SECOND AMENDED AND RESTATED
FINANCING AND SECURITY AGREEMENT
THIS SECOND AMENDED AND RESTATED FINANCING AND SECURITY AGREEMENT (this
"AGREEMENT") is made this 2nd day of July, 1998, by and among BERRY
PLASTICS CORPORATION, a corporation organized under the laws of the State
of Delaware (the "BORROWER"), NIM HOLDINGS LIMITED, a company organized and
existing under the laws of England and Wales ("Berry UK"), and NORWICH
INJECTION MOULDERS LIMITED, a company organized and existing under the laws
of England and Wales ("NORWICH"); NATIONSBANK, N. A., a national banking
association ("NATIONSBANK"), FLEET CAPITAL CORPORATION, a corporation
organized and existing under the laws of the State of Rhode Island
("FLEET"), GENERAL ELECTRIC CAPITAL CORPORATION, a corporation organized
and existing under the laws of the State of New York ("GE CAPITAL"), HELLER
FINANCIAL, INC., a corporation organized and existing under the laws of the
State of Delaware ("HELLER") and each other financial institution which is
a party to this Agreement, whether by execution and delivery of this
Agreement or otherwise pursuant to Section 9.5 (Assignments by Lender)
(collectively, the "Lenders" and individually, a "LENDER"); and
NATIONSBANK, N. A., a national banking association, in its capacity as both
collateral and administrative agent for the Lenders (the "AGENT").
RECITALS
(A)The Borrower, the Agent and the Lenders are parties to that certain
Amended and Restated Financing and Security Agreement dated as of August
29, 1997 by and among the Borrower, the Agent and the Lenders (other than
Heller), as amended by that certain First Amendment to Amended and Restated
Financing and Security Agreement dated as of March 4, 1998 (as amended,
restated, supplemented or otherwise modified, the "Original Credit
Agreement"). Pursuant to the provisions of the Original Credit Agreement,
the Borrower applied to the Lenders for credit facilities consisting of (i)
a revolving credit facility in the maximum principal amount of $50,000,000,
(ii) a letter of credit facility in the maximum principal amount of
$5,000,000, as part of that revolving credit facility, (iii) a term loan
facility in the maximum principal amount of $28,003,000, (iv) a term loan
facility in the maximum principal amount of $30,000,000 ("Term Loan B"),
(iv) a standby letter of credit facility in the maximum principal amount of
$18,852,000, (v) a special source bond facility in the maximum principal
amount of $860,575.07 (the "Special Source Bond"), all to be used by the
Borrower for the Permitted Uses described in this Agreement.
(B)The Borrower has advised the Agent and the Lenders that the Borrower has
formed Berry UK and that Berry UK is a wholly-owned subsidiary of the
Borrower. Contemporaneously with the execution and delivery of this
Agreement, Berry UK has acquired or intends to acquire all of the capital
stock ("Norwich Stock") issued by Norwich in accordance with the provisions
of that certain Agreement for the Sale and Purchase of the Entire Issued
Share Capital of Norwich Injection Moulders Limited dated as of July 1,
1998 by and among Berry UK, the Borrower and the shareholders of Norwich
(as amended, restated, supplemented or otherwise modified, the "Norwich
Purchase Agreement").
(C)In connection with the consummation of the acquisition of the Norwich
Stock, the Borrower has requested that the Lenders agree (i) to amend and
restructure Term Loan B such that as of the date of this Agreement, the
maximum aggregate unpaid principal balance of Term Loan B shall be
$36,500,000 and (ii) otherwise to amend certain terms and conditions of the
Original Credit Agreement and that NationsBank (i) make a revolving credit
facility available to Berry UK and Norwich up to a maximum principal amount
of <pound-sterling>1,500,000 (the "UK Revolving Loan") and (ii) make a term
loan to Berry UK up to a maximum principal amount of
<pound-sterling>4,500,000 (the "UK Term Loan"). In addition, the Borrower
has requested that the Agent and the Lenders consent and agree to (1) the
formation of Berry UK and (2) the acquisition of the Norwich Stock by Berry
UK in accordance with the terms and conditions of the Norwich Purchase
Agreement.
(D)Accordingly, the Borrower, the Agent and the Lenders desire to amend and
restate the Original Credit Agreement, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1CERTAIN DEFINED TERMS.
As used in this Agreement, the terms defined in the Preamble and Recitals
hereto shall have the respective meanings specified therein, and the
following terms shall have the following meanings:
"Account" individually and "Accounts" collectively mean all presently
existing or hereafter acquired or created accounts, accounts receivable,
contract rights, notes, drafts, instruments, acceptances, chattel paper,
leases and writings evidencing a monetary obligation or a security interest
in, or a lease of, goods, all rights to receive the payment of money or
other consideration under present or future contracts (including, without
limitation, all rights to receive payments under presently existing or
hereafter acquired or created letters of credit), or by virtue of
merchandise sold or leased, services rendered, by or set forth in or
arising out of any present or future chattel paper, note, draft, lease,
acceptance, writing, bond, insurance policy, instrument, document or
general intangible, and all extensions and renewals of any thereof, all
rights under or arising out of present or future contracts, agreements or
general interest in merchandise which gave rise to any or all of the
foregoing, including all goods, all claims or causes of action now existing
or hereafter arising in connection with or under any agreement or document
or by operation of law or otherwise, all collateral security of any kind
(including, without limitation, real property mortgages and deeds of trust)
and letters of credit given by any Person with respect to any of the
foregoing, all books and records in whatever media (paper, electronic or
otherwise) recorded or stored, with respect to any or all of the foregoing
and all general intangibles necessary or beneficial to retain, access
and/or process the information contained in those books and records, and
all proceeds (cash and non-cash) of the foregoing.
"Account Debtor" means any Person who is obligated on an Account and
"Account Debtors" mean all Persons who are obligated on the Accounts.
"AeroCon, Inc." means AeroCon, Inc., a corporation organized and existing
under the laws of the State of Delaware, and its successors and assigns.
"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.
"Agency Fee" and "Agency Fees" have the meanings described in SECTION 8.9
AGENCY FEE.
The Borrower shall pay to the Agent, an annual loan administration and
agency fee (collectively, the "Agency Fees" and individually, an "Agency
Fee"), in the aggregate amount of Eighty Thousand Dollars ($80,000),
payable quarterly in arrears in installments of $20,000 each. The initial
Agency Fee shall be payable on the Second Closing Date, and each Agency Fee
thereafter shall be payable in advance on the first day of each quarterly
period, commencing with the first such day following the date hereof. Each
Agency Fee shall be fully earned and non-refundable upon the date paid.
The Agent shall retain all of the Agency Fees for its own account and shall
have no obligation to remit or pay any portion thereof to any of the
Lenders. (Agency Fee).
"Agent" means the Person defined as the "Agent" in the preamble of this
Agreement and shall also include any successor Agent appointed pursuant to
SECTION 8.7 SUCCESSOR AGENT. (Successor Agent).
"Agent's Obligations" shall mean any and all Obligations payable solely to
and for the exclusive benefit of the Agent by the Borrower under the terms
of this Agreement and/or any of the other Financing Documents, including,
without limitation, and any and all Agency Fees, Letter of Credit Fronting
Fees and/or Field Examination Fees.
"Agreement" means this Second Amended and Restated Financing and Security
Agreement, as amended, restated, supplemented or otherwise modified in
writing in accordance with the provisions of SECTION 9.2 AMENDMENTS;
WAIVERS.
This Agreement and the other Financing Documents may not be amended,
modified, or changed in any respect except by an agreement in writing
signed by the Requisite Lenders, the Borrower, Berry UK and Norwich and to
the extent provided in CIRCUMSTANCES WHERE CONSENT OF ALL OF THE LENDERS IS
REQUIRED. by an agreement in writing signed by all of the Lenders, the
Borrower, Berry UK and Norwich. In addition, any agreement which directly
or indirectly affects any rights, duties, obligations, liabilities or
remedies of the Agent under this Agreement, under any of other Financing
Documents or otherwise must be approved and signed by the Agent. No waiver
of any provision of this Agreement or of any of the other Financing
Documents, nor consent to any departure by the Borrower, Berry UK or
Norwich therefrom, shall in any event be effective unless the same shall be
in writing. No course of dealing between the Borrower, Berry UK, Norwich
and the Agent and/or any of the Lenders and no act or failure to act from
time to time on the part of the Agent and/or any of the Lenders shall
constitute a waiver, amendment or modification of any provision of this
Agreement or any of the other Financing Documents or any right or remedy
under this Agreement, under any of the other Financing Documents or under
applicable Laws. (Amendments; Waivers).
"Alternate Base Rate" means the sum of (a) the Base Rate PLUS (b) the
Applicable Margin.
"Amortizing Iowa Bond Letter of Credit Obligations" has the meaning
described in Section (ii)Notwithstanding the provisions of paragraph (a)
above, as long as no Event of Default has occurred, any drawing under the
Iowa Bond Letter of Credit - NB to redeem Iowa Bonds purchased with a
drawing under the Iowa Bond Standby Credit Agreement, any drawing under the
Nevada Bond Letter of Credit - NB to purchase Nevada Bonds, and any drawing
under the South Carolina Bond Letter of Credit - NB to purchase South
Carolina Bonds, in each case relating to Bonds which were tendered for
purchase by the holders thereof and which were not remarketed in a timely
fashion (each referred to herein as a "Conversion Drawing"), are not
required to be reimbursed to the Agent ON DEMAND; provided that BIC or the
Borrower, as appropriate, make payments of interest to the Agent at the
rates, at the times and otherwise subject to the provisions for interest on
the Loans under INTEREST. (Interest), and the principal amount of each such
Conversion Drawing is repaid in equal quarterly payments (i) over the
remaining term to expiry of the Bond Letter of Credit Facility with respect
to the Nevada Bond Letter of Credit - NB and/or the South Carolina Bond
Letter of Credit - NB and (ii) over a period of ten (10) years with respect
to the Iowa Bond Letter of Credit - NB; final payment of all outstanding
amounts relating to the Nevada Bond Letter of Credit - NB and/or the South
Carolina Bond Letter of Credit - NB to be made no later than expiry of the
Bond Letter of Credit Facility or the Revolving Credit Termination Date,
whichever is earlier, and final payment of all outstanding amounts relating
to the Iowa Bond Letter of Credit - NB to be made no later than the date
which is ten (10) years after the date of any Conversion Drawing under the
Iowa Bond Letter of Credit - NB or the Revolving Credit Termination Date,
whichever is earlier. In addition, the Agent and the Lenders agree that in
the event the Iowa Bond Trustee draws on the Iowa Bond Letter of Credit on
or about the business day preceding the expiration or termination of the
Iowa Bond Letter of Credit, as contemplated by Section 505 of the Iowa Bond
Trust Agreement (the "Draw"), the Iowa Bond Letter of Credit Obligations
resulting from the Draw, shall not be payable ON DEMAND as would otherwise
be required by this Section (E) PAYMENTS OF BOND LETTERS OF CREDIT., but
shall be repaid by the Borrower in equal consecutive quarterly installments
over a period of ten (10) years, commencing with the first day following
the first full quarterly period after the Draw and continuing on the first
day of each quarterly period thereafter (the "Amortizing Iowa Bond Letter
of Credit Obligations"); provided, that (A) there does not exist a Default
or an Event of Default, (B) the Draw is not the result of an acceleration
of the Iowa Bonds pursuant to Section 1102 of the Iowa Bond Trust Agreement
and (C) the Draw is not the result of the occurrence of a "Determination of
Taxability" (as defined in the Iowa Bond Trust Agreement). Interest shall
be payable on the Amortizing Iowa Bond Letter of Credit Obligations to the
Agent at the rates, at the times and otherwise subject to the provisions
for interest on the Loans under INTEREST. (Interest), with a final payment
of all outstanding amounts relating to the Iowa Bond Letter of Credit - NB
to be made no later than the date which is ten (10) years after the date of
the Draw or the Revolving Credit Termination Date, whichever is earlier.
(Payments of Bond Letters of Credit).
"Applicable Interest Rate" means (a) the LIBOR Rate, or (b) the Alternate
Base Rate.
"Applicable Margin" means the applicable rate per annum to be added to the
LIBOR Base Rate or the Base Rate, as set forth in Section (A) APPLICABLE
INTEREST RATES.(Applicable Interest Rates).
"Asset Disposition" means the disposition of any or all of the Assets of
the Borrower or any Subsidiary of the Borrower, whether by sale, lease,
transfer or other disposition (including any such disposition effected by
way of merger or consolidation) other than Permitted Asset Dispositions.
"Assets" means at any date all assets that, in accordance with GAAP
consistently applied, should be classified as assets on a consolidated
balance sheet of the Borrower and its Subsidiaries.
"Assignee" has the meaning set forth in ASSIGNMENTS BY LENDERS.
Any Lender may, with the prior written consent of the Agent and the
Borrower, but without notice to or consent of any other Lender, which
consent shall not be unreasonably withheld, delayed or conditioned, assign
to any Person (each an "Assignee" and collectively, the "Assignees") all or
a portion of such Lender's Commitments; provided that (a) the amount
assigned by such Lender must be at least equal to Five Million Dollars
($5,000,000), (b) after giving effect to such assignment, such Lender must
continue to hold a Pro Rata Share of the Commitments at least equal to Ten
Million Dollars ($10,000,000), unless such Lender has assigned one hundred
percent (100%) of such Lender's Commitments, and (c) any amount assigned
shall be divided pro rata among such Lenders' Pro Rata Share of the
Commitments and Obligations. NationsBank agrees that if at any time
NationsBank sells one hundred percent (100%) of all of its Commitments,
NationsBank shall resign as Agent and the remaining Lenders shall select a
replacement Agent in accordance with the provisions of this Agreement. In
addition, NationsBank agrees that for so long as NationsBank is the Agent,
unless otherwise agreed by the Lenders, NationsBank shall continue to hold
a Pro Rata Share of the Commitments at least equal to the Pro Rata Share of
the Lender (other than NationsBank) having the highest Pro Rata Share of
the Commitments. Any Lender which elects to make such an assignment shall
pay to the Agent, for the exclusive benefit of the Agent, an administrative
fee for processing each such assignment in the amount of Three Thousand
Five Hundred Dollars ($3,500). Such Lender and its Assignee shall notify
the Agent and the Borrower in writing of the date on which the assignment
is to be effective (the "Adjustment Date"). On or before the Adjustment
Date, the assigning Lender, the Agent, the Borrower and the respective
Assignee shall execute and deliver a written assignment agreement in a form
acceptable to the Agent, which shall constitute an amendment to this
Agreement to the extent necessary to reflect such assignment. Upon the
request of any assigning Lender following an assignment made in accordance
with this ASSIGNMENTS BY LENDERS., the Borrower, Berry UK and Norwich shall
issue new Notes to the assigning Lender and its Assignee reflecting such
assignment, in exchange for the existing Notes held by the assigning
Lender.(Assignments by Lenders).
"Assignment of Patents" means (a) that certain collateral assignment of
patents as security dated as of the First Closing Date from the Borrower to
the Agent for the benefit of the Lenders ratably and the Agent, (b) that
certain collateral assignment of patents as security dated as of the First
Closing Date from BTP, BIC, Berry Sterling and PackerWare to the Agent for
the benefit of the Lenders ratably and the Agent, and (c) that certain
collateral assignment of patents as security dated as of the date of the
Second Closing Date from Venture Southeast and Venture Midwest, as amended,
restated, supplemented or otherwise modified in writing at any time and
from time to time.
"Assignment of Trademarks" means (a) that certain collateral assignment of
trademarks as security dated as of the First Closing Date from the Borrower
to the Agent for the benefit of the Lenders ratably and the Agent, (b) that
certain collateral assignment of trademarks as security dated as of the
First Closing Date from PackerWare to the Agent for the benefit of the
Lenders ratably and the Agent, and (c) that certain collateral assignment
of trademarks as security dated the date of the Second Closing Date from
Venture Southeast and Venture Midwest to the Agent for the benefit of the
Lenders ratably and the Agent, as amended, restated, supplemented or
otherwise modified in writing at any time and from time to time.
"Base Rate" means the higher of (a) the Prime Rate, or (b) the sum of (i)
the Federal Funds Rate, plus (ii) fifty (50) basis points.
"Base Rate Loan" means any Loan for which interest is to be computed with
reference to the Alternate Base Rate.
"Berry Design" means Berry Plastics Design Corporation, a corporation
organized and existing under the laws of the State of Delaware, and its
successors and assigns.
"Berry Sterling" means Berry Sterling Corporation, a corporation organized
and existing under the laws of the State of Delaware, and its successors
and assigns.
"Berry UK" means NIM Holdings Limited, a company organized and existing
under the laws of the England, and its successors and assigns.
"BIC" means Berry Iowa Corporation, a corporation organized and existing
under the laws of the State of Delaware, and its successors and assigns.
"BTP" means Berry Tri-Plas Corporation, a corporation organized and
existing under the laws of the State of Delaware, and its successors and
assigns.
"Bankruptcy Code" means the United States Bankruptcy Code, as amended from
time to time and any successor Laws.
"Bond Letter of Credit Agreements" means the collective reference to the
Iowa Bond Letter of Credit Agreement, the Nevada Bond Letter of Credit
Agreement and the South Carolina Bond Letter of Credit Agreement.
"Bond Letter of Credit Commitment" means the agreement of the Agent
relating to the issuance of the Bond Letters of Credit, the repayment of
the Bond Letter of Credit Obligations and the agreement of a Lender to
purchase a participating interest in any Bond Letter of Credit Obligations
with respect to such Bond Letters of Credit, all subject to and in
accordance with the provisions of this Agreement; and "Bond Letter of
Credit Commitments" means the collective reference to the Bond Letter of
Credit Commitment of the Agent and each of the Lenders.
"Bond Letter of Credit Committed Amount" has the meaning given such term in
Section (A) BOND LETTERS OF CREDIT.
Subject to and upon the provisions of the Bond Letter of Credit Agreements,
the Agent has agreed to issue the Bond Letters of Credit for the period
commencing on the First Closing Date and ending on the Revolving Credit
Termination Date (the "Bond Letter of Credit Commitment"). The Agent shall
have no obligation or commitment to issue a Bond Letter of Credit if the
aggregate stated amount of all Bond Letters of Credit then outstanding or
proposed to be issued exceeds Eighteen Million Eight Hundred Fifty-Two
Thousand Dollars ($18,852,000) (the "Bond Letter of Credit Committed
Amount").(Bond Letters of Credit).
"Bond Letter of Credit Facility" means the facility established pursuant to
THE BOND LETTER OF CREDIT FACILITY.(Bond Letter of Credit Facility).
"Bond Letter of Credit Fee" and "Bond Letter of Credit Fees" have the
meanings described in Section (B) BOND LETTER OF CREDIT FEES. (Bond Letter
of Credit Fees).
"Bond Letter of Credit Fronting Fee" and "Bond Letter of Credit Fronting
Fees" have the meanings described in Section (B) BOND LETTER OF CREDIT
FEES. (Bond Letter of Credit Fees).
"Bond Letter of Credit Obligations" means the collective reference to the
Iowa Bond Letter of Credit Obligations, the Nevada Bond Letter of Credit
Obligations and the South Carolina Bond Letter of Credit Obligations.
"Bond Letter of Credit Agreement Documents" means the collective reference
to the Iowa Bond Letter of Credit Agreement Documents - Bonds, the Iowa
Bond Letter of Credit Agreement Documents - NB, the Nevada Bond Letter of
Credit Agreement Documents - Bonds, the Nevada Bond Letter of Credit
Agreement Documents - NB, the South Carolina Bond Letter of Credit
Agreement Documents - Bonds, and the South Carolina Bond Letter of Credit
Agreement Documents - NB.
"Bond Letters of Credit" means the collective reference to the Iowa Bond
Letter of Credit - NB, the Nevada Bond Letter of Credit - NB and the South
Carolina Bond Letter of Credit - NB.
"Bonds" means the collective reference to the Iowa Bonds, the Nevada Bonds
and the South Carolina Bonds.
"Borrowing Base" has the meaning described in Section (C) BORROWING BASE.
As used in this Agreement, the term "Borrowing Base" means at any time, an
amount equal to the aggregate of (a) eighty-five percent (85%) of the
amount of Eligible Domestic Receivables, plus (b) the lesser of (i) sixty-
five percent (65%) of the amount of Eligible Domestic Inventory or (ii)
Twenty-five Million Dollars ($25,000,000(Borrowing Base).
"Borrowing Base Deficiency" has the meaning described in Section (C)
BORROWING BASE.
As used in this Agreement, the term "Borrowing Base" means at any time, an
amount equal to the aggregate of (a) eighty-five percent (85%) of the
amount of Eligible Domestic Receivables, plus (b) the lesser of (i) sixty-
five percent (65%) of the amount of Eligible Domestic Inventory or (ii)
Twenty-five Million Dollars ($25,000,000(Borrowing Base).
"Borrowing Base Report" has the meaning described in Section (D) BORROWING
BASE REPORT.
The Borrower will furnish to the Agent no less frequently than monthly, as
soon as available, but in any event within twenty (20) days of the end of
each fiscal month, and, upon the occurrence of an Event of Default or as
otherwise provided in this Section (D) BORROWING BASE REPORT., at such
other times as may be requested by the Agent a report of the Borrowing Base
in the form attached hereto as Exhibit A-1 (each a "Borrowing Base Report";
collectively, the "Borrowing Base Reports") in the form required from time
to time by the Agent, appropriately completed and duly signed. The
Borrowing Base Report shall contain the amount and payments on the
Accounts, the value of Inventory, and the calculations of the Borrowing
Base, all in such detail, and accompanied by such supporting and other
information, as the Agent may from time to time reasonably request. Upon
the Agent's request and upon the creation of any Accounts, the Borrower
will provide the Agent with (a) confirmatory assignment schedules; (b)
copies of Account Debtor invoices; (c) evidence of shipment or delivery;
and (d) such further schedules, documents and/or information regarding the
Accounts and the Inventory as the Agent may reasonably require. The items
to be provided under this subsection shall be in form reasonably
satisfactory to the Agent, and certified as true and correct by a
Responsible Officer, and delivered to the Agent from time to time solely
for the Agent's convenience in maintaining records of the Collateral. The
Borrower's failure to deliver any such items to the Agent shall not affect,
terminate, modify, or otherwise limit the Liens of the Agent and the
Lenders in the Collateral. Notwithstanding the foregoing, the Borrower
acknowledges and agrees that the Agent, at its option, may require that the
Borrower furnish to the Agent weekly and, if requested by the Agent, daily
Borrowing Base Reports if any one of the following events occur (i) the
Borrower's and Subsidiary Guarantors' collective aggregate availability
under the Revolving Loan is at any times less than or equal to Fifteen
Million Dollars ($15,000,000), (ii) the Borrower and the Subsidiary
Guarantors, on a consolidated basis, incur three (3) consecutive months of
net operating losses, or (iii) the occurrence of an Event of Default (each
of the aforementioned events are herein called a "Borrowing Base Trigger
Event"). The Agent agrees that it shall not be entitled to require that
the Borrower furnish weekly or daily Borrowing Base Reports solely as the
result of the occurrence of a Borrowing Base Trigger Event, if the Agent
fails to so notify the Borrower within ninety (90) days of the date that
the Borrower has cured the Borrowing Base Trigger Event to the reasonable
satisfaction of the Agent. The foregoing sentence, however, shall not
prevent the Agent from later requiring more frequent Borrowing Base Reports
following the occurrence of any subsequent Borrowing Base Trigger Event;
provided, that the Agent so notifies the Borrower within ninety (90) days
of date that the Borrower has cured the Borrowing Base Trigger Event to the
reasonable satisfaction of the Agen(Borrowing Base Report).
"Borrowing Base Trigger Event" has the meaning described in Section (D)
BORROWING BASE REPORT.
The Borrower will furnish to the Agent no less frequently than monthly, as
soon as available, but in any event within twenty (20) days of the end of
each fiscal month, and, upon the occurrence of an Event of Default or as
otherwise provided in this Section (D) BORROWING BASE REPORT., at such
other times as may be requested by the Agent a report of the Borrowing Base
in the form attached hereto as Exhibit A-1 (each a "Borrowing Base Report";
collectively, the "Borrowing Base Reports") in the form required from time
to time by the Agent, appropriately completed and duly signed. The
Borrowing Base Report shall contain the amount and payments on the
Accounts, the value of Inventory, and the calculations of the Borrowing
Base, all in such detail, and accompanied by such supporting and other
information, as the Agent may from time to time reasonably request. Upon
the Agent's request and upon the creation of any Accounts, the Borrower
will provide the Agent with (a) confirmatory assignment schedules; (b)
copies of Account Debtor invoices; (c) evidence of shipment or delivery;
and (d) such further schedules, documents and/or information regarding the
Accounts and the Inventory as the Agent may reasonably require. The items
to be provided under this subsection shall be in form reasonably
satisfactory to the Agent, and certified as true and correct by a
Responsible Officer, and delivered to the Agent from time to time solely
for the Agent's convenience in maintaining records of the Collateral. The
Borrower's failure to deliver any such items to the Agent shall not affect,
terminate, modify, or otherwise limit the Liens of the Agent and the
Lenders in the Collateral. Notwithstanding the foregoing, the Borrower
acknowledges and agrees that the Agent, at its option, may require that the
Borrower furnish to the Agent weekly and, if requested by the Agent, daily
Borrowing Base Reports if any one of the following events occur (i) the
Borrower's and Subsidiary Guarantors' collective aggregate availability
under the Revolving Loan is at any times less than or equal to Fifteen
Million Dollars ($15,000,000), (ii) the Borrower and the Subsidiary
Guarantors, on a consolidated basis, incur three (3) consecutive months of
net operating losses, or (iii) the occurrence of an Event of Default (each
of the aforementioned events are herein called a "Borrowing Base Trigger
Event"). The Agent agrees that it shall not be entitled to require that
the Borrower furnish weekly or daily Borrowing Base Reports solely as the
result of the occurrence of a Borrowing Base Trigger Event, if the Agent
fails to so notify the Borrower within ninety (90) days of the date that
the Borrower has cured the Borrowing Base Trigger Event to the reasonable
satisfaction of the Agent. The foregoing sentence, however, shall not
prevent the Agent from later requiring more frequent Borrowing Base Reports
following the occurrence of any subsequent Borrowing Base Trigger Event;
provided, that the Agent so notifies the Borrower within ninety (90) days
of date that the Borrower has cured the Borrowing Base Trigger Event to the
reasonable satisfaction of the Agen (Borrowing Base Report).
"Business Day" means any day other than a Saturday, Sunday or other day on
which (i) in the case of NationsBank (as Agent and Lender), commercial
banks in the State are authorized or required to close, and (ii) in the
case of the Lenders other than NationsBank, those Lenders are open for the
transaction of business at the addresses stated after their names on the
signature pages of this Agreement and (iii) if any payment is due or
interest is to be calculated or advance is to be made on such day, any day
in which trading in Dollars or Sterling deposits, as the case may be, is
being carried on in the London interbank market.
"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, without
limitation, the entering into of a Capital Lease.
"Capital Lease" means with respect to any Person any lease of real or
personal property, for which the related Lease Obligations have been or
should be, in accordance with GAAP consistently applied, reflected as a
liability on the balance sheet that Person.
"Cash Equivalents" means (a) securities with unexpired maturities of one
year or less issued or fully guaranteed or insured by the United States
Government or any agency thereof, (b) certificates of deposit with
unexpired maturities of one (1) year or less or money market accounts
maintained with, the Agent, any Lender, any Affiliate of the Agent or any
Lender, or any other domestic commercial bank having capital and surplus in
excess of One Hundred Million Dollars ($100,000,000.00) or such other
domestic financial institutions or domestic brokerage houses to the extent
disclosed to, and approved by, the Agent and (c) commercial paper of a
domestic issuer rated at least either A-1 by Standard & Poor's Corporation
(or its successor) or P-1 by Moody's Investors Service, Inc. (or its
successor) with unexpired maturities of six (6) months or less. In
addition, with respect to Berry UK and Norwich, Cash Equivalents shall also
mean (a) securities with unexpired maturities of one year or less issued or
fully guaranteed or insured by the British National Government or any
agency thereof and (b) certificates of deposit with unexpired maturities of
one (1) year or less or money market instruments issued by Barclays Bank
PLC.
"Chattel Paper" means a writing or writings which evidence both a monetary
obligation and a security interest in or lease of specific goods; any
returned, rejected or repossessed goods covered by any such writing or
writings and all proceeds (in any form including, without limitation,
accounts, contract rights, documents, chattel paper, instruments and
general intangibles) of such returned, rejected or repossessed goods; and
all proceeds (cash and non-cash) of the foregoing.
"Closing Date" means the date of this Agreement.
"Collateral" means all property of the Borrower and each Subsidiary
Guarantor subject from time to time to the Liens of this Agreement, any of
the Security Documents and/or any of the other Financing Documents,
together with any and all cash and non-cash proceeds and products thereof,
and the UK Collateral.
"Collateral Account" has the meaning described in Section (H) THE
COLLATERAL ACCOUNT.
Upon demand by the Agent following a Borrowing Base Trigger Event, the
Borrower will deposit, or cause to be deposited, all Items of Payment to a
bank account designated by the Agent and from which the Agent alone has
power of access and withdrawal (the "Collateral Account"). Each deposit
shall be made not later than the next Business Day after the date of
receipt of the Items of Payment. The Items of Payment shall be deposited
in precisely the form received, except for the endorsements of the Borrower
where necessary to permit the collection of any such Items of Payment,
which endorsement the Borrower hereby agree to make. In the event the
Borrower fails to do so, the Borrower hereby authorizes the Agent to make
the endorsement in the name of the Borrower. Prior to such a deposit, the
Borrower will not commingle any Items of Payment with the Borrower's other
funds or property, but will hold them separate and apart in trust and for
the account of the Agent for the benefit of the Lenders ratably and the
Agent. The Agent agrees that it shall not demand that the Borrower deposit
or cause to be deposited all Items of Deposit to the Collateral Account at
any time prior to the occurrence of a Borrowing Base Trigger Event. Once
the Agent has so made demand on the Borrower, unless otherwise agreed by
the Agent in writing, the Borrower shall continue to so deposit or cause to
be deposited all Items of Payment to the Collateral Account notwithstanding
that subsequent to such demand the Borrowing Base Trigger Event has been
cured, waived, otherwise remedied or is no longer applicable. (The
Collateral Account).
"COLLATERAL DISCLOSURE LIST" HAS THE MEANING DESCRIBED IN COLLATERAL
DISCLOSURE LIST.
On or prior to the date of this Agreement, the Borrower, Berry UK and
Norwich shall deliver to the Agent one or more lists (collectively, the
"Collateral Disclosure List") which shall contain such information with
respect to the business and real and personal property of the Borrower,
Berry UK, Norwich and each Subsidiary Guarantor as of its date of delivery
as the Agent may require and shall be certified by a Responsible Officer of
the Borrower, Berry UK, Norwich and each Subsidiary Guarantor, as
appropriate, all in the form provided to the Borrower by the Agent.
Promptly after demand by the Agent, the Borrower shall furnish and shall
cause Berry UK, Norwich and each Subsidiary Guarantor to furnish to the
Agent an update of the information contained in the Collateral Disclosure
List at any time and from time to time as may be requested by the Agent.
(Collateral Disclosure List).
"Collection" means each check, draft, cash, money, instrument, item, and
other remittance in payment or on account of payment of the Accounts or
otherwise with respect to any Collateral, including, without limitation,
cash proceeds of any returned, rejected or repossessed goods, the sale or
lease of which gave rise to an Account, and other proceeds of Collateral;
and "Collections" means the collective reference to all of the foregoing.
"Commitment" means with respect to each Lender, such Lender's Revolving
Credit Commitment, Letter of Credit Commitment, Term Loan A Commitment,
Term Loan B Commitment, Bond Letter of Credit Commitment, Special Source
Bond Commitment, UK Revolving Credit Commitment, or UK Term Loan Commitment
as the case may be, and "Commitments" means the collective reference to the
Revolving Credit Commitments, the Letter of Credit Commitments, the Term
Loan A Commitments, the Term Loan B Commitments, the Bond Letter of Credit
Commitments, Special Source Bond Commitment, the UK Revolving Credit
Commitments and the UK Term Loan Commitments of all of the Lenders.
"Committed Amount" means with respect to each Lender, such Lender's
Revolving Credit Committed Amount, Letter of Credit Committed Amount, Term
Loan A Committed Amount, Term Loan B Committed Amount, the Bond Letter of
Credit Committed Amount, UK Revolving Credit Committed Amount, UK Term Loan
Committed Amount, as the case may be, and "Committed Amounts" means
collectively the Revolving Loan Committed Amount, the Letter of Credit
Committed Amount, Term Loan A Committed Amount, Term Loan B Committed
Amount, the Bond Letter of Credit Committed Amount of each of the Lenders,
the UK Revolving Credit Committed Amounts, and the UK Term Loan Committed
Amounts.
"Compliance Certificate" means a periodic Compliance Certificate described
in Section (I) ANNUAL STATEMENTS AND CERTIFICATES. The Borrower shall
furnish to the Agent for distribution to the Lenders as soon as available,
but in no event more than ninety (90) days after the close of the
Borrower's fiscal years, (i) a copy of the annual consolidated and
consolidating financial statements in reasonable detail satisfactory to the
Agent relating to the Borrower, Berry UK, Norwich and all other
Subsidiaries, prepared in accordance with GAAP and examined and certified
by independent certified public accountants satisfactory to the Agent,
which financial statements shall include a consolidated and consolidating
balance sheet of the Borrower, Berry UK, Norwich and all other Subsidiaries
as of the end of such fiscal year and consolidated and consolidating
statements of income, cash flows and changes in shareholders equity of the
Borrower, Berry UK, Norwich and all other Subsidiaries for such fiscal
year, and (ii) a Compliance Certificate, in substantially the form attached
to this Agreement as EXHIBIT D, containing a detailed computation of each
financial covenant in this Agreement which is applicable for the period
reported, a certification that no change has occurred to the information
contained in the Collateral Disclosure List (except as set forth any
schedule attached to the certification) and (iii) a management letter in
the form prepared by the Borrower's independent certified public
accountants, but only if and to the extent customarily obtained by the
Borrower. The Agent agrees that any one of the "Big 4" accounting firms is
satisfactory to the Agent for purposes of this Section (A) FINANCIAL
STATEMENTS. except to the extent the Agent in its reasonable discretion and
based on good faith and legitimate concerns determines that any such
accounting firm would be unacceptable because of any conflict of interest
or any material adverse change affecting such firm's reliability or
financial viability. (Financial Statements).
"Commonly Controlled Entity" means an entity, whether or not incorporated,
which is under common control with the Borrower within the meaning of
Section 414(b) or (c) of the Internal Revenue Code.
"Container Purchase Agreement" means that certain asset purchase agreement
dated as of January 17, 1997 by and among the Borrower, Container
Industries, Inc. and the shareholders of Container Industries, Inc., as
amended, restated, supplemented or otherwise modified.
"Container Purchase Agreement Transaction" means the acquisition of all or
substantially all of the assets of Container Industries, Inc.
"Copyrights" means and includes, in each case whether now existing or
hereafter arising, all of the Borrower's or any Subsidiary's rights, title
and interest in and to (a) all copyrights, rights and interests in
copyrights, works protectable by copyright, copyright registrations,
copyright applications, and all renewals of any of the foregoing, (b) all
income, royalties, damages and payments now or hereafter due and/or payable
under any of the foregoing, including, without limitation, damages or
payments for past, current or future infringements of any of the foregoing,
(c) the right to sue for past, present and future infringements of any of
the foregoing, and (d) all rights corresponding to any of the foregoing
throughout the world.
"Credit Facility" means a Domestic Credit Facility or a UK Credit Facility,
and "Credit Facilities" means the Domestic Credit Facilities and the UK
Credit Facilities.
"Current Bond Letter of Credit Obligations" has the meaning described in
Section (E) PAYMENTS OF BOND LETTERS OF CREDIT. (Payments of Bond Letters
of Credit).
"Current Letter of Credit Obligations" has the meaning described in Section
(E) PAYMENTS OF LETTERS OF CREDIT..
The Borrower hereby promises to pay to the Agent, ON DEMAND and in United
States Dollars, the following which are herein collectively referred to as
the "Current Letter of Credit Obligations":
The Borrower hereby promises to pay to the Agent, ON DEMAND and in United
States Dollars, the following which are herein collectively referred to as
the "Current Letter of Credit Obligations": (Payments of Letters of
Credit).
"Debt Service" means for any period of determination thereof an amount
equal to the total of the aggregate amount of all payments of principal and
interest with respect to Indebtedness for Borrowed Money of the Borrower,
the Subsidiary Guarantors, Berry UK and Norwich, as appropriate, scheduled
to be due and payable during such period, excluding, any Term Loan B
Mandatory Prepayments with respect to Excess Cash Flow and any UK Term
Loan Mandatory Prepayment with respect to UK Excess Cash Flow. For
purposes of calculating "Debt Service", the Agent and the Lenders agree
that (a) scheduled payments with respect to the Iowa Bond Letter of Credit
Obligations shall reflect the permitted amortization of a portion of such
Iowa Bond Letter of Credit Obligations pursuant to Section (ii)
Notwithstanding the provisions of paragraph (a) above, as long as no Event
of Default has occurred, any drawing under the Iowa Bond Letter of Credit -
NB to redeem Iowa Bonds purchased with a drawing under the Iowa Bond
Standby Credit Agreement, any drawing under the Nevada Bond Letter of
Credit - NB to purchase Nevada Bonds, and any drawing under the South
Carolina Bond Letter of Credit - NB to purchase South Carolina Bonds, in
each case relating to Bonds which were tendered for purchase by the holders
thereof and which were not remarketed in a timely fashion (each referred to
herein as a "Conversion Drawing"), are not required to be reimbursed to the
Agent ON DEMAND; provided that BIC or the Borrower, as appropriate, make
payments of interest to the Agent at the rates, at the times and otherwise
subject to the provisions for interest on the Loans under Interest.
(Interest), and the principal amount of each such Conversion Drawing is
repaid in equal quarterly payments (i) over the remaining term to expiry of
the Bond Letter of Credit Facility with respect to the Nevada Bond Letter
of Credit - NB and/or the South Carolina Bond Letter of Credit - NB and
(ii) over a period of ten (10) years with respect to the Iowa Bond Letter
of Credit - NB; final payment of all outstanding amounts relating to the
Nevada Bond Letter of Credit - NB and/or the South Carolina Bond Letter of
Credit - NB to be made no later than expiry of the Bond Letter of Credit
Facility or the Revolving Credit Termination Date, whichever is earlier,
and final payment of all outstanding amounts relating to the Iowa Bond
Letter of Credit - NB to be made no later than the date which is ten (10)
years after the date of any Conversion Drawing under the Iowa Bond Letter
of Credit - NB or the Revolving Credit Termination Date, whichever is
earlier. In addition, the Agent and the Lenders agree that in the event
the Iowa Bond Trustee draws on the Iowa Bond Letter of Credit on or about
the business day preceding the expiration or termination of the Iowa Bond
Letter of Credit, as contemplated by Section 505 of the Iowa Bond Trust
Agreement (the "Draw"), the Iowa Bond Letter of Credit Obligations
resulting from the Draw, shall not be payable ON DEMAND as would otherwise
be required by this Section (E) PAYMENTS OF BOND LETTERS OF CREDIT., but
shall be repaid by the Borrower in equal consecutive quarterly installments
over a period of ten (10) years, commencing with the first day following
the first full quarterly period after the Draw and continuing on the first
day of each quarterly period thereafter (the "Amortizing Iowa Bond Letter
of Credit Obligations"); provided, that (A) there does not exist a Default
or an Event of Default, (B) the Draw is not the result of an acceleration
of the Iowa Bonds pursuant to Section 1102 of the Iowa Bond Trust Agreement
and (C) the Draw is not the result of the occurrence of a "Determination of
Taxability" (as defined in the Iowa Bond Trust Agreement). Interest shall
be payable on the Amortizing Iowa Bond Letter of Credit Obligations to the
Agent at the rates, at the times and otherwise subject to the provisions
for interest on the Loans under INTEREST. (Interest), with a final payment
of all outstanding amounts relating to the Iowa Bond Letter of Credit - NB
to be made no later than the date which is ten (10) years after the date of
the Draw or the Revolving Credit Termination Date, whichever is
earlier.(Payments of Bond Letters of Credit), and (b) Iowa Bond Rollover
Payments shall not be included in the determination of Debt Service.
"Debt Service Coverage Ratio" means as to the Borrower, each of the
Subsidiary Guarantors, Berry UK and Norwich on a consolidated basis, for
any period of determination thereof the ratio of (a) EBITDA to (b) Debt
Service.
"Deed of Trust - Anderson" means that certain deed of trust or mortgage
dated as of the Second Closing Date from Venture Southeast to or for the
benefit of the Agent, as the same may from time to time be amended,
restated, supplemented or modified, which Deed of Trust - Anderson grants
to the Agent for the benefit of the Lenders ratably and for the benefit of
the Agent, a first priority Lien on that certain property located in
Anderson County, South Carolina, as further described therein.
"Deed of Trust - Indian Trail" means that certain deed of trust or mortgage
dated as of the First Closing Date from BTP to or for the benefit of the
Agent, as the same may from time to time be amended, restated, supplemented
or modified, which Deed of Trust - Indian Trail grants to the Agent for the
benefit of the Lenders ratably and for the benefit of the Agent, a first
priority Lien on that certain property known generally as Wesley Chapel-
Stouts Road, Indian Trail, North Carolina 28079.
"Deed of Trust - Evansville" means that certain deed of trust or mortgage
dated as of the First Closing Date from the Borrower to or for the benefit
of the Agent, as the same may from time to time be amended, restated,
supplemented or modified, which Deed of Trust - Evansville grants to the
Agent for the benefit of the Lenders ratably and for the benefit of the
Agent, a first priority Lien on that certain property known generally as
101 Oakley Street, Evansville, Indiana 47710.
"Deed of Trust - Henderson" means that certain deed of trust or mortgage
dated as of the First Closing Date from the Borrower to or for the benefit
of the Agent, as the same may from time to time be amended, restated,
supplemented or modified, which Deed of Trust - Henderson grants to the
Agent for the benefit of the Lenders ratably and for the benefit of the
Agent, a second priority Lien on that certain property known generally as
800 East Horizon Drive, Henderson, Nevada 89009.
"Deed of Trust - Iowa Falls" means that certain deed of trust or mortgage
dated as of the First Closing Date from BIC to or for the benefit of the
Agent, as the same may from time to time be amended, restated, supplemented
or modified, which Deed of Trust - Iowa Falls grants to the Agent for the
benefit of the Lenders ratably and for the benefit of the Agent, a first
priority Lien on that certain property known generally as 1036 Industrial
Park Road, Iowa Falls, Iowa 50126.
"Deed of Trust - Lawrence" means that certain deed of trust or mortgage
dated as of the First Closing Date from PackerWare to or for the benefit of
the Agent, as the same may from time to time be amended, restated,
supplemented or modified, which Deed of Trust - Lawrence grants to the
Agent for the benefit of the Lenders ratably and for the benefit of the
Agent, a first priority Lien on that certain property known generally as
2330 Packer Road, Lawrence, Kansas 66044.
"Deed of Trust - Monroeville" means that certain deed of trust or mortgage
dated as of the Second Closing Date from Venture Midwest to or for the
benefit of the Agent, as the same may from time to time be amended,
restated, supplemented or modified, which Deed of Trust - Anderson grants
to the Agent for the benefit of the Lenders ratably and for the benefit of
the Agent, a first priority Lien on that certain property located in Huron
County, Ohio, as further described therein.
"Deed of Trust - Suffolk" means that certain credit line deed of trust,
assignment and security agreement dated as of May 13, 1997 from Berry
Design to or for the benefit of the Agent, as the same may from time to
time be amended, restated, supplemented or modified, which Deed of Trust -
Suffolk grants to the Agent for the benefit of the Lenders ratably and for
the benefit of the Agent, a first priority Lien on that certain property
known generally as 1401 Progress Road, Suffolk, Virginia.
"Deeds of Trust" means the collective reference to the Deed of Trust -
Anderson, the Deed of Trust - Indian Trail, the Deed of Trust - Evansville,
the Deed of Trust - Henderson, the Deed of Trust - Iowa Falls, the Deed of
Trust - Lawrence, the Deed of Trust - Monroeville, and the Deed of Trust -
Suffolk.
"Default" means an event that, with the giving of notice or lapse of time,
or both, would constitute an Event of Default under the provisions of this
Agreement.
"Distribution" means (a) the payment of any dividends or other
distributions on capital stock of the Borrower (except distributions in any
class of capital stock) and (b) the redemption or acquisition of capital
stock or Subordinated Indebtedness of the Borrower unless made
contemporaneously from the Net Proceeds of the sale of capital stock or the
issuance of Subordinated Indebtedness to the extent permitted by the
provisions of this Agreement or otherwise consented to by the Agent.
"Documents" means all documents of title, whether now existing or hereafter
acquired or created, and all proceeds (cash and non-cash) of the foregoing.
"Dollar" or "Dollars" means United States Dollars.
"Dollar Currency Equivalent" means, on any date of determination, the
amount of Dollars which results from the sale of a given amount in
Sterling, determined at the rate of exchange quoted by the Agent in London,
England, at 9:00 A.M. (London time) on such date of determination, to prime
banks in London, England for the spot sale in the London foreign exchange
market of Sterling for Dollars.
"Dollar Interest Period" means as to any Dollar LIBOR Loan, the period
commencing on and including the date such Dollar LIBOR Loan is made (or on
the effective date of the Borrower's election to convert any Base Rate Loan
to a Dollar LIBOR Loan in accordance with the provisions of this Agreement)
and ending on and including the day which is 30, 60, 90 or 180 days
thereafter, as selected by the Borrower in accordance with the provisions
of this Agreement, and thereafter, each period commencing on the last day
of the then preceding Interest Period for such Dollar LIBOR Loan and ending
on and including the day which is 30, 60, 90 or 180 days thereafter, as
selected by the Borrower, in accordance with the provisions of this
Agreement; provided, however that:
(a)the first day of any Dollar Interest Period shall be a
Business Day;
(b)if any Dollar Interest Period would end on a day that is not a
Business Day, such Dollar Interest Period shall be extended to the next
succeeding Business Day unless such next succeeding Business Day would fall
in the next calendar month, in which case, such Dollar Interest Period
shall end on the next preceding Business Day; and
(c)no Dollar Interest Period shall extend beyond the Revolving
Credit Termination Date or the scheduled maturity date of the Term Loans A,
or the Term Loans B, as appropriate.
"Dollar LIBOR Lending Office" means with respect to the Agent such branch
or office of the Agent as designated by the Agent from time to time as the
branch or office where the Dollar LIBOR Loans are to be made or maintained.
"Dollar LIBOR Base Rate" means for any Dollar Interest Period with respect
to any Dollar LIBOR Loan, the rate per annum (rounded upward, if necessary,
to the nearest next 1/100 of 1%) appearing on Telerate Page 3750 (or any
successor page) as the London interbank offered rate for deposits in United
States Dollars at approximately 11:00 a.m. (London time) two (2) Business
Days prior to the first day of such Dollar Interest Period for a term
comparable to such Interest Period. If for any reason such rate is not
available, the term "Dollar LIBOR Base Rate" shall mean, for any Dollar
LIBOR Loan for any Dollar Interest Period therefor, the rate per annum
(rounded upward, if necessary, to the nearest 1/100 of 1%) appearing on
Reuters Screen LIBO Page as the London interbank offered rate for deposits
in Dollars at approximately 11:00 a.m. (London time) two (2) Business Days
prior to the first day of such Dollar Interest Period; PROVIDED, HOWEVER,
if more than one rate is specified on Reuters Screen LIBO Page, the
applicable rate shall be the arithmetic mean of all such rates. For
purposes of this definition, Telerate Page 3750 refers to the British
Bankers Association Libor Rates (determined at approximately 11:00 a. m
(London time)) that are published by Dow Jones Telerate, Inc.
"Dollar LIBOR Loan" means any Loan for which interest is to be computed
with reference to the Dollar LIBOR Rate.
"Dollar LIBOR Rate" means for any Dollar Interest Period with respect to
any Dollar LIBOR Loan, (a) the Applicable Margin, PLUS (b) the per annum
rate of interest calculated pursuant to the following formula:
DOLLAR LIBOR BASE RATE
1.00 - Reserve Percentage
"Domestic Credit Facility" means with respect to each Lender, such Lender's
Pro Rata Share of the Revolving Credit Facility, the Letter of Credit
Facility, the Term Loan A Facility, the Term Loan B Facility, the Bond
Letter of Credit Facility, or the Special Source Bond Facility, as the case
may be, and "Domestic Credit Facilities" means collectively the Revolving
Credit Facility, the Letter of Credit Facility, the Term Loan A Facility,
the Term Loan B Facility, the Bond Letter of Credit Facility, and the
Special Source Bond Facility, and any and all other credit facilities now
or hereafter extended to the Borrower under or secured by this Agreement.
"Draw" has the meaning described in Section (ii) Notwithstanding the
provisions of paragraph (a) above, as long as no Event of Default has
occurred, any drawing under the Iowa Bond Letter of Credit - NB to redeem
Iowa Bonds purchased with a drawing under the Iowa Bond Standby Credit
Agreement, any drawing under the Nevada Bond Letter of Credit - NB to
purchase Nevada Bonds, and any drawing under the South Carolina Bond Letter
of Credit - NB to purchase South Carolina Bonds, in each case relating to
Bonds which were tendered for purchase by the holders thereof and which
were not remarketed in a timely fashion (each referred to herein as a
"Conversion Drawing"), are not required to be reimbursed to the Agent ON
DEMAND; provided that BIC or the Borrower, as appropriate, make payments of
interest to the Agent at the rates, at the times and otherwise subject to
the provisions for interest on the Loans under Interest. (Interest), and
the principal amount of each such Conversion Drawing is repaid in equal
quarterly payments (i) over the remaining term to expiry of the Bond Letter
of Credit Facility with respect to the Nevada Bond Letter of Credit - NB
and/or the South Carolina Bond Letter of Credit - NB and (ii) over a period
of ten (10) years with respect to the Iowa Bond Letter of Credit - NB;
final payment of all outstanding amounts relating to the Nevada Bond Letter
of Credit - NB and/or the South Carolina Bond Letter of Credit - NB to be
made no later than expiry of the Bond Letter of Credit Facility or the
Revolving Credit Termination Date, whichever is earlier, and final payment
of all outstanding amounts relating to the Iowa Bond Letter of Credit - NB
to be made no later than the date which is ten (10) years after the date of
any Conversion Drawing under the Iowa Bond Letter of Credit - NB or the
Revolving Credit Termination Date, whichever is earlier. In addition, the
Agent and the Lenders agree that in the event the Iowa Bond Trustee draws
on the Iowa Bond Letter of Credit on or about the business day preceding
the expiration or termination of the Iowa Bond Letter of Credit, as
contemplated by Section 505 of the Iowa Bond Trust Agreement (the "Draw"),
the Iowa Bond Letter of Credit Obligations resulting from the Draw, shall
not be payable ON DEMAND as would otherwise be required by this Section (E)
PAYMENTS OF BOND LETTERS OF CREDIT., but shall be repaid by the Borrower in
equal consecutive quarterly installments over a period of ten (10) years,
commencing with the first day following the first full quarterly period
after the Draw and continuing on the first day of each quarterly period
thereafter (the "Amortizing Iowa Bond Letter of Credit Obligations");
provided, that (A) there does not exist a Default or an Event of Default,
(B) the Draw is not the result of an acceleration of the Iowa Bonds
pursuant to Section 1102 of the Iowa Bond Trust Agreement and (C) the Draw
is not the result of the occurrence of a "Determination of Taxability" (as
defined in the Iowa Bond Trust Agreement). Interest shall be payable on
the Amortizing Iowa Bond Letter of Credit Obligations to the Agent at the
rates, at the times and otherwise subject to the provisions for interest on
the Loans under Interest. (Interest), with a final payment of all
outstanding amounts relating to the Iowa Bond Letter of Credit - NB to be
made no later than the date which is ten (10) years after the date of the
Draw or the Revolving Credit Termination Date, whichever is earlier.
(Payment of Bond Letters of Credit).
"Early Termination Fee" has the meaning described in Section (K) EARLY
TERMINATION FEE.
In the event of the termination of the Revolving Credit Commitments, the
Borrower shall pay a fee to the Agent for the benefit of the Lenders
ratably (the "Early Termination Fee"), equal to following amount at the
following times: (Early Termination Fee).
"EBITDA" means as to the Borrower, Berry UK, Norwich and the Subsidiary
Guarantors, on a consolidated basis, as of any date or for any period of
determination, the sum of (a) the net profit (or loss) determined in
accordance with GAAP consistently applied, PLUS (b) interest expense and
income Taxes or alternative minimum Taxes for such period to the extent
deducted in the calculation of net income (or loss), PLUS (c) depreciation
and amortization of Assets for such period, PLUS (d) unusual expenses
associated with the write-off of the capitalized portion of financing
costs, MINUS (e) non-cash gains from Asset sales other than sales of
Inventory in the ordinary course of business, PLUS (f) non-cash losses from
Asset sales other than sales of Inventory in the ordinary course of
business, PLUS, (g) non-cash extraordinary losses, MINUS (h) extraordinary
gains, MINUS (i) interest income, MINUS (j) any gain relating to the
accumulated effect of any change in accounting method, PLUS (k) any loss
relating to the accumulated effect of any change in accounting method, each
item in clauses (a) through (k) calculated pursuant to GAAP for such
period, PLUS, (l) any non-cash compensation expenses, MINUS, (m) any non-
cash compensation gains.
"Eligible Domestic Inventory" means the collective reference to all
Inventory of the Borrower and each Subsidiary Guarantor held for sale,
valued at the lowest of the cost, any ceiling prices which may be
established by any Law of any Governmental Authority or prevailing market
value, all as reduced by the aggregate amount of all reserves, limits and
deductions provided for in this definition or in (C) BORROWING BASE.
As used in this Agreement, the term "Borrowing Base" means at any time, an
amount equal to the aggregate of (a) eighty-five percent (85%) of the
amount of Eligible Domestic Receivables, plus (b) the lesser of (i) sixty-
five percent (65%) of the amount of Eligible Domestic Inventory or (ii)
Twenty-five Million Dollars ($25,000,000 (Borrowing Base); EXCLUDING,
however, any Inventory which consists of:
(a)any Inventory located outside of the United States,
(b)any Inventory located outside of a state in which the Agent
has properly perfected the Liens of the Agent and the Lenders under this
Agreement, free and clear of all other Liens (other than Permitted Liens),
(c)any Inventory not in the actual possession of the Borrower or
a Subsidiary Guarantor, except to the extent provided in subsection (d)
below,
(d)any Inventory in the possession of a bailee, warehouseman,
consignee or similar third party, except to the extent that either (1) such
bailee, warehouseman, consignee or similar third party has entered into an
agreement with the Agent in which such bailee, warehouseman, consignee or
similar third party consents and agrees to the Lien of the Agent and the
Lenders on such Inventory and to such other terms and conditions as may be
reasonably required by the Agent, or (2) with respect to any Inventory in
the possession of a bailee or warehouseman, the Agent has established a
reserve for such Inventory in an amount not greater than three (3) months
of any fees or other charges which would be due and payable to any such
bailee and warehouseman under its agreements with the Borrower or
Subsidiary Guarantor, as appropriate (the Agent agrees to so establish a
reserve as shall be appropriate unless otherwise directed by the Borrower),
(e)any Inventory located on premises leased or rented to the
Borrower or a Subsidiary Guarantor or otherwise not owned by the Borrower
or a Subsidiary Guarantor, unless either (i) the Agent has received a
waiver and consent from the lessor, landlord and/or owner, in form and
substance reasonably satisfactory to the Agent and from any mortgagee of
such lessor, landlord or owner to the extent reasonably required by the
Agent or (ii) with respect to any such Inventory, the Agent has established
a reserve for such Inventory in an amount not greater than three (3) months
of any rents or other charges which would be due and payable to any such
lessor, landlord or owner under its agreements with the Borrower or
Subsidiary Guarantor, as appropriate (the Agent agrees to so establish a
reserve as shall be appropriate unless otherwise directed by the Borrower),
(f)any Inventory the sale or other disposition of which has given
rise to an Account,
(g)any Inventory which fails to meet all standards and
requirements imposed by any Governmental Authority over such Inventory or
its production, storage, use or sale to the extent that the failure to meet
any such standards and/or requirements imposed by any Governmental
Authority would entitle a purchaser of such Inventory to return the
Inventory or otherwise cancel or rescind its purchase or shall otherwise
materially impair the value of the Inventory or the ability of the Agent to
realize upon the value of the Inventory,
(h)work-in-process or supplies,
(i)any Inventory as to which the Agent determines in the exercise
of its sole and absolute discretion at any time and in good faith (i) is
not in merchantable condition or is defective, post-seasonal, slow moving
or obsolete and (ii) which the Agent determines in the exercise of its sole
and absolute discretion is unlikely to be sold in the ordinary course of
business within a reasonable period of time and on customary terms and
conditions, without significant out of the ordinary course discounts or
other concessions,
(j)any Inventory which the Agent in the good faith exercise of
its sole and absolute discretion has deemed to be ineligible because the
Agent considers the collateral value to the Agent and the Lenders to be
impaired in any material respect or its ability to realize such value to be
insecure in any material respect.
In the event of any dispute under the foregoing criteria, as to whether
Inventory is, or has ceased to be, Eligible Domestic Inventory, the
decision of the Agent in the good faith exercise of its sole and absolute
discretion shall control.
"Eligible Domestic Receivable" and "Eligible Domestic Receivables" mean, at
any time of determination thereof, the unpaid portion of each Account (net
of any returns, discounts, claims asserted by Account Debtors or other
obligors with respect to such Account, credits, charges, accrued rebates or
other allowances, offsets, deductions, counterclaims, disputes or other
defenses asserted by Account Debtors or other obligors with respect to such
Account, and reduced by the aggregate amount of all reserves, limits and
deductions expressly provided for in this Agreement), which shall be
receivable in United States Dollars by the Borrower or any Subsidiary
Guarantor, provided each Account conforms and continues to conform to the
following criteria to the reasonable satisfaction of the Agent:
(a)the Account arose in the ordinary course of business from a
bona fide outright sale of Inventory or from services performed;
(b)the Account is a valid, legally enforceable obligation of the
Account Debtor;
(c)if the Account arises from the sale of Inventory, the
Inventory the sale of which gave rise to the account has been shipped or
delivered to the Account Debtor on an absolute sale basis and not on a bill
and hold sale basis, a consignment sale basis, a guaranteed sale basis, a
sale or return basis, or on the basis of any other similar understanding;
(d)if the Account arises from the performance of services, such
services have been fully rendered;
(e)the Account is evidenced by an invoice or other documentation
in form reasonably acceptable to the Agent, dated no later than two (2)
Business Days after the date of shipment or performance and containing only
terms normally offered by the Borrower or the Subsidiary Guarantor, as
appropriate;
(f)the amount shown on the books of the Borrower or the
Subsidiary Guarantor, as appropriate, and on any invoice, certificate,
schedule or statement delivered to the Agent is owing to the Borrower or
the Subsidiary Guarantor, as appropriate, with any partial payment reducing
the amount of the Eligible Domestic Receivable by such partial payment
received;
(g)the Account is not outstanding more than one hundred twenty
(120) days from the date of the invoice therefor or past due more than
thirty (30) days after its due date, which shall not be later than ninety
(90) days after the invoice date;
(h)the Account is not owing by any Account Debtor for which fifty
percent (50%) or more of such Account Debtor's other Accounts (or any
portion thereof) due to Norwich, Berry UK, the Borrower or any Subsidiary
Guarantor, individually, or Norwich, Berry UK, the Borrower and each of the
Subsidiary Guarantors collectively, are non-Eligible Domestic Receivables
and/or non-Eligible UK Receivables;
(i)the Account is not owing by an Account Debtor or a group of
affiliated Account Debtors whose then existing Accounts owing to the
Borrower or any Subsidiary Guarantor, individually, exceed in the
aggregate, fifteen percent (15%) of the total Eligible Domestic Receivables
of the Borrower or the Subsidiary Guarantor, as appropriate and is not
owing by an Account Debtor or a group of affiliated Account Debtors whose
then existing Accounts to the Borrower and each of the Subsidiary
Guarantors collectively exceed, in the aggregate, fifteen percent (15%) of
the total Eligible Domestic Receivables of the Borrower and all of the
Subsidiary Guarantors except that with respect to Accounts owing by those
Account Debtors identified on SCHEDULE 1.1 attached hereto, as updated with
the Agent's consent at any time and from time, the Account is not owing by
any Account Debtor so named on SCHEDULE 1.1 whose then existing Accounts to
the Borrower and/or any Subsidiary Guarantor, individually, exceed, in the
aggregate, twenty-five percent (25%) of the total Eligible Domestic
Receivables of the Borrower or any Subsidiary Guarantor, as appropriate,
and is not owing by an Account Debtor so named on SCHEDULE 1.1 whose then
existing Accounts to the Borrower and each of the Subsidiary Guarantors,
collectively, exceed, in the aggregate, twenty-five percent (25%) of the
total Eligible Domestic Receivables of the Borrower and all of the
Subsidiary Guarantors;
(j)the Account Debtor has not returned, rejected or refused to
retain, or otherwise notified the Borrower or any Subsidiary Guarantor of
any dispute concerning, or claimed nonconformity of, any of the Inventory
or services from the sale or furnishing of which the Account arose;
(k)the Account Debtor is not a Subsidiary or Affiliate of
Norwich, Berry UK, the Borrower or any Subsidiary Guarantor or an employee,
officer, director of shareholder of Norwich, Berry UK, the Borrower or any
Subsidiary Guarantor or any Subsidiary or Affiliate of the Borrower or any
Subsidiary Guarantor (For purposes of calculating Eligible Domestic
Receivables, the term Affiliate shall not include any Affiliate of any
stockholder of the Parent);
(l)the Account Debtor is not incorporated or organized in or
primarily located in any jurisdiction outside of the United States of
America or Canada, unless the Account Debtor's obligations with respect to
such account are secured by a letter of credit, guaranty or banker's
acceptance having terms and from such issuers and confirmation banks as are
reasonably acceptable to the Agent in its commercially reasonable
discretion (which letter of credit, guaranty or banker's acceptance is
subject to an irrevocable assignment of proceeds in favor of the Agent for
the benefit of the Lenders ratably and the Agent);
(m)the Account Debtor with respect to such Account is not
insolvent or the subject of any bankruptcy or insolvency proceedings of any
kind or of any other proceeding or action;
(n)the Account Debtor is not a Governmental Authority, unless the
Borrower or Subsidiary Guarantor, as appropriate, shall have complied to
the Agent's satisfaction with the Assignment of Claims Act of 1940, as
amended;
(o)neither the Borrower nor any of the Subsidiary Guarantors is
indebted in any manner to the Account Debtor (as creditor, lessor, supplier
otherwise), with the exception of customary credits, adjustments and/or
discounts given to an Account Debtor;
(p)the Account does not arise from services under or related to
any warranty obligation of the Borrower or any Subsidiary Guarantor or out
of service charges, finance charges or other fees for the time value of
money;
(q)the Account is not evidenced by Chattel Paper or an Instrument
of any kind and is not secured by any letter of credit, except as permitted
under subsection (l) above, unless the original of any such Chattel Paper
and/or Instrument has been delivered to the Agent;
(r)the title of the Borrower or the Subsidiary Guarantor, as
appropriate, to the account is absolute and is not subject to any prior
assignment, claim, Lien, or security interest, except Permitted Liens and
Liens in favor of the Agent and/or the Lenders;
(s)no bond or other undertaking by a guarantor or surety which is
not reasonably acceptable to the Agent has been or is required to be
obtained, supporting the Account and any of the Account Debtor's
obligations in respect of the Account, other than as and to the extent
permitted or required under the provisions of subsection (l) above;
(t)the Borrower and each Subsidiary Guarantor, as appropriate,
have the full and unqualified right and power to assign and grant a
security interest in, and Lien on, the Account to the Agent as security and
collateral for the payment of the Obligations;
(u)the Account does not arise out of a contract with, or order
from, an Account Debtor that, by its terms, forbids or makes void or
unenforceable the assignment or grant of a Lien by the Borrower and each
Subsidiary Guarantor, as appropriate, to the Agent, for the benefit of the
Lenders ratably and the Agent, of the Account arising from such contract or
order;
(v)the Account is subject to a Lien in favor of the Agent, for
the benefit of the Lenders ratably and the Agent, which Lien constitutes a
first priority perfected security interest and Lien, subject only to
Permitted Liens;
(w)the Inventory giving rise to the Account was not, at the time
of the sale thereof, subject to any Lien, except those in favor of the
Agent, for the benefit of the Lenders ratably and the Agent and other
Permitted Liens;
(x)no part of the Account represents a progress billing or a
retainage;
(y)the Agent in the good faith exercise of its commercially
reasonable discretion has not deemed the Account ineligible because of
uncertainty in any material respect as to the creditworthiness of the
Account Debtor or because the Agent otherwise considers the collateral
value of such Account to the Agent and the Lenders to be impaired in any
material respect or its ability to realize such value to be insecure in any
material respect.
In the event of any dispute, under the foregoing criteria, as to whether an
account is, or has ceased to be, an Eligible Domestic Receivable, the
decision of the Agent in the good faith exercise of its commercially
reasonable discretion shall control.
"Eligible UK Inventory" means the collective reference to all Inventory of
Berry UK and Norwich held for sale, valued at the lowest of the cost,
denominated in Sterling, any ceiling prices which may be established by any
Law of any Governmental Authority or prevailing market value, all as
reduced by the aggregate amount of all reserves, limits and deductions
provided for in this definition or in Section (C) UK BORROWING BASE. (UK
Borrowing Base); EXCLUDING, however, any Inventory which consists of:
(a)any Inventory located outside of England or Wales,
(b)any Inventory on which NationsBank does not have properly
perfected the Lien under the UK Security Documents, free and clear of all
other Liens (other than Permitted Liens and Liens securing the
Obligations),
(c)any Inventory which is (i) subject to retention of title by
any vendor or (ii) not in the actual possession of Norwich or Berry UK,
except to the extent provided in subsection (d) below,
(d)any Inventory in the possession of a bailee, warehouseman,
consignee or similar third party, except to the extent that either (1) such
bailee, warehouseman, consignee or similar third party has entered into an
agreement with NationsBank in which such bailee, warehouseman, consignee or
similar third party consents and agrees to the Lien of NationsBank on such
Inventory and to such other terms and conditions as may be reasonably
required by NationsBank, or (2) with respect to any Inventory in the
possession of a bailee or warehouseman, NationsBank has established a
reserve for such Inventory in an amount not greater than three (3) months
of any fees or other charges which would be due and payable to any such
bailee and warehouseman under its agreements with Norwich or Berry UK
(NationsBank agrees to so establish a reserve as shall be appropriate
unless otherwise directed by Norwich or Berry UK),
(e)any Inventory located on premises leased or rented to Norwich
or Berry UK or otherwise not owned by Norwich or Berry UK, unless either
(i) NationsBank has received a waiver and consent from the lessor, landlord
and/or owner, in form and substance reasonably satisfactory to NationsBank
and from any mortgagee of such lessor, landlord or owner to the extent
reasonably required by NationsBank or (ii) with respect to any such
Inventory, NationsBank has established a reserve for such Inventory in an
amount not greater than three (3) months of any rents or other charges
which would be due and payable to any such lessor, landlord or owner under
its agreements with Norwich or Berry UK (NationsBank agrees to so establish
a reserve as shall be appropriate unless otherwise directed by Norwich or
Berry UK),
(f)any Inventory the sale or other disposition of which has given
rise to an Account,
(g)any Inventory which fails to meet all standards and
requirements imposed by any Governmental Authority over such Inventory or
its production, storage, use or sale to the extent that the failure to meet
any such standards and/or requirements imposed by any Governmental
Authority would entitle a purchaser of such Inventory to return the
Inventory or otherwise cancel or rescind its purchase or shall otherwise
materially impair the value of the Inventory or the ability of NationsBank
to realize upon the value of the Inventory,
(h)work-in-process or supplies,
(i)any Inventory as to which NationsBank determines in the
exercise of its sole and absolute discretion at any time and in good faith
(i) is not in merchantable condition or is defective, post-seasonal, slow
moving or obsolete and (ii) which NationsBank determines in the exercise of
its sole and absolute discretion is unlikely to be sold in the ordinary
course of business within a reasonable period of time and on customary
terms and conditions, without significant out of the ordinary course
discounts or other concessions,
(j)any Inventory which NationsBank in the good faith exercise of
its sole and absolute discretion has deemed to be ineligible because
NationsBank considers the collateral value to NationsBank to be impaired in
any material respect or its ability to realize such value to be insecure in
any material respect.
In the event of any dispute under the foregoing criteria, as to whether
Inventory is, or has ceased to be, Eligible UK Inventory, the decision of
NationsBank in the good faith exercise of its sole and absolute discretion
shall control.
"Eligible UK Receivable" and "Eligible UK Receivables" mean, at any time of
determination thereof, the unpaid portion of each Account (net of any
returns, discounts, claims asserted by Account Debtors or other obligors
with respect to such Account, credits, charges, accrued rebates or other
allowances, offsets, deductions, counterclaims, disputes or other defenses
asserted by Account Debtors or other obligors with respect to such Account,
and reduced by the aggregate amount of all reserves, limits and deductions
expressly provided for in this Agreement), which shall be receivable in
Sterling by Norwich or Berry UK, provided each Account conforms and
continues to conform to the following criteria to the reasonable
satisfaction of NationsBank:
(a)the Account arose in the ordinary course of business from a
bona fide outright sale of Inventory or from services performed;
(b)the Account is a valid, legally enforceable obligation of the
Account Debtor;
(c)if the Account arises from the sale of Inventory, the
Inventory the sale of which gave rise to the account has been shipped or
delivered to the Account Debtor on an absolute sale basis and not on a bill
and hold sale basis, a consignment sale basis, a guaranteed sale basis, a
sale or return basis, or on the basis of any other similar understanding;
(d)if the Account arises from the performance of services, such
services have been fully rendered;
(e)the Account is evidenced by an invoice or other documentation
in form reasonably acceptable to NationsBank, dated no later than two (2)
Business Days after the date of shipment or performance and containing only
terms normally offered by Norwich or Berry UK;
(f)the amount shown on the books of Norwich or Berry UK, as
appropriate, and on any invoice, certificate, schedule or statement
delivered to NationsBank is owing to Norwich or Berry UK, as appropriate,
with any partial payment reducing the amount of the Eligible UK Receivable
by such partial payment received;
(g)the Account is not outstanding more than ninety (90) days from
the date of the invoice therefor or past due more than thirty (30) days
after its due date, which shall not be later than ninety (90) days after
the invoice date;
(h)the Account is not owing by any Account Debtor for which fifty
percent (50%) or more of such Account Debtor's other Accounts (or any
portion thereof) due to Norwich and/or Berry UK, individually, or Norwich
and Berry UK collectively, are non-Eligible UK Receivables;
(i)the Account is not owing by an Account Debtor or a group of
affiliated Account Debtors whose then existing Accounts owing to Norwich
and/or Berry UK, individually, exceed in the aggregate, fifteen percent
(15%) of the total Eligible UK Receivables of Norwich and Berry UK, and is
not owing by an Account Debtor or a group of affiliated Account Debtors
whose then existing Accounts to Norwich and/or Berry UK collectively
exceed, in the aggregate, fifteen percent (15%) of the total Eligible UK
Receivables of Norwich and Berry UK, except that with respect to Accounts
owing by those Account Debtors identified on SCHEDULE 1.1 attached hereto,
as updated with the consent of NationsBank at any time and from time to
time, the Account is not owing by any Account Debtor so named on SCHEDULE
1.1 whose then existing Accounts to Norwich and/or Berry UK, individually,
exceed, in the aggregate, twenty-five percent (25%) of the total Eligible
UK Receivables of Norwich and/or Berry UK, and is not owing by an Account
Debtor so named on SCHEDULE 1.1 whose then existing Accounts to Norwich
and/or Berry UK, collectively, exceed, in the aggregate, twenty-five
percent (25%) of the total Eligible UK Receivables of Norwich and Berry UK;
(j)the Account Debtor has not returned, rejected or refused to
retain, or otherwise notified Norwich or Berry UK of any dispute
concerning, or claimed nonconformity of, any of the Inventory or services
from the sale or furnishing of which the Account arose;
(k)the Account Debtor is not a Subsidiary or Affiliate of
Norwich, Berry UK, the Borrower or any Subsidiary Guarantor or an employee,
officer, director of shareholder of Norwich, Berry UK, the Borrower or any
Subsidiary Guarantor or any Subsidiary or Affiliate of Norwich, Berry UK,
the Borrower or any Subsidiary Guarantor (For purposes of calculating
Eligible Domestic Receivables and Eligible UK Receivables, the term
Affiliate shall not include any Affiliate of any stockholder of the
Parent);
(l)the Account Debtor is not incorporated or organized in, or
primarily located in, any jurisdiction outside of the United Kingdom,
unless the Account Debtor's obligations with respect to such account are
secured by a letter of credit, guaranty or banker's acceptance having terms
and from such issuers and confirmation banks as are reasonably acceptable
to NationsBank in its commercially reasonable discretion (which letter of
credit, guaranty or banker's acceptance is subject to an irrevocable
assignment of proceeds in favor of NationsBank);
(m)the Account Debtor with respect to such Account is not
insolvent or the subject of any bankruptcy or insolvency proceedings of any
kind or of any other proceeding or action;
(n)the Account Debtor is not a Governmental Authority, unless
Norwich shall have complied to the satisfaction of NationsBank with the
applicable Laws, if any, governing the creation and perfection of Liens in
such Accounts
(o)Neither Norwich nor Berry UK is indebted in any manner to the
Account Debtor (as creditor, lessor, supplier otherwise), with the
exception of customary credits, adjustments and/or discounts given to an
Account Debtor;
(p)the Account does not arise from services under or related to
any warranty obligation of Norwich or Berry UK or out of service charges,
finance charges or other fees for the time value of money;
(q)the Account is not evidenced by Chattel Paper or an Instrument
of any kind and is not secured by any letter of credit, except as permitted
under subsection (l) above, unless the original of any such Chattel Paper
and/or Instrument has been delivered to NationsBank;
(r)the title of Norwich or Berry UK, as appropriate, to the
Account is absolute and is not subject to any prior assignment, claim,
Lien, or security interest, except Permitted Liens and Liens in favor of
NationsBank and Liens securing the Obligations;
(s)no bond or other undertaking by a guarantor or surety which is
not reasonably acceptable to NationsBank has been or is required to be
obtained, supporting the Account and any of the Account Debtor's
obligations in respect of the Account, other than as and to the extent
permitted or required under the provisions of subsection (l) above;
(t)Norwich or Berry UK has the full and unqualified right and
power to assign and grant a security interest in, and Lien on, the Account
to NationsBank as security and collateral for the payment of the UK
Obligations;
(u)the Account does not arise out of a contract with, or order
from, an Account Debtor that, by its terms, forbids or makes void or
unenforceable the assignment or grant of a Lien by Norwich or Berry UK to
NationsBank of the Account arising from such contract or order;
(v)the Account is subject to a Lien in favor of NationsBank,
which Lien constitutes a first priority perfected security interest and
Lien, subject only to Permitted Liens;
(w)the Inventory giving rise to the Account was not, at the time
of the sale thereof, subject to any Lien, except those in favor of
NationsBank and other Permitted Liens;
(x)no part of the Account represents a progress billing or a
retainage;
(y)NationsBank in the good faith exercise of its commercially
reasonable discretion has not deemed the Account ineligible because of
uncertainty in any material respect as to the creditworthiness of the
Account Debtor or because NationsBank otherwise considers the collateral
value of such Account to be impaired in any material respect or its ability
to realize such value to be insecure in any material respect.
