EXHIBIT 10.1
SUPPLEMENT TO
AMENDED AND RESTATED
AMENDMENT NO. 4 TO AND WAIVER NO. 1 UNDER
AMENDED AND RESTATED CREDIT AGREEMENT
SUPPLEMENT dated as of April 20, 2001 (this "SUPPLEMENT") to Amended
and Restated Amendment No. 4 to and Waiver No. 1 dated as of March 21, 2001 (the
"WAIVER") under the Amended and Restated Credit Agreement dated as of December
11, 1998 (as heretofore amended or modified, the "CREDIT AGREEMENT") among
POLAROID CORPORATION (the "COMPANY"), the LENDERS party thereto (the "LENDERS"),
FLEET NATIONAL BANK (formerly known as BANKBOSTON, N.A.), as Co-Agent, and
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as Administrative Agent (in such
capacity, the "ADMINISTRATIVE AGENT") and Collateral Agent.
W I T N E S S E T H :
WHEREAS, the Company and the Lenders entered into the Waiver pursuant
to which the Lenders granted certain interim waivers to the Company on terms and
conditions set forth therein, including the Company's agreement to give a
mortgage on the Reservoir Site Property in favor of the Collateral Agent for the
benefit of the Lenders;
WHEREAS, the Company now desires to sell the Reservoir Site Property
and has requested the Lenders to consent to the release of the lien and security
interest of the Mortgage (as defined below);
WHEREAS, the Lenders party hereto are willing to consent to the release
of the Reservoir Site Property from the lien and security interest of the
Mortgage on the terms set forth herein;
WHEREAS, except as otherwise expressly modified hereby, the terms of
the Waiver (including the requirements of Section 4(c) thereof relating to the
Borrowing Condition and of Section 4(d) thereof relating to the Excess Cash
Amount) are and will remain in full force and effect;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. DEFINED TERMS; REFERENCES. (a) Unless otherwise specifically
defined herein, each term used herein which is defined in the Credit Agreement
and is not defined in the Waiver shall have the meaning assigned to such term in
the Credit Agreement. Unless otherwise specifically defined herein, each term
used herein which is defined in the Waiver shall have the meaning assigned to
such term in the Waiver. 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 Credit Agreement shall, after
this Supplement becomes effective, refer to the Credit Agreement as modified
hereby for the period the Waiver remains in effect. Each reference to "hereof",
"hereunder", "herein" and "hereby" and each other similar reference to "this
Waiver" and each other similar reference in the Waiver shall, after this
Supplement becomes effective, refer to the Waiver as modified hereby for the
period the Waiver remains in effect.
(b) As used herein, the following additional terms have the following
meanings:
"BUYER" means Xxxxx Investment Ventures, Inc., or its designee pursuant
to the Purchase and Sale Agreement, in its capacity as the buyer of the
Reservoir Site Property pursuant to the Purchase and Sale Agreement and as
lessor under the Reservoir Site Lease.
"CLOSING NET CASH PROCEEDS" means, in respect to the closing of the
Sale, the gross cash purchase price payable by the Buyer, less: (a) all expenses
reasonably incurred by the Company in connection with the Purchase and Sale
Agreement, but in an amount not exceeding $1,000,000; (b) up to $7,000,000 to be
applied by the Company to provide collateral to the issuer of the letter of
credit contemplated by the Purchase and Sale Agreement to constitute a portion
of the Company's security deposit under the Reservoir Site Lease; and (c) up to
$7,000,000 to be retained by the Buyer, as lessor, to constitute a portion of
the Company's security deposit under the Reservoir Site Lease; PROVIDED that the
amount in clause (b) or (c) may be increased by an offsetting reduction in the
amount the Company is required to apply pursuant to the other of such clauses,
so long as the aggregate amount deducted and applied pursuant to clauses (b) and
(c) does not exceed $14,000,000.
"MORTGAGE" means the Mortgage, Assignment of Leases and Rents, Security
Agreement and Fixture Filing dated as of March 28, 2001 relating to Reservoir
Site Property among the Company, as mortgagor and the Collateral Agent, as
mortgagee.
"NEW WAIVER EFFECTIVE DATE" means the date (if any) on which a next
succeeding waiver and amendment under the Credit Agreement becomes effective,
PROVIDED that the Company agrees to make best efforts to have this date occur no
later than two Domestic Business Days in advance of the Waiver Expiry Time and
PROVIDED FURTHER that the Company acknowledges and agrees that the purpose of
this definition is solely to memorialize the Company's agreement with the
Lenders to give additional real estate collateral, as contemplated by Section 6
of this Supplement, concurrently with and subject to the occurrence of the first
to occur of the Sale and the New Waiver Effective Date and, as set forth in
Section
3(c) of the Waiver, the Lenders are under no obligation to extend, and in their
sole and absolute discretion may refuse to extend, the Waiver beyond the Waiver
Expiry Time.
"OWNED PROPERTIES" means those properties identified as "Owned
Properties" on the schedule attached to the Company's April 18, 2001 letter to
the Administrative Agent, being those of the owned properties that are not
Principal Properties (as defined in the Indenture) that are to be subjected to a
mortgage in favor of the Collateral Agent pursuant to Section 6(a).
"PURCHASE OFFER" means the Purchase Offer dated April 10, 2001 from the
Buyer, accepted by the Company, in the form attached to the Company's April 18,
2001 letter to the Administrative Agent.
"PURCHASE AND SALE AGREEMENT" means a purchase and sale agreement
entered into by the Company and the Buyer providing for the sale of the
Reservoir Site Property by the Company to the Buyer on substantially the terms
and conditions set forth in the Purchase Offer.
"RESERVOIR SITE LEASE" means a lease entered into by the Company, as
lessee, and the Buyer, as lessor, providing for the Company to lease portions of
the premises at the Reservoir Site Property on substantially the terms and
conditions set forth in the Purchase Offer.
"SALE" means the sale of the Reservoir Site Property pursuant to the
Purchase and Sale Agreement.
"WAIVER AVAILABILITY LIMIT" means: (a) initially, $350,000,000; (b) on
and after the closing of the Sale, $313,000,000; and (c) on and after September
1, 2001, $294,000,000; PROVIDED that (i) on each date on which the Company makes
a payment of rent pursuant to the Reservoir Site Lease, each of the amounts
specified in clause (b) and clause (c) shall automatically be increased by the
amount of such payment (rounded downwards to the nearest multiple of $100,000)
PROVIDED that the aggregate amount of increase pursuant to this clause (i) shall
not exceed $7,000,000 and (ii) on each date on which the Company receives either
a payment of any contingent purchase price payment from the Buyer as
contemplated by the Purchase and Sale Agreement or a return of any portion of
its security deposit under the Reservoir Site Lease (including by way of refund
of any funds securing a letter of credit issued for its account for such purpose
or payment of a deferred portion of the purchase price held in lieu of a cash
security deposit), each of the foregoing amounts shall automatically be
decreased by the amount of such payment or return (rounded upwards to the
nearest multiple of $100,000) and PROVIDED FURTHER that the Company acknowledges
and agrees that references in this definition to periods after the Waiver Expiry
Time are solely for purposes of memorializing the Company's
agreement with the Lenders on the subject of availability and pay-down of Loans
under the Credit Agreement in such periods, and, as set forth in Section 3(c) of
the Waiver, the Lenders are under no obligation to extend, and in their sole and
absolute discretion may refuse to extend, the Waiver beyond the Waiver Expiry
Time.
SECTION 2. CONSENT TO RELEASE OF MORTGAGE. The Lenders party hereto
hereby consent to the release of the Reservoir Site Property from the lien and
security interest of the Mortgage concurrently with the closing of the Sale, and
authorize and direct the Collateral Agent to execute an instrument of release
and such other documents (including forms UCC-3) as are deemed necessary or
appropriate by it to evidence such release.
SECTION 3. WAIVER AVAILABILITY LIMIT; MANDATORY PREPAYMENTS. (a) The
Company agrees that Section 4 of the Waiver is supplemented to provide that
during the Waiver Period, no Borrowing shall be made that would cause the
principal amount of outstanding Loans (after giving effect to such Borrowing) to
exceed the Waiver Availability Limit applicable on the date of such Borrowing.
(b) If on any Domestic Business Day the outstanding principal amount
of Loans exceeds the Waiver Availability Limit applicable on such day, the
Company shall on such Domestic Business Day prepay such a principal amount of
the Loans as will cause the outstanding principal amount of Loans (after giving
effect to such prepayment) to be equal to or less than the Waiver Availability
Limit applicable on such day. Any such prepayment may be in any amount that is a
multiple of $100,000, notwithstanding the minimum prepayment amount specified in
Section 2.08(a) of the Credit Agreement. The Company shall deliver to the
Administrative Agent not later than Noon (New York City time) on each date a
repayment is required to be made pursuant to this Section 3(b), specifying the
amount of Loans being repaid, and any repayment of Euro-Dollar Loans shall be
subject to Section 2.10 of the Credit Agreement.
(c) Notwithstanding the provisions of Section 2.04 and Section 2.05 of
the Credit Agreement, beginning with April 30, 2001, the Company will pay (i)
interest on Base Rate Loans and commitment fees on the last day of each month
rather than quarterly and (ii) interest on Euro-Dollar Loans at intervals of one
month rather than three months (and in any such case on each other date
specified in the applicable section).
SECTION 4. APPLICATION OF CLOSING NET CASH PROCEEDS. (a) On the date of
the closing of the Sale, the Company will direct the Buyer to pay directly to
the Administrative Agent, by wire transfer of immediately available funds, such
a portion of the Closing Net Cash Proceeds as will be sufficient to make any
prepayment of Loans that is required on such date pursuant to either Section
3(b) of this Supplement, on account of the Waiver Availability Limit being
decreased
to $313,000,000 on such date, or Section 4(d) of the Waiver, on account of there
being an Excess Cash Amount (calculated on a pro forma basis giving effect to
the other payments (including any prepayment pursuant to Section 3(b) of this
Supplement) and other transactions occurring in connection with such closing).
The Company may retain any balance of the Closing Net Cash Proceeds.
(b) The dates and amounts of any prepayment of Loans required by
Sections 3(b) and 4(a) of this Supplement are not intended to be dates "fixed"
for any such payment for purposes of Section 9.05(a)(i) of the Credit Agreement,
and accordingly may be amended or waived with the consent of the Required
Lenders.
SECTION 5. DOCUMENTS FOR EXPEDITIOUS GRANT OF ADDITIONAL COLLATERAL.
On or before April 30, 2001, the Company shall furnish to the Collateral Agent
the following documents with respect to each Owned Property:
(a) a current title commitment (but not title insurance); and
(b) such other documents and information requested by the Collateral
Agent in its reasonable discretion as would be necessary or useful in connection
with the taking of a lien and security interest on such Owned Property pursuant
to Section 6(a) of this Supplement.
The Company will also proceed as promptly and diligently as possible,
and use its reasonable best efforts, to obtain and deliver to the Collateral
Agent with respect to each Owned Property:
(x) a survey; and
(y) a written appraisal of the fair market value of such Owned Property
by an independent appraiser of recognized standing acceptable to the
Administrative Agent.
SECTION 6. ADDITIONAL REAL ESTATE COLLATERAL. (a) On the earlier to
occur of (i) the Sale and (ii) the New Waiver Effective Date, the Company shall
further secure (or if applicable cause the relevant Subsidiary Guarantor to
further secure) its Secured Obligations by a lien on and security interest in
each Owned Property and deliver to the Collateral Agent all such mortgages,
deeds of trust, leasehold mortgages and other documents, together with the
appropriate UCC forms for any related fixture filings, as shall be required (or
reasonably requested by the Collateral Agent) to grant, record, perfect and
protect such Liens, all in form and substance reasonably satisfactory to the
Collateral Agent.
(b) The Company will proceed as promptly and diligently as
practicable, and use its reasonable best efforts, to effect a subdivision of its
property owned in New Bedford, Massachusetts so as to permit the portion thereof
identified as
"NB-6 (11X)," which has been designated by the Board of Directors as
constituting a portion of such property that is not a Principal Property (as
defined in the Indenture), to be mortgaged to the Collateral Agent. Promptly
upon the effectiveness of such subdivision, the Company will deliver to the
Collateral Agent the same documents and information relating to such portion as
are required for Owned Properties pursuant to Section 5 of this Supplement and
will further secure its Secured Obligations by a lien on and security interest
in such portion as if Section 6(a) of this Supplement were applicable thereto.
SECTION 7. LAPSE OF WAIVER. The Company agrees that Section 8 of the
Waiver is modified to include a reference in clause (i) of Section 8 to the
failure to make any prepayment required by Section 3(b) or 4(a) of this
Supplement, as well as to the failure to make any payment of any interest or
commitment fees required by Section 3(c) of this Supplement that continues for
more than three Domestic Business Days after the due date thereof.
SECTION 8. FINANCING DOCUMENT. The Company agrees that this Supplement
shall be considered a "Financing Document" for all purposes of the Credit
Agreement, including without limitation clause (e) of Section 6.01.
SECTION 9. RELEASE OF BANK LIABILITY. The Company, for itself and on
behalf of its affiliated entities, successors, assigns and legal representatives
(the "COMPANY PARTIES"), jointly and severally releases, acquits and forever
discharges the Administrative Agent, the Collateral Agent, the Co-Agent and each
Lender (collectively, the "BANK PARTIES"), and their respective subsidiaries,
parents, affiliates, officers, directors, employees, agents, attorneys,
successors and assigns, both present and former (collectively, the "BANKS'
AFFILIATES") from any and all manner of actions, causes of action, suits, debts,
controversies, damages, judgments, executions, claims and demands whatsoever,
asserted or unasserted, in contract, tort, law or equity which the Company or
any other Company Party has or may have against any of the Bank Parties and/or
the Banks' 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 Loans,
including without limitation, any such claims and defenses based on fraud,
mistake, duress, usury or misrepresentation, or any other claim based on
so-called "lender liability theories", (ii) any covenants, agreements, duties or
obligations set forth in the Financing Documents, (iii) any actions or omissions
of any of the Bank Parties and/or the Banks' Affiliates in connections with the
initiation or continuing exercise of any right or remedy contained in the
Financing 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.
SECTION 10. REPRESENTATIONS OF THE COMPANY. The Company represents and
warrants that (i) the representations and warranties of the Company set forth in
Article 4 of the Credit Agreement will be true on and as of the Supplement
Effective Date (as defined in Section 14) and (ii) no Default will have occurred
and be continuing on such date, except in any case as expressly contemplated to
be waived by this Supplement and the Waiver. Without limiting the generality of
the foregoing, the Company further represents and warrants that all information
(other than projections) heretofore furnished by the Company to the
Administrative Agent or any Lender for purposes of or in connection with this
Supplement does not, and all such information hereafter furnished by the Company
to the Administrative 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 were or
will be made, not misleading, and all projections included in any such
information will be based upon good faith estimates and assumptions believed by
the Company's senior management to be reasonable at the time delivered, and at
the time delivered represent senior management's reasonable best estimate of the
future performance of the operations of the Company and its Subsidiaries.
SECTION 11. CONSENT BY GUARANTORS. By its signature below, each
Guarantor (as defined in the Subsidiary Guaranty Agreement) hereby consents to
this Supplement, and acknowledges that this Supplement shall not alter, release,
discharge or otherwise affect any of its obligations under the Credit Agreement
or any Financing Document, and hereby ratifies and confirms all of the Financing
Documents to which it is a party.
SECTION 12. GOVERNING LAW. This Supplement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 13. COUNTERPARTS. This Supplement 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.
SECTION 14. EFFECTIVENESS. This Supplement shall become effective as of
the date hereof on the date (the "SUPPLEMENT EFFECTIVE DATE") when the
Administrative Agent shall have received (i) from each of the Company, each
Guarantor and the Super-Majority Lenders a counterpart hereof signed by such
party or facsimile or other written confirmation (in form satisfactory to the
Administrative Agent) that such party has signed a counterpart hereof and (ii)
confirmation that the Company has paid all statements of Xxxxx Xxxx & Xxxxxxxx,
special counsel for the Administrative Agent, and Xxxxxxxx and Xxxxx, financial
advisors, that have been rendered to the Company at least one Domestic Business
Day prior to the Supplement Effective Date in respect of this Supplement or
other Credit Agreement matters.
IN WITNESS WHEREOF, the parties hereto have caused this Supplement to
be duly executed as of the date first above written.
POLAROID CORPORATION
By: /S/ XXXX. X. XXXXXXX
----------------------------------
Name:
Title:
INNER CITY, INC.
By: /S/ XXXX X. XXXXXXX
----------------------------------
Name:
Title:
POLAROID ASIA PACIFIC LIMITED
By: /S/ XXXX X. XXXXXXX
----------------------------------
Name:
Title:
POLAROID LATIN AMERICA
CORPORATION
By: /S/ XXXX X. XXXXXXX
----------------------------------
Name:
Title:
POLAROID DIGITAL SOLUTIONS, INC.
By: /S/ XXXX X. XXXXXXX
----------------------------------
Name:
Title:
POLAROID EYEWEAR, INC.
By: /S/ XXXX X. XXXXXXX
----------------------------------
Name:
Title:
POLAROID ID SYSTEMS, INC.
By: /S/ XXXX X. XXXXXXX
----------------------------------
Name:
Title:
POLAROID MALAYSIA LIMITED
By: /S/ XXXX X. XXXXXXX
----------------------------------
Name:
Title:
PRD CAPITAL INC.
By: /S/ XXXX X. XXXXXXX
----------------------------------
Name:
Title:
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK
By: /S/ XXXXXXXX X. XXXXXX
----------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
ABN AMRO BANK N.V.
By: /S/ XXXXXX X. XXXXXXXX
----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Group Senior Vice President
By: /S/ XXXXXXX X. XXXXXXX, XX.
----------------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Group Vice President
TRANSAMERICA BUSINESS CREDIT CORPORATION
By: /S/ XXXXX XXXXXXXX
----------------------------------
Name: Xxxxx Xxxxxxxx
Title: Executive Vice President
FOOTHILL CAPITAL (L.A.)
By: /S/ XXXX XXXXXX
----------------------------------
Name: Xxxx Xxxxxx
Title:
DEUTSCHE BANK AG, NEW YORK
AND/OR CAYMAN ISLANDS BRANCHES
By: /S/ XXXXX XXXXXX
----------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
By: /S/ XXXXX XXXXXX
----------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
BANK ONE, NA
By: /S/ XXXXXXX X. XXXXXX
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
SENIOR DEBT PORTFOLIO
By: Boston Management and Research,
as investment advisor
By: /S/ XXXXX X. PAGE
----------------------------------
Name: Xxxxx X. Page
Title: Senior Vice President
THE SUMITOMO BANK, LIMITED,
NEW YORK BRANCH
By: /S/ XXX XXXXXXXXX
----------------------------------
Name: Xxx Xxxxxxxxx
Title: Vice President
WACHOVIA BANK, N.A.
By: /S/ XXXX X. XXXXXX
----------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
FLEET NATIONAL BANK
By: /S/ XXXXXX X. XXXXXXX
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
MELLON BANK, N.A.
By: /S/ XXXXXX X. XXXXX
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
TEXTRON FINANCIAL CORPORATION
By: /S/ XXXXXXX X. XXXXXX
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Director
PNC BANK, NATIONAL ASSOCIATION
By: /S/ XXXXXX X. XXXXX
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
FOOTHILL INCOME TRUST, L.P.
By: /S/ XXXX XXXXXX
----------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
ERSTE BANK NEW YORK
By: /S/ XXXXXXX XXXXXXXXXXX
----------------------------------
Name: Arcinee Hovanessiam
Title: Director - Erste Bank New
York Branch
By: /S/ XXXX X. XXXXXXX
----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Managing Director - Erste
Bank New York Branch
