EXHIBIT 10.29



 





EXHIBIT 10.29





LIMITED WAIVER AND SECOND AMENDMENT TO

FOURTH AMENDED AND RESTATED CREDIT AGREEMENT




          This Limited Wavier and Second Amendment to Fourth Amended and Restated
Credit Agreement (this “Agreement”) is entered into
this 24th day of November,
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 16, 2004 (as amended, restated, supplemented or otherwise modified
from time to time, the “Credit Agreement”);



          WHEREAS, the Events of Default listed on Exhibit A hereto (the “Specified
Defaults”) have occurred and are continuing under the Credit Agreement; and



          WHEREAS, Agent has agreed to waive the Specified Defaults, and the parties
have agreed to amend the Credit Agreement, in each case upon the terms and
conditions set forth herein.



          NOW THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained herein and in the Credit Agreement, the parties agree as
follows:



          Section 1. Definitions. Capitalized terms used herein without definition
and defined in the Credit Agreement are used herein as defined therein.



          Section 2. Limited Waiver. Subject to the satisfaction of the conditions
precedent set forth in Section 4 hereof, Agent and Lenders hereby waive the
Specified Defaults; provided that such waiver shall be limited precisely as
written and shall not be deemed or otherwise construed to constitute a waiver
of any other Default or Event of Default or to prejudice any right, power or
remedy which Agent and Lenders may now have or may have in the future under or
in connection with the Credit Agreement or any other Loan Document (after
giving effect to this Agreement), all of which rights, powers and remedies are
hereby expressly reserved by Agent and Lenders.



          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  Section 3.3(I) of the Credit Agreement is hereby amended and restated
in its entirety to read as follows:




          “(I)  Investments made after the Closing Date in
Persons, including Subsidiaries, principally engaged in
similar lines of business to



 









 






that of Borrower or Borrower’s existing Restricted
Subsidiaries that are Loan Parties as of the Closing Date
(including the packaging or product integrity business) not
to exceed the sum of (1) $10,000,000 plus (2) the aggregate
net cash proceeds from the issuance of capital stock or
other equity securities of Borrower after the Closing Date
which are contributed as additional paid-in capital to
Borrower and are at all times prior to the making of any
such Investment held by Borrower in a segregated account and
not co-mingled with any other funds of Borrower or its
Subsidiaries (less all of such net cash proceeds used or
otherwise segregated to repurchase Senior Notes or capital
stock or other equity securities of Borrower or applied for
other purposes) in aggregate amount at any one time
outstanding (measured by the fair market value of such
Investment as of the date made); provided, that no such
Investment shall be made following the Second Amendment Date
unless Fixed Charge Coverage exceeds 1.20 to 1.00 as of the
most recently ended fiscal quarter for which information is
then available; and”



          3.2  Section 3.5(A) of the Credit Agreement is hereby amended and restated
in its entirety to read as follows:




          “(A)  During the period from the Second Amendment Date
to the last day of the first Loan Year, Borrower may redeem shares of its capital stock with proceeds received by
Borrower from its issuance of the Senior Notes in an
aggregate amount not exceeding $2,500,000 which are at all
times prior to any such repurchase or redemption held by
Borrower in a segregated account and not co-mingled with any
other funds of Borrower or its Subsidiaries so long as:




               (i)  Agent shall have received the financial
information set forth in subsection 4.5(A) for the
fiscal quarter ending November 30, 2004;




               (ii)  no Default or Event of Default is then in
existence or would be created as a result thereof; and




               (iii)  after giving effect to such repurchase or
redemption, Availability is not less than
$10,000,000.”



          3.3  Section 4.2 of the Credit Agreement is hereby amended and restated in
its entirety to read as follows:




          “4.2  Fixed Charge Coverage. Borrower shall not permit the
Fixed Charge Coverage for any twelve (12) month period ending on
the last day of each fiscal quarter set forth below to be less than
the ratio set forth below for such period.