In the event of any dispute, under the foregoing criteria, as to whether an
account is, or has ceased to be, an Eligible UK Receivable, the decision of
NationsBank in the good faith exercise of its commercially reasonable
discretion shall control.
"ENFORCEMENT COSTS" MEANS ALL COMMERCIALLY REASONABLE EXPENSES, CHARGES,
COSTS AND FEES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, REASONABLE
OUTSIDE AND ALLOCATED IN-HOUSE COUNSEL ATTORNEY'S FEES AND EXPENSES) OF ANY
NATURE WHATSOEVER REASONABLY PAID OR INCURRED BY OR ON BEHALF OF THE AGENT
AND/OR ANY OF THE LENDERS IN CONNECTION WITH (A) ANY OR ALL OF THE
OBLIGATIONS, THIS AGREEMENT AND/OR ANY OF THE OTHER FINANCING DOCUMENTS AND
(B) THE CREATION, PERFECTION, COLLECTION, MAINTENANCE, PRESERVATION,
DEFENSE, PROTECTION, REALIZATION UPON, DISPOSITION, SALE OR ENFORCEMENT OF
ALL OR ANY PART OF THE COLLATERAL, THIS AGREEMENT OR ANY OF THE OTHER
FINANCING DOCUMENTS, INCLUDING, WITHOUT LIMITATION, THOSE COSTS AND
EXPENSES MORE SPECIFICALLY ENUMERATED IN SECTION 3.8 COSTS.
The Borrower agrees to pay, as part of the Enforcement Costs and to the
fullest extent permitted by applicable Laws, on demand all reasonable
costs, fees and expenses incurred by the Agent and/or any of the Lenders in
connection with the taking, perfection, preservation, protection and/or
release of a Lien on the Collateral, including, without limitation, with
respect to all actions required to effect any of the provisions of SECTION
3.7 SUBSIDIARY GUARANTOR ASSETS.
The Borrower agrees that all Obligations are and shall continue to be fully
and unconditionally and jointly and severally guaranteed by each Subsidiary
Guarantor and that the joint and several obligations of each Subsidiary
Guarantor under the Guaranty are and shall continue to be secured by a
first priority Lien (subject only to Permitted Liens) on all Assets and
properties of each Subsidiary Guarantor. (Subsidiary Guarantor Assets), and
any of the following: (Costs) and SECTION 9.10 ENFORCEMENT COSTS.
The Borrower agrees to pay to the Agent on demand all Enforcement Costs
(including expenses and fees incurred by any Lender to the extent included
in the definition of Enforcement Costs), together with interest thereon
from the date following demand until paid in full at a per annum rate of
interest equal at all times to the Post-Default Rate. The Borrower, Berry
UK and Norwich jointly and severally agree to pay to the Agent on demand
all Enforcement Costs which relate solely to the UK Obligations, together
with interest thereon from the date following demand until paid in full at
a per annum rate of interest equal at all times to the Post-Default Rate.
Enforcement Costs shall be immediately due and payable at the time advanced
or incurred, whichever is earlier. Without implying any limitation on the
foregoing, the Borrower and to the extent appropriate, Berry UK and
Norwich, jointly and severally agree, as part of the Enforcement Costs, to
pay upon demand any and all stamp and other Taxes and fees payable or
determined to be payable in connection with the execution and delivery of
this Agreement and the other Financing Documents and to save the Agent and
the Lenders harmless from and against any and all liabilities with respect
to or resulting from any delay in paying or omission to pay any Taxes or
fees referred to in this Section. The provisions of this Section shall
survive the execution and delivery of this Agreement, the repayment of the
other Obligations and shall survive the termination of this Agreemen
(Enforcement Costs). The Lenders agree that the Borrower shall have no
obligation to reimburse any Lender, other than the Agent, for legal fees
and expenses incurred by such Lender in connection with its review,
execution and delivery of any of the Financing Documents, to the extent
such legal fees and expenses exceed Five Thousand Dollars ($5,000).
"Equipment" means all equipment, machinery, computers, chattels, tools,
parts, machine tools, furniture, furnishings, fixtures and supplies of
every nature, presently existing or hereafter acquired or created and
wherever located, whether or not the same shall be deemed to be affixed to
real property, together with all accessions, additions, fittings,
accessories, special tools, and improvements thereto and substitutions
therefor and all parts and equipment which may be attached to or which are
necessary or beneficial for the operation, use and/or disposition of such
personal property, all licenses, warranties, franchises and general
intangibles related thereto or necessary or beneficial for the operation,
use and/or disposition of the same, together with all Accounts, Chattel
Paper, Instruments and other consideration received by Norwich, Berry UK,
the Borrower or any Subsidiary Guarantor on account of the sale, lease or
other disposition of all or any part of the foregoing, and together with
all rights under or arising out of present or future Documents and
contracts relating to the foregoing and all proceeds (cash and non-cash) of
the foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Event of Default" has the meaning described in DEFAULT AND RIGHTS AND
REMEDIES (Default and Rights and Remedies).
"Excess Cash Flow" means for any annual period of determination
thereof and with respect to the Borrower and the Subsidiary Guarantors only
and not including Berry UK or Norwich, an amount equal to fifty percent
(50%) of the sum of (a) EBITDA, less (b) non-financed Capital Expenditures
permitted by Section (F) CAPITAL EXPENDITURES.
Except for Permitted Acquisitions and permitted reinvestments of Permitted
Asset Dispositions, neither the Borrower, Berry UK nor Norwich will or will
permit any Subsidiary to, directly or indirectly, make any Capital
Expenditures in the aggregate for the Borrower, Berry UK, Norwich and their
respective Subsidiaries (taken as a whole) in amount which exceed the
following amounts at any time during the following fiscal years (for each
fiscal year, the "Capital Expenditure Ceiling" (Capital Expenditures), less
(c) cash income Taxes and alternative minimum Taxes, less (d) increases in
working capital, plus (e) decreases in working capital, less (f) Debt
Service, as shown on the annual financial statements for such annual
period, furnished to the Agent in accordance with Section (A) FINANCIAL
STATEMENTS.
The Borrower shall furnish to the Agent for distribution to the Lender
(Financial Statements); or in the event that the Borrower fails to deliver
such financial statements to the Agent as and when required, the Agent
shall estimate, in its sole, but commercially reasonable discretion, the
amount of Excess Cash Flow for such period.
"Federal Funds Rate" means for any day of determination, the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day) by the
Federal Reserve Bank for the next preceding Business Day) by the Federal
Reserve Bank of Richmond or, if such rate is not so published for any day
that is a Business Day, the average of quotations for such day on such
transactions received by the Agent from three (3) Federal funds brokers of
recognized standing selected by the Agent.
"Fees" means the collective reference to each fee payable to the Agent, for
its own account or for the ratable benefit of the Lenders, under the terms
of this Agreement or under the terms of any of the other Financing
Documents, including, without limitation, the Agency Fees, the Revolving
Credit Unused Line Fees, the Letter of Credit Fees, the Letter of Credit
Fronting Fees, the Bond Letter of Credit Fees, the Bond Letter of Credit
Fronting Fees, the Early Termination Fee, the Term Loan B Fees, the Field
Examination Fees, the UK Commitment Fee and the UK Revolving Credit
Facility Fees.
"Field Examination Fee" and "Field Examination Fees" have the meanings
described in Section (C) FIELD EXAMINATION FEES.
The Borrower shall pay to the Agent for the exclusive benefit of the Agent
an annual field examination fee (the "Field Examination Fee"), which Field
Examination Fee shall be payable quarterly in advance on the first day of
each February, May, August and November of each year commencing on the
first such date following the Closing Date, and continuing until the last
such date prior to which all Obligations arising out of, or under, the
Credit Facilities then outstanding have been paid in full. The Field
Examination Fee shall be in the amount of Forty Thousand Dollars ($40,000)
per annum, and shall also include the amount of all out-of-pocket expenses
reasonably incurred by the Agent in connection with any field examination
of Norwich and/or Berry UK for which the Agent has not been previously
reimbursed. (Field Examination Fees).
"Financing Documents" means at any time collectively this Agreement, the
Notes, the Security Documents, the Letter of Credit Documents, the Bond
Letter of Credit Agreement Documents, the Special Source Bond Documents,
the UK Security Documents, and any other instrument, agreement or document
previously, simultaneously or hereafter executed and delivered by the
Borrower, any Guarantor, Berry UK, Norwich and/or any other Person, singly
or jointly with another Person or Persons, evidencing, securing,
guarantying or in connection with this Agreement, any Note, any of the
Security Documents, any of the Credit Facilities, any of the UK Security
Documents and/or any of the Obligations, all as the same may be amended,
restated, supplemented, replaced or otherwise modified at any time and from
time to time.
"First Closing Date" means January 21, 1997.
"Fixed or Capital Assets" of a Person at any date means all assets which
would, in accordance with GAAP consistently applied, be classified on the
balance sheet of such Person as property, plant or equipment at such date.
"Fixed Charges" means as to the Borrower, Berry UK, Norwich and each of the
Subsidiary Guarantors, on a consolidated basis, for any period of
determination, the scheduled payments of principal and cash interest on
account of all Indebtedness for Borrowed Money and on account of all
Capital Leases, plus cash income Taxes, plus cash dividends declared or
paid. For purposes of calculating "Fixed Charges", the Agent and the
Lenders agree that scheduled payments with respect to the Iowa Bond Letter
of Credit Obligations shall reflect the permitted amortization of a portion
of such Iowa Bond Letter of Credit Obligations pursuant to Section (ii)
Notwithstanding the provisions of paragraph (a) above, as long as no Event
of Default has occurred, any drawing under the Iowa Bond Letter of Credit -
NB to redeem Iowa Bonds purchased with a drawing under the Iowa Bond
Standby Credit Agreement, any drawing under the Nevada Bond Letter of
Credit - NB to purchase Nevada Bonds, and any drawing under the South
Carolina Bond Letter of Credit - NB to purchase South Carolina Bonds, in
each case relating to Bonds which were tendered for purchase by the holders
thereof and which were not remarketed in a timely fashion (each referred to
herein as a "Conversion Drawing"), are not required to be reimbursed to the
Agent ON DEMAND; provided that BIC or the Borrower, as appropriate, make
payments of interest to the Agent at the rates, at the times and otherwise
subject to the provisions for interest on the Loans under Interest.
(Interest), and the principal amount of each such Conversion Drawing is
repaid in equal quarterly payments (i) over the remaining term to expiry of
the Bond Letter of Credit Facility with respect to the Nevada Bond Letter
of Credit - NB and/or the South Carolina Bond Letter of Credit - NB and
(ii) over a period of ten (10) years with respect to the Iowa Bond Letter
of Credit - NB; final payment of all outstanding amounts relating to the
Nevada Bond Letter of Credit - NB and/or the South Carolina Bond Letter of
Credit - NB to be made no later than expiry of the Bond Letter of Credit
Facility or the Revolving Credit Termination Date, whichever is earlier,
and final payment of all outstanding amounts relating to the Iowa Bond
Letter of Credit - NB to be made no later than the date which is ten (10)
years after the date of any Conversion Drawing under the Iowa Bond Letter
of Credit - NB or the Revolving Credit Termination Date, whichever is
earlier. In addition, the Agent and the Lenders agree that in the event
the Iowa Bond Trustee draws on the Iowa Bond Letter of Credit on or about
the business day preceding the expiration or termination of the Iowa Bond
Letter of Credit, as contemplated by Section 505 of the Iowa Bond Trust
Agreement (the "Draw"), the Iowa Bond Letter of Credit Obligations
resulting from the Draw, shall not be payable ON DEMAND as would otherwise
be required by this Section (E) PAYMENTS OF BOND LETTERS OF CREDIT., but
shall be repaid by the Borrower in equal consecutive quarterly installments
over a period of ten (10) years, commencing with the first day following
the first full quarterly period after the Draw and continuing on the first
day of each quarterly period thereafter (the "Amortizing Iowa Bond Letter
of Credit Obligations"); provided, that (A) there does not exist a Default
or an Event of Default, (B) the Draw is not the result of an acceleration
of the Iowa Bonds pursuant to Section 1102 of the Iowa Bond Trust Agreement
and (C) the Draw is not the result of the occurrence of a "Determination of
Taxability" (as defined in the Iowa Bond Trust Agreement). Interest shall
be payable on the Amortizing Iowa Bond Letter of Credit Obligations to the
Agent at the rates, at the times and otherwise subject to the provisions
for interest on the Loans under INTEREST. (Interest), with a final payment
of all outstanding amounts relating to the Iowa Bond Letter of Credit - NB
to be made no later than the date which is ten (10) years after the date of
the Draw or the Revolving Credit Termination Date, whichever is earlier.
(Payments of Bond Letters of Credit).
"Fixed Charge Coverage Ratio" means as to the Borrower, Berry UK, Norwich
and each of the Subsidiary Guarantors, on a consolidated basis, for the
period of any determination thereof, the ratio of (a) EBITDA, less the
aggregate amount of all non-financed Capital Expenditures for such period,
to (b) Fixed Charges.
"Funded Debt" means as to the Borrower, Berry UK, Norwich and each of the
Subsidiary Guarantors, on a consolidated basis, as of any date of
determination, (a) the aggregate of all Indebtedness for Borrowed Money of
the Borrower, Berry UK, Norwich and each of the Subsidiary Guarantors,
whether secured or unsecured (but excluding, without duplication, loans by
the Borrower to one or more of the Subsidiary Guarantors, Berry UK or),
having a final maturity (or which by the terms thereof is renewable or
extendible at the option of the obligor for a period ending) more than a
year after that date, including current maturities of long-term
Indebtedness for Borrowed Money (as determined in accordance with GAAP),
less (b) the aggregate amount of all cash balances and Cash Equivalents of
the Borrower, Berry UK, Norwich and/or any of the Subsidiary Guarantors.
"GAAP" means generally accepted accounting principles in the United States
of America in effect from time to time, except that with respect to Berry
UK and Norwich, GAAP means generally accepted accounting principles in the
United Kingdom in effect from time to time. Notwithstanding the foregoing,
with respect to (i) any financial statements which consolidate Berry UK
and/or Norwich with the Borrower or any other Subsidiary Guarantor or (ii)
any financial covenant relating to Berry UK, Norwich, the Borrower and/or
any Subsidiary Guarantor on a consolidated basis, GAAP shall mean generally
accepted accounting principles in the United States of America in effect
from time to time.
"General Intangibles" means all general intangibles of every nature,
whether presently existing or hereafter acquired or created, and without
implying any limitation of the foregoing, further means all books and
records, claims (including without limitation all claims for income tax and
other refunds), choses in action, claims, causes of action in tort or
equity, contract rights, judgments, customer lists, Patents, Trademarks,
licensing agreements, rights in intellectual property, goodwill (including
goodwill of the business of the Borrower, Berry UK, Norwich or any
Subsidiary Guarantor symbolized by and associated with any and all
Trademarks, trademark licenses, Copyrights and/or service marks), royalty
payments, licenses, rights as lessee under any lease of real or personal
property, literary rights, Copyrights, service names, service marks, logos,
trade secrets, amounts received as an award in or settlement of a suit in
damages, deposit accounts, interests in joint ventures, general or limited
partnerships, or limited liability companies or partnerships, rights in
applications for any of the foregoing, books and records in whatever media
(paper, electronic or otherwise) recorded or stored, with respect to any or
all of the foregoing and all general intangibles necessary or beneficial to
retain, access and/or process the information contained in those books and
records, and all proceeds (cash and non-cash) of the foregoing.
"Governmental Authority" means any nation or government, any state or other
political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government and any department, agency or instrumentality
thereof.
"Guarantor" means the Parent or any Subsidiary Guarantor or their
respective successors and assigns, as the case may be; and "Guarantors"
means the Parent, each and every Subsidiary Guarantor, and each of their
respective successors and assigns.
"Guaranty" means collectively each guaranty of payment for the benefit of
the Lenders ratably and the Agent from any or all of the Guarantors or
Norwich, including, without limitation, the Special Source Bond Guaranty
and the UK Credit Facilities Guaranty, as the same may from time to time be
amended, restated, supplemented or otherwise modified.
"Hazardous Materials" means (a) any "hazardous waste" as defined by the
Resource Conservation and Recovery Act of 1976, as amended from time to
time, and regulations promulgated thereunder; (b) any "hazardous substance"
as defined by the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended from time to time, and regulations
promulgated thereunder; (c) any substance the presence of which on any
property now or hereafter owned, acquired or operated by the Borrower,
Berry UK, Norwich or any Subsidiary Guarantor is prohibited by any Law
similar to those set forth in this definition; and (d) any other substance
which by Law requires special handling in its collection, storage,
treatment or disposal.
"Hazardous Materials Contamination" means the contamination (whether
presently existing or occurring after the date of this Agreement) by
Hazardous Materials of any property owned, operated or controlled by the
Borrower, Berry UK, Norwich or any Subsidiary Guarantor or for which the
Borrower, Berry UK, Norwich or any Subsidiary Guarantor has responsibility,
including, without limitation, improvements, facilities, soil, ground
water, air or other elements on, or of, any property now or hereafter
owned, acquired or operated by the Borrower, Berry UK, Norwich or any
Subsidiary Guarantor, and any other contamination by Hazardous Materials
for which the Borrower, Berry UK, Norwich or any Subsidiary Guarantor is,
or is claimed to be, responsible.
"Indebtedness" of a Person means at any date the total liabilities of such
Person at such time determined in accordance with GAAP consistently
applied.
"Indebtedness for Borrowed Money" of a Person means at any time the sum at
such time of (a) Indebtedness of such Person for borrowed money or for the
deferred purchase price of property or services, (b) any obligations of
such Person in respect of letters of credit, banker's or other acceptances
or similar obligations issued or created for the account of such Person,
(c) Lease Obligations of such Person with respect to Capital Leases, (d)
all liabilities secured by any Lien on any property owned by such Person,
to the extent attached to such Person's interest in such property, even
though such Person has not assumed or become personally liable for the
payment thereof, (e) obligations of third parties which are being
guarantied or indemnified against by such Person or which are secured by
the property of such Person; (f) any obligation of such Person or a
Commonly Controlled Entity to a Multi-employer Plan; and (h) any
obligations, liabilities or indebtedness, contingent or otherwise, under or
in connection with, any interest rate or currency swap agreements, cap,
floor, and collar agreements, currency spot, foreign exchange and forward
contracts and other similar agreements and arrangements; but excluding
trade and other accounts payable in the ordinary course of business in
accordance with customary trade terms and which are not more than thirty
(30) days past due (as determined in accordance with customary trade
practices) or which are being disputed in good faith by such Person and for
which adequate reserves are being provided on the books of such Person in
accordance with GAAP.
"Indenture" means that certain indenture dated as of April 21, 1994 by and
between the Borrower and the United States Trust Company of New York, as
trustee, entered into in connection with the Subordinated Debt, as the same
may be amended, restated supplemented or otherwise modified.
"Installment Payment Date" means the first day of each February, May,
August and November of each calendar year.
"Instrument" means a negotiable instrument (as defined under Article 3 of
the Uniform Commercial Code), a "certificated security" (as defined under
Article 8 of the Uniform Commercial Code), or any other writing which
evidences a right to payment of money and is not itself a security
agreement or lease and is of a type which is in the ordinary course of
business transferred by delivery with any necessary endorsement.
"Interest Coverage Ratio" means as to the Borrower, Berry UK, Norwich and
each of the Subsidiary Guarantors, on a consolidated basis, for any period
of determination thereof the ratio of (a) EBITDA to (b) cash interest
expense, all determined on a consolidated basis in accordance with GAAP
consistently applied.
"Interest Period" means a Dollar Interest Period or a Sterling Interest
Period, as applicable.
"Interest Rate Election Notice" has the meaning described in Section (v)
Neither NationsBank nor the Lenders will be obligated to make Loans, to
convert the Applicable Interest Rate on Loans to another Interest Rate, or
to change Interest Periods, unless NationsBank or the Agent, as
appropriate, shall have received an irrevocable written or telephonic
notice (an "Interest Rate Election Notice") from the Borrower, Berry UK or
Norwich, as appropriate, specifying the following information: (Selection
of Interest Rates).
"Interest Rate/Currency Protection Agreement" means, for any Person,
interest rate swap, cap, floor or collar agreements, currency agreements,
currency spot, foreign exchange and forward contracts or similar
arrangement between such Person and one or more financial institutions
providing for the transfer or mitigation of interest or currency risks
either generally or under specific contingencies..
"Internal Revenue Code" means the Internal Revenue Code of 1986, as amended
from time to time, and the Income Tax Regulations issued and proposed to be
issued thereunder.
"Inventory" means all now owned and hereafter acquired inventory, goods,
merchandise and other personal property furnished under any contract of
service or intended for sale or lease, including, without limitation, all
raw materials, work-in-progress, finished goods and materials and supplies
of any kind, nature or description which are used or consumed in the
business, or are or might be used in connection with the manufacture,
packing, shipping, advertising, selling or finishing of such goods,
merchandise and other licenses, warranties, franchises, general
intangibles, personal property and all Documents or documents relating to
the same and all proceeds (cash and non-cash) of the foregoing.
"Iowa Bond Letter of Credit - NB" means (a) that certain irrevocable letter
of credit issued by the Agent for the account of the Borrower or BIC to
replace the Iowa Bond Letter of Credit and (b) that certain standby credit
line made available by the Agent to replace the Iowa Bond Standby Credit
Agreement, as the same may be amended, restated, reissued, renewed,
supplemented, replaced or otherwise modified at any time and from time to
time.
"Iowa Bond Letter of Credit" means that certain irrevocable letter of
credit dated March 13, 1996, as amended by Amendment No. 1 dated March 13,
1996, issued by Fleet National Bank of Connecticut in the original amount
of $6,025,810, for the account of BIC, for the benefit of State Street Bank
and Trust Company, as trustee, and as security for the Iowa Bonds, as the
same may be amended, restated, reissued, renewed, supplemented, replaced or
otherwise modified at any time and from time to time.
"Iowa Bond Letter of Credit Agreement" means that certain letter of credit
reimbursement agreement by and between the Agent and the Borrower pursuant
to which the Borrower will agree to reimburse the Agent for any amounts
drawn under the Iowa Bond Letter of Credit - NB and to pay certain fees,
interest and other amounts payable to the Agent with respect to the Iowa
Bond Letter of Credit - NB, as the same may be amended, restated,
supplemented, replaced or otherwise modified at any time and from time to
time.
"Iowa Bond Letter of Credit Agreement Documents - Bonds" means all
instruments, agreements or documents previously, simultaneously or
hereafter executed and delivered by the Borrower, any Guarantor and/or any
other Person, singly or jointly with another Person or Persons, evidencing,
securing, guarantying or in connection with the Iowa Bond Letter of Credit,
the Iowa Bond Standby Credit Agreement (prior to the date on which the
Agent is a party thereto), and/or any or all of the Iowa Bonds, all as the
same may be amended, restated, supplemented, replaced or otherwise modified
at any time and from time to time.
"Iowa Bond Letter of Credit Agreement Documents - NB" means the Iowa Bond
Letter of Credit Agreement and any other instrument, agreement or document
previously, simultaneously or hereafter executed and delivered by the
Borrower, any Guarantor and/or any other Person, singly or jointly with
another Person or Persons, evidencing, securing, guarantying or in
connection with the Iowa Bond Letter of Credit - NB, the Iowa Bond Standby
Letter of Credit Agreement (but only after such date as the Agent is a
party thereto) and/or any or all of the Iowa Bond Letter of Credit
Obligations, all as the same may be amended, restated, supplemented,
replaced or otherwise modified at any time and from time to time.
"Iowa Bond Letter of Credit Obligations" means the collective reference to
all Obligations of the Borrower under and with respect to the Iowa Letter
of Credit - NB, the Iowa Bond Letter of Credit Agreement, and/or any of the
Iowa Bond Letter of Credit Agreement Documents.
"Iowa Bond Rollover Payments" means the collective reference to payments
made to the bondholders or to the Iowa Trustee pursuant to a Draw or a
Conversion Drawing.
"Iowa Bond Standby Credit Agreement" means that certain Standby Credit
Agreement among BIC, The First National Bank of Boston, as prior Iowa Bond
Trustee, and Barclays Bank, PLC, New York Branch, dated as of February 1,
1995; all of the obligations and rights of Barclays Bank PLC, New York
Branch, having been assigned to and assumed by Fleet National Bank of
Connecticut pursuant to an Amendment, Assignment and Assumption Agreement
dated March 13, 1996, by and among BIC, Fleet Capital Corporation, Barclays
Bank PLC, New York Branch, The First National Bank of Boston, as
remarketing agent, and State Street Bank and Trust Company, as Iowa Bond
Trustee, as the same may be amended, restated, reissued, renewed,
supplemented, replaced or otherwise modified at any time and from time to
time. The Agent has delivered a standby line of credit to replace the line
of credit described in the Iowa Bond Standby Credit Agreement and a new
Iowa Bond Standby Credit Agreement has been executed and delivered among
the Agent, BIC and the Iowa Bond Trustee and other necessary persons, if
any, and all references to the term Iowa Bond Standby Credit Agreement
shall be to such replacement agreement to which the Agent is a party, as
the same may be amended, restated, reissued, supplemented, replaced or
otherwise modified at any time and from time to time.
"Iowa Bond Trust Agreement" means that certain loan and trust agreement
dated as of August 30, 1988 by and among the Iowa Bond Trustee, The City of
Iowa Falls, Iowa, Genpak Corporation and Canadian Imperial Bank of Commerce
(New York), relating to the Iowa Bonds, as supplemented by the Supplemental
Agreement dated as of September 27, 1990, and as amended by the Amendment
to Loan and Trust Agreement dated as of February 12, 1992, and the Second
Amendment to Loan and Trust Agreement dated as of April 21, 1994, and as
subsequently amended, restated, supplemented or otherwise modified at any
time and from time to time.
"Iowa Bond Trustee" means State Street Bank and Trust Company, and its
successors and assigns, as trustee under the Iowa Bond Trust Agreement.
"Iowa Bonds" means the City of Iowa Falls Flexible Mode Industrial
Development Revenue Refunding Bonds (Berry Iowa Corporation Project),
Series 1988, issued by the City of Iowa Falls, Iowa in the original
aggregate principal amount of Five Million Four Hundred Thousand Dollars
($5,400,000).
"Item of Payment" means each check, draft, cash, money, instrument, item,
and other remittance in payment or on account of payment of any Collateral,
including, without limitation, cash proceeds of any returned, rejected or
repossessed goods, the sale or lease of which gave rise to an Account, and
other proceeds of Collateral; and "Items of Payment" means the collective
reference to all of the foregoing.
"Laws" means all ordinances, statutes, rules, regulations, orders,
injunctions, writs, or decrees of any Governmental Authority or political
subdivision or agency thereof, or any court or similar entity established
by any thereof.
"Lease Obligations" of a Person means for any period the rental commitments
of such Person for such period under leases for real and/or personal
property.
"Lending Office" means a Dollar LIBOR Lending Office or a Sterling LIBOR
Lending Office, as applicable.
"Letter of Credit" and "Letters of Credit" shall have the meanings
described in Section (A) LETTERS OF CREDIT.
Subject to and upon the provisions of this Agreement, and as a part of the
Revolving Credit Commitments, the Borrower may obtain standby or commercial
letters of credit (as the same may from time to time be amended,
supplemented or otherwise modified, each a "Letter of Credit" and
collectively the "Letters of Credit") from the Agent from time to time from
the First Closing Date until the Business Day preceding the Revolving
Credit Termination Date. The Borrower will not be entitled to obtain a
Letter of Credit unless (a) the Borrower is then able to obtain a Revolving
Loan from the Lenders in an amount not less than the proposed stated amount
of the Letter of Credit requested by the Borrower, and (b) the sum of the
then Outstanding Letter of Credit Obligations (including the amount of the
requested Letter of Credit) does not exceed Five Million Dollars
($5,000,000) (the "Letter of Credit Committed Amount"). (Letters of
Credit).
"Letter of Credit Agreement" means the collective reference to each letter
of credit application and agreement substantially in the form of the
Agent's then standard form of application for letter of credit or such
other form as may be approved by the Agent, executed and delivered by the
Borrower in connection with the issuance of a Letter of Credit (other than
any of the Bond Letters of Credit), as the same may from time to time be
amended, restated, supplemented or modified; and "Letter of Credit
Agreements" means all of the foregoing in effect at any time and from time
to time. The Agent and the Lenders agree that if the provisions of any
Letter of Credit Agreement conflict with the provisions of this Agreement,
the provisions of this Agreement shall control.
"Letter of Credit Commitment" means the agreement of the Agent relating to
the issuance of the Letters of Credit and the agreement of a Lender to
purchase a participating interest in any Letter of Credit Obligations with
respect to such Letters of Credit, all subject to and in accordance with
the provisions of this Agreement; and "Letter of Credit Commitments" means
the collective reference to the Letter of Credit Commitment of the Agent
and each of the Lenders.
"Letter of Credit Committed Amount" has the meaning given such term in
Section (A) LETTERS OF CREDIT.
Subject to and upon the provisions of this Agreement, and as a part of the
Revolving Credit Commitments, the Borrower may obtain standby or commercial
letters of credit (as the same may from time to time be amended,
supplemented or otherwise modified, each a "Letter of Credit" and
collectively the "Letters of Credit") from the Agent from time to time from
the First Closing Date until the Business Day preceding the Revolving
Credit Termination Date. The Borrower will not be entitled to obtain a
Letter of Credit unless (a) the Borrower is then able to obtain a Revolving
Loan from the Lenders in an amount not less than the proposed stated amount
of the Letter of Credit requested by the Borrower, and (b) the sum of the
then Outstanding Letter of Credit Obligations (including the amount of the
requested Letter of Credit) does not exceed Five Million Dollars
($5,000,000) (the "Letter of Credit Committed Amount"). (Letters of
Credit).
"Letter of Credit Documents" means any and all drafts under or purporting
to be under a Letter of Credit, any Letter of Credit Agreement, and any
other instrument, document or agreement executed and/or delivered by the
Borrower or any other Person under, pursuant to or in connection with a
Letter of Credit or any Letter of Credit Agreement.
"Letter of Credit Facility" means the facility established pursuant to THE
LETTER OF CREDIT FACILITY. (Letter of Credit Facility).
"Letter of Credit Fee" and "Letter of Credit Fees" have the meanings
described in Section (B) LETTER OF CREDIT FEES. (Letter of Credit Fees).
"Letter of Credit Fronting Fee" and "Letter of Credit Fronting Fees" have
the meanings described in Section (B) LETTER OF CREDIT FEES. (Letter of
Credit Fees).
"Letter of Credit Obligations" means the collective reference to all
Obligations of the Borrower with respect to the Letters of Credit and the
Letter of Credit Agreements.
"Liabilities" means at any date all liabilities that in accordance with
GAAP consistently applied should be classified as liabilities on a
consolidated balance sheet of the Borrower and its Subsidiaries.
"LIBOR Base Rate" means the Dollar LIBOR Base Rate or the Sterling LIBOR
Base Rate, as applicable.
"LIBOR Loan" means a Dollar LIBOR Loan or a Sterling LIBOR Loan, as
applicable.
"LIBOR Rate" means the Dollar LIBOR Rate or the Sterling LIBOR Rate, as
applicable.
"Lien" means any mortgage, deed of trust, deed to secure debt, grant,
pledge, security interest, assignment, encumbrance, lien, hypothecation, or
charge of any kind, whether perfected or unperfected, avoidable or
unavoidable, including, without limitation, any conditional sale or other
title retention agreement, any lease in the nature thereof, and the filing
of any financing statement under the Uniform Commercial Code of any
jurisdiction, excluding the precautionary filing of any financing statement
by any lessor in a true lease transaction, by any bailor in a true bailment
transaction or by any consignor in a true consignment transaction under the
Uniform Commercial Code of any jurisdiction or the agreement to give any
financing statement by any lessee in a true lease transaction, by any
bailee in a true bailment transaction or by any consignee in a true
consignment transaction.
"Loan" means each of the Revolving Loan, a Term Loan A, a Term Loan B, the
UK Revolving Loan, or a UK Term Loan, as the case may be, and "Loans" means
the collective reference to the Revolving Loan, the Term Loans A, the Term
Loans B, the UK Revolving Loan and the UK Term Loans.
"Loan Notice" has the meaning described in Section (B) PROCEDURE FOR MAKING
ADVANCES UNDER THE REVOLVING LOAN. (Procedure for Making Advances).
"Lockbox" has the meaning described in Section (H) THE COLLATERAL ACCOUNT.
Upon demand by the Agent following a Borrowing Base Trigger Event, the
Borrower will deposit, or cause to be deposited, all Items of Payment to a
bank account designated by the Agent and from which the Agent alone has
power of access and withdrawal (the "Collateral Account"). Each deposit
shall be made not later than the next Business Day after the date of
receipt of the Items of Payment. The Items of Payment shall be deposited
in precisely the form received, except for the endorsements of the Borrower
where necessary to permit the collection of any such Items of Payment,
which endorsement the Borrower hereby agree to make. In the event the
Borrower fails to do so, the Borrower hereby authorizes the Agent to make
the endorsement in the name of the Borrower. Prior to such a deposit, the
Borrower will not commingle any Items of Payment with the Borrower's other
funds or property, but will hold them separate and apart in trust and for
the account of the Agent for the benefit of the Lenders ratably and the
Agent. The Agent agrees that it shall not demand that the Borrower deposit
or cause to be deposited all Items of Deposit to the Collateral Account at
any time prior to the occurrence of a Borrowing Base Trigger Event. Once
the Agent has so made demand on the Borrower, unless otherwise agreed by
the Agent in writing, the Borrower shall continue to so deposit or cause to
be deposited all Items of Payment to the Collateral Account notwithstanding
that subsequent to such demand the Borrowing Base Trigger Event has been
cured, waived, otherwise remedied or is no longer applicable. (The
Collateral Account).
"Mandatory Liquid Assets Cost Rate" means with respect to each Interest
Period for which the Applicable Interest Rate is the LIBOR Rate the rate
per annum conclusively determined by NationsBank on the first day of such
Interest Period to be that which expresses the prevailing cost to
NationsBank of complying with the requirements for the time being of the
Bank of England in respect of liquidity, reserve assets and special
deposits.
"Multi-employer Plan" means a Plan that is a multi-employer plan as defined
in Section 4001(a)(3) of ERISA.
"NationsBank" means NationsBank, N.A. and its successors and assigns and
shall mean NationsBank, acting through its Sterling LIBOR Lending Office
with respect to all matters relating to the UK Credit Facilities.
"NET OUTSTANDINGS" OF ANY LENDER MEANS, AT ANY TIME, THE SUM OF (A) ALL
AMOUNTS PAID BY SUCH LENDER (OTHER THAN PURSUANT TO SECTION 8.5
INDEMNIFICATION.
Each Lender, severally, agrees to reimburse and indemnify the Agent for and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses, advances or disbursements
including, without limitation, Enforcement Costs, of any kind or nature
whatsoever which may be imposed on, incurred by, or asserted against the
Agent in any way relating to or arising out of this Agreement or any of the
Financing Documents or any action taken or omitted by the Agent under this
Agreement for any of the Financing Documents, in proportion to each
Lender's Pro Rata Share, all of the foregoing as they may arise, be
asserted or be imposed from time to time; provided, however, that no Lender
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses, advances or
disbursements resulting from the Agent's gross negligence or willful
misconduct. The obligations of the Lenders under this SECTION 8.5
INDEMNIFICATION. shall survive the payment in full of the Obligations and
the termination of this Agreemen (Indemnification)) to the Agent in respect
to the Revolving Loan or otherwise under this Agreement, MINUS (b) all
amounts paid by the Agent to such Lender which are received by the Agent
and which, pursuant to this Agreement, are paid over to such Lender for
application in reduction of the outstanding principal balance of the
Revolving Loan.
"Net Casualty Proceeds", when used with respect to any condemnation awards
or insurance proceeds allocable to any Collateral, means the gross proceeds
from any casualty or condemnation remaining after payment of all expenses
(including attorneys' fees) incurred in the collection of such gross
proceeds.
"Net Proceeds" means gross proceeds (cash and non-cash) or other
consideration paid to, or received by, the Borrower, Norwich or any
Subsidiary of the Borrower from (a) any Asset Disposition (including,
without limitation, issuance or assumption of Indebtedness or the issuance
of Securities), net of customary and reasonable settlement costs, fees,
expenses and Taxes payable in connection with such Asset Disposition or (b)
any sale, issuance or other offering of Indebtedness or Securities, net of
customary and reasonable closing costs, fees and expenses.
"Nevada Bond Letter of Credit - NB" means that certain irrevocable letter
of credit issued by the Agent for the account of the Borrower to replace
the Nevada Bond Letter of Credit, as the same may be amended, restated,
reissued, renewed, supplemented, replaced or otherwise modified at any time
and from time to time.
"Nevada Bond Letter of Credit" means that certain irrevocable letter of
credit dated April 21, 1995, issued by Barclays Bank PLC in the original
stated amount of $6,271,233, for the account of the Borrower, for the
benefit of the Manufacturers and Traders Trust Company, as Trustee, and as
security for the Nevada Bonds, as the same may be amended, restated,
reissued, renewed, supplemented, replaced or otherwise modified at any time
and from time to time.
"Nevada Bond Letter of Credit Agreement" means that certain letter of
credit reimbursement agreement by and between the Agent and the Borrower
pursuant to which the Borrower will agree to reimburse the Agent for any
amounts drawn under the Nevada Bond Letter of Credit - NB and to pay
certain fees, interest and other amounts payable to the Agent with respect
to the Nevada Bond Letter of Credit - NB, as the same may be amended,
restated, supplemented, replaced or otherwise modified at any time and from
time to time.
"Nevada Bond Letter of Credit Agreement Documents" means all instruments,
agreements or documents previously, simultaneously or hereafter executed
and delivered by the Borrower, any Guarantor and/or any other Person,
singly or jointly with another Person or Persons, evidencing, securing,
guarantying or in connection with the Nevada Bond Letter of Credit, and/or
any or all of the Nevada Bonds, all as the same may be amended, restated,
supplemented, replaced or otherwise modified at any time and from time to
time.
"Nevada Bond Letter of Credit Agreement Documents - NB" means the Nevada
Bond Letter of Credit Agreement and any other instrument, agreement or
document previously, simultaneously or hereafter executed and delivered by
the Borrower, any Guarantor and/or any other Person, singly or jointly with
another Person or Persons, evidencing, securing, guarantying or in
connection with the Nevada Bond Letter of Credit - NB and/or any or all of
the Nevada Bond Letter of Credit Obligations, all as the same may be
amended, restated, supplemented, replaced or otherwise modified at any time
and from time to time.
"Nevada Bond Letter of Credit Obligations" means the collective reference
to all Obligations of the Borrower under and with respect to the Nevada
Letter of Credit - NB, the Nevada Bond Letter of Credit Agreement, and/or
any of the Nevada Bond Letter of Credit Agreements.
"Nevada Bond Trust Agreement" means that certain trust indenture dated as
of April 1, 1991 by and between the Nevada Trustee and The City of
Henderson, Nevada Public Improvement Trust, relating to the Nevada Bonds,
as amended, restated, supplemented or otherwise modified at any time and
from time to time.
"Nevada Bond Trustee" means Manufacturers and Traders Trust Company, and
its successors and assigns, as trustee under the Nevada Bond Trust
Agreement.
"Nevada Bonds" means the City of Henderson, Nevada Public Improvement Trust
Variable Rate Demand Refunding Bonds (Berry Plastics Corporation Project),
Series 1991, issued by the City of Henderson Nevada Public Improvement
Trust in the original aggregate principal amount of Eight Million Dollars
($8,000,000).
"Non-Ratable Loan" means an advance under the Revolving Loan made by the
Agent in accordance with the provisions of Section (III) NON-RATABLE LOANS
AND PAYMENTS. Between Settlement Dates, the Agent shall request and
NationsBank may (but shall not be obligated to) advance to the Borrower out
of NationsBank's own funds, the entire principal amount of any advance
under the Revolving Loan requested or deemed requested pursuant to Section
(B) PROCEDURE FOR MAKING ADVANCES UNDER THE REVOLVING LOAN. (Procedure for
Making Advances) (any such advance under the Revolving Loan being referred
to as a "Non-Ratable Loan"). The making of each Non-Ratable Loan by
NationsBank shall be deemed to be a purchase by NationsBank of a 100%
participation in each other Lender's Revolving Credit Pro Rata Share of the
amount of such Non-Ratable Loan. All payments of principal, interest and
any other amount with respect to such Non-Ratable Loan shall be payable to
and received by the Agent for the account of NationsBank. Upon demand by
NationsBank, with notice to the Agent, each other Lender shall pay to
NationsBank, as the repurchase of such participation, an amount equal to
100% of such Lender's Revolving Credit Pro Rata Share of the principal
amount of such Non-Ratable Loan. Any payments received by the Agent
between Settlement Dates which in accordance with the terms of this
Agreement are to be applied to the reduction of the outstanding principal
balance of Revolving Loan shall be paid over to and retained by NationsBank
for such application, and such payment to and retention by NationsBank
shall be deemed, to the extent of each other Lender's Revolving Credit Pro
Rata Share of such payment, to be a purchase by each such other Lender of a
participation in the advance under the Revolving Loan (including the
repurchase of participations in Non-Ratable Loans) made by NationsBank.
Upon demand by another Lender, with notice thereof to the Agent,
NationsBank shall pay to the Agent, for the account of such other Lender,
as a repurchase of such participation, an amount equal to such other
Lender's Revolving Credit Pro Rata Share of any such amounts (after
application thereof to the repurchase of any participations of NationsBank
in such other Lender's Revolving Credit Pro Rata Share of any Non-Ratable
Loans) paid only to NationsBank by the Agent. (Settlement Procedures as to
Revolving Loan).
"Norwich" means Norwich Injection Moulders Limited, a company organized and
existing under the laws of England, and its successors and assigns.
"Norwich Stock" means all capital stock issued by Norwich acquired or to be
acquired by Berry UK, all in accordance with the Norwich Stock Purchase
Transaction, together with any and all proceeds and products thereof.
"Norwich Stock Purchase Agreement" means that certain Agreement for the
Sale and Purchase of the Entire Issued Share Capital of Norwich Injection
Moulders Limited dated as of July 1, 1998 by and among Berry UK, the
Borrower and the shareholders of Norwich, 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.
"Norwich Stock Purchase Documents" means collectively the Norwich Stock
Purchase Agreement and any and all other agreements, documents or
instruments, previously, now or hereafter executed and delivered by Berry
UK, the Borrower, or any other Person in connection with the Norwich Stock
Purchase Transaction, as the same may from time to time be amended,
restated, supplemented and modified.
"Norwich Stock Purchase Transaction" means the acquisition of all issued
and outstanding capital stock of Norwich by Berry UK in accordance with the
provisions of the Norwich Stock Purchase Agreement.
"Note" means any Revolving Credit Note, any Term Loan A Note, any Term Loan
B Note, the UK Revolving Credit Note, or the UK Term Note, as the case may
be, and "Notes" means collectively each Revolving Credit Note, each Term
Loan A Note, each Term Loan B Note, the UK Revolving Credit Note, the UK
Term Note, and any other promissory note which may from time to time
evidence all or any portion of the Obligations.
"Obligations" means and includes all present and future indebtedness,
obligations, and liabilities, whether now existing or contemplated or
hereafter arising, of the Borrower, Norwich and/or Berry UK to the Lenders,
NationsBank with respect to the UK Obligations, and/or the Agent under,
arising pursuant to, in connection with and/or on account of the provisions
of this Agreement, each Note, each Security Document, and/or any of the
other Financing Documents, the Loans, and/or any of the Credit Facilities
including, without limitation, the principal of, and interest on, each
Note, late charges, the Fees, Enforcement Costs, and prepayment fees (if
any), letter of credit fees or fees charged with respect to any guaranty of
any letter of credit; also means and includes all other present and future
indebtedness, liabilities and obligations, whether now existing or
contemplated or hereafter arising, of the Borrower, Berry UK, Norwich
and/or any Subsidiary Guarantor to the Agent and/or to any Lender any/or
any of its or their Affiliates under or in connection with, any Interest
Rate/Currency Protection Agreements; and also means any and all renewals,
extensions, substitutions, amendments, restatements and rearrangements of
any such debts, obligations and liabilities. FOR PURPOSES OF THE
INDENTURE, ALL OBLIGATIONS UNDER AND IN CONNECTION WITH THE CREDIT
FACILITIES CONSTITUTE AND ARE HEREBY DEEMED "DESIGNATED SENIOR
INDEBTEDNESS" AS DEFINED IN THE INDENTURE.
"Outstanding Bond Letter of Credit Obligations" has the meaning described
in TERMS OF BOND LETTERS OF CREDIT. (Terms of Bond Letters of Credit).
"Outstanding Letter of Credit Obligations" has the meaning described in
Terms of Letters of Credit; Post-Expiration Date Letters of Credit. (Terms
of Letters of Credit).
"PAC" means PackerWare Acquisition Corporation, a corporation organized and
existing under the laws of the State of Kansas, and its successors and
assigns.
"PackerWare" means PackerWare Corporation, a corporation organized and
existing under the laws of the State of Kansas, and its successors and
assigns.
"PackerWare Merger Agreement" means that certain Agreement and Plan of
Reorganization dated as of January 14, 1997 by and among the Borrower, PAC,
PackerWare and the shareholders of PackerWare immediately prior to
consummation of the PackerWare Merger Transaction, as amended, restated,
supplemented or otherwise modified.
"PackerWare Merger Agreement Documents" means collectively the PackerWare
Merger Agreement and any and all other agreements, documents or instruments
(together with any and all amendments, modifications, and supplements
thereto, restatements thereof, and substitutes therefor) previously, now or
hereafter executed and delivered by the Borrower, PackerWare, PAC, or any
other Person in connection with the PackerWare Merger Transaction.
"PackerWare Merger Transaction" means the merger of PAC with and into
PackerWare in accordance with the provisions of the PackerWare Merger
Agreement.
"Parent" means BPC Holding Corporation, a corporation organized and
existing under the laws of the State of Delaware, and its successors and
assigns.
"Patents" means and includes, in each case whether now existing or
hereafter arising, all of the rights, title and interest of the Borrower,
Berry UK, Norwich and each Subsidiary Guarantor in and to (a) any and all
patents and patent applications, (b) any and all inventions and
improvements described and claimed in such patents and patent applications,
(c) reissues, divisions, continuations, renewals, extensions and
continuations-in-part of any patents and patent applications, (d) income,
royalties, damages, claims and payments now or hereafter due and/or payable
under and with respect to any patents or patent applications, including,
without limitation, damages and payments for past and future infringements,
(e) rights to sue for past, present and future infringements of patents,
and (f) all rights corresponding to any of the foregoing throughout the
world.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Permitted Acquisition" means the acquisition or purchase of, or
investment in, any Person, any operating division or unit of any Person, or
the stock or Assets of any Person or the combination with any Person by the
Borrower or any Subsidiary Guarantor (each individually, a "Subject
Transaction")regardless of the structure of the Subject Transaction,
engaged principally in the lines of business set forth in (G) LINE OF
BUSINESS.
The Borrower, Berry UK and Norwich will continue and, will cause their
Subsidiaries to continue, to engage substantially only in the business of
manufacturing, marketing, selling and distributing plastic products.. (Line
of Business) or in a business reasonably related thereto; provided, however
that:
(i)the aggregate purchase price of, investment in, acquisition expenditures
relating to (excluding customary and reasonable transaction costs), and
assumed Liabilities in connection with, any such Subject Transaction shall
not exceed the lesser of:
(A)the product of (A) the actual EBITDA for the Borrower,
Norwich, Berry UK and each of the Subsidiary Guarantors, calculated on a
consolidated basis, for the then preceding twelve (12) month period after
giving effect to such Subject Transaction (subject to such Pro-forma
adjustments as shall be acceptable to the Agent in its sole and absolute
discretion), and (B) five (5), or
(B)Seven Million Dollars ($7,000,000),
(ii)the aggregate purchase prices of, investments in, acquisition
expenditures relating to (excluding customary and reasonable transaction
costs), and assumed Liabilities in connection with, all Subject
Transactions made on or after the First Closing Date shall not exceed
Thirty Million Dollars ($30,000,000),
(iii)such Subject Transaction shall not otherwise constitute or give rise
to a Default or an Event of Default,
(iv)the Borrower shall have furnished financial projections in form and
content reasonably acceptable to the Agent which give effect to such
Subject Transaction and which project that such Subject Transaction would
not cause a Default or Event of Default (provided that the Agent and the
Lenders agree that such projections shall not constitute a guaranty of
actual performance),
(v)if requested by the Agent or the Requisite Lenders, a Phase I
environmental assessment of any real property to be acquired or purchased
or owned by any Person to be acquired or purchased or owned by any Person
in which the Borrower or any Subsidiary intends to make an investment, has
been performed by a reputable and recognized environmental consulting firm
engaged by the Borrower and reasonably acceptable to the Agent and has
revealed no material Hazardous Materials Contamination or material
violations of any Environmental Laws, the non-remediation of or non-
compliance with which would result in a material Liability not reflected in
the purchase price, if and to the extent the Subject Transaction consists
of the purchase or acquisition of a Person which is to be a Subsidiary of
the Borrower or merged into a Subsidiary of the Borrower created for the
express purpose of consummating the proposed acquisition:
(vi)the Borrower shall execute all documents and take such other actions as
the Agent may reasonably require to grant to the Agent and the Lenders a
first priority Lien on one hundred percent (100%) of the stock of such
Subsidiary (except that with respect to the formation of Berry UK and its
acquisition of Norwich, the Borrower shall be required only to pledge
sixty-five percent (65%) of the stock of Berry UK, as security for all of
the Obligations, excluding the UK Obligations, and to pledge one hundred
percent (100%) of the stock of Berry UK, as security for all of the UK
Obligations, which one hundred percent (100%) pledge shall reduce to sixty-
five percent (65%) at such time as all obligations under the Subordinated
Debt have been paid in full,
(vii)such Subsidiary shall be designated and qualify immediately after the
closing of the Subject Transaction as a Subsidiary Guarantor in accordance
with the terms of Section (B) SUBSIDIARIES. (Subsidiaries), except that
neither Berry UK nor Norwich shall be designated or required to qualify as
a Subsidiary Guarantor,
(viii)after giving effect to any borrowings under the Revolving Loan, if
any, needed to finance the Subject Transaction, the Borrower and the
Subsidiary Guarantors shall have availability under the Revolving Loan in
an amount at least equal to Twenty Million Dollars ($20,000,000) and are
reasonably expected to have such minimum availability for a period of ten
(10) Business Days after closing and consummation of the Subject
Transaction, except that in connection with the Norwich Stock Purchase
Transaction, availability under the Revolving Loan need only be in an
amount at least equal to Fifteen Million Dollars ($15,000,000),
(ix)all legal matters incident to the Subject Transaction shall be
acceptable to the Agent in its reasonable discretion,
(x)the Agent shall have been given no less than thirty (30) days prior
written notice of any proposed Subject Transaction and shall have been
provided with all information which it may have reasonably requested in
connection with such proposed Subject Transaction,
(xi)if requested by the Agent, the Agent shall have received, prior to or
simultaneously with the closing of a Subject Transaction an opinion of
counsel reasonably acceptable to the Agent in all respects covering the
Borrower's or the relevant Subsidiary's, as the case may be, due
incorporation, valid existence, good standing and power and authority to
enter into the documents contemplated by this Agreement and the Subject
Transaction and such other matters as may be reasonably requested by the
Agent,
(xii)unless otherwise agreed by the Requisite Lenders, no Subject
Transaction shall be permitted by the terms of this Agreement if the
Borrower, Berry UK, Norwich and the Subsidiary Guarantors, on a
consolidated basis and taken as a whole, have had, immediately prior to the
date of the closing of such Subject Transaction, three (3) consecutive
months of net operating losses, and
(xiii)the aggregate purchase price of, investment in, acquisition
expenditures relating to (excluding customary and reasonable transaction
costs), and assumed Liabilities in connection with, all Subject
Transactions in any given fiscal year shall not exceed Seven Million
Dollars ($7,000,000); and
(z)the Venture Stock Purchase/Merger Transaction.
The Borrower understands and agrees that the Agent shall have no obligation
or commitment to include any of the assets or properties of any Person
acquired in the Borrowing Base pursuant to a Subject Transaction. The
Agent and the Lenders agree, however, that if after completion and review
of a satisfactory field examination of the Assets and properties which
constitute or are part of a Permitted Acquisition, such Assets and
properties shall be included in the Borrowing Base if the results of such
field examination and audit are reasonably acceptable in all respects to
the Agent in its discretion and such Assets and properties otherwise
satisfy the eligibility criteria for inclusion in the Borrowing Base.
Notwithstanding the foregoing, the Agent and the Lenders agree that the
assets and properties of Berry UK and Norwich shall be included in the UK
Borrowing Base subject to the eligibility criteria set forth in the
definitions of Eligible UK Inventory and Eligible UK Receivables.
"Permitted Asset Disposition" means any one of the following Asset
Dispositions; provided that no such Asset Disposition shall be permitted at
any time following the occurrence of a Default or an Event of Default or if
and to the extent any such Asset Disposition would give rise to a Default
or an Event of Default, unless otherwise agreed in writing by the Requisite
Lenders:
(a)an Asset Disposition which satisfies the following conditions:
(i)the sum of (A) the Net Proceeds to be paid to or received by the
Borrower and/or any Subsidiary with respect to such Asset Disposition, plus
(B) the aggregate amount of all Net Proceeds paid to or received by the
Borrower and/or any or all Subsidiaries, is less than or equal to Five
Hundred Thousand Dollars ($500,000) during any fiscal year, and
(ii)none of the Assets sold under this clause (a) constitute molds used in
the business of the Borrower, Norwich, Berry UK or any Subsidiary
Guarantor.
(b)the sale of, or sale or assignment of lease with respect to,
the property owned by Venture Southeast located in Anderson County, South
Carolina;
(c)sales of Inventory in the ordinary course of business,
(d)the licensing of Patents, Trademarks and/or Copyrights, in the
ordinary course of business,
(e)dispositions of worn, used, surplus or obsolete Equipment in
the ordinary course of business,
(f)dispositions of Assets (including Net Casualty Proceeds) to
the extent such Assets are replaced with Assets of similar kind and
function, provided that the replacement Assets shall be purchased no later
than ninety (90) days following the Asset Disposition, the replacement
Assets (which shall constitute Collateral) shall be free and clear of Liens
other than Permitted Liens that are not Liens securing purchase money or
finance lease arrangements, and the Borrower, Berry UK, Norwich or the
Subsidiary Guarantor, as the case may be, shall give the Agent at least ten
(10) days prior written notice of such Asset Disposition, except for an
Asset Disposition which constitutes a casualty,
(g)intercompany sales, leases or other dispositions of Assets
among and between the Borrower and any and all Subsidiary Guarantors;
provided, that any such Assets sold, leased or otherwise disposed of as
between the Borrower and any and all Subsidiary Guarantors shall remain
subject to the Liens of the Agent and the Lenders under this Agreement and
under the other Financing Documents; no intercompany sales, leases or other
dispositions of Assets among and between Berry UK or Norwich and the
Borrower or any Subsidiary Guarantor shall be permitted without the prior
written consent of the Agent, except that Berry UK and/or Norwich may sell,
lease or otherwise transfer Assets to the Borrower, provided that such
Assets become subject to a first priority perfected Lien of the Agent and
the Lenders (subject only to Permitted Liens) immediately upon any sale or
other transfer.
(h)the sale of any Fixed or Capital Assets acquired by the
Borrower, Berry UK, Norwich or any Subsidiary Guarantor and the leaseback
of such Assets within thirty (30) days of acquisition, but only as
contemplated and required as part of an intended Capital Lease transaction
at the time of acquisition,
(i)the sale of molds by the Borrower, Berry UK, Norwich or any
Subsidiary Guarantor; provided that the aggregate Net Proceeds of any and
all such molds outside the ordinary course of business shall not exceed
Five Hundred Thousand Dollars ($500,000) in any fiscal year,
(j)the termination of the lease for PackerWare's Reno, Nevada
location; provided, that all Assets of PackerWare at such location are
transferred to one or more locations of the Borrower and/or any Subsidiary
Guarantor such that the Agent and the Lenders would have a properly
perfected Lien on, and security interest in, such Assets,
(k)the sale, transfer or other conveyance of the issued and
outstanding capital stock of Venture Southeast and Venture Midwest to the
Borrower, as contemplated by the Venture Stock Purchase/Merger Transaction,
and
(l)transfers made as part of the South Carolina IRB Lease
Transfers.
"Permitted Liens" means: (a) Liens for Taxes (i) which are not delinquent
or (ii) which (1) are being diligently contested in good faith and by
appropriate proceedings, (2) the Borrower, Berry UK, Norwich or the
Subsidiary Guarantor, as appropriate, has the financial ability to pay,
with all penalties and interest, at all times without materially and
adversely affecting the Borrower, Berry UK, Norwich or the Subsidiary
Guarantor, as appropriate, and (3) are not, and will not be with
appropriate filing, the giving of notice and/or the passage of time,
entitled to priority over any Lien of the Agent and/or the Lenders unless
and to the extent that a reserve has been established against the Borrowing
Base (or the UK Borrowing Base, as appropriate) in an amount equal to the
maximum liability under and in connection with such Taxes, which reserve
shall be established by the Agent upon the Borrower's request; (b) deposits
or pledges to secure obligations under workers' compensation, social
security or similar laws, or under unemployment insurance in the ordinary
course of business; (c) Liens securing the Obligations; (d) judgment Liens
to the extent the entry of such judgment does not constitute an Event of
Default under the terms of this Agreement or result in the sale or levy of,
or execution on, any of the Collateral; (e) such other Liens, if any, as
are set forth on SCHEDULE (V) PERFECTION AND PRIORITY OF COLLATERAL.
The Agent and the Lenders have, or upon execution and recording of UCC-1
financing statements and possession of Securities, Documents, Instruments,
Chattel Paper and Instruments will have, and will continue to have as
security for the Obligations (subject to the terms of SECTION 3.7SUBSIDIARY
GUARANTOR ASSETS. (Subsidiary Guarantor Assets) and the terms of (J)
LIMITATIONS ON JOINT AND SEVERAL LIABILITY FOR OBLIGATIONS.(Limitations on
Joint and Several Liability), a valid and perfected Lien on and security
interest in all Collateral (except that the UK Collateral shall secure the
UK Obligations only), free of all other Liens, claims and rights of third
parties whatsoever except Permitted Liens, including, without limitation,
those described on SCHEDULE (V) PERFECTION AND PRIORITY OF COLLATERAL..
attached hereto and made a part hereof; (f) deposits, liens or pledges to
secure payments of unemployment and other insurance, old-age pensions or
other social security obligations, or the performance of bids, tenders,
leases, contracts, public or statutory obligations, surety, stay or appeal
bonds, or other similar obligations arising in the ordinary course of
business; (g) statutory mechanics', workers', repairmen's, warehousemen's,
vendors' or carriers' Liens or other similar statutory Liens arising in the
ordinary course of business and securing sums which are not more than
thirty (30) days past due, provided that such statutory Liens do not
materially impair or affect the use or value of any of the Collateral; (h)
statutory landlord's Liens under leases to which the Borrower, Berry UK,
Norwich or any Subsidiary is a party; (i) zoning restrictions, easements,
rights of way, licenses and restrictions on the use of real property or
minor irregularities in title thereto which do not materially impair the
use or value of any such real property; (j) "Permitted Encumbrances" (as
defined in each of the Deeds of Trust); (k) Liens securing Indebtedness for
Borrowed Money permitted by the provisions of Section (vii) Indebtedness
for Borrowed Money incurred by the Borrower, Norwich, Berry UK or any
Subsidiary Guarantor incurred after the Closing Date; provided, that (i)
such Indebtedness for Borrowed Money is incurred on account of purchase
money or finance lease arrangements of Assets (other than real property)
acquired by the Borrower, Norwich, Berry UK or a Subsidiary Guarantor after
the Closing Date, (ii) each such purchase money or finance lease
arrangement does not exceed the cost of the Assets acquired or leased,
(iii) any Lien securing such purchase money or finance lease arrangement
does not extend to any Assets or property other than that purchased or
leased, and (iv) the aggregate amount of Indebtedness for Borrowed Money
under and in connection with all such purchase money and/or finance lease
arrangements shall not exceed, in the aggregate, the sum of Five Hundred
Thousand Dollars ($500,000); (Indebtedness); (l) Liens securing obligations
under Capital Leases to the extent such Capital Leases are permitted by the
provisions of this Agreement, and (m) any Lien arising under any retention
of title arrangements entered into in the ordinary course of trading and
not entered into primarily for the purposes of securing borrowings.
"Permitted Uses" means (a) the acquisition of one hundred percent (100%) of
the capital stock of PackerWare through the PackerWare Merger Transaction
by the Borrower, (b) the acquisition of one hundred percent (100%) of the
capital stock of Venture Holdings pursuant to the Venture Stock
Purchase/Merger Transaction, (c) the refinancing and payment of all
obligations of the Borrower and/or any of the Subsidiary Guarantors to any
lenders with respect to any Indebtedness for Borrowed Money existing as of
the First Closing Date, (d) the refinancing and payment of all obligations
of Venture Holdings, Venture Southeast and/or Venture Midwest to any
lenders with respect to any Indebtedness for Borrowed Money existing as of
the date of the Second Closing, (e) the payment of all costs and expenses
reasonably incurred in connection with the closing and consummation of the
transactions contemplated by this Agreement, including the PackerWare
Merger, the Venture Stock Purchase/Merger Transaction and/or the Norwich
Stock Purchase Transaction, (f) the payment of expenses incurred in the
ordinary course of business of the Borrower or any Subsidiary Guarantor,
(g) the acquisition of any Permitted Acquisition as and to the extent
permitted by the provisions of this Agreement, (h) the payment of all costs
and expenses reasonably incurred in connection with the closing and
consummation of a Permitted Acquisition, (i) with respect to the UK Credit
Facilities and Term Loans B, the acquisition of one hundred percent (100%)
of the capital stock of Norwich through the Norwich Stock Purchase
Transaction and (j) with respect to the Revolving Loan for general
corporate purposes of the Borrower or any Subsidiary Guarantor and with
respect to the UK Revolving Loan for general corporate purposes of Berry UK
or Norwich.
"Person" means and includes an individual, a corporation, a partnership, a
joint venture, a limited liability company or partnership, a trust, an
unincorporated association, a Governmental Authority, or any other
organization or entity.
"Plan" means any pension plan which is covered by Title IV of ERISA and in
respect of which the Borrower, any Subsidiary of the Borrower or a Commonly
Controlled Entity is an "employer" as defined in Section 3 of ERISA.
"Post-Default Rate" means with respect to the principal balance of any of
the Obligations, the then applicable rate of interest on such Obligations,
plus two percent (2%) per annum.
"Post-Expiration Date Letter of Credit" and "Post-Expiration Date Letters
of Credit" have the meanings described in Section TERMS OF LETTERS OF
CREDIT; POST-EXPIRATION DATE LETTERS OF CREDIT. (Terms of Letters of
Credit).
"Prepayment" means a Revolving Loan Mandatory Prepayment, a Revolving Loan
Optional Prepayment, a Term Loan A Mandatory Prepayment, a Term Loan A
Optional Prepayment, a Term Loan B Mandatory Prepayment, a Term Loan B
Optional Prepayment, a UK Revolving Loan Mandatory Prepayment, a UK
Revolving Loan Optional Prepayment, a UK Term Loan Optional Prepayment or a
UK Term Loan Mandatory Prepayment, as the case may be, and "Prepayments"
mean collectively all Revolving Loan Mandatory Prepayments, all Revolving
Loan Optional Prepayments, all Term Loan A Mandatory Prepayments, all Term
Loan A Optional Prepayments, all Term Loan B Mandatory Prepayments, all
Term Loan B Optional Prepayments, all UK Revolving Loan Mandatory
Prepayments, all UK Revolving Loan Optional Prepayments, all UK Term Loan
Mandatory Prepayments and all UK Term Loan Optional Prepayments.
"Pricing Ratio" means as to the Borrower, Berry UK, Norwich and the
Subsidiary Guarantors, on a consolidated basis, the ratio of (a) Funded
Debt to (b) EBITDA.
"Prime Rate" means the floating and fluctuating per annum prime commercial
lending rate of interest of the Agent, as established by the Agent at any
time or from time to time. The Prime Rate shall be adjusted automatically,
without notice, as of the effective date of any change in such prime
commercial lending rate. The Prime Rate does not necessarily represent the
lowest rate of interest charged by the Agent to borrowers.
"PROPOSED ASSIGNEE" HAS THE MEANING DESCRIBED IN ASSIGNMENTS BY LENDERS.
Any Lender may, with the prior written consent of the Agent and the
Borrower, but without notice to or consent of any other Lender, which
consent shall not be unreasonably withheld, delayed or conditioned, assign
to any Person (each an "Assignee" and collectively, the "Assignees") all or
a portion of such Lender's Commitments; provided that (a) the amount
assigned by such Lender must be at least equal to Five Million Dollars
($5,000,000), (b) after giving effect to such assignment, such Lender must
continue to hold a Pro Rata Share of the Commitments at least equal to Ten
Million Dollars ($10,000,000), unless such Lender has assigned one hundred
percent (100%) of such Lender's Commitments, and (c) any amount assigned
shall be divided pro rata among such Lenders' Pro Rata Share of the
Commitments and Obligations. NationsBank agrees that if at any time
NationsBank sells one hundred percent (100%) of all of its Commitments,
NationsBank shall resign as Agent and the remaining Lenders shall select a
replacement Agent in accordance with the provisions of this Agreement. In
addition, NationsBank agrees that for so long as NationsBank is the Agent,
unless otherwise agreed by the Lenders, NationsBank shall continue to hold
a Pro Rata Share of the Commitments at least equal to the Pro Rata Share of
the Lender (other than NationsBank) having the highest Pro Rata Share of
the Commitments. Any Lender which elects to make such an assignment shall
pay to the Agent, for the exclusive benefit of the Agent, an administrative
fee for processing each such assignment in the amount of Three Thousand
Five Hundred Dollars ($3,500). Such Lender and its Assignee shall notify
the Agent and the Borrower in writing of the date on which the assignment
is to be effective (the "Adjustment Date"). On or before the Adjustment
Date, the assigning Lender, the Agent, the Borrower and the respective
Assignee shall execute and deliver a written assignment agreement in a form
acceptable to the Agent, which shall constitute an amendment to this
Agreement to the extent necessary to reflect such assignment. Upon the
request of any assigning Lender following an assignment made in accordance
with this Assignments by Lenders., the Borrower, Berry UK and Norwich shall
issue new Notes to the assigning Lender and its Assignee reflecting such
assignment, in exchange for the existing Notes held by the assigning
Lender. (Assignments by Lenders).
"Pro-forma Financial Projections" has the meaning described in Section (L)
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 immediately after
consummation of the Norwich Stock Purchase 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 Norwich Stock Purchase 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 the consolidated
financial condition of the Borrower and the Subsidiaries as of immediately
after consummation of the Norwich Stock Purchase 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. (Pro-forma Financial Statements).
"Pro-forma Financial Statements" has the meaning described in Section (l)
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 immediately after
consummation of the Norwich Stock Purchase 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 Norwich Stock Purchase 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 the consolidated
financial condition of the Borrower and the Subsidiaries as of immediately
after consummation of the Norwich Stock Purchase 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. (Pro-forma Financial Statements).
"Pro Rata Share" means at any time and as to any Lender, the percentage
derived by dividing the unpaid principal amount of the Loans, Bond Letter
of Credit Obligations, Letter of Credit Obligations and Special Source Bond
Obligations, owing to that Lender by the aggregate unpaid principal amount
of all Loans, Bond Letter of Credit Obligations, Letter of Credit
Obligations and Special Source Bond Obligations, then outstanding; or if no
Loans, Bond Letter of Credit Obligations, Letter of Credit Obligations or
Special Source Bond Obligations are outstanding, by dividing the total
amount of such Lender's Commitments by the total amount of the Commitments
of the Agent and all of the Lenders.
"Reportable Event" means any of the events set forth in Section 4043(c) of
ERISA or the regulations thereunder.
"Responsible Officer" means for the Borrower, Norwich or Berry UK, as
applicable, its chief executive officer, any vice president or president
or, with respect to financial matters, its chief financial officer.
"Requisite Lenders" means at any time of determination one or more of the
Lenders holding at least fifty-one percent (51%) of the Commitments.
"Reserve Percentage" means, at any time, the then current maximum rate for
which reserves (including any basic, supplemental, marginal and emergency
reserves) are required to be maintained by member banks of the Federal
Reserve System under Regulation D of the Board of Governors of the Federal
Reserve System against "Eurocurrency liabilities", as that term is defined
in Regulation D. The LIBOR Rate shall be adjusted automatically on and as
of the effective date of any change in the Reserve Percentage. The Agent
hereby advises the Borrower and Berry UK that as of the date of this
Agreement, the Reserve Percentage is equal to zero.
"Revolving Credit Commitment" means the agreement of a Lender relating to
the making the Revolving Loan and advances thereunder subject to and in
accordance with the provisions of this Agreement; and "Revolving Credit
Commitments" means the collective reference to the Revolving Credit
Commitment of each of the Lenders.
"Revolving Credit Commitment Period" means the period of time from the
Closing Date to the Business Day preceding the Revolving Credit Termination
Date.
"Revolving Credit Committed Amount" has the meaning described in Section
(A) REVOLVING CREDIT FACILITY.
Subject to and upon the terms of this Agreement, the Lenders collectively,
but severally, establish a revolving credit facility in favor of the
Borrower. The aggregate of all advances under the Revolving Credit
Facility is sometimes referred to in this Agreement collectively as the
"Revolving Loan". (Revolving Credit Facility).
"Revolving Credit Facility" means the facility established by the Lenders
pursuant to SECTION 2.1 THE REVOLVING CREDIT FACILITY. (Revolving Credit
Facility).
"Revolving Credit Note" and "Revolving Credit Notes" have the meanings
described in Section (E) REVOLVING CREDIT NOTES.
The obligation of the Borrower to pay each Lender's Pro Rata Share of the
Revolving Loan, with interest, shall be evidenced by a series of promissory
notes (as from time to time extended, amended, restated, supplemented or
otherwise modified, collectively the "Revolving Credit Notes" and
individually a "Revolving Credit Note"). Each Lender's Revolving Credit
Note shall be dated as of the date of this Agreement, shall be payable to
the order of such Lender at the times provided in the Revolving Credit
Note, and shall be in the principal amount of such Lender's Revolving
Credit Committed Amount. The Borrower acknowledges and agrees that, if the
outstanding principal balance of the Revolving Loan outstanding from time
to time exceeds the aggregate stated amount of the Revolving Credit Notes,
the excess shall bear interest at the rates provided from time to time for
advances under Revolving Loan evidenced by the Revolving Credit Notes and
shall be payable, with accrued interest, ON DEMAND. The Revolving Credit
Notes shall not operate as a novation of any of the Obligations or nullify,
discharge, or release any such Obligations or the continuing contractual
relationship of the parties hereto in accordance with the provisions of
this Agreemen (Revolving Credit Notes).
