payments of $1.0 million will continue to be due quarterly.

        All borrowings under the Credit Facility are U.S. dollar denominated and are guaranteed, on a joint and several basis, by each and all of our direct and indirect domestic subsidiaries. The Credit Facility and the related guarantees are secured by (i) a lien on substantially all of the assets of our domestic subsidiaries and certain of our non-domestic subsidiaries, (ii) a pledge of all or a portion of the stock of our domestic subsidiaries and of certain of our non-domestic subsidiaries, and (iii) a pledge of certain secured intercompany notes. Commitment fees under the Credit Facility are equal to 0.50% of the daily unused amount of the Tranche 1 Revolver and 0.75% of the daily unused amount of the Tranche 2 Revolver. The Credit Facility limits restricted payments to $5.0 million, including cash dividends, in the aggregate since the effective date of the Credit Facility. The Credit Facility contains covenants and events of default customary for financings of this type, including leverage and interest expense coverage covenants, as well as default provisions related to certain types of defaults by us or our subsidiaries in the performance of our obligations regarding borrowings in excess of $10.0 million. The Credit Facility, as amended, requires that we maintain a leverage ratio of not more than 3.50:1.00 through the remaining term of the Credit Facility. The interest expense coverage ratio requirement for the remaining term of the Credit Facility requires that it not be less than 3.00:1.00. We were in compliance with the financial covenants under the Credit Facility at July 3, 2010. These ratios are calculated on a trailing four-quarter basis. As a result, any decline in our future operating results, or any increases in indebtedness not

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supported by sufficient increases in Consolidated EBITDA (as defined in the Credit Facility) will negatively impact our coverage ratios. Although we expect to remain in compliance with these covenant requirements, our failure to comply with these financial covenants, without waiver or amendment from our lenders, could have a material adverse effect on our liquidity and operations, including limiting our ability to borrow under the Credit Facility.

        The Term Loan requires mandatory payments of approximately $1.0 million per quarter. Under the Amendment, we have the option to either prorate such principal payments across the two tranches or to apply them to the tranche with the earliest maturity date. In addition, the Credit Facility, as amended, requires us to use a percentage of proceeds from excess cash flows, as defined by the Credit Facility and determined based on year-end results, to reduce our then outstanding balances under the Credit Facility. Excess cash flows required to be applied to the repayment of the Credit Facility are generally calculated as 50% of the net amount of our available cash generated from operations adjusted for the cash effects of interest, taxes, capital expenditures, changes in working capital and certain other items. The amount of excess cash flows for future periods is based on year-end results. There was no excess cash flow requirement with respect to fiscal 2009. We may, at our discretion and based on projected operating cash flows, the current market value of the Term Loan and anticipated cash requirements, elect to make additional repayments of debt under the Credit Facility in excess of the mandatory debt repayments and excess cash flow payments, or may reacquire our debt in conjunction with our debt repurchase program.

        In February 2009, we entered into discussions with the Administrative Agent of our Credit Facility whereby one of our wholly owned subsidiaries would purchase assignments of our Term Loan over the next two years via open market transactions at a discount to the carrying amount in order to effectively buy back up to $70.0 million of the Term Loan as allowed under the provisions of the Credit Facility. Under these agreements, our subsidiary will acquire the rights and obligations of a lender under the Credit Facility and the selling third-party lender will be released from their obligations under the Credit Facility. We will account for such reacquisition of debt as a transfer of financial assets resulting in a sale and derecognize such liability in accordance with the provisions of FASB ASC 860 "Transfers and Servicing." In March 2009, we purchased, through a subsidiary, $15.0 million of Term Loan, via cash payment, and recognized a gain on such reacquisition of $2.4 million, net of the write-off of deferred financing fees of $0.2 million, and included such amount in Gain on Reacquisition of Debt in the Consolidated Statements of Operations included in Item 1 of Part I to this Quarterly Report on Form 10-Q.

        The interest rate applicable to borrowings under the Credit Facility is based on either of the three-month or the one-month LIBOR plus a specified margin. The applicable margin for borrowings under both the Tranche 1 Term Loan and the Tranche 1 Revolver is 225 basis points. The applicable margin for borrowings under the Tranche 2 Term Loan and the Tranche 2 Revolver is 450 basis points (with a LIBOR floor of 2.5%). Further, we may, from time to time, elect to use an Alternate Base Rate for our borrowings under the Revolving Credit Facility and Term Loan based on the bank's base rate plus a margin of 75 to 125 basis points based on our total leverage ratio.

        We maintained a portion of our position in a cash flow hedge agreement originally entered in February 2007. The cash flow hedge agreement effectively converted $240.0 million of notional principal amount of debt from a variable LIBOR rate to a fixed LIBOR rate of 5.085% and terminated on June 29, 2009. Additionally, in February 2009, we entered into the Interest Rate Swap, which was effective June 30, 2009 and matures on June 30, 2011, and effectively converts $240.0 million of notional principal amount of debt from a variable LIBOR rate to a fixed LIBOR rate of 1.96%. We originally designated the Interest Rate Swap as a cash flow hedge of the variability of interest payments with changes in fair value of the 2009 Swap recorded in Accumulated other comprehensive income in the Consolidated Balance Sheets. As of September 17, 2009, in conjunction with the Amendment we concluded that 92% (which represents the approximate percentage of the Tranche 1 Term Loan debt considered extinguished by the

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Amendment) of the Interest Rate Swap was no longer effective; accordingly, 92% of $3.9 million of cumulative liability related to the Interest Rate Swap, and included in Accumulated Other Comprehensive Income , was frozen and will be reclassified as a charge to earnings as future interest payments are made throughout the term of the Interest Rate Swap, as this portion of the notional amount no longer meets the criteria for cash flow hedge accounting. The cash flow hedge agreements are more fully described in Note 13, "Derivatives and Other Financial Instruments and Hedging Activities" and Note 14, "Fair Value of Financial Instruments and Non-Financial Assets and Liabilities" included in Item 1 of Part I to this Quarterly Report on Form 10-Q.

        There were no borrowings under the Revolving Credit Facility as of July 3, 2010 or January 2, 2010. Average daily borrowings under that facility, which were primarily LIBOR Rate-based borrowings, were $2.9 million at an average interest rate of 5.6% for the period from January 3, 2010 to July 3, 2010. Subject to certain terms and conditions, a maximum of $25.0 million of the Credit Facility may be used for letters of credit. As of July 3, 2010, we have effectively reserved capacity under the Revolving Credit Facility in the amount of $16.3 million relating to standby and documentary letters of credit outstanding. These letters of credit are primarily provided to certain administrative service providers. None of these letters of credit had been drawn on at July 3, 2010. As a result of the Amendment and the previously discussed 2010 Revolver Conversion, availability under the Revolving Credit Facility matures in two tranches: $5.0 million (Tranche 1) on November 22, 2010 and $40.0 million (Tranche 2) on November 22, 2013, unless the Tranche 1 Term Loan exceeds $10.0 million on August 24, 2012. If that condition is met, then the Tranche 2 Revolver matures on August 24, 2012.

        As of July 3, 2010, we also had other outstanding letters of credit in the amount of $4.4 million primarily provided to certain raw material vendors. None of these letters of credit had been drawn on at July 3, 2010.

        We have also incurred third-party debt in fiscal years 2008 and 2009 to finance the recent installation of our new spunmelt lines in Argentina and in Mexico. As of July 3, 2010, this debt is comprised of long-term facilities of $41.2 million, for which we began to make principal and interest payments in the third quarter of fiscal 2008 with the loans maturing in 2012 through 2016. Current maturities of this debt amount to approximately $10.0 million. Additionally, our operations in Argentina entered into multiple short-term credit facilities intended to finance working capital requirements. Outstanding indebtedness under these facilities was $8.0 million at July 3, 2010, which facilities mature at various dates through September 2010 and are shown in Short-term borrowings in our Consolidated Balance Sheets included in Item 1 of Part I to this Quarterly Report on Form 10-Q.

        We have entered into factoring agreements to sell, without recourse, certain of our U.S. and non-U.S. company-based receivables to unrelated third party financial institutions. In compliance with the terms of the Credit Facility, we have a factoring agreement related to the sale of U.S. company-based receivables, with a maximum amount of outstanding advances at any one time is $20.0 million, which limitation is subject to change based on the level of eligible receivables, restrictions on concentrations of receivables and the historical performance of the receivables sold. Under the terms of the Credit Facility, we are also permitted to factor non-U.S. company-based receivables up to a maximum of $20.0 million. We have executed factoring agreements for receivables associated with our Mexican and Spanish business operations and have factored receivables under those agreements. The sale of these receivables accelerated the collection of our cash, reduced credit exposure and lowered our net borrowing costs. The gross amount of trade receivables factored, and, therefore, excluded from our accounts receivable, was $40.9 million and $35.1 million as of July 3, 2010 and January 2, 2010, respectively.

        During the second quarter of fiscal 2009, we concluded that it was appropriate to report Fabpro as a discontinued operation. The cash flows from Fabpro are included primarily in the operating activities portion of our Statements of Cash Flows. Investing and financing activities of Fabpro were not significant

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during any of the periods presented in this Annual Report on Form 10-K. We do not expect the absence of the cash flows generated by Fabpro to have a significant impact on our future liquidity and capital resources. On September 1, 2009, we completed the sale of Fabpro and received net proceeds from the sale of approximately $32.9 million. Of such net proceeds, $31.6 million has been applied to reduce amounts outstanding under the Term Loan.

        As discussed in Note 18, "Commitments and Contingencies" to our consolidated financial statements included in Item 1 of Part I to this Quarterly Report on Form 10-Q, we have committed capital projects, including the installment of a new spunmelt line at our facility in Suzhou, China and the construction of the building and ancillary equipment associated with the installment of a new spunmelt line at our facility in Waynesboro, Virginia. We entered into a construction and lease agreement with Gossamer Holdings, LLC associated with the spunmelt line in Waynesboro as described above. Total remaining payments with respect to major capital expansion projects as of July 3, 2010 totaled approximately $78.8 million, which are expected to be substantially expended through the second quarter of fiscal 2012.

        On May 26, 2010, we signed an equity transfer agreement to purchase the remaining 20% stake in Nanhai Nonwoven Company Limited from our minority partner. The signing of the equity transfer agreement provides for the purchase of the remaining 20% minority interest that we do not own for a purchase price of approximately $7.3 million. The agreement is subject to further government approvals and receipt of a new business license. The transaction is expected to be complete late in the third quarter or early in the fourth quarter of fiscal 2010.

        We have experienced negative impacts in certain of our businesses, primarily in the industrial sector, from the deterioration in global economic conditions and are experiencing significant volatility in raw material pricing. However, based on our ability to generate positive cash flows from operations, and the financial flexibility provided by the Credit Facility, as amended, and our current expectations regarding the resolution of the PHC issue, we believe that we currently have the financial resources necessary to meet our operating needs, fund our capital expenditures and make all necessary contributions to our retirement plans in the foreseeable future. We cannot be certain of the outcome of discussions with the IRS regarding our PHC status and whether such outcome will result in an amount of taxes, interest or penalties required to be paid that is materially higher or lower than the liability established on our balance sheet. If such amounts ultimately paid are materially higher and occur at one time, our overall liquidity could be significantly impacted, causing us to draw on our available credit lines or potentially seek new funding sources.

Off-Balance Sheet Arrangements

        We do not have any off-balance sheet arrangements other than previously disclosed.

Effect of Inflation

        Inflation generally affects us by increasing the costs of labor, overhead and equipment. The impact of inflation on our financial position and results of operations was not significant during the first six months of fiscal 2010 and fiscal 2009. However, we continue to be impacted by variability in raw material costs. See "Quantitative and Qualitative Disclosures About Market Risk" included in Item 3 of Part I to this Quarterly Report on Form 10-Q.

New Accounting Standards

        In June 2009, the Financial Accounting Standards Board ("FASB") issued authoritative guidance which established the FASB Accounting Standards Codification™ (the "Codification" or "ASC") as the source of authoritative U.S. generally accepted accounting principles ("U.S. GAAP") recognized by the FASB to be applied to nongovernmental entities. Under the new guidance, as prescribed by ASC 105,

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"Generally Accepted Accounting Principles", accounting literature references in consolidated financial statements issued beginning in the third quarter of fiscal 2009 will primarily reference sections of the Codification instead of a specific original accounting pronouncement. We adopted the authoritative guidance in the third quarter of fiscal 2009.

        In September 2006, the FASB issued authoritative guidance that amends ASC 820, "Fair Value Measurements and Disclosures" ("ASC 820") by issuing ASC 820-10-65. ASC 820-10-65 provides additional guidance on estimating fair value when the volume and level of activity for an asset or liability have significantly decreased. ASC 820-10-65 also includes guidance on identifying circumstances that indicate a transaction is not orderly, and emphasizes that, regardless of whether the volume and level of activity for an asset or liability have decreased significantly and regardless of which valuation technique was used, the objective of a fair value measurement under ASC 820 remains the same—to estimate the price that would be received to sell an asset or transfer a liability in an orderly transaction between market participants at the measurement date under current market conditions. ASC 820-10-65 was effective for interim and annual periods ending after June 15, 2009, with early adoption permitted for periods ending after March 15, 2009. We adopted ASC 820-10-65 as of July 4, 2009 and applied its provisions prospectively by providing the additional disclosures in our unaudited interim consolidated financial statements. See Note 17 "Fair Value of Financial Instruments and Non-financial Assets and Liabilities" in Item 8 of Part II to this Annual Report on Form 10-K for additional information.

        In April 2009, guidance as prescribed by ASC 825, "Financial Instruments" ("ASC 825") was issued and requires, on an interim basis, disclosures about the fair value of financial instruments for public entities. ASC 825 is effective for interim and annual periods ending after June 15, 2009, with early adoption permitted for periods ending after March 15, 2009. An entity may early adopt ASC 825 only if it concurrently adopts both ASC 320, "Investments—Debt and Equity Securities" and ASC 820-10-65. We adopted ASC 825 effective July 4, 2009 by providing the additional disclosures in our unaudited interim consolidated financial statements.

        In May 2009, the FASB issued authoritative guidance, as prescribed by ASC 855, "Subsequent Events", which established standards of accounting for events that occur after the balance sheet date and disclosures of events that occur after the balance sheet date but before the financial statements are issued. The new guidance introduces new terminology, defines a date through which management must evaluate subsequent events, and lists circumstances under which we must recognize and disclose subsequent events or transactions occurring after the balance sheet date. This guidance was effective for interim or annual financial periods ending after June 15, 2009 and was applied by us as of July 4, 2009. In February 2010, the FASB issued Accounting Standards Update ("ASU") 2010-09, "Amendments to Certain Recognition and Disclosure Requirements" ("ASU 2010-09"), which was effective as of February 24, 2010. ASU 2010-09 clarified the guidance to indicate that SEC filers are required to evaluate subsequent events through the date financial statements are issued, but are not required to disclose the date through which subsequent events were evaluated.

        In June 2009, the FASB issued authoritative guidance to revise the approach to determine when a variable interest entity ("VIE") should be consolidated. The new consolidation model for VIEs considers whether we have the power to direct the activities that most significantly impact the VIEs economic performance and share in the significant risks and rewards of the entity. The new guidance on VIEs requires companies to continually reassess VIEs to determine if they are required to apply the new criteria, as prescribed by ASC 810, to determine the accounting and reporting requirements related to VIEs. In December 2009, the FASB issued ASU, 2009-17, "Amendments to Accounting for Variable Interest Entities" ("ASU 2009-17"), to amend ASC 810 to clarify how enterprises should account for and disclose their involvement with VIE's. The adoption of the revised accounting guidance for VIEs did not have a significant effect on our consolidated financial statements. See Note 4 "Acquisitions" in Item 1 of Part I to this Quarterly Report on Form 10-Q for additional information.

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        In August 2009, the FASB issued Accounting Standards Update ("ASU") 2009-05, "Measuring Liabilities at Fair Value", to amend ASC 820 to clarify how entities should estimate the fair value of liabilities. ASC 820, as amended, includes clarifying guidance for circumstances in which a quoted price in an active market is not available, the effect of the existence of liability transfer restrictions, and the effect of quoted prices for the identical liability, including when the identical liability is traded as an asset. The amended guidance in ASC 820 on measuring liabilities at fair value is effective for the first interim or annual reporting period beginning after August 28, 2009, with earlier application permitted. We adopted the amended guidance in ASC 820 beginning July 5, 2009 by providing additional disclosures in our interim consolidated financial statements.

        In October 2009, the FASB issued ASU 2009-13, "Multiple-Deliverable Revenue Arrangements—a consensus of the FASB Emerging Issues Task Force", to amend certain guidance in ASC 605, "Revenue Recognition" ("ASC 605"), specifically as related to "Multiple-Element Arrangements" ("ASC 605-25"). The amended guidance in ASC 605-25: (1) modifies the separation criteria by eliminating the criterion that requires objective and reliable evidence of fair value for the undelivered item(s), and (2) eliminates the use of the residual method of allocation and instead requires that arrangement consideration be allocated, at the inception of the arrangement, to all deliverables based on their relative selling price. The amended guidance in ASC 605-25 is effective prospectively for revenue arrangements entered into or materially modified in fiscal years beginning on or after June 15, 2010, with early application and retrospective application permitted. We prospectively applied the amended guidance in ASC 605-25 beginning January 3, 2010. The adoption of the amendments to ASC 605-25 did not have a significant effect on our consolidated financial statements.

        In January 2010, the FASB issued ASU 2010-06, "Fair Value Measurements and Disclosures (Topic 820)—Improving Disclosures about Fair Value Measurements." This guidance clarifies and requires new disclosures about fair value measurements. We adopted the clarifications and requirement to disclose the amounts and reasons for significant transfers between Level 1 and Level 2, as well as significant transfers in and out of Level 3 of the fair value hierarchy established by ASC 820, in the first quarter of fiscal 2010. Note 14, "Fair Value of Financial Instruments and Non-Financial Assets and Liabilities" reflects the amended disclosure requirements. Additionally, the new guidance also requires that purchases, sales, issuance, and settlements be presented gross in the Level 3 reconciliation, which is used to price the hardest to value instruments (the "disaggregation guidance"). The disaggregation guidance will be effective beginning with interim periods in fiscal year 2011. Since this guidance only amends the disclosure requirements, we do not anticipate that the adoption of ASU 2010-06 will have a material impact on our consolidated financial statements.

Critical Accounting Policies and Other Matters

        The analysis and discussion of our financial position and results of operations is based upon our consolidated financial statements that have been prepared in accordance with U.S. GAAP. The preparation of financial statements in conformity with U.S. GAAP requires the appropriate application of certain accounting policies, many of which require management to make estimates and assumptions about future events that may affect the reported amounts of assets, liabilities, revenues and expenses, and the disclosure of contingent assets and liabilities. Since future events and their impact cannot be determined with certainty, the actual results will inevitably differ from the estimates. We evaluate these estimates and assumptions on an ongoing basis including, but not limited to, those related to revenue recognition, accounts receivable, including concentration of credit risks, inventories, income taxes, impairment of long-lived assets, stock-based compensation and restructuring. Estimates and assumptions are based on historical and other factors believed to be reasonable under the circumstances. The impact and any associated risks related to estimates, assumptions, and accounting policies are discussed within "Management's Discussion and Analysis of Financial Condition and

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Results of Operations," as well as in the notes to the consolidated financial statements, if applicable, where such estimates, assumptions, and accounting policies affect our reported and expected results.

        We believe the following accounting policies are critical to our business operations and the understanding of results of operations and affect the more significant judgments and estimates used in the preparation of our consolidated financial statements:

        Revenue recognition:     Revenue from product sales is recognized when title and risks of ownership pass to the customer, which is on the date of shipment to the customer, or upon delivery to a place named by the customer, depending upon contract terms and when collectability is reasonably assured and pricing is fixed or determinable. Revenue includes amounts billed to customers for shipping and handling. Provision for rebates, promotions, product returns and discounts to customers is recorded as a reduction in determining revenue in the same period that the revenue is recognized. We base our estimate of the expense to be recorded each period on historical returns and allowance levels. We do not believe the likelihood is significant that materially higher deduction levels will result based on prior experience.

        Accounts receivable and concentration of credit risks:     Accounts receivable potentially expose us to a concentration of credit risk. We provide credit in the normal course of business and perform ongoing credit evaluations on our customers' financial condition as deemed necessary, but generally do not require collateral to support such receivables. We also establish an allowance for doubtful accounts based upon factors surrounding the credit risk of specific customers, historical trends and other information. Also, in an effort to reduce our credit exposure to certain customers, as well as accelerate our cash flows, we have sold, on a non-recourse basis, certain of our receivables pursuant to factoring agreements. At July 3, 2010, a reserve of $8.4 million has been recorded as an allowance against trade accounts receivable. We believe that the allowance is adequate to cover potential losses resulting from uncollectible accounts receivable and deductions resulting from sales returns and allowances. While our credit losses have historically been within our calculated estimates, it is possible that future losses could differ significantly from these estimates.

        Inventory reserves:     We maintain reserves for inventories which are primarily valued using the first in, first out (FIFO) method. Such reserves for inventories can be specific to certain inventory or general based on judgments about the overall condition of the inventory. Specific reserves are established based on a determination of the obsolescence of the inventory and whether the inventory value exceeds amounts to be recovered through the expected sales price of such inventories, less selling costs. Reserves are also established based on percentage write-downs applied to inventories aged for certain time periods, or for inventories that are slow-moving. Estimating sales prices, establishing markdown percentages and evaluating the condition of the inventories require judgments and estimates, which may impact the inventory valuation and gross profits. We believe, based on our prior experience of managing and evaluating the recoverability of our slow moving or obsolete inventory, that such established reserves are materially adequate. If actual market conditions and product sales were less favorable than we have projected, additional inventory write-downs may be necessary.

        Income taxes:     We record an income tax valuation allowance when, based on the weight of the evidence, it is more likely than not that some portion, or all, of the deferred tax asset will not be realized. The ultimate realization of the deferred tax asset depends on our ability to generate sufficient taxable income of the appropriate character in the future and in the appropriate taxing jurisdictions. In assessing the realization of the deferred tax assets, consideration is given to, among other factors, the trend of historical and projected future taxable income, the scheduled reversal of deferred tax liabilities, the carry forward period for net operating losses and tax credits, as well as tax planning strategies available to us. Additionally, we have not provided U.S. income taxes for undistributed earnings of certain foreign subsidiaries that are considered to be retained indefinitely for reinvestment. Certain judgments, assumptions and estimates are required in assessing such factors and significant changes in such

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judgments and estimates may materially affect the carrying value of the valuation allowance and deferred income tax expense or benefit recognized in our consolidated financial statements.

        We recognize a tax benefit associated with an uncertain tax position when, in our judgment, it is more likely than not that the position will be sustained upon examination by a taxing authority. For a tax position that meets the more-likely-than-not recognition threshold, we initially and subsequently measure the tax benefit as the largest amount that we judge to have a greater than 50% likelihood of being realized upon ultimate settlement with a taxing authority. The liability associated with unrecognized tax benefits is adjusted periodically due to changing circumstances, such as the progress of tax audits, case law developments and new or emerging legislation. Such adjustments are recognized entirely in the period in which they are identified. The effective tax rate includes the net impact of changes in the liability for unrecognized tax benefits and subsequent adjustments as considered appropriate by management.

        A number of years may elapse before a particular matter for which a liability related to an unrecognized tax benefit is audited and finally resolved. The number of years with open tax audits varies by jurisdiction. While it is often difficult to predict the final outcome or the timing of resolution of any particular tax matter, we believe our liability for unrecognized tax benefits is adequate. Favorable resolution of an unrecognized tax benefit could be recognized as a reduction in the effective tax rate in the period of resolution. Unfavorable settlement of an unrecognized tax benefit could increase the effective tax rate and may require the use of cash in the period of resolution. Accordingly, our future results may include favorable or unfavorable adjustments due to the closure of tax examinations, new regulatory or judicial pronouncements, changes in tax laws or other relevant events.

        In periods prior to fiscal year 2009 and consistent with previous authoritative U.S. GAAP guidance, recognition of tax benefits from preconfirmation net operating loss carry forwards and other deductible temporary differences not previously recognized were applied to reduce goodwill to zero, then to reduce intangible assets that existed at the date of emergence from bankruptcy with any excess tax benefits credited directly to Additional Paid in Capital.

        In December 2007, the FASB issued revised authoritative guidance, effective for fiscal years beginning on or after December 15, 2008 with respect to accounting for business combinations and also introduced changes to certain provisions of income tax accounting. For reorganizations undertaken before the adoption period of the revised guidance, release of a valuation allowance related to pre-confirmation net operating losses and deductible temporary differences are now being reported as a reduction to income tax expense. Similarly, adjustments to uncertain tax positions made after the confirmation date are now recorded in the income statement.

        Impairment of long-lived assets:     Long-lived assets, excluding goodwill, are reviewed for impairment whenever events or changes in circumstances indicate that the carrying amounts may not be recoverable. For assets held and used, an impairment may occur if projected undiscounted cash flows are not adequate to cover the carrying value of the assets. In such cases, additional analysis is conducted to determine the amount of the loss to be recognized. The impairment loss is determined by the difference between the carrying amount of the asset and the fair value measured by future discounted cash flows. The analysis, when conducted, requires estimates of the amount and timing of projected cash flows and, where applicable, judgments associated with, among other factors, the appropriate discount rate. Such estimates are critical in determining whether any impairment charge should be recorded and the amount of such charge if an impairment loss is deemed to be necessary. In addition, future events impacting cash flows for existing assets could render a write-down necessary that previously required no write-down.

        For assets held for disposal, an impairment charge is recognized if the carrying value of the assets exceeds the fair value less costs to sell. Estimates are required of fair value, disposal costs and the time period to dispose of the assets. Such estimates are critical in determining whether any impairment

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charge should be recorded and the amount of such charge if an impairment loss is deemed to be necessary. Actual cash flows received or paid could differ from those used in estimating the impairment loss, which would impact the impairment charge ultimately recognized. As of July 3, 2010, based on our current operating performance, as well as future expectations for the business, we do not anticipate any material write downs for long-lived asset impairments. However, conditions could deteriorate, which could impact our future cash flow estimates, and there exists the potential for further consolidation and restructuring in the more mature markets of the U.S., Europe and Canada, either of which could result in an impairment charge that could have a material effect on our consolidated financial statements.

        Stock-based compensation:     We account for stock-based compensation related to our employee share-based plans in accordance with the methodology defined in the current authoritative guidance for stock compensation. The compensation costs related to all new grants and any unvested portion of prior grants have been measured based on the grant-date fair value of the award. Consistent with the authoritative guidance, awards are considered granted when all required approvals are obtained and when the participant begins to benefit from, or be adversely affected by, subsequent changes in the price of the underlying shares and, regarding awards containing performance conditions, when we and the participant reach a mutual understanding of the key terms of the performance conditions. Additionally, accruals for compensation costs for share-based awards with performance conditions are based on the probability of the achievement of such performance conditions.

        We have estimated the fair value of each stock option grant by using the Black-Scholes option-pricing model. Under the option pricing model, the estimate of fair value is based on the share price and other pertinent factors at the grant date (as defined in the authoritative guidance), such as expected volatility, expected dividend yield, risk-free interest rate, forfeitures and expected lives. Assumptions are evaluated and revised, as necessary, to reflect market conditions and experience. Although we believe the assumptions are appropriate, differing assumptions would affect compensation costs.

        Restructuring:     Accruals have been recorded in conjunction with our restructuring actions. These accruals include estimates primarily related to facility consolidations and closures, census reductions and contract termination costs. Actual costs may vary from these estimates. Restructuring-related accruals are reviewed on a quarterly basis, and changes to the restructuring actions are appropriately recognized when identified.

Environmental

        We are subject to a broad range of federal, foreign, state and local laws and regulations relating to the pollution and protection of the environment. We believe that we are in substantial compliance with current applicable environmental requirements and do not currently anticipate any material adverse effect on our operations, financial or competitive position as a result of our efforts to comply with environmental requirements. In the past several years, we have witnessed increased climate change related legislation and regulation and we recognize that additional legislation and regulation could be enacted as the United States government and the international community attempt to address climate change matters on a global basis. In summary, risk of environmental liability is inherent due to the nature of our business and, accordingly, there can be no assurance that material environmental liabilities will not arise.

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ITEM 3.    QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK

        We are exposed to market risks for changes in foreign currency rates and interest rates and we have exposure to commodity price risks, including prices of our primary raw materials. The overall objective of our financial risk management program is to seek a reduction in the potential negative earnings impact of changes in interest rates, foreign exchange rates and raw material pricing arising in our business activities. We manage these financial exposures, where possible, through operational means and by using various financial instruments. These practices may change as economic conditions change.

Long-Term Debt and Interest Rate Market Risk

        Our long-term borrowings under the Credit Facility are variable interest rate debt, primarily subject to a 2.5% LIBOR floor. As such, to the extent not protected by interest rate hedge agreements, our interest expense will increase as LIBOR rates rise above 2.5% and decrease as LIBOR rates fall to 2.5%. It is our policy to enter into interest rate derivative transactions only to meet our stated overall objective. We do not enter into these transactions for speculative purposes. To that end, as further described in Note 9 "Debt" and Note 13 "Derivatives and Other Financial Instruments and Hedging Activities" to our unaudited interim consolidated financial statements included in Item 1 of Part I to this Quarterly Report on Form 10-Q, in February 2009, we entered into the Interest Rate Swap, which was effective June 30, 2009 and matures on June 30, 2011 and, originally, effectively converted $240.0 million of notional principal amount of debt from a variable LIBOR rate to a fixed LIBOR rate of 1.96%.

        However, as of September 17, 2009, in conjunction with the Amendment we concluded that 92% of the notional amount of the Interest Rate Swap no longer meets the criteria for cash flow hedge accounting, primarily due to the institution of a LIBOR floor applicable to extended portions of the Credit Facility. As a result, to the extent that LIBOR rates decline we are exposed to interest rate risk associated with approximately $220 million of the notional amount of the Interest Rate Swap. The Interest Rate Swap agreement is more fully described in Note 13, "Derivatives and Other Financial Instruments and Hedging Activities" and Note 14, "Fair Value of Financial Instruments and Non-Financial Assets and Liabilities" included in Item 1 of Part I to this Quarterly Report on Form 10-Q.

        Hypothetically, a 1% change in the interest rate affecting all of our subsidiary indebtedness would change interest expense by approximately $0.5 million. With respect to the Credit Facility, excluding the effect of the Interest Rate Swap, to the extent that LIBOR rates, hypothetically, remain at all times above the LIBOR floor of 2.5%, a 1% change in interest rates would change interest expense by approximately $2.9 million.

        Previously, the Company had a similar pay-fixed, receive variable interest rate swap contract that matured on June 20, 2009 and effectively fixed the LIBOR interest rate on a notional principal debt amount of $240.0 million at 5.085%.

        The estimated fair value of our long-term debt, including current portion, at July 3, 2010 was approximately $330.1 million.

Foreign Currency Exchange Rate Risk

        We manufacture, market and distribute certain of our products in Europe, Canada, Latin America and Asia. As a result, our results of operations could be significantly affected by factors such as changes in foreign currency rates in the foreign markets in which we maintain a manufacturing or distribution presence. However, such currency fluctuations have much less effect on local operating results because we, to a significant extent, sell our products within the countries in which they are manufactured. During the first quarter of both 2010 and 2009, certain currencies of countries in which we conduct foreign currency denominated business moved against the U.S. dollar and had a significant impact on sales,

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with a lesser effect on operating income. See "Management's Discussion and Analysis of Financial Condition and Results of Operations" above.

        We have not historically hedged our exposure to transactional foreign currency risk. However, we periodically review our hedge strategy with respect to our U.S. dollar exposure on certain foreign currency based obligations such as firm commitments related to certain capital expenditure projects. In addition, in most foreign operations, there is a partial natural currency hedge due to similar amounts of costs of materials and production as revenues in such local currencies. Furthermore, in certain circumstances, we have utilized insurance programs to mitigate our currency risk exposure associated with the potential inconvertibility of local currency into U.S. dollars (or other hard currency) and to transfer such hard currency out of the foreign countries where certain of our foreign businesses are domiciled.

        In addition, on February 8, 2010 we entered into a series of foreign exchange forward contracts (put options and call options) with a third-party financial institution that provided for a floor and ceiling price (collar) for changes in foreign currency rates between the Euro and U.S. dollar through the date of acceptance of the equipment associated with the new spunmelt equipment to be installed in Suzhou, China. The objective of the combination 2010 FX Forward Contracts is to hedge the changes in fair value of the firm commitment related to the agreement to purchase the equipment. The cash settlements under the 2010 FX Forward Contracts coincide with the payment dates on the equipment purchase agreement. The notional amount of the 2010 FX Forward Contracts with the third party, which expire on various dates in fiscal year 2010 through early fiscal 2012, was €25.6 million, which will result in U.S. dollar equivalent range of $34.5 million to $36.1 million. See Note 13, "Derivatives and Other Financial Instruments and Hedging Activities" and Note 14 "Fair Value of Financial Instruments and Non-Financial Assets and Liabilities to our consolidated financial statements included in Item 1 of Part I to this Quarterly Report on Form 10-Q for further discussion of the 2010 FX Forward Contracts.

Raw Material and Commodity Risks

        The primary raw materials used in the manufacture of most of our products are polypropylene resin, polyester fiber, polyethylene resin, and, to a lesser extent, rayon and tissue paper. The prices of polypropylene, polyethylene and polyester are a function of, among other things, manufacturing capacity, demand and the price of crude oil and natural gas liquids. In certain regions of the world, we may source certain key raw materials from a limited number of suppliers or on a sole source basis. We believe that the loss of any one or more of our suppliers would not have a long-term material adverse effect on us because other manufacturers with whom we conduct business would be able to fulfill our requirements. However, the loss of certain of our suppliers could, in the short-term, adversely affect our business until alternative supply arrangements were secured or alternative suppliers were qualified with customers. We have not experienced, and do not expect, any significant disruptions in supply as a result of shortages in raw materials.

        We have not historically hedged our exposure to raw material increases, but we have certain customer contracts with price adjustment provisions which provide for the pass-through of any cost increases or decreases in raw materials, although there is often a delay between the time we incur the new raw material cost and the time that we are able to adjust the selling price to our customers. Raw material costs as a percentage of sales have increased from 45.2% in the six months ended July 4, 2009 to 53.3% in the six months ended July 3, 2010.

        During the first four months of fiscal 2010, the cost of polypropylene resin, our largest volume raw material, increased significantly. During the first quarter of fiscal 2009, we experienced a moderate increase in the cost of polypropylene resin. Additionally, on a global basis, other raw material costs continue to fluctuate in response to certain global economic factors, including the regional supply versus demand dynamics for the raw materials and the volatile price of oil.

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        In periods of rising raw material costs, to the extent we are not able to pass along price increases of raw materials, or to the extent any such price increases are delayed, our cost of goods sold would increase and our operating profit would correspondingly decrease. By way of example, if the price of polypropylene was to rise $.01 per pound, and we were not able to pass along any of such increase to our customers, we would realize a decrease of approximately $5.2 million, on an annualized basis, in our reported pre-tax operating income. Significant increases in raw material prices that cannot be passed on to customers could have a material adverse effect on our results of operations and financial condition. In periods of declining raw material costs, if sales prices do not decrease at a corresponding rate, our cost of goods sold would decrease and our operating profit would correspondingly increase. See "Management's Discussion and Analysis of Financial Condition and Results of Operations" included in Item 2 of Part I to this Quarterly Report on Form 10-Q.

ITEM 4.    CONTROLS AND PROCEDURES

Evaluation of Disclosure Controls and Procedures

        The Company maintains disclosure controls and procedures that are designed to ensure that information required to be disclosed by the Company in Securities and Exchange Commission reports is recorded, processed, summarized and reported within the time periods specified in the Securities and Exchange Commission's rules and forms, and that such information is accumulated and communicated to the Company's management, including the Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure.

        Under the direction of the Chief Executive Officer and the Chief Financial Officer, management has evaluated the effectiveness of the Company's disclosure controls and procedures, as such item is defined in Rule 13a-15(e) under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as of the end of the period covered by this report. Based on that evaluation, the Company's Chief Executive Officer and Chief Financial Officer concluded that our disclosure controls and procedures were not effective at the reasonable assurance level because of the material weaknesses in the Company's internal control over financial reporting described below. Notwithstanding the existence of these material weaknesses, the Company's management believes that the consolidated financial statements and other financial information included in this report fairly present in all material respects the Company's financial condition, results of operations and cash flows as of, and for, the periods presented.

Changes in Internal Control over Financial Reporting

        Management is responsible for establishing and maintaining adequate internal control over financial reporting for the Company, as such term is defined in Rule 13a-15(f) of the Exchange Act. Internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with accounting principles generally accepted in the United States and includes those policies and procedures that (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the Company's assets; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with accounting principles generally accepted in the United States, and that receipts and expenditures of the Company are being made only in accordance with authorizations of the Company's management and directors; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company's assets that could have a material effect on the financial statements.

        A material weakness is a deficiency, or combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a material misstatement of the Company's

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annual or interim financial statements will not be prevented or detected on a timely basis. During the third quarter of fiscal 2009, management identified a material weakness in the Company's internal control over financial reporting associated with processes related to the preparation and adjustment of the Company's income tax accounts. During the third and fourth quarters of fiscal 2009, management (i) increased the Company's personnel within the global tax function, (ii) conducted training regarding accounting for income taxes for global finance and tax personnel, and (iii) made modifications to documentation used to prepare and reconcile income tax balances. During the first and second quarters of fiscal 2010, management continued its assessment of the remediation efforts and determined that additional steps are necessary to fully remediate the material weakness. Accordingly, we concluded that the Company's internal control over financial reporting was not yet effective as of July 3, 2010. As such, management plans to engage independent third party tax advisors to augment the Company's processes related to the preparation and adjustment of the Company's income tax accounts.

        Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

        Other than as described above, there were no changes in the Company's internal control over financial reporting, as such term is defined in Exchange Act Rule 13a-15(f), during the quarter ended July 3, 2010 that have materially affected, or are reasonably likely to materially affect, the Company's internal control over financial reporting.

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PART II. OTHER INFORMATION

ITEM 1.    LEGAL PROCEEDINGS

        We are not currently a party or subject to any pending legal proceedings other than ordinary routine litigation incidental to our business, none of which are deemed material.

ITEM 1A.    RISK FACTORS

        Not applicable.

ITEM 2.    UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS

        Not applicable.

ITEM 3.    DEFAULTS UPON SENIOR SECURITIES

        Not applicable.

ITEM 5.    OTHER INFORMATION

        Not applicable.

ITEM 6.    EXHIBITS

        Exhibits required to be filed with this Form 10-Q are listed below:

Exhibit
Number
  Document Description
  10.1   Equipment Lease Agreement, dated as of June 24, 2010, between Chicopee, Inc. and Gossamer Holdings, LLC

 

31.1

 

Certification of Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

 

31.2

 

Certification of Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

 

32.1

 

Certification by the Chief Executive Officer pursuant to 18 U.S.C. Section 1350

 

32.2

 

Certification by the Chief Financial Officer pursuant to 18 U.S.C. Section 1350

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SIGNATURES

        Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

    POLYMER GROUP, INC.

 

 

 

 

 
Date: August 17, 2010   By:   /s/ VERONICA M. HAGEN

Veronica M. Hagen
Chief Executive Officer

 

 

 

 

 
Date: August 17, 2010   By:   /s/ DENNIS E. NORMAN

Dennis E. Norman
Chief Financial Officer
(Principal Financial Officer)

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Exhibit 10.1

 

 

 

EQUIPMENT LEASE AGREEMENT

 

dated as of June 24, 2010

 

between

 

GOSSAMER HOLDINGS, LLC,
as Lessor,

 

and

 

CHICOPEE, INC.,
as Lessee

 

This Lease Agreement and the Schedule may be executed in any number of counterparts, each of which, when so executed and delivered, shall be deemed an original, but all such counterparts taken together shall constitute one and the same instrument.  If this Lease Agreement or the Schedule constitutes chattel paper (as defined in the Uniform Commercial Code as in effect in any applicable jurisdiction), no security interest therein may be created except through the transfer or possession of the original counterpart marked “No. 1 - Original.”

 

 

 



 

TABLE OF CONTENTS

 

 

 

 

Page

 

 

 

 

1.

LEASING

 

1

2.

TERM, RENT AND PAYMENT

 

4

3.

RENT ADJUSTMENTS

 

5

4.

TAXES

 

7

5.

REPORTS

 

10

6.

DELIVERY, USE AND OPERATION

 

11

7.

MAINTENANCE

 

14

8.

CASUALTY OCCURRENCE

 

15

9.

LOSS OR DAMAGE

 

16

10.

INSURANCE

 

16

11.

RETURN OF EQUIPMENT

 

19

12.

DEFAULT; REMEDIES

 

22

13.

ASSIGNMENT; SYNDICATION

 

27

14.

NET LEASE; NO SET-OFF, ETC.

 

29

15.

INDEMNIFICATION

 

29

16.

DISCLAIMER

 

32

17.

REPRESENTATIONS, WARRANTIES AND COVENANTS

 

32

18.

INTENT; TITLE

 

38

19.

PURCHASE OPTIONS

 

38

20.

MISCELLANEOUS

 

39

21.

CHOICE OF LAW; JURISDICTION

 

43

22.

CONFIDENTIAL INFORMATION

 

43

23.

DEFINITIONS

 

45

 



 

APPENDIX I

DEFINITIONS

APPENDIX II

FINANCIAL COVENANTS

EXHIBIT NO. 1

FORM OF EQUIPMENT SCHEDULE

ANNEX A

 

-

DESCRIPTION OF EQUIPMENT

ANNEX B

 

-

CERTIFICATE OF ACCEPTANCE

ANNEX C

 

-

STIPULATED LOSS VALUE TABLE

EXHIBIT NO. 2

FORM OF ACCEPTABLE LETTER OF CREDIT

EXHIBIT NO. 3

FORM OF GUARANTY

EXHIBIT NO. 4

FORM OF CONFIDENTIALITY AGREEMENT

EXHIBIT NO. 5

FORM OF SECURITY DEPOSIT PLEDGE AGREEMENT

 

2


 

EQUIPMENT LEASE AGREEMENT

 

THIS EQUIPMENT LEASE AGREEMENT, dated as of June 24, 2010 (the “ Agreement ”), between GOSSAMER HOLDINGS, LLC, a Delaware limited liability company (hereinafter called, together with its successors and assigns, if any, “ Lessor ”) and CHICOPEE, INC., a Delaware corporation (hereinafter called “ Lessee ”).

 

1.              LEASING

 

(a)            Subject to the terms and conditions set forth below, Lessor agrees to lease to Lessee, and Lessee agrees to lease from Lessor, the Equipment described in Annex A to the Schedule executed pursuant hereto.  The Basic Term shall commence on the Basic Term Commencement Date.  Terms defined in the Schedule and not otherwise defined herein shall have the meanings ascribed to them in the Schedule.  Certain definitions are provided in Appendix I hereto.

 

(b)            The obligation of Lessor to lease the Equipment set forth on the Schedule to Lessee shall be subject to satisfaction of the following conditions, on or prior to the Basic Term Commencement Date:

 

(i)             Receipt by Lessor of the following documents in form and substance satisfactory to Lessor:

 

(1)            the Schedule relating to the Equipment to be made subject to this Agreement (including a duly completed Annex A thereto describing the Equipment and a duly completed Annex C thereto describing the Stipulated Loss Values applicable to the Equipment), in favor of Lessor, duly executed by Lessee;

 

(2)            (a) bills of sale, in favor of Lessor, evidencing free and clear title to the Equipment, duly executed by the respective Vendors; and (b) official invoices that comply with all requirements under German tax laws, with respect to the Equipment purchased by the Lessor from any German Vendor, as well as all other documents in connection with the importation of any of the Equipment, including without limitation: certificates of origin, importation permits, and receipts of payment of applicable taxes;

 

(3)            a Certificate of Acceptance with respect to the Equipment, in favor of Lessor, duly executed by Lessee;

 

(4)            an SNDA with respect to the Equipment, in favor of Lessor, duly executed by the mortgagee, if any, with respect to the Site;

 

(ii)            Receipt by Lessor of an Acceptable Letter of Credit, maintained by the Lessee for the benefit of Lessor (or its assignee or designee) having at the date of issuance thereof a stated amount not less than the Required Amount;

 



 

(iii)           Receipt by Lessor of the Security Deposit and the Security Deposit Pledge Agreement duly executed by Lessee;

 

(iv)           Receipt by Lessor of evidence of insurance which complies with the requirements of Section 10 hereof;

 

(v)            Receipt by Lessor of an Appraisal with respect to the Equipment, in form and substance satisfactory to Lessor;

 

(vi)           Receipt by Lessor of a certificate signed by the Secretary of Lessee confirming (x) that attached thereto is (1) a certificate, where available, as to the good standing of, and payment of franchise taxes by, the Lessee from the Secretary of State of Delaware and the Secretary of State of the Commonwealth of Virginia, (2) a true and correct certified copy of the organizational documents and by-laws (together with amendments thereto if applicable) of Lessee as in effect prior to the date of the resolutions referred to in clause (3) of this paragraph through to such Basic Term Commencement Date and (3) resolutions of the board of directors of Lessee authorizing the execution, delivery and performance of its obligations under the Documents (y) that (1) the resolutions referred to in clause (3) above were duly adopted, are in full force and effect on such Basic Term Commencement Date and have not been amended, modified, revoked or rescinded prior to such date and (2) all conditions for the effective application of such actions or resolutions to the transactions contemplated by this Agreement have been satisfied, and (z) the incumbency and signature of each officer executing any Document on behalf of Lessee;

 

(vii)          Receipt by Lessor of a certificate signed by the Secretary of each of the Guarantors confirming (x) that attached thereto is (1) a certificate, where available, as to the good standing of, and payment of franchise taxes by, each of the Guarantors from the Secretary of State of Delaware, (2) a true and correct certified copy of the organizational documents (including articles of incorporation and by-laws or operating agreement (together with amendments thereto if applicable)) of each of the Guarantors as in effect prior to the date of the resolutions referred to in clause (3) of this paragraph through to such Basic Term Commencement Date, (3) resolutions of the board of directors, members or manager of each of the Guarantors authorizing the execution, delivery and performance of its obligations under the Documents, (y) that (1) the resolutions referred to in clause (3) above were duly adopted, are in full force and effect on such Basic Term Commencement Date and have not been amended, modified, revoked or rescinded prior to such date, and (2) all conditions for the effective application of such actions or resolutions to the transactions contemplated by this Agreement have been satisfied, and (z) the incumbency and signature of each officer executing any Document on behalf of each of the Guarantors.

 

(viii)         (1)            No Default and no event, which with the lapse of time or the giving of notice, shall constitute a Default, shall have occurred and be continuing, no Casualty Occurrence shall have occurred and the representations and warranties of Lessee herein are true and correct as of such Basic Term Commencement Date, and

 

2



 

Lessor shall have received a certificate dated such date signed by a Responsible Officer of Lessee to such effect; and

 

(2)            No Construction Agency Event of Default (as defined in the CAA) and no event, which with the lapse of time or the giving of notice, shall constitute a Construction Agency Event of Default, shall have occurred and be continuing.

 

(ix)            UCC financing statements, including fixture filings, naming Lessee as debtor and Lessor as secured party, shall have been filed in all jurisdictions where it is necessary and desirable in the reasonable opinion of Lessor to so file so as to perfect and protect Lessor’s interest in the Equipment;

 

(x)             The chattel paper counterpart of this Agreement and the Schedule shall have been delivered to Lessor;

 

(xi)            No material adverse change shall have occurred in the financial condition of PGI and its subsidiaries (including Lessee), taken as a whole, since December 31, 2009;

 

(xii)           Receipt by Lessor of evidence reasonably satisfactory to it that Construction Completion (as defined in the CAA) has occurred;

 

(xiii)          Receipt by Lessor of evidence that the Site Lease, Site Sublease, Support Agreement, the Easement Agreement and the Guaranty are each in full force and effect;

 

(xiv)         All Liens on the Equipment, other than Permitted Liens, shall be discharged and released and duly delivered and/or executed releases with respect thereto shall have been delivered to Lessor;

 

(xv)          The Equipment shall be located at the Site;

 

(xvi)         Receipt by Lessor of evidence reasonably satisfactory to it that Lessee has obtained all consents, licenses, authorizations, permits, concessions and other documents required for the use and operation of the Equipment and the Site under Applicable Laws;

 

(xvii)        There has been neither (i) any change in any Applicable Laws that, in the good faith opinion of any of the parties hereto, renders the overall transaction contemplated by this Agreement and the other Operative Documents illegal for any of such parties nor (ii) any Change in Law that, in the good faith opinion of Lessor (after taking into account the effect of any adjustment made pursuant to Section 3 hereof), could adversely affect the Net Economic Return to the Lessor (or any Member) or otherwise adversely affect the tax consequences to the Lessor or any Member of participating in such overall transaction.

 

(xviii)       A written opinion of Parker Poe Adams & Bernstein LLP, special counsel to Lessee and each Guarantor, in the form and substance satisfactory to Lessor, and a written opinion of Woods Rogers PLC, special Virginia counsel to Lessee and Guarantor, in the form and substance satisfactory to Lessor.

 

3



 

(xix)          A tax opinion from Winston & Strawn LLP in form and substance satisfactory to Lessor.

 

(xx)           Such certificates, lien releases, consents, notices and other documents as Lessor may reasonably request.

 

(c)            Upon execution by Lessee of the Certificate of Acceptance, the Equipment described thereon shall be deemed to have been delivered to, and irrevocably accepted by, Lessee for lease hereunder.  Lessee’s acceptance of any Equipment under this Lease will not be deemed to limit any of Lessee’s rights or remedies against any manufacturer or provider of the Equipment.

 

2.              TERM, RENT AND PAYMENT

 

(a)            Lessee hereby agrees to pay Lessor the Basic Term Rent for the Equipment throughout the Basic Term applicable thereto in monthly installments payable in advance on each Rent Payment Date as set forth in the Schedule.  The Basic Term Rent shall be calculated in accordance with Section E of Exhibit No. 1.  The Basic Term Rent payable hereunder and Lessee’s right to use the Equipment shall commence on the date of execution by Lessee of the Certificate of Acceptance for the Equipment and the satisfaction of the conditions in Section 1(b) above (to the extent not waived by the Lessor) (“ Basic Term Commencement Date ”) pursuant to this Agreement.  The term of this Agreement shall be the period specified in the Schedule.  If any Term is extended, the word “Term” shall be deemed to refer to all extended terms, and all provisions of this Agreement shall apply during any extended terms, except as otherwise may be specifically provided in writing.  If any Rent Payment Date is not a Business Day, the Basic Term Rent otherwise due on such date shall be payable on the immediately preceding Business Day.  The Basic Term Rent due and payable under the Schedule shall also represent and be the amount of rent for which Lessee becomes liable on account of the use of the Equipment for the period beginning on each Rent Payment Date and ending on the immediately succeeding Rent Payment Date, and shall therefore constitute the rent allocated to such rental periods within the meaning of Treasury Regulations Section 1.467-1(c)(2)(ii).  Lessee hereby agrees to pay to Lessor any and all Supplemental Rent when and as the same shall become due and owing.

 

(b)            Rent shall be paid to Lessor by wire transfer of immediately available funds in United States Dollars to:

 

Bank:

Deutsche Bank

Branch:

New York

Bank Account #:

50286772

ABA:

021001033

Account Name:

Gossamer Holdings, LLC

Customer:

Polymer Group, Inc.

 

or to such other account as Lessor may direct in writing; and shall be effective upon receipt.  All such accounts shall be under the full dominion and control of Lessor.  Payments of Basic

 

4



 

Term Rent shall be in the amount set forth in, and due and allocated in accordance with, the provisions of the Schedule.  In no event shall any Rent payments be refunded to Lessee.

 

(c)            At such time as Stipulated Loss Value (or an amount determined by reference thereto) shall be payable hereunder, the amount payable by Lessee shall be calculated by reference to Annex C to the Schedule for the affected Equipment.

 

3.              RENT ADJUSTMENTS

 

(a)            The Basic Term Lease Rate Factor set forth on the Schedule, the Basic Term, the First EBO Price, the Second EBO Price and the Stipulated Loss Value set forth on Annex C were calculated by Lessor on the basis of the tax assumptions set forth in part 1 of Section D of Exhibit No. 1 (the “ Tax Benefits ”) and in addition thereto, the assumptions set forth in Section C of Exhibit No. 1 (the “ Pricing Assumptions ”).

 

(b)            If at the Basic Term Commencement Date, any of the Tax Benefits or Pricing Assumptions shall change or are incorrect (including any change resulting from a change in law), then Lessor shall recompute the Capitalized Lessor’s Cost, the Basic Term Lease Rate Factor, the First EBO Date, the First EBO Price, the Second EBO Date, the Second EBO Price and the Stipulated Loss Value Table (in each case, by increasing or decreasing such amount or amounts) as shall be necessary to preserve the both General Electric Credit Corporation of Tennessee’s Net Economic Return and ING Spunmelt Holdings LLC’s Net Economic Return while minimizing the Basic Term Lease Rate Factor.  Any such recomputation shall be consistent with the Pricing Assumptions and Tax Benefits (other than any such Pricing Assumption or Tax Benefit the incorrectness of which gave rise to such recomputation or to a prior recomputation), and the Lessor shall utilize the same methods, constraints and assumptions originally used to calculate the Basic Term Lease Rate Factor, the First EBO Price, the Second EBO Price and Stipulated Loss Values.  Such adjustments shall comply with Section 467 of the Code and the Regulations and the requirements of Sections 4.02(5), 4.07(1) and (2) and 4.08(1) of Revenue Procedure 2001-29, as amended (and such that the Lease could not be treated as a “disqualified leaseback” or “long term agreement” within the meaning of Section 467 of the Code).  Such adjustments shall be reflected in amendments to Exhibit No. 1 to this Agreement and/or the Schedule that Lessor and Lessee hereby agree to execute and deliver on or prior to the Basic Term Commencement Date subject to the satisfaction of the conditions set forth in Section 1(b) of this Agreement.  Lessor shall notify Lessee in writing of any recomputation required under this Section 3(b) and such notice shall include the adjustments made to the Capitalized Lessor’s Cost, the Basic Term Lease Rate Factor, the First EBO Date, the First EBO Price, the Second EBO Date, the Second EBO Price and the Stipulated Loss Value Table.

 

(c)            At the Basic Term Commencement Date, in addition to the pricing adjustments described in Section 3(b), the Lessor reserves the right to make an additional adjustment prior to the Basic Term Commencement Date if the Corporate Index Spread Average (2) is more than 25 basis points different from the Corporate Index Spread (1) as of May 14, 2010 (“Initial Spread”), which Initial Spread is 112 basis points.

 

5



 

(1) “Corporate Index Spread” means the U.S. Aggregate Corporate AA-Rated Index as calculated by Barclays Capital on an Option Adjusted Spread (OAS) basis currently available online at http://online.wsj.com/mdc/public/page/2_3022-bondbnchmrk.html?mod=mdc_bnd_pglnk or such other nationally recognized reporting source or publication as Lessor may specify.  Please note that the aforementioned spread is published at least once a week by the mentioned sources.

 

(2) Corporate Index Spread Average means the average of the weekly Corporate Index Spreads over the period starting on May 14, 2010 until the date of the last available Corporate Index Spread as of the Basic Term Commencement Date.

 

Any such adjustments shall be reflected in amendments to Exhibit No. 1 to this Agreement and/or the Schedule that Lessee hereby agrees to execute and deliver prior to the Basic Term Commencement Date.

 

(d)            If, solely as a result of U.S. Congressional enactment of any law (including, without limitation, any modification of, or amendment or addition to, the Code), the maximum U.S. effective corporate income tax rate (exclusive of any minimum tax rate) for calendar-year taxpayers (“ Effective Rate ”) is higher than thirty-five percent (35%) for any year during the Term for any Lease, then Lessor shall have the right to increase such rent payments by requiring payment of a single additional sum.  The additional sum shall be equal to the product of (i) the Effective Rate (expressed as a decimal) for such year less 0.35 (or, in the event that any adjustment has been made hereunder for any previous year, the Effective Rate (expressed as a decimal) used in calculating the next previous adjustment) times (ii) the adjusted Stipulated Loss Value (defined below), divided by (iii) the difference between the new Effective Rate (expressed as a decimal) and one (1).  The adjusted Stipulated Loss Value shall be the Stipulated Loss Value (calculated as of the first rental due in the year for which such adjustment is being made) minus the Tax Benefits that would be allowable under Section 168 of the Code (as of the first day of the year for which such adjustment is being made and all future years of the Term for any Lease).  The Tax Benefits are defined on the Schedule.  Lessee shall pay to Lessor the full amount of the additional rent payment on the later of (i) receipt of notice or (ii) the first day of the year for which such adjustment is being made.

 

(e)            If upon the determination of the Basic Term Rent, subject to the adjustments set forth in Section 3 above, the Lessee should determine that the present value of the Basic Term Rents and including other cash outlays required to be considered in accordance with GAAP, discounted at the Discount Rate, computes to an amount that equals or exceeds 90% of the Equipment Cost, then the Lessee may elect to purchase the Equipment (i) in the case that the Basic Term Lease Rate Factor, as recomputed in accordance with Section 3(b), has increased over the Basic Term Lease Rate Factor set forth in Section B of Exhibit No. 1, at a purchase price equal to 101% of the Lease Investment Balance, or (ii) in all other cases, at a purchase price equal to 102% of the Lease Investment Balance, plus, in each case, any fees, costs and expenses incurred by Lessor or any Member in connection with execution of the Schedule, which are not included in the Lease Investment Balance. If the Lessee exercises such purchase option, (x) the Lessee and the Lessor will not execute the Schedule and the Basic Term shall not commence, (y) Lessee shall pay to Lessor the amount set forth in the immediately

 

6



 

preceding sentence and (z) upon Lessor’s receipt of such amount, Lessor shall convey to Lessee title to the Equipment on an AS IS, WHERE IS BASIS, free and clear of all Lessor’s Liens. Notwithstanding the provisions of this clause (e), upon receipt of notice from Lessee electing such option to purchase the Equipment, and such notice from Lessee will include the applicable present value calculation described above, presented in reasonably sufficient detail, the Lessor shall have the right but not any obligation to reduce such Basic Term Lease Rate Factor so that the present value of the Basic Term Rents and including other cash outlays required to be considered in accordance with GAAP, discounted at the Discount Rate, computes to an amount less than 90% of the Equipment Cost.  If Lessor elects to reduce the Basic Term Lease Rate Factor in accordance with the immediately preceding sentence, then any election by Lessee to purchase the Equipment pursuant to this clause (e) shall automatically and without further action be deemed null and void.

 

4.              TAXES

 

(a)            Except as provided in Section 3 (d) and Section 15(c) hereof, Lessee shall have no liability for (i) taxes imposed by the United States of America or any State or political subdivision thereof or any other Governmental Authority (each, a “ Taxing Authority ”) which are based on or measured by the net income of any Indemnified Party, and (ii) taxes in respect of, and fairly attributable to, any period after the expiration or early termination of this Agreement and the satisfaction by Lessee of all obligations hereunder (it being understood that this clause (ii) shall not apply to any taxes that relate to events occurring or matters arising prior to or simultaneously with such expiration or early termination) (the taxes described in clauses (i) and (ii) are “ Excluded Taxes ”).

 

(b)            Lessee shall report (to the extent that it is legally permissible) and shall pay prior to delinquency all taxes, fees, duties and assessments (other than the Excluded Taxes) due, imposed, assessed or levied against: (i) the Equipment, the Facility or the Site (or the construction, import, installation, financing, refinancing, warranty, ownership, maintenance, repair, condition, alteration, modification, improvement, restoration, refurbishing, rebuilding, transport, assembly, repossession, dismantling, abandonment, retirement, decommissioning, storage, replacement, return, acquisition, sale or other disposition, insuring, sublease, manufacture, design, acceptance, rejection, purchase, ownership, delivery, leasing, possession, mortgaging, operation or other use or non-use of any thereof, in each case, by Lessee or any Affiliate of Lessee or any sublessee of Lessee or other user or person in possession of any Equipment (or any part thereof)); (ii) any amounts paid or payable under this Agreement, the other Operative Documents, or the Documents; (iii) any of the Documents or the Operative Documents; (iv) the conduct of business or affairs of Lessee or any Affiliate thereof; (v) any Indemnified Party with respect to the transactions contemplated by the Operative Documents; or (vi) Lessee, by any foreign, United States federal, state or local government or taxing authority in any of the foregoing related to any of the transactions contemplated by the Documents, including, without limitation, all license and registration fees, and all sales, use, personal property, real property, ad valorem, rental, transfer, excise, gross receipts, value added, goods and services, franchise, stamp or other taxes, imports, customs or other duties and charges, other than Excluded Taxes, together with any penalties, fines or interest thereon (all hereinafter called “ Taxes ”).  Lessee shall (i) pay, indemnify and hold harmless each Indemnified Party (on an After-Tax Basis) upon receipt of written request for indemnification

 

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or reimbursement for any Taxes (but excluding the Excluded Taxes) charged to or assessed against such Indemnified Party, (ii) on request of Lessor, submit to such Indemnified Party written evidence of Lessee’s payment of such Taxes, (iii) on all reports or tax returns show the Lessor as the owner of the Equipment, and (iv) send a copy of the reports or tax returns referred to in clause (iii) above, upon written request by Lessor, to Lessor and at Lessor’s request to each Indemnified Party, identified by Lessor in such written request.  At the written request of Lessor, Lessee shall pay directly any such taxes imposed on any such Indemnified Party.  Notwithstanding anything to the contrary set forth in this Agreement, the provisions of the immediately preceding two sentences shall be effective on and after the Basic Term Commencement Date.

 

(c)            If any Tax Claim shall be made against any Indemnified Party or if any proceeding shall be commenced against any Indemnified Party (including a written notice of such proceeding) for any Taxes as to which Lessee shall have a Tax indemnity hereunder,  such Indemnified Party shall promptly notify Lessee within thirty (30) days (but failure to notify Lessee within this time period shall not impair such Indemnified Party’s right to indemnification hereunder, unless Lessee’s rights to contest such Tax Claim shall have been precluded by such failure). If (i) Lessee in writing shall request an Indemnified Party to contest a claim for which an indemnity for Taxes may be payable by Lessee hereunder (a “ Tax Claim ”), (ii) Lessee shall agree to pay, and shall be paying currently, all costs and expenses, including, without limitation, reasonable attorneys’ fees and expenses, incurred by the Indemnified Party in connection with contesting such Tax Claim, (iii) the Indemnified Party shall reasonably determine that the action to be taken will not result in the imposition of a Lien upon, and will not result in a material risk of the sale, forfeiture or other loss of, the Equipment or any component thereof, and will not involve any risk of criminal liabilities,  (iv) Winston & Strawn LLP or other independent nationally recognized tax counsel selected by the Indemnified Party and reasonably acceptable to Lessee shall have furnished an opinion to the effect that there is a reasonable basis to contest such Tax Claim, (v) Lessee shall have executed a written acknowledgment of its liability to indemnify the Indemnified Person for such Taxes if and to the extent that the contest is not successful, (vi) no Default shall have occurred and be continuing, and (vii) the amount of the potential tax indemnity payment exceeds $25,000, then the Indemnified Party shall, except as set forth below, contest the validity, applicability or amount of such Taxes by, as determined in such Indemnified Party’s sole discretion (x) resisting payment thereof, (y) not paying the same except under protest, if protest is necessary and proper or (z) if payment is made, using reasonable efforts to obtain a refund thereof in appropriate administrative or judicial proceedings.  Any such contest conducted pursuant to the preceding sentence shall be controlled, and conducted by counsel chosen, by the Indemnified Party unless such Indemnified Party requests Lessee to conduct such contest and Lessee agrees to itself conduct such contest.  The Indemnified Party shall endeavor in good faith to consult with and advise Lessee of all material actions taken or proposed to be taken by the applicable Taxing Authority and of all material actions proposed to be taken by the Indemnified Party with respect to such contest, and shall, to the extent practicable, permit Lessee, upon request, reasonable opportunity to review the content of any written submissions relating exclusively to the contest of such Tax Claim; provided, however that the Indemnified Party shall not be required to disclose any document or information that the Indemnified Party considers privileged or confidential.    Subject to the conditions and limitations set forth herein, such Indemnified Party agrees to appeal any adverse decision with respect to such contest, provided

 

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that in no event shall any Indemnified Party be required to appeal any adverse decision to the U.S. Supreme Court.  If the contest shall be made by the payment of such Taxes and the claiming of a refund, Lessee shall either make such payment directly to the appropriate authority or advance to such Indemnified Party on an interest-free basis sufficient funds to make the payment (including any related interest, penalties and additions to tax). If an Indemnified Party shall be subject to any Taxes as a result of the making or existence of any such payment or advance, such Taxes shall be treated as Taxes for which Lessee is required to indemnify such Indemnified Party hereunder without regard to whether such Taxes are Excluded Taxes.  Nothing contained herein shall require an Indemnified Party to contest, or permit Lessee to contest, a Tax Claim that such Indemnified Party would otherwise be required to contest, if such Indemnified Party shall waive payment by Lessee of any amount that might otherwise be payable by Lessee hereunder in respect of such Tax Claim and pay to Lessee any amounts (excluding the expenses of a contest) theretofore paid by Lessee with respect to such Tax Claim.

 

(d)            If an Indemnified Party realizes a reduction in taxes as a result of any indemnification by Lessee under Section 4 (whether by way of deduction, credit, allocation or apportionment or otherwise) not previously taken into account in calculating an indemnity hereunder, or any reduction, refund or rebate of any Tax paid by Lessee pursuant to this Section 4, such Indemnified Party shall promptly pay to Lessee an amount equal to (1) the amount of any such reduction in taxes or reduction plus (2) the aggregate reduction in such Indemnified Party’s taxes attributable to the deduction, if any, of the amounts payable to Lessee pursuant to this Section 4. Upon receipt by an Indemnified Party of any refund or credit of all or part of any taxes paid or indemnified against by Lessee, such Indemnified Party shall promptly pay to Lessee an amount equal to the amount of such refund plus any interest received by or credited to such Indemnified Party with respect to such refund plus or minus (as the case may be) the aggregate reduction or increase, respectively, in such Indemnified Party’s taxes attributable to the receipt of the refund or credit from the Taxing Authority and the deduction, if any, of the amounts payable to Lessee pursuant to this Section 4.  Notwithstanding the foregoing, in no event shall any Indemnified Party be required to make a payment to Lessee under this Section 4(d) (i) if a Default shall have occurred and be continuing and (ii) in an amount greater than the amount paid by Lessee under Section 4 with respect to the related taxes for which the Lessee indemnified such Indemnified Party (provided that any interest received by or credited to such Indemnified Party with respect to such refund shall also be paid to Lessee).  Lessee shall fully indemnify such Indemnified Party if and to the extent any such reduction, refund, rebate or other tax savings is subsequently lost or disallowed.

 

(e)            Lessee’s obligations and rights, and Lessor’s (and each Indemnified Party’s) rights, privileges and indemnities, contained in this Section 4 shall survive the expiration or other termination of this Agreement.  The rights, privileges and indemnities contained in this Agreement are expressly made for the benefit of, and shall be enforceable by Lessor, any Member, and the successors and assigns of the Lessor and any Member, and each Indemnified Party.

 

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5.              REPORTS

 

(a)            Lessee will notify Lessor in writing, within 10 days after obtaining actual knowledge, or after Lessee shall have received written notice, of the attachment of any tax or other Lien (other than Permitted Liens) against the Facility or any Equipment, of the full particulars thereof and of the location of the Facility and Equipment on the date of such notification.

 

(b)            Lessee will deliver to Lessor, (i) within 90 days of the close of each fiscal year of PGI, PGI’s consolidated balance sheet, profit and loss statement and statement of cash flows, prepared in accordance with generally accepted accounting principles consistently applied in the United States of America (“ GAAP ”) certified by a recognized firm of certified public accountants, and (ii) within three Business Days after it is actually filed with the Securities and Exchange Commission, if applicable, PGI’s Form 10-K.  Lessee will deliver to Lessor (x) within 50 days of the close of each fiscal quarter of PGI, in reasonable detail, copies of PGI’s quarterly financial report certified by the chief financial officer of PGI, and (y) within three Business Days after it is actually filed with the Securities and Exchange Commission, if applicable, PGI’s Form 10-Q.

 

(c)            Lessee will promptly and fully report to Lessor in writing if any Equipment (or any part thereof) is lost or damaged (where the estimated repair costs would exceed $100,000), or is otherwise involved in an accident causing personal injury or property damage which may result in a loss or liability in excess of $100,000.

 

(d)            (i) Within 30 days after any request by Lessor and (ii) in connection with any financial statement delivered pursuant to subparagraphs (b)(i) and (b)(x) above and paragraph (e) below, Lessee will furnish to Lessor (A) a certificate of a Responsible Officer of PGI and Lessee, respectively, stating that such officer has reviewed the activities of PGI and Lessee, respectively, and that, to the best of such officer’s knowledge, there exists no Default or event which, with the giving of notice or the lapse of time (or both), would become a Default, and (B) a certificate from a financial officer of PGI containing a computation in reasonable detail of, and showing compliance with, each of the financial ratios and restrictions contained in the financial covenants set forth in Appendix II.

 

(e)            No later than February 28 of each fiscal year of PGI, Lessee will deliver to Lessor a detailed consolidated budget of PGI by fiscal quarter for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow or at the end of and for each fiscal quarter during such fiscal year) and the next two succeeding fiscal years, and promptly when available any significant revisions of such budgets.

 

(f)             Lessee will comply with Section 17(b)(ii) within 120 days of the Basic Term Commencement Date and will provide Lessor with a written report of the identification numbers applicable to each item of Equipment within 120 days of the Basic Term Commencement Date.

 

(g)            Lessee shall promptly deliver to Lessor written notice of: (i) any violation of any Environmental Law or Environmental Permit which violation could result in a material administrative, criminal or civil liability to Lessor, any Guarantor or Lessee with respect to the Site, the Facility or the Equipment or could otherwise result in a Material Adverse Effect, (ii) 

 

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any proceeding, investigation or inquiry of which Lessee has been notified in writing by any Governmental Authority (including without limitation, the EPA) or any non-government third party with respect to the presence or Release of Hazardous Substances in, on, from or to the Site, the Facility or the Equipment which presence or Release could result in a violation of or liability under any Environmental Law or Environmental Permit, and (iii) any Release of Hazardous Substances by the Lessee or with respect to the Site, the Facility or the Equipment which Release could result in a violation of or liability under any Environmental Law or Environmental Permit, other than a de minimis Release.

 

(h)            The Lessor will keep the Lessee apprised of changes in the ownership structure and outstanding debt obligation of Gossamer Holdings, LLC.  Following the receipt of a written request from Lessee for Gossamer Holdings, LLC financial information, solely for purposes of Lessee’s financial reporting and only when required by Lessee to comply with GAAP, Lessor shall, within 30 days after the end of any calendar quarter that falls in whole or in part in the period between the Basic Term Commencement Date and the date on which this Agreement terminates, deliver to the Lessee unaudited copies of (i) a balance sheet of Gossamer Holdings, LLC as of the end of that calendar quarter, and (ii) a statement of operations of Gossamer Holdings, LLC, for that year to date fiscal calendar quarter and (iii) in addition from time to time following the receipt of a written request from Lessee, Gossamer Holdings, LLC will allow for the timely review by the Lessee’s independent public accountants of Gossamer Holdings, LLC source documents, excluding any and all tax records, returns, filings or other tax related documents, as may be reasonably required by Lessee’s independent public accountants, such as cash disbursements records or similar information, and will timely respond to reasonable inquiry or confirmation by Lessee’s independent public accountants related to such disclosures as described above (all such disclosures described in this sentence and the immediately preceding sentence, collectively, to be defined as the “ Lessor Financial Disclosures ”).  Lessor shall not have any liability to the Lessee or any other third party in connection with the Lessee’s use or non-use of any Lessor Financial Disclosures.  Lessee hereby, and as a condition of accepting receipt of any Lessor Financial Disclosures, releases the Lessor, the Members, and each of their respective officers, directors and employees from and against any and all claims, rights, actions, damages and liabilities of any kind, and waives any and all claims and rights to commence any action against such parties in connection with any Lessor Financial Disclosures.  The Lessee hereby acknowledges and agrees that the Lessor Financial Disclosures shall be deemed “Confidential Information” and Lessee shall comply with Section 22 as if all obligations of Lessor applied to Lessee mutatis mutandis with respect to such Lessor Financial Disclosures.  Lessee shall be responsible for any breach of any third-party confidentiality agreement.  Lessee expressly agrees that any damages, losses, liabilities and expenses (including attorneys’ fees and disbursements) that may be incurred by any Member or Lessor or any of their respective officers, directors and employees as a direct or indirect result of (i) the provision of any Lessor Financial Disclosures to the Lessee or (ii) any breach of this Section 5(h) by Lessee, shall each constitute an indemnifiable Claim under Section 15(a).

 

6.              DELIVERY, USE AND OPERATION

 

(a)            Lessee represents and warrants that the Equipment shall be in Lessee’s possession as of the Basic Term Commencement Date.

 

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(b)            Lessee agrees that the Equipment will be maintained and used by Lessee solely in the conduct of its business and in a manner complying with all Applicable Laws and the Insurance Requirements (including any applicable insurance policies required to be maintained in accordance therewith), and Lessee shall not permanently discontinue use of the Equipment (except as otherwise provided in Section 6(g)).

 

(c)            Lessee shall not create, incur, assume or suffer to exist, any Lien on or with respect to the Equipment or any part thereof, title thereto, or any interest of Lessor therein, or in this Agreement, except Permitted Liens.  Lessee will promptly, at its own expense, take or cause to be taken such action as may be necessary to discharge any Lien with respect to the Equipment which is not a Permitted Lien.

 

(d)            Lessee shall permit any Person designated by Lessor, during normal business hours upon reasonable notice to visit (and, unless a Default shall have occurred and be continuing, in no event more than quarterly), inspect and survey the Facility and the Equipment, its condition, use and operation, and the records maintained in connection therewith; provided , that no such exercise of such inspection rights shall violate Lessee’s reasonable and customary safety, security and confidentiality policies and procedures.  None of Lessor or any of its designees shall have any duty to make any such inspection and shall not incur any liability or obligation by reason of not making any such inspection.  The failure of any such party to object to any condition or procedure observed or observable in the course of an inspection hereunder shall not be deemed to waive or modify any of the terms of this Agreement with respect to such condition or procedure.

 

(e)            Lessee will keep all the Equipment at the Site specified in the Schedule and will not move the Equipment (or any component thereof) from the Site; provided that subject to the terms and conditions hereinafter set forth, Lessee shall be permitted to remove components as necessary and keep such components (i) at the location of a Vendor within the United States or other location in the United States for the sole purpose of repairing such components or (ii) at any other location for any other purpose with Lessor’s prior written consent.  Anything in the foregoing to the contrary notwithstanding, (i) upon the written request of Lessor, Lessee will notify Lessor forthwith in writing of the location of any Equipment as of the date of such notification, (ii) in no event shall any components be removed from the Site for a period of one (1) month or longer, whether for permitted inspection or repairs or for any other reason, unless Lessee gives Lessor prior notice of the same and  assists Lessor with the preparation and filing (prior to the expiration of such one (1) month period) of such instruments and documents as Lessor may deem reasonably necessary to preserve Lessor’s rights in such components.

 

(f)             The parties agree that the Equipment shall at all times remain personal property of Lessor regardless of the degree of its annexation to any real property and shall not by reason of any installation in, or affixation to, real or personal property become a part thereof.  Lessee shall obtain and deliver to Lessor (to be recorded at Lessee’s expense) from any Person having an interest in the property where the Equipment is to be located, waivers of any Lien, encumbrance or interest which such Person might have or hereafter obtain or claim with respect to the Equipment.

 

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(g)            Lessee (and not the Lessor) will be solely responsible for complying with all Applicable Laws and existing agreements in connection with the installation, use, possession and operation of the Equipment, and to obtain and maintain on its own behalf the Government Approvals required in accordance with such Applicable Laws and existing agreements. The Lessee (and not the Lessor) will be solely liable for any fines or penalties imposed by any Governmental Authority in connection with the foregoing.  Lessee shall have the right to contest and appeal all such fines and penalties, and Lessor will provide reasonable assistance and cooperation to Lessee in connection with the same.

 

(h)            Lessee shall (1) not use the Equipment for any purpose other than as provided herein, (2) be responsible for any damages caused to third parties by the use and/or operation of the Equipment and (3) cause the Equipment to not contain any Hazardous Substance, except for such Hazardous Substances used in the ordinary course of operation of the Equipment, provided the use of such Hazardous Substance complies with Environmental Laws.  Lessor may require Lessee, to conduct an Environmental Evaluation of the Site provided such Environmental Evaluation shall not be conducted more than once in any 18 month period except in the event of a Default.

 

(i)             Lessee shall at its own cost, defend the Equipment, as well as the rights of Lessor in the Equipment and the Site, from any third party claims and take all such actions that are necessary in connection with such defense.

 

(j)             From time to time at Lessee’s reasonable request and sole expense, Lessor will execute and deliver to Lessee promptly all applications, forms and other documents that must be executed by the owner of the Equipment or which are necessary for Lessee to pursue or enforce any warranty or other claim against any manufacturer or Vendor of the Equipment or to apply for or pursue any permit or other item described in subparagraph (g) above.

 

(k)            If an Adverse Environmental Condition is identified (other than a minor non-compliance or a de minimis and surficial Release to a non-pervious surface or to soil) at any time prior to the expiration or termination of this Agreement or in the event of a Default, Lessee, at its sole     cost and in compliance with Environmental Laws, shall promptly address, correct and remediate each identified Adverse Environmental Condition.  For noncompliance matters, Lessee shall promptly achieve compliance with Environmental Law unless Lessee is diligently contesting the noncompliance in good faith and prevails on the merits within 180 days of the condition being initially identified and after such 180 days only if the Lessee has established a reserve required by GAAP, and for the Release of or presence of Hazardous Substances in the environment (other than a de minimis and surficial Release to a non-pervious surface or to soil), Lessee shall remediate groundwater contamination to achieve federal Maximum Contaminant Levels (MCLs) and remediate soil contamination to achieve industrial cleanup standards (including the use of engineering and institutional controls solely for soil, provided such controls do not interfere with the operation of the Equipment, the Facility or the Site), and complete such remediation within 180 days of the condition being initially identified and after such 180 days, only if the Lessee has established a reserve for the condition required by GAAP.

