THIRD AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF SEPTEMBER 29, 2000 by and among PORTOLA PACKAGING, INC. as Borrower HELLER FINANCIAL, INC. as Agent and THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO as Lenders
Exhibit 2.1
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF SEPTEMBER 29, 2000
by and among
PORTOLA PACKAGING, INC.
as Borrower
XXXXXX FINANCIAL, INC.
as Agent
and
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
as Lenders
TABLE OF CONTENTS
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SECTION 1 AMOUNTS AND TERMS OF LOANS | 1 | |||||||||||||||||||||
1.1 | Loans | 1 | ||||||||||||||||||||
1.2 | Interest and Related Fees | 7 | ||||||||||||||||||||
1.3 | Other Fees and Expenses | 12 | ||||||||||||||||||||
1.4 | Payments | 14 | ||||||||||||||||||||
1.5 | Prepayments | 14 | ||||||||||||||||||||
1.6 | Maturity | 15 | ||||||||||||||||||||
1.7 | Loan Accounts | 15 | ||||||||||||||||||||
1.8 | Yield Protection | 16 | ||||||||||||||||||||
1.9 | Taxes | 17 | ||||||||||||||||||||
1.10 | Optional Prepayment/Replacement of Lenders | 19 | ||||||||||||||||||||
1.11 | Liability Unconditional | 20 | ||||||||||||||||||||
SECTION 2 AFFIRMATIVE COVENANTS | 21 | |||||||||||||||||||||
2.1 | Compliance With Laws and Contractual Obligations | 21 | ||||||||||||||||||||
2.2 | Maintenance of Properties; Insurance | 22 | ||||||||||||||||||||
2.3 | Inspection; Lender Meeting | 23 | ||||||||||||||||||||
2.4 | Organizational Existence | 23 | ||||||||||||||||||||
2.5 | Further Assurances | 23 | ||||||||||||||||||||
2.6 | Holding Company | 24 | ||||||||||||||||||||
SECTION 3 NEGATIVE COVENANTS | 24 | |||||||||||||||||||||
3.1 | Indebtedness | 24 | ||||||||||||||||||||
3.2 | Liens and Related Matters | 25 | ||||||||||||||||||||
3.3 | Investments | 27 | ||||||||||||||||||||
3.4 | Contingent Obligations | 30 | ||||||||||||||||||||
3.5 | Restricted Junior Payments | 32 | ||||||||||||||||||||
3.6 | Restriction on Fundamental Changes | 33 | ||||||||||||||||||||
3.7 | Disposal of Assets or Subsidiary Stock | 33 | ||||||||||||||||||||
3.8 | Transactions with Affiliates | 35 | ||||||||||||||||||||
3.9 | Conduct of Business | 35 | ||||||||||||||||||||
3.10 | Changes Relating to Indebtedness | 35 | ||||||||||||||||||||
3.11 | Fiscal Year | 36 | ||||||||||||||||||||
3.12 | Press Release; Public Offering Materials | 36 | ||||||||||||||||||||
3.13 | Subsidiaries | 36 | ||||||||||||||||||||
3.14 | Bank Accounts | 36 | ||||||||||||||||||||
3.15 | Applications under CCAA | 36 | ||||||||||||||||||||
3.16 | Inactive Subsidiaries | 37 |
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SECTION 4 FINANCIAL COVENANTS/REPORTING | 37 | |||||||||||||||||||||
4.1 | Lease Limits | 37 | ||||||||||||||||||||
4.2 | Fixed Charge Coverage | 37 | ||||||||||||||||||||
4.3 | Total Indebtedness to EBITDA Ratio | 37 | ||||||||||||||||||||
4.4 | Maintenance of Minimum Availability | 38 | ||||||||||||||||||||
4.5 | Financial Statements and Other Reports | 38 | ||||||||||||||||||||
4.6 | Accounting Terms; Utilization of GAAP for Purposes of Calculations Under Agreement | 43 | ||||||||||||||||||||
SECTION 5 REPRESENTATIONS AND WARRANTIES | 44 | |||||||||||||||||||||
5.1 | Disclosure | 44 | ||||||||||||||||||||
5.2 | No Material Adverse Effect | 44 | ||||||||||||||||||||
5.3 | No Conflict | 44 | ||||||||||||||||||||
5.4 | Organization, Powers, Capitalization and Good Standing | 44 | ||||||||||||||||||||
5.5 | Financial Statements and Projections | 45 | ||||||||||||||||||||
5.6 | Title to Properties, Etc. | 46 | ||||||||||||||||||||
5.7 | Intellectual Property | 46 | ||||||||||||||||||||
5.8 | Investigations, Audits, Etc. | 47 | ||||||||||||||||||||
5.9 | Employee Matters | 47 | ||||||||||||||||||||
5.10 | Solvency | 47 | ||||||||||||||||||||
5.11 | Year 2000 | 47 | ||||||||||||||||||||
5.12 | Use of Proceeds; Margin Regulations | 48 | ||||||||||||||||||||
SECTION 6 DEFAULT, RIGHTS AND REMEDIES | 48 | |||||||||||||||||||||
6.1 | Event of Default | 48 | ||||||||||||||||||||
6.2 | Suspension or Termination of Commitment | 53 | ||||||||||||||||||||
6.3 | Acceleration and other Remedies | 53 | ||||||||||||||||||||
6.4 | Performance by Agent | 54 | ||||||||||||||||||||
6.5 | Appointment of Receiver | 54 | ||||||||||||||||||||
SECTION 7 CONDITIONS TO LOANS | 55 | |||||||||||||||||||||
7.1 | Conditions to Initial Loans | 55 | ||||||||||||||||||||
7.2 | Conditions to All Loans | 55 | ||||||||||||||||||||
SECTION 8 ASSIGNMENT AND PARTICIPATION | 56 | |||||||||||||||||||||
8.1 | Assignments and Participations | 56 | ||||||||||||||||||||
8.2 | Agent | 58 | ||||||||||||||||||||
8.3 | Amendments, Consents and Waivers | 64 | ||||||||||||||||||||
8.4 | Set Off and Sharing of Payments | 65 | ||||||||||||||||||||
8.5 | Disbursement of Funds | 65 | ||||||||||||||||||||
8.6 | Disbursements of Advances; Payment | 66 |
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SECTION 9 MISCELLANEOUS | 69 | |||||||||||||||||||||
9.1 | Indemnities | 69 | ||||||||||||||||||||
9.2 | Amendments and Waivers | 70 | ||||||||||||||||||||
9.3 | Notices | 71 | ||||||||||||||||||||
9.4 | Failure or Indulgence Not Waiver; Remedies Cumulative | 72 | ||||||||||||||||||||
9.5 | Marshalling; Payments Set Aside | 72 | ||||||||||||||||||||
9.6 | Severability | 72 | ||||||||||||||||||||
9.7 | Lenders' Obligations Several; Independent Nature of Lenders' Rights | 72 | ||||||||||||||||||||
9.8 | Headings | 73 | ||||||||||||||||||||
9.9 | Applicable Law | 73 | ||||||||||||||||||||
9.10 | Successors and Assigns | 73 | ||||||||||||||||||||
9.11 | No Fiduciary Relationship; Limited Liability | 73 | ||||||||||||||||||||
9.12 | Construction | 73 | ||||||||||||||||||||
9.13 | Confidentiality | 73 | ||||||||||||||||||||
9.14 | CONSENT TO JURISDICTION | 74 | ||||||||||||||||||||
9.15 | WAIVER OF JURY TRIAL | 75 | ||||||||||||||||||||
9.16 | Survival of Warranties and Certain Agreements | 75 | ||||||||||||||||||||
9.17 | Entire Agreement | 75 | ||||||||||||||||||||
9.18 | Counterparts; Effectiveness | 75 | ||||||||||||||||||||
9.19 | Judgment Currency | 75 | ||||||||||||||||||||
SECTION 10 DEFINITIONS | 76 | |||||||||||||||||||||
10.1 | Certain Defined Terms | 76 | ||||||||||||||||||||
10.2 | Other Definitional Provisions | 94 |
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DEFINED TERMS
Page | ||||
Accounting Changes | 40 | |||
Accounts | 71 | |||
Adjustment Date | 7 | |||
Affected Lender | 17 | |||
Affiliate | 72 | |||
Agent | 72 | |||
Agreed Currency | 71 | |||
Agreement | 72 | |||
Asset Disposition | 72 | |||
Assignment and Acceptance Agreement | 72 | |||
Availability | 72 | |||
Bank Line Issuer | 3 | |||
Bankruptcy Law | 72 | |||
Base Rate | 7 | |||
Base Rate Loan | 73 | |||
Base Rate Margin | 7 | |||
Borrowers | 73 | |||
Borrowing Base | 2 | |||
Borrowing Base Availability | 2 | |||
Borrowing Base Certificate | 2 | |||
Breakage Fee | 12 | |||
Business Day | 73 | |||
Calculation Period | 7 | |||
Canadian Dollars | 73 | |||
Canadian Pension Plan | 73 | |||
Canadian Restricted Subsidiaries | 73 | |||
Canadian Security Documents | 73 | |||
Capital Expenditures | 74 | |||
Capital Stock | 74 | |||
Cash Equivalents | 27 | |||
Cash Management Obligations | 74 | |||
CCAA | 34 | |||
CCAA Plan | 34 | |||
Certificate of Exemption | 17 | |||
Change of Control | 74 | |||
Chase Warrant | 75 | |||
Closing Date | 75 | |||
Collateral | 76 | |||
Commitment Termination Date | 1 | |||
Consolidated | 76 | |||
Consolidated Restricted Subsidiary | 76 | |||
Consolidated Subsidiary | 76 | |||
Contingent Obligation | 29 | |||
Contractual Obligations | 20 | |||
Daily Interest Amount | 63 | |||
Daily Interest Rate | 63 | |||
Daily Loan Balance | 62 | |||
Default | 76 | |||
Defaulting Lender | 64 | |||
Disqualified Stock | 76 | |||
Domestic Borrower | 1 | |||
Domestic Lenders | 1 | |||
EBITDA | 76 | |||
Environmental Claims | 77 |
Page | ||||
Equipment | 77 | |||
Equity Interests | 77 | |||
ERISA | 77 | |||
Eurocurrency Liabilities | 8 | |||
Event of Default | 45 | |||
Existing Revolving Loan | 1 | |||
Xxxxxxxxx Property | 77 | |||
Federal Funds Effective Rate | 77 | |||
Fee Letter | 12 | |||
Fixed Charge Coverage | 77 | |||
Fixed Charges | 77 | |||
Foreign Lender | 17 | |||
Funding Date | 52 | |||
GAAP | 78 | |||
Hazardous Material | 78 | |||
Xxxxxx | 1 | |||
Xxxxxx Warrant | 78 | |||
Holding Company | 22 | |||
Inactive Subsidiaries | 79 | |||
Indebtedness | 79 | |||
Indemnitees | 65 | |||
Intellectual Property | 43 | |||
Interest Period | 8 | |||
Interest Rate Agreement | 79 | |||
Interest Ratio | 63 | |||
Interest Settlement Date | 63 | |||
Inventory | 79 | |||
Investment | 27 | |||
IRC | 79 | |||
Issuing Lender | 80 | |||
Lender | 80 | |||
Letter of Credit Liability | 80 | |||
Letter of Non-Exemption | 17 | |||
Letters of Credit | 2 | |||
LIBOR | 7 | |||
LIBOR Loan | 80 | |||
LIBOR Margin | 8 | |||
Lien | 80 | |||
Loan | 81 | |||
Loan Documents | 81 | |||
Loan Party | 81 | |||
Loans | 81 | |||
Material Adverse Effect | 81 | |||
Maximum Revolving Loan Balance | 2 | |||
Mortgage | 81 | |||
Mortgaged Property | 43 | |||
Negative Pledge Agreements | 81 | |||
Net Proceeds | 81, 82 | |||
Note | 82 | |||
Notes | 82 | |||
notice of default | 60 | |||
Obligations | 82 | |||
Operating Cash Flow | 82 | |||
Other Capitalized Costs | 82 | |||
Other Currency | 71 | |||
Permitted Encumbrances | 24 | |||
Permitted Investors | 75 | |||
Person | 82 |
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Page | ||||
Personal Property Security Legislation | 83 | |||
Pounds Sterling | 83 | |||
PPE | 83 | |||
PPSA | 83 | |||
Priority Payable Reserve | 83 | |||
Pro Forma | 84 | |||
Pro Rata Share | 84 | |||
Proceeds | 84 | |||
Projections | 84 | |||
Public Equity Offering | 84 | |||
Real Estate | 85 | |||
Receiver | 51 | |||
Register | 53 | |||
Related Fund | 54 | |||
Related Party | 75 | |||
Related Transactions | 85 | |||
Related Transactions Documents | 85 | |||
Replacement Lender | 18 | |||
Requisite Lenders | 85 | |||
Restricted Junior Payment | 30 | |||
Restricted Subsidiary | 85 | |||
Revolving Credit Exposure | 85 | |||
Revolving Loan Commitment | 2 | |||
Revolving Loans | 2 | |||
Second Amended Credit Agreement | 1 | |||
Security Agreement | 85 | |||
Security Documents | 86 | |||
Selected Interest Rates | 7 | |||
Senior Note Documents | 86 | |||
Senior Note Indenture | 86 | |||
Senior Notes | 86 | |||
Settlement Date | 62 | |||
Statement | 36 | |||
Subordinated Indebtedness | 86 | |||
Subsidiary | 86 | |||
Total Indebtedness | 86 | |||
UK Restricted Subsidiary | 86 | |||
UK Security Documents | 86 | |||
Unfinanced Capital Expenditures | 87 | |||
Unqualified | 36 | |||
Unrestricted Subsidiary | 87 | |||
US Dollar | 87 | |||
US Security Documents | 87 | |||
Year 2000 Compliant | 44 |
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THIRD AMENDED AND RESTATED CREDIT AGREEMENT
This THIRD AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”) is dated as of September 29, 2000, and entered into by and among Portola Packaging, Inc., a Delaware corporation (“Borrower”), the financial institutions who are or hereafter become parties to this Agreement as “Lenders”, (as such term is defined in subsection 10.1 hereof), and XXXXXX FINANCIAL, INC., a Delaware corporation (in its individual capacity, “Xxxxxx”), with its principal place of business at 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, as the initial “Issuing Lender” of Letters of Credit (defined below) and as “Agent” (as such term is defined in subsection 10.1 hereof).
WHEREAS, Borrower and Xxxxxx are parties to that certain Second Amended and Restated Credit and Security Agreement dated as of October 2, 1995, as amended (the “Second Amended Credit Agreement”), pursuant to which Xxxxxx extended to Borrower a $35,000,000 revolving loan (the “Existing Revolving Loan”); and
WHEREAS, the Lenders have agreed to increase the aggregate amount of the Revolving Loan Commitment and to make certain other modifications to the terms of the Second Amended Credit Agreement as provided in this Agreement. In connection therewith, the parties wish to amend and restate the Second Amended Credit Agreement to read in its entirety as set forth below.