"Revolving Credit Optional Reduction" and "Revolving Credit Optional
Reductions" have the meanings described in Section (L) OPTIONAL REDUCTION
OF REVOLVING CREDIT COMMITTED AMOUNT (Optional Reduction of Revolving
Credit).
"Revolving Credit Pro Rata Share" has the meaning described in Section (B)
PROCEDURE FOR MAKING ADVANCES UNDER THE REVOLVING LOAN. (Procedure for
Making Advances).
"REVOLVING CREDIT TERMINATION DATE" MEANS THE EARLIER OF (A) JANUARY 21,
2002, (B) THE REPAYMENT OR PREPAYMENT OF THE TERM LOANS IN FULL, (C) THE
DATE ON WHICH THE REVOLVING CREDIT COMMITMENTS ARE TERMINATED PURSUANT TO
SECTION 7.2 REMEDIES.
Upon the occurrence of any Event of Default, the Agent and/or NationsBank,
as applicable, may, in the exercise of its sole and absolute discretion
from time to time, and shall, at the direction of the Requisite Lenders, at
any time thereafter exercise any one or more of the following rights,
powers or remedies: (Remedies) or otherwise.
"Revolving Credit Unused Line Fee" and "Revolving Credit Unused Line Fees"
have the meanings described in Section (J) REVOLVING CREDIT UNUSED LINE
FEE.
The Borrower shall pay to the Agent for the ratable benefit of the Lenders
a quarterly Revolving Credit Facility fee (collectively, the "Revolving
Credit Unused Line Fees" and individually, a "Revolving Credit Unused Line
Fee") in an amount equal to thirty (30) basis points per annum (calculated
on the basis of actual number of days elapsed in a year of 360 days) and
calculated on average daily unused and undisbursed portion of the Total
Revolving Credit Committed Amount,, each as in effect from time to time
accruing during each quarterly period. The accrued and unpaid Revolving
Credit Unused Line Fee shall be paid by the Borrower to the Agent on the
first day of each quarter, in arrears, commencing on the first such date
following the date hereof, and on the Revolving Credit Termination Date.
(Revolving Credit Unused Line Fee).
"Revolving Loan" has the meaning described in Section (A) REVOLVING CREDIT
FACILITY.
Subject to and upon the terms of this Agreement, the Lenders collectively,
but severally, establish a revolving credit facility in favor of the
Borrower. The aggregate of all advances under the Revolving Credit
Facility is sometimes referred to in this Agreement collectively as the
"Revolving Loan". (Revolving Credit Facility).
"Revolving Loan Account" has the meaning described in SECTION (I) REVOLVING
LOAN ACCOUNT.
The Agent will establish and maintain a loan account on its books (the
"Revolving Loan Account") to which the Agent will (a) DEBIT (i) the
principal amount of each advance under the Revolving Loan made by the
Lenders hereunder as of the date made, (ii) the amount of any interest
accrued on the Revolving Loan as and when due, and (iii) any other amounts
due and payable by the Borrower to the Agent and/or the Lenders from time
to time under the provisions of this Agreement in connection with the
Revolving Loan, including, without limitation, Enforcement Costs, Fees,
late charges, and service, collection and audit fees, as and when due and
payable, and (b) CREDIT all payments made by the Borrower to the Agent on
account of the Revolving Loan as of the date made including, without
limitation, funds credited to the Revolving Loan Account from the
Collateral Account. The Agent may debit the Revolving Loan Account for the
amount of any Item of Payment that is returned to the Agent unpaid. All
credit entries to the Revolving Loan Account are conditional and shall be
readjusted as of the date made if final and indefeasible payment is not
received by the Agent in cash or solvent credits. The Borrower hereby
promises to pay to the order of the Agent for the ratable benefit of the
Lenders, on the Revolving Credit Termination Date, an amount equal to the
excess, if any, of all debit entries over all credit entries recorded in
the Revolving Loan Account under the provisions of this Agreement. Any and
all periodic or other statements or reconciliations, and the information
contained in those statements or reconciliations, of the Revolving Loan
Account shall be presumed conclusively to be correct, and shall constitute
an account stated between the Agent, the Lenders and the Borrower unless
the Agent receives specific written objection thereto from the Borrower
and/or any Lender within thirty (30) Business Days after such statement or
reconciliation shall have been sent by the Agent. Any and all periodic or
other statements or reconciliations, and the information contained in those
statements or reconciliations, of the Revolving Loan Account shall be
final, binding and conclusive upon the Borrower in all respects, absent
manifest error, unless the Agent receives specific written objection
thereto from the Borrower within thirty (30) Business Days after such
statement or reconciliation shall have been sent by the Agent. (Revolving
Loan Account).
"Revolving Loan Mandatory Prepayment" and "Revolving Loan Mandatory
Prepayments" have the meanings described in Section (F) MANDATORY
PREPAYMENTS OF REVOLVING LOAN.
Subject to the provisions of Section (D) INDEMNITY. (Indemnity) and in
addition to any mandatory prepayment required by the provisions of Section
(C) MANDATORY PREPAYMENTS OF TERM LOANS A. (Term Loan Mandatory
Prepayments), upon the request of the Agent pursuant to Section (C)
BORROWING BASE. (Borrowing Base) or Section 2.1.13 (Required Availability
under the Revolving Credit Facility), the Borrower shall make mandatory
prepayments (each a "Revolving Loan Mandatory Prepayment" and collectively,
the "Revolving Loan Mandatory Prepayments") of the Revolving Loan at any
time and from time to time in order to cover any Borrowing Base Deficiency
or to ensure compliance with Section 2.1.13, as applicable. (Mandatory
Prepayments).
"Revolving Loan Optional Prepayment" and "Revolving Loan Optional
Prepayments" have the meanings described in Section (G) OPTIONAL
PREPAYMENTS OF REVOLVING LOAN.
Subject to the provisions of Section (D) INDEMNITY. (Indemnity), the
Borrower shall have the option at any time and from time to time prepay
(each a "Revolving Loan Optional Prepayment" and collectively the
"Revolving Loan Optional Prepayments") the Revolving Loan, in whole or in
part without premium or penalty. Revolving Loan Optional Prepayments shall
be made following a timely and proper written notice to the Agent with
respect thereto specifying the date and amount of any intended Revolving
Loan Optional Prepayment. The amount to be prepaid shall be paid by the
Borrower to the Agent on the date specified for such prepayment. Any
amounts repaid or prepaid may be readvanced and reborrowed subject to the
provisions of this Agreemen (Optional Prepayments of Revolving Loan).
"RIGHT OF FIRST REFUSAL NOTICE" HAS THE MEANING DESCRIBED IN ASSIGNMENTS BY
LENDERS.
Any Lender may, with the prior written consent of the Agent and the
Borrower, but without notice to or consent of any other Lender, which
consent shall not be unreasonably withheld, delayed or conditioned, assign
to any Person (each an "Assignee" and collectively, the "Assignees") all or
a portion of such Lender's Commitments; provided that (a) the amount
assigned by such Lender must be at least equal to Five Million Dollars
($5,000,000), (b) after giving effect to such assignment, such Lender must
continue to hold a Pro Rata Share of the Commitments at least equal to Ten
Million Dollars ($10,000,000), unless such Lender has assigned one hundred
percent (100%) of such Lender's Commitments, and (c) any amount assigned
shall be divided pro rata among such Lenders' Pro Rata Share of the
Commitments and Obligations. NationsBank agrees that if at any time
NationsBank sells one hundred percent (100%) of all of its Commitments,
NationsBank shall resign as Agent and the remaining Lenders shall select a
replacement Agent in accordance with the provisions of this Agreement. In
addition, NationsBank agrees that for so long as NationsBank is the Agent,
unless otherwise agreed by the Lenders, NationsBank shall continue to hold
a Pro Rata Share of the Commitments at least equal to the Pro Rata Share of
the Lender (other than NationsBank) having the highest Pro Rata Share of
the Commitments. Any Lender which elects to make such an assignment shall
pay to the Agent, for the exclusive benefit of the Agent, an administrative
fee for processing each such assignment in the amount of Three Thousand
Five Hundred Dollars ($3,500). Such Lender and its Assignee shall notify
the Agent and the Borrower in writing of the date on which the assignment
is to be effective (the "Adjustment Date"). On or before the Adjustment
Date, the assigning Lender, the Agent, the Borrower and the respective
Assignee shall execute and deliver a written assignment agreement in a form
acceptable to the Agent, which shall constitute an amendment to this
Agreement to the extent necessary to reflect such assignment. Upon the
request of any assigning Lender following an assignment made in accordance
with this ASSIGNMENTS BY LENDERS., the Borrower, Berry UK and Norwich shall
issue new Notes to the assigning Lender and its Assignee reflecting such
assignment, in exchange for the existing Notes held by the assigning
Lender. (Assignments by Lenders).
"Second Closing Date" means August 29, 1997.
"Securities" means the collective reference to each and every certificated
or uncertificated security which constitutes a "security" under the
provisions of Title 8 of the Uniform Commercial Code, and all proceeds
(cash and non-cash) of the foregoing and to each and every "investment
property" under the provisions of Title 9 of the Uniform Commercial Code
(if that definition is included in that Title), and all proceeds (cash and
non-cash) of the foregoing.
"Security Agreement" means (a) that certain security agreement dated as of
the First Closing Date from PackerWare, BIC, BTP, Berry Sterling and
AeroCon, Inc. to the Agent for the benefit of the Lenders, ratably, and the
Agent, (b) that certain security agreement dated May 13, 1997 from Berry
Design to the Agent for the benefit of the Lenders, ratably, and the Agent,
and (c) that certain security agreement dated as of the Second Closing Date
from Berry Venture, Venture Southeast and Venture Midwest, all as amended,
restated, supplemented or otherwise modified in writing at any time and
from time to time.
"Security Documents" means collectively any assignment, pledge agreement,
security agreement, mortgage, deed of trust, deed to secure debt, financing
statement and any similar instrument, document or agreement under or
pursuant to which a Lien is now or hereafter granted to, or for the benefit
of, the Agent and/or the Lenders on any real or personal property of any
Person to secure all or any portion of the Obligations, all as the same may
from time to time be amended, restated, supplemented or otherwise modified,
including, without limitation, this Agreement, the Guaranty, the Stock
Pledge Agreement, the Deeds of Trust, the Security Agreement, the
Assignment of Patents and the Assignment of Trademarks, the Special Source
Security Agreement, the UK Stock Pledge Agreement, and the UK Security
Documents.
"Security Procedures" means the rules, policies and procedures adopted and
implemented by the Agent and its Affiliates at any time and from time to
time with respect to security procedures and measures relating to
electronic funds transfers, all as the same may be amended, restated,
supplemented, terminated, or otherwise modified at any time and from time
to time by the Agent in its sole and absolute discretion.
"Seller" means all of the shareholders of PackerWare immediately prior to
consummation of the PackerWare Merger, all of the shareholders of Venture
Holdings immediately prior to consummation of the Venture Stock
Purchase/Merger Transaction and all shareholders of Norwich immediately
prior to consummation of the Norwich Stock Purchase Transaction.
"Senior Secured Debt - Parent" means that certain Indebtedness for Borrowed
Money of the Parent (and all guarantees thereof by the Borrower and its
Subsidiaries) in favor of First Trust of New York, National Association, as
trustee for the holders of the 12-1/2% Series A Senior Secured Notes due
2006 and the 12-1/2% Series B Secured Notes due 2006 in a stated principal
amount of One Hundred Five Million Dollars ($105,000,000).
"Senior Secured Debt Loan Documents" means any and all promissory notes,
agreements, documents or instruments now or at any time evidencing,
securing, guarantying or otherwise executed and delivered in connection
with the Senior Secured Debt - Parent, as the same may from time to time be
amended, restated, supplemented or modified.
"Settlement Date" means each Business Day after the Closing Date selected
by the Agent in its sole discretion subject to and in accordance with the
provisions of Section (I) IN GENERAL. To the extent and in the manner
hereinafter provided in this Section (C) SETTLEMENT PROCEDURES AS TO
REVOLVING LOAN., settlement among the Lenders as to the Revolving Loan may
occur periodically on Settlement Dates determined from time to time by the
Agent, which may occur before or after the occurrence or during the
continuance of a Default or Event of Default and whether or not all of the
conditions set forth in Section 5.2 CONDITIONS TO ALL EXTENSIONS OF CREDIT.
(Conditions to All Extensions of Credit) have been met. On each Settlement
Date payments shall be made by or to the Lenders in the manner provided in
this Section (C) SETTLEMENT PROCEDURES AS TO REVOLVING LOAN. in accordance
with the Settlement Report delivered by the Agent pursuant to the
provisions of this Section (C) SETTLEMENT PROCEDURES AS TO REVOLVING LOAN.
in respect of such Settlement Date so that as of each Settlement Date, and
after giving effect to the transactions to take place on such Settlement
Date, each Lender's Net Outstandings shall equal such Lender's Revolving
Credit Pro Rata Share of the Revolving Loan outstanding. (Settlement
Procedures) as of which a Settlement Report is delivered by the Agent and
on which settlement is to be made among the Lenders in accordance with the
provisions of Section (C) SETTLEMENT PROCEDURES AS TO REVOLVING LOAN.
(Settlement Procedures).
"Settlement Report" means each report prepared by the Agent and delivered
to each Lender and setting forth, among other things, as of the Settlement
Date indicated thereon and as of the next preceding Settlement Date, the
aggregate outstanding principal balance of the Revolving Loan, each
Lender's Pro Rata Share thereof, each Lender's Net Outstandings and all
Non-Ratable Loans made, and all payments of principal, interest and Fees
received by the Agent from the Borrower during the period beginning on such
next preceding Settlement Date and ending on such Settlement Date.
"South Carolina Bond Letter of Credit" means that certain irrevocable
letter of credit dated April 20, 1995, issued by Bank One, Cleveland, NA in
the original amount of $8,427,637, for the account of Venture Southeast,
for the benefit of Bank One Trust Company, NA, as trustee, and as security
for the South Carolina Bonds, as the same may be amended, restated,
reissued, renewed, supplemented, replaced or otherwise modified at any time
and from time to time.
"South Carolina Bond Letter of Credit - NB" means that certain irrevocable
letter of credit issued or to be issued by the Agent for the account of the
Borrower or Venture Southeast as security for the South Carolina Bond
Letter of Credit, as the same may be amended, restated, reissued, renewed,
supplemented, replaced or otherwise modified at any time and from time to
time. Subsequent to the date hereof, but on or before the expiration date
of the South Carolina Bond Letter of Credit, the Agent intends to issue an
irrevocable letter of credit to replace the South Carolina Bond Letter of
Credit, in which case the term "South Carolina Bond Letter of Credit - NB"
shall mean such replacement letter of credit, as the same may be amended,
restated, reissued, renewed, supplemented, replaced or otherwise modified
at any time and from time to time.
"South Carolina Bond Letter of Credit Agreement" means that certain letter
of credit reimbursement agreement by and between the Agent and the Borrower
pursuant to which the Borrower will agree to reimburse the Agent for any
amounts drawn under the South Carolina Bond Letter of Credit - NB and to
pay certain fees, interest and other amounts payable to the Agent with
respect to the South Carolina Bond Letter of Credit - NB, as the same may
be amended, restated, supplemented, replaced or otherwise modified at any
time and from time to time.
"South Carolina Bond Letter of Credit Agreement Documents - Bonds" means
all instruments, agreements or documents previously, simultaneously or
hereafter executed and delivered by the Borrower, any Guarantor and/or any
other Person, singly or jointly with another Person or Persons, evidencing,
securing, guarantying or in connection with the South Carolina Bond Letter
of Credit and/or any or all of the South Carolina Bonds, all as the same
may be amended, restated, supplemented, replaced or otherwise modified at
any time and from time to time.
"South Carolina Bond Letter of Credit Agreement Documents - NB" means the
South Carolina Bond Letter of Credit Agreement and any other instrument,
agreement or document previously, simultaneously or hereafter executed and
delivered by the Borrower, any Guarantor and/or any other Person, singly or
jointly with another Person or Persons, evidencing, securing, guarantying
or in connection with the South Carolina Bond Letter of Credit - NB and/or
any or all of the South Carolina Bond Letter of Credit Obligations, all as
the same may be amended, restated, supplemented, replaced or otherwise
modified at any time and from time to time.
"South Carolina Bond Letter of Credit Obligations" means the collective
reference to all Obligations of the Borrower under and with respect to the
South Carolina Letter of Credit - NB, the South Carolina Bond Letter of
Credit Agreement, and/or any of the South Carolina Bond Letter of Credit
Agreement Documents.
"South Carolina Bond Trust Agreement" means that certain trust indenture
dated as of April 1, 1995 by and among the South Carolina Bond Trustee and
the South Carolina Jobs - Economic Development Authority relating to the
South Carolina Bonds, as amended, restated, supplemented or otherwise
modified at any time and from time to time.
"South Carolina Bond Trustee" means Bank One Trust Company, NA, and its
successors and assigns, as trustee under the South Carolina Bond Trust
Agreement.
"South Carolina Bonds" means the South Carolina Jobs - Economic Development
Authority, Adjustable Rate Bonds, Series 1995 (Venture Packaging, Inc.
Project) issued by the South Carolina Jobs - Economic Development Authority
in the original aggregate principal amount of Eight Million Three Hundred
Twenty-five Thousand Dollars ($8,325,000).
"South Carolina IRB" means the Anderson County, South Carolina Industrial
Revenue Bonds, Series 1995 (Venture Packaging Southeast, Inc. Project).
"South Carolina IRB Lease Agreement" means that certain First Amended Lease
Agreement dated as of January 18, 1996, between Anderson County, South
Carolina and Venture Holdings.
"South Carolina IRB Lease Purchase Option" means the option of Venture
Southeast to purchase the assets subject to the South Carolina IRB Lease
Agreement pursuant to Section 10.02 of the South Carolina IRB Lease
Agreement.
"South Carolina IRB Lease Transfers" means transfers of capital assets
related to the real property covered by the Deed of Trust - Anderson and,
pursuant to the terms of the South Carolina IRB Lease Agreement required to
be transferred to the lessor and leased to the lessee under the South
Carolina IRB Lease Agreement.
"Special Source Bond" means that certain $875,000 Anderson County, South
Carolina Special Source Revenue Bond, Series 1995 (Venture Packaging
Southeast, Inc. Project) (the "Special Source Bond").
"Special Source Bond Assignment" means that certain Assignment, Assumption
and Consent Agreement by and among the Borrower, Bank One, Cleveland, N.A.
and NationsBank dated as of August 29, 1997, as the same may be amended,
restated, supplemented or otherwise modified at any time and from time to
time.
"Special Source Bond Commitment" means the agreement of the Agent to
purchase the Special Source Bond and the agreement of each Lender to
purchase a participating interest in the Special Source Bond Obligations,
all subject to and in accordance with the provisions of this Agreement.
"Special Source Bond Documents" means any and all agreements, documents and
instruments which evidence, secure, guaranty or otherwise relate to the
Special Source Bond and/or any or all of the Special Source Bond
Obligations, including, without limitation, the Special Source Bond, the
Special Source Bond Guaranty, and the Special Source Bond Security
Agreement, as the same may be amended, restated, supplemented or otherwise
modified at any time and from time to time.
"Special Source Bond Facility" has the meaning given such term in SECTION
2.6 THE SPECIAL SOURCE BOND FACILITY..1 (The Special Source Bond Facility).
"Special Source Bond Guaranty" means that certain Guaranty of Payment
Agreement - Bond Purchase Obligations dated as of August 29, 1997 from the
Borrower and the Subsidiary Guarantors, as the same may be amended,
restated, supplemented or otherwise modified.
"Special Source Bond Interest Rate" shall have the meaning given such term
in Section (B) CURRENT TERMS OF SPECIAL SOURCE BOND.(Current Terms of
Special Source Bond).
"Special Source Bond Issuer" means Anderson County, South Carolina, and its
successors and assigns.
"Special Source Bond Maturity Date" shall have the meaning given such term
in Section (B) CURRENT TERMS OF SPECIAL SOURCE BOND.(Current Terms of
Special Source Bond).
"Special Source Bond Obligations" means any and all obligations of the
Borrower and each of the Subsidiary Guarantors under and in connection with
the Special Source Bond, including, without limitation, principal and
interest.
"Special Source Bond Security Agreement" means that certain Security
Agreement dated as of August 29, 1997 from the Borrower and the Subsidiary
Guarantors, as the same may be amended, restated, supplemented or otherwise
modified.
"Special Source Bond Settlement Date" has the meaning given such term in
Section (D)PARTICIPATIONS IN THE SPECIAL SOURCE BOND
OBLIGATIONS.(Participations in the Special Source Bond Obligations).
"State" means the State of Maryland.
"Sterling" means British Pounds Sterling.
"Sterling Interest Period" means as to any Sterling LIBOR Loan, the period
commencing on and including the date such Sterling LIBOR Loan is made and
ending on and including the day which is 7 30, 60 or 90 days thereafter, as
selected by Berry UK or Norwich in accordance with the provisions of this
Agreement, and thereafter, each period commencing on the last day of the
then preceding Sterling Interest Period for such Sterling LIBOR Loan and
ending on and including the day which is 7 30, 60 or 90 days thereafter, as
selected by Berry UK or Norwich in accordance with the provisions of this
Agreement; provided, however, that:
(a)the first day of any Sterling Interest Period shall be a
Business Day;
(b)if any Sterling Interest Period would end on a day that is not
a Business Day, such Sterling Interest Period shall be extended to the next
succeeding Business Day unless such next succeeding Business Day would fall
in the next calendar month in which case, such Sterling Interest Period
shall end on the next preceding Business Day;
(c)no Sterling Interest Period shall extend beyond the UK
Revolving Credit Termination Date or the scheduled maturity date of the UK
Term Loan; and
(d)no Sterling Interest Period greater than 30 days may be
selected by Berry UK or Norwich for any Sterling LIBOR Loan made under the
UK Revolving Credit Facility and no Sterling Interest Period which is less
than 30 days may be selected by Berry UK for the UK Term Loan.
"Sterling LIBOR Lending Office" means with respect to NationsBank such
branch or office of NationsBank as designated by NationsBank in the United
Kingdom from time to time as the branch or office through which the
Sterling LIBOR Loans are to be made or maintained.
"Sterling LIBOR Base Rate" means for any Sterling Interest Period with
respect to any Sterling LIBOR Loan, the rate per annum (rounded upward, if
necessary, to the nearest next 1/100 of 1%) appearing on Telerate Page 3750
(or any successor page) as the London interbank offered rate for deposits
in Sterling at approximately 11:00 a.m. (London time) on the first Business
Day of the Sterling Interest Period for a term comparable to such Sterling
Interest Period. If for any reason such rate is not available, the term
"Sterling LIBOR Base Rate" shall mean, for any Sterling LIBOR Loan for any
Sterling Interest Period, therefor, the rate per annum (rounded upward, if
necessary, to the nearest 1/100 of 1%) appearing on Reuters Screen LIBO
Page as the London interbank offered rate for deposits in Sterling at
approximately 11:00 a.m. (London time) on the first Business Day of the
Sterling Interest Period; PROVIDED, HOWEVER, if more than one rate is
specified on Reuters Screen LIBO page, the applicable rate shall be the
arithmetic mean of all such rates. For purposes of this definition,
Telerate Page 3750 refers to the British Bankers' Association LIBOR Rates
(determined at approximately 11:00 a.m. (London time) that are published by
Dow Jones Telerate, Inc.
"Sterling LIBOR Loan" means any Loan for which interest is to be computed
with reference to the Sterling LIBOR Rate.
"Sterling LIBOR Rate" means for any Sterling Interest Period with respect
to any Sterling LIBOR Loan, (a) the Sterling LIBOR Base Rate, plus (b) the
Applicable Margin, PLUS (c) the Mandatory Liquid Assets Cost Rate for such
Sterling Interest Period
"Stock Pledge Agreement" means (a) that certain stock pledge, assignment
and security agreement dated as of the First Closing Date from the Borrower
to the Agent for the benefit of the Lenders ratably and the Agent, (b) that
certain stock pledge, assignment and security agreement dated as of May 13,
1997 from the Borrower to the Agent for the benefit of the Lenders ratably
and the Agent, (c) that certain stock pledge, assignment and security
agreement dated as of the Second Closing Date from the Borrower to the
Agent for the benefit of the Lenders ratably and the Agent, and (d) the UK
Stock Pledge Agreement, all as the same may from time to time be amended,
restated, supplemented or otherwise modified, which Stock Pledge Agreement
(other than the UK Stock Pledge Agreement) grants, pledges and assigns to
the Agent for the benefit of the Lenders ratably and the Agent, a first
priority pledge and assignment of one hundred percent (100%) of the capital
stock of each Subsidiary Guarantor and which UK Stock Pledge Agreement
grants, pledges and assigns to NationsBank, a pledge and assignment of one
hundred percent (100%) of the capital stock of Berry UK (which one hundred
percent (100%) pledge reduces to sixty-five percent (65%) at such time as
all obligations under the Subordinated Debt have been paid in full) and
grants, pledges and assigns to the Agent for the benefit of the Lenders
ratably and the Agent, a pledge and assignment of sixty-five percent (65%)
of the capital stock of Berry UK.
"Stockholder's Equity" means as to the Borrower, Berry UK, Norwich and each
of the Subsidiary Guarantors, on a consolidated basis, for any date of
determination thereof, the total of capital stock (except treasury stock
and net of any note receivable received upon the issuance of any shares of
capital stock) and contributed capital, as determined in accordance with
GAAP consistently applied, after eliminating all intercompany items.
"Subordinated Debt" means that certain Indebtedness for Borrowed Money of
the Borrower (and all guarantees thereof by the Borrower and its
Subsidiaries) in favor of United States Trust Company of New York, as
trustee for the holders of the 12-1/4% Senior Subordinated Notes due 2004
in a stated principal amount of One Hundred Million Dollars ($100,000,000).
"Subordinated Debt Loan Documents" means any and all promissory notes,
agreements, documents or instruments now or at any time evidencing,
securing, guarantying or otherwise executed and delivered in connection
with the Subordinated Debt, as the same may from time to time be amended,
restated, supplemented or modified.
"Subordinated Indebtedness" means all Indebtedness, including, without
limitation, the Subordinated Debt, incurred at any time by the Borrower as
and to the extent permitted by the provisions of Section (D) INDEBTEDNESS.
Neither the Borrower, Berry UK nor Norwich will create, incur, assume or
suffer to exist, or permit any Subsidiary to create, incur, assume or
suffer to exist, any Indebtedness for Borrowed Money, except
(Indebtedness), which is subordinated to the Obligations, as set forth in
one or more written agreements, all in form and substance satisfactory to
the Agent in its reasonable discretion. The Agent and the Lenders agree
that Subordinated Indebtedness does not include the Senior Secured Debt -
Parent.
"SUBSTITUTE PURCHASER" HAS THE MEANING DESCRIBED IN ASSIGNMENTS BY LENDERS.
Any Lender may, with the prior written consent of the Agent and the
Borrower, but without notice to or consent of any other Lender, which
consent shall not be unreasonably withheld, delayed or conditioned, assign
to any Person (each an "Assignee" and collectively, the "Assignees") all or
a portion of such Lender's Commitments; provided that (a) the amount
assigned by such Lender must be at least equal to Five Million Dollars
($5,000,000), (b) after giving effect to such assignment, such Lender must
continue to hold a Pro Rata Share of the Commitments at least equal to Ten
Million Dollars ($10,000,000), unless such Lender has assigned one hundred
percent (100%) of such Lender's Commitments, and (c) any amount assigned
shall be divided pro rata among such Lenders' Pro Rata Share of the
Commitments and Obligations. NationsBank agrees that if at any time
NationsBank sells one hundred percent (100%) of all of its Commitments,
NationsBank shall resign as Agent and the remaining Lenders shall select a
replacement Agent in accordance with the provisions of this Agreement. In
addition, NationsBank agrees that for so long as NationsBank is the Agent,
unless otherwise agreed by the Lenders, NationsBank shall continue to hold
a Pro Rata Share of the Commitments at least equal to the Pro Rata Share of
the Lender (other than NationsBank) having the highest Pro Rata Share of
the Commitments. Any Lender which elects to make such an assignment shall
pay to the Agent, for the exclusive benefit of the Agent, an administrative
fee for processing each such assignment in the amount of Three Thousand
Five Hundred Dollars ($3,500). Such Lender and its Assignee shall notify
the Agent and the Borrower in writing of the date on which the assignment
is to be effective (the "Adjustment Date"). On or before the Adjustment
Date, the assigning Lender, the Agent, the Borrower and the respective
Assignee shall execute and deliver a written assignment agreement in a form
acceptable to the Agent, which shall constitute an amendment to this
Agreement to the extent necessary to reflect such assignment. Upon the
request of any assigning Lender following an assignment made in accordance
with this ASSIGNMENTS BY LENDERS., the Borrower, Berry UK and Norwich shall
issue new Notes to the assigning Lender and its Assignee reflecting such
assignment, in exchange for the existing Notes held by the assigning
Lender. (Assignments by Lenders).
"Subsidiary" means with respect to any Person, any other Person owning the
majority of the voting shares of such first Person.
"Subsidiary Guarantor" means BIC, BTP, AeroCon, Berry Sterling, PackerWare,
Berry Design, Berry Venture, Venture Southeast, Venture Midwest 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 (B) SUBSIDIARIES. (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, 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,
and all of their respective successors and assigns.
"Tangible Capital Funds" means as to the Borrower, Berry UK, Norwich and
each of the Subsidiary Guarantors, on a consolidated basis, for any date of
determination thereof, the total of (a) all Stockholder's Equity, less (b)
all Assets which would be classified as intangible assets under GAAP
consistently applied, plus (c) Subordinated Indebtedness.
"Taxes" means all taxes and assessments whether general or special,
ordinary or extraordinary, or foreseen or unforeseen, of every character
(including all penalties or interest thereon), which at any time shall be
assessed, levied, confirmed or imposed by any Governmental Authority on the
Borrower, any Subsidiary Guarantor, Berry UK, Norwich or any of its or
their properties or Assets or any part thereof or in respect of any of its
or their franchises, businesses, income or profits.
"Term Loan A" and "Term Loans A" have the meanings described in THE TERM
LOAN A FACILITY. (Term Loan A Facility).
"Term Loan B" and "Term Loans B" have the meanings described in Section
(A) TERM LOAN B COMMITMENTS.
Subject to and upon the terms of this Agreement, each Lender severally
agrees to make a loan (each a "Term Loan B"; and collectively, the "Term
Loans B") to the Borrower in the principal amount set forth below opposite
such Lender's name (herein called such Lender's "Term Loan B Committed
Amount"). The total of each Lender's Term Loan B Committed Amount is
herein called the "Total Term Loan B Committed Amount". The proportionate
share set forth below opposite each Lender's name is herein called such
Lender's "Term Loan B Pro Rata Share": (Term Loan B Commitments).
"Term Loan A Commitment" and "Term Loan A Commitments" have the meanings
described in Section (A) TERM LOAN A COMMITMENTS.
Subject to and upon the terms of this Agreement, each Lender severally
agrees to make a loan (each a "Term Loan A"; and collectively, the "Term
Loans A") to the Borrower in the principal amount set forth below opposite
such Lender's name (herein called such Lender's "Term Loan A Committed
Amount"). The total of each Lender's Term Loan A Committed Amount is
herein called the "Total Term Loan A Committed Amount". The proportionate
share set forth below opposite each Lender's name is herein called such
Lender's "Term Loan A Pro Rata Share": (Term Loan A Commitments).
"Term Loan B Commitment" and "Term Loan B Commitments" have the meanings
described in Section (A) TERM LOAN B COMMITMENTS.
Subject to and upon the terms of this Agreement, each Lender severally
agrees to make a loan (each a "Term Loan B"; and collectively, the "Term
Loans B") to the Borrower in the principal amount set forth below opposite
such Lender's name (herein called such Lender's "Term Loan B Committed
Amount"). The total of each Lender's Term Loan B Committed Amount is
herein called the "Total Term Loan B Committed Amount". The proportionate
share set forth below opposite each Lender's name is herein called such
Lender's "Term Loan B Pro Rata Share": (Term Loan B Commitments).
"Term Loan A Committed Amount" has the meaning described in Section (A)
TERM LOAN A COMMITMENTS.
Subject to and upon the terms of this Agreement, each Lender severally
agrees to make a loan (each a "Term Loan A"; and collectively, the "Term
Loans A") to the Borrower in the principal amount set forth below opposite
such Lender's name (herein called such Lender's "Term Loan A Committed
Amount"). The total of each Lender's Term Loan A Committed Amount is
herein called the "Total Term Loan A Committed Amount". The proportionate
share set forth below opposite each Lender's name is herein called such
Lender's "Term Loan A Pro Rata Share": (Term Loan A Commitments).
"Term Loan B Committed Amount" has the meaning described in Section (A)
TERM LOAN B COMMITMENTS.
Subject to and upon the terms of this Agreement, each Lender severally
agrees to make a loan (each a "Term Loan B"; and collectively, the "Term
Loans B") to the Borrower in the principal amount set forth below opposite
such Lender's name (herein called such Lender's "Term Loan B Committed
Amount"). The total of each Lender's Term Loan B Committed Amount is
herein called the "Total Term Loan B Committed Amount". The proportionate
share set forth below opposite each Lender's name is herein called such
Lender's "Term Loan B Pro Rata Share": (Term Loan B Commitments).
"Term Loan A Facility" means the facility established by the Lenders
pursuant to THE TERM LOAN A FACILITY. (Term Loan A Facility).
"Term Loan B Facility" means the facility established by the Lenders
pursuant to TERM LOAN B FACILITY. (Term Loan B Facility).
"Term Loan B Fee" and "Term Loan B Fees" have the meaning described in
Section (E) TERM LOAN B FEES. (Term Loan B Fees).
"Term Loan B Increase" has the meaning described in Section (A) TERM LOAN
B COMMITMENTS. (Term Loan B Commitments)
"Term Loan A Mandatory Prepayment" and "Term Loan A Mandatory Prepayments"
have the meanings described in Section (C) MANDATORY PREPAYMENTS OF TERM
LOANS A.
Subject to the provisions of (D) INDEMNITY. (Indemnity), the Borrower shall
make the following mandatory prepayments (each a "Term Loan A Mandatory
Prepayment" and collectively the "Term Loan A Mandatory Prepayments") of
the Term Loans A to the Agent for the ratable benefit of the Lenders:
(Mandatory Prepayments of Term Loan A).
"Term Loan B Mandatory Prepayment" and "Term Loan B Mandatory Prepayments"
have the meanings described in Section (C) MANDATORY PREPAYMENTS OF TERM
LOAN B.
Subject to the provisions of (D) INDEMNITY. (Indemnity), the Borrower shall
make mandatory prepayments (each a "Term Loan B Mandatory Prepayment" and
collectively the "Term Loan B Mandatory Prepayments") of the Term Loans B
to the Agent for the ratable benefit of the Lenders annually. Each Term
Loan B Mandatory Prepayment shall be in the amount of the Excess Cash Flow
for the then preceding fiscal year and shall be payable on the date the
Borrower shall furnish to the Agent the annual financial statements
referred to in (A) FINANCIAL STATEMENTS.
The Borrower shall furnish to the Agent for distribution to the Lenders:
(Financial Statements). If, however, the Borrower fails to furnish such
financial statements in any given year as and when required, the Borrower
shall be required to pay the Term Loan B Mandatory Prepayment payable
during such calendar year on the date which is ninety (90) days after the
close of the Borrower's then preceding fiscal year. The Borrower shall pay
to the Agent on the date of each required Term Loan B Mandatory Prepayment
accrued interest to such date on the amount prepaid. Each partial Term
Loan B Mandatory Prepayment shall be applied as follows: (i) fifty percent
(50%) to principal against the principal installments of the Term Loans B
in the inverse order of their maturities and (ii) fifty percent (50%) to
all of the remaining principal installments due on account of the Term
Loans B on a pro rata basis. Notwithstanding anything to the contrary
contained herein, the Borrower shall not be required to pay an Early
Termination Fee as the result of a Term Loan B Mandatory Prepayment.
(Mandatory Prepayments of Term Loan B).
"Term Loan A Optional Prepayment" and "Term Loan A Optional Prepayments"
have the meanings described in Section OPTIONAL PREPAYMENTS OF TERM LOANS
A.
Subject to the provisions of (D) INDEMNITY. (Indemnity), the Borrower may,
at its option, at any time and from time to time, prepay (each a "Term Loan
A Optional Prepayment" and collectively the "Term Loan A Optional
Prepayments") the Term Loans A, in whole or in part, upon five (5) Business
Days prior written notice, specifying the date and amount of prepayment.
The amount to be so prepaid, together with interest accrued thereon to date
of prepayment if the amount is intended as a prepayment of the Term Loans A
in whole, shall be paid by the Borrower to the Agent for the ratable
benefit of the Lenders on the date specified for such prepayment. Partial
Term Loan A Optional Prepayments shall be applied to all of the remaining
principal installments due on account of the Term Loans A on a pro rata
basis. (Optional Prepayments of Term Loans A).
"Term Loan B Optional Prepayment" and "Term Loan B Optional Prepayments"
have the meanings described in Section (D) OPTIONAL PREPAYMENTS OF TERM
LOANS B.
Subject to the provisions of (D) INDEMNITY. (Indemnity), the Borrower may,
at its option, at any time and from time to time, prepay (each a "Term Loan
B Optional Prepayment" and collectively the "Term Loan B Optional
Prepayments") the Term Loans B, in whole or in part, upon five (5) Business
Days prior written notice, specifying the date and amount of prepayment.
The amount to be so prepaid, together with interest accrued thereon to date
of prepayment if the amount is intended as a prepayment of the Term Loans B
in whole, shall be paid by the Borrower to the Agent for the ratable
benefit of the Lenders on the date specified for such prepayment. Partial
Term Loan B Optional Prepayments shall be applied as follows: (a) fifty
percent (50%) to principal against the principal installments of the Term
Loans B in the inverse order of their maturities and (b) fifty percent
(50%) to all of the remaining principal installments due on account of the
Term Loans B on a pro rata basis. (Optional Prepayments of Term Loan B).
"Term Loan A Pro Rata Share" has the meaning described in THE TERM LOAN A
FACILITY. (Term Loan A Facility).
"Term Loan B Pro Rata Share" has the meaning described in Section (A) TERM
LOAN B COMMITMENTS.
Subject to and upon the terms of this Agreement, each Lender severally
agrees to make a loan (each a "Term Loan B"; and collectively, the "Term
Loans B") to the Borrower in the principal amount set forth below opposite
such Lender's name (herein called such Lender's "Term Loan B Committed
Amount"). The total of each Lender's Term Loan B Committed Amount is
herein called the "Total Term Loan B Committed Amount". The proportionate
share set forth below opposite each Lender's name is herein called such
Lender's "Term Loan B Pro Rata Share": (Term Loan B Commitments).
"Term Loan A Note" and "Term Loan A Notes" have the meaning described in
Section (B) AMORTIZATION OF TERM LOANS A; THE TERM LOAN A NOTES.
(Amortization of Term Loans A).
"Term Loan B Note" and "Term Loan B Notes" have the meaning described in
Section (B) AMORTIZATION OF TERM LOANS B; THE TERM LOAN B NOTES.
(Amortization of Term Loans B).
"Term Loan" means either a Term Loan A, a Term Loan B or a UK Term Loan;
and "Term Loans" means each Term Loan A, Term Loan B and each UK Term Loan.
"Term Note" means a Term Loan A Note, a Term Loan B Note or a UK Term Loan
Note; "Term Notes" means each Term Loan A Note, each Term Loan B Note and
each UK Term Loan Note.
"Total Revolving Credit Committed Amount" has the meaning described in
Section (A) REVOLVING CREDIT FACILITY.
Subject to and upon the terms of this Agreement, the Lenders collectively,
but severally, establish a revolving credit facility in favor of the
Borrower. The aggregate of all advances under the Revolving Credit
Facility is sometimes referred to in this Agreement collectively as the
"Revolving Loan". (Revolving Credit Facility).
"Total Term Loan A Committed Amount" has the meaning described in Section
(A) TERM LOAN A COMMITMENTS.
Subject to and upon the terms of this Agreement, each Lender severally
agrees to make a loan (each a "Term Loan A"; and collectively, the "Term
Loans A") to the Borrower in the principal amount set forth below opposite
such Lender's name (herein called such Lender's "Term Loan A Committed
Amount"). The total of each Lender's Term Loan A Committed Amount is
herein called the "Total Term Loan A Committed Amount". The proportionate
share set forth below opposite each Lender's name is herein called such
Lender's "Term Loan A Pro Rata Share": (Term Loan A Commitments).
"Total Term Loan B Committed Amount" has the meaning described in Section
(A) TERM LOAN B COMMITMENTS.
Subject to and upon the terms of this Agreement, each Lender severally
agrees to make a loan (each a "Term Loan B"; and collectively, the "Term
Loans B") to the Borrower in the principal amount set forth below opposite
such Lender's name (herein called such Lender's "Term Loan B Committed
Amount"). The total of each Lender's Term Loan B Committed Amount is
herein called the "Total Term Loan B Committed Amount". The proportionate
share set forth below opposite each Lender's name is herein called such
Lender's "Term Loan B Pro Rata Share": (Term Loan B Commitments).
"Trademarks" means and includes in each case whether now existing or
hereafter arising, all of the Borrower's or any Subsidiary's rights, title
and interest in and to (a) any and all trademarks (including service
marks), trade names and trade styles, and applications for registration
thereof and the goodwill of the business symbolized by any of the
foregoing, (b) any and all licenses of trademarks, service marks, trade
names and/or trade styles, whether as licensor or licensee, (c) any
renewals of any and all trademarks, service marks, trade names, trade
styles and/or licenses of any of the foregoing, (d) income, royalties,
damages and payments now or hereafter due and/or payable with respect
thereto, including, without limitation, damages, claims, and payments for
past, present and future infringements thereof, (e) rights to sue for past,
present and future infringements of any of the foregoing, including the
right to settle suits involving claims and demands for royalties owing, and
(f) all rights corresponding to any of the foregoing throughout the world.
"UK Borrowing Base" has the meaning described in Section (C) UK BORROWING
BASE. (UK Borrowing Base).
"UK Borrowing Base Deficiency" has the meaning described in Section (C) UK
BORROWING BASE. (UK Borrowing Base).
"UK Borrowing Base Report" has the meaning described in Section (D) UK
BORROWING BASE REPORT. (UK Borrowing Base Report).
"UK Collateral" means the collective reference to all property of Norwich
and Berry UK from time to time to subject to the Liens of this Agreement,
the UK Security Documents and the other Financing Documents, together with
any and all cash and non-cash proceeds and products thereof.
"UK Commitment Fee" has the meaning described in Section (D) UK COMMITMENT
FEE. (the UK Commitment Fee).
"UK Credit Facilities Guaranty" means (i) the guaranty of payment of the
UK Obligations to NationsBank from the Parent, the Borrower and each
Subsidiary Guarantor and (ii) the guaranty of payment of the UK Obligations
of Berry UK to NationsBank from Norwich. each as the same may from time to
time be amended, restated, supplemented or otherwise modified.
"UK Credit Facility" means the UK Revolving Credit Facility or the UK Term
Loan Facility, as the case may be, and "UK Credit Facilities" means
collectively the UK Revolving Credit Facility and the UK Term Loan
Facility, and any and all other credit facilities now or hereafter extended
to Berry UK or Norwich under or secured by this Agreement and/or any of the
UK Security Documents.
"UK Excess Cash Flow" means for any annual period of
determination thereof and with respect to Berry UK and Norwich only, an
amount equal to fifty percent (50%) of the sum of (a) EBITDA, less (b) non-
financed Capital Expenditures permitted by Section (F) CAPITAL
EXPENDITURES.
Except for Permitted Acquisitions and permitted reinvestments of Permitted
Asset Dispositions, neither the Borrower, Berry UK nor Norwich will or will
permit any Subsidiary to, directly or indirectly, make any Capital
Expenditures in the aggregate for the Borrower, Berry UK, Norwich and their
respective Subsidiaries (taken as a whole) in amount which exceed the
following amounts at any time during the following fiscal years (for each
fiscal year, the "Capital Expenditure Ceiling" (Capital Expenditures), less
(c) cash income Taxes and alternative minimum Taxes, less (d) increases in
working capital, plus (e) decreases in working capital, less (f) Debt
Service, as shown on the annual financial statements for such annual
period, furnished to the Agent in accordance with Section (A) FINANCIAL
STATEMENTS.
The Borrower shall furnish to the Agent for distribution to the Lender
(Financial Statements); or in the event that the Borrower fails to deliver
such financial statements to the Agent as and when required, the Agent
shall estimate, in its sole, but commercially reasonable discretion, the
amount of UK Excess Cash Flow for such period.
"UK Obligations" means and includes all present and future indebtedness,
obligations, and liabilities, whether now existing or contemplated or
hereafter arising, of Berry UK and/or Norwich to NationsBank under, arising
pursuant to, in connection with and/or on account of the provisions of this
Agreement, the UK Revolving Credit Note, the UK Term Note, or each UK
Security Document,. FOR PURPOSES OF THE INDENTURE, ALL UK OBLIGATIONS
UNDER AND IN CONNECTION WITH THE UK CREDIT FACILITIES CONSTITUTE AND ARE
HEREBY DEEMED "SENIOR INDEBTEDNESS" AS DEFINED IN THE INDENTURE.
"UK Revolving Credit Commitment" means the agreement of a Lender relating
to purchase of an undivided participating interest in the UK Revolving Loan
and advances thereunder subject to and in accordance with the provisions of
this Agreement; and "UK Revolving Credit Commitments" means the collective
reference to the UK Revolving Credit Commitment of each of the Lenders.
"UK Revolving Credit Commitment Period" means the period of time from the
Closing Date to the Business Day preceding the UK Revolving Credit
Termination Date.
"UK Revolving Credit Committed Amount" has the meaning described in Section
(A) UK REVOLVING CREDIT FACILITY. (UK Revolving Credit Facility).
"UK Revolving Credit Facility" means the facility established by
NationsBank pursuant to Section (A) UK REVOLVING CREDIT FACILITY. (UK
Revolving Credit Facility).
"UK Revolving Credit Note" has the meaning described in Section (E) UK
REVOLVING CREDIT NOTE. (UK Revolving Credit Notes).
"UK Revolving Credit Pro Rata Share" has the meaning described in Section
(B) PROCEDURE FOR MAKING ADVANCES UNDER THE UK REVOLVING LOAN. (Procedure
for Making Advances).
"UK Revolving Credit Termination Date" means the Revolving Credit
Termination Date.
"UK Revolving Credit Facility Fee" and "UK Revolving Credit Facility Fees"
have the meanings described in Section (I) UK REVOLVING CREDIT FACILITY
FEE. (UK Revolving Credit Facility Fee).
"UK Revolving Loan" has the meaning described in Section (A) UK REVOLVING
CREDIT FACILITY. (UK Revolving Credit Facility).
"UK Revolving Loan Account" has the meaning described in Section (H) UK
REVOLVING LOAN ACCOUNT. (UK Revolving Loan Account).
"UK Revolving Loan Mandatory Prepayment" and "UK Revolving Loan Mandatory
Prepayments" have the meanings described in Section (F) MANDATORY
PREPAYMENTS OF UK REVOLVING LOAN. (Mandatory Prepayments of UK Revolving
Loan).
"UK Revolving Loan Optional Prepayment" and "UK Revolving Loan Optional
Prepayments" have the meanings described in Section (G) OPTIONAL
PREPAYMENTS OF UK REVOLVING LOAN. (Optional Prepayments of UK Revolving
Loan).
"UK Security Agreement" means those certain debentures from Berry UK and
Norwich dated the date of this Agreement pursuant to which a Lien is
granted to NationsBank as security for the UK Obligations, as the same may
be amended, restated, supplemented or otherwise modified.
"UK Security Documents" means collectively any assignment, pledge
agreement, security agreement, mortgage, deed of trust, deed to secure
debt, financing statement and any similar instrument, document or agreement
under or pursuant to which a Lien is now or hereafter granted to, or for
the benefit of, NationsBank on any real or personal property of Berry UK
and/or Norwich solely to secure all or any portion of the UK Obligations,
including, obligations of Norwich under the UK Credit Facilities Guaranty
and the UK Security Agreement, all as the same may from time to time be
amended, restated, supplemented or otherwise modified.
"UK Stock Pledge Agreement" means that certain stock pledge, assignment and
security agreement dated as of the Closing Date from the Borrower to
NationsBank, in its capacity as Agent and in its individual capacity,
acting through its Sterling LIBOR Lending Office, as the same may from time
to time be amended, restated, supplemented or otherwise modified, which UK
Stock Pledge Agreement grants, pledges and assigns to NationsBank, as
security for the UK Obligations, and pledges and assigns to the Agent for
the ratable benefit of the Lenders and the Agent, as security for all of
the Obligations (other than the UK Obligations), a pledge and assignment of
sixty-five percent (65%) of the capital stock of Berry UK and grants,
pledges and assigns to NationsBank, as security for the UK Obligations, a
pledge and assignment of one hundred percent (100%) of the capital stock of
Berry UK, which one hundred percent (100%) pledge shall reduce to sixty-
five percent (65%) at such time as all obligations under the Subordinated
Debt have been paid in full.
"UK Term Loan" has the meaning described in SECTION 2.8UK TERM LOAN
FACILITY. (UK Term Loan Facility).
"UK Term Loan Commitment" and "UK Term Loan Commitments" have the meanings
described in Section (A) UK TERM LOAN COMMITMENTS. (UK Term Loan
Commitments).
"UK Term Loan Committed Amount" has the meaning described in Section (A) UK
TERM LOAN COMMITMENTS. (UK Term Loan Commitments).
"UK Term Loan Facility" means the facility established by NationsBank
pursuant to Section 2.8 (UK Term Loan Facility).
"UK Term Loan Mandatory Prepayment" and "UK Term Loan Mandatory
Prepayments" have the meanings described in Section 2.8.3 (Mandatory
Prepayments of UK Term Loan).
"UK Term Loan Optional Prepayment" and "UK Term Loan Optional Prepayments"
have the meanings described in Section 2.8.4 (Optional Prepayments of UK
Term Loans).
"UK Term Loan Pro Rata Share" has the meaning described in 2.8.1 (UK Term
Loan Facility).
"UK Term Loan Note" has the meaning described in Section 2.8.2
(Amortization of UK Term Loans).
"Uniform Commercial Code" means, unless otherwise provided in this
Agreement, the Uniform Commercial Code as adopted by and in effect from
time to time in the State or in any other jurisdiction, as applicable.
"Venture Holdings" means Venture Packaging, Inc., a corporation organized
and existing under the laws of the State Delaware, and its successors and
assigns.
"Venture Midwest" means Venture Packaging Midwest, Inc., a corporation
organized and existing under the laws of the State of Ohio, and its
successors and assigns.
"Venture Southeast" means Venture Packaging Southeast, Inc., a corporation
organized and existing under the laws of the State of South Carolina, and
its successors and assigns.
"Venture Stock" means all capital stock issued by Venture Holdings acquired
or to be acquired by Berry Venture, all in accordance with the Venture
Stock Purchase/Merger Transaction, together with any and all proceeds and
products thereof.
"Venture Stock Purchase/Merger Agreement" means that certain Agreement and
Plan of Merger dated as of August 29, 1997 by and among the Borrower, Berry
Venture, Venture Holdings, the Parent, Venture Southeast, Venture Midwest
and the shareholders of Venture Holdings, 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.
"Venture Stock Purchase/Merger Documents" means collectively the Venture
Stock Purchase Agreement and any and all other agreements, documents or
instruments, previously, now or hereafter executed and delivered by Venture
Holdings, Venture Southeast, Venture Midwest, Berry Venture, the Borrower,
or any other Person in connection with the Venture Stock Purchase/Merger
Transaction, as the same may from time to time be amended, restated,
supplemented and modified.
"Venture Stock Purchase/Merger Transaction" means (a the acquisition of all
issued and outstanding capital stock of Venture Holdings by Berry Venture
through a merger, (b) the merger of Venture Holdings into Berry Venture,
(c) the transfer to the Borrower of all issued and outstanding stock of
Venture Southeast and/or Venture Midwest by Berry Venture and/or Venture
Holdings, as contemplated by the Venture Stock Purchase/Merger Agreement,
and (d) the merger, consolidation, dissolution or liquidation of Berry
Venture.
"Virginia Design" means Virginia Design Packaging Corp., a corporation
organized and existing under the laws of the Commonwealth of Virginia, and
its successors and assigns.
"Virginia Design NewCo" means Berry Plastics Design Corporation, a
corporation organized and existing under the laws of the State of Delaware,
and its successors and assigns.
"Virginia Design Purchase Agreement" means that certain asset purchase
agreement dated as of May 13, 1997 by and among the Borrower, Virginia
Design NewCo, Virginia Design and the shareholders of Virginia Design, 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.
"Virginia Design Purchase Agreement Documents" means collectively the
Virginia Design Purchase Agreement and any and all other agreements,
documents or instruments, previously, now or hereafter executed and
delivered by Virginia Design, Virginia Design NewCo, the Borrower, or any
other Person in connection with the Virginia Design Purchase Agreement
Transaction, as the same may from time to time be amended, restated,
supplemented and modified.
"Virginia Design Purchase Agreement Transaction" means the asset purchase
transaction contemplated by the Virginia Design Purchase Agreement.
"Wholly Owned Subsidiary" means any domestic United States Person all the
shares of stock or other equity interests of all classes of which (other
than directors' qualifying shares) at the time are owned directly or
indirectly by the Borrower and/or by one or more Wholly Owned Subsidiaries
of the Borrower.
"Wire Transfer Procedures" means the rules, policies and procedures adopted
and implemented by the Agent and its Affiliates at any time and from time
to time with respect to electronic funds transfers, including, without
limitation, the Security Procedures, all as the same may be amended,
restated, supplemented, terminated or otherwise modified at any time and
from time to time by the Agent upon notice to the Borrower in its
reasonable discretion.
SECTION 1.2 ACCOUNTING TERMS AND OTHER DEFINITIONAL PROVISIONS.
Unless otherwise defined herein, as used in this Agreement and in any
certificate, report or other document made or delivered pursuant hereto,
accounting terms not otherwise defined herein, and accounting terms only
partly defined herein, to the extent not defined, shall have the respective
meanings given to them under GAAP. Unless otherwise defined herein, all
terms used herein which are defined by the Uniform Commercial Code shall
have the same meanings as assigned to them by the Uniform Commercial Code
unless and to the extent varied by this Agreement. The words "hereof",
"herein" and "hereunder" and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement, and article, section, subsection,
schedule and exhibit references are references to articles, sections or
subsections of, or schedules or exhibits to, as the case may be, this
Agreement unless otherwise specified. As used herein, the singular number
shall include the plural, the plural the singular and the use of the
masculine, feminine or neuter gender shall include all genders, as the
context may require. Reference to any one or more of the Financing
Documents shall mean the same as the foregoing may from time to time be
amended, restated, substituted, extended, renewed, supplemented or
otherwise modified. Notwithstanding the foregoing, the Agent and the
Lenders agree that if GAAP at any time changes and such changes have an
affect on the computation of any of the covenants contained in FINANCIAL
COVENANTS. (Financial Covenants), the Agent, the Lenders and the Borrower
will negotiate in good faith to revise any such affected covenants so as to
reverse the effect of such change in GAAP. Whenever a term is used in
this Agreement to determine whether a threshold level or basket amount has
been achieved or exceeded, or to calculate a financial ratio or any other
amount and such term includes amounts in U.S. Dollars and amounts
denominated in Sterling, or solely in Sterling, the terms shall be
construed and/or calculated for purposes of this Agreement by (i)
determining the Dollar Currency Equivalent of each such amount to be
included in the aggregate as at the date of calculation, and adding all
such amounts to (ii) the amounts, if any, which are already in U.S.
Dollars.
ARTICLE II
THE CREDIT FACILITIES
SECTION 2.1 THE REVOLVING CREDIT FACILITy.
(A)REVOLVING CREDIT FACILITY.
Subject to and upon the terms of this Agreement, the Lenders collectively,
but severally, establish a revolving credit facility in favor of the
Borrower. The aggregate of all advances under the Revolving Credit
Facility is sometimes referred to in this Agreement collectively as the
"Revolving Loan".
The amount set forth below opposite each Lender's name is herein called
such Lender's "Revolving Credit Committed Amount" and the total of each
Lender's Revolving Credit Committed Amount is herein called the "Total
Revolving Credit Committed Amount". The proportionate share set forth
below opposite each Lender's name is herein called such Lender's "Revolving
Credit Pro Rata Share":
Lender Revolving Credit Committed Revolving Credit Pro Rata Share
Amount
Fleet $11,926,000 23.8525%
GE Capital $14,607,500 29.215%
NationsBank $14,607,500 29.215%
Heller $8,859,000 17.7175%
Total Revolving Credit Committed $50,000,000 100%
Amount
Article INeither the Agent nor any of the Lenders shall be responsible for
the Revolving Credit Commitment of any other Lender, nor will the failure
of any Lender to perform its obligations under its Revolving Credit
Commitment in any way relieve any other Lender from performing its
obligations under its Revolving Credit Commitment.
During the Revolving Credit Commitment Period, the Borrower may request
advances under the Revolving Credit Facility in accordance with the
provisions of this Agreement; provided that after giving effect to the
Borrower's request:
(i)the outstanding principal balance of each Lender's Pro Rata Share of the
Revolving Loan, the Letter of Credit Obligations, and the Special Source
Bond Obligations would not exceed the lesser of (i) such Lender's Pro Rata
Share of the Revolving Loan, the Letter of Credit Obligations, and the
Special Source Bond Obligations or (ii) such Lender's Pro Rata Share of the
Borrowing Base; and,
(ii)the aggregate outstanding principal balance of the Revolving Loan, all
Letter of Credit Obligations, and the Special Source Bond Obligations would
not exceed the lesser of (i) the Total Revolving Credit Committed Amount or
(ii) the Borrowing Base. In addition, the aggregate outstanding principal
balance of the Revolving Loan, all Letter of Credit Obligations, all
Special Source Bond Obligations and the UK Revolving Loan cannot exceed the
Total Revolving Credit Committed Amount.
(B)PROCEDURE FOR MAKING ADVANCES UNDER THE REVOLVING LOAN.
The Borrower may borrow under the Revolving Credit Facility on any Business
Day. Advances under the Revolving Loan shall be deposited to a demand
deposit account of the Borrower with the Agent or shall be otherwise
applied as directed by the Borrower, which direction the Agent may require
to be in writing. Not later than 11:00 a.m. (Baltimore City Time) on the
date of the requested borrowing, the Borrower shall give the Agent oral or
written notice (a "Loan Notice") of the amount and (if requested by the
Agent) the purpose of the requested borrowing. Any oral Loan Notice shall
be confirmed in writing by the Borrower within three (3) Business Days
after the making of the requested advance under the Revolving Loan. At any
time within three (3) hours prior to funding, the Borrower may revoke a
Loan Notice; provided, that the Borrower shall pay to each Lender, as the
case may be, any amounts which may be due to such Lender under (D)
INDEMNITY. (Indemnity) by reason of such Lender having taken action in
reliance on the Loan Notice. Upon receipt of any such Loan Notice, the
Agent shall promptly notify each Lender of the amount of each advance to be
made by such Lender on the requested borrowing date under such Lender's
Revolving Credit Commitment.
NOT LATER THAN 1:00 P.M. (BALTIMORE CITY TIME) ON EACH REQUESTED BORROWING
DATE FOR THE MAKING OF ADVANCES UNDER THE REVOLVING LOAN, EACH LENDER
SHALL, IF IT HAS RECEIVED TIMELY NOTICE FROM THE AGENT OF THE BORROWER'S
REQUEST FOR SUCH ADVANCES, MAKE AVAILABLE TO THE AGENT, IN FUNDS
IMMEDIATELY AVAILABLE TO THE AGENT AT THE AGENT'S OFFICE SET FORTH IN
SECTION 9.1 NOTICES.
All notices, requests and demands to or upon the parties to this Agreement
shall be in writing and shall be deemed to have been given or made when
delivered by hand on a Business Day, or two (2) days after the date when
deposited in the mail, postage prepaid by registered or certified mail,
return receipt requested, or when sent by overnight courier, on the
Business Day next following the day on which the notice is delivered to
such overnight courier, addressed as follow (Notices), such Lender's Pro
Rata Share of the advances to be made on such date.
IN ADDITION, THE BORROWER HEREBY IRREVOCABLY AUTHORIZES THE LENDERS AT ANY
TIME AND FROM TIME TO TIME, WITHOUT FURTHER REQUEST FROM OR NOTICE TO THE
BORROWER, TO MAKE ADVANCES UNDER THE REVOLVING LOAN WHICH THE AGENT, IN ITS
SOLE AND ABSOLUTE DISCRETION, DEEMS NECESSARY OR APPROPRIATE TO PROTECT THE
INTERESTS OF THE AGENT AND/OR ANY OR ALL OF THE LENDERS UNDER THIS
AGREEMENT, INCLUDING, WITHOUT LIMITATION, ADVANCES UNDER THE REVOLVING LOAN
MADE TO COVER DEBIT BALANCES IN THE REVOLVING LOAN ACCOUNT, TO PAY
PRINCIPAL OF, AND/OR INTEREST ON, ANY LOAN, INCLUDING ANY TERM LOAN, THE
OBLIGATIONS (INCLUDING ANY LETTER OF CREDIT OBLIGATIONS AND ANY BOND LETTER
OF CREDIT OBLIGATIONS), AND/OR ENFORCEMENT COSTS, PRIOR TO, ON, OR AFTER
THE TERMINATION OF OTHER ADVANCES UNDER THIS AGREEMENT, REGARDLESS OF
WHETHER THE OUTSTANDING PRINCIPAL AMOUNT OF THE REVOLVING LOAN WHICH THE
LENDERS MAY ADVANCE HEREUNDER EXCEEDS THE TOTAL REVOLVING CREDIT COMMITTED
AMOUNT. THE AGENT ACKNOWLEDGES AND AGREES THAT (A) THE OBLIGATION OF THE
LENDERS TO MAKE ADVANCES TO OR FOR THE ACCOUNT OF THE BORROWER PURSUANT TO
THIS PARAGRAPH SHALL BE SUBJECT TO THE PROVISIONS OF DISSEMINATION OF
INFORMATION.
The Agent will provide the Lenders with any information received by the
Agent from the Borrower, Berry UK or Norwich which is required to be
provided to the Agent or to the Lenders hereunder; PROVIDED, HOWEVER, that
the Agent shall not be liable to any one or more the Lenders for any
failure to do so, except to the extent that such failure is attributable to
the Agent's gross negligence or willful misconduct (Dissemination of
Information) and (b) no Lender shall have any obligation or commitment to
make any advance to or for the account of the Borrower under the Revolving
Loan (including any obligation or commitment to reimburse the Agent for
advances made by the Agent to or for the account of the Borrower under this
paragraph, except for advances made to cover Enforcement Costs for which
the Agent has not been duly reimbursed by the Borrower) unless otherwise
agreed in writing by such Lender, if and to the extent such Lender's Pro
Rata Share of the Revolving Loan and of the Letter of Credit Obligations
would exceed, with the making of such advance or reimbursement, such
Lender's Revolving Credit Committed Amount. Each Lender, however, shall
continue to be obligated to reimburse the Agent for any and all Enforcement
Costs incurred by the Agent in accordance with the provisions of this
Agreement if and to the extent the Borrower fails to reimburse the Agent
for such Enforcement Costs.
(C)BORROWING BASE.
As used in this Agreement, the term "Borrowing Base" means at any time, an
amount equal to the aggregate of (a) eighty-five percent (85%) of the
amount of Eligible Domestic Receivables, plus (b) the lesser of (i) sixty-
five percent (65%) of the amount of Eligible Domestic Inventory or (ii)
Twenty-five Million Dollars ($25,000,000).
The Borrowing Base shall be computed based on the Borrowing Base Report
most recently delivered to and accepted by the Agent in its reasonable
discretion. In the event the Borrower fails to furnish a Borrowing Base
Report required by Section (D) BORROWING BASE REPORT. (Borrowing Base
Report) the Agent may, in its reasonable discretion exercised from time to
time and without limiting other rights and remedies under this Agreement,
direct the Lenders to suspend the making of or limit advances under the
Revolving Loan. The Borrowing Base shall be reduced by all amounts
credited to the Collateral Account (if and to the extent a Collateral
Account is required by the terms of this Agreement) since the date of the
most recent Borrowing Base Report and by the amount of any Account or any
Inventory which was included in the Borrowing Base, but which the Agent
determines fails to meet the respective criteria applicable from time to
time for Eligible Domestic Receivables or Eligible Domestic Inventory.
If at any time the total of the aggregate principal amount of the Revolving
Loan and Outstanding Letter of Credit Obligations exceeds the Borrowing
Base, a borrowing base deficiency ("Borrowing Base Deficiency") shall
exist. Each time a Borrowing Base Deficiency exists, the Borrower, at the
sole and absolute discretion of the Agent exercised from time to time,
shall pay the Borrowing Base Deficiency ON DEMAND to the Agent for the
benefit of the Lenders from time to time.
Without implying any limitation on the Agent's discretion with respect to
the Borrowing Base, the criteria for Eligible Domestic Receivables and for
Eligible Domestic Inventory contained in the respective definitions of
Eligible Domestic Receivables and of Eligible Domestic Inventory are in
part based upon the business operations of the Borrower and the Subsidiary
Guarantors existing on or about the date of this Agreement and upon
information and records furnished to the Agent by the Borrower and the
Subsidiary Guarantors. If at any time or from time to time hereafter, the
business operations of the Borrower and/or any of the Subsidiary Guarantors
change in any material respect or such information and records furnished to
the Agent are materially incorrect or misleading, the Agent in its
reasonable discretion, may at any time and from time to time during the
duration of this Agreement change such criteria, add new criteria, make
existing criteria less onerous, or remove existing criteria; provided,
however, that any such change in, or addition or removal of criteria shall
be effective only after notice thereof from the Agent to the Borrower.
Except in emergency circumstances, the Agent agrees to use its commercially
reasonable efforts to consult with the Borrower prior to the effective date
of any addition to, or change in, eligibility criteria, but that the Agent
shall have no obligation or duty to reach an agreement with the Borrower as
a condition of, or prior to, imposing any changes in, or additions to,
eligibility criteria. The Agent shall communicate such changed or
additional criteria to the Borrower from time to time either orally or in
writing.
(D) BORROWING BASE REPORT.
The Borrower will furnish to the Agent no less frequently than monthly, as
soon as available, but in any event within twenty (20) days of the end of
each fiscal month, and, upon the occurrence of an Event of Default or as
otherwise provided in this Section (D) BORROWING BASE REPORT., at such
other times as may be requested by the Agent a report of the Borrowing Base
in the form attached hereto as Exhibit A-1 (each a "Borrowing Base Report";
collectively, the "Borrowing Base Reports") in the form required from time
to time by the Agent, appropriately completed and duly signed. The
Borrowing Base Report shall contain the amount and payments on the
Accounts, the value of Inventory, and the calculations of the Borrowing
Base, all in such detail, and accompanied by such supporting and other
information, as the Agent may from time to time reasonably request. Upon
the Agent's request and upon the creation of any Accounts, the Borrower
will provide the Agent with (a) confirmatory assignment schedules; (b)
copies of Account Debtor invoices; (c) evidence of shipment or delivery;
and (d) such further schedules, documents and/or information regarding the
Accounts and the Inventory as the Agent may reasonably require. The items
to be provided under this subsection shall be in form reasonably
satisfactory to the Agent, and certified as true and correct by a
Responsible Officer, and delivered to the Agent from time to time solely
for the Agent's convenience in maintaining records of the Collateral. The
Borrower's failure to deliver any such items to the Agent shall not affect,
terminate, modify, or otherwise limit the Liens of the Agent and the
Lenders in the Collateral. Notwithstanding the foregoing, the Borrower
acknowledges and agrees that the Agent, at its option, may require that the
Borrower furnish to the Agent weekly and, if requested by the Agent, daily
Borrowing Base Reports if any one of the following events occur (i) the
Borrower's and Subsidiary Guarantors' collective aggregate availability
under the Revolving Loan is at any times less than or equal to Fifteen
Million Dollars ($15,000,000), (ii) the Borrower and the Subsidiary
Guarantors, on a consolidated basis, incur three (3) consecutive months of
net operating losses, or (iii) the occurrence of an Event of Default (each
of the aforementioned events are herein called a "Borrowing Base Trigger
Event"). The Agent agrees that it shall not be entitled to require that
the Borrower furnish weekly or daily Borrowing Base Reports solely as the
result of the occurrence of a Borrowing Base Trigger Event, if the Agent
fails to so notify the Borrower within ninety (90) days of the date that
the Borrower has cured the Borrowing Base Trigger Event to the reasonable
satisfaction of the Agent. The foregoing sentence, however, shall not
prevent the Agent from later requiring more frequent Borrowing Base Reports
following the occurrence of any subsequent Borrowing Base Trigger Event;
provided, that the Agent so notifies the Borrower within ninety (90) days
of date that the Borrower has cured the Borrowing Base Trigger Event to the
reasonable satisfaction of the Agent.
(E)REVOLVING CREDIT NOTES.
The obligation of the Borrower to pay each Lender's Pro Rata Share of the
Revolving Loan, with interest, shall be evidenced by a series of promissory
notes (as from time to time extended, amended, restated, supplemented or
otherwise modified, collectively the "Revolving Credit Notes" and
individually a "Revolving Credit Note"). Each Lender's Revolving Credit
Note shall be dated as of the date of this Agreement, shall be payable to
the order of such Lender at the times provided in the Revolving Credit
Note, and shall be in the principal amount of such Lender's Revolving
Credit Committed Amount. The Borrower acknowledges and agrees that, if the
outstanding principal balance of the Revolving Loan outstanding from time
to time exceeds the aggregate stated amount of the Revolving Credit Notes,
the excess shall bear interest at the rates provided from time to time for
advances under Revolving Loan evidenced by the Revolving Credit Notes and
shall be payable, with accrued interest, ON DEMAND. The Revolving Credit
Notes shall not operate as a novation of any of the Obligations or nullify,
discharge, or release any such Obligations or the continuing contractual
relationship of the parties hereto in accordance with the provisions of
this Agreement.
(F)MANDATORY PREPAYMENTS OF REVOLVING LOAN.
Subject to the provisions of Section (D) INDEMNITY. (Indemnity) and in
addition to any mandatory prepayment required by the provisions of Section
(C) MANDATORY PREPAYMENTS OF TERM LOANS A. (Term Loan Mandatory
Prepayments), upon the request of the Agent pursuant to Section (C)
BORROWING BASE. (Borrowing Base) or Section 2.1.13 (Required Availability
under the Revolving Credit Facility), the Borrower shall make mandatory
prepayments (each a "Revolving Loan Mandatory Prepayment" and collectively,
the "Revolving Loan Mandatory Prepayments") of the Revolving Loan at any
time and from time to time in order to cover any Borrowing Base Deficiency
or to ensure compliance with Section 2.1.13, as applicable.
(G)OPTIONAL PREPAYMENTS OF REVOLVING LOAN.
Subject to the provisions of Section (D) INDEMNITY. (Indemnity), the
Borrower shall have the option at any time and from time to time prepay
(each a "Revolving Loan Optional Prepayment" and collectively the
"Revolving Loan Optional Prepayments") the Revolving Loan, in whole or in
part without premium or penalty. Revolving Loan Optional Prepayments shall
be made following a timely and proper written notice to the Agent with
respect thereto specifying the date and amount of any intended Revolving
Loan Optional Prepayment. The amount to be prepaid shall be paid by the
Borrower to the Agent on the date specified for such prepayment. Any
amounts repaid or prepaid may be readvanced and reborrowed subject to the
provisions of this Agreement.
(H)THE COLLATERAL ACCOUNT.
Upon demand by the Agent following a Borrowing Base Trigger Event, the
Borrower will deposit, or cause to be deposited, all Items of Payment to a
bank account designated by the Agent and from which the Agent alone has
power of access and withdrawal (the "Collateral Account"). Each deposit
shall be made not later than the next Business Day after the date of
receipt of the Items of Payment. The Items of Payment shall be deposited
in precisely the form received, except for the endorsements of the Borrower
where necessary to permit the collection of any such Items of Payment,
which endorsement the Borrower hereby agree to make. In the event the
Borrower fails to do so, the Borrower hereby authorizes the Agent to make
the endorsement in the name of the Borrower. Prior to such a deposit, the
Borrower will not commingle any Items of Payment with the Borrower's other
funds or property, but will hold them separate and apart in trust and for
the account of the Agent for the benefit of the Lenders ratably and the
Agent. The Agent agrees that it shall not demand that the Borrower deposit
or cause to be deposited all Items of Deposit to the Collateral Account at
any time prior to the occurrence of a Borrowing Base Trigger Event. Once
the Agent has so made demand on the Borrower, unless otherwise agreed by
the Agent in writing, the Borrower shall continue to so deposit or cause to
be deposited all Items of Payment to the Collateral Account notwithstanding
that subsequent to such demand the Borrowing Base Trigger Event has been
cured, waived, otherwise remedied or is no longer applicable.
In addition, if the Agent has so made demand, if so directed by the Agent,
the Borrower shall direct the mailing of all Items of Payment from its
Account Debtors to one or more post-office boxes designated by the Agent,
or to such other additional or replacement post-office boxes pursuant to
the request of the Agent from time to time (collectively, the "Lockbox").
The Agent shall have unrestricted and exclusive access to the Lockbox.
Subject to the provisions of this Section, the Borrower hereby authorizes
the Agent to inspect all Items of Payment, and deposit such Items of
Payment in the Collateral Account. The Agent reserves the right, exercised
in its reasonable discretion from time to time, to provide to the
Collateral Account credit prior to final collection of an Item of Payment
and to disallow credit for any Item of Payment prior to final collection
which is reasonably unsatisfactory to the Agent. In the event Items of
Payment are returned to the Agent for any reason whatsoever, the Agent may,
in the exercise of its reasonable discretion from time to time, forward
such Items of Payment a second time. Any returned Items of Payment shall
be charged back to the Collateral Account, the Revolving Loan Account, or
other account, as appropriate.
The Agent will apply the whole or any part of the collected funds credited
to the Collateral Account against the Revolving Loan (or with respect to
Items for Payments which are not proceeds of Accounts or Inventory or after
a Default or an Event of Default, against any of the Obligations) or credit
such collected funds to a depository account of the Borrower with the
Agent, the order and method of such application to be in the sole
discretion of the Agent. Notwithstanding the foregoing, the Agent agrees
that prior to the occurrence of an Event of Default, the Agent shall use
its best efforts to apply collected funds credited to the Collateral
Account to the Obligations so as to avoid or minimize any amounts which
would be due under Section (D) INDEMNITY. (Indemnity) by reason of any
such application.
Notwithstanding the foregoing, the Agent agrees that it shall not be
entitled to require establishment of the Collateral Account and/or the
Lockbox as the result of the occurrence of a Borrowing Base Trigger Event,
if the Agent fails to so notify the Borrower within ninety (90) days of the
date that the Borrower has cured the Borrowing Base Trigger Event to the
reasonable satisfaction of the Agent. The foregoing sentence, however,
shall not prevent the Agent from later requiring establishment of the
Collateral Account and/or a Lockbox following the occurrence of any
subsequent Borrowing Base Trigger Event; provided, that the Agent so
notifies the Borrower within ninety (90) days of the date that the Borrower
has cured the Borrowing Base Trigger Event to the reasonable satisfaction
of the Agent.
(I) REVOLVING LOAN ACCOUNT.
The Agent will establish and maintain a loan account on its books (the
"Revolving Loan Account") to which the Agent will (a) DEBIT (i) the
principal amount of each advance under the Revolving Loan made by the
Lenders hereunder as of the date made, (ii) the amount of any interest
accrued on the Revolving Loan as and when due, and (iii) any other amounts
due and payable by the Borrower to the Agent and/or the Lenders from time
to time under the provisions of this Agreement in connection with the
Revolving Loan, including, without limitation, Enforcement Costs, Fees,
late charges, and service, collection and audit fees, as and when due and
payable, and (b) CREDIT all payments made by the Borrower to the Agent on
account of the Revolving Loan as of the date made including, without
limitation, funds credited to the Revolving Loan Account from the
Collateral Account. The Agent may debit the Revolving Loan Account for the
amount of any Item of Payment that is returned to the Agent unpaid. All
credit entries to the Revolving Loan Account are conditional and shall be
readjusted as of the date made if final and indefeasible payment is not
received by the Agent in cash or solvent credits. The Borrower hereby
promises to pay to the order of the Agent for the ratable benefit of the
Lenders, on the Revolving Credit Termination Date, an amount equal to the
excess, if any, of all debit entries over all credit entries recorded in
the Revolving Loan Account under the provisions of this Agreement. Any and
all periodic or other statements or reconciliations, and the information
contained in those statements or reconciliations, of the Revolving Loan
Account shall be presumed conclusively to be correct, and shall constitute
an account stated between the Agent, the Lenders and the Borrower unless
the Agent receives specific written objection thereto from the Borrower
and/or any Lender within thirty (30) Business Days after such statement or
reconciliation shall have been sent by the Agent. Any and all periodic or
other statements or reconciliations, and the information contained in those
statements or reconciliations, of the Revolving Loan Account shall be
final, binding and conclusive upon the Borrower in all respects, absent
manifest error, unless the Agent receives specific written objection
thereto from the Borrower within thirty (30) Business Days after such
statement or reconciliation shall have been sent by the Agent.
(J)REVOLVING CREDIT UNUSED LINE FEE.
The Borrower shall pay to the Agent for the ratable benefit of the Lenders
a quarterly Revolving Credit Facility fee (collectively, the "Revolving
Credit Unused Line Fees" and individually, a "Revolving Credit Unused Line
Fee") in an amount equal to thirty (30) basis points per annum (calculated
on the basis of actual number of days elapsed in a year of 360 days) and
calculated on average daily unused and undisbursed portion of the Total
Revolving Credit Committed Amount,, each as in effect from time to time
accruing during each quarterly period. The accrued and unpaid Revolving
Credit Unused Line Fee shall be paid by the Borrower to the Agent on the
first day of each quarter, in arrears, commencing on the first such date
following the date hereof, and on the Revolving Credit Termination Date.
(K)EARLY TERMINATION FEE.
In the event of the termination of the Revolving Credit Commitments, the
Borrower shall pay a fee to the Agent for the benefit of the Lenders
ratably (the "Early Termination Fee"), equal to following amount at the
following times:
Period Early Termination Fee
First Closing Date, through and including the day 2% of the sum of the Total Revolving Credit
preceding the first anniversary date of the First Committed Amount
Closing Date
First anniversary date of the First Closing Date 1% of the sum of the Total Revolving Credit
through and including the day preceding the second Committed Amount
anniversary date of the First Closing Date
Second anniversary date of the First Closing Date 1/2 % of the sum of the Total Revolving Credit
through and including the day preceding the third Committed Amount
anniversary date of the First Closing Date
In the event of a partial reduction of the Revolving Credit Commitments,
the Borrower shall pay to the Agent for the benefit of the Lenders ratably,
an Early Termination Fee equal to following amount at the following times:
Period Early Termination Fee
First Closing Date, through and including the day 2% of the Total Revolving Credit Optional
preceding the first anniversary date of the First Reduction
Closing Date
First anniversary date of the First Closing Date 1% of the Total Revolving Credit Optional
through and including the day preceding the second Reduction
anniversary date of the First Closing Date
Second anniversary date of the First Closing Date 1/2 % of the Total Revolving Credit Optional
through and including the day preceding the third Reduction
anniversary date of the First Closing Date
In the event the Term Loans are refinanced or replaced with the proceeds of
Indebtedness for Borrowed Money, in whole or in part, the Borrower shall
pay to the Agent for the benefit of the Lenders ratably, an Early
Termination Fee equal to following amount at the following times:
Period Early Termination Fee
First Closing Date, through and including the day 2% of the amount prepaid
preceding the first anniversary date of the First
Closing Date
First anniversary date of the First Closing Date 1% of the amount prepaid
through and including the day preceding the second
anniversary date of the First Closing Date
Second anniversary date of the First Closing Date 1/2 % of the amount prepaid
through and including the day preceding the third
anniversary date of the First Closing Date
Notwithstanding the foregoing, the Borrower shall not be required to pay
the Early Termination Fee in connection with such a refinancing or
replacement of the Term Loans and the termination or partial reduction of
the Revolving Credit Commitments from the proceeds of a public offering of
Securities by the Borrower or the Parent. Nothing contained in this
Section shall be deemed a waiver by the Agent or any Lender of any Default
or Event of Default which results from any such public offering of
Securities by the Borrower and/or the closing of a purchase, acquisition or
investment otherwise prohibited by the provisions of this Agreement, which
does not result in a prepayment of all Obligations and a termination of all
Letters of Credit, all Bond Letters of Credit and Commitments.
In addition, if the Borrower, Berry UK or Norwich requests that the
Requisite Lenders consent to the purchase or acquisition of, or investment
in, any assets or any Person which would not otherwise be permitted by the
provisions of this Agreement, and the Requisite Lenders refuse to agree and
consent to any such purchase, acquisition or investment, the Borrower,
Berry UK or Norwich may, at their option, prepay all of the Obligations in
full and terminate all of the Commitments and shall have no obligation to
pay an Early Termination Fee in connection with any such prepayment and
termination; provided, that (a) all Letters of Credit and all Bond Letters
of Credit are terminated or otherwise secured by the issuance of one or
more back-to-back letters of credit from an issuer and containing terms
reasonably acceptable to the Agent, (b) all Obligations are paid in full,
(c) all Commitments are terminated, and (d) to the extent the Borrower or
any Subsidiary intends to finance such purchase, acquisition or investment,
any one of the Lenders have not agreed to provide such financing after
having been first offered the opportunity by the Borrower or such
Subsidiary to provide such financing substantially on the same terms and
conditions as are actually proposed to the Borrower or such Subsidiary from
another lender or financial institution. A Lender shall be deemed to have
so declined to provide the requested financing for the proposed
acquisition, purchase or other investment unless such Lender has otherwise
notified the Borrower or such Subsidiary in writing within fifteen (15)
days of its receipt of all proposed material terms and conditions of the
proposed acquisition, purchase or investment and any requested financing
that such Lender wishes to participate in such financing. The Lenders
understand and agree that the Borrower or any Subsidiary shall be required
only to furnish to the Agent and the Lenders a term sheet summarizing the
proposed terms for such financing to be prepared by the Borrower or any
Subsidiary based on actual terms proposed by such other lender or financial
institution, and that neither the Borrower, any Subsidiary nor any such
other lender or financial institution shall have any obligation to furnish
to the Agent or the Lenders copies of actual commitments, proposals or
correspondence from such other lender or financial institution or
independent verification of any such proposed terms.
Payment of all or any portion of the Obligations relating to the Revolving
Loan and/or the Term Loans and/or termination or reduction of any of the
Commitments, in whole or in part, by or on behalf of the Borrower or any
Subsidiary, by court order or otherwise, following and as a result of the
institution of any bankruptcy proceeding by or against the Borrower or any
Subsidiary, shall be deemed to be a prepayment of the Revolving Loan and
the Term Loans, and/or termination or reduction of the Commitments, as
appropriate, subject to payment of the Early Termination Fee provided in
this subsection if any or all of the Obligations are actually paid and/or
any or all of the Commitments are terminated or reduced at any time during
the periods set forth above. All Early Termination Fees shall be paid to
the Agent for the ratable benefit of the Lenders.
(L) OPTIONAL REDUCTION OF REVOLVING CREDIT COMMITTED AMOUNT.
Subject to the provisions of Section (K) EARLY TERMINATION FEE. (Early
Termination Fee), the Borrower shall have the right to reduce permanently
(each a "Revolving Credit Optional Reduction" and collectively the
"Revolving Credit Optional Reductions") the Total Revolving Credit
Committed Amount in effect from time to time in the amount of any integral
multiple of Five Hundred Thousand Dollars ($500,000), upon at least five
(5) Business Days prior written notice to the Agent specifying the date and
amount of such Revolving Credit Optional Reduction; provided, that no
Revolving Credit Optional Reduction shall be permitted if, after giving
effect thereto and to any Revolving Loan Optional Prepayment made on the
effective date thereof, the then outstanding principal amount of the
Revolving Loan and Outstanding Letter of Credit Obligations exceeds the
Total Revolving Credit Committed Amount as so reduced. Such notice shall
be irrevocable as to the amount and date of such Revolving Credit Optional
Reduction. After each such Revolving Credit Optional Reduction, the
Revolving Credit Unused Line Fee provided for in Section (J) REVOLVING
CREDIT UNUSED LINE FEE. (Revolving Credit Unused Line Fees) and the Early
Termination Fee, if any, provided for in Section (K) EARLY TERMINATION FEE.
(Early Termination Fee) shall be calculated with respect to the Revolving
Credit Committed Amount as so reduced. Any Revolving Credit Optional
Reduction shall be made to each Lender's Revolving Credit Commitment in
accordance with its Pro Rata Share of such Revolving Credit Optional
Reduction.
(M)REQUIRED AVAILABILITY UNDER THE REVOLVING CREDIT FACILITY.
On an average monthly basis, tested of the last day of each calendar month,
commencing with the first such date following the Closing Date, the
outstanding principal amount of the Revolving Loan shall not exceed an
amount equal to (i) the lesser of the Borrowing Base, or (ii) the Total
Revolving Credit Committed Amount, MINUS $10,000,000 (the "Required
Availability"). The Borrower shall make a Revolving Loan Mandatory
Prepayment pursuant to the provisions of Section (F) MANDATORY PREPAYMENTS
OF REVOLVING LOAN. to the extent necessary to achieve and maintain
compliance with this Section. The failure of the Borrower to make any such
Revolving Loan Mandatory Prepayment shall constitute a Default, but shall
not constitute an Event of Default unless such failure to make the required
Revolving Loan Mandatory Prepayment continues uncured for a period of
fourteen (14) days or the Borrower otherwise fails to attain and maintain
the Required Availability within such fourteen (14) day period.
SECTION 2.2THE TERM LOAN A FACILITY.
(A)TERM LOAN A COMMITMENTS.
Subject to and upon the terms of this Agreement, each Lender severally
agrees to make a loan (each a "Term Loan A"; and collectively, the "Term
Loans A") to the Borrower in the principal amount set forth below opposite
such Lender's name (herein called such Lender's "Term Loan A Committed
Amount"). The total of each Lender's Term Loan A Committed Amount is
herein called the "Total Term Loan A Committed Amount". The proportionate
share set forth below opposite each Lender's name is herein called such
Lender's "Term Loan A Pro Rata Share":
Lender Term Loan A Committed Amount Term Loan A Pro Rata Share
Fleet $6,608,534 23.8525%
GE Capital $8,094,308 29.215%
Heller $4,908,850 17.7175%
NationsBank 8,094,308 29.215%
Total Term Loan A Committed Amount $27,706,000 100%
The Borrower understands and agrees that the Term Loans A have been fully
funded and that none of the Lenders shall have any further obligation or
commitment to advance any additional portion of their respective Term Loan A
Committed Amount.
The obligation of each Lender to make a Term Loan A is several and is limited
to its Term Loan A Committed Amount, and such obligation of each Lender is
herein called its "Term Loan A Commitment". The Term Loan A Commitment of each
of the Lenders are herein collectively referred to as the "Term Loan A
Commitments". The Agent shall not be responsible for the Term Loan A
Commitment of any Lender; and similarly, none of the Lenders shall be
responsible for the Term Loan A Commitment of any of the other Lenders; the
failure, however, of any Lender to perform its Term Loan A Commitment shall not
relieve any of the other Lenders from the performance of their respective Term
Loan A Commitments.
(B)AMORTIZATION OF TERM LOANS A; THE TERM LOAN A NOTES.
The unpaid principal balance of the Term Loans A shall be due and payable in
quarterly installments of principal on each Installment Payment Date, each in
the following amounts at the following times:
DUE DATE AMOUNT
August 1, 1998 $297,000
November 1, 1998 $297,000
February 1, 1999 $753,000
May 1, 1999 $753,000
August 1, 1999 $753,000
November 1, 1999 $753,000
February 1, 2000 $1,200,000
May 1, 2000 $1,200,000
August 1, 2000 $1,200,000
November 1, 2000 $1,200,000
February 1, 2001 $1,700,000
May 1, 2001 $1,700,000
August 1, 2001 $1,700,000
November 1, 2001 $1,700,000
January 21, 2002 $12,500,000
Unless sooner paid, the unpaid principal balance of the Term Loans A, together
with interest accrued and unpaid thereon, shall be due and payable in full on
the Revolving Credit Termination Date.
The obligation of the Borrower to pay the Term Loans A, with interest, shall be
evidenced by a series of amended and restated promissory notes (each as from
time to time extended, amended, restated, supplemented or otherwise modified, a
"Term Loan A Note" and collectively, the "Term Loan A Notes"). Each Term Loan
A Note shall be dated as the Second Closing Date and shall be payable to the
order of a Lender at the times provided in the Term Loan A Note, and shall be
in the principal amount of such Lender's Term Loan A Committed Amount.
(C)MANDATORY PREPAYMENTS OF TERM LOANS A.
Subject to the provisions of (D) INDEMNITY. (Indemnity), the Borrower shall
make the following mandatory prepayments (each a "Term Loan A Mandatory
Prepayment" and collectively the "Term Loan A Mandatory Prepayments") of the
Term Loans A to the Agent for the ratable benefit of the Lenders:
(i)To the extent the Net Proceeds of any Asset Disposition (excluding any Asset
Disposition by Berry UK or Norwich) (including the sale and issuance of any
Securities, but excluding (i) the sale or transfer of all Securities issued by
Venture Southeast and/or Venture Southwest to the Borrower and (ii) the merger,
liquidation, consolidation or dissolution of Berry Venture, as contemplated by
the Venture Stock Purchaser/Merger Transaction) by the Borrower or any
Subsidiary Guarantor cause the aggregate of all such Asset Dispositions in any
fiscal year to exceed Two Hundred Fifty Thousand Dollars ($250,000), all of
such excess shall be paid to the Agent as a Term Loan A Mandatory Prepayment,
or if the Term Loans A have been paid in full shall be paid to the Agent as a
Term Loan B Mandatory Prepayment, or if the Term Loans B have been paid in full
shall be paid to the Agent as a Revolving Loan Mandatory Prepayment.
Notwithstanding the foregoing, the Borrower shall not be required to make a
Term Loan A Mandatory Prepayment in connection with any public, private or Rule
144(a) offering of Securities which does not generate any proceeds (other than
nominal proceeds), including, for example, the issuance or exercise of warrants
with registration rights or the issuance of a resale prospectus for any
existing shares of capital stock. In addition, the Borrower shall not be
required to make a Term Loan A Mandatory Prepayment to the extent of any non-
cash Net Proceeds which are Indebtedness for Borrowed Money received by the
Borrower or any Subsidiary Guarantor in payment of the purchase price of an
Asset which is the subject of a Permitted Asset Disposition; provided that,
upon the Agent's demand, the Borrower and/or the Subsidiary Guarantor, as the
case may, shall take all such actions as shall be reasonably requested by the
Agent to grant to the Agent for its benefit and the ratable benefit of the
Lenders a perfected Lien on any such Indebtedness for Borrowed Money and
provided further that the principal amount of all such Indebtedness for
Borrowed Money, together with the Indebtedness for Borrowed Money referenced in
(C) MANDATORY PREPAYMENTS OF TERM LOAN B.
Subject to the provisions of (D) INDEMNITY. (Indemnity), the Borrower shall
make mandatory prepayments (each a "Term Loan B Mandatory Prepayment" and
collectively the "Term Loan B Mandatory Prepayments") of the Term Loans B to
the Agent for the ratable benefit of the Lenders annually. Each Term Loan B
Mandatory Prepayment shall be in the amount of the Excess Cash Flow for the
then preceding fiscal year and shall be payable on the date the Borrower shall
furnish to the Agent the annual financial statements referred to in (A)
FINANCIAL STATEMENTS.
The Borrower shall furnish to the Agent for distribution to the Lenders:
(Financial Statements). If, however, the Borrower fails to furnish such
financial statements in any given year as and when required, the Borrower shall
be required to pay the Term Loan B Mandatory Prepayment payable during such
calendar year on the date which is ninety (90) days after the close of the
Borrower's then preceding fiscal year. The Borrower shall pay to the Agent on
the date of each required Term Loan B Mandatory Prepayment accrued interest to
such date on the amount prepaid. Each partial Term Loan B Mandatory Prepayment
shall be applied as follows: (i) fifty percent (50%) to principal against the
principal installments of the Term Loans B in the inverse order of their
maturities and (ii) fifty percent (50%) to all of the remaining principal
installments due on account of the Term Loans B on a pro rata basis.
Notwithstanding anything to the contrary contained herein, the Borrower shall
not be required to pay an Early Termination Fee as the result of a Term Loan B
Mandatory Prepayment.(a) (Mandatory Prepayments of Term Loan B) shall not
exceed at any time in the aggregate Five Hundred Thousand Dollars ($500,000).
(ii)Immediately upon closing and consummation of any public or
private offering of Indebtedness by the Borrower or any Subsidiary Guarantor
(excluding (i) the sale or transfer of all Securities issued by Venture
Southeast and/or Venture Southwest to the Borrower and (ii) the merger,
liquidation, consolidation or dissolution of Berry Venture, as contemplated by
the Venture Stock Purchaser/Merger Transaction), except for Indebtedness for
Borrowed Money permitted by (D) INDEBTEDNESS.
Neither the Borrower, Berry UK nor Norwich will create, incur, assume
or suffer to exist, or permit any Subsidiary to create, incur, assume or suffer
to exist, any Indebtedness for Borrowed Money, except: (Indebtedness), other
than subsection (d) of (D) INDEBTEDNESS.
Neither the Borrower, Berry UK nor Norwich will create, incur, assume
or suffer to exist, or permit any Subsidiary to create, incur, assume or suffer
to exist, any Indebtedness for Borrowed Money, except, the Borrower shall make
a Term Loan A Mandatory Prepayment in an amount equal to one hundred percent
(100%) of the Net Proceeds of such public or private offering; provided that a
Term Loan A Mandatory Prepayment shall not be required as the result of the
issuance of Indebtedness by the Borrower or any Subsidiary Guarantor, if (A)
such Indebtedness is issued pursuant to and is permitted by subsection (d) of
(D) INDEBTEDNESS.
Neither the Borrower, Berry UK nor Norwich will create, incur, assume
or suffer to exist, or permit any Subsidiary to create, incur, assume or suffer
to exist, any Indebtedness for Borrowed Money, excep and such Indebtedness
constitutes a "Refinancing Indebtedness" as defined in subsection (n) of (D)
INDEBTEDNESS.
Neither the Borrower, Berry UK nor Norwich will create, incur, assume or suffer
to exist, or permit any Subsidiary to create, incur, assume or suffer to exist,
any Indebtedness for Borrowed Money, excep, (B) if the Net Proceeds of such
Indebtedness are used, in whole, to finance a Permitted Acquisition or Capital
Expenditures as and to the extent permitted by the provisions of this
Agreement; and (C) the aggregate amount of Indebtedness under subsections (i)
and (ii) of this subsection (b) and the amount of Indebtedness under
subsections (i) and (ii) of (C) MANDATORY PREPAYMENTS OF TERM LOAN B.
Subject to the provisions of (D) INDEMNITY. (Indemnity), the Borrower shall
make mandatory prepayments (each a "Term Loan B Mandatory Prepayment" and
collectively the "Term Loan B Mandatory Prepayments") of the Term Loans B to
the Agent for the ratable benefit of the Lenders annually. Each Term Loan B
Mandatory Prepayment shall be in the amount of the Excess Cash Flow for the
then preceding fiscal year and shall be payable on the date the Borrower shall
furnish to the Agent the annual financial statements referred to in (A)
FINANCIAL STATEMENTS.
The Borrower shall furnish to the Agent for distribution to the Lenders:
(Financial Statements). If, however, the Borrower fails to furnish such
financial statements in any given year as and when required, the Borrower shall
be required to pay the Term Loan B Mandatory Prepayment payable during such
calendar year on the date which is ninety (90) days after the close of the
Borrower's then preceding fiscal year. The Borrower shall pay to the Agent on
the date of each required Term Loan B Mandatory Prepayment accrued interest to
such date on the amount prepaid. Each partial Term Loan B Mandatory Prepayment
shall be applied as follows: (i) fifty percent (50%) to principal against the
principal installments of the Term Loans B in the inverse order of their
maturities and (ii) fifty percent (50%) to all of the remaining principal
installments due on account of the Term Loans B on a pro rata basis.
Notwithstanding anything to the contrary contained herein, the Borrower shall
not be required to pay an Early Termination Fee as the result of a Term Loan B
Mandatory Prepayment.(b) (Mandatory Prepayments of Term Loan B), do not exceed
Twenty Million Dollars ($20,000,000).
The Borrower shall pay to the Agent on the date of each required Term Loan A
Mandatory Prepayment accrued interest to such date on the amount prepaid. Each
partial Term Loan A Mandatory Prepayment shall be applied to all of the
remaining principal installments due on account of the Term Loans A on a pro
rata basis. Notwithstanding anything to the contrary contained herein, the
Borrower shall not be required to pay an Early Termination Fee as the result of
a Term Loan A Mandatory Prepayment.
(D)OPTIONAL PREPAYMENTS OF TERM LOANS A.
Subject to the provisions of (D) INDEMNITY. (Indemnity), the Borrower may, at
its option, at any time and from time to time, prepay (each a "Term Loan A
Optional Prepayment" and collectively the "Term Loan A Optional Prepayments")
the Term Loans A, in whole or in part, upon five (5) Business Days prior
written notice, specifying the date and amount of prepayment. The amount to be
so prepaid, together with interest accrued thereon to date of prepayment if the
amount is intended as a prepayment of the Term Loans A in whole, shall be paid
by the Borrower to the Agent for the ratable benefit of the Lenders on the date
specified for such prepayment. Partial Term Loan A Optional Prepayments shall
be applied to all of the remaining principal installments due on account of the
Term Loans A on a pro rata basis.
SECTION 2.3TERM LOAN B FACILITY.
(A)TERM LOAN B COMMITMENTS.
Subject to and upon the terms of this Agreement, each Lender severally agrees
to make a loan (each a "Term Loan B"; and collectively, the "Term Loans B") to
the Borrower in the principal amount set forth below opposite such Lender's
name (herein called such Lender's "Term Loan B Committed Amount"). The total
of each Lender's Term Loan B Committed Amount is herein called the "Total Term
Loan B Committed Amount". The proportionate share set forth below opposite
each Lender's name is herein called such Lender's "Term Loan B Pro Rata Share":
Lender Term Loan B Committed Amount Term Loan B Pro Rata Share
Fleet $8,595,846 23.8525%
GE Capital $10,528,136 29.215%
Heller $6,384,632 17.7175%
NationsBank $10,528,136 29.215%
Total Term Loan B Committed $36,036,750 100%
Amount
At the request of the Borrower, the Lenders agreed to increase the Total Term
Loan B Committed Amount from $30,000,000 to $36,036,750 (the "Term Loan B
Increase"). The Borrower covenants and agrees to use the Term Loan B Increase
solely to make an equity contribution and/or intercompany loan to Berry UK to
enable Berry UK to finance the acquisition of the Norwich Stock in accordance
with the provisions of the Norwich Stock Purchase Transaction or for other
Permitted Uses in connection with the purchase of the Norwich Stock. The
Borrower represents and warrants to the Agent and the Lenders that as of the
Closing Date the Term Loan B Increase is equal to the lesser of (i) Eight
Million Dollars ($8,000,000) and (ii) the difference between (x) the total
purchase price (including fees and expenses reasonably incurred in connection
with the closing and consummation of the Norwich Stock Purchase Transaction) to
be paid by Berry UK for the Norwich Stock in accordance with the terms of the
Norwich Stock Purchase Agreement and (y) the Total UK Term Loan Committed
Amount.
The obligation of each Lender to make a Term Loan B (including its Pro Rata
Share of the Term Loan B Increase) is several and is limited to its Term Loan B
Committed Amount, and such obligation of each Lender is herein called its "Term
Loan B Commitment". The Term Loan B Commitment of each of the Lenders are
herein collectively referred to as the "Term Loan B Commitments". The Agent
shall not be responsible for the Term Loan B Commitment of any Lender; and
similarly, none of the Lenders shall be responsible for the Term Loan B
Commitment of any of the other Lenders; the failure, however, of any Lender to
perform its Term Loan B Commitment shall not relieve any of the other Lenders
from the performance of their respective Term Loan B Commitments.
(B)AMORTIZATION OF TERM LOANS B; THE TERM LOAN B NOTES.
The unpaid principal balance of the Term Loans B shall be due and payable in
quarterly installments of principal on each Installment Payment Date, each in
the following amounts at the following times:
DUE DATE AMOUNT
July 1, 1998 $1,000,000
October 1, 1998 $3,185,160
January 1, 1999 $3,185,160
April 1, 1999 $3,185,160
July 1, 1999 $3,185,160
October 1, 1999 $3,185,160
January 1, 1999 $3,185,160
April 1, 2000 $3,185,160
July 1, 2000 $3,185,160
October 1, 2000 $3,185,160
January 1, 2000 $3,185,160
April 1, 2001 $3,185,150
Unless sooner paid, the unpaid principal balance of the Term Loans B, together
with interest accrued and unpaid thereon, shall be due and payable in full on
April 1, 2001.
The obligation of the Borrower to pay the Term Loans B, with interest, shall be
evidenced by a series of promissory notes (each as from time to time extended,
amended, restated, supplemented or otherwise modified, the "Term Loan B Note"
and collectively, the "Term Loan B Notes"). Each Term Loan B Note shall be
dated as the date hereof and shall be payable to the order of a Lender at the
times provided in the Term Loan B Note, and shall be in the principal amount of
such Lender's Term Loan B Committed Amount, including its Pro Rata Share of the
Term Loan B Increase.
(C)MANDATORY PREPAYMENTS OF TERM LOAN B.
Subject to the provisions of (D) INDEMNITY. (Indemnity), the Borrower shall
make mandatory prepayments (each a "Term Loan B Mandatory Prepayment" and
collectively the "Term Loan B Mandatory Prepayments") of the Term Loans B to
the Agent for the ratable benefit of the Lenders annually. Each Term Loan B
Mandatory Prepayment shall be in the amount of the Excess Cash Flow for the
then preceding fiscal year and shall be payable on the date the Borrower shall
furnish to the Agent the annual financial statements referred to in (A)
FINANCIAL STATEMENTS.
The Borrower shall furnish to the Agent for distribution to the Lender
(Financial Statements). If, however, the Borrower fails to furnish such
financial statements in any given year as and when required, the Borrower shall
be required to pay the Term Loan B Mandatory Prepayment payable during such
calendar year on the date which is ninety (90) days after the close of the
Borrower's then preceding fiscal year. The Borrower shall pay to the Agent on
the date of each required Term Loan B Mandatory Prepayment accrued interest to
such date on the amount prepaid. Each partial Term Loan B Mandatory Prepayment
shall be applied as follows: (i) fifty percent (50%) to principal against the
principal installments of the Term Loans B in the inverse order of their
maturities and (ii) fifty percent (50%) to all of the remaining principal
installments due on account of the Term Loans B on a pro rata basis.
Notwithstanding anything to the contrary contained herein, the Borrower shall
not be required to pay an Early Termination Fee as the result of a Term Loan B
Mandatory Prepayment.
(D) OPTIONAL PREPAYMENTS OF TERM LOANS B.
Subject to the provisions of (D) INDEMNITY. (Indemnity), the Borrower may, at
its option, at any time and from time to time, prepay (each a "Term Loan B
Optional Prepayment" and collectively the "Term Loan B Optional Prepayments")
the Term Loans B, in whole or in part, upon five (5) Business Days prior
written notice, specifying the date and amount of prepayment. The amount to be
so prepaid, together with interest accrued thereon to date of prepayment if the
amount is intended as a prepayment of the Term Loans B in whole, shall be paid
by the Borrower to the Agent for the ratable benefit of the Lenders on the date
specified for such prepayment. Partial Term Loan B Optional Prepayments shall
be applied as follows: (a) fifty percent (50%) to principal against the
principal installments of the Term Loans B in the inverse order of their
maturities and (b) fifty percent (50%) to all of the remaining principal
installments due on account of the Term Loans B on a pro rata basis.
(E)TERM LOAN B FEES.
The Borrower shall pay to the Agent for the ratable benefit of the Lenders, a
quarterly fee, in arrears commencing with the earlier of (a) any quarter in
which an Event of Default existed or (b) the quarter ending September 30, 1998,
(collectively, the "Term Loan B Fees" and individually, a "Term Loan B Fee"),
in an amount to be determined based on the Pricing Ratio and calculated on the
average quarterly outstanding balance of the Term Loans B during such quarterly
period, as follows:
Pricing Ratio Per annum Quarterly Term
Loan B Fee
Greater than or equal to 6.0 to 1.0 37.5 basis .points
Greater than or equal to 5.0 to 1.0, but 25 basis points
less than 5.99 to 1.0
Greater than or equal to 4.50 to 1.0, but 12.5 basis points
less than 4.99 to 1.0
less than 4.50 to 1.0 0 basis points
Each accrued and unpaid Term Loan B Fee shall be paid by the Borrower to the
Agent at the time the quarterly statements are furnished under (iii) Quarterly
STATEMENTS AND CERTIFICATES. The Borrower shall furnish to the Agent for
distribution to the Lenders as soon as available, but in no event more than
forty-five (45) days after the close of the Borrower's fiscal quarters (other
than the final fiscal quarter), consolidated and consolidating balance sheets
of the Borrower, Berry UK, Norwich and all other Subsidiaries as of the close
of such period, consolidated and consolidating income, cash flows and changes
in shareholders equity statements for such period, and a Compliance
Certificate, in substantially the form attached to this Agreement as EXHIBIT D,
containing a detailed computation of each financial covenant in this Agreement
which is applicable for the period reported, each prepared by a Responsible
Officer of or on behalf of the Borrower in a format acceptable to the Agent,
all as prepared and certified by a Responsible Officer of the Borrower and
accompanied by a certificate of that officer stating whether any event has
occurred which constitutes a Default or an Event of Default hereunder, and, if
so, stating the facts with respect thereto. (Quarterly Statements), in arrears,
commencing September 30, 1998, and on the maturity date of the Term Loans B;
provided, however, in the event that the Borrower fails to deliver such
financial statements to the Agent as and when required, the Agent may estimate,
in its reasonable discretion and without waiving any Default or Event of
Default, the amount of the Term Loan B Fee, which amount shall be due and
payable ON DEMAND by the Agent.
SECTION 2.4 THE LETTER OF CREDIT FACILITY.
(A)LETTERS OF CREDIT.
Subject to and upon the provisions of this Agreement, and as a part of the
Revolving Credit Commitments, the Borrower may obtain standby or commercial
letters of credit (as the same may from time to time be amended, supplemented
or otherwise modified, each a "Letter of Credit" and collectively the "Letters
of Credit") from the Agent from time to time from the First Closing Date until
the Business Day preceding the Revolving Credit Termination Date. The Borrower
will not be entitled to obtain a Letter of Credit unless (a) the Borrower is
then able to obtain a Revolving Loan from the Lenders in an amount not less
than the proposed stated amount of the Letter of Credit requested by the
Borrower, and (b) the sum of the then Outstanding Letter of Credit Obligations
(including the amount of the requested Letter of Credit) does not exceed Five
Million Dollars ($5,000,000) (the "Letter of Credit Committed Amount").
(B)LETTER OF CREDIT FEES.
(i) The Borrower shall pay to the Agent, for its own account, an issuance fee
of one-quarter of one percent (1/4%) per annum of the stated amount of the
Letter of Credit without regard for provisions contained in the Letters of
Credit which may give rise to a reduction in the stated amount thereof unless
such reduction has actually occurred (each a "Letter of Credit Fronting Fee"
and collectively, the "Letter of Credit Fronting Fees"). The Letter of Credit
Fronting Fees shall be paid upon the opening of each Letter of Credit and upon
each anniversary thereof, if any. In addition, the Borrower shall pay to the
Agent all other reasonable and customary negotiation, processing, transfer or
other fees to the extent and as and when required by the provisions of any
Letter of Credit Agreement. All Letter of Credit Fronting Fees and all such
other additional fees are included in and are a part of the "Fees" payable by
the Borrower under the provisions of this Agreement and are for the sole and
exclusive benefit of the Agent and are a part of the Agent's Obligations.
(ii) In addition and in connection with each Letter of Credit, the Borrower
shall pay to the Agent for the ratable benefit of the Lenders quarterly, in
arrears, a letter of credit fee (each a "Letter of Credit Fee" and collectively
the "Letter of Credit Fees") in an amount equal to one hundred seventy-five
(175) basis points per annum (calculated on the basis of actual number of days
elapsed in a year of 360 days) of the stated amount of each such Letter of
Credit without regard for provisions contained in the Letters of Credit which
may give rise to a reduction in the stated amount thereof unless such reduction
has actually occurred. The accrued and unpaid portion of each Letter of Credit
Fee shall be paid by the Borrower to the Agent on the first day of each
February, May, August and November, commencing on the first such date following
the date hereof, and on the expiration or termination date of the respective
Letter of Credit.
(C)TERMS OF LETTERS OF CREDIT; POST-EXPIRATION DATE LETTERS OF
CREDIT.
Each Letter of Credit shall (a) be opened pursuant to a Letter of Credit
Agreement and (b) expire on a date not later than the Business Day preceding
the Revolving Credit Termination Date; provided, however, if any Letter of
Credit does have an expiration date later than the Business Day preceding the
Revolving Credit Termination Date (each a "Post-Expiration Date Letter of
Credit" and collectively, the "Post-Expiration Date Letters of Credit"),
effective as of the Business Day preceding the Revolving Credit Termination
Date and without prior notice to or the consent of the Borrower, the Lenders
shall make advances under the Revolving Loan for the account of the Borrower in
the aggregate stated amount of all such Letters of Credit. The amount of each
Lender's advance shall be equal to its Revolving Credit Pro Rata Share of the
aggregate stated amount of all such Letters of Credit. The Agent shall deposit
the proceeds of such advances into one or more non-interest bearing accounts
with and in the name of the Agent and over which the Agent alone shall have
exclusive power of access and withdrawal (collectively, the "Letter of Credit
Cash Collateral Account"). The Letter of Credit Cash Collateral Account is to
be held by the Agent, for the ratable benefit of the Lenders, as additional
collateral and security for any Letter of Credit Obligations relating to the
Post-Expiration Date Letters of Credit. The Borrower hereby assigns, pledges,
grants and sets over to the Agent, for the ratable benefit of the Lenders, a
first priority security interest in, and Lien on, all of the funds on deposit
in the Letter of Credit Cash Collateral Account, together with any and all
proceeds (cash and non-cash) and products thereof as additional collateral and
security for the Letter of Credit Obligations relating to the Post-Expiration
Date Letters of Credit. The Borrower acknowledges and agrees that the Agent
shall be entitled to fund any draw or draft on any Post-Expiration Date Letter
of Credit from the monies on deposit in the Letter of Credit Cash Collateral
Account without notice to or consent of the Borrower or any of the Lenders so
long as the drawing request substantially complied with the requirements of any
such Letter of Credit. The Borrower further acknowledges and agrees that the
Agent's election to fund any draw or draft on any Post-Expiration Date Letter
of Credit from the Letter of Credit Cash Collateral shall in no way limit,
impair, lessen, reduce, release or otherwise adversely affect the Borrower's
obligation to pay any unpaid Letter of Credit Obligations under or relating to
the Post-Expiration Date Letters of Credit. At such time as all Post-
Expiration Date Letters of Credit have expired and all Letter of Credit
Obligations relating to the Post-Expiration Date Letters of Credit have been
paid in full, the Agent agrees to apply the amount of any remaining funds on
deposit in the Letter of Credit Cash Collateral Account to the then unpaid
balance of the Obligations under the Revolving Credit Facility in such order
and manner as the Agent shall determine in its reasonable discretion in
accordance with the provisions of this Agreement.
Each Letter of Credit shall be issued for the sole purpose of a Permitted Use.
The aggregate stated amount of all Letters of Credit at any one time
outstanding and issued by the Agent pursuant to the provisions of this
Agreement, including, without limitation, any and all Post-Expiration Date
Letters of Credit, plus the amount of any unpaid Letter of Credit Fees and
Letter of Credit Fronting Fees accrued, and less the aggregate amount of all
drafts issued under such Letters of Credit that have been paid by the Agent and
for which the Agent has been reimbursed by the Borrower in full in accordance
with Section (E) TERM LOAN B FEES. (Term Loan B Fees) and the Letter of Credit
Agreements, and for which the Agent has no further obligation or commitment to
restore all or any portion of the amounts drawn and reimbursed, is herein
called the "Outstanding Letter of Credit Obligations".
(D)PROCEDURES FOR LETTERS OF CREDIT.
The Borrower shall give the Agent written notice at least five (5) Business
Days prior to the date on which the Borrower desires the Agent to issue a
Letter of Credit. Such notice shall be accompanied by a duly executed Letter
of Credit Agreement specifying, among other things: (a) the name and address
of the intended beneficiary of the Letter of Credit, (b) the requested stated
amount of the Letter of Credit, (c) whether the Letter of Credit is to be
revocable or irrevocable, (d) the Business Day on which the Letter of Credit is
to be opened and the date on which the Letter of Credit is to expire, (e) the
terms of payment of any draft or drafts which may be drawn under the Letter of
Credit, and (f) any other terms or provisions the Borrower desire to be
contained in the Letter of Credit. Such notice shall also be accompanied by
such other information, certificates, confirmations, and other items as the
Agent may reasonably require to assure that the Letter of Credit is to be
issued in accordance with the provisions of this Agreement and a Letter of
Credit Agreement. In the event of any conflict between the provisions of this
Agreement and the provisions of a Letter of Credit Agreement, the provisions of
this Agreement shall prevail and control unless otherwise expressly provided in
the Letter of Credit Agreement. Upon (y) receipt of such notice, (z) payment
of all Letter of Credit Fronting Fees and all other Fees payable in connection
with the issuance of such Letter of Credit, and (iii) receipt of a duly
executed Letter of Credit Agreement, the Agent shall process such notice and
Letter of Credit Agreement in accordance with its customary procedures and open
such Letter of Credit on the Business Day specified in such notice.
(E)PAYMENTS OF LETTERS OF CREDIT.
The Borrower hereby promises to pay to the Agent, ON DEMAND and in United
States Dollars, the following which are herein collectively referred to as the
"Current Letter of Credit Obligations":
(i)the amount which the Agent has paid under each draft or draw on a Letter of
Credit, whether such demand be in advance of the Agent's payment or for
reimbursement for such payment;
(ii)any and all reasonable charges and expenses which the Agent may pay or
incur relative to the Letter of Credit and/or such draws or drafts; and
(iii)interest on the amounts described in (a) and (b) not paid by the Borrower
as and when due and payable under the provisions of (a) and (b) above from the
day the same are due and payable until paid in full at a rate per annum equal
to the then current highest rate of interest on the Revolving Loan.
In addition, the Borrower hereby promises to pay any and all other Letter of
Credit Obligations as and when due and payable in accordance with the
provisions of this Agreement and the Letter of Credit Agreements. The
obligation of the Borrower to pay Current Letter of Credit Obligations and all
other Letter of Credit Obligations shall be absolute and unconditional under
any and all circumstances and irrespective of any setoff, counterclaim or
defense to payment which the Borrower or any other account party may have or
have had against the beneficiary of such Letter of Credit, the Agent, any of
the Lenders, or any other Person, including, without limitation, any defense
based on the failure of any draft or draw to conform to the terms of such
Letter of Credit, any draft or other document proving to be forged, fraudulent
or invalid, or the legality, validity, regularity or enforceability of such
Letter of Credit, any draft or other documents presented with any draft, any
Letter of Credit Agreement, this Agreement, or any of the other Financing
Documents, all whether or not the Agent or any of the Lenders had actual or
constructive knowledge of the same, and irrespective of any Collateral,
security or guarantee therefor or right of offset with respect thereto and
irrespective of any other circumstances whatsoever which constitutes, or might
be construed to constitute, an equitable or legal discharge of the Borrower for
any Letter of Credit Obligations, in bankruptcy or otherwise; PROVIDED,
HOWEVER, that the Borrower shall not be obligated to reimburse the Agent for
any wrongful payment under such Letter of Credit made as a result of the
Agent's willful misconduct or gross negligence. The obligation of the Borrower
to pay the Letter of Credit Obligations shall not be conditioned or contingent
upon the pursuit by the Agent or any other Person at any time of any right or
remedy against any Person which may be or become liable in respect of all or
any part of such obligation or against any Collateral, security or guarantee
therefor or right of offset with respect thereto.
The Letter of Credit Obligations shall continue to be effective, or be
reinstated, as the case may be, if at any time payment of all or any portion of
the Letter of Credit Obligations is rescinded or must otherwise be restored or
returned by the Agent or any of the Lenders upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of any Person, or upon or as a
result of the appointment of a receiver, intervenor, or conservator of, or
trustee or similar officer for, any Person, or any substantial part of such
Person's property, all as though such payments had not been made.
All payments by the Agent and the Lenders with respect to any of the Current
Letter of Credit Obligations shall be deemed to be advances under the Revolving
Loan contemporaneously as of the date any such Current Letter of Credit
Obligations due and owing; the proceeds of each such advance shall be used to
pay Current Letter of Credit Obligations in the amount of such advance.
SECTION 2.5 THE BOND LETTER OF CREDIT FACILITY.
(A)BOND LETTERS OF CREDIT.
Subject to and upon the provisions of the Bond Letter of Credit Agreements, the
Agent has agreed to issue the Bond Letters of Credit for the period commencing
on the First Closing Date and ending on the Revolving Credit Termination Date
(the "Bond Letter of Credit Commitment"). The Agent shall have no obligation
or commitment to issue a Bond Letter of Credit if the aggregate stated amount
of all Bond Letters of Credit then outstanding or proposed to be issued exceeds
Eighteen Million Eight Hundred Fifty-Two Thousand Dollars ($18,852,000) (the
"Bond Letter of Credit Committed Amount").
(B)BOND LETTER OF CREDIT FEES.
(i)The Borrower shall pay to the Agent, for its own account, an issuance fee of
one-quarter of one percent (1/4%) per annum of the stated amount of each Bond
Letter of Credit, without regard for provisions contained in the Bond Letter of
Credit which may give rise to a reduction in the stated amount thereof unless
such reduction has actually occurred (each a "Bond Letter of Credit Fronting
Fee" and collectively, the "Bond Letter of Credit Fronting Fees"). The Bond
Letter of Credit Fronting Fees shall be paid upon the issuance of each Bond
Letter of Credit and upon each anniversary thereof, if any. In addition, the
Borrower shall pay to the Agent all other reasonable and customary negotiation,
processing, transfer or other fees to the extent and as and when required by
the provisions of any Bond Letter of Credit Agreement. All Bond Letter of
Credit Fronting Fees and all such other additional fees are included in and are
a part of the "Fees" payable by the Borrower under the provisions of this
Agreement and are for the sole and exclusive benefit of the Agent and are a
part of the Agent's Obligations.
(ii) In addition and in connection with each Bond Letter of Credit, the
Borrower shall pay to the Agent for the ratable benefit of the Lenders
quarterly, in arrears, a letter of credit fee (each a "Bond Letter of Credit
Fee" and collectively the "Bond Letter of Credit Fees") in an amount equal to
one hundred seventy-five (175) basis points per annum (calculated on the basis
of actual number of days elapsed in a year of 360 days) of the stated amount of
each such Bond Letter of Credit, without regard for provisions contained in the
Bond Letter of Credit which may give rise to a reduction in the stated amount
thereof unless such reduction has actually occurred. The accrued and unpaid
portion of each Bond Letter of Credit Fee shall be paid by the Borrower to the
Agent, for the ratable benefit of the Lenders, on the first day of each
February, May, August and November, commencing on the first such date following
the date hereof, and on the expiration or termination date of the respective
Bond Letter of Credit.
(C)TERMS OF BOND LETTERS OF CREDIT.
Each Bond Letter of Credit shall (a) be issued pursuant to a Bond Letter of
Credit Agreement and (b) expire on a date not later than the Business Day
preceding the Revolving Credit Termination Date; provided, however, that (i)
the initial Iowa Bond Letter of Credit - NB issued as security for the Iowa
Bond Letter of Credit and the Iowa Bond Standby Credit Agreement shall expire
on the expiry date of the Iowa Bond Letter of Credit and Iowa Bond Standby
Credit Agreement, (ii) the initial Nevada Bond Letter of Credit - NB issued as
security for the Nevada Bond Letter of Credit shall expire on the expiry date
of the Nevada Bond Letter of Credit and (iii) the initial South Carolina Bond
Letter of Credit - NB issued as security for the South Carolina Bond Letter of
Credit shall expire on the expiry date of the South Carolina Bond Letter of
Credit. Each Bond Letter of Credit shall be issued for the sole purpose of
providing collateral for the Iowa Bonds, the Nevada Bonds, the South Carolina
Bonds, the Iowa Bond Letter of Credit, the Nevada Bond Letter of Credit or the
South Carolina Bond Letter of Credit or for any other purposes required by the
Nevada Bonds, the Iowa Bonds or the South Carolina Bonds. The aggregate stated
amount of all Bond Letters of Credit at any one time outstanding and issued by
the Agent pursuant to the provisions of this Agreement, plus the amount of any
unpaid Bond Letter of Credit Fees and Bond Letter of Credit Fronting Fees
accrued or scheduled to accrue thereon, and less the aggregate amount of all
drafts drawn under or purporting to have been drawn under such Bond Letters of
Credit that have been paid by the Agent and for which the Agent has been
reimbursed by the Borrower in full in accordance with Section (E) PAYMENTS OF
BOND LETTERS OF CREDIT. (Payments of Bond Letters of Credit) and the Bond
Letter of Credit Agreements, and for which the Agent has no further obligation
or commitment to restore all or any portion of the amounts drawn and
reimbursed, is herein called the "Outstanding Bond Letter of Credit
Obligations".
(D)PROCEDURES FOR BOND LETTERS OF CREDIT.
The Borrower shall give the Agent written notice at least five (5) Business
Days prior to the date on which the Borrower desires the Agent to issue a Bond
Letter of Credit. Such notice shall be accompanied by a duly executed Bond
Letter of Credit Agreement specifying, among other things: (a) the name and
address of the intended beneficiary of the Bond Letter of Credit, (b) the
requested stated amount of the Bond Letter of Credit, (c) that the Bond Letter
of Credit is to be irrevocable, (d) the Business Day on which the Bond Letter
of Credit is to be issued and the date on which the Bond Letter of Credit is to
expire, (e) the terms of payment of any draft or drafts which may be drawn
under the Bond Letter of Credit, and (f) any other terms or provisions the
Borrower desire to be contained in the Bond Letter of Credit. Such notice
shall also be accompanied by such other information, certificates,
confirmations, and other items as the Agent may reasonably require to assure
that the Bond Letter of Credit is to be issued in accordance with the
provisions of this Agreement and a Bond Letter of Credit Agreement. In the
event of any conflict between the provisions of this Agreement and the
provisions of a Bond Letter of Credit Agreement, the provisions of this
Agreement shall prevail and control unless otherwise expressly provided in the
Bond Letter of Credit Agreement. Upon (x) receipt of such notice, (y) payment
of all Bond Letter of Credit Fronting Fees and all other Fees payable in
connection with the issuance of such Bond Letter of Credit, and (z) receipt of
a duly executed Bond Letter of Credit Agreement, the Agent shall process such
notice and Bond Letter of Credit Agreement in accordance with its customary
procedures and issue such Bond Letter of Credit on the Business Day specified
in such notice, subject to compliance by all parties with the requirements of
the Iowa Bond Trust Agreement, the Nevada Bond Trust Agreement and the South
Carolina Bond Trust Agreement, pertaining to the replacement of credit
enhancement and liquidity facilities relating to the Iowa Bonds, the Nevada
Bonds, and the South Carolina Bonds, respectively.
(E)PAYMENTS OF BOND LETTERS OF CREDIT.
(i)Subject to the provisions of paragraph (b) below, the Borrower hereby
promises to pay to the Agent, ON DEMAND and in United States Dollars, the
following which are herein collectively referred to as the "Current Bond Letter
of Credit Obligations":
(A) the amount which the Agent has paid under each draft or draw
on a Bond Letter of Credit, whether such demand be in advance of the Agent's
payment or for reimbursement for such payment;
(B) any and all reasonable charges and expenses which the Agent
may pay or incur relative to the Bond Letter of Credit and/or such draws or
drafts; and
(C) interest on the amounts described in (i) and (ii) not paid
by the Borrower as and when due and payable under the provisions of (i) and
(ii) above from the day the same are due and payable until paid in full at a
rate per annum equal to the then current highest rate of interest on the
Revolving Loan.
(ii) Notwithstanding the provisions of paragraph (a) above, as long as no Event
of Default has occurred, any drawing under the Iowa Bond Letter of Credit - NB
to redeem Iowa Bonds purchased with a drawing under the Iowa Bond Standby
Credit Agreement, any drawing under the Nevada Bond Letter of Credit - NB to
purchase Nevada Bonds, and any drawing under the South Carolina Bond Letter of
Credit - NB to purchase South Carolina Bonds, in each case relating to Bonds
which were tendered for purchase by the holders thereof and which were not
remarketed in a timely fashion (each referred to herein as a "Conversion
Drawing"), are not required to be reimbursed to the Agent ON DEMAND; provided
that BIC or the Borrower, as appropriate, make payments of interest to the
Agent at the rates, at the times and otherwise subject to the provisions for
interest on the Loans under INTEREST. (Interest), and the principal amount of
each such Conversion Drawing is repaid in equal quarterly payments (i) over the
remaining term to expiry of the Bond Letter of Credit Facility with respect to
the Nevada Bond Letter of Credit - NB and/or the South Carolina Bond Letter of
Credit - NB and (ii) over a period of ten (10) years with respect to the Iowa
Bond Letter of Credit - NB; final payment of all outstanding amounts relating
to the Nevada Bond Letter of Credit - NB and/or the South Carolina Bond Letter
of Credit - NB to be made no later than expiry of the Bond Letter of Credit
Facility or the Revolving Credit Termination Date, whichever is earlier, and
final payment of all outstanding amounts relating to the Iowa Bond Letter of
Credit - NB to be made no later than the date which is ten (10) years after the
date of any Conversion Drawing under the Iowa Bond Letter of Credit - NB or the
Revolving Credit Termination Date, whichever is earlier. In addition, the
Agent and the Lenders agree that in the event the Iowa Bond Trustee draws on
the Iowa Bond Letter of Credit on or about the business day preceding the
expiration or termination of the Iowa Bond Letter of Credit, as contemplated by
Section 505 of the Iowa Bond Trust Agreement (the "Draw"), the Iowa Bond Letter
of Credit Obligations resulting from the Draw, shall not be payable ON DEMAND
as would otherwise be required by this Section (E) PAYMENTS OF BOND LETTERS OF
CREDIT., but shall be repaid by the Borrower in equal consecutive quarterly
installments over a period of ten (10) years, commencing with the first day
following the first full quarterly period after the Draw and continuing on the
first day of each quarterly period thereafter (the "Amortizing Iowa Bond Letter
of Credit Obligations"); provided, that (A) there does not exist a Default or
an Event of Default, (B) the Draw is not the result of an acceleration of the
Iowa Bonds pursuant to Section 1102 of the Iowa Bond Trust Agreement and (C)
the Draw is not the result of the occurrence of a "Determination of Taxability"
(as defined in the Iowa Bond Trust Agreement). Interest shall be payable on
the Amortizing Iowa Bond Letter of Credit Obligations to the Agent at the
rates, at the times and otherwise subject to the provisions for interest on the
Loans under INTEREST. (Interest), with a final payment of all outstanding
amounts relating to the Iowa Bond Letter of Credit - NB to be made no later
than the date which is ten (10) years after the date of the Draw or the
Revolving Credit Termination Date, whichever is earlier.
In the event that any of the payments required by this paragraph (b) are not
made when due or an Event of Default occurs, all of the foregoing amounts shall
be immediately due and payable ON DEMAND.
(iii)In addition, the Borrower hereby promises to pay any and all other Bond
Letter of Credit Obligations as and when due and payable in accordance with the
provisions of this Agreement and the Bond Letter of Credit Agreements. The
obligation of the Borrower to pay Current Bond Letter of Credit Obligations and
all other Bond Letter of Credit Obligations shall be absolute and unconditional
under any and all circumstances and irrespective of any setoff, counterclaim or
defense to payment which the Borrower or any other account party may have or
have had against the beneficiary of such Bond Letter of Credit, the Agent, any
of the Lenders, or any other Person, including, without limitation, any defense
based on the failure of any draft or draw to conform to the terms of such Bond
Letter of Credit, any draft or other document proving to be forged, fraudulent
or invalid, or the legality, validity, regularity or enforceability of such
Bond Letter of Credit, any draft or other documents presented with any draft,
any Bond Letter of Credit Agreement, this Agreement, any of the Bond Letter of
Credit Agreement Documents, or any of the other Financing Documents, all
whether or not the Agent or any of the Lenders had actual or constructive
knowledge of the same, and irrespective of any Collateral, security or
guarantee therefor or right of offset with respect thereto and irrespective of
any other circumstances whatsoever which constitutes, or might be construed to
constitute, an equitable or legal discharge of the Borrower for any Bond Letter
of Credit Obligations, in bankruptcy or otherwise; PROVIDED, HOWEVER, that the
Borrower shall not be obligated to reimburse the Agent for any wrongful payment
under such Bond Letter of Credit made as a result of the Agent's willful
misconduct or gross negligence. The obligation of the Borrower to pay the Bond
Letter of Credit Obligations shall not be conditioned or contingent upon the
pursuit by the Agent or any other Person at any time of any right or remedy
against any Person which may be or become liable in respect of all or any part
of such obligation or against any Collateral, security or guarantee therefor or
right of offset with respect thereto.
The Bond Letter of Credit Obligations shall continue to be effective, or be
reinstated, as the case may be, if at any time payment of all or any portion of
the Bond Letter of Credit Obligations is rescinded or must otherwise be
restored or returned by the Agent or any of the Lenders upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of any Person, or upon
or as a result of the appointment of a receiver, intervenor, or conservator of,
or trustee or similar officer for, any Person, or any substantial part of such
Person's property, all as though such payments had not been made.
SECTION 2.6 THE SPECIAL SOURCE BOND FACILITY.
(A)SPECIAL SOURCE BOND.
Subject to the provisions of the Special Source Bond Assignment, the Agent
purchased the Special Source Bond and the Special Source Bond Documents from
Bank One, Cleveland, N.A. as of August 29, 1997 (the "Special Source Bond
Facility"). The Borrower acknowledges and agrees that as of August 29, 1997,
the unpaid balance of the Special Source Bond Obligations was Eight Hundred
Sixty Thousand Five Hundred Seventy-five Dollars and Seven Cents ($860,575.07),
which consisted of (i) an unpaid principal balance of Eight Hundred Fifty-five
Thousand Dollars ($855,000.00) and (ii) unpaid and accrued interest in the
amount of Five Thousand Five Hundred Seventy-five Dollars and Seven Cents
($5,575.07).
(B)CURRENT TERMS OF SPECIAL SOURCE BOND.
The Borrower acknowledges and agrees that as of the date of the Agent's
purchase of the Special Source Bond (i) the unpaid principal balance of the
Special Source Bond Obligations bears interest at the "Prime Rate", which is
defined in the Special Source Bond as the variable rate established and quoted
by Banc One, Cleveland, N.A. as its "prime rate" (the "Special Source Bond
Interest Rate"), (ii) accrued interest is payable by the Special Source Bond
Issuer on the first day of each February and August of each calendar year until
maturity, (iii) the Special Source Bond matures and becomes due and payable in
full on February 1, 2006 (the "Special Source Bond Maturity Date"), and (iv)
the unpaid principal balance of the Special Source Bond is due and payable in
consecutive annual installments on the first day of each February in each year,
commencing on February 1, 1998 and continuing on the first day of each February
thereafter, up to and including, February 1, 2006 in the following amounts:
YEAR OF PAYMENT AMOUNT OF PAYMENT
1998 $ 50,000
1999 $ 65,000
2000 $105,000
2001 $125,000
2002 $115,000
2003 $105,000
2004 $100,000
2005 $ 95,000
2006 $ 95,000
(C)MANDATORY PREPAYMENT OF SPECIAL SOURCE BOND.
If the Special Source Bond Obligations have not been prepaid in full on or
before the Revolving Credit Termination Date, the Borrower shall prepay the
Special Source Bond Obligations in full and all Special Source Bond Obligations
shall be deemed due and payable in full on the Revolving Credit Termination
Date.
(D)PARTICIPATIONS IN THE SPECIAL SOURCE BOND OBLIGATIONS.
Effective as of March 5, 1998 (the "Special Source Bond Settlement Date"), each
Lender shall have an undivided participating interest in (i) the rights and
obligations of the Agent under the Special Source Bond and each of the Special
Source Bond Documents and (ii) the Special Source Bond Obligations, in an
amount equal to each Lender's Pro Rata Share of the Special Source Bond
Obligations. Each Lender shall pay its Pro Rata Share of the Special Source
Obligations to the Agent on the Special Source Bond Settlement Date in
immediately available funds, without any setoff, counterclaim or deduction of
any kind. Any payment by a Lender hereunder shall in no way release, discharge
or lessen the obligation of the Borrower and the Subsidiary Guarantors to pay
the Special Source Bond Obligations to the Agent in accordance with the
provisions of this Agreement and the Special Source Bond Documents.
SECTION 2.7 THE UK REVOLVING CREDIT FACILITY.
(A)UK REVOLVING CREDIT FACILITY.
Subject to and upon the terms of this Agreement, NationsBank establishes a
revolving credit facility in favor of Berry UK and Norwich in an amount equal
to One Million Five Hundred Thousand Pounds Sterling (?1,500,000) (the "UK
Revolving Credit Committed Amount"). The aggregate of all advances under the
UK Revolving Credit Facility is sometimes referred to in this Agreement
collectively as the "UK Revolving Loan". Each Lender hereby irrevocably
authorizes NationsBank to make advances under the UK Revolving Loan, acting
through its Sterling LIBOR Lending Office, in accordance with the provisions of
this Agreement. Subject to the terms and conditions of Section (E)
PARTICIPATIONS IN THE UK CREDIT FACILITIES., as of the date each advance is
made by NationsBank, acting through its Sterling LIBOR Lending Office, under
the UK Revolving Loan pursuant to the provisions of this Agreement, each Lender
shall have an undivided participating interest in (a) the rights and
obligations of NationsBank in each advance and (b) the UK Obligations with
respect to such advance in an amount equal to the proportionate share set forth
below opposite each Lender's name (herein called such Lender's "UK Revolving
Credit Pro Rata Share"):
Lender UK Revolving Credit Committed UK Revolving Credit Pro Rata
Amount Share
Fleet $357,785 23.8525%
GE Capital $438,225 29.215%
NationsBank $438,225 29.215%
Heller $265,765 17.7175%
UK Revolving Credit Committed $1,500,000 100%
Amount
During the UK Revolving Credit Commitment Period, Berry UK and/or Norwich may
request advances under the UK Revolving Credit Facility in accordance with the
provisions of this Agreement; provided that after giving effect to a borrowing
request the aggregate outstanding principal balance of the UK Revolving Loan
would not exceed the lesser of (i) the UK Revolving Credit Committed Amount or
(ii) the UK Borrowing Base.
All advances under the UK Revolving Loan shall be made in Pounds Sterling.
(B)PROCEDURE FOR MAKING ADVANCES UNDER THE UK REVOLVING LOAN.
Berry UK and/or Norwich may borrow under the UK Revolving Credit Facility
on any Business Day. Each advance shall be in an amount at least equal to,
and in increments of, One Hundred Fifty Thousand Pounds Sterling
(?150,000). Advances under the UK Revolving Loan shall be applied as
directed by Berry UK, which direction NationsBank may require to be in
writing. Not later than 10:00 a.m. (London Time) on the date of the
requested borrowing, Berry UK shall give NationsBank a Loan Notice of the
amount (denominated in Sterling) and (if requested by NationsBank) the
purpose of the requested borrowing. Any oral Loan Notice shall be
confirmed in writing by Berry UK, within three (3) Business Days after the
making of the requested advance under the UK Revolving Loan.
In addition, Berry UK and Norwich each hereby irrevocably authorize
NationsBank, with the consent of the Requisite Lenders, at any time and
from time to time, without further request from or notice to Berry UK or
Norwich, to make advances, acting through its Sterling LIBOR Lending
Office, under the UK Revolving Loan which NationsBank, deems necessary or
appropriate to protect the interests of NationsBank (and/or any of the
Lenders) under this Agreement, including, without limitation, advances
under the UK Revolving Loan made to cover debit balances in the UK
Revolving Loan Account, to pay principal of, and/or interest on, any Loan
to Berry UK and/or Norwich, the UK Obligations, and/or Enforcement Costs to
the extent such Enforcement Costs relate solely to the UK Obligations,
prior to, on, or after the termination of other advances under this
Agreement, regardless of whether the outstanding principal amount of the UK
Revolving Loan which NationsBank may advance hereunder exceeds the UK
Revolving Credit Committed Amount. NationsBank acknowledges and agrees
that no Lender shall have any obligation to purchase a participation
interest in any such advances unless otherwise agreed in writing by such
Lender, if and to the extent such Lender's Pro Rata Share of the UK
Revolving Loan would exceed, with the purchase of a participation in any
such advances, such Lender's UK Revolving Credit Committed Amount.
(C)UK BORROWING BASE.
As used in this Agreement, the term "UK Borrowing Base" means at any time,
an amount equal to the aggregate of (a) eighty-five percent (85%) of the
amount of Eligible UK Receivables, plus (b) the lesser of (i) sixty percent
(60%) of the amount of Eligible UK Inventory or (ii) Five Hundred Thousand
Pounds Sterling (?500,000).
The UK Borrowing Base shall be computed based on the UK Borrowing Base
Report most recently delivered to and accepted by NationsBank in its
reasonable discretion. In the event Berry UK and Norwich fail to furnish a
UK Borrowing Base Report required by Section (D) UK BORROWING BASE REPORT.
(UK Borrowing Base Report), NationsBank may suspend the making of or limit
advances under the UK Revolving Loan. The UK Borrowing Base shall be
reduced by the amount of any Account or any Inventory which was included in
the UK Borrowing Base, but which NationsBank determines fails to meet the
respective criteria applicable from time to time for Eligible UK
Receivables or Eligible UK Inventory.
If at any time the total of the aggregate principal amount of the UK
Revolving Loan exceeds the UK Borrowing Base, a borrowing base deficiency
(each a "UK Borrowing Base Deficiency") shall exist. Each time a UK
Borrowing Base Deficiency exists, Berry UK and Norwich, at the sole and
absolute discretion of NationsBank exercised from time to time, jointly and
severally shall pay the UK Borrowing Base Deficiency ON DEMAND to
NationsBank from time to time.
Without implying any limitation on NationsBank's discretion with respect to
the UK Borrowing Base, the criteria for Eligible UK Receivables and for
Eligible UK Inventory contained in the respective definitions of Eligible
UK Receivables and of Eligible UK Inventory are in part based upon the
business operations of Norwich and Berry UK existing on or about the date
of this Agreement and upon information and records furnished to NationsBank
by Berry UK and Norwich. If at any time or from time to time hereafter,
the business operations of Norwich or Berry UK changes in any material
respect or such information and records furnished to NationsBank are
materially incorrect or misleading, NationsBank in its reasonable
discretion, may at any time and from time to time during the duration of
this Agreement change such criteria, add new criteria, make existing
criteria less onerous, or remove existing criteria; provided, however, that
any such change in, or addition or removal of criteria shall be effective
only after notice thereof from NationsBank to Berry UK or Norwich. Except
in emergency circumstances, NationsBank agrees to use its commercially
reasonable efforts to consult with Berry UK or Norwich prior to the
effective date of any addition to, or change in, eligibility criteria, but
that NationsBank shall have no obligation or duty to reach an agreement
with Berry UK or Norwich as a condition of, or prior to, imposing any
changes in, or additions to, eligibility criteria. NationsBank shall
communicate such changed or additional criteria to Berry UK or Norwich from
time to time either orally or in writing.
(D)UK BORROWING BASE REPORT.
Norwich and Berry UK will furnish to NationsBank no less frequently than
monthly, as soon as available, but in any event within thirty (30) days of
the end of each fiscal month, and, upon the occurrence of an Event of
Default or as otherwise provided in this Section (D) UK BORROWING BASE
REPORT., at such other times as may be requested by NationsBank a report of
the UK Borrowing Base in the form attached hereto as Exhibit A-2 (each a
"UK Borrowing Base Report"; collectively, the "UK Borrowing Base Reports")
in the form required from time to time by NationsBank, appropriately
completed and duly signed. The UK Borrowing Base Report shall contain the
amount and payments on the Accounts included in the UK Borrowing Base, the
value of Inventory included in the UK Borrowing Base, and the calculations
of the UK Borrowing Base, all in such detail, and accompanied by such
supporting and other information, as NationsBank may from time to time
reasonably request. Upon NationsBank's request and upon the creation of
any Accounts included in the UK Borrowing Base, Norwich and/or Berry UK, as
appropriate, will provide NationsBank with (a) confirmatory assignment
schedules; (b) copies of Account Debtor invoices; (c) evidence of shipment
or delivery; and (d) such further schedules, documents and/or information
regarding such Accounts and such Inventory as NationsBank may reasonably
require. The items to be provided under this subsection shall be in form
reasonably satisfactory to NationsBank, and certified as true and correct
by a Responsible Officer, and delivered to NationsBank from time to time
solely for NationsBank's convenience in maintaining records of the UK
Collateral. The failure of Norwich or Berry UK to deliver any such items
to NationsBank shall not affect, terminate, modify, or otherwise limit the
Liens of NationsBank in the UK Collateral. Notwithstanding the foregoing,
Berry UK and Norwich acknowledge and agree that NationsBank, at its option,
may require that Norwich and Berry UK furnish to NationsBank weekly and, if
requested by NationsBank, daily UK Borrowing Base Reports upon the
occurrence of a Borrowing Base Trigger Event. NationsBank agrees that it
shall not be entitled to require that Norwich or Berry UK furnish weekly or
daily UK Borrowing Base Reports solely as the result of the occurrence of a
Borrowing Base Trigger Event, if NationsBank fails to so notify Berry UK
and Norwich within ninety (90) days of the date that the Borrower has cured
the Borrowing Base Trigger Event to the reasonable satisfaction of
NationsBank. The foregoing sentence, however, shall not prevent
NationsBank from later requiring more frequent UK Borrowing Base Reports
following the occurrence of any subsequent Borrowing Base Trigger Event;
provided, that NationsBank so notifies the Borrower within ninety (90) days
of date that the Borrower has cured the Borrowing Base Trigger Event to the
reasonable satisfaction of NationsBank.
(E) UK REVOLVING CREDIT NOTE.
The joint and several obligation of Berry UK and Norwich to pay the UK
Revolving Loan, with interest, shall be evidenced by a promissory note (as
from time to time extended, amended, restated, supplemented or otherwise
modified, the "UK Revolving Credit Note"). The UK Revolving Credit Note
shall be dated as of the date of this Agreement, shall be payable to the
order of NationsBank at the times provided in the UK Revolving Credit Note,
and shall be in the principal amount of the UK Revolving Credit Committed
Amount. Berry UK and Norwich acknowledge and agree that, if the
outstanding principal balance of the UK Revolving Loan outstanding from
time to time exceeds the stated amount of the UK Revolving Credit Note, the
excess shall bear interest at the rates provided from time to time for
advances under the UK Revolving Loan evidenced by the UK Revolving Credit
Note and shall be payable, with accrued interest, ON DEMAND to NationsBank,
acting through its Sterling LIBOR Lending Office. The UK Revolving Credit
Note shall not operate as a novation of any of the UK Obligations or
nullify, discharge, or release any such UK Obligations or the continuing
contractual relationship of the parties hereto in accordance with the
provisions of this Agreement.
(F)MANDATORY PREPAYMENTS OF UK REVOLVING LOAN.
Subject to the provisions of Section (D) INDEMNITY. (Indemnity), upon the
request of NationsBank pursuant to Section (C) UK BORROWING BASE. (UK
Borrowing Base), Berry UK and Norwich jointly and severally shall make
mandatory prepayments (each a "UK Revolving Loan Mandatory Prepayment" and
collectively, the "UK Revolving Loan Mandatory Prepayments") of the UK
Revolving Loan at any time and from time to time in order to cover any UK
Borrowing Base Deficiency.
(G)OPTIONAL PREPAYMENTS OF UK REVOLVING LOAN.
Subject to the provisions of Section (D) INDEMNITY. (Indemnity), Berry UK
and Norwich shall have the option at any time and from time to time prepay
(each a "UK Revolving Loan Optional Prepayment" and collectively the "UK
Revolving Loan Optional Prepayments") the UK Revolving Loan, in whole or in
part without premium or penalty. UK Revolving Loan Optional Prepayments
shall be made following a timely and proper written notice to NationsBank
with respect thereto specifying the date and amount of any intended UK
Revolving Loan Optional Prepayment. The amount to be prepaid shall be paid
by Berry UK or Norwich to NationsBank on the date specified for such
prepayment. Any amounts repaid or prepaid may be readvanced and reborrowed
subject to the provisions of this Agreement.
(H)UK REVOLVING LOAN ACCOUNT.
NationsBank will establish and maintain a loan account on its books (the
"UK Revolving Loan Account") to which NationsBank will (a) DEBIT (i) the
principal amount of each advance under the UK Revolving Loan made by
NationsBank hereunder, acting through its Sterling LIBOR Lending Office, as
of the date made, (ii) the amount of any interest accrued on the UK
Revolving Loan as and when due, and (iii) any other amounts due and payable
by Berry UK and/or Norwich to NationsBank from time to time under the
provisions of this Agreement in connection with the UK Obligations, as and
when due and payable, and (b) CREDIT all payments made by Berry UK and/or
Norwich to NationsBank on account of the UK Revolving Loan as of the date
made. All credit entries to the UK Revolving Loan Account are conditional
and shall be readjusted as of the date made if final and indefeasible
payment is not received by NationsBank, at its Sterling LIBOR Lending
Office, in cash or solvent credits. Berry UK and Norwich hereby jointly
and severally promise to pay to the order of NationsBank, on the UK
Revolving Credit Termination Date, an amount equal to the excess, if any,
of all debit entries over all credit entries recorded in the UK Revolving
Loan Account under the provisions of this Agreement. Any and all periodic
or other statements or reconciliations, and the information contained in
those statements or reconciliations, of the UK Revolving Loan Account shall
be presumed conclusively to be correct, and shall constitute an account
stated between NationsBank, Norwich and Berry UK unless NationsBank
receives specific written objection thereto from Berry UK or Norwich within
thirty (30) Business Days after such statement or reconciliation shall have
been sent by NationsBank. Any and all periodic or other statements or
reconciliations, and the information contained in those statements or
reconciliations, of the UK Revolving Loan Account shall be final, binding
and conclusive upon Berry UK and Norwich in all respects, absent manifest
error, unless NationsBank receives specific written objection thereto from
Berry UK or Norwich within thirty (30) Business Days after such statement
or reconciliation shall have been sent by NationsBank.
