SECOND SUPPLEMENTAL INDENTURE
The undersigned are executing and delivering this Second
Supplemental Indenture pursuant to Section 4.13 of the Indenture, dated as of
July 6, 1999, as supplemented (the "Indenture"), among Berry Plastics
Corporation (the "Company"), BPC Holding Corporation ("Holding"), Berry Iowa
Corporation ("Berry Iowa"), Berry Tri-Plas Corporation ("Berry Tri-Plas"), Berry
Sterling Corporation ("Berry Sterling"), AeroCon, Inc. ("AeroCon"), PackerWare
Corporation ("PackerWare"), Berry Plastics Design Corporation ("Berry Design"),
Venture Packaging, Inc. ("Venture"), Berry Plastics Technical Services, Inc.
(f/k/a Venture Packaging Southeast, Inc.)("Berry Technical"), Venture Packaging
Midwest, Inc. ("Midwest"), NIM Holdings Limited ("NIM"), Berry Plastics U.K.
Limited (f/k/a Norwich Injection Moulders Limited)("Berry UK"), Norwich
Acquisition Limited ("Norwich"), Knight Plastics, Inc. ("Knight"), CPI Holding
Corporation ("CPI"), Cardinal Packaging, Inc. ("Cardinal"), Poly-Seal
Corporation ("Poly-Seal"), Berry Plastics Acquisition Corporation II (f/k/a
Berry Plastics Acquisition Corporation)("BPAC II"), Berry Plastics Acquisition
Corporation III ("BPAC III") and United States Trust Company of New York, as
trustee (the "Trustee"). Capitalized terms used herein have the same meanings
given in the Indenture unless otherwise indicated.
By executing and delivering to the Trustee this Second
Supplemental Indenture, each of CBP Holdings S.r.l., an Italian S.r.l. (f/k/a
Capsol-Berry Plastics S.r.l.), Capsol S.p.A., an Italian S.p.A. and Ociesse
S.r.l., an Italian S.r.l. (each, a "New Guarantor" and collectively, the "New
Guarantors"), hereby becomes a "Guarantor" under the Indenture and hereby agrees
to become a party to, to be bound by, and to comply with the provisions of the
Indenture in the same manner as if it were an original signatory to such
agreement.
Each of the New Guarantors hereby unconditionally guarantees
that (i) the principal of and interest on the Notes will be paid in full when
due, whether at the maturity or interest payment or mandatory redemption date,
by acceleration, call for redemption or otherwise, and interest on the overdue
principal of and interest, if any, on the Notes and all other obligations of the
Company to the Holders or the Trustee under the Indenture or the Notes will be
promptly paid in full or performed, all in accordance with the terms of the
Indenture and the Notes and (ii) in case of any extension of time of payment or
renewal of any Notes or any of such other obligations, that the same will be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at maturity, by acceleration or otherwise.
By executing and delivering to the Trustee this Second
Supplemental Indenture, each of Holding, Berry Iowa, Berry Tri-Plas, Berry
Sterling, AeroCon, PackerWare, Berry Design, Venture, Berry Technical, Midwest,
NIM, Berry UK, Norwich, Knight, CPI, Cardinal, Poly-Seal, BPAC II, and BPAC III
(each an "Old Guarantor") hereby reaffirms its obligations under the Indenture
as previously supplemented and as further supplemented hereby.
The obligations of each of the undersigned to each Holder and
to the Trustee pursuant hereto are as expressly set forth in Article 10 of the
Indenture which terms are incorporated herein by reference.
This is a continuing guarantee and shall remain in full force
and effect and shall be binding upon each of the undersigned and its successors
and assigns until full and final payment of all of the Company's obligations
under the Notes and the Indenture and shall inure to the benefit of the
successors and assigns of the Trustee and the Holders and, in the event of any
transfer or assignment of rights by any Holder or the Trustee, the rights and
privileges herein conferred upon that party shall automatically extend to and be
vested in such transferee or assignee, all subject to the terms and conditions
hereof. This is a guarantee of payment and not a guarantee of collection.
