Berry 1st Amendment to Loan Agreement -- GE.DOC
03/15/02 2:44 PM
FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT (this "Amendment")
is made as of the ____ day of May, 2001, by BERRY PLASTICS CORPORATION, a
corporation organized and existing under the laws of the State of Delaware
(the "Borrower"), and GENERAL ELECTRIC CAPITAL CORPORATION, a corporation
organized and existing under the laws of the State of New York ("GE
Capital"), and each other financial institution which is a party to this
Amendment whether by execution and delivery of this Amendment or otherwise
pursuant to Section 9.5 (Assignments by Lender) (collectively, the
"Lenders", and individually, a "Lender"), GENERAL ELECTRIC CAPITAL
CORPORATION, a corporation organized and existing under the laws of the
State of New York, in its capacity as administrative agent for the Lenders
(the "Agent"), and BANK OF AMERICA, N.A.., a national banking association,
in its capacity as collateral agent for the Agent and the Lenders (the
"BofA Agent").
RECITALS
The Borrower, the Lenders, the Agent and the BofA Agent entered into a
Loan and Security Agreement dated July 14, 2000 (as amended, restated,
modified, substituted, extended, and renewed from time to time, the "Loan
Agreement"). Under and subject to the provisions of the Loan Agreement,
the Lenders agreed to establish in favor of the Borrower certain term loan
facilities.
The Borrower has advised the Agent and the Lenders that
contemporaneously with the execution and delivery of this Amendment, (i)
the Parent has formed Pescor, Inc., a corporation organized and existing
under the laws of the State of Delaware ("Pescor") and (ii) the Parent has
acquired or intends to acquire Pescor Plastics, Inc., a corporation
organized and existing under the laws of the State of Texas ("Pescor
Target") in accordance with the provisions of that certain Agreement and
Plan of Reorganization by and among the existing shareholders of Pescor
Target, the Parent, and Pescor (as amended, restated, supplemented or
otherwise modified, the "Pescor Merger Agreement"). Pescor Target will
merge (the "Pescor Merger") into Pescor such that Pescor will be the
surviving corporation. Promptly following the merger, the Parent intends
to contribute all of the issued and outstanding stock of Pescor to the
Borrower (the "Pescor Stock"). Following the Pescor Merger of and the
Parent's contribution of the Pescor Stock to the Borrower, Pescor will be a
wholly-owned subsidiary of the Borrower.
The Borrower previously advised the Agent and the Lenders that (i) the
Borrower had formed Berry Plastics Acquisition Corporation II, a
corporation organized and existing under the laws of the State of Delaware
("Berry Italy"), and Berry Italy is a wholly-owned subsidiary of the
Borrower, (ii) the Borrower has acquired ninety-five percent (95%) of the
issued and outstanding capital stock of CBP Holdings, S.r.l. (formerly
Capsol-Berry Plastics S.r.l.), a company duly incorporated and existing
under the laws of Italy (the "Italian Holding Company") and Berry Italy has
acquired five percent (5%) of the issued and outstanding capital stock of
the Italian Holding Company, and (iii) the Italian Holding Company owns one
hundred percent (100%) of the issued and outstanding capital stock of (1)
Ociesse S.r.l. - Officina Costruzione Stampi Lavorazioni Meccaniche di
Precisione, a company duly incorporated and existing under the laws of
Italy ("Ociesse") and (2) Capsol Berry Plastics S.p.a., a company duly
incorporated and existing under the laws of Italy ("Capsol Italy"). The
Italian Holding Company has applied to Bank of America Italy for a
revolving credit facility in a maximum principal amount not to exceed Euro
13,550,000 or, at the option of the Italian Holding Company, the equivalent
amount in United States Dollars (the "Italian Revolving Credit Facility").
Capsol Italy has opened one or more bank accounts with Bank of America
Italy with respect to which Bank of America Italy has agreed to provide
overdraft facilities for a total amount not exceeding Euro 1,700,000 (the
"Italian Overdraft Facility"). The obligations of the Italian Holding
Company and/or Capsol Italy under and in connection with the Italian
Revolving Credit Facility and the Italian Overdraft Facility (collectively,
the "Italian Credit Facilities") are or will be secured by a first priority
pledge of all issued and outstanding capital stock of the Italian Holding
Company, Ociesse and Capsol Italy.
The Borrower has requested that the Lenders extend the maturity date
of the facility from July 1, 2002 to January 21, 2004. In addition, the
Borrower has requested that the Agent and the Lenders consent and agree to
(1) the acquisition of the Pescor Target by the Parent in accordance with
the terms and conditions of the Pescor Merger Agreement, (2) the Parent's
issuance of a class of preferred stock to one or more existing shareholders
of Pescor Target in accordance with the provisions of the Pescor Merger
Agreement, and (3) the Parent's contribution of the Pescor Stock to the
Borrower.
The Agent, the BofA Agent and the Lenders are willing to agree to the
Borrower's request on the condition, among others, that this Amendment be
executed.
AGREEMENTS
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, receipt of which is hereby acknowledged, the
Borrower, the Agent and the Lenders agree as follows:
The Borrower, the Agent and the Lenders agree that the Recitals above
are a part of this Amendment. Unless otherwise expressly defined in this
Amendment, terms defined in the Loan Agreement shall have the same meaning
under this Amendment.
The Borrower, the Agent and the Lenders agree that on the date hereof
the aggregate outstanding principal balance under the Term Note is
$25,000,000.