 

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7.              MAINTENANCE

 

(a)            Lessee will, at its sole expense, maintain the Equipment in good operating order, repair, condition and appearance in accordance with manufacturer’s warranty requirements and in compliance in all material respects with any Applicable Law and in compliance with the Insurance Requirements, and standards consistent with and customary to industry practice, reasonable wear and tear excepted.  Lessee shall obtain, maintain in full force and effect and comply in all material respects with all Environmental Permits required to operate the Equipment.

 

(b)            Lessee shall from time to time make such alterations, additions and modifications to the Equipment as shall (i) be required to cause the Equipment to comply in all material respects with any Applicable Law and to comply with all Insurance Requirements, or (ii) be required to enable the Equipment to continue to be capable of operating at the capacity levels at which the Equipment was capable of operating as of the Basic Term Commencement Date, reasonable wear and tear excepted (each a “ Required Modification ”).  Lessee will not, without the prior consent of Lessor, affix or install any accessory, equipment or device on any Equipment if such addition will materially impair the originally intended function, use, useful life or ability to operate of such Equipment or materially impair the value or residual value of such Equipment, unless required by Applicable Law.  Each Required Modification shall become the property of Lessor and part of the Equipment free and clear of all Liens except Permitted Liens.  Lessee will not, without the prior written consent of Lessor and subject to such conditions as Lessor may reasonably impose for its protection, affix or install any Equipment (or any component thereof) to, or in, any other personal or real property of a third party (other than as permitted under Section 6(e)).

 

(c)            Lessee at any time may alter, modify or make additions to the Equipment (any such alteration, modification or addition which is not a Required Modification is an optional modification (“ Optional Modification ”)).  No Optional Modification shall (i) diminish the fair market value, utility, condition, remaining economic useful life, or estimated residual value of the Equipment below the fair market value, utility, condition, remaining economic useful life, or estimated residual value immediately prior to the completion of such Optional Modification, (ii) cause the Equipment or any portion thereof to become “limited use property” within the meaning of Revenue Procedures 2001-28 and 2001-29, (iii) otherwise result in an adverse tax consequence to Lessor or any Member, or (iv) alter the function of the Equipment or any portion thereof from that for which it was designed and intended.  Title to any Optional Modification which is a Non-Severable Modification shall be (at no cost to Lessor) immediately vested in Lessor and shall automatically become part of the Equipment and become subject to this Lease and the other Operative Documents for all purposes.  Title to any Optional Modification which is a Severable Modification shall remain with Lessee, and Lessor shall have no interest in such Optional Modification.  During the Basic Term or at the return of the Equipment, Lessee may remove or replace any Optional Modification which is a Severable Modification.  If Lessee, at its cost, shall complete any Severable Modifications which are Optional Modifications, and such Severable Modifications theretofore made have not been removed at the end of the Basic Term or at the return of the Equipment, or within 30 days thereafter, title to such Severable Modifications shall pass to Lessor at no cost to Lessor.  During such 30-day period, Lessor will give Lessee and its contractors reasonable access to the Equipment to remove such Optional Modification and to repair any resulting damage as provided in this Agreement as long as they agree to comply with Lessor’s reasonable and

 

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customary safety, security and confidentiality policies and procedures.  Notwithstanding anything to the contrary set forth in this Agreement, Lessor will not be in breach of its confidentiality obligations under this Agreement for allowing third parties to have access to the Equipment that includes an Optional Modification which is a Severable Modification.

 

(d)            Any Required Modification shall be made at the expense of Lessee, shall be free and clear of all Liens (other than Permitted Liens), and shall immediately become the property of Lessor.

 

8.              CASUALTY OCCURRENCE.

 

Lessee shall promptly notify Lessor in writing if the Equipment (i) suffers damage or destruction resulting in an insurance settlement on the basis of actual, constructive or compromised total loss; (ii) suffers destruction or damage beyond repair; or (iii) becomes lost, stolen, destroyed or suffers damage, which in the reasonable determination of Lessor, makes repair uneconomic or renders the Equipment permanently unfit for use from any cause whatsoever (including an Adverse Environmental Condition) (such occurrences being hereinafter called “ Casualty Occurrences ”).  The parties hereby acknowledge and agree that all of the Equipment shall be under Lessee’s care and attention at all times, and that Lessee shall maintain and use the Equipment in accordance with the terms of this Agreement, and therefore, Lessee shall be responsible for any Casualty Occurrence.  Unless otherwise expressly provided for in Section 10(g) hereof, if any of the events set forth in the proviso to clause (ii) of Section 10(g) have occurred, on the date set forth on Annex C to the Schedule during the first month next succeeding a Casualty Occurrence, or if such date is not a Business Day, then on the next day that is a Business Day (the “ Payment Date ”), Lessee shall pay Lessor the sum of (x) the Stipulated Loss Value of all Equipment calculated in accordance with Annex C of the Schedule; and (y) all Rent (including Basic Term Rent scheduled to be paid on such Payment Date) and other amounts which are due hereunder with respect to the Equipment as of the Payment Date; provided that Lessee shall not be required to make any payment in respect of a Casualty Occurrence if (A) the Equipment affected by such Casualty Occurrence is not necessary to enable the Equipment to continue to be capable of operating at the capacity levels at which the Equipment was capable of operating as of the Basic Term Commencement Date with respect to the Equipment covered by the Schedule (reasonable wear and tear excepted) and (B) the failure to repair or replace such Equipment does not diminish the value, utility or remaining useful life of the Equipment which remains subject to this Agreement from the value, utility and remaining useful life of all Equipment subject to this Agreement immediately prior to such Casualty Occurrence.  Upon payment of all sums due hereunder, the obligation of Lessee to pay Rent and the Term of this Agreement as to the Equipment shall terminate, and (except in the case of the loss, theft or complete destruction of the Equipment ) Lessee may elect (by giving Lessor written notice) to receive from Lessor title to the Equipment, on an AS IS, WHERE IS BASIS, free and clear of all Lessor’s Liens; provided that if Lessee elects to take title to the Equipment (in-place and in-use) and the Fair Market Value of the Equipment is greater than the applicable Stipulated Loss Value, then Lessee will pay Lessor as additional purchase price the amount by which such Fair Market Value exceeds such Stipulated Loss Value.  Lessor shall apply any insurance proceeds received pursuant to any insurance policies maintained by the Lessee to the payment of Lessee’s obligations under this Section 8, and Lessee shall be entitled to receive any such insurance proceeds in excess of the proceeds necessary to pay Lessor the amounts due under this

 

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Section 8.  Any other amounts received by Lessor or Lessee with respect to such Casualty Occurrence from any Governmental Authority or other Person shall be divided between the Lessee and Lessor as their interests appear.

 

9.              LOSS OR DAMAGE

 

Lessee hereby assumes and shall bear the entire responsibility for any loss, theft, damage to, or destruction of the Equipment from any cause whatsoever, in accordance with the terms of this Agreement; provided, however , that if, and so long as, no Default exists under this Agreement, the foregoing shall not limit or otherwise affect any rights the Lessee may have against third parties.

 

10.           INSURANCE

 

(a)            Coverage .  Without limiting any of the other obligations or liabilities of Lessee under this Agreement, Lessee shall, during the term of this Agreement, carry and maintain, with respect to the Equipment, at its own expense, at least the minimum insurance coverage set forth in this Section 10.  Lessee shall also carry and maintain any other insurance that Lessor may reasonably require from time to time.  All insurance carried pursuant to this Section 10 shall be placed with such insurers having a minimum A.M. Best rating of A:X, with terms, conditions and limits as shall be acceptable to Lessor.  The insurance required to be carried and maintained by Lessee hereunder shall in all events, include the following:

 

(i)             All Risk Property Insurance .  Lessee shall maintain all risk property insurance covering the Equipment against all risks of physical loss or damage, including but not limited to fire and extended coverage, collapse, flood, earth movement and comprehensive boiler and machinery coverage (including but not limited to electrical malfunction and mechanical breakdown).  Coverage shall be written in the greater of the then current Stipulated Loss Value or replacement cost value in an amount reasonably acceptable to Lessor.  Such insurance policy shall contain an agreed amount endorsement waiving any coinsurance penalty and shall include expediting expense coverage in an amount not less than $1,000,000; and

 

(ii)            Business Interruption Insurance .  As an extension of the insurance required under subsection (a)(i), Lessee shall maintain, or cause to be maintained, business interruption insurance in an agreed amount equal to 12 months gross profit or gross earnings until the production is restored.  Deductibles shall not exceed $250,000; and

 

(iii)           Commercial General Liability Insurance .  Lessee shall maintain comprehensive general liability insurance written on an occurrence basis with a limit of not less than $1,000,000 each occurrence, $2,000,000 Products & Completed Operations Aggregate and $2,000,000 General Aggregate.  Such coverage shall include, but not be limited to, premises/operations, broad form contractual liability, independent contractors, products/completed operations, property damage and personal injury liability.  Such insurance shall be written on form ISO CGL 00 01 12 07 (or its equivalent) and shall not contain an exclusion for punitive or exemplary damages where insurable by law; and

 

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(iv)           Workers’ Compensation/Employer’s Liability .  The Lessee shall maintain (A) workers’ compensation insurance or any other statutory insurance required by Applicable Law with respect to work-related injuries, disease or death of any employee of Lessee while at work or in the scope of his/her employment with the Lessee and (B) Employer’s Liability in an amount not less than $1,000,000 each accident, each employee; and

 

(v)            Excess/Umbrella Liability .  Lessee shall maintain excess or umbrella liability insurance written on an occurrence basis in an amount not less than $100,000,000 General Aggregate providing coverage limits excess of the insurance limits required under sections (a)(iii), and (a)(iv) employer’s liability only.  Such insurance shall follow the form of the primary insurances and drop down in case of exhaustion of underlying limits and/or aggregates.  Such insurance shall not contain an exclusion for punitive or exemplary damages where insurable under law.

 

(b)            Waiver of Subrogation .  Lessee and its insurers waives its right to subrogate against Lessor and its insurers for all policies Lessee is required to carry and maintain.

 

(c)            Endorsements .  Lessee shall cause all insurance policies carried and maintained in accordance with this Section 10 to be endorsed as follows:

 

(i)             Lessee shall be the named insured and loss payee and Lessor shall be an additional insured and lender loss payee as its interest may appear with respect to the Equipment covered by property policies described in subsection (a)(i) and (a)(ii).  Lessee shall be the named insured and Lessor shall be named as an additional insured with respect to liability policies described in subsections (a)(iii), (a)(iv) to the extent allowed by law and (a)(v).  It shall be understood that any obligation imposed upon Lessee, including but not limited to the obligation to pay premiums, shall be the sole obligation of Lessee and not that of Lessor; and

 

(ii)            With respect to property policies described in subsections (a)(i) and (a)(ii), the interests of Lessor shall not be invalidated by any action or inaction of Lessee, any Guarantor or any other Person, and shall insure Lessor regardless of any breach or violation by Lessee or any other Person, of any warranties, declarations or conditions of such policies; and

 

(iii)           Inasmuch as the liability policies are written to cover more than one insured, all terms conditions, insuring agreements and endorsements, with the exception of the limits of liability, shall operate in the same manner as if there were a separate policy covering each insured; and

 

(iv)           The insurers thereunder shall waive all rights of subrogation against Lessor any right of setoff or counterclaim and any other right to deduction, whether by attachment or otherwise; and

 

(v)            Such insurance shall be primary without right of contribution of any other insurance carried by or on behalf of Lessor with respect to their interests as such in the Equipment; and

 

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(vi)           If such insurance is canceled for any reason whatsoever, including nonpayment of premium, or any changes are initiated by Lessee or the carrier which affects the interests of Lessor, such cancellation or change shall not be effective as to Lessor until 30 days, except for (non-payment of premium which shall be 10 days) after receipt by Lessor of written notice sent by registered mail from such insurer.

 

(d)            Certifications .  On the Basic Term Commencement Date with respect to the Equipment leased as of such date, and at each policy renewal, but not less than annually with respect to all Equipment then leased, Lessee shall provide to Lessor a certification and endorsement from each insurer or by an authorized representative of each insurer.  Such certification and endorsement shall identify the companies affording coverage, the type of insurance, the policy period(s), policy numbers, limits, and term thereof and shall specifically list the special provisions delineated for such insurance required for this Section 10.

 

(e)            Insurance Report .  Concurrently with the furnishing of all certificates referred to in this Section 10, Lessee shall furnish Lessor with a statement from Lessee’s independent insurance broker stating that all premiums then due have been paid and that, in the opinion of such broker, the insurance then maintained by Lessee is in accordance with this Section 10.  Furthermore, upon its first knowledge, such broker shall advise Lessor promptly in writing of any default in the payment of any premiums or any other act or omission, on the part of any person, which might invalidate or render unenforceable, in whole or in part, any insurance provided by Lessee and/or user hereunder.

 

(f)             General .  Upon request, Lessee shall furnish Lessor with copies of all insurance policies, binders and cover notes or other evidence of such insurance.  Notwithstanding anything to the contrary herein, no provision of this Section 10 or any provision of this Agreement shall impose on Lessor any duty or obligation to verify the existence or adequacy of the insurance coverage maintained by Lessee, nor shall Lessor be responsible for any representations or warranties made by or on behalf of Lessee to any insurance broker, company or underwriter.  Lessor, at its sole option, may obtain such insurance if not provided by Lessee and in such event, Lessee shall reimburse Lessor upon demand for the cost thereof together with interest.

 

(g)            Proceeds of Insurance .  Insurance proceeds shall be applied as follows:

 

(i)             If the Lessee believes that, based on reasonable estimates of loss, the amount of insurance proceeds payable in respect of any casualty event or any series of related casualty events to be less than or equal to $500,000, the Lessee may elect to restore or replace the property affected by such casualty event without the consent of the Lessor so long as no Default shall have occurred and be continuing.

 

(ii)            If the Lessee believes that, based on reasonable estimates of loss, the amount of insurance proceeds payable in respect of any casualty event or any series of related casualty events to be in excess of $500,000, the Lessee may elect to restore or replace the property affected by such casualty event if the Lessee has delivered to the Lessor, within twenty (20) days from the occurrence of such casualty event, a Restoration or Replacement Plan with respect to such casualty that is based upon, or accompanied by,

 

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each of the following:  (A) (1) a detailed breakdown of the nature and extent of such casualty event and (2) a bona fide assessment (from a contractor reasonably acceptable to the Lessor) of the estimated cost and time needed to restore or replace the affected property; (B) satisfactory evidence that such insurance proceeds and the Lessee’s other available funds are sufficient to make the necessary restorations to or replacement of the affected property; (C) delivery of an officer’s certificate of the Lessee certifying that, at the completion of the restoration or replacement, no Default shall have occurred and be continuing in connection with such casualty event; and (D) confirmation by the Engineering Consultant, of its agreement based on the information available to it with the matters set forth in clauses (A) through (B) above within twenty (20) days after the receipt of the foregoing information and its approval of such Restoration or Replacement Plan; provided, that, if the Lessee does not deliver such Restoration or Replacement Plan within such 20-day period or if the Lessor or the Engineering Consultant provides written notice to Lessee that it rejects the Restoration or Replacement Plan, and following consultation by the Lessee with the Lessor or the Engineering Consultant regarding any proposal by Lessee to modify the Restoration or Replacement Plan but within 20 days after Lessee has received such initial written rejection notice, the Lessor or the Engineering Consultant provides written notice to Lessee that it has rejected Lessee’s modified Restoration or Replacement Plan, the Lessee shall promptly pay, or cause to be paid, proceeds of any insurance to Lessor, as loss payee, which shall be applied, in Lessor’s discretion, toward the replacement, restoration or repair of the Equipment to the condition required by Section 7 or toward the payment of Stipulated Loss Value in accordance with Section 8 hereof.

 

(iii)           If a Default shall have occurred and be continuing, then Lessee shall remit to Lessor, as loss payee, proceeds of any insurance covering damage or loss which proceeds shall be applied, in Lessor’s discretion, to replacement, restoration or repair of the Equipment to the condition required by Section 7 or toward the payment of Stipulated Loss Value in accordance with Section 8.

 

11.           RETURN OF EQUIPMENT

 

(a)            Upon any expiration or termination of this Agreement or the Schedule, Lessee shall promptly, at its own cost and expense comply with the obligations set forth Section 11(c) below and shall: (i) perform any testing and repairs required to place the Equipment in substantially the same condition as when received by Lessee and in good working order for its originally intended purpose (reasonable wear and tear excepted), and (ii) tender the Equipment to Lessor at the Facility, free and clear of all Liens other than Lessor’s Liens.

 

(b)            Until Lessee has fully complied with the requirements of Section 11(a) above, Lessee’s Rent payment obligation with respect to Equipment for which Lessee has not complied and all other obligations under this Agreement shall continue from month-to-month notwithstanding any expiration or termination of the Basic Term provided that the Rent payable for the Equipment shall be the higher of (A) the then Fair Market Rental Value, and (B) the monthly average Rent payable over the Basic Term.  Lessor may terminate such continued leasehold interest upon ten (10) days prior written notice to Lessee.  In addition to

 

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these rents, Lessor shall have all of its other rights and remedies available as a result of this non-performance.

 

(c)            (i) Upon written notice from Lessor not less than two hundred seventy (270) days prior to the expiration of this Agreement, Lessee shall no later than two hundred ten (210) days prior to the expiration of this Agreement (or as promptly as practicable following the earlier termination of this Agreement):

 

(1)  provide a detailed inventory of the Equipment (including the model and serial number of each major component thereof), including, without limitation, all accessories and features;

 

(2)  provide a complete and current set of  all manuals, blue prints, process flow diagrams, equipment configuration diagrams, maintenance records and other data reasonably requested by Lessor concerning the configuration and operation of the Equipment and of all Required Modifications and of all Optional Modifications that are Non-Severable Modifications, but always excluding any of the foregoing concerning any Optional Modifications that are Severable Modifications or any Proprietary Information, in each case subject to Section 7(c) above; and

 

(3)  provide a certification of the manufacturer or of a maintenance provider acceptable to Lessor that the Equipment (a) has been tested and is operating in accordance with manufacturer’s specifications (reasonable wear and tear excepted), together with a report detailing the condition of the Equipment, the results of such test(s) and inspection(s) and all repairs that were performed as a result of such test(s) and inspection(s) and (b) if applicable, that the Equipment qualifies for the manufacturer’s used equipment maintenance program; provided that Lessee shall not be required to spend or pay any additional amount to qualify the Equipment for any such program.

 

(ii)  at least three hundred sixty-five (365) days prior to expiration of this Agreement (or as promptly as practicable following the earlier termination of this Agreement), upon receiving reasonable written notice from Lessor, make the Equipment available for on-site operational inspections by potential purchasers (which may include competitors of PGI or any of its Subsidiaries or Affiliates), under power, and provide personnel, power and other requirements necessary to demonstrate electrical, mechanical and hydraulic systems for the Equipment; provided that no inspection shall violate Lessee’s reasonable and customary safety, security and confidentiality policies and procedures;

 

(iii)  with respect to any Equipment which has been modified by Lessee, except with respect to any Optional Modifications which are Severable Modifications that Lessee intends to remove prior to return, furnish to Lessor a listing of no less than three (3) (if available) alternative suppliers of replacement parts and other materials necessary for the prolonged operation of the Equipment;

 

(iv)  have all Equipment cleaned and treated, at least 14 days prior to return of the Equipment, with respect to Hazardous Substances, rust, corrosion and appearance in accordance with manufacturer’s recommendations and consistent with commercially reasonable

 

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practices of dealers in used equipment similar to the Equipment (provided that Lessee may leave Hazardous Substances specified by the manufacturer as necessary to maintain or operate the Equipment provided no Hazardous Substance is leaking from the Equipment); have all Lessee installed markings or labels which are not necessary for the operation, maintenance or repair of the Equipment removed; and cause the Equipment to be in compliance in all material respects with all Applicable Laws;

 

(v) at Lessor’s choice, either (1) allow Lessor, at Lessor’s expense, and provided that Lessor has given reasonable notice to Lessee, arrange for an on-site auction of the Equipment in an assembled and functional state, any such auction will be conducted in a manner which will not unreasonably interfere with Lessee’s business operations and in accordance with Lessee’s reasonable and customary safety, security and confidentiality policies and procedures, or (2) tender the Equipment to the Lessor at the Facility;

 

(vi) allow Lessor, at Lessee’s expense, to conduct an Environmental Evaluation with respect to the Site or the Facility at least 120 days prior to the return of the Equipment, demonstrating there are no Adverse Environmental Conditions (other than a de minimis and surficial Release to a non-pervious surface) associated with the Site or the Facility. If an Adverse Environmental Condition is identified (other than a de minimis and surficial Release to a non-pervious surface), Lessee, at its sole cost and in compliance with Environmental Laws, shall promptly address, correct and remediate each identified Adverse Environmental Condition. For noncompliance matters, Lessee shall promptly achieve compliance with Environmental Law unless Lessee is diligently contesting the noncompliance in good faith and has established a reserve required by GAAP, and for the Release of or presence of Hazardous Substances in the environment (other than a de minimis and surficial Release to a non-pervious surface), Lessee shall remediate groundwater contamination to achieve federal Maximum Contaminant Levels (MCLs) and remediate soil contamination to achieve industrial cleanup standards (including the use of engineering and institutional controls solely for soil, provided such controls do not interfere with the operation or return of the Equipment, or the operation of the Facility or the Site), and complete such remediation within 180 days of the condition being identified and after such 180 days only if Lessee has established a reserve for the condition required under GAAP;

 

(vii) at the request of Lessor and to the extent permissible under Applicable Law, assign, transfer, or furnish, or cause to be assigned, transferred, furnished, or re-issued, to Lessor or its designee, Lessee’s rights and interest in, to and under all permits (including Environmental Permits), certificates, licenses, approvals, Included IP, intellectual property, and similar rights which are necessary or reasonably desirable for the operation of the Equipment (other than the Proprietary Information);

 

(viii) Lessee shall provide to Lessor copies of all permits, licenses, certificates and consents required to evidence compliance with Lessee’s obligations under clause (vii) above to allow the Equipment to continue to be operated at the capacity levels at which the Equipment was capable of being operated as of the Basic Term Commencement Date; and

 

(ix)       After expiration of the Basic Term the Lessee shall make available key employee’s (chief engineer & operators) to aid the Lessor in the selling of the Equipment for a

 

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period of up to 720 days.  During such period the Lessee shall make available the Equipment for on-site operational inspections by potential purchasers, under power, and provide personnel, power and other requirements necessary to demonstrate electrical, mechanical and hydraulic systems for the Equipment, subject to and in compliance with Lessee’s reasonable and customary safety, security and confidentiality policies and procedures.

 

(d)            Notwithstanding any other provision of this Agreement (other than Section 7(c) above), (i) no Proprietary Information will become the property of Lessor and (ii) all Proprietary Information will always remain the property of Lessee (or its customers or suppliers, as the case may be).

 

12.           DEFAULT; REMEDIES

 

(a)            Lessor may in writing to Lessee declare this Agreement in default (“ Default ”) if:

 

(i)             Lessee breaches its obligation to pay Rent or any other sum as and when due and fails to cure the breach within 5 Business Days after the date such amount was due;

 

(ii)            Lessee fails to maintain its insurance coverage required under Section 10;

 

(iii)           Lessee breaches its covenants set forth in Section 17(b)(xii) of this Agreement;

 

(iv)           Lessee breaches any of its other covenants or obligations set forth in this Agreement (excluding those covenants and obligations covered by clauses (i), (ii) and (iii) above and clauses (v), (vi), (vii), (xi), (xv), (xxi) and (xxii) below) and Lessee fails to cure such breach within 30 days after written notice thereof;

 

(v)            any representation or warranty made by Lessee, any Guarantor and/or its Subsidiaries or Affiliates in connection with any Operative Document or Document shall be false or misleading in any material respect when made;

 

(vi)           Lessee shall or shall attempt to (except as expressly permitted by the provisions of this Agreement) sell, transfer, encumber (except to the extent of a Permitted Lien), or assign the Equipment or any part thereof, or use the Equipment for an illegal purpose or permit the same to occur;

 

(vii)          any certificate, statement, representation, warranty or audit contained herein or heretofore or hereafter furnished in writing with respect hereto by or on behalf of Lessee or any Guarantor proving to have been false in any material respect when made;

 

(viii)         Lessee or PGI admits in writing its inability to pay its debts as they become due, terminates its corporate existence, or ceases to do business as a going concern;

 

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(ix)           Lessee or any Guarantor shall file a voluntary petition in bankruptcy or a voluntary petition or an answer seeking reorganization in a proceeding under any bankruptcy or receivership laws (as now or hereafter in effect) or an answer admitting the material allegations of a petition filed against Lessee or any Guarantor in any such proceeding, or Lessee or any Guarantor shall, by voluntary petition, answer or consent, seek relief under the provisions of any other now existing or future bankruptcy, receivership or other similar law providing for the reorganization or liquidation of corporations, or providing for an agreement, composition, extension or adjustment with its creditors;

 

(x)            petition is filed against Lessee or any Guarantor in a proceeding under applicable bankruptcy, receivership or other insolvency laws, as now or hereafter in effect, and is not withdrawn, stayed or dismissed within 45 days thereafter, or if, under the provisions of any law providing for reorganization or liquidation of corporations which may apply to Lessee or any Guarantor any court of competent jurisdiction shall assume jurisdiction, custody or control of Lessee or any Guarantor or of any substantial part of their property, and such jurisdiction, custody or control shall remain in force unrelinquished, unstayed or unterminated for a period of 45 days;

 

(xi)           (1) any dissolution or termination of existence of the Lessee or any Guarantor, (2) any Person other than MatlinPatterson shall own, collectively, on a fully-diluted basis, more than 50% of the aggregate shares of voting capital stock of PGI or (3) any merger or consolidation of the Lessee or any Guarantor or either the Lessee or any Guarantor sells or leases all, or substantially all, of its assets;

 

(xii)          there occurs (a) an Event of Default (as defined in the Credit Agreement) under the Credit Agreement (after giving effect to all notice and cure periods), (b) a default by any Guarantor under the Guaranty, (c) a Construction Agency Event of Default under the CAA or (d) a breach by the Lessee or any of the Guarantors under any other Operative Document any of which has not been duly waived or cured thereunder;

 

(xiii)         there occurs a default beyond any applicable grace periods under (A) any of Lessee’s or any Guarantor’s or any of Lessee’s or any Guarantor’s Affiliate’s other agreements with Lessor (or any Member or Affiliate of such Member) under which Lessee or any Guarantor or any Affiliate of any of them owes Lessor (or any Member or Affiliate of such Member) $500,000 or more at the time of such default or (B) any contract or agreement that could reasonably be expected to materially and adversely affect the operation or value of the Equipment or result in a Material Adverse Effect;

 

(xiv)         there occurs a default under any of Lessee’s or under any Guarantor’s credit agreements or financing facilities or similar arrangements (i) with Persons other than Lessor (or any Member or Affiliate of such Member) or (ii) with Lessor (or any Member or any Affiliate of such Member) under which Lessor (or any Member or any Affiliate of such Member) does not have the right to direct or control the exercise of remedies, under which, in each case, any indebtedness equal to or exceeding an aggregate principal amount of $10,000,000 or more was created or is governed thereby which has not been duly waived or cured thereunder;

 

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(xv)          PGI shall no longer, directly or indirectly, control 100% of the equity interests in Lessee or any successor entity;

 

(xvi)         Lessee shall fail to maintain or replace any Acceptable Letter of Credit in accordance with Section 17(b)(viii) of this Agreement;

 

(xvii)        any Acceptable Letter of Credit shall cease to be binding on the provider thereof, shall be rendered unenforceable in any material respect, shall not have been renewed or replaced within 30 days before its expiry, or any such provider thereof shall expressly renounce or repudiate in writing its obligations thereunder (unless such Acceptable Letter of Credit has been replaced by a replacement Acceptable Letter of Credit);

 

(xviii)       if, at any time the Guaranty ceases to constitute a valid, legal and binding agreement, enforceable against any Guarantor or such Guaranty is otherwise the directly or indirectly contested by any Guarantor or any Affiliate thereof;

 

(xix)         the direct or indirect contest by the Lessee of the validity of the Lien granted in favor of, or for the benefit of, Lessor in any of the Operative Documents, or the taking of any action by the Lessee to repudiate, or purport to discontinue or terminate this Agreement or any of the other Operative Documents;

 

(xx)          if this Agreement or any of the other Operative Documents shall cease (1) to be a legal, valid and binding obligation, or (2) to be in full force and effect;

 

(xxi)         Lessee breaches its covenants in Section 6(k) or 11(c)(vi) of this Agreement;

 

(xxii)        Lessee fails to maintain material compliance with or incurs material liability under Environmental Laws or Environmental Permits, including any Governmental Approval issued under Environmental Laws, in each case with respect to the Site or the Facility;

 

(xxiii)       any Claim against any Indemnified Party in respect of any Environmental Loss or Taxes (other than Excluded Taxes) arises out of or relates to a Default under Section 12(a)(iv) if such Default results from Lessee’s failure to provide audited financial statements within the designated time period in accordance with Section 5(b);

 

(xxiv)      any Claim against any Indemnified Party in respect of any Environmental Loss or Taxes (other than Excluded Taxes) arises out of or relates to a Default under Section 12(a)(xi)(2) or Section 12(a)(xi)(3);

 

(xxv)       any Claim against any Indemnified Party in respect of any Environmental Loss or Taxes (other than Excluded Taxes) arises out of or relates to a Default under Section 12(a)(xii)(a) other than as a result of a payment default; or

 

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(xxvi)      any Claim against any Indemnified Party in respect of any Environmental Loss or Taxes (other than Excluded Taxes) arises out of or relates to a Default under Section 12(a)(xiii) other than as a result of a payment default thereunder.

 

(b)            After any Default shall have occurred:

 

(i)             at the request of Lessor, Lessee shall comply with the provisions of Section 11(a) hereof;

 

(ii)            Lessee hereby authorizes Lessor to enter any premises where the Facility or any Equipment is located and take possession thereof;

 

(iii)           (1)  Provided that Lessor has not exercised remedies under Section 12(b)(iii)(2), Lessee shall, without further demand, forthwith pay to Lessor (A) the Stipulated Loss Value of the Equipment (calculated in accordance with Annex C of the Schedule as of the Payment Date next preceding the declaration of default), plus (B) an amount equal to all Rent (including Basic Term Rent), all applicable taxes and other sums then due hereunder; provided , that for the avoidance of doubt, such Rent and other sums shall be the unaccelerated amounts due as of such date. If Lessee shall have made the foregoing payments indefeasibly in full, Lessor shall thereafter pay over to Lessee as and when from time to time received, the net proceeds of any sale, lease or other disposition of such Equipment (after deducting all costs and expenses whatsoever incurred by Lessor or any Member in connection therewith and all other amounts which may become payable by Lessor or any Member with respect thereto) up to the amount of such Stipulated Loss Value actually paid by Lessee.

 

(2)            In lieu of exercising its rights under Section 12(b)(iii)(1), Lessor may by written notice to Lessee specifying a Payment Date which is not earlier than 10 days after the date of such notice, demand that Lessee pay to Lessor and Lessee shall pay to Lessor, on such Payment Date, in lieu of all Rent due after such Payment Date, an amount equal to the excess, if any, of the Stipulated Loss Value of the Equipment computed as of the Payment Date specified in the notice over the Fair Market Value thereof as of such Payment Date.

 

(iv)           Lessor may, but shall not be required to, retain an Environmental Consultant to undertake an Environmental Evaluation of the Site at Lessee’s expense; and

 

(v)            Lessor may, but shall not be required to, sell the Equipment, or any portion thereof, at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale; or Lessor may, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment; and Lessor may use the Facility pursuant to the Site Lease, until all amounts due hereunder have been paid, for any or all of the foregoing without liability for rent.  The proceeds of sale, lease or other disposition, if any, together with the aggregate proceeds obtained by Lessor from one or more drawings under an Acceptable Letter of Credit made pursuant to Section 12(c), shall be applied in the following order of priorities: (A)  first , to pay all of Lessor’s costs, charges and expenses incurred in taking, removing, holding, repairing and

 

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selling, leasing or otherwise disposing of the Equipment; then , (B)  second , to the extent not previously paid by Lessee, to pay Lessor all amounts due from Lessee hereunder; then , (C)  third , to reimburse to Lessee any sums previously paid by Lessee to Lessor pursuant to Section 12(b); then , (D)  fourth , to reimburse to Lessee any sums obtained by Lessor from one or more drawings under an Acceptable Letter of Credit pursuant to Section 12(c) in excess of application of such sums against any amounts due to Lessor from Lessee hereunder (including any application of such sums to the payment of contractual penalties); and (E)  fifth , any surplus shall be retained by Lessor.  Lessee shall pay any deficiency in clauses (A) and (B) forthwith.

 

(c)            In addition to any other rights set forth in this Section 12 but subject to Section 12(b)(iii), after a Default shall have occurred, and without limitation of any of the foregoing remedies, Lessor (i) may terminate or cancel this Agreement as to any or all of the Equipment; (ii) shall be entitled to make a drawing under any Acceptable Letter of Credit for the maximum amount available thereunder and apply the proceeds thereof to satisfy Lessee’s obligations hereunder and under the other Documents; or (iii) may exercise all rights and remedies as a secured party under the UCC with respect to the Security Deposit, including the right to collect, receive, appropriate and realize upon the Security Deposit and apply the proceeds thereof to satisfy Lessee’s obligations hereunder and under the other Documents.

 

(d)            The foregoing remedies are cumulative, and any or all thereof may be exercised in lieu of or in addition to each other or any remedies at law.  If permitted by Applicable Laws, Lessee shall pay reasonable attorneys’ fees actually incurred by Lessor or any Member in enforcing the provisions of this Agreement and any ancillary documents.  Waiver of any Default shall not be a waiver of any other or subsequent default.

 

(e)            Notwithstanding any other provision set forth in this Agreement, if (w) a Default shall have occurred solely as a result of an event or events set forth in Section 12(a)(iii), (x) such Default is not caused by the Lessee for the purpose of obtaining this right to obtain title to the Equipment, (y) Lessor shall have declared such Default and pursued remedies as set forth herein, and (z) as a result thereof Lessee shall have paid (and Lessor shall have received) (A) the Stipulated Loss Value of the Equipment (calculated in accordance with Annex C of the Schedule as of the Payment Date next preceding the declaration of default), plus (B) an amount equal to all Rent (including Basic Term Rent), all applicable taxes and other sums then due hereunder; provided , that for the avoidance of doubt, such Rent and other sums shall be the unaccelerated amounts due as of such date, then Lessor shall convey to Lessee title to the Equipment on an AS IS, WHERE IS BASIS, free and clear of all Lessor’s Liens, provided that if the Fair Market Value of the Equipment (in-place and in-use) is greater than the Stipulated Loss Value as of the Payment Date next preceding the declaration of Default, then Lessee will pay Lessor as additional purchase price the amount by which such Fair Market Value exceeds such Stipulated Loss Value; provided further, however, that Lessee’s right to obtain title in the limited circumstances set forth in this clause (e) shall not apply with respect to any Default described in any other clause or clauses of Section 12(a).

 

(f)             Notwithstanding any other provision set forth in this Agreement or the Security Deposit Pledge Agreement, if a Default shall have occurred solely with respect to (i) Section 12(a)(iv) if such Default results from Lessee’s failure to provide audited financial statements

 

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within the designated time period in accordance with Section 5(b); (ii) Section 12(a)(xi)(2) or Section 12(a)(xi)(3); (iii) Section 12(a)(xii)(a) other than as a result of a payment default; (iv) Section 12(a)(xiii) other than as a result of a payment default thereunder (each of the foregoing, a “ Limited Remedy Event of Default ”), if and only if Lessor has elected to exercise remedies under this Section 12(f) and so long as no other Default (other than any other Limited Remedy Event of Default) has occurred and is continuing, then the Lessee shall, upon demand by Lessor, pay to Lessor an amount (the “ Special SLV Amount ”) such that the sum of (A) the present value of all Basic Term Rent paid through the date such Special SLV Amount is paid, plus (B) (1) the present value of the Lessee’s cost for obtaining an Acceptable Letter of Credit with a stated amount equal to the Required Amount to be delivered at the Basic Term Commencement Date paid through the date such Special SLV Amount is paid, plus (2) the Security Deposit as of the Basic Term Commencement date minus the present value of the Security Deposit as of the day such Special SLV Amount is paid, plus (C) the present value of the Special SLV Amount, will equal 89.95% of Equipment Cost.  The actual Special SLV Amount required to be paid by the Lessee to the Lessor pursuant to this Section 12(f) shall be reduced by the amount of proceeds of the Security Deposit and/or proceeds of any Acceptable Letter of Credit that have been applied by the Lessor against the Special SLV Amount (as determined in accordance with the immediately preceding sentence).  If and only if Lessor has elected to exercise remedies under this Section 12(f) and has demanded payment of the Special SLV Amount, the only amount payable by the Lessee solely in respect of any Limited Remedy Event of Default shall be the Special SLV Amount.  Notwithstanding the foregoing provisions set forth in this Section 12(f), this Section 12(f) shall not limit in any respect (1) Lessor’s rights and remedies in connection with any Default other than a Limited Remedy Event of Default, including any and all rights and remedies relating to Lessee’s failure to pay such Special SLV Amount or to comply with any other provisions of this Agreement which failure occurs either before or after the occurrence of such Limited Remedy Event of Default and (2) any of Lessee’s obligations under Section 4 and Section 15; provided that, if and only if Lessor has elected to exercise remedies under this Section 12(f), Lessor shall not be entitled to recover any damages under Section 4 or Section 15 incurred by Lessor solely in respect of a Limited Remedy Event of Default to the extent that the aggregate amounts of any such recoveries plus any other amounts paid by Lessee under this Section 12(f) exceeds the Special SLV Amount.  All present value calculations required to be made under this Section 12(f) shall use a discount rate equal to the Discount Rate.   Notwithstanding anything to the contrary set forth in this Section 12(f), unless Lessor elects to exercise remedies under this Section 12(f), none of the limitations set forth in this Section 12(f) on Lessor’s rights, remedies and indemnities shall be effective.

 

(g)            Unless previously terminated, upon payment of all amounts due hereunder and satisfaction of all other obligations hereunder, this Agreement shall terminate and Lessor shall pay any balance of the Security Deposit to Lessee promptly and release any further interest in any Acceptable Letter of Credit.

 

13.           ASSIGNMENT; SYNDICATION

 

(a)            LESSEE SHALL NOT ASSIGN, MORTGAGE, SUBLET OR CREATE ANY TYPE OF LIEN OVER ANY EQUIPMENT OR THE INTEREST OF LESSEE

 

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HEREUNDER (OTHER THAN PERMITTED LIENS) WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR.

 

(b)            Lessor may, without the consent of Lessee, assign any or all of its right, title and interest in this Agreement and the Schedule, provided , that so long as no Default has occurred and is continuing, Lessor will not assign all or any portion of its right, title and interest in this Agreement and the Schedule to any entity that Lessee determines, based on written advice of its auditors and as confirmed to Lessor in a certificate of a Responsible Officer of Lessee delivered to Lessor within ten days after receipt of notice by Lessor as to the identity of the proposed transferee, will result in Lessee consolidating its financial reports with such entity.  Lessee agrees that it will pay all Rent and other amounts payable under this Agreement and the Schedule to Lessor named therein; provided , however , if Lessee receives written notice of an assignment from Lessor, Lessee will pay all Rent and other amounts payable under this Agreement and the Schedule to such assignee or as instructed by Lessor.  Lessee agrees reasonably to cooperate with Lessor in connection with any such proposed assignment, including the execution and delivery of such other documents, instruments, notices, opinions, certificates and acknowledgments, as reasonably may be required by Lessor or such assignee, and the delivery of all information concerning Lessee and each Guarantor that is reasonably necessary for Lessor to complete the assignment; and Lessee further agrees to confirm in writing receipt of a notice of assignment as reasonably may be requested by assignee.  Lessee hereby waives and agrees not to assert against any such assignee any defense, set-off, recoupment claim or counterclaim that Lessee has or may at any time have against Lessor for any reason whatsoever, provided , however , that nothing contained in this sentence shall be construed as a waiver by Lessee of its right to assert against Lessor, in a separate action against Lessor, any claims that Lessee has against Lessor.

