Exhibit 10.34
CONSENT AND OMNIBUS AMENDMENT REGARDING
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
This Consent and First Amendment Regarding Fourth Amended and
Restated Credit Agreement (this "Agreement") is entered into this 21st day of
May, 2004 among PORTOLA PACKAGING, INC., a Delaware corporation, as Borrower,
and GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation ("GECC"), for
itself, as Agent, Issuing Lender and Lender.
W I T N E S S E T H:
WHEREAS, Borrower and GECC, as Agent, Issuing Lender and Lender, are
parties to that certain Fourth Amended and Restated Credit Agreement dated as of
January 14, 2004 (as heretofore amended, the "Credit Agreement");
WHEREAS, Mr. Jack Watts transferred an aggregate of 15,000 shares of
class B series 1 common stock of Borrower held by him to the Watts Family
Foundation and Family Service Agency of San Mateo County (the "Transfer"); and
WHEREAS, Borrower has requested that GECC, as Agent and Lender,
consent to the Transfer and amend certain provisions of the Credit Agreement as
set forth herein, and GECC is willing to grant such consent and to amend the
Credit Agreement upon the terms and subject to the conditions set forth herein.
NOW THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein and in the Credit Agreement, the parties agree as
follows:
Section 1. Definitions. Capitalized terms used herein without
definition and defined in the Credit Agreement are used herein as defined
therein.
Section 2. Consent. Subject to the satisfaction of the terms and
conditions set forth herein, notwithstanding anything in the Credit Agreement or
the other Loan Documents to the contrary, GECC, as Agent and Lender, hereby
consents to the consummation of the Transfer. The consent set forth above shall
be limited precisely as written and shall not be deemed or otherwise construed
to constitute a waiver of any provisions of the Credit Agreement in connection
with any other transaction.
Section 3. Amendments to Credit Agreement. Subject to the
satisfaction of the terms and conditions set forth herein, the amendments to the
Credit Agreement set forth in this Section 3 shall become effective as of the
date hereof.
3.1 The definitions of "EBITDA", "Fixed Charges" and "Unfinanced
Capital Expenditure" set forth in Section 10.1 of the Credit Agreement are
hereby amended and restated in their entirety to read as follows:
"EBITDA" means, for any period, the sum (without duplication)
of the following for Borrower and its Restricted Subsidiaries on a
Consolidated basis: (a) Net Income for the period, (b) any provision
for (or less any benefit from) income and franchise taxes included
in the determination of Net Income, (c) interest expense deducted in
the determination of Net Income, (d) amortization and depreciation
deducted in determining Net Income, (e) losses (or less gains) from
Asset Dispositions or other non-cash items included in the
determination of Net Income (excluding sales, expenses or losses
related to current assets), (f) extraordinary losses (or less
gains), as defined under GAAP, net of related tax effects, included
in the determination of Net Income and (g) non-recurring
restructuring charges approved by Requisite Lenders, including (i)
for Borrower's 2004 fiscal year, severance and relocation costs not
exceeding $4,386,000 in the aggregate incurred in connection with
(A) relocating operations from Borrower's facilities in California
to its facility in Tolleson, Arizona, (B) relocating operations from
Borrower's South Carolina facility to its facilities in Kingsport,
Tennessee and elsewhere and (C) additional reductions in Borrower's
overall employee headcount, and (ii) in addition to the severance
and relocation costs specified in the preceding clause (i), for
Borrower's 2004 and 2005 fiscal years, severance costs not exceeding
$1,200,000 in the aggregate incurred in connection with reductions
in Borrower's overall employee headcount, in each case to the extent
such costs are deducted in determining Net Income for such period
and (h) non-recurring charges not exceeding $1,867,000 incurred by
Borrower in fiscal year 2004 in connection with the repurchase of
the Chase Warrant and the Heller Warrant with proceeds received by
Borrower from its issuance of the Senior Notes to the extent such
costs are deducted in determining Net Income for such period. To the
extent EBITDA is being calculated for any period which includes any
of the following months, EBITDA for such months shall be deemed to
be as follows: January 2003, $2,501,000; February 2003, $3,048,000;
March 2003, $2,910,000; April 2003, $3,147,000; May 2003,
$4,587,000; June 2003, $4,277,000; July 2003, $3,571,000; August
2003, $5,348,000; September 2003, $2,928,000; October 2003,
$2,201,000; and November 2003, $2,770,000.