(I)UK REVOLVING CREDIT FACILITY FEE.
Berry UK and Norwich jointly and severally shall pay to NationsBank in
Pounds Sterling (for the benefit of NationsBank and each of the other
Lenders) annually, in advance, a UK Revolving Credit Facility fee
(collectively, the "UK Revolving Credit Facility Fees" and individually, a
"UK Revolving Credit Facility Fee") in an amount equal to one-eighth of one
percent (1/8%) per annum (calculated on the basis of actual number of days
elapsed in a year of 365 days) of the UK Revolving Credit Committed Amount
in effect from time to time. The accrued and unpaid UK Revolving Credit
Facility Fee shall be paid by Berry UK and Norwich to NationsBank on the
Closing Date and on each anniversary date thereof. NationsBank agrees to
remit to each other Lender its UK Revolving Credit Pro Rata Share of each
UK Revolving Credit Facility Fee promptly following the receipt by
NationsBank, in collected funds and in Pounds Sterling, of payment from
Berry UK and/or Norwich of such UK Revolving Credit Facility Fee.
SECTION 2.8 UK TERM LOAN FACILITY.
(A)UK TERM LOAN COMMITMENTS.
Subject to and upon the terms of this Agreement, NationsBank agrees to make
a loan acting through its Sterling LIBOR Lending Office, (the "UK Term
Loan") to Berry UK in the principal amount of Four Million Five Hundred
Thousand Pounds Sterling (<pound-sterling>4,500,000) (the "UK Term Loan
Committed Amount"). Subject to the terms and conditions of Section (E)
PARTICIPATIONS IN THE UK CREDIT FACILITIES., as of the date the UK Term
Loan is made by NationsBank, each Lender shall have an undivided
participating interest in (a) the rights and obligations of NationsBank in
the UK Term Loan, and (b) the UK Obligations with respect to such advance
in an amount equal to the proportionate share set forth below opposite each
Lender's name (herein called such Lender's "UK Term Loan Pro Rata Share"):
Lender UK Term Loan Committed Amount UK Term Loan Pro Rata Share
Fleet $1,073,385 23.8525%
GE Capital $1,314,675 29.215%
Heller $797,310 17.7175%
NationsBank $1,314,675 29.215%
UK Term Loan Committed Amount $4,500,000 100%
Berry UK covenants and agrees to use the UK Term Loan solely to finance the
acquisition of the Norwich Stock in accordance with the provisions of the
Norwich Stock Purchase Transaction and for other Permitted Uses in
connection with the transactions contemplated thereby. Berry UK represents
and warrants as of the Closing Date to NationsBank that the UK Term Loan
Committed Amount is equal to the lesser of (i) Four Million Five Hundred
Thousand Sterling (?4,500,000) and (ii) the sum of (x) eighty percent (80%)
of the orderly liquidation value of the Fixed and Capital Assets of Norwich
and Berry UK, (y) seventy-five percent (75%) of the fair market value of
all real property owned by Norwich and Berry UK as of the date of this
Agreement (after deduction of the outstanding principal amounts secured by
any Liens which will not be released as part of the closing and
consummation of the Norwich Stock Purchase Transaction), and (z)
?1,500,000. Berry UK further represents and warrants that as of the
Closing Date, the sum of the UK Term Loan Committed Amount, plus the Term
Loan B Increase, plus the UK Revolving Credit Committed Amount is not
greater than Fifteen Million Dollars ($15,000,000). For purposes of this
Section 2.8.1, in calculating the U.S. Dollar equivalent of the UK Term
Loan Committed Amount and the UK Revolving Credit Committed Amount, the
Agent shall use the Dollar Currency Equivalent of Sterling.
The obligation of NationsBank to make the UK Term Loan and each Lender to
purchase a participation interest in the UK Term Loan is herein called its
"UK Term Loan Commitment". The UK Term Loan Commitment of NationsBank and
each of the Lenders are herein collectively referred to as the "UK Term
Loan Commitments". None of the Lenders shall be responsible for the UK Term
Loan Commitment of any of the other Lenders; the failure, however, of any
Lender to perform its UK Term Loan Commitment shall not relieve any of the
other Lenders from the performance of their respective UK Term Loan
Commitments.
(B)AMORTIZATION OF UK TERM LOAN; THE UK TERM LOAN NOTE.
The unpaid principal balance of the UK Term Loan shall be due and payable
in monthly installments of principal on the first day of each calendar
month, each in the following amounts during the following periods:
Period Amount
October 1, 1998 through and $60,415
including September 1, 1999
October 1, 1999 through and 470,835
including September 1, 2000
All times thereafter 480,835
Unless sooner paid, the unpaid principal balance of the UK Term Loan,
together with interest accrued and unpaid thereon, shall be due and payable
in full on the UK Revolving Credit Termination Date.
The obligation of Berry UK to pay the UK Term Loan, with interest, shall be
evidenced by a promissory note (as from time to time extended, amended,
restated, supplemented or otherwise modified, the "UK Term Loan Note").
The UK Term Loan Note shall be dated as the date hereof and shall be
payable to the order of NationsBank at the times provided in the UK Term
Loan Note, and shall be in the principal amount of the UK Term Loan
Committed Amount.
(C)MANDATORY PREPAYMENTS OF UK TERM LOAN.
Subject to the provisions of Section (D) INDEMNITY. (Indemnity), Berry UK
shall make mandatory prepayments (each a "UK Term Loan Mandatory
Prepayment" and collectively the "UK Term Loan Mandatory Prepayments") of
the UK Term Loan to NationsBank annually. Each UK Term Loan Mandatory
Prepayment shall be in the amount of (a) any portion of the purchase price
for the Norwich Stock which is returned to Berry UK or the Borrower as a
purchase price adjustment resulting from any event other than the
indemnification of losses resulting from a breach of a representation or
warranty by the Seller, all in accordance with the terms of the Norwich
Stock Purchase Agreement and shall be payable on the date Berry UK or the
Borrower receives such amount from or on behalf of the Seller and (b) the
UK Excess Cash Flow for the then preceding fiscal year and shall be payable
on the date the Borrower shall furnish to the Agent the annual financial
statements referred to in Section (A) FINANCIAL STATEMENTS.
The Borrower shall furnish to the Agent for distribution to the Lender
(Financial Statements). If, however, the Borrower fails to furnish such
financial statements in any given year as and when required, Berry UK shall
be required to pay the UK Term Loan Mandatory Prepayment payable during
such calendar year on the date which is ninety (90) days after the close of
Norwich's then preceding fiscal year. Berry UK shall pay to NationsBank on
the date of each required UK Term Loan Mandatory Prepayment accrued
interest to such date on the amount prepaid. Each partial UK Term Loan
Mandatory Prepayment shall be applied against the principal installments of
the UK Term Loan in the inverse order of their maturities. Notwithstanding
anything to the contrary contained herein, the Borrower shall not be
required to pay an Early Termination Fee as the result of a UK Term Loan
Mandatory Prepayment. In addition to the foregoing, the Borrower shall
make a UK Term Loan Mandatory Prepayment on behalf of Berry UK to the
extent of any Excess Cash Flow remaining after payment of the Term Loans B
in full.
(D)OPTIONAL PREPAYMENTS OF UK TERM LOAN.
Subject to the provisions of Section (D) INDEMNITY. (Indemnity), Berry UK
may, at its option, at any time and from time to time, prepay (each a "UK
Term Loan Optional Prepayment" and collectively the "UK Term Loan Optional
Prepayments") the UK Term Loan, in whole or in part, upon five (5) Business
Days prior written notice, specifying the date and amount of prepayment.
The amount to be so prepaid, together with interest accrued thereon to date
of prepayment if the amount is intended as a prepayment of the UK Term Loan
in whole, shall be paid by Berry UK to NationsBank at its Sterling LIBOR
Lending Office on the date specified for such prepayment. Partial UK Term
Loan Optional Prepayments shall be applied against the principal
installments of the UK Term Loan in the inverse order of their maturities.
SECTION 2.9GENERAL LETTER OF CREDIT PROVISIONS AND PARTICIPATION PROVISIONS
FOR UK CREDIT FACILITIES.
(A)PROCEDURES FOR LETTERS OF CREDIT AND BOND LETTERS OF CREDIT.
If any change after the Closing Date in any law or regulation or in the
interpretation thereof by any court or other Governmental Authority charged
with the administration thereof shall either (a) impose, modify or deem
applicable any reserve, special deposit or similar requirement against
Letters of Credit or Bond Letters of Credit issued by the Agent, or (b)
impose on the Agent or any of the Lenders any other condition regarding
this Agreement, any Letter of Credit or any Bond Letter of Credit, and the
result of any event referred to in clauses (a) or (b) above shall be to
increase the cost to the Agent of issuing, maintaining or extending the
Letter of Credit or the Bond Letter of Credit or the cost to any of the
Lenders of funding any obligation under or in connection with the Letter of
Credit or the Bond Letter of Credit (which increase in cost shall be the
result of the Agent's reasonable allocation of the aggregate of such cost
increases resulting from such events), then, upon demand by the Agent, the
Borrower shall immediately pay to the Agent from time to time as specified
by the Agent, additional amounts which shall be sufficient to compensate
the Agent and the Lenders for such increased cost, together with interest
on each such amount from the date demanded until payment in full thereof at
a rate per annum equal to the then highest current rate of interest on the
Revolving Loan. A certificate as to such increased cost incurred by the
Agent and/or any of the Lenders, submitted by the Agent to the Borrower,
shall be conclusive, absent manifest error.
(B)GENERAL LETTER OF CREDIT PROVISIONS.
The Borrower hereby instructs the Agent to pay any draft complying with the
terms of any Letter of Credit or any Bond Letter of Credit irrespective of
any instructions of the Borrower to the contrary. The Borrower assume all
risks of the acts and omissions of the beneficiary and other users of any
Letter of Credit or any Bond Letter of Credit. The Agent, the Lenders and
their respective branches, Affiliates and/or correspondents shall not be
responsible for and the Borrower hereby indemnifies and holds the Agent,
the Lenders and their respective branches, Affiliates and/or correspondents
harmless from and against all liability, loss and expense (including
reasonable attorney's fees and costs) incurred by the Agent, the Lenders
and/or their respective branches, Affiliates and/or correspondents relative
to and/or as a consequence of (a) any failure by the Borrower to perform
the agreements hereunder and under any Letter of Credit Agreement or under
any Bond Letter of Credit Agreement, (b) any Letter of Credit Agreement,
any Bond Letter of Credit Agreement, this Agreement, any Letter of Credit,
any Bond Letter of Credit and any draft, draw and/or acceptance under or
purported to be under any Letter of Credit or any Bond Letter of Credit,
(c) any action taken or omitted by the Agent, any of the Lenders and/or any
of their respective branches, Affiliates and/or correspondents at the
request of the Borrower, other than acts of willful misconduct and gross
negligence, (d) any failure or inability to perform in accordance with the
terms of any Letter of Credit or any Bond Letter of Credit by reason of any
control or restriction rightfully or wrongfully exercised by any defacto or
dejure Governmental Authority, group or individual asserting or exercising
governmental or paramount powers, and/or (e) any consequences arising from
causes beyond the control of the Agent, any of the Lenders and/or any of
their respective branches, Affiliates and/or correspondents.
Except for willful misconduct and gross negligence, the Agent, the Lenders
and their respective branches, Affiliates and/or correspondents, shall not
be liable or responsible in any respect for any (a) error, omission,
interruption or delay in transmission, dispatch or delivery of any one or
more messages or advices in connection with any Letter of Credit or any
Bond Letter of Credit, whether transmitted by cable, telegraph, mail or
otherwise and despite any cipher or code which may be employed, and/or (b)
action, inaction or omission which may be taken or suffered by it or them
in good faith or through inadvertence in identifying or failing to identify
any beneficiary or otherwise in connection with any Letter of Credit or any
Bond Letter of Credit.
Any Letter of Credit or any Bond Letter of Credit may be amended, modified
or revoked only upon the receipt by the Agent from the Borrower and the
beneficiary (including any transferee and/or assignee of the original
beneficiary), of a written consent and request therefor.
If any Laws, order of court and/or ruling or regulation of any Governmental
Authority of the United States (or any state thereof) and/or any country
other than the United States permits a beneficiary under a Letter of Credit
or a Bond Letter of Credit to require the Agent, the Lenders and/or any of
their respective branches, Affiliates and/or correspondents to pay drafts
under or purporting to be under a Letter of Credit or a Bond Letter of
Credit after the expiration date of the Letter of Credit or the Bond Letter
of Credit, respectively, the Borrower shall reimburse the Agent and the
Lenders, as appropriate, for any such payment pursuant to provisions of
Section (E) PAYMENTS OF LETTERS OF CREDIT. (Payments of Letter of Credit)
or Section (E) PAYMENTS OF BOND LETTERS OF CREDIT. (Payments of Bond
Letters of Credit), as appropriate.
Except as may otherwise be specifically provided in a Letter of Credit, a
Bond Letter of Credit, a Letter of Credit Agreement or a Bond Letter of
Credit Agreement, the laws of the State of Maryland and the Uniform Customs
and Practice for Documentary Credits, 1995 Revision, International Chamber
of Commerce Publication No. 500 shall govern the Letters of Credit and the
Bond Letters of Credit. The Laws, rules, provisions and regulations of the
Uniform Customs and Practice for Documentary Credits are hereby
incorporated by reference. In the event of a conflict between the Uniform
Customs and Practice for Documentary Credits and the laws of the State of
Maryland, the Uniform Customs and Practice for Documentary Credits shall
prevail.
(C)PARTICIPATIONS IN THE LETTERS OF CREDIT AND THE BOND LETTERS
OF CREDIT.
Each Lender hereby irrevocably authorizes the Agent to issue Letters of
Credit and the Bond Letters of Credit in accordance with the provisions of
this Agreement. As of the date each Letter of Credit or each Bond Letter
of Credit is opened or issued by the Agent pursuant to the provisions of
this Agreement, each Lender shall have an undivided participating interest
in (a) the rights and obligations of the Agent under each such Letter of
Credit and each such Bond Letter of Credit, and (b) the Outstanding Letter
of Credit Obligations and the Outstanding Bond Letter of Credit Obligations
of the Borrower with respect to such Letter of Credit and Bond Letter of
Credit, as appropriate, in an amount equal to each Lender's Revolving
Credit Pro Rata Share of such Outstanding Letter of Credit Obligations and
Outstanding Bond Letter of Credit Obligations.
(D)PAYMENTS BY THE LENDERS TO THE AGENT.
If the Borrower fails to pay to the Agent any Current Letter of Credit
Obligations or any Current Bond Letter of Credit Obligations as and when
due and payable, the Agent shall promptly notify each of the Lenders and
shall demand payment from each of the Lenders such Lender's Revolving
Credit Pro Rata Share of such unpaid Current Letter of Credit Obligations
and unpaid Current Bond Letter of Credit Obligations, as appropriate. In
addition, if any amount paid to the Agent on account of Current Letter of
Credit Obligations or any Current Bond Letter of Credit Obligations is
rescinded or required to be restored or turned over by the Agent upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of the
Borrower or upon or as a result of the appointment of a receiver,
intervenor, trustee, conservator or similar officer for the Borrower, or is
otherwise not indefeasibly covered by an advance under the Revolving Loan,
the Agent shall promptly notify each of the Lenders and shall demand
payment from each of the Lenders of its Revolving Credit Pro Rata Share of
its portion of the Current Letter of Credit Obligations and/or Current Bond
Letter of Credit Obligations to be remitted to the Borrower.
Each of the Lenders irrevocably and unconditionally agrees to honor any
such demands for payment under this Section and promises to pay to the
Agent's account on the same Business Day as demanded the amount of its
Revolving Credit Pro Rata Share of the Current Letter of Credit Obligations
and Current Bond Letter of Credit Obligations, as appropriate, in
immediately available funds, without any setoff, counterclaim or deduction
of any kind. Any payment by a Lender hereunder shall in no way release,
discharge or lessen the obligation of the Borrower to pay Current Letter of
Credit Obligations or to pay Current Bond Letter of Credit Obligations to
the Agent in accordance with the provisions of this Agreement.
The obligation of each of the Lenders to remit the amounts of its Revolving
Credit Pro Rata Share of Current Letter of Credit Obligations and Current
Bond Letter of Credit Obligations for the account of the Agent pursuant to
this Section shall be unconditional and irrevocable under any and all
circumstances and may not be terminated, suspended or delayed for any
reason whatsoever, provided that all payments of such amounts by each of
the Lenders shall be without prejudice to the rights of each of the Lenders
with respect to the Agent's alleged willful misconduct. Any claim any
Lender may have against the Agent as a result of the Agent's alleged
willful misconduct may be brought by such Lender in a separate action
against the Agent but may not be used as a defense to payment under the
provisions of this Section.
No failure of any Lender to remit the amount of its Revolving Credit Pro
Rata Share of Current Letter of Credit Obligations and/or Current Bond
Letter of Credit Obligations to the Agent pursuant to this Section shall
affect the obligations of the Agent under any Letter of Credit or under any
Bond Letter of Credit, and if any Lender does not remit to the Agent the
amount of its Revolving Credit Pro Rata Share of Current Letter of Credit
Obligations and/or Current Bond Letter of Credit Obligations on the same
day as demanded, then without limiting such Lender's obligation to transmit
funds on the same Business Day as demanded, such Lender shall be obligated
to pay, on demand of the Agent and without setoff, counterclaim or
deduction of any kind whatsoever interest on the unpaid amount at the
Federal Funds Rate for each day from the date such amount shall be due and
payable to the Agent until the date such amount shall have been paid in
full to the Agent by such Lender.
No Lender shall have any obligation to pay to the Agent such Lender's Pro
Rata Share of unpaid Current Letter of Credit Obligations and/or unpaid
Current Bond Letter of Credit Obligations, if the Borrower shall not be
obligated to reimburse the Agent for such unpaid Current Letter of Credit
Obligations and/or unpaid Current Bond Letter of Credit Obligations,
respectively, because of the Agent's wrongful payment of a Letter of Credit
and/or Bond Letter of Credit made as a result of the Agent's willful
misconduct or gross negligence.
(E)PARTICIPATIONS IN THE UK CREDIT FACILITIES.
Each Lender hereby irrevocably authorizes NationsBank to make advances
under the UK Revolving Loan, acting through its Sterling LIBOR Lending
Office and to make the UK Term Loan in accordance with the provisions of
this Agreement. As of the date each such Loan is made, each Lender shall
have an undivided participating interest in (a) the rights and obligations
of NationsBank under each such Loan, and (b) the UK Obligations with
respect to such Loan, in an amount equal to each Lender's Pro Rata Share
thereof, subject to the rights of NationsBank to receive and retain payment
of all or a portion of the interest on the UK Obligations as set forth in
this Section. If Berry UK or Norwich fail to pay to NationsBank any UK
Obligations as and when due and payable, NationsBank shall promptly notify
each of the Lenders and shall demand payment from each of the Lenders of
such Lender's Pro Rata Share of such unpaid UK Obligations. In addition,
if any amount paid to NationsBank on account of the UK Obligations is
rescinded or required to be restored or turned over by NationsBank upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of Berry
UK or Norwich or upon or as a result of the appointment of a receiver,
intervenor, trustee, conservator or similar officer for Berry UK or
Norwich, NationsBank shall promptly notify each of the Lenders and shall
demand payment from each of the Lenders of its Pro Rata Share of its
portion of the UK Obligations to be remitted to Berry UK or Norwich. Each
of the Lenders irrevocably and unconditionally agrees to honor any such
demands for payment under this Section and promises to pay to the account
of NationsBank on the same Business Day as demanded the amount of its Pro
Rata Share of the UK Obligations in Pounds Sterling, in immediately
available funds, without any setoff, counterclaim or deduction of any kind.
Any payment by a Lender hereunder shall in no way release, discharge or
lessen the obligation of Berry UK or Norwich to pay the UK Obligations to
NationsBank in accordance with the provisions of this Agreement. The date
on which a payment is made by a Lender to NationsBank shall be referred to
as a "UK Payment Date".
The obligation of each of the Lenders to remit the amounts of its Pro Rata
Share of the UK Obligations for the account of NationsBank pursuant to this
Section shall be unconditional and irrevocable under any and all
circumstances and may not be terminated, suspended or delayed for any
reason whatsoever, provided that all payments of such amounts by each of
the Lenders shall be without prejudice to the rights of each of the Lenders
with respect to the alleged willful misconduct of NationsBank. Any claim
any Lender may have against NationsBank as a result of the alleged willful
misconduct of NationsBank may be brought by such Lender in a separate
action against NationsBank but may not be used as a defense to payment
under the provisions of this Section.
All interest on the unpaid principal balance of the UK Obligations shall be
payable to, and retained by, NationsBank, except with respect to those UK
Obligations for which NationsBank has demanded and received payment from a
Lender pursuant to the provisions of this Section (each a "UK Lender
Payment"), in which case, the Lender making such payment shall be entitled
to receive from Berry UK and Norwich all interest payable on the UK
Obligations represented by such UK Lender Payment at all times from and
after the UK Payment Date for such UK Lender Payment, excluding, however,
any portion of the UK Obligations consisting of the Mandatory Liquid Assets
Cost Rate on such UK Obligations (the "Lender's Share of UK Interest").
Any payments received by NationsBank which are payable to a Lender shall be
paid to such Lender in Sterling in accordance with all payments to be made
by the Agent to a Lender under the provisions of Section 2.12.
Notwithstanding the foregoing, NationsBank agrees that if the Mandatory
Liquid Assets Cost Rate payable by NationsBank to the Bank of England is
decreased as a result of a UK Lender Payment made by a Lender and such
Lender as a result must pay a Mandatory Liquid Assets Cost Rate, such
Lender shall be entitled to its Pro Rata Share of the Mandatory Liquid
Assets Cost Rate relating to such UK Lender Payment.
Except to the extent that NationsBank shall have made demand on the Lenders
for payment of their Pro Rata Share of the UK Obligations (the "UK
Obligations Demand Date"), NationsBank shall remit to each Lender from time
to time (but at least once monthly) such Lender's Pro Rata Share of that
portion of the interest paid to, and received by, NationsBank, in collected
funds on account of such Lender's unfunded UK Obligations calculated at the
Applicable Margin (excluding the Mandatory Liquid Assets Cost Rate) for
such UK Obligations only; NationsBank shall retain all interest calculated
at the LIBOR Base Rate. Such payments shall be payable to the Lenders in
consideration of their agreement to purchase a participation interest in
the UK Obligations in accordance with the provisions of this Agreement, but
shall be payable only if and to the extent NationsBank has received the
interest payment which is the basis for such fee.
SECTION 2.10 INTEREST.
(A)APPLICABLE INTEREST RATES.
(i)Each Loan shall bear interest until maturity (whether by acceleration,
declaration, extension or otherwise) at either the Alternate Base Rate or
the LIBOR Rate, as selected and specified by the Borrower, Berry UK or
Norwich, as appropriate, in an Interest Rate Election Notice furnished to
the Agent or NationsBank, as appropriate, in accordance with the provisions
of Section (v) Neither NationsBank nor the Lenders will be obligated to
make Loans, to convert the Applicable Interest Rate on Loans to another
Interest Rate, or to change Interest Periods, unless NationsBank or the
Agent, as appropriate, shall have received an irrevocable written or
telephonic notice (an "Interest Rate Election Notice") from the Borrower,
Berry UK or Norwich, as appropriate, specifying the following information:
(Selection of Interest Rates), or as otherwise determined in accordance
with the provisions of this INTEREST., and as may be adjusted from time to
time in accordance with the provisions of Section INABILITY TO DETERMINE
LIBOR BASE RATE. (Inability to Determine LIBOR Base Rate). Notwithstanding
the foregoing, all Loans made to Berry UK and/or Norwich under the UK
Credit Facilities must bear interest at the LIBOR Rate only; neither Berry
UK nor Norwich may select the Alternate Base Rate as the Applicable
Interest Rate for any Loan made to Berry UK or Norwich under any of the
Credit Facilities.
(ii)Notwithstanding the foregoing, following the occurrence and during the
continuance of an Event of Default, at the option of the Agent and
NationsBank, all Loans and all other Obligations shall bear interest at the
Post-Default Rate.
(iii)The Applicable Margin for (i) LIBOR Loans, other than the UK Term
Loans shall be two hundred (200) basis points per annum, (ii) LIBOR Loans
consisting of the UK Term Loans, shall be two hundred fifty (250) basis
points per annum, and (iii) Base Rate Loans shall be fifty (50) basis
points per annum unless and until a change is required by the operation of
Section (A) APPLICABLE INTEREST RATES.(iv) Subsequent to the Agent's
receipt of the Borrower's quarterly financial statements for the period
ending June 30, 1998 to be furnished to the Agent pursuant to (iii)
QUARTERLY STATEMENTS AND CERTIFICATES. The Borrower shall furnish to the
Agent for distribution to the Lenders as soon as available, but in no event
more than forty-five (45) days after the close of the Borrower's fiscal
quarters (other than the final fiscal quarter), consolidated and
consolidating balance sheets of the Borrower, Berry UK, Norwich and all
other Subsidiaries as of the close of such period, consolidated and
consolidating income, cash flows and changes in shareholders equity
statements for such period, and a Compliance Certificate, in substantially
the form attached to this Agreement as EXHIBIT D, containing a detailed
computation of each financial covenant in this Agreement which is
applicable for the period reported, each prepared by a Responsible Officer
of or on behalf of the Borrower in a format acceptable to the Agent, all as
prepared and certified by a Responsible Officer of the Borrower and
accompanied by a certificate of that officer stating whether any event has
occurred which constitutes a Default or an Event of Default hereunder, and,
if so, stating the facts with respect thereto. (Quarterly Statements),
changes in the Applicable Margin for all Loans (other than Loans under the
UK Credit Facilities) may be made, but not more frequently than one such
change per quarter based on the Borrower's Pricing Ratio, tested as of the
end of each fiscal quarter and the end of each fiscal year, determined by
the Agent based on the annual and quarterly financial statements required
by (I) ANNUAL STATEMENTS AND CERTIFICATES. The Borrower shall furnish to
the Agent for distribution to the Lenders as soon as available, but in no
event more than ninety (90) days after the close of the Borrower's fiscal
years, (i) a copy of the annual consolidated and consolidating financial
statements in reasonable detail satisfactory to the Agent relating to the
Borrower, Berry UK, Norwich and all other Subsidiaries, prepared in
accordance with GAAP and examined and certified by independent certified
public accountants satisfactory to the Agent, which financial statements
shall include a consolidated and consolidating balance sheet of the
Borrower, Berry UK, Norwich and all other Subsidiaries as of the end of
such fiscal year and consolidated and consolidating statements of income,
cash flows and changes in shareholders equity of the Borrower, Berry UK,
Norwich and all other Subsidiaries for such fiscal year, and (ii) a
Compliance Certificate, in substantially the form attached to this
Agreement as EXHIBIT D, containing a detailed computation of each financial
covenant in this Agreement which is applicable for the period reported, a
certification that no change has occurred to the information contained in
the Collateral Disclosure List (except as set forth any schedule attached
to the certification) and (iii) a management letter in the form prepared by
the Borrower's independent certified public accountants, but only if and to
the extent customarily obtained by the Borrower. The Agent agrees that any
one of the "Big 4" accounting firms is satisfactory to the Agent for
purposes of this Section (a)(i), except to the extent the Agent in its
reasonable discretion and based on good faith and legitimate concerns
determines that any such accounting firm would be unacceptable because of
any conflict of interest or any material adverse change affecting such
firm's reliability or financial viability. (Annual Statements) and (iii)
QUARTERLY STATEMENTS AND CERTIFICATES. The Borrower shall furnish to the
Agent for distribution to the Lenders as soon as available, but in no event
more than forty-five (45) days after the close of the Borrower's fiscal
quarters (other than the final fiscal quarter), consolidated and
consolidating balance sheets of the Borrower, Berry UK, Norwich and all
other Subsidiaries as of the close of such period, consolidated and
consolidating income, cash flows and changes in shareholders equity
statements for such period, and a Compliance Certificate, in substantially
the form attached to this Agreement as EXHIBIT D, containing a detailed
computation of each financial covenant in this Agreement which is
applicable for the period reported, each prepared by a Responsible Officer
of or on behalf of the Borrower in a format acceptable to the Agent, all as
prepared and certified by a Responsible Officer of the Borrower and
accompanied by a certificate of that officer stating whether any event has
occurred which constitutes a Default or an Event of Default hereunder, and,
if so, stating the facts with respect thereto. (Quarterly Statements), as
appropriate. Any change in the Applicable Margin shall be effective as of
the test date of the Pricing Ratio, as appropriate, but shall not effect
any change to the Applicable Margins for the UK Credit Facilities. The
Applicable Margin shall vary depending upon the Borrower's Pricing Ratio,
as follows:. In addition, the Mandatory Liquid Asset Cost Rate shall be
added to the Applicable Margin for each LIBOR Loan made or to be made under
the UK Credit Facilities.
(iv)Subsequent to the Agent's receipt of the Borrower's quarterly financial
statements for the period ending June 30, 1998 to be furnished to the Agent
pursuant to (iii) QUARTERLY STATEMENTS AND CERTIFICATES. The Borrower
shall furnish to the Agent for distribution to the Lenders as soon as
available, but in no event more than forty-five (45) days after the close
of the Borrower's fiscal quarters (other than the final fiscal quarter),
consolidated and consolidating balance sheets of the Borrower, Berry UK,
Norwich and all other Subsidiaries as of the close of such period,
consolidated and consolidating income, cash flows and changes in
shareholders equity statements for such period, and a Compliance
Certificate, in substantially the form attached to this Agreement as
EXHIBIT D, containing a detailed computation of each financial covenant in
this Agreement which is applicable for the period reported, each prepared
by a Responsible Officer of or on behalf of the Borrower in a format
acceptable to the Agent, all as prepared and certified by a Responsible
Officer of the Borrower and accompanied by a certificate of that officer
stating whether any event has occurred which constitutes a Default or an
Event of Default hereunder, and, if so, stating the facts with respect
thereto. (Quarterly Statements), changes in the Applicable Margin for all
Loans (other than Loans under the UK Credit Facilities) may be made, but
not more frequently than one such change per quarter based on the
Borrower's Pricing Ratio, tested as of the end of each fiscal quarter and
the end of each fiscal year, determined by the Agent based on the annual
and quarterly financial statements required by (i) ANNUAL STATEMENTS AND
CERTIFICATES. The Borrower shall furnish to the Agent for distribution to
the Lenders as soon as available, but in no event more than ninety (90)
days after the close of the Borrower's fiscal years, (i) a copy of the
annual consolidated and consolidating financial statements in reasonable
detail satisfactory to the Agent relating to the Borrower, Berry UK,
Norwich and all other Subsidiaries, prepared in accordance with GAAP and
examined and certified by independent certified public accountants
satisfactory to the Agent, which financial statements shall include a
consolidated and consolidating balance sheet of the Borrower, Berry UK,
Norwich and all other Subsidiaries as of the end of such fiscal year and
consolidated and consolidating statements of income, cash flows and changes
in shareholders equity of the Borrower, Berry UK, Norwich and all other
Subsidiaries for such fiscal year, and (ii) a Compliance Certificate, in
substantially the form attached to this Agreement as EXHIBIT D, containing
a detailed computation of each financial covenant in this Agreement which
is applicable for the period reported, a certification that no change has
occurred to the information contained in the Collateral Disclosure List
(except as set forth any schedule attached to the certification) and (iii)
a management letter in the form prepared by the Borrower's independent
certified public accountants, but only if and to the extent customarily
obtained by the Borrower. The Agent agrees that any one of the "Big 4"
accounting firms is satisfactory to the Agent for purposes of this Section
(A) FINANCIAL STATEMENTS., except to the extent the Agent in its reasonable
discretion and based on good faith and legitimate concerns determines that
any such accounting firm would be unacceptable because of any conflict of
interest or any material adverse change affecting such firm's reliability
or financial viability. (Annual Statements) and (iii) QUARTERLY STATEMENTS
AND CERTIFICATES. The Borrower shall furnish to the Agent for distribution
to the Lenders as soon as available, but in no event more than forty-five
(45) days after the close of the Borrower's fiscal quarters (other than the
final fiscal quarter), consolidated and consolidating balance sheets of the
Borrower, Berry UK, Norwich and all other Subsidiaries as of the close of
such period, consolidated and consolidating income, cash flows and changes
in shareholders equity statements for such period, and a Compliance
Certificate, in substantially the form attached to this Agreement as
EXHIBIT D, containing a detailed computation of each financial covenant in
this Agreement which is applicable for the period reported, each prepared
by a Responsible Officer of or on behalf of the Borrower in a format
acceptable to the Agent, all as prepared and certified by a Responsible
Officer of the Borrower and accompanied by a certificate of that officer
stating whether any event has occurred which constitutes a Default or an
Event of Default hereunder, and, if so, stating the facts with respect
thereto. (Quarterly Statements), as appropriate. Any change in the
Applicable Margin shall be effective as of the test date of the Pricing
Ratio, as appropriate, but shall not effect any change to the Applicable
Margins for the UK Credit Facilities. The Applicable Margin shall vary
depending upon the Borrower's Pricing Ratio, as follows:
Pricing Ratio Applicable Margin for Applicable Margin for
LIBOR Loans Base Rate Loans
greater than or equal to 5.5 to 1.0 250 b.p. 100 b.p.
greater than or equal to 5.0 to 1.0, but less 225 b.p. 75 b.p.
than 5.5 to 1.0
greater than or equal to 3.5 to 1.0, but less 200 b.p. 50 b.p.
than 5.0 to 1.0
greater than or equal to 2.75 to 1.0, but less 175 b.p. 25 b.p.
than 3.5 to 1.0
less than 2.75 to 1.0 150 b.p. 0 b.p.
(B)SELECTION OF INTEREST RATES.
(i)The Borrower may select the initial Applicable Interest Rate or Applicable
Interest Rates to be charged on the Loans under the Domestic Credit Facilities
and Berry UK or Norwich may select an initial Sterling LIBOR Rate or Sterling
LIBOR Rates to be charged on the Loans under the UK Credit Facilities.
(ii)From time to time after the date of this Agreement as provided in this
Section, by a proper and timely Interest Rate Election Notice furnished to the
Agent or NationsBank, as appropriate, in accordance with the provisions of
Section SELECTION OF INTEREST RATES., the Borrower, Berry UK or Norwich, as
appropriate, may select an initial Applicable Interest Rate or Applicable
Interest Rates for any Loans or may convert the Applicable Interest Rate and,
when applicable, the Interest Period, for any existing Loan to any other
Applicable Interest Rate or, when applicable, any other Interest Period.
(iii)The selection of an Applicable Interest Rate and/or an Interest Period,
the election to convert an Applicable Interest Rate and/or an Interest Period
to another Applicable Interest Rate or Interest Period, and any other
adjustments in an interest rate are subject to the following limitations:
(A)neither the Borrower, Berry UK nor Norwich shall at any time
select or change to an Interest Period that extends beyond the Revolving Credit
Termination Date in the case of the Revolving Loan, or the UK Revolving Credit
Termination Date in the case of the UK Revolving Loan or the UK Term Loans or
beyond the scheduled maturity of the Term Loans in the case of the Term Loans.
In addition, only a Sterling Interest Period may be selected for a Sterling
LIBOR Loan and only a Dollar Interest Period may be selected for a Dollar LIBOR
Loan,
(B)no change from the LIBOR Rate to the Alternate Base Rate
shall become effective on a day other than a Business Day and so long as
NationsBank or the Lenders, as appropriate, receive any compensation payable
pursuant to Section (D) INDEMNITY. (Indemnity), on a day which is the last day
of the then current Interest Period, no change of an Interest Period shall
become effective on a day other than the last day of the then current Interest
Period, and no change from the Alternate Base Rate to the LIBOR Rate shall
become effective on a day other than a day which is a Business Day. Neither
the Alternate Base Rate nor the Dollar LIBOR Rate is available at any time as
an Applicable Interest Rate for any Loans under the UK Credit Facilities, and
the Sterling LIBOR Rate is not available at any time as an applicable Interest
Rate for any Loans under the Domestic Credit Facilities.
(C)any Applicable Interest Rate change for any Loan to be
effective on a date on which any principal payment on account of such Loan is
scheduled to be paid shall be made only after such payment shall have been
made,
(D)no more than three (3) different LIBOR Rates may be
outstanding at any time and from time to time with respect to each of the
Revolving Loan or the UK Revolving Loan,
(E)no more than two (2) different LIBOR Rates may be outstanding
at any time and from time to time with respect to each of the Term Loans or the
UK Term Loans,
(F)the first day of each Interest Period shall be a Business
Day,
(G)as of the effective date of a selection, there shall not
exist a Default or an Event of Default, and
(H)the minimum principal amount of a LIBOR Loan under the
Domestic Credit Facilities shall be One Million Dollars ($1,000,000) and the
minimum principal amount of a LIBOR Loan under the UK Credit Facilities shall
be One Hundred Fifty Thousand Pounds Sterling (<pound-sterling>150,000).
(iv)If a request for an advance under the Loans is not accompanied by an
Interest Rate Election Notice or does not otherwise include a selection of an
Applicable Interest Rate and, if applicable, an Interest Period, or if, after
having made a selection of an Applicable Interest Rate and, if applicable, an
Interest Period, the Borrower, Berry UK or Norwich fails or is not otherwise
entitled under the provisions of this Agreement to continue such Applicable
Interest Rate or Interest Period, the Borrower shall be deemed to have selected
the Alternate Base Rate as the Applicable Interest Rate until such time as the
Borrower shall have selected a different Applicable Interest Rate and specified
an Interest Period in accordance with, and subject to, the provisions of this
Section and Berry UK and Norwich shall be deemed to have selected a 30-day
Interest Period and the LIBOR Rate.
(v)Neither NationsBank nor the Lenders will be obligated to make Loans, to
convert the Applicable Interest Rate on Loans to another Interest Rate, or to
change Interest Periods, unless NationsBank or the Agent, as appropriate, shall
have received an irrevocable written or telephonic notice (an "Interest Rate
Election Notice") from the Borrower, Berry UK or Norwich, as appropriate,
specifying the following information:
(A)the amount to be borrowed or converted,
(B)a selection of the Alternate Base Rate or the LIBOR Rate
(except that the Alternate Base Rate shall not be available as an Applicable
Interest Rate on any Loans made or to be made under the UK Credit Facilities),
(C)the length of the Interest Period if the Applicable Interest
Rate selected is the LIBOR Rate, and
(D)the requested date on which such election is to be effective.
Article IIAny telephonic notice must be confirmed in writing within three (3)
Business Days. Each Interest Rate Election Notice for a Loan under the
Domestic Credit Facilities must be received by the Agent not later than 10:00
a.m. (Baltimore City Time) on the Business Day of any requested borrowing or
conversion in the case of a selection of the Alternate Base Rate and not later
than 10:00 a.m. (Baltimore City Time) on the third Business Day before the
effective date of any requested borrowing or conversion in the case of a
selection of the LIBOR Rate. Each Interest Rate Election Notice for a Loan
under the UK Credit Facilities must be received by NationsBank not later than
10:00 a.m. (London Time) on the Business Day of any requested borrowing or
conversion.
(C)INABILITY TO DETERMINE LIBOR BASE RATE.
In the event that (a) the Agent or NationsBank shall have determined that, by
reason of circumstances affecting the London interbank market, adequate and
reasonable means do not exist for ascertaining the LIBOR Base Rate for any
requested Interest Period with respect to a Loan, the Borrower, Berry UK and/or
Norwich, as appropriate, shall have requested to be made or to be converted to
a LIBOR Loan or (b) the Agent or NationsBank shall determine that the LIBOR
Base Rate for any requested Interest Period with respect to a Loan the
Borrower, Berry UK and/or Norwich, as appropriate, shall have requested to be
made or to be converted to a LIBOR Loan does not adequately and fairly reflect
the cost to NationsBank or the Lenders, as appropriate, of funding or
converting such Loan, the Agent or NationsBank, as applicable, shall give
telephonic or written notice of such determination to the Borrower, Berry UK
and/or Norwich, as appropriate, at least one (1) day prior to the proposed date
for funding or converting such Loan. If such notice is given, any request for
a Dollar LIBOR Loan shall be made or converted to an Alternate Base Rate Loan
and any Sterling LIBOR Loan shall accrue interest at the rate certified by
NationsBank to be the rate at which it currently offers loans in Sterling to
its best customers. Until such notice has been withdrawn by the Agent or
NationsBank, the Borrower, Berry UK and Norwich will not request that any Loan
be made or converted to a LIBOR Loan.
(D)INDEMNITY.
The Borrower agrees to indemnify and reimburse the Lenders and to hold the
Lenders harmless from any loss, cost (including administrative costs) or
expense which any one or more of the Agent or the Lenders may sustain or incur
as a consequence of (a) a default by the Borrower, Berry UK or Norwich in
payment when due of the principal amount of or interest on any LIBOR Loan,
including, any LIBOR Loan made under the UK Credit Facilities, (b) the failure
of the Borrower, Berry UK or Norwich to make, or convert the Applicable
Interest Rate of, a LIBOR Loan after the Borrower, Berry UK or Norwich has
given a Loan Notice or an Interest Rate Election Notice, (c) the failure of the
Borrower, Berry UK or Norwich to make any prepayment of a LIBOR Loan after the
Borrower, Berry UK or Norwich has given notice of such intention to make such a
prepayment, and/or (d) the making by the Borrower, Berry UK or Norwich of a
prepayment of a LIBOR Loan on a day which is not the last day of the Interest
Period for such LIBOR Loan, calculated as provided in the following paragraph,
including, without limitation, any such loss or expense arising from the
reemployment of funds obtained by the Agent and/or any of the Lenders to
maintain any LIBOR Loan or from fees payable to terminate the deposits from
which such funds were obtained. Berry UK and Norwich jointly and severally
agree to indemnify and reimburse the Lenders and to hold the Lenders harmless
from any loss, cost (including administrative costs) or expense which any one
or more of the Lenders may sustain or incur as a consequence of (a) a default
by Berry UK or Norwich in payment when due of the principal amount of or
interest on any LIBOR Loan made under the UK Credit Facilities, (b) the failure
of Berry UK or Norwich to make, or convert the Applicable Interest Rate of, a
LIBOR Loan made under the UK Credit Facilities after Berry UK or Norwich has
given a Loan Notice or an Interest Rate Election Notice, (c) the failure of
Berry UK or Norwich to make any prepayment of a LIBOR Loan made under the UK
Credit Facilities after Berry UK or Norwich has given notice of such intention
to make such a prepayment, and/or (d) the making by Berry UK or Norwich of a
prepayment of a LIBOR Loan made under the UK Credit Facilities on a day which
is not the last day of the Interest Period for such LIBOR Loan, calculated as
provided in the following paragraph, including, without limitation, any such
loss or expense arising from the reemployment of funds obtained by any of the
Lenders to maintain any LIBOR Loan made under the UK Credit Facilities or from
fees payable to terminate the deposits from which such funds were obtained, but
excluding loss of anticipated profits. This agreements and covenants of the
Borrower, Berry UK and Norwich shall survive termination or expiration of this
Agreement and payment of the Obligations.
Contemporaneously with any prepayment of principal of a LIBOR Loan, a
prepayment fee shall be due and payable to the Lenders in an amount equal to
any loss or expense (other than loss of anticipated profits) arising from the
reemployment of funds obtained by any Lender to fund or maintain any LIBOR Loan
or from fees payable to terminate the deposits from which such funds were
obtained. Neither the Agent nor any of the Lenders shall be obligated to
accept any prepayment of principal unless it is accompanied by the prepayment
fee, if any, due in connection therewith as calculated pursuant to the
provisions of this paragraph. No prepayment fee payable in connection herewith
shall in any event or under any circumstances be deemed or construed as a
penalty. The Borrower shall be liable for the payment of all prepayment fees
due under this Section 2.10.4, whether relating to the Domestic Credit
Facilities or the UK Credit Facilities; Berry UK and Norwich, however, shall be
jointly and severally liable only for the payment of those prepayment fees
which relate solely to the UK Credit Facilities.
(E)PAYMENT OF INTEREST.
(i)Unpaid and accrued interest on any Base Rate Loan shall be paid monthly, in
arrears, on the first day of each calendar month, commencing on the first such
date after the date of this Agreement, and on the first day of each calendar
month thereafter, and at maturity (whether by acceleration, declaration,
extension or otherwise).
(ii)Notwithstanding the foregoing, any and all unpaid and accrued interest on
any Base Rate Loan converted to a LIBOR Loan or prepaid shall be paid
immediately upon such conversion and/or prepayment, as appropriate.
(iii)Unpaid and accrued interest on any LIBOR Loan shall be paid, in arrears,
on the last day of the applicable LIBOR Interest Period and at maturity
(whether by acceleration, declaration, extension or otherwise).
Notwithstanding anything to the contrary contained herein, the Agent and
NationsBank agree that neither the Borrower, Berry UK nor Norwich shall have
any obligation to make any payment pursuant to the provisions of Section (D)
INDEMNITY. (Indemnity) resulting solely from the payment of accrued interest on
a date other than the expiration date of an Interest Period.
SECTION 2.11GENERAL FINANCING PROVISIONS.
(A)BORROWER'S REPRESENTATIVES.
(i) The Borrower hereby represents and warrants to the Agent and the Lenders
that the Borrower and each Subsidiary Guarantor will derive benefits, directly
and indirectly, from each Letter of Credit, from each Bond Letter of Credit and
from each Loan, both in their separate capacity and as a member of the
integrated group to which the Borrower and each Subsidiary Guarantor belongs
and because (i) the successful operation of the integrated group is dependent
upon the continued successful performance of the functions of the integrated
group as a whole, (ii) this financing enabled the PackerWare Merger Transaction
and the Venture Stock Purchase Merger/Transaction and is enabling the Norwich
Stock Purchase Transaction, (iii) the terms of the consolidated financing
provided under this Agreement are more favorable than would otherwise would be
obtainable by the Borrower, Berry UK, Norwich and any Subsidiary Guarantor
individually, and (iv) the Borrower's additional administrative and other costs
and reduced flexibility associated with individual financing arrangements which
would otherwise be required if obtainable would substantially reduce the value
to the Borrower of such financings.
(ii) The Borrower hereby irrevocably authorizes each of the Lenders to make
Loans to the Borrower, and hereby irrevocably authorizes the Agent to issue
Letters of Credit and Bond Letters of Credit for the account of the Borrower,
pursuant to the provisions of this Agreement upon the written, oral or
telephone request of any one of the Persons who is from time to time a
Responsible Officer of the Borrower under the provisions of the most recent
certificate of corporate resolutions of the Borrower on file with the Agent and
also upon the written, oral or telephone request of any one of the Persons who
is from time to time a Responsible Officer of the Borrower under the provisions
of the most recent certificate of corporate resolutions and/or incumbency for
the Borrower on file with the Agent. Berry UK and Norwich each hereby
irrevocably authorizes NationsBank to make Loans to Berry UK and/or Norwich,
pursuant to the provisions of this Agreement upon the written, oral or
telephone request of any one of the Persons who is from time to time a
Responsible Officer of Berry UK or Norwich under the provisions of the most
recent certificate of corporate resolutions of Berry UK or Norwich on file with
NationsBank and also upon the written, oral or telephone request of any one of
the Persons who is from time to time a Responsible Officer of Berry UK or
Norwich under the provisions of the most recent certificate of corporate
resolutions and/or incumbency for Berry UK or Norwich on file with NationsBank.
(iii)Neither the Agent nor any of the Lenders assumes any responsibility or
liability for any errors, mistakes, and/or discrepancies in the oral,
telephonic, written or other transmissions of any instructions, orders,
requests and confirmations between the Agent or NationsBank and the Borrower,
Berry UK and/or Norwich or the Agent or NationsBank and any of the Lenders in
connection with the Credit Facilities, any Loan, any Letter of Credit, any Bond
Letter of Credit or any other transaction in connection with the provisions of
this Agreement, except for acts of willful misconduct and gross negligence.
(B)USE OF PROCEEDS OF THE LOANS.
The proceeds of each Loan shall be used by the Borrower, Berry UK, Norwich and
the Subsidiary Guarantors, as applicable, for Permitted Uses, and for no other
purposes except as may otherwise be agreed by the Requisite Lenders in writing.
(C)FIELD EXAMINATION FEES.
The Borrower shall pay to the Agent for the exclusive benefit of the Agent an
annual field examination fee (the "Field Examination Fee"), which Field
Examination Fee shall be payable quarterly in advance on the first day of each
February, May, August and November of each year commencing on the first such
date following the Closing Date, and continuing until the last such date prior
to which all Obligations arising out of, or under, the Credit Facilities then
outstanding have been paid in full. The Field Examination Fee shall be in the
amount of Forty Thousand Dollars ($40,000) per annum, and shall also include
the amount of all out-of-pocket expenses reasonably incurred by the Agent in
connection with any field examination of Norwich and/or Berry UK for which the
Agent has not been previously reimbursed.
(D)UK COMMITMENT FEE.
The Borrower, Berry UK and Norwich jointly and severally shall pay to the Agent
for the ratable benefit of the Lenders a commitment fee (the "First UK
Commitment Fee") in the amount of Fifty-two Thousand Five Hundred Dollars
($52,500). In addition, the Borrower, Berry UK and Norwich jointly and
severally shall pay to NationsBank and GE Capital an additional commitment fee
in the amount of One Hundred Thirty-five Thousand Dollars ($135,000) to be
shared equally between NationsBank and GE Capital (the "Second UK Commitment
Fee") (the First UK Commitment Fee and the Second UK Commitment Fee are herein
collectively referred to as the "UK Commitment Fee"). The UK Commitment Fee
shall be payable on or before the Closing Date and shall be deemed fully earned
on the date paid and is non-refundable.
(E)COMPUTATION OF INTEREST AND FEES.
All applicable Fees and interest shall be calculated on the basis of a year of
360 days (or in the case of Sterling, 365 days) for the actual number of days
elapsed. Any change in the interest rate on any of the Obligations resulting
from a change in the Alternate Base Rate shall become effective as of the
opening of business on the day on which such change in the Alternate Base Rate
is announced.
(F)PAYMENTS.
ALL PAYMENTS TO BE MADE BY THE BORROWER TO THE AGENT AND/OR ANY OF THE LENDERS
UNDER THIS AGREEMENT OR ANY OF THE OTHER FINANCING DOCUMENTS WITH RESPECT TO
THE OBLIGATIONS, OTHER THAN THE UK OBLIGATIONS, SHALL BE MADE IN US DOLLARS
(UNLESS OTHERWISE AGREED TO OR REQUIRED BY THE AGENT OR ANY LENDER), WITHOUT
SET-OFF OR COUNTERCLAIM AND FREE AND CLEAR OF, AND WITHOUT DEDUCTION FOR OR ON
ACCOUNT OF, ANY PRESENT OR FUTURE INCOME, STAMP OR OTHER TAXES, LEVIES,
IMPOSTS, DUTIES, CHARGES, FEES, DEDUCTIONS, WITHHOLDINGS OR RESTRICTIONS OR
CONDITIONS OF ANY NATURE WHATSOEVER NOW OR HEREAFTER IMPOSED, LEVIED,
COLLECTED, WITHHELD OR ASSESSED AGAINST THE BORROWER, OTHER THAN INCOME AND
FRANCHISE TAXES IMPOSED ON ANY LENDER (THE "ASSESSMENTS"). ALL PAYMENTS TO BE
MADE BY BERRY UK OR NORWICH TO NATIONSBANK UNDER THIS AGREEMENT OR ANY OF THE
OTHER FINANCING DOCUMENTS WITH RESPECT TO THE UK OBLIGATIONS SHALL BE MADE IN
STERLING (UNLESS OTHERWISE AGREED TO OR REQUIRED BY NATIONSBANK), WITHOUT SET-
OFF OR COUNTERCLAIM AND FREE AND CLEAR OF, AND WITHOUT DEDUCTION FOR OR ON
ACCOUNT OF, ANY PRESENT OR FUTURE ASSESSMENTS. IF ANY ASSESSMENTS ARE IMPOSED
AND REQUIRED TO BE WITHHELD FROM ANY SUCH PAYMENT, THE BORROWER, BERRY UK OR
NORWICH, AS APPROPRIATE, SHALL (A) INCREASE THE AMOUNT OF SUCH PAYMENT SO THAT
NATIONSBANK WILL RECEIVE A NET AMOUNT (AFTER GIVING EFFECT TO THE PAYMENT OF
SUCH ADDITIONAL AMOUNT AND TO THE DEDUCTION OF ALL ASSESSMENTS) EQUAL TO THE
AMOUNT DUE HEREUNDER, AND (B) PAY SUCH ASSESSMENTS TO THE APPROPRIATE TAXING
AUTHORITY FOR THE ACCOUNT OF NATIONSBANK AND, AS PROMPTLY AS POSSIBLE
THEREAFTER, SEND NATIONSBANK AN ORIGINAL RECEIPT (OR A COPY THEREOF THAT HAS
BEEN STAMPED BY THE APPROPRIATE TAXING AUTHORITY TO CERTIFY PAYMENT) SHOWING
PAYMENT THEREOF, TOGETHER WITH SUCH ADDITIONAL DOCUMENTARY EVIDENCE AS
NATIONSBANK MAY FROM TIME TO TIME REASONABLY REQUIRE. IF THE BORROWER, BERRY
UK OR NORWICH FAIL TO PERFORM ITS OBLIGATIONS TO THE AGENT AND/OR ANY OF THE
LENDERS UNDER THE FOREGOING, THE BORROWER, BERRY UK AND NORWICH (SUBJECT TO THE
LIMITATIONS OF SECTION (J) IMITATIONS ON JOINT AND SEVERAL LIABILITY FOR
OBLIGATIONS. (Limitations on Liability) shall indemnify the Agent and the
Lenders for any such Assessments that are paid by the Agent and/or any of the
Lenders, plus all incremental Assessments, interest or penalties that may
become payable as a consequence of such failure. All payments of the
Obligations (other than the UK Obligations), including, without limitation,
principal, interest, Prepayments, and Fees, shall be paid by the Borrower to
the Agent (except as otherwise provided herein) at the Agent's office specified
IN SECTION 9.1 NOTICES.
All notices, requests and demands to or upon the parties to this Agreement
shall be in writing and shall be deemed to have been given or made when
delivered by hand on a Business Day, or two (2) days after the date when
deposited in the mail, postage prepaid by registered or certified mail, return
receipt requested, or when sent by overnight courier, on the Business Day next
following the day on which the notice is delivered to such overnight courier,
addressed as follow (Notices) in immediately available funds not later than
2:00 p.m. (Baltimore City Time) on the due date of such payment and all
payments of the UK Obligations shall be paid by Berry UK and Norwich to
NationsBank at its Sterling LIBOR Lending Office specified in Section 9.1
(Notices) in immediately available funds not later than 2:00 p.m. (London time)
on the due date of such payments. All payments received by the Agent or
NationsBank, as applicable, after such time shall be deemed to have been
received by the Agent and/or NationsBank, as applicable, for purposes of
computing interest and Fees and otherwise as of the next Business Day or
Business Day, as appropriate. Payments shall not be considered received by the
Agent or NationsBank, as applicable, until such payments are paid to the Agent
and/or NationsBank, as applicable, in immediately available funds. This
Section 2.11.7 shall be the only Section of this Agreement pursuant to which
the Borrower, Norwich or Berry UK shall be obligated to gross up any Lender for
Taxes.
(G)LIENS; SETOFF.
The Borrower hereby grants to the Agent and to the Lenders a continuing Lien
for all of the Obligations (including, without limitation, the Agent's
Obligations) upon any and all monies, securities, and other cash deposits of
the Borrower and the proceeds thereof, now or hereafter held or received by or
in transit to, the Agent, any of the Lenders, and/or any Affiliate of the Agent
and/or any of the Lenders, from or for the Borrower, and also upon any and all
deposit accounts (general or special) and credits of the Borrower, if any, with
the Agent, any of the Lenders or any Affiliate of the Agent or any of the
Lenders, at any time existing, excluding any deposit accounts held by the
Borrower in its capacity as trustee for Persons who are not Affiliates or
Subsidiaries of the Borrower. Berry UK and Norwich each hereby grants to
NationsBank a continuing Lien for all of the UK Obligations upon any and all
monies, securities, and other cash deposits of Berry UK and/or Norwich and the
proceeds thereof, now or hereafter held or received by or in transit to,
NationsBank and/or any Affiliate of NationsBank, from or for Berry UK and/or
Norwich, and also upon any and all deposit accounts (general or special) and
credits of Berry UK and/or Norwich, if any, with NationsBank or any Affiliate
of NationsBank, at any time existing, excluding any deposit accounts held by
Berry UK and/or Norwich in its capacity as trustee for Persons who are not
Affiliates or Subsidiaries of the Borrower, Berry UK or Norwich. Without
implying any limitation on any other rights the Agent and/or any of the Lenders
may have under the Financing Documents or applicable Laws, during the
continuance of an Event of Default, the Agent is hereby authorized by the
Borrower at any time and from time to time, without notice to the Borrower, to
set off, appropriate and apply any or all items hereinabove referred to against
all Obligations (including, without limitation, the Agent's Obligations) then
outstanding (whether or not then due), all in such order and manner as shall be
determined by the Agent in its sole and absolute discretion.
(H)REQUIREMENTS OF LAW.
IN THE EVENT THAT ANY LENDER SHALL HAVE DETERMINED IN GOOD FAITH THAT (A) THE
ADOPTION OF ANY LAWS AFTER THE CLOSING DATE REGARDING CAPITAL ADEQUACY, OR (B)
ANY CHANGE IN OR IN THE INTERPRETATION OR APPLICATION OF ANY LAWS, OR (C)
COMPLIANCE BY SUCH LENDER OR ANY CORPORATION CONTROLLING SUCH LENDER WITH ANY
REQUEST OR DIRECTIVE REGARDING CAPITAL ADEQUACY (WHETHER OR NOT HAVING THE
FORCE OF LAW) FROM ANY CENTRAL BANK OR GOVERNMENTAL AUTHORITY, DOES OR SHALL
HAVE THE EFFECT OF REDUCING THE RATE OF RETURN ON THE CAPITAL OF SUCH LENDER OR
ANY CORPORATION CONTROLLING SUCH LENDER, AS A CONSEQUENCE OF THE OBLIGATIONS OF
THE SUCH LENDER HEREUNDER TO A LEVEL BELOW THAT WHICH SUCH LENDER OR ANY
CORPORATION CONTROLLING SUCH LENDER WOULD HAVE ACHIEVED BUT FOR SUCH ADOPTION,
CHANGE OR COMPLIANCE (TAKING INTO CONSIDERATION THE POLICIES OF SUCH LENDER AND
THE CORPORATION CONTROLLING SUCH LENDER, WITH RESPECT TO CAPITAL ADEQUACY) BY
AN AMOUNT DEEMED BY SUCH LENDER TO BE MATERIAL, THEN FROM TIME TO TIME, AFTER
SUBMISSION BY SUCH LENDER TO THE BORROWER OF A WRITTEN REQUEST THEREFOR AND A
STATEMENT OF THE BASIS FOR SUCH DETERMINATION, THE BORROWER SHALL PAY TO SUCH
LENDER SUCH ADDITIONAL AMOUNT OR AMOUNTS IN ORDER TO COMPENSATE FOR SUCH
REDUCTION. THE AGENT AND THE LENDERS AGREE THAT THE BORROWER SHALL BE
ENTITLED, AT ITS OPTION, TO REQUIRE THAT ANY LENDER WHICH DEMANDS PAYMENT OF
ANY AMOUNTS UNDER THIS SECTION (H) REQUIREMENTS OF LAW. assign one hundred
percent (100%) of its Commitments and Obligations to one or more other lenders
or financial institutions as shall be acceptable to the Borrower and the Agent;
provided that any such assignment is effected in accordance with the provisions
of ASSIGNMENTS BY LENDERS.
Any Lender may, with the prior written consent of the Agent and the Borrower,
but without notice to or consent of any other Lender, which consent shall not
be unreasonably withheld, delayed or conditioned, assign to any Person (each an
"Assignee" and collectively, the "Assignees") all or a portion of such Lender's
Commitments; provided that (a) the amount assigned by such Lender must be at
least equal to Five Million Dollars ($5,000,000), (b) after giving effect to
such assignment, such Lender must continue to hold a Pro Rata Share of the
Commitments at least equal to Ten Million Dollars ($10,000,000), unless such
Lender has assigned one hundred percent (100%) of such Lender's Commitments,
and (c) any amount assigned shall be divided pro rata among such Lenders' Pro
Rata Share of the Commitments and Obligations. NationsBank agrees that if at
any time NationsBank sells one hundred percent (100%) of all of its
Commitments, NationsBank shall resign as Agent and the remaining Lenders shall
select a replacement Agent in accordance with the provisions of this Agreement.
In addition, NationsBank agrees that for so long as NationsBank is the Agent,
unless otherwise agreed by the Lenders, NationsBank shall continue to hold a
Pro Rata Share of the Commitments at least equal to the Pro Rata Share of the
Lender (other than NationsBank) having the highest Pro Rata Share of the
Commitments. Any Lender which elects to make such an assignment shall pay to
the Agent, for the exclusive benefit of the Agent, an administrative fee for
processing each such assignment in the amount of Three Thousand Five Hundred
Dollars ($3,500). Such Lender and its Assignee shall notify the Agent and the
Borrower in writing of the date on which the assignment is to be effective (the
"Adjustment Date"). On or before the Adjustment Date, the assigning Lender,
the Agent, the Borrower and the respective Assignee shall execute and deliver a
written assignment agreement in a form acceptable to the Agent, which shall
constitute an amendment to this Agreement to the extent necessary to reflect
such assignment. Upon the request of any assigning Lender following an
assignment made in accordance with this ASSIGNMENTS BY LENDERS., the Borrower,
Berry UK and Norwich shall issue new Notes to the assigning Lender and its
Assignee reflecting such assignment, in exchange for the existing Notes held by
the assigning Lender. (Assignments by Lenders).
(I)FUNDS TRANSFER SERVICES.
(i)The Borrower, Berry UK and Norwich acknowledge that the Agent has made
available to the Borrower, Berry UK and Norwich, the Agent's Wire Transfer
Procedures a copy of which is attached to this Agreement as EXHIBIT B and which
includes a description of security procedures regarding funds transfers
executed by the Agent or an Affiliate bank at the request of the Borrower (the
"Security Procedures"). The Borrower, Berry UK, Norwich and the Agent agree
that the Security Procedures are commercially reasonable. The Borrower, Berry
UK and Norwich further acknowledge that the full scope of the Security
Procedures which the Agent or such Affiliate bank offers and strongly
recommends is available only if the Borrower, Berry UK and Norwich communicates
directly with the Agent or such Affiliate bank as applicable in accordance with
said procedures. If the Borrower, Berry UK or Norwich attempts to communicate
by any other method or otherwise not in accordance with the Security
Procedures, the Agent or such Affiliate bank, as applicable, shall not be
required to execute such instructions, but if the Agent or such Affiliate bank,
as applicable, does so, the Borrower, Berry UK and Norwich will be deemed to
have refused the Security Procedures that the Agent or such Affiliate bank as
applicable offers and strongly recommends, and the Borrower, Berry UK and
Norwich will be bound by any funds transfer, whether or not authorized, which
is issued in the name of the Borrower, Berry UK and/or Norwich and accepted by
the Agent or such Affiliate bank, as applicable, in good faith. The Agent or
such Affiliate bank, as applicable, may modify Wire Transfer Procedures upon
notice to the Borrower, including, without limitation, the Security Procedures
at such time or times and in such manner as the Agent or such Affiliate bank,
as applicable, in its reasonable discretion, deems appropriate to meet
prevailing standards of good banking practice. By continuing to use the
Agent's or such Affiliate bank's, as applicable, wire transfer services after
receipt of any modification of the Wire Transfer procedures including, without
limitation, the Security Procedures, the Borrower, Berry UK and Norwich agree
that the Security Procedures, as modified, are likewise commercially
reasonable. Neither the Agent nor any Affiliate bank is responsible for
detecting any error in payment order sent by the Borrower, Berry UK or Norwich
to the Agent or any of the Lenders unless due to the willful misconduct or
gross negligence of the Agent or any such Affiliate bank.
(ii) The Agent or such Affiliate bank, as applicable, will generally use the
Fedwire funds transfer system for domestic funds transfers, and the funds
transfer system operated by the Society for Worldwide International Financial
Telecommunication (SWIFT) for international funds transfers. International
funds transfers may also be initiated through the Clearing House InterBank
Payment System (CHIPs) or international cable. However, the Agent or such
Affiliate bank, as applicable, may use any means and routes that the Agent or
such Affiliate bank, as applicable, in its reasonable discretion, may consider
suitable for the transmission of funds. Each payment order, or cancellation
thereof, carried out through a funds transfer system or a clearinghouse will be
governed by all applicable funds transfer system rules and clearing house rules
and clearing arrangements, whether or not the Agent or such Affiliate bank, as
applicable, is a member of the system, clearinghouse or arrangement and the
Borrower, Berry UK and Norwich acknowledge that the Agent's or such Affiliate
bank's, as applicable, right to reverse, adjust, stop payment or delay posting
of an executed payment order is subject to the laws, regulations, rules,
circulars and arrangements described herein.
(J) LIMITATIONS ON JOINT AND SEVERAL LIABILITY FOR OBLIGATIONS.
Notwithstanding anything to the contrary contained in this Agreement or in any
of the other Financing Documents, Berry UK and Norwich shall be liable for
payment and performance only of (i) the UK Revolving Loan and the UK Term Loans
(including principal and interest) and (iii) those Fees and Enforcement Costs
attributable solely to any of the foregoing (the "UK Obligations"). The
Borrower shall be jointly and severally liable for all of the Obligations,
including, without limitation, the UK Obligations.
SECTION 2.12 SETTLEMENT AMONG LENDERS.
(A)TERM LOANS; SPECIAL SOURCE BOND.
The Agent shall pay to each Lender on each date on which a payment of principal
and/or interest on the Term Loans and/or Special Source Bond, such Lender's
ratable share of all payments received by the Agent in immediately available
funds on account of the Term Loans and/or the Special Source Bond, net of any
amounts payable by such Lender to the Agent, by wire transfer of same day
funds; the amount payable to each Lender shall be based on the principal amount
of the Term Loans owing to such Lender and the Lender's Pro Rata Share of the
Special Source Bond Obligations, respectively.
(B)REVOLVING LOAN.
It is agreed that each Lender's Net Outstandings are intended by the Lenders to
be equal at all times to such Lender's Revolving Credit Pro Rata Share of the
aggregate outstanding principal amount of the Revolving Loan outstanding,
including, without limitation, unpaid and accrued interest thereon.
Notwithstanding such agreement, the several and not joint obligation of each
Lender to fund the Revolving Loan made in accordance with the terms of this
Agreement ratably in accordance with such Lender's Revolving Credit Pro Rata
Share, and each Lender's right to receive its ratable share of principal and
interest payments on the Revolving Loan in accordance with its Revolving Credit
Pro Rata Share, the Lenders agree that in order to facilitate the
administration of this Agreement and the Financing Documents that settlement
among them may take place on a periodic basis in accordance with the provisions
of this Section (B) REVOLVING LOAN..
(C)SETTLEMENT PROCEDURES AS TO REVOLVING LOAN.
(I) IN GENERAL. To the extent and in the manner hereinafter provided in this
Section (C) SETTLEMENT PROCEDURES AS TO REVOLVING LOAN., settlement among the
Lenders as to the Revolving Loan may occur periodically on Settlement Dates
determined from time to time by the Agent, which may occur before or after the
occurrence or during the continuance of a Default or Event of Default and
whether or not all of the conditions set forth in SECTION 5.2 CONDITIONS TO ALL
EXTENSIONS OF CREDIT. (Conditions to All Extensions of Credit) have been met.
On each Settlement Date payments shall be made by or to the Lenders in the
manner provided in this Section (C) SETTLEMENT PROCEDURES AS TO REVOLVING
LOAN. in accordance with the Settlement Report delivered by the Agent pursuant
to the provisions of this Section (C) SETTLEMENT PROCEDURES AS TO REVOLVING
LOAN. in respect of such Settlement Date so that as of each Settlement Date,
and after giving effect to the transactions to take place on such Settlement
Date, each Lender's Net Outstandings shall equal such Lender's Revolving Credit
Pro Rata Share of the Revolving Loan outstanding.
(II)SELECTION OF SETTLEMENT DATES. If the Agent elects, in its discretion, but
subject to the consent of NationsBank, to settle accounts among the Lenders
with respect to principal amounts of Revolving Loan less frequently than each
Business Day, then the Agent shall designate periodic Settlement Dates which
may occur on any Business Day after the Closing Date; provided, however, that
the Agent shall designate as a Settlement Date any Business Day which is
payment date; and provided further, that a Settlement Date shall occur at least
once during each seven-day period. The Agent shall designate a Settlement Date
by delivering to each Lender a Settlement Report not later than 12:00 noon
(Baltimore City Time) on the proposed Settlement Date, which Settlement Report
shall be with respect to the period beginning on the next preceding Settlement
Date and ending on such designated Settlement Date.
(III)NON-RATABLE LOANS AND PAYMENTS. Between Settlement Dates, the Agent shall
request and NationsBank may (but shall not be obligated to) advance to the
Borrower out of NationsBank's own funds, the entire principal amount of any
advance under the Revolving Loan requested or deemed requested pursuant to
Section (B) PROCEDURE FOR MAKING ADVANCES UNDER THE REVOLVING LOAN. (Procedure
for Making Advances) (any such advance under the Revolving Loan being referred
to as a "Non-Ratable Loan"). The making of each Non-Ratable Loan by
NationsBank shall be deemed to be a purchase by NationsBank of a 100%
participation in each other Lender's Revolving Credit Pro Rata Share of the
amount of such Non-Ratable Loan. All payments of principal, interest and any
other amount with respect to such Non-Ratable Loan shall be payable to and
received by the Agent for the account of NationsBank. Upon demand by
NationsBank, with notice to the Agent, each other Lender shall pay to
NationsBank, as the repurchase of such participation, an amount equal to 100%
of such Lender's Revolving Credit Pro Rata Share of the principal amount of
such Non-Ratable Loan. Any payments received by the Agent between Settlement
Dates which in accordance with the terms of this Agreement are to be applied to
the reduction of the outstanding principal balance of Revolving Loan shall be
paid over to and retained by NationsBank for such application, and such payment
to and retention by NationsBank shall be deemed, to the extent of each other
Lender's Revolving Credit Pro Rata Share of such payment, to be a purchase by
each such other Lender of a participation in the advance under the Revolving
Loan (including the repurchase of participations in Non-Ratable Loans) made by
NationsBank. Upon demand by another Lender, with notice thereof to the Agent,
NationsBank shall pay to the Agent, for the account of such other Lender, as a
repurchase of such participation, an amount equal to such other Lender's
Revolving Credit Pro Rata Share of any such amounts (after application thereof
to the repurchase of any participations of NationsBank in such other Lender's
Revolving Credit Pro Rata Share of any Non-Ratable Loans) paid only to
NationsBank by the Agent.
(IV)NET DECREASE IN OUTSTANDINGS. If on any Settlement Date the increase, if
any, in the dollar amount of any Lender's Net Outstandings which is required to
comply with the first sentence of Section (B)REVOLVING LOAN. (Revolving Loan)
is less than such Lender's Revolving Credit Pro Rata Share (and/or UK Revolving
Credit Pro Rata Share, as appropriate) of amounts received by the Agent but
paid only to NationsBank since the next preceding Settlement Date, such Lender
and the Agent, in their respective records, shall apply such Lender's Revolving
Credit Pro Rata Share of such amounts to the increase in such Lender's Net
Outstandings, and NationsBank shall pay to the Agent, for the account of such
Lender, the excess allocable to such Lender.
(V)NET INCREASE IN OUTSTANDINGS. If on any Settlement Date the increase, if
any, in the dollar amount of any Lender's Net Outstandings which is required to
comply with the first sentence of Section (B) REVOLVING LOAN. (Revolving Loan)
exceeds such Lender's Revolving Credit Pro Rata Share of amounts received by
the Agent but paid only to NationsBank since the next preceding Settlement
Date, such Lender and the Agent, in their respective records, shall apply such
Lender's Revolving Credit Pro Rata Share of such amounts to the increase in
such Lender's Net Outstandings, and such Lender shall pay to the Agent, for the
account of NationsBank, any excess.
