AMENDMENT No, 4
TO
AGFA/PCA 2002 SALES CONTRACT
THIS AMENDMENT,
dated as of October 17, 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 (“PCAI”); 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 15, 2005, AgfaPhoto USA and Portrait entered into a
letter agreement (the “Letter Agreement”).
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E
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As
of September 28, 2005, AgfaPhoto USA and PCA entered into
“Amendment No. 3” to the 2002 Sales Contract (the
“Third Amendment”).
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F
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As
of the date hereof, PCA and AgfaPhoto USA wish to enter into this
“Amendment No. 4” to the Sales Contract (the
“Fourth 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 Seven Hundred Ninety
Seven Thousand Nine Hundred and Thirty Five US Dollars and Sixty
Four US Cents,
($ 797,935,64)(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 Five Hundred and Sixty-Four thousand Four
Hundred and Three US Dollars and Fifty-Right Cents (US $
564,403,58) (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
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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
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
Definitions 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 the Advance to
AgfaPhoto USA
Each of the
parties to this agreement represents and warrants to the other
that:
(a) Each
parties 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 of other
governmental rule 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 AgfaPhoto USA until the delivery date
indicated on Exhibit A for such Agfa Products
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5 Advance;
Installment Payments; Shipments .
(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 Older numbers to which the installments
relate
(b) First
Installment . PCA herewith acknowledges and agrees that, in
respect of the Order No US-01342 (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 Hundred
and Seventy Thousand Three Hundred and Seventy U S Dollars ($
l70,370 00) 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 Order Nos US-01489 and 0131l(the “Second
Installment Products”), PCA shall, on or before
October 21, 2005, as a second Installment toward the Purchase
Price pay an amount of Two Hundred and Twenty-Four Thousand Three
Hundred and Ninety One U.S. Dollars and Twenty-Three Cents
($224,191 23) to the order of Agfa GmbH (the “Second
Installment Payment”), Upon
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