TENTH AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 99.1
TENTH AMENDMENT TO
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
This Tenth Amendment to Fourth Amended and Restated Credit Agreement (this “Agreement”) is
entered into this 14th day of April, 2008 among PORTOLA PACKAGING, INC., a Delaware corporation, as
Borrower, and GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation (“GECC”), for itself, as
Agent, Issuing Lender and Lender.
W I T N E S S E T H:
WHEREAS, Borrower and GECC, as Agent, Issuing Lender and Lender, are parties to that certain
Fourth Amended and Restated Credit Agreement dated as of January 16, 2004 (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”); and
WHEREAS, the parties have agreed to amend the Credit Agreement, upon the terms and conditions
set forth herein.
NOW THEREFORE, in consideration of the mutual agreements, provisions and covenants contained
herein and in the Credit Agreement, the parties agree as follows:
Section 1. Definitions. Capitalized terms used herein without definition and defined
in the Credit Agreement are used herein as defined therein.
Section 2. Amendments to Credit Agreement. Subject to the satisfaction of the terms
and conditions set forth herein, the amendments to the Credit Agreement set forth in this
Section 2 shall become effective as of the date hereof.
2.1 The first sentence of Section 1.1(A) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
Each Lender agrees, severally and not jointly, to lend to Borrower from the Closing
Date to April 15, 2011 (the “Commitment Termination Date”), its Pro Rata Share of
the Revolving Loans requested by Borrower to be made by Lenders under this
subsection 1.1(A), up to an aggregate maximum for all Lenders of Sixty Million
Dollars ($60,000,000) (as the same may be reduced from time to time hereunder, the
“Revolving Loan Commitment”).
2.2 The definitions of “Index Rate Margin” and “LIBOR Margin” set forth in Section 1.2
of the Credit Agreement are herby amended and restated in their entireties as follows:
“Index Rate Margin” means 2.50% per annum.
“LIBOR Margin” means 4.00% per annum.
2.3 Section 2.5(C) of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
(C) Borrower shall, subject to Section 5 of the Tenth Amendment, cause
each Person, upon its becoming a Restricted Subsidiary of Borrower, promptly to
guaranty the Obligations and to grant to Agent, for the benefit of Agent and
Lenders, a Lien in the real, personal and mixed property of such Person to secure
the Obligations. In addition, all of the capital stock of such Restricted
Subsidiary shall be pledged to Agent, for the benefit of Agent and Lenders. The
documentation for such guaranty and security shall be substantially similar to the
Loan Documents executed concurrently herewith with such modifications as are
reasonably requested by Agent.
2.4 Sections 3.1(B) and (C) of the Credit Agreement are hereby amended and
restated in its entirety to read as follows:
(B) intercompany Indebtedness arising from loans made by Borrower to its
Restricted Subsidiaries that are Loan Parties in the ordinary course of business;
provided, however, that upon the request of Agent at any time, such Indebtedness
owing by any Restricted Subsidiary that is a Loan Party shall be evidenced by
promissory notes having terms reasonably satisfactory to Agent, the sole originally
executed counterparts of which shall be pledged and delivered to Agent, for the
benefit of Agent and Lenders, as security for the Obligations;
(C) Indebtedness evidenced by (i) the Senior Notes and any guaranties thereof
in an aggregate outstanding principal amount not to exceed $180,000,000, together
with interest accrued thereon and (ii) the Second Lien Term Loan and any guaranties
thereof in an aggregate outstanding principal amount of $15,000,000 (without
deduction of any unamortized original issue discount), together with interest
thereon;
2.5 The definition of “Permitted Encumbrances” set forth in Section 3.2(A) of the
Credit Agreement is hereby amended by deleting existing clause (15) thereof and inserting the
following as clauses (15) and (16) thereof:
(15) Liens on the Collateral securing the Second Lien Obligations pursuant to
the Second Lien Loan Documents, provided that the same are subject to and
subordinated to the Liens granted pursuant to the Loan Documents in accordance with
the terms of the Intercreditor Agreement;
(16) any other Lien not expressly permitted by clauses (1) through (15) above,
so long as such other Liens do not secure claims exceeding $2,000,000 in the
aggregate at any time outstanding.
2.6 Sections 3.2(B) and (C) of the Credit Agreement are hereby amended and
restated in their entirety to read as follows:
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(B) No Negative Pledges. Borrower will not and will not permit any of
its Restricted Subsidiaries directly or indirectly to enter into or assume any
agreement (other than the Loan Documents and other than as provided in the Senior
Note Documents and the Second Lien Loan Documents, in each case as in effect on the
Closing Date) prohibiting the creation or assumption of any Lien upon its properties
or assets, whether now owned or hereafter acquired.
(C) No Restrictions on Restricted Subsidiary Distributions to a
Borrower. Except as provided herein or under the Senior Note Indenture or the
Second Lien Credit Agreement, Borrower will not and will not permit any of its
Restricted Subsidiaries directly or indirectly to create or otherwise cause or
suffer to exist or become effective any consensual encumbrance or restriction of any
kind on the ability of any such Restricted Subsidiary to: (1) pay dividends or make
any other distribution on any of such Restricted Subsidiary’s capital stock owned by
Borrower or any other Restricted Subsidiary; (2) pay any Indebtedness owed to
Borrower or any other Restricted Subsidiary; (3) make loans or advances to Borrower
or any other Restricted Subsidiary; or (4) transfer any of its property or assets to
Borrower or any other Restricted Subsidiary.
2.7 The last sentence of the definition of “Investment” set forth in Section 3.3 of
the Credit Agreement is hereby amended and restated in its entirety to read as follows:
The term “Investment” shall not include any guaranty of the Senior Notes or the
Second Lien Obligations by any of Borrower’s Subsidiaries.
2.8 Section 3.4(B) of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
(B) guaranties of the Obligations and of the Senior Notes and the Second Lien
Obligations;
2.9 Section 3.6 of the Credit Agreement is hereby amended and restated in its entirety
to read as follows:
3.6 Restriction on Fundamental Changes. Borrower will not and will not
permit any of its Restricted Subsidiaries directly or indirectly to: (a) amend,
modify or waive any term or provision of its organizational documents, including,
without limitation, its articles of incorporation, certificates of designations
pertaining to preferred stock, by laws, partnership agreement or operating agreement
unless required by law; (b) enter into any transaction of merger, amalgamation or
consolidation except, upon not less than five (5) Business Days’ prior written
notice to Agent, any wholly-owned Restricted Subsidiary of Borrower may be merged or
amalgamated with or into Borrower (provided that Borrower is the surviving entity)
or any other wholly-owned Restricted Subsidiary of Borrower that is a Loan Party;
(c) liquidate, wind-up or dissolve itself (or suffer any liquidation or
dissolution); or (d) acquire by purchase or
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otherwise all or any substantial part of the business or assets of any other
Person, except in connection with an Investment under subsection 3.3(I).
2.10 Clause (d) of Section 3.7 of the Credit Agreement is hereby amended and restated
in its entirety to read as follows:
(d) the sale of up to $4,000,000 of equipment which is listed on Schedule III
to the Tenth Amendment and is transferred pursuant to sale and leaseback
transactions completed on or before August 31, 2008.
2.11 Section 3.10 of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
3.10 Changes Relating to Indebtedness. Borrower will not and will not
permit any of its Restricted Subsidiaries directly or indirectly to change or amend
the terms of any of (1) its Indebtedness permitted by subsections 3.1(C) (excluding
the Second Lien Obligations) or (F) if the effect of such amendment is to: (a)
increase the interest rate on such Indebtedness; (b) change the dates upon which
payments of principal or interest are due on or principal amount of such
Indebtedness (excluding intercompany Indebtedness shown on Schedule 3.1 and which is
otherwise permitted under Section 3.1(B)); (c) change any event of default or add or
make more restrictive any covenant with respect to such Indebtedness; (d) change the
prepayment provisions of such Indebtedness; (e) change the subordination provisions
thereof, if any (or the subordination terms of any guaranty thereof, if any); or (f)
change or amend any other term if such change or amendment would materially increase
the obligations of the obligor or confer additional material rights on the holder of
such Indebtedness in a manner adverse to Borrower, any of its Restricted
Subsidiaries or Lenders, or (2) the Second Lien Obligations, except as permitted
under the Intercreditor Agreement. Borrower will not and will not permit any of its
Restricted Subsidiaries to voluntarily prepay any Senior Notes or Second Lien
Obligations. Borrower will not designate any debt facility as a “Credit Facility”
under the Senior Notes Indenture other than this Agreement and the Second Lien
Credit Agreement.
2.12 Section 3.14 of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
3.14 Bank Accounts. Borrower will not and will not permit any of its
Restricted Subsidiaries that are Loan Parties to establish any new bank accounts
without prior written notice to Agent and unless Agent, Borrower or such Restricted
Subsidiary and the bank at which the account is to be opened enter into a tri-party
agreement regarding such bank account pursuant to which such bank acknowledges the
security interest of Agent in such bank account and agrees to limit its set-off
rights on terms satisfactory to Agent.
2.13 Section 4.1 of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
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4.1 Lease Limits. Borrower will not and will not permit any of its
Restricted Subsidiaries directly or indirectly to become or remain liable in any
way, whether directly or by assignment or as a guarantor or other surety, for the
obligations of the lessee under any operating lease, synthetic lease or similar
off-balance sheet financing, if the aggregate amount of all rents (or substantially
equivalent payments) paid by Borrower and its Restricted Subsidiaries under all such
leases would exceed $8,000,000 (or the equivalent thereof in another currency) in
any fiscal year of Borrower.
2.14 Section 4.2 of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
4.2 Minimum EBITDA. Borrower shall not permit EBITDA for any twelve
(12) month period ending on the last day of each fiscal month, commencing with the
fiscal month ending May 31, 2005, to be less than (a) $17,500,000 for each such
period ending on or before March 31, 2008 and (b) $19,250,000 for each such period
ending on or after April 30, 2008.
2.15 Section 4.3 of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
4.3. Unfinanced Capital Expenditure Limits. Borrower and its
Restricted Subsidiaries on a Consolidated basis shall not make Capital Expenditures
during any fiscal year, commencing with the 2008 fiscal year, that exceed (A)
$17,000,000 for fiscal year 2008 minus an amount equal to the cost of specific
equipment listed on Schedule III to the Tenth Amendment (not to exceed $4,000,000)
which was not previously acquired by the Borrower and is subject to operating
lease(s) entered into on or before August 31, 2008, and (B) $10,000,000 in each
fiscal year from and after fiscal year 2009, provided that if the Borrower secures
operating leases for at least $2,000,000 of the equipment listed on Schedule III to
the Tenth Amendment on or before August 31, 2008, the annual amount in this section
(B) shall be increased to $12,000,000.
2.16 Clause (4) of Section 4.5(L) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
(4) any Default or Event of Default under the Senior Note Indenture or the
Second Lien Credit Agreement, Borrower’s making of any Change of Control Offer or
Asset Sale Offer (each as defined in the Senior Note Indenture) or Borrower’s
receipt of notice of acceleration of the Senior Notes or Second Lien Obligations; or
2.17 Section 6.1(B) of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
(B) Default in Other Agreements. (1) The occurrence of a Default or
Event of Default under the Senior Note Indenture or the Second Lien Credit Agreement
or (2) the occurrence of any event that permits the Senior Note
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Trustee or any holder of any Senior Notes to require the Borrower to repurchase
the Senior Notes or any portion thereof other than as a result of an Asset Sale
Offer (as defined in the Senior Note Indenture) or (3) failure of Borrower or any of
its Restricted Subsidiaries to pay when due or within any applicable grace period
any principal or interest on Indebtedness (other than the Loans and other than the
Senior Notes and the Second Lien Obligations) or any Contingent Obligations (other
than Contingent Obligations with respect to the Loans or the Senior Notes or the
Second Lien Obligations) or (4) breach or default of Borrower or any of its
Restricted Subsidiaries, or the occurrence of any condition or event, with respect
to any Indebtedness (other than the Loans and other than the Senior Notes and the
Second Lien Obligations) or any Contingent Obligations (other than Contingent
Obligations with respect to the Loans or the Senior Notes and the Second Lien
Obligations), if the effect of such failure to pay, breach, default or occurrence is
to cause or to permit the holder or holders then to cause, Indebtedness and/or
Contingent Obligations having an individual principal amount in excess of $1,000,000
(or the equivalent thereof in another currency) or having an aggregate principal
amount in excess of $2,000,000 (or the equivalent thereof in another currency) to
become or be declared due prior to their stated maturity; or
2.18 Section 9 of the Credit Agreement is hereby amended by inserting the following as
Section 9.20 thereof:
9.20 Intercreditor Agreement. Each Lender hereby authorizes and
directs Agent to enter into the Intercreditor Agreement on behalf of such Lender and
agrees that Agent, in its various capacities thereunder, may take such actions on
its behalf as is contemplated by the terms of the Intercreditor Agreement
2.19 The following definitions set forth in Section 10.1 of the Credit Agreement are
hereby amended and restated in their entirety to read as follows:
“Canadian Restricted Subsidiary” means Portola Packaging Canada Ltd., a
corporation amalgamated under the laws of British Columbia.
“EBITDA” means, for any period, the sum (without duplication) of the following
for Borrower and its Restricted Subsidiaries on a Consolidated basis: (a) Net Income
for the period, (b) any provision for (or less any benefit from) income and
franchise taxes included in the determination of Net Income, (c) interest expense
deducted in the determination of Net Income, (d) amortization and depreciation
deducted in determining Net Income, (e) losses (or less gains) from Asset
Dispositions or other non-cash items included in the determination of Net Income
(excluding sales, expenses or losses related to current assets), (f) extraordinary
losses (or less gains), as defined under GAAP, net of related tax effects, included
in the determination of Net Income, (g) non-recurring restructuring charges approved
by Requisite Lenders, including those specifically listed on Part 1 of Schedule I
attached to the Tenth Amendment, (h) amounts not exceeding $7,000,000 in the
aggregate paid by Borrower to Blackhawk Xxxxxxx,
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Inc. (“Blackhawk”) pursuant to that settlement agreement dated May 31, 2006
between Borrower and Blackhawk to the extent such amounts are deducted in
determining Net Income, and (i) those items specifically listed on Part 2 of
Schedule I to the Tenth Amendment.
“Loan Documents” means this Agreement, the Notes, the Security Documents, the
Negative Pledge Agreements, the Intercreditor Agreement and all other instruments,
documents and agreements executed by or on behalf of any Loan Party and delivered
concurrently herewith or at any time hereafter to or for the benefit of Agent or any
Lender in connection with the Loans and other transactions contemplated by this
Agreement, all as amended, supplemented or modified from time to time.
“Loan Party” means, collectively, Borrower and each Subsidiary thereof which is
or becomes a party to any Loan Document. As of the Tenth Amendment Date, the Loan
Parties are Borrower, Canadian Restricted Subsidiary, Mexican Restricted Subsidiary,
Tech Industries, Portola Allied Tools, Inc. and UK Restricted Subsidiary.
“Restricted Subsidiary” means any Subsidiary of Borrower, whether existing on
or after the date hereof, unless such Subsidiary is an Unrestricted Subsidiary or is
designated an Unrestricted Subsidiary prior to the date it becomes a Subsidiary.
Upon the effectiveness of the Tenth Amendment, each of the China Restricted
Subsidiary, Czech Restricted Subsidiary, Hong Kong Restricted Subsidiary and New
Zealand Restricted Subsidiary will be deemed a Restricted Subsidiary.
“Tech Industries” means Portola Tech International, Inc. (f/k/a Tech
Industries, Inc.), a Rhode Island corporation.
“UK
Restricted Subsidiary” means, collectively, Portola
Packaging Limited, a corporation organized under the laws of England and Wales, and
Portola Limited, a corporation organized under the laws of England and Wales.
2.20 Clause (e) of the definition of “Indebtedness” set forth in Section 10.1 of the
Credit Agreement is hereby amended and restated in its entirety to read as follows:
“(e) any obligation owed for all or any part of the deferred purchase price of
property or services if the purchase price is due more than one (1) year from the
date the obligation is incurred or is evidenced by a note or similar written
instrument;”
2.21 Section 10.1 of the Credit Agreement is hereby amended by adding the following
definitions in their proper alphabetical order:
“China Restricted Subsidiary” means Shanghai Portola Packaging Company Limited,
a corporation organized under the laws of the People’s Republic of China.
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“Czech Restricted Subsidiary” means Portola (S.R.O.), a corporation organized
under the laws of the Czech Republic.
“Hong Kong Restricted Subsidiary” means Portola (Asia Pacific) Holding Limited,
a corporation organized under the laws of Hong Kong.
“Intercreditor Agreement” means that certain Intercreditor Agreement of even
date herewith among the Loan Parties, Agent and Second Lien Agent, as the same may
be amended, restated or otherwise modified in accordance with the terms thereof.
“New Zealand Restricted Subsidiary” means Portola (ANZ) Limited, a corporation
organized under the laws of New Zealand.
“Second Lien Agent” means the “Agent,” as such term is defined in the
Intercreditor Agreement.
“Second Lien Credit Agreement” means the “Second Lien Credit Agreement,” as
such term is defined in the Intercreditor Agreement.
“Second Lien Lenders” means the “Second Lien Creditors,” as such term is
defined in the Intercreditor Agreement.
“Second Lien Loan Documents” means the “Second Lien Documents,” as such term is
defined in the Intercreditor Agreement.
“Second Lien Obligations” means the “Obligations” under and as defined in the
Second Lien Credit Agreement.
“Second Lien Term Loan” means the term loans advanced by the Second Lien
Lenders pursuant to the Second Lien Credit Agreement in an aggregate principal
amount of $15,000,000.
“Tenth Amendment” means that Tenth Amendment to Fourth Amended and Restated
Credit Agreement dated as of April 14, 2008 among Borrower and GECC, as Agent,
Issuing Lender and Lender.
“Tenth Amendment Date” means April 14, 2008.
2.22 Exhibit 4.5(F) (Borrowing Base Certificate) to the Credit Agreement is hereby
replaced with Exhibit 4.5(F) (Borrowing Base Certificate) attached hereto.
Section 3. Conditions. The effectiveness of this Agreement is subject to Borrower’s
satisfaction of the following conditions on or before the date hereof in a manner satisfactory to
the Agent:
3.1 Executed Agreement. Executed signature pages for this Agreement signed by Agent,
Lender, Issuing Lender and Borrower shall have been delivered to Agent.
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3.2 Executed Second Lien Loan Documents. The Loan Parties and the Second Lien
Creditors shall have executed and delivered the Second Lien Loan Documents, and the net proceeds of
the Second Lien Term Loan, in an amount not less than $14,600,000, shall have been applied against
the outstanding balance of the Revolving Loans.
3.3 Executed Intercreditor Agreement. Executed signature pages for the Intercreditor
Agreement signed by Agent, Second Lien Agent and the Loan Parties shall have been delivered to
Agent.
3.4 Other Documents. The Loan Parties shall have executed and delivered to the Agent
all opinions, documents and materials identified on Annex A attached hereto.
3.5 Continuation of Representations and Warranties. The representations and
warranties made by the Loan Parties contained in the Credit Agreement and the other Loan Documents
shall be true and correct in all material respects on and as of the date hereof with the same
effect as if made on and as of the date hereof (except to the extent such representations and
warranties expressly relate to an earlier date).
3.6 No Existing Default. As of the date hereof and after giving effect to this
Agreement, no Default or Event of Default shall have occurred and be continuing or shall result
from the consummation of the transactions contemplated hereunder.
3.7 Amendment Fee. An amendment fee equal to $900,000 (the “Amendment Fee”)
shall be fully earned on the Tenth Amendment Date by GECC, as the sole Lender on the Tenth
Amendment Date, and shall be payable as follows: (a) Borrower shall have paid to Agent, for the
benefit of GECC, a portion of the Amendment Fee equal to $450,000 on the Tenth Amendment Date, and
(b) Borrower shall pay to Agent, for the benefit of GECC, the remaining portion of the Amendment
Fee equal to $450,000 (the “Deferred Portion”) on April 15, 2009 (the “Deferred Portion
Payment Date”); provided, that if, prior to the Deferred Portion Payment Date, the Revolving
Loan Commitment is reduced from $60,000,000 to $45,000,000 or less (other than as a result of an
Event of Default), then the Deferred Portion shall be reduced by the same percentage (for example,
if the Revolving Loan Commitment is reduced by 50% from $60,000,000 to $30,000,000, then the
Deferred Portion shall be reduced by 50% from $450,000 to $225,000).
3.8 Payments of Costs and Expenses. Borrower shall have reimbursed Agent for its
costs and expenses incurred in connection with this Agreement (including reasonable legal and
attorneys’ fees and expenses) to the extent requested by Agent on the date hereof.
Section 4. Representations and Warranties of Borrower. Borrower represents and
warrants that:
(i) the execution, delivery and performance by the Borrower of this Agreement have been duly
authorized by all necessary corporate action and this Agreement is a legal, valid and binding
obligation of the Borrower enforceable against the Borrower in accordance with its terms, except
as its enforceability may be affected by the effect of (i) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in
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effect relating to or affecting the rights or remedies of creditors generally, and (ii)
general principles of equity;
(ii) each of the representations and warranties contained in the Credit Agreement is true and
correct in all material respects on and as of the date hereof as if made on the date hereof,
except to the extent that such representations and warranties expressly relate to an earlier date;
(iii) neither the execution, delivery and performance of this Agreement nor the consummation
of the transactions contemplated hereby does or shall contravene, result in a breach of, or
violate (i) any provision of any Loan Party’s certificate or articles of incorporation or bylaws,
(ii) any law or regulation, or any order or decree of any court or government instrumentality, or
(iii) any indenture, mortgage, deed of trust, lease, agreement or other instrument to which any
Loan Party or any of its Subsidiaries is a party or by which any Loan Party or any of its
Subsidiaries or any of their property is bound; and
(iv) each of Canadian Restricted Subsidiary, Tech Industries, Portola Allied Tools, Inc.,
Mexican Restricted Subsidiary, UK Restricted Subsidiary, China Restricted Subsidiary,
Czech Restricted Subsidiary, Hong Kong Restricted Subsidiary and New Zealand Restricted Subsidiary
is a “Restricted Subsidiary” (as such term is defined in the Senior Note Indenture).
Section 5. Post-Closing Undertakings. Notwithstanding any provision in the Credit
Agreement to the contrary, Borrower shall deliver (or cause the delivery of) to Agent each item set
forth on Schedule II hereto in form and substance reasonably satisfactory to Agent, and/or take the
action described on said Schedule II in a manner reasonably satisfactory to Agent, in each case
within the time periods set forth on such Schedule (unless such time periods are extended by Agent
in its sole discretion). Any failure to comply with any of the foregoing undertakings shall
constitute an immediate Event of Default under the Credit Agreement (it being understood that
Borrower’s failure to cause Hong Kong Restricted Subsidiary, Czech Restricted Subsidiary and/or New
Zealand Restricted Subsidiary to become a Loan Party pursuant to paragraph 3, 4 or 5, as
applicable, of Schedule II shall not in and of itself constitute an Event of Default if Borrower
shall have used its best efforts to attempt to do so).
Section 6. Reference To And Effect Upon The Credit Agreement.
(i) Except as specifically provided herein, the Credit Agreement and the other Loan Documents
shall remain in full force and effect and are hereby ratified and confirmed.
(ii) The execution, delivery and effectiveness of this Agreement shall not operate as a
waiver of any right, power or remedy of Agent or any Lender under the Credit Agreement or any Loan
Document, nor constitute a waiver of any provision of the Credit Agreement or any Loan Document,
except as specifically set forth herein.
(iii) This Agreement shall be deemed to be a Loan Document.
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Section 7. Costs And Expenses. Borrower agrees to reimburse Agent on the date hereof
for all fees, costs and expenses, including the fees, costs and expenses of counsel or other
advisors for advice, assistance, or other representation in connection with this Agreement.
Section 8. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAWS PROVISIONS) OF THE STATE OF
ILLINOIS.
Section 9. Headings. Section headings in this Agreement are included herein for
convenience of reference only and shall not constitute a part of this Agreement for any other
purposes.
Section 10. Counterparts. This Agreement 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.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto hereupon set their hands as of the date first written
above.
PORTOLA PACKAGING, INC. | ||||||
By: | /s/ Xxxxx X. Xxxxxxxxx |
|||||
Title: | President and Chief Executive Officer | |||||
GENERAL ELECTRIC CAPITAL CORPORATION, | ||||||
as Agent, Issuing Lender and Lender | ||||||
By: | /s/ Xxxxx Xxxxxxxxxx |
|||||
Title: | Authorized Signatory | |||||
CONSENT AND REAFFIRMATION (SUBSIDIARY GUARANTORS)
Each of the undersigned hereby (i) acknowledges receipt of a copy of the foregoing Tenth
Amendment to Credit Agreement; (ii) consents to Borrower’s execution and delivery thereof; (iii)
affirms that nothing contained therein shall modify in any respect whatsoever its guaranty of the
obligations of Borrower to Agent and Lenders and reaffirms that such guaranty is and shall continue
to remain in full force and effect and that each Loan Document to which it is a party or otherwise
bound and all Collateral encumbered thereby will continue to guaranty or secure, as the case may
be, to the fullest extent possible, the payment and performance of all obligations under or in
respect of such guaranty and such other Loan Documents; and (iv) confirms that, as of the date
hereof, it does not have, and hereby waives, remises and releases any claims or causes of action of
any kind against Agent or any of the Lenders or any of their officers, directors, employees,
agents, attorneys, or any of the Lenders or any of their officers, directors, employees, agents,
attorneys or representatives, or against any of their respective predecessors, successors, or
assigns relating in any way to any event, circumstance, action, or omission relative to any of the
Loan Documents or any transaction contemplated thereby, from the beginning of time through the date
hereof. Although each of the undersigned has been informed of the matters set forth herein and has
acknowledged and consented to same, each of the undersigned understands that Agent and Lenders have
no obligation to inform it of such matters in the future or to seek its acknowledgment or consent
to future Agreements or waivers, and nothing herein shall create such a duty.
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned have executed this Tenth Amendment on and as of the date
of such Agreement.
PORTOLA PACKAGING CANADA LTD. | ||||||
By: | /s/ Xxxx Xxxxxx |
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Name: | Xxxx Xxxxxx |
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Title: | Vice President of North American
Closures |
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PORTOLA ALLIED TOOL, INC. | ||||||
By: | /s/ Xxxxx X. Xxxxxxxxx |
|||||
Name: | Xxxxx X. Xxxxxxxxx |
|||||
Title: | President and Chief Executive
Officer |
|||||
PORTOLA PACKAGING LIMITED | ||||||
By: | /s/ Xxxxx Xxxxxxxxxxx |
|||||
Name: | Xxxxx Xxxxxxxxxxx |
|||||
Title: | Managing Director of UK and
European Operations |
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PORTOLA PACKAGING, INC. MEXICO S.A. de C.V. | ||||||
By: | /s/ Xxxx Xxxxxx |
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Name: | Xxxx Xxxxxx |
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Title: | Vice President of North American
Closures |
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PORTOLA TECH INTERNATIONAL, INC. | ||||||
By: | /s/ Xxxxx X. Xxxxxxxxx |
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Name: | Xxxxx X. Xxxxxxxxx |
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Title: | President and Chief Executive
Officer |
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PORTOLA LIMITED | ||||||
By: | /s/ Xxxxx Xxxxxxxxxxx |
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Name: | Xxxxx Xxxxxxxxxxx |
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Title: | Managing Director of UK and
European Operations |
Schedule II
Post-Closing Undertakings
1. | Within thirty (30) days following the Tenth Amendment Date, Borrower shall deliver to Agent, bank account control agreements in favor of Agent, each in form and substance reasonably satisfactory to Agent, relating to accounts maintained by the Loan Parties at Union Bank of California and FirstMerit Bank. |
2. | Borrower shall use commercially reasonable efforts to obtain and deliver to Agent, within thirty (30) days following the Tenth Amendment Date, a landlord waiver with respect to the following leased location: 0000 Xxxxxxx, Xxxxxxxx, Xxxxxx, in form and substance reasonably satisfactory to Agent. |
3. | Borrower shall use its best efforts to cause Hong Kong Restricted Subsidiary, within 60 days following the Tenth Amendment Date, to guaranty the Obligations and to grant to Agent, for the benefit of Agent and Lenders, a Lien against all of its property to secure the Obligations (including, without limitation, a pledge of 100% of the capital stock of China Restricted Subsidiary) in accordance with applicable law and pursuant to documentation reasonably requested by Agent (upon the completion of which Hong Kong Restricted Subsidiary, but not China Restricted Subsidiary, will become a Loan Party). If Borrower shall fail to cause Hong Kong Restricted Subsidiary to become a Loan Party as provided above within 60 days following the Closing Date, then, Agent may, in its sole discretion and in addition to (and not in lieu of) any other rights and remedies (if any) available to Agent, immediately upon written notice to Borrower, (a) increase the Index Rate Margin to 3.50% per annum and the LIBOR Margin to 5.00% per annum and (b) exclude from the calculation of “EBITDA” for all purposes under the Credit Agreement (including, without limitation, for purposes of calculating the Senior Leverage Borrowing Base) the EBITDA contribution of Hong Kong Restricted Subsidiary and China Restricted Subsidiary in excess of $3,000,000 per 12-month period and exclude from the Working Capital/Fixed Asset Borrowing Base as of any date any portion thereof attributable to Hong Kong Restricted Subsidiary and China Restricted Subsidiary in excess of $6,500,000 in the aggregate. |
4. | Borrower shall use its best efforts to cause Czech Restricted Subsidiary, within 60 days following Agent’s request, to guaranty the Obligations and to grant to Agent, for the benefit of Agent and Lenders, a Lien against all of its property to secure the Obligations, in accordance with applicable law and pursuant to documentation reasonably requested by Agent (upon the completion of which such Person shall become a Loan Party). If Borrower shall fail to cause Czech Restricted Subsidiary to become a Loan Party as provided above within 60 days following Agent’s request, then Agent may, in its sole discretion and in addition to (and not in lieu of) any other rights and remedies (if any) available to Agent, immediately upon written notice to Borrower exclude from the calculation of “EBITDA” for all purposes under the Credit Agreement (including, without limitation, for purposes of calculating the Senior Leverage Borrowing Base) the |
EBITDA contribution of Czech Restricted Subsidiary in excess of $500,000 per 12-month period and exclude from the Working Capital/Fixed Asset Borrowing Base as of any date any portion thereof attributable to Czech Restricted Subsidiary in excess of $3,000,000 in the aggregate. |
5. | Borrower shall use its best efforts to cause New Zealand Restricted Subsidiary, within 60 days following Agent’s request, to guaranty the Obligations and to grant to Agent, for the benefit of Agent and Lenders, a Lien against all of its property to secure the Obligations, in accordance with applicable law and pursuant to documentation reasonably requested by Agent (upon the completion of which such Person shall become a Loan Party). If Borrower shall fail to cause New Zealand Restricted Subsidiary to become a Loan Party as provided above within 60 days following Agent’s request, then Agent may, in its sole discretion and in addition to (and not in lieu of) any other rights and remedies (if any) available to Agent, immediately upon written notice to Borrower exclude from the calculation of “EBITDA” for all purposes under the Credit Agreement (including, without limitation, for purposes of calculating the Senior Leverage Borrowing Base) the EBITDA contribution of New Zealand Restricted Subsidiary in excess of $500,000 per 12-month period and exclude from the Working Capital/Fixed Asset Borrowing Base as of any date any portion thereof attributable to New Zealand Restricted Subsidiary in excess of $1,200,000 in the aggregate. |
Schedule III
Surveyor 900 X-Ray Machine
Xxxxxx Xxxxxx 450 ton C3 3500
Xxxxxx Xxxxxx 450 ton C3 3500
FISA Ultrasonic Cleaner
FISA Ultrasonic Cleaner
X.X. Xxxxxxx Box Erector
PBI Sensor Bag Leak Detector
FISA Ultrasonic Cleaner
Xxxxx and Xxxx Spark Leak Detector
SACMI CCM64M Molder/Slitter
Xxxxxx Xxxxxx 575 ton C2 3500
Xxxxx and Xxxx Spark Leak Detector
Xxxxxx Xxxxxx 450 ton C3 3500
Xxxxxx Xxxxxx 450 ton C3 3500
FISA Ultrasonic Cleaner
FISA Ultrasonic Cleaner
X.X. Xxxxxxx Box Erector
PBI Sensor Bag Leak Detector
FISA Ultrasonic Cleaner
Xxxxx and Xxxx Spark Leak Detector
SACMI CCM64M Molder/Slitter
Xxxxxx Xxxxxx 575 ton C2 3500
Xxxxx and Xxxx Spark Leak Detector