 

(c)            Subject always to the foregoing, this Agreement inures to the benefit of, and is binding upon, the successors and assigns of the parties hereto.

 

(d)            Lessee acknowledges that it has been advised that the interest of Lessor in this Agreement and the other Documents may be conveyed to or participated to, in whole or in part, and may be used as security for financing obtained from, one or more third parties without the consent of Lessee pursuant to a syndication.

 

(e)            In connection herewith the Lessor, any member of the Lessor or any Affiliate of such member (a “ Syndication Agent ”) may initiate discussions with potential participants regarding their participation in this transaction.  Lessee and its management will assist in all syndication efforts.  Such assistance will include, but not be limited to: (i) prompt assistance in the preparation of an information memorandum and verification of the accuracy and completeness of the information contained therein; (ii) preparation of other information, offering materials and projections by Lessee and its advisors taking into account this transaction; (iii) providing any Syndication Agent with all information reasonably deemed necessary by such Syndication Agent to complete the syndication successfully; (iv) confirmation as to accuracy and completeness of such information, offering materials and projections; (v) participation of Lessee’s senior management in meetings and conference calls with potential lenders and rating agencies, if applicable, at such times and places as such Syndication Agent may reasonably request; and (vi) using reasonable efforts to ensure that the

 

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syndication efforts benefit from all existing lending and investor relationships.  Each Syndication Agent reserves the right to provide to industry trade organizations information necessary and customary for the inclusion of any member of Lessor as lead arranger in league table measurements.  The parties agree that all information provided to Lessor from Lessee, each Guarantor, and any affiliate thereof and/or any third parties acting on behalf of such parties may be used in the syndication process and a confidentiality agreement in the form of Exhibit No. 4 shall be executed by any potential participants.

 

14.           NET LEASE; NO SET-OFF, ETC.

 

This Agreement is a net lease.  Lessee’s obligation to pay Rent and other amounts due hereunder shall be absolute and unconditional.  Lessee shall not be entitled to any abatement or reductions of, or set-offs against, said Rent or other amounts, including, without limitation, those arising or allegedly arising out of claims (present or future, alleged or actual, and including claims arising out of strict tort or negligence of Lessor) of Lessee against Lessor under this Agreement or otherwise.  Except as provided in Section 8 hereof, with respect to any Equipment that shall have suffered a Casualty Occurrence, this Agreement shall not terminate and the obligations of Lessee shall not be affected by reason of any defect in or damage to, or loss of possession, use or destruction of, any Equipment from whatsoever cause.  It is the intention of the parties that Rents and other amounts due hereunder shall continue to be payable in all events in the manner and at the times set forth herein unless the obligation to do so shall have been terminated pursuant to the express terms hereof.

 

15.           INDEMNIFICATION

 

Notwithstanding anything to the contrary set forth in this Agreement, the provisions of this Section 15 shall be effective on and after the Basic Term Commencement Date.

 

(a)            Lessee hereby agrees to defend, indemnify, save and keep harmless (on an After-Tax Basis), Lessor, its Members, any Affiliate of Lessor or any Member, and all agents, directors, officers, employees, successors and assigns of any of the foregoing (each an “ Indemnified Party ”), from and against any and all losses, damages, penalties and injuries suffered by such Indemnified Party, and claims (including any Environmental Loss), actions and suits against such Indemnified Party, including reasonable legal expenses, of whatsoever kind and nature, in contract or tort, whether caused by the active or passive negligence of Lessor (other than Lessor’s gross negligence or willful misconduct) (herein a “ Claim ”) arising out of or related to this Agreement or any other Operative Document, the transaction contemplated hereby or the enforcement hereof or related to the Facility, the Equipment or the Site, including, but not limited to, Lessor’s strict liability in tort, arising out of the selection, importation, manufacture, purchase, acceptance, operation or rejection of any or the Equipment, the ownership of the Equipment during the Term, and the delivery, lease, sublease, possession, maintenance, use, condition, return or operation of the Equipment (including, without limitation, latent and other defects, whether or not discoverable by Lessor or Lessee and any claim for patent, trademark or copyright infringement or Environmental Loss); provided , that the indemnity set forth in this Section 15(a) shall not be available to the extent (i) such Claim is attributable to the gross negligence, willful misconduct or breach of this Agreement or any other Operative Document by such Indemnified Party, (ii) such Claim arises

 

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and relates to periods after the later of (x) the termination or expiration of this Agreement or (y) the return of the Equipment in accordance with the terms hereof or (iii) such claims are for Taxes.

 

(b)           Lessee hereby represents, warrants and covenants that at no time during the term of this Agreement will Lessee take or omit to take, nor will it permit any sublessee or assignee to take or omit to take, any action (whether or not such act or omission is otherwise permitted by Lessor or by this Agreement), which will result in the disqualification of any Equipment for, or the recapture or disallowance of, all or any portion of the Tax Benefits.

 

(c)           If as a result of a breach of any representation, warranty or covenant of Lessee contained in this Agreement or the Schedule (including part 2 of Section D of Exhibit No. 1 but excluding part 1 of Section D of Exhibit No. 1)  (i) tax counsel of Lessor shall reasonably determine that Lessor (or any Member) is not entitled to claim on its U.S. Federal income tax return all or any portion of the Tax Benefits with respect to any Equipment, or (ii) any Tax Benefit claimed on the U.S. Federal income tax return of Lessor or any Member is disallowed or adjusted by the Internal Revenue Service, or (iii) any Tax Benefit is recalculated or recaptured (any determination, disallowance, adjustment, recalculation or recapture being a “ Loss ”), then Lessee shall pay to Lessor or the applicable Member, as an indemnity and as additional Rent, an amount that shall, in the reasonable opinion of Lessor and each Member,  cause each Member’s Net Economic Return to equal the Net Economic Return that would have been realized by such Member if such Loss had not occurred.  Such amount shall be payable upon demand accompanied by a written statement from the Lessor or a Member describing in reasonable detail such Loss and the computation of such amount.  If an adjustment has been made under Section 3 then the Effective Rate used in the next preceding adjustment shall be substituted.  If Lessee is obligated to make a tax indemnity payment to any Member pursuant to this Section 15(c), in lieu of making such payment in a lump sum, Lessee may elect (with such Member’s consent, it being understood that such Member may withhold its consent to such election based upon, without limitation, the Lessee’s (or PGI’s) then credit rating or such Member’s then lending policies) to pay the amount due in a series of equal payments that will be sufficient to maintain the Net Economic Return of each Member as if such Loss had not occurred, commencing on the next Rent Payment Date and payable on each Rent Payment Date thereafter until a date not later than the end of the Term; provided that if the Lease terminates prior to its scheduled expiration, Lessee shall make a lump sum payment to Lessor or each Member that, in the reasonable opinion of Lessor and such Member, is sufficient to cause each Member’s Net Economic Return to equal the Net Economic Return that would have been realized by such Member if such Loss had not occurred.

 

(d)           All references to Lessor in this Section 15 include Lessor, each Member, and any assignees of Lessor or any Member, and (for the purposes of determining whether a Loss has occurred and any amount due hereunder) the consolidated taxpayer group of which any Member is a member. All of Lessor’s, each Member’s and each Indemnified Party’s rights, privileges and indemnities contained in this Section 15 shall survive the expiration or other termination of this Agreement.  The rights, privileges and indemnities contained in this Agreement are expressly made for the benefit of, and shall be enforceable by Lessor, any Member, and the successors and assigns of the Lessor and any Member, and each Indemnified Party.

 

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(e)           Lessee acknowledges and agrees that there is no employment relationship between Lessor and the personnel, employees and subcontractors of the Lessee or its Affiliates, and responsibility for such labor relationship belongs exclusively to the Lessee or its Affiliate in accordance with the requirements of all Applicable Laws.  Lessee or its Affiliate is the “Employer” for all purposes of United States and Virginia law with respect to all of the employees at Lessee’s service, and they are the only person benefiting from the services rendered by such employees.

 

Lessee represents and warrants that it or its Affiliates has the legal and economic capacity to comply with its labor obligations, so that it or its Affiliates shall be solely responsible for all obligations with respect to their respective employees.

 

Therefore, in the case of any labor dispute between Lessee and its or its Affiliate’s personnel, employees and subcontractors, in which, for any reason, Lessor is involved, Lessee shall release and indemnify Lessor (on an After-Tax Basis) from any kind of claim made against it by any of Lessee’s or its Affiliate’s personnel, employees and subcontractors, and Lessee shall have the obligation to pay any such amounts as indemnification (severance), and the Lessee hereby releases Lessor from any responsibility thereof.

 

Lessee shall reimburse Lessor for all costs and expenses caused by any labor dispute filed directly or indirectly against Lessee or Lessor or with respect to the Equipment unless such dispute arises during and relates solely to the period following the later of (i) the termination or expiration of this Agreement or (ii) the return of the Equipment in accordance with the terms hereof.

 

(f)            Lessor and each other Indemnified Party will give Lessee prompt written notice of any Claim or claim for which it is entitled indemnity under this Section 15 or any other provision of this Agreement.  Lessee will be entitled to control the defense and settlement of each such Claim or claim, including the selection of legal counsel reasonably acceptable to Lessor, provided that Lessee shall have no right to defend or settle any Claim or claim if (1) a Default shall have occurred and be continuing or (2) such claim would entail significant risk to any Indemnified Party of any criminal liability; provided further , that no right to compromise or settle such Claim or claim shall exist unless the Lessee agrees in writing to pay the amount of such settlement or compromise.  Each Indemnified Party will give Lessee and its legal counsel reasonable assistance in connection with any such defense or settlement, and Lessee will reimburse the foregoing Persons for their actual out-of-pocket expenses incurred in connection with providing that assistance. Each Indemnified Party may participate in such defense and settlement at its own expense using legal counsel it selects, provided that in the event Lessee fails to defend or settle any Claim or claim, Lessee shall pay all costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses) incurred by such Indemnified Party in connection with such action, suit or proceeding; provided further , that if in the written opinion of counsel to such Indemnified Party an actual or potential material conflict exists where it is advisable for such Indemnified Party to be represented by separate counsel, the reasonable fees and expenses of such separate counsel shall be paid by the Lessee.  Notwithstanding the foregoing, this Section 15(f) shall not apply to any claim for Taxes, or any amount payable pursuant to Section 4 or Section 15(c) hereof.

 

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16.           DISCLAIMER

 

LESSEE ACKNOWLEDGES THAT IT HAS SELECTED THE EQUIPMENT WITHOUT ANY ASSISTANCE FROM LESSOR, ITS AGENTS OR EMPLOYEES, AND, UPON LESSEE’S EXECUTION AND DELIVERY OF THE CERTIFICATE OF ACCEPTANCE, IT ACKNOWLEDGES AND ACCEPTS THE PHYSICAL AND OPERATING STATE OF THE EQUIPMENT AS SATISFACTORY.  LESSOR DOES NOT MAKE, HAS NOT MADE, NOR SHALL BE DEEMED TO MAKE OR HAVE MADE, ANY WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO THE EQUIPMENT LEASED HEREUNDER OR ANY COMPONENT THEREOF, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY AS TO DESIGN, COMPLIANCE WITH SPECIFICATIONS, QUALITY OF MATERIALS OR WORKMANSHIP, MERCHANTABILITY, FITNESS FOR ANY PURPOSE, USE OR OPERATION, SAFETY, PATENT, TRADEMARK OR COPYRIGHT INFRINGEMENT, OR TITLE.   All such risks, as between Lessor and Lessee, are to be borne by Lessee.  Without limiting the foregoing, Lessor shall have no responsibility or liability to Lessee or any other Person with respect to any of the following: (i) any liability, loss or damage caused or alleged to be caused directly or indirectly by any Equipment, any inadequacy thereof, any deficiency or defect (latent or otherwise) therein, or any other circumstance in connection therewith; (ii) the use, operation or performance of the Equipment or any risks relating thereto; (iii) any interruption of service, loss of business or anticipated profits or consequential damages, including damages and lost as rendered by any law or court with jurisdiction in the United States of America or any other similar concept under Applicable Law; or (iv) the delivery, operation, servicing, maintenance, repair, improvement or replacement of any Equipment.  If, and so long as, no default exists under this Agreement, Lessee shall be, and hereby is, authorized during the Term of this Agreement to assert and enforce, at Lessee’s sole cost and expense, from time to time, in the name of and for the account of Lessor and/or Lessee, as their interests may appear, whatever claims and rights Lessor may have against any Vendor of the Equipment.  Lessee hereby acknowledges that as between Lessor and Lessee, Lessor is not advising Lessee of any accounting, tax, legal or other economic implications of this Agreement or the other Operative Documents, and Lessee represents and warrants to Lessor that it is not relying on Lessor, any Member or any other Person with respect to the legal, tax, accounting and other economic considerations in connection with this Agreement or with the other Operative Documents, other than Lessee’s own accountants, counsel and other advisors.  Lessee has such knowledge and experience in financial, accounting, tax and business matters that Lessee is capable of evaluating the merits and risks of all aspects this Agreement and the other Operative Documents.

 

17.           REPRESENTATIONS, WARRANTIES AND COVENANTS

 

(a)           Lessee hereby represents and warrants to Lessor that on the date hereof and on the date of execution of the Schedule:

 

(i)            Lessee is a Delaware corporation duly incorporated and validly existing in accordance with the laws of the State of Delaware and the Lessee’s organizational identification number is 2460209. Lessee’s EIN is 57-1013629.

 

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(ii)           The Documents to which Lessee is a party have been duly authorized, executed and delivered by Lessee and, assuming the due authorization, execution and delivery of the Operative Documents by each party thereto other than Lessee, constitute valid, legal and binding obligations, enforceable against Lessee in accordance with their respective terms, except to the extent that the enforcement of remedies therein provided may be limited under applicable bankruptcy, insolvency and other laws affecting creditors’ rights generally.

 

(iii)          No approval, consent, giving notice to or withholding of objections is required from any Governmental Authority with respect to the entry into or performance by Lessee of the Documents except such as have already been obtained or those, which if not obtained, would not have a Material Adverse Effect, individually or in the aggregate.

 

(iv)          Lessee has adequate corporate power and authority to enter into, and perform under, the Documents to which it is a party.  The entry into and performance by Lessee of the Documents will not: (i) violate any judgment, order, law or regulation applicable to it or any provision of its charter or by-laws; or (ii) result in any breach of, constitute a default under or result in the creation of any Lien (other than Permitted Liens) upon the Facility or the Equipment pursuant to any indenture, mortgage, deed of trust, bank loan or credit agreement or other material instrument (other than this Agreement) to which it is a party.

 

(v)           There are no suits or proceedings (including arbitration proceedings) pending or to Lessee’s knowledge threatened in court or before any commission, board or other administrative agency against or affecting Lessee or any Guarantor which are reasonably likely to result in a Material Adverse Effect.

 

(vi)          The Lessee is located in Delaware for the purposes of Section 9-307 of the UCC and covenants and agrees that it will not change such status without 30 days prior written notice to Lessor.  Lessee also covenants and agrees that it shall not, for purposes of Section 9-503(a) of the UCC, change its name as reflected on the public record in the state of its organization without 30 days prior written notice to Lessor.

 

(vii)         Lessor is and will remain the owner of the Equipment free and clear of all Liens other than Permitted Liens.

 

(viii)        Each financial statement required to be delivered by Lessee to Lessor has been prepared in accordance with GAAP and fairly presents, in all material respects, the financial condition of PGI and its consolidated Subsidiaries, and since December 31, 2009, the date of the most recent annual audited financial statement, there has been no material adverse change in the financial condition of PGI and its consolidated Subsidiaries.

 

(ix)           Each representation and warranty of PGI made in the Credit Agreement is true and correct in all material respects when made.

 

(x)            The Site identified on the Schedule is owned or leased by the entity identified on the Schedule free and clear of any Liens for indebtedness or leases subject

 

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to the Permitted Liens and the liens of mortgagees and interest of the landlords identified on the Schedule; provided , that Lessee shall obtain from such mortgagees or landlords a subordination, waiver or release within 10 days after receiving a written request from Lessor.

 

(xi)           Upon the Construction Completion Date (as defined in the CAA), Lessor shall have good and marketable title to the Equipment free and clear of all Liens whatsoever, other than Permitted Liens.

 

(xii)          Following the Basic Term Commencement Date and continuing thereafter, the Equipment will be used by Lessee in the active conduct of its business, pursuant to the terms of this Agreement.

 

(xiii)         Since December 31, 2009, there has not been any material adverse change in the capital structure or liquidity levels of PGI and its consolidated Subsidiaries taken as a whole except as set forth in public filings or otherwise publicly disclosed.

 

(xiv)        Except as previously disclosed to Lessor prior to the Basic Term Commencement Date: (i) neither Lessee nor any Guarantor is or has in the past been in violation of any Environmental Law or Environmental Permit with respect to the Equipment or the Site, which violation could reasonably be expected to result in a material liability to any Guarantor or Lessee or could otherwise result in a Material Adverse Effect; (ii) no Guarantor nor Lessee, nor to any Guarantor’s or Lessee’s knowledge any third party, has used, Released, generated, handled, manufactured, produced or stored at, in, on, under, or about the Site, or transported thereto or therefrom, any Hazardous Substances that could be expected to subject any Guarantor or Lessee to material liability under any Environmental Law or Environmental Permit; (iii) there are no Hazardous Substances generated, used, stored or present on the Site other than is necessary for the business as presently conducted and in material compliance with applicable Environmental Law or Environmental Permit; (iv) to the best of Lessee’s knowledge, there is or has been no condition, circumstance, action, omission, activity or event with respect to the Site that could form the basis of any material violation of any Environmental Law, Environmental Permit or any material liability to any Guarantor and Lessee under Environmental Law or Environmental Permit; and (v) there is no pending or unresolved proceeding, investigation or inquiry of which Lessee has been notified by any Governmental Authority (including without limitation, the EPA or any non-government third party) with respect to the presence or Release of Hazardous Substances at, in, on or from the Site which presence or Release could reasonably be expected to result in any material violation of or liability to Lessee or any Guarantor under Environmental Law or Environmental Permit.

 

(xv)         The Equipment has been “placed in service” on or prior to the Basic Term Commencement Date.

 

(xvi)        Lessee and each Guarantor is (i) in compliance in all material respects with all applicable laws and regulations relating to (x) the regulations promulgated by the Office of Foreign Assets Control (“OFAC”), U.S. Department of the Treasury relating to

 

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dealings with certain persons listed on the publicly available Specially Designated Nationals and Blocked Persons List maintained by OFAC, (y) Section 1(b), (c) or (d) of Executive Order No. 13224 (September 23, 2001) and (z) the prevention and detection of money laundering violations under the US Bank Secrecy Act (Financial Recordkeeping and Reporting of Currency and Foreign Transactions Act of 1970, 31 U.S.C. 1051 et. seq.) (“BSA”), under all regulations promulgated under the BSA and under all published U.S. government guidance, and (ii) in compliance with all other Applicable Laws the non-compliance with which, with respect to this clause (ii) only, could reasonably be expected to result in a Material Adverse Effect.

 

(xvii)       The Virginia Incentives Addendum, Project Gossimer, dated March 2, 2010 (the “ Incentive Plan ”) prepared by the Virginia Economic Development Partnership, is in full force and effect and has not been amended by any party thereto.  No default or breach by any party of its obligations under the Incentive Plan has occurred or is continuing.

 

(xviii)      The rights and interests of Lessor in and to the Equipment and the Facility are and will be sufficient to enable Lessor, its transferee or assignee or an operator acting on behalf of Lessor or its transferee or assignee to obtain access to and operate the Equipment in the Facility, upon such Person’s taking possession of the Equipment, in commercial operation in substantially the same manner in which it has been operated by Lessee (excluding access to or use of Proprietary Information and Optional Modifications that are Severable Modifications).  There is no reason to expect that any licenses, permits, authorizations or approvals of any Governmental Authority or supply, disposal or other contracts that are required at the time of and after such taking of possession of the Equipment to enable Lessor or its transferee or assignee or an operator to operate the Equipment in the Facility in the ordinary course and in compliance with substantially the same legal requirements as are applicable to Lessee cannot be obtained, renewed or replaced, as the case may be, by Lessor, such transferee or assignee or an operator, as the case may be, upon such Person’s taking possession of the Equipment. There is no reason to expect that licenses and permits which are presently issued by Governmental Authorities with respect to the Equipment could not be obtained under the same or similar conditions with respect to the Equipment by Lessor, such transferee, assignee or operator to the extent applicable thereto.  Lessor has and will have sufficient rights to all present and future intellectual property (including all Included IP, but excluding, in all cases, Proprietary Information) that is necessary or desirable for operation of the Equipment.

 

(xix)         Lessee and each Guarantor is in compliance in all material respects with (a) the Trading with the Enemy Act, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B Chapter V, as amended) and any other enabling legislation or executive order relating thereto, and (b) the Patriot Act.

 

(b)           Lessee hereby covenants and agrees with Lessor that:

 

(i)            The Equipment will at all times be used for commercial or business purposes, pursuant to the terms of this Agreement.

 

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(ii)           Lessee shall maintain a system of identification number tagging on the Equipment and any significant Part thereof by affixing in a prominent position on the Equipment (and components thereof) plates, tags or other identifying labels stating (i) that the Equipment is property of Lessor and (ii) the manufacturer, serial numbers and type and model thereof as set forth in Annex A to the Schedule.

 

(iii)          Lessee, at its sole cost and expense, at all times hereinafter shall maintain and implement at the Site a written environmental, health and safety (“ EH&S ”) program (“ EH&S Program ”) to ensure that Lessee’s operations at the Site are conducted in compliance with all applicable Environmental Laws and Environmental Permits.  The EH&S Program shall involve senior management, shall include a formal written corporate environmental policy, and shall be directed by the person responsible for Lessee’s EH&S compliance.

 

(iv)          At Lessor’s request (not more frequently than once in any 12-month period, unless a Default shall have occurred and be continuing), Lessee shall provide Lessor with a briefing regarding Lessee’s compliance with its EH&S Program and Lessee shall take such action reasonably requested by Lessor to address any deficiencies noted by Lessor under Applicable Law.

 

(v)           Lessee agrees that it shall not (i) establish a new “location” for the purposes of Section 9-307 of the UCC, (ii) change its chief executive office or its jurisdiction of organization, (iii) change its name or (iv) do business under any name other than “Chicopee, Inc.” until it shall have given to the Lessor not less than 30 days’ prior written notice of its intention so to do, clearly describing such new location, jurisdiction and/or name and providing such other information in connection therewith as the Lessor may reasonably request.

 

(vi)          Lessee has fee simple title to the Site and shall cause fee simple title to the future expansion parcel referenced in the Site Lease to be granted to it no later than September 1, 2010.

 

(vii)         Lessee shall provide, at its sole cost and expense, prior to entering into a mortgage with respect to the Site, a SNDA, duly executed (and in recordable form) by each mortgagee, with respect to the Site.  Lessee shall maintain each SNDA at all times during the Term for the estimated useful life of the Equipment.  Lessee shall deliver to Lessor 30 days’ prior written notice of any assignment, transfer or sale by Site Lessor of the Site and Lessee agrees that any assignment of the Site shall be made subject to the terms of the Site Lease.

 

(viii)        Lessee shall maintain at all times from the date hereof through the Basic Term, an Acceptable Letter of Credit, for the benefit of Lessor, in order to secure Lessee’s obligations under the Documents.  In the event that any Acceptable Letter of Credit has an expiration or termination date prior to the Basic Term, Lessee shall replace such Acceptable Letter of Credit with an Acceptable Letter of Credit in accordance with the requirements of this Agreement no later than thirty (30) days prior to such expiration or termination date.  If (a) a Downgrade Event has occurred or (b) Lessee shall make a

 

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good faith determination that a significant possibility exists that a Downgrade Event will occur, Lessee, within 30 days of the earliest of (i) having knowledge of such fact, (ii) reaching such good faith determination or (iii) receiving notice from Lessor of such fact, shall provide a replacement Acceptable Letter of Credit.  Lessee shall not at any time permit any Liens (other than Lessor’s Liens) to exist on Lessor’s interest in the Acceptable Letter of Credit or in its rights to enforce payment thereon.

 

(ix)           Lessee shall deliver the reports as set forth in Sections 5(b) and 5(e).

 

(x)            Lessee shall promptly deliver to Lessor written notice of any default under any of the Operative Documents, the Documents or any material contract pertaining to the Equipment.

 

(xi)           At all times during the Term, PGI shall control, directly or indirectly, 100% of the equity interests in Lessee or any successor entity.

 

(xii)          Lessee shall comply or cause PGI to comply with the financial covenants set forth in Appendix II of this Agreement.

 

(xiii)         Lessee shall, and shall cause each Guarantor to, remain (i) in compliance in all material respects with all applicable laws and regulations relating to (x) the regulations promulgated by OFAC relating to dealings with certain persons listed on the publicly available Specially Designated Nationals and Blocked Persons List maintained by OFAC, (y) Section 1(b), (c) or (d) of Executive Order No. 13224 (September 23, 2001) and (z) the prevention and detection of money laundering violations under the BSA, under all regulations promulgated under the BSA and under all published U.S. government guidance, and (ii) in compliance with all other Applicable Laws the non-compliance with which, with respect to this clause (ii) only, could reasonably be expected to result in a Material Adverse Effect.

 

(c)           Lessor hereby represents and warrants to Lessee that on the date hereof and on the date of execution of the Schedule:

 

(i)            Lessor is a Delaware limited liability company duly formed and validly existing in accordance with the laws of the State of Delaware and the Lessor’s organizational identification number is 4821012. Lessor’s EIN is 27-2569352.

 

(ii)           The Documents to which Lessor is a party have been duly authorized, executed and delivered by Lessor and, assuming the due authorization, execution and delivery of the Operative Documents by each party thereto other than Lessor, constitute valid, legal and binding obligations, enforceable against Lessor in accordance with their respective terms, except to the extent that the enforcement of remedies therein provided may be limited under applicable bankruptcy, insolvency and other laws affecting creditors’ rights generally.

 

(iii)          Lessor has adequate limited liability company power and authority to enter into, and perform under, the Documents to which it is a party.  The entry into and

 

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performance by Lessor of the Documents will not violate its certificate of formation or limited liability company agreement.

 

18.           INTENT; TITLE

 

(a)           It is the express intent of the parties that this Agreement constitute a true lease and not a sale of the Equipment.  It is hereby acknowledged by the parties hereto that Lessor is the legal owner of all of the Equipment.  Title to the Equipment shall at all times remain in Lessor, and Lessee shall acquire no ownership, title, property, right, equity, or interest in the Equipment other than its leasehold interest solely as Lessee subject to all the terms and conditions hereof.  The parties agree that the lease is a “Finance Lease” as defined in Uniform Commercial Code Article 2A — Leases (“Article 2A”).  Lessee acknowledges: (a) that Lessee has selected the “Supplier” (as defined in Article 2A) and directed Lessor to purchase the Equipment from the Vendors; (b) that Lessee has been informed in writing in this Agreement, before signing this Agreement, that Lessee is entitled under Article 2A to the promises and warranties, including those of any third party, provided to Lessor by the Vendors in connection with or as part of the contract by which Lessor acquired the Equipment, and that Lessee may communicate with the Vendor and receive an accurate and complete statement of those promises and warranties, including any disclaimers and limitations of them or of remedies.  To the extent permitted by Applicable Law, Lessee hereby waives any and all rights and remedies conferred upon a lessee in Section 508(5) of Article 2A; provided, however that such waiver shall not preclude Lessee from asserting any claim of Lessee against Lessor in a separate cause of action; and provided further that such waiver shall not affect Lessor’s obligations of good faith, diligence, reasonableness and care.

 

(b)           Notwithstanding the express intent of the parties, should a court of competent jurisdiction determine that this Agreement is not a true lease, but rather one intended as security, then solely in that event and for the expressly limited purposes thereof, Lessee shall be deemed to have hereby granted Lessor a security interest in the Equipment, and all accessions thereto, substitutions and replacements therefor, and proceeds (including insurance proceeds) thereof (but without power of sale) to secure the prompt payment and performance as and when due of all obligations and indebtedness of Lessee (or any affiliate of Lessee) to Lessor, now existing or hereafter created.  For the purposes of this paragraph, this Agreement, the Schedule, or a photocopy of either thereof may be filed as a financing statement under the Uniform Commercial Code.

 

19.           PURCHASE OPTIONS

 

Provided no Default shall have occurred and be continuing, Lessee shall have the option to purchase all (but not less than all) of the Equipment leased under all Schedules executed hereunder upon the following terms and conditions.

 

(a)           Upon not more than 365 days’ and not less than 300 days’ irrevocable prior written notice by Lessee to Lessor, Lessee may elect to purchase, at expiration of the Basic Term, all (but not less than all) of the Equipment on an AS IS, WHERE IS BASIS, for cash equal to the then Fair Market Value of the Equipment (in-place and in-use), plus (in any event) all applicable taxes.  If Lessee has elected to exercise the purchase option set forth in this

 

38



 

Section 19(a), on the last day of the Basic Term, Lessee shall pay to Lessor in cash the full purchase price (plus all applicable taxes), together with any Rent or other sums then due hereunder on such date and Lessor shall convey to Lessee title to the Equipment on an AS IS, WHERE IS BASIS, free and clear of all Lessor’s Liens.

 

(b)           Subject to Section 12(e), if a Default shall have occurred and be continuing at the time of the notice in the first sentence of paragraph (a) above, then on the date of expiration of the Term, Lessee shall return the Equipment in full compliance with Section 11 of this Agreement on or prior to the date of expiration of the Term.  If Lessee shall have given the notice provided in the first sentence of paragraph (a) above, and a Default occurs and is continuing at the expiration of this Agreement, Lessor may elect either to enforce the option exercised by Lessee or demand return of the Equipment to Lessor in full compliance with Section 11 of this Agreement.

 

(c)           The Lessee may elect, upon not more than 180 days’ and not less than 90 days’ irrevocable written notice to Lessor prior to the First EBO Date, to purchase on the First EBO Date all (but not less than all) of the Equipment on an AS IS, WHERE IS BASIS for a purchase price equal to the First EBO Price plus all applicable taxes.  If Lessee has elected to exercise the purchase option set forth in this Section 19(c), on the First EBO Date, Lessee shall pay to Lessor in cash the First EBO Price (plus all applicable taxes) together with any Rent or other sums due hereunder on such date (excluding any Basic Term Rent scheduled to be paid on such First EBO Date) and Lessor shall convey to Lessee title to the Equipment on an AS IS, WHERE IS BASIS, free and clear of all Lessor’s Liens.

 

(d)           The Lessee may elect, upon not more than 180 days’ and not less than 90 days’ irrevocable written notice to Lessor prior to the Second EBO Date, to purchase on the Second EBO Date all (but not less than all) of the Equipment on an AS IS, WHERE IS BASIS for a purchase price equal to the Second EBO Price plus all applicable taxes.  If Lessee has elected to exercise the purchase option set forth in this Section 19(d), on the Second EBO Date, Lessee shall pay to Lessor in cash the Second EBO Price (plus all applicable taxes) together with any Rent or other sums due hereunder on such date (excluding any Basic Term Rent scheduled to be paid on such Second EBO Date) and Lessor shall convey to Lessee title to the Equipment on an AS IS, WHERE IS BASIS, free and clear of all Lessor’s Liens.

 

20.           MISCELLANEOUS

 

(a)           Any cancellation or termination by Lessor, pursuant to the provisions of this Agreement, the Schedule, supplement or amendment hereto, or the lease of the Equipment hereunder, shall not release Lessee from any then outstanding obligations to Lessor hereunder.

 

(b)           Lessor’s failure at any time to require strict performance by Lessee of any of the provisions hereof shall not waive or diminish Lessor’s right thereafter to demand strict compliance therewith.

 

(c)           Lessee agrees, upon receiving Lessor’s written request, to execute any instrument necessary for filing, recording or perfecting the interest of Lessor, and to execute and deliver to Lessor such further documents, instruments and assurances and to take such

 

39


 

further action as Lessor from time to time reasonably may request in order to carry out the intent and purpose of the transaction contemplated hereunder.

 

(d)           All notices, consents, directions, approvals, instructions, requests, demands, and other communications required or permitted to be given hereunder shall be in writing, personally delivered, delivered by overnight courier service, sent by facsimile transmission (with confirmation of receipt), or sent by certified mail, return receipt requested, addressed to the other party at each of its respective addresses stated below or at such other address as such party shall from time to time designate in writing to the other party; and shall be effective from the date of receipt.

 

If to the Lessee:                                                            Chicopee, Inc.

9335 Harris Corners Parkway

Suite 300

Charlotte NC 28269

Attention: Chief Financial Officer

Telephone:  (704) 697-5186

Facsimile:  ( 704) 697-5121

 

With a copy to:                                                              Polymer Group, Inc.

9335 Harris Corners Parkway

Suite 300

Charlotte NC 28269

Attention: General Counsel

Telephone:  (704) 697-5179

Facsimile:  ( 704) 697-5120

 

If to the Lessor:                                                             Gossamer Holdings, LLC

201 Merritt Seven

Norwalk, CT  06851 USA

Attention: Annie Schorr, Portfolio Manager

Telephone:  (203) 229-1421

Facsimile: (513) 770-5460

 

With copies to:                                                               General Electric Credit Corporation of Tennessee

201 Merritt Seven, 2nd Floor

Norwalk, CT  06851 USA

Attention: Annie Schorr

Telephone:  (203) 229-1421

Facsimile:  (513) 770-5460

 

ING Spunmelt Holdings LLC

200 Galleria Parkway, Ste. 950

Atlanta, Georgia  30339 USA

Attention: Jerry L. McDonald, Director

Telephone:  (770) 984-4514

Facsimile:  (770) 951-1005

 

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(e)           This Agreement, the Exhibits and the Schedule and Annexes thereto constitute the entire agreement of the parties with respect to the subject matter hereof.  NO VARIATION OR MODIFICATION OF THIS AGREEMENT OR ANY WAIVER OF ANY OF ITS PROVISIONS OR CONDITIONS, SHALL BE VALID UNLESS IN WRITING AND SIGNED BY AN AUTHORIZED REPRESENTATIVE OF EACH PARTY HERETO.

 

(f)            The representations, warranties and covenants of Lessee herein shall be deemed to survive the closing hereunder.  The obligations of Lessee under Sections 4, 11 and 15 hereof which accrue during the Term of this Agreement and obligations which by their express terms survive the termination of this Agreement, shall survive the termination of this Agreement.

 

(g)           Each Member is an express third party beneficiary of the agreements of the Lessee and Lessor hereunder and shall be entitled to rely on such agreements as if it were named a party hereto.

 

(h)           In case of a failure of Lessee to comply with any provision of this Agreement, Lessor shall have the right, but shall not be obligated, to effect such compliance, in whole or in part; and all moneys spent and expenses and obligations incurred or assumed by Lessor in effecting such compliance (together with interest thereon at the Overdue Rate) shall constitute Supplemental Rent due to Lessor within 5 days after the date Lessor sends written notice to Lessee requesting payment.  Lessor’s effecting such compliance shall not be a waiver of Lessee’s default.

 

(i)            Any Rent or other amount not paid to Lessor when due hereunder shall bear interest, both before and after any judgment or termination hereof, at Overdue Rate.

 

(j)            Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

 

(k)           So long as no Default shall have occurred and be continuing hereunder, and conditioned upon Lessee performing all of the covenants and conditions hereof, as to claims of Lessor or Persons claiming under Lessor, Lessee shall peaceably and quietly hold, possess and use the Equipment during the Term of this Agreement subject to the terms and conditions hereof.

 

(l)            Lessee agrees to pay on demand all reasonable costs and expenses incurred by Lessor, the Members and any assignee from and after the Basic Term Commencement Date during the term of this Agreement in connection with (i) the formation, administration and operation of the Lessor and (ii) the preparation, execution, delivery, filing, recording, and administration of any of the Documents, including (without limitation) the reasonable fees and expenses of counsel for Lessor, any Member and any assignee thereof, accounting, tax administration, due diligence, appraisals, lien searches, UCC and/or SNDA filing fees, and

 

41



 

field audits; and all costs and expenses incurred by Lessor or any Member, if any, in connection with the enforcement of any of the Documents.

 

(m)          Each party hereto agrees to keep confidential, the terms and provisions of the Operative Documents and the transactions contemplated hereby and thereby (collectively, the “ Transactions ”); provided that either party may disclose the terms and provisions of the Documents and transactions contemplated hereby and thereby (i) to its or its controlling entities’ employees, officers, directors and agents who agree to hold the same confidential in accordance with the terms of this Section 20(m), (ii) to its or its controlling entities’ consultants, auditors, attorneys and accountants who agree to hold the same confidential substantially in accordance with the terms of this Section 20(m), (iii) if it is reasonably believed by it to be compelled by any court decree, subpoena or other legal or administrative order or process after giving the other party advance written notice of the proposed disclosure to the extent reasonably possible, (iv) on the advice of its counsel, otherwise required by law or necessary or appropriate in connection with any litigation or other proceeding to which it or its affiliates is a party after giving the other party advance written notice of the proposed disclosure to the extent reasonably possible, or (v) which becomes available to such party from a third party on a non-confidential basis.  Section 22 below contains additional provisions regarding confidentiality and to the extent there is a conflict between Section 22 and this Section 20(m), Section 22 shall control.

 

(n)           Lessee shall not, and shall not permit any Guarantor or any of their respective Affiliates to, issue any press release or other public disclosure using the name, logo or otherwise referring to any Member or any Affiliate of such Member, the Operative Documents or any transaction contemplated therein to which Owner or any Member is party without the prior consent of each Member except to the extent required to do so under Applicable Law and then, only after consulting with each Member.

 

(o)           Lessee consents to the publication by Lessor or any Member of Lessor of advertising material relating to the transactions contemplated by this Agreement using Lessee’s or any Guarantor’s name, product photographs, logo or trademark.  Lessor or such Member shall provide a draft of any advertising material to Lessee for review and comment prior to the publication thereof.  Neither Lessor nor any Member of Lessor will obtain any license of or right to use such names, product photographs, logos or trademarks beyond that expressly authorized in this Section 20(o), which is non-exclusive.

 

(p)           The parties hereto acknowledge and agree that this Agreement and the Schedule shall constitute a single lease instrument.

 

(q)           All consultants, contractors, engineers, employees, independent contractors and other Persons who seek to enter the Site, the Facility or any other property of Lessee, or who desire to observe or inspect the Equipment or any of Lessee’s records, on behalf of or at the request of Lessor or any Member pursuant to this Agreement must comply with Lessee’s reasonable and customary safety, security and confidentiality policies and procedures.

 

(r)            Each of Lessor and each Member that is subject to the Patriot Act hereby notifies Lessee and Guarantors that pursuant to the requirements of the Patriot Act, it is

 

42



 

required to obtain, verify and record information that identifies Lessee and each Guarantor, which information includes the name and address of Lessee and each Guarantor and other information that will allow Lessor and each Member to identify Lessee and each Guarantor in accordance with the Patriot Act.