The Borrower represents and warrants to the Agent and the Lenders as
follows:
The Borrower is a corporation duly organized, validly existing and in
good standing under the laws of the state in which it was organized and is
duly qualified to do business as a foreign corporation in good standing in
every other state wherein the conduct of its business or the ownership of
its property requires such qualification.
The Borrower has the power and authority to execute and deliver this
Amendment and perform its obligations hereunder and has taken all necessary
and appropriate corporate action to authorize the execution, delivery and
performance of this Amendment.
The Loan Agreement, as amended by this Amendment, and each of the
other Financing Documents remains in full force and effect, and each
constitutes the valid and legally binding obligation of the Borrower,
enforceable in accordance with its terms.
The representations and warranties of the Borrower contained among the
provisions of the Loan Agreement are true and correct as of the date of
this Amendment (except that any such representations and warranties that
are not qualified as to materiality need only be true and correct in all
material respects) with the same effect as though such representations and
warranties had been made as of such date, except that (i) the
representations and warranties which relate to a specific date need only be
true and correct as of such date and (ii) the representations and
warranties which relate to financial statements which are referred to in
Section 4.1.11 of the Loan Agreement shall also be deemed to cover
financing statements furnished from time to time to the Agent pursuant to
Section 6.1.1 (Financial Statements) of the Credit Agreement.
No Event of Default and no event which, with notice, lapse of time or
both would constitute an Event of Default, has occurred and is continuing
under the Loan Agreement or the other Financing Documents which has not
been waived in writing by the Lenders.
Section 1.1 (Certain Defined Terms) is hereby amended by adding the
following definitions:
"BERRY ITALY" MEANS BERRY PLASTICS ACQUISITION CORPORATION
II, A COMPANY DULY INCORPORATED AND EXISTING UNDER THE LAWS OF
DELAWARE, AND ITS SUCCESSORS AND ASSIGNS.
"FIRST AMENDMENT" MEANS THAT CERTAIN FIRST AMENDMENT TO LOAN
AND SECURITY AGREEMENT DATED AS OF MAY __, 2001 BY AND AMONG THE
AGENT, THE LENDERS, THE BORROWER, AND THE BOFA AGENT.
"PESCOR" MEANS PESCOR, INC., A CORPORATION ORGANIZED AND
EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE AND A
CONSTITUENT CORPORATION IN THE MERGER OF PESCOR AND PESCOR
TARGET, AND ITS SUCCESSORS AND ASSIGNS.
"PESCOR MERGER" MEANS THE MERGER OF PESCOR TARGET INTO
PESCOR WITH PESCOR AS THE SURVIVING CORPORATION.
"PESCOR MERGER AGREEMENT" MEANS THAT CERTAIN AGREEMENT AND
PLAN OF REORGANIZATION DATED AS OF MAY 11, 2001 BY AND AMONG THE
PARENT, PESCOR AND THE SHAREHOLDERS OF PESCOR TARGET, AS THE SAME
MAY FROM TIME TO TIME BE AMENDED, RESTATED, SUPPLEMENTED OR
MODIFIED, TOGETHER WITH ANY AND ALL EXHIBITS AND SCHEDULES
THERETO, AMENDMENTS, MODIFICATIONS, AND SUPPLEMENTS THERETO,
RESTATEMENTS THEREOF, AND SUBSTITUTES THEREFOR.
"PESCOR MERGER DOCUMENTS" MEANS COLLECTIVELY THE PESCOR
MERGER AGREEMENT AND ANY AND ALL OTHER AGREEMENTS, DOCUMENTS OR
INSTRUMENTS, PREVIOUSLY, NOW OR HEREAFTER EXECUTED AND DELIVERED
BY THE PARENT, THE BORROWER, OR ANY OTHER PERSON IN CONNECTION
WITH THE PESCOR MERGER TRANSACTION, AS THE SAME MAY FROM TIME TO
TIME BE AMENDED, RESTATED, SUPPLEMENTED AND MODIFIED.
"PESCOR MERGER TRANSACTION" MEANS (I) THE PESCOR MERGER AND
(II) THE ISSUANCE OF THE PESCOR PREFERRED STOCK, ALL IN
ACCORDANCE WITH THE PROVISIONS OF THE PESCOR MERGER AGREEMENT,
AND ALSO INCLUDES THE CONTRIBUTION OF THE PESCOR STOCK BY THE
PARENT TO THE BORROWER.
"PESCOR PREFERRED STOCK" MEANS THE ISSUED AND OUTSTANDING
SHARES OF SERIES C-1, C-2, C-3, C-4 AND C-5 PREFERRED STOCK
ISSUED BY THE PARENT TO THE EXISTING SHAREHOLDERS OF PESCOR
TARGET IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE PESCOR
MERGER AGREEMENT.
"PESCOR PREFERRED STOCK SHAREHOLDER AGREEMENTS" MEANS ANY
AND ALL AGREEMENTS, DOCUMENTS OR INSTRUMENTS NOW OR AT ANY TIME
EXECUTED AND DELIVERED IN CONNECTION WITH THE ISSUANCE, SALE OR
PURCHASE OF THE PESCOR PREFERRED STOCK IN CONNECTION WITH THE
PESCOR MERGER TRANSACTION, AS THE SAME MAY FROM TIME TO TIME BE
AMENDED, RESTATED, SUPPLEMENTED OR MODIFIED.
"PESCOR TARGET" MEANS PESCOR PLASTICS, INC., A CORPORATION
ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF TEXAS AND A
CONSTITUENT CORPORATION IN THE MERGER OF PESCOR AND PESCOR TARGET
AND ITS SUCCESSORS AND ASSIGNS.
