FIRST SUPPLEMENTAL INDENTURE (this “First Supplemental Indenture”), dated as of September 20, 2006, by and among BPC Holding Corporation, a Delaware corporation (the “Company”), the guarantors listed on Schedule A attached hereto (the “Guarantors”), BPC Acquisition Corp., a Delaware corporation (“Merger Sub”), and Wells Fargo Bank, National Association, as Trustee (the “Trustee”).
WITNESSETH:
WHEREAS, Merger Sub has heretofore executed and delivered to the Trustee an Indenture (the “Indenture”), dated as of September 20, 2006, providing for the issuance of $525,000,000 in aggregate principal amount of its 8⅞% Second Priority Senior Secured Fixed Rate Notes due 2014 (the “Fixed Rate Notes”) and $225,000,000 aggregate principal amount of its Second Priority Senior Secured Floating Rate Notes due 2014 (the “Floating Rate Notes” and, together with the Fixed Rate Notes, the “Notes”);
WHEREAS, the Company desires to execute and deliver this First Supplemental Indenture to the Trustee for the purpose of becoming liable for all of Merger Sub’s obligations under the Indenture and the Notes;
WHEREAS the Guarantors desire to execute and deliver this First Supplemental Indenture to the Trustee for the purpose of guaranteeing the payment of all obligations of the Company under the Indenture and the Notes and the performance within applicable grace periods of all other obligations of the Company under the Indenture and the Notes, on the terms and conditions set forth in Article 12 of the Indenture; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee and Merger Sub are authorized to execute and deliver this First Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for good and valuable consideration, the receipt of which is hereby acknowledged, the Company, the Guarantors, Merger Sub and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
SECTION 1. Capitalized Terms. Capitalized terms used herein but not defined shall have the meanings assigned to them in the Indenture.
SECTION 2. Issuer. The Company hereby agrees that it is henceforth liable, as an issuer of the Notes, for all of Merger Sub’s obligations under the Indenture and the Notes, on the terms and conditions set forth therein.
SECTION 3. Guarantees. Each of the Guarantors hereby agrees, jointly and severally with all other Guarantors, to guarantee the Company’s obligations under the Notes on the terms and subject to the conditions set forth in Article 12 of the Indenture and to be bound by all applicable provisions of the Indenture.
SECTION 4. Ratification of Indenture; Supplemental Indenture Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and
confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This First Supplemental Indenture shall form a part of the Indenture for all purposes, and every holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.
SECTION 5. Governing Law. THIS FIRST SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this First Supplemental Indenture or for or in respect of the recitals contained herein, all of which are made solely by the Company, Merger Sub and the Guarantors. Except as otherwise expressly provided herein, no duties, responsibilities or liabilities are assumed, or shall be construed to be assumed by the Trustee by reason of this First Supplemental Indenture. This First Supplemental Indenture is executed and accepted by the Trustee subject to all the terms and conditions set forth in the Indenture with the same force and effect as if those terms and conditions were repeated at length herein and made applicable to the Trustee with respect hereto. In entering into this First Supplemental Indenture, the Trustee shall be entitled to the benefit of every provision of the Indenture relating to the conduct or affecting the liability or affording protection to the Trustee, whether or not elsewhere herein so provided.
SECTION 7. Counterparts. The parties may sign any number of copies of this First Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
SECTION 8. Effect of Headings. The Section headings herein are for convenience only and shall not effect the construction of this First Supplemental Indenture.
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IN WITNESS WHEREOF, the parties have caused this First Supplemental Indenture to be duly executed as of the date first written above.
ISSUER
BPC HOLDING CORPORATION
By: _________________________________________
Name: James M. Kratochvil
Title: Executive Vice President, Chief
Financial Officer, Treasurer and Secretary
BPC ACQUISITION CORP.
By:__________________________________________
Name: Michael Jupiter
Title: Vice President and Secretary
IN WITNESS WHEREOF, the parties have caused this First Supplemental Indenture to be duly executed as of the date first written above.
GUARANTORS
BERRY PLASTICS CORPORATION
AEROCON, INC.
BERRY IOWA CORPORATION
BERRY PLASTICS DESIGN CORPORATION
BERRY PLASTICS TECHNICAL SERVICES, INC.
BERRY STERLING CORPORATION
CPI HOLDING CORPORATION
KNIGHT PLASTICS, INC.
PACKERWARE CORPORATION
PESCOR, INC.
POLY-SEAL CORPORATION
VENTURE PACKAGING, INC.
VENTURE PACKAGING MIDWEST, INC.
KERR GROUP, INC.
SAFFRON ACQUISITION CORP.
SUN COAST INDUSTRIES, INC.
SETCO, LLC
TUBED PRODUCTS, LLC
CARDINAL PACKAGING, INC.
LANDIS PLASTICS, INC.
BERRY PLASTICS ACQUISITION CORPORATION III
BERRY PLASTICS ACQUISITION CORPORATION V
BERRY PLASTICS ACQUISITION CORPORATION VII
BERRY PLASTICS ACQUISITION CORPORATION VIII
BERRY PLASTICS ACQUISITION CORPORATION IX
BERRY PLASTICS ACQUISITION CORPORATION X
BERRY PLASTICS ACQUISITION CORPORATION XI
BERRY PLASTICS ACQUISITION CORPORATION XII
BERRY PLASTICS ACQUISITION CORPORATION XIII
By: ______________________________
Name: James M. Kratochvil
Title: Executive Vice President, Chief
Financial Officer, Treasurer and
Secretary of each Guarantor
BERRY PLASTICS ACQUISITION CORPORATION XV, LLC
By: ________________________________
Name: James M. Kratochvil
Title: Manager
IN WITNESS WHEREOF, the parties have caused this First Supplemental Indenture to be duly executed as of the date first written above.
TRUSTEE
WELLS FARGO BANK, NATIONAL ASSOCIATION, as trustee
By: ______________________________________________
Name:
Title:
