EXHIBIT 10.2(c)
EXECUTION COPY
To: Polaroid Holding Corporation (the "OBLIGORS' AGENT")
0000 Xxxx Xxxxxx
Xxxxxxx,
Xxxxxxxxxxxxx 00000
Attn: Treasurer
22 September 2004
SEVENTH WAIVER AND AMENDMENT LETTER
Ladies and Gentlemen:
1 The Obligors' Agent, Polaroid Corporation (formerly known as OEP
Imaging Operating Corporation) ("POLAROID"), Polaroid Holding
Corporation (formerly known as OEP Imaging Corporation), and certain
subsidiaries of Polaroid (collectively, the "POLAROID GROUP") entered
into a $100 million credit agreement dated July 29, 2002 with a group
of lenders led by Citicorp USA, Inc. as Domestic Administrative Agent,
Domestic Collateral Agent and Foreign Syndication Agent and Bank of
America, N.A. as Foreign Administrative Agent, Foreign Collateral Agent
(the "COLLATERAL AGENT") and Domestic Syndication Agent (as amended by
a first waiver and amendment letter dated August 30, 2002, a second
waiver and amendment letter dated March, 2003, a third waiver and
amendment letter dated April, 2003, a fourth waiver letter - in two
parts, both dated May, 2003, a fifth waiver and amendment letter dated
August 5, 2003, and a sixth waiver and amendment letter dated 14
November 2003 (the "SIXTH AMENDMENT LETTER"), and as may be amended,
restated or supplemented from time to time, collectively the "CREDIT
AGREEMENT"). Pursuant to the terms of the Credit Agreement, the
Polaroid Group entered into certain security arrangements in favour of
the Collateral Agent on its own behalf and on behalf of each of the
other Lenders.
2 Unless otherwise defined in this Letter, terms and expressions defined
in (including by reference to another document) the Credit Agreement
shall have the same meanings when used in this Letter.
3 Polaroid has requested an amendment to the Credit Agreement, more
specifically an amendment to Section 5.2 (MINIMUM EBITDA) to reflect a
revised minimum covenant for the 3rd and 4th Fiscal Quarters of 2004
and for the 1st Fiscal Quarter of 2005.
4 The Requisite Lenders have delivered their approvals of the requested
amendment to Section 5.2 (MINIMUM EBITDA) set forth below.
5 On our own behalf and on behalf of each of the other Lenders, we agree
that Section 5.2 (MINIMUM EBITDA) of the Credit Agreement shall be
amended by
deleting the table therein in its entirety and replacing it with the
following table, setting forth the requirements for minimum EBITDA for
the periods described therein:
-----------------------------------------------------
FISCAL QUARTER MINIMUM EBITDA
-----------------------------------------------------
3rd Fiscal Quarter 2002 not tested
-----------------------------------------------------
4th Fiscal Quarter 2002 not tested
-----------------------------------------------------
1st Fiscal Quarter 2003 not tested
-----------------------------------------------------
2nd Fiscal Quarter 2003 $10,000,000
-----------------------------------------------------
3rd Fiscal Quarter 2003 $20,000,000
-----------------------------------------------------
4th Fiscal Quarter 2003 $40,000,000
-----------------------------------------------------
1st Fiscal Quarter 2004 $44,000,000
-----------------------------------------------------
2nd Fiscal Quarter 2004 $49,000,000
-----------------------------------------------------
3rd Fiscal Quarter 2004 $38,000,000
-----------------------------------------------------
4th Fiscal Quarter 2004 $12,500,000
-----------------------------------------------------
1st Fiscal Quarter 2005 $2,500,000
-----------------------------------------------------
2nd Fiscal Quarter 2005 $53,000,000
-----------------------------------------------------
6 The Requisite Lenders have required the following amendment to be made
to the Credit Agreement:
6.1 the definition of "AVAILABLE DISCRETIONARY BASKET AMOUNT" in
Section 1.1 (DEFINED TERMS) of the Credit Agreement shall be
amended and restated in its entirety as follows:
"AVAILABLE DISCRETIONARY BASKET AMOUNT" means, as of any date
of determination, an amount equal to (a) the Discretionary
Basket Amount minus (b) the aggregate amount of any (i)
Permitted Acquisitions/Investments, (ii) Additional IDP
Venture Expenditures and (iii) Additional Capital
Expenditures, which in each case have been designated in
writing to the Administrative Agents as being made out of the
Discretionary Basket Amount.
6.2 the definition of "PERMITTED STOCK REDEMPTIONS" in Section 1.1
(DEFINED TERMS) of the Credit Agreement shall be deleted in
its entirety;
6.3 the definition of "FIXED CHARGES" in Section 1.1 (DEFINED
TERMS) of the Credit Agreement shall be amended and restated
in its entirety as follows:
"FIXED CHARGES" means, for any Person for any period, the sum
of (a) the Cash Interest Expense of such Person for such
period, (b) the principal amount of Financial Covenant Debt of
such Person and each of its Subsidiaries determined on a
consolidated basis in conformity with GAAP having a scheduled
due date during such period and (c) all cash
2
dividends payable by such Person and its Subsidiaries on Stock
in respect of such period to Persons other than such Person
and its Subsidiaries.
6.4 the definition of "TANGIBLE NET WORTH" in Section 1.1 (DEFINED
TERMS) of the Credit Agreement shall be amended by deleting
the following at the end of the definition:
", and including in the determination of Total Assets of such
Person at such date, any actual amount or liability recorded
by such Person in conformity with GAAP that is related to the
Permitted Stock Redemptions under this Agreement".
6.5 paragraph (b) of Section 8.5 (RESTRICTED PAYMENTS) shall be
deleted in its entirety and replaced with the following:
"(b) [Intentionally Blank];".
6.6 paragraph (g) of Section 8.5 (RESTRICTED PAYMENTS) shall be
deleted in its entirety and replaced with the following:
"(g) [Intentionally Blank];".
7 In accordance with Section 11.1 (AMENDMENTS, WAIVERS, ETC.) of the
Credit Agreement, on our own behalf and on behalf of each of the other
Lenders, we agree that the amendments requested above shall take effect
from and after:
7.1 such time as the Requisite Lenders have delivered their
approvals thereof; and
7.2 the receipt of an amendment fee (the "AMENDMENT FEE") payable
to each Lender of 20 basis points on the amount of such
Lender's outstanding Commitments under the Credit Agreement.
For the avoidance of doubt:
(a) with regards to the calculation of Tangible Net Worth as it
relates to the requirement under Section 5.3 (MAINTENANCE OF
TANGIBLE NET WORTH) of the Credit Agreement, the calculation
shall allow for the add-back of Permitted Stock Redemptions
(as defined in the Sixth Amendment Letter) completed prior to
the effective date of this Letter; and
(b) with regards to the calculation of Available Discretionary
Basket Amount as it relates to the requirement contained in
the definition of "AVAILABLE DISCRETIONARY BASKET AMOUNT"
under Section 1.1 (DEFINED TERMS) of the Credit Agreement, the
calculation shall allow for the deduction of Permitted Stock
Redemptions (as defined in the Sixth Amendment Letter)
completed prior to the effective date of this Letter.
3
8 The Obligors' Agent, on behalf of itself and each of the other Loan
Parties, hereby certifies, after careful consideration, that the
following statements are true on the date hereof:
8.1 the representations and warranties set forth in Sections 4.1,
4.2, 4.5, 4.7 (save for such litigation as more particularly
set out in the Schedule attached hereto), 4.8, 4.9, 4.10,
4.11(b), 4.11(d), 4.12, 4.14, 4.15(a), 4.15(b), 4.16(c),
4.16(d), 4.17(a), 4.17(b) and 4.18 of Article IV
(REPRESENTATIONS AND WARRANTIES) of the Credit Agreement and
the other Loan Documents are true and correct on and as of the
date hereof with the same effect as though made on and as of
such date, except to the extent such representations and
warranties expressly relate to an earlier date, in which case
such representations and warranties shall have been true and
correct as of such earlier date; and
8.2 no Default or Event of Default has occurred and is continuing
on the date hereof.
9 The Obligors' Agent, on behalf of itself and each of the other Loan
Parties, confirms its agreement to the above amendments and that the
Loan Parties' obligations under the Loan Documents to which they are
parties remain in full force and effect notwithstanding the making of
such amendments.
10 The Obligors' Agent confirms that in entering into this Letter it is
acting on its own behalf and as Obligors' Agent for the other Loan
Parties under Section 11.19(b) (US OBLIGORS' AGENT) and Section
11.19(a) (FOREIGN OBLIGORS' AGENT) of the Credit Agreement.
11 Save as amended or waived by this Letter, the provisions of the Credit
Agreement shall continue in full force and effect and the Credit
Agreement and this Letter shall be read and construed as one
instrument. This Letter is a Loan Document.
12 Please sign and return the attached copy of this Letter to signify your
acceptance of its terms and conditions. This Letter may be executed in
counterparts each of which shall be deemed to constitute an original.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
4
13 This Letter and the rights and obligations of the parties hereto shall
be is governed by, and construed and interpreted in accordance with,
the law of the State of New York.
Yours faithfully
/s/ Xxxxx X. Xxxxxxx /s/ Xxxxxxx Xxxxxxx
-------------------- -------------------------------
For and on behalf of For and on behalf of
CITICORP USA, INC. BANK OF AMERICA, N.A.
as Domestic Administrative Agent as Foreign Administrative Agent
/s/ Xxxxx X. Xxxxxxx /s/ Xxxxxxx Xxxxxxxx
-------------------- -------------------------------
For and on behalf of For and on behalf of
CITIBANK, N.A. BANK OF AMERICA, N.A.
as Lender as Lender
/s/ Xxxxxxx Xxxxx /s/ Xxxx Xxxxxxxx
-------------------------------------- -------------------------------
For and on behalf of For and on behalf of
NATIONAL CITY COMMERCIAL FINANCE, INC. UPS CAPITAL CORPORATION
as Lender as Lender
now known as
National City Business Credit, Inc.
5
To: Citicorp USA, Inc.
as Domestic Administrative Agent
Bank of America, N.A.
as Foreign Administrative Agent
We acknowledge receipt of the Letter and hereby confirm our agreement to the
terms and conditions thereof.
Yours faithfully
/s/ Xxxx Xxxxxx, VP, Treasurer
---------------------------------
For and on behalf of
POLAROID HOLDING CORPORATION
(acting on its own behalf and as Obligors' Agent
on behalf of each other Loan Party at the date hereof)
Date: Sep. 22, 2004
----------------
6