Section 1.1 (Certain Defined Terms) is hereby amended by deleting the
definition of the term "Affiliate" and substituting the following in its
place:
"AFFILIATE" MEANS, WITH RESPECT TO ANY DESIGNATED PERSON,
ANY OTHER PERSON, (A) DIRECTLY OR INDIRECTLY CONTROLLING,
DIRECTLY OR INDIRECTLY CONTROLLED BY, OR UNDER DIRECT OR INDIRECT
COMMON CONTROL WITH THE PERSON DESIGNATED, (B) DIRECTLY OR
INDIRECTLY OWNING OR HOLDING TEN PERCENT (10%) OR MORE OF ANY
EQUITY INTEREST IN SUCH DESIGNATED PERSON, OR (C) TEN PERCENT
(10%) OR MORE OF WHOSE STOCK OR OTHER EQUITY INTEREST IS DIRECTLY
OR INDIRECTLY OWNED OR HELD BY SUCH DESIGNATED PERSON. FOR
PURPOSES OF THIS DEFINITION, THE TERM "CONTROL" (INCLUDING WITH
CORRELATIVE MEANINGS, THE TERMS "CONTROLLING", "CONTROLLED BY"
AND "UNDER COMMON CONTROL WITH") MEANS THE POSSESSION, DIRECTLY
OR INDIRECTLY, OF THE POWER TO DIRECT OR CAUSE THE DIRECTION OF
THE MANAGEMENT AND POLICIES OF A PERSON, WHETHER THROUGH
OWNERSHIP OF VOTING SECURITIES OR OTHER EQUITY INTERESTS OR BY
CONTRACT OR OTHERWISE. NOTWITHSTANDING THE FOREGOING, NONE OF
THE HOLDERS OF THE PESCOR PREFERRED STOCK SHALL BE DEEMED TO BE
AFFILIATES OF THE BORROWER OR ANY OF ITS AFFILIATES SOLELY
BECAUSE OF HIS, HER OR ITS HOLDING OF SHARES OF THE PESCOR
PREFERRED STOCK.
Section 1.1 (Certain Defined Terms) is hereby amended by deleting the
definition of the term "Capital Expenditure" and substituting the following
in its place:
"CAPITAL EXPENDITURE" MEANS AN EXPENDITURE WHICH WOULD BE
CLASSIFIED AS SUCH IN ACCORDANCE WITH GAAP (WHETHER PAYABLE IN
CASH OR OTHER PROPERTY OR ACCRUED AS A LIABILITY) FOR FIXED OR
CAPITAL ASSETS, INCLUDING THE ENTERING INTO OF CAPITAL LEASES.
Section 1.1 (Certain Defined Terms) is hereby amended by deleting the
definition of the term "Capsol Italy" and substituting the following in its
place:
"CAPSOL ITALY" MEANS CAPSOL BERRY PLASTICS S.P.A., A COMPANY
DULY INCORPORATED AND EXISTING UNDER THE LAWS OF ITALY, AND ITS
SUCCESSORS AND ASSIGNS.
Section 1.1 (Certain Defined Terms) is hereby amended by deleting the
definition of the term "Italian Holding Company" and substituting the
following in its place:
"ITALIAN HOLDING COMPANY" MEANS CBP HOLDINGS, S.R.L.
(FORMERLY CAPSOL-BERRY PLASTICS S.R.L.), A COMPANY DULY
INCORPORATED AND EXISTING UNDER THE LAWS OF ITALY, AND ITS
SUCCESSORS AND ASSIGNS.
Section 1.1 (Certain Defined Terms) is hereby amended by deleting the
definition of the term "Maturity Date" and substituting the following in
its place:
"MATURITY DATE" MEANS JANUARY 21, 2004.
Section 1.1 (Certain Defined Terms) is hereby amended by deleting the
definition of the term "Ociesse" and substituting the following in its
place:
"OCIESSE" MEANS OCIESSE S.R.L. - OFFICINA COSTRUZIONE STAMPI
LAVORAZIONI MECCANICHE DI PRECISIONE, A COMPANY DULY INCORPORATED AND
EXISTING UNDER THE LAWS OF ITALY, AND ITS SUCCESSORS AND ASSIGNS.
Section 1.1 (Certain Defined Terms) is hereby amended by deleting the
definition of the term "Permitted Acquisition" and substituting the
following in its place:
"PERMITTED ACQUISITION" MEANS THE ACQUISITION OR PURCHASE
OF, OR INVESTMENT IN, ANY PERSON, ANY OPERATING DIVISION OR UNIT
OF ANY PERSON, OR THE CAPITAL STOCK OR ASSETS OF ANY PERSON OR
THE COMBINATION WITH ANY PERSON BY THE BORROWER OR ANY SUBSIDIARY
GUARANTOR (EACH INDIVIDUALLY, A "SUBJECT TRANSACTION") APPROVED
BY THE AGENT AND EACH OF THE LENDERS IN WRITING. THE AGENT AND
THE LENDERS HEREBY ADVISE THE BORROWER THAT THE PESCOR MERGER
TRANSACTION SHALL NOT CONSTITUTE A PERMITTED ACQUISITION UNLESS
AFTER GIVING EFFECT TO ANY BORROWINGS UNDER THE REVOLVING LOAN
NEEDED TO FINANCE THE PESCOR MERGER TRANSACTION, THE BORROWER AND
THE SUBSIDIARY GUARANTORS (I) HAVE AVAILABILITY UNDER THE
REVOLVING LOAN OR UNUSED AVAILABILITY UNDER THE BORROWING BASE IN
AN AMOUNT AT LEAST EQUAL TO EIGHTEEN MILLION DOLLARS
($18,000,000) AND (II) ARE REASONABLY EXPECTED TO HAVE SUCH
MINIMUM AVAILABILITY FOR A PERIOD OF TEN (10) BUSINESS DAYS AFTER
CLOSING AND CONSUMMATION OF THE PESCOR MERGER TRANSACTION.
