EXHIBIT 10.9
Dated MARCH 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, INTERPRETATION AND RESTATEMENT.................................................4
2. WAIVERS.....................................................................................4
3. AMENDMENTS TO THE UK FACILITY AGREEMENT.....................................................5
4. ADDITIONAL INFORMATION......................................................................6
5. LAPSE OF WAIVER.............................................................................6
6. FINANCE DOCUMENT............................................................................6
7. INTEREST AND FEES...........................................................................7
8. RELEASE OF LENDERS..........................................................................7
9. REPRESENTATIONS.............................................................................7
10. CONSENT BY GUARANTOR........................................................................8
11. JURISDICTION AND PROCESS AGENT..............................................................8
12. COUNTERPARTS................................................................................8
13. WAIVER FEE..................................................................................8
14. CONTINUITY AND FURTHER ASSISTANCE...........................................................8
15. FEES, COSTS AND EXPENSES....................................................................8
16. GOVERNING LAW...............................................................................9
THIS AGREEMENT is dated March 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 11 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. Certain provisions in the UK Facility
Agreement have been drafted by reference to, or include an obligation to
comply with, certain terms of the US Facility Agreement, including the
financial covenants set out in section 5 of the US Facility Agreement.
Accordingly a default in relation to those provisions under the US
Facility Agreement will give rise to a default under the UK Agreement.
(C) The Guarantor has advised the Lenders that it believes that (i) as at
the end of the first Fiscal Quarter of Fiscal Year 2001 and at
subsequent times thereafter the ratio of its Consolidated EBITDA to
Consolidated Interest Expense will not meet the requirements of Section
5.07 of the US Facility Agreement and (ii) during the first and second
Fiscal Quarters of Fiscal Year 2001 its Debt/EBITDA Ratio may not have
met and in the future will not meet the requirements of Section 5.08(a)
of the US Facility Agreement.
(D) With effect from 16 February 2001, the Lenders under the US Facility
Agreement granted to the Guarantor an interim waiver of the requirements
of Sections 5.07 and 5.08(a) of the US Facility Agreement.
(E) The Beneficiaries agreed to grant the Borrower and Guarantor a waiver in
relation to the UK Facility Agreement and to waive any rights arising
under any other Finance Document as a consequence of any default
referred to in Clause 2.1 below.
IT IS AGREEED as follows: -
1. DEFINITIONS, INTERPRETATION AND RESTATEMENT
1.1 Unless otherwise specifically defined herein, each term used herein
which is defined in the UK Facility Agreement shall have the meaning
assigned to such term in the UK Facility Agreement save that all terms
referred to in recital (C) above shall, unless otherwise defined
herein, bear the meanings ascribed to them in the US Facility
Agreement. 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 shall, after this Agreement becomes effective, refer
to the UK Facility Agreement as modified hereby for the period any
waiver granted under this Agreement remains in effect.
1.2 This Agreement shall be effective from the date on which the Agent
shall have received from each of the parties hereto a counterpart
hereof signed by such party or a facsimile evidencing that such party
has signed a counterpart hereof and shall supersede any other agreement
entered into in relation to a waiver of the matters referred to herein.
2. WAIVERS
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 the Guarantor's failure to be in compliance with
Section 5.07 or Section 5.08(a) of the US Facility Agreement as at any
time during the first and second Fiscal Quarters of Fiscal Year 2001
(as defined in the US Facility Agreement).
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 May 15, 2001,
(ii) the date on which any waiver granted in relation to the US
Facility Agreement pursuant to the waiver letter referred to in recital
(D) above, as extended (if extended), expires and (iii) such earlier
time as is determined pursuant to Clause 5 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 (a) the Guarantor fails to be in compliance with
Section 5.07 or 5.08(a) of the US Facility Agreement
immediately following the Waiver Expiry Time 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 TO THE UK FACILITY AGREEMENT
3.1 The parties hereto agree that with effect from 16 February 2001 the UK
Facility Agreement shall be amended as follows:
(a) Clause 2.2 of the UK Facility Agreement shall be amended to
read as follows:
"The Borrower agrees to use the proceeds of the Facility for
general corporate purposes including refinancing existing
facilities Provided that the Borrower agrees that none of the
proceeds of the Facility shall be used for the purpose of
making any payments of any nature whatsoever under or in
connection with the Guarantor's Revolving Credit Agreement."
(b) Clause 3.4 of the UK Facility Agreement shall be deleted.
(c) Clause 6.8 of the UK Facility Agreement shall be deleted, the
reference to the words " Clause 6.8 applies to sub-paragraphs
(C) and (D)" at the end of Clause 6.4 shall be deleted, the
words "The representation in Clause 17.1 (I) will only be deem
repeated under this sub-clause on the date of a notice of
borrowing and on an Advance Date when Clause 6.8 does not
apply" in Clause 17.2 shall be deleted and all other
references to Clause 6.8 in the UK Facility Agreement shall be
deleted.
(d) Notwithstanding the provisions of Clause 19 of the UK Facility
Agreement (and in particular Clause 19.2 of the UK Facility
Agreement pursuant to which the Guarantor is under an
obligation to comply with Section 5.13 and 5.15 of the US
Facility Agreement), neither the Borrower nor any person which
has provided an Additional Guarantee in respect of the UK
Facility Agreement will:-
(i) make or acquire any Investment (as such term is
defined in the US Facility Agreement) in any other
member of the Guarantor's Group; or
(ii) sell, lease, transfer or otherwise dispose, whether
directly or indirectly, of any of its assets to any
other member of the Guarantor's Group
except where it does so in the ordinary course of business.
(e) Clause 25.3 of the UK Facility Agreement shall be amended to
read as follows:-
"The Borrower agrees to reimburse the Agent and each Lender
for any reasonable expenses they incur, including reasonable
fees and disbursements of counsel to the Agent and/or the
Lenders, in connection with any waiver or consent under a
Finance Document or any amendment to a Finance Document".
(f) Clause 26.3 (D) of the UK Facility Agreement shall no longer
be applicable.
3.2 The Borrower agrees that, notwithstanding any other terms of the UK
Facility Agreement, it shall not at any time deliver any notice
requesting a borrowing under the Facility, and the Lenders shall have
no obligation to fund any borrowings under the Facility, which would
result in the aggregate amount of the Loan immediately following any
such borrowing exceeding Euro 57,000,000.
4. ADDITIONAL INFORMATION
4.1 The Guarantor agrees that promptly, and in any event no later than 30
March 2001, it will prepare and deliver to the Agent a summary setting
out (i) details of all assets of the Guarantor's Group (including, but
without limitation, real estate (including land and plants, warehouses
or other buildings and improvements), equipment, patents, trademarks
and other intellectual property, other general intangibles and cash and
deposits) in respect of which a Lien (as such term is defined in the US
Facility Agreement) has been granted in favour of the Lenders under the
Finance Documents and (ii) details of, and the book value of, all
assets currently forming part of Inventory or Receivables for the
purpose of Clause 6.2 of the UK Facility Agreement.
4.2 Each of the Guarantor and the Borrower agree to fully co-operate into
and assist any consultants or agents appointed by either the Guarantor
or the Borrower to verify the value of any of the assets of the
Guarantor's Group, including providing them such information as they
may request to enable them to make any such valuation.
5. LAPSE OF WAIVER
Each of the Guarantor and the Borrower agree that its failure to comply
with any provision of this Agreement shall cause the waivers granted
hereby to cease to be in effect (i) in the case of a breach of Clause 4
or a breach after 16 February 2001 of any the amendments contemplated
by Clause 3, 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.
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. INTEREST AND FEES
Each of the Guarantor and the Borrower agree that (i) during the period
commencing on 5 March 2001 and ending on the last day of the Waiver
Period and (ii) if immediately after the Waiver Period ends any
Termination Event has occurred and is continuing, during any period
that any such Termination Event continues to exist, the Facility Fee
Rate and the Applicable Margin shall be as set forth in the table
below, regardless of the Guarantor's Long-Term Debt Ratings.
Facility Fee Rate 0.75%
Applicable Margin 2.50%
8. 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.
9. REPRESENTATIONS
9.1 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 were true on and as
of 16 March, 2001 and are true on and as of the date 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
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.
9.2 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.
10. 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.
11. 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.
12. 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.
13. WAIVER FEE
On the date specified by the Agent, the Guarantor shall pay the Agent
in immediately available funds for the account of each Lender a waiver
fee in an amount equal to 0.25% of such Lender's Commitment (as of the
opening of business on 16 March 2001).
14. CONTINUITY AND FURTHER ASSISTANCE
14.1 The provisions of the UK Facility Agreement shall, save as amended or
waived in this Agreement, continue in full force and effect.
14.2 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.
15. FEES, COSTS AND EXPENSES
15.1 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.
15.2 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.
15.3 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.
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
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Title: VICE PRESIDENT
By: /s/ XXXX XXXXX
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Title: MANAGING DIRECTOR
ABN AMRO BANK N.V.
as Co-Arranger and Documentation Agent
By: /s/ XXXXXXX X. XXXXXXXXXX
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Title:
By: /s/ XXXXXXX X. XXXXXXX, XX.
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Title: GROUP VICE PRESIDENT
LENDERS
ABN AMRO BANK N.V.
By: /s/ XXXXXXX X. XXXXXXXXXX
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Title:
By: /s/ XXXXXXX X. XXXXXXX, XX.
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Title: GROUP VICE PRESIDENT
DEUTSCHE BANK A.G., LONDON BRANCH
By: /s/ XXXXX XXXXXX
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Title: VICE PRESIDENT
By: /s/ XXXX XXXXX
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Title: MANAGING DIRECTOR
THE AGENT
DEUTSCHE BANK A.G., AMSTERDAM BRANCH
By: /s/ XXXXX XXXXXX
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Title: VICE PRESIDENT
By: /s/ XXXX XXXXX
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Title: MANAGING DIRECTOR
POLAROID CORPORATION
By: /s/ XXXX X. XXXXXXX
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Title: ACTING CHIEF FINANCIAL OFFICER
Date:
POLAROID (U.K.) LIMITED
By: /s/ XXXX X. XXXXXXX
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Title: ACTING CHIEF FINANCIAL OFFICER
Date:
