EXHIBIT 99.3
DATED 12 JULY 2001
POLAROID (U.K.) LIMITED
as Borrower
POLAROID CORPORATION
as Guarantor
DEUTSCHE BANK AG, AMSTERDAM
as Agent
and Others
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AMENDMENT AND WAIVER AGREEMENT
RELATING TO A FACILITY AGREEMENT
DATED 3 AUGUST 1999
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CONTENTS
CLAUSE PAGE
1. DEFINITIONS AND INTERPRETATION............................................................ 3
2. WAIVERS................................................................................... 4
3. AMENDMENTS AND COVENANTS.................................................................. 5
4. ADDITIONAL INFORMATION.................................................................... 7
5. LAPSE OF WAIVER........................................................................... 8
6. FINANCE DOCUMENT.......................................................................... 9
7. RELEASE OF LENDERS........................................................................ 9
8. REPRESENTATIONS........................................................................... 9
9. CONSENT BY GUARANTOR...................................................................... 10
10. JURISDICTION AND PROCESS AGENT............................................................ 10
11. COUNTERPARTS.............................................................................. 11
12. WAIVER FEE................................................................................ 11
13. CONTINUITY, FURTHER ASSURANCE AND CORPORATE ACTIONS....................................... 11
14. FEES, COSTS AND EXPENSES.................................................................. 11
15. EFFECTIVENESS............................................................................. 12
16. GOVERNING LAW............................................................................. 12
THIS AGREEMENT is dated 12 July 2001 and made between:
(1) POLAROID (U.K.) LIMITED, a company incorporated in England (number
00732757), of Xxxxxxxxxxxxxx Xxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxxxxxx,
Xxxxxxxxxxxxx XX0 0XX (the "BORROWER");
(2) POLAROID CORPORATION, a company incorporated in the United States of
America, of 000 Xxxxxxxx Xxxxx, Xxxxxxxxx, XX 00000, XXX (the
"GUARANTOR");
(3) THE LENDERS named as such on the execution pages of this Agreement;
(4) DEUTSCHE BANC XXXX XXXXX INC. and ABN AMRO BANK N.V., as co-arrangers
(the "CO-ARRANGERS");
(5) DEUTSCHE BANK AG, Amsterdam, as agent (the "AGENT"); and
(6) ABN AMRO BANK N.V. as documentation agent (the "DOCUMENTATION AGENT").
RECITALS
(A) On 11th December 1998 Polaroid Corporation entered into a credit
agreement with Xxxxxx Guaranty Trust Company of New York, Bankboston
N.A. and others (the "US FACILITY AGREEMENT") pursuant to which a loan
in an aggregate amount of $350,000,000 was made available to Polaroid
Corporation.
(B) On 3rd August 1999 the parties hereto entered into a multicurrency
revolving credit facility agreement (the "UK FACILITY AGREEMENT")
pursuant to which a facility in the amount of euros 72,500,000 was made
available to the Borrower.
(C) On 26th March 2001 the parties to the UK Facility Agreement entered into
an amendment and waiver agreement agreeing to certain amendments and
granting certain interim waivers in relation to the UK Facility
Agreement (the "ORIGINAL AMENDMENT AND WAIVER AGREEMENT") which was
supplemented by a letter entered into between such parties on 15 May
2001 (the "SUPPLEMENTAL LETTER") (together the "EXISTING WAIVER
AGREEMENTS").
(D) The Guarantor has advised the Agent and the Lenders that its Board of
Directors, in a resolution adopted on July 11, 2001, has decided that it
is in the best interests of the Guarantor not to make the interest
payments on the 2002 Notes (as defined below) or the 2007 Notes (as
defined below) due on July 15, 2001 or the interest payment on the 2006
Notes (as defined below) due on August 15, 2001.
(E) The Borrower and the Guarantor have requested an extension to the
duration of the interim waivers granted under the Existing Waiver
Agreements and certain other changes to the UK Facility Agreement and
the Existing Waiver Agreements.
(F) The parties hereto have entered into this Agreement to extend the
duration of the existing waiver granted pursuant to the Existing Waiver
Agreements and to agree certain amendments to the UK Facility Agreement
and the Existing Waiver Agreement.
