NINTH SUPPLEMENTAL INDENTURE
The undersigned are executing and delivering this Ninth
Supplemental Indenture pursuant to Section 4.13 of the Indenture, dated
as of April 21, 1994, as supplemented (the "Indenture"), among Berry
Plastics Corporation, BPC Holding Corporation, Berry Iowa Corporation,
Berry Tri-Plas Corporation, Berry Sterling Corporation, AeroCon, Inc.,
PackerWare Corporation, Berry Plastics Design Corporation, Venture
Packaging, Inc., Venture Packaging Southeast, Inc., Venture Packaging
Midwest, Inc., NIM Holdings Limited, Berry Plastics U.K. Limited (f/k/a
Norwich Injection Moulders Limited), Norwich Acquisition Limited, Knight
Plastics, Inc., CPI Holding Corporation, Cardinal Packaging, Inc., Berry
Plastics Acquisition Corporation II (f/k/a Berry Plastics Acquisition
Corporation) 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 Ninth
Supplemental Indenture, each of Berry Plastics Acquisition Corporation
III, a Delaware corporation, and Poly-Seal Corporation, a Delaware
corporation (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.
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 Ninth
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 Ninth 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 Ninth Supplemental Indenture may be executed in
counterparts. Each signed copy shall be an original, but all of them
together represent the same agreement.
IN WITNESS WHEREOF, the undersigned have duly executed and delivered this
Ninth Supplemental Indenture as of the 9th day of May, 2000.
ATTEST: BERRY PLASTICS ACQUISITION
CORPORATION III
BY: /S/ JAMES M. KRATOCHVIL
By: /S/ MARTIN R. IMBLER James M. Kratochvil
Martin R. Imbler Executive Vice President,
President and Chief Executive Chief Financial Officer,
Officer Treasurer and Secretary
POLY-SEAL CORPORATION
By: /S/ JAMES M. KRATOCHVIL
James M. Kratochvil
Executive Vice President,
Chief Financial Officer,
Treasurer and Secretary
BERRY PLASTICS CORPORATION
By: /S/ JAMES M. KRATOCHVIL
James M. Kratochvil
Executive Vice President,
Chief Financial Officer,
Treasurer and Secretary
BPC HOLDING CORPORATION
By: /S/ JAMES M. KRATOCHVIL
James M. Kratochvil
Executive Vice President,
Chief Financial Officer,
Treasurer and Secretary
BERRY IOWA CORPORATION
By: /S/ JAMES M. KRATOCHVIL
James M. Kratochvil
Executive Vice President,
Chief Financial Officer,
Treasurer and Secretary
BERRY TRI-PLAS CORPORATION
By: /S/ JAMES M. KRATOCHVIL
James M. Kratochvil
Executive Vice President,
Chief Financial Officer,
Treasurer and Secretary
BERRY STERLING CORPORATION
By: /S/ JAMES M. KRATOCHVIL
James M. Kratochvil
Executive Vice President,
Chief Financial Officer,
Treasurer and Secretary
AEROCON, INC.
By: /S/ JAMES M. KRATOCHVIL
James M. Kratochvil
Executive Vice President,
Chief Financial Officer,
Treasurer and Secretary
PACKERWARE CORPORATION
By: /S/ JAMES M. KRATOCHVIL
James M. Kratochvil
Executive Vice President,
Chief Financial Officer,
Treasurer and Secretary
BERRY PLASTICS DESIGN CORPORATION
By: /S/ JAMES M. KRATOCHVIL
James M. Kratochvil
Executive Vice President,
Chief Financial Officer,
Treasurer and Secretary
VENTURE PACKAGING, INC.
By: /S/ JAMES M. KRATOCHVIL
James M. Kratochvil
Executive Vice President,
Chief Financial Officer,
Treasurer and Secretary
VENTURE PACKAGING SOUTHEAST, INC.
By: /S/ JAMES M. KRATOCHVIL
James M. Kratochvil
Executive Vice President,
Chief Financial Officer,
Treasurer and Secretary
VENTURE PACKAGING MIDWEST, INC.
By: /S/ JAMES M. KRATOCHVIL
James M. Kratochvil
Executive Vice President,
Chief Financial Officer,
Treasurer and Secretary
NIM HOLDINGS LIMITED
By: /S/ JAMES M. KRATOCHVIL
James M. Kratochvil
Director
BERRY PLASTICS U.K. LIMITED
By: /S/ JAMES M. KRATOCHVIL
James M. Kratochvil
Director
NORWICH ACQUISITION LIMITED
By: /S/ JAMES M. KRATOCHVIL
James M. Kratochvil
Director
KNIGHT PLASTICS, INC.
By: /S/ JAMES M. KRATOCHVIL
James M. Kratochvil
Executive Vice President,
Chief Financial Officer,
Treasurer and Secretary
CPI HOLDING CORPORATION
By: /S/ JAMES M. KRATOCHVIL
James M. Kratochvil
Executive Vice President,
Chief Financial Officer,
Treasurer and Secretary
CARDINAL PACKAGING, INC.
By: /S/ JAMES M. KRATOCHVIL
James M. Kratochvil
Executive Vice President,
Chief Financial Officer,
Treasurer and Secretary
BERRY PLASTICS ACQUISITION
CORPORATION II (F/K/A BERRY
PLASTICS ACQUISITION
CORPORATION)
By: /S/ JAMES M. KRATOCHVIL
James M. Kratochvil
Executive Vice President,
Chief Financial Officer,
Treasurer and Secretary
UNITED STATES TRUST
COMPANY OF NEW YORK, AS
TRUSTEE
By: /S/ CYNTHIA CHANEY
Name: Cynthia Chaney
Title: Assistant Vice
President