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	Date
	 	Ratio

	August 31, 2004
	 	 	0.95 to 1.00	 
	November 30, 2004
	 	 	0.89 to 1.00	 
	February 28, 2005
	 	 	0.75 to 1.00	 
	May 31, 2005
	 	 	0.75 to 1.00	 
	August 31, 2005
	 	 	1.00 to 1.00	 
	November 30, 2005
	 	 	1.05 to 1.00	 
	February 28, 2006 and the last day of each fiscal quarter
thereafter
	 	 	1.10 to 1.00	 







          3.4  Section 4.3 of the Credit Agreement is hereby amended and restated in
its entirety to read as follows:




          “4.3  Unfinanced Capital Expenditure Limits. Borrower
and its Restricted Subsidiaries on a Consolidated basis
shall not make Capital Expenditure during any fiscal year,
commencing with the 2005 fiscal year, that exceed
$13,500,000 in the aggregate for such fiscal year (the
“CapEx Limit”); provided that Borrower and its Restricted
Subsidiaries may make Unfinanced Capital Expenditures during
any fiscal year in excess of the CapEx Limit (but in no
event in excess of $16,000,000 in the aggregate for such
fiscal year) so long as, as of the date such Unfinanced
Capital Expenditures are made, Fixed Charge Coverage as of
the most recently ended fiscal quarter for which information
is then available exceeds 1.10 to 1.00, calculated on a pro
forma basis after giving effect to such Unfinanced Capital
Expenditures and all other Unfinanced Capital Expenditures
made by Borrower and its Restricted Subsidiaries following
the last day of such fiscal quarter.



          3.5  Section 4.4 of the Credit Agreement is hereby amended and restated in
its entirety to read as follows:




          “4.4  Maintenance of Minimum Availability. Borrower
shall maintain an aggregate Availability of at least (a)
$3,000,000 at all times other than during a Fixed Asset Draw
Period or a Minimum Fixed Charge Coverage Period and (b)
$5,000,000 at all times during a Fixed Asset Draw Period or
a Minimum Fixed Charge Coverage Period.”



          3.6  Each of the following definitions set forth in Section 10.1 of the
Credit Agreement is hereby amended and restated in its 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



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Income (excluding sales, expenses or losses related to
current assets), (f) extraordinary losses (or less gains),
as defined under GAAP, net of related tax effects, included
in the determination of Net Income, (g) non-recurring
restructuring charges approved by Requisite Lenders,
including (i) for Borrower’s 2004 fiscal year, severance and
relocation costs not exceeding $5,151,000 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, (C) restructuring the operations of
Tech Industries, and (D) 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 charges are deducted in determining Net Income
for such period, (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 charges are
deducted in determining Net Income for such period and (i) a
one-time non-recurring non-cash charge not exceeding
$1,200,000 incurred by Borrower in fiscal year 2004 in
connection with the write-down of the book value of the
Sumter Property to the extent such charge is 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.




          “Operating Cash Flow” means, for any period (a) EBITDA
for such period, less (b) Unfinanced Capital Expenditures
for such period, excluding Unfinanced Capital Expenditures
made during Fiscal Years 2004 and 2005 in connection with
projects undertaken by any of the Mexican Restricted
Subsidiary, Portola GmbH or Portola s.r.o. or with Greiner
AG or its affiliates (in an aggregate amount not to exceed
$4,000,000 during fiscal year 2004 and $2,700,000 during
Fiscal Year 2005), 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, excluding Other Capitalized Costs with
respect to Borrower’s acquisition of Tech Industries and
Borrower’s acquisition of Berry Plastics’ dairy cap product
line in March 2004. “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



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the Related Transactions or the transactions under the
Existing Credit Agreement.




          “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,
less (c) Capital Expenditures not exceeding $3,269,000 with
respect to Borrower’s acquisition of Berry Plastics’ dairy
cap product line in March 2004.



          3.7  Section 10.1 of the Credit Agreement is further amended by adding each
of the following definitions in their proper alphabetical order:




          “Minimum Fixed Charge Coverage Period” means any period
during which Fixed Charge Coverage as of the last day of the
most recent fiscal quarter for which information is then
available is less than or equal to 1.10 to 1.00.




          “Second
Amendment Date” means November 24, 2004.