NOTWITHSTANDING THE FOREGOING PROVISIONS OF THIS DEFINITION,
THE LENDERS AND THE AGENT HAVE PREVIOUSLY CONSENTED, OR HEREBY
CONSENT, TO THE POLY-SEAL STOCK PURCHASE TRANSACTION, THE ITALIAN
TARGET STOCK PURCHASE TRANSACTION, THE PURCHASE OF CERTAIN ASSETS
OF CAPSOL-CERTWOOD UK LTD. BY BERRY UK AND THE PESCOR MERGER
TRANSACTION; AND, ACCORDINGLY, ALL SUCH TRANSACTIONS ARE DEEMED
TO BE PERMITTED ACQUISITIONS.
Section 1.1 (Certain Defined Terms) is hereby amended by deleting the
definition of the term "Seller" and substituting the following in its
place:
"SELLER" MEANS WITH RESPECT TO (I) ANY SUBJECT TRANSACTION
WHICH CONSTITUTES AN ACQUISITION OF ALL OR SUBSTANTIALLY ALL OF
THE SHARES OF SUCH SUBJECT TRANSACTION, THE PERSONS SELLING SUCH
SHARES, AND (II) ANY SUBJECT TRANSACTION WHICH CONSTITUTES AN
ACQUISITION OF ALL OR SUBSTANTIALLY ALL OF THE ASSETS OF SUCH
SUBJECT TRANSACTION, THE PERSONS SELLING SUCH ASSETS.
Section 1.1 (Certain Defined Terms) is hereby amended by deleting the
definition of the terms "Subsidiary Guarantor" and "Subsidiary Guarantors"
and substituting the following in their place:
"SUBSIDIARY GUARANTOR" MEANS BIC, BTP, AEROCON, BERRY
STERLING, PACKERWARE, BERRY DESIGN, BERRY VENTURE, VENTURE
SOUTHEAST, VENTURE MIDWEST, KNIGHT, CPI, CARDINAL, POLY-SEAL,
BERRY ITALY, PESCOR PLASTICS OR ANY OTHER DOMESTIC SUBSIDIARY
(ORGANIZED AND EXISTING UNDER THE LAWS OF ANY STATE IN THE UNITED
STATES) OF THE BORROWER OR THE PARENT WHICH IS DESIGNATED AND
QUALIFIES AS A SUBSIDIARY GUARANTOR IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 6.2.2 (SUBSIDIARIES), OR ANY OF THEIR
RESPECTIVE SUCCESSORS AND ASSIGNS, AS THE CASE MAY BE; AND,
"SUBSIDIARY GUARANTORS" MEANS BIC, BTP, AEROCON, BERRY STERLING,
BERRY DESIGN, PACKERWARE, BERRY VENTURE, VENTURE SOUTHEAST,
VENTURE MIDWEST, KNIGHT, CPI, CARDINAL, POLY-SEAL, BERRY ITALY,
PESCOR PLASTICS AND EACH OTHER DOMESTIC SUBSIDIARY OF THE
BORROWER DESIGNATED AND QUALIFIED AS A "SUBSIDIARY GUARANTOR" IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 6.2.2 (SUBSIDIARIES),
AND ALL OF THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
Subsection (c) of Section 2.2.1 (Applicable Interest Rates) of the
Loan Agreement is hereby deleted in its entirety and the following is
substituted in its place:
C. THE APPLICABLE MARGIN FOR (I) LIBOR LOANS SHALL BE FOUR
HUNDRED SEVENTY-FIVE (475) BASIS POINTS PER ANNUM AND (II) INDEX
RATE LOANS SHALL BE THREE HUNDRED TWENTY-FIVE (325) BASIS POINTS.