SECTION 1
“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 Fifty Million Dollars ($50,000,000) (as the same may be reduced from time to time hereunder, the “Revolving Loan Commitment”). Advances or amounts outstanding under the Revolving Loan Commitment will be called “Revolving Loans”. Revolving Loans may be repaid and reborrowed. All Revolving Loans shall be repaid in full on the Commitment Termination Date. If at any time the outstanding Revolving Loans exceed the Maximum Revolving Loan Balance, Lenders shall not be obligated to make Revolving Loans, no additional Letters of Credit shall be issued and Revolving Loans must be repaid immediately in an amount sufficient to eliminate any excess. Revolving Loans may be requested in any amount with one (1) Business Day’s prior written or telephonic notice required for amounts equal to or greater than $5,000,000. For amounts less than $5,000,000, written or telephonic notice must be provided by noon (Chicago, Illinois time) on the day on which the Revolving Loan is to be made. All Revolving Loans to be made as LIBOR Loans require three (3) Business Days’ prior written notice. All Revolving Loans requested telephonically must be confirmed in writing within twenty-four (24) hours. Written notices for funding requests shall be in the form attached as Exhibit 1.1(A). Neither Agent nor any Lender shall incur any liability to Borrower for acting upon any telephonic notice that Agent believes in good faith to have been given by a duly authorized officer or other person authorized to borrow on behalf of Borrower. The “Maximum Revolving Loan Balance” will be the lesser of (a) the “Borrowing Base” (as calculated on Exhibit 4.5(F), the “Borrowing Base Certificate”) less outstanding Letter of Credit Liability (“Borrowing Base Availability”) or (b) the Revolving Loan Commitment less outstanding Letter of Credit Liability.
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have purchased from such Issuing Lender a participation in such Letter of Credit (or in its obligation under a risk participation agreement with respect thereto) equal to such Lender’s Pro Rata Share of the aggregate amount available to be drawn under such Letter of Credit.
3
Credit as provided in this subsection 1.1(B)(2), such Issuing Lender shall be entitled to recover such amount on demand from such Lender together with interest at the Base Rate.
4
may extend the term of the Letter of Credit to a date that is later than the thirtieth (30th) day prior to the Commitment Termination Date. An Issuing Lender may elect not to renew any such Letter of Credit and, upon direction by Agent or any Lender, shall not renew any such Letter of Credit at any time during the continuance of an Event of Default, provided that, in the case of a direction by Agent or a Lender, such Issuing Lender receives such directions prior to the date notice of non-renewal is required to be given by such Issuing Lender and such Issuing Lender has had a reasonable period of time to act on such notice.
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Credit issued by such Issuing Lender, the dates and amounts of any draws under such Letters of Credit, the effective date of any increase or decrease in the face amount of any Letters of Credit during such week and the amount of any unreimbursed draws under such Letters of Credit; and (iii) such additional information reasonably requested by Agent from time to time with respect to the Letters of Credit issued by such Issuing Lender. Without limiting the generality of the foregoing, it is expressly understood and agreed by Borrower that the absolute and unconditional obligation of Borrower to reimburse payments made under a Letter of Credit will not be excused by the gross negligence or willful misconduct of the Issuing Lender or a Bank Line Issuer that issued such Letter of Credit. However, the foregoing shall not be construed to excuse an Issuing Lender or any Bank Line Issuer from liability to Borrower to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by Borrower to the extent permitted by applicable law) suffered by Borrower that are caused by such Issuing Lender’s or Bank Line Issuer’s gross negligence or willful misconduct (as determined by a court of competent jurisdiction) in determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. Agent and Lenders shall have no liability or responsibility for any action or omission by any Bank Line Issuer. It is understood and agreed by Borrower that any Issuing Lender or Bank Line Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary. As between Borrower and the issuer of any Letter of Credit, Borrower assumes all risks of the acts and omissions of, or misuse of the Letter of Credit by, the beneficiary thereof.
Bank: ABA No.: Bank Address: Account No.: Reference: |
Bank of America, N.A. 121 000 358 000 Xxxx Xxxxxx Xxxxx Xxx Xxxx, Xxxxxxxxxx 00000 0000-0-00000 Portola Packaging, Inc. |
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Borrower shall provide Agent with written notice of any change in the foregoing instructions at least three (3) Business Days before the desired effective date of such change.
1.2 Interest and Related Fees.
(1) The Revolving Loans and all other Obligations shall bear interest as follows: |
(a) If a Revolving Loan bearing interest by reference to the Base Rate, then at the sum of the Base Rate plus the Base Rate Margin. |
(b) If a Revolving Loan bearing interest by reference to LIBOR, then at the sum of LIBOR plus the LIBOR Margin. |
“Base Rate” means a variable rate of interest per annum equal to the greater of (a) the rate of interest from time to time published by the Board of Governors of the Federal Reserve System in Federal Reserve statistical release H.15 (519) entitled “Selected Interest Rates” as the Bank prime loan rate or (b) the Federal Funds Effective Rate plus fifty (50) basis points. Base Rate also includes rates published in any successor publications of the Federal Reserve System reporting the Bank prime loan rate or its equivalent. The statistical release generally sets forth a Bank prime loan rate for each business day. The applicable Bank prime loan rate for any date not set forth shall be the rate set forth for the last preceding date. In the event the Board of Governors of the Federal Reserve System ceases to publish a Bank prime loan rate or equivalent, the term “Base Rate” shall mean a variable rate of interest per annum equal to the highest of the “prime rate,” “reference rate,” “base rate” or other similar rate as determined by Agent announced from time to time by any of the three largest banks (based on combined capital and surplus) headquartered in New York, New York (with the understanding that any such rate may merely be a reference rate and may not necessarily represent the lowest or best rate actually charged to any customer by such bank).
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“Base Rate Margin” means (i) as of the Closing Date, 1.25% per annum, and (ii) thereafter, as of each May 1, August 1, November 1 and February 1 of each year (each, an “Adjustment Date”), commencing on May 1, 2001, the Base Rate Margin shall be adjusted, if necessary, to the applicable percent per annum set forth in the pricing table set forth on Schedule 1.2 hereto corresponding to the Total Indebtedness to EBITDA for the trailing twelve month period ending on the last day of the most recently completed fiscal quarter prior to the applicable Adjustment Date (each such period, a “Calculation Period”) calculated in the manner described in subsection 4.3.
“LIBOR” means, for each Interest Period, a rate per annum equal to:
(a) the offered rate for deposits in US Dollars in an amount comparable to the amount of the applicable Loan in the London interbank market which is published by the British Bankers’ Association, and that currently appears on Telerate Page 3750 or any other source available to Agent, as of 11:00 a.m. (London time) on the day which is two (2) Business Days prior to the first day of the relevant Interest Period for a term comparable to such Interest Period; or if, for any reason, such a rate is not published by the British Bankers’ Association on Telerate or any other source available to Agent, the rate per annum equal to the average rate (rounded upwards, if necessary, to the nearest 1/100 of 1%) at which Agent determines that deposits in US Dollars in an amount comparable to the amount of the applicable Loans are being offered to prime banks at approximately 11:00 a.m. (London time) on the day which is two (2) Business Days prior to the first day of such Interest Period for a term comparable to such Interest Period for settlement in immediately available funds by leading banks in the London interbank market selected by Agent; divided by |
(b) a number equal to 1.0 minus the aggregate (but without duplication) of the rates (expressed as a decimal fraction) of reserve requirements in effect on the day which is two (2) Business Days prior to the beginning of such Interest Period (including, without limitation, basic, supplemental, marginal and emergency reserves under any regulations of the Board of Governors of the Federal Reserve System or other governmental authority having jurisdiction with respect thereto, as now and from time to time in effect) for Eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of such Board) which are required to be maintained by a member bank of the Federal Reserve System; such rate to be rounded upward to the next whole multiple of one-sixteenth of one percent (.0625%). |
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“LIBOR Margin” means (i) as of the Closing Date, 2.50% per annum, and (ii) thereafter, as of each Adjustment Date, commencing on May 1, 2001, the LIBOR Margin shall be adjusted, if necessary, to the applicable percent per annum set forth in the pricing table set forth on Schedule 1.2 hereto corresponding to the Total Indebtedness to EBITDA for the applicable Calculation Period.
If an Event of Default has occurred and is continuing on an Adjustment Date, no reduction in the Base Rate Margin or LIBOR Margin shall occur on such Adjustment Date.
If Borrower shall fail to deliver a Compliance Certificate by the date required pursuant to subsection 4.5(C), effective as of the tenth Business Day following the date on which such Compliance Certificate was due, each applicable Base Rate Margin and each applicable LIBOR Margin shall be conclusively presumed to equal the highest applicable Base Rate Margin and the highest applicable LIBOR Margin specified in the pricing table set forth on Schedule 1.2 hereto until the date of delivery of the Compliance Certificate.
Subject to paragraph (H) below, each LIBOR Loan may be obtained for a one, two, three or six month period (each such LIBOR Loan period being an “Interest Period”). With respect to all LIBOR Loans: (a) the Interest Period will commence on the date that the LIBOR Loan is made or the date on which a Base Rate Loan is converted into a LIBOR Loan, as applicable, or in the case of immediately successive Interest Periods, each successive Interest Period shall commence on the day on which the next preceding Interest Period expires, (b) if the Interest Period expires on a day that is not a Business Day, then it will expire on the next Business Day (unless the result of such extension would be to extend such Interest Period into another calendar month, in which event such Interest Period shall end on the immediately preceding Business Day), and (c) no Interest Period for Revolving Loans shall extend beyond the Commitment Termination Date. There may be no more than six (6) LIBOR Loans outstanding at any one time under the Revolving Loan Commitment.
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shall not be required to pay, and neither Agent nor any Lender shall be permitted to collect, any amount of interest in excess of the maximum amount of interest permitted by law (“Excess Interest”). If any Excess Interest is provided for or determined by a court of competent jurisdiction to have been provided for in this Agreement or in any of the other Loan Documents, then in such event: (1) the provisions of this subsection 1.2(F) shall govern and control; (2) Borrower shall not be obligated to pay any Excess Interest; (3) any Excess Interest that Agent or any Lender may have received hereunder shall be, at Agent’s option, (a) applied as a credit against the outstanding principal balance of the Obligations or accrued and unpaid interest (not to exceed the maximum amount permitted by law), (b) refunded to the payor thereof, or (c) any combination of the foregoing; (4) the interest rate(s) provided for herein shall be automatically reduced to the maximum lawful rate allowed from time to time under applicable law (the “Maximum Rate”), and this Agreement and the other Loan Documents shall be deemed to have been and shall be, reformed and modified to reflect such reduction; and (5) Borrower shall not have any action against Agent or any Lender for any damages arising out of the payment or collection of any Excess Interest. Notwithstanding the foregoing, if for any period of time interest on any Obligation is calculated at the Maximum Rate rather than the applicable rate under this Agreement, and thereafter such applicable rate becomes less than the Maximum Rate, the rate of interest payable on such Obligation shall remain at the Maximum Rate until each Lender shall have received the amount of interest that such Lender would have received during such period on such Obligation had the rate of interest not been limited to the Maximum Rate during such period.
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12
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ABA No. 0000-0000-0 Account Number 55-00540 Bank One, N.A. 0 Xxxx Xxx Xxxxx Xxxxxxx, XX 00000 Reference: Xxxxxx Corporate Finance for the benefit of Portola Packaging |
Borrower shall receive credit on the day of receipt for funds received by Agent by 1:00 p.m.(Chicago, Illinois time). In the absence of timely receipt, such funds shall be deemed to have been paid on the next Business Day. Whenever any payment to be made hereunder shall be stated to be due on a day that is not a Business Day, the payment may be made on the next succeeding Business Day and such extension of time shall be included in the computation of the amount of interest and fees due hereunder.
Borrower hereby authorizes Lenders to make Revolving Loans on the basis of their Pro Rata Shares, for the payment of interest, commitment fees, Letter of Credit fees, Breakage Fees, Letter of Credit reimbursement obligations and any amounts required to be deposited with respect to outstanding Letter of Credit Liability pursuant to subsections 1.5(C) or 6.3. Prior to an Event of Default, other fees, costs and expenses (including legal fees and expenses) reimbursable to Agent pursuant to subsections 1.3(A) and (D) or elsewhere in any Loan Document may be debited to the Revolving Loan in such manner as Agent elects after fifteen (15) days’ notice. After the occurrence of an Event of Default, no notice will be required.
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the outstanding principal balance of the Revolving Loans but not as a permanent reduction of the Revolving Loan Commitment. Any such prepayment of Revolving Loans shall be applied first to Base Rate Loans of the type required to be prepaid before application to LIBOR Loans of the type required to be prepaid, in each case in a manner which minimizes any resulting Breakage Fee.
1.6 Maturity. All of the Obligations shall become due and payable as otherwise set forth herein, but in any event all of the remaining Obligations shall become due and payable upon termination of the Credit Agreement. Until all Obligations have been fully paid and satisfied, the Revolving Loan Commitment has been terminated and all Letters of Credit have been terminated, Agent shall be entitled to retain the security interests in the Collateral granted under the Security Documents and the ability to exercise all rights and remedies available to them under the Loan Documents and applicable laws.
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interest due thereon. Borrower must deliver a written objection within sixty (60) days after receipt of the statement or the statement will be presumptive evidence of the Obligations absent manifest error. During the continuance of an Event of Default, Borrower irrevocably waives the right to direct the application of any and all payments and Borrower hereby irrevocably agrees that Agent and each Lender shall have the continuing exclusive right to thereafter apply payments in any manner it deems appropriate.
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(a) does or shall subject Agent or any Lender to any tax of any kind whatsoever or causes the withdrawal or termination of a previously granted tax exemption with respect to this Agreement, the other Loan Documents or any Loans made or Letters of Credit issued hereunder, or change the basis of taxation of payments to Agent or such Lender of principal, fees, interest or any other amount payable hereunder (except for net income taxes or capital taxes, or franchise taxes imposed in lieu of net income taxes, imposed generally by federal, state, provincial or local taxing authorities with respect to interest or commitment fees or other fees payable hereunder or changes in the rate of tax on the overall net income of Agent or Lender); or |
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(b) does or shall impose on Agent or any Lender any other condition or increased cost in connection with the transactions contemplated hereby or participations herein; |
and the result of any of the foregoing is to increase the cost to Agent or Lender of issuing any Letter of Credit or making or continuing any Loan hereunder, as the case may be, or to reduce any amount receivable hereunder, then, in any such case, Borrower shall promptly pay to Agent or Lender, upon its demand, any additional amounts necessary to compensate Agent or Lender, on an after-tax basis, for such additional cost or reduced amount receivable, as determined by Agent or Lender with respect to this Agreement or the other Loan Documents. If Agent or Lender becomes entitled to claim any additional amounts pursuant to this subsection 1.9(B), it shall promptly notify Borrower of the event by reason of which Agent or Lender has become so entitled. A certificate as to any additional amounts payable pursuant to the foregoing sentence submitted by Agent or Lender to Borrower shall, absent manifest error, be final, conclusive and binding for all purposes.
