Exhibit 4.5
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR ANY STATE SECURITIES LAWS AND MAY NOT BE TRANSFERRED, SOLD, PLEDGED OR
OTHERWISE DISPOSED OF EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
OR PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION UNDER SUCH ACT AND
APPLICABLE STATE SECURITIES LAWS AND (B) IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE UNITED STATES AND OTHER JURISDICTIONS. THE HOLDER OF THIS
NOTE IS SUBJECT TO THE TERMS OF THE PURCHASE AGREEMENT, DATED AS OF JUNE 27,
2002 (AS AMENDED, SUPPLEMENTED OR MODIFIED FROM TIME TO TIME), AMONG PCA LLC,
THE GUARANTORS LISTED ON THE SIGNATURE PAGES THEREOF, GS MEZZANINE PARTNERS II,
L.P., AND GS MEZZANINE PARTNERS II OFFSHORE, L.P.
The following information is provided pursuant to Treas. Reg. Section 1.1275-3:
This debt instrument is issued at original issue discount.
The Company's Chief Financial Officer (815 Xxxxxxxx - Mint Hill Road, Matthews,
NC 28105), as a representative of the Company, will, beginning no later than 10
days after the Issue Date, promptly make available on request to holder(s) of
this debt instrument the following information: issue price, amount of original
issue discount, issue date, and yield to maturity.
No. [___________] $__________
13-3/4% Senior Subordinated Note due 2010
PCA LLC, a Delaware limited liability company, promises to pay to [ ]
or its registered assigns, the principal sum of $10,000,000 Dollars on June
27, 2010.
Interest Payment Dates: August 1 and February 1.
Record Dates: July 15 and January 15.
Additional provisions of this Note are set forth on the other side of this Note.
IN WITNESS WHEREOF, the parties have caused this instrument to be duly
executed.
PCA LLC
By:_______________________________
Name:
Title:
Dated: June 27, 2002
FORM OF REVERSE SIDE OF NOTE
13-3/4% Senior Subordinated Note due 2010
1. Interest.
The principal amount of this Note from time to time outstanding shall
bear interest, payable semi-annually in arrears in cash on August 1 and February
1 of each year commencing February 1, 2003, and if different, on the Stated
Maturity Date (each, an "Interest Payment Date"), at the rate of (i) 1.5% per
annum plus (ii) the effective yield at the Closing Date of the Senior Notes
interest rate (the "Senior Notes Rate"), until the principal amount of this Note
has been paid in full. Interest on the principal amount of this Note shall
accrue from the Closing Date, or the most recent date to which interest has been
paid in cash until the principal of this Note is due and payable. All accrued
and unpaid interest payable with respect to this Note shall be paid in cash.
If an Event of Default occurs and is continuing, this Note will accrue
interest at a rate per annum equal to (a) the Senior Notes Rate, plus (b) 200
basis points, until such time as no Event of Default shall be continuing (to the
extent that the payment of such interest shall be legally enforceable).
Interest shall be computed on the basis of a 360-day year of twelve
30-day months. The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in this Note and the
Agreement (as defined below), be paid to the Person in whose name this Note is
registered at the close of business on the "Regular Record Date" for such
interest, which shall be the fifteenth calendar day (whether or not a Business
Day) of the calendar month preceding the calendar month in which the Interest
Payment Date occurs. Notwithstanding the foregoing, if this Note is issued after
a Regular Record Date and prior to an Interest Payment Date, the record date for
such Interest Payment Date shall be the original issue date.
2. Method of Payment.
Holders must surrender Notes to collect principal and premium payments.
The Company shall pay the principal amount in money of the United States of
America that at the time of payment is legal tender for payment of public and
private debts. The Company will make all cash payments in respect of a
certificated Note (including principal and interest), by mailing a check to the
registered address of each Holder thereof; provided, however, that payments on
the Notes may also be made, in the case of a Holder of at least $1,000,000
aggregate principal amount of Notes, by wire transfer to a U.S. dollar account
maintained by the payee with a bank in the United States if such Holder elects
payment by wire transfer by giving written notice to such effect designating
such account no less than 15 days immediately preceding the due date for
payment.
3. Purchase Agreement
The Company issued the Notes, limited in initial aggregate principal
amount to $10,000,000, under a Purchase Agreement, dated as of June 27, 2002
(the "Agreement"), among
the Company, the Guarantors and the Purchasers. The terms of the Notes include
those stated in the Agreement. Terms defined in the Agreement and used but not
defined herein have the meanings ascribed thereto in the Agreement. The Notes
are subject to all terms and provisions of the Agreement, and Holders are
referred to the Agreement for a statement of such terms and provisions.
The Agreement imposes certain limitations on the ability of the Company
and its Subsidiaries to, among other things, make certain Investments and other
Restricted Payments, pay dividends and other distributions, incur Indebtedness,
enter into consensual restrictions upon the payment of certain dividends and
distributions by such Subsidiaries, enter into or permit certain transactions
with Affiliates and make asset sales. The Agreement also imposes limitations on
the ability of the Company to consolidate or merge with or into any other Person
or convey, transfer or lease all or substantially all of the property of the
Company.
To guarantee the due and punctual payment of the principal of and interest on
the Notes and all other amounts payable by the Company under the Agreement and
the Notes when and as the same shall be due and payable, whether at maturity, by
acceleration or otherwise, according to the terms of the Notes and the
Agreement, the Guarantors have jointly and severally unconditionally guaranteed
the Obligations on an unsecured senior subordinated basis pursuant to the terms
of the Agreement.
4. Optional Redemption.
The Notes are subject to redemption, at the election of the Company,
upon not less than ten (10) nor more than sixty (60) days' written notice, in
whole or in part, at any time on or after June 27, 2005, and in the event of (A)
an Initial Public Offering of the Company on or after April 1, 2004, or (B) the
occurrence of a Change of Control on or after April 1, 2004, in each case for
cash equal to the sum of (x) the redemption price (the "Redemption Price")
listed in the table below applicable to the date (the "Redemption Date") as of
which such redemption is being effected, multiplied by the principal amount of
the Notes being redeemed as of the Interest Payment Date immediately preceding
the Redemption Date, plus (y) all accrued and unpaid interest since the
preceding Interest Payment Date, with respect only to Notes being repaid:
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Redemption Date Redemption Price
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April 2, 2004 - June 26, 2005 106%
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June 27, 2005 - June 26, 2006 105%
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June 27, 2006 - June 26, 2007 104%
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June 27, 2007 - June 26, 2008 103%
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June 27, 2008 - June 26, 2009 102%
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June 27, 2009 - June 26, 2010 101%
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At June 27, 2010 100%
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Notwithstanding the foregoing, at any time prior to April 1, 2004, up
to 35% of the original principal amount of the Notes as of the Closing Date may
be redeemed from the gross proceeds of an Initial Public Offering or any
subsequent public offering and issuance of common equity of Holdco at a
Redemption Price equal to 106% of the principal amount of the Notes being
redeemed as of the Interest Payment Date immediately preceding the Redemption
Date, together with all accrued and unpaid interest since the last Interest
Payment Date, with respect only to Notes being repaid, provided that at least
65% of the principal amount of the Notes remains outstanding.
In addition, at any time on or prior to June 27, 2005, all or any part of
original principal amount of the Notes may be redeemed at a cash price equal to
the sum of (x) 100% of the portion of the original principal amount of the Notes
being redeemed, plus (y) all accrued and unpaid interest thereon, plus (z) a
premium (the "Make-Whole Premium") equal to (i) an amount equal to the present
value of the remaining payments of interest on and redemption price of the Notes
being redeemed, assuming that on the third anniversary the entire principal
amount of such Notes then outstanding will be redeemed at 106% of the principal
amount thereof, together with accrued interest, and using an annual discount
factor (applied semi-annually) equal to the Treasury Rate plus 50 basis points,
less (ii) the original principal amount of the Notes being redeemed; provided,
however, that in no case shall the Make-Whole Premium be less than zero.
"Treasury Rate" shall mean a rate equal to the then current yield to maturity on
the most actively traded U.S. Treasury security having a maturity nearest the
third anniversary from the Closing Date. In the event there are not actively
traded U.S. Treasury securities with a maturity equal to the remaining average
life of the Notes, then the yield to maturity shall be determined by linear
interpolation using the closest, but shorter, maturity for actively traded U.S.
Treasury securities and the closest, but longer, maturity for actively traded
U.S. Treasury maturities.
Each of the foregoing prepayment options shall relate to an aggregate principal
amount of Notes of at least $2,000,000. Notwithstanding the foregoing, no
optional redemption of the Notes pursuant to this section 4 shall be made until
all Obligations in respect of the Holdco Notes have been satisfied and paid in
full.
5. Sinking Fund.
The Notes are not subject to any sinking fund.
6. Notice of Redemption.
Notice of redemption will be sent by facsimile or by first-class mail
at least ten (10) days but not more than sixty (60) days before the redemption
date to each Holder of Notes to be redeemed at such Holder's registered address.
Notes in denominations larger than $1,000 (in principal amount) may be redeemed
in part but only in multiples of $1,000 (in principal amount).
7. Offer to Repurchase Notes upon Change of Control and Asset Disposition.
(a) Upon the occurrence of a Change of Control, the Company shall offer to
repurchase all of the Notes at a purchase price in cash equal to 101% of the
principal amount of the Notes to be repurchased, plus accrued and unpaid
interest thereon to the date of repurchase (subject to the right of Holders of
record on the relevant record date to receive interest due on the relevant
Interest Payment Date) as provided in, and subject to the terms of, the
Agreement.