Section 4.1.3 (Power and Authority) of the Loan Agreement is hereby
amended to add the following provisions:
EACH OF THE PARENT, THE BORROWER AND THEIR RESPECTIVE
SUBSIDIARIES, AS THE CASE MAY BE, HAS FULL CORPORATE POWER AND
AUTHORITY TO EXECUTE AND DELIVER THE FIRST AMENDMENT, ALL OTHER
FINANCING DOCUMENTS (RELATING TO THE FIRST AMENDMENT OR
OTHERWISE), AND THE PESCOR MERGER DOCUMENTS TO WHICH IT IS A
PARTY, TO MAKE THE BORROWINGS AND REQUEST LETTERS OF CREDIT AND
BOND LETTERS OF CREDIT UNDER THIS AGREEMENT (AS AMENDED BY THE
FIRST AMENDMENT AND OTHERWISE), TO CLOSE AND CONSUMMATE EACH
ASPECT OF THE PESCOR MERGER TRANSACTION, AS APPROPRIATE AND TO
INCUR AND PERFORM THE OBLIGATIONS WHETHER UNDER THIS AGREEMENT
(AS AMENDED BY THE FIRST AMENDMENT OR OTHERWISE), THE OTHER
FINANCING DOCUMENTS, THE PESCOR MERGER DOCUMENTS, ALL OF WHICH
HAVE BEEN DULY AUTHORIZED BY ALL PROPER AND NECESSARY CORPORATE
ACTION. NO CONSENT OR APPROVAL OF SHAREHOLDERS OR ANY CREDITORS
OF THE PARENT, THE BORROWER OR ANY SUBSIDIARY, AND NO CONSENT,
APPROVAL, FILING OR REGISTRATION WITH OR NOTICE TO ANY
GOVERNMENTAL AUTHORITY ON THE PART OF THE PARENT, THE BORROWER OR
ANY SUBSIDIARY, IS REQUIRED AS A CONDITION TO THE EXECUTION,
DELIVERY, VALIDITY OR ENFORCEABILITY OF THE FIRST AMENDMENT, THE
OTHER FINANCING DOCUMENTS (RELATED TO THE FIRST AMENDMENT OR
OTHERWISE), ANY OF THE PESCOR MERGER DOCUMENTS, THE PERFORMANCE
BY THE BORROWER OF THE OBLIGATIONS OR THE CLOSING AND
CONSUMMATION OF THE PESCOR MERGER TRANSACTION, IN EACH CASE, IF
REQUIRED, THE SAME HAS BEEN DULY OBTAINED.
Section 4.1.12 (Pro-forma Financial Statements) is hereby deleted in
its entirety and the following is substituted in its place:
4.1.12 PRO FORMA FINANCIAL STATEMENTS.
The Borrower has furnished to the Agent a pro-forma
consolidated balance sheet of the Borrower and the Subsidiaries
as of a date on or about March 31, 2001 (the "Pro-forma Date"),
but giving effect to the Pescor Merger Transaction and the
transactions incident thereto (the "Pro-forma Balance Sheet")
together with pro-forma financial projections of the Parent for
the five-year period subsequent to the Pescor Merger Transaction
(the "Pro-forma Financial Projections"). A copy of the Pro-forma
Balance Sheet and the Pro-forma Financial Projections are
attached hereto as Exhibits C-1 and C-2, respectively. The Pro-
forma Balance Sheet is correct and complete, has been prepared in
accordance with GAAP, and fairly presents in all material
respects the consolidated financial condition of the Borrower and
the Subsidiaries as of the Pro-forma Date, but giving effect to
the Pescor Merger Transaction and the transactions incident
thereto. The Pro-forma Financial Projections represent the best
estimate of the future operations of the Parent and are based on
reasonable and conservative assumptions, but do not constitute a
guaranty of actual performance.
Section 4.1.26 (Italian Target Stock Purchase Transaction) is hereby
amended to reflect that (1) Berry Italy is a Wholly-Owned Subsidiary of the
Borrower, (2) the Borrower is the owner of a ninety-five percent (95%)
interest in the Italian Holding Company, (3) Berry Italy is the owner of a
five percent (5%) interest in the Italian Holding Company, and (4) that
Capsol Italy and Ociesse are each Wholly-Owned Subsidiaries of the Italian
Holding Company.
Section 4.1.27 (Hart-Scott-Rodino) of the Loan Agreement is hereby
deleted in its entirety and the following is substituted in its place:
4.1.27 HART-SCOTT-RODINO.
The Borrower, the Seller and all other necessary Persons, as
appropriate, have made such filings, if any, as may be required
by the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended, and have provided such supplemental information that may
be required by such Act, with respect to the sales contemplated
by the Pescor Merger Transaction. The waiting periods under such
Act have terminated or expired.
Article IV of the Loan Agreement is hereby amended to add the
following additional section:
SECTION 4.1.29 PESCOR MERGER TRANSACTION.
The Agent has received true and correct photocopies of the
Pescor Merger Agreement, each of the other Pescor Merger
Documents executed, delivered and/or furnished on or before the
date of the First Amendment in connection with the Pescor Merger
Transaction. Neither the Pescor Merger Agreement, any of the
other Pescor Merger Documents have been modified, changed,
supplemented, canceled, amended or otherwise altered, except as
otherwise disclosed to the Agent in writing on or before the date
of the First Amendment. The Pescor Merger Transaction have been
effected, closed and consummated pursuant to, and in accordance
with, the terms and conditions of the Pescor Merger Agreement and
with all applicable Laws.
Section 6.1.13(a) (Tangible Capital Funds), Section 6.1.13(c)
(Interest Coverage Ratio) and Section 6.1.13(e) (Debt Service Coverage
Ratio) of the Loan Agreement are hereby deleted in their entirety.
Section 6.1.13(b) (Funded Debt to EBITDA) is hereby deleted in its
entirety and the following is substituted in its place:
(B) FUNDED DEBT TO EBITDA. The Borrower, Berry UK, NIM
Holdings and the Subsidiary Guarantors, on a consolidated basis,
will not at any time permit the ratio of (x) Funded Debt to (y)
EBITDA, for the prior twelve (12) month trailing period
(reflecting actual and historical performance of each Subject
Transaction which constitutes a Permitted Acquisition during such
twelve (12) month period), tested as of the last day of each
fiscal quarter, to be greater than the following amounts as of
the following dates:
DATE RATIO
June 30, 2001 4.25 to 1.00
September 30, 2001 4.00 to 1.00
December 31, 2001 3.75 to 1.00
March 31, 2002 3.50 to 1.00
June 30, 2002 3.50 to 1.00
September 30, 2002 and 3.25 to 1.00
the last day of each fiscal
quarter thereafter
Section 6.1.13(d) (Fixed Charge Coverage Ratio) of the Loan Agreement
is hereby deleted in its entirety and the following is substituted in its
place:
(D) FIXED CHARGE COVERAGE RATIO. The Borrower, Berry
UK, NIM Holdings and the Subsidiary Guarantors will
maintain, on a consolidated basis, will not permit the Fixed
Charge Coverage Ratio for the prior twelve (12) month
trailing period, tested as of the last day of each fiscal
quarter, to be less than 1.00 to 1.00 as of the end of each
fiscal quarter.