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Borrower shall not be required to pay any additional amounts as a result of such withholding, provided that all such withholding shall cease upon delivery by such Foreign Lender of a Certificate of Exemption to Borrower and Agent.
(A) Borrower may obtain, at Borrower’s expense, a replacement Lender (“Replacement Lender”) for such Affected Lender, which Replacement Lender shall be reasonably satisfactory to Agent. In the event Borrower obtains a Replacement Lender that will purchase all outstanding Obligations owed to such Affected Lender and assume its commitments hereunder within ninety (90) days following notice of Borrower’s intention to do so, the Affected Lender shall sell and assign all of its rights and delegate all of its obligations under this Agreement to such Replacement Lender in accordance with the provisions of subsection 8.1, provided that Borrower has reimbursed such Affected Lender for any administrative fee payable pursuant to subsection 8.1 and, in any case where such replacement occurs as the result of a demand for payment pursuant to subsection 1.8 or 1.9, paid all amounts required to be paid to such Affected Lender pursuant to subsection 1.8 or 1.9 through the date of such sale and assignment; or
(B) Borrower may prepay in full all outstanding Obligations owed to such Affected Lender and terminate such Affected Lender’s Pro Rata Share of the Revolving Loan Commitment, in which case the Revolving Loan Commitment will be reduced by the amount of such Pro Rata Share. Borrower shall, within ninety (90) days following notice of its intention to do so, prepay in full all outstanding Obligations owed to such Affected Lender (including, in any case where such prepayment occurs as the result of a demand for payment for increased costs, such Affected Lender’s increased costs for which it is entitled to reimbursement under this Agreement through the date of such prepayment), and terminate such Affected Lender’s obligations under the Revolving Loan Commitment.
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Borrower hereby agrees that it is jointly and severally liable for the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to the Agent, Issuing Lender and the Lenders by Borrower. Borrower agrees that its liability shall be absolute and unconditional, irrespective of, and unaffected by,
(A) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which Borrower is or may become a party;
(B) the absence of any action to enforce this Agreement or any other Loan Document or the waiver or consent by the Agent or the Lenders with respect to any of the provisions thereof;
(C) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by the Agent or any Lender in respect thereof (including the release of any such security);
(D) the insolvency of Borrower; or
(E) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor,
it being agreed by Borrower that its obligations as confirmed under this subsection 1.11 shall not be discharged until the payment and performance, in full, of the Obligations has occurred. Borrower expressly waives all rights it may have now or in the future under any statute, or at common law, or at law or in equity, or otherwise, to compel Agent or any Lender to marshal assets or to proceed in respect of the Obligations guaranteed hereunder against any other party or against any security for the payment and performance of the Obligations before proceeding against, or as a condition to proceeding against, Borrower. It is agreed among Borrower, Agent, the Issuing Lender and the Lenders that the foregoing waivers are of the essence of the transaction contemplated by this Agreement and the other Loan Documents and that, but for the provisions of this subsection 1.11 and such waivers, each Lender would decline to enter into this Agreement.
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SECTION 2
Borrower covenants and agrees that so long as the Revolving Loan Commitment is in effect and until payment in full of all Obligations and termination of the obligations of Lenders with respect to all Letters of Credit, Borrower shall perform and comply with, and shall cause each of the other Loan Parties to perform and comply with, all covenants in this Section 2 applicable to such Person.
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“Contractual Obligations,” as applied to any Person, means any indenture, mortgage, deed of trust, contract, undertaking, agreement or other instrument to which that Person is a party or by which it or any of its properties is bound or to which it or any of its properties is subject including, without limitation, the Related Transactions Documents.
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that Borrower has obtained insurance as required by this Agreement. If Agent purchases insurance for the Collateral, Borrower will be responsible for the costs of that insurance, including interest and other charges imposed by Agent in connection with the placement of the insurance, until the effective date of the cancellation or expiration of the insurance. The cost of the insurance may be added to the Obligations. The costs of the insurance may be more than the cost of insurance Borrower is able to obtain on its own.
(A) Borrower shall and shall cause each Loan Party to, from time to time, execute such guaranties, financing statements, documents, security agreements and reports as Agent or Requisite Lenders at any time may reasonably request to evidence, perfect or otherwise implement the guaranties and security for repayment of the Obligations contemplated by the Loan Documents.
(B) In the event any Loan Party acquires an interest in real property after the Closing Date, Borrower shall and shall cause each Loan Party to deliver to Agent a fully executed mortgage, deed of trust or hypothec, as applicable, over such real property in form and substance satisfactory to Agent, together with such title insurance policies, surveys, appraisals, evidence of insurance, legal opinions, environmental assessments and other documents
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and certificates as shall be required by Agent and are consistent with requirements imposed with respect to real property interests of such Loan Parties at the Closing Date.
(C) Borrower shall 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 security interest 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.
SECTION 3
Borrower covenants and agrees that so long as the Revolving Loan Commitment is in effect and until payment in full of all Obligations and termination of the obligations of Lenders with respect to all Letters of Credit, Borrower shall perform and comply with, and shall cause each of the other Loan Parties to perform and comply with, all covenants in this Section 3 applicable to such Person.
(A) the Obligations;
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(B) intercompany Indebtedness arising from loans made by Borrower to its Restricted Subsidiaries to fund working capital requirements of such Restricted Subsidiaries in the ordinary course of business; provided, however, that upon the request of Agent at any time, such Indebtedness 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 the Senior Notes and any guaranties thereof in an aggregate outstanding principal amount not to exceed $110,000,000, together with interest accrued thereon;
(D) Indebtedness not to exceed $1,000,000 (or the equivalent thereof in another currency) in the aggregate for Borrower and its Restricted Subsidiaries on a Consolidated basis at any time outstanding secured by purchase money Liens that are Permitted Encumbrances or incurred with respect to capital leases;
(E) unsecured Indebtedness not to exceed $750,000 (or the equivalent thereof in another currency) in the aggregate at any time outstanding which is subordinated to the Obligations in a manner satisfactory to Agent and Requisite Lenders;
(F) Indebtedness outstanding at the Closing Date and shown on Schedule 3.1; and
(G) Indebtedness with respect to the Chase Warrant and the Xxxxxx Warrant.
3.2 Liens and Related Matters.
“Permitted Encumbrances” means the following:
(1) Liens (other than any Lien relating to Environmental Claims or imposed by ERISA or any rule or regulation promulgated thereunder) for taxes, assessments or other governmental charges not yet due and payable; |
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(2) statutory Liens of landlords, carriers, warehousemen, mechanics, materialmen and other similar liens imposed by law, which are incurred in the ordinary course of business for sums not more than thirty (30) days delinquent or which are being diligently contested in good faith in a manner which stays enforcement of such Liens, provided that appropriate provisions shall have been established therefor in accordance with GAAP; |
(3) Liens (other than any Lien relating to Environmental Claims or imposed by ERISA or any rule or regulation promulgated thereunder) incurred or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security, or to secure the performance of tenders, statutory obligations, surety, stay, customs and appeal bonds, bids, government contracts, trade contracts, performance and return of money bonds and other similar obligations (exclusive of obligations for the payment of borrowed money); |
(4) deposits, in an aggregate amount for Borrower and its Restricted Subsidiaries on a Consolidated basis not to exceed $750,000 (or the equivalent thereof in another currency), made in the ordinary course of business to secure liability to insurance carriers; |
(5) Liens for purchase money obligations; provided that: (a) the Indebtedness secured by any such Lien is permitted under subsection 3.1; (b) any such Lien encumbers only the asset so purchased; and (c) the Indebtedness secured by such Lien is incurred within ninety (90) days after the purchase of such asset; |
(6) any attachment or judgment Lien not constituting an Event of Default under subsection 6.1(H); |
(7) easements, rights of way, zoning restrictions, licenses and other similar charges or encumbrances affecting the use of real property and not interfering in any material respect with the ordinary conduct of the business of Borrower or any of its Restricted Subsidiaries; |
(8) any interest or title of a lessor or sublessor under any lease permitted by subsection 4.1; |
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(9) Liens in favor of Agent, for the benefit of Agent and Lenders; |
(10) Liens existing on the date hereof and renewals and extensions thereof, which Liens are set forth on Schedule 3.2(A)(10) hereto; |
(11) Liens arising from filing UCC or PPSA financing statements regarding leases permitted by this Agreement; |
(12) Liens on Equity Interests of Unrestricted Subsidiaries securing Indebtedness of Unrestricted Subsidiaries that is permitted hereunder; |
(13) Liens on assets of Unrestricted Subsidiaries securing Indebtedness of Unrestricted Subsidiaries that is permitted hereunder; and |
(14) customary non-assignment provisions in leases entered into in the ordinary course of business and consistent with past practices. |
(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) prohibiting the creation or assumption of any Lien upon its properties or assets, whether now owned or hereafter acquired.
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(A) Borrower and its Restricted Subsidiaries may make and own Investments in Cash Equivalents; provided that such Cash Equivalents are not subject to setoff rights;
(B) Borrower may make intercompany loans to its Restricted Subsidiaries to the extent permitted under subsection 3.1;
(C) Loans and advances to employees for moving, entertainment, travel and other similar expenses in the ordinary course of business not to exceed $500,000 to any individual employee and, when aggregated with the outstanding principal amount of the loan to Xxxx X. Xxxxx described on Subschedule 7.4, $2,000,000 in the aggregate for Borrower and all of its Restricted Subsidiaries at any time outstanding;
(D) Investments existing on the Closing Date and set forth in Subschedule 7.4 and extensions and renewals thereof, including promotional loans of equipment to customers pursuant to the terms of subsection 3.7(c);
(E) Investments received in exchange for settlement of claims with Account debtors;
(F) Investments received in exchange for any other permitted Investment in conjunction with or as a result of any bankruptcy or insolvency proceeding, reorganization or recapitalization of the issuer of such other Investment or as a result of a foreclosure with respect to any secured permitted Investment or other transfer of title with respect to any secured permitted Investment in default; and
(G) Investments made in Persons, including Subsidiaries, primarily engaged in the packaging business not to exceed $10,000,000 in aggregate amount at any one time outstanding (measured by the fair market value of such Investment as of the date made); provided, however:
(1) with respect to any single Investment (or series of related Investments) in an amount in excess of $2,000,000, Borrower shall, after giving effect to such Investment, own equal to or greater than fifty percent (50%) of the voting power of the equity interests of the Person in which such Investment is made; and |
(2) for purposes of the calculating the aggregate amount of Investments permitted to be outstanding at any one time pursuant to this clause (G), (i) to the extent the consideration for any such Investment consists of Equity Interests (other than Disqualified Stock) of Borrower, the value of the |
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Equity Interests so issued will be ignored in determining the amount of such Investment, (ii) the aggregate amount of such Investments made by Borrower and its Restricted Subsidiaries will be decreased (but not below zero) by an amount equal to the lesser of (y) the cash return of capital to Borrower or a Restricted Subsidiary with respect to such an Investment that is sold for cash or otherwise liquidated or repaid for cash (less, in each case, the cost of disposition, including applicable taxes, if any) and (z) the initial amount of such Investment and (iii) in the case of Investment made by issuing letters of credit (or reimbursement agreements in respect thereof), the aggregate amount of such Investments will be decreased by the amount remaining unpaid thereunder upon termination of Borrower’s obligations thereunder.
“Investment” means (i) any direct or indirect purchase or other acquisition by Borrower or any of its Restricted Subsidiaries of any beneficial interest in, including stock, partnership interest or other equity securities of, or ownership interest in, any other Person; and (ii) any direct or indirect loan, advance or capital contribution by Borrower or any of its Restricted Subsidiaries to any other Person, including all indebtedness and accounts receivable from that other Person that are not current assets or did not arise from sales to that other Person in the ordinary course of business. The amount of any Investment shall be the original cost of such Investment plus the cost of all additions thereto, without any adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect to such Investment.
“Cash Equivalents” means: (i) marketable direct obligations issued or unconditionally guarantied by the United States, the United Kingdom or Canadian Government or issued by any agency thereof and backed by the full faith and credit of the United States, the United Kingdom or Canada, in each case maturing within one (1) year from the date of acquisition thereof; (ii) commercial paper maturing no more than one (1) year from the date issued and, at the time of acquisition, having a rating of at least A-1 from Standard & Poor’s Ratings Group or at least P-1 from Xxxxx’x Investors Service, Inc.; (iii) (a) certificates of deposit or bankers’ acceptances maturing within one (1) year from the date of issuance thereof issued by, or overnight reverse repurchase agreements from, any commercial bank organized under the laws of the United States of America or any state thereof or the District of Columbia or any Schedule I Bank organized under the laws of Canada having combined capital and surplus of not less than $500,000,000 or (b) certificates of deposit issued in London, England, and maturing within one (1) year from the date of issuance thereof issued by an authorized institution under the Banking Xxx 0000 with ratings of at least A-1 from Standard & Poor’s Ratings Group or at
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least P-1 from Xxxxx’x Investors Service, Inc. or at least A-1 from Fitch IBCA, Inc.; (iv) time deposits maturing no more than thirty (30) days from the date of creation thereof with commercial banks having membership in the Federal Deposit Insurance Corporation or the Canadian Deposit Insurance Corporation in amounts not exceeding the lesser of $100,000 or the maximum amount of insurance applicable to the aggregate amount of Borrower’s deposits at such institution; and (v) deposits or investments in mutual or similar funds offered or sponsored by brokerage or other companies having membership in the Securities Investor Protection Corporation which invest substantially all of such funds’ assets in investments satisfying the requirements of clauses (i) through (iv) above.
(A) Letter of Credit Liability;
(B) guaranties of the Obligations and of the Senior Notes;
(C) Contingent Obligations of Borrower and the Restricted Subsidiaries under the Loan Documents;
(D) those resulting from endorsement of negotiable instruments for collection in the ordinary course of business;
(E) those existing on the Closing Date and described in Schedule 3.4 annexed hereto;
(F) those arising under indemnity agreements to title insurers to cause such title insurers to issue to Agent mortgagee title insurance policies;
(G) those arising with respect to customary indemnification obligations incurred in connection with Asset Dispositions;
(H) those incurred in the ordinary course of business with respect to surety and appeal bonds, performance and return-of-money bonds and other similar obligations not exceeding at any time outstanding $500,000 (or the equivalent thereof in another currency) in aggregate liability;
(I) those incurred with respect to Indebtedness permitted by subsection 3.1 so long as such Contingent Obligations, in the aggregate at any
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time outstanding, do not exceed $2,500,000 (or the equivalent thereof in another currency);
(J) Contingent Obligations under Interest Rate Agreements approved by Agent in its sole discretion with respect to the Loans;
(K) Contingent Obligations consisting of customary indemnification obligations in favor of officers and directors of Borrower and its Restricted Subsidiaries in connection with the performance of their duties for Borrower and its Restricted Subsidiaries to the extent permitted under applicable corporate law;
(L) Contingent Obligations consisting of Investments permitted pursuant to subsection 3.3; and
(M) any other Contingent Obligation not expressly permitted by clauses (A) through (L) above, so long as any such other Contingent Obligations, in the aggregate at any time outstanding, do not exceed $2,500,000 (or the equivalent thereof in another currency).