Each of the Company and the Guarantors (hereinafter,
collectively, the "Obligors") hereby agrees that all judicial proceedings
brought against it arising out of or relating to the Indenture, or any
obligations hereunder, may be brought in any State or Federal Court of competent
jurisdiction in the State, County and City of New York in the United States of
America. By executing and delivering this Second Supplemental Indenture, each of
the Obligors hereby irrevocably: (i) accepts generally and unconditionally the
nonexclusive jurisdiction and venue of such courts, (ii) waives any defense of
FORUM NON CONVENIENS; (iii) designates and appoints Joseph S. Levy, or such
other persons located in New York State selected by the Obligors from time to
time, and agreeing in writing to so serve, as its agent to receive on its behalf
service of all process in any such proceedings in any such court, such service
being hereby acknowledged by each of the Obligors to be effective and binding
service in every respect (with a copy of any such process so served to be mailed
by registered mail to each of the Obligors at its address provided that, unless
otherwise provided by applicable law, any failure to mail such copy shall not
affect the validity of service of such process) and each of the Obligors hereby
agrees that service of process sufficient for personal jurisdiction in any
action in the State of New York may be made by registered or certified mail,
return receipt requested, to it at its address and hereby acknowledges that such
service shall be effective and binding in every respect; and nothing herein
shall affect the right to serve process in any other manner permitted by law or
shall limit the right to bring proceedings against any of the Obligors in the
courts of any other jurisdiction; and (iv) agrees that the provisions of this
Second Supplemental Indenture relating to jurisdiction and venue shall be
binding and enforceable to the fullest extent permissible under New York General
Obligations Law, Section 5-1402 or otherwise.
Any and all payments to be made by any of the undersigned to
the Trustee shall be made in U.S. Dollars. If, for the purpose of calculating
the amount of any judgment in any court, it is necessary to convert into any
other currency (the "Judgment Currency") an amount due in U.S. Dollars under the
Indenture, then the conversion shall be made at the discretion of the Trustee,
at the rate of exchange prevailing either on the date of default or on the day
before the day on which the award or judgment is given (the "Conversion Date").
If there is a change in the rate of exchange prevailing between the Conversion
Date and the date of actual payment of the amount due, the undersigned will pay
such additional amounts (if any, but in any event, not a lesser amount) as may
be necessary to ensure that the amount paid in the Judgment Currency when
converted at the rate of exchange prevailing on the date of payment will produce
the amount then due in U.S. Dollars.
This Second Supplemental Indenture may be executed in
counterparts. Each signed copy shall be an original, but all of them together
represent the same agreement.
-2-
IN WITNESS WHEREOF, the undersigned have duly executed and
delivered this Second Supplemental Indenture as of the ____ day of _________,
2000.
ATTEST: BERRY PLASTICS CORPORATION
By:
---------------------------------
James M. Kratochvil
By: Executive Vice President, Chief
--------------------------------- Financial Officer, Treasurer
Martin R. Imbler and Secretary
President and Chief Executive
Officer
BPC HOLDING CORPORATION
By:
---------------------------------
James M. Kratochvil
Executive Vice President, Chief
Financial Officer, Treasurer and
Secretary
BERRY IOWA CORPORATION
By:
---------------------------------
James M. Kratochvil
Executive Vice President, Chief
Financial Officer, Treasurer and
Secretary
BERRY TRI-PLAS CORPORATION
By:
---------------------------------
James M. Kratochvil
Executive Vice President, Chief
Financial Officer, Treasurer and
Secretary
BERRY STERLING CORPORATION
By:
---------------------------------
James M. Kratochvil
Executive Vice President, Chief
Financial Officer, Treasurer and
Secretary
AEROCON, INC.
By:
---------------------------------
James M. Kratochvil
Executive Vice President, Chief
Financial Officer, Treasurer and
Secretary
PACKERWARE CORPORATION
By:
---------------------------------
James M. Kratochvil
Executive Vice President, Chief
Financial Officer, Treasurer and
Secretary
BERRY PLASTICS DESIGN CORPORATION
By:
---------------------------------
James M. Kratochvil
Executive Vice President, Chief
Financial Officer, Treasurer and
Secretary
VENTURE PACKAGING, INC.
