EXHIBIT 10.48
AMENDMENT NO. 1, dated as of July
31, 2003 (this "Amendment No. 1"), to the
Securities Purchase Agreement dated as of
February 10, 2003 (the "Original
Agreement"), among LPA HOLDING CORP., a
Delaware corporation (the "Corporation"),
LPA INVESTMENT LLC, a Delaware limited
liability company ("LPA Investment"), and
the parties signatory thereto (each, an
"Other Purchaser"). Each Other Purchaser and
LPA Investment are collectively referred to
as the "Purchasers."
The Corporation and the Purchasers agree to amend the Original
Agreement, on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as set forth below.
Section 1. Defined Terms. Unless otherwise defined herein, terms
defined in the Original Agreement are used herein as therein defined.
Section 2. Amendment to the Original Agreement.
A. Section 1.4 of the Original Agreement is amended and
restated in its entirety as follows:
"(a) Subject to the terms and conditions hereof, each
Purchaser hereby commits, severally and not jointly, to purchase up to
its respective Proportional Percentage of the Maximum Shortfall Share
Amount (with respect to each Purchaser, such Purchaser's "Maximum Share
Amount").
(i) If a Bank Deposit Shortfall exists at any
time during the applicable Lookback Period, the Corporation
shall promptly (but in no event later than five Business Days
prior to the applicable Bank Deposit Settlement Date) notify
each Purchaser of the greatest Bank Deposit Shortfall which
existed during the applicable Lookback Period and the number
of shares of Series B Preferred Stock required to be issued by
the Corporation and purchased by the Purchasers on the
applicable Bank Deposit Settlement Date (the aggregate shares
of Series B Preferred Stock to be purchased on such Bank
Deposit Settlement Date, the "Bank Deposit Shortfall Shares").
On each Bank Deposit Settlement Date on which Bank Deposit
Shortfall Shares are required to be issued and purchased, the
Corporation shall issue to each Purchaser, and each Purchaser
shall purchase from the Corporation, such Purchaser's
Proportional Percentage of Bank Deposit Shortfall Shares. The
number
of Bank Deposit Shortfall Shares to be issued by the
Corporation and collectively purchased by the Purchasers on a
particular Bank Deposit Settlement Date shall be calculated as
follows:
((X + 500,000)/2.174) - Y
Where:
X = the greatest Bank Deposit Shortfall, if any
(expressed as a positive number) during the
most recently ended Lookback Period;
Y = the number of Bank Deposit Shortfall Shares,
Fixed Charge Shortfall Shares and Advance
Purchase Shares, if any, issued during the
applicable Lookback Period.
If the foregoing calculation results in negative number, no Purchaser
shall be required to purchase Shortfall Shares with respect to such
Lookback Period.
(ii) If a Fixed Charge Shortfall exists on the
last day of the applicable Period, the Corporation shall as
soon as practicable following the completion of its financial
statements for the applicable Period, but in no event later
than five Business Days prior to the applicable Fixed Charge
Settlement Date, notify each Purchaser of the Fixed Charge
Shortfall which existed during the applicable Period and the
number of shares of Series B Preferred Stock required to be
issued by the Corporation and purchased by the Purchasers on
the applicable Fixed Charge Settlement Date (the aggregate
shares of Series B Preferred Stock to be purchased on such
Fixed Charge Settlement Date, the "Fixed Charge Shortfall
Shares"). On each Fixed Charge Settlement Date on which Fixed
Charge Shortfall Shares are required to be issued and
purchased, the Corporation shall issue to each Purchaser, and
each Purchaser shall purchase from the Corporation, such
Purchaser's Proportional Percentage of Fixed Charge Shortfall
Shares. The number of Fixed Charge Shortfall Shares to be
issued by the Corporation and collectively purchased by the
Purchasers on a particular Fixed Charge Settlement Date shall
equal the quotient obtained by dividing (x) the Fixed Charge
Shortfall, if any, on the last day of the most recently ended
Period by (y) 2.174. If the foregoing calculation results in
negative number, no Purchaser shall be required to purchase
Fixed Charge Shortfall Shares with respect to such Period.
(iii) If the Corporation fails to make interest or
principal payments (A) under the Credit Agreement or (B)
following the payment in full of all the obligations under the
Credit Agreement, the Senior Secured Notes Indenture, in each
case in accordance with the terms thereof (a "Payment
Default"), on the date of such Payment Default the Corporation
shall notify each Purchaser of the amount of funds necessary
to cure such Payment Default (the "Payment Default
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Amount") and the number of shares of Series B Preferred Stock
required to be issued by the Corporation and purchased by the
Purchasers on the date which is no later than five (5)
Business Days following the date of delivery of such
notification (the date of each such purchase a "Payment
Default Settlement Date" and the aggregate shares of Series B
Preferred Stock to be purchased on such date, the "Payment
Default Shares"). On each Payment Default Settlement Date, the
Corporation shall issue to each Purchaser, and each Purchaser
shall purchase from the Corporation, such Purchaser's
Proportional Percentage of Payment Default Shares. The number
of Payment Default Shares to be issued by the Corporation and
collectively purchased by the Purchasers on a particular
Payment Default Settlement Date shall equal the quotient
obtained by dividing (x) the Payment Default Amount by (y)
2.174.
(b) Upon no less than five Business Days' prior written
notice to the Corporation and the Purchasers (the "Advance Purchase
Notice"), the Requisite Purchasers may from time to time require the
Corporation to issue and sell to each Purchaser, and each Purchaser to
purchase from the Corporation, shares of Series B Preferred Stock in
advance of any Settlement Date (the "Advance Purchase Shares"). On the
date set forth in the Advance Purchase Notice, the Corporation shall
issue and sell to each Purchaser, and each Purchaser shall purchase
from the Corporation, its Proportional Percentage of the aggregate
Advance Purchase Shares set forth in the Advance Purchase Notice.
(c) Notwithstanding anything to the contrary contained
herein, at no time shall any Purchaser be required to purchase any
Shortfall Shares or Advance Purchase Shares hereunder in excess of such
Purchaser's Maximum Share Amount less the aggregate number of Shortfall
Shares and Advance Purchase Shares, if any, previously purchased by
such Purchaser hereunder.
(d) As used in this Section 1.4, the following terms have
the meanings below:
"Bank Deposit Settlement Date" means, with respect to each
Lookback Period, the tenth Business Day following the last Business Day
of the applicable Lookback Period."
"Bank Deposit Shortfall" means the deficit, if any, recorded
on the books of the Corporation and its Subsidiaries on the last
Business Day of each week during the applicable Lookback Period as
reflected on the "adjusted book balance" line of the Corporation's
consolidated thirteen-week cash flow projections. "Bank Deposit
Shortfall" shall be calculated in accordance with the Corporation's
historical practice.
"Fixed Charge Settlement Date" means, with respect to each
Period, the date that is ten Business Days following the date that the
Corporation is required to deliver to the Lenders the financial
information described in Sections 5.01(a) or (b), as applicable, of the
Credit Agreement. If the Lenders extend the deadline for delivery of
such financial information at any time, the
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Settlement Date for such Period shall be similarly extended for an
equal amount of time.
"Fixed Charge Shortfall" means, to the extent that the
Corporation was not in compliance with Section 6.14 of the Credit
Agreement as of the last day of the applicable Period, the amount which
if added to Consolidated EBITDAR for such Period would have satisfied
the covenant set forth in Section 6.14 as of the last day of such
Period.
"Lookback Period" means the four-week period commencing on
September 21, 2003 and each consecutive four or five-week period
thereafter recorded by the Corporation in accordance with the
Corporation's historical practice.
"Period" means the Corporation's fiscal quarter ending nearest
to March 31, 2003 and each fiscal quarter ending thereafter until May
11, 2006.
"Proportional Percentage" means (a) with respect to any Other
Purchaser, the quotient obtained by dividing (x) the number of shares
of Series B Preferred Stock which such Other Purchaser commits to
purchase pursuant to the terms of the Preemptive Notice executed by
such Other Purchaser (which shall not be greater than such Other
Purchaser's Common Stock Percentage (as defined in the Stockholders
Agreement) as of the date hereof) by (y) the Maximum Shortfall Share
Amount; and (b) with respect to LPA Investment 100% less the aggregate
of the Other Purchasers' Proportional Percentages as calculated in the
immediately preceding clause (a). In the event that a Purchaser is
required to purchase Shortfall Shares or Advance Purchase Shares and
such Purchaser (a "Defaulting Purchaser") fails to purchase its
respective Proportional Percentage of such Shortfall Shares or Advance
Purchase Shares at the applicable Closing, the Proportional Percentage
of each other Purchaser shall be increased by the amount of such
Defaulting Purchaser's Proportional Percentage multiplied by a fraction
equal to (x) the amount of such other Purchasers' Proportional
Percentage, divided by (y) the aggregate Proportionate Percentage of
all Purchasers who are not Defaulting Purchasers.
"Shortfall Shares" means, collectively, Bank Deposit Shortfall
Shares, Fixed Charge Shortfall Shares, and Payment Default Shares.
B. Section 1.8 of the Original Agreement is amended and
restated in its entirety as follows:
"The obligations of each Purchaser hereunder shall
automatically terminate without further action from any party hereto on the
earlier of (a) the date such Purchaser purchases an aggregate amount of shares
of Series B Preferred Stock hereunder equal to its Maximum Share Amount; and (b)
the date the obligations (other than contingent obligations and liabilities) of
the Corporation under (i) the Credit Agreement and (ii) the Indenture dated as
of May 11, 1998, among the Corporation and certain of its subsidiaries and PNC
Bank, National Association as trustee (as amended), are terminated."
Section 3. References to the Original Agreement. From and after the
date hereof, all references in the Original Agreement and each of the other
Transaction Documents to the
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Original Agreement shall be deemed to be references to the Original Agreement
after giving effect to this Amendment No. 1.
Section 4. No Other Amendments. Except as expressly set forth herein,
the Original Agreement remains in full force and effect in accordance with its
terms and nothing contained herein shall be deemed (a) to be a waiver,
amendment, modification or other change of any term, condition or provision of
the Original Agreement or any Transaction Document (or a consent to any such
waiver, amendment, modification or other change); (b) to be a consent to any
transaction; or (c) to prejudice any right or rights which the Purchasers or the
Corporation may have under the Original Agreement and/or any Transaction
Document.
Section 5. Headings. The headings used herein are for convenience of
reference only and shall not affect the construction of, nor shall they be taken
into consideration in interpreting, this Amendment No. 1.
Section 6. Counterparts. This Amendment No. 1 may be executed in one or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. Facsimile execution and
delivery of this Amendment No. 1 is legal, valid and binding for all purposes.
Section 7. Applicable Law. THIS AMENDMENT NO. 1 SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF NEW YORK,
WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICTING PROVISION OR RULE
(WHETHER OF THE STATE OF NEW YORK, OR ANY OTHER JURISDICTION) THAT WOULD CAUSE
THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK TO BE APPLIED. IN
FURTHERANCE OF THE FOREGOING, THE INTERNAL LAW OF THE STATE OF NEW YORK WILL
CONTROL THE INTERPRETATION AND CONSTRUCTION OF THIS AMENDMENT NO. 1, EVEN IF
UNDER SUCH JURISDICTION'S CHOICE OF LAW OR CONFLICT OF LAW ANALYSIS, THE
SUBSTANTIVE LAW OF SOME OTHER JURISDICTION WOULD ORDINARILY APPLY.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 1 to the Securities Purchase Agreement to be duly executed and
delivered as of the day and year first above written.
LPA HOLDING CORP.
By: /s/ Michael F. Czlonka
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Name: Michael F. Czlonka
Title: Senior Vice President & Chief
Operating Officer
LPA INVESTMENT LLC
By: /s/ Stephen P Murray
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Name: Stephen P. Murray
Title:
/s/ Joetta D. Camp
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Joetta D. Camp
/s/ Rebecca L. Perry
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Rebecca L. Perry
/s/ Kathryn J. Shubert
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Kathryn J. Shubert