 

21.           CHOICE OF LAW; JURISDICTION

 

THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES OF SUCH STATE), INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.  The parties agree that any action or proceeding arising out of or relating to this Agreement may be commenced in the United States District Court for the Southern District of New York and the parties irrevocably submit to the jurisdiction of such court and agree not to assert, by way of motion, as a defense or otherwise, in any such suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of such court, that the suit, action or proceeding is brought in an inconvenient form, that the venue of such suit, action or proceeding is improper, or that this Agreement or the subject matter hereof or the transaction contemplated hereby may not be enforced in or by such court.  Each of the parties hereto agree that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law; provided that this sentence will not be construed as a waiver of any right to file an appeal or to seek a stay.

 

22.           CONFIDENTIAL INFORMATION.

 

(a)           Lessor shall keep confidential and shall not disclose to any Person, except as expressly permitted by this Section 22, all Confidential Information.  Lessor shall only be entitled to disclose Confidential Information to (i) its, its Members’ and its Members’ Affiliates’ respective employees, officers, directors, agents, consultants, advisors, auditors, attorneys and accountants (to the extent such disclosure reasonably relates to the Transactions) who agree to hold the Confidential Information in accordance with the terms of this Section 22, (ii) any prospective purchaser of the Equipment or of any Member’s interest in Lessor (if such Person first executes and delivers to Lessor and Lessee a confidentiality agreement at least as restrictive as this Section 22), provided that under no circumstances shall Lessor disclose any Proprietary Information to any such prospective purchaser, (iii) to the extent requested by any Governmental Authority, (iv) to the extent required by Applicable Laws or by any subpoena or similar legal process, (v) in connection with the exercise of remedies under this Agreement or under any other Operative Document or any suit, action or proceeding relating to this Agreement or any other Operative Document or the enforcement of rights hereunder or thereunder.

 

(b)           Lessor shall only use the Confidential Information as expressly permitted by this Section 22 and shall not use any Confidential Information on behalf of any other Person except as expressly permitted by this Section 22.

 

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(c)           Lessor shall have no liability for any disclosure of any Confidential Information by any consultants, contractors, engineers, employees, independent contractors and other Persons who have executed a confidentiality agreement with Lessee or any of its Affiliates.

 

(d)           Confidential Information shall not include any information, document or record (a) that is or becomes lawfully available to the general public without any breach of this Agreement or any violation of any Applicable Law, (b) that was previously lawfully in the possession of Lessor without any obligation to Lessee, any Guarantor or any other Person to hold it in confidence or to restrict the use of it, or (c) that Lessor receives from a third party who is free to disclose that information to Lessor without breaching any agreement or violating any Applicable Law.

 

(e)           If Lessor is required or intends to disclose Confidential Information under Section 22(a)(iii), 22(a)(iv) or 22(a)(v), Lessor shall give Lessee prompt and prior written notice of the proposed disclosure (to the extent reasonably possible and not otherwise prohibited).  Additionally, Lessee shall be entitled to take those actions it deems necessary or appropriate, including seeking to prevent the disclosure of its Confidential Information.  Lessor will provide reasonable assistance to Lessee in connection with those actions, and Lessee will reimburse Lessor for Lessor’s and any Member’s actual out-of-pocket expenses incurred in providing that assistance.  Lessor shall disclose Confidential Information only in compliance with this Section 22.

 

(f)            Notwithstanding the foregoing provisions of this Section 22, Lessor may disclose Confidential Information (but not Proprietary Information), as necessary, to a potential investor in a syndication of this Lease as long as that potential investor first executes and delivers to Lessor a confidentiality agreement in the form of Exhibit No. 4.

 

(g)           The provisions contained in this Section 22 and any similar provisions in any separate confidentiality agreement executed by any Member or any employee of Lessor or any Member shall survive for a period of 18 months following the termination of this Agreement (whether at the end of the Basic Term or at the time of any earlier termination of this Agreement).

 

(h)           Notwithstanding the foregoing, the obligations of confidentiality contained herein, as they relate to the Transactions, shall not apply to the federal tax structure or federal tax treatment of the Transactions, and each party hereto (and any employee, representative, or agent of any party hereto) may disclose to any and all persons, without limitation of any kind, the federal tax structure and federal tax treatment of the Transactions.  The preceding sentence is intended to cause each Transaction to be treated as not having been offered under conditions of confidentiality for purposes of Section 1.6011-4(b)(3) (or any successor provision) of the Treasury Regulations promulgated under Section 6011 of the Internal Revenue Code of 1986, as amended, and shall be construed in a manner consistent with such purpose.  In addition, each party hereto acknowledges that it has no proprietary or exclusive rights to the federal tax structure of the Transactions or any federal tax matter or federal tax idea related to the Transactions.

 

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(i)            Lessor will use commercially reasonable efforts not to obtain Proprietary Information except as permitted under this Agreement and necessary to carry out its obligations, or to exercise its rights, under this Agreement, and Lessee will use commercially reasonable efforts not to disclose Proprietary Information to Lessor or its employees, contractors, consultants or agents except as necessary to carry out its obligations or to exercise its rights under this Agreement.

 

23.           DEFINITIONS

 

Capitalized terms used but not otherwise defined herein or in the Schedule shall have the meanings assigned thereto in Appendix I attached hereto; and the general provisions and rules of interpretation set forth in Appendix I shall apply to this Agreement.

 

[Signatures on next page]

 

45



 

IN WITNESS WHEREOF, Lessee and Lessor have caused this Equipment Lease Agreement to be executed by their duly authorized representatives as of the date first above written.

 

LESSOR:

 

LESSEE:

 

 

 

GOSSAMER HOLDINGS, LLC

 

CHICOPEE, INC.

 

 

 

 

 

 

BY:

GENERAL ELECTRIC CREDIT CORPORATION OF

 

By:

 

 

TENNESSEE, its member

 

 

Name:

 

 

 

Title:

 

 

 

By:

 

 

 

 

Name:

 

 

 

Title:

 

 

 

 

 

 

 

 

BY:

ING SPUNMELT HOLDINGS LLC, its member

 

 

 

 

 

 

 

 

By:

 

 

 

 

Name:

 

 

 

Title:

 

 

 


 

APPENDIX I

 

TO LEASE AGREEMENT DATED AS OF JUNE 24, 2010

 

DEFINITIONS

 

See attached.

 



 

Appendix I

 

Definitions

 

Acceptable Letter of Credit ” shall mean a valid and enforceable irrevocable transferable letter of credit substantially in the form of Exhibit A hereto and otherwise in form and substance acceptable to Owner or Lessor, as applicable, that is: (1) issued by an Acceptable Letter of Credit Bank, (2) having a stated expiration date of not earlier than 364 days after the date of original issuance, (3) drawable in full if not renewed or replaced with an Acceptable Letter of Credit 30 days before its expiry, (4) payable and drawable at an office of such issuing bank in the United States of America, (5) payable in U.S. dollars in immediately available funds, (6) issued under arrangements not illegal for the parties to enter into, (7) is governed by the Uniform Customs and Practice for Documentary Credits (revision effective January 1, 1994), International Chamber of Commerce Publication No. 500 or the International Standby Practices (ISP98) International Chamber of Commerce Publication No. 590, and, to the extent not inconsistent therewith, the laws of New York State, and (8) which shall permit the beneficiary thereof to assign its interest without the consent of such Acceptable Letter of Credit Bank.

 

Acceptable Letter of Credit Bank ” shall mean a bank (1) the senior unsecured debt obligations (or long-term deposits) of which upon the date of issuance of an Acceptable Letter of Credit is rated at least “A3” by Moody’s and at least “A-” by S&P, with capital in excess of U.S.$500,000,000.00 Dollars, (2) from whom receipt of a letter does not violate Owner’s or Lessor’s then current policies including its credit and lending country exposure limits, which country limits shall be deemed satisfied if the bank is a United States bank, (3) as to whom there shall be no material litigation or arbitration proceeding threatened or pending between Lessor and such bank or Owner and such bank and (4) whom is otherwise reasonably acceptable to Owner and Lessor acting in good faith.

 

Acts of God ” shall mean any inevitable, unpredictable, and unreasonably severe event caused by natural forces without any human interference, and over which any party to any Operative Document has no control, such as flood, earthquake, storm, hurricane or other natural disaster.

 

Additional Construction Document ” shall mean any material contract or undertaking to which the Construction Agent or the Owner is a party relating to the development, installation, construction, completion, operation, administration or maintenance of the Equipment entered into after the Construction Closing Date but prior to the Basic Term Commencement Date.

 

Adjacent Property ” shall mean those parcels of land owned by Site Lessor located adjacent to the Site as legally described on Schedule B to the Site Lease.

 

Advance ” shall have the meaning set forth in Section 3.1(a)  of the Construction Agency Agreement, in each case, made in accordance with the applicable Operative Document.

 

Adverse Environmental Condition shall refer to (i) the Release of or exposure to any Hazardous Substance at, on, under or within the Site, the Facility or the Equipment in violation of or could result in liability under any Environmental Law, (ii) the use, generation, handling, transportation, storage, treatment or disposal of Hazardous Substances in connection with the operation of the Facility and Equipment in violation of or could result in liability under any

 



 

Environmental Law, or (iii) the violation of any Environmental Law resulting from ownership, possession, use, operation or modification of the Site, the Facility or the Equipment.

 

Affiliate ” of any specified Person shall mean any other Person that, directly or indirectly, controls, is controlled by or is under common control with such Person.  For purposes of this definition, “control” when used with respect to any particular Person shall mean the power to direct, or cause the direction of, the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, and the terms “controlling”, “controlled” and “under common control” have meanings correlative to the foregoing; provided, however, that any Person owning, directly or indirectly, 10% or more of the securities having ordinary voting power for the election of directors or other members of the Governing Body of a corporation, or 10% or more of the partnership or other ownership interests of any other Person, is deemed to control such corporation or other Person. Notwithstanding the foregoing, with respect to PGI and its Subsidiaries (including Lessee), “Affiliate” shall not include MatlinPatterson Global Opportunities Fund, LP (“MPG”) or any Affiliate of MPG that is not PGI or a Subsidiary of PGI.

 

After-Tax Basis ” shall mean, in the context of determining the amount of a payment to be made on such basis, the payment of an amount which, after reduction by the net increase in Taxes of the recipient (actual or constructive) of such payment, which net increase shall be calculated by taking into account any current reduction in such Taxes resulting from any tax benefits realized the recipient as a result of such payment, shall be equal to the amount required to be paid. In calculating the amount payable by reason of this provision, all income taxes payable and tax benefits realized shall be determined on the assumptions that (i) the recipient is subject to applicable income taxes at the highest marginal tax rates then applicable to widely held corporations that are in effect in the applicable jurisdictions for the relevant period or periods and (ii) all related tax benefits are utilized at the highest marginal tax rates then applicable to widely held corporations that are in effect in the applicable jurisdictions for the relevant period or periods, and shall take into account the deductibility of state and local income taxes for U.S. Federal income tax purposes.

 

Allocated Cost ” for the Support Items, means Chicopee’s out-of-pocket costs incurred to provide such Support Items during a particular period, and shall include an allocated portion of the cost, if any, of (1) continuing access rights, (2) maintaining licenses and permits, (3) supplies, (4) third-party services, (5) utilities and (6) an allocable share of Chicopee’s overhead or administrative costs related thereto.  All Allocated Costs shall be determined in accordance with GAAP and in a manner consistent with Chicopee’s past practices.

 

Applicable Laws ” means all laws, judgments, decrees, ordinances and regulations and any other governmental rules and orders and all requirements having the force of law, now or hereafter enacted, made or issued, whether or not presently contemplated, including compliance with all requirements of zoning laws, labor laws and Environmental Laws, compliance with which is required with respect to the Site, the Facility or the Equipment, whether or not such compliance shall require structural, unforeseen or extraordinary changes to the Site, the Facility or the Equipment or the operation, occupancy or use thereof.

 

2



 

Applicable Margin ” shall mean from the Construction Closing Date until the Construction Termination Date, 5.0% per annum; provided however that during and after a Construction Termination Extension or if a Construction Agency Event of Default has occurred and is continuing, Applicable Margin shall mean 7% per annum.

 

Appraisal ” shall mean the appraisal, dated the Basic Term Commencement Date, prepared by the Appraiser and addressed to the Lessor, which Appraisal shall:

 

(i)                                      determine the Equipment Cost, which will be equal to the fair market value of the Equipment on the Basic Term Commencement Date;

 

(ii)                                   determine the economic useful life of the Equipment and confirm that the Equipment shall be reasonably estimated on the Basic Term Commencement Date to have (i) a remaining economic useful life equal to 133.33% of the Basic Term and (ii) a fair market value at the end of the Basic Term equal to at least 20% of the Equipment Cost, without regard to inflation or deflation during the Basic Term;

 

(iii)                                confirm that it is reasonable to expect that upon expiration or termination of the Equipment Lease, it will be commercially feasible for a party other than the Lessee to operate the Equipment;

 

(iv)                               allocate the percentage of the Equipment Cost eligible for each category of Depreciation Deduction;

 

(v)                                  confirm an orderly liquidation value for the Equipment; and

 

(vi)                               address any other matters (including the matters addressed in the Preliminary Appraisal) that the Lessor shall request.

 

Appraisal Procedure ” shall mean the following procedure for determining the Fair Market Value of the Equipment:

 

(a)                                   At either Lessee’s or Lessor’s written request, as the case may be, Lessor and Lessee shall negotiate in good faith to determine the Fair Market Value of the Equipment within 30 days after such request has been given.  If after such 30-day period, Lessor and Lessee are unable to agree upon a determination of the Fair Market Value of the Equipment, the Fair Market Value shall be determined in accordance with the appraisal procedure set forth in this definition.  If either party shall have given written notice to the other requesting determination of such Fair Market Value by such appraisal procedure, the parties shall consult for the purpose of appointing an independent appraiser by mutual agreement.  If a single appraiser shall have been appointed by the parties, the determination of such appraiser shall be final and binding upon the parties.  If no such appraiser is appointed within 20 days after such notice is given, such determinations shall be made as follows:

 

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(i)                                      Two qualified appraisers shall be appointed, one of whom shall be selected by Lessee and the other of whom shall be selected by Lessor, both selections to be made within 10 days after the end of such 20 day period.  The appraisal determined by each appraiser shall be compared and if the differential between the two is less than 10% of the average of the two appraisers, then such average of the two appraisals shall be final and binding upon the parties; but

 

(ii)                                   if the differential between the two appraisals is 10% or more of the average of the appraisals, then a third qualified appraiser shall be promptly appointed by the American Arbitration Association of New York, in accordance with its rules as then in effect.  The appraisals determined by each of the three appraisers shall be averaged and the appraisal furthest from such average shall be disregarded.  The appraisals determined by each of the two remaining appraisers shall be averaged and such average shall be final and binding upon the parties.

 

(b)                                  The appraiser or appraisers shall be provided with, and instructed to appraise in accordance with, the definitions of all terms appearing herein and having a bearing on the determinations subject to appraisal and in accordance with customary appraisal procedures.

 

(c)                                   The fees and expenses of each appraiser shall be paid by Lessee.

 

Appraiser ” shall mean Accuval Associates, Inc., a licensed appraiser pursuant to Title XI of FIRREA, or such other recognized appraiser as Lessor shall designate.

 

Appurtenances ” shall have the meaning given such term in Section 2.1 of the Site Lease.

 

Arbitration Proceeding ” means the procedure specified in the succeeding sentences for settling any dispute as to Fair Market Rental Value under the Support Agreement.  In the event that Lessor disagrees with Chicopee’s determination of Fair Market Rental Value under the Support Agreement, Lessor shall provide written notice to Chicopee of its intention to arbitrate the same.  Such dispute shall be arbitrated by a panel of three arbitrators, each of whom shall be experienced in the industrial textile manufacturing industry, one of which shall be chosen by the Lessor and one of which shall be chosen by Chicopee, in each case on or before the 20th day after such notice is given.  If either party required to choose an arbitrator hereunder shall fail to do so on or before such 20th day, then the appointment of such arbitrator shall be made by the American Arbitration Association, or an organization that is a successor thereto, upon application thereto in the same manner as specified below for the appointment of a third arbitrator.  The two arbitrators so chosen shall meet on or before the 10th day after the second arbitrator is appointed and on or before the 30th day after they meet shall decide the dispute.  If within such period they cannot agree upon their decision, they shall on or before the 10th day thereafter appoint a third arbitrator and, if they cannot agree upon such appointment, the third arbitrator shall be appointed upon their application or upon the application of either party to the American Arbitration Association, or any organization that is a successor thereto, from a panel of arbitrators having expertise in the industrial textile manufacturing industry and a familiarity with

 

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the equipment used or operated in such business.  The three arbitrators shall meet and decide the Fair Market Rental Value on or before the 30th day after the appointment of the third arbitrator.  Any decision or determination in which two of the three arbitrators shall concur shall be final and binding upon the parties, to the extent permitted by Applicable Laws and Regulations.  In designating arbitrators and in deciding the dispute, the arbitrators shall act in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in force; subject however, to the express provisions to the contrary, if any, contained in the Support Agreement.  If the American Arbitration Association or its successor shall not then be in existence, the arbitration shall proceed under comparable laws or statutes then in effect.  The parties to the arbitration shall be entitled to present evidence and argument to the arbitrators.  Each party shall pay (i) the fees and expenses of the arbitrator appointed by or on its behalf, (ii) equal shares of (A) the other expenses of the arbitration properly incurred, and (B) the fees and expenses of the third arbitrator, if any, and (iii) its own legal fees and expenses.

 

AS IS, WHERE IS BASIS ” shall mean the transfer of the interest in the Equipment on an AS IS, WHERE IS BASIS, without recourse or warranty, express or implied of any kind whatsoever, except as to the absence of Lessor’s Liens.

 

ASTM Standard shall mean the American Society for Testing and Materials Standard Practice for Environmental Site Assessments:  Phase I Environmental Site Assessment Process (Standard Designation E 1527-05), or subsequent ASTM standard relating to the scope of Phase I Environmental Site Assessments.

 

Authorized Officer ” shall mean, with respect to any Person, its Chairman of the Board, its Chief Executive Officer, its President, any Senior Vice President, the Chief Financial Officer, any Vice President, the Treasurer or any other management employee (A) that has the power to take the action in question and has been authorized, directly or indirectly, by the Governing Body of such Person, (B) working under the direct supervision of such Chairman of the Board, Chief Executive Officer, President, Senior Vice President, Chief Financial Officer, Vice President or Treasurer and (C) whose responsibilities include the administration of the transactions and agreements contemplated by the Operative Documents.

 

Basic Term ” shall have the meaning given such term in Section B of the Schedule.

 

Basic Term Commencement Date ” shall have the meaning given such term in Section 2(a)  of the Equipment Lease.

 

Basic Term Lease Rate Factor ” shall have meaning given such term in Section B of the Schedule.

 

Basic Term Rent ” shall have the meaning given such term in Section E of the Schedule.  Basic Term Rent shall equal the product of the Basic Term Lease Rate Factor times the Capitalized Lessor’s Cost on the Schedule.

 

Beneficiary ” means Site Lessee and any subsequent lessee or sublessee under the Site Lease, other than Chicopee and its Affiliates.

 

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Breakage Costs ” shall mean an amount equal to the amount, if any, required to compensate the Owner, the Lessor or any Member, as the case may be, for any additional losses (including any loss, cost or expense incurred by reason of the liquidation or reemployment of deposits or funds acquired by the Owner to fund its obligations under the Operative Documents, but excluding any lost profits) that it may sustain or incur.

 

BSA ” has the meaning given to such term in Section 17(a)(xvi)  of the Equipment Lease.

 

Business Day ” shall mean any day other than a Saturday, a Sunday, and any day on which commercial banking institutions located in New York, New York are authorized by law or other governmental action to close.

 

CAA ” and “ Construction Agency Agreement ” each means that certain Construction Agency Agreement dated as of June 24, 2010 between the Owner, as owner, and the Construction Agent, as the construction agent.

 

CAA Discount Rate ” shall mean the LIBOR Base Rate plus five percent (5%) as of the Construction Closing Date.

 

Capitalized Lessor’s Cost ” shall mean the Lease Investment Balance on the Basic Term Commencement Date plus any fees, costs and expenses incurred by Lessor or any Member in connection with the execution of the Schedule which are not included in the Lease Investment Balance.

 

Carry Cost on Advances ” means the sum of (i) for each day during each Carry Cost Period the amount equal to the product of (a) a rate per annum of 0.5% and (b) an amount equal to the Commitment less the aggregate amount of the outstanding Advances, (ii) with respect to any Carry Cost Period, an amount equal to the product of (a) a percentage rate per annum equal to the LIBOR Rate for such Carry Cost Period plus the Applicable Margin and (b) the aggregate amount of outstanding Advances and (iii) the amount equal the product of (a) 1.0% and (b) the Commitment which amount in this clause (iii) shall be deemed full earned on and as of the Construction Closing Date.

 

Carry Cost Period ” shall mean, with respect to any Advance, (i) initially, the period beginning on (and including) the date on which such Advance is made and ending on the day one month thereafter (or, if such subsequent month has no numerically corresponding calendar day, on the next succeeding  LIBOR Business Day) and (ii) thereafter, each period commencing on the first day after the end of the next preceding Carry Cost Period applicable to such Advance and ending on the day one month thereafter (or, if such month has no numerically corresponding calendar day, on the next succeeding LIBOR Business Day); provided, however , that all of the foregoing provisions relating to Carry Cost Periods are subject to the following:

 

(A)          if any Carry Cost Period would otherwise end on a day that is not a LIBOR Business Day, such Carry Cost Period shall be extended to the next succeeding LIBOR Business Day (unless the result of such extension would be to carry such Carry Cost Period into another calendar month, in which case such Carry Cost Period shall end on the immediately preceding LIBOR Business Day);

 

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(B)           no Carry Cost Period may end later than the Basic Term Commencement Date; and

 

(C)           any Carry Cost Period that begins on the last LIBOR Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Carry Cost Period) shall end on the last LIBOR Business Day of the calendar month at the end of such Carry Cost Period.

 

Casualty Occurrence ”, (i) for purposes of, and as used in, the Equipment Lease, the Site Lease and the Site Sublease, shall have the meaning set forth in Section 8 of the Equipment Lease and (ii) for purposes of, and as used in, the CAA, shall have the meaning set forth in Section 2.7 of the CAA.

 

Certificate of Acceptance ” means each certificate of acceptance executed and delivered pursuant to Section 1(b)  of the Equipment Lease in substantially the form of Annex B to Exhibit No. 1 of the Equipment Lease.

 

Change Date ” shall mean the Second EBO Date.

 

Change in Law ” shall mean any change (or proposed change, if in the Lessor’s good faith judgment, such proposed changed has a realistic possibility of becoming law, and would have a material adverse effect on Lessor or any Member) in the Code or in the interpretation, re-interpretation or application thereof made subsequent to the Construction Closing Date and on or prior to the Basic Term Commencement Date.

 

Change Order ” shall have the meaning set forth in Section 2.9(b)  of the Construction Agency Agreement.

 

Chicopee ” means Chicopee, Inc., a Delaware corporation.

 

Claim ”, (i) for purposes of, and as used in, the Equipment Lease, the Site Lease and the Site Sublease, shall have the meaning set forth in Section 15(a)  of the Equipment Lease and (ii) for purposes of, and as used in the CAA, shall have the meaning set forth in Section 7.1(a)  of the CAA.

 

Code ” shall mean the Internal Revenue Code of 1986, as amended and superseded from time to time, and the rules and regulations promulgated thereunder.

 

Commercial Operation ” shall mean the capability of the Equipment to operate in all respects in accordance with the terms of the Purchase Documents and which satisfies the Construction Completion requirements.

 

Commitment ” shall mean U.S.$56,657,070.00.

 

Commitment Fee ” shall mean an amount equal to 1% of the Commitment.

 

Company ” means Chicopee, Inc., a Delaware corporation.

 

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Confidential Information ” means (i) all information, documents and records describing or relating to the business, operational, marketing and financial plans, strategies, relationships and performance of Lessee, any Guarantor or any Affiliate of any of them and their respective suppliers and customers provided by Lessee, any Guarantor or any Affiliate of any of them to Lessor or its advisors in the course of due diligence, in reports from Lessee, or through observations at the Site or the Facility and (ii) all Proprietary Information.  All of the foregoing information, documents and records shall be Confidential Information whether or not they are marked “confidential”, whether or not they are in oral, written, electronic or other form.

 

Construction Agency Event of Default ” shall have the meaning set forth in Section 4.1 of the CAA.

 

Construction Agent ” shall mean the Company in its capacity as construction agent under the CAA.

 

Construction Budget ” shall mean the budget attached as Exhibit V to the CAA, which budget sets forth all costs anticipated on the Construction Closing Date to be incurred for the purchase (in the name of the Lessor, as owner), delivery and installation of the Equipment and the construction, start-up and testing of the Equipment, as such budget may be amended, modified or adjusted in accordance with the CAA.

 

Construction Closing Date ” shall mean June 24, 2010.

 

Construction Completion ” shall mean the Equipment is complete and in Commercial Operation, which is expected to be October 8, 2011.  The Equipment will be deemed to be completed upon receipt by Owner of evidence, in form and substance satisfactory to Owner, of (i) successful completion of fundings of Project Costs in accordance with the Construction Budget for the purchase, delivery and installation of the Equipment at the Site, (ii) certification of satisfactory completion by the Engineering Consultant, (iii) the Appraisal by the Appraiser and a tax opinion from Winston & Strawn LLP, (iv) Lessee’s Certificate of Acceptance, (v) Lessee’s acceptance of an amended Schedule, including acknowledgment of any repricing under the Equipment Lease and a representation and warranty that the conditions precedent to the Equipment Lease have been satisfied, (vi) title to the Equipment, is held by Owner, free and clear of all Liens (other than Lessor’s Liens), (vii) the Equipment, the Facility and the Site comply with all Applicable Laws in all material respects, (viii) all Governmental Approvals required to operate the Equipment, for which failure to obtain could have a Material Adverse Effect, (ix) a certificate of occupancy relating to the Facility, (x) all lien waivers or releases with respect to all amounts paid to any contractor or Vendor in connection with the Equipment, the Facility or the Site, and (xi) all employees of Lessee necessary or required to operate the Equipment have been hired and trained.

 

Construction Completion Date ” shall mean the date upon which Construction Completion is achieved and the Basic Term (as defined in the Equipment Lease) commences with respect to the Equipment.

 

Construction Documents ” shall mean, collectively, the Construction Budget, the Milestones, the Preliminary Specifications, the Drawings and Specifications, and any other Additional

 

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Construction Documents or other agreements with architects or contractors entered into by the Construction Agent in accordance with the Construction Agency Agreement in connection with the construction of the Facility or the Equipment.

 

Construction Period ” shall mean the period that commences on the Construction Closing Date and ends on the Basic Term Commencement Date.

 

Construction Restoration or Replacement Plan ” shall mean a plan and time schedule for the application of insurance proceeds in the case of a casualty event (including a Casualty Occurrence) and any other funds available to the Construction Agent with which to restore or replace any property affected by a casualty event (including a Casualty Occurrence).

 

Construction Termination Date ” shall mean October 8, 2011; provided , however , that if through no fault of the Construction Agent the Equipment has not then been completed but can reasonably be anticipated to be completed and Construction Completion achieved by December 30, 2011, the Construction Termination Date shall be extended until December 30, 2011 (the “ Construction Termination Extension ”).

 

Construction Termination Extension ” shall have the meaning set forth in the definition of “Construction Termination Date”.

 

Consultants ” shall mean the Appraiser, the Engineering Consultant and the Environmental Consultant.

 

Credit Agreement ” shall mean the Credit Agreement dated as of November 22, 2005, as amended December 8, 2006, as further amended September 17, 2009, among Polymer Group, Inc., as Borrower, the Lenders referred to therein, Citicorp North America, Inc., as Administrative Agent, Documentation Agent, Collateral Agent and Syndication Agent, and Citigroup Global Markets Inc., as Sole Lead Arranger and Sole Bookrunner, as amended from time to time and any successor credit agreement entered into in connection with a refinancing, refunding or replacements thereto.  References to any terms defined in the Credit Agreement shall mean the Credit Agreement as in effect as of the Construction Closing Date without regard to any further amendments or supplements.

 

Default ” shall have the meaning given such term in Section 12(a)  of the Equipment Lease.

 

Discount Rate means the interest rate per annum provided by the Lessee in writing, on or before the Base Lease Term Commencement Date, and reflected in amendments to Exhibit No. 1 to the Equipment Lease.  Such Discount Rate will be determined by the Lessee in accordance with GAAP.

 

Documents ” means, collectively, the Equipment Lease, the Schedule, each Certificate of Acceptance, the Guaranty, the Site Lease, the Site Sublease, the Support Agreement, the Security Deposit Pledge Agreement, the Easement Agreement, each Acceptable Letter of Credit, each SNDA, the Letter of Understanding and all other consents, agreements and documents relating thereto or to the Equipment, the Facility or the Site.

 

Dollars ” or “ $ ” means the legal currency of the United States of America.

 

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Downgrade Event ” shall mean that the senior unsecured debt obligations (or long-term deposits) of an Acceptable Letter of Credit Bank are no longer rated at least “Baa3” by Moody’s and at least “BBB-” by S&P.

 

Drawings and Specifications ” shall have the meaning given such term in Section 2.2(a)  of the Site Lease.

 

Easement Agreement ” shall mean the Easement Agreement, dated as of June 24, 2010, by and between Site Lessor, as grantor, and Site Lesee, as grantee.

 

Easements ” shall have the meaning given such term in Schedule E of the Site Lease.

 

Effective Rate shall have the meaning given such term in Section 3(d)  of the Equipment Lease.

 

EH&S ” shall have the meaning given such term in Section 17(b)(iii)  of the Equipment Lease.

 

EH&S Program ” shall have the meaning given such term in Section 17(b)(iii)  of Equipment Lease.

 

Engineer ” means an independent engineer of national standing competent in industrial textile manufacturing operations mutually selected by Beneficiary and Chicopee.  If Chicopee and Beneficiary cannot agree upon the Engineer, either party, on behalf of both parties, may apply to the Chief Judge of the United States District Court for the Southern District of New York for the appointment of the Engineer, and the other party may not raise any questions as to the court’s full power and jurisdiction to entertain the application and make the appointment.

 

Engineering Consultant ” shall mean E3 Consulting, Inc., or such other qualified and recognized engineering firm as the Lessor shall designate.

 

Environmental Consultant ” shall mean an independent third party environmental consultant as the Owner shall designate who has training and experience adequate to perform an Environmental Evaluation in a safe and professional manner in accordance with current industry standards and in compliance with all applicable Environmental Laws.

 

Environmental Evaluation ” means (i) the completion of a Phase I ESA and environmental compliance review of the Site, the Facility and the Equipment and (ii) if (A) the Phase I ESA identifies RECs or environmental compliance issues related to the operation of the Site, and (B) the Environmental Consultant recommends further evaluation or investigation in addition to the Phase I ESA or environmental compliance review, then (iii) Lessor or Owner shall engage an Environmental Consultant to complete a Phase II ESA or further compliance evaluation.  Copies of any Phase I ESA or Phase II ESA reports generated as part of the Environmental Evaluation shall be provided to and may be relied upon by the other party.  If an Adverse Environmental Condition (other than a minor noncompliance or de minimis and surficial Release to a non-pervious surface or to soil) is identified, the Company or PGI will pay for the Environmental Evaluation; to the extent not specified in the Operative Documents, Owner shall pay for the Environmental Evaluation.

 

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Environmental Law ” shall mean, whenever enacted or promulgated, any applicable Federal, state, county or local law, statute, ordinance, rule, regulation, Environmental Permit, administrative or court order, judgment, decree, injunction, code or requirement or any agreement with a Governmental Authority:

 

(x)            relating to pollution (or the cleanup, removal, remediation or encapsulation thereof, or any other response thereto), or the regulation or protection of human health, safety or the environment, including air, water, vapor, surface water, groundwater, drinking water, land (including surface or subsurface), plant, aquatic and animal life, or

 

(y)           concerning exposure to, or the use, containment, storage, recycling, treatment, generation, discharge, emission, Release or threatened Release, transportation, processing, handling, labeling, containment, production, disposal or remediation of any Hazardous Substance.

 

in each case as amended and as now or hereafter in effect, and any common law (including, without limitation, injunctive relief and tort doctrines such as negligence, nuisance, trespass and strict liability) that may impose liability or obligations for injuries (whether personal or property) or damages due to or threatened as a result of the presence of, exposure to, or ingestion of, any Hazardous Substance, whether such common law or equitable doctrine is now or hereafter recognized or developed.  .

 

Environmental Loss ” shall mean any loss, cost ( including investigation, removal, cleanup and remedial costs), damage, liability, fine, penalty, penalty interest and surcharges or expense (including, without limitation, reasonable attorneys’, engineering and other professional or expert fees), and damages to, loss of the use of, or decrease in value of, the Site, the Facility or the Equipment arising out of or based on any Adverse Environmental Condition.

 

Environmental Permits ” mean all Governmental Approvals required under Environmental Law for the ownership, lease, construction or operation of the Equipment, the Support Equipment, the Support Items or the Site.

 

EPA ” shall mean the United States Environmental Protection Agency.

 

Equipment ” shall mean an integrated manufacturing line in terms of design, function and manufacturing capabilities (which, on the Basic Term Commencement Date, generally consists of the equipment listed in Annex A to the Schedule of the Lease) including (i) one complete REICOFIL 4 SSMMS line for the production of heat sealed polypropylene nonwoven fabrics, consisting of a 5-beam REICOFIL 4 Composite Extrusion Line, (ii) the Packaging and Wrapping system consisting of an automated bundle sorting and wrapping system that will accept custom-slit rolls from the production line, allow an operator to sort rolls into appropriately sized bundles, then automatically apply end protection and wrap each bundle with polyethylene stretch film, (iii) the Mixing and dosing system consisting of a batch-style mixing system used to prepare chemical solutions for application by the production equipment, (iv) the Equipment lighting consisting of sealed fluorescent lighting fixtures placed on the machine platform to illuminate all levels of the production equipment, (v) all parts or components of any of the Equipment, including ones that are temporarily removed from the Equipment, (vi) all manuals, Included IP,

 

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other licenses and records (other than Rent records and Proprietary Information) with respect to such Equipment, and (vii) all substitutions and replacements of any and all thereof, including, but not limited to, any replacement equipment which may from time to time be substituted for the Equipment leased hereunder; together in each case with any and all Parts permanently incorporated or installed in or attached thereto or any and all Required Modifications and Optional Modifications that are Non-Severable Modifications, in each case, to which title thereto vests in the Lessor pursuant to the terms of the Equipment Lease.

 

Equipment Cost means the fair market value of the Equipment on the Basic Term Commencement Date as determined in the Appraisal.

 

Equipment Lease ” means the Equipment Lease Agreement, dated as of June 24, 2010, together with the Schedule thereto, pursuant to which the Lessor has leased the Equipment to Chicopee.

 

Equipment Lease Default ” means a Default.

 

Equipment Lease Term ” means the term of the Equipment Lease, including all extensions thereof.

 

Equipment Logs ” has the meaning specified in Section 3.4 of the Support Agreement.

 

Eurocurrency Reserve Requirements ” means the aggregate (but without duplication) of the rates (expressed as a decimal fraction) of reserve requirements in effect on the day that is two (2) Business Days prior to the beginning of the applicable Carry Cost Period (including basic, supplemental, marginal and emergency reserves under any regulations of the Federal Reserve Board or other Governmental Authority having jurisdiction with respect thereto, as now and from time to time in effect) for Eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the Federal Reserve Board) that are required to be maintained by a member bank of the Federal Reserve System.

 

Excluded Taxes ”, (i) for purposes of, and as used in, the Equipment Lease, shall have the meaning set forth in Section 4(a)  of the Equipment Lease and (ii) for purposes of, and as used in, the CAA, shall have the meaning set forth in Section 7.1(b)  of the CAA.

 

Facility ” means the new building to be constructed by the Company on the Site to house the Equipment and all improvements on the Site relating thereto or associated therewith, including, without limitation, the storage silos and the warehouse.

 

Fair Market Rental Value

 

(i) for purposes of, and as used in, the Equipment Lease, means the Rent which a willing lessee (who is neither a lessee in possession nor a used equipment dealer) would pay for the Rent of the Equipment (in use and in place) in an arm’s-length transaction to a willing lessor under no compulsion to lease for a period similar to the period for which such Fair Market Rental Value is being determined, determined using the same methodology and assumptions as utilized on the Basic Term Commencement Date for purposes of establishing Capitalized Lessor’s Cost; provided , however , that in such determination the Equipment shall be assumed to be in the

 

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condition in which it is required to be maintained and returned under the Equipment Lease; provided , further , that Fair Market Rental Value shall be determined by the Appraisal Procedure;

 

(ii) for purposes of, and as used in, the Support Agreement, with respect to any item of Support Equipment means the rental amount that would be obtainable for such item of Support Equipment, delivered installed, in place, fully operational and in use, in an arm’s length lease between an informed and willing lessor and an informed and willing lessee, each under no compulsion to lease, assuming that (1) the lessee would continue to use such item of Support Equipment as part of a non woven fabric production facility substantially equivalent to the Facility and (2) no reduction should be made for any costs of removal.  For purposes of this definition, “in use” refers to the value in use of an item of Support Equipment as part of an ongoing non woven fabric production facility and reflects the extent to which such item of Support Equipment contributes to the profitability of the business of a non woven fabric production facility.  Fair Market Rental Value shall be determined by Chicopee in good faith; provided, however , that in the event Beneficiary disagrees with such determination, then Beneficiary may initiate, by written notice to Chicopee, an Arbitration Proceeding regarding such determination; and

 

(iii) for purposes of, and as used in, the Site Lease, the cash rent that would be obtained in an arm’s length lease between an informed and willing lessee (under no compulsion to lease) and an informed and willing lessor (under no compulsion to lease) of the Site or part thereof in question for the Site Lease Term without regard to the Equipment.

 

Fair Market Value ” for purposes of, and as used in the Equipment Lease, shall mean the price which a willing buyer (who is not a used equipment dealer) would pay for the Equipment (in use and in place) in an arm’s-length transaction to a willing seller under no compulsion to sell, determined using the same methodology and assumptions as utilized on the Basic Term Commencement Date for purposes of establishing Capitalized Lessor’s Cost; provided , however , that in such determination the Equipment shall be assumed to be in the condition in which it is required to be maintained and returned under the Equipment Lease.  Fair Market Value shall be determined by the Appraisal Procedure.

 

Financial Officer ” shall mean (i) the Executive Vice President of the Company and (ii) the Chief Financial Officer of the Company.

 

FIRREA ” shall mean the Federal Financial Institution Reform, Recovery and Enforcement Act of 1989.

 

First EBO Date ” shall have the meaning given such term in Section B of the Schedule.

 

First EBO Price shall have the meaning given such term in Section B of the Schedule.

 

Fiscal Quarter ” means any of the quarterly accounting periods of Lessee, ending on the Saturday closest to March 31, June 30, September 30 and December 31 of each year.

 

Force Majeure Event ” means with respect to the obligations of a Person, any circumstances or conditions beyond the reasonable control of such Person, including any Act of God, strike or lockout or other labor dispute, act of the public enemy, terrorism, war (declared or undeclared),

 

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blockade, revolution, riot, insurrection, civil commotion, lightning, fire, storm, flood, earthquake, explosion, government restraint, or embargo.

 

Full Recourse Construction Agency Event of Default ” shall have the meaning set forth in Section 5.1(c)(i)  of the Construction Agency Agreement.