(VI)NO CHANGE IN OUTSTANDINGS. If a Settlement Report indicates that no
advance under the Revolving Loan has been made during the period since the next
preceding Settlement Date, then such Lender's Revolving Credit Pro Rata Share
of any amounts received by the Agent but paid only to NationsBank shall be paid
by NationsBank to the Agent, for the account of such Lender. If a Settlement
Report indicates that the increase in the dollar amount of a Lender's Net
Outstandings which is required to comply with the first sentence of Section (B)
REVOLVING LOAN. (Revolving Loan) is exactly equal to such Lender's Revolving
Credit Pro Rata Share of amounts received by the Agent but paid only to
NationsBank since the next preceding Settlement Date, such Lender and the
Agent, in their respective records, shall apply such Lender's Revolving Credit
Pro Rata Share of such amounts to the increase in such Lender's Net
Outstandings.
(VII) RETURN OF PAYMENTS. If any amounts received by NationsBank in respect of
the Obligations are later required to be returned or repaid by NationsBank to
the Borrower or any other obligor or their respective representatives or
successors in interest, whether by court order, settlement or otherwise, in
excess of the NationsBank's Revolving Credit Pro Rata Share of all such amounts
required to be returned by all Lenders, each other Lender shall, upon demand by
NationsBank with notice to the Agent, pay to the Agent for the account of
NationsBank, an amount equal to the excess of such Lender's Revolving Credit
Pro Rata Share of all such amounts required to be returned by all Lenders over
the amount, if any, returned directly by such Lender.
(viii)Payments to Agent, Lenders.
(E)Payment by any Lender to the Agent shall be made not later
than 4:00 p.m. (Baltimore City Time) on the Business Day such payment is due,
provided that if such payment is due on demand by another Lender, such demand
is made on the paying Lender not later than 12:00 p.m. (Baltimore City Time) on
such Business Day. Payment by the Agent to any Lender shall be made by wire
transfer, promptly following the Agent's receipt of funds for the account of
such Lender and in the type of funds received by the Agent, provided that if
the Agent receives such funds at or prior to 12:00 p.m. noon (Baltimore City
Time), the Agent shall pay such funds to such Lender by 4:00 p.m. (Baltimore
City Time) on such Business Day. If a demand for payment is made after the
applicable time set forth above, the payment due shall be made by 4:00 p.m.
(Baltimore City Time) on the first Business Day following the date of such
demand.
(F)If a Lender shall, at any time, fail to make any payment to
the Agent required hereunder, the Agent may, but shall not be required to,
retain payments that would otherwise be made to such Lender hereunder and apply
such payments to such Lender's defaulted obligations hereunder, at such time,
and in such order, as the Agent may elect in its sole discretion. In addition,
if a Lender shall default in its obligation to fund its Pro Rata Share of any
requested advance of the Revolving Loan and the Agent elects not to fund such
defaulting Lender's Pro Rata Share of that advance, then the defaulting Lender,
at the Agent's option, shall not be entitled to receive any payments of
principal of or interest on its Pro Rata Share of any of the Obligations or its
Pro Rata Share of any Fees, unless and until (A) all of the Obligations have
been paid in full or (B) the defaulting Lender cures its default by funding its
Pro Rata Share of the requested Revolving Loan advance. Interest and Fees which
would be payable to the defaulting Lender except for the provisions of this
subsection, instead shall be payable to the other Lenders in accordance with
their respective Pro Rata Shares. In addition, for so long as the defaulting
Lender shall remain in default under its obligations under this Agreement, for
purposes of voting on matters with respect to this Agreement and/or any of the
Financing Documents, such defaulting Lender shall be deemed not to be a
"Lender" and such Lender's Pro Rata Share of the Commitments and the
Obligations shall be deemed to be zero. No Commitment of any Lender shall be
increased or otherwise affected by the default of any other Lender nor shall
the Agent have any obligation to fund any amounts not funded by a defaulting
Lender.
(G)With respect to the payment of any funds under this Section
(C) SETTLEMENT PROCEDURES AS TO REVOLVING LOAN., whether from the Agent to a
Lender or from a Lender to the Agent, the party failing to make full payment
when due pursuant to the terms hereof shall, upon demand by the other party,
pay such amount together with interest on such amount at the Federal Funds
Rate.
(D)SETTLEMENT OF OTHER OBLIGATIONS.
All other amounts received by the Agent on account of, or applied by the Agent
to the payment of, any Obligation owed to the Lenders (including, without
limitation, Fees payable to the Lenders and proceeds from the sale of, or other
realization upon, all or any part of the Collateral following an Event of
Default) that are received by the Agent not later than 11:00 a.m. (Baltimore
City Time) on a Business Day will be paid by the Agent to each Lender on the
same Business Day, and any such amounts that are received by the Agent after
11:00 a.m. (Baltimore City Time) will be paid by the Agent to each Lender on
the following Business Day. Unless otherwise stated herein, the Agent shall
distribute Fees payable to the Lenders ratably to the Lenders based on each
Lender's Revolving Credit Pro Rata Share and shall distribute proceeds from the
sale of, or other realization upon, all or any part of the Collateral following
an Event of Default ratably to the Lenders based on the amount of the
Obligations then owing to each Lender.
(E)PRESUMPTION OF PAYMENT.
(i)Unless the Agent shall have received notice from a Lender prior to 12:00
p.m. noon (Baltimore City Time) on the date of the requested date for the
making of advances under the Revolving Loan or prior to 12:00 p.m. noon
(Baltimore City Time) that such Lender will not make available to the Agent,
such Lender's Revolving Credit Pro Rata Share of the advances to be made on
such date, the Agent may assume that such Lender has made such amount available
to the Agent on such date in accordance with this Section (e) Presumption of
Payment., and the Agent, in its sole discretion may, in reliance upon such
assumption, make available to the Borrower on such date a corresponding amount
on behalf of such Lender.
(ii)If and to the extent such Lender shall not have so made available to the
Agent its Revolving Credit Pro Rata Share of the advances under the Revolving
Loan made on such date, and the Agent shall have so made available to the
Borrower a corresponding amount on behalf of such Lender, such Lender shall, on
demand, pay to the Agent such corresponding amount, together with interest
thereon, at the Federal Funds Rate, for each day from the date such
corresponding amount shall have been so available by the Agent to the Borrower
until the date such amount shall have been repaid to the Agent. Such Lender
shall not be entitled to payment of any interest which accrues on the amount
made available by the Agent to the Borrower for the account of such Lender
until such time as such Lender reimburses the Agent for such amount, together
with interest thereon, as provided in this Section (E) PRESUMPTION OF PAYMENT..
(iii) A certificate of the Agent submitted to any Lender with respect to any
amounts owing to the Agent by such Lender under this Section (e) Presumption of
Payment. shall be conclusive and binding on such Lender, absent manifest error.
If such Lender does not pay such amounts to the Agent promptly upon the Agent's
demand, the Agent shall promptly notify the Borrower of such Lender's failure
to make payment, and the Borrower shall immediately repay such amounts to the
Agent, together with accrued interest thereon at the applicable rate on the
Revolving Loan, all without prejudice to the rights and remedies of the Agent
against any defaulting Lender. Any and all amounts due and payable to the
Agent by the Borrower under this Section (e) Presumption of Payment. constitute
and shall be part of the Agent's Obligations.
(iv) Unless the Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Agent that the Borrower will not make
such payment in full, the Agent may assume that the Borrower have made such
payment in full to the Agent on such date and the Agent in its sole discretion
may, in reliance upon such assumption, cause to be distributed to each Lender
on such due date an amount equal to the amount then due such Lender. If and to
the extent the Borrower shall not have so made such payment in full to the
Agent and the Agent shall have distributed to any Lender all or any portion of
such amount, such Lender shall repay to the Agent on demand the amount so
distributed to such Lender, together with interest thereon at the Federal Funds
Rate, for each day from the date such amount is distributed to such Lender
until the date such Lender repays such amount to the Agent.
ARTICLE III
THE COLLATERAL
Section 3.1 DEBT AND OBLIGATIONS SECURED.
All property and Liens assigned, pledged or otherwise granted under or in
connection with this Agreement (including, without limitation, those under
Section 3.2 Grant of Liens.
The Borrower hereby assigns, pledges and grants to the Agent, for the ratable
benefit of the Lenders and for the benefit of the Agent with respect to the
Agent's Obligations and to NationsBank with respect to the UK Obligations, and
agrees that NationsBank, the Agent and the Lenders shall have a perfected and
continuing security interest in, and Lien on, (a) all of the Borrower's
Accounts, Inventory, Chattel Paper, Documents, Instruments, Equipment,
Securities, and General Intangibles, whether now owned or existing or hereafter
acquired or arising, (b) all returned, rejected or repossessed goods, the sale
or lease of which shall have given or shall give rise to an Account or Chattel
Paper, (c) all insurance policies relating to the foregoing, (d) all books and
records in whatever media (paper, electronic or otherwise) recorded or stored,
with respect to the foregoing and all equipment and general intangibles
necessary or beneficial to retain, access and/or process the information
contained in those books and records, and (e) all cash and non-cash proceeds
and products of the foregoing. The Borrower further agrees that the Agent, for
the ratable benefit of the Lenders and for the benefit of the Agent with
respect to the Agent's Obligations, shall have in respect thereof all of the
rights and remedies of a secured party under the Uniform Commercial Code as
well as those provided in this Agreement, under each of the other Financing
Documents and under applicable Laws. Notwithstanding anything to the contrary
contained herein, the Collateral shall not include any rights of the Borrower
under any Capital Leases of Equipment or any other agreements if and to the
extent any such Capital Leases or other agreements prohibit the collateral
assignment or pledge of the Borrower's interest therein, and such prohibition
has not been waived by the respective Perso (Grant of Liens)) or any of the
Financing Documents shall, subject to the terms, conditions and limitations, if
any, set forth in this Agreement or in any of the Financing Documents, secure
(a) the payment of all of the Obligations, including, without limitation, any
and all Outstanding Letter of Credit Obligations, all Outstanding Bond Letter
of Credit Obligations, all Special Source Bond Obligations, all UK Obligations
and any and all Agent's Obligations, and (b) the performance, compliance with
and observance by the Borrower of the provisions of this Agreement and all of
the other Financing Documents or otherwise under the Obligations. The security
interest and Lien of each Lender in such property shall rank equally in
priority with the interest of each other Lender, but the security interest and
Lien of the Agent with respect to the Agent's Obligations shall be superior and
paramount to the security interest and Lien of the Lender. Notwithstanding the
foregoing, the security interest and Lien of the Agent and/or any Lender with
respect to any Obligations under or in connection with, any interest rate or
currency swap agreements, cap, floor, and collar agreements, currency spot,
foreign exchange and forward contracts and other similar agreements and
arrangements permitted by the provisions of this Agreement shall be junior and
subordinate to the security interest and Lien of the Agent with respect to the
Agent's Obligations and junior and subordinate to the security interest and
Lien of the Lender with respect to all other Obligations. In addition,
notwithstanding the foregoing, the Agent and the Lenders acknowledge and agree
that the Special Source Bond Obligations shall be secured by the Collateral
granted to the Agent and the Lenders pursuant to Section 3.2 of this Agreement
and pursuant to the Special Source Bond Security Agreement but, unless
otherwise agreed to by the Borrower, shall not be secured by any of the Deeds
of Trust.
The Agent, the Lenders, the Borrower, Berry UK and Norwich agree that this
Article 3 is intended to grant and govern Liens on the assets of the Borrower
only and not assets of Berry UK or Norwich. The UK Security Documents are
intended to grant Liens on the assets of Berry UK and Norwich to NationsBank
with respect to the UK Obligations only. Any and all references to Collateral
included elsewhere in this Agreement (other than in this Section) are intended
to include and govern the Collateral of the Borrower, Berry UK and Norwich,
whether the Liens on such Collateral arise under the provisions of this
Agreement or under any of the other Security Documents (including the UK
Security Documents).
SECTION 3.2GRANT OF LIENS.
The Borrower hereby assigns, pledges and grants to the Agent, for the ratable
benefit of the Lenders and for the benefit of the Agent with respect to the
Agent's Obligations and to NationsBank with respect to the UK Obligations, and
agrees that NationsBank, the Agent and the Lenders shall have a perfected and
continuing security interest in, and Lien on, (a) all of the Borrower's
Accounts, Inventory, Chattel Paper, Documents, Instruments, Equipment,
Securities, and General Intangibles, whether now owned or existing or hereafter
acquired or arising, (b) all returned, rejected or repossessed goods, the sale
or lease of which shall have given or shall give rise to an Account or Chattel
Paper, (c) all insurance policies relating to the foregoing, (d) all books and
records in whatever media (paper, electronic or otherwise) recorded or stored,
with respect to the foregoing and all equipment and general intangibles
necessary or beneficial to retain, access and/or process the information
contained in those books and records, and (e) all cash and non-cash proceeds
and products of the foregoing. The Borrower further agrees that the Agent, for
the ratable benefit of the Lenders and for the benefit of the Agent with
respect to the Agent's Obligations, shall have in respect thereof all of the
rights and remedies of a secured party under the Uniform Commercial Code as
well as those provided in this Agreement, under each of the other Financing
Documents and under applicable Laws. Notwithstanding anything to the contrary
contained herein, the Collateral shall not include any rights of the Borrower
under any Capital Leases of Equipment or any other agreements if and to the
extent any such Capital Leases or other agreements prohibit the collateral
assignment or pledge of the Borrower's interest therein, and such prohibition
has not been waived by the respective Person.
Without implying any limitation to the foregoing, as additional Collateral and
security for the Obligations, the Borrower hereby assigns to the Agent, for the
ratable benefit of the Lenders and for the benefit of the Agent with respect to
the Agent's Obligations and to NationsBank with respect to the UK Obligations,
all of its rights, title and interest in, to, and under, the PackerWare Merger
Agreement, the Virginia Design Purchase Agreement, the Venture Stock
Purchase/Merger Agreement, the tax covenants, restrictive covenants and
warranties of the Norwich Stock Purchase Agreement (the "Norwich Assignable
Interest"), all of the PackerWare Merger Agreement Documents, all of the
Virginia Design Purchase Agreement Documents, all of the Venture Stock
Purchase/Merger Documents, and all of the Norwich Stock Purchase Documents,
including, without limitation, all of the benefits of any representations and
warranties provided by the Seller, and any and all rights of the Borrower to
indemnification from the Seller or any other Person contained therein. The
Borrower agrees that neither the assignment to the Agent, for the ratable
benefit of the Lenders and for the benefit of the Agent with respect to the
Agent's Obligations, nor any other provision contained in this Agreement or any
of the other Financing Documents shall impose on the Agent or any of the
Lenders any obligation or liability of the Borrower under the PackerWare Merger
Agreement, under the Virginia Design Purchase Agreement, under the Venture
Stock Purchase/Merger Agreement, under the Norwich Assignable Interest, under
any of the PackerWare Merger Agreement Documents, and/or under any of the
Virginia Design Purchase Agreement Documents, under any of the other Venture
Stock Purchase/Merger Documents. The Borrower hereby agrees to indemnify the
Agent and each of the Lenders and hold the Agent and each of the Lenders
harmless from any and all claims, actions, suits, losses, damages, costs,
expenses, fees, obligations and liabilities which may be incurred by or imposed
upon the Agent and/or any of the Lenders by virtue of the assignment of and
Lien on each of the Borrower's rights, title and interest in, to, and under the
PackerWare Merger Agreement, Virginia Design Purchase Agreement, the Venture
Stock Purchase/Merger Agreement, the Norwich Assignable Interest, the
PackerWare Merger Agreement Documents, the Virginia Design Purchase Agreement
Documents, and the Venture Stock Purchase/Merger Documents, unless due to the
gross negligence or willful misconduct of the Agent and/or any of the Lenders.
The Borrower further acknowledges and agrees that following the occurrence of
an Event of Default, the Agent, with the consent of the Requisite Lenders,
shall be entitled to enforce any and all rights and remedies available to the
Borrower under the PackerWare Merger Agreement, under the Virginia Design
Purchase Agreement, under the Venture Stock Purchase/Merger Agreement, under
the Norwich Assignable Interest, under any or all of the PackerWare Merger
Agreement Documents, under any or all of the Virginia Design Purchase Agreement
Documents, under any or all of the Venture Stock Purchase/Merger Documents, ,
and under applicable Laws with respect to the PackerWare Merger Transaction,
Virginia Design Purchase Agreement Transaction, the Venture Stock
Purchase/Merger Transaction and/or the Norwich Stock Purchase Transaction.
SECTION 3.3 COLLATERAL DISCLOSURE LIST.
On or prior to the date of this Agreement, the Borrower, Berry UK and Norwich
shall deliver to the Agent one or more lists (collectively, the "Collateral
Disclosure List") which shall contain such information with respect to the
business and real and personal property of the Borrower, Berry UK, Norwich and
each Subsidiary Guarantor as of its date of delivery as the Agent may require
and shall be certified by a Responsible Officer of the Borrower, Berry UK,
Norwich and each Subsidiary Guarantor, as appropriate, all in the form provided
to the Borrower by the Agent. Promptly after demand by the Agent, the Borrower
shall furnish and shall cause Berry UK, Norwich and each Subsidiary Guarantor
to furnish to the Agent an update of the information contained in the
Collateral Disclosure List at any time and from time to time as may be
requested by the Agent.
SECTION 3.4PERSONAL PROPERTY.
The Borrower, Berry UK and Norwich acknowledge and agree that it is the
intention of the parties to this Agreement that (i) the Agent, for the ratable
benefit of the Lenders and for the benefit of the Agent with respect to the
Agent's Obligations, except as otherwise expressly provided in Section 3.2Grant
of Liens. (Grant of Liens), shall have a first priority, perfected Lien (except
that the Agent acknowledges and agrees that the Lien on the Fixed and Capital
Assets of the Borrower located in the State of Nevada, including, without
limitation, the real property owned by the Borrower in the State of Nevada
shall be a second priority Lien, subject to first priority Liens as set forth
in SCHEDULE (v)
Perfection and Priority of Collateral.
The Agent and the Lenders have, or upon execution and recording of UCC-1
financing statements and possession of Securities, Documents, Instruments,
Chattel Paper and Instruments will have, and will continue to have as security
for the Obligations (subject to the terms of Section 3.7 Subsidiary Guarantor
Assets. (Subsidiary Guarantor Assets) and the terms of (j) Limitations on Joint
and Several Liability for Obligations.(Limitations on Joint and Several
Liability), a valid and perfected Lien on and security interest in all
Collateral (except that the UK Collateral shall secure the UK Obligations
only), free of all other Liens, claims and rights of third parties whatsoever
except Permitted Liens, including, without limitation, those described on
Schedule (v)
Perfection and Priority of Collateral.), in form and substance reasonably
satisfactory to the Agent and its counsel, on all of the personal property of
the Borrower and of each Subsidiary Guarantor of any kind and nature
whatsoever, whether now owned or hereafter acquired, as security for all of the
Obligations, subject only to the Permitted Liens, if any and (ii) that
NationsBank shall have a first priority, perfected Lien, in form and substance
reasonably satisfactory to NationsBank and its counsel, on all of the personal
property of Berry UK and Norwich of any kind and nature whatsoever, whether now
owned or hereafter acquired, as security for the UK Obligations, subject only
to the Permitted Liens. In furtherance of the foregoing:
(A)SECURITIES, CHATTEL PAPER, PROMISSORY NOTES, ETC.
(i)As of the date of this Agreement and without implying any limitation on the
scope of Section 3.2 Grant of Liens.
The Borrower hereby assigns, pledges and grants to the Agent, for the ratable
benefit of the Lenders and for the benefit of the Agent with respect to the
Agent's Obligations and to NationsBank with respect to the UK Obligations, and
agrees that NationsBank, the Agent and the Lenders shall have a perfected and
continuing security interest in, and Lien on, (a) all of the Borrower's
Accounts, Inventory, Chattel Paper, Documents, Instruments, Equipment,
Securities, and General Intangibles, whether now owned or existing or hereafter
acquired or arising, (b) all returned, rejected or repossessed goods, the sale
or lease of which shall have given or shall give rise to an Account or Chattel
Paper, (c) all insurance policies relating to the foregoing, (d) all books and
records in whatever media (paper, electronic or otherwise) recorded or stored,
with respect to the foregoing and all equipment and general intangibles
necessary or beneficial to retain, access and/or process the information
contained in those books and records, and (e) all cash and non-cash proceeds
and products of the foregoing. The Borrower further agrees that the Agent, for
the ratable benefit of the Lenders and for the benefit of the Agent with
respect to the Agent's Obligations, shall have in respect thereof all of the
rights and remedies of a secured party under the Uniform Commercial Code as
well as those provided in this Agreement, under each of the other Financing
Documents and under applicable Laws. Notwithstanding anything to the contrary
contained herein, the Collateral shall not include any rights of the Borrower
under any Capital Leases of Equipment or any other agreements if and to the
extent any such Capital Leases or other agreements prohibit the collateral
assignment or pledge of the Borrower's interest therein, and such prohibition
has not been waived by the respective Perso (Grant of Liens), the Borrower
shall deliver and shall cause each Subsidiary Guarantor to deliver (or shall
have delivered or caused to be delivered) to the Agent, for the ratable benefit
of the Lenders and for the benefit of the Agent with respect to the Agent's
Obligations, all originals of all of letters of credit, Securities, Chattel
Paper, Documents and Instruments owned or held by the Borrower and/or any
Subsidiary Guarantor, and, if the Agent so requires, shall execute and deliver
and, shall cause each Subsidiary Guarantor to execute and deliver (or shall
have executed and delivered or caused to be delivered), a separate pledge,
assignment and security agreement in form and content acceptable to the Agent,
which pledge, assignment and security agreement shall assign, pledge and grant
a Lien to the Agent, for the ratable benefit of the Lenders and for the benefit
of the Agent with respect to the Agent's Obligations on all of the letters of
credit, Securities, Chattel Paper, Documents and Instruments of the Borrower
and each Subsidiary Guarantor, as the case may be. In addition, the Borrower
agrees to endorse to the order of the Agent any and all Instruments that
constitute or evidence all or any portion of the Collateral. As of the date of
this Agreement, Berry UK and Norwich shall deliver (or shall have delivered to
NationsBank, all originals of all of letters of credit, Securities, Chattel
Paper, Documents and Instruments owned or held by Berry UK and/or Norwich, and,
if NationsBank so requires, shall execute and deliver (or shall have executed
and delivered), a separate pledge, assignment and security agreement in form
and content acceptable to NationsBank, which pledge, assignment and security
agreement shall assign, pledge and grant a Lien to NationsBank with respect to
the UK Obligations on all of the letters of credit, Securities, Chattel Paper,
Documents and Instruments of Berry UK and/or Norwich, as the case may be. In
addition, Berry UK and Norwich agree to endorse to the order of NationsBank any
and all Instruments that constitute or evidence all or any portion of the UK
Collateral.
(ii) In the event that the Borrower or any Subsidiary Guarantor shall acquire
(or have acquired) after the Closing Date any letters of credit, Securities,
Chattel Paper, Documents or Instruments, the Borrower shall promptly so notify
the Agent and deliver the originals of all of the foregoing to the Agent
promptly and in any event within thirty (30) days of each acquisition. In the
event that Berry UK or Norwich shall acquire (or have acquired) after the
Closing Date any letters of credit, Securities, Chattel Paper, Documents or
Instruments, Berry UK and Norwich shall promptly so notify NationsBank and
deliver the originals of all of the foregoing to NationsBank promptly and in
any event within thirty (30) days of each acquisition.
(iii) All letters of credit, Securities, Chattel Paper, Documents and
Instruments to be delivered hereunder shall be delivered to the Agent and/or
NationsBank, as applicable, endorsed and/or assigned as required by the pledge,
assignment and security agreement and/or as the Agent and/or NationsBank, as
applicable, may require and, if applicable, shall be accompanied by blank
irrevocable and unconditional stock or bond powers.
(B) PATENTS, COPYRIGHTS AND OTHER PROPERTY REQUIRING ADDITIONAL STEPS
TO PERFECT.
As of the date of this Agreement and without implying any limitation on the
scope of Section 3.2 Grant of Liens. (Grant of Liens), the Borrower shall
execute and deliver and, shall cause each Subsidiary Guarantor, as appropriate,
to execute and deliver (or shall have executed and delivered or caused to be
executed and delivered), all Financing Documents and take all actions requested
by the Agent in order to perfect a first priority assignment of Patents,
Copyrights, Trademarks, customer lists or any other type or kind of
intellectual property acquired by the Borrower or any Subsidiary Guarantor
after the Closing Date. As of the date of this Agreement, Berry UK and Norwich
shall execute and deliver (or shall have executed and delivered), all Financing
Documents and take all actions reasonably requested by NationsBank in order to
perfect a first priority assignment of Patents, Copyrights, Trademarks,
customer lists or any other type or kind of intellectual property acquired by
Berry UK and/or Norwich after the Closing Date.
SECTION 3.5 RECORD SEARCHES.
As of the Closing Date and thereafter, as determined by the Agent, at the time
any Financing Document is executed and delivered by the Borrower, Berry UK,
Norwich or any Subsidiary Guarantor pursuant to this THE COLLATERAL or any
other Section of this Agreement, the Agent shall, in its reasonable discretion
and if requested, have received, in form and substance satisfactory to the
Agent, such Lien or record searches with respect to the Borrower, Berry UK,
Norwich, each Subsidiary Guarantor and/or any other Person who may be an
obligor or pledgor with respect to any of the Obligations, as appropriate, and
the property covered by such Financing Document showing that the Lien of such
Financing Document will be a perfected first priority Lien on the property
covered by such Financing Document subject only to Permitted Liens or to such
other Liens or matters as the Agent may approve. Notwithstanding the
foregoing, the Agent acknowledges and agrees that the Borrower shall be
obligated to reimburse the Agent only for actual out-of-pocket costs and
expenses relating to Lien and record searches and only to the extent ordered by
the Agent (a) one-time only after the Closing Date to confirm the due filing
and Lien priority of the Agent and the Lenders, (b) not more frequently than
once in any given calendar year after the Closing Date prior to the occurrence
of a Default or an Event of Default, and (c) in addition, at any time following
the occurrence of a Default or an Event of Default.
SECTION 3.6REAL PROPERTY.
The Borrower acknowledges and agrees that it is the intention of the parties to
this Agreement that the Agent, for the ratable benefit of the Lenders and for
the benefit of the Agent with respect to the Agent's Obligations, shall have a
first priority, perfected Lien, in form and substance satisfactory to the Agent
and its counsel, on all real property of any kind and nature whatsoever,
whether now owned or hereafter acquired by the Borrower or any Subsidiary
Guarantor, subject only to the Permitted Liens, excluding, however, any real
property leased by the Borrower or any Subsidiary Guarantor. Berry UK and
Norwich acknowledge and agree that it is the intention of the parties to this
Agreement that NationsBank shall have a first priority, perfected Lien, in form
and substance satisfactory to NationsBank and its counsel, on all real property
of any kind and nature whatsoever, whether now owned or hereafter acquired by
Berry UK or Norwich, subject only to the Permitted Liens and to the limitations
on liability set forth in (j) Limitations on Joint and Several Liability for
Obligations. (Limitations on Joint and Several Liability), if any, and subject
to the provisions of Section 3.7 below, excluding, however, any real property
leased by Berry UK or Norwich.
WITH RESPECT TO EACH PARCEL OF REAL PROPERTY NOW OWNED BY THE BORROWER, BERRY
UK, NORWICH AND/OR A SUBSIDIARY GUARANTOR ), THE BORROWER, BERRY UK AND
NORWICH, AS APPROPRIATE, SHALL EXECUTE AND DELIVER AND, SUBJECT TO THE TERMS OF
SECTION 3.7 SUBSIDIARY GUARANTOR ASSETS.
The Borrower agrees that all Obligations are and shall continue to be fully and
unconditionally and jointly and severally guaranteed by each Subsidiary
Guarantor and that the joint and several obligations of each Subsidiary
Guarantor under the Guaranty are and shall continue to be secured by a first
priority Lien (subject only to Permitted Liens) on all Assets and properties of
each Subsidiary Guarantor (Subsidiary Guarantor Assets), shall cause each
Subsidiary Guarantor, as appropriate, to execute and deliver (or to have
executed and delivered), as of the date of this Agreement, a deed of trust or a
mortgage or other document, including, any amendments or confirmations of the
existing Deeds of Trust as may be required by the Agent or NationsBank, as
appropriate, which deed of trust, mortgage and/or other document shall be
included among the Financing Documents. With respect to real property acquired
in fee by the Borrower, Berry UK, Norwich or any Subsidiary Guarantor after the
Closing Date (whether by merger or otherwise), the Borrower, Berry UK and/or
Norwich, as appropriate, shall grant and, subject to the terms of Section 3.7
Subsidiary Guarantor Assets.
The Borrower agrees that all Obligations are and shall continue to be fully and
unconditionally and jointly and severally guaranteed by each Subsidiary
Guarantor and that the joint and several obligations of each Subsidiary
Guarantor under the Guaranty are and shall continue to be secured by a first
priority Lien (subject only to Permitted Liens) on all Assets and properties of
each Subsidiary Guarantor (Subsidiary Guarantor Assets), shall cause each
Subsidiary Guarantor, as appropriate, to grant (or shall have granted or caused
to be granted), promptly after acquisition thereof, a Lien covering such real
property to the Agent, for the ratable benefit of the Lenders and for the
benefit of the Agent with respect to the Agent's Obligations or to NationsBank,
as appropriate, under the provisions of a mortgage, deed of trust or other
document, as appropriate. Each Financing Document to be executed and delivered
pursuant hereto shall:
(a)be in form and substance reasonably satisfactory to the Agent and
NationsBank, as appropriate;
(b)create a first priority Lien in such real property in favor of the
Agent, for the ratable benefit of the Lenders and for the benefit of the Agent
with respect to the Agent's Obligations or in favor of NationsBank, as
appropriate, subject only to Permitted Liens, zoning ordinances, and such other
matters as the Agent and/or NationsBank, as applicable, may approve, but
subject to the limitations set forth on liability in Section (J)LIMITATIONS ON
JOINT AND SEVERAL LIABILITY FOR OBLIGATIONS. (Limitations on Joint and Several
Liability);
(c)be accompanied by a current survey reasonably satisfactory in all
respects to the Agent and/or NationsBank, as appropriate, of the subject real
property, prepared by a registered land surveyor or engineer reasonably
satisfactory to the Agent and NationsBank, as appropriate;
(d)be accompanied by evidence reasonably satisfactory to the Agent
and/or NationsBank, as appropriate, regarding the current and past pollution
control practices at such real property in connection with the discharge,
emission, handling, disposal or existence of Hazardous Materials, which may
include, at the Agent's or NationsBank's request, an environmental audit of
such real property prepared by a person or firm reasonably acceptable to the
Agent and/or NationsBank, as applicable;
(e)be accompanied by a mortgagee's title insurance policy or marked-
up commitment or binder for such insurance in form and substance reasonably
satisfactory to the Agent and issued by a title insurance company reasonably
satisfactory to the Agent, except for any real property located in a
jurisdiction outside of the United States unless mortgagee's title insurance
coverage is customary in such jurisdiction; and
(f)upon request of the Agent or NationsBank, be accompanied by a
signed opinion of counsel addressed to the Agent and each of the Lenders or
NationsBank, as appropriate, in form and substance reasonably satisfactory to
the Agent and NationsBank, as applicable.
SECTION 3.7SUBSIDIARY GUARANTOR ASSETS.
The Borrower agrees that all Obligations are and shall continue to be fully and
unconditionally and jointly and severally guaranteed by each Subsidiary
Guarantor and that the joint and several obligations of each Subsidiary
Guarantor under the Guaranty are and shall continue to be secured by a first
priority Lien (subject only to Permitted Liens) on all Assets and properties of
each Subsidiary Guarantor.
SECTION 3.8COSTS.
The Borrower agrees to pay, as part of the Enforcement Costs and to the fullest
extent permitted by applicable Laws, on demand all reasonable costs, fees and
expenses incurred by the Agent and/or any of the Lenders in connection with the
taking, perfection, preservation, protection and/or release of a Lien on the
Collateral, including, without limitation, with respect to all actions required
to effect any of the provisions of Section 3.7 Subsidiary Guarantor Assets.
The Borrower agrees that all Obligations are and shall continue to be fully and
unconditionally and jointly and severally guaranteed by each Subsidiary
Guarantor and that the joint and several obligations of each Subsidiary
Guarantor under the Guaranty are and shall continue to be secured by a first
priority Lien (subject only to Permitted Liens) on all Assets and properties of
each Subsidiary Guarantor. Section 3.7Subsidiary Guarantor Assets.
The Borrower agrees that all Obligations are and shall continue to be fully and
unconditionally and jointly and severally guaranteed by each Subsidiary
Guarantor and that the joint and several obligations of each Subsidiary
Guarantor under the Guaranty are and shall continue to be secured by a first
priority Lien (subject only to Permitted Liens) on all Assets and properties of
each Subsidiary Guarantor (Subsidiary Guarantor Assets), and any of the
following:
(a)customary reasonable fees and expenses incurred by the Agent
and/or any of the Lenders in preparing, reviewing, negotiating and finalizing
the Financing Documents from time to time (including, without limitation,
reasonable attorneys' fees incurred in connection with preparing, reviewing,
negotiating, and finalizing any of the Financing Documents, including, any
amendments and supplements thereto);
(b)all filing and/or recording taxes or fees;
(c)all title insurance premiums and costs;
(d)all costs of Lien and record searches;
(e)reasonable attorneys' fees in connection with all legal opinions
required;
(f)appraisal and/or survey costs; and
(g)all related reasonable costs, fees and expenses.
SECTION 3.9RELEASE.
Upon the payment and performance of all Obligations of the Borrower, Berry UK,
Norwich and all obligations and liabilities of each other Subsidiary Guarantor,
under this Agreement and/or under any or all other Financing Documents, the
termination and/or expiration of all of the Commitments, all Letters of Credit,
all Bond Letters of Credit, all Outstanding Bond Letter of Credit Obligations,
and all Outstanding Letter of Credit Obligations, upon the Borrower's request
and at the Borrower's sole cost and expense, the Agent shall release and/or
terminate the Liens of any and all of the Financing Documents.
SECTION 3.10INCONSISTENT PROVISIONS.
In the event that the provisions of any Financing Document directly conflict
with any provision of this Agreement, the provisions of this Agreement shall
govern.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1REPRESENTATIONS AND WARRANTIES.
The Borrower, Berry UK and Norwich each represents and warrants to the Agent
and the Lenders, as follows:
(A)SUBSIDIARIES.
The Borrower, Berry UK and Norwich owns the Subsidiaries listed on the
Collateral Disclosure List attached hereto and made a part hereof and no
others, as updated from time to time pursuant to the provisions of this
Agreement. Each of the Subsidiaries is a Wholly Owned Subsidiary except as
shown on the Collateral Disclosure List, as updated from time to time pursuant
to the provisions of this Agreement, which correctly indicates the nature and
amount of the Borrower's, Berry UK's and/or Norwich's ownership interests
therein, as applicable.
(B)GOOD STANDING.
Each of the Borrower and its Subsidiaries (a) is a corporation duly organized,
existing and in good standing under the laws of the jurisdiction of its
incorporation, (b) has the corporate power to own its property and to carry on
its business as now being conducted, and (c) is duly qualified to do business
and is in good standing in each jurisdiction in which the character of the
properties owned by it therein or in which the transaction of its business
makes such qualification necessary or where such non-qualification would have a
materially adverse effect on the Borrower and its Subsidiaries taken as a whole
or would otherwise impair the ability of the Agent to collect or realize upon
any of the Collateral.
(C)POWER AND AUTHORITY.
Each of the Borrower and its Subsidiaries has full corporate power and
authority to execute and deliver this Agreement, the other Financing Documents,
and the Norwich Stock Purchase Documents to which it is a party, to make the
borrowings and request Letters of Credit and Bond Letters of Credit under this
Agreement, to close and consummate each aspect of the Norwich Stock Purchase
Transaction, as appropriate and to incur and perform the Obligations whether
under this Agreement, the other Financing Documents, the Norwich Stock Purchase
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 Borrower or any Subsidiary, and no consent, approval, filing or
registration with or notice to any Governmental Authority on the part of the
Borrower or any Subsidiary, is required as a condition to the execution,
delivery, validity or enforceability of this Agreement, the other Financing
Documents, any of the Norwich Stock Purchase Documents, the performance by the
Borrower of the Obligations or the closing and consummation of the Norwich
Stock Purchase Transaction, in each case, if required, the same has been duly
obtained.
(D)
BINDING AGREEMENTS.
This Agreement and the other Financing Documents executed and delivered by the
Borrower and/or any of its Subsidiaries have been properly executed and
delivered and constitute the valid and legally binding obligations of the
Borrower and its Subsidiaries, respectively, and are fully enforceable against
the Borrower and its Subsidiaries in accordance with their respective terms,
subject to bankruptcy, insolvency, reorganization, moratorium and other laws of
general applications affecting the rights and remedies of creditors and secured
parties, and general principles of equity regardless of whether applied in a
proceeding in equity or at law.
(E)NO CONFLICTS.
Neither the execution, delivery and performance of the terms of this Agreement
or of any of the other Financing Documents executed and delivered by the
Borrower or any of the Subsidiaries nor the consummation of the transactions
contemplated by this Agreement will conflict with, violate or be prevented by
(a) the charter or bylaws of the Borrower or any of the Subsidiaries, (b) any
existing mortgage, indenture, contract or agreement binding on the Borrower or
any of the Subsidiaries or affecting any of its or their property, or (c) any
Laws.
(F)NO DEFAULTS, VIOLATIONS. AS OF THE DATE OF THIS AGREEMENT:
(i)No Default or Event of Default has occurred and is continuing.
(i)Neither the Borrower nor any of the Subsidiaries is in material default
under any existing mortgage, indenture, contract or agreement binding on it or
them or affecting its or their property in any respect which would be
materially adverse to the business, operations, property or financial condition
of the Borrower and the Subsidiaries, taken as a whole, or which would
materially adversely affect the ability of the Borrower and the Subsidiaries,
taken as a whole to perform their obligations under this Agreement or under any
of the other Financing Documents to which the Borrower and/or any of the
Subsidiaries is a party.
(G)COMPLIANCE WITH LAWS.
Neither the Borrower nor any of the Subsidiaries is in violation of any
applicable Laws (including, without limitation, any Laws relating to employment
practices, to environmental, occupational and health standards and controls) or
order, writ, injunction, decree or demand of any court, arbitrator, or any
Governmental Authority affecting the Borrower, any Subsidiary or any of its or
their properties, the violation of which, considered in the aggregate, would
materially adversely affect the business, operations or properties of the
Borrower and/or any Subsidiary taken as a whole.
(H)MARGIN STOCK.
None of the proceeds of the Loans will be used, directly or indirectly, by the
Borrower or any Subsidiary for the purpose of purchasing or carrying, or for
the purpose of reducing or retiring any indebtedness which was originally
incurred to purchase or carry, any "margin security" within the meaning of
Regulation G (12 CFR Part 207), or "margin stock" within the meaning of
Regulation U (12 CFR Part 221), of the Board of Governors of the Federal
Reserve System or for any other purpose which would make the transactions
contemplated in this Agreement a "purpose credit" within the meaning of said
Regulation G or Regulation U, or cause this Agreement to violate any other
regulation of the Board of Governors of the Federal Reserve System or the
Securities Exchange Act of 1934 or the Small Business Investment Act of 1958,
as amended, or any rules or regulations promulgated under any of such statutes.
(I)INVESTMENT COMPANY ACT; MARGIN SECURITIES.
Neither the Borrower nor any Subsidiary is an investment company within the
meaning of the Investment Company Act of 1940, as amended, nor is it, directly
or indirectly, controlled by or acting on behalf of any Person which is an
investment company within the meaning of said Act. Neither the Borrower nor
any Subsidiary is engaged principally, or as one of its important activities,
in the business of extending credit for the purpose of purchasing or carrying
"margin security" within the meaning of Regulation G (12 CFR Part 207), or
"margin stock" within the meaning of Regulation U (12 CFR Part 221), of the
Board of Governors of the Federal Reserve System.
(J)LITIGATION.
Except as otherwise disclosed on SCHEDULE (J) LITIGATION. attached to and made
a part of this Agreement, there are no proceedings, actions or investigations
pending or, so far as the Borrower knows, threatened before or by any court,
arbitrator any Governmental Authority which, in any one case or in the
aggregate, if determined adversely to the interests of the Borrower or any
Subsidiary, would have a material adverse effect on the business, properties,
condition (financial or otherwise) or operations, present or prospective, of
the Borrower or any of the Subsidiaries taken as a whole.
(K)FINANCIAL CONDITION.
The consolidated financial statements of the Borrower and the Subsidiaries
dated as of March 31, 1998, are complete and correct and fairly present the
financial position of the Borrower and the Subsidiaries and the results of
their operations as of the date and for the period referred to and have been
prepared in accordance with GAAP applied on a consistent basis throughout the
period involved. There are no material liabilities, direct or indirect, fixed
or contingent, of the Borrower or any Subsidiary as of the date of such
financial statements that are not reflected therein. There has been no
materially adverse change in the financial condition or operations of the
Borrower or any Subsidiary since the date of such financial statements and to
the Borrower's knowledge no such materially adverse change is pending. Except
as permitted by the provisions of Section Investments, Loans and Other
Transactions. (Investments), neither the Borrower nor any Subsidiary has
guaranteed the obligations of, or made any investment in or advances to, any
Person (other than the Borrower or any Subsidiary Guarantor), except as
disclosed in such financial statements and except that the Borrower and/or any
or all of the Subsidiary Guarantors may have guaranteed one or more leases
under which the Borrower and/or a Subsidiary Guarantor is a tenant or lessee,
as of the date of this Agreement.
(L)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 immediately after consummation of
the Norwich Stock Purchase 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 Norwich Stock Purchase
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 the
consolidated financial condition of the Borrower and the Subsidiaries as of
immediately after consummation of the Norwich Stock Purchase 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.
(M)FULL DISCLOSURE.
The financial statements referred to in Section (K)FINANCIAL CONDITION.
(Financial Condition) of this Agreement and the statements, reports or
certificates furnished by the Borrower in connection with the Financing
Documents (a) do not contain any untrue statement of a material fact and (b)
when taken in their entirety, do not omit any material fact necessary to make
the statements contained therein not misleading. There is no fact known to the
Borrower which the Borrower has not disclosed to the Agent and the Lenders in
writing prior to the date of this Agreement with respect to the transactions
contemplated by the Financing Documents which materially and adversely affects
or in the future would, in the reasonable opinion of the Borrower materially
adversely affect the condition, financial or otherwise, results of operations,
business, or assets of the Borrower and the Subsidiaries, taken as a whole.
(N)INDEBTEDNESS FOR BORROWED MONEY.
As of the date of this Agreement, except for the Obligations and except as set
forth in SCHEDULE (N) INDEBTEDNESS FOR BORROWED MONEY. attached to and made a
part of this Agreement, neither the Borrower, Berry UK nor Norwich has any
Indebtedness for Borrowed Money. The Agent has received photocopies of all
promissory notes evidencing any Indebtedness for Borrowed Money set forth in
SCHEDULE (N)INDEBTEDNESS FOR BORROWED MONEY., together with any and all
material subordination agreements, other agreements, documents, or instruments
securing, evidencing, guarantying or otherwise executed and delivered in
connection therewith.
(O)SUBORDINATED DEBT; SENIOR SECURED DEBT.
None of the Subordinated Debt Loan Documents nor any of the Senior Secured Debt
Loan Documents in effect prior to the date of this Agreement have been amended,
supplemented, restated or otherwise modified except as otherwise disclosed to
the Agent in writing on or before the date of this Agreement. In addition, the
Borrower has furnished copies of each amendment, supplement, restatement or
other modification to any of the Subordinated Debt Loan Documents executed on
or before the date of this Agreement. In addition, there does not exist any
default or any event which upon notice or lapse of time or both would
constitute a default under the terms of any of the Subordinated Debt Loan
Documents or any of the Senior Secured Debt Loan Documents.
(P)TAXES.
The Borrower and the Subsidiaries have filed all returns, reports and forms for
all material Taxes which, to the knowledge of the Borrower, are required to be
filed, and have paid all such Taxes as shown on such returns or on any
assessment received by it, to the extent that such Taxes have become due,
unless and to the extent only that such Taxes, assessments and governmental
charges are currently contested in good faith and by appropriate proceedings by
the Borrower, such Taxes are not the subject of any Liens other than Permitted
Liens, and adequate reserves therefor have been established as required under
GAAP. All tax liabilities of the Borrower and the Subsidiaries were as of the
date of audited financial statements referred to in Section (k) Financial
Condition. (Financial Condition), and are now, adequately provided for on the
books of the Borrower and the Subsidiaries, as appropriate. No tax liability
has been asserted by the Internal Revenue Service or any state or local
authority against the Borrower or any Subsidiary for Taxes in excess of those
already paid, except that the Agent and the Lenders understand that PackerWare
is to be the subject of an audit by the Internal Revenue Service, but that such
audit, to the Borrower's knowledge, is not the result of any claimed or actual
non-compliance with any Laws.
(Q)ERISA.
With respect to any "pension plan" as defined in SECTION 3(2) of ERISA, which
plan is now or previously has been maintained or contributed to by the Borrower
and/or any Subsidiary and/or by any commonly controlled entity: (a) no
"accumulated funding deficiency" as defined in Code <section>412 or ERISA
<section>302 has occurred, whether or not that accumulated funding deficiency
has been waived; (b) no Reportable Event has occurred; (c) no termination of
any plan subject to Title IV of ERISA has occurred; (d) no Borrower, Subsidiary
nor any commonly controlled entity (as defined under ERISA) has incurred a
"complete withdrawal" within the meaning of ERISA <section>4203 from any Multi-
employer Plan; (e) no Borrower, Subsidiary nor any commonly controlled entity
has incurred a "partial withdrawal" within the meaning of ERISA <section>4205
with respect to any Multi-employer Plan; (f) no Multi-employer Plan to which
the Borrower, any Subsidiary or any commonly controlled entity has an
obligation to contribute is in "reorganization" within the meaning of ERISA
<section>4241 nor has notice been received by the Borrower, any Subsidiary or
any commonly controlled entity that such a Multi-employer Plan will be placed
in "reorganization".
(R)TITLE TO PROPERTIES.
Each of the Borrower and the Subsidiaries has good title to all of its and
their respective properties, including, without limitation, the Collateral and
the properties and assets reflected in the balance sheets described in Section
(k) Financial Condition. (Financial Condition), subject to any minor
imperfections in title which do not significantly detract from the use thereof.
The Borrower and each Subsidiary have legal, enforceable and uncontested rights
to use freely such property and assets.
(S)PATENTS, TRADEMARKS, ETC.
Each of the Borrower and the Subsidiaries owns, possesses, or has the right to
use all necessary Patents, licenses, Trademarks, Copyrights, permits and
franchises to own its properties and to conduct its business as now conducted,
without known conflict with the rights of any other Person. Any and all
obligations to pay royalties or other charges with respect to such properties
and assets are properly reflected on the financial statements described in
Section (K)FINANCIAL CONDITION. (Financial Condition).
(T)EMPLOYEE RELATIONS.
Except as disclosed on SCHEDULE (T) EMPLOYEE RELATIONS. attached hereto and
made a part hereof, as updated from time to time, (a) no Borrower nor any
Subsidiary nor the Borrower's or any Subsidiary's employees is subject to any
collective bargaining agreement, (b) to the Borrower's knowledge, no petition
for certification or union election is pending with respect to the employees of
the Borrower or any Subsidiary and no union or collective bargaining unit has
sought such certification or recognition with respect to the employees of the
Borrower, and (c) as of the date of this Agreement, there are no strikes,
slowdowns, work stoppages or controversies pending or, to the best knowledge of
the Borrower after due inquiry, threatened between the Borrower and its
employees. Hours worked and payments made to the employees of any one or more
of the Borrower have not been in violation of the Fair Labor Standards Act or
any other applicable law dealing with such matters. All payments due from the
Borrower or any Subsidiary or for which any claim may be made against the
Borrower or any Subsidiary, on account of wages and employee and retiree health
and welfare insurance and other benefits have been paid or accrued as a
liability on its or their books, as appropriate.
(U)PRESENCE OF HAZARDOUS MATERIALS OR HAZARDOUS MATERIALS
CONTAMINATION.
To the best of the Borrower's knowledge and except as disclosed in writing to
the Agent in SCHEDULE (U) PRESENCE OF HAZARDOUS MATERIALS OR HAZARDOUS
MATERIALS CONTAMINATION. hereof with respect to any matters existing as of the
date of this Agreement and except as hereafter disclosed in writing to the
Agent with respect to any matters arising after the date of this Agreement, (a)
no Hazardous Materials are located on any real property owned, controlled or
operated by the Borrower or any Subsidiary or for which the Borrower or any
Subsidiary is, or is claimed to be, responsible, except for reasonable
quantities of necessary supplies for use by the Borrower and/or the
Subsidiaries any of their respective tenants in the ordinary course of its or
their current lines of business and stored, used and disposed in accordance
with applicable Laws; and (b) no property owned, controlled or operated by the
Borrower or any Subsidiary or for which the Borrower or any Subsidiary has, or
is claimed to have, responsibility is affected by any material Hazardous
Materials Contamination at any other property.
In addition, as of the date of this Agreement, the Borrower represents and
warrants that it has no existing monitoring or observation wells located at
Lawrence, Kansas (including Aeroquip); Evansville, Indiana; Indian Trail, North
Carolina; and Reno, Nevada properties from which groundwater can be sampled and
analyzed.
(V)
PERFECTION AND PRIORITY OF COLLATERAL.
The Agent and the Lenders have, or upon execution and recording of UCC-1
financing statements and possession of Securities, Documents, Instruments,
Chattel Paper and Instruments will have, and will continue to have as security
for the Obligations (subject to the terms of SECTION 3.7SUBSIDIARY GUARANTOR
ASSETS. (Subsidiary Guarantor Assets) and the terms of (J)LIMITATIONS ON JOINT
AND SEVERAL LIABILITY FOR OBLIGATIONS.(Limitations on Joint and Several
Liability), a valid and perfected Lien on and security interest in all
Collateral (except that the UK Collateral shall secure the UK Obligations
only), free of all other Liens, claims and rights of third parties whatsoever
except Permitted Liens, including, without limitation, those described on
SCHEDULE (V)
PERFECTION AND PRIORITY OF COLLATERAL..
(W) PLACES OF BUSINESS AND LOCATION OF COLLATERAL.
The information contained in the Collateral Disclosure List, as updated
annually and at such other times as shall be determined by the Borrower at any
time prior to the occurrence of a Default or an Event of Default and as shall
be determined by the Agent at any time following the occurrence of a Default or
an Event of Default, is complete and correct in all material respects. The
Collateral Disclosure List completely and accurately identifies the address of
(a) the chief executive office of the Borrower, Berry UK, Norwich and each of
the Subsidiary Guarantors, (b) any and each other place of business of the
Borrower, Berry UK, Norwich or any of the Subsidiary Guarantors, (c) the
location of all books and records pertaining to the Collateral, and (d) each
location, other than the foregoing, where any of the Collateral is located.
The legally required places to file financing statements with respect to the
Collateral within the meaning of the Uniform Commercial Code are the filing
offices for those jurisdictions in which the Borrower and/or any Subsidiary
Guarantor, as appropriate, maintains a place of business as identified on the
Collateral Disclosure List.
(X) BUSINESS NAMES AND ADDRESSES.
Except as set forth in SCHEDULE (X) BUSINESS NAMES AND ADDRESSES. attached
hereto and made a part hereof, in the five (5) years preceding the date hereof,
neither the Borrower, Berry UK, Norwich nor any of its Subsidiaries (other than
PAC) has changed its name, identity or corporate structure, has conducted
business under any name other than its current name, and has conducted its
business in any jurisdiction other than those disclosed on the Collateral
Disclosure List.
(Y)EQUIPMENT.
No equipment is held by the Borrower, Berry UK, Norwich or any Subsidiary
Guarantor on a sale on approval basis.
(Z)INVENTORY.
All material portions of the Inventory of the Borrower, Berry UK, Norwich and
each Subsidiary Guarantor included in the Borrowing Base and/or the UK
Borrowing Base, conform to the eligibility criteria set forth in the definition
of Eligible Domestic Inventory and/or Eligible UK Inventory, as applicable.
Except as disclosed in the Collateral Disclosure List, no goods offered for
sale by the Borrower or any Subsidiary are consigned to or held on sale or
return terms by the Borrower or any Subsidiary.
(AA)ACCOUNTS.
All material portions of the Accounts included in the Borrowing Base and the UK
Borrowing Base conform to the eligibility criteria set forth in the definition
of Eligible Domestic Receivables and Eligible UK Receivables, as applicable.
(BB)PACKERWARE MERGER TRANSACTION.
The Agent has received true and correct photocopies of the PackerWare Merger
Agreement and each of the other PackerWare Merger Agreement Documents,
executed, delivered and/or furnished on or before the Closing Date in
connection with the PackerWare Merger Transaction. Neither the PackerWare
Merger Agreement nor any of the other PackerWare Merger Agreement Documents
have been modified, changed, supplemented, canceled, amended or otherwise
altered, except as otherwise disclosed to the Agent in writing on or before the
Closing Date. The PackerWare Merger Transaction has been effected, closed and
consummated pursuant to, and in accordance with, the terms and conditions of
the PackerWare Merger Agreement and with all applicable Laws.
(CC)VENTURE STOCK PURCHASE/MERGER TRANSACTION.
The Agent has received true and correct photocopies of the Venture Stock
Purchase/Merger Agreement and each of the other Venture Stock Purchase/Merger
Documents, executed, delivered and/or furnished on or before the date of this
Agreement in connection with the Venture Stock Purchase/Merger Transaction.
Neither the Venture Stock Purchase/Merger Agreement nor any of the other
Venture Stock Purchase/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 this Agreement. The
Venture Stock Purchase/Merger Transaction has been effected, closed and
consummated pursuant to, and in accordance with, the terms and conditions of
the Venture Stock Purchase/Merger Agreement and with all applicable Laws. As
of the date of this Agreement, Venture Southeast and Venture Midwest are
Wholly-Owned Subsidiaries of the Borrower.
(DD)NORWICH STOCK PURCHASE TRANSACTION.
The Agent has received true and correct photocopies of the Norwich Stock
Purchase Agreement and each of the other Norwich Stock Purchase Documents,
executed, delivered and/or furnished on or before the date of this Agreement in
connection with the Norwich Stock Purchase Transaction. Neither the Norwich
Stock Purchase Agreement nor any of the other Norwich Stock Purchase 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 this Agreement. The Norwich Stock Purchase Transaction has been
effected, closed and consummated pursuant to, and in accordance with, the terms
and conditions of the Norwich Stock Purchase Agreement and with all applicable
Laws.
(EE)HART-SCOTT-RODINO.
The Borrower, the Seller and all other necessary Persons, as appropriate, have
made such filings 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 PackerWare Merger Transaction, the Venture Stock
Purchase/Merger Transaction, the Norwich Stock Purchase Transaction and/or the
Container Purchase Agreement Transaction. The waiting periods under such Act
have terminated or expired.
(FF)CREDIT FACILITIES.
The Borrower hereby represents and warrants that none of the Credit Facilities
nor the obligations of the Borrower, Berry UK, Norwich and the Subsidiary
Guarantors under and with respect to any of the Obligations are in violation of
or otherwise constitute a default under the provisions of the Indenture. In
particular, the Term Loans (including the Term Loan B Increase) and the
Revolving Loan constitute "Senior Indebtedness" under the provisions of the
Indenture. The Borrower further represents and warrants that neither its
agreement nor the agreement of any Subsidiary Guarantor to guaranty payment of
the Special Source Bond Obligations or the UK Credit Facilities and to grant
liens on their respective assets and properties are in violation of or
otherwise constitute a default under the provisions of the Indenture.
(GG)YEAR 2000 COMPLIANCE
As of the Closing Date, the Borrower has (i) initiated a review and assessment
of all areas within its and each of the Subsidiaries' (excluding Norwich)
business and operations (including those affected by suppliers and vendors)
that could be adversely affected by the "Year 2000 Problem" (that is, the risk
that computer applications used by the Borrower or any Subsidiary may be unable
to recognize and perform properly date-sensitive functions involving certain
dates prior to and any date after December 31, 1999), (ii) developed a plan and
timeline for addressing the Year 2000 Problem on a timely basis, and (iii) to
date, implemented that plan in accordance with that timetable, but in any event
on or before March 31, 1999. The Borrower reasonably believes that all
computer applications that are material to it or any Subsidiary's (including
Norwich's)_ business and operations will on a timely basis (but in any event on
or before March 31, 1999) be able to perform properly date-sensitive functions
for all dates before and after January 1, 2000 (that is, be "Year 2000
Compliant"), except to the extent that a failure to do so would not reasonably
be expected to have a material adverse effect on the business, properties,
condition (financial or otherwise) or operations, present or prospective, of
the Borrower or any Subsidiary taken as a whole. Although as of the Closing
Date, the Borrower has not initiated a review and assessment to determine
whether Norwich will be Year 2000 Compliant, the Borrower intends to initiate
and complete such a review and assessment promptly following the Closing Date
and in any event within six (6) months of the Closing Date.
SECTION 4.2SURVIVAL; UPDATES OF REPRESENTATIONS AND WARRANTIES.
All representations and warranties contained in or made under or in connection
with this Agreement and the other Financing Documents shall survive the date of
this Agreement, the making of any advance under the Loans and extension of
credit made hereunder, and the incurring of any other Obligations and shall be
deemed to have been made at the time of the making of each advance under the
Loans or the issuance of each Letter of Credit and/or each Bond Letter of
Credit, except that (a) representations and warranties which relate to a
specific date need only be true and correct as of such date, and (b) the
representations and warranties which relate to financial statements which are
referred to in (K)FINANCIAL CONDITION. (Financial Condition), shall also be
deemed to cover financial statements furnished from time to time to the Agent
and the Lenders pursuant to (a) Financial Statements.
The Borrower shall furnish to the Agent for distribution to the Lender
(Financial Statements). The Borrower, Berry UK and Norwich shall have the
right from time to time to modify or supplement any of the Schedules and/or the
Collateral Disclosure List referred to in this REPRESENTATIONS AND WARRANTIES,
and following any such modification or supplement the representations in this
REPRESENTATIONS AND WARRANTIES shall be deemed to refer to such Schedules and
Collateral Disclosure List as so modified or supplemented; provided, that the
Borrower, Berry UK and/or Norwich, as applicable, will be deemed to have
represented at the time of delivery of any such modification or supplement that
the modifications of and supplements to such Schedules and/or Collateral
Disclosure List after the date of this Agreement do not relate to events or
circumstances which individually or in the aggregate have resulted in a
material adverse change in the business or operations of the Borrower, Berry
UK, Norwich and its Subsidiaries taken as a whole or which would otherwise
constitute a Default or an Event of Default.
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.1CONDITIONS TO THE INITIAL ADVANCE AND INITIAL LETTER OF CREDIT.
The making of the initial advance under the Loans and the issuance of the
initial Letter of Credit and the initial Bond Letter of Credit are subject to
the fulfillment on or before the date of this Agreement of the following
conditions precedent in a manner reasonably satisfactory in form and substance
to the Agent and its counsel:
(A)ORGANIZATIONAL DOCUMENTS - BORROWER, BERRY UK AND NORWICH.
The Agent shall have received for the Borrower, Berry UK and Norwich:
(i)for the Borrower only, a certificate of good standing certified by the
Secretary of State, or other appropriate Governmental Authority, of the state
of incorporation of the Borrower, if applicable;
(ii)for the Borrower only, a certificate of qualification to do business
certified by the Secretary of State or other Governmental Authority of each
state in which the Borrower conducts business, as applicable;
(iii)a certificate dated as of the date of this Agreement by the Secretary or
an Assistant Secretary of each of the Borrower, Berry UK and Norwich covering:
(A)true and complete copies of its corporate charter, bylaws,
and all amendments thereto;
(B)true and complete copies of the resolutions of its Board of
Directors authorizing (A) the execution, delivery and performance of the
Financing Documents and the Norwich Stock Purchase Documents to which it is a
party, (B) the borrowings hereunder, (C) the granting of the Liens contemplated
by this Agreement and the Financing Documents to which it is a party, and (D)
the Norwich Stock Purchase Transaction;
(C)the incumbency, authority and signatures of the officers
authorized to sign this Agreement and the other Financing Documents to which it
is a party; and
(D)the identity of its current directors, common stock holders
and other equity holders, as well as their respective percentage ownership
interests.
(B)OPINION OF COUNSEL.
The Agent shall have received the favorable opinion of counsel for the
Borrower, Berry UK, Norwich and the Subsidiary Guarantors addressed to the
Agent and the Lenders in form satisfactory to the Agent. The Agent agrees that
local counsel opinion shall be required only for England.
(C)ORGANIZATIONAL DOCUMENTS - SUBSIDIARY GUARANTORS.
The Agent shall have received for each Subsidiary Guarantor:
(i)a certificate of good standing certified by the Secretary of State, or other
appropriate Governmental Authority, of the state of incorporation;
(ii)a certificate of qualification to do business certified by the Secretary of
State or other Governmental Authority of each state in which each Subsidiary
Guarantor conducts business;
(iii)a certificate dated as of the date of this Agreement by the Secretary or
an Assistant Secretary of each Corporate Guarantor covering:
(A)true and complete copies of the its corporate charter,
bylaws, and all amendments thereto;
(B)true and complete copies of the resolutions of it's Board of
Directors authorizing the execution, delivery and performance of the Financing
Documents to which it is a party and the granting of the Liens contemplated by
any of the Financing Documents to which it is a party;
(C)the incumbency, authority and signatures of its officers to
sign the Guaranty and all other Financing Documents to which it is a party;
(D)the identity of it's current directors, common stock holders
and other equity holders, as well as their respective percentage ownership
interests;
(iv)the favorable opinion of counsel for the Subsidiary Guarantors addressed to
the Agent and the Lenders and in form satisfactory to the Agent.
(D)CONSENTS, LICENSES, APPROVALS, ETC.
The Agent shall have received copies of all consents, licenses and approvals,
required in connection with the execution, delivery, performance, validity and
enforceability of the Financing Documents, and the Norwich Stock Purchase
Documents, and such consents, licenses and approvals shall be in full force and
effect.
(E)NOTES.
The Agent shall have received for delivery to each of the Lenders the UK Term
Note, the UK Revolving Credit Notes, the Term Notes and the Revolving Credit
Notes, each conforming to the requirements hereof and executed by a Responsible
Officer of the Borrower, Berry UK and Norwich, as applicable, and attested by a
duly authorized representative of the Borrower, Berry UK and Norwich, as
applicable.
(F)FINANCING DOCUMENTS AND COLLATERAL.
The Borrower, Berry UK, Norwich and each Subsidiary Guarantor shall have
executed and delivered the Financing Documents to be executed by it, including,
without limitation, the UK Security Documents, the UK Credit Facilities
Guaranty and the UK Security Agreement and shall have delivered original
Chattel Paper, Instruments, Securities, and related Collateral and all
opinions, title insurance, and other documents contemplated by THE COLLATERAL
(The Collateral).
(G)OTHER FINANCING DOCUMENTS.
In addition to the Financing Documents to be delivered by the Borrower, Berry
UK and/or Norwich, the Agent shall have received the Financing Documents duly
executed and delivered by Persons other than the Borrower, Berry UK or Norwich.
(H)OTHER DOCUMENTS, ETC.
The Agent shall have received such other certificates, opinions, documents and
instruments confirmatory of or otherwise relating to the transactions
contemplated hereby as may have been reasonably requested by the Agent.
(I)PAYMENT OF FEES.
The Agent and the Lenders shall have received payment of any Fees due on or
before the date of this Agreement.
(J)COLLATERAL DISCLOSURE LIST.
The Borrower, Berry UK, Norwich and each Subsidiary Guarantor shall have
delivered the Collateral Disclosure List required under the provisions of
COLLATERAL DISCLOSURE LIST. (Collateral Disclosure List) hereof duly executed
by a Responsible Officer of the Borrower, Berry UK, Norwich and each Subsidiary
Guarantor, as appropriate. The Agent and the Lenders acknowledge and agree
that the Borrower and each Subsidiary Guarantor previously delivered a
Collateral Disclosure List to the Agent on the First Closing Date and an
additional Collateral Disclosure List relating to Berry Design on or about May
13, 1997, and that, accordingly, neither the Borrower nor any Subsidiary
Guarantor shall be required to furnish to the Agent a new Collateral Disclosure
List, but shall be required only to update the information contained in the
previous Collateral Disclosure Lists furnished to the Agent to the extent such
information has changed in any material respect.
(K)RECORDINGS AND FILINGS.
The Borrower, Berry UK, Norwich and each Subsidiary Guarantor, as appropriate,
shall have: (a) executed and delivered all Financing Documents (including,
without limitation, UCC-1 and UCC-3 statements) required to be filed,
registered or recorded in order to create, in favor of the Agent and the
Lenders, a perfected Lien in the Collateral (subject only to the Permitted
Liens) in form and in sufficient number for filing, registration, and recording
in each office in each jurisdiction in which such filings, registrations and
recordations are required, and (b) delivered such evidence as the Agent may
deem satisfactory that all necessary filing fees and all recording and other
similar fees, and all Taxes and other expenses related to such filings,
registrations and recordings will be or have been paid in full.
(L)INSURANCE CERTIFICATE.
The Agent shall have received an insurance certificate in accordance with the
provisions of (h) Insurance.
The Borrower, Berry UK and Norwich will, and will cause each of their
Subsidiaries to, at all times maintain with "A" (or its English equivalent with
respect to Berry UK and Norwich) or better rated insurance companies such
insurance as is required by applicable Laws and such other insurance, in such
amounts, of such types and against such risks, hazards, liabilities, casualties
and contingencies as are usually insured against in the same geographic areas
by business entities engaged in the same or similar business. Without limiting
the generality of the foregoing, the Borrower, Berry UK and Norwich will, and
will cause each of their Subsidiaries to, keep adequately insured all of their
property against loss or damage resulting from fire or other risks insured
against by extended coverage and maintain public liability insurance against
claims for personal injury, death or property damage occurring upon, in or
about any properties occupied or controlled by them, or arising in any manner
out of the businesses carried on by them. The Borrower shall deliver to the
Agent on the Closing Date (and thereafter on each date there is a material
change in the insurance coverage) a certificate of a Responsible Officer of the
Borrower containing a detailed list of the insurance then in effect and stating
the names of the insurance companies, the types, the amounts and rates of the
insurance, dates of the expiration thereof and the properties and risks covered
thereb (Insurance) and (q) Insurance With Respect to Equipment and Inventory.
(Insurance With Respect to Equipment and Inventory) of this Agreement. The
Agent and the Lenders acknowledge and agree that a series of insurance
certificates acceptable to the Agent were furnished to the Agent on or about
the First Closing Date and again on May 13, 1997 and that additional insurance
certificates will not be required except with respect to the insurance
coverages of Berry UK and Norwich.
(M)LANDLORD'S WAIVERS.
Unless otherwise agreed by the Agent, the Agent shall have received a
landlord's waiver from each landlord of each and every business premise leased
by the Borrower and/or any Subsidiary Guarantor and on which any of the
Collateral is or may hereafter be located, which landlords' waivers must be
reasonably acceptable to the Agent and its counsel in their sole and absolute
discretion.
(N)BAILEE ACKNOWLEDGEMENTS.
Unless otherwise agreed by the Agent, the Agent shall have received an
agreement acknowledging the Liens of the Agent and the Lender from each bailee,
warehouseman, consignee or similar third party which has possession of any of
the Collateral, which agreements must be reasonably acceptable to the Agent and
its counsel in their sole and absolute discretion.
(O)
FIELD EXAMINATION.
The Agent shall have completed a field examination and audit of the business,
operations and income of the Borrower, Berry UK, Norwich and each Subsidiary
Guarantor, the results of which field examination and audit shall be in all
respects acceptable to the Agent in its sole and absolute discretion and shall
include reference discussions with key customers and vendors.
(P)APPRAISAL.
The Agent shall have received appraisals of all real and personal property
owned by the Borrower, Berry UK, Norwich and/or each Subsidiary Guarantor, all
of which appraisals shall be performed by one or more appraisers satisfactory
in all respects to the Agent, shall be in such form and content as may be
required by the Agent.
(Q)PRO-FORMA BALANCE SHEET AND PROJECTIONS.
The Agent shall have received and approved the Borrower's Pro-forma Balance
Sheet and Pro-forma Financial Projections, which Pro-forma Balance Sheet and
Pro-forma Financial Projections must be in form and content acceptable to the
Agent in its sole and absolute discretion.
(R)STOCK CERTIFICATES AND STOCK POWERS.
The Agent shall have received all of the original stock certificates of each
Subsidiary Guarantor and all original certificates representing one hundred
percent (100%) of the stock issued by Berry UK and fully executed irrevocable
stock powers from the holders of all such stock certificates.
(S)NORWICH STOCK PURCHASE AGREEMENT TRANSACTION.
(i)The Norwich Stock Purchase Transaction shall have been completed and closed
prior to or simultaneously herewith upon terms and conditions reasonably
satisfactory to the Agent, in accordance with the Norwich Stock Purchase
Agreement and all applicable Laws.
(ii)The Agent shall have received photocopies of all Norwich Stock Purchase
Documents executed, delivered and/or furnished in connection with the Norwich
Stock Purchase Transaction, together with a certificate signed by a Responsible
Officer of the Borrower, Berry UK and Norwich certifying that the Norwich Stock
Purchase Agreement and the other Norwich Stock Purchase Documents furnished to
the Agent are true, correct, in full force and effect and the provisions
thereof have not been in any way modified, amended or waived, except as
otherwise disclosed in writing to the Agent on or before the date of this
Agreement.
(T)
ENVIRONMENTAL REPORTS.
The Agent shall have received and reviewed a Phase I environmental assessment
for each parcel of real property owned or leased by the Borrower, Berry UK,
Norwich or any Subsidiary Guarantor, each of which environmental assessment has
been performed by a reputable and recognized environmental consulting firm
acceptable to the Agent and has revealed no material Hazardous Materials
Contamination or material violations of any Environmental Laws, and shall
otherwise be in all respects acceptable to the Agent.
(U)FINANCIAL STATEMENTS.
The Agent shall have received and reviewed copies of the annual audited
financial statements in reasonable detail satisfactory to the Agent relating to
the Borrower and its Subsidiaries for the fiscal year ending December 31, 1997
and for Norwich for the fiscal year ending October 31, 1997, prepared in
accordance with GAAP, which financial statements shall include a consolidated
and consolidating balance sheet of the Borrower and its Subsidiaries as of the
end of each such fiscal year and consolidated and consolidating statements of
income, cash flows and changes in shareholders equity of the Borrower and its
Subsidiaries for each such fiscal year. In addition, the Agent shall have
received and reviewed copies of the most recent interim monthly financial
statements for Norwich, the Borrower and its Subsidiaries for fiscal years ,
all prepared in accordance with GAAP.
SECTION 5.2CONDITIONS TO ALL EXTENSIONS OF CREDIT.
The making of all advances under the Loans and the issuance of all Letters of
Credit and all Bond Letters of Credit is subject to the fulfillment of the
following conditions precedent in a manner reasonably satisfactory in form and
substance to the Agent:
(A)DEFAULT.
There shall exist no Event of Default or Default hereunder.
(B)REPRESENTATIONS AND WARRANTIES.
The representations and warranties of the Borrower, Berry UK and Norwich
contained among the provisions of this Agreement shall be true and with the
same effect as though such representations and warranties had been made at the
time of the making of, and of the request for, each advance under the Loans or
the issuance of each Letter of Credit or Bond Letter of Credit, except that (a)
the representations and warranties which relate to a specific date need only be
true and correct as of such date and (b) the representations and warranties
which relate to financial statements which are referred to in (K)FINANCIAL
CONDITION. (Financial Condition), shall also be deemed to cover financial
statements furnished from time to time to the Agent pursuant to (a)Financial
Statements.
The Borrower shall furnish to the Agent for distribution to the Lender
(Financial Statements).
(C)ADVERSE CHANGE.
No material adverse change shall have occurred in the condition (financial or
otherwise), operations or business of the Borrower, Berry UK, Norwich or any
Subsidiary Guarantor which would, in the good faith judgment of the Agent,
materially impair the ability of the Borrower, Berry UK, Norwich or any
Subsidiary Guarantor to pay or perform any of the Obligations.
(D)LEGAL MATTERS.
All legal documents incident to each advance under the Loans and each of the
Letters of Credit and Bond Letters of Credit shall be reasonably satisfactory
to the Agent.
ARTICLE VI
COVENANTS OF THE BORROWER
SECTION 6.1AFFIRMATIVE COVENANTS.
So long as any of the Obligations (or any the Commitments therefor) shall be
outstanding hereunder, the Borrower, Berry UK and Norwich agree jointly and
severally with the Agent and the Lenders as follows:
(A)FINANCIAL STATEMENTS.