"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 (but excluding interest
expense incurred from and after the Closing Date in respect of the
Senior Defeased Notes in an amount not exceeding $985,000), less (i)
amortization of capitalized fees and expenses included in interest
expense and incurred with respect to the Related Transactions or the
transactions under the Existing Credit Agreement, (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
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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
excluding reductions of the Revolving Loan) and (f) Restricted
Junior Payments made in cash, other than Restricted Payments
permitted under subsection 3.5(A). To the extent Fixed Charges are
being calculated for any period which includes any of the following
months, Fixed Charges for such month shall be deemed to be as
follows: January 2003, $912,000; February 2003, $979,000; March
2003, $1,065,000; April 2003, $1,118,000; May 2003, $1,287,000; June
2003, $2,630,000; July 2003, $1,836,000; August 2003, $3,396,000;
September 2003, $1,595,000; October 2003, $875,000; and November
2003, $1,537,000.
"Unfinanced Capital Expenditures" means, for any period (a)
Capital Expenditures for such period, less (b) the portion of such
Capital Expenditures financed (i) under capital leases or other
Indebtedness (Indebtedness, for this purpose, does not include
drawings under the Revolving Loan) or (ii) with Net Proceeds of the
sale of the Chino Property, the Sumter Property and the Faulstich
Property so long as such sale complies with the requirements of
Sections 3.7(b)(ii), (iii), (iv) and (v) of the Credit Agreement.
Section 4. Amendments to Post Closing Matters Agreement. Schedule A
to the Post Closing Agreement is hereby amended and restated in its entirety to
read as Schedule A attached hereto.
Section 5. Conditions. The effectiveness of this Agreement is
subject to Borrowers' satisfaction of the following conditions on or before the
date hereof in a manner satisfactory to the Agent:
5.1 Continuation of Representations and Warranties. After giving
effect to the replacement Schedules delivered herewith, the representations and
warranties made by the Loan Parties contained in the Credit Agreement and the
other Loan Documents shall be true and correct in all material respects on and
as of the date hereto with the same effect as if made on and as of the date
hereof (except to the extent such representations and warranties expressly
relate to an earlier date).
5.2 No Existing Default. As of the date hereof and after giving
effect to this Agreement, no Default or Event of Default shall have occurred and
be continuing or shall result from the consummation of the transactions
contemplated hereunder (including without limitation the consummation of the
Transfer).
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Section 6. Representations and Warranties of Borrower. Borrower
represents and warrants that:
(i) the execution, delivery and performance by the Borrower of
this Agreement have been duly authorized by all necessary corporate action and
this Agreement is a legal, valid and binding obligation of the Borrower
enforceable against the Borrower in accordance with its terms;
(ii) each of the representations and warranties contained in
the Credit Agreement is true and correct in all material respects on and as of
the date hereof as if made on the date hereof, except to the extent that such
representations and warranties expressly relate to an earlier date; and
(iii) neither the execution, delivery and performance of this
Agreement nor the consummation of the transactions contemplated hereby does or
shall contravene, result in a breach of, or violate (i) any provision of any
Loan Party's certificate or articles of incorporation or bylaws, (ii) any law or
regulation, or any order or decree of any court or government instrumentality,
or (iii) any indenture, mortgage, deed of trust, lease, agreement or other
instrument to which any Loan Party or any of its Subsidiaries is a party or by
which any Loan Party or any of its Subsidiaries or any of their property is
bound.
Section 7. Reference To And Effect Upon The Credit Agreement.
(i) Except as specifically provided herein, the Credit
Agreement and the other Loan Documents shall remain in full force and effect and
are hereby ratified and confirmed.
(ii) The execution, delivery and effectiveness of this
Agreement shall not operate as a waiver of any right, power or remedy of Agent
or any Lender under the Credit Agreement or any Loan Document, nor constitute a
waiver of any provision of the Credit Agreement or any Loan Document, except as
specifically set forth herein.
(iii) This Agreement shall be deemed to be a Loan Document.
Section 8. Costs And Expenses. Borrower agrees to reimburse Agent
for all fees, costs and expenses, including the fees, costs and expenses of
counsel or other advisors for advice, assistance, or other representation in
connection with this Agreement.
Section 9. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAWS
PROVISIONS) OF THE STATE OF ILLINOIS.
Section 10. Headings. Section headings in this Agreement are
included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purposes.
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Section 11. Counterparts. This Agreement may be executed in any
number of counterparts, each of which when so executed shall be deemed an
original, but all such counterparts shall constitute one and the same
instrument.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto hereupon set their hands as
of the date first written above.
PORTOLA PACKAGING, INC.