 

Full Recourse Event ” means (a) any fraudulent act or omission or illegal acts or willful misconduct of the Construction Agent or any Guarantor in connection with the (i) the negotiation, execution, delivery, consummation and/or performance hereof or of any Operative Document; or (ii) the acquisition, construction or operation of the Equipment (or the construction in progress with respect thereto); (b) the misapplication of any Advance or any portion thereof or any other funds made available to the Construction Agent, any Guarantor or any of their respective Affiliates; or (c) an insolvency or bankruptcy event affecting the Construction Agent or Lessee.

 

Funding Request ” shall have the meaning specified in Section 3.1(a)  of the Construction Agency Agreement.

 

GAAP ” shall have the meaning given such term in Section 5(b)  of the Equipment Lease.

 

GECC means General Electric Credit Corporation of Tennessee, a Tennessee corporation.

 

German Vendor ” means REICOFIL.

 

Governing Body ” of any Person shall mean the board of directors, board of trustees, management committee, board of managers, managing member, managing partner, general partner or other governing entity.

 

Governmental Approvals ” shall mean any and all permits, authorizations, certificates, registrations, consents, approvals, variances or licenses required by any Governmental Authority or any Applicable Laws (including Environmental Laws) to import, construct, install, operate or use the Equipment, the Support Equipment or the Improvements, as required in connection with the use of the Site or the Facility.

 

Governmental Authority ” shall mean any nation or government, any state, provincial or other political subdivision thereof (whether federal, state or local), any court and any administrative agency or other regulatory body, instrumentality, authority or entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.

 

Guarantors ” shall mean each of PGI and PGI Polymer, Inc.

 

Guaranty ” shall mean the Guaranty, dated the Construction Closing Date, by Guarantors for the benefit of Owner and of Lessor, in the form of Exhibit No. 3 to the Equipment Lease.

 

Hazardous Substance ” means any of the following: (i) any petroleum or petroleum product, explosives, regulated radioactive materials, friable asbestos, ureaformaldehyde, polychlorinated biphenyls in regulated concentrations, lead and radon gas; (ii) any substance, material, product, derivative, compound or mixture, mineral, chemical, waste, gas, medical waste, or pollutant, in

 

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each case whether naturally occurring, man-made or the by-product of any process, that is toxic, harmful or hazardous to the environment or human health or safety, as defined or regulated under any Environmental Law.

 

Impositions ” mean all Real Estate Taxes, assessments, water and sewer rents and charges, license and permit fees, and other governmental levies and charges, general and special, ordinary and extraordinary, unforeseen as well as foreseen, of any kind and nature.

 

Improvements ” shall mean any and all buildings, foundations, footings, driveways, parking areas, structures and other improvements, including, but not limited to, any and all stormwater detention ponds, utility lines, pipes, connections and fixtures which are now located or hereinafter constructed in whole or in part on or underneath the Land, including, without limitation, the Facility and the Site Improvements.

 

Incentive Plan ” shall have the meaning given such term in Section 17(a)(xvi)  of the Equipment Lease.

 

Included IP ” shall mean all documentation, intellectual property, technical or confidential business information, and software a Vendor provides with or for the Equipment and all updates to the same the Vendor provides; provided that Included IP shall not include any Proprietary Information.

 

Indemnified Party ”, for purposes of, and as used in, the Equipment Lease, the Site Lease and the Site Sublease, shall have the meaning given such term in Section 15(a)  of the Equipment Lease.

 

Independent ” when used with respect to any specified Person shall mean such a Person who (i) is in fact independent, (ii) does not have any direct financial interest or any material indirect financial interest in the Company or any Affiliate of the Company and (iii) is not connected with the Company or any Affiliate of the Company as an officer, employee, promoter, underwriter, trustee, partner, director or Person performing similar functions.

 

Independent Appraiser ” shall mean a disinterested, licensed professional appraiser of industrial property who (i) meets the personal property qualifications criteria established by the Appraisal Foundation, (ii) is a member of the Appraisal Institute or holds the senior accreditation of the American Society of Appraisers, (iii) is in the regular employ, or is a principal of, a nationally recognized appraisal firm, (iv) has substantial experience in the business of appraising facilities similar to the Facility and (v) is a licensed appraiser pursuant to Title XI of FIRREA (if FIRREA is in effect at the time of determination).

 

Initial Use Date ” means either (i) the date of the expiration or earlier termination of the Equipment Lease and Beneficiary’s receipt of possession of the Equipment on the Site in accordance with the Equipment Lease or (ii) the date as determined by the Owner, should the Owner cause completion of the Equipment as per Section 5.1(c)(i) or Section 5.1(c)(ii) of the CAA.  The Initial Use Date will not occur if Chicopee purchases the Equipment pursuant to the Equipment Lease.

 

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Insurance Requirements ” (i) for purposes of, and as used in, the CAA, shall mean the terms and conditions of any insurance required by Section 2.8 of the CAA, (ii) for purposes of, and as used in, the Equipment Lease, shall mean the terms and conditions of any insurance required by Section 10 of the Equipment Lease, (iii) for purposes of, and as used in the Support Agreement, shall mean the terms and conditions of any insurance policy required by Section 3.5 of the Support Agreement, and (iv) for purposes of, and as used in the Site Lease and the Site Sublease, shall mean the terms and conditions of any insurance policy required by Section 5.8 of the Site Lease.

 

IRS ” shall mean the Internal Revenue Service of the United States Department of Treasury or any successor or predecessor agency thereto.

 

Land ” shall mean that certain tract or parcel of real immovable property situated in Waynesboro, Virginia, as more fully described on Schedule A to the Site Lease.

 

Lease Investment Balance ” shall have the meaning specified in Section 5.1(b)  of the Construction Agency Agreement.

 

Lessee ” shall have the meaning given such term in the preamble to the Equipment Lease.

 

Lessor ” shall have the meaning given such term in the preamble to the Equipment Lease.

 

Lessor Financial Disclosures ” shall have the meaning given such term in Section 5(h)  of the Equipment Lease.

 

Lessor’s Lien ” shall mean any Lien affecting the Equipment or any part thereof arising as a result of (i) Lessor’s rights under or pursuant to the Equipment Lease; (ii) any claim arising from any transfer by Lessor of an interest in the Equipment or the Equipment Lease; (iii) any claim against Lessor not related to the transactions contemplated by the Equipment Lease; (iv) any act or omission of Lessor not expressly contemplated by the Equipment Lease or not permitted without consent (which consent has not been granted) by Lessee or that is in violation of any term of the Equipment Lease or not taken as a result of the occurrence and continuance of a Default as permitted by the Equipment Lease; or (v) taxes imposed against Lessor or the consolidated group of taxpayers of which it is a member which are not to be indemnified against by Lessee under the Equipment Lease; provided , however , that there shall be excluded from this definition and no Lessor’s Lien shall exist if such Lien is being diligently contested in good faith so long as neither such proceedings nor Lien involves a material danger of the sale, forfeiture or loss of the Equipment or adversely affects Lessee’s rights under the Equipment Lease.

 

Lessor’s Transaction Expenses ” shall mean an amount equal to (a) Capitalized Lessor’s Cost minus (b) the Equipment Cost, provided that such amount shall not be less than $0.

 

Letter of Understanding ” shall mean that certain letter of understanding dated as of June 24, 2010, among PGI, the Lessee and the Lessor.

 

LIBOR Base Rate ” means, for each Carry Cost Period, the highest of (a) 2.5% per annum, (b) the offered rate per annum for deposits of Dollars for the applicable Carry Cost Period that appears on Reuters Screen LIBOR 01 Page as of 11:00 A.M. (London, England time) two (2)

 

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Business Days prior to the first day in such Carry Cost Period and (c) the offered rate per annum for deposits of Dollars for an Carry Cost Period of three (3) months that appears on Reuters Screen LIBOR 01 Page as of 11:00 A.M. (London, England time) two (2) Business Days prior to the first day of the applicable Carry Cost Period. If no such offered rate exists, such rate will be the rate of interest per annum, as determined by Agent at which deposits of Dollars in immediately available funds are offered at 11:00 A.M. (London, England time) two (2) Business Days prior to the first day in such Carry Cost Period by major financial institutions reasonably satisfactory to Agent in the London interbank market for such Carry Cost Period for the applicable principal amount on such date of determination.

 

LIBOR Business Day ” shall mean a Business Day on which dealings in Dollar deposits are carried on in the London interbank market.

 

LIBOR Rate ” shall mean with respect to each day during each Carry Cost Period, a rate per annum determined for such day in accordance with the following formula (rounded upward to the nearest 1/100th of 1%):

 

 

LIBOR Base Rate

 

 

1.00 – Eurocurrency Reserve Requirements

 

 

Lien ” shall mean any mortgage, deed of trust, pledge, hypothecation, assignment, deposit arrangement, easement or encumbrance, lien (statutory or other), charge, lease or other security interest or any preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement and any lease having substantially the same economic effect as any of the foregoing).

 

Limited Recourse Construction Agency Event of Default ” shall have the meaning set forth in Section 5.1(c)(ii)  of the CAA.

 

Limited Remedy Event of Default ” shall have the meaning given such term in Section 12(f)  of the Equipment Lease.

 

Loss ” shall have the meaning given such term in Section 15(b)  of the Equipment Lease.

 

Loss Amount ” shall have the meaning given such term in Section 15(b)  of the Equipment Lease.

 

Material Adverse Effect ” shall mean (i) a materially adverse effect on the operations, properties, assets, financial condition, contingent or otherwise, or material agreements of Lessee, Construction Agent, or any Guarantor, as the case may be or (ii) a material impairment of the ability of Lessee, Construction Agent or any Guarantor, as the case may be, to perform their respective obligations under or to remain in compliance with the Operative Documents to which they are a party or under the Credit Agreement, as the case may be.

 

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MatlinPatterson ” means MatlinPatterson Global Opportunities Partners LP (“GOF”) and each of its Affiliates that hold any equity of PGI, so long as such entities continue to be managed or controlled by GOF or are Affiliates or Subsidiaries of GOF.

 

Maximum Amount ” shall mean, as of any date, (a) 89.95% of Project Costs for Equipment Includable Under GAAP incurred as of such date, which will include the amount in clause (b) below (excluding the costs of any Casualty Occurrence or other loss of, theft of, or damage to all or any portion of the Equipment that is the result of a Force Majeure Event or an act or failure to act by a Person other than Construction Agent or any of its agents), minus (b) the present value of all payments previously made by Construction Agent that have not been reimbursed by either the Owner in accordance with Section 3.6 of the CAA or by any other Person, and all payments Construction Agent is, as of such date, expressly obligated to make in the future under the CAA as of such date, (in each case calculated using the CAA Discount Rate), but, in the case of this clause (b), excluding (1) any payments of all or any portion of the Lease Investment Balance and (2) any payments that are not required to be included in the calculation of Construction Agent’s maximum guaranty amount under EITF 97-10.

 

Member ” shall mean each of General Electric Credit Corporation of Tennessee, a Tennessee corporation, and ING Spunmelt Holdings LLC, a Delaware limited liability company, and their respective successors and permitted assigns, in each case in their capacity as members of Lessor.

 

Memorandum of Site Lease ” shall mean the Memorandum of Site Lease, dated as of June 24, 2010, by and between Site Lessor and Site Lessee, and recorded in the real estate records in the County where the Site is located, together with any amendments or supplements thereto.

 

Milestone ” shall mean a schedule for the delivery, installation, construction and completion of the Facility and the Equipment prepared by the Construction Agent and approved by the Owner and the Engineering Consultant, set forth in Exhibit IV of the Construction Agency Agreement, as the same may be amended from time to time as agreed by the Construction Agent, the Owner and the Engineering Consultant.

 

Moody’s ” means Moody’s Investors Service, Inc. and its successors and assigns, and, if Moody’s Investors Service, Inc. and its successors and assigns no longer issues securities ratings, the term “Moody’s” shall include at the option of Lessor, any other Person that issues internationally accepted securities ratings, and, upon the inclusion in this definition of such other Person, each reference in the Documents to a rating issued by Moody’s shall be deemed automatically replaced with a reference to the comparable rating issued by such Person.

 

Net Economic Return ” shall mean the Member’s anticipated nominal after-tax yield reflected in the computations of Basic Term Lease Rate Factor, the First EBO Price, the Second EBO Price and Stipulated Loss Values set forth in the original Exhibit No. 1 to the Equipment Lease, as such Exhibit No. 1 may be amended or replaced pursuant to the Equipment Lease, computed utilizing the multiple investment sinking fund method of analysis and the same assumptions, including the Pricing Assumptions and Tax Benefits, as may be amended and replaced pursuant to the Equipment Lease and changes in Exhibit No 1, and the same methodology and constraints as used by such Member in making the computations of Basic Term Lease Rate Factor, the First EBO Price, the Second EBO Price, and Stipulated Loss Values initially set forth in the original

 

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Exhibit No. 1 to the Equipment Lease.  In the event that the 4-year U.S. dollar fixed interest rate swap (vs. 90-day Libor), as determined by Bloomberg Screen IRSB18 (Ask Rate), as of 11 AM two business days prior to the Basic Term Commencement Date is other than 2.05 % (Lessor’s Funding Rate Index), the Member’s nominal after-tax yield, as described in (a) above, shall be increased or decreased by an amount equal to: (A) the 4 year U.S. dollar fixed interest rate swap (vs. 90-day Libor), as determined by Bloomberg Screen IRSB18 (Ask Rate),  as of 11 AM two business days prior to the Basic Term Commencement Date, less (B)  2.05 %, with the result of that calculation (positive or negative) multiplied by (C)  54.9545 %.

 

Non-Severable Modification ” shall mean any Optional Modification which is not readily removable without causing damage to the Equipment (or any part thereof).

 

Notification Date ” shall have the meaning given to such term in Section 5.1(g)  of the Construction Agency Agreement.

 

OFAC ” has the meaning given to such term in Section 17(a)(xvi)  of the Equipment Lease.

 

Officer’s Certificate ” shall mean with respect to any Person, a certificate signed by any Authorized Officer of such Person.

 

Operating Capacity ” means the ability of the Equipment to produce Product at the rate specified in the Purchase Contract (subject to scheduled or routine shutdown).

 

Operative Documents ” shall mean the CAA, the Site Lease, the Site Sublease, the Support Agreement, the Easement Agreement, each SNDA, any Additional Construction Document, any Acceptable Letter of Credit, the Guaranty, all Purchase Documents, the Equipment Lease and Schedule, the Letter of Understanding, the Construction Documents, the Project Documents, and all other consents, agreements and documents relating thereto or to the Equipment, the Facility or the Site.

 

Optional Modification ” shall have the meaning given such term in Section 7(c)  of the Equipment Lease.

 

Overdue Rate ” means the rate of 18% per annum or the maximum rate allowed by law.

 

Owner ” shall mean Gossamer Holdings, LLC, a Delaware limited liability company, and its successors and assigns.

 

Owner’s Accrued Interest ” shall mean interest, accrued monthly on each Advance by Owner, for each day during the Construction Period after such Advance was made.  Owner’s Accrued Interest shall be calculated on the basis of a 360-day year for the actual days elapsed and the rate of Owner’s Accrued Interest shall mean with respect to any Carry Cost Period, a percentage rate equal to the LIBOR Rate for such Carry Cost Period plus 1.75%.

 

Owner’s Lien ” shall mean any Lien on the Site or the Facility or any part thereof arising as a result of (i) Claims against or any act or omission of the Owner that is not related to, or that is in violation of, any Operative Document or the transactions contemplated thereby or that is in breach of any covenant or agreement of the Owner specified therein, (ii) Taxes imposed upon the

 

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Owner or the Owner that are not indemnified against by the Construction Agent pursuant to any Operative Document or are not related to or that are in violation of any Operative Document or the transactions contemplated thereby, or (iii) Claims against or affecting the Owner arising out of the voluntary or involuntary transfer by the Owner of any portion of the interest of the Owner in the Facility, the Site, the Project Documents, other than as contemplated or permitted by the Operative Documents.

 

Parts ” shall mean all appliances, components, parts, instruments, appurtenances, accessories, furnishings and other equipment of whatever nature which may now or from time to time be incorporated or installed in or attached to, or were provided by the manufacturer with, the Equipment, including after temporary removal from such Equipment.

 

Patriot Act ” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, P.L. 107-56, as amended.

 

Payment Date ” (i) for purposes of, and as used in, the Equipment Lease, shall have the meaning in Section 8 of the Equipment Lease and (ii) for purposes of, and as used in, the CAA, shall have the meaning set forth in Section 2.7 of the CAA.

 

Permitted Encumbrances ”, as used in the Site Lease, the Site Sublease and the Support Agreement, shall mean those encumbrances described in Schedule C to the Site Lease.

 

Permitted Lien ” shall mean (i) the rights of Lessor and Lessee as herein provided, (ii) Lessor’s Liens and Owner’s Liens, (iii) Liens for taxes, assessment or other governmental charge either not yet delinquent or being diligently contested in good faith by appropriate proceedings and so long as adequate reserves are maintained with respect to such Liens and available to Lessee for the payment of such taxes, provided, however, that a contest shall be permitted only if Lessor shall have determined in good faith that the contest should not result in any adverse consequences to it or any Member, and only so long as neither such proceedings nor such Liens involve any material danger of the sale, forfeiture, loss or loss of use of the Equipment or any part thereof, or any interest of Lessor therein or any risk of criminal liability of Lessor and Lessee has given Lessor prior written notice of Lessee’s intent to contest any such taxes and Lessee has agreed to indemnify Lessor for any and all costs and expenses (including, without limitation reasonable attorneys’ fees) which Lessor may incur as a result of such contest, (iv) inchoate materialmen’s, mechanics’, carriers’, workmen’s, repairmen’s, or other like inchoate Liens imposed by law arising in the ordinary course of Lessee’s business for sums either not delinquent or being diligently contested in good faith and only so long as neither such proceedings nor any such Liens involve any material danger of the sale, forfeiture, loss or loss of use of the Facility or Equipment, or any part thereof, or any interest of Lessor therein or any material risk of material civil liability; provided that adequate reserves are maintained with respect to such Liens and that Lessee has given Lessor written notice thereof, (v) the rights of others under agreements or arrangements to the extent expressly permitted under the Equipment Lease, (vi) Liens arising out of any judgment or award against Lessee with respect to which at the time an appeal or proceeding for review is being prosecuted in good faith by appropriate proceedings diligently conducted and with respect to which there shall have been secured a stay of execution pending such appeal or proceeding for review and so long as adequate reserves are available to Lessee for the payment of such obligations and there is no material danger of sale,

 

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forfeiture, loss, or loss of use of the Equipment or material risk of material civil liability and Lessee shall have given Lessor written notice thereof, and (vii) any Lien against which Lessee causes to be provided a bond in such amount and under such terms and conditions as are reasonably satisfactory to Lessor.

 

Person ” shall mean any natural person, corporation, cooperative, partnership, limited liability company, joint venture, joint-stock company, firm, association, trust, unincorporated organization, Governmental Authority or any other entity, whether acting in an individual, fiduciary or other capacity.

 

PGI ” shall mean Polymer Group, Inc. a Delaware corporation.

 

Phase I ESA ” means the performance of a Phase I Environmental Site Assessment by an Environmental Consultant in accordance with the ASTM Standard

 

Phase II ESA ” means the collection of subsurface (e.g., soil, sediment, groundwater or surface water) or indoor air samples necessary in order to determine if a REC identified in a Phase I ESA and resulting from the operation of the Facility or Equipment has or may have caused a Release of Hazardous Substances at the Site, except for de minimis and surficial Releases to a non-pervious surface or to soil or Releases authorized by an Environmental Permit.

 

Preliminary Appraisal ” shall mean the appraisals, dated the Construction Closing Date, prepared by an Appraiser and addressed to the Owner, which Preliminary Appraisal shall set forth such Appraiser’s preliminary analysis and conclusions regarding the matters to be provided in the Appraisal, and conclude that such Appraiser reasonably expects that on the Basic Term Commencement Date the conclusions set forth in the Appraisal will be accurate.

 

Preliminary Specifications ” means the preliminary specifications for the Facility as set forth on Schedule F to the Site Lease.

 

Pricing Assumptions ” shall have the meaning given such term in Section 3(a)  of the Equipment Lease.

 

Prior Levels ” mean the greater of (i) the frequency, duration, volume, scope and capacity that the Support Equipment is necessary or the Support Items are necessary to be supplied or consumed in connection with the Process required for the Equipment to achieve Operating Capacity or (ii) the frequency, duration, volume, scope and capacity that the Support Equipment was used or the Support Items were supplied or consumed (on average) in connection with the Process during the thirty-six (36) month period of continuous commercial operation of the Equipment (or for such shorter continuous period if all of the Equipment is not in place during such entire thirty-six (36) month period) occurring immediately prior to the beginning of the Support Term.

 

Process ” the use and operation of the Equipment, Support Equipment and Support Items for the timely and efficient production at Operating Capacity, shipping and sale of the Product, in each case in a manner that complies with Applicable Laws, Insurance Requirements and Prudent Practice; provided , however, that “Process” shall not include the handling or offsite disposal of

 

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any Hazardous Substances or Chicopee’s Environmental Permits and shall not include Proprietary Information .

 

Product ” means spunbond non woven fabric.

 

Project Costs ” shall mean, without duplication, the amounts advanced for payment of fees, expenses, costs and other items related to purchasing, importing, designing, engineering, surveying, developing, financing, constructing, installing, starting-up and testing the Equipment, in accordance with, and set forth on, the Construction Budget and the other Project Documents and specified below:

 

(i)            the cost to purchase from each Vendor the Equipment, as specified in the Construction Budget;

 

(ii)           all contractor payments listed in the Construction Budget in respect of the Equipment;

 

(iii)          all expenses relating to environmental audits, inspections or studies with respect to the Site, the Facility or the Equipment;

 

(iv)          fees and other expenses relating to the Appraisal;

 

(v)           fees and expenses of the Environmental Consultant, the Engineering Consultant and any other Consultants;

 

(vi)          all Carry Costs on Advances, Commitment Fees and any Breakage Costs accrued monthly and/or payable in respect of the Advances;

 

(vii)         any Tax if and to the extent such Tax (1) relates to the Equipment and (2) is indemnifiable pursuant to Section 7.1(b) of the Construction Agency Agreement;

 

(viii)        all Transaction Expenses, to the extent not otherwise included in this definition;

 

(ix)           all fees and costs of obtaining title insurance with respect to the Equipment;

 

(x)            engineering and design costs with respect to the Equipment;

 

(xi)           All insurance premiums and deductibles paid by Owner in respect of insurance obtained in accordance with Section 2.8 (a)(i);

 

(xii)          such other items with respect to the Equipment as the Owner may approve in writing; and

 

(xiii)         any other amounts to be funded from proceeds of Advances pursuant to the Operative Documents.

 

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Project Costs for Equipment Includable Under GAAP ” shall mean, without duplication, the amounts advanced for payment of costs and other items related to purchasing, importing, designing, engineering, surveying, developing, constructing, installing, starting-up and testing the Equipment, in accordance with, and set forth on, the Construction Budget and the other Project Documents and, subject to being includable under GAAP, including but not limited to the items specified below (with respect to the Equipment only):

 

(i)            the cost to purchase Equipment from any vendor or supplier;

 

(ii)           all contractor payments made in respect of the Equipment;

 

(iii)          all costs relating to environmental audits, inspections or studies with respect to the Equipment;

 

(iv)          fees and costs of Owner’s insurance consultants and insurance brokers with respect to the insurance obtained in accordance with Section 2.8(a)(i) of the CAA;

 

(v)           fees and costs of the Environmental Consultant, the Engineering Consultant, the Appraiser, and any other Consultants with respect to the Equipment;

 

(vi)          Owners Accrued Interest (excluding interest on equity capital);

 

(vii)         sales, use, personal property, tangible or intangible taxes incurred in connection with the Equipment during the Construction Period;

 

(viii)        engineering and design costs with respect to the Equipment;

 

(ix)           all insurance premiums and deductibles paid by Owner in respect of insurance obtained in accordance with Section 2.8(a)(i) of the CAA;

 

(x)            all fees and costs of obtaining title insurance with respect to the Equipment;

 

(xi)           Owner’s legal expenses related to documenting all vendor and contractor legal agreements; and

 

(xii)          such other items with respect to the Equipment as the Owner and Construction Agent may approve in writing as being properly includable under GAAP.

 

Project Documents ” shall mean, collectively, the Purchase Documents, the Construction Documents and, when entered into, each Additional Construction Document, and all Third Party Contracts, if any, together with any replacement or substitute agreement for any of the foregoing.

 

Project Obligations ” shall have the meaning set forth in Section 2.1 of the Construction Agency Agreement.

 

Proprietary Information ” shall mean (i)  Appendix 3.4 to the Purchase Contract, (ii) all trade secrets, know how and other intellectual property of Lessee or any Affiliate of Lessee or any

 

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supplier or customer of any of them, including any special settings and adjustments Lessee makes to the Equipment or to the Included IP, and any Severable Modifications which are Optional Modifications, and (iii) all proprietary business information of Lessee or any Affiliate of Lessee or any supplier or customer of any of them regarding the Equipment, Lessee’s manufacturing operations or techniques, or Lessee’s products or product specifications, provided however that “Proprietary Information” shall not include (a) the Equipment, (b) any initial settings established by the German Vendor in accordance with Appendix 3.1 of the Purchase Contract or by any other Vendor, or (c) except to the extent included in subsections (i), (ii), or (iii) above, any information, documents and records relating thereto, as of the Basic Term Commencement Date.  All of the foregoing shall be Proprietary Information, regardless of the source of disclosure to Lessor, whether or not (a) obtained in due diligence, in reports from Lessee, or through observations at the Site or the Facility, (ii) marked “confidential”, or (iii) in oral, written, electronic or other form.

 

Prudent Practice ” shall mean, at a particular time, either (i) any of the practices, methods and acts engaged in or approved by a significant portion of the competitive engineered nonwoven fabrics industry operating in the United States at such time, but, in any event, a standard of care and usage no less than that which the Company and its Affiliates would apply with respect to other equipment and facilities similar to the Equipment or the Facility owned, leased or operated by them or (ii) with respect to any matter to which the practices referred to in clause (i) do not apply, any of the practices, methods and acts that, in the exercise of reasonable judgment in light of the facts known at the time the decision was made, could have been expected to accomplish the desired result at a reasonable cost consistent with good competitive engineered nonwoven fabrics business practices, reliability, safety and expedition.  “Prudent Practice” is not intended to be the optimum practice, method or act to the exclusion of all others, but rather to be a spectrum of possible practices, methods or acts having due regard for, among other things, manufacturers’ warranties, the requirements of insurance policies and the requirements of governmental bodies of competent jurisdiction.

 

Purchase Contract ” means that certain contract dated June 24, 2010, between REICOFIL and Owner.

 

Purchase Documentation ” shall have the meaning set forth in Section 3.3 of the Construction Agency Agreement, including the Purchase Contract.

 

Purchase Documents ” shall mean the Purchase Contract and each other bill of sale, invoice, purchase agreement, purchase order, patent and license and warranty assignment or agreement, that evidences, in whole or in part, Owner’s title to or rights to the Equipment.

 

Purchase Document Event ” shall mean any Casualty Occurrence (including the occurrence of any major or material damage to the Equipment) or breach or any other event which (A) entitles any Vendor to terminate any Purchase Document,  (B) entitles Owner to terminate any Purchase Document,  (C) results in any claim, loss, damage, penalty, injury, demand, action or suit of any Vendor against Owner or Construction Agent or of Owner or Construction Agent against any Vendor or (D) would delay delivery of the completed Equipment to a date after the Construction Termination Date.  Owner shall, in addition, have the rights and remedies set forth in Section 5.1 of the CAA upon the occurrence of any Purchase Document Event.

 

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Rating Agencies ” shall mean S&P and Moody’s or, if at the time the rating of any such Rating Agency is required such Rating Agency no longer provides the relevant rating (other than as a result of the rated Person choosing not to have such rating), such other rating agency of national recognition.

 

Real Estate Taxes means all taxes, assessments, betterments, use fees and charges, sewer entrance fees and all other public charges levied, assessed or imposed at any time by any Governmental Authority or agreed or governmentally imposed “in lieu of” or similar charges, upon or against the Site.

 

REC ” shall mean “recognized environmental condition” as that term is defined by the ASTM Standard.

 

REICOFIL ” shall mean Reifenhäuser REICOFIL GmbH & Co. KG, a German limited liability company and partnership.

 

Release ” shall mean disposing, discharging, injecting, spilling, leaking, leaching, dumping, pumping, pouring, emitting, escaping, emptying, seeping, placing and the like, into or upon any land, soil, subsoil, real property or water, surface water or groundwater or air, or otherwise entering into the environment.

 

Rent ” means all amounts payable by Lessee hereunder, including Basic Term Rent with respect to the Equipment (as provided in Section 2(a)  of the Equipment Lease) and any Supplemental Rent (including the corresponding value added tax).

 

Rent Payment Date ” with respect to the Equipment shall have the meaning given such term in Section E of the Schedule.

 

Requested Funding Date ” shall have the meaning specified in Section 3.1(a)  of the Construction Agency Agreement.

 

Required Amount ” shall mean (i) from the Construction Closing Date to but excluding the Basic Term Commencement Date, an amount equal to 10% of the Commitment, and (ii) from and after the Basic Term Commencement Date, an amount equal 10% of Capitalized Lessor’s Cost.

 

Required Modification ” shall have the meaning given such term in Section 7(b)  of the Equipment Lease.

 

Requirements ” shall have the meaning set forth in Section 2.2(b)  of the Site Lease.

 

Responsible Officer ” of an entity means any corporate officer (or in the case of a non-corporate entity, any comparable authority) of such entity who is designated as the recipient of a notice pursuant to the provisions of any Document or who, in the normal performance of such officer’s operational responsibilities, would have knowledge of the matter at issue and the relevant provisions of any applicable Document.

 

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Restoration or Replacement Plan ” means a plan and time schedule for the application of insurance proceeds in the case of a casualty event and any other funds available to the Lessee with which to restore or replace any property affected by a casualty event.

 

S&P ” means Standard & Poor’s Rating Group, a division of The McGraw-Hill Companies, inc., and its successors and assigns and, if Standard & Poor’s Ratings Group and its successors and assigns no longer issues securities ratings, the term “S&P” shall include, at the option of Lessor, any other Person that issues internationally accepted securities ratings, and, upon the inclusion in this definition of such other Person, each reference in the Documents to a rating issued by S&P shall be deemed automatically replace with a reference to the comparable rating issued by such Person.

 

Schedule ” means the schedule to the Equipment Lease executed and delivered pursuant to Section 1(b)  of the Equipment Lease in substantially the form attached to the Equipment Lease as Exhibit No. 1.

 

Second EBO Date shall have the meaning given such term in Section B of the Schedule.

 

Second EBO Price shall have the meaning given such term in Section B of the Schedule.

 

Security Deposit ” shall mean a cash amount equal to 10% of Capitalized Lessor’s Cost.

 

Security Deposit Pledge Agreement ” means that certain Security Deposit Pledge Agreement dated as of the Basic Term Commencement Date by and among the Lessee and the Lessor.

 

Seller ” shall have the meaning given such term in Annex B of the Schedule.

 

Severable Modification ” means any Optional Modification or Required Modification other than a Non-Severable Modification.

 

Significant Vendor ” means any Vendor party to any Project Document in respect of good, services or any combination thereof that has a contract price, purchase price or similar price equal to or greater than $500,000.

 

Site ” shall mean the Land plus the Improvements and so much of the Adjacent Property as is reasonably necessary for access to the Land and the Improvements and reasonably necessary for the use thereof consistent with the proposed use and operation of the Equipment at the Site.

 

Site Improvements” shall have the meaning given such term in Section 2.3 of the Site Lease.

 

Site Lease ” shall mean the Site Lease, dated as of June 24, 2010, by and between the Site Lessor/Owner and the Site Lessee/Company.

 

Site Lease Base Rent ” during the Site Lease Term shall mean (A) during the period from the date of the Site Lease to the Transition Date, the amount specified in Schedule D to the Site Lease and (B) during the remainder of the Site Lease Term, Fair Market Rental Value of the Site (determined annually).

 

26



 

Site Lease Basic Term ” means the period beginning on the Site Lease Commencement Date and ending on the earliest to occur of (a) the day on which the Equipment located on the Site is purchased by Site Lessor pursuant to the Equipment Lease, and all obligations of Site Lessor under the Documents are indefeasibly paid in full, (b) the date on which the Equipment is removed from the Site, (c) the last day of the calendar month thirty-five (35) years after the Site Lease Commencement Date, provided, however , if the Basic Term of the schedule under the Equipment Lease is extended or renewed, the Site Lease Basic Term will automatically be extended for the same period of time, and (d) the day that Site Lessee is entitled to recover possession of the Equipment located on the Site pursuant to Section 8 of the Equipment Lease and all obligations of Site Lessor under the Documents are indefeasibly paid in full.

 

Site Lease Commencement Date ” means the first business day after the date that (i) the Facility is substantially completed by Site Lessor, (ii) Site Lessor has provided Site Lessee with a certificate of occupancy for the Facility, and (iii) Site Lessor has provided Site Lessee with exclusive possession of the Site.

 

Site Lease Event of Default shall have the meaning specified in Section 9.1 of the Site Lease.

 

Site Lease Renewal Term ” shall have the meaning specified in Section 9.4 of the Site Lease.

 

Site Lease Rent ” shall mean the Site Lease Base Rent and Site Lease Supplemental Rent.

 

Site Lease Supplemental Rent means all amounts necessary to reimburse Site Lessor for any actual and reasonable out-of-pocket costs for Real Estate Taxes, Utilities, and Site Lessor insurance premiums with respect to the Site; and Site Lessor’s actual and reasonable out-of-pocket maintenance costs which are paid by Site Lessor with respect to the Site.  For any of the foregoing reimbursable items not incurred solely with respect to the Site, the amount of Site Lease Supplemental Rent attributable to such item shall be the portion of such item used by, or otherwise attributable to, the Site.  To the extent such items are calculated for any period beginning before the Site Lease Commencement Date or after the Transition Date, then such items shall be equitably prorated.

 

Site Lease Term means the Site Lease Basic Term together with each Site Lease Renewal Term.

 

Site Lessee ” shall mean Gossamer Holdings, LLC, as site lessee of the Site under the Site Lease.

 

Site Lessor ” shall mean Chicopee, Inc., as site lessor of the Site under the Site Lease.

 

Site Sublease ” shall mean the Site Sublease, dated as of June 24, 2010 by and between the Lessor, as Site Sublessor, and Lessee, as Site Sublessee.

 

Site Sublease Base Rent ” shall mean the amount specified in Schedule D to the Site Sublease.

 

Site Sublease Term shall mean the period beginning on the Site Lease Commencement Date and ending on the date of expiration or earlier termination of the Equipment Lease Term,

 

27



 

regardless of whether the Equipment Lease Term expires or terminates due to the passage of time, the occurrence of a Default and the exercise of available remedies thereunder, the exercise of a purchase option under the Equipment Lease or for any other reason.

 

Site Sublessee ” shall mean Chicopee, Inc., as sublessee of the Site under the Site Sublease.

 

Site Sublessor ” shall mean Gossamer Holdings, LLC, as sublessor of the Site under the Site Sublease.

 

SNDA ” means each mortgagee waiver or secured party disclaimer of interest executed and delivered pursuant to Section 1(b), Section 6(e)(v) or Section 17(b)(vi)  of the Equipment Lease or otherwise in form and substance reasonably satisfactory to Lessor.

 

Special SLV Amount ” shall have the meaning set forth in Section 12(e)  of the Equipment Lease

 

Stipulated Loss Value ” shall mean with respect to the Equipment as of any date of determination on or prior to the last day of the Basic Term, the amount determined by multiplying Capitalized Lessor’s Cost for the Equipment by the percentage specified in Annex C to the Schedule applicable to such Equipment, determined as of the Rent Payment Date prior to the Casualty Occurrence.  In the event that the Equipment Lease is for any reason extended beyond the Basic Term, then the last percentage figure shown on Annex C to the Schedule shall control throughout any such extended term.

 

Stock ” shall mean the voting stock, membership interests or similar equity interests of any Person.

 

Subsidiary ” means, with respect to any Person, a corporation, limited liability company, partnership or other entity of which such Person and/or its other subsidiaries own, directly or indirectly, more than 50% of the Stock.

 

Supplemental Rent ” shall mean, without duplication, any and all liabilities, obligations, losses, damages, settlements, penalties, claims, actions, suits, costs, expenses (including all operating costs and expenses of Lessor) and disbursements (including, without limitation, reasonable fees and disbursements of legal counsel, accountants, appraisers, inspectors or other professionals, and costs of investigation) incurred by each of the Members or the Lessor), and all other amounts, liabilities, indemnities and obligations (other than Basic Term Rent) that Lessee assumes or becomes obligated or agrees to pay under the Operative Documents to or on behalf of Lessor or any other Person, including, without limitation, payments of Stipulated Loss Value, the purchase price to be paid by Lessee with respect to any Equipment, and payments of indemnities under Section 4 and Section 15 of the Equipment Lease and under Section 7.1 of the CAA.

 

Support Agreement ” shall mean that certain Support Agreement dated as of June 24, 2010 between the Site Lessor, as grantor, and the Owner, as beneficiary, as amended.

 

Support Equipment ” shall mean (i) all vehicles, (ii) site, process and maintenance equipment and tools, including, without limitation, repelletizing equipment, pyrolising oven, ultrasonic die pack cleaning system and high pressure hot water cleaning system, (iii) other rolling stock, (iv)

 

28



 

the test, measurement and laboratory equipment, (v) the office furnishings, business machines and electronics, and (vi) information systems and computers, all as more specifically to be set forth on Exhibit A to the Support Agreement; provided that in no event shall “Support Equipment” include Proprietary Information.

 

Support Items ” shall have the meaning specified in Section 2.3(a)  of the Support Agreement.

 

Support Price ” as of the end of each month is an amount equal to the Beneficiary’s Allocated Cost of the Support Items provided in such period.

 

Support Rights ” shall have the meaning as specified in Section 2.1 of the Support Agreement.

 

Support Term ” means the period beginning on the Initial Use Date and ending on the earlier to occur of (a) the day the Beneficiary elects to terminate the Support Agreement in accordance with its terms, (b) the termination of the Support Agreement by Chicopee pursuant to its terms, including Section 5.3 , and (c) the expiration or earlier termination of the Site Lease Term.

 

Survey ” shall have the meaning set forth in Section 2.2(b)  of the Site Lease.

 

Syndication Agent ” (i) for purposes of, and as used in, the Equipment Lease, shall have the meaning given such term in Section 13(e)  of the Equipment Lease and (ii) for purposes of, and as used in, the CAA, shall have the meaning given such term in Section 8.3(b)  of the CAA.

 

Tax Benefits ” shall mean each of the benefits and assumptions (and the representations) set forth in Section D of Exhibit No. 1 “Tax Benefits, Assumptions and Representations” of the Equipment Lease.

 

Tax ” or “ Taxes ”(i) for purposes of, and as used in, the Equipment Lease, the Site Lease and the Site Sublease, shall have the meaning given such term in Section 4(b)  of the Equipment Lease and (ii) for purposes of, and as used in, the CAA, shall have the meaning specified in Section 7.1(b)  of the CAA.

 

Tax Claim ” shall have the meaning given such term in Section 4(c)  of the Equipment Lease.

 

Taxing Authority ” shall have the meaning given such term in Section 4(a)  of the Equipment Lease.