Section 6.2.4(h) (Indebtedness) of the Loan Agreement is hereby
deleted in its entirety and the following is substituted in its place:
(H) CAPITAL LEASES AS AND TO THE EXTENT PERMITTED BY SECTION
6.2.6;
Section 6.2.4(i) of the Loan Agreement (Indebtedness) is hereby
deleted in its entirety and the following is substituted in its place:
(I) INDEBTEDNESS FOR BORROWED MONEY OF THE BORROWER TO ANY
SUBSIDIARY GUARANTOR OR OF ANY SUBSIDIARY GUARANTOR TO THE
BORROWER OR ANY OTHER SUBSIDIARY GUARANTOR AND INDEBTEDNESS FOR
BORROWED MONEY OF BERRY UK, NIM HOLDINGS, NORWICH, THE ITALIAN
HOLDING COMPANY, CAPSOL ITALY AND/OR OCIESSE TO THE BORROWER OR
ANY OTHER DOMESTIC SUBSIDIARY GUARANTOR (THE "FOREIGN
INTERCOMPANY INDEBTEDNESS"), PROVIDED THAT THE AGGREGATE AMOUNT
OF SUCH FOREIGN INTERCOMPANY INDEBTEDNESS AND FOREIGN
INTERCOMPANY INVESTMENTS (EXCLUDING INTERCOMPANY ALLOCATIONS OF
EXPENSES AND CHARGES AND EXCLUDING THE AMOUNT USED TO FUND THE
PURCHASE OF THE ASSETS OF CAPSOL-CERTWOOD UK LTD.), SHALL NOT
EXCEED, IN THE AGGREGATE, TEN MILLION FOUR HUNDRED THOUSAND
DOLLARS ($10,400,000);
Section 6.2.5(vii) of the Loan Agreement (Investments, Loans and Other
Transactions) is deleted in its entirety and the following is substituted
in its place:
(VII) (1) THE BORROWER'S ACQUISITION, CREATION, OWNERSHIP
AND INITIAL CAPITALIZATION OF NIM HOLDING AND THE ITALIAN HOLDING
COMPANY, (2) THE INITIAL CAPITALIZATION OF BERRY UK AND NORWICH
ACQUISITION AS PART OF AND AT THE TIME OF THE BORROWER'S
ACQUISITION OF NIM HOLDINGS, (3) THE INITIAL CAPITALIZATION OF
CAPSOL ITALY AND/OR OCIESSE AS PART OF AND AT THE TIME OF THE
BORROWER'S ACQUISITION OF THE ITALIAN HOLDING COMPANY, (4) THE
PURCHASE OF CERTAIN ASSETS OF CAPSOL-CERTWOOD UK LTD., AND (5)
ANY ADDITIONAL CAPITAL OR OTHER EQUITY CONTRIBUTIONS OR
INVESTMENTS IN BERRY UK, NIM HOLDINGS, THE ITALIAN HOLDING
COMPANY, CAPSOL AND OCIESSE; PROVIDED THAT THE AGGREGATE AMOUNT
OF ANY SUCH ADDITIONAL CAPITAL OR OTHER EQUITY CONTRIBUTIONS
(COLLECTIVELY, THE "FOREIGN INTERCOMPANY INVESTMENTS"), TOGETHER
WITH ANY FOREIGN INTERCOMPANY INDEBTEDNESS (EXCLUDING
INTERCOMPANY ALLOCATIONS OF EXPENSES AND CHARGES AND EXCLUDING
THE AMOUNT USED TO FUND THE PURCHASE OF THE ASSETS OF CAPSOL-
CERTWOOD UK LTD.) PERMITTED BY THE TERMS OF THIS AGREEMENT, MAY
NOT EXCEED AT ANY TIME IN THE AGGREGATE TEN MILLION FOUR HUNDRED
THOUSAND DOLLARS ($10,400,000);
Section 6.2.6 of the Loan Agreement (Capital Expenditures) is hereby
deleted in its entirety and the following is substituted in its place:
6.2.6 CAPITAL EXPENDITURES.
Except for Permitted Acquisitions, permitted reinvestments
of Permitted Asset Dispositions and Capital Expenditures made for
the acquisition or construction of Fixed or Capital Assets that
are contemplated to be sold in connection with a sale-leaseback
transaction referred to in clause (A) of the last sentence of
Section 6.2.16, neither the Borrower, Berry UK nor NIM Holdings
will or will permit any Subsidiary to, directly or indirectly,
make any Capital Expenditures in the aggregate for the Borrower,
Berry UK, NIM Holdings and their respective Subsidiaries (taken
as a whole) in an amount which exceeds the "Capital Expenditure
Ceiling" during any fiscal year as set forth below. If in any
given fiscal year, the total Capital Expenditures of the
Borrower, Berry UK, NIM Holdings and its or their Subsidiaries,
taken as a whole, are less than the applicable Capital
Expenditure Ceiling for that fiscal year, the unused portion of
the amount permitted for Capital Expenditures (the "Carry Forward
Amount') may be used to increase the applicable Capital
Expenditure Ceiling for the then next succeeding fiscal year.