By: /s/ Dennis L. Berg
------------------------------------
Title: VP & CFO
GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent, Issuing Lender
and Lender
By: /s/ Woodrow Broaders
------------------------------------
Title: Only Authorized Signatory
(Signature Page to Consent Agreement)
CONSENT AND REAFFIRMATION (SUBSIDIARY GUARANTORS)
Each of the undersigned hereby (i) acknowledges receipt of a copy of
the foregoing Consent and First Amendment to Credit Agreement; (ii) consents to
Borrower's execution and delivery thereof; (iii) affirms that nothing contained
therein shall modify in any respect whatsoever its guaranty of the obligations
of Borrower to Agent and Lenders and reaffirms that such guaranty is and shall
continue to remain in full force and effect and that each Loan Document to which
it is a party or otherwise bound and all Collateral encumbered thereby will
continue to guaranty or secure, as the case may be, to the fullest extent
possible, the payment and performance of all obligations under or in respect of
such guaranty and such other Loan Documents; and (iv) confirms that, as of the
date hereof, it does not have, and hereby waives, remises and releases any
claims or causes of action of any kind against Agent or any of the Lenders or
any of their officers, directors, employees, agents, attorneys, or any of the
Lenders or any of their officers, directors, employees, agents, attorneys or
representatives, or against any of their respective predecessors, successors, or
assigns relating in any way to any event, circumstance, action, or omission
relative to any of the Loan Documents or any transaction contemplated thereby,
from the beginning of time through the date hereof. Although each of the
undersigned has been informed of the matters set forth herein and has
acknowledged and consented to same, each of the undersigned understands that
Agent and Lenders have no obligation to inform it of such matters in the future
or to seek its acknowledgment or consent to future Agreements or waivers, and
nothing herein shall create such a duty.
IN WITNESS WHEREOF, the undersigned have executed
this Consent and Reaffirmation on and as of the date of such Agreement.
PORTOLA PACKAGING LTD.
By: /s/ Fred Lang
------------------------------------
Name: Fred Lang
Title: Director
PORTOLA PACKAGING CANADA LTD./
EMBALLAGES PORTOLA CANADA LTEE
By: /s/ James A. Taylor
------------------------------------
Name: James A. Taylor
Title: Director
PORTOLA ALLIED TOOL, INC.
By: /s/ James A. Taylor
------------------------------------
Name: James A. Taylor
Title: President and Director
PORTOLA PACKAGING LIMITED (U.K.)
By: /s/ James A. Taylor
------------------------------------
Name: James A. Taylor
Title: Director
ATLANTIC PACKAGING SALES LLC
By: /s/ James A. Taylor
------------------------------------
Name: James A. Taylor
Title: Director
TECH INDUSTRIES, INC.
By: /s/ James A. Taylor
------------------------------------
Name: James A. Taylor
Title: Director
(Signature Page to Affirmation to Consent Agreement by Subsidiary Guarantors)
SCHEDULE A
TO
CONSENT AND FIRST AMENDMENT
1. On or prior to June 30, 2004, Borrower shall deliver to Agent an executed
Bank Agency Agreement(s) in form and substance acceptable to Agent with
respect to all accounts of Borrower and/or its Restricted Subsidiaries
located at Union Bank of California ("Union Bank"), which Bank Agency
Agreement(s) shall replace the Bank Agency Agreement(s) in place with
place with Union Bank as of the Closing Date. In the event Union Bank does
not sign a Bank Agency Agreement acceptable to the Agent, within such time
period, Borrower shall cause all accounts with Union Bank to be closed and
move such accounts to a bank that has executed a Bank Agency Agreement in
form and substance acceptable to Agent.
2. On or before June 30, 2004, Borrower shall, or shall cause its Restricted
Subsidiaries to deliver to Agent executed Bank Agency Agreements, in form
and substance acceptable to Agent, with respect to all accounts of
Borrower and its Restricted Subsidiaries at CIBC Bank (Canadian). In the
event CIBC Bank does not execute a Bank Agency Agreement acceptable to the
Agent within such time period, Borrower shall, or shall cause its
Restricted Subsidiaries to, close all accounts located at such bank and
move all such accounts to a bank that has executed a Bank Agency Agreement
in form and substance acceptable to Agent.
3. On or before June 30, 2004, Borrower shall, or shall cause its Restricted
Subsidiaries to deliver to Agent executed landlord waiver agreements, in
form and substance acceptable to Agent, for the following locations:
(a) 16230-112th Avenue, Edmonton, Alberta;
(c) 12431 Horseshoe Way, Richmond, British Columbia; and
(d) 280 Bowes Road, Vaughan, Ontario.
4. On or before June 30, 2004, Borrower shall, or shall cause its Restricted
Subsidiaries to deliver to Agent executed bailee waiver agreements, in
form and substance acceptable to Agent, with each of the following
companies and/or locations:
(a) Southern Merchandise & Storage; and
(b) Cambridge Valley Machining Inc.
5. On or before June 15, 2004, Borrower shall, or shall cause its Restricted
Subsidiaries to deliver to the Agent, all in form and substance reasonably
satisfactory to Agent a date down title endorsement for the title policy
that was previously issued and a modification endorsement for the property
located in Woonsocket, Rhode Island.
Schedule A-1