The Borrower shall furnish to the Agent for distribution to the Lenders:
(I)ANNUAL STATEMENTS AND CERTIFICATES. The Borrower shall furnish to the Agent
for distribution to the Lenders as soon as available, but in no event more than
ninety (90) days after the close of the Borrower's fiscal years, (i) a copy of
the annual consolidated and consolidating financial statements in reasonable
detail satisfactory to the Agent relating to the Borrower, Berry UK, Norwich
and all other Subsidiaries, prepared in accordance with GAAP and examined and
certified by independent certified public accountants satisfactory to the
Agent, which financial statements shall include a consolidated and
consolidating balance sheet of the Borrower, Berry UK, Norwich and all other
Subsidiaries as of the end of such fiscal year and consolidated and
consolidating statements of income, cash flows and changes in shareholders
equity of the Borrower, Berry UK, Norwich and all other Subsidiaries for such
fiscal year, and (ii) a Compliance Certificate, in substantially the form
attached to this Agreement as EXHIBIT D, containing a detailed computation of
each financial covenant in this Agreement which is applicable for the period
reported, a certification that no change has occurred to the information
contained in the Collateral Disclosure List (except as set forth any schedule
attached to the certification) and (iii) a management letter in the form
prepared by the Borrower's independent certified public accountants, but only
if and to the extent customarily obtained by the Borrower. The Agent agrees
that any one of the "Big 4" accounting firms is satisfactory to the Agent for
purposes of this Section (A)FINANCIAL STATEMENTS., except to the extent the
Agent in its reasonable discretion and based on good faith and legitimate
concerns determines that any such accounting firm would be unacceptable because
of any conflict of interest or any material adverse change affecting such
firm's reliability or financial viability.
(II)ANNUAL OPINION OF ACCOUNTANT. The Borrower shall furnish to the Agent for
distribution to the Lenders as soon as available, but in no event more than
ninety (90) days after the close of the Borrower's fiscal years, a letter or
opinion of the accounting firm which examined and certified the annual
financial statement relating to the Borrower, Berry UK, Norwich and all other
Subsidiaries stating whether anything in such accounting firm's examination has
revealed the occurrence of a Default or an Event of Default hereunder, and, if
so, stating the facts with respect thereto.
(III)QUARTERLY STATEMENTS AND CERTIFICATES. The Borrower shall furnish to the
Agent for distribution to the Lenders as soon as available, but in no event
more than forty-five (45) days after the close of the Borrower's fiscal
quarters (other than the final fiscal quarter), consolidated and consolidating
balance sheets of the Borrower, Berry UK, Norwich and all other Subsidiaries as
of the close of such period, consolidated and consolidating income, cash flows
and changes in shareholders equity statements for such period, and a Compliance
Certificate, in substantially the form attached to this Agreement as EXHIBIT D,
containing a detailed computation of each financial covenant in this Agreement
which is applicable for the period reported, each prepared by a Responsible
Officer of or on behalf of the Borrower in a format acceptable to the Agent,
all as prepared and certified by a Responsible Officer of the Borrower and
accompanied by a certificate of that officer stating whether any event has
occurred which constitutes a Default or an Event of Default hereunder, and, if
so, stating the facts with respect thereto.
(IV)MONTHLY STATEMENTS AND CERTIFICATES. The Borrower shall furnish to the
Agent for distribution to the Lenders as soon as available, but in no event
more than thirty-five (35) days after the close of the Borrower's fiscal
months, consolidated and consolidating balance sheets of the Borrower, Berry
UK, Norwich and all other Subsidiaries as of the close of such period,
consolidated and consolidating income, cash flows and changes in shareholders
equity statements for such period, and a detailed computation of each financial
covenant in this Agreement which is applicable for the period reported, all as
prepared and certified by a Responsible Officer of the Borrower and accompanied
by a certificate of that officer stating whether any event has occurred which
constitutes a Default or an Event of Default hereunder, and, if so, stating the
facts with respect thereto.
(V) MONTHLY REPORTS - BORROWING BASE. As part of the Borrowing Base
Certificate, the Borrower shall furnish to the Agent for distribution to the
Lenders within twenty (20) days after the end of each fiscal month, a report
containing the following information:
(E) a detailed aging schedule of all Accounts for the Borrower
and each Subsidiary Guarantor by Account Debtor, in such detail, and
accompanied by such supporting information, as the Agent may from time to time
reasonably request;
(F) a detailed aging of all accounts payable by supplier, in
such detail, and accompanied by such supporting information, as the Agent may
from time to time reasonably request; and
(G) a listing of all Inventory of the Borrower and each
Subsidiary Guarantor by component, category and location, in such detail, and
accompanied by such supporting information as the Agent may from time to time
reasonably request.
(VI) MONTHLY REPORTS - UK BORROWING BASE. As part of the UK Borrowing Base
Certificate, Berry UK and Norwich shall furnish to the Agent for distribution
to the Lenders within twenty (20) days after the end of each fiscal month, a
report containing the following information:
(A) a detailed aging schedule of all Accounts for Berry UK and
Norwich by Account Debtor, in such detail, and accompanied by such supporting
information, as the Agent may from time to time reasonably request;
(B) a detailed aging of all accounts payable by supplier, in
such detail, and accompanied by such supporting information, as the Agent may
from time to time reasonably request; and
(C) a listing of all Inventory of Berry UK and Norwich by
component, category and location, in such detail, and accompanied by such
supporting information as the Agent may from time to time reasonably request.
(VII) ANNUAL BUDGET AND PROJECTIONS. Commencing with fiscal year 1997, the
Borrower shall furnish to the Lender as soon as available, but in no event
later than the 10th day before the end of each fiscal year:
(A) a consolidated and consolidating budget and pro forma
financial statements on a month-to-month basis for the following fiscal year,
and
(B) three-year financial projections or financial projections
for such lesser or greater period to the extent routinely prepared by the
Borrower in the ordinary course of its business, which projections shall
include both consolidated and consolidating projections with respect to the
Borrower, Berry UK, Norwich and all other Subsidiaries.
(VIII) AMENDMENTS TO SUBORDINATED DEBT LOAN DOCUMENTS. The Borrower will
furnish copies of each amendment, supplement, restatement or other modification
to any of the Subordinated Debt Loan Documents executed at any time after the
Closing Date on or before the effective date of such amendment, supplement,
restatement or other modification.
(IX) ADDITIONAL REPORTS AND INFORMATION. The Borrower, Berry UK and Norwich
shall furnish to the Agent for distribution to the Lenders promptly, such
additional information, reports or statements as the Agent and/or any of the
Lenders may from time to time reasonably request.
(B)REPORTS TO SEC AND TO STOCKHOLDERS.
The Borrower will furnish to the Agent for distribution to the Lenders,
promptly upon the filing or making thereof, at least one (1) copy of all
reports, notices and proxy statements sent by the Parent, the Borrower or any
of their respective Subsidiaries to its stockholders, and of all regular and
other reports filed by the Parent, the Borrower or any of their respective
Subsidiaries with the Securities and Exchange Commission.
(C)RECORDKEEPING, RIGHTS OF INSPECTION, FIELD EXAMINATION, ETC.
(i) The Borrower, Berry UK and Norwich shall, and shall cause each of the
Subsidiaries to, maintain (i) a standard system of accounting in accordance
with GAAP, and (ii) proper books of record and account in which full, true and
correct entries are made of all dealings and transactions in relation to its
properties, business and activities.
(ii) The Borrower, Berry UK and Norwich shall, and shall cause each of the
Subsidiaries to, permit authorized representatives of the Agent and any of the
Lenders to visit and inspect the properties of the Borrower, Berry UK, Norwich
and the Subsidiaries, to review, audit, check and inspect the Collateral at any
time with reasonable prior notice prior to the occurrence of an Event of
Default, and without notice at any time on or after the occurrence of an Event
of Default, to review, audit, check and inspect the other books of record of
the Borrower, Berry UK, Norwich and the Subsidiaries at any time with or
without notice and to make abstracts and photocopies thereof, and to discuss
the affairs, finances and accounts of the Borrower, Berry UK, Norwich and the
Subsidiaries, with the officers, directors, employees and other representatives
of the Borrower, Berry UK, Norwich and the Subsidiaries and their respective
accountants, all at such times during normal business hours and other
reasonable times and as often as the Agent and/or any of the Lenders may
reasonably request.
(iii) The Borrower, Berry UK and Norwich each hereby irrevocably authorizes and
directs all accountants and auditors employed by the Borrower, Berry UK,
Norwich and/or any Subsidiary at any time prior to the repayment in full of the
Obligations to exhibit and deliver to the Agent for distribution to the Lenders
copies of any and all of the financial statements, trial balances, management
letters, or other accounting records of any nature of the Borrower, Berry UK,
Norwich and/or any or all Subsidiaries in the accountant's or auditor's
possession, and to disclose to the Agent and any of the Lenders any information
they may have concerning the financial status and business operations of the
Borrower, Berry UK, Norwich and/or any or all Subsidiaries. Further, the
Borrower, Berry UK, and Norwich each hereby authorizes all Governmental
Authorities to furnish to the Agent for distribution to the Lenders copies of
reports or examinations relating to the Borrower, Berry UK, Norwich and/or any
or all Subsidiaries, whether made by the Borrower, Berry UK, Norwich or
otherwise. The Agent agrees that it shall not request any of the foregoing
items directly from any accountants or auditors employed by the Borrower, Berry
UK, Norwich or any Subsidiary at any time prior to the occurrence of an Event
of Default unless (i) the Agent shall have first requested such items from the
Borrower and the Borrower shall have failed or is unable to furnish the
requested items promptly and (ii) the Agent shall have notified the Borrower
and/or the respective Subsidiary, as appropriate. Upon the Borrower's request,
the Agent will furnish copies of all items obtained by the Agent from any
accountants or auditors for the Borrower unless the Agent is legally prohibited
from so doing.
(iv) All reasonable costs and expenses incurred by, or on behalf of, the Agent
in connection with the conduct of any of the foregoing shall be part of the
Enforcement Costs and shall be payable to the Agent upon demand. The Borrower
acknowledges and agrees that such expenses may include, but shall not be
limited to, any and all out-of-pocket costs and expenses of the Agent's
employees and agents in, and when, travelling to any of the facilities of the
Borrower, Berry UK, Norwich or any Subsidiary Guarantor.
(D)CORPORATE EXISTENCE.
Except in connection with consummation of those transactions permitted by (A)
CAPITAL STRUCTURE, MERGER, ACQUISITION OR SALE OF ASSETS. (Capital Structure),
the Borrower, Berry UK and Norwich shall maintain, and shall cause each of
their Subsidiaries to maintain, its corporate existence in good standing in the
jurisdiction in which it is incorporated and in each other jurisdiction where
it is required to register or qualify to do business if the failure to do so in
such other jurisdiction would have a material adverse effect (a) on the ability
of the Borrower, Berry UK, Norwich or any Subsidiary Guarantor to perform the
Obligations, (b) on the conduct of the operations of the Borrower, Berry UK,
Norwich and the Subsidiary Guarantors, taken as a whole, (c) on the
consolidated financial condition of the Borrower and the Subsidiaries, taken as
a whole, or (d) on the value of, or the ability of the Agent and the Lenders to
realize upon, any of the Collateral.
(E)COMPLIANCE WITH LAWS.
The Borrower, Berry UK and Norwich shall comply, and shall cause each of their
Subsidiaries to comply, with all applicable Laws and observe the valid
requirements of all Governmental Authorities, the noncompliance with or the
nonobservance of which would have a material adverse effect (a) on the ability
of the Borrower, Berry UK, Norwich or any Subsidiary Guarantor to perform the
Obligations, (b) on the conduct of the operations of the Borrower, Berry UK,
Norwich and the Subsidiary Guarantors, taken as a whole, (c) on the
consolidated financial condition of the Borrower and the Subsidiaries, taken as
a whole, or (d) on the value of, or the ability of the Agent and the Lenders to
realize upon, any of the Collateral.
(F)PRESERVATION OF PROPERTIES.
Except as otherwise expressly permitted by the provisions of this Agreement,
the Borrower, Berry UK and Norwich will, and will cause each of their
Subsidiaries to, at all times (a) maintain, preserve, protect and keep its
material properties, whether owned or leased, in good operating condition,
working order and repair (ordinary wear and tear excepted), and from time to
time will make all proper repairs, maintenance, replacements, additions and
improvements thereto needed to maintain such properties in good operating
condition, working order and repair, and (b) do or cause to be done all things
necessary to preserve and to keep in full force and effect its material
franchises, leases of real and personal property, trade names, patents,
trademarks and permits which are necessary for the orderly continuance of its
business.
(G) LINE OF BUSINESS.
The Borrower, Berry UK and Norwich will continue and, will cause their
Subsidiaries to continue, to engage substantially only in the business of
manufacturing, marketing, selling and distributing plastic products.
(H)INSURANCE.
The Borrower, Berry UK and Norwich will, and will cause each of their
Subsidiaries to, at all times maintain with "A" (or its English equivalent with
respect to Berry UK and Norwich) or better rated insurance companies such
insurance as is required by applicable Laws and such other insurance, in such
amounts, of such types and against such risks, hazards, liabilities, casualties
and contingencies as are usually insured against in the same geographic areas
by business entities engaged in the same or similar business. Without limiting
the generality of the foregoing, the Borrower, Berry UK and Norwich will, and
will cause each of their Subsidiaries to, keep adequately insured all of their
property against loss or damage resulting from fire or other risks insured
against by extended coverage and maintain public liability insurance against
claims for personal injury, death or property damage occurring upon, in or
about any properties occupied or controlled by them, or arising in any manner
out of the businesses carried on by them. The Borrower shall deliver to the
Agent on the Closing Date (and thereafter on each date there is a material
change in the insurance coverage) a certificate of a Responsible Officer of the
Borrower containing a detailed list of the insurance then in effect and stating
the names of the insurance companies, the types, the amounts and rates of the
insurance, dates of the expiration thereof and the properties and risks covered
thereby.
(I)TAXES.
Except to the extent that the validity or amount thereof is being contested in
good faith and by appropriate proceedings, the Borrower, Berry UK and Norwich
will, and will cause each of their Subsidiaries, to pay and discharge all Taxes
prior to the date when the failure to pay such Taxes will give rise to a
Default or an Event of Default. The Borrower shall furnish to the Agent at
such times as the Agent may require proof satisfactory to the Agent of the
making of payments or deposits required by applicable Laws including, without
limitation, payments or deposits with respect to amounts withheld by the
Borrower, Berry UK, Norwich and/or any Subsidiary Guarantor from wages and
salaries of employees and amounts contributed by the Borrower, Berry UK,
Norwich and/or any Subsidiary Guarantor on account of federal and other income
or wage taxes and amounts due under the Federal Insurance Contributions Act, as
amended.
(J)ERISA.
The Borrower will, and will cause each of their Subsidiaries and Affiliates to,
comply with the funding requirements of ERISA with respect to employee pension
benefit plans for its respective employees. The Borrower will not permit, and
will not allow any Subsidiary to permit, with respect to any employee benefit
plan or plans covered by Title IV of ERISA (a) any prohibited transaction or
transactions under ERISA or the Internal Revenue Code, which results, or would
result, in any material liability of the Borrower and/or any of its
Subsidiaries and Affiliates, or (b) any Reportable Event if, upon termination
of the plan or plans with respect to which one or more such Reportable Events
shall have occurred, there is or would be any material liability of the
Borrower and/or any of the Subsidiaries and Affiliates to the PBGC. Upon the
Agent's request, the Borrower will deliver to the Agent a copy of the most
recent actuarial report, financial statements and annual report completed with
respect to any "defined benefit plan", as defined in ERISA.
(K)NOTIFICATION OF EVENTS OF DEFAULT AND ADVERSE DEVELOPMENTS.
The Borrower, Berry UK and Norwich shall promptly notify the Agent and the
Lenders upon obtaining knowledge of the occurrence of:
(i)any Event of Default;
(ii)any Default;
(iii)any litigation instituted or threatened against the Borrower, Berry UK,
Norwich or any of their Subsidiaries and of the entry of any judgment or Lien
(other than any Permitted Liens) against any of the assets or properties of the
Borrower, Berry UK, Norwich or any Subsidiary where the claims against the
Borrower, Berry UK, Norwich or any Subsidiary exceed One Million Dollars
($1,000,000) and are not covered by insurance;
(iv)the receipt by the Borrower, Berry UK, Norwich or any Subsidiary Guarantor
of any notice, claim or demand from any Governmental Authority which alleges
that the Borrower, Berry UK, Norwich or any Subsidiary Guarantor is in material
violation of any of the terms of, or has failed to comply with any applicable
material Laws regulating its operation and business, including, but not limited
to, the Occupational Safety and Health Act and the Environmental Protection
Act, the noncompliance with which would have a materially adverse effect on the
Borrower, Berry UK, Norwich and the Subsidiary Guarantors, taken as a whole;
(v)any other development in the business or affairs of the Borrower, Berry UK,
Norwich or any of their Subsidiaries which is materially adverse to the
Borrower and its Subsidiaries taken as a whole; and
(vi)any discovery or determination by the Borrower or any Subsidiary that any
computer applications that is material to any of their respective business and
operations will not be Year 2000 Compliant
in each case describing in detail satisfactory to the Agent the nature thereof
and the action the Borrower or any Subsidiary, as the case may be, proposes to
take, if any, with respect thereto.
(L)HAZARDOUS MATERIALS; CONTAMINATION.
The Borrower, Berry UK and Norwich each agrees to:
(i)give notice to the Agent immediately upon acquiring knowledge of the
presence of any Hazardous Materials or any Hazardous Materials Contamination on
any property owned, operated or controlled by the Borrower, Berry UK, Norwich
or any Subsidiary Guarantor or for which the Borrower, Berry UK, Norwich or any
Subsidiary Guarantor is, or is claimed to be, responsible (provided that such
notice shall not be required for Hazardous Materials placed or stored on such
property in accordance with applicable Laws in the ordinary course (including,
without limitation, quantity) of the line of business expressly described in
this Agreement or as described in any Phase I environmental assessments
expressly referenced herein or in any schedule attached hereto), with a full
description thereof;
(ii)promptly comply with any Laws, the noncompliance with which would have a
materially adverse effect on the Borrower, Berry UK, Norwich and the Subsidiary
Guarantors, taken as a whole or on the value of any material portion of the
Collateral or the ability of the Agent to realize upon the value of any such
Collateral requiring the removal, treatment or disposal of Hazardous Materials
or Hazardous Materials Contamination and provide the Agent with reasonably
satisfactory evidence of such compliance;
(iii)as part of the Obligations, defend, indemnify and hold harmless the Agent,
each of the Lenders and each of their respective agents, employees, trustees,
successors and assigns from any and all claims which may now or in the future
(whether before or after the termination of this Agreement) be asserted as a
result of the presence of any Hazardous Materials or any Hazardous Materials
Contamination on any property owned, operated or controlled by the Borrower,
Berry UK, Norwich or any Subsidiary Guarantor for which the Borrower, Berry UK,
Norwich or any Subsidiary Guarantor is, or is claimed to be, responsible which
claims relate to the financing and/or Liens contemplated by this Agreement, but
which claims do not arise out of the gross negligence or willful misconduct of
the Agent or any of the Lenders. The Borrower, Berry UK and Norwich each
acknowledges and agrees that this indemnification shall survive the termination
of this Agreement and the Commitments and the payment and performance of all of
the other Obligations. The Agent and the Lenders agree that the liability of
Berry UK and Norwich with respect to such indemnification shall be limited to
claims which arise solely from property owned, operated or controlled by Berry
UK and/or Norwich.
(M)FINANCIAL COVENANTS.
(I)TANGIBLE CAPITAL FUNDS. The Borrower, Berry UK, Norwich and each of the
Subsidiary Guarantors, on a consolidated basis, will attain a Tangible Capital
Funds of not less than the following amounts as of the following dates:
DATE AMOUNT
June 30, 1998 $22,000,000
September 30, 1998 $22,500,000
December 31, 1998 $22,000,000
March 31, 1999 $22,500,000
June 30, 1999 $24,000,000
September 30, 1999 $26,000,000
December 31, 1999 $30,000,000
March 31, 2000 $30,500,000
June 30, 2000 $33,000,000
September 30, 2000 $39,000,000
December 31, 2000 $44,000,000
March 31, 2001 $46,000,000
June 30, 2001 $49,000,000
September 30, 2001 $54,000,000
December 31, 2001 $62,000,000
(II)FUNDED DEBT TO EBITDA. The Borrower, Berry UK, Norwich and each Subsidiary
Guarantor, 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 period, to be
greater than the following amounts as of the following dates:
DATE RATIO
June 30, 1998 5.00 to 1.00
September 30, 1998 4.50 to 1.00
December 31, 1998 4.00 to 1.00
March 31, 1999 4.00 to 1.00
June 30, 1999 3.75 to 1.00
September 30, 1999 3.75 to 1.00
December 31, 1999 3.50 to 1.00
March 31, 2000 3.50 to 1.00
June 30, 2000 3.25 to 1.00
September 30, 2000 3.25 to 1.00
December 31, 2000 3.00 to 1.00
March 31, 2001 3.00 to 1.00
June 30, 2001 3.00 to 1.00
September 30, 2001 3.00 to 1.00
December 31, 2001 3.00 to 1.00
In addition, Berry UK and Norwich, on a consolidated basis, will not permit,
tested as of the last day of each fiscal quarter commencing December 31, 1998
and calculated on a rolling four-quarter basis (until such time as four
quarters have been achieved, calculation will be annualized), the ratio of (x)
its Funded Debt to (y) EBITDA, for the prior twelve (12) month period, to be
greater than 3.0 to 1.0
(III)INTEREST COVERAGE RATIO. The Borrower, Berry UK, Norwich and each
Subsidiary Guarantor will maintain, on a consolidated basis and tested as of
the last day of each fiscal quarter in each fiscal year for the three (3), six
(6), nine (9) or twelve (12) month period of such fiscal year, as appropriate,
ending on that date, an Interest Coverage Ratio of not less than the following
amounts as of the following dates:
DATE RATIO
June 30, 1998 2.00 to 1.00
September 30, 1998 2.00 to 1.00
December 31, 1998 2.00 to 1.00
March 31, 1999 2.00 to 1.00
June 30, 1999 2.00 to 1.00
September 30, 1999 2.00 to 1.00
December 31, 1999 2.50 to 1.00
March 31, 2000 2.50 to 1.00
June 30, 2000 2.50 to 1.00
September 30, 2000 2.50 to 1.00
December 31, 2000 2.50 to 1.00
March 31, 2001 2.50 to 1.00
June 30, 2001 2.50 to 1.00
September 30, 2001 2.50 to 1.00
December 31, 2001 2.50 to 1.00
(IV)FIXED CHARGE COVERAGE RATIO. The Borrower, Berry UK, Norwich and each
of the Subsidiary Guarantor will maintain, on a consolidated basis and
tested as of the last day of each fiscal year, a Fixed Charge Coverage
Ratio of not less than the following amounts as of the following dates:
PERIOD RATIO
December 31, 1998 1.00 to 1.00
December 31, 1999 1.00 to 1.00
December 31, 2000 1.00 to 1.00
December 31, 2001 1.00 to 1.00
In addition, Berry UK and Norwich will maintain, on a consolidated basis
and tested as of the last day of each fiscal quarter, commencing December
31, 1998 and calculated on a rolling four-quarter basis (until such time s
four quarters have been achieved, calculation will be annualized), a Fixed
Charge Coverage Ratio of not less than 1.0 to 1.0
(V)DEBT SERVICE COVERAGE RATIO. The Borrower, Berry UK, Norwich and each
Subsidiary Guarantor will maintain, on a consolidated basis and tested as
of the last day of each fiscal quarter in each fiscal year for the three
(3), six (6), nine (9) or twelve (12) month period of such fiscal year, as
appropriate, ending on that date, a Debt Service Coverage Ratio of not less
than 1.50 to 1.0.
(N)COLLECTION OF ACCOUNTS.
Until the occurrence of an Event of Default, the Borrower, Berry UK,
Norwich and its Subsidiaries shall at their own expense have the privilege
for the account of, and in trust for, the Agent and the Lenders of
collecting their Accounts and receiving in respect thereto all Items of
Payment and shall otherwise completely service all of the Accounts
including (a) the billing, posting and maintaining of complete records
applicable thereto, (b) the taking of such action with respect to the
Accounts as each of the Borrower, Berry UK, Norwich and each of the
Subsidiaries may deem advisable; and (c) the granting, in the ordinary
course of business, to any Account Debtor, any rebate, refund or adjustment
to which the Account Debtor may be lawfully entitled, and may accept, in
connection therewith, the return of goods, the sale or lease of which shall
have given rise to an Account and may take such other actions relating to
the settling of any Account Debtor's claim as may be commercially
reasonable. The Agent may, at its option, at any time or from time to time
after and during the continuance of an Event of Default hereunder, revoke
the collection privilege given in this Agreement to the Borrower, Berry UK,
Norwich and the Subsidiaries by either giving notice of its assignment of,
and Lien on the Collateral to the Account Debtors or giving notice of such
revocation to the Borrower, Berry UK and/or Norwich. The Agent shall not
have any duty to, and the Borrower, Berry UK and Norwich each hereby
releases the Agent and the Lenders from all claims of loss or damage caused
by the delay or failure to collect or enforce any of the Accounts or to
preserve any rights against any other party with an interest in the
Collateral, unless due to the gross negligence or willful misconduct of the
Agent and/or any of the Lenders.
(O)GOVERNMENT ACCOUNTS.
The Borrower will immediately notify the Agent if any of the Accounts arise
out of contracts with the United States or with any other Governmental
Authority, which Accounts, individually or in the aggregate, exceed One
Hundred Thousand Dollars ($100,000) and, as appropriate, execute and, cause
each Subsidiary Guarantor to execute, any Financing Documents and take any
steps required by the Agent in order to comply with the Federal Assignment
of Claims Act or any other applicable Laws.
(P)INVENTORY.
With respect to the Inventory, the Borrower, Berry UK, Norwich and the
Subsidiaries will keep correct and accurate records itemizing and
describing the kind, type, and quantity of Inventory, the cost therefor and
the selling price thereof, all of which records shall be available to the
officers, employees or agents of the Agent upon demand for inspection and
copying thereof. The Borrower, Berry UK, Norwich and the Subsidiaries
shall be permitted to sell Inventory in the ordinary course of business
until such time as the Agent notifies the Borrower, Berry UK and/or Norwich
to the contrary following the occurrence of an Event of Default.
(Q)INSURANCE WITH RESPECT TO EQUIPMENT AND INVENTORY.
The Borrower, Berry UK and Norwich will (a) maintain and cause each of
their the Subsidiaries to maintain hazard insurance with fire and extended
coverage and naming the Agent as an additional insured with loss payable to
the Agent as its respective interest may appear on the Equipment and
Inventory in an amount at least equal to the fair market value of the
Equipment and Inventory (but in any event sufficient to avoid any co-
insurance obligations) and with a specific endorsement to each such
insurance policy pursuant to which the insurer agrees to give the Agent at
least thirty (30) days written notice before any alteration or cancellation
of such insurance policy and that no act or default of the Borrower or any
Subsidiary shall affect the right of the Agent to recover under such policy
in the event of loss or damage; and (b) file, and cause each of its
Subsidiaries to file, with the Agent, upon its request, a detailed list of
the insurance then in effect and stating the names of the insurance
companies, the amounts and rates of the insurance, dates of the expiration
thereof and the properties and risks covered thereby. Notwithstanding the
foregoing, Berry UK and Norwich shall be required to maintain insurance in
accordance with the provisions of this Section as and to the extent
appropriate and customary in secured lending transactions between British
lenders and borrowers.
(R)MAINTENANCE OF THE COLLATERAL.
Except as permitted by Section (a) Capital Structure, Merger, Acquisition
or Sale of Assets. (Capital Structure), the Borrower, Berry UK and Norwich
will maintain, and will cause each of the Subsidiary Guarantors to
maintain, the Collateral in good working order, saving and excepting
ordinary wear and tear.
(S)DEFENSE OF TITLE AND FURTHER ASSURANCES.
At its expense, the Borrower, Berry UK and Norwich each will defend the
title to the Collateral (and any part thereof), and will immediately
execute, acknowledge and deliver and, cause each Subsidiary Guarantor to
execute, acknowledge and deliver, any financing statement, renewal,
affidavit, deed, assignment, continuation statement, security agreement,
certificate or other document which the Agent may require in order to
perfect, preserve, maintain, continue, protect and/or extend the Lien or
security interest granted or required to be granted to the Agent, for the
benefit of the Lenders ratably and the Agent, under the terms of this
Agreement and/or under any of the other Financing Documents and the first
priority of that Lien, subject only to the Permitted Liens. The Borrower,
Berry UK and Norwich each will from time to time do, and, the Borrower will
cause each of the Subsidiary Guarantors to do, whatever the Agent may
reasonably require by way of obtaining, executing, delivering, and/or
filing financing statements, landlords' or mortgagees' waivers, notices of
assignment and other notices and amendments and renewals thereof and the
Borrower, Berry UK and Norwich, each will take and, the Borrower will cause
each of the Subsidiary Guarantors to take, any and all steps and observe
such formalities as the Agent may require, in order to create and maintain
a valid Lien upon, pledge of, or paramount security interest in (subject
only to Permitted Liens), the Collateral (including as and to the extent
required to comply with the provisions of SECTION 3.7SUBSIDIARY GUARANTOR
ASSETS. (Subsidiary Guarantor Assets)), subject only to the Permitted
Liens. The Agent understands and will require that the Borrower, Berry UK
and Norwich only use commercially reasonable efforts to obtain landlord's
and mortgagee's waivers requested by the Agent. The Borrower shall pay to
the Agent on demand all taxes, costs and expenses incurred by the Agent in
connection with the preparation, execution, recording and filing of any
such document or instrument. To the extent that the proceeds of any of the
Accounts are expected to become subject to the control of, or in the
possession of, a party other than the Borrower, Berry UK, Norwich or a
Subsidiary Guarantor or the Agent, the Borrower, Berry UK and/or Norwich,
as applicable, shall use commercially reasonable efforts to cause all such
parties to execute and deliver security documents, financing statements or
other documents as requested by the Agent and as may be necessary to
evidence and/or perfect the security interest of the Agent, for the benefit
of the Lenders ratably and the Agent in those proceeds. The Borrower
agrees that a copy of a fully executed security agreement and/or financing
statement shall be sufficient to satisfy for all purposes the requirements
of a financing statement as set forth in Article 9 of the applicable
Uniform Commercial Code. The Borrower, Berry UK and Norwich each hereby
irrevocably appoints the Agent as its attorney-in-fact, with power of
substitution, in the name of the Agent or in the name of the Borrower,
Berry UK and/or Norwich or otherwise, for the use and benefit of the Agent
for itself and the Lenders, but at the cost and expense of the Borrower and
without notice to the Borrower, Berry UK and/or Norwich, to execute and
deliver any and all of the instruments and other documents and take any
action which the Agent may require pursuant to the foregoing provisions of
this Section (S)DEFENSE OF TITLE AND FURTHER ASSURANCES.
(T)BUSINESS NAMES; LOCATIONS.
The Borrower, Berry UK and Norwich will notify and the Borrower will cause
each of the Subsidiary Guarantors to notify the Agent not less than thirty
(30) days prior to (a) any change in the name under which the Borrower,
Berry UK, Norwich or the applicable Subsidiary Guarantor conducts its
business, (b) any change of the location of the chief executive office of
the Borrower, Berry UK, Norwich or the applicable Subsidiary Guarantor, and
(c) the opening of any new place of business, and (d) any change in the
location of the places where the Collateral, or any part thereof, or the
books and records, or any part thereof, are kept to the extent any such
change in location would in and of itself then or with the passage of time
result in any Lien of the Agent and the Lenders not being perfected unless
action is taken by the Agent and/or any other Person to continue, extend or
effect the perfection of such Lien.
(U)SUBSEQUENT OPINION OF COUNSEL AS TO RECORDING REQUIREMENTS.
In the event that the Borrower, Berry UK, Norwich or any Subsidiary
Guarantor shall transfer its principal place of business or the office
where it keeps its records pertaining to the Collateral, upon the Agent's
reasonable request the Borrower will provide to the Agent a subsequent
opinion of counsel as to the filing, recording and other requirements with
which the Borrower, Berry UK, Norwich and the Subsidiary Guarantors have
complied to maintain the Lien and security interest in favor of the Agent,
for the ratable benefit of the Lenders and for the benefit of the Agent
with respect to the Agent's Obligations, in the Collateral.
(V)USE OF PREMISES AND EQUIPMENT.
The Borrower, Berry UK and Norwich each agrees that until the Obligations
are fully paid and all of the Commitments and the Letters of Credit and
Bond Letters of Credit have been terminated or have expired, the Agent (a)
after and during the continuance of a Default or an Event of Default, may
use all owned or leased lifts, hoists, trucks and other facilities or
equipment for handling or removing the Collateral; and (b) shall have, and
is hereby granted, a right of ingress and egress to the places where the
Collateral is located, and may proceed over and through their owned or
leased property.
(W)PROTECTION OF COLLATERAL.
The Borrower, Berry UK and Norwich each agrees that the Agent may at any
time following an Event of Default take such steps as the Agent deems
reasonably necessary to protect the interest of the Agent and the Lenders
in, and to preserve the Collateral, including, the hiring of such security
guards or the placing of other security protection measures as the Agent
deems appropriate, may employ and maintain at their premises a custodian
who shall have full authority to do all acts necessary to protect the
interests of the Agent and the Lenders in the Collateral. The Borrower,
Berry UK and Norwich each agrees to cooperate fully with the Agent's
efforts to preserve the Collateral and will take such actions to preserve
the Collateral as the Agent may reasonably direct. All of the Agent's
reasonable expenses of preserving the Collateral, including any reasonable
expenses relating to the compensation and bonding of a custodian, shall
part of the Enforcement Costs.
(X)APPLICATION OF NET CASUALTY PROCEEDS.
The Borrower, Berry UK and Norwich each agrees that Net Casualty Proceeds
with respect to any Assets of the Borrower, Berry UK, Norwich and/or any
Subsidiary Guarantor must be applied to either (a) the payment of the
Obligations (provided that any Net Casualty Proceeds from any Assets of
Berry UK and/or Norwich shall be applied only to payment of the UK
Obligations) or (b) the repair, replacement and/or restoration of the
Assets affected, and without the prior written consent of the Agent for no
other purpose. The Agent shall determine, in its sole discretion, the
manner in which Net Casualty Proceeds are to be applied if the amount of
the Net Casualty Proceeds exceeds, individually or in the aggregate, One
Million Dollars ($1,000,000) or if there exists a Default or an Event of
Default.
SECTION 6.2NEGATIVE COVENANTS.
So long as any of the Obligations or the Commitments or Letters of Credit
or Bond Letters of Credit shall be outstanding, the Borrower, Berry UK and
Norwich each agrees with the Agent and the Lenders that:
(A)CAPITAL STRUCTURE, MERGER, ACQUISITION OR SALE OF ASSETS.
Except as otherwise permitted by the provisions of Section (C)PURCHASE OR
REDEMPTION OF SECURITIES, DIVIDEND RESTRICTIONS. (Purchase of Redemption of
Securities), neither the Borrower, Berry UK nor Norwich will alter or
amend, nor will the Borrower permit any Subsidiary Guarantor to alter or
amend, its capital structure, authorize any additional class of equity,
issue any stock or equity of any class, enter into any merger or
consolidation or amalgamation, windup or dissolve themselves (or suffer any
liquidation or dissolution) or acquire all or substantially all the Assets
of any Person, or sell, lease or otherwise dispose of any of its Assets;
except that prior to the occurrence of a Default or an Event of Default,
the following shall be permitted:
(i)Permitted Acquisitions;
(ii)Permitted Asset Dispositions;
(iii)mergers or consolidations (i) among and between the Borrower and/or
any Subsidiary Guarantor, (ii) among and between Berry UK and Norwich, and
(iii) among and between any Subsidiaries of the Borrower other than
Subsidiary Guarantors, Berry UK and/or Norwich; provided, that after
closing and consummation of any such merger or consolidation involving the
Borrower or any Subsidiary Guarantor (A) the Borrower is the surviving
entity if the Borrower is a party to such merger or consolidation, (B) the
Agent and the Lenders retain a first priority Lien on, and assignment of,
one hundred percent (100%) of the capital stock of all surviving Subsidiary
Guarantors, subject only to Permitted Liens, and a first priority Lien on
all of the Assets of the Borrower and of each surviving Subsidiary
Guarantor which had been pledged or required to be pledged under the
provisions of this Agreement prior to such merger or consolidation, subject
only to Permitted Liens, and (C) in any merger or consolidation involving
only Subsidiary Guarantors, the surviving entity qualifies or continues to
qualify as a Subsidiary Guarantor in accordance with the provisions of
Section (B)SUBSIDIARIES. (Subsidiaries);
(iv)investments as and to the extent permitted by the provisions of Section
INVESTMENTS, LOANS AND OTHER TRANSACTIONS. (Investments, Loans and Other
Transactions), including, without limitation, the issuance of equity by any
Subsidiary to the Borrower or another Subsidiary;
(v)the use and disposition of Net Casualty Proceeds, but only as and to the
extent permitted by the provisions of SECTION (X) APPLICATION OF NET
CASUALTY PROCEEDS. (Application of Net Casualty Proceeds);
(vi)South Carolina IRB Lease Transfers.
Any consent of the Agent to an Asset Disposition which does not constitute
a Permitted Asset Disposition may be conditioned on a specified use of the
Net Proceeds generated by such Asset Disposition, provided, however, that
the Agent and the Lenders (i) acknowledge that in the case of a disposition
of assets subject to the South Carolina IRB Lease Agreement, the proceeds
must be first applied to repay the South Carolina IRB, but (ii) reserve all
rights and remedies (including, without limitation, those arising under
Section (S) DEFENSE OF TITLE AND FURTHER ASSURANCES. (Defense of Title) and
comparable provisions of the Security Agreement) in the right of the
Borrower or any one or more of the Guarantors to receive the proceeds of
such repayment as a holder of the South Carolina Bond or otherwise.
(B)SUBSIDIARIES.
Neither the Borrower, Berry UK nor Norwich will create or acquire, or
permit any Subsidiary to create or acquire, any Subsidiaries other than (a)
the Subsidiaries identified on the Collateral Disclosure List, as updated
through the date of this Agreement and (b) the creation or acquisition of
Subsidiary Guarantors. In order to qualify, after the Closing Date, as a
Subsidiary Guarantor under the provisions of this Agreement, a Subsidiary
must (i) be an acquisition permitted by the provisions of this Agreement or
be created solely to consummate an acquisition permitted by the provisions
of this Agreement, (ii) execute and deliver to the Agent a guaranty
agreement substantially in the form of the Guaranty, (iii) grant to the
Agent and the Lenders a first priority Lien on all Assets and property of
such Subsidiary, subject only to Permitted Liens, all in accordance with
the terms of one or more Financing Documents as and to the extent
reasonably required by the Agent, and (iv) be a domestic Subsidiary
(organized and existing under the laws of a state in the United States).
(C)PURCHASE OR REDEMPTION OF SECURITIES, DIVIDEND RESTRICTIONS.
The Borrower will not (a) purchase, redeem or otherwise acquire, or permit
any Subsidiary to purchase, redeem or otherwise acquire, any shares of the
Borrower's capital stock or warrants now or hereafter outstanding, (b)
declare or pay any Distributions (other than stock dividends) or set aside
any funds therefor, or (c) apply any of its property or Assets to the
purchase, redemption or other retirement of, set apart any sum for the
payment of any Distributions on, or for the purchase, redemption, or other
retirement of, make any Distributions by reduction of capital or otherwise
in respect of, any shares of any class of capital stock or warrants of the
Borrower, except for (i) Distributions by the Borrower to the Parent
pursuant to a certain Tax Sharing Agreement dated as of April 21, 1994 by
and between the Borrower and the Parent, as amended through the Closing
Date, and as the same may be further amended from time to time in a manner
that is not materially adverse to the Borrower, (ii) Distributions by the
Borrower to the Parent to enable the Parent to pay its operating and
administrative expenses, including, without limitation, directors fees,
legal and audit expenses, Securities and Exchange Commission compliance
expenses and corporate franchise and other Taxes, not to exceed in any
fiscal year Five Hundred Thousand Dollars ($500,000), (iii) Distributions
by the Borrower to the Parent to pay management fees not to exceed Seven
Hundred Fifty Thousand Dollars ($750,000) in any fiscal year of the
Borrower, (iv) Distributions by the Borrower to the Parent to enable the
Parent to repurchase any capital stock owned by any Person employed by the
Parent and/or the Borrower if such Person is no longer so employed,
provided, that the aggregate amount of Distributions for this purpose shall
not exceed One Million Dollars ($1,000,000) per annum, (v) so long as the
same may be effected with the payment of nominal consideration, the
redemption of the South Carolina IRB in conjunction with the exercise of
the South Carolina IRB Lease Purchase Option and (vi) Distributions to the
Borrower from its Subsidiaries.
(D)INDEBTEDNESS.
Neither the Borrower, Berry UK nor Norwich will create, incur, assume or
suffer to exist, or permit any Subsidiary to create, incur, assume or
suffer to exist, any Indebtedness for Borrowed Money, except:
(i)the Obligations;
(ii)current accounts payable arising in the ordinary course;
(iii)Indebtedness secured by Permitted Liens;
(iv)Subordinated Indebtedness; provided that the principal amount of all
such Subordinated Indebtedness shall not at any time exceed, in the
aggregate, Twenty Million Dollars ($20,000,000);
(v)Indebtedness of the Borrower, Berry UK, Norwich and/or any Subsidiary
existing on the date hereof and reflected on the financial statements
furnished pursuant to (K) FINANCIAL CONDITION. (Financial Condition);
(vi)Unsecured letters of credit, bankers' acceptances and/or (i) secured
Interest Rate/Currency Protection Agreements between the Borrower, Berry
UK, Norwich or a Subsidiary Guarantor and NationsBank and/or (ii) unsecured
Interest Rate Protection/Currency Agreements between the Borrower, Berry
UK, Norwich or a Subsidiary Guarantor and any other financial institution,
providing for the transfer or mitigation of foreign exchange risks or
interest rate risks either generally or under specific contingencies;
(vii)Indebtedness for Borrowed Money incurred by the Borrower, Norwich,
Berry UK or any Subsidiary Guarantor incurred after the Closing Date;
provided, that (i) such Indebtedness for Borrowed Money is incurred on
account of purchase money or finance lease arrangements of Assets (other
than real property) acquired by the Borrower, Norwich, Berry UK or a
Subsidiary Guarantor after the Closing Date, (ii) each such purchase money
or finance lease arrangement does not exceed the cost of the Assets
acquired or leased, (iii) any Lien securing such purchase money or finance
lease arrangement does not extend to any Assets or property other than that
purchased or leased, and (iv) the aggregate amount of Indebtedness for
Borrowed Money under and in connection with all such purchase money and/or
finance lease arrangements shall not exceed, in the aggregate, the sum of
Five Hundred Thousand Dollars ($500,000);
(viii)Capital Leases;
(ix)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 the Borrower to
Berry UK and/or Norwich (the "UK Intercompany Indebtedness"), provided that
the aggregate amount of such UK Intercompany Indebtedness (together with
any investment by the Borrower in Berry UK and/or Norwich permitted by the
terms of this Agreement, shall not exceed, in the aggregate, Five Hundred
Thousand Dollars ($500,000);
(x)Indebtedness for Borrowed Money as set forth on Schedule (n)
Indebtedness FOR BORROWED MONEY.;
(xi)Other unsecured Indebtedness for Borrowed Money in aggregate principal
amount not to exceed at any time One Million Dollars ($1,000,000);
(xii)Indebtedness permitted under the provisions of Section INVESTMENTS,
LOANS AND OTHER TRANSACTIONS. (Investments, Loans and Other Transactions),
(xiii)Indebtedness of the Borrower and Berry UK under the Norwich Stock
Purchase Agreement, and.
(xiv)any refinancing, replacement, repurchase, defeasance, redemption or
refunding of any existing Indebtedness for Borrowed Money permitted by the
provisions of this Agreement; provided, that (i) the principal amount of
any Indebtedness for Borrowed Money used to refinance, replace, repurchase,
defease, redeem or refund such existing Indebtedness for Borrowed Money
(each a "Refinancing Indebtedness") does not exceed the then outstanding
principal balance of the Indebtedness for Borrowed Money so refinanced,
replaced, repurchased, defeased, redeemed or refunded, (ii) the Weighted
Average Life to Maturity of any Refinancing Indebtedness is equal to or
greater than the Weighted Average Life to Maturity of the Indebtedness for
Borrowed Money being so refinanced, replaced, repurchased, defeased,
redeemed or refunded by the Refinancing Indebtedness, (iii) the terms of
the Refinancing Indebtedness are not materially more restrictive or
limiting on the Borrower, Berry UK, Norwich or any Subsidiary Guarantor, as
the case may be, than the terms of the Indebtedness for Borrowed Money
being refinanced, replaced, repurchased, defeased, redeemed or refunded, as
determined by the Agent in its reasonable discretion, and (iv) if and to
the extent the Refinancing Indebtedness is intended to refinance, replace,
repurchase, defeasance, redemption or refund Subordinated Indebtedness,
then the Refinancing Indebtedness is subordinated in right of payment to
the Obligations on terms at least as favorable to the Agent and the Lenders
as those then governing the Subordinated Indebtedness to be refinanced,
replaced, repurchased, defeased, redeemed or refunded. As used herein, the
term "Weighted Average Life to Maturity" when applied to any Indebtedness
for Borrowed Money (including any Refinancing Indebtedness) means at any
date, the number of years obtained by dividing (A) the sum of the products
obtained by multiplying (1) the amount of each then remaining installment,
sinking fund, serial maturity or other required payment of principal,
including payment at final maturity, in respect thereof, by (2) the number
of years (calculated to the nearest one-twelfth) that will elapse between
each such date and the making of each such payment, by (B) the then
outstanding principal amount of such Indebtedness for Borrowed Money.
Notwithstanding the foregoing, neither the Borrower, Berry UK, Norwich nor
any Subsidiary Guarantor shall be permitted to create, incur, assume or
suffer to exist any additional Indebtedness for Borrower Money at any time
after the occurrence of a Default or an Event of Default or if and to the
extent any such additional Indebtedness for Borrowed Money would give rise
to a Default or an Event of Default.
(E)INVESTMENTS, LOANS AND OTHER TRANSACTIONS.
Except as otherwise provided in this Agreement, the Borrower, Berry UK, and
Norwich will not, and will not permit any of its or their Subsidiaries to,
(a) make, assume, acquire or continue to hold any investment in any real
property (unless used in connection with their business) or any Person,
whether by stock purchase, capital contribution, acquisition of
Indebtedness of such Person or otherwise (including, without limitation,
investments in any joint venture or partnership), except for (i) Permitted
Acquisitions, (ii) replacements of Assets which are the subject of a
Permitted Asset Disposition made pursuant to clause (f) of the definition
of Permitted Asset Disposition, (iii) those investments existing as of the
Closing Date and reflected on the financial statements furnished pursuant
to Section (K) FINANCIAL CONDITION. (Financial Condition), (iv) any
investments in Cash Equivalents, which, if requested by the Agent, are
pledged to the Agent, for the ratable benefit of the Lenders and for the
benefit of the Agent with respect to the Agent's Obligations, as collateral
and security for the Obligations (v) those investments more particularly
set forth in SCHEDULE INVESTMENTS, LOANS AND OTHER TRANSACTIONS. attached
hereto and made a part hereof (the "Permitted Investments"), (vi) the
Borrower's acquisition, creation or ownership of any Subsidiary Guarantor,
including, the Borrower's existing or additional capital contributions in
any such Subsidiary Guarantor, (vii) the Borrower's acquisition, creation
and ownership of Berry UK and any existing or additional capital
contributions in Berry UK or Norwich; provided that the aggregate amount of
any such existing or additional capital contributions, together with any
intercompany indebtedness between the Borrower and Berry UK permitted by
the terms of this Agreement, may not exceed at any time in the aggregate
Five Hundred Thousand Dollars ($500,000), (viii) the receipt of
Indebtedness for Borrowed Money by the Borrower or any Subsidiary Guarantor
which represents payment to the Borrower or a Subsidiary Guarantor, as the
case may be, of a portion of the purchase price payable to the Borrower in
connection with a Permitted Asset Disposition; provided that, upon the
Agent's demand, the Borrower and/or the Subsidiary Guarantor, as the case
may, shall take all such actions as shall be reasonably requested by the
Agent to grant to the Agent for its benefit and the ratable benefit of the
Lenders a perfected Lien on any such Indebtedness for Borrowed Money and
provided further that the principal amount of all such Indebtedness for
Borrowed Money shall not exceed at any time in the aggregate Five Hundred
Thousand Dollars ($500,000), and (ix) investments permitted by Section (A)
CAPITAL STRUCTURE, MERGER, ACQUISITION OR SALE OF ASSETS. (Capital
Structure), (b) guaranty or otherwise become contingently liable for the
Indebtedness or obligations of any Person, except that the Borrower and any
Subsidiary Guarantor shall be permitted to guaranty (i) any Indebtedness
for Borrowed Money of the Borrower, any Subsidiary Guarantor, Berry UK or
Norwich otherwise permitted by the provisions of Section (D) INDEBTEDNESS.
(Indebtedness), (ii) the endorsement of negotiable instruments for deposit
or collection or similar transactions in the ordinary course of business,
(iii) the obligations of the Borrower under the Subordinated Debt and the
Senior Secured Debt, and (iv) the Obligations, or (c) make any loans or
advances, or otherwise extend credit to any Person, except (i) any advance
to an officer or employee of the Borrower or any Subsidiary for travel or
other business expenses in the ordinary course of business, provided that
the aggregate amount of all such advances by all of the Borrower and its
Subsidiaries (taken as a whole) outstanding at any time shall not exceed
Five Hundred Thousand Dollars ($500,000), (ii) trade credit extended to
customers in the ordinary course of business, (iii) ordinary course
advances to customers in connection with the production of molds and
related materials, (iv) South Carolina IRB Lease Transfers, and (v)
ordinary course working capital advances and loans to and from the Borrower
to any Guarantor and to and from any Guarantor to the Borrower or any other
Guarantor. In addition to the foregoing, Berry UK covenants and agrees
that it shall own no other Assets or investments other than the capital
stock of Norwich.
(F)CAPITAL EXPENDITURES.
Except for Permitted Acquisitions and permitted reinvestments of Permitted
Asset Dispositions, neither the Borrower, Berry UK nor Norwich will or will
permit any Subsidiary to, directly or indirectly, make any Capital
Expenditures in the aggregate for the Borrower, Berry UK, Norwich and their
respective Subsidiaries (taken as a whole) in amount which exceed the
following amounts at any time during the following fiscal years (for each
fiscal year, the "Capital Expenditure Ceiling"):
FISCAL YEAR CAPITAL EXPENDITURE CEILING
1997 $19,000,000
1998 $23,000,000
1999 $26,000,000
2000 $27,000,000
2001 $29,000,000
If in any given fiscal year, the total Capital Expenditures of the
Borrower, Berry UK, Norwich 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.
(G)STOCK OF SUBSIDIARIES.
Neither the Borrower, Berry UK nor Norwich will sell or otherwise dispose
of any shares of capital stock of any Subsidiary (except as necessary or
incident to any transaction permitted by Section (A) CAPITAL STRUCTURE,
MERGER, ACQUISITION OR SALE OF ASSETS. (Capital Structure) or Section (F)
CAPITAL EXPENDITURES. (Capital Expenditures)) or permit any Subsidiary to
issue any additional shares of its capital stock except pro rata to its
stockholders.
(H)SUBORDINATED INDEBTEDNESS.
Neither the Borrower, Berry UK nor Norwich will, or will permit any
Subsidiary to make:
(i)(i) any payment on account of the Subordinated Debt in violation of the
subordination provisions relating to such Subordinated Debt, or (ii) any
payment on account of any other Subordinated Indebtedness in violation of
the subordination provisions relating to such Subordinated Indebtedness;
(ii)any amendment or modification of to the documents evidencing or
securing the Subordinated Indebtedness; and
(iii)any payment of principal or interest on the Subordinated Indebtedness
other than when due, except that Subordinated Indebtedness may be prepaid,
redeemed, repurchased, refinanced, replaced, refunded or defeased from the
proceeds of any offering of Securities or Indebtedness by the Parent or
the Borrower; provided that at the time of such prepayment there does not
exist a Default or an Event of Default and provided that such offering of
Securities or Indebtedness is otherwise permitted by the provisions of this
Agreement.
(I)LIENS.
The Borrower, Berry UK and Norwich each agrees that it (a) will not create,
incur, assume or suffer to exist any Lien upon any of its properties or
Assets, whether now owned or hereafter acquired, or permit any Subsidiary
so to do, except for (i) Liens securing the Obligations and (ii) Permitted
Liens, (b) will not allow or suffer to exist any Permitted Liens to be
superior to Liens securing the Obligations, or permit any Subsidiary so to
do, except for (i) statutory landlord's Liens with respect to which the
Agent has not obtained a landlord's waiver and subordination, (ii) existing
Liens securing Indebtedness for Borrowed Money under and in connection with
the Bonds, and (iii) Liens which have priority as a matter of law and which
do not otherwise constitute or give rise to a Default or an Event of
Default and for which the Agent has established a reserve against the
Borrowing Base (or the UK Borrowing Base, as appropriate) in an amount to
be determined by the Agent in its reasonable discretion, (c) except as
otherwise permitted by the provisions of this Agreement, will not enter
into any contracts for the consignment of goods, will not execute or suffer
the filing of any financing statements or the posting of any signs giving
notice of consignments, and will not, as a material part of its business,
engage in the sale of goods belonging to others, or permit any Subsidiary
so to do, and (d) will not allow or suffer to exist the failure of any Lien
described in the Security Documents to attach to, and/or remain at all
times perfected on, any of the property described in the Security
Documents, except with respect to any Assets disposed of as part of a
Permitted Asset Disposition.
(j)Transactions with Affiliates.
Neither the Borrower, Berry UK, Norwich nor any of its or their
Subsidiaries will enter into any transaction with any Affiliate except in
the ordinary course of business, in each case, upon terms no less favorable
to the Borrower, Berry UK, Norwich or any Subsidiary then would be obtained
in an arms-length, third party transaction. The foregoing provision shall
not restrict (a) any employment agreement entered into by the Borrower or
any of its Subsidiaries in the ordinary course of business and consistent
with the past practices of the Borrower and/or any such Subsidiary, (b)
transactions between or among the Borrower and/or the Subsidiary
Guarantors, (c) transactions between First Atlantic Capital, Ltd. ("First
Atlantic"), pursuant to the Second Amended and Restated Management
Agreement dated as of June 18, 1996, as amended to the date hereof or
otherwise amended with the Agent's prior written consent (solely for
purposes of this Section (j) Transactions with Affiliates., between the
Borrower and First Atlantic, (d) the payment of Distributions permitted by
Section (C)PURCHASE OR REDEMPTION OF SECURITIES, DIVIDEND RESTRICTIONS. (c)
Purchase or Redemption of Securities, Dividend Restrictions. (Purchase or
Redemption of Securities), (e) any transaction fee payable to First
Atlantic not to exceed $1,250,000 per transaction and (f) intercompany
investments and loans between and among the Borrower, Berry UK and Norwich
as and to the extent permitted by the provisions of this Agreement.
(K)ERISA COMPLIANCE.
Neither the Borrower nor any Commonly Controlled Entity shall: (a) engage
in or permit any "prohibited transaction" (as defined in ERISA); (b) cause
any "accumulated funding deficiency" as defined in ERISA and/or the
Internal Revenue Code; (c) terminate any pension plan in a manner which
could result in the imposition of a lien on the property of the Borrower
pursuant to ERISA; (d) terminate or consent to the termination of any
Multi-employer Plan; or (e) incur a complete or partial withdrawal with
respect to any Multi-employer Plan.
(L) PROHIBITION ON HAZARDOUS MATERIALS.
Neither the Borrower, Berry UK nor Norwich shall place, manufacture or
store or permit to be placed, manufactured or stored any Hazardous
Materials on any property owned, operated or controlled by the Borrower,
Berry UK or Norwich or for which the Borrower, Berry UK or Norwich is
responsible other than Hazardous Materials placed or stored on such
property in accordance with applicable Laws in the ordinary course of the
Borrower's, Berry UK's, Norwich's or any tenant's business expressly
described in this Agreement, or permit any Subsidiary to do so.
(M)AMENDMENTS.
The Borrower will not amend or agree to amend any of the Subordinated Debt
Loan Documents, any of the Senior Secured Debt Loan Documents, any of the
PackerWare Merger Agreement Documents, any of the Venture Stock
Purchase/Merger Documents, and/or any of the Norwich Stock Purchase
Documents, other than in the normal course of business.
(N)METHOD OF ACCOUNTING; FISCAL YEAR.
The Borrower, Berry UK and Norwich each agrees that:
(i)it shall not change, or permit any Subsidiary to change, the method of
accounting employed in the preparation of any financial statements
furnished to the Agent under the provisions of (A)FINANCIAL STATEMENTS.
(Financial Statements), unless required to conform to GAAP and on the
condition that the Borrower's accountants shall furnish such information as
the Agent may request to reconcile the changes with the Borrower's prior
financial statements; and
(ii)it will not change or permit any Subsidiary to change, its fiscal year
from a year ending on or about December 31. The Lenders understand that as
of the Closing Date, the fiscal year end for Norwich is October 31.
Norwich covenants and agrees to change its fiscal year end to December 31
promptly upon closing and consummation of the Norwich Stock Purchase
Transaction.
(O)TRANSFER OF COLLATERAL.
Neither the Borrower, Berry UK, Norwich nor any of its or their
Subsidiaries will transfer, or permit the transfer, to another location of
any of the Collateral or the books and records related to any of the
Collateral, except (a) for transfers among the Borrower and the Subsidiary
Guarantors, if and to the extent the first priority Lien (subject to
Permitted Liens) of the Agent and the Lenders would be unaffected by any
such transfers, (b) for transfers of UK Collateral by Berry UK and/or
Norwich to the Borrower, if and to the extent a first priority perfected
Lien (subject to Permitted Liens) would attach to such UK Collateral so
transferred contemporaneously with such transfer, or (c) transfers of
Inventory in the ordinary course of business to bailees, warehousemen,
consignees or similar third parties if and to the extent that either (i)
such bailees, warehousemen, consignees or similar third parties have
entered into an agreement with the Agent in which such bailees,
warehousemen, consignees or similar third parties consent and agree to the
superior Lien of the Agent and the Lenders on such Inventory and to such
other terms and conditions as may be reasonably required by the Agent or
(ii) the Agent has established reserves against the Borrowing Base (or the
UK Borrowing Base, as appropriate) with respect to any such Inventory so
transferred in accordance with the provisions set forth in the definition
of Eligible Domestic Inventory (or Eligible UK Inventory, as appropriate),
which reserves the Agent shall establish upon the Borrower's request.
(P)SALE AND LEASEBACK.
Neither the Borrower, Berry UK, Norwich nor any of the Subsidiaries will
directly or indirectly enter into any arrangement to sell or transfer all
or any substantial part of its fixed assets and thereupon or within one
year thereafter rent or lease the assets so sold or transferred, except as
contemplated by subsection (h) or subsection (l) of the definition of
Permitted Asset Disposition.
ARTICLE VII
DEFAULT AND RIGHTS AND REMEDIES
SECTION 7.1EVENTS OF DEFAULT.
The occurrence of any one or more of the following events shall constitute
an "Event of Default" under the provisions of this Agreement:
(A)FAILURE TO PAY.
The failure of the Borrower, Berry UK and/or Norwich to pay any of the
Obligations to be paid by them under the terms of this Agreement within
three (3) days of the date as and when due and payable in accordance with
the provisions of this Agreement, the Notes and/or any of the other
Financing Documents;
(B)BREACH OF REPRESENTATIONS AND WARRANTIES.
Any representation or warranty made in this Agreement, in any of the other
Financing Documents, or in any report, statement, schedule, certificate,
opinion, financial statement or other document furnished in connection with
this Agreement, any of the other Financing Documents, or the Obligations,
shall prove to have been false or misleading when made (or, if applicable,
when reaffirmed) in any material respect.
(C)FAILURE TO COMPLY WITH CERTAIN COVENANTS.
The failure of the Borrower, Berry UK or Norwich to perform, observe or
comply, or the Borrower to cause any Subsidiary Guarantor to perform,
observe or comply, as appropriate, with any covenant, condition or
agreement contained in (A) FINANCIAL STATEMENTS. (Financial Statements),
(i) The Borrower, Berry UK and Norwich shall, and shall cause each of the
Subsidiaries to, maintain (i) a standard system of accounting in accordance
with GAAP, and (ii) proper books of record and account in which full, true
and correct entries are made of all dealings and transactions in relation
to its properties, business and activities. (Bookkeeping, Rights of
Inspection, Field Examination, Etc.) with respect to inspection rights
only, Section (H) INSURANCE. (Insurance), FINANCIAL COVENANTS. (Financial
Covenants), (Q) INSURANCE WITH RESPECT TO EQUIPMENT AND INVENTORY.
(Insurance with Respect to Equipment), (S) DEFENSE OF TITLE AND FURTHER
ASSURANCES. (Defense of Title and Further Assurances), (T) BUSINESS NAMES;
LOCATIONS. (Business Names; Locations), or NEGATIVE COVENANTS. (Negative
Covenants).
(D)FAILURE TO COMPLY WITH OTHER COVENANTS.
The failure of the Borrower, Berry UK or Norwich to perform, observe or
comply, or the Borrower to cause any Subsidiary Guarantor to perform,
observe or comply, as appropriate, with any covenant, condition or
agreement contained in this Agreement other than those set forth in Section
(A) FAILURE TO PAY. (Failure to Pay), Section (B) BREACH OF REPRESENTATIONS
AND WARRANTIES. (Breach of Representations and Warranties) or Section (C)
FAILURE TO COMPLY WITH CERTAIN COVENANTS. (Failure to Comply with Certain
Covenants), which failure shall remain unremedied for a period of thirty
(30) days after written notice thereof to the Borrower, Berry UK and/or
Norwich, as appropriate, by the Agent.
(E)DEFAULT UNDER OTHER FINANCING DOCUMENTS OR OBLIGATIONS.
The failure of the Borrower, Berry UK, Norwich and/or any other Person
(other than the Agent or any of the Lenders) which is a party to any of the
Financing Documents, to perform, observe or comply with any covenant,
condition or agreement contained in any such Financing Documents which is
not otherwise covered by any other Section of this DEFAULT AND RIGHTS AND
REMEDIES, which failure shall remain unremedied for a period of thirty (30)
days after written notice thereof to the Borrower, Berry UK and/or Norwich,
as appropriate, by the Agent or the occurrence of an Event of Default under
any of the other Financing Documents as defined therein.
(F)RECEIVER; BANKRUPTCY.
The Borrower, Berry UK, Norwich or any Guarantor shall (a) apply for or
consent to the appointment of a receiver, trustee or liquidator of itself
or any of its property, (b) admit in writing its inability to pay its debts
as they mature, (c) make a general assignment for the benefit of creditors,
(d) be adjudicated a bankrupt or insolvent under any applicable Laws, (e)
file a voluntary petition in bankruptcy or a petition or an answer seeking
or consenting to reorganization or an arrangement with creditors or to take
advantage of any bankruptcy, reorganization, insolvency, readjustment of
debt, dissolution or liquidation law or statute, or an answer admitting the
material allegations of a petition filed against it in any proceeding under
any such law, or take corporate action for the purposes of effecting any of
the foregoing under any applicable Laws, or (f) by any act indicate its
consent to, approval of or acquiescence in any such proceeding or the
appointment of any receiver of or trustee for any of its property, or
suffer any such receivership, trusteeship or proceeding to continue
undischarged for a period of sixty (60) days, or (g) by any act indicate
its consent to, approval of or acquiescence in any order, judgment or
decree by any court of competent jurisdiction or any Governmental Authority
enjoining or otherwise prohibiting the operation of all or substantially
all of the Borrower's or any Guarantor's business or the use or
disposition of all or substantially all of its or their respective assets.
(G)INVOLUNTARY BANKRUPTCY, ETC.
(i) An order for relief shall be entered in any involuntary case brought
against the Borrower, Berry UK, Norwich or any Guarantor under the
Bankruptcy Code or comparable Law, or (b) any such case shall be commenced
against the Borrower, Berry UK, Norwich or any Guarantor and shall not be
dismissed within sixty (60) days after the filing of the petition, or (c)
an order, judgment or decree under any other Law is entered by any court of
competent jurisdiction or by any other Governmental Authority on the
application of a Governmental Authority or of a Person other than the
Borrower, Berry UK, Norwich or any Guarantor (i) adjudicating the Borrower,
Berry UK, Norwich or any Guarantor bankrupt or insolvent, or (ii)
appointing a receiver, trustee or liquidator of the Borrower, Berry UK,
Norwich or of any Guarantor, or of a material portion of its or their
assets, or (iii) enjoining, prohibiting or otherwise limiting the operation
of all or substantially all of its or their business or the use or
disposition of all or substantially all of its or their assets, and such
order, judgment or decree continues unstayed and in effect for a period of
thirty (30) days from the date entered.
(H)JUDGMENT.
Unless adequately insured in the reasonable opinion of the Agent, the entry
of a final judgment for the payment of money involving more than $1,000,000
(individually and in the aggregate) against the Borrower, Berry UK, Norwich
and/or any or all of the Guarantors, and the failure by the Borrower, Berry
UK, Norwich or such Guarantor to discharge the same, or cause it to be
discharged, within sixty (60) days from the date of the order, decree or
process under which or pursuant to which such judgment was entered, or to
secure a stay of execution pending appeal of such judgment.
(I)EXECUTION; ATTACHMENT.
Any execution or attachment shall be levied against the Collateral, or any
part thereof, and such execution or attachment shall not be set aside,
discharged or stayed within sixty (60) days after the same shall have been
levied.
(J)DEFAULT UNDER OTHER BORROWINGS.
An event of default shall be made with respect to any Indebtedness for
Borrowed Money in a principal amount in excess of Two Million Dollars
($2,000,000), either individually or in the aggregate, of the Borrower,
Berry UK, Norwich and/or any or all of the Guarantors, other than the
Loans, if such Indebtedness for Borrowed Money was not paid when due, after
giving effect to any applicable notice and cure period, or if the effect of
such event of default is to accelerate the maturity of such Indebtedness
for Borrowed Money or to permit the holder or obligee thereof or other
party thereto to cause such Indebtedness for Borrowed Money to become due
prior to its stated maturity.
(K)CHALLENGE TO AGREEMENTS.
The Borrower, Berry UK, Norwich or any Guarantor shall challenge the
validity and binding effect of any provision of any of the Financing
Documents or any of the Financing Documents shall for any reason (except to
the extent permitted by its express terms) cease to be effective or to
create a valid and perfected first priority Lien (except for Permitted
Liens, certain of which Permitted Liens, to the extent expressly permitted
by the provisions of this Agreement, may constitute superior and prior
Liens) on, or security interest in, any of the Collateral purported to be
covered thereby, unless due to the gross negligence or willful misconduct
of the Agent.
(L)MATERIAL ADVERSE CHANGE.
The Requisite Lenders, in their sole discretion, determine in good faith
that a material adverse change has occurred in the financial condition of
the Borrower, Berry UK, Norwich and the Subsidiary Guarantors, taken as a
whole.
(M)CHANGE IN OWNERSHIP.
(i)The Borrower shall cease to own and control, beneficially and of record,
directly or indirectly, at least one hundred percent (100%) of the issued
and outstanding capital stock of Berry UK and each Subsidiary Guarantor
(except pursuant to any transaction permitted by (a) CAPITAL STRUCTURE,
MERGER, ACQUISITION OR SALE OF ASSETS. (Capital Structure) or (B)
SUBSIDIARIES. (Subsidiaries)), (b) Berry UK shall cease to own and control,
beneficially and of record, directly or indirectly, at least one hundred
percent (100%) of the issued and outstanding capital stock of Norwich, (c)
the Parent shall cease to own and control, beneficially and of record,
directly or indirectly, at least one hundred percent (100%) of the issued
and outstanding capital stock of the Borrower, or (c) Atlantic Equity
Partners International II, L. P. ("AEP"), Chase Capital Partners, and their
respective Affiliates shall cease to own and control, beneficially and of
record, at least fifty-one percent (51%) or more of the issued and
outstanding voting capital stock of the Parent.
(N)LIQUIDATION, TERMINATION, DISSOLUTION, CHANGE IN MANAGEMENT,
ETC.
The Borrower, Berry UK, Norwich or any Guarantor shall liquidate, dissolve
or terminate its existence, except as otherwise expressly permitted by the
provisions of NEGATIVE COVENANTS. (Negative Covenants).
(O)PARENT LINE OF BUSINESS.
At any time the Parent engages in any business other than the ownership of
capital stock of the Borrower or any other Wholly-Owned Subsidiary or such
other business as shall be mandatory under the provisions of applicable
Laws.
SECTION 7.2REMEDIES.
Upon the occurrence of any Event of Default, the Agent and/or NationsBank,
as applicable, may, in the exercise of its sole and absolute discretion
from time to time, and shall, at the direction of the Requisite Lenders, at
any time thereafter exercise any one or more of the following rights,
powers or remedies:
(A)ACCELERATION.
The Agent may declare any or all of the Obligations to be immediately due
and payable and NationsBank may declare any or all of the UK Obligations to
be immediately due and payable, notwithstanding anything contained in this
Agreement or in any of the other Financing Documents to the contrary,
without presentment, demand, protest, notice of protest or of dishonor, or
other notice of any kind, all of which the Borrower, Berry UK and Norwich
each hereby waives.
(B)FURTHER ADVANCES.
The Agent and/or NationsBank, as applicable, may from time to time without
notice to the Borrower, Berry UK or Norwich suspend, terminate or limit any
further advances, loans or other extensions of credit under the
Commitments, under this Agreement and/or under any of the other Financing
Documents. Further, upon the occurrence of an Event of Default specified
in (F) RECEIVER; BANKRUPTCY. (Receiver; Bankruptcy) or (G) INVOLUNTARY
BANKRUPTCY, ETC. (Involuntary Bankruptcy, etc.), the Commitments and any
agreement in any of the Financing Documents to provide additional credit
and/or to issue Letters of Credit and/or Bond Letters of Credit shall
immediately and automatically terminate and the unpaid principal amount of
the Notes (with accrued interest thereon) and all other Obligations
(including UK Obligations) then outstanding, shall immediately become due
and payable without further action of any kind and without presentment,
demand, protest or notice of any kind, all of which are hereby expressly
waived by the Borrower, Berry UK and Norwich.
(c) UNIFORM COMMERCIAL CODE.
The Agent and NationsBank each shall have all of the rights and remedies of
a secured party under the applicable Uniform Commercial Code and other
applicable Laws. Upon demand by the Agent or NationsBank, the Borrower
shall assemble the Collateral and make it available to the Agent or
NationsBank, as applicable, at a place designated by the Agent or
NationsBank. The Agent, NationsBank or its or their agents may without
notice from time to time enter upon the Borrower's premises to take
possession of the Collateral, to remove it, to render it unusable, to
process it or otherwise prepare it for sale, or to sell or otherwise
dispose of it.
ANY WRITTEN NOTICE OF THE SALE, DISPOSITION OR OTHER INTENDED ACTION BY THE
AGENT OR NATIONSBANK WITH RESPECT TO THE COLLATERAL WHICH IS SENT BY
REGULAR MAIL, POSTAGE PREPAID, TO THE BORROWER AT THE ADDRESS SET FORTH IN
SECTION 9.1 NOTICES.
All notices, requests and demands to or upon the parties to this Agreement
shall be in writing and shall be deemed to have been given or made when
delivered by hand on a Business Day, or two (2) days after the date when
deposited in the mail, postage prepaid by registered or certified mail,
return receipt requested, or when sent by overnight courier, on the
Business Day next following the day on which the notice is delivered to
such overnight courier, addressed as follow (Notices), or such other
address of the Borrower which may from time to time be shown on the Agent's
and/or NationsBank's records, at least ten (10) days prior to such sale,
disposition or other action, shall constitute commercially reasonable
notice to the Borrower. The Agent and NationsBank may alternatively or
additionally give such notice in any other commercially reasonable manner.
If any consent, approval, or authorization of any state, municipal or other
Governmental Authority or of any other Person or of any Person having any
interest therein, should be necessary to effectuate any sale or other
disposition of the Collateral, the Borrower agrees to execute all such
applications and other instruments, and to take all other action, as may be
required in connection with securing any such consent, approval or
authorization.
The Borrower recognizes that the Agent and/or NationsBank may be unable to
effect a public sale of all or a part of the Collateral consisting of
Securities by reason of certain prohibitions contained in the Securities
Act of 1933, as amended, and other applicable Federal and state Laws. The
Agent and NationsBank may, therefore, in its or their discretion, take such
steps as it or they may deem appropriate to comply with such Laws and may,
for example, at any sale of the Collateral consisting of securities
restrict the prospective bidders or purchasers as to their number, nature
of business and investment intention, including, without limitation, a
requirement that the Persons making such purchases represent and agree to
the satisfaction of the Agent and NationsBank that they are purchasing such
securities for their account, for investment, and not with a view to the
distribution or resale of any thereof. The Borrower covenants and agrees
to do or cause to be done promptly all such acts and things as the Agent
and/or NationsBank may request from time to time and as may be necessary to
offer and/or sell the Securities or any part thereof in a manner which is
valid and binding and in conformance with all applicable Laws. Upon any
such sale or disposition, the Agent and NationsBank shall have the right to
deliver, assign and transfer to the purchaser thereof the Collateral
consisting of securities so sold.
(D)SPECIFIC RIGHTS WITH REGARD TO COLLATERAL.