“Contingent Obligation”, as applied to any Person, means any direct or indirect liability of that Person: (i) with respect to any indebtedness, lease, dividend or other obligation of another Person if the purpose or intent of the Person incurring such liability, or the effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; (ii) with respect to any letter of credit issued for the account of that Person or as to which that Person is otherwise liable for reimbursement of drawings; (iii) under any foreign exchange contract, currency swap agreement, interest rate swap agreement or other similar agreement or arrangement designed to alter the risks of that Person arising from fluctuations in currency values or interest rates; (iv) to make take-or-pay or similar payments if required regardless of nonperformance by any other party or parties to an agreement, or (v) pursuant to any agreement to purchase, repurchase or otherwise acquire any obligation or any property constituting security therefor, to provide funds for the payment or discharge of such obligation or to maintain the solvency, financial condition or any balance sheet item or level of income of another. The amount of any Contingent Obligation shall be equal to the amount of the obligation so guaranteed or otherwise supported or, if not a fixed and determined amount, the maximum amount so guaranteed.
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(A) Borrower may repurchase the Chase Warrant in whole (but not in part) pursuant to a put by a holder thereof so long as
(i) no Default or Event of Default is then in existence or would be created as a result thereof; and |
(ii) after giving effect to such repurchase, Availability is not less than $5,000,000; |
(B) Borrower may repurchase the Xxxxxx Warrant in whole (but not in part) pursuant to a put by a holder thereof so long as
(i) no Default or Event of Default is then in existence or would be created as a result thereof; and |
(ii) after giving effect to such repurchase, Availability is not less than $5,000,000; |
(C) Restricted Subsidiaries of Borrower may make Restricted Junior Payments to Borrower;
(D) so long as no Default or Event of Default is then in existence, or would occur as a result of such redemption, Borrower may redeem shares of capital stock from any of its employees and directors for the purpose of providing cash to such employee or director in an amount not in excess of such employee’s or director’s federal and state tax liability from the exercise of stock options granted by Borrower;
(E) Borrower may accept delivery of shares of its capital stock from any of its employees and directors in payment of all or any portion of the exercise price of stock options granted by Borrower;
(F) so long as no Default or Event of Default is then in existence, or would occur as a result of such payment, Borrower may pay management fees to PPI Management Company, a California corporation, not in excess of $50,000 in each fiscal year of Borrower; and
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(G) so long as no Default or Event of Default is then in existence, or would occur as a result of such redemption, Borrower may redeem shares of its capital stock from any of its employees and directors whose employment with Borrower has terminated, other than Xxxx X. Xxxxx, in an aggregate amount not in excess of $300,000 in any fiscal year of Borrower.
“Restricted Junior Payment” means: (i) any dividend or other distribution, direct or indirect, on account of any shares of any class of stock or other equity security of, or ownership interest in, Borrower or any of its Restricted Subsidiaries now or hereafter outstanding, except a dividend payable solely in shares of that class of stock to the holders of that class; (ii) any redemption, conversion, exchange, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any shares of any class of stock or other equity security of, or ownership interest in, Borrower or any of its Restricted Subsidiaries now or hereafter outstanding; (iii) any payment or prepayment of interest on, principal of, premium, if any, redemption, conversion, exchange, purchase, retirement, defeasance, sinking fund or similar payment with respect to, any Indebtedness subordinated to the Obligations; and (iv) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of any class of stock or other equity security of, or ownership interest in, Borrower or any of its Restricted Subsidiaries now or hereafter outstanding.
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other equity interests in any of its Restricted Subsidiaries, whether now owned or hereafter acquired, except for (a) bona fide sales of inventory to customers for fair value in the ordinary course of business and dispositions of obsolete equipment not used or useful in the business; (b) Asset Dispositions if all of the following conditions are met: (i) the market value of assets sold or otherwise disposed of in any single transaction or series of related transactions does not exceed $500,000 (or the equivalent thereof in another currency) and the aggregate market value of assets sold or otherwise disposed of by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower does not exceed $2,000,000 (or the equivalent thereof in another currency); (ii) the consideration received is at least equal to the fair market value of such assets; (iii) at least eighty percent (80%) of the consideration received is cash; (iv) after giving effect to the Asset Disposition and the repayment of Indebtedness with the proceeds thereof, Borrower is in compliance on a pro forma basis with the covenants set forth in Section 4 recomputed for the most recently ended quarter for which information is available and is in compliance with all other terms and conditions of this Agreement; and (v) no Default or Event of Default then exists or would result from such Asset Disposition; (c) loans and leases of equipment in the ordinary course of business of Borrower, provided that the aggregate value of all such equipment that is loaned during any fiscal year of Borrower shall not exceed one and one-fifth percent (1.2%) of Borrower’s total annual sales revenues for the immediately preceding fiscal year; and (d) Asset Dispositions the net proceeds of which are used to purchase replacement assets within ninety (90) days of such Asset Disposition. Notwithstanding the foregoing, Borrower may sell all or any portion of the Xxxxxxxxx Property so long as such sale complies with the requirements of this subsection 3.7(b)(ii), (iii), (iv) and (v). Immediately upon such sale, the Borrowing Base shall be reduced by (x) in the case of a sale of the 000-000 Xxxxxxxxx Xxxxx property, $871,629 minus the amount of the Real Property Reserve (computed pursuant to Schedule 4 to the Borrowing Base Certificate) attributable to such property at the time of such sale and (y) in the case of a sale of the 000 Xxxxxxxxx Xxxxx property, $1,297,660 minus the amount of the Real Property Reserve (computed pursuant to Schedule 4 to the Borrowing Base Certificate) attributable to such property at the time of such sale. In the event that Borrower or any Restricted Subsidiary makes an Asset Disposition that, but for the operation of this sentence, would result in Borrower’s being obligated to make an Asset Sale Offer (as defined in the Senior Note Indenture), then within 180 days after such Asset Disposition, the net proceeds of such Asset Disposition shall be applied in repayment of the Revolving Loans, and upon such repayment, the Revolving Loan Commitment shall be permanently reduced to the extent necessary to prevent Borrower from being required to make an Asset Sale Offer.
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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.
“CCAA” means the Companies’ Creditors Arrangement Act (Canada), as the same now exists or may from time to time hereafter be amended, modified or supplemented, together with all official rules, regulations and interpretations thereunder or related thereto.
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SECTION 4
Borrower covenants and agrees that so long as the Revolving Loan Commitment is in effect and until payment in full of all Obligations and termination of the Obligations of Lenders with respect to all Letters of Credit, Borrower shall perform and comply with, and shall cause each of the other Loan Parties to perform and comply with, all covenants in this Section 4 applicable to such Person.
Date | Ratio | |
November 30, 2000 February 28, 2001 May 31, 2001 August 31, 2001, and each fiscal quarter end thereafter |
.70 to 1.00 .80 to 1.00 1.00 to 1.00 1.10 to 1.00 |
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Equivalents, calculated as of the last day of each fiscal quarter after the Closing Date to EBITDA for the twelve (12) month period ending on such day to be greater than 5.00 to 1.00.
(B) Year-End Financials. As soon as available and in any event within ninety (90) days after the end of each fiscal year of Borrower, Borrower will deliver (1) the Consolidated and consolidating balance sheets of Borrower and its Consolidated Subsidiaries, as at the end of such year, and the related Consolidated and consolidating statements of income, stockholders’ equity and
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cash flow for such fiscal year, (2) a schedule of the outstanding Indebtedness for borrowed money of Borrower and its Restricted Subsidiaries describing in reasonable detail each such debt issue or loan outstanding and the principal amount and amount of accrued and unpaid interest with respect to each such debt issue or loan and (3) a report with respect to the consolidated financial statements from a firm of Certified Public Accountants selected by Borrower and reasonably acceptable to Agent, which report shall be prepared in accordance with Statement of Auditing Standards No. 58 (the “Statement”) entitled “Reports on Audited Financial Statements” and such report shall be “Unqualified” (as such term is defined in such Statement). Borrower shall deliver a copy of each audited or reviewed financial statements of the UK Restricted Subsidiary or either Canadian Restricted Subsidiary that are required to be prepared under applicable law promptly following the preparation of such financial statements.
(F) Borrowing Base Certificate and Loan Report. (1) As soon as available and in any event within twenty (20) days after the end of each month, within five (5) Business Days following the sale or disposition of any Eligible
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PPE having a net book value in excess of $500,000, within five (5) Business Days following the consummation of any other transaction or the occurrence of any event that results in a reduction in the Borrowing Base by more than $500,000 (other than sales of Inventory and collection of Accounts in the ordinary course of business), and from time to time upon the request of Agent, Borrower will deliver to Agent a Borrowing Base Certificate (in substantially the same form as Exhibit 4.5(F)) as at the last day of such period; (2) as soon as available and in any event within twenty (20) days after the end of each month, and from time to time upon the request of Agent, Borrower will, and will cause each of its Restricted Subsidiaries to, deliver to Agent an inventory summary report and accounts receivable summary report for Borrower and each of its Restricted Subsidiaries, in form and substance reasonably satisfactory to Agent; (3) upon Agent’s request from time to time, Borrower will, and will cause each of its Restricted Subsidiaries to, deliver to Agent an aged trial balance as of the most recent month-end immediately preceding such request of all Accounts and an aged trial balance as of the most recent month-end immediately preceding such request of all accounts payable in form and substance reasonably satisfactory to Agent; (4) upon Agent’s request from time to time, Borrower will, and will cause each of its Restricted Subsidiaries to, deliver to Agent a detailed schedule of all Inventory as of the most recent month-end immediately preceding such request in form and substance reasonably satisfactory to Agent; and (5) upon Agent’s request from time to time, Borrower will, and will cause each of its Restricted Subsidiaries to, deliver to Agent a detailed schedule of all PPE as of the most recent month-end immediately preceding such request in form and substance reasonably satisfactory to Agent.
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regulatory authority, and (3) all press releases and other statements made available by Borrower or any of its Restricted Subsidiaries to the public concerning developments in the business of any such Person.
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or Subsidiaries, as applicable, and (4) any other event that occurs after the Closing Date which would cause any of the representations and warranties in Section 5 of this Agreement or in any other Loan Document to be untrue or misleading in any material respect. The foregoing notice requirement shall not be construed to constitute Requisite Lenders’ consent to any transaction referred to above which is not expressly permitted by the terms of this Agreement.
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SECTION 5
REPRESENTATIONS AND WARRANTIES
To induce Agent and Lenders to enter into the Loan Documents, to make Loans and to issue or cause to be issued Letters of Credit, Borrower represents, warrants and covenants to Agent and each Lender that the following statements are and, after giving effect to the Related Transactions, will remain true, correct and complete for so long as the Revolving Loan Commitment hereunder shall be in effect and until payment in full of all Obligations:
5.4 Organization, Powers, Capitalization and Good Standing.
(A) Organization and Powers. Each of the Loan Parties is duly organized, incorporated, amalgamated or continued, validly existing and in good standing under the laws of its jurisdiction of organization, incorporation, amalgamation or continuance and qualified to do business in all jurisdictions where such qualification is required except where failure to be so qualified
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could not reasonably be expected to have a Material Adverse Effect. The jurisdiction of organization, incorporation or amalgamation and all jurisdictions in which each Loan Party is qualified to do business are set forth on Schedule 5.4(A). Each of the Loan Parties has all requisite power and authority to own and operate its properties, to carry on its business as now conducted and proposed to be conducted, to enter into each Related Transactions Document to which it is a party and to incur the Obligations, grant Liens and security interests in the Collateral and carry out the Related Transactions.
(B) Capitalization. The authorized equity securities of each of the Loan Parties is as set forth on Schedule 5.4(B). All issued and outstanding equity securities of each of the Loan Parties are duly authorized and validly issued, fully paid, nonassessable, free and clear of all Liens other than transfer restrictions under federal and state securities laws, those in favor of Agent for the benefit of Agent and Lenders and those set forth on Schedule 5.4(B), and such equity securities were issued in compliance with all applicable state, provincial, federal and foreign laws concerning the issuance of securities. The identity of the holders of the equity securities of each of the Loan Parties and for the ten largest shareholders of each Loan Party, the percentage of their fully-diluted ownership of the equity securities of each of the Loan Parties is set forth on Schedule 5.4(B). No shares of the capital stock or other equity securities of any Loan Party, other than those described above, are issued and outstanding. Except as provided in Schedule 5.4(B), there are no preemptive or other outstanding rights, options, warrants, conversion rights or similar agreements or understandings for the purchase or acquisition from any Loan Party of any equity securities of any such entity.
(C) Binding Obligation. This Agreement is, and the other Related Transactions Documents when executed and delivered will be, the legally valid and binding obligations of the applicable parties thereto, each enforceable against each of such parties, as applicable, in accordance with their respective terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors’ rights generally.
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(A) The Consolidated balance sheets at August 31, 1999 and the related statement of income of Borrower and its Consolidated Subsidiaries, for the fiscal year then ended, audited by PricewaterhouseCoopers LLP.
(B) The unaudited Consolidated balance sheet at July 31, 2000, and the related statement of income of Borrower and its Consolidated Subsidiaries for the period then ended.
The Projections delivered on or prior to the Closing Date and the updated Projections delivered pursuant to subsection 4.5(J) represent and will represent as of the date thereof the good faith estimate of Borrower and their senior management concerning the most probable course of its business.
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5.8 Investigations, Audits, Etc. Except as set forth on Schedule 5.8, none of Borrower or any of its Subsidiaries, is the subject of any review or audit by the Internal Revenue Service or any governmental investigation concerning the violation or possible violation of any law.
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Restricted Subsidiaries to have become Year 2000 Compliant prior to January 1, 2000. Borrower will promptly notify Agent if it becomes aware of any such circumstances after the date hereof.