          3.8  Schedule 1.2 to the Credit Agreement is hereby amended and restated in
its entirety to read as set forth in Schedule 1.2 attached hereto.



          3.9  Exhibit 4.5(C) to the Credit Agreement is hereby amended and restated
in its entirety to read as set forth in Exhibit 4.5(C) attached hereto.



          Section 4. Conditions. The effectiveness of this Agreement is subject to
Borrower’s satisfaction of the following conditions on or before the date
hereof in a manner satisfactory to the Agent:



          4.1  Executed Agreement. Executed signature pages for this Agreement
signed by Agent, Lenders and Borrower shall have been delivered to the Agent.



          4.2  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).



          4.3  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.



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          4.4  Amendment Fee. The Borrower shall have paid to Agent an amendment fee
equal to $75,000.



          4.5  Repayment of Revolving Loans. Borrower shall have applied at least
$5,400,000 of the proceeds received by Borrower from its issuance of the Senior
Notes against the outstanding balance of the Revolving Loans.



          Section 5. 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 6. Reference To And Effect Upon The Credit Agreement.



               (i)  Except as specifically provided herein, the Credit Agreement and the
other Loan Documents shall remain in full force and effect and are hereby
ratified and confirmed.



               (ii)  The execution, delivery and effectiveness of this Agreement shall
not operate as a waiver of any right, power or remedy of Agent or any Lender
under the Credit Agreement or any Loan Document, nor constitute a waiver of
any provision of the Credit Agreement or any Loan Document, except as
specifically set forth herein.



               (iii)  This Agreement shall be deemed to be a Loan Document.



          Section 7. Costs And Expenses. Borrower agrees to reimburse Agent on the
date hereof for all fees, costs and expenses, including the fees, costs and
expenses of counsel or other advisors for advice, assistance, or other
representation in connection with this Agreement.



          Section 8. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAWS
PROVISIONS) OF THE STATE OF ILLINOIS.



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          Section 9. Headings. Section headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of
this Agreement for any other purposes.



          Section 10. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed an original, but
all such counterparts shall constitute one and the same instrument.



[Signature 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/  Michael T. Morefield



	
	Title:	Senior Vice President and Chief Financial Officer










 









 






	 	 	 
	
	GENERAL ELECTRIC CAPITAL CORPORATION, as

Agent, Issuing Lender and Lender
	 
	 	 
	
	By:	/s/  Woodrow Broades



	
	Title:	Authorized Signatory










 









 






CONSENT AND REAFFIRMATION (SUBSIDIARY GUARANTORS)




          Each of the undersigned hereby (i) acknowledges receipt of a copy of the
foregoing Waiver and Fourth Amendment to Credit Agreement; (ii) consents to
Borrower’s execution and delivery thereof; (iii) affirms that nothing contained
therein shall modify in any respect whatsoever its guaranty of the obligations
of Borrower to Agent and Lenders and reaffirms that such guaranty is and shall
continue to remain in full force and effect and that each Loan Document to
which it is a party or otherwise bound and all Collateral encumbered thereby
will continue to guaranty or secure, as the case may be, to the fullest extent
possible, the payment and performance of all obligations under or in respect of
such guaranty and such other Loan Documents; and (iv) confirms that, as of the
date hereof, it does not have, and hereby waives, remises and releases any
claims or causes of action of any kind against Agent or any of the Lenders or
any of their officers, directors, employees, agents, attorneys, or any of the
Lenders or any of their officers, directors, employees, agents, attorneys or
representatives, or against any of their respective predecessors, successors,
or assigns relating in any way to any event, circumstance, action, or omission
relative to any of the Loan Documents or any transaction contemplated thereby,
from the beginning of time through the date hereof. Although each of the
undersigned has been informed of the matters set forth herein and has
acknowledged and consented to same, each of the undersigned understands that
Agent and Lenders have no obligation to inform it of such matters in the future
or to seek its acknowledgment or consent to future Agreements or waivers, and
nothing herein shall create such a duty.