 

Term ” shall mean the Basic Term.

 

Third Party Contract ” shall have the meaning set forth in Section 2.1(c)  of the CAA.

 

Transaction Expenses ” shall mean the following costs and expenses incurred in connection with the negotiation, due diligence and consummation of the transactions contemplated by the Operative Documents on the Construction Closing Date and through and including the Basic Term Commencement Date, including:

 

(i)            the Commitment Fee, the cost of the Preliminary Appraisal and the Appraisal, all costs and fees, including filing and recording fees and recording, transfer,

 

29


 

mortgage, intangible and similar Taxes in connection with the execution and delivery, filing and recording of the Site Lease, any other Operative Document or Project Document and any other document required to be filed or recorded pursuant to the provisions of the Operative Documents or the Project Documents and any Uniform Commercial Code filing fees in respect of the perfection of any security interests created by the Operative Documents or as otherwise reasonably required by the Owner;

 

(ii)           all costs and fees, including filing and recording fees and recording, transfer, mortgage, intangible and similar Taxes in connection with the execution and delivery, filing and recording the Equipment Lease or the Site Lease and any other document required to be filed or recorded pursuant to the provisions of the Equipment Lease or the Site Lease;

 

(iii)          the fees and expenses of the Engineering Consultant, the Environmental Consultant, the Appraisers and any other consultants retained by the Owner;

 

(iv)          the reasonable legal fees, expenses and disbursements of counsel to the Owner, the Lessor and any Member;

 

(v)           all fees and expenses of Lessor and any Member relating to the formation of Lessor, the negotiation, execution and delivery of Lessor’s operating agreement, and all ongoing operating costs and expenses of Lessor and disbursements (including, without limitation, reasonable fees and disbursements of legal counsel, accountants, appraisers, inspectors or other professionals, and costs of investigation of Lessor) incurred by each of the Members or the Lessor),;

 

(vi)          reasonable out-of-pocket costs and expenses of each Member; and

 

(vii)         any other reasonable, documented out-of-pocket expenses of the Owner and any Member relating to the Operative Documents and all other reasonable, documented out-of-pocket expenses of the Owner; and

 

(viii)        all fees and costs in connection with the issuance of Acceptable Letters of Credit.

 

Transactions ” (i) for purposes of, and as used in, the Equipment Lease, shall have the meaning set forth in Section 21(m)  of the Equipment Lease and (ii) for purposes of, and as used in, the CAA, shall have the meaning set forth in Section 8.16 of the CAA.

 

Transition Date ”, as used in the Site Lease and Site Sublease, means the date of expiration or earlier termination of (a) the Equipment Lease Term with respect to the Equipment located on the Site, and (b) the Site Sublease Term and Site Lessee’s receipt of possession of the Equipment at the Site.  The Transition Date shall not occur if Chicopee purchases the Equipment pursuant to the Equipment Lease.

 

UCC ” shall mean the Uniform Commercial Code as enacted in any applicable jurisdiction.

 

United States ” or “ U.S. ” shall mean the United States of America.

 

30



 

Utilities shall mean sewer usage or rental, refuse removal, and utilities, including, without limitation, gas, water, and electricity.

 

Vendor ” shall mean (i) any Person (including the Company and its Affiliates) who holds legal title to each item of Equipment prior to the purchase and acquisition thereof by the Owner, (ii) CH Robinson International, Inc., and (iii) any vendor, supplier or contractor who enters into a Project Document.

 

Rules of Construction .  Unless otherwise specified, references in any Document or any of the Appendices thereto to a Section, subsection or clause refer to such Section, subsection or clause as contained in such Document and to any Section, subsection or clause substituted therefor from time to time.  Any term defined in this Master List of Defined Terms by reference to another document, instrument or agreement shall continue to have the meaning ascribed thereto whether or not such other document, instrument or agreement is in effect.  The words “herein,” “hereof” and “hereunder” and other words of similar import used in any Document refer to such Document as a whole, including all annexes, exhibits and schedules, as the same may from time to time be amended, restated, modified or supplemented, and not to any particular section, subsection or clause contained in such Document or any such annex, exhibit or schedule.  Wherever from the context it appears appropriate, each term stated in either the singular or plural shall include the singular and the plural, and pronouns stated in the masculine, feminine or neuter gender shall include the masculine, feminine and neuter genders.  The words “including,” “includes” and “include” shall be deemed to be followed by the words “without limitation”; the word “or” is not exclusive; the rule of ejusdem generis shall not be applicable to limit a general statement, followed by or referable to an enumeration of specific matters, to matters similar to those specifically mentioned; references to Persons include their respective successors and assigns (to the extent and only to the extent permitted by the Documents) or, in the case of Governmental Authorities, Persons succeeding to the relevant functions of such Persons; references to any document, instrument, or agreement includes each amendment or supplement to, or restatement, replacement, substitution, successor, modification or novation of, any such document, instrument or agreement unless otherwise specified in such definition or in the context in which such reference is used; all references to any statute, regulation, proclamation, ordinance or law shall include all amendments of the same and any successor statutes, regulations, proclamations, ordinances, and laws; and a reference to a statute shall include all regulations, policies, protocols, codes, proclamations, and ordinances issued or otherwise applicable under that statute unless, in any such case, otherwise expressly provided in any such statute.  Any reference to “days” shall mean calendar days unless “Business Days” or “LIBOR Business Days” (as defined herein) are expressly specified.

 

31



 

APPENDIX II

 

TO LEASE AGREEMENT DATED AS OF JUNE 24, 2010

 

Financial Covenants

 

Interest Expense Coverage Ratio . The Interest Expense Coverage Ratio of PGI for any Test Period shall not be less than the ratio of 3.00 to 1.00.

 

Total Leverage Ratio .  The Total Leverage Ratio of PGI at the end of any Test Period shall not exceed the ratio of 3.50 to 1.00.

 

Capital Expenditures .  PGI will not, and will not permit any of its Subsidiaries to, make or commit to make any Capital Expenditures, except that:

 

(a)           PGI and its Subsidiaries may make or commit to make Capital Expenditures not exceeding $50.0 million (the “Base Amount”) for Fiscal Year 2009 of the Borrower each Fiscal Year of the Borrower thereafter, provided that for any period set forth above, the Base Amount set forth above may be increased for any such period by carrying over to any such period any portion of the Base Amount (without giving effect to any increase) not spent in the immediately preceding period, and that Capital Expenditures in any period shall be deemed first made from the Base Amount applicable to such period in any given period.

 

(b)           PGI and its Subsidiaries may make additional Capital Expenditures (i) to the extent funded by the Net Proceeds from Equity Issuances (excluding issuances of Disqualified Equity Interests of PGI), subject to first complying with Section 2.05(c)(i), and (ii) at any time in an amount not to exceed the Cumulative Retained Excess Cash Flow Amount at such time.

 

(c)           PGI and its Subsidiaries may make additional Capital Expenditures not to exceed the QRTC Amount in the aggregate;  provided  that the aggregate amount of Capital Expenditures made pursuant to this clause (c) plus the aggregate amount of Investments outstanding under Section 6.04(viii) shall not exceed the QRTC Amount at any one time.

 

For purposes of this Appendix II, “Capital Expenditures”, “Interest Expense Coverage Ratio”, “Total Leverage Ratio” and “Test Period” and all additional definitions necessary to calculate or determine the same shall have the meanings ascribed to such terms in the Credit Agreement (as defined below) and the definitions of “Capital Expenditures”, “Interest Expense Coverage Ratio”, “Total Leverage Ratio” and “Test Period” and all additional definitions necessary to calculate or determine the same are hereby incorporated by reference as if such definitions were set forth in this Appendix II in full.

 

Solely for purposes of this Appendix II, “ Credit Agreement shall mean the Credit Agreement dated as of November 22, 2005, as amended December 8, 2006, as further amended September 17, 2009, among Polymer Group, Inc., as Borrower, the Lenders referred to therein, Citicorp North America, Inc., as Administrative Agent, Documentation Agent, Collateral Agent and Syndication Agent, and Citigroup Global Markets Inc., as Sole Lead Arranger and Sole Bookrunner, but without giving effect to any amendments, modifications or supplements to, or

 



 

restatements or replacements of, the Credit Agreement occurring after the Construction Closing Date.

 



 

EXHIBIT NO. 1

 

TO LEASE AGREEMENT DATED AS OF JUNE 24, 2010

 

SCHEDULE

 

DATED THIS      DAY OF                               , 20   

 

TO LEASE AGREEMENT DATED AS OF JUNE 24, 2010

 

Lessor & Mailing Address:

 

Lessee & Mailing Address:

 

 

 

GOSSAMER HOLDINGS, LLC

 

CHICOPEE, INC.

201 Merritt Seven

 

9335 Harris Corners Parkway

Norwalk, CT 06851 USA

 

Suite 300

 

 

Charlotte NC 28269

 

This Equipment Schedule is executed pursuant to, and incorporates by reference the terms and conditions of, and capitalized terms not defined herein shall have the meanings assigned to them in, the Lease Agreement identified above (“ Agreement ”; said Agreement and this Schedule being collectively referred to as “ Lease ”).  This Equipment Schedule, incorporating by reference the Agreement, constitutes a separate instrument of lease.

 

A.            Equipment .

 

Pursuant to the terms of the Lease, Lessor agrees to acquire and lease to Lessee the Equipment listed on Annex A attached hereto and made a part hereof.

 

B.            Financial Terms .

 

 

(a)

Capitalized Lessor’s Cost:

$56,486,000 Dollars

 

 

 

 

 

(b)

Basic Term Lease Rate Factor:

1.321019%

 

 

 

 

 

(c)

Basic Term:

Eighty-four 84 months

 

 

 

 

 

(d)

Basic Term Commencement Date:

October 8, 2011

 

 

 

 

 

(e)

Change Date

The first day following the close of business at the end of the 48 th  month of the Basic Term

 

 

 

 

 

(f)

Equipment Location:

See Annex A

 

 

 

 

 

(g)

Lessee Federal Tax ID No.

57-1013629

 

 Exhibit 1-1



 

 

(h)

First EBO Date

October 8, 2013

 

 

 

 

 

(i)

First EBO Price

The greater of (i) 82.417714% of Capitalized Lessor’s Cost, plus any applicable Breakage Costs and (ii) the then Fair Market Value of the Equipment.

 

 

 

 

 

(j)

Second EBO Date

October 8, 2015

 

 

 

 

 

(k)

Second EBO Price

The greater of (i) 61.177977% of the Capitalized Lessor’s Cost and (ii) the then Fair Market Value of the Equipment.

 

 

 

 

 

(l)

Stipulated Loss Value:

See Annex C attached for calculation of the Stipulated Loss Values for the Equipment during the Basic Term.

 

C.            Pricing Assumptions .

 

 

(a)

Basic Term Commencement Date:

October 8, 2011

 

 

 

 

 

(b)

Equipment Cost

$55,096,000

 

 

 

 

 

(c)

Capitalized Lessor’s Cost:

$56,486,000

 

 

 

 

 

(d)

Lessor’s Tax Basis:

$55,096,000

 

 

 

 

 

(e)

Lessor’s Transaction Expenses:

$1,390,000

 

 

 

 

 

(f)

Lessor’s Funding Rate Index:

2.05% - The 4 year US dollar fixed interest rate swap

 

 

 

 

 

(g)

Appraised Equipment Useful Life:

Not less than 10 years from Basic Term Commencement Date

 

 

 

 

 

(h)

Appraised Fair Market Value (without regard to inflation) at Lease End:

Not less than 20% of Equipment Cost

 

D.            Tax Benefits, Assumptions and Representations .

 

Part 1 . Tax Benefits and Assumptions

 

The Net Economic Return of the Lessor and each Member was computed based, in part, on the assumption that the transactions contemplated by the Operative Documents will have the following consequences for United States Federal and state and local income tax purposes:

 

 Exhibit 1-2



 

(a)           Provided that no election to treat the Lessor as a corporation has been made, and provided neither Lessor nor any Member takes any action to cause the tax treatment of the Lessor to change, the Lessor will be treated as a partnership and the Members will be treated as the only partners therein, and each Member will be entitled and required to take into account, in computing its taxable income, its distributive share (based on the allocations of such items between each Member as set forth in the LLC Agreement of the Lessor) of all items of income, gain, loss, or deduction with respect to the Equipment and the Lease.

 

(b)           Lessor will be treated as the owner of the Equipment as of the date purchased, and the Lease will be treated as a “true lease,” such that the Lessor will be treated as lessor and the lessee will be treated as the lessee of the Equipment.

 

(c)           The Lessor will be entitled to cost recovery deductions pursuant to Section 168(b) of the Code with respect to one hundred percent of the Lessor’s Tax Basis commencing on the date the entire Equipment is “placed in service” for purposes of section 168 of the Code, computed on the basis that all of the Equipment is “7-year property” within the meaning of section 168(c) of the Code, resulting in deductions in each of the years set out below equal to the percentages of the Equipment Cost set out below (provided that neither Lessor nor any Member makes any election to exclude such treatment):

 

2011

 

14.29

%

2012

 

24.49

%

2013

 

17.49

%

2014

 

12.49

%

2015

 

8.93

%

2016

 

8.92

%

2017

 

8.93

%

2018

 

4.46

%

 

(d)           The Lessor will be entitled to deductions for the amortization of 100% Lessor’s Transaction Costs computed on a straight-line basis over the Term of the Lease.

 

(e)           Each Member will at all times be subject to income tax at a Federal income tax rate of 35% and state and local income tax rate of 7%, for a combined rate of 39.55%.

 

(f)            Lessor will not be required to report any income during the term of the Lease, other than Basic Term Rent for the periods to which it is allocated under the last sentence of Section 2(a) of the Agreement, any payment of Stipulated Loss Value on the date payable in accordance with the Lease,  or the payment of purchase price by Lessee in connection with the exercise by Lessee of a purchase option under the Lease.

 

Part 2 . Lessee Representations and Warranties

 

In order to induce the Lessor and each Member to enter into the transactions contemplated by the Operative Agreements, the Lessee hereby represents, warrants to, and covenants with the Lessor and each Member that:

 

 Exhibit 1-3



 

(a)       On the Basic Term Commencement Date, the Equipment (and each component thereof) constitutes “7-year property” as defined in section 168(e) of the Code, and on such date the entire Equipment will be “placed in service” for purposes of section 168 of the Code;

 

(b)       The Equipment on the Basic Term Commencement Date constitutes an “integrated facility”, which means that the Equipment as designed and constructed is a fully-integrated and self-contained facility, and each component of the Equipment is interrelated to each other component of the Equipment in function and design, and no component is designed or intended for use in commercial operation independently of the other components;

 

(c)       On the Basic Term Commencement Date, the Equipment will not require any improvements, modifications or additions in order for the Equipment to be rendered complete for its intended use by the Lessee (other than ancillary items of equipment of a kind not necessary for the Equipment to operate and be treated as placed in service);

 

(d)       Taking into account the Site Lease and Support Agreement, the use of the Equipment by a person (other than the Lessee or any affiliate of the Lessee) at the end of the Term of the Lease is reasonably expected to be commercially feasible (where such determination is made based on the standards that would be applied by reasonably prudent businessmen on the basis of present knowledge and generally accepted engineering standards), such that the Equipment is not and will not be treated as “limited use” property for purposes of Rev. Proc. 2001-28;

 

(e)       All information supplied by the Lessee or any Affiliate or agent of the Lessee  to the Lessor, any Member (or any Affiliate of any Member), any independent appraiser or engineer or any independent counsel with respect to the description, nature, function, testing and cost of the Equipment, and with respect to the state of readiness of the Equipment when delivered and accepted under the Lease, including, but not limited to, facts relating to its intended use, economic life and residual value, was complete and accurate at the time given and as of the Basic Term Commencement Date;

 

(f)        The remaining useful life of the Equipment at the end of the Basic Term is reasonably expected to be at least 20% of its original useful life as of the Basic Term Commencement Date, and the Equipment is reasonably expected to have a fair market value of at least 20% of the Equipment Cost (exclusive of the effects of inflation or deflation) at the end of the Basic Term;

 

(g)       The Lessee will not construct or install on the Equipment any component, improvement, alteration or addition, unless such construction or installation will not adversely affect the status of the Lease as a true lease for federal and state income tax purposes or otherwise result in the Lessor or any Member being required to include an amount in gross income for federal or state income tax purposes;

 

(h)       Neither the Lessee nor any Affiliate of the Lessee will take a position on any tax return, amended tax return or claim for refund or in connection with the examination of any such return which is inconsistent with the intentions of the Lessor as set out in Section 1 hereof, and the Lessee will take such action and execute such documents as the Lessor may

 

 Exhibit 1-4



 

reasonably request to establish and protect the Lessor’s and each Member’s entitlement to such benefits;

 

(i)        On the Basic Term Commencement Date, the Equipment (and each component thereof) is not property described in section 168(g)(1)(A), (B), (C) or (D) of the Code, and at no time during the Term of the Lease will the Equipment (or any component thereof) become property described in section 168(g)(1)(A), (B), (C) or (D) of the Code, other than as the result of any action by the Lessor or any Member;

 

(j)        The Lessor shall not be required to include in gross income for Federal or state income tax purposes (including as a result of any recapture of MACRS deductions or corresponding state deductions) at any time during the Term any amount as a result of (A) any modification, replacement, maintenance or repairs with respect to the Equipment; or (B) any agreement between the Lessee  and any supplier, vendor, contractor, engineer or manufacturer;

 

(k)       The Equipment is separate and distinct from any other equipment owned by the Lessee or any other Person (other than the Lessor) and located on the Site (“Lessee’s Equipment”), and is fully operable by a separate owner or operator, independent of the Lessee’s Equipment;

 

(l)        Neither the physical attributes of the Equipment, any purchase price available to the Lessee under the Lease, the return conditions and requirement set forth in the Lease, the costs to and potential obligations of the Lessee under the Operative Agreements in the event the Lessee does not exercise any purchase option, the close proximity and common housing of the Equipment and the Lessee’s Equipment, the Basic Rent due under the Lease after any purchase option date, nor any other factor known to the Lessee would created a material inducement to (or economically compel) the Lessee to exercise any of the purchase options set forth in the Lease; and

 

(m)      The close proximity and common housing of the Equipment and the Lessee’s Equipment does not and will not have any adverse effect on the ability of the Lessor to realize the full anticipated residual value of the Equipment.

 

E.             Term and Rent .

 

(a)       Basic Term Rent.  Commencing on the Basic Term Commencement Date and monthly thereafter on the corresponding day which is one month later during the Basic Term (for a total of 84 installment payments of Rent), Lessee shall pay as Rent for the Equipment (“ Basic Term Rent ”) the product of the Basic Term Lease Rate Factor for the applicable Rent Payment Date (as defined below) times the Capitalized Lessor’s Cost of the Equipment on this Schedule.  Rent shall be allocated and accrued for use of the Equipment for federal income tax purposes to the one month period beginning on the date such Rent is scheduled to be paid.  Each date for the payment of Rent during the Basic Term is herein referred to as a “ Rent Payment Date .”

 

(b)       If any Rent Payment Date is not a Business Day, the Rent otherwise due on such date shall be payable on the immediately preceding Business Day.

 

 Exhibit 1-5



 

(c)       On the Change Date, the Basic Term Lease Rate Factor shall be adjusted, up or down, in the event that the 3-year US dollar fixed interest rate swap (vs. 90-day Libor), as determined by Bloomberg Screen IRSB18 (Ask Rate), as of 11 AM two business days prior to the Change Date is other than 1.60%.  Such Basic Term Lease Rate Factor will be adjusted as follows:

 

(i)            The “ Adjusted Lease Rate Factor ” will be calculated so that Lessor’s nominal pre-tax yield, calculated from the Change Date through the end of the Basic Term, shall be increased or decreased by an amount equal to: (A) the 3 year US dollar fixed interest rate swap (vs. 90-day Libor), as determined by Bloomberg Screen IRSB18 (Ask Rate), as of 11 AM two business days prior to the Change Date, less (B) 1.60%; and

 

(ii)           The “ New Basic Term Lease Rate Factor ” will be equal to (C) the Adjusted Lease Rate Factor plus (D) the Basic Term Lease Rate Factor in effect prior to the Change Date, with the sum of C and D to be divided by 2. This Schedule shall be amended to replace the value listed for the Basic Term Lease Rate Factor with the New Basic Term Lease Rate Factor, and such adjustment shall be effective from the Change Date through the end of the Basic Term.

 

This Schedule is not binding or effective with respect to the Agreement or Equipment until executed on behalf of Lessor and Lessee by authorized representatives of Lessor and Lessee, respectively.

 

F.             Site .

 

Site

 

Owner of Equipment
at the Site

 

Landlord

 

Mortgagee

Waynesboro, Virginia

 

Gossamer Holdings, LLC

 

Chicopee, Inc.

 

Citicorp North America, Inc.

 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

 

 Exhibit 1-6



 

IN WITNESS WHEREOF , Lessee and Lessor have caused this Schedule to be executed by their duly authorized representatives as of the date first above written.

 

LESSOR:

 

LESSEE:

 

 

 

GOSSAMER HOLDINGS, LLC

 

CHICOPEE, INC.

 

 

 

 

 

 

BY:

GENERAL ELECTRIC CREDIT CORPORATION OF TENNESSEE, its member

 

By:

 

 

Name:

 

 

 

 

Title:

 

 

 

 

 

 

 

 

 

 

BY:

ING SPUNMELT HOLDINGS LLC, its member

 

 

 

 

 

 

 

 

 

 

 

 

 

By:

 

 

 

 

 

Name:

 

 

 

 

Title:

 

 

 

 

 Exhibit 1-7


 

ANNEX A

TO

SCHEDULE NO.     

 

DATED THIS      DAY OF                               , 20    

 

TO LEASE AGREEMENT DATED AS OF JUNE 24, 2010

 

DESCRIPTION OF EQUIPMENT

 

An integrated manufacturing line in terms of design, function and manufacturing capabilities including (i) one complete REICOFIL 4 SSMMS line for the production of heat sealed polypropylene nonwoven fabrics, consisting of a 5-beam REICOFIL 4 Composite Extrusion Line, (ii) the Packaging and Wrapping system consisting of an automated bundle sorting and wrapping system that will accept custom-slit rolls from the production line, allow an operator to sort rolls into appropriately sized bundles, then automatically apply end protection and wrap each bundle with polyethylene stretch film, (iii) the Mixing and dosing system consisting of a batch-style mixing system used to prepare chemical solutions for application by the production equipment, (iv) the Equipment lighting consisting of sealed fluorescent lighting fixtures placed on the machine platform to illuminate all levels of the production equipment (including without limitation with respect to the items described in clauses (i) — (iv), the items described in Exhibit I attached to this Annex A), (v) all parts or components of any of the Equipment, including ones that are temporarily removed from the Equipment, (vi) all manuals, Included IP, other licenses and records (other than Rent records and Proprietary Information) with respect to such Equipment, and (vii) all substitutions and replacements of any and all thereof, including, but not limited to, any replacement equipment which may from time to time be substituted for the Equipment leased hereunder; together in each case with any and all Parts permanently incorporated or installed in or attached thereto or any and all Required Modifications and Optional Modifications that are Non-Severable Modifications, in each case, to which title thereto vests in the Lessor pursuant to the terms of the Equipment Lease.

 

 

Initials:

 

 

 

 

 

Lessor

 

Lessee

 

 

 Annex A-1



 

Exhibit I to ANNEX A

TO

SCHEDULE NO.     

 

DATED THIS      DAY OF                               , 20    

 

TO LEASE AGREEMENT DATED AS OF JUNE 24, 2010

 

 

[to come on Basic Term Commencement Date]

 

 Annex A-2



 

ANNEX B

TO

SCHEDULE NO.     

 

DATED THIS      DAY OF                               , 200   

 

TO LEASE AGREEMENT DATED AS OF JUNE 24, 2010

 

CERTIFICATE OF ACCEPTANCE

 

To:          Gossamer Holdings, LLC, its successors and assigns

 

Pursuant to the provisions of the above referenced Schedule and Lease Agreement (collectively, the “ Lease ”), Lessee hereby certifies and warrants that:

 

(a) all Equipment listed in the related Bill of Sale is in good condition and appearance, installed (if applicable) and in working order; and

 

(b) Lessee accepts the Equipment for all purposes of the Lease, the purchase documents and all attendant documents.

 

Lessee does further certify that as of the date hereof (i) Lessee is not in default under the Lease; (ii) the representations and warranties made by Lessee pursuant to or under the Lease are true and correct on the date hereof; and (iii) Lessee has reviewed and approves of the purchase documents for the Equipment, if any.

 

DESCRIPTION OF EQUIPMENT

 

Manufacturer

 

Type and Model
of Equipment

REICOFIL

 

4 SSMMS line for the production of heat sealed polypropylene nonwoven fabrics, consisting of a 5-beam REICOFIL 4 Composite Extrusion Line

[                          ]

 

[Package Wrapping System]

[                          ]

 

[Mixing and Dosing System]

[                          ]

 

[Equipment Lighting]

 

 Annex B-1



 

The party below has caused this Certificate of Acceptance to be executed by its duly authorized representative.

 

 

Dated:                         , 20   

 

 

 

 

Lessee’s Authorized Representative

 

 Annex B-2



 

ANNEX C

TO

SCHEDULE NO.    

 

DATED THIS      DAY OF                               , 20   

 

TO LEASE AGREEMENT DATED AS OF JUNE 24, 2010

 

STIPULATED LOSS VALUE TABLE

 

Date

 

# of base
payments

 

Stipulated
Loss Value
percentage

 

 

 

 

 

 

 

10/8/2011

 

1

 

107.52267950

 

11/8/2011

 

2

 

106.86474946

 

12/8/2011

 

3

 

106.19918977

 

1/8/2012

 

4

 

105.52594518

 

2/8/2012

 

5

 

104.84545459

 

3/8/2012

 

6

 

104.15766366

 

4/8/2012

 

7

 

103.46241269

 

5/8/2012

 

8

 

102.75968571

 

6/8/2012

 

9

 

102.04946676

 

7/8/2012

 

10

 

101.33173986

 

8/8/2012

 

11

 

100.60659537

 

9/8/2012

 

12

 

99.87391100

 

10/8/2012

 

13

 

99.13367077

 

11/8/2012

 

14

 

98.38594361

 

12/8/2012

 

15

 

97.63058366

 

1/8/2013

 

16

 

96.86755244

 

2/8/2013

 

17

 

96.09692060

 

3/8/2013

 

18

 

95.31865026

 

4/8/2013

 

19

 

94.53268299

 

5/8/2013

 

20

 

93.73898079

 

6/8/2013

 

21

 

92.93750565

 

7/8/2013

 

22

 

92.12821959

 

8/8/2013

 

23

 

91.31110555

 

9/8/2013

 

24

 

90.48610459

 

10/8/2013

 

25

 

89.65317870

 

11/8/2013

 

26

 

88.81231475

 

12/8/2013

 

27

 

87.96345703

 

1/8/2014

 

28

 

87.09396856

 

2/8/2014

 

29

 

86.21643907

 

3/8/2014

 

30

 

85.33083425

 

4/8/2014

 

31

 

84.43781707

 

 

 Annex C-1



 

5/8/2014

 

32

 

83.53735635

 

6/8/2014

 

33

 

82.62942089

 

7/8/2014

 

34

 

81.71397950

 

8/8/2014

 

35

 

80.79029120

 

9/8/2014

 

36

 

79.85903458

 

10/8/2014

 

37

 

78.92017846

 

11/8/2014

 

38

 

77.97295389

 

12/8/2014

 

39

 

77.01803364

 

1/8/2015

 

40

 

76.05536964

 

2/8/2015

 

41

 

75.08417846

 

3/8/2015

 

42

 

74.10440720

 

4/8/2015

 

43

 

73.11678941

 

5/8/2015

 

44

 

72.12127727

 

6/8/2015

 

45

 

71.11782297

 

7/8/2015

 

46

 

70.10637870

 

8/8/2015

 

47

 

69.08608981

 

9/8/2015

 

48

 

68.05771531

 

10/8/2015

 

49

 

67.02120737

 

11/8/2015

 

50

 

65.97572114

 

12/8/2015

 

51

 

64.92205107

 

1/8/2016

 

52

 

63.86017196

 

2/8/2016

 

53

 

62.78923091

 

3/8/2016

 

54

 

61.70920001

 

4/8/2016

 

55

 

60.61938052

 

5/8/2016

 

56

 

59.51974240

 

6/8/2016

 

57

 

58.41025560

 

7/8/2016

 

58

 

57.29089007

 

8/8/2016

 

59

 

56.16229530

 

9/8/2016

 

60

 

55.02376172

 

10/8/2016

 

61

 

53.87525929

 

11/8/2016

 

62

 

52.71745182

 

12/8/2016

 

63

 

51.54963237

 

1/8/2017

 

64

 

50.37177937

 

2/8/2017

 

65

 

49.18456127

 

3/8/2017

 

66

 

47.98795807

 

4/8/2017

 

67

 

46.78460595

 

5/8/2017

 

68

 

45.57449085

 

6/8/2017

 

69

 

44.35759868

 

7/8/2017

 

70

 

43.13391536

 

8/8/2017

 

71

 

41.90074685

 

9/8/2017

 

72

 

40.66075904

 

10/8/2017

 

73

 

39.41393786

 

11/8/2017

 

74

 

38.15757142

 

12/8/2017

 

75

 

36.89434346

 

1/8/2018

 

76

 

35.62423990

 

2/8/2018

 

77

 

34.34453103

 

3/8/2018

 

78

 

33.05512290

 

4/8/2018

 

79

 

31.76697002

 

5/8/2018

 

80

 

30.48007238

 

6/8/2018

 

81

 

29.19442999

 

 

 Annex C-2



 

7/8/2018

 

82

 

27.91004284

 

8/8/2018

 

83

 

26.61592287

 

9/8/2018

 

84

 

25.32306555

 

10/8/2018

 

 

 

25.00000000

 

 

 Annex C-3


 

EXHIBIT NO. 2

TO

TO LEASE AGREEMENT DATED AS OF JUNE 24, 2010

 

FORM OF ACCEPTABLE LETTER OF CREDIT

 

 

 

VALUE DATE:

 

 

L/C NO.:

 

 

APPLICANT REFERENCE NO:

 

 

 

 

 

 

TO:

 

APPLICANT:

GOSSAMER HOLDINGS, LLC

 

CHICOPEE, INC.

201 MERRITT SEVEN

 

9335 HARRIS CORNERS PKWY,

NORWALK, CT 06851 USA

 

SUITE 300

ATTENTION: ANNIE SCHORR

 

CHARLOTTE, NC 28269

 

 

ATTENTION: DENNIS NORMAN

 

WITH A COPY TO:

GOSSAMER HOLDINGS, LLC

C/O ING SPUNMELT HOLDINGS LLC

200 GALLERIA PARKWAY, STE. 950

ATLANTA, GEORGIA  30339 USA

ATTENTION: JERRY L. MCDONALD

 

WE HAVE ESTABLISHED OUR IRREVOCABLE STANDBY LETTER OF CREDIT IN YOUR FAVOR AS DETAILED HEREIN SUBJECT TO ISP98.

 

DOCUMENTARY CREDIT NUMBER:

 

[                          ]

 

 

 

DATE OF ISSUE:

 

- VALUE DATE -

 

 

 

BENEFICIARY:

 

GOSSAMER HOLDINGS, LLC

 

 

201 MERRITT SEVEN

 

 

NORWALK, CT 06851 USA

 

 

 

APPLICANT:

 

CHICOPEE, INC.

 

 

9335 HARRIS CORNERS PKWY,

 

 

SUITE 300

 

 

CHARLOTTE, NC 28269

 

 

 

DATE AND PLACE OF EXPIRY:

 

[INSERT SPECIFIC DATE] at the office of our Servicer, Citicorp North America, Inc., 3800 Citibank Center, Building B, 3rd Floor, Tampa, Fl 33610

 

 Exhibit 2-1



 

DOCUMENT CREDIT AMOUNT:

 

USD [                            ]

 

 

 

AVAILABLE WITH:

 

[ISSUING BANK]

 

 

[LOCATION]

 

 

BY PAYMENT AT SIGHT

 

IT IS A CONDITION OF THIS LETTER OF CREDIT THAT IT SHALL BE AUTOMATICALLY EXTENDED WITHOUT AMENDMENT FOR ADDITIONAL 12 MONTH PERIODS FROM THE PRESENT OR EACH FUTURE EXPIRATION DATE, UNLESS AT LEAST 30 DAYS PRIOR TO THE CURRENT EXPIRY DATE WE SEND NOTICE IN WRITING TO YOU WITH A COPY TO GOSSAMER HOLDINGS INC. C/O ING SPUNMELT HOLDINGS LLC , 200 GALLERIA PARKWAY, STE. 950, ATLANTA, GEORGIA  30339 USA, ATTENTION: JERRY L. MCDONALD, BY COURIER OR ANY OTHER RECEIPTED MEANS AT THE ABOVE ADDRESS, THAT WE ELECT NOT TO AUTOMATICALLY EXTEND THIS LETTER OF CREDIT FOR ANY ADDITIONAL PERIOD. PROVIDED HOWEVER, THE NON-RECEIPT OF THE ELECTION NOT TO RENEW BY THE BENEFICIARY’S CARE OF PARTY WILL NOT INVALIDATE OUR NON-RENEWAL OF THIS LETTER OF CREDIT.

 

IN THE EVENT THIS LETTER OF CREDIT IS SUBSEQUENTLY AMENDED BY US TO RESCIND A NOTICE OF NON-EXTENSION AND TO EXTEND THE EXPIRY DATE HEREOF TO A FUTURE DATE, SUCH EXTENSION SHALL BE FOR THAT SINGLE PERIOD ONLY AND THIS LETTER OF CREDIT WILL NOT BE SUBJECT TO ANY FUTURE AUTOMATIC EXTENSIONS UNLESS AN AUTOMATIC EXTENSION PROVISION IS EXPRESSLY INCORPORATED INTO SUCH AMENDMENT.

 

ADDITIONAL DETAILS:

 

WE HEREBY ESTABLISH THIS IRREVOCABLE STANDBY LETTER OF CREDIT NO. [                  ] IN FAVOR OF THE ABOVE MENTIONED BENEFICIARY FOR AN AGGREGATE AMOUNT NOT TO EXCEED THE AMOUNT INDICATED ABOVE, EXPIRING AT THE OFFICE OF OUR SERVICER WITH THEIR CLOSE OF BUSINESS ON [                            ].  YOU ARE HEREBY IRREVOCABLY AUTHORIZED TO MAKE ONE OR MORE DEMANDS UNDER THIS LETTER OF CREDIT, THE AGGREGATE AMOUNT OF WHICH DEMAND(S) SHALL NOT EXCEED THE AMOUNT STATED ABOVE.

 

THIS LETTER OF CREDIT IS AVAILABLE WITH [ISSUING BANK] , AND IS EFFECTIVE IMMEDIATELY, AGAINST PRESENTATION OF BENEFICIARY DRAFT(S) AT SIGHT DRAWN ON [ISSUING BANK] , WHEN ACCOMPANIED BY THE DOCUMENTS INDICATED HEREIN.

 

1.  BENEFICIARY’S DATED STATEMENT PURPORTEDLY SIGNED BY ONE OF ITS AUTHORIZED SIGNATORIES INDICATING THIS LETTER OF CREDIT NUMBER AND READING AS FOLLOWS:

 

 Exhibit 2-2



 

“BENEFICIARY HEREBY DEMANDS PAYMENT OF USD                                UNDER THE [ISSUING BANK]  IRREVOCABLE STANDBY LETTER OF CREDIT NUMBER [                              ] BECAUSE OF ONE OR MORE OF THE FOLLOWING:

 

(I) “THE AMOUNT OF THIS DRAWING REPRESENTS AMOUNTS DUE FROM CHICOPEE, INC. (“CHICOPEE”) UNDER THE TERMS OF THE CONSTRUCTION AGENCY AGREEMENT (“CAA”), DATED AS OF JUNE [    ], 2010 BETWEEN CHICOPEE AND BENEFICIARY AND/OR THE EQUIPMENT LEASE AGREEMENT (“LEASE”), DATED AS OF JUNE [    ,] 2010, BETWEEN CHICOPEE AND BENEFICIARY,” OR

 

(II) “A PETITION HAS BEEN FILED BY OR AGAINST POLYMER GROUP, INC. OR CHICOPEE, INC., UNDER ANY BANKRUPTCY, INSOLVENCY OR SIMILAR LAW,” OR

 

(III) “BENEFICIARY HAS RECEIVED A NOTICE FROM [ISSUING BANK]  TO THE EFFECT THAT THE [ISSUING BANK]  IRREVOCABLE STANDBY LETTER OF CREDIT NUMBER [                              ] WILL NOT BE AUTOMATICALLY RENEWED OR EXTENDED.”

 

2.  THE ORIGINAL LETTER OF CREDIT AND ALL CORRESPONDING AMENDMENTS, IF ANY.

 

THIS LETTER OF CREDIT IS TRANSFERABLE IN ITS ENTIRETY (BUT NOT IN PART) AND [ISSUING BANK] ONLY IS AUTHORIZED TO ACT AS THE TRANSFERRING BANK.  WE SHALL NOT RECOGNIZE ANY TRANSFER OF THIS LETTER OF CREDIT UNTIL THIS ORIGINAL LETTER OF CREDIT, TOGETHER WITH ANY AMENDMENTS AND A SIGNED AND COMPLETED TRANSFER FORM, ATTACHED HERETO AS PER ANNEX A, IS RECEIVED BY US AND OUR TRANSFER CHARGES OF ¼ OF 1 PERCENT OF THE TRANSFERRED AMOUNT, MINIMUM $150.00 ARE PAID BY BANK OR CERTIFIED CHECK.  THE CORRECTNESS OF THE SIGNATURE AND TITLE OF THE PERSON SIGNING THE TRANSFER FORMS MUST BE VERIFIED BY YOUR BANK.  IN CASE OF ANY TRANSFER UNDER THIS LETTER OF CREDIT, THE DRAFT AND ANY REQUIRED STATEMENT MUST BE EXECUTED BY THE TRANSFEREE.  THIS LETTER OF CREDIT MAY NOT BE TRANSFERRED TO ANY PERSON WITH WHICH U.S. PERSONS ARE PROHIBITED FROM DOING BUSINESS UNDER U.S. FOREIGN ASSETS CONTROL REGULATIONS OR OTHER APPLICABLE U.S. LAWS AND REGULATIONS.

 

TRANSFER CHARGES ARE FOR THE ACCOUNT OF THE APPLICANT.

 

PARTIAL AND MULTIPLE DRAWINGS PERMITTED.

 

WE HEREBY AGREE WITH YOU THAT ALL DRAFTS AND DOCUMENTS DRAWN UNDER AND IN COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT WILL BE DULY HONORED AND PAYMENT WILL BE MADE HEREUNDER ON THE BUSINESS DAY NEXT SUCCEEDING THE BUSINESS DAY OF RECEIPT OF THE BENEFICIARY’S DEMAND (WHETHER DELIVERED IN PERSON, OR

 

 Exhibit 2-3



 

BY COURIER).   [ISSUING BANK]  WILL EFFECT PAYMENT BY WIRE TRANSFER OF IMMEDIATELY AVAILABLE FUNDS (IN UNITED STATES DOLLARS) TO THE BENEFICIARY’S ACCOUNT NO. 50286772 AT DEUTSCHE BANK, NEW YORK BRANCH, ABA NUMBER 021001033, ACCOUNT NAME: GOSSAMER HOLDINGS, LLC, CUSTOMER: POLYMER GROUP, INC., OR TO SUCH OTHER ACCOUNT AS THE BENEFICIARY MAY DIRECT IN WRITING.

 

WE AGREE, FOLLOWING OUR RECEIPT THEREOF, TO EXAMINE ALL DOCUMENTS PURPORTING TO REPRESENT THE BENEFICIARY’S DEMAND TO ASCERTAIN THAT SUCH DOCUMENTS CONFORM TO THE TERMS AND CONDITIONS HEREOF.  WE SHALL, WITHOUT DELAY (BUT IN ANY EVENT, BEFORE THE END OF THE BUSINESS DAY NEXT FOLLOWING THE DATE OF OUR RECEIPT OF THE DOCUMENTS), GIVE NOTICE TO YOU IF ANY DEMAND FOR PAYMENT HEREUNDER IS NOT IN ACCORDANCE WITH THE TERMS AND CONDITIONS HEREOF, STATING THE REASONS THEREFOR AND THAT THE RELEVANT DOCUMENT OR DOCUMENTS ARE BEING HELD AT YOUR DISPOSAL OR ARE BEING RETURNED TO YOU, AS YOU MAY ELECT.  WHEREUPON YOU SHALL BE ENTITLED TO SUBMIT, SUBJECT TO THE TERMS HEREOF, CORRECTED DOCUMENTS WHICH CONFORM TO THE TERMS HEREOF.  PAYMENTS MADE IN RESPECT OF ANY DRAWING SHALL REDUCE BY THE AMOUNT OF SUCH DRAWING THE AMOUNT INDICATED ABOVE.  ALL AMOUNTS TO BE PAID UNDER THIS LETTER OF CREDIT SHALL BE MADE WITHOUT ANY SET-OFF OR COUNTERCLAIM.

 

WE HEREBY AGREE WITH YOU THAT ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS LETTER OF CREDIT MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT SITTING IN NEW YORK CITY.  BY US SIGNING THIS LETTER OF CREDIT, AND BY YOU MAKING A PRESENTATION HEREUNDER, EACH OF US IRREVOCABLY SUBMIT TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURTS FOR PURPOSES OF THIS LETTER OF CREDIT.  EACH OF US IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION EITHER OF US MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE IN ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.  EACH OF US HEREBY AGREES TO RECEIVE AND ACCEPT SERVICE OF PROCESS SENT BY REGISTERED OR CERTIFIED MAIL OR OVERNIGHT COURIER TO THE ADDRESS TO WHICH NOTICES HEREUNDER ARE GIVEN.

 

WE HEREBY AGREE WITH YOU THAT WE SHALL HAVE NO DUTY OR RIGHT TO INQUIRE AS TO THE BASIS UPON WHICH BENEFICIARY HAS DETERMINED TO PRESENT US ANY DRAFT UNDER THIS LETTER OF CREDIT.

 

THIS LETTER OF CREDIT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNATIONAL STANDBY PRACTICES 1998, INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION NO. 590, AND, TO THE EXTENT NOT INCONSISTENT THEREWITH, THE LAWS OF THE STATE OF NEW YORK AS IN EFFECT FROM TIME TO TIME.

 

 Exhibit 2-4



 

THE NUMBER AND THE DATE OF OUR CREDIT AND THE NAME OF OUR BANK MUST  BE QUOTED ON ALL DRAFTS REQUIRED.

 

PLEASE DIRECT ALL DRAWINGS AND CORRESPONDENCE IN CONNECTION WITH THIS LETTER OF CREDIT TO [ISSUING BANK], ATTENTION [                ], [ADDRESS].

 

 

 

 

 

Authorized Signature

 

 Exhibit 2-5



 

ANNEX A

Transfer of Letter of Credit in its Entirety

Relinquishing all  Rights as Beneficiary

 

( This form is to be used when the Letter of Credit is to be Transferred in its entirety and , no substitution of invoices is involved and, no rights are to be retained by the undersigned Beneficiary. )

 

Citibank, N.A .

Date:

c/o Citicorp North America, Inc.

 

3800 Citibank Center,

 

Building B, 3rd Floor

 

Tampa, Florida 33610

 

Attn. Standby Unit

 

 

 

Re: L/C No.

 

 

 

 

 

 

Issued by:

 

 

 

 

 

 

Citibank, N.A. Ref:

 

 

 

Gentlemen:

 

Receipt is acknowledged of the original instrument which you forwarded to us relative to the issuance of a Letter of Credit ( herein called the “Credit” )  bearing your reference number as above in favor of ourselves and/or Transferees and we hereby request you to transfer the said Letter of Credit, in its entirety, to:

 

 

 

 

 

whose address is

 

 

 

 

 

 

 

( Optional )  Please advise Beneficiary through the  below indicated Advising Bank:

 

 

 

 

 

 

 

 

We are returning the original instrument to you herewith in order that you may deliver it to the Transferees together with your customary letter of transfer.

 

It is understood that any amendments to the Letter of Credit which you may receive are to be advised by you directly to the Transferees and that the drafts and documents of the Transferees, if issued in accordance with the conditions of the Letter of Credit, are to be forwarded by you directly to the party for whose account the credit was opened (or any intermediary) without our intervention.

 

 Exhibit 2-6



 

SIGNATURE GUARANTEED

 

Sincerely yours,

 

 

 

The First Beneficiary’s signature(s) with title(s) conforms with that on file with us and such is/are authorized for the execution of this instrument.

 

 

 

 

 

 

 

 

(Name of Bank)

 

(Name of First Beneficiary)

 

 

 

 

 

 

(Bank Address)

 

(Telephone Number)

 

 

 

 

 

 

(City, State, Zip Code)

 

(Authorized Name and Title)

 

 

 

 

 

 

(Telephone Number)

 

(Authorized Signature)

 

 

 

 

 

 

(Authorized Name and Title)

 

(Authorized Name and Title)

 

 

( If applicable )

 

 

 

 

 

 

(Authorized Signature)

 

(Authorized Signature)

 

 

( If applicable )

 

 Exhibit 2-7



 

EXHIBIT NO. 3

TO

TO LEASE AGREEMENT DATED AS OF JUNE 24, 2010

 

FORM OF GUARANTY

 

See attached.

 

 Exhibit 3-1


 

GUARANTY

 

GUARANTY (this “ Guaranty ”), dated as of June 24, 2010, by POLYMER GROUP, INC. (“ PGI ”) and PGI POLYMER, INC. (“ Polymer ” and together with PGI, the “ Guarantors ” and individually, each a “ Guarantor ”), in favor of Gossamer Holdings, LLC, as Owner and Lessor (in such capacity, together with its successors and permitted assigns, the “ Beneficiary ”).

 

W I T N E S S E T H :

 

WHEREAS, Chicopee, Inc., a Delaware corporation (the “Company”), as Construction Agent, and the Beneficiary, as Owner, have entered into a Construction Agency Agreement, dated as of the date hereof (as amended, restated, supplemented or otherwise modified from time to time, the “ CAA ”) for the purchase, delivery, construction and installation of the Equipment (as defined therein); and

 

WHEREAS, the Company, as lessee, and the Beneficiary, as lessor, have entered into an Equipment Lease Agreement dated as of the date hereof (collectively, with all schedules entered into in connection therewith and as such agreement or any schedule is amended, restated, supplemented or otherwise modified from time to time, the “ Equipment Lease ”) for the lease by Beneficiary to the Company of the Equipment; and

 

WHEREAS, the Company is a wholly-owned subsidiary of Polymer, and Polymer is a wholly-owned subsidiary of PGI; and

 

WHEREAS, each Guarantor will receive substantial direct and indirect benefits by reason of the CAA, the Equipment Lease and the transactions contemplated thereby (which benefits are hereby acknowledged);

 

NOW, THEREFORE, in order to induce the Beneficiary to execute and deliver the CAA, the Equipment Lease (including the schedule thereto) and the other Operative Documents, and in consideration thereof, and for other good and valuable consideration, the receipt of which is hereby acknowledged, each Guarantor hereby agrees as follows:

 

1.             Capitalized Terms.  Capitalized terms used but not defined in this Guaranty shall have the meaning ascribed to such terms in Appendix I to the Equipment Lease.

 

2.             Guaranty.  Each Guarantor hereby, jointly and severally, absolutely, unconditionally and irrevocably guarantees to the Beneficiary, as primary obligor and not merely as surety, the full and prompt payment and performance when due of all obligations of the Company under the CAA, the Equipment Lease and each other Operative Document to which the Company is a party (the “ Guaranteed Obligations ”).

 

 Exhibit 3-2



 

All payments by Guarantor hereunder shall be made in U.S. Dollars, to:

 

 

Bank:

Deutsche Bank

 

Branch:

New York

 

Bank Account #:

50286772

 

ABA:

021001033

 

Account Name:

Gossamer Holdings, LLC

 

Customer:

Polymer Group, Inc.

 

3.             Nature of Guarantor’s Obligations.  This Guaranty shall constitute a guarantee of payment and performance and not of collection.  Each Guarantor, jointly and severally, guarantees that the Guaranteed Obligations will be paid and performed strictly in accordance with the terms of the CAA, the Equipment Lease and the other Operative Documents (including, without limitation, payment by the Company of all amounts due to the Beneficiary pursuant to the terms of any of the Operative Documents and regardless of any defense to, or excuse from, payment or performance which the Company may have under Applicable Laws).  The obligations of each Guarantor hereunder are joint and several, irrevocable, absolute, unconditional , present and continuing obligations which are not conditional upon the exercise of any remedies against the Company or the making of a demand against the Company or the filing of a suit to obtain or assert a claim for personal judgment against the Company for the Guaranteed Obligations or the making of an effort at collecting the Guaranteed Obligations from the Company, or any attempt to foreclose or realize upon any security for obligations of the Company or the taking of any other action with respect to the Company, it being expressly acknowledged and agreed that Guarantor shall be directly obligated hereunder, for all amounts payable by the Company under the CAA, the Equipment Lease and the other Operative Documents and for breaches of or failures to perform or observe, or any other noncompliance with any covenant, condition or agreement or other obligation to be performed by the Company under any of the CAA, the Equipment Lease or the other Operative Documents or the inaccuracy of any representation or warranty of the Company in any of the CAA, the Equipment Lease or the other Operative Documents.  The liability of each Guarantor under this Guaranty shall not be subject to any counterclaim, setoff, deduction, release, recoupment or defense (statutory or otherwise) (other than the defense of payment in full of the Guaranteed Obligations) under the laws of the United States or any State thereof or otherwise and shall remain in full force and effect and shall be irrevocable, absolute and unconditional, irrespective of:

 

(i)             any lack of validity, genuineness, regularity or enforceability of the CAA, the Equipment Lease or any of the other Operative Documents or any other agreement or instrument relating thereto;

 

(ii)            any change in the time, manner or place of payment of, or in any other term of, all or any of the Guaranteed Obligations, or any other amendment, or waiver of or any consent to departure from the CAA, the Equipment Lease or the other Operative Documents;

 

 Exhibit 3-3



 

(iii)           the existence, value, condition, loss, subordination, exchange, release or non-perfection of any collateral, or any release or amendment, modification, changes or waiver of or consent to departure from any other guarantee, for all or any of the Guaranteed Obligations;

 

(iv)          any bankruptcy or insolvency of, or any merger or consolidation of, or any sale of shares in, the Company;

 

(v)           any failure or delay by the Beneficiary to pursue remedies under the CAA, the Equipment Lease or any of the other Operative Documents or under law against the Company;

 

(vi)          the pursuit by the Beneficiary of whatsoever remedies there may be against the Company, any other guarantor or any security or any other credit support for any or all of the Guaranteed Obligations;

 

(vii)         any claim as a result of any other dealing between the Beneficiary and the Company;

 

(viii)        any defect in the title, condition, design, operation or fitness for use of, or damage or loss or destruction of, the Equipment (or any part thereof), whether or not due to the fault of the Company or any other Person,

 

(ix)           any assignment, sublease, transfer or other arrangement by which the Company transfers possession or loses control of the use of any of the Equipment (other than as permitted by the CAA, the Equipment Lease or any other Operative Document);

 

(x)            any release of, extension of time for payment or performance by or any other indulgence granted to the Company or any other Person with respect to the Guaranteed Obligations by operation of law or otherwise; or

 

(xi)           any other occurrence or circumstances whatsoever, whether similar or dissimilar to the foregoing and any other circumstances (other than actual payment or performance) that might otherwise constitute a legal, statutory or equitable defense or discharge of the liabilities of a guarantor or surety, or of the Company under the CAA, the Equipment Lease or the other Operative Documents that might otherwise limit recourse against Guarantor under this Guaranty or otherwise to the extent such defense or discharge can be waived under applicable law.

 

4.             Authorization; Other Agreements.  The Beneficiary is hereby authorized, without notice to or demand upon any Guarantor and without discharging or otherwise affecting the obligations of any Guarantor hereunder and without incurring any liability hereunder, from time to time, to do each of the following:

 

(i)           modify, amend, supplement or otherwise change, (ii) accelerate or otherwise change the time of payment or (iii) waive or otherwise consent to

 

 

 Exhibit 3-4



 

noncompliance with, any Guaranteed Obligation or any of the CAA, the Equipment Lease or any other Operative Document;

 

(ii)          apply to the Guaranteed Obligations any sums by whomever paid or however realized to any Guaranteed Obligation in such order as provided in the CAA, the Equipment Lease or the other Operative Documents;

 

(iii)         refund at any time any payment received by the Beneficiary in respect of any Guaranteed Obligation;

 

(iv)         sell, exchange, enforce, waive, substitute, liquidate, terminate, release, abandon, fail to perfect, subordinate, accept, substitute, surrender, exchange, affect, impair or otherwise alter or release any collateral for any Guaranteed Obligation or any other guaranty therefor in any manner, (ii) receive, take and hold additional collateral to secure any Guaranteed Obligation, (iii) add, release or substitute any one or more other Guarantors, makers or endorsers of any Guaranteed Obligation or any part thereof and (iv) otherwise deal in any manner with the Company and any other Guarantor, maker or endorser of any Guaranteed Obligation or any part thereof; and

 

(v)          settle, release, compromise, collect or otherwise liquidate the Guaranteed Obligations.

 

5.             Reinstatement.  This Guaranty shall continue to be effective, or be reinstated, as the case may be, if at any time payment, in whole or in part, of any of the sums due to the Beneficiary pursuant to the terms of the CAA, the Equipment Lease or any of the other Operative Documents is rescinded or must otherwise be restored or returned upon the bankruptcy, insolvency, reorganization, arrangement, adjustment, composition, dissolution, liquidation or the like, of the Company, or upon or as a result of, the appointment of a custodian, receiver, trustee or other officer with similar powers with respect to the Company or any substantial part of its property, or otherwise, all as though such payment had not been made notwithstanding any termination of this Guaranty, the CAA, the Equipment Lease or any of the other Operative Documents.  Indefeasible fulfillment by the Company or any Guarantor of any of the Guaranteed Obligations shall dispose of any claim hereunder with respect to, and to the extent of, such Guaranteed Obligations and indefeasible payment and performance in full by the Company or any Guarantor acknowledged in writing by the Beneficiary shall terminate this Guaranty.

 

6.             Reliance.  Each Guarantor hereby assumes responsibility for keeping itself informed of the financial condition of the Company, each other Guarantor and any other guarantor, maker or endorser of any Guaranteed Obligation or any part thereof, and of all other circumstances bearing upon the risk of nonpayment of any Guaranteed Obligation or any part thereof, that diligent inquiry would reveal, and each Guarantor hereby agrees that the Beneficiary shall not have any duty to advise any Guarantor of information known to it regarding such condition or any such circumstances.  In the event the Beneficiary, in its sole discretion, undertakes at any time or from time to time to provide

 

 Exhibit 3-5



 

any such information to any Guarantor, the Beneficiary shall be under no obligation to (a) undertake any investigation not a part of its regular business routine, (b) disclose any information that the Beneficiary, pursuant to accepted or reasonable commercial finance or banking practices, wishes to maintain confidential or (c) make any future disclosures of such information or any other information to any Guarantor

 

7.             Waiver, Subrogation and Subordination.

 

(i)             Each Guarantor hereby waives (a) notice of any of the foregoing matters, (b) promptness, diligence, demand, protest, proof or notice of nonpayment and notice of acceptance and (c) any other notice with respect to any of the Guaranteed Obligations and this Guaranty except for such notices as are required to be made to Guarantor by the express terms of this Guaranty, the CAA, the Equipment Lease or the other Operative Documents.

 

(ii)          Notwithstanding any payment or payments made by any Guarantor, no Guarantor shall be subrogated to any rights of the Beneficiary against the Company until all of the Guaranteed Obligations then due shall have been finally, indefeasibly and unconditionally paid and performed in full.  Any claim of any Guarantor against the Company or arising from payments made by any Guarantor by reason of this Guaranty shall be in all respects subordinated to the final, indefeasible, unconditional, full and complete payment or discharge of all of the Guaranteed Obligations, and no payment by any Guarantor shall give rise to any claim of any Guarantor against the Beneficiary.

 

(iii)         So long as the Guaranteed Obligations remain outstanding, if any amount shall be paid to any Guarantor relating to any of the rights waived in this Paragraph 7, such amount shall be held by such Guarantor in trust for the benefit of the Beneficiary, and shall from there be turned over to the Beneficiary in the exact form received by such Guarantor (duly endorsed by such Guarantor to the Beneficiary, if required), to be applied against the Guaranteed Obligations, whether matured or unmatured, in such order as may be specified by the CAA, the Equipment Lease and the other Operative Documents.

 

8.             Taxes on Payments.  All payments hereunder shall be made free and clear of, and without any deduction or withholding for or on account of, any taxes, levies, fees, imposts, duties, assessments or other charges, together with all penalties, fines, additions to tax and interest thereon; provided, that if any such taxes are required under applicable law, regulation or otherwise to be deducted or withheld from any payment to the Beneficiary hereunder, then each Guarantor shall pay an additional amount such that after deduction for any withholdings (including withholdings on such additional amount), the Beneficiary shall receive the same amount it would have received in the absence of such withholdings.  Each Guarantor, jointly and severally, shall indemnify and hold the Beneficiary harmless on an after-tax basis for any incremental taxes imposed against, or suffered by, the Beneficiary that result from payments being made pursuant to this Guaranty rather than pursuant to the CAA, the Equipment Lease or the other Operative Documents.

 

 Exhibit 3-6



 

9.             Rights of Third Parties.  This Guaranty is made for the benefit of, and shall be enforceable by the Beneficiary and its successors and permitted assigns to the extent of its interest in the Guaranteed Obligations.  This Guaranty shall not be construed to create any right in any Person other than the Beneficiary and its respective permitted successors and assigns or to be a contract in whole or in part for the benefit of any Person other than the Beneficiary and its successors and permitted assigns.

 

10.           Rights to Deal with the Company.  At any time and from time to time, without terminating, affecting or impairing the validity of this Guaranty or the obligations of the Guarantors hereunder, the Beneficiary may deal with the Company in the same manner and as fully as if this Guaranty did not exist and shall be entitled, among other things, to grant the Company such extension or extensions of time to perform, or to waive any obligation of the Company to perform, any act or acts as the Beneficiary may deem advisable, and no such waiver or extension shall in any way limit or otherwise affect any of the Guarantors’ obligations hereunder.

 

11.           Notices.  All notices required to be given hereunder shall be deemed adequately given if sent by certified mail to the addressee at its address stated herein, or at such other place as such addressee may have designated in writing.  All notices, demands or other communications to be given or delivered under or by reason of the provisions of this Guaranty must be in writing and shall be sent in the manner specified in the Equipment Lease for notices to the Company and to the address specified below:

 

Polymer Group, Inc.

9335 Harris Corners Parkway

Suite 300

Charlotte, North Carolina, 28269

Attn:  Chief Financial Officer

 

12.           No Waiver; Remedies.  No failure on the part of the Beneficiary to exercise, and no delay in exercising any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right.  The remedies herein provided are cumulative and not exclusive of any remedies provided by law.

 

13.           Continuing Guaranty; Transfer of Interest.  This Guaranty is a continuing guarantee and shall (i) remain in full force and effect all of the Guaranteed Obligations then due shall have been finally, indefeasibly and unconditionally paid and performed in full, (ii) be binding upon each Guarantor, and its successors and permitted assigns, and (iii) inure to the benefit of and be enforceable by the Beneficiary and its respective successors and permitted assigns.  Each Guarantor shall execute and deliver to the Beneficiary, upon such Person’s request, such instruments and assurances and take such other actions as may be reasonably necessary written to confirm or evidence the rights hereunder of any successor or assignee to or of such Person.

 

 Exhibit 3-7



 

14.           Amendments and Waivers.  No amendment or waiver of any provision of this Guaranty or consent to any departure by any Guarantor therefrom shall in any event be effective unless the same shall be in writing and signed by the Beneficiary, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.

 

15.           Enforcement Expenses.  Each Guarantor, jointly and severally, agrees to pay to the Beneficiary any and all reasonable costs and expenses (including reasonable legal fees) incurred by the Beneficiary in enforcing its rights under this Guaranty.

 

16.           Representations, Warranties and Covenants.  (a)  Each Guarantor hereby represents and warrants to the Beneficiary that on the date hereof and on the date of execution of each Funding Request under the CAA and the Schedule under the Equipment Lease:

 

(i)             such Guarantor it is duly incorporated, validly existing and in good standing under the laws of the jurisdiction of its incorporation and is duly qualified to transact business as a foreign corporation in good standing wherever necessary to carry on its present business and operations, except where the failure to be so qualified or to be in good standing would not have a Material Adverse Effect.

 

(ii)            this Guaranty has been duly authorized, executed and delivered by such Guarantor and constitutes a valid, legal and binding agreement, enforceable against it in accordance with its terms, except to the extent that the enforcement of remedies therein provided may be limited under applicable bankruptcy and insolvency laws or other laws affecting creditor’s rights generally, public policy and equitable principles (whether considered in a proceeding in equity or in law).

 

(iii)           no approval, consent, giving notice to or withholding of objections is required from any Governmental Authority with respect to the entry into or performance by such Guarantor of this Guaranty except (a) such as have already been obtained or made and are in full force and effect or (b) approval, consent or action the act of which obtaining or performing could reasonably be expected to have a Material Adverse Effect.

 

(iv)          such Guarantor has the corporate power and authority to enter into, and perform its obligations under, this Guaranty.  The entry into and performance by such Guarantor of this Guaranty will not: (i) violate any judgment, order, law or regulation applicable to such Guarantor or any provision of such Guarantor’s charter or other organizational documents; or (ii) result in any breach of, constitute a default under or result in the creation of any Lien upon any of the Equipment pursuant to any material indenture, mortgage, deed of trust, bank loan or credit agreement or other instrument (other than this Guaranty) to which such Guarantor is a party.

 

(v)           there are no suits or proceedings pending or to such Guarantor’s knowledge threatened in court or before any commission, board or other administrative

 

 Exhibit 3-8



 

agency against or affecting such Guarantor, which are reasonably likely to result in a Material Adverse Effect.

 

(vi)          such Guarantor is (i) in compliance in all material respects with all applicable laws and regulations relating to (x) the regulations promulgated by the Office of Foreign Assets Control (“OFAC”), U.S. Department of the Treasury relating to dealings with certain persons listed on the publicly available Specially Designated Nationals and Blocked Persons List maintained by OFAC, (y) Section 1(b), (c) or (d) of Executive Order No. 13224 (September 23, 2001) and (z) the prevention and detection of money laundering violations under the US Bank Secrecy Act (Financial Recordkeeping and Reporting of Currency and Foreign Transactions Act of 1970, 31 U.S.C. 1051 et. seq.) (“BSA”), under all regulations promulgated under the BSA and under all published U.S. government guidance, and (ii) in compliance with all other Applicable Laws the non-compliance with which, with respect to this clause (ii) only, could reasonably be expected to result in a Material Adverse Effect.

 

(b)           Each Guarantor hereby covenants and agrees for the benefit of the Beneficiary that such Guarantor shall remain (i) in compliance in all material respects with all applicable laws and regulations relating to (x) the regulations promulgated by OFAC relating to dealings with certain persons listed on the publicly available Specially Designated Nationals and Blocked Persons List maintained by OFAC, (y) Section 1(b), (c) or (d) of Executive Order No. 13224 (September 23, 2001) and (z) the prevention and detection of money laundering violations under the BSA, under all regulations promulgated under the BSA and under all published U.S. government guidance, and (ii) in compliance with all other Applicable Laws the non-compliance with which, with respect to this clause (ii) only, could reasonably be expected to result in a Material Adverse Effect.

 

17.           Waiver of Jury Trial.  EACH OF THE UNDERSIGNED HEREBY UNCONDITIONALLY WAIVES ITS RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS GUARANTY, THE OBLIGATIONS GUARANTEED HEREBY, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN US RELATING TO THE SUBJECT MATTER HEREOF OR THEREOF, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN US.  The scope of this waiver is intended to be all encompassing of any and all disputes that may be filed in any court (including, without limitation, contract claims, tort claims, breach of duty claims, and all other common law and statutory claims).  THIS WAIVER IS IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS GUARANTY, THE OBLIGATIONS GUARANTEED HEREBY, OR ANY RELATED DOCUMENTS.  In the event of litigation this Guaranty may be filed as a written consent to a trial by the court.

 

 Exhibit 3-9



 

18.           Complete Agreement.  This Guaranty is intended by the parties as a final expression of the guaranty of the undersigned and is also intended as a complete and exclusive statement of the terms thereof.  No course of dealing, course of performance or trade usage, nor any parol evidence of any kind, shall be used to supplement or modify any of the terms hereof.  There are no conditions to the full effectiveness of this Guaranty.  This Guaranty and each of its provisions may only be waived, modified, varied, released, terminated or surrendered, in whole or in part, by a duly authorized written instrument signed by you.  No failure by the Beneficiary to exercise its rights hereunder shall give rise to any estoppel against it, or excuse any Guarantor from performing hereunder.  Waiver of any right to demand performance hereunder shall not be a waiver of any subsequent or other right to demand performance hereunder.

 

19.           Governing Law.  THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES OF SUCH STATE), INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.  The parties agree that any action or proceeding arising out of or relating to this Guaranty may be commenced in the United States District Court for the Southern District of New York and the parties irrevocably submit to the jurisdiction of such court and agree not to assert, by way of motion, as a defense or otherwise, in any such suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of such court, that the suit, action or proceeding is brought in an inconvenient form, that the venue of such suit, action or proceeding is improper, or that this Guaranty or the subject matter hereof or the transaction contemplated hereby may not be enforced in or by such court.  Each of the parties hereto agree that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law; provided that this sentence will not be construed as a waiver of any right to appeal a judgment.

 

20.           Severability.  Any provision of this Guaranty which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

 

21.           Counterparts.  This Guaranty may be executed in counterparts each of which shall constitute an original but all of which when taken together shall constitute a single contract.  Delivery of an executed signature page to this Guaranty by facsimile transmission shall be effective as delivery of a manually executed counterpart of this Guaranty.

 

22.           Each of Beneficiary and each of its Members that are subject to the Patriot Act hereby notifies each Guarantor that pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information that identifies each Guarantor, which

 

 Exhibit 3-10



 

information includes the name and address of each Guarantor and other information that will allow the Beneficiary and each of its Members to identify each Guarantor in accordance with the Patriot Act.

 

(Signatures on next page)

 

 Exhibit 3-11


 

IN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be duly executed and delivered as of the date first above written.

 

 

 

GUARANTORS:

 

 

 

 

 

 

 

 

POLYMER GROUP, INC.

 

 

 

 

 

 

 

 

By:

 

 

 

 

Name:

 

 

 

 

Title:

 

 

 

 

 

 

 

 

 

PGI POLYMER, INC.

 

 

 

 

 

 

 

 

By:

 

 

 

 

Name:

 

 

 

 

Title:

 

 

 

 

 

 

 

ACCEPTED AND AGREED

 

 

as of the date first above written:

 

 

GOSSAMER HOLDINGS, LLC,

 

 

 

 

 

as the Beneficiary

 

 

 

 

 

BY: GENERAL ELECTRIC CREDIT CORPORATION OF TENNESSEE, its member

 

 

 

 

By:

 

 

 

Name:

 

 

 

Title:

 

 

 

 

 

 

 

 

 

BY: ING SPUNMELT HOLDINGS LLC, its member

 

 

 

 

 

 

 

 

By:

 

 

 

Name:

 

 

 

Title:

 

 

 

 

[ Signature Page to Guaranty ]

 

 Exhibit 3-12



 

EXHIBIT NO. 4

TO

TO LEASE AGREEMENT DATED AS OF JUNE 24, 2010

 

FORM OF CONFIDENTIALITY AGREEMENT

 

                      , 20     

 

ADDRESS

 

Re:  Confidentiality Letter

 

Dear                 :

 

[                          ] (“Investor”) is entering into discussions with Gossamer Holdings, LLC (the “Company”) concerning the financing of a 5 beam composite spunmelt nonwoven production line manufactured, primarily by, and purchased from Reifenhäuser REICOFIL GmbH & Co. KG and other vendors (together with related equipment, as applicable) located at 1020 Shenandoah Village Drive, Waynesboro, Virginia, 22980-9292 (the “Financing”).  In connection therewith, the Company will provide Investor with certain “Confidential Information” (as defined below) pursuant to the terms hereof.

 

“Confidential Information” means (i) any written or oral information provided by or through the Company in connection with the Financing relating to the business, finances, operations or affairs of the Company (other than information described in paragraph (c) below) and (ii) the fact that discussions or investigations with respect to the Financing are taking place.

 

Investor will maintain as confidential any Confidential Information using the same standard of care as it uses in protecting its own confidential information of a similar nature and otherwise on the following terms and conditions and will only use Confidential Information to evaluate the Financing:

 

(a)           Investor may disclose Confidential Information on a confidential, “need-to-know” basis to its and its affiliates’ employees, officers, directors and agents (including attorneys) (“Representatives”) in connection with the Financing, but Investor shall direct each Representative to treat the Confidential Information confidentially.  Such persons and entities will not be deemed Representatives hereunder unless (and solely to the extent that) Investor furnishes such information to such persons or entities.

 

(b)           Investor may disclose without liability any Confidential Information if such disclosure is (i) in connection with any syndication, assignment or participation of the interest of Investor or an affiliate in the Financing (including to a rating agency) so long as such Confidential Information is disclosed to the recipient thereof (other than any rating agency) subject to confidentiality provisions substantially the same terms as those hereof or (ii) 

 

 Exhibit 4-1



 

reasonably believed by it to be compelled or required by any law, court decree, subpoena, legal or administrative order or process, or legitimate request of any governmental agency or authority (collectively, an “Order”).  Unless prohibited by the terms of an Order, Investor shall notify the Company of the receipt of any such Order and shall reasonably cooperate, at the Company’s expense, with any attempt by the Company to obtain an appropriate protective order.

 

(c)           Investor shall not be precluded from disclosing or using any Confidential Information, (i) which was in its or one of its affiliate’s possession prior to any disclosure by the Company on a non-confidential basis, (ii) which is publicly available through no fault or breach by Investor or any person or entity to whom Investor discloses any Confidential Information, (iii) which becomes available to Investor from sources not known by it after reasonable inquiry to be subject to disclosure restrictions, or (iv) which is independently developed by Investor or its Representatives.

 

(d)           Any Confidential Information shall be upon the Company’s written request, either returned or destroyed; however, Investor shall not be required to expunge from its records internally generated documents (including electronic copies) containing Confidential Information which it maintains under its normal record retention policy, but Investor shall continue to maintain as confidential all such documents pursuant to the terms of this agreement.

 

Except for the maintenance of confidentiality on the above terms, the commencement of discussions shall not create any other obligation either (i) to or of the Company of any kind, or (ii) to or of Investor of any kind, and no such obligation can be created except by a duly authorized, executed and delivered written agreement.  This agreement shall remain effective for a term of 18 months from the last disclosure of Confidential Information to Investor hereunder.  This agreement shall be governed by, and construed in accordance with, the laws of the State of New York (without regard to its conflicts of law provisions).

 

In the event that Investor acquires an equity interest in the Company, on and after the date of such acquisition, this Confidentiality Letter shall be superseded and replaced by the terms of Section 22 of that certain Equipment Lease Agreement dated as of June 24, 2010 among Chicopee, Inc. as lessee and the Company as lessor.

 

 

 

Very truly yours,

 

 

 

 

 

Gossamer Holdings, LLC

 

 

 

 

 

By:

 

 

 

Title:

 

Accepted and agreed to

 

 

this          day of                         , 20    :

 

 

 

 

 

 

 

 

By:

 

 

 

Title:

 

 

 

 

 Exhibit 4-2



 

EXHIBIT NO. 5

TO

TO LEASE AGREEMENT DATED AS OF JUNE 24, 2010

 

FORM OF SECURITY DEPOSIT PLEDGE AGREEMENT

 

See attached.

 

 Exhibit 5-1



 

SECURITY DEPOSIT PLEDGE AGREEMENT

 

This Security Deposit Pledge Agreement (this “Agreement”) is made and entered into as of                     , 2011 by and between Chicopee, Inc., a Delaware corporation (“Lessee”), and Gossamer Holdings, LLC (together with all of its successors and assigns, if any, “Lessor”).

 

In consideration of, and as an inducement for Lessor to lease to Lessee certain Equipment under the Equipment Lease Agreement, dated as of June 24, 2010 (the “Equipment Lease Agreement” and the Schedule thereto being referred to as the “Lease”), and to secure the payment and performance of all of Lessee’s obligations under the Lease, Lessee has agreed to deposit with and pledge to Lessor in cash an amount equal to                  Dollars ($                          ) (the “Collateral”).

 

NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree that such pledge shall be made upon the terms and conditions set forth below:

 

1.     Capitalized terms used but not defined herein shall have the meanings set forth in the Lease.

 

2.     Lessee delivers the Collateral to Lessor to secure Lessee’s performance of its obligations under the Lease, including, but not limited to, the timely payment of Rent.

 

3.     Lessee has transferred the Collateral to Lessor by wire transfer of immediately available funds in United States Dollars to Lessor’s account at:

 

 

 

 

 

Bank:

Deutsche Bank

 

Branch:

New York

 

Bank Account #:

50286772

 

ABA:

021001033

 

Account Name:

Gossamer Holdings, LLC

 

Customer:

Polymer Group, Inc.

 

4.     The Collateral deposited with Lessor will not accrue interest.  Lessor may commingle the Collateral with its other funds or the funds of any of its Members.

 

5.     After any Default by Lessee under the Lease and while the same is continuing, upon, or at any time after said Default, Lessor may apply the Collateral towards the satisfaction of Lessee’s obligations under the Lease and the payment of all costs and expenses incurred by Lessor or any Member as a result of such Default, including but not limited to, costs of repossessing equipment and attorneys’ fees.  Such application shall not excuse the performance at the time and in the manner prescribed of any obligation of Lessee or cure a Default of Lessee.  Upon the application by Lessor of any amount of the Collateral pursuant to the terms of this paragraph, Lessee shall be obligated to pay to Lessor an amount sufficient to cause the Collateral to equal the amount first set forth above within 3 Business Days following the application of any amount of the Collateral.

 

 Exhibit 5-2



 

6.     Lessor shall have no duty to first commence an action against or seek recourse from Lessee, in the event of a Default under the Lease, before enforcing the provisions of, and proceedings under the provisions of this Agreement.  The obligations of Lessee under this Agreement shall be absolute and unconditional and shall remain in full force and effect without regard to, and shall not be released or discharged or in any way affected by:

 

(a)   any amendment or modification of or supplement to the Lease or any other Operative Document;

 

(b)   any exercise or non-exercise of any right, remedy or privilege under or in respect to this Agreement, the Lease, or any other instrument provided for in the Lease, or any waiver, consent, explanation, indulgence or actions or inaction with respect to any such instrument; or

 

(c)   any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding of Lessee.

 

7.     Upon the termination of the Lease and the satisfaction of all of the obligations of Lessee thereunder, Lessor shall deliver to Lessee the Collateral (less any portion of same cashed, sold, assigned or delivered pursuant to and under the conditions specified in paragraph 5 hereof), and this Agreement shall thereupon be without further effect.

 

8.     Lessor may, without the consent of Lessee, assign this Agreement.  Lessee agrees that if Lessee receives written notice of an assignment from Lessor, Lessee will pay all amounts due hereunder to such assignee or as instructed by Lessor.  Lessee also agrees to confirm in writing receipt of the notice of assignment as may be reasonably requested by assignee.  Lessee hereby waives and agrees not to assert against any such assignee any defense, set-off, recoupment claim or counterclaim which Lessee has or may at any time have against Lessor for any reason whatsoever.

 

9.     This Agreement shall be governed by, and construed in accordance with, the laws of the State of Connecticut.

 

[signature page follows]

 

 Exhibit 5-3



 

IN WITNESS WHEREOF , the parties hereto have caused this Agreement to be executed as of the date first above written.

 

LESSOR:

 

LESSEE:

 

 

 

GOSSAMER HOLDINGS, LLC

 

CHICOPEE, INC.

 

 

 

 

 

 

BY:

GENERAL ELECTRIC CREDIT CORPORATION OF TENNESSEE, its member

 

By:

 

 

Name:

 

 

 

 

Title:

 

 

 

 

 

By:

 

 

 

 

Name:

 

 

 

Title:

 

 

 

 

 

 

 

 

 

 

BY:

ING SPUNMELT HOLDINGS LLC, its member

 

 

 

 

 

 

 

 

 

 

By:

 

 

 

 

Name:

 

 

 

Title:

 

 

 

 Exhibit 5-4




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Exhibit 31.1

CERTIFICATION PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002

I, Veronica M. Hagen, certify that:

1.
I have reviewed this Quarterly Report on Form 10-Q of Polymer Group, Inc.;

2.
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3.
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4.
The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

(a)
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

(b)
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

(c)
Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

(d)
Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and

5.
The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):

(a)
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and

(b)
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.

Date: August 17, 2010   /s/ VERONICA M. HAGEN

Veronica M. Hagen
Chief Executive Officer



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Exhibit 31.2

CERTIFICATION PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002

I, Dennis E. Norman, certify that:

1.
I have reviewed this Quarterly Report on Form 10-Q of Polymer Group, Inc.;

2.
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3.
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4.
The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

(a)
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

(b)
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

(c)
Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

(d)
Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and

5.
The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):

(a)
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and

(b)
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.

Date: August 17, 2010    

 

 

/s/ DENNIS E. NORMAN

Dennis E. Norman
Chief Financial Officer



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Exhibit 32.1

Certification Pursuant To 18 U.S.C. Section 1350

        In connection with the Quarterly Report on Form 10-Q of Polymer Group, Inc. (the "Company") for the period ended July 3, 2010 as filed with the Securities and Exchange Commission on the date hereof (the "Report"), I, Veronica M. Hagen, Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to my knowledge:

Date: August 17, 2010


 

 

/s/ VERONICA M. HAGEN

Veronica M. Hagen
Chief Executive Officer

        A signed original of this written statement required by Section 906 has been provided to the Company and will be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request.




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Exhibit 32.2

Certification Pursuant To 18 U.S.C. Section 1350

        In connection with the Quarterly Report on Form 10-Q of Polymer Group, Inc. (the "Company") for the period ended July 3, 2010 as filed with the Securities and Exchange Commission on the date hereof (the "Report"), I, Dennis E. Norman, Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to my knowledge:

Date: August 17, 2010


 

 

/s/ DENNIS E. NORMAN

Dennis E. Norman
Chief Financial Officer

        A signed original of this written statement required by Section 906 has been provided to the Company and will be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request.




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