SECTION 6
(A) Payment. (1) Failure to pay any installment or other payment of principal of any Loan when due, or to repay Revolving Loans to reduce their balance to the Maximum Revolving Loan Balance or to reimburse any Issuing Lender for any payment made by such Issuing Lender under or in respect of any Letter of Credit when due or (2) failure to pay, within five (5) days after the due date, any interest on any Loan or any other amount due under this Agreement or any of the other Loan Documents; or
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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
(F) Defaults under Negative Pledge Agreements. Xxxx X. Xxxxx or Xxxxx Manhattan Capital Corporation defaults in the performance of or compliance with any term contained in the Negative Pledge Agreement to which either is a party (other than occurrences described in other provisions of this subsection 6.1 for which a different grace or cure period is specified or which constitute immediate Events of Default) and such default is not remedied or waived within thirty (30) days after the earlier of (1) receipt by Borrower of
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notice from Agent or Requisite Lenders of such default or (2) actual knowledge of Borrower or any other Loan Party of such default; or
(I) Judgment and Attachments. Any money judgment, writ or warrant of attachment, or similar process (other than those described
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elsewhere in this subsection 6.1) involving (1) an amount in any individual case in excess of $1,000,000 (or the equivalent thereof in another currency) or (2) an amount in the aggregate at any time in excess of $2,000,000 (or the equivalent thereof in another currency) (in either case to the extent not adequately covered by insurance as to which the insurance company has acknowledged coverage) is entered or filed against Borrower or any of its Restricted Subsidiaries or any of their respective assets and remains undischarged, unvacated, unbonded or unstayed for a period of thirty (30) days or in any event later than five (5) Business Days prior to the date of any proposed sale thereunder; or
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Borrower or other Loan Party fails to make in a timely fashion any contributions or premium payment required to be made to such Canadian Pension Plan in accordance with the terms of the Canadian Pension Plans and applicable laws and regulations; (iv) Borrower or other Loan Party fails to withhold any material employee contributions to such Canadian Pension Plan required to be made by way of authorized payroll deduction or to pay such contributions into such Canadian Pension Plan in a timely fashion; (v) Borrower or other Loan Party fails to file or distribute in a timely fashion any material report or disclosure relating to such Canadian Pension Plans required by any applicable laws or regulations; (vi) there shall occur a material improper withdrawal, or application of, the assets of any such Canadian Pension Plan; (vii) a material amount becomes owning by any such Canadian Pension Plans under the Income Tax Act (Canada) or any provincial taxation statute; (viii) any such Canadian Pension Plan fails to be fully funded either on an ongoing basis or on a solvency basis (using actuarial assumptions and methods which are consistent with the valuations last filed with the applicable governmental authorities and which are consistent with generally accepted actuarial principles); or (ix) any such Canadian Pension Plan becomes the subject of any material investigation, proceeding, action or claim.
(P) Damage; Strike; Casualty. Any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty which causes, for more than thirty (30) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of Borrower or any of its Subsidiaries, if any such event or circumstance could reasonably be expected to have a Material Adverse Effect; or
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(S) Change in Control. A Change of Control shall occur.
(U) Income Tax Act. A requirement from the Minister of National Revenue for payment pursuant to Section 224 or any successor section of the Income Tax Act (Canada) or Section 317, or any successor section of the Excise Tax Act (Canada) or any comparable provision of similar legislation shall have been received by Agent or any Lender or any other Person in respect of Borrower or any of its Subsidiaries or otherwise issued in respect of Borrower or any of its Subsidiaries.
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Borrower, and the Revolving Loan Commitment shall thereupon terminate. Upon the occurrence and during the continuance of any other Event of Default, Agent may, and at the request of the Requisite Lenders Agent shall, by written notice to Borrower (a) declare all or any portion of the Loans and all or any portion of the other Obligations to be, and the same shall forthwith become, immediately due and payable together with accrued interest thereon, and the obligations of Agent, Issuing Lenders and Lenders to make Revolving Loans and issue Letters of Credit shall thereupon terminate, (b) demand that Borrower immediately deposit cash with Agent for the benefit of Issuing Lenders in an amount equal to one hundred and five percent (105%) of the aggregate outstanding Letter of Credit Liability and (c) exercise any other remedies which may be available under the Loan Documents or applicable law. Borrower hereby grants to Agent, for the benefit of Issuing Lenders and each Lender with a participation in any Letters of Credit then outstanding, a security interest in such cash collateral to secure all of the Letter of Credit Liability. Any such cash collateral shall be made available by Agent to Issuing Lenders to reimburse Issuing Lenders for payments of drafts drawn under such Letters of Credit and any fees and expenses of Bank Line Issuers or Issuing Lenders with respect to such Letters of Credit and the unused portion thereof, after all such Letters of Credit shall have expired or been fully drawn upon, shall be applied to repay any other Obligations. After all such Letters of Credit shall have expired or been fully drawn upon and all Obligations shall have been satisfied and paid in full, the balance, if any, of such cash collateral shall be returned to Borrower. Borrower shall from time to time execute and deliver to Agent such further documents and instruments as Agent may request with respect to such cash collateral.
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a receiver and manager of, or agent for, all or any part of the Collateral. Any such Receiver shall, as far as concerns responsibility for his acts, be deemed to be the agent of Borrower and not of Agent or any Lender, and Agent and Lenders shall not in any way be responsible for any misconduct, negligence or non-feasance of such Receiver, its employees or agents. Except as otherwise directed by Agent and Lenders, all money received by such Receiver shall be received in trust for and paid to Agent for the benefit of Lenders. Such Receiver shall have all of the powers and rights of Agent and Lenders described in Section 6. Agent may, either directly or through its agents or nominees, exercise any or all powers and right of a Receiver.
SECTION 7
The obligations of Lenders to make Loans and to issue or cause to be issued Letters of Credit are subject to satisfaction of all of the applicable conditions set forth below.
(A) Agent shall have received a request for an advance of a Loan or the issuance of a Letter of Credit, in each case in accordance with the applicable provisions of subsection 1.1.
(B) The representations and warranties contained in Section 5 of this Agreement and elsewhere herein and in the Loan Documents shall be (and each request by Borrower for a Loan or a Letter of Credit shall constitute a representation and warranty by Borrower that such representations and warranties are) true, correct and complete in all material respects on and as of that Funding Date to the same extent as though made on and as of that date, except for any representation or warranty expressly limited by its terms to a
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specific date and taking into account any amendments to the schedules, subschedules or exhibits as a result of any disclosures made in writing by Borrower to Agent after the Closing Date and approved by Agent and Requisite Lenders in writing.
(C) No event shall have occurred and be continuing or would result from the funding or such Loans or the issuance of such Letters of Credit that would constitute an Event of Default or a Default.
(D) No order, judgment or decree of any court, arbitrator or governmental authority shall purport to enjoin or restrain any Lender from making any Loan or from issuing or causing to be issued any Letter of Credit.
SECTION 8
ASSIGNMENT; PARTICIPATION; AGENT; ETC.
8.1 Assignments and Participations.
(B) Recording of Assignments. Agent shall maintain at its office in Chicago, Illinois a copy of each Assignment and Acceptance Agreement delivered to it and a register for the recordation of the names and addresses of
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Lenders, and the commitments of, and principal amount of the Loans owing to each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be presumptive evidence of the amounts due and owing to Lender in the absence of manifest error. Borrower, Agent and each Lender may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement.
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(E) Transactions with the Federal Reserve Bank; Assignments to Affiliates. Notwithstanding any other provision of this Agreement, any Lender may at any time, following written notice to Agent, (a) create a security interest in all or any portion of its rights under this Agreement or the other Loan Documents in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System and (b) assign all or any portion of its funded Loans to an Affiliate of such Lender which is at least fifty percent (50%) owned by such Lender or its parent company, to one or more other Lenders or to a Related Fund. For purposes of this paragraph, a “Related Fund” shall mean, with respect to any Lender, a fund or other investment vehicle that invests in commercial loans and is managed by the same investment advisor as such Lender or by an Affiliate of such investment advisor.
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certain of Lenders’ consent be obtained in certain instances as provided in this subsection 8.2 and subsections 8.3 and 9.2. The provisions of this subsection 8.2 are solely for the benefit of Agent and Lenders and neither Borrower nor any other Loan Party shall have any rights as a third party beneficiary of any of the provisions hereof. In performing its functions and duties under this Agreement, Agent shall act solely as agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for Borrower or any other Loan Party. Agent may perform any of its duties hereunder, or under the Loan Documents, by or through its agents or employees.
(C) Rights, Exculpation, Etc. Neither Agent nor any of its officers, directors, employees or agents shall be liable to any Lender for any action taken or omitted by them hereunder or under any of the Loan Documents, or in connection herewith or therewith, except that Agent shall be liable to the extent of their own gross negligence or willful misconduct as determined by a court of competent jurisdiction. Agent shall not be liable for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Lender to whom payment was due but not made shall be to recover from other Lenders any payment in excess of the amount to which they are determined to be entitled (and such other Lenders hereby agree to return to such Lender any such erroneous payments received by them). In performing its functions and duties hereunder, Agent shall exercise the same care which it would in dealing with loans for its own account, but neither Agent nor any of its agents or representatives shall be
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responsible to any Lender for any recitals, statements, representations or warranties herein or for the execution, effectiveness, genuineness, validity, enforceability, collectibility, or sufficiency of this Agreement or any of the Loan Documents or the transactions contemplated thereby, or for the financial condition of any Loan Party. Agent shall not be required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement or any of the Loan Documents or the financial condition of any Loan Party, or the existence or possible existence of any Default or Event of Default. Agent may at any time request instructions from Lenders with respect to any actions or approvals which by the terms of this Agreement or of any of the Loan Documents Agent is permitted or required to take or to grant, and if such instructions are promptly requested, Agent shall be absolutely entitled to refrain from taking any action or to withhold any approval and shall not be under any liability whatsoever to any Person for refraining from any action or withholding any approval under any of the Loan Documents until it shall have received such instructions from Requisite Lenders or all or such other portion of the Lenders as shall be prescribed by this Agreement. Without limiting the foregoing, no Lender shall have any right of action whatsoever against Agent as a result of Agent acting or refraining from acting under this Agreement or any of the other Loan Documents in accordance with the instructions of Requisite Lenders and, notwithstanding the instructions of Requisite Lenders, Agent shall not have any obligation to take any action if it believes, in good faith, that such action exposes Agent to any liability for which it has not received satisfactory indemnification in accordance with subsection 8.2(E).
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Agreement or any of the Loan Documents, in proportion to each Lender’s Pro Rata Share, but only to the extent that any of the foregoing is not reimbursed by Borrower; provided, however, that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses, advances or disbursements to the extent resulting from Agent’s gross negligence or willful misconduct as determined by a court of competent jurisdiction. If any indemnity furnished to Agent for any purpose shall, in the opinion of Agent, be insufficient or become impaired, Agent may call for additional indemnity and cease, or not commence, to do the acts indemnified against even if so directed by Requisite Lenders until such additional indemnity is furnished. The obligations of Lenders under this subsection 8.2(E) shall survive the payment in full of the Obligations and the termination of this Agreement.
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such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens upon (or obligations of any Loan Party, in respect of), all interests retained by any Loan Party, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of the Collateral.
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8.3 Amendments, Consents and Waivers.
(A) Except as otherwise provided in subsection 8.2, this subsection 8.3 or in subsection 9.2 and except as to matters set forth in other subsections hereof or in any other Loan Document as requiring only Agent’s consent, the consent of Requisite Lenders and Borrower will be required to amend, modify, terminate, or waive any provision of this Agreement or any of the other Loan Documents. The consent of Borrower shall constitute consent of all of its Subsidiaries.
(B) In the event Agent requests the consent of a Lender and does not receive a written consent or denial thereof within ten (10) Business Days after such Lender’s receipt of such request, then such Lender will be deemed to have denied the giving of such consent.
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(C) If, in connection with any proposed amendment, modification, termination or waiver of any of the provisions of this Agreement requiring the consent or approval of all Lenders under subsection 9.2, the consent of Requisite Lenders is obtained but the consent of one or more other Lenders whose consent is required is not obtained, then Borrower shall have the right, so long as all such non-consenting Lenders are either replaced or prepaid as described in clauses (A) or (B) below, to either (A) replace the non-consenting Lenders with one or more Replacement Lenders pursuant to subsection 1.10(A) so long as each such Replacement Lender consents to the proposed amendment, modification, termination or waiver or (B) prepay in full the Obligations of the non-consenting Lenders and terminate the non-consenting Lenders’ Pro Rata Shares of the Revolving Loan Commitment in accordance with subsection 1.10(B).
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Lender’s Pro Rata Share of the Loan requested by Borrower no later than 1:00 p.m. (Chicago, Illinois time) on the Funding Date applicable thereto, and each such Lender shall pay Agent such Lender’s Pro Rata Share of such requested Loan, in same day funds, by wire transfer to Agent’s account on such Funding Date. If any Lender fails to pay the amount of its Pro Rata Share within one (1) Business Day after Agent’s demand, Agent shall promptly notify Borrower, and Borrower shall immediately repay such amount to Agent. Any repayment required pursuant to this subsection 8.5 shall be without premium or penalty. Nothing in this subsection 8.5 or elsewhere in this Agreement or the other Loan Documents, including without limitation the provisions of subsection 8.6, shall be deemed to require Agent to advance funds on behalf of any Lender or to relieve any Lender from its obligation to fulfill its commitments hereunder or to prejudice any rights that Agent or Borrower may have against any Lender as a result of any default by such Lender hereunder.
8.6 Disbursements of Advances; Payment.
(A) Revolving Loan Advances, Payments and Settlements; Interest and Fee Payments.
(1) The Revolving Loan balance may fluctuate from day to day through Agent’s disbursement of funds to, and receipt of funds from, Borrower. In order to minimize the frequency of transfers of funds between Agent and each Lender notwithstanding terms to the contrary set forth in Section 1 or subsection 8.5, Revolving Loan advances and payments will be settled among Agent and Lenders according to the procedures described in this subsection 8.6. Notwithstanding these procedures, each Lender’s obligation to fund its portion of any advances made by Agent to Borrower will commence on the date such advances are made by Agent. Such payments will be made by such Lender without set-off, counterclaim or reduction of any kind.
(2) On the second (2nd) Business Day of each week, or more frequently (including daily), if Agent so elects (each such day being a “Settlement Date”), Agent will advise each Lender by telephone or telecopy of the amount of each such Lender’s Pro Rata Share of the Revolving Loan balance as of the close of business of the (2nd) second Business Day immediately preceding the Settlement Date. In the event that payments are necessary to adjust the amount of such Lender’s required Pro Rata Share of the Revolving Loan balance to such Lender’s actual Pro Rata Share of the Revolving Loan balance as of any Settlement Date, the party from which such payment is due will pay the other, in same day funds, by wire transfer to the other’s account not later than 3:00 p.m. (Chicago, Illinois time) on the Business Day following the Settlement Date.