[Signature Page Follows]




 









 









          IN WITNESS WHEREOF, the undersigned have executed this Limited Waiver and
Second Amendment on and as of the date of such Agreement.

	 	 	 	 	 
	 	PORTOLA PACKAGING LTD.

 	 
	 	By:  	            /s/ James A. Taylor
 	 
	 	 	Name:  	James A. Taylor 	 
	 	 	Title:  	Chief Operating Officer 	 
	 
	 	PORTOLA PACKAGING CANADA LTD.

 	 
	 	By:  	            /s/ Michael T. Morefield
 	 
	 	 	Name:  	Michael T. Morefield 	 
	 	 	Title:  	Senior Vice President and Chief Financial Officer 	 
	 
	 	PORTOLA ALLIED TOOL, INC.

 	 
	 	By:  	            /s/ Michael T. Morefield
 	 
	 	 	Name:  	Michael T. Morefield 	 
	 	 	Title:  	Senior Vice President and Chief Financial Officer 	 
	 
	 	PORTOLA PACKAGING LIMITED

 	 
	 	By:  	            /s/ James A. Taylor
 	 
	 	 	Name:  	James A. Taylor 	 
	 	 	Title:  	Chief Operating Officer 	 
	 
	 	PORTOLA PACKAGING, INC. MEXICO S.A.

de C.V.

 	 
	 	By:  	            /s/ James A. Taylor
 	 
	 	 	Name:  	James A. Taylor 	 
	 	 	Title:  	Chief Operating Officer 	 
	 
	 	ATLANTIC PACKAGING SALES LLC

 	 
	 	By:  	            /s/ Michael T. Morefield
 	 
	 	 	Name:  	Michael T. Morefield 	 
	 	 	Title:  	Senior Vice President and Chief Financial Officer 	 
	 
	 	TECH INDUSTRIES, INC.

 	 
	 	By:  	            /s/ Michael T. Morefield
 	 
	 	 	Name:  	Michael T. Morefield 	 
	 	 	Title:  	Senior Vice President and Chief Financial Officer 	 
	 



 









 






	 	 	 
	

	PORTOLA LIMITED
	 
	 	 
	

	By: 	/s/ Michael T. Morefield


	

	Name: 	Michael T. Morefield


	

	Title: 	Senior Vice President and chief
Financial Officer









 









 





EXHIBIT A

TO

LIMITED WAIVER AND SECOND AMENDMENT




SPECIFIED DEFAULTS




For purposes of this Agreement, “Specified Defaults” refers to the fact that,
under that certain Post Closing Matters Agreement, dated as of January 23,
2004, between Borrower and Agent, Borrower was required to deliver, but failed
to deliver, to Agent, prior to ___, 2004, executed Bank Agency
Agreements, in form and substance acceptable to Agent, with respect to all
accounts of Borrower and its Restricted Subsidiaries at (i) Canadian Imperial
Bank of Commerce and (ii) Union Bank of California, N.A. Agent acknowledges
that Agent has received fully executed copies of both such Bank Agency
Agreements.



The definition
of “Specified Defaults” set forth in this
Exhibit A shall be
limited precisely as written and shall not include any other Default or Event
of Default, including, without limitation, any Event of Default arising out of
any other failure by the Borrower to comply with any of the financial covenants
described above.















 








SCHEDULE 1.2




PRICING TABLE




	 	 	 	 	 
	Average Daily Availability for

Calculation Period
	 	Index Rate Margin	 	LIBOR Margin
	
 
	 	
 	 	
 
	£$12,500,000
	 	1.25%	 	2.75%
	>$12,500,000
	 	1.00%	 	2.50%







Notwithstanding the foregoing, from and after the Second Amendment Date, the
LIBOR Margin shall be 2.75% and the Index Rate Margin shall be 1.25% until such
time as Agent shall have received a Compliance Certificate reflecting Fixed
Charge Coverage as of the last day of any fiscal quarter ending on or after
November 30, 2004 of greater than 1.10 to 1.00. Commencing on the first
Adjustment Date thereafter, the Index Rate Margin and LIBOR Margin shall be
calculated in accordance with Section 1.2 of the Credit Agreement.





1