By:
---------------------------------
James M. Kratochvil
Executive Vice President, Chief
Financial Officer, Treasurer and
Secretary
BERRY PLASTICS TECHNICAL SERVICES,
INC.
By:
---------------------------------
James M. Kratochvil
Executive Vice President, Chief
Financial Officer, Treasurer and
Secretary
VENTURE PACKAGING MIDWEST, INC.
By:
---------------------------------
James M. Kratochvil
Executive Vice President, Chief
Financial Officer, Treasurer and
Secretary
NIM HOLDINGS LIMITED
By:
---------------------------------
James M. Kratochvil
Director
BERRY PLASTICS U.K. LIMITED
By:
---------------------------------
James M. Kratochvil
Director
NORWICH ACQUISITION LIMITED
By:
---------------------------------
James M. Kratochvil
Director
KNIGHT PLASTICS, INC.
By:
---------------------------------
James M. Kratochvil
Executive Vice President, Chief
Financial Officer, Treasurer and
Secretary
CPI HOLDING CORPORATION
By:
---------------------------------
James M. Kratochvil
Executive Vice President, Chief
Financial Officer, Treasurer and
Secretary
CARDINAL PACKAGING, INC.
By:
---------------------------------
James M. Kratochvil
Executive Vice President, Chief
Financial Officer, Treasurer and
Secretary
BERRY PLASTICS ACQUISITION
CORPORATION II
By:
---------------------------------
James M. Kratochvil
Executive Vice President, Chief
Financial Officer, Treasurer and
Secretary
BERRY PLASTICS ACQUISITION
CORPORATION III
By:
---------------------------------
James M. Kratochvil
Executive Vice President, Chief
Financial Officer, Treasurer and
Secretary
POLY-SEAL CORPORATION
By:
---------------------------------
James M. Kratochvil
Executive Vice President, Chief
Financial Officer, Treasurer and
Secretary
CAPSOL-BERRY PLASTICS S.R.L.
By:
---------------------------------
James M. Kratochvil
Director
CAPSOL S.P.A.
By:
---------------------------------
James M. Kratochvil
Director
OCIESSE S.R.L.
By:
---------------------------------
James M. Kratochvil
Director
UNITED STATES TRUST COMPANY OF
NEW YORK, AS TRUSTEE
By:
---------------------------------
Name:
Title:
Schedule of Supplemental Indentures
Document Date Parties Reason for Supplement
===================================================================================================================================
First Supplemental Indenture to the May 9, 2000 Berry Plastics Acquisition Added BPAC III and Poly-Seal as
Indenture dated as of July 6, 1999 Corporation III ("BPAC III"), guarantors
(the "Indenture") among Berry Poly-Seal Corporation
Plastics Corporation ("Berry"), BPC ("Poly-Seal"), Berry, BPC, Iowa,
Holding Corporation ("BPC"), Berry Tri-Plas, Sterling, AeroCon,
Iowa Corporation ("Iowa"), Berry PackerWare, Plastics, VPI,
Tri-Plas Corporation ("Tri-Plas"), Southeast, Midwest, NIM, Plastics
Berry Sterling Corporation U.K., Knight, Norwich Acquisition,
("Sterling"), AeroCon, Inc. CPI Holding, Cardinal, BPAC II and
("AeroCon"), PackerWare Corporation Trustee
("PackerWare"), Berry Plastics
Design Corporation ("Plastics"),
Venture Packaging, Inc. ("VPI"),
Venture Packaging Southeast, Inc.
("Southeast"), Venture Packaging
Midwest, Inc. ("Midwest"), NIM
Holdings Limited ("NIM"), Berry
Plastics U.K. Limited (f/k/a
Norwich Injection Moulders Limited)
("Plastics U.K."), Knight Plastics,
Inc. ("Knight"), Norwich
Acquisition Limited ("Norwich
Acquisition"), CPI Holding
Corporation ("CPI Holding"),
Cardinal Packaging, Inc.
("Cardinal"), Berry Plastics
Acquisition Corporation II ("BPAC
II") and United States Trust
Company of New York, as trustee
(the "Trustee")