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(3) For purposes of this subsection 8.6(A)(3), the following terms and conditions will have the meanings indicated:
(a) “Daily Loan Balance” means an amount calculated as of the end of each calendar day by subtracting (i) the cumulative principal amount paid by Agent to a Lender on a Loan from the Closing Date through and including such calendar day, from (ii) the cumulative principal amount on a Loan advanced by such Lender to Agent on that Loan from the Closing Date through and including such calendar day. |
(b) “Daily Interest Rate” means an amount calculated by dividing the interest rate payable to a Lender as of each calendar day by three hundred sixty (360). |
(c) “Daily Interest Amount” means an amount calculated by multiplying the Daily Loan Balance of a Loan by the associated Daily Interest Rate on that Loan. |
(d) “Interest Ratio” means a number calculated by dividing the total amount of the interest on a Loan received by Agent with respect to the immediately preceding month by the total amount of interest on that Loan due from Borrower during the immediately preceding month. |
On the first (1st) Business Day of each month (“Interest Settlement Date”), Agent will advise each applicable Lender by telephone or telecopy of the amount of such Lender’s share of interest and fees on each of the Loans as of the end of the last day of the immediately preceding month. Provided that such Lender has made all payments required to be made by it under this Agreement, Agent will pay to such Lender, by wire transfer to such Lender’s account (as specified by such Lender on the signature page of this Agreement or the applicable Assignment and Acceptance Agreement, as amended by such Lender from time to time after the date hereof pursuant to the notice provisions contained herein or in the applicable Assignment and Acceptance Agreement) not later than 3:00 p.m. (Chicago, Illinois time) on the next Business Day following the Interest Settlement Date, such Lender’s share of interest and fees on each of the Loans. Such Lender’s share of interest on each Loan will be calculated for that Loan by adding together the Daily Interest Amounts for each calendar day of the prior month for that Loan and multiplying the total thereof by the Interest Ratio for that Loan. Such Lender’s share of the commitment fee
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described in subsection 1.2(B) shall be paid and calculated in a manner consistent with the payment and calculation of interest as described in this subsection 8.6(A). Such Lender’s share of the Letter of Credit fee described in subsection 1.2(C) with respect to each Letter of Credit shall be calculated based on the average daily amount of such Lender’s participation in such Letter of Credit pursuant to subsection 1.1(B) for the period for which such fee is payable and shall be paid on each Interest Settlement Date.
(B) Availability of Lender’s Pro Rata Share.
(1) Unless Agent shall have received notice from a Lender prior to a Funding Date that such Lender will not make available its Pro Rata Share of a Loan requested by Borrower, Agent may assume that such Lender has made such amount available to Agent on the Business Day following the next Settlement Date. If a Lender has not in fact made its Pro Rata Share available to the Agent on such date (any such Lender, a “Defaulting Lender”), then the Defaulting Lender and Borrower severally agree to pay to Agent forthwith on demand such amount without set-off, counterclaim or deduction of any kind, together with interest thereon, for each day from and including the date such amount is made available to Agent by Borrower or such Defaulting Lender to but excluding the date of payment to Agent, at (a) in the case of the Defaulting Lender, the greater of the Federal Funds Effective Rate and a rate determined by Agent in accordance with banking industry rules on interbank compensation or (b) in the case of Borrower, the interest rate applicable under this Agreement with respect to such Loan.
(2) Agent shall not be obligated to transfer to a Defaulting Lender any payment made by Borrower or any Loan Party to Agent or any amount otherwise received by Agent for application to the Obligations nor shall Defaulting Lender be entitled to the sharing of any interest, fees or other payments hereunder.
(3) For purposes of voting or consenting to matters with respect to the Loan Documents or any other matters concerning the Loans, a Defaulting Lender shall be deemed not to be a “Lender” and such Defaulting Lenders Commitments and outstanding Loans shall be deemed to be zero.
(4) Without limiting the generality of the foregoing, each Lender shall be obligated to fund its Pro Rata Share of any Revolving Loan made after any Event of Default or acceleration of the Obligations with respect to any draw on a Letter of Credit.
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(1) If Agent pays an amount to a Lender under this Agreement in the belief or expectation that a related payment has been or will be received by Agent from Borrower and such related payment is not received by Agent, then Agent will be entitled to recover such amount from such Lender without set-off, counterclaim or deduction of any kind together with interest thereon, for each day from and including the date such amount is made available by Agent to such Lender to but excluding the date of repayment to Agent, at the greater of the Federal Funds Effective Rate and a rate determined by Agent in accordance with banking industry rules on interbank compensation.
(2) If Agent determines at any time that any amount received by Agent under this Agreement must be returned to Borrower or paid to any other Person pursuant to any requirement of law, court order or otherwise, then, notwithstanding any other term or condition of this Agreement, Agent will not be required to distribute any portion thereof to any Lender. In addition, each Lender will repay to Agent on demand any portion of such amount that Agent has distributed to such Lender, together with interest at such rate, if any, as Agent is required to pay to Borrower or such other Person, without set-off, counterclaim or deduction of any kind.
SECTION 9
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under applicable law. This subsection 9.1 and other indemnification provisions contained within the Loan Documents shall survive the termination of this Agreement.
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outstanding, each future holder of the Notes and, if signed by a Loan Party, on such Loan Party.
9.3 Notices. Any notice or other communication required shall be in writing addressed to the respective party as set forth below and may be personally served, telecopied, sent by overnight courier service or U.S. mail and shall be deemed to have been given: (a) if delivered in person, when delivered; (b) if delivered by telecopy, on the date of transmission if transmitted on a Business Day before 4:00 p.m. (Chicago, Illinois time); (c) if delivered by overnight courier, one (1) Business Day after delivery to the courier properly addressed; or (d) if delivered by U.S. mail, four (4) Business Days after deposit with postage prepaid and properly addressed.
Notices shall be addressed as follows:
If to Borrower: |
PORTOLA PACKAGING, INC. 000 Xxxxxxxxx Xxxxx Xxx Xxxx, Xxxxxxxxxx 00000 ATTN: President Telecopy: (000) 000-0000 |
|
With a copy to: |
Xxxxxxxxx Xxxxx Morosoli & Maser LLP 000 Xxxx Xxxx Xxxx, 0xx Xxxxx Xxxx Xxxx, Xxxxxxxxxx 00000 ATTN: Xxxxxxx X. Xxx Telecopy: (000) 000-0000 |
|
If to Agent or Xxxxxx: |
XXXXXX FINANCIAL, INC. 000 Xxxx Xxxxxx Xxxxxx Xxxxxxx, Xxxxxxxx 00000 ATTN: Account Manager Corporate Finance Telecopy: (000) 000-0000 |
|
With a copy to: |
XXXXXX FINANCIAL, INC. 000 Xxxx Xxxxxx Xxxxxx Xxxxxxx, Xxxxxxxx 00000 ATTN: Legal Services Corporate Finance Telecopy: (000) 000-0000 |
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If to a Lender: |
To the address set forth on the signature page hereto or in the applicable Assignment and Acceptance Agreement |
9.4 Failure or Indulgence Not Waiver; Remedies Cumulative. No failure or delay on the part of Agent or any Lender to exercise, nor any partial exercise of, any power, right or privilege hereunder or under any other Loan Documents shall impair such power, right, or privilege or be construed to be a waiver of any Default or Event of Default. All rights and remedies existing hereunder or under any other Loan Document are cumulative to and not exclusive of any rights or remedies otherwise available.
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9.9 Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
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subsection 9.13 shall not apply to disclosures required to be made by Agent or any Lender to any regulatory or governmental agency or pursuant to legal process. The obligations of Agent and Lenders under this subsection 9.13 shall supersede and replace the obligations of Agent and Lenders under any confidentiality agreement in respect of this financing executed and delivered by Agent or any Lender prior to the date hereof.
9.14 CONSENT TO JURISDICTION. BORROWER HEREBY CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE COUNTY OF XXXX, STATE OF ILLINOIS AND IRREVOCABLY AGREES THAT, SUBJECT TO AGENT’S ELECTION, ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS SHALL BE LITIGATED IN SUCH COURTS. BORROWER EXPRESSLY SUBMITS AND CONSENTS TO THE JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS. TO THE EXTENT PERMITTED BY LAW, BORROWER HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE UPON BORROWER BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, ADDRESSED TO BORROWER, AT THE ADDRESS SET FORTH IN THIS AGREEMENT AND SERVICE SO MADE SHALL BE COMPLETE TEN (10) DAYS AFTER THE SAME HAS BEEN POSTED. IN ANY LITIGATION, TRIAL, ARBITRATION OR OTHER DISPUTE RESOLUTION PROCEEDING RELATING TO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, ALL DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS OF BORROWER OR OF ITS AFFILIATES SHALL BE DEEMED TO BE EMPLOYEES OR MANAGING AGENTS OF BORROWER FOR PURPOSES OF ALL APPLICABLE LAW OR COURT RULES REGARDING THE PRODUCTION OF WITNESSES BY NOTICE FOR TESTIMONY (WHETHER IN A DEPOSITION, AT TRIAL OR OTHERWISE). BORROWER AGREES THAT AGENT’S OR ANY LENDER’S COUNSEL IN ANY SUCH DISPUTE RESOLUTION PROCEEDING MAY EXAMINE ANY OF THESE INDIVIDUALS AS IF UNDER CROSS-EXAMINATION AND THAT ANY DISCOVERY DEPOSITION OF ANY OF THEM MAY BE USED IN THAT PROCEEDING AS IF IT WERE AN EVIDENCE DEPOSITION. BORROWER IN ANY EVENT WILL USE ALL COMMERCIALLY REASONABLE EFFORTS TO PRODUCE IN ANY SUCH DISPUTE RESOLUTION PROCEEDING, AT THE TIME AND IN THE MANNER REQUESTED BY AGENT OR ANY LENDER, ALL PERSONS, DOCUMENTS (WHETHER IN TANGIBLE, ELECTRONIC OR OTHER FORM) OR OTHER THINGS UNDER ITS CONTROL AND RELATING TO THE DISPUTE OTHER THAN THOSE WHICH ARE PROTECTED BY ATTORNEY-CLIENT PRIVILEGE OR WHICH CONSTITUTE ATTORNEY WORK PRODUCT.
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9.15 WAIVER OF JURY TRIAL. BORROWER, AGENT AND EACH LENDER HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS. BORROWER, AGENT AND EACH LENDER ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS RELIED ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND THAT EACH WILL CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED FUTURE DEALINGS. BORROWER, AGENT AND EACH LENDER WARRANT AND REPRESENT THAT EACH HAS HAD THE OPPORTUNITY OF REVIEWING THIS JURY WAIVER WITH LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS.
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to a judgment or otherwise), be discharged only to the extent of the amount in the currency in which it is due (the “Agreed Currency”) that Agent or any Lender may, in accordance with normal banking procedures, purchase with the sum paid in the Other Currency (after any premium and costs of exchange) on the Business Day immediately after the day on which Agent or such Lender receives the payment. If the amount in the Agreed Currency that may be so purchased for any reason falls short of the amount originally due, Borrower or such Loan Party shall pay additional amounts, in the Agreed Currency, as may be necessary to compensate for the shortfall. Any obligation of Borrower or any Loan Party not discharged by that payment shall, to the extent permitted by applicable law, be due as a separate and independent obligation and, until discharged, continue in full force and effect.
SECTION 10
“Accounts” means all of the following: (a) accounts receivable, contract rights, book debts, notes, drafts and other obligations and indebtedness arising from the sale, lease or exchange of goods or other property and/or the performance of services; (b) rights in, to and under all purchase orders for goods, services or other property; (c) rights to any goods, services or other property represented by any of the foregoing (including returned or repossessed goods and unpaid sellers’ rights of rescission, replevin, reclamation and rights to stoppage in transit); (d) monies due to or to become due under all contracts for the sale, lease or exchange of goods or other property and/or the performance of services (whether or not yet earned by performance); and (e) Proceeds of any of the foregoing and all collateral security and guaranties of any kind given by any Person with respect to any of the foregoing. |
“Affiliate” means any Person (a) directly or indirectly controlling, controlled by, or under common control with, Borrower; (b) directly or indirectly owning or holding five percent (5%) or more of any equity interest in Borrower; or (c) five percent (5%) or more of whose voting stock or other equity interest is directly or indirectly owned or held by Borrower. For purposes of this definition, “control” (including with |
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correlative meanings, the terms “controlling”, “controlled by” and “under common control with”) means the possession directly or indirectly of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities or by contract or otherwise. Notwithstanding the foregoing, none of Agent, any Lender nor any of their respective Affiliates shall be considered an Affiliate of Borrower or any of its Subsidiaries. |
“Agent” means Xxxxxx in its capacity as agent for the Lenders under this Agreement and any successor appointed pursuant to Subsection 8.2(G). | |
“Agreement” means this Credit Agreement (including all schedules, subschedules and exhibits hereto), as the same may from time to time be amended, supplemented or otherwise modified. | |
“Asset Disposition” means the disposition whether by sale, lease, transfer, exchange, loss, damage, destruction, casualty, condemnation or otherwise of any of the following: (a) any of the capital stock or other equity or ownership interest of any of Borrower’s Subsidiaries or (b) any or all of the assets of Borrower or any of its Subsidiaries other than sales of inventory in the ordinary course of business. | |
“Assignment and Acceptance Agreement” means an agreement among Agent, a Lender and such Lender’s assignee or transferee regarding their respective rights and obligations with respect to assignments of the Loans, the Revolving Loan Commitment and other interests under this Agreement and the other Loan Documents, substantially in the form of Exhibit 10.1(A) and with such amendments as the laws of any relevant jurisdiction may require. | |
“Availability” means the Maximum Revolving Loan Balance minus the aggregate outstanding principal balance of Revolving Loans. | |
“Bankruptcy Law” means Title 11 of the United States Code entitled “Bankruptcy”, the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada), the Winding-Up and Restructuring Act (Canada) and The Xxxxxxxxxx Xxx 0000 (Xxxxxx Xxxxxxx), each as amended from time to time or any applicable bankruptcy, insolvency or other similar law now or hereafter in effect in any jurisdiction and all rules and regulations promulgated thereunder. |
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“Base Rate Loan” means a Loan bearing interest by reference to the Base Rate. | |
“Borrower” means Portola Packaging, Inc., a Delaware corporation, and its successors and permitted assigns. | |
“Business Day” means (a) for all purposes other than as covered by clause (b) below, any day excluding Saturday, Sunday and any day which is a legal holiday under the laws of the State of Illinois, the State of California or the Commonwealth of Pennsylvania, or is a day on which banking institutions located in any such states are closed, and (b) with respect to all notices, determinations, fundings and payments in connection with Loans bearing interest at LIBOR, any day that is a Business Day described in clause (a) above and that is also a day for trading by and between banks in US Dollar deposits in the applicable interbank LIBOR market. | |
“C$” or “Canadian Dollars” means Canadian dollars, the lawful currency of Canada on the date of this Agreement. | |
“Canadian Pension Plan” means any plan, program or arrangement that is a pension plan for the purposes of any applicable pension benefits legislation or any tax laws of Canada or a Province thereof, whether or not registered under any such laws, which is sponsored, maintained or contributed to by, or to which there is or may be an obligation to contribute by, Borrower or any other Loan Party in respect of any Person’s employment in Canada with Borrower or such Loan Party. | |
“Canadian Restricted Subsidiaries” means Portola Packaging Ltd., a corporation amalgamated under the laws of Canada and continued under the laws of Yukon, and Portola Packaging Canada Ltd., a corporation amalgamated under the laws of Canada and continued under the laws of Yukon. | |
“Canadian Security Documents” means all instruments, documents and agreements executed by or on behalf of Canadian Restricted Subsidiaries or any other Person to guaranty or provide collateral security with respect to the Obligations of Borrower including, without limitation, the Security Agreement, any other security agreement or pledge agreement, any guaranty of the Obligations, any mortgage or deed of trust, any hypothec and all instruments, documents and agreements executed pursuant to the terms of the foregoing. |