The Carry Forward Amount for any given fiscal year cannot be
carried forward for more than one (1) fiscal year.
FISCAL YEAR ENDING CAPITAL EXPENDITURE CEILING
December 31, 2001 $45,000,000
December 31, 2002 $50,000,000
December 31, 2003 and $51,000,000
each fiscal year thereafter
Section 7.1.13 (Change in Ownership) of the Loan Agreement is hereby
amended to provide that, except to the extent permitted by Section 6.2.1
(Capital Structure) of the Loan Agreement, (1) the Borrower's failure to
own and control, beneficially and of record, one hundred percent (100%) of
the issued and outstanding shares of Berry Italy, (2) the failure of the
Borrower and/or Berry Italy to own and control, beneficially and of
record, one hundred percent (100%) of the issued and outstanding shares of
the Italian Holding Company, and/or (3) the Italian Holding Company's
failure to own and control, beneficially and of record, one hundred percent
(100%) of the issued and outstanding shares of Capsol Italy and Ociesse,
shall constitute an Event of Default under Section 7.1.13 of the Loan
Agreement.
Section 9.1 (Notices) of the Loan Agreement is hereby amended to
delete the notice address for the Collateral Agent and the following is
substituted in its place:
COLLATERAL AGENT: BANK OF AMERICA, N.A.
(ON OR BEFORE BANK OF AMERICA BUSINESS CREDIT
BOFA TERMINATION 231 S. LASALLE STREET
DATE) CHICAGO, ILLINOIS 60697
ATTN: BRIAN J. WRIGHT
The term "this Agreement" as used in the Loan Agreement and the term
"Loan Agreement" as used in any of the Financing Documents shall mean the
Loan Agreement as modified herein unless the context clearly indicates or
dictates a contrary meaning. Any and all such Financing Documents are
deemed hereby amended to reflect the terms and conditions of this
Amendment, including, without limitation, the Deeds of Trust.
The Borrower, the Agent and the Lenders will execute such confirmatory
instruments with respect to the Loan Agreement and/or any of the Financing
Documents as the Agent may reasonably require.
As a condition to the Agent's and the Lenders' agreement to enter into
this Amendment and the waivers granted herein, the Borrower hereby agrees
to pay to the Agent, for the ratable benefit of the Lenders, an amendment
fee in the amount of $250,000, which fee shall be due at the time this
Amendment is executed and is fully earned and non-refundable upon payment.
This Amendment may not be amended, changed, modified, altered or
terminated without in each instance the prior written consent of the Agent,
the BofA Agent, the Lenders and the Borrower. This Amendment shall be
construed in accordance with, and governed by, the laws of the State of
Maryland.
The Borrower agrees that neither the execution and delivery of this
Amendment nor any of the terms, provisions, covenants, or agreements
contained in this Amendment shall in any manner release, impair, lessen,
waive, or otherwise adversely affect the joint and several liability and
obligations of the Borrower under the terms of the Loan Agreement.
This Amendment may be executed in any number of duplicate originals or
counterparts, each of such duplicate originals or counterparts shall be
deemed to be an original and all taken together shall constitute but one
and the same instrument. The parties agree that their respective
signatures may be delivered by facsimile. Any party who chooses to deliver
its signature by facsimile agrees to provide a counterpart of this
Amendment with its inked signature promptly to each other party.
The Lenders and the Agent hereby waive the Defaults and Events of
Default arising solely from the failure of the Borrower, Berry UK and/or
NIM Holdings to comply with the terms of Section 6.2.4(i) and Section
6.2.5(vii). This paragraph shall not be deemed to waive any other existing
or future Events of Default or Defaults.
IN WITNESS WHEREOF, the Borrower, the Lenders, the Agent and the BofA Agent
have executed this Amendment under seal as of the date and year first
written above.
ATTEST: BERRY PLASTICS CORPORATION
_____________________________ By:/s/ James M. Kratochvil (SEAL)
James M. Kratochvil
Executive Vice President
WITNESS: GENERAL ELECTRIC
CAPITAL CORPORATION,
in its capacity as Agent
_____________________________ By:/s/ General Electric Capital Corporation
(SEAL)
Name:
Title:
WITNESS: GENERAL ELECTRIC
CAPITAL CORPORATION,
in its capacity as Lender
_____________________________ By:/s/ General Electric Capital Corporation
(SEAL)
Name:
Title:
WITNESS: BANK OF AMERICA, N.A.,
in its capacity as BofA Agent
_____________________________ By:/s/ Brian J. Wright (SEAL)
Brian J. Wright
Vice President
Berry 1st Amendment to Loan Agreement -- GE.DOC
March 15, 20022:44 PM
ACKNOWLEDGMENT AND CONSENT
BPC HOLDING CORPORATION, a corporation organized and existing under
the laws of the State of Delaware (the "Parent"), BERRY IOWA CORPORATION, a
corporation organized and existing under the laws of the State of Delaware
("Berry Iowa"), BERRY TRI-PLAS CORPORATION, a corporation organized and
existing under the laws of the State of Delaware ("Berry Tri-Plas"),
AEROCON, INC., a corporation organized and existing under the laws of the
State of Delaware ("AeroCon"), BERRY STERLING CORPORATION, a corporation
organized and existing under the laws of the State of Delaware ("Berry
Sterling"), BERRY PLASTICS DESIGN CORPORATION, a corporation organized and
existing under the laws of the State of Delaware ("Berry Design"),
PACKERWARE CORPORATION, a corporation organized and existing under the laws
of the State of Delaware ("PackerWare"), VENTURE PACKAGING, INC., a
corporation organized and existing under the laws of the State of Delaware
("Venture Holding"), BERRY PLASTICS TECHNICAL SERVICES, INC., a corporation
organized and existing under the laws of the State of Delaware, formerly
known as Venture Packaging Southeast, Inc. ("Venture Southeast"), VENTURE
PACKAGING MIDWEST, INC., a corporation organized and existing under the
laws of the State of Delaware ("Venture Midwest"), KNIGHT PLASTICS, INC., a
corporation organized and existing under the laws of the State of Delaware
("Knight"), CPI HOLDING CORPORATION, a corporation organized and existing
under the laws of the State of Delaware ("CPI"), CARDINAL PACKAGING, INC.,
a corporation organized and existing under the laws of the State of Ohio
("Cardinal"), POLY-SEAL CORPORATION, a corporation organized and existing
under the laws of the State of Delaware ("Poly-Seal"), PESCOR, INC., a
corporation organized and existing under the laws of the State of Delaware
("Pescor") and BERRY PLASTICS ACQUISITION CORPORATION II, a corporation
organized and existing under the laws of the State of Delaware ("Berry
Italy") (the Parent, Berry Iowa, Berry Tri-Plas, AeroCon, Berry Sterling,
Berry Design, PackerWare, Venture Holding, Venture Southeast, Venture
Midwest, Knight, CPI, Cardinal, Poly-Seal, Pescor and Berry Italy are
herein collectively and individually referred to as the "Guarantor") hereby
consent and agree to the foregoing Amendment and hereby acknowledge and
agree that neither the execution and delivery of the foregoing Amendment
nor any of the terms, provisions and agreements contained in the foregoing
Amendment shall in any manner impair, lessen, waive, discharge or otherwise
adversely affect the indebtedness, liabilities, and obligations of the
Guarantors under and in connection with any and all Financing Documents
previously, now or hereafter executed and delivered by either of them,
including, without limitation, the Guaranty Documents.
IN WITNESS WHEREOF, each of the parties hereby have executed and
delivered this Acknowledgment under their respective seals as of the day
and year first written above.
WITNESS OR ATTEST: BERRY IOWA CORPORATION
_________________________ By:/s/ James M. Kratochvil (SEAL)
James M. Kratochvil
Executive Vice President
WITNESS OR ATTEST: BERRY TRI-PLAS CORPORATION
_________________________ By:/s/ James M. Kratochvil (SEAL)
James M. Kratochvil
Executive Vice President
WITNESS OR ATTEST: BERRY STERLING CORPORATION
_________________________ By:/s/ James M. Kratochvil (SEAL)
James M. Kratochvil
Executive Vice President
WITNESS OR ATTEST: AERO CON, INC.
_________________________ By:/s/ James M. Kratochvil (SEAL)
James M. Kratochvil
Executive Vice President
WITNESS OR ATTEST: PACKERWARE CORPORATION
_________________________ By:/s/ James M. Kratochvil (SEAL)
James M. Kratochvil
Executive Vice President
WITNESS OR ATTEST: BERRY PLASTICS DESIGN CORPORATION
_________________________ By:/s/ James M. Kratochvil (SEAL)
James M. Kratochvil
Executive Vice President
Berry 1st Amendment to Loan Agreement -- GE.DOC
March 15, 20022:44 PM
WITNESS OR ATTEST: BPC HOLDING CORPORATION
_________________________ By:/s/ James M. Kratochvil (SEAL)
James M. Kratochvil
Executive Vice President
WITNESS OR ATTEST: VENTURE PACKAGING, INC.
_________________________ By:/s/ James M. Kratochvil (SEAL)
James M. Kratochvil
Executive Vice President
WITNESS OR ATTEST: BERRY PLASTICS TECHNICAL SERVICES,
INC., f/k/a Venture Packaging Southeast, Inc.
_________________________ By:/s/ James M. Kratochvil (SEAL)
James M. Kratochvil
Executive Vice President
WITNESS OR ATTEST: VENTURE PACKAGING MIDWEST, INC.
_________________________ By:/s/ James M. Kratochvil (SEAL)
James M. Kratochvil
Executive Vice President
WITNESS OR ATTEST: KNIGHT PLASTICS, INC.
_________________________ By:/s/ James M. Kratochvil (SEAL)
James M. Kratochvil
Executive Vice President
WITNESS OR ATTEST: CPI HOLDING CORPORATION
_________________________ By:/s/ James M. Kratochvil (SEAL)
James M. Kratochvil
Executive Vice President
WITNESS OR ATTEST: CARDINAL PACKAGING, INC.
_________________________ By:/s/ James M. Kratochvil (SEAL)
James M. Kratochvil
Executive Vice President
WITNESS OR ATTEST: POLY-SEAL CORPORATION
_________________________ By:/s/ James M. Kratochvil (SEAL)
James M. Kratochvil
Executive Vice President
WITNESS OR ATTEST: PESCOR, INC.
_________________________ By:/s/ James M. Kratochvil (SEAL)
James M. Kratochvil
Executive Vice President
WITNESS OR ATTEST: BERRY PLASTICS ACQUSITION
CORPORATION II
_________________________ By:/s/ James M. Kratochvil (SEAL)
James M. Kratochvil
Executive Vice President