IT IS AGREED as follows: -
1. DEFINITIONS AND INTERPRETATION
1.1 Unless otherwise specifically defined herein, each term used herein
which is defined in the UK Facility Agreement or the Existing Waiver
Agreements shall have the meaning assigned to such term in the UK
Facility Agreement or, as the case may be, the Existing Waiver
Agreements. Each reference to "hereof", "hereunder", "herein" and
"hereby" and each other similar reference and each reference to "this
Agreement" and each other similar reference contained in the UK Facility
Agreement and the Existing Waiver Agreements shall, after this Agreement
becomes effective, refer to the UK Facility Agreement and the Existing
Waiver Agreements as modified hereby for the period any waiver granted
under this Agreement remains in effect.
1.2 As used herein, the following additional terms have the following
meanings:
"EFFECTIVE DATE" means the date on which this Agreement becomes
effective in accordance with the terms hereof.
"2002 NOTES" means the 6.75% Notes of the Guarantor issued in the
initial aggregate principal amount of $150,000,000 under the Indenture
and due January 15, 2002.
"2006 NOTES" means the 11.50% Notes of the Guarantor issued in the
initial aggregate principal amount of $275,000,000 under the Indenture
and the Supplemental Indenture and due February 15, 2006.
"2007 NOTES" means the 7.25% Notes of the Guarantor issued in the
initial aggregate principal amount of $150,000,000 under the Indenture
and due January 15, 2007.
"FLOATING CHARGE OVER INVENTORY" means the floating charge over
inventory and charge over receivables entered into by Polaroid (U.K.)
Limited in favour of Deutsche Bank AG, Amsterdam as agent and trustee
on 3 August 1999.
"JUNE 29 MEETING MATERIALS" means the written materials prepared by or
on behalf of the Guarantor and distributed to the Lenders under the US
Facility Agreement in connection with the lender meeting held on June
29, 2001, as identified as attachments to the Guarantor's letter to the
Administrative Agent under the US Facility Agreement dated July 12,
2001, a copy of which has been provided to the Agent under the UK
Facility Agreement.
"LIEN" shall bear the meaning ascribed to it in the US Facility
Agreement.
"INDENTURE" means the indenture dated as of 9 January 1997 between
Polaroid Corporation and State Street Bank and Trust Company as
trustee.
"NOTES" means, collectively, the 2002 Notes, the 2006 Notes and the
2007 Notes.
"SUPPLEMENTAL INDENTURE" means the supplemental indenture dated 17
February 1999 between Polaroid Corporation and State Street Bank and
Trust Company as trustee.
"TRUSTEE" means State Street Bank and Trust Company, as Trustee under
the Indenture.
2. WAIVERS
Each of the parties hereto agrees that Clauses 2.1 and 2.2 of the
Original Amendment and Waiver Agreement and the third and fourth
paragraphs of the Supplemental Letter commencing with "we hereby agree
to extend" and ending with "third Fiscal Quarters of Fiscal year 2001
"shall be deleted and replaced with the following:-
2.1 "Each Beneficiary hereto waives:
(i) any breach of representation or covenant under Clauses 17 or
19 of the UK Facility Agreement; and
(ii) any Termination Event or Potential Termination Event under the
UK Facility Agreement; and
(iii) any rights which any of the Beneficiaries may otherwise be
entitled to exercise pursuant to any of the other Finance
Document;
which , in any case, may occur or arise or may have occurred or arisen
solely on account of (a) the Guarantor's failure to be in compliance
with Section 5.07 or Section 5.08(a) of the US Facility Agreement at
any time during the Fiscal Year 2001 (as defined in the US Facility
Agreement) or (b) the Guarantor's failure to make when due any of the
payments of interest on the Notes due on 15 July or 15 August 2001 or
(c) the Guarantor or the Borrower having made or been deemed to have
made the representation set out in paragraph (N) of Clause 17.1 or in
paragraph (D) of Clause 6.4 of the UK Facility Agreement without being
qualified by reference to the circumstances described in the June 29
Meeting Materials.
2.2 The waiver set out in Clause 2.1 shall be effective solely for the
period (the "WAIVER PERIOD") beginning on February 16, 2001 and ending
on the earlier of (i) 5:00 P.M. (New York City time) on 12 October,
2001 and (ii) such earlier time as is determined pursuant to Clause 15
of this Agreement (the "WAIVER EXPIRY TIME")."
