FIRST AMENDMENT TO PURCHASE AGREEMENT
Exhibit 4.11
FIRST
AMENDMENT
This
FIRST AMENDMENT, dated as of July 15, 2005 (the “Amendment”),
is
made and entered into with respect to the Purchase Agreement among PCA LLC
(the
“Company”),
the
guarantors named therein, GS Mezzanine Partners II, L.P. (“GS
Mezzanine”)
and GS
Mezzanine Partners II Offshore, L.P. (“GS
Offshore”
and,
together with GS Mezzanine, the “Purchasers”),
dated
as of June 27, 2002 (as amended through the date hereof, the “Purchase
Agreement”).
Capitalized terms used herein without definition are so used as defined in
the
Purchase Agreement.
RECITALS
WHEREAS,
the Company and the Purchasers have agreed to enter into a waiver (the
“Waiver”)
of
certain provisions of Section 6.1(a) of the Purchase Agreement concurrently
with
this Amendment,
WHEREAS,
the parties hereto desire to amend the Purchase Agreement as set forth
herein,
NOW,
THEREFORE, in consideration of the premises and the mutual covenants and
agreements contained herein, the parties hereto hereby agree as
follows:
Section
1.1 Amendments
to Section 1.
Section
1 of the Purchase Agreement is hereby amended by
inserting the following definition in its proper alphabetical
location:
“2005
Refinancing”
means
the Refinancing of the Credit Agreement by the Company with (i) one or more
debt
facilities with banks or other institutional lenders providing for revolving
loans, term loans, senior secured notes or other extensions of credit in the
original aggregate principal amount of up to $60 million and (ii) a letters
of
credit facility with banks or other institutional lenders providing for the
issuance of letters of credit in the original aggregate principal amount of
up
to $20 million.
Section
1.2 Amendments
to Section 8.
(a) Section
8
of the Purchase Agreement is hereby amended by replacing Section 8.1(b) in
its
entirety as follows:
“(b) The
Company will not, directly or indirectly, in any event incur any Indebtedness
that purports to be by its terms (or by the terms of any agreement governing
such Indebtedness) subordinated to any other Indebtedness of the Company unless
such Indebtedness is also by its terms (or on the terms of any agreement
governing such Indebtedness) subordinated to the Notes to the same extent and
in
the same manner as such Indebtedness is subordinated to such other Indebtedness
of the Company. No Subsidiary Guarantor will, directly or indirectly, in any
event incur any Indebtedness that purports to be by its terms (or by the terms
of any agreement governing such Indebtedness) subordinated to any other
Indebtedness of such Guarantor unless such Indebtedness is also by its terms
(or
on the terms of any agreement governing such Indebtedness) subordinated to
the
Guarantee of such Guarantor to the same extent and in the same manner as such
Indebtedness is subordinated to such other Indebtedness of such
Guarantor.”
(b) Section
8
of the Purchase Agreement is hereby amended by adding a new Section 8.1(e)
to
the Purchase Agreement as follows:
“(e) The
Company will not, directly or indirectly, incur, create, issue, assume,
guarantee, permit to exist or otherwise become liable for any Senior
Indebtedness other than (1) Senior
Indebtedness referenced in clause (i) of the definition thereof
with
respect to the Credit Documents up to a total of $60 million (plus all
Obligations (other than for principal) of the Company and its Restricted
Subsidiaries in respect of such Senior Indebtedness) and
(2) a
total of $165 million in respect of (x) the Senior Notes (or notes issued in
exchange therefore prior to the date hereof) and (y) any Refinancing
Indebtedness Refinancing the Senior Notes (or notes issued in exchange therefore
prior to the date hereof). No Guarantor will, directly or indirectly, incur,
create, issue, assume, guarantee, permit to exist or otherwise become liable
for
any Guarantor Senior Indebtedness other than (1) Guarantor Senior Indebtedness
referenced in clause (i) of the definition thereof with respect to the Credit
Documents up to a total of $60 million (plus all Obligations (other than for
principal) of the Company and its Restricted Subsidiaries in respect of such
Guarantor Senior Indebtedness) and (2) a total of $165 million in respect of
(x)
the Senior Notes (or notes issued in exchange therefore prior to the date
hereof) and (y) any Refinancing Indebtedness Refinancing the Senior Notes (or
notes issued in exchange therefore prior to the date hereof).”
(c) Section
8
of the Purchase Agreement is hereby amended by adding a new Section 8.1(f)
to
the Purchase Agreement as follows:
“(f) None
of
the Company or any of the Guarantors will, directly or indirectly, in any event
incur, create, issue, assume, guarantee, permit to exist or otherwise become
liable for any Indebtedness that (1) is Indebtedness of the Company or such
Guarantor that is not subordinated in right of payment to the Notes or the
Guarantee of such Guarantor, as applicable, other than Senior Indebtedness,
in
the case of the Company, or Guarantor Senior Indebtedness, in the case of a
Guarantor, in each case permitted by Section 8.1(e) of this Purchase Agreement
or (2) ranks pari
passu
with the
Notes or such Guarantor’s Guarantee, as the case may be (other than up to $20
million of Indebtedness incurred in accordance with clause (10) of the
definition of “Permitted Indebtedness” in connection with the 2005 Refinancing
or, without duplication, any Refinancing thereof).”
Section
1.3 Amendments
to Section 12.
Section
12 of the Purchase Agreement is hereby amended by adding a new Section 12.1(i)
to the Purchase Agreement as follows:
“(i) there
is
a Default or Event of Default (as such terms are used in the Holdco Purchase
Agreement) under 6.1(f) of the Holdco Purchase Agreement.”
Section
2. Expenses.
The
Company acknowledges that Section 16.1 of the Purchase Agreement applies to
the
Waiver, this Amendment and all matters related to or arising out of discussions
between the Company and the Purchasers in respect of the 2005 Refinancing,
and
any previously proposed refinancing or waiver; provided,
that
the Company will not be required to pay any costs, fees or expenses of any
legal
counsel of the Purchasers pursuant to this Section 2 in excess of $50,000 in
the
aggregate for work completed through the date of this Amendment (the
“Legal
Counsel Fees”).
Section
3. Reference
to and Effect on the Financing Documents.
On and
after the Amendment Effective Date, each reference in the Purchase Agreement
to
“this Agreement”, “hereunder”, “hereof” or words of like import referring to the
Purchase Agreement, and each reference in the Financing Documents to “the
Purchase Agreement”, “thereunder”, “thereof” or words of like import referring
to the Purchase Agreement, shall mean and be a reference to the Purchase
Agreement as amended by this Amendment. The execution, delivery and
effectiveness of this Amendment and the amendment of the Purchase Agreement
as
provided herein shall not, except as expressly provided herein, operate as
a
waiver, termination, rescission, repudiation, relinquishment, amendment,
modification or supplement of any right, power, privilege, remedy or obligation
of any party arising, created or existing under or by virtue of the Purchase
Agreement or of any provision of the Purchase Agreement. The parties hereto
agree that except as expressly amended herein, all of the provisions of the
Purchase Agreement and the other Financing Documents are and shall remain in
full force and effect in accordance with the terms thereof and are hereby in
all
respects ratified and confirmed.
Section
4. Counterparts.
This
Amendment may be executed by one or more of the parties to this Amendment on
any
number of separate counterparts, and all of said counterparts taken together
shall be deemed to constitute one and the same instrument. Delivery of an
executed signature page of this Amendment by facsimile transmission shall be
effective as delivery of a manually executed counterpart hereof.
Section
5. Effective
Date.
This
Amendment shall become effective as of the date (the “Amendment
Effective Date”)
on
which (x)(1) this Amendment and (2) the Waiver shall have been executed and
delivered by each of the Company and each of the Holders of Notes and (y) the
Legal Counsel Fees have been paid in full. The parties hereto agree that the
Waiver shall not become effective until the Amendment Effective
Date.
Section
6. Governing
Law.
This
Amendment shall be construed and enforced in accordance with, and the rights
of
the parties shall be governed by, the law of the state of New York, excluding
choice-of-law principles of the law of such state that would require the
application of the laws of a jurisdiction other than such state.
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
by
their respective officers thereunto duly authorized, as of the date first above
written.
PCA
LLC
|
By:
|
/s/
Xxxxxx Norsworthy___
|
Name:
Xxxxxx Xxxxxxxxxx
Title:
Executive Vice President and Chief Financial Officer
Guarantors:
Portrait
Corporation of America, Inc.
American
Studios,
Inc.
PCA
National
LLC
PCA
Photo Corporation
of Canada, Inc.
Photo
Corporation of
America
PCA
Finance
Corp.
By:
/s/
Xxxxxx Norsworthy___
Name:
Xxxxxx
Xxxxxxxxxx
Title:
Executive Vice
President and Chief Financial Officer:
PCA
National of Texas
LP
By: PCA
National LLC,
its
general
partner
By:
/s/
Xxxxxx Norsworthy___
Name:
Xxxxxx
Xxxxxxxxxx
Title:
Executive Vice
President
and
Chief
Financial Officer
GS
MEZZANINE PARTNERS II, L.P.
By:
GS
Mezzanine Advisors II, L.L.C.,
|
its
general partner
|
By:
/s/
Xxxx X. Bowman____________
Name:
Xxxx X. Xxxxxx
Title:
Vice President
GS
MEZZANINE PARTNERS II OFFSHORE, L.P.
By:
GS
Mezzanine Advisors II, L.L.C.,
|
its
general partner
|
By:
/s/
Xxxx X. Bowman____________
Name:
Xxxx X. Xxxxxx
Title:
Vice President