In addition to all other rights and remedies provided -hereunder or as
shall exist at law or in equity from time to time, the Agent and/or
NationsBank may (but shall be under no obligation to), without notice to
the Borrower, Berry UK and/or Norwich and upon the occurrence of an Event
of Default the Borrower, Berry UK and Norwich each hereby irrevocably
appoints each of the Agent and NationsBank as its attorney-in-fact, with
power of substitution, in the name of NationsBank, the Agent and/or any or
all of the Lenders and/or in the name of the Borrower, Berry UK and/or
Norwich or otherwise, for the use and benefit of NationsBank, the Agent and
the Lenders, but at the cost and expense of the Borrower, Berry UK and
Norwich, as and to the extent permitted by the provisions of this
Agreement:
(i)request any Account Debtor obligated on any of the Accounts to make
payments thereon directly to the Agent or NationsBank, with the Agent
and/or NationsBank taking control of the cash and non-cash proceeds
thereof;
(ii)compromise, extend or renew any of the Collateral or deal with the same
as it may deem advisable,
(iii)make exchanges, substitutions or surrenders of all or any part of the
Collateral;
(iv)copy, transcribe, or remove from any place of business of the Borrower,
Berry UK, Norwich or any Subsidiary all books, records, ledger sheets,
correspondence, invoices and documents, relating to or evidencing any of
the Collateral or without cost or expense to the Agent or any of the
Lenders, make such use of the Borrower's,. Berry UK's, Norwich's or any
Subsidiary's place(s) of business as may be reasonably necessary to
administer, control and collect the Collateral;
(v)repair, alter or supply goods if necessary to fulfill in whole or in
part the purchase order of any Account Debtor;
(vi)demand, collect, receipt for and give renewals, extensions, discharges
and releases of any of the Collateral;
(vii)institute and prosecute legal and equitable proceedings to enforce
collection of, or realize upon, any of the Collateral;
(viii)settle, renew, extend, compromise, compound, exchange or adjust
claims in respect of any of the Collateral or any legal proceedings brought
in respect thereof;
(ix)endorse or sign the name of the Borrower, Berry UK and/or Norwich upon
any items of payment, certificates of title, instruments, securities, stock
powers, documents, documents of title, financing statements, assignments,
notices or other writing relating to or part of the Collateral and on any
proof of claim in bankruptcy or comparable Laws against an Account Debtor;
(x)notify the Post Office authorities to change the address for the
delivery of mail to the Borrower, Berry UK and/or Norwich to such address
or Post Office Box as the Agent or NationsBank may designate and receive
and open all mail addressed to the Borrower, Berry UK and Norwich; and
(xi)take any other action necessary or beneficial to realize upon or
dispose of the Collateral or to carry out the terms of this Agreement.
(E)APPLICATION OF PROCEEDS.
Unless otherwise required by applicable Laws, any proceeds of sale or other
disposition of the Collateral will be applied by the Agent and NationsBank
to the payment first of any and all Agent's Obligations, then to any and
all Enforcement Costs, and any balance of such proceeds will be remitted to
NationsBank and/or the Lenders, as appropriate, in like currency and funds
received ratably in accordance with their respective Pro Rata Shares of
such balance. Each Lender shall apply any such proceeds received from the
Agent or NationsBank to its Obligations in such order and manner as such
Lender shall determine. If the sale or other disposition of the Collateral
fails to fully satisfy the Obligations, the Borrower shall remain liable to
the Agent and the Lenders for any deficiency. Notwithstanding the
foregoing, any proceeds of sale or other disposition of the UK Collateral
will be applied to the payment of the UK Obligations only in such order and
manner as the Lenders shall determine in their sole and absolute
discretion. If the sale or other disposition (by foreclosure, liquidation
or otherwise) of the UK Collateral fails to fully satisfy the UK
Obligations, the Borrower, Berry UK and Norwich shall remain liable to
NationsBank for any deficiency.
(F)PERFORMANCE BY AGENT.
If the Borrower shall fail to pay the Obligations or Berry UK or Norwich
fails to pay the UK Obligations, or otherwise the Borrower, Berry UK or
Norwich fail to perform, observe or comply with any of the conditions,
covenants, terms, stipulations or agreements contained in this Agreement or
any of the other Financing Documents, the Agent without notice to or demand
upon the Borrower, Berry UK or Norwich and without waiving or releasing any
of the Obligations or any Default or Event of Default, may (but shall be
under no obligation to) at any time thereafter make such payment or perform
such act for the account and at the expense of the Borrower, Berry UK
and/or Norwich, as applicable, and may enter upon the premises of the
Borrower, Berry UK and/or Norwich, for that purpose and take all such
action thereon as the Agent may consider necessary or appropriate for such
purpose and each of the Borrower, Berry UK and Norwich hereby irrevocably
appoints the Agent as its attorney-in-fact upon the occurrence of an Event
of Default to do so, with power of substitution, in the name of the Agent,
in the name of any or all of the Lenders, or in the name of the Borrower,
Berry UK, Norwich or otherwise, for the use and benefit of the Agent, but
at the cost and expense of the Borrower and without notice to the Borrower,
Berry UK and/or Norwich. All sums so paid or advanced by the Agent
together with interest thereon from the date of payment, advance or
incurring until paid in full at the Post-Default Rate and all costs and
expenses, shall be deemed part of the Enforcement Costs, shall be paid by
the Borrower to the Agent on demand, and shall constitute and become a part
of the Agent's Obligations. All powers granted to the Agent under the
provisions of this Section are also deemed granted to NationsBank with
respect to the UK Obligations.
(G)OTHER REMEDIES.
The Agent and NationsBank may from time to time proceed to protect or
enforce the rights of NationsBank, the Agent and/or any of the Lenders by
an action or actions at law or in equity or by any other appropriate
proceeding, whether for the specific performance of any of the covenants
contained in this Agreement or in any of the other Financing Documents, or
for an injunction against the violation of any of the terms of this
Agreement or any of the other Financing Documents, or in aid of the
exercise or execution of any right, remedy or power granted in this
Agreement, the Financing Documents, and/or applicable Laws. The Agent and
each of the Lenders are authorized to offset and apply to all or any part
of the Obligations all moneys, credits and other property of any nature
whatsoever of the Borrower, Berry UK and/or Norwich now or at any time
hereafter in the possession of, in transit to or from, under the control or
custody of, or on deposit with, the Agent, any of the Lenders or any
Affiliate of the Agent or any of the Lenders, subject to the limitations on
liability set forth in (J)LIMITATIONS ON JOINT AND SEVERAL LIABILITY FOR
OBLIGATIONS. (Limitations on Joint and Several Liability)
ARTICLE VIII
THE AGENT
SECTION 8.1APPOINTMENT.
Each Lender hereby designates and appoints NationsBank as its agent under
this Agreement and the Financing Documents, and each Lender hereby
irrevocably authorizes the Agent to take such action or to refrain from
taking such action on its behalf under the provisions of this Agreement and
the Financing Documents and to exercise such powers as are set forth herein
or therein, together with such other powers as are reasonably incidental
thereto. The Agent agrees to act as such on the express conditions
contained in this THE AGENT. The provisions of this THE AGENT are solely
for the benefit of the Agent and the Lenders and neither the Borrower,
Berry UK, Norwich nor any Person shall have any rights as a third party
beneficiary of any of the provisions hereof, except for those rights
expressly granted to the Borrower pursuant to (A) RESIGNATION.
The Agent may resign from the performance of all its functions and duties
hereunder at any time by giving at least thirty (30) Business Days' prior
written notice to the Borrower and the Lenders. Such resignation shall
take effect upon the acceptance by a successor Agent of appointment
pursuant to Section (B)APPOINTMENT OF SUCCESSOR.
Upon any such notice of resignation pursuant to Section (a) (Resignation),
the Requisite Lenders, with the consent of NationsBank and the Borrower,
shall appoint a successor to the Agent. If a successor to the Agent shall
not have been so appointed within said thirty (30) Business Day period, the
Agent retiring, upon notice to the Borrower, shall then appoint a successor
Agent who shall serve as the Agent until such time, as the Requisite
Lenders appoint a successor the Agent as provided above. (Appointment of
Successor) or as otherwise provided below. (Resignation), SECTION 8.8
COLLATERAL MATTERS. (Collateral Matters), SECTION 8.12 CONSENTS. (Consents)
and CIRCUMSTANCES WHERE CONSENT OF ALL OF THE LENDERS IS REQUIRED.
(Circumstances Where All Lenders Required). In performing its functions
and duties under this Agreement, the Agent shall act solely as an
administrative representative of the Lenders and does not assume and shall
not be deemed to have assumed any obligation toward or relationship of
agency or trust with or for the Lenders, the Borrower or any Person. The
Agent may perform any of its duties hereunder, or under the Financing
Documents, by or through its agents or employees.
SECTION 8.2NATURE OF DUTIES.
(A)IN GENERAL.
The Agent shall have no duties, obligations or responsibilities except
those expressly set forth in this Agreement or in the Financing Documents.
The duties of the Agent shall be mechanical and administrative in nature.
The Agent shall not have by reason of this Agreement a fiduciary
relationship in respect of any Lender. Each Lender shall make its own
independent investigation of the financial condition and affairs of the
Borrower, Berry UK and Norwich in connection with the extension of credit
hereunder and shall make its own appraisal of the credit worthiness of the
Borrower, Berry UK and Norwich and the Agent shall have no duty or
responsibility, either initially or on a continuing basis, to provide any
Lender with any credit or other information with respect thereto, whether
coming into its possession before the Closing Date or at any time or times
thereafter. If the Agent seeks the consent or approval of any of the
Lenders to the taking or refraining from taking of any action hereunder,
then the Agent shall send notice thereof to each Lender. The Agent shall
promptly notify each Lender any time that the applicable percentage of the
Lenders have instructed the Agent to act or refrain from acting pursuant
hereto.
(B)EXPRESS AUTHORIZATION.
The Agent is hereby expressly and irrevocably authorized by each of the
Lenders, as agent on behalf of itself and the other Lenders:
(i)To receive on behalf of each of the Lenders any payment or collection on
account of the Obligations and to distribute to each Lender its Pro Rata
Share of all such payments and collections so received as provided in this
Agreement;
(ii)To receive all documents and items to be furnished to the Lenders under
the Financing Documents;
(iii)To act or refrain from acting in this Agreement and in the other
Financing Documents with respect to those matters so designated for the
Agent;
(iv)To act as nominee for and on behalf of the Lenders in and under this
Agreement and the other Financing Documents;
(v)To arrange for the means whereby the funds of the Lenders are to be made
available to the Borrower, Berry UK and/or Norwich;
(vi)To distribute promptly to the Lenders, if required by the terms of this
Agreement, all written information, requests, notices, Loan Notices,
payments, Prepayments, documents and other items received from the
Borrower, Berry UK, Norwich or other Person;
(VII)TO AMEND, MODIFY, OR WAIVE ANY PROVISIONS OF THIS AGREEMENT OR THE
OTHER FINANCING DOCUMENTS ON BEHALF OF THE LENDERS SUBJECT TO THE
REQUIREMENTS THAT ALL OR CERTAIN OF THE LENDERS' CONSENT BE OBTAINED IN
CERTAIN INSTANCES AS PROVIDED IN CIRCUMSTANCES WHERE CONSENT OF ALL OF THE
LENDERS IS REQUIRED. (Circumstances All Lenders Required) and Section 9.2
Amendments; Waivers.
This Agreement and the other Financing Documents may not be amended,
modified, or changed in any respect except by an agreement in writing
signed by the Requisite Lenders, the Borrower, Berry UK and Norwich and to
the extent provided in CIRCUMSTANCES WHERE CONSENT OF ALL OF THE LENDERS IS
REQUIRED. by an agreement in writing signed by all of the Lenders, the
Borrower, Berry UK and Norwich. In addition, any agreement which directly
or indirectly affects any rights, duties, obligations, liabilities or
remedies of the Agent under this Agreement, under any of other Financing
Documents or otherwise must be approved and signed by the Agent. No waiver
of any provision of this Agreement or of any of the other Financing
Documents, nor consent to any departure by the Borrower, Berry UK or
Norwich therefrom, shall in any event be effective unless the same shall be
in writing. No course of dealing between the Borrower, Berry UK, Norwich
and the Agent and/or any of the Lenders and no act or failure to act from
time to time on the part of the Agent and/or any of the Lenders shall
constitute a waiver, amendment or modification of any provision of this
Agreement or any of the other Financing Documents or any right or remedy
under this Agreement, under any of the other Financing Documents or under
applicable Law (Amendments; Waivers);
(viii)To deliver to the Borrower, Berry UK, Norwich and other Persons, all
requests, demands, approvals, notices, and consents received from any of
the Lenders;
(ix)To exercise on behalf of each Lender all rights and remedies of the
Lenders upon the occurrence of any Event of Default and/or Default
specified in this Agreement and/or in any of the other Financing Documents
or applicable Laws;
(x)To execute any of the Security Documents and any other documents on
behalf of the Lenders as the secured party for the benefit of the Agent and
the Lenders; and
(xi)To take such other actions as may be requested by the Requisite
Lenders.
SECTION 8.3RIGHTS, EXCULPATION, ETC.
Neither the Agent nor any of its officers, directors, employees or agents
shall be liable to any Lender for any action taken or omitted by them
hereunder or under any of the Financing Documents, or in connection
herewith or therewith, except that the Agent shall be obligated on the
terms set forth herein for performance of its express obligations
hereunder, and except that the Agent shall be liable with respect to its
own gross negligence or willful misconduct. The Agent shall not be liable
for any apportionment or distribution of payments made by it in good faith
and if any such apportionment or distribution is subsequently determined to
have been made in error the sole recourse of any Lender to whom payment was
due but not made, shall be to recover from other the Lenders any payment in
excess of the amount to which they are determined to be entitled (and such
other Lenders hereby agree to return to such Lender any such erroneous
payments received by them). The Agent shall not be responsible to any
Lender for any recitals, statements, representations or warranties herein
or for the execution, effectiveness, genuineness, validity, enforceability,
collectible, or sufficiency of this Agreement or any of the Financing
Documents or the transactions contemplated thereby, or for the financial
condition of any Person. The Agent shall not be required to make any
inquiry concerning either the performance or observance of any of the
terms, provisions or conditions of this Agreement or any of the Financing
Documents or the financial condition of any Person, or the existence or
possible existence of any Default or Event of Default. The Agent agrees to
use its reasonable efforts to notify the Lenders as to the occurrence of
any material Event of Default promptly upon obtaining actual knowledge
thereof, provided, however, that the failure in good faith of the Agent to
so notify any Lender shall not give rise to any liability on the part of
the Agent nor shall it waive, discharge or otherwise adversely affect the
Agent's ability to exercise and enforce any rights or remedies resulting
from such Event of Default. The Agent may at any time request instructions
from the Lenders with respect to any actions or approvals which by the
terms of this Agreement or of any of the Financing Documents the Agent is
permitted or required to take or to grant, and the Agent shall be
absolutely entitled to refrain from taking any action or to withhold any
approval and shall not be under any liability whatsoever to any Person for
refraining from any action or withholding any approval under any of the
Financing Documents until it shall have received such instructions from the
applicable percentage of the Lenders. Without limiting the foregoing, no
Lender shall have any right of action whatsoever against the Agent as a
result of the Agent acting or refraining from acting under this Agreement
or any of the other Financing Documents in accordance with the instructions
of the applicable percentage of the Lenders and notwithstanding the
instructions of the Lenders, the Agent shall have no obligation to take any
action if it, in good faith believes that such action exposes the Agent to
any liability.
SECTION 8.4RELIANCE.
The Agent shall be entitled to rely upon any written notices, statements,
certificates, orders or other documents or any telephone message or other
communication (including any writing, telex, telecopy or telegram) believed
by it in good faith to be genuine and correct and to have been signed, sent
or made by the proper Person, and with respect to all matters pertaining to
this Agreement or any of the Financing Documents and its duties hereunder
or thereunder, upon advice of counsel selected by it. The Agent may deem
and treat the original Lenders as the owners of the respective Notes for
all purposes until receipt by the Agent of a written notice of assignment,
negotiation or transfer of any interest therein by the Lenders in
accordance with the terms of this Agreement. Any interest, authority or
consent of any holder of any of the Notes shall be conclusive and binding
on any subsequent holder, transferee, or assignee of such Notes. The Agent
shall be entitled to rely upon the advice of legal counsel, independent
accountants, and other experts selected by the Agent in its sole
discretion.
SECTION 8.5INDEMNIFICATION.
Each Lender, severally, agrees to reimburse and indemnify the Agent for and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses, advances or disbursements
including, without limitation, Enforcement Costs, of any kind or nature
whatsoever which may be imposed on, incurred by, or asserted against the
Agent in any way relating to or arising out of this Agreement or any of the
Financing Documents or any action taken or omitted by the Agent under this
Agreement for any of the Financing Documents, in proportion to each
Lender's Pro Rata Share, all of the foregoing as they may arise, be
asserted or be imposed from time to time; provided, however, that no Lender
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses, advances or
disbursements resulting from the Agent's gross negligence or willful
misconduct. The obligations of the Lenders under this SECTION 8.5
INDEMNIFICATION. shall survive the payment in full of the Obligations and
the termination of this Agreement.
SECTION 8.6NATIONSBANK INDIVIDUALLY.
With respect to its Commitments and the Loans made by it, and the Notes
issued to it, NationsBank shall have and may exercise the same rights and
powers hereunder and is subject to the same obligations and liabilities as
and to the extent set forth herein for any other Lender. The terms "the
Lenders" or "Requisite Lenders" or any similar terms shall, unless the
context clearly otherwise indicates, include NationsBank in its individual
capacity as a Lender or one of the Requisite Lenders. NationsBank and its
Affiliates may lend money to, accept deposits from and generally engage in
any kind of banking, trust or other business with the Borrower, any
Affiliate of the Borrower, or any other Person or any of their officers,
directors and employees as if NationsBank were not acting as the Agent
pursuant hereto and the Agent may accept fees and other consideration from
the Borrower, any Affiliate of the Borrower or any of their officers,
directors and employees (in addition to the Agency Fees or other
arrangements or fees heretofore agreed to between the Borrower, Berry UK,
Norwich and the Agent) for services in connection with this Agreement or
otherwise without having to account for or share the same with the Lenders.
SECTION 8.7SUCCESSOR AGENT.
(A)RESIGNATION.
The Agent may resign from the performance of all its functions and duties
hereunder at any time by giving at least thirty (30) Business Days' prior
written notice to the Borrower and the Lenders. Such resignation shall
take effect upon the acceptance by a successor Agent of appointment
pursuant to Section (B) APPOINTMENT OF SUCCESSOR.
Upon any such notice of resignation pursuant to Section (A)RESIGNATION.
(Resignation), the Requisite Lenders, with the consent of NationsBank and
the Borrower, shall appoint a successor to the Agent. If a successor to
the Agent shall not have been so appointed within said thirty (30) Business
Day period, the Agent retiring, upon notice to the Borrower, shall then
appoint a successor Agent who shall serve as the Agent until such time, as
the Requisite Lenders appoint a successor the Agent as provided abov
(Appointment of Successor) or as otherwise provided below.
(B)APPOINTMENT OF SUCCESSOR.
Upon any such notice of resignation pursuant to Section (A) RESIGNATION.
(Resignation), the Requisite Lenders, with the consent of NationsBank and
the Borrower, shall appoint a successor to the Agent. If a successor to
the Agent shall not have been so appointed within said thirty (30) Business
Day period, the Agent retiring, upon notice to the Borrower, shall then
appoint a successor Agent who shall serve as the Agent until such time, as
the Requisite Lenders appoint a successor the Agent as provided above.
(C)SUCCESSOR AGENT.
Upon the acceptance of any appointment as the Agent under the Financing
Documents by a successor Agent, such successor to the Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and
duties of the Agent retiring, and the Agent retiring shall be discharged
from its duties and obligations under the Financing Documents. After any
Agent's resignation as the Agent under the Financing Documents, the
provisions of this THE AGENT shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was the Agent under the
Financing Documents.
SECTION 8.8COLLATERAL MATTERS.
(A)RELEASE OF COLLATERAL.
The Lenders hereby irrevocably authorize the Agent and NationsBank, as
applicable, at its or their option and in its or their discretion, to
release any Lien granted to or held by the Agent upon any property covered
by this Agreement or the Financing Documents:
(i)upon termination of the Commitments and payment and satisfaction of all
Obligations and expiration or termination of all Letters of Credit and all
Bond Letters of Credit;
(ii)constituting property being sold or disposed of if the Borrower, Berry
UK, Norwich or a Subsidiary Guarantor certifies to the Agent and/or
NationsBank, as applicable, that the sale or disposition is made in
compliance with the provisions of this Agreement (and the Agent and
NationsBank may rely in good faith conclusively on any such certificate,
without further inquiry);
(iii)constituting property leased to the Borrower, Berry UK, Norwich or any
Subsidiary under a lease which has expired or been terminated in a
transaction permitted under this Agreement or is about to expire and which
has not been, and is not intended by the Borrower or the Subsidiary to be,
renewed or extended; or
(iv)constituting property covered by Permitted Liens with lien priority
superior to those Liens in favor or for the benefit of NationsBank, the
Agent or the Lenders.
In addition during any fiscal year of the Borrower (x) the Agent and
NationsBank may release Collateral having a book value of not more than 5%
of the book value of all Collateral, (y) the Agent and NationsBank, with
the consent of Requisite Lenders, may release Collateral having a book
value of not more than 25% of the book value of all Collateral and (z) the
Agent and NationsBank, with the consent of the Lenders having 90% of (i)
the Commitments and (ii) Loans, may release all the Collateral.
(B)CONFIRMATION OF AUTHORITY, EXECUTION OF RELEASES.
Without in any manner limiting the Agent's authority to act without any
specific or further authorization or consent by the Lenders as set forth in
Section (A)RELEASE OF COLLATERAL. (Release of Collateral), each Lender
agrees to confirm in writing the authority to release any property covered
by this Agreement or the Financing Documents conferred upon the Agent under
Section (a) Release of Collateral. (Release of Collateral). So long as no
Event of Default is then continuing, upon receipt by the Agent of
confirmation from the requisite percentage of the Lenders, of its authority
to release any particular item or types of property covered by this
Agreement or the Financing Documents, the Agent shall (and is hereby
irrevocably authorized by the Lenders to) execute such documents as may be
necessary to evidence the release of the Liens granted to the Agent for the
benefit of the Lenders herein or pursuant hereto upon such Collateral;
PROVIDED, HOWEVER, that (a) the Agent shall not be required to execute any
such document on terms which, in the Agent's opinion, would expose the
Agent to liability or create any obligation or entail any consequence other
than the release of such Liens without recourse or warranty, and (b) such
release shall not in any manner discharge, affect or impair the Obligations
or any Liens upon (or obligations of any Person, in respect of), all
interests retained by any Person, including, without limitation, the
proceeds of any sale, all of which shall continue to constitute part of the
property covered by this Agreement or the Financing Documents.
(C) ABSENCE OF DUTY.
The Agent shall have no obligation whatsoever to any Lender, the Borrower,
Berry UK, Norwich or any other Person to assure that the property covered
by this Agreement or the Financing Documents exists or is owned by the
Borrower, Berry UK, Norwich or any Subsidiary Guarantor or is cared for,
protected or insured or has been encumbered or that the Liens granted to
the Agent on behalf of the Lenders herein or pursuant hereto have been
properly or sufficiently or lawfully created, perfected, protected or
enforced or are entitled to any particular priority, or to exercise at all
or in any particular manner or under any duty of care, disclosure or
fidelity, or to continue exercising, any of the rights, authorities and
powers granted or available to the Agent in this Section (C)
ABSENCE OF DUTY or in any of the Financing Documents, it being understood
and agreed that in respect of the property covered by this Agreement or the
Financing Documents or any act, omission or event related thereto, the
Agent may act in any manner it may deem appropriate, in its discretion,
given the Agent's own interest in property covered by this Agreement or the
Financing Documents as one of the Lenders and that the Agent shall have no
duty or liability whatsoever to any of the other the Lenders.
SECTION 8.9AGENCY FEE.
The Borrower shall pay to the Agent, an annual loan administration and
agency fee (collectively, the "Agency Fees" and individually, an "Agency
Fee"), in the aggregate amount of Eighty Thousand Dollars ($80,000),
payable quarterly in arrears in installments of $20,000 each. The initial
Agency Fee shall be payable on the Second Closing Date, and each Agency Fee
thereafter shall be payable in advance on the first day of each quarterly
period, commencing with the first such day following the date hereof. Each
Agency Fee shall be fully earned and non-refundable upon the date paid.
The Agent shall retain all of the Agency Fees for its own account and shall
have no obligation to remit or pay any portion thereof to any of the
Lenders.
SECTION 8.10AGENCY FOR PERFECTION.
Each Lender hereby appoints the Agent and each other Lender as agent for
the purpose of perfecting the Lenders' Liens in Collateral which, in
accordance with Article 9 of the Uniform Commercial Code in any applicable
jurisdiction or otherwise, can be perfected only by possession. Should any
Lender (other than the Agent) obtain possession of any such Collateral,
such Lender shall notify the Agent thereof, and, promptly upon the Agent's
request therefor, shall deliver such Collateral to the Agent or in
accordance with the Agent's instructions.
SECTION 8.11EXERCISE OF REMEDIES.
Each Lender agrees that it will not have any right individually to enforce
or seek to enforce this Agreement or any Financing Document or to realize
upon any collateral security for the Loans, it being understood and agreed
that such rights and remedies may be exercised only by the Agent.
SECTION 8.12CONSENTS.
(a)In the event the Agent or NationsBank requests the consent of
a Lender and does not receive a written denial thereof, or a written notice
from a Lender that due cause consideration of the request requires
additional time, in each case, within ten (10) Business Days after such
Lender's receipt of such request, then such Lender will be deemed to have
given such consent.
(b)In the event the Agent, NationsBank the Borrower, Berry UK or
Norwich, as the case may be, requests the consent of a Lender and such
consent is denied, then NationsBank or the Borrower, Berry UK or Norwich,
as the case may be, may, at their option, require such Lender to assign its
interest in the Loans and Commitments to NationsBank or such other lender
as shall be acceptable to the Borrower, Berry UK and/or Norwich, as the
case may be, NationsBank and the Agent, for a price equal to the then
outstanding principal amount thereof, PLUS accrued and unpaid interest,
fees and costs and expenses due such Lender under the Financing Documents,
which principal, interest, fees and costs and expenses will be paid on the
date of such assignment. In the event that NationsBank or the Borrower,
Berry UK or Norwich, as the case may be, elects to require any Lender to
assign its interest to NationsBank or such other lender as shall be
acceptable to the Borrower, Berry UK, or Norwich, as the case may be, and
the Agent and NationsBank will so notify such Lender in writing within
thirty (30) days following such Lender's denial, and such Lender will
assign its interest to NationsBank or such other lender as shall be
acceptable to the Borrower, Berry UK or Norwich, as the case may be,
NationsBank and the Agent, no later than five (5) days following receipt of
such notice.
(c)The Lenders each hereby authorize the Agent and/or
NationsBank, as appropriate on their behalf to execute any and all
amendments to this Agreement and any of the other Financing Documents as
may be necessary to remedy and correct any clerical errors, omissions or
inconsistencies. The Agent and NationsBank, as appropriate, agrees to give
copies of any and all such executed amendments to each of the Lenders.
(d)Notwithstanding anything to the contrary contained herein,
NationsBank acknowledges and agrees that to the extent any Lender has made
all required payments to NationsBank on account of its participation
interests in the UK Obligations in accordance with the terms of this
Agreement, such Lender shall be deemed a "Lender" for purposes of consents
and similar actions required to be contained by NationsBank with respect to
such UK Obligations. Accordingly, all consents and similar actions
required to be obtained by the Agent with respect to the Obligations from
the Requisite Lenders and/or all of the Lenders as required by the terms of
this Agreement shall likewise be applicable to actions of NationsBank with
respect to the UK Obligations in the same respect.
SECTION 8.13CIRCUMSTANCES WHERE CONSENT OF ALL OF THE LENDERS IS REQUIRED.
Notwithstanding anything to the contrary contained herein, no amendment,
modification, change or waiver shall be effective without the consent of
all of the Lenders (but only the consent of all Lenders party to this
Agreement as of the Closing Date shall be required with respect to item (i)
below) to:
(a)increase the principal amount of any of the Commitments;
(b)extend the maturity or due date of payment of principal,
interest or Fees on account of the Obligations, including the UK
Obligations;
(c)reduce the principal amount of any Obligations, the rate of
interest on any of the Obligations or any Fees payable, except as expressly
permitted therein;
(d)change the method of calculation utilized in connection with
the computation of interest and Fees;
(e)change the manner of pro rata application by the Agent or
NationsBank of payments made by the Borrower, Berry UK or Norwich or any
other payments required hereunder or under the other Financing Documents;
(f)modify this Section or the definition of "Requisite Lenders";
(g)release any material portion of any Collateral (including any
UK Collateral), any Guarantor or any Financing Document (except to the
extent provided herein or therein);
(h)increase the advance rates for any component of the Borrowing
Base or the UK Borrowing Base; and
(i)modify, waiver or otherwise change the requirements of Section
2.1.13.
SECTION 8.14DISSEMINATION OF INFORMATION.
The Agent will provide the Lenders with any information received by the
Agent from the Borrower, Berry UK or Norwich which is required to be
provided to the Agent or to the Lenders hereunder; PROVIDED, HOWEVER, that
the Agent shall not be liable to any one or more the Lenders for any
failure to do so, except to the extent that such failure is attributable to
the Agent's gross negligence or willful misconduct.
SECTION 8.15DISCRETIONARY ADVANCES.
The Agent may, in its sole discretion, make, for the account of the Lenders
on a pro rata basis, advances under the Revolving Loan of up to 10% in
excess of the Borrowing Base but not in excess of the limitation set forth
in aggregate Revolving Credit Commitments for a period of not more than
thirty (30) consecutive days or, following an Event of Default, for such
longer period as the Requisite Lenders may elect.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1NOTICES.
All notices, requests and demands to or upon the parties to this Agreement
shall be in writing and shall be deemed to have been given or made when
delivered by hand on a Business Day, or two (2) days after the date when
deposited in the mail, postage prepaid by registered or certified mail,
return receipt requested, or when sent by overnight courier, on the
Business Day next following the day on which the notice is delivered to
such overnight courier, addressed as follows:
Borrower BERRY PLASTICS CORPORATION
Berry UK or 101 Oakley Street
Norwich P.O. Box 959
Evansville, Indiana 47710-0959
Attention: President
with a copy to Ilan S. Nissan, Esquire
O'Sullivan, Graev & Karabell, LLP
30 Rockefeller Center
41{st} Floor
New York, New York 10112
with a copy to: Joseph S. Levy
Vice President
First Atlantic Capital, Ltd.
135 East 57th Street, 29th Floor
New York, New York 10022
Agent: NATIONSBANK, N.A.
NationsBank Business Credit
100 S. Charles Street
Baltimore, Maryland 21201
Attention: Alison Arbuthnot
with a copy to: Shaun F. Carrick, Esquire
Miles & Stockbridge P.C.
10 Light Street
Baltimore, Maryland 21202
AGENT'S LONDON OFFICE NationsBank - Europe
New Broad Street House
35 New Broad Street
London, England EC2MINH
Attention: Mr. Aidan Fisher
NATIONSBANK: NationsBank, N.A.
NationsBank Business Credit
100 S. Charles Street
Baltimore, Maryland 21201
Attn: Ms. Vickie Tillman
GE Capital General Electric Capital Corporation
335 Madison Avenue
New York, New York 10017
Attn: Account Manager - Berry Plastics
Fleet: Fleet Capital Corporation
200 Glastonbury Boulevard
Glastonbury, Connecticut 06033
Attn: Mr. John Stanescki
Heller: Mr. Tom Bukowski
Senior
Vice President
Heller
Financial, Inc.
150
East 42{nd} Street
7{th}
Floor
New
York, New York 10017
By written notice, each party to this Agreement may change the address to
which notice is given to that party, provided that such changed notice
shall include a street address to which notices may be delivered by
overnight courier in the ordinary course on any Business Day.
SECTION 9.2AMENDMENTS; WAIVERS.
This Agreement and the other Financing Documents may not be amended,
modified, or changed in any respect except by an agreement in writing
signed by the Requisite Lenders, the Borrower, Berry UK and Norwich and to
the extent provided in CIRCUMSTANCES WHERE CONSENT OF ALL OF THE LENDERS IS
REQUIRED. by an agreement in writing signed by all of the Lenders, the
Borrower, Berry UK and Norwich. In addition, any agreement which directly
or indirectly affects any rights, duties, obligations, liabilities or
remedies of the Agent under this Agreement, under any of other Financing
Documents or otherwise must be approved and signed by the Agent. No waiver
of any provision of this Agreement or of any of the other Financing
Documents, nor consent to any departure by the Borrower, Berry UK or
Norwich therefrom, shall in any event be effective unless the same shall be
in writing. No course of dealing between the Borrower, Berry UK, Norwich
and the Agent and/or any of the Lenders and no act or failure to act from
time to time on the part of the Agent and/or any of the Lenders shall
constitute a waiver, amendment or modification of any provision of this
Agreement or any of the other Financing Documents or any right or remedy
under this Agreement, under any of the other Financing Documents or under
applicable Laws.
Without implying any limitation on the foregoing, and subject to the
provisions OF CIRCUMSTANCES WHERE CONSENT OF ALL OF THE LENDERS IS
REQUIRED.:
(a)Any waiver or consent shall be effective only in the specific
instance, for the terms and purpose for which given, subject to such
conditions as the Agent may specify in any such instrument.
(b)No waiver of any Default or Event of Default shall extend to
any subsequent or other Default or Event of Default, or impair any right
consequent thereto.
(c)No notice to or demand on the Borrower, Berry UK or Norwich in
any case shall entitle the Borrower, Berry UK or Norwich to any other or
further notice or demand in the same, similar or other circumstance.
(d)No failure or delay by the Lender to insist upon the strict
performance of any term, condition, covenant or agreement of this Agreement
or of any of the other Financing Documents, or to exercise any right, power
or remedy consequent upon a breach thereof, shall constitute a waiver,
amendment or modification of any such term, condition, covenant or
agreement or of any such breach or preclude the Agent from exercising any
such right, power or remedy at any time or times.
(e)By accepting payment after the due date of any amount payable
under this Agreement or under any of the other Financing Documents, the
Agent shall not be deemed to waive the right either to require prompt
payment when due of all other amounts payable under this Agreement or under
any of the other Financing Documents, or to declare a Default or an Event
of Default for failure to effect such prompt payment of any such other
amount.
SECTION 9.3CUMULATIVE REMEDIES.
The rights, powers and remedies provided in this Agreement and in the other
Financing Documents are cumulative, may be exercised concurrently or
separately, may be exercised from time to time and in such order as the
Agent shall determine, subject to the provisions of this Agreement, and are
in addition to, and not exclusive of, rights, powers and remedies provided
by existing or future applicable Laws. In order to entitle the Agent to
exercise any remedy reserved to it in this Agreement, it shall not be
necessary to give any notice, other than such notice as may be expressly
required in this Agreement. Without limiting the generality of the
foregoing and subject to the terms of this Agreement, the Agent may:
(a)proceed against the Borrower, Berry UK or Norwich with or
without proceeding against any other Person (including, without limitation,
any one or more of the Guarantors) who may be liable (by endorsement,
guaranty, indemnity or otherwise) for all or any part of the Obligations
(subject to the limitations set forth in Section (J)LIMITATIONS ON JOINT
AND SEVERAL LIABILITY FOR OBLIGATIONS. (Limitations on Joint and Several
Liability);
(b)proceed against the Borrower, Berry UK or Norwich with or
without proceeding under any of the other Financing Documents or against
any Collateral or other collateral and security for all or any part of the
Obligations;
(c)without reducing or impairing the obligation of the Borrower,
Berry UK or Norwich and without notice, release or compromise with any
guarantor or other Person liable for all or any part of the Obligations
under the Financing Documents or otherwise;
(d)without reducing or impairing the obligations of the Borrower,
Berry UK or Norwich and without notice thereof: (i)fail to perfect the Lien
in any or all Collateral or to release any or all the Collateral or to
accept substitute Collateral, (ii) approve the making of advances under the
Revolving Loan and/or the UK Revolving Loan under this Agreement, (iii)
waive any provision of this Agreement or the other Financing Documents,
(iv) exercise or fail to exercise rights of set-off or other rights, or (v)
accept partial payments or extend from time to time the maturity of all or
any part of the Obligations.
SECTION 9.4SEVERABILITY.
In case one or more provisions, or part thereof, contained in this
Agreement or in the other Financing Documents shall be invalid, illegal or
unenforceable in any respect under any Law, then without need for any
further agreement, notice or action:
(a)the validity, legality and enforceability of the remaining
provisions shall remain effective and binding on the parties thereto and
shall not be affected or impaired thereby;
(b)the obligation to be fulfilled shall be reduced to the limit
of such validity;
(c)such provision or part thereof only shall be void, and the
remainder of this Agreement shall remain operative and in full force and
effect.
SECTION 9.5ASSIGNMENTS BY LENDERS.
Any Lender may, with the prior written consent of the Agent and the
Borrower, but without notice to or consent of any other Lender, which
consent shall not be unreasonably withheld, delayed or conditioned, assign
to any Person (each an "Assignee" and collectively, the "Assignees") all or
a portion of such Lender's Commitments; provided that (a) the amount
assigned by such Lender must be at least equal to Five Million Dollars
($5,000,000), (b) after giving effect to such assignment, such Lender must
continue to hold a Pro Rata Share of the Commitments at least equal to Ten
Million Dollars ($10,000,000), unless such Lender has assigned one hundred
percent (100%) of such Lender's Commitments, and (c) any amount assigned
shall be divided pro rata among such Lenders' Pro Rata Share of the
Commitments and Obligations. NationsBank agrees that if at any time
NationsBank sells one hundred percent (100%) of all of its Commitments,
NationsBank shall resign as Agent and the remaining Lenders shall select a
replacement Agent in accordance with the provisions of this Agreement. In
addition, NationsBank agrees that for so long as NationsBank is the Agent,
unless otherwise agreed by the Lenders, NationsBank shall continue to hold
a Pro Rata Share of the Commitments at least equal to the Pro Rata Share of
the Lender (other than NationsBank) having the highest Pro Rata Share of
the Commitments. Any Lender which elects to make such an assignment shall
pay to the Agent, for the exclusive benefit of the Agent, an administrative
fee for processing each such assignment in the amount of Three Thousand
Five Hundred Dollars ($3,500). Such Lender and its Assignee shall notify
the Agent and the Borrower in writing of the date on which the assignment
is to be effective (the "Adjustment Date"). On or before the Adjustment
Date, the assigning Lender, the Agent, the Borrower and the respective
Assignee shall execute and deliver a written assignment agreement in a form
acceptable to the Agent, which shall constitute an amendment to this
Agreement to the extent necessary to reflect such assignment. Upon the
request of any assigning Lender following an assignment made in accordance
with this ASSIGNMENTS BY LENDERS., the Borrower, Berry UK and Norwich shall
issue new Notes to the assigning Lender and its Assignee reflecting such
assignment, in exchange for the existing Notes held by the assigning
Lender.
In addition to the foregoing assignments permitted by this ASSIGNMENTS BY
LENDERS., without the prior written consent of the Borrower, Berry UK or
Norwich, but with the consent of the Agent, which consent shall not be
unreasonably withheld, delayed or conditioned, any Lender may assign all or
any portion of such Lender's Commitments (a) to NationsBank, Fleet, GE
Capital or Heller at any time regardless of the occurrence or non-
occurrence of an Event of Default and (b) to any other Person at any time
after the occurrence of an Event of Default; provided that with respect to
any such proposed assignment under either (a) or (b) (i) the amount to be
assigned by such assigning Lender must be at least equal to Five Million
Dollars ($5,000,000), (ii) after giving effect to such assignment, such
assigning Lender must continue to hold a Pro Rata Share of the Commitments
at least equal to Ten Million Dollars ($10,000,000), unless such Lender has
assigned one hundred percent (100%) of such Lender's Commitments, (iii) any
amount to be assigned shall be divided pro rata among such Lender's Pro
Rata Share of the Commitments and the Obligations, and (iv) prior to
closing and consummating the proposed assignment (the "Proposed Assignee"),
the Lender shall have first given the Borrower notice of the proposed
assignment (the "Right of First Refusal Notice") to permit the Borrower an
opportunity to locate another Person acceptable to the Agent (the
"Substitute Purchaser") to close and consummate the proposed assignment on
the same terms and conditions available to the Proposed Assignee and the
Substitute Purchaser shall in fact close and consummate the proposed
assignment within thirty (30) days after the Right of First Refusal Notice.
If the Borrower fails to locate a Substitute Purchaser or if the Substitute
Purchaser fails to close and consummate the proposed assignment within such
thirty (30) day period, the assigning Lender shall be entitled to close and
consummate the proposed assignment to the Proposed Assignee without further
notice or obligation to the Borrower, Berry UK or Norwich.
In addition, notwithstanding the foregoing, any Lender may at any time
pledge all or any portion of such Lender's rights under this Agreement, any
of the Commitments or any of the Obligations to a Federal Reserve Bank.
SECTION 9.6PARTICIPATIONS BY LENDERS.
Any Lender may at any time sell to one or more financial institutions
participating interests in any of such Lender's Obligations or Commitments;
provided, however, that (a) no such participation shall relieve such Lender
from its obligations under this Agreement or under any of the other
Financing Documents to which it is a party, (b) such Lender shall remain
solely responsible for the performance of its obligations under this
Agreement and under all of the other Financing Documents to which it is a
party, (c) the Borrower, Berry UK, Norwich, the Agent and the other Lenders
shall continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement and the
other Financing Documents, and (d) no such participant shall be granted
voting rights with respect to any matters reserved for the Lenders under
the provisions of this Agreement.
SECTION 9.7DISCLOSURE OF INFORMATION BY LENDERS.
(a)In connection with any sale, transfer, assignment or
participation by any Lender in accordance with ASSIGNMENTS BY LENDERS.
(Assignments by Lenders) or SECTION 9.6 PARTICIPATIONS BY LENDERS.
(Participations by Lenders), each Lender shall have the right to disclose
to any actual or potential purchaser, assignee, transferee or participant
all financial records, information, reports, financial statements and
documents obtained in connection with this Agreement and/or any of the
other Financing Documents or otherwise, provided that such actual or
potential purchaser shall agree to keep confidential any non-public
information delivered or made available to such Lender.
(b)Each of the Lenders and the Agent hereby agree to exercise
reasonable efforts to keep any non-public information delivered or made
available to it pursuant to this Agreement or any of the Financing
Documents, confidential from any other Person except (i) Persons employed
or retained by such Lender or Agent who are or are expected to become
engaged in evaluating, approving, structuring or administering the
Obligations, (ii) with the prior written consent of Borrower, (iii) as
required in connection with the exercise of any remedy under this Agreement
or any of the Financing Documents or (iv) as may be required by Law,
provided that in the event that any Lender, the Agent or any of its or
their representatives are requested or compelled (by oral questions,
interrogatories, requests for information or documents, subpoena, civil
investigative demand or similar process) to disclose any of the non-public
information delivered or made available to any Lender or the Agent pursuant
to this Agreement or any of the Financing Documents, the Lenders, the Agent
and its or their representatives, as appropriate, agree to provide Borrower
with prompt notice of such request(s).
SECTION 9.8SUCCESSORS AND ASSIGNS.
This Agreement and all other Financing Documents shall be binding upon and
inure to the benefit of the Borrower, Berry UK, Norwich, the Agent and the
Lenders and their respective heirs, personal representatives, successors
and assigns, except that neither the Borrower, Berry UK nor Norwich shall
have the right to assign its rights hereunder or any interest herein
without the prior written consent of the Agent and the Requisite Lenders.
SECTION 9.9CONTINUING AGREEMENTS.
All covenants, agreements, representations and warranties made by the
Borrower, Berry UK and/or Norwich in this Agreement, in any of the other
Financing Documents, and in any certificate delivered pursuant hereto or
thereto shall survive the making by the Lenders of the Loans, the issuance
of Letters of Credit by the Agent and the execution and delivery of the
Notes, shall be binding upon the Borrower, Berry UK and Norwich regardless
of how long before or after the date hereof any of the Obligations were or
are incurred, and shall continue in full force and effect so long as any of
the Obligations are outstanding and unpaid. From time to time upon the
Agent's request, and as a condition of the release of any one or more of
the Security Documents, the Borrower, Berry UK, Norwich and other Persons
obligated with respect to the Obligations shall provide the Agent with such
acknowledgments and agreements as the Agent may require to the effect that
there exists no defenses, rights of setoff or recoupment, claims,
counterclaims, actions or causes of action of any kind or nature whatsoever
against the Agent, any or all of the Lenders, and/or any of its or their
agents and others, or to the extent there are, the same are waived and
released.
SECTION 9.10ENFORCEMENT COSTS.
The Borrower agrees to pay to the Agent on demand all Enforcement Costs
(including expenses and fees incurred by any Lender to the extent included
in the definition of Enforcement Costs), together with interest thereon
from the date following demand until paid in full at a per annum rate of
interest equal at all times to the Post-Default Rate. The Borrower, Berry
UK and Norwich jointly and severally agree to pay to the Agent on demand
all Enforcement Costs which relate solely to the UK Obligations, together
with interest thereon from the date following demand until paid in full at
a per annum rate of interest equal at all times to the Post-Default Rate.
Enforcement Costs shall be immediately due and payable at the time advanced
or incurred, whichever is earlier. Without implying any limitation on the
foregoing, the Borrower and to the extent appropriate, Berry UK and
Norwich, jointly and severally agree, as part of the Enforcement Costs, to
pay upon demand any and all stamp and other Taxes and fees payable or
determined to be payable in connection with the execution and delivery of
this Agreement and the other Financing Documents and to save the Agent and
the Lenders harmless from and against any and all liabilities with respect
to or resulting from any delay in paying or omission to pay any Taxes or
fees referred to in this Section. The provisions of this Section shall
survive the execution and delivery of this Agreement, the repayment of the
other Obligations and shall survive the termination of this Agreement.
SECTION 9.11APPLICABLE LAW; JURISDICTION.
(A)GOVERNING LAW.
As a material inducement to the Agent and the Lenders to enter into this
Agreement, the Borrower, Berry UK and Norwich each acknowledges and agrees
that the Financing Documents, including, this Agreement, shall be governed
by the Laws of the State, as if each of the Financing Documents and this
Agreement had each been executed, delivered, administered and performed
solely within the State even though for the convenience and at the request
of the Borrower, Berry UK and/or Norwich one or more of the Financing
Documents may be executed elsewhere. The Agent and the Lenders
acknowledge, however, that remedies under certain of the Financing
Documents that relate to property outside the State may be subject to the
laws of the state in which the property is located.
(B)SUBMISSION TO JURISDICTION.
The Borrower, Berry UK and Norwich each irrevocably submits to the
jurisdiction of any state or federal court sitting in the State over any
suit, action or proceeding arising out of or relating to this Agreement or
any of the other Financing Documents. The Borrower, Berry UK and Norwich
each irrevocably waives, to the fullest extent permitted by law, any
objection that it may now or hereafter have to the laying of the venue of
any such suit, action or proceeding brought in any such court and any claim
that any such suit, action or proceeding brought in any such court has been
brought in an inconvenient forum. Final judgment in any such suit, action
or proceeding brought in any such court shall be conclusive and binding
upon the Borrower, Berry UK and Norwich and may be enforced in any court in
which the Borrower, Berry UK and/or Norwich is subject to jurisdiction, by
a suit upon such judgment, provided that service of process is effected
upon the Borrower, Berry UK and Norwich in one of the manners specified in
this Section or as otherwise permitted by applicable Laws.
(C)APPOINTMENT OF AGENT FOR SERVICE OF PROCESS.
The Borrower, Berry UK and Norwich each hereby irrevocably designates and
appoints CT Corporation System 300 East Lombard Street, Baltimore,
Maryland, 21202, as their respective agent to receive on their behalf
service of any and all process that may be served in any suit, action or
proceeding of the nature referred to in this Section in any state or
federal court sitting in the State. If such agent shall cease so to act,
the Borrower, Berry UK and Norwich shall irrevocably designate and appoint
without delay another such agent in the State satisfactory to the Agent and
shall promptly deliver to the Agent evidence in writing of such other
agent's acceptance of such appointment and its agreement that such
appointment shall be irrevocable.
(D)SERVICE OF PROCESS.
The Borrower, Berry UK and Norwich each hereby consents to process being
served in any suit, action or proceeding of the nature referred to in this
Section by (a) the mailing of a copy thereof by registered or certified
mail, postage prepaid, return receipt requested, to the Borrower, Berry UK
and Norwich at their respective address designated in or pursuant to
SECTION 9.1NOTICES. (Notices), and (b) serving a copy thereof upon the
agent, if any, designated and appointed by the Borrower, Berry UK and
Norwich as their respective agent for service of process by or pursuant to
this Section. The Borrower, Berry UK and Norwich each irrevocably agrees
that such service (i) shall be deemed in every respect effective service of
process upon each of them in any such suit, action or proceeding, and (ii)
shall, to the fullest extent permitted by law, be taken and held to be
valid personal service upon the Borrower, Berry UK and Norwich. Nothing in
this Section shall affect the right of the Agent to serve process in any
manner otherwise permitted by law or limit the right of the Agent otherwise
to bring proceedings against the Borrower, Berry UK and/or Norwich in the
courts of any jurisdiction or jurisdictions.
SECTION 9.12DUPLICATE ORIGINALS AND COUNTERPARTS.
This Agreement 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.
SECTION 9.13HEADINGS.
The headings in this Agreement are included herein for convenience only,
shall not constitute a part of this Agreement for any other purpose, and
shall not be deemed to affect the meaning or construction of any of the
provisions hereof.
SECTION 9.14NO AGENCY.
Nothing herein contained shall be construed to constitute the Borrower,
Berry UK or Norwich as the agent of the Agent or any of the Lenders for any
purpose whatsoever or to permit the Borrower, Berry UK or Norwich to pledge
any of the credit of the Agent or any of the Lenders. Neither the Agent
nor any of the Lenders shall be responsible or liable for any shortage,
discrepancy, damage, loss or destruction of any part of the Collateral
wherever the same may be located and regardless of the cause thereof.
Neither the Agent nor any of the Lenders shall, by anything herein or in
any of the Financing Documents or otherwise, assume any of the Borrower's,
Berry UK's, or Norwich's obligations under any contract or agreement
assigned to the Agent and/or the Lenders, and neither the Agent nor any of
the Lenders shall be responsible in any way for the performance by the
Borrower, Berry UK or Norwich of any of the terms and conditions thereof.
SECTION 9.15WAIVER OF TRIAL BY JURY.
THE BORROWER, BERRY UK, NORWICH, THE AGENT AND THE LENDERS HEREBY JOINTLY
AND SEVERALLY WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO WHICH THE
BORROWER, BERRY UK, NORWICH, THE AGENT AND/OR ANY OR ALL OF THE LENDERS MAY
BE PARTIES, ARISING OUT OF OR IN ANY WAY PERTAINING TO (A) THIS AGREEMENT,
(B) ANY OF THE FINANCING DOCUMENTS, OR (C) THE COLLATERAL. THIS WAIVER
CONSTITUTES A WAIVER OF TRIAL BY JURY OF ALL CLAIMS AGAINST ALL PARTIES TO
SUCH ACTIONS OR PROCEEDINGS, INCLUDING CLAIMS AGAINST PARTIES WHO ARE NOT
PARTIES TO THIS AGREEMENT.
This waiver is knowingly, willingly and voluntarily made by the Borrower,
Berry UK, Norwich, the Agent and the Lenders, and the Borrower, Berry UK,
Norwich, the Agent and the Lenders hereby represent that no representations
of fact or opinion have been made by any individual to induce this waiver
of trial by jury or to in any way modify or nullify its effect. The
Borrower, Berry UK, Norwich, the Agent and the Lenders further represent
that they have been represented in the signing of this Agreement and in the
making of this waiver by independent legal counsel, selected of their own
free will, and that they have had the opportunity to discuss this waiver
with counsel.
SECTION 9.16LIABILITY OF THE AGENT AND THE LENDERS.
The Borrower, Berry UK and Norwich each hereby agrees that neither the
Agent nor any of the Lenders shall be chargeable for any negligence,
mistake, act or omission of any accountant, examiner, agency or attorney
employed by the Agent and/or any of the Lenders in making examinations,
investigations or collections, or otherwise in perfecting, maintaining,
protecting or realizing upon any lien or security interest or any other
interest in the Collateral or other security for the Obligations, except
for acts of gross negligence and willful misconduct.
By inspecting the Collateral or any other properties of the Borrower, Berry
UK or Norwich or by accepting or approving anything required to be
observed, performed or fulfilled by the Borrower, Berry UK or Norwich or to
be given to the Agent and/or any of the Lenders pursuant to this Agreement
or any of the other Financing Documents, neither the Agent nor any of the
Lenders shall be deemed to have warranted or represented the condition,
sufficiency, legality, effectiveness or legal effect of the same, and such
acceptance or approval shall not constitute any warranty or representation
with respect thereto by the Agent and/or the Lenders.
SECTION 9.17ENTIRE AGREEMENT.
THIS AGREEMENT IS INTENDED BY THE AGENT, THE LENDERS, BERRY UK, NORWICH AND
THE BORROWER TO BE A COMPLETE, EXCLUSIVE AND FINAL EXPRESSION OF THE
AGREEMENTS CONTAINED HEREIN. NEITHER THE AGENT, THE LENDERS NOR BERRY UK,
NORWICH, OR THE BORROWER SHALL HEREAFTER HAVE ANY RIGHTS UNDER ANY PRIOR
AGREEMENTS PERTAINING TO THE MATTERS ADDRESSED BY THIS AGREEMENT BUT SHALL
LOOK SOLELY TO THIS AGREEMENT FOR DEFINITION AND DETERMINATION OF ALL OF
THEIR RESPECTIVE RIGHTS, LIABILITIES AND RESPONSIBILITIES UNDER THIS
AGREEMENT.
IN WITNESS WHEREOF, each of the parties hereto have executed and delivered
this Agreement under their respective seals as of the day and year first
written above.
WITNESS OR ATTEST:BERRY PLASTICS CORPORATION
_________________________By:_______________________(Seal)
James M. Kratochvil
Vice President
WITNESS OR ATTEST:NIM HOLDINGS LIMITED
____________________________By:_______________________(Seal)
James M. Kratochvil
Vice President
WITNESS OR ATTEST:NORWICH INJECTION MOULDERS LIMITED
_________________________By:_______________________(Seal)
James M. Kratochvil
Vice President
WITNESS:NATIONSBANK, N.A.,
in its capacity as Agent
_________________________By:______________________(Seal)
Alison Arbuthnot
Vice President
WITNESS:NATIONSBANK, N.A.
in its capacity as a Lender
_________________________By:_______________________(Seal)
Alison Arbuthnot
Vice President
WITNESS:GENERAL ELECTRIC CAPITAL CORPORATION
in its capacity as a Lender
_________________________By:_______________________(Seal)
WITNESS:FLEET CAPITAL CORPORATION
in its capacity as a Lender
_________________________By:_______________________(Seal)
WITNESS:HELLER FINANCIAL, INC.
in its capacity as a Lender
_________________________By:_______________________(Seal)
LIST OF EXHIBITS
A-1.Form of Borrowing Base Report
A-2Form of UK Borrowing Base Report
B.Wire Transfer Procedures
C-1.Pro-Forma Financial Statements
C-2Pro-Forma Balance Sheets
D.Form of Compliance Certificate
LIST OF SCHEDULES
ScheduleSection 1.1 CERTAIN DEFINED TERMS. List of Account Debtors
(concentrations)
SCHEDULE(j) Litigation. Litigation
SCHEDULE(n) Indebtedness FOR BORROWED MONEY. Scheduled Indebtedness for
Borrowed Money
SCHEDULE(T) EMPLOYEE RELATIONS. Employee Relations Disclosures
SCHEDULE(u) Presence OF HAZARDOUS MATERIALS OR HAZARDOUS MATERIALS
CONTAMINATION. Hazardous Materials Disclosures
SCHEDULE(v) Perfection AND PRIORITY OF COLLATERAL. Scheduled Permitted
Liens
SCHEDULE(x) Business NAMES AND ADDRESSES. Information on Names, Addresses
and Locations
SCHEDULEInvestments, Loans AND OTHER TRANSACTIONS. Permitted Investments
EXHIBIT B
EXHIBIT C
TABLE OF CONTENTS
ARTICLE I DEFINITIONS
2
Section 1.1Certain Defined Terms
2
Section 1.2Accounting Terms and Other Definitional Provisions.
76
ARTICLE II THE CREDIT FACILITIES............................................77
Section 2.1The Revolving Credit Facility....................................77
Section 2.2The Term Loan A Facility.........................................88
Section 2.3Term Loan B Facility.............................................94
Section 2.4The Letter of Credit Facility....................................98
Section 2.5The Bond Letter of Credit Facility..............................101
Section 2.6The Special Source Bond Facility................................106
Section 2.7The UK Revolving Credit Facility................................107
Section 2.8UK Term Loan Facility...........................................112
Section 2.9General Letter of Credit Provisions and Participation Provisions for
UK Credit Facilities.115
Section 2.10Interest.......................................................120
Section 2.11General Financing Provisions...................................126
Section 2.12Settlement Among Lenders.......................................134
ARTICLE III THE COLLATERAL.................................................139
Section 3.1Debt and Obligations Secured....................................139
Section 3.2Grant of Liens..................................................140
Section 3.3Collateral Disclosure List......................................141
Section 3.4Personal Property...............................................143
Section 3.5Record Searches.................................................145
Section 3.6Real Property...................................................145
Section 3.7Subsidiary Guarantor Assets.....................................148
Section 3.8Costs...........................................................148
Section 3.9Release.........................................................148
Section 3.10Inconsistent Provisions........................................148
ARTICLE IV REPRESENTATIONS AND WARRANTIES..................................148
Section 4.1Representations and Warranties..................................148
Section 4.2Survival; Updates of Representations and Warranties.............159
ARTICLE V CONDITIONS PRECEDENT.............................................160
Section 5.1Conditions to the Initial Advance and Initial Letter of Credit..160
Section 5.2Conditions to all Extensions of Credit..........................166
ARTICLE VI COVENANTS OF THE BORROWER.......................................167
Section 6.1Affirmative Covenants...........................................167
Section 6.2Negative Covenants..............................................181
ARTICLE VII DEFAULT AND RIGHTS AND REMEDIES................................192
Section 7.1Events of Default...............................................192
Section 7.2Remedies........................................................195
ARTICLE VIII THE AGENT.....................................................199
Section 8.1Appointment.....................................................199
Section 8.2Nature of Duties................................................199
Section 8.3Rights, Exculpation, Etc........................................201
Section 8.4Reliance........................................................202
Section 8.5Indemnification.................................................204
Section 8.6NationsBank Individually........................................204
Section 8.7Successor Agent.................................................204
Section 8.8Collateral Matters..............................................204
Section 8.9Agency Fee......................................................207
Section 8.10Agency for Perfection..........................................207
Section 8.11Exercise of Remedies...........................................207
Section 8.12Consents.......................................................207
Section 8.13Circumstances Where Consent of all of the Lenders is Required..208
Section 8.14Dissemination of Information...................................209
Section 8.15Discretionary Advances.........................................209
ARTICLE IX MISCELLANEOUS...................................................209
Section 9.1Notices.........................................................209
Section 9.2Amendments; Waivers.............................................211
Section 9.3Cumulative Remedies.............................................212
Section 9.4Severability....................................................213
Section 9.5Assignments by Lenders..........................................213
Section 9.6Participations by Lenders.......................................214
Section 9.7Disclosure of Information by Lenders............................215
Section 9.8Successors and Assigns..........................................215
Section 9.9Continuing Agreements...........................................215
Section 9.10Enforcement Costs..............................................216
Section 9.11Applicable Law; Jurisdiction...................................216
Section 9.12Duplicate Originals and Counterparts...........................217
Section 9.13Headings.......................................................218
Section 9.14No Agency......................................................218
Section 9.15Waiver of Trial by Jury........................................218
Section 9.16Liability of the Agent and the Lenders.........................218
Section 9.17Entire Agreement...............................................219
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED
FINANCING AND SECURITY AGREEMENT
-----------------------------------------------
THIS SECOND AMENDMENT TO SECOND AMENDED AND RESTATED FINANCING
AND SECURITY AGREEMENT (this "Amendment") is made as of the ___ day of
August, 1998, by and among BERRY PLASTICS CORPORATION, a corporation
organized and existing under the laws of the State of Delaware (the
"Borrower"); NIM HOLDINGS LIMITED, a company organized and existing under
the laws of England and Wales ("Berry UK"), and NORWICH INJECTION
MOULDERS LIMITED, a company organized and existing under the laws of
England and Wales ("Norwich"); NATIONSBANK, N.A., a national banking
association, in its capacity as a lender ("NationsBank"), FLEET CAPITAL
CORPORATION, a corporation organized and existing under the laws of the
State of Rhode Island ("Fleet"), GENERAL ELECTRIC CAPITAL CORPORATION, a
corporation organized and existing under the laws of the State of New
York ("GE Capital") and HELLER FINANCIAL, INC., a corporation organized
and existing under the laws of the State of Delaware ("Heller")
(NationsBank, Fleet, GE Capital and Heller are herein collectively
referred to as the "Lenders" and individually, as a "Lender"); and
NATIONSBANK, N.A., a national banking association, in its capacity as
administrative and collateral agent for the Lenders (the "Agent");
Witnesseth:
RECITALS
--------
(a) The Lenders, the Borrower, Berry UK, Norwich and the
Agent are parties to that certain Second Amended and Restated
Financing and Security Agreement dated as of July 2, 1998, as
amended by that certain First Amendment to Second Amended and
Restated Financing and Security Agreement dated as of July 31, 1998
(as amended, restated, supplemented or otherwise modified, the
"Credit Agreement"). Under and subject to the provisions of the
Credit Agreement, the Lenders agreed to establish in favor of the
Borrower, Berry UK and Norwich certain revolving credit, letter of
credit and term loan facilities. All capitalized terms used herein
but not specifically defined herein shall have the meanings given
such terms in the Credit Agreement.
(b) On or before August 31, 1998, the Borrower intends to
offer and issue additional Subordinated Debt having an aggregate
maximum principal amount of Thirty Million Dollars ($30,000,000)
(the "Additional Subordinated Debt"). The Additional Subordinated
Debt shall be issued substantially on the same terms and conditions
as are currently applicable to the Subordinated Debt (except for
certain provisions relating to asset sales which provide that the
existing Subordinated Debt shall have priority as between the
existing Subordinated Debt and the Additional Subordinated Debt as
to any available excess proceeds from certain asset sales) and shall
be guaranteed by the Subsidiary Guarantors, the Parent, Norwich and
Berry UK.
(c) The Borrower has requested that the Agent and the Lenders
consent and agree to the issuance of the Additional Subordinated
Debt and otherwise amend certain terms and conditions of the Credit
Agreement. The Agent and the Lenders have so agreed; provided that,
among other things, the Borrower executes and delivers this
Amendment.
NOW, THEREFORE, in consideration of the premises and other good
and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Borrower, Berry UK, Norwich, the Lenders and the
Agent hereby agree as follows:
1. The Borrower, Berry UK, and Norwich hereby acknowledge and agree
that the recitals set forth above are true and accurate in each and every
respect and are incorporated herein by reference. The representations
and warranties of the Borrower, Berry UK and Norwich contained among the
provisions of the Credit Agreement are true as of the date of this
Amendment 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 Credit Agreement, shall also be deemed to cover
financial statements furnished from time to time to the Agent pursuant to
Section 6.1.1 (Financial Statements) of the Credit Agreement.
2. The Credit Agreement is hereby amended as follows:
(a) Section 1.1 of the Credit Agreement is hereby amended to
add the following additional definitions:
"ADDITIONAL SUBORDINATED DEBT" MEANS THAT CERTAIN INDEBTEDNESS
FOR BORROWED MONEY OF THE BORROWER (AND ALL GUARANTEES THEREOF BY
THE BORROWER AND ITS SUBSIDIARIES) ISSUED OR INTENDED TO BE ISSUED
IN FAVOR OF UNITED STATES TRUST COMPANY OF NEW YORK, AS TRUSTEE FOR
THE HOLDERS OF THE 12-1/4% SERIES B SENIOR SUBORDINATED NOTES (AND
ANY OTHER PROMISSORY NOTES HEREAFTER ISSUED IN EXCHANGE THEREFOR AS
CONTEMPLATED BY THE INDENTURE)DUE 2004 IN A STATED PRINCIPAL AMOUNT
UP TO THIRTY MILLION DOLLARS ($30,000,000).
(b) The definition of Indenture on page 25 of the Credit
Agreement is hereby deleted in its entirety and the following is
substituted in its place:
"INDENTURE" MEANS (i) THAT CERTAIN INDENTURE DATED AS OF APRIL
21, 1994 BY AND BETWEEN THE BORROWER AND THE UNITED STATES TRUST
COMPANY OF NEW YORK, AS TRUSTEE, ENTERED INTO IN CONNECTION WITH THE
SUBORDINATED DEBT AND (ii) THAT CERTAIN INDENTURE ENTERED INTO OR
INTENDED TO BE ENTERED INTO BY AND BETWEEN THE BORROWER AND THE
UNITED STATES TRUST COMPANY OF NEW YORK, AS TRUSTEE, WITH RESPECT TO
THE ADDITIONAL SUBORDINATED DEBT, EACH AS THE SAME MAY BE AMENDED,
RESTATED SUPPLEMENTED OR OTHERWISE MODIFIED.
(c) The definition of "Permitted Acquisition" on pages 33
through 36 inclusive is hereby deleted in its entirety and the
following is substituted in its place:
"PERMITTED ACQUISITION" MEANS (a) THE ACQUISITION OR PURCHASE
OF, OR INVESTMENT IN, ANY PERSON, ANY OPERATING DIVISION OR UNIT OF
ANY PERSON, OR THE STOCK OR ASSETS OF ANY PERSON OR THE COMBINATION
WITH ANY PERSON BY THE BORROWER OR ANY SUBSIDIARY GUARANTOR (EACH
INDIVIDUALLY, A "SUBJECT TRANSACTION") REGARDLESS OF THE STRUCTURE
OF THE SUBJECT TRANSACTION, ENGAGED PRINCIPALLY IN THE LINES OF
BUSINESS SET FORTH IN SECTION 6.1.7 (LINE OF BUSINESS) OR IN A
BUSINESS REASONABLY RELATED THERETO; PROVIDED, HOWEVER THAT:
(i) THE AGGREGATE PURCHASE PRICE OF, INVESTMENT IN,
ACQUISITION EXPENDITURES RELATING TO (EXCLUDING CUSTOMARY AND
REASONABLE TRANSACTION COSTS) AND ASSUMED LIABILITIES IN
CONNECTION WITH ANY SUCH SUBJECT TRANSACTION (A) SHALL NOT
EXCEED AT ANY TIME DURING THE PERIOD COMMENCING ON AUGUST 1,
1998 AND ENDING ON NOVEMBER 15, 1998, TWENTY MILLION DOLLARS
($20,000,000) IF THE PRO FORMA EBITDA FOR (x) THE PERSON WHICH
IS THE TARGET OF SUCH SUBJECT TRANSACTION OR (y) THE SELLER OR
DIVISION OF THE SELLER OF THE ASSETS WHICH IS THE TARGET OF
SUCH SUBJECT TRANSACTION, AS APPLICABLE, IS AT LEAST EQUAL TO
1.5 MULTIPLIED BY THE INCREMENTAL INTEREST EXPENSE ATTRIBUTABLE
TO INDEBTEDNESS INCURRED IN CONNECTION WITH SUCH SUBJECT
TRANSACTION, AND (B) SHALL NOT EXCEED AT ANY OTHER TIME OR IN
ANY OTHER CIRCUMSTANCE THE LESSER OF:
(1) THE PRODUCT OF (A) THE ACTUAL EBITDA FOR (x) THE PERSON
WHICH IS THE TARGET OF SUCH SUBJECT TRANSACTION OR (y)THE SELLER
OR THE DIVISION OF THE SELLER OF THE ASSETS WHICH IS THE TARGET
OF SUCH SUBJECT TRANSACTION, AS APPLICABLE, FOR THE THEN
PRECEDING TWELVE (12) MONTH PERIOD AFTER GIVING EFFECT TO SUCH
SUBJECT TRANSACTION (SUBJECT TO SUCH PRO-FORMA ADJUSTMENTS AS
SHALL BE ACCEPTABLE TO THE AGENT IN ITS SOLE AND ABSOLUTE
DISCRETION), AND (B) 5, OR
(2) SEVEN MILLION DOLLARS ($7,000,000),
(ii) THE AGGREGATE PURCHASE PRICES OF, INVESTMENTS IN,
ACQUISITION EXPENDITURES RELATING TO (EXCLUDING CUSTOMARY AND
REASONABLE TRANSACTION COSTS) AND ASSUMED LIABILITIES IN
CONNECTION WITH ALL SUBJECT TRANSACTIONS MADE ON OR AFTER THE
FIRST CLOSING DATE (EXCLUDING ANY PERMITTED ACQUISITION
PERMITTED UNDER CLAUSE (B) OF THIS DEFINITION) SHALL NOT EXCEED
(A) FIFTY MILLION DOLLARS ($50,000,000) IN THE EVENT A SUBJECT
TRANSACTION WHICH QUALIFIES AS A PERMITTED ACQUISITION IS
CLOSED AND CONSUMMATED DURING THE PERIOD COMMENCING ON AUGUST
1, 1998 AND ENDING ON NOVEMBER 15, 1998 AND (B) THIRTY MILLION
DOLLARS ($30,000,000) IF NO SUBJECT TRANSACTION WHICH QUALIFIES
AS A PERMITTED ACQUISITION IS CLOSED AND CONSUMMATED DURING THE
AFORESAID PERIOD,
(iii) SUCH SUBJECT TRANSACTION SHALL NOT OTHERWISE
CONSTITUTE OR GIVE RISE TO A DEFAULT OR AN EVENT OF DEFAULT,
(iv) THE BORROWER SHALL HAVE FURNISHED FINANCIAL
PROJECTIONS IN FORM AND CONTENT REASONABLY ACCEPTABLE TO THE
AGENT WHICH GIVE EFFECT TO SUCH SUBJECT TRANSACTION AND WHICH
PROJECT THAT SUCH SUBJECT TRANSACTION WOULD NOT CAUSE A DEFAULT
OR EVENT OF DEFAULT (PROVIDED THAT THE AGENT AND THE LENDERS
AGREE THAT SUCH PROJECTIONS SHALL NOT CONSTITUTE A GUARANTY OF
ACTUAL PERFORMANCE),
(v) IF REQUESTED BY THE AGENT OR THE REQUISITE LENDERS, A
PHASE I ENVIRONMENTAL ASSESSMENT OF ANY REAL PROPERTY TO BE
ACQUIRED OR PURCHASED OR OWNED BY ANY PERSON TO BE ACQUIRED OR
PURCHASED OR OWNED BY ANY PERSON IN WHICH THE BORROWER OR ANY
SUBSIDIARY INTENDS TO MAKE AN INVESTMENT, HAS BEEN PERFORMED BY
A REPUTABLE AND RECOGNIZED ENVIRONMENTAL CONSULTING FIRM
ENGAGED BY THE BORROWER AND REASONABLY ACCEPTABLE TO THE AGENT
AND HAS REVEALED NO MATERIAL HAZARDOUS MATERIALS
CONTAMINATION OR MATERIAL VIOLATIONS OF ANY ENVIRONMENTAL LAWS,
THE NON-REMEDIATION OF OR NON-COMPLIANCE WITH WHICH WOULD
RESULT IN A MATERIAL LIABILITY NOT REFLECTED IN THE PURCHASE
PRICE,
(vi) IF AND TO THE EXTENT THE SUBJECT TRANSACTION
CONSISTS OF THE PURCHASE OR ACQUISITION OF A PERSON WHICH IS TO
BE A SUBSIDIARY OF THE BORROWER OR MERGED INTO A SUBSIDIARY OF
THE BORROWER CREATED FOR THE EXPRESS PURPOSE OF CONSUMMATING
THE PROPOSED ACQUISITION:
(1) THE BORROWER SHALL EXECUTE ALL DOCUMENTS AND TAKE SUCH
OTHER ACTIONS AS THE AGENT MAY REASONABLY REQUIRE TO GRANT TO
THE AGENT AND THE LENDERS A FIRST PRIORITY LIEN ON ONE HUNDRED
PERCENT (100%) OF THE STOCK OF SUCH SUBSIDIARY (EXCEPT THAT WITH
RESPECT TO THE FORMATION OF BERRY UK AND ITS ACQUISITION OF
NORWICH, THE BORROWER SHALL BE REQUIRED ONLY TO PLEDGE SIXTY-
FIVE PERCENT (65%) OF THE STOCK OF BERRY UK, AS SECURITY FOR ALL
OF THE OBLIGATIONS, EXCLUDING THE UK OBLIGATIONS, AND TO PLEDGE
ONE HUNDRED PERCENT (100%) OF THE STOCK OF BERRY UK, AS SECURITY
FOR ALL OF THE UK OBLIGATIONS, WHICH ONE HUNDRED PERCENT (100%)
PLEDGE SHALL REDUCE TO SIXTY-FIVE PERCENT (65%) AT SUCH TIME AS
ALL OBLIGATIONS UNDER THE SUBORDINATED DEBT HAVE BEEN PAID IN
FULL,
(2) SUCH SUBSIDIARY SHALL BE DESIGNATED AND QUALIFY
IMMEDIