Confidential
treatment has been requested for portions of this document. This
copy of the document filed as an exhibit omits the confidential
information subject to the confidential treatment request.
Omissions are designated by three asterisks (***). A complete
version of this document is being filed separately with the
Securities and Exchange Commission.
AMENDMENT No. 3
TO
AGFA/PCA 2002 SALES CONTRACT
THIS
AMENDMENT, dated as of September 28, 2005 (the
“Amendment”), by and among Portrait Corporation of
America, Inc, a corporation organized and existing under the laws
of the State of Delaware (“Portrait”); PCA
International, Inc., a corporation formerly organized and existing
under the laws of the State of North Carolina (“PCAT”);
PCA LLC, a limited liability company organized and existing under
the laws of Delaware (“PCA LLC” and, together with
Portrait and PCAI, “PCA”); and AgfaPhoto USA
Corporation, a company organized and existing under the laws of the
State of Delaware (“AgfaPhoto USA”)
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A.
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As
of February 4, 2002, Agfa Corporation, a Delaware corporation
(“Agfa Corporation ”), and PCAI entered into the
“AGFA/PCA 2002 Sales Contract” (the “2002 Sales
Contract”).
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B.
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As
of April 5, 2002, Agfa Corporation and PCAI entered into
“Amendment No 1” to the 2002 Sales Contract (the
“First Amendment”)
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C.
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As
of June 28, 2002, Agfa Corporation, PCAI and PCA LLC entered
into “Amendment No 2” to the 2002 Sales Contract (the
“Second Amendment”)
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D.
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As
of June 1 5, 2005, AgfaPhoto USA and Portrait entered into a
letter agreement (the “Letter Agreement”).
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E.
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As
of the date hereof, PCA and AgfaPhoto USA wish to enter into this
“Amendment No 3” to the Sales Contract (the
“Third Amendment” and, together with the 2002 Sales
Contract, the First Amendment , the Second Amendment and the Letter
Agreement, the “Sales Contract”), pursuant to which
(1) PCA is placing an order for certain Agfa Products with
AgfaPhoto USA for a total purchase price of Four Million Nine
Hundred and Fifty-Six Thousand and One Hundred U.S Dollars
($4,956,100.00) (the “Purchase Price”) on the terms and
conditions of the Sales Contract, including the amendments thereto
hereby provided (the “Order”), (2) PCA is agreeing
that AgfaPhoto USA may delegate its obligations to ship said Agfa
Products pursuant to the Order to AgfaPhoto GmbH, a German company
(“Agfa GmbH”), (3) PCA agrees to make an advance
on the Purchase Price of Two Million Six Hundred Fifty One Thousand
and Forty One U.S. Dollars and Four Cents (US$2,651,041.04) (the
“Advance”) in three installments in the amounts set
forth herein (each, an “Installment”) to and for the
benefit of AgfaPhoto USA with the understanding that AgfaPhoto USA
is immediately assigning the right to receive each installment of
the Advance to Agfa GmbH and AgfaPhoto USA hereby directs that PCA
pay the Advance on its behalf to Agfa GmbH and (4) PCA agrees
to pay the Purchase Price according to the terms herein,
minus the Installments actually paid, to AgfaPhoto USA in
accordance with the terms of the Sales Contract.
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NOW THEREFORE, in
consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as
follows:
1
Definition Unless otherwise defined herein, all capitalized
terms herein shall have the meaning ascribed to them in the Sales
Contract
2 Conflicts
if there shall be a conflict or inconsistency between the Sales
Contract and this Amendment, the terms of this Amendment shall be
determinative and shall prevail
3
Representations and Warranties PCA represents and warrants
to AgfaPhoto USA that:
(a) PCA
has the full power, capacity and legal right to make Advance to
AgfaPhoto USA
Each, of the
parties to this agreement represents and warrants to the other
that:
(a) Each
party has the full power, capacity and legal right to enter into
this Agreement
(b) the
execution and delivery of this Agreement, and the performance of
its terms, does not and will not constitute a default under the
terms of any material agreement, indenture or other instrument,
license, judgment, decree, order, law, ordinance or other
governmental role or regulation applicable to such party or any of
its property;
(c) this
Agreement has been, duly executed and delivered by each party and
constitutes a legal, valid and binding obligation of such party
enforceable in accordance with its terms, subject only to
bankruptcy and similar laws
4 .
Order PCA herewith places an order for the goods described
in Exhibit A (the “Agfa Products”) and agrees to make
payment of the Purchase Price as set forth on Exhibit A on the
terms and conditions set forth herein PCA acknowledges and agrees
that AgfaPhoto USA may delegate its obligation to manufacture and
deliver the Agfa Products to Agfa GmbH Except as set forth herein,
the Purchase Price shall be payable by PCA to AgfaPhoto USA in
accordance with the terms of the Sales Contract The Agfa Products
shall be delivered to PCA by Agfa GmbH from time to time in
accordance with the schedule set forth in Exhibit A
Notwithstanding any provision of this Agreement or the Sales
Contract to the contrary, in the event the Agfa Products are
delivered to PCA prior to the delivery times indicated on
Exhibit A, PCA shall not be required to pay any balance owed
for such Agfa Products to Agfa Photo USA until the delivery date
indicated on Exhibit A for such Agfa Products.
5.
Advance Installment Payments; Shipments
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(a)
Advance on the Purchase Price PCA agrees to pay the Advance
to Agfa GmbH on behalf of AgfaPhoto USA in three Installments as
set forth in this Section 5. PCA agrees to pay the Purchase
Price to AgfaPhoto USA in accordance with the terms of the Sales
Contract, minus all Installments paid to Agfa. GmbH, regardless of
the Order numbers to which the installments relate
(b) First
Installment . PCA herewith acknowledges and agrees that, in
respect of the Order No.s US_01512, 01513, 01547, 01550 and 01621
(the “First Installment Products”), PCA shall,
following execution of this Agreement and Verification as provided
in (h) below, as a first Installment toward the Purchase
Price, pay an amount of One Million Three Hundred Sixty Three
Thousand Seven Hundred Sixteen Dollars and Sixty One Cents
($1,363,716 61) to the order of Agfa GmbH (the “ First
Installment Payment). Upon receipt by Agfa GmbH of the First
Installment Payment, title to the goods of the orders comprising
the First Installment Products shall transfer to PCA Upon the
completion of the First Installment Products, Agfa GmbH shall
deliver the First Installment Products to PCA.
(c)
Second Installment . PCA herewith acknowledges and agrees
that, in respect of the Order No. s US_01779, 01780, 01781, 01782
and 01925 (the “Second Installment Products”), PCA
shall, on or before October 10, 2005, as a second Installment
toward the Purchase Price pay an amount of Four Hundred and Eight
Thousand Eight Hundred and Six Dollars and Forty Five Cents ($408,
806 45) to the order of Agfa GmbH (the “Second Installment
Payment”), provided Agfa GmbH provides to PCA, on or before
October 10, 2005, invoices from the suppliers of paper base or
emulsions to be used to manufacture the Second Installment Products
Upon receipt by Agfa GmbH of the Second Installment Payment, Agfa
GmbH shall use the Second Installment Payment to purchase paper
base or emulsions to be used to manufacture the Second Installment
Products, and title to the goods comprising the Second Installment
Products shall transfer to PCA Upon the completion of the Second
Installment Products, Agfa GmbH shall deliver the Second
Installment Products to PCA.
(d) Third
Installment PCA herewith ack
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