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“Capital Expenditures” means, for any period, the sum (without duplication) of the following for Borrower and its Consolidated Subsidiaries on a Consolidated basis: (a) the amount capitalized as capital expenditures for the period, under GAAP, as property, plant, and equipment or similar fixed asset accounts and (b) deposits made in the period in connection with property, plant, and equipment, less deposits of a prior period included above. | |
“Capital Stock” means any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock, including, without limitation, with respect to partnerships, partnership interests (whether general or limited) and any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, such partnership. | |
“Cash Management Obligations” has the meaning assigned to such term in the Security Agreement. |
“Change of Control” means (a) any sale, lease, exchange or transfer (in one transaction or in a series of related transactions) of all or substantially all the assets of Borrower to any Person or group of related Persons (other than Permitted Investors), (b) the merger or consolidation of Borrower with or into another corporation or the merger or consolidation of another corporation into Borrower with the effect that immediately after such transaction the stockholders of Borrower immediately prior to such transaction hold less than fifty percent (50%) of the total voting power of all securities generally entitled to vote in the election of directors, managers or trustees of the Person surviving such merger or consolidation, (c) (i) prior to Borrower’s first Public Equity Offering, the acquisition by any “person” or “group” (as those terms are used in Sections 13(d) and 14(d) of the Exchange Act) (other than the Permitted Investors) of the ultimate “beneficial ownership” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act) of more than fifty percent (50%) of the voting power of all securities of Borrower generally entitled to vote in the election of directors of Borrower and (ii) after Borrower’s first Public Equity Offering, the acquisition by any person or group (defined as set forth in clause (i) above) (other than the Permitted Investors) of more than the greater of (A) forty percent (40%) of the voting power of all securities of Borrower generally entitled to vote in the election of directors of Borrower or (B) the total percentage of the voting power of all securities of Borrower generally entitled to vote in the election of |
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directors of Borrower held by the Permitted Investors in the aggregate at the time of determination, (d) during any period of twenty-four consecutive months, individuals who at the beginning of such period constituted the Board of Directors of Borrower (together with any new directors whose election by such Board or whose nomination for election by the stockholders of Borrower was approved by a vote of a majority of the directors then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the members of the Board of Directors of Borrower, (e) the stockholders of Borrower shall approve any plan for the liquidation or dissolution of Borrower, (f) Xxxx X. Xxxxx and Related Parties with respect to Xxxx X. Xxxxx shall at any time fail collectively to own, beneficially and of record, at least 2,200,000 shares of Class B Common Stock of Borrower (as appropriately adjusted to reflect any stock divisions, stock dividends or other similar transactions with respect to such capital stock after the date hereof), (g) Borrower shall at any time fail to own, beneficially and of record, all of the outstanding stock of Canadian Restricted Subsidiaries and UK Restricted Subsidiary or (h) the occurrence of a “Change of Control” (as such term is defined in the Senior Note Indenture). As used in this definition: |
(x) “Permitted Investors” means Xxxx X. Xxxxx, Chase Manhattan Capital Corporation, LJL Cordovan Investors and Related Parties of any of the foregoing; | |
(y) “Related Party” with respect to any shareholder means (1) any controlling stockholder, eighty percent (80%) (or more) owned Subsidiary, or spouse or immediate family member (in the case of an individual) of such shareholder or (2) a trust, corporation, partnership or other entity, the beneficiaries, stockholders, partners, owners or Persons beneficially holding an eighty percent (80%) or more controlling interest of which consist of such shareholder and/or such other persons referred to in the immediately preceding clause (1). |
“Chase Warrant” means, collectively, the amended and restated Warrant No. 6A dated as of June 30, 1994, issued to Chase Manhattan Capital Corporation evidencing rights to purchase 2,052,526 shares of Class A Common Stock of Borrower, subject to adjustment as provided therein, and all warrants issued upon transfer, division or combination, or in substitution for, any thereof, in each case, as amended, supplemented or restated from time to time. |
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“Closing Date” means September 29, 2000. | |
“Collateral” has the meaning assigned to such term in the Security Documents and shall also include all other property from time to time securing the Obligations. | |
“Consolidated” means, with respect to Borrower, the consolidation in accordance with GAAP (except to the extent that the exclusion of the accounts of Unrestricted Subsidiaries in any such consolidation would not be in accordance with GAAP) of the financial statements, assets, liabilities, stockholders equity, income or expense, as applicable, of Borrower and its Consolidated Subsidiaries or Consolidated Restricted Subsidiaries, as applicable. | |
“Consolidated Restricted Subsidiary” means, with respect to any Person, each Restricted Subsidiary of such Person whose financial statements are consolidated with the financial statements of such Person in accordance with GAAP. | |
“Consolidated Subsidiary” means, with respect to any Person, each Subsidiary of such Person whose financial statements are consolidated with the financial statements of such Person in accordance with GAAP. | |
“Default” means a condition or event that, after notice or lapse of time or both, would constitute an Event of Default if that condition or event were not cured or removed within any applicable grace or cure period. | |
“Disqualified Stock” means any Capital Stock which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder thereof, in whole or in part on or prior to a date that is one year after the Commitment Termination Date. | |
“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 |
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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 and (g) non-recurring restructuring charges approved by Requisite Lenders. | |
“Environmental Claims” means claims, liabilities, investigations, administrative proceedings, whether pending or, to the best of the Borrower’s knowledge, threatened, or judgments or orders relating to any Hazardous Materials. | |
“Equipment” means all “equipment” (as defined in the UCC), including, without limitation, all machinery, motor vehicles, trucks, trailers, vessels, aircraft and rolling stock and all parts thereof and all additions and accessions thereto and replacements therefor. | |
“Equity Interests” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock). | |
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended. | |
“Xxxxxxxxx Property” means the following parcels of property: 800-830 Xxxxxxxxx Court, 000 Xxxxxxxxx Xxxxx and 0000 Xxx Xxxxxxx Xxxx, Xxx Xxxx, Xxxxxxxxxx 00000. | |
“Federal Funds Effective Rate” means, for any day, the weighted average (rounded upwards, if necessary, to the next 1/100th of 1%) of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary, to the next 1/100th of 1%) of the quotations for such day for such transactions received by Agent from three Federal funds brokers of recognized standing selected by it. | |
“Fixed Charge Coverage” means, for any period, Operating Cash Flow for such period divided by Fixed Charges for such period. |
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“Fixed Charges” means, for any period, the sum of the following for Borrower and its Restricted Subsidiaries on a Consolidated basis: (a) interest expense, net of interest income, included in the determination of Net Income, less (i) amortization of capitalized fees and expenses incurred with respect to the Related Transactions included in interest expense, (ii) amortization of any original issue discount attributable to any warrants included in interest expense and (iii) interest paid in kind and included in interest expense, (b) any provision for (benefit from (but only to the extent received in cash)) income or franchise taxes included in the determination of net income, (c) increases (decreases) in short-term and long-term deferred tax assets, (d) decreases (increases) in short-term and long-term deferred tax liabilities, (e) scheduled payments of principal with respect to all Indebtedness (including the principal portion of scheduled payments of capital lease obligations but and excluding reductions of the Revolving Loan) and (f) Restricted Junior Payments made in cash. | |
“GAAP” means, (a) with respect to Borrower and the Restricted Subsidiaries other than the Canadian Restricted Subsidiaries and the UK Restricted Subsidiary, generally accepted accounting principles as set forth in statements from Auditing Standards No. 69 entitled “The Meaning of ‘Present Fairly in Conformance with Generally Accepted Accounting Principles in the Independent Auditors Reports’” issued by the Auditing Standards Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board that are applicable to the circumstances as of the date of determination, (b) with respect to the Canadian Restricted Subsidiaries, generally accepted accounting principles in Canada as in effect from time to time as set forth in the opinions and pronouncements of the relevant Canadian public and private accounting boards and institutes which are applicable to the circumstances as of the date of determination consistently applied and (c) with respect to the UK Restricted Subsidiary, accounting principles and practices which are from time to time generally acceptable in the United Kingdom. | |
“Hazardous Material” means all or any of the following: (a) substances that are defined or listed in, or otherwise classified pursuant to, any applicable laws or regulations as “hazardous substances”, “hazardous materials”, “hazardous wastes”, “toxic substances” or any other formulation intended to define, list or classify substances by |
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reason of deleterious properties such as ignitability, corrosivity, reactivity, carcinogenicity, reproductive toxicity or “EP toxicity”; (b) oil, petroleum or petroleum derived substances, natural gas, natural gas liquids or synthetic gas and drilling fluids, produced waters and other wastes associated with the exploration, development or production of crude oil, natural gas or geothermal resources; (c) any flammable substances or explosives or any radioactive materials; and (d) asbestos in any form or electrical equipment which contains any oil or dielectric fluid containing levels of polychlorinated biphenyls in excess of fifty parts per million. | |
“Xxxxxx Warrant” means, collectively, the Warrant No. 7A dated as of June 30, 1994, issued to Xxxxxx in substitution for that certain Warrant No. 3A dated as of October 9, 1992, issued by Portola — California to Xxxxxx, evidencing rights to purchase 440,215 shares of Class A Common Stock of Borrower, subject to adjustment as provided therein, and all warrants issued upon transfer, division or combination, or in substitution for, any thereof, in each case, as amended, supplemented or restated from time to time. | |
“Inactive Subsidiaries” means, collectively, Cap Snap, Inc., a California corporation, Cap Snap Seal, Inc., a California corporation, Cap Snap Co., a Delaware corporation, Northern Engineering & Plastics Corporation, a Delaware corporation, and Northern Plastics Corporation — Puerto Rico, a Pennsylvania corporation. | |
“Indebtedness” as applied to any Person, means: (a) all indebtedness for borrowed money; (b) that portion of obligations with respect to capital leases that is properly classified as a liability on a balance sheet in conformity with GAAP; (c) any obligation under any lease (a “synthetic lease”) treated as an operating lease under GAAP and as a loan or financing for United States income tax purposes; (d) notes payable and drafts accepted representing extensions of credit whether or not representing obligations for borrowed money; (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 six (6) months from the date the obligation is incurred or is evidenced by a note or similar written instrument; (f) “earnouts” and similar payment obligations; (g) obligations under forward contracts, future contracts, swaps, options or other financing agreements or arrangements the value of which is dependent upon interest rates, currency exchange rates, commodities or other indices; and (h) all indebtedness secured by any Lien on any property or |
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asset owned or held by that Person regardless of whether the indebtedness secured thereby shall have been assumed by that Person or is nonrecourse to the credit of that Person. | |
“Interest Rate Agreement” means any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement or other similar agreement or arrangement designed to protect any Person against fluctuations in interest rates. | |
“IRC” means the Internal Revenue Code of 1986, as amended from time to time and all rules and regulations promulgated thereunder. | |
“Inventory” means all inventory (including all “inventory,” as defined in the UCC or as defined in any other Personal Property Security Legislation), including, without limitation, finished goods, raw materials, work in process and other materials and supplies (including packaging and shipping materials) used or consumed in the manufacture or production thereof and returned and repossessed goods. | |
“Issuing Lender” means Xxxxxx, or any other Lender designated from time to time by Agent, in such Lender’s capacity as an issuer of Letters of Credit hereunder and Xxxxxx as the representative party for the Lenders under risk participation agreements with banks supporting the issuance of Letters of Credit hereunder. | |
“Lender” means, collectively, each Person executing this Agreement as a Lender set forth on the signature pages hereto, and each Person that hereafter becomes a party to this Agreement as a Lender pursuant to subsection 8.1 and the Issuing Lenders. | |
“Letter of Credit Liability” means, as to each Letter of Credit, all reimbursement obligations of Borrower to the issuer of the Letter of Credit consisting of (a) the amount available to be drawn or which may become available to be drawn; (b) all amounts which have been paid and made available by the issuing bank to the extent not reimbursed by Borrower, whether by the making of a Revolving Loan or otherwise; and (c) all accrued and unpaid interest, fees and expenses with respect thereto. In any case where Xxxxxx, as an Issuing Lender, has permitted Borrower to obtain Letters of Credit from a bank with which Xxxxxx has entered into a risk participation agreement, the maximum aggregate amount of Letters of Credit that may be requested by Borrower from such bank for which Xxxxxx and Lender may have liability under the risk |
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participation agreement will be considered outstanding for purposes of determining Letter of Credit Liability unless the bank which is the beneficiary under the risk participation agreement reports daily activity to Xxxxxx showing actual outstanding Letters of Credit issued for Borrower, in which event the outstanding amount of Letter of Credit Liability shall be the amount of such actual outstanding Letters of Credit from time to time. In the case of any Letter of Credit that is issued in a currency other than US Dollars, the corresponding Letter of Credit Liability shall be determined in US Dollars based on the currency exchange rate from time to time applicable to the issuer of such Letter of Credit or, in the case such Letter of Credit is issued by a bank with which Xxxxxx has entered into a risk participation agreement, the corresponding Letter of Credit Liability shall be determined in US Dollars based on the currency exchange rate from time to time applicable to Xxxxxx under such risk participation agreement. | |
“LIBOR Loan” means a Loan bearing interest by reference to LIBOR. | |
“Lien” means any lien, hypothec, mortgage, pledge, security interest, charge, encumbrance or governmental levy or assessment of any kind, whether voluntary or involuntary (including any conditional sale or other title retention agreement and any lease in the nature thereof), and any agreement to give any lien, hypothec, mortgage, pledge, security interest, charge or encumbrance. | |
“Loan” or “Loans” means an advance or advances under the Revolving Loan Commitment. | |
“Loan Documents” means this Agreement, the Notes, the Security Documents, the Negative Pledge Agreements 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. | |
“Material Adverse Effect” means (a) a material adverse effect upon the business, operations, properties, assets or condition (financial or |
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otherwise) of Borrower and its Restricted Subsidiaries taken as a whole or (b) the impairment of the ability of any Loan Party to perform its obligations under any Loan Document to which it is a party or of Agent or any Lender to enforce any Loan Document or collect any of the Obligations. In determining whether any individual event would result in a Material Adverse Effect, notwithstanding that such event does not of itself have such effect, a Material Adverse Effect shall be deemed to have occurred if the cumulative effect of such event and all other then existing events would result in a Material Adverse Effect. | |