2.3 Each of the Guarantor and the Borrower understand and accept:
(i) the interim nature of the waiver provided hereby, and that the
Lenders have given no assurances that they will, nor are they
obliged to, extend the waiver provided hereby or provide other
waivers under or amendments to the UK Facility Agreement or
any other Finance Document;
(ii) that except as expressly set forth herein, the waiver
contained herein shall not constitute a waiver or amendment of
any term or condition of the UK Facility Agreement on any
other Finance Document and all such terms and conditions shall
remain in full force and effect and are hereby ratified and
confirmed in all respects;
(iii) that no failure or delay by the Lenders or any one of them in
exercising any right, power or privilege under any Finance
Document during the period prior to the date hereof or during
the period the waiver referred to in this Agreement is in
effect shall operate as a waiver thereof;
(iv) that the Lenders are under no obligation to extend, and in
their sole and absolute discretion may refuse to extend, the
waiver referred to in this Agreement beyond the Waiver Expiry
Time; and
(v) that if following the Waiver Expiry Time (a) the Guarantor is
not in compliance with Section 5.07 or 5.08(a) of the US
Facility Agreement or has failed to make the payments of
interest referred to in paragraph (b) of Clause 2.1 above or
if the Guarantor or Borrower makes a representation under the
UK Facility Agreement which is incorrect as a consequence of
the circumstances described in the June 29 Meeting Materials
and (b) the Lenders do not extend the waiver provided hereby
or take other action in respect of any such failure, a
Termination Event will automatically exist immediately under
the UK Facility Agreement following the Waiver Expiry Time,
without the requirement of any further action by any of the
Beneficiaries.
3. AMENDMENTS AND COVENANTS
3.1 The parties hereto agree that with effect from the Effective Date
Clause 19.3 of the UK Facility Agreement shall be renumbered as Clause
19.4 and the following provision shall be inserted as Clause 19.3:-
"19.3 Negative Pledge.
None of the Borrower's Group will create or permit to subsist any Lien
over any of its assets save for any Liens permitted pursuant to Clause
3.5 of the Floating Charge over Inventory. For the avoidance of doubt,
the Liens permitted pursuant to such Clause 3.5 shall, for the purposes
of this Clause 19.3, be permitted in relation to all assets of the
Borrower's Group Provided that the amount of US$15,000,000 referred to
in the first sentence in paragraph (C) thereof shall be an aggregate
figure in relation to all assets of the Borrower's Group and the second
sentence of such paragraph (C) shall apply in relation to Inventory (as
defined in the Floating Charge over Inventory) only".
3.2 Polaroid (U.K.) Limited shall, as soon as practicable after the date
hereof but in any event no later than 15 Business Days after the date
hereof or such later date as the Agent may agree, execute and deliver
to the Agent a debenture in a form reasonably satisfactory to the
Lenders.
3.3 The following dates and figures shall be added to the table set out in
paragraph (viii) of the Supplemental Letter:-
Fiscal month Amount
July, 2001 $45,200,000
August, 2001 $53,200,000
September, 2001 $61,200,000
3.4 The Guarantor agrees that it will not use, whether directly or
indirectly, any proceeds of the Loan or of any Charges to make any of
the payments of interest on the Notes due on July 15 or August 15,
2001.
3.5 The reference to "$5 million" in paragraph (vii) of the Supplemental
Letter shall be amended to read "$ 7.5 million".
3.6 The Guarantor agrees that it will promptly commence and diligently
pursue the preparation of a plan for the restructuring of its capital
structure, which will include in reasonable detail both the terms and
conditions of such restructuring and the timing and process for
implementing such plan. The Guarantor further agrees to consult (and
cause its advisers to consult) regularly during such preparation with
the Agent and its advisors and agrees to provide to the Agent and the
Lenders such information as they may reasonably request in relation to
such restructuring.
3.7 Any relevant member of the Guarantor's Group (other than the Guarantor
or any Subsidiary Guarantor or any Domestic Subsidiary (each as defined
in the US Facility Agreement)) shall, within 21 Business Days of any
request by the Agent or such later date as the Agent may agree, enter
into a pledge (or security assignment) in relation to the rights of
such member of the Guarantor's Group under any licensing or
distribution agreements to which it is a party and from which the
rights of the Borrower and/or the rights of the Relevant Polaroid
Subsidiaries and/or Polaroid Contracting C.V. to manufacture, market,
distribute and sell Polaroid products are, directly or indirectly,
derived Provided that the Agent shall not make any such request prior
to the date on which the documents referred to in paragraph (c) of
Clause 4.1 have been delivered to the Agent.
3.8 The Guarantor shall ensure that:-
(a) Each member of the Guarantor's Group shall perform all of its
obligations and exercise all of its rights under any licencing
and distribution agreement to which it is a party and from
which any of the rights of any of the Borrower and/or the
Relevant Polaroid Subsidiaries and/or Polaroid Contracting
C.V. to manufacture, market, distribute and sell Polaroid
products are, directly or indirectly, derived (the "Relevant
Agreements") to ensure the continued existence of each such
Relevant Agreement for the benefit of the Borrower, the
Relevant Polaroid Subsidiary or Polaroid Contracting C.V., as
the case may be, and shall ensure that each such member of the
Guarantor's Group waives any termination right which would
otherwise be triggered as a result of any cessation or sale of
trade or change of control and, to the extent that it is so
possible, to waive any termination right arising by reason of
bankruptcy, liquidation, receivership, moratorium, suspension
of payments or any other analogous proceedings;
(b) no member of the Guarantor's Group shall exercise any right of
termination of any Relevant Agreement arising as a result of
any other reason without the Beneficiaries first having a cure
period of at least 30 Business Days (during which time the
Beneficiaries may exercise any `step in' rights required to
achieve this); and
(c) no member of the Guarantor's Group shall amend or vary any
term of any Relevant Agreement without the consent of the
Lenders.
4. ADDITIONAL INFORMATION
4.1 The Guarantor agrees that it shall deliver the following information to
the Agent and each Lender within each of the time periods specified
below:-
(a) within 5 Business Days of the date hereof, a copy of the
"Domestic Receipts and Disbursements Forecast" attached to the
Guarantor's letter to the Administrative Agent under the US
Facility Agreement dated 12 July 2001 and covering the period
from the week ending 13 July 2001 through to the week ending
12 October 2001 and showing forecast cash receipts and
disbursements of the Guarantor and its Domestic Subsidiaries
(as defined in the US Facility Agreement) (other than in
respect of the principal amount of any Loans under the US
Facility Agreement, but including proceeds of asset
dispositions) weekly, the net difference (whether positive or
negative, referred to herein as "cash flow") and forecast
cumulative net cash flow from the beginning of such period
through each succeeding week;
(b) by no later than 9 a.m. (Amsterdam time) on the fifth Business
Day of each second week commencing with the week immediately
following the Effective Date, a rolling thirteen week cash
forecast in relation to the international operations of the
Guarantor's Group in substantially the same form as the cash
forecast delivered by the Guarantor to the Agent on 9 July
2001;
(c) as soon as practicable but in any event no later than 14
Business Days after the date hereof or such later date as the
Agent may agree, a copy of all licensing and distribution
agreements to which any member of the Guarantor's Group is a
party from which any of the rights of any of the Borrower
and/or the Relevant Polaroid Subsidiaries and/or Polaroid
Contracting C.V. to manufacture, market, distribute and sell
Polaroid products are, directly or indirectly, derived;
(d) promptly and in any event no later than August 24, 2001, a
revised operating plan for the Fiscal Year 2001, which (x)
shall be of comparable scope and level of detail as the
Operating Plan referred to in the second supplement agreement
entered into on 15 May 2001 in relation to the US Facility
Agreement and (y) include projections and financial and other
information that are not materially more negative, taken as a
whole, than the projections and financial and other
information contained in the June 29 Meeting Materials;
(e) notice by facsimile or e-mail immediately and, in any event,
on the same day if:-
(i) the Guarantor either makes or fails to make when due
(without regard to any grace period) any of the
payments of interest on the Notes due on 15 July or
15 August 2001;
(ii) it receives from the Trustee or persons purporting to
constitute the holders of at least 25% of the
outstanding 2002 Notes, 2007 Notes or 2006 Notes
notice accelerating the maturity of the 2002 Notes
2007 Notes or 2006 Notes respectively together with a
copy of such notice, or it has knowledge that the
Trustee or persons purporting to be the holders of
25% or more of the principal amount of the 2002
Notes, 2007 Notes or 2006 Notes have commenced legal
proceedings to collect any unpaid amount of principal
of or interest on the 2002 Notes 2007 Notes or 2006
Notes, respectively.
5. LAPSE OF WAIVER
5.1 Clause 5 of the Original Amendment and Waiver Agreement is deleted and
is replaced by the following provisions of this Clause 5.1:
Each of the Guarantor and the Borrower agree that its failure to comply
with any provision of the Existing Waiver Agreements, this Agreement or
any provision of any amendment, variation or extension thereof shall
cause the waivers granted hereby or thereby to cease to be in effect
(i) in the case of a breach of Clause 4 of the Original Amendment and
Waiver Agreement or a breach after 16 February 2001 of any the
amendments contemplated by Clause 3 of the Original Amendment and
Waiver Agreement, immediately and without the requirement of any prior
notice from or further action on the part of any Lender or the Agent
and (ii) in any other case, if such failure continues for more than
five days after notice from the Agent given at the direction of the
Lenders.
In addition, the waivers granted hereby shall cease to be in effect,
immediately and without the requirement of any prior notice from or
further action on the part of any Lender or the Agent, in the event
that (x) the Guarantor shall make any of the payments of interest on
the Notes due on July 15 or August 15, 2001 or (y) the Trustee or
persons purporting to constitute the holders of at least 25% of the
outstanding 2002 Notes, 2007 Notes or 2006 Notes give notice
accelerating the maturing of the 2002 Notes, the 2007 Notes or 2006
Notes respectively OR the Trustee or persons purporting to be the
holders of 25% or more of the principal amount of the 2002 Notes, 2007
Notes or 2006 Notes commence legal proceedings to collect any unpaid
amount of interest on the 2002 Notes, 2007 Notes or 2006 Notes
respectively.
5.2 If any waivers granted in relation to the US Facility Agreement expire
earlier than the Waiver Expiry Time the Agent may by notice given to
the Guarantor at the direction of the Lenders cause the waivers granted
by the Existing Waiver Agreements and this Agreement to cease to be in
effect immediately upon delivery of such notice.
6. FINANCE DOCUMENT
Each of the Guarantor and the Borrower agree that this Agreement shall
be considered a "Finance Document" for all purposes of the UK Facility
Agreement.
7. RELEASE OF LENDERS
Each of the Guarantor and the Borrower, for itself and on behalf of its
affiliated entities, successors and assigns (the "COMPANY PARTIES"),
jointly and severally releases, acquits and forever discharges, each of
the Beneficiaries and their respective subsidiaries, parents,
affiliates, officers, directors, employees, agents, attorneys,
successors and assigns, both present and former (collectively, the
"BENEFICIARIES' AFFILIATES") from any and all manner of actions, causes
of action, suits, debts, damages, judgments, executions, claims and
demands whatsoever, asserted or unasserted, in contract, tort, law or
equity which any Company Party has or may have against any of the
Beneficiaries and/or the Beneficiaries' Affiliates by reason of any
action, failure to act, matter or thing whatsoever arising from or
based on facts occurring prior to the date hereof, including but not
limited to any claim or defense that relates to, in whole or in part,
directly or indirectly, (i) the making or administration of the Loan,
including without limitation, any such claims and defenses based on
fraud, mistake, duress, usury or misrepresentation or otherwise (ii)
any covenants, agreements, duties or obligations set forth in the
Finance Documents, (iii) any actions or omissions of any of the
Beneficiaries' Affiliates and/or the Beneficiaries in connection with
the initiation or continuing exercise of any right or remedy contained
in the Finance Documents or at law or in equity, (iv) lost profits, (v)
loss of business opportunity, (vi) increased financing costs, (vii)
increased legal or other administrative fees, or (viii) damages to
business reputation.
8. REPRESENTATIONS
8.1 Each of the Guarantor and the Borrower represent and warrant that (i)
the representations and warranties of the Guarantor and the Borrower
set forth in Clause 17 of the UK Facility Agreement will be true on and
as of the Effective Date in accordance with the terms hereof (taking
into account, in the case of the representation set out in Clause
17.1(I) of the UK Facility Agreement, the waivers granted pursuant to
the Existing Waiver Agreements and this Agreement and, in the case of
the representation set out in Clause 17.1(J), as updated by Clause 17.2
of the UK Facility Agreement) and (ii) no Termination Event or
Potential Termination Event had or has occurred and was or is
continuing on either of the dates referred to above, except in any case
as expressly contemplated to be waived by this Agreement.
8.2 Without limiting the generality of the foregoing, the Guarantor further
represents and warrants that all information (other than projections)
heretofore furnished by it or the Borrower to the Agent or any Lender
for purposes of or in connection with this Agreement does not, and all
such information hereafter furnished by it or the Borrower to the Agent
or any Lender will not, contain any untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements therein, in light
of the circumstances under which they are or will be made, not
misleading, and all projections included in any such information are or
will be based upon good faith estimates and assumptions believed by the
Guarantor's senior management to be reasonable at the time prepared,
and at the time prepared represent senior management's reasonable best
estimate of the future performance of the operations of the Guarantor
and its Subsidiaries.
8.3 In addition, the Guarantor hereby represents that:-
(a) The consolidated balance sheet of the Guarantor and its
Consolidated Subsidiaries as of December 31, 2000 and the
related consolidated statements of earnings, cash flows and
changes in common stockholders' equity for the Fiscal Year
then ended, reported on by KPMG Peat Marwick LLP and set forth
in the Guarantor's 2000 Form 10-K, a copy of which has been
delivered to each of the Lenders, fairly present, in
conformity with GAAP, the consolidated financial position of
the Guarantor and its Consolidated Subsidiaries as of such
date and their consolidated results of operations and cash
flows for such Fiscal Year; and
(b) The unaudited consolidated balance sheet of the Guarantor and
its Consolidated Subsidiaries as of March 21, 2001 and the
related unaudited consolidated statements of earnings, cash
flows and changes in common stockholders' equity for the three
months then ended, set forth in the Guarantor's First Quarter
2001 Form 10-Q, a copy of which has been delivered to each of
the Lenders, fairly present, in conformity with GAAP applied
on a basis consistent with the financial statements referred
to in Section 4.05(a) of the US Facility Agreement, the
consolidated financial position of the Guarantor and its
Consolidated Subsidiaries as of such date and their
consolidated results of operations and cash flows for such
three-month period (subject to normal year-end adjustments).
For the purposes of this Clause 9.3 the references to
Consolidated Subsidiaries and GAAP shall have the meanings
ascribed to them in the US Facility Agreement.
9. CONSENT BY GUARANTOR
By its signature below, the Guarantor hereby consents to this
Agreement, and acknowledges that this Agreement shall not alter,
release, discharge or otherwise affect any of its obligations under the
UK Facility Agreement or any Finance Document, and hereby ratifies and
confirms all of the Finance Documents to which it is a party.
10. JURISDICTION AND PROCESS AGENT
The provisions of Clauses 27.2 and 27.3 of the UK Facility Agreement
shall be incorporated, MUTATIS MUTANDIS, into the Agreement.
11. COUNTERPARTS
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
12. WAIVER FEE
12.1 The Guarantor shall pay the Agent in immediately available funds for
the account of each Lender which has evidenced its agreement hereto a
waiver fee in an amount equal to 0.25% of such Lender's Commitment (as
of the opening of business on the date hereof) on the dates specified
in Clause 12.2 below.
12.2 The waiver fee referred in Clause 12.1 shall be payable by the
Guarantor to the Agent for the account of the relevant Lenders in
immediately available funds as follows. One-third (1/3) of the
aggregate amount of such fees shall be payable on each of the following
dates:-
(a) the first Business Day after the later of (x) July 12, 2001
and (y) the date the Agent issues a notice to the Lenders
stating that this Agreement has become effective;
(b) the date that is thirty (30) days after the Effective Date (or
if such date is not a Business Day the first Business Day
after such date); and
(c) the date that is sixty (60) days after the Effective Date (or
if such date is not a Business Day, the first Business Day
after such date).
13. CONTINUITY, FURTHER ASSURANCE AND CORPORATE ACTIONS
13.1 The provisions of the UK Facility Agreement and the Existing Waiver
Agreements shall, save as amended or waived in this Agreement, continue
in full force and effect.
13.2 Each of the Borrower and the Guarantor shall, at the request of the
Agent and at its own expense, do all such acts and things necessary or
desirable to give effect to the amendments effected or to be effected
pursuant to this Agreement.
13.3 Each of the Guarantor and the Borrower confirm, by execution of this
Agreement, that all corporate or other action or steps required to
authorise its entry into, performance and delivery of this Agreement
and the transactions contemplated hereby have been duly taken.
14. FEES, COSTS AND EXPENSES
14.1 The Guarantor shall promptly on demand pay the Agent and each of the
Lenders, the amount of all costs and expenses (including legal fees)
reasonably incurred by any of them in connection with the negotiation,
preparation, printing and execution of this Agreement and any other
agreements entered into in connection with any of the matters referred
to herein.
14.2 The Guarantor shall, within three Business Days of demand, pay to each
Beneficiary the amount of all costs and expenses (including legal fees)
incurred by that Beneficiary in connection with the enforcement of, or
the preservation of any rights under this Agreement.
14.3 The Guarantor shall, within three Business Days of demand, indemnify
each Beneficiary against any cost, loss or liability that Beneficiary
incurs in relation to all stamp duty, registration and other similar
taxes payable in respect of this Agreement and any other agreements
entered into in connection with any of the matters referred to herein.
14.4 The Guarantor shall pay all fees of Luskin, Xxxxx & Xxxxxx LLP and
Xxxxxxxx Chance, counsel for the Agent, by no later than 5 Business
Days after the Effective Date.
14.5 Without limiting the generality of Clause 25.3 of the UK Facility
Agreement the Guarantor agrees that it will pay promptly, and in any
event within ten (10) days after receipt of an invoice, all statements
for fees and expenses (which may include amounts on account) of any
financial, accounting or valuation advisers or special counsel retained
by the Agent or any steering committee for the Lenders, as well as all
out-of-pocket expenses incurred by the Agent or any member of any such
steering committee in connection with it acting as such.
15. EFFECTIVENESS
This Agreement shall become effective as of the date hereof on the date
(the "EFFECTIVE DATE") when Deutsche Bank AG, in its capacity as Agent
under the UK Facility Agreement, shall have received:
(i) from each of the parties hereto a counterpart hereof
signed by such party or a facsimile or other written
confirmation (in form satisfactory to the Agent) that
such a party has signed a counterpart hereof;
(ii) confirmation that the Guarantor has paid all fees of
the Agent; and
(iii) evidence satisfactory to it that the lenders under
the US Facility Agreement shall have waived any
defaults thereunder until a date no earlier than
October 12, 2001, pursuant to a waiver containing
terms that, taken as a whole, are neither more
favourable to those lenders nor more restrictive or
burdensome to the Guarantor or the Borrower than
amendments or waivers previously or concurrently made
to the UK Facility Agreement.
16. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
English law.
This Agreement has been entered into on the date stated at the
beginning of this Agreement.
CO-ARRANGERS AND DOCUMENTATION AGENT
DEUTSCHE BANC XXXX XXXXX INC.
as Co-Arranger
By: /s/ XXXXX XXXXXX
----------------
Title: Vice President
By: /s/ XXXX XXXXX
------------------
Title: Managing Director
ABN AMRO BANK N.V.
as Co-Arranger and Documentation Agent
By: /s/ XXXXXX X. XXXXXXXX
----------------------
Title: Group Senior Vice President
By: /s/ XXXXXXX X. XXXXXXX, XX.
---------------------------
Title: Group Vice President
LENDERS
ABN AMRO BANK N.V.
By: /s/ XXXXXX X. XXXXXXXX
----------------------
Title: Group Senior Vice President
By: /s/ XXXXXXX X. XXXXXXX, XX.
---------------------------
Title: Group Vice President
DEUTSCHE BANK A.G., LONDON BRANCH
By: /s/ XXXXX XXXXXX
----------------
Title: Vice President
By: /s/ XXXX XXXXX
------------------
Title: Managing Director
THE AGENT
DEUTSCHE BANK A.G., AMSTERDAM BRANCH
By: /s/ XXXXX XXXXXX
----------------
Title: Vice President
By: /s/ XXXX XXXXX
------------------
Title: Managing Director
POLAROID CORPORATION
By: /s/ X.X. XXXXXXXX
-----------------
Title: Executive Vice President,
Chief Financial Officer
Date: July 12, 2001
POLAROID (U.K.) LIMITED
By: /s/ XXXXXXXX X. XXXX III
------------------------
Title: Director
Date: July 12, 2001
