WAIVER
Exhibit 4.8
WAIVER,
dated as of July 15, 2005 (this “Waiver”)
with
respect to the Purchase Agreement, among PCA International, Inc. (predecessor
to
Portrait Corporation of America, Inc.) (the “Company”),
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,
there is an existing Default under the Purchase Agreement due to the failure
of
the Company to deliver to the Purchasers and each Holder that is an
Institutional Investor the audited financial statements of the Company and
its
Subsidiaries for the Fiscal Year ended January 30, 2005 within 90 days after
January 30, 2005 as required under Section 6.1(a) of the Purchase Agreement
(the
“Existing
Default”).
NOW,
THEREFORE, in consideration of the premises and the mutual covenants hereinafter
contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
1. Waiver.
Subject
to the terms and conditions hereof, the Purchasers and the Holders hereby waive
the Existing Default and any other Default or Event of Default that may arise
under or in connection with the failure of the Company to the deliver to the
Purchasers and each Holder that is an Institutional Investor, pursuant to
Section 6.1(a) of the Purchase Agreement, an audited consolidated and
consolidating balance sheet of the Company and its Subsidiaries as of the end
of
the 2004 Fiscal Year and the related consolidated and consolidating statements
of income, retained earnings, stockholders’ equity and cash flows for the year,
audited by Deloitte & Touche or other firm of independent certified public
accountants of nationally recognized standing reasonably acceptable to the
Purchasers, setting forth in each case in comparative form the figures for
the
previous year, reported without a “going concern” or like qualification or
exception, or qualification indicating that the scope of the audit was
inadequate to permit such independent certified public accountants to certify
such financial statements without such qualification or any other material
qualification or exception.
2. Conditions
to Effectiveness.
This
Waiver shall become effective as of the date hereof upon receipt by the Company
of counterparts of this Waiver, duly executed by the Company and the Required
Holders.
3. Continuing
Effect of the Purchase Agreement.
The
Company, the Purchasers and the Holders hereby acknowledge and agree that the
Purchaser Agreement shall continue to be and shall remain unchanged and in
full
force and effect in accordance with its terms except as expressly modified
hereby. Any terms or conditions contained in this Waiver shall control over
any
inconsistent terms or conditions in the Purchase Agreement, the other Financing
Documents and applicable law in respect of any Defaults or Events of
Default.
4. Counterparts.
This
Waiver may be executed in any number of counterparts, each of which when so
executed shall be deemed an original but all such counterparts shall constitute
one and the same instrument. A counterpart signature page delivered by fax
transmission shall be as effective as delivery of an originally executed
counterpart.
5. GOVERNING
LAW.
THIS
WAIVER SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF
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.
6. Headings.
Section
headings in this Waiver are included herein for convenience of reference only
and shall not constitute a part of this Waiver for any other
purpose.
[SIGNATURE
PAGES FOLLOW]
IN
WITNESS WHEREOF, this Waiver has been duly executed as of the date first written
above.
PORTRAIT
CORPORATION OF AMERICA, INC.
By:
/s/
Xxxxxx Xxxxxxxxxx
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