“Mortgage” means each of the mortgages, deeds of trust, leasehold mortgages, leasehold deeds of trust, collateral assignments of leases or other real estate security documents delivered by any Loan Party to Agent, with respect to Mortgaged Property, all in form and substance satisfactory to Agent. | |
“Negative Pledge Agreements” means the Negative Pledge Agreements dated on or about the date hereof, executed by each of Xxxx X. Xxxxx and Xxxxx Manhattan Capital Corporation in favor of Agent, for the benefit of Lenders, as amended, supplemented or restated from time to time. | |
“Net Income” means, for any period, the net income (or loss) for the period of Borrower and its Restricted Subsidiaries on a Consolidated basis determined in accordance with GAAP, but excluding: (a) the income (or loss) of any Person (other than Restricted Subsidiaries of Borrower) in which Borrower or any of its Restricted Subsidiaries has an ownership interest unless received by Borrower or its Restricted Subsidiaries in a cash distribution; and (b) the income (or loss) of any Person accrued prior to the date it became a Restricted Subsidiary of Borrower or is merged into or consolidated with Borrower. | |
“Net Proceeds” means cash proceeds received by Borrower or any of its Subsidiaries from any Asset Disposition (including insurance proceeds, awards of condemnation, and payments under notes or other debt securities received in connection with any Asset Disposition), net of (a) the costs of such sale, lease, transfer or other disposition (including taxes attributable to such sale, lease or transfer) and (b) amounts applied to repayment of Indebtedness (other than the Obligations) secured by a Lien on the asset or property disposed. |
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“Note” or “Notes” means one or more of the promissory notes of Borrower substantially in the form of Exhibit 10.1(B), or any combination thereof. | |
“Obligations” means all obligations, liabilities and indebtedness of every nature of each Loan Party from time to time owed to Agent, any Issuing Lender or any Lender under the Loan Documents including, without limitation, the principal amount of all debts, claims and indebtedness, accrued and unpaid interest, all reimbursement obligations in respect of any Letters of Credit, and all fees, costs and expenses, whether primary, secondary, direct, contingent, fixed or otherwise, heretofore, now and/or from time to time hereafter owing, due or payable whether before or after the filing of a proceeding under any Bankruptcy Law by or against Borrower, any of its Subsidiaries or any other Loan Party. | |
“Operating Cash Flow” means, for any period (a) EBITDA for such period, less (b) Unfinanced Capital Expenditures for such period, less (c) all Investments made in cash by Borrower or any of its Restricted Subsidiaries during such period (other than Investments made in Borrower by a Restricted Subsidiary of Borrower), less (d) Other Capitalized Costs. “Other Capitalized Costs” means the gross amount capitalized, for such period, as long term assets (net of cash received in respect of long term assets), other than (i) Capital Expenditures and (ii) fees and expenses capitalized with respect to the Related Transactions. | |
“Person” means and includes natural persons, corporations, limited liability companies, limited partnerships, limited liability partnerships, general partnerships, joint stock companies, joint ventures, associations, companies, trusts, banks, trust companies, land trusts, business trusts or other organizations, whether or not legal entities, and governments and agencies and political subdivisions thereof and their respective permitted successors and assigns (or in the case of a governmental person, the successor functional equivalent of such Person). | |
“,” or “Pounds Sterling” means British pounds sterling or such other lawful currency of the United Kingdom from time to time. | |
“Personal Property Security Legislation” means any applicable personal property security legislation as all such legislation now exists or may from time to time hereafter be amended, modified, recodified, |
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supplemented or replaced, together with all rules, regulations thereunder or related thereto. | |
“PPE” means Equipment and Real Estate of Borrower and its Restricted Subsidiaries to the extent classified as property, plant and equipment on Borrower’s Consolidated balance sheet prepared in accordance with GAAP. | |
“PPSA” means the Personal Property Security Act (Ontario) as such legislation now exists or may from time to time hereafter be amended, modified, recodified, supplemented or replaced, together with all rules, regulations thereunder or related thereto. Reference to sections of the PPSA shall be construed to also refer to any successor sections. | |
“Priority Payable Reserves” means, at any time, the full amount of the liabilities at such time which have a trust imposed to provide for payment or Lien ranking or capable of ranking senior to or pari passu with security interests, liens or charges securing the Obligations on any of the Collateral under federal, provincial, state, county, municipal, common or local law including, but not limited, to claims for unremitted and accelerated rents, taxes, wages, workers’ compensation obligations, government royalties or pension fund obligations, together with the aggregate value, determined in accordance with GAAP, of all Eligible Inventory which Agent, acting reasonably, considers may be or may become subject to a right of a supplier to recover possession thereof under any federal, state or provincial law, where such supplier’s right may have priority over the security interests, liens or charges securing the Obligations including, without limitation, Eligible Inventory subject to a right of a supplier to repossess goods pursuant to Section 81.1 of the Bankruptcy and Insolvency Act (Canada). Agent shall from time to time determine in its reasonable discretion the amount of Priority Payables Reserve and shall deliver written notice of such determination to Borrower and Lenders. | |
“Pro Forma” means the unaudited Consolidated and consolidating balance sheets of Borrower and its Consolidated Subsidiaries prepared in accordance with GAAP (except for the exclusion of the accounts of Unrestricted Subsidiaries in Consolidated financial statements) as of the Closing Date after giving effect to the Related Transactions. The Pro Forma is annexed hereto as Schedule 10.1(A). |
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“Pro Rata Share” means (a) with respect to a Lender’s obligation to make Revolving Loans and such Lender’s right to receive payments of interest and principal with respect thereto and the related commitment fee described in subsection 1.2(B) and with respect to a Lender’s obligation to share in Letter of Credit Liability and to receive the related Letter of Credit fee described in subsection 1.2(C), except as otherwise provided in subsection 8.6(A)(3), the percentage obtained by dividing (i) the Revolving Credit Exposure of such Lender by (ii) the aggregate Revolving Credit Exposure of all Lenders and (b) for all other purposes (including, without limitation, the indemnification obligations arising under subsection 8.2(E)) with respect to any Lender, the percentage obtained by dividing (i) the Revolving Credit Exposure of that Lender by (ii) the aggregate Revolving Credit Exposure of all Lenders, in each case as the applicable percentages may be adjusted by assignments permitted pursuant to subsection 8.1. The Pro Rata Shares of each Lender and their respective commitment amounts are set forth on Schedule 10.1(B) hereto. | |
“Proceeds” means all proceeds of, and all other profits, rentals or receipts, in whatever form, arising from the collection, sale, lease, exchange, assignment, licensing or other disposition of, or realization upon, any Collateral including, without limitation, all claims against third parties for loss of, damage to or destruction of, or for proceeds payable under, or unearned premiums with respect to, policies of insurance with respect to any Collateral, and any condemnation or requisition payments with respect to any Collateral, in each case whether now existing or hereafter arising. | |
“Projections” means Borrower’s forecasted Consolidated and consolidating: (a) balance sheets; (b) profit and loss statements; (c) cash flow statements; and (d) capitalization statements, all prepared on a Subsidiary by Subsidiary basis on a consistent basis with Borrower’s historical financial statements, together with appropriate supporting details and a statement of underlying assumptions. | |
“Public Equity Offering” means a bona fide underwritten sale of common stock of Borrower pursuant to a registration statement (other than on Form S-8 or any other form relating to securities issuable under any benefit plan of Borrower or its Subsidiaries) that is declared effective by the Securities and Exchange Commission. |
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“Real Estate” means all now or hereafter owned or leased estates in real property, including, without limitation, all fees, leaseholds and future interests, together with all now or hereafter owned or leased interests in the improvements and emblements thereon, the fixtures attached thereto and the easements appurtenant thereto. | |
“Related Transactions” means the execution and delivery of the Related Transactions Documents, each borrowing under the Revolving Loan on the Closing Date and the payment of all fees, costs and expenses associated with all of the foregoing. | |
“Related Transactions Documents” means the Loan Documents and all other agreements, instruments and documents executed or delivered in connection with the Related Transactions. | |
“Requisite Lenders” means Lenders (other than Defaulting Lenders) having (a) sixty-six and two-thirds percent (66-2/3%) or more of the Revolving Loan Commitment or (b) if the Revolving Loan Commitment has been terminated, sixty-six and two-thirds percent (66-2/3%) or more of the aggregate outstanding principal balance of the Loans of all Lenders that are not Defaulting Lenders. | |
“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. | |
“Revolving Credit Exposure” means, with respect to any Lender as of any date of determination, (a) prior to the termination of the Revolving Loan Commitment, such Lender’s Revolving Loan Commitment and (b) after termination of the Revolving Loan Commitment, the sum of (i) the aggregate outstanding principal amount of the Revolving Loans of such Lender plus (ii) the aggregate amount of all participations purchased by such Lender in the outstanding Letter of Credit Liability. | |
“Security Agreement” means those separate security agreements, hypothecs and debentures, each dated on or about the date hereof, executed by Borrower and its Restricted Subsidiaries in favor of Agent, and securing Borrower’s Obligations hereunder and under the Loan Documents. |
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“Security Documents” means, collectively, the US Security Documents, the UK Security Documents and the Canadian Security Documents. | |
“Senior Note Documents” means the Senior Note Indenture and the other documents, instruments and agreements executed or delivered in connection with the issuance of the Senior Notes. | |
“Senior Note Indenture” means that certain Indenture dated as of October 2, 1995, between Borrower and the Senior Note Trustee, as amended, supplemented or restated from time to time. | |
“Senior Note Trustee” means Firstar Trust Company, as successor trustee for the holders of the Senior Notes. | |
“Senior Notes” means Borrower’s 10.75% Senior Notes Due October 1, 2005 issued in an aggregate principal amount of $110,000,000. | |
“Subordinated Indebtedness” means Indebtedness of Borrower or any of its Restricted Subsidiaries that is subordinated in right of payment to the Obligations on terms reasonably satisfactory to Agent. | |
“Subsidiary” means, with respect to any Person, any corporation, partnership, limited liability company, association or other business entity of which more than fifty percent (50%) of the total voting power of shares of stock (or equivalent ownership or controlling interest) entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof. | |
“Total Indebtedness” means, as of any date of determination thereof, the sum of (a) the average daily principal balance of the Revolving Loans for the one month period ending on such date plus (b) the outstanding principal balance on such date of all other Indebtedness of Borrower and its Restricted Subsidiaries on a Consolidated basis. | |
“UK Restricted Subsidiary ” means Portola Packaging Limited (U.K.) a corporation organized under the laws of England and Wales. |
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“UK Security Documents” means all instruments, documents and agreements executed by or on behalf of UK Restricted Subsidiary or any other Person to guaranty or provide collateral security with respect to the Obligations of Borrower including, without limitation, the Security Agreement, any other security agreement or pledge agreement, any guaranty of the Obligations, any mortgage or deed of trust, and all instruments, documents and agreements executed pursuant to the terms of the foregoing. | |
“Unfinanced Capital Expenditures” means, for any period (a) Capital Expenditures for such period, less (b) the portion of such Capital Expenditures financed under capital leases or other Indebtedness (Indebtedness, for this purpose, does not include drawings under the Revolving Loan). | |
“Unrestricted Subsidiary” means (a) those Subsidiaries designated as Unrestricted Subsidiaries on Subschedule 7.7, (b) any Subsidiary of Borrower which at the time of determination is designated an Unrestricted Subsidiary (as designated by the Board of Directors of Borrower as provided below) and (c) any Subsidiary of an Unrestricted Subsidiary. The Board of Directors of Borrower may designate any Subsidiary as an Unrestricted Subsidiary so long as (x) neither Borrower nor any Restricted Subsidiary is directly or indirectly liable for any Indebtedness or any other obligation or liability of such Subsidiary, (y) no default with respect to any Indebtedness or any other obligation or liability of such Subsidiary would permit (upon notice, lapse of time or otherwise) any holder of any other Indebtedness or any other obligation or liability of Borrower or any Restricted Subsidiary to declare a default on such other Indebtedness, obligation or liability of Borrower or a Restricted Subsidiary or cause the payment thereof to be accelerated or payable prior to its stated maturity; and (z) neither Borrower nor any Restricted Subsidiary shall have made any Investment in such Subsidiary unless such Investment is permitted under subsection 3.3. Any such designation by the Board of Directors shall be evidenced by a resolution of the Board of Directors delivered to Agent. The Board of Directors of Borrower may designate any Unrestricted Subsidiary as a Restricted Subsidiary at any time in the same manner as it would designate a Subsidiary as an Unrestricted Subsidiary, so long as immediately after such designation as a Restricted Subsidiary, there would be no Default or Event of Default hereunder. |
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“US Dollar”, “Dollar” or “$” means, unless otherwise qualified, dollars in lawful currency of the United States of America. | |
“US Security Documents” means all instruments, documents and agreements executed by or on behalf of Borrower or any other Person to guaranty or provide collateral security with respect to the Obligations of Borrower including, without limitation, the Security Agreement, any other security agreement or pledge agreement, any guaranty of the Obligations, any mortgage or deed of trust, and all instruments, documents and agreements executed pursuant to the terms of the foregoing. |
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Witness the due execution hereof by the respective duly authorized officers of the undersigned as of the date first written above.
PORTOLA PACKAGING, INC | |
By: /s/ Xxxxxx X. Xxxx Title: Vice President and Chief Financial Officer |
SP-1
XXXXXX FINANCIAL, INC., as Agent, Issuing Lender and a Lender |
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By: /s/ Xxxx X. Xxxxxx Title: Vice President |
SP-2
BANK OF AMERICA, N.A., as a Lender | |
By: /s/ Xxxxxxxxx X. Xxxxxx Title: Vice President |
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Address: 00 X. Xxxx Xxxxxx, Xxxxx 000 Xxxxxxxx, XX 00000 Attn: Xxxxxxxxx Xxxxxx Telecopy (000) 000-0000 |
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ABA No.: 000000000 Account No.: 00000-00000 Bank: Bank of America, N.A. San Francisco, CA |
SP-3
LIST OF EXHIBITS AND SCHEDULES
Exhibits | ||||||||
Exhibit 1.1(A) | — | Funding/Conversion/Continuation Request | ||||||
Exhibit 4.5(C) | — | Compliance Certificate | ||||||
Exhibit 4.5(F) | — | Borrowing Base Certificate | ||||||
Exhibit 10.1(A) | — | Assignment and Acceptance Agreement | ||||||
Exhibit 10.1(B) | — | Form of Revolving Note | ||||||
Schedules | ||||||||
Schedule 1.2 | — | Pricing Table | ||||||
Schedule 3.1 | — | Existing Indebtedness | ||||||
Schedule 3.2(A)(10) | — | Liens | ||||||
Schedule 3.4 | — | Contingent Obligations | ||||||
Schedule 3.8 | — | Affiliate Transactions | ||||||
Schedule 3.9 | — | Business Description | ||||||
Schedule 5.2 | — | Material Adverse Effect | ||||||
Schedule 5.4(A) | — | Jurisdictions of Organization and Qualifications | ||||||
Schedule 5.4(B) | — | Capitalization | ||||||
Schedule 5.6 | — | Title to Properties, Etc. | ||||||
Schedule 5.7 | — | Intellectual Property | ||||||
Schedule 5.8 | — | Investigations and Audits | ||||||
Schedule 5.9 | — | Employee Matters | ||||||
Schedule 7.1 | — | List of Closing Documents | ||||||
Subschedule 7.1 | — Litigation | |||||||
Subschedule 7.2 | — Employee Benefit Plans | |||||||
Subschedule 7.3 | — Closing Fees | |||||||
Subschedule 7.4 | — Investments | |||||||
Subschedule 7.5 | — Derivatives | |||||||
Subschedule 7.6 | — Bank Accounts | |||||||
Subschedule 7.7 | — Subsidiaries | |||||||
Schedule 10.1(A) | — | Pro Rata Shares and Commitment Amounts |