(b) When the aggregate amount of the Net Cash Proceeds from an Asset Sale
that the Company does not apply, or decide not to apply, in accordance with
Section 8.4(b) of the Agreement (the "Net Proceeds Offer Amount") exceeds
$5,000,000, the Company shall make a Net Proceeds Offer to purchase the maximum
principal amount of Notes that may be purchased with the Net Proceeds Offer
Amount, at an offer price in an amount equal to 100% of the principal amount of
the Notes to be purchased, plus accrued and unpaid interest thereon, if any, to
the date of purchase.
8. Denominations.
The Notes are in registered form without coupons in denominations of
$1,000 (in principal amount) and multiples thereof.
9. Subordination
The Notes are subordinated to Senior Indebtedness, as defined in the
Agreement. To the extent provided in the Agreement, Senior Indebtedness must be
paid before the Notes may be paid. The Company agrees, and each Holder by
accepting a Note agrees, to the subordination provisions contained in the
Agreement.
10. Persons Deemed Owners.
The registered Holder of this Note may be treated as the owner of it for
all purposes.
11. Amendment, Waiver.
The Agreement or the Notes may be amended and any default may be waived
without prior notice to any Holder but with the written consent of the Required
Holders; provided, however, that no such amendment or waiver may, without the
prior written consent of the Holder of each Note then outstanding and affected
thereby, (a) reduce the principal of (or premium, if any) or rate of interest
on, any Note, (b) postpone the date fixed for any payment of principal of (or
premium, if any) or interest on any Note (other than a waiver of any increase in
the interest rate on the Notes upon the occurrence of an Event of Default
pursuant to Section 12.2 of the Agreement), (c) change the ranking or priority
of the Notes or the percentage of the aggregate principal amount of the Notes
the Holders of which shall be required to consent or take any other action under
Section 16.4 or any other provision of the Agreement, (d) modify or change any
provision of the Agreement (or the related definitions) affecting the
subordination or ranking of the Notes or any Guarantee in a manner which
adversely affects the Holders or (e) release any Guarantor from any of its
obligations under its Guarantee or the Agreement, otherwise than in accordance
with the terms of the Agreement; provided, further, that no such amendment or
waiver may, without the prior written consent of GS Mezzanine (so long as GS
Mezzanine owns any Securities), amend or waive the provisions of Sections 7.7 or
7.9 of the Agreement. No amendment or waiver of the Agreement will extend to or
affect any obligation, covenant, agreement, Default or Event of Default not
expressly amended or waived or thereby impair any right consequent thereon.
12. Defaults, Remedies and Acceleration.
If an Event of Default (other than an Event of Default relating to certain
events of bankruptcy, insolvency or reorganization of the Company) occurs and is
continuing, the Holders of a majority in aggregate principal amount of the
outstanding Notes may declare the principal amount of and accrued but unpaid
interest on all the Notes to be due and payable, subject to the terms and
conditions of the Purchase Agreement.
13. No Recourse Against Others.
Other than the Company or the Guarantors, no past, present or future
director, officer, employee or stockholder or Affiliate of such parties, as
such, of the Company or any of its Subsidiaries shall not have any liability for
any obligations of the Company or any of its Subsidiaries under the Notes, the
Agreement or any related document or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Note, each Holder
waives and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes.
14. Abbreviations.
Customary abbreviations may be used in the name of a Holder or an
assignee, such as TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with rights of survivorship and not as
tenants in common), CUST (= custodian), and U/G/M/A (= Uniform Gift to Minors
Act).
15. Governing Law.
THIS NOTE WILL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY
CONFLICTS OF LAW RULE OR PRINCIPLE THAT MIGHT REQUIRE THE APPLICATION OF THE
LAWS OF ANOTHER JURISDICTION.
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address, and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint [___________] agent to transfer this Note on the books
of the Company. The agent may substitute another to act for him.
_____________________________________________________________
Date: ____________________ Your Signature: ________________
_____________________________________________________________
Sign exactly as your name appears on the other side of this Note.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to have this Note purchased by the Company pursuant to Section
7.8 (Change of Control) of the Agreement, check the box:
[_]
If you want to have only part of this Note (equal to $1,000 or an
integral multiple thereof) purchased by the Company pursuant to Section 7.8
(Change of Control) of the Agreement, state the principal amount of such part:
$
Date: ______________ Your Signature: _________________________________________
(Sign exactly as your name appears on the
other side of the Note)
Signature Guarantee: _____________________________________________
Signature must be guaranteed by a participant
in a recognized signature guaranty medallion
program or other signature guarantor
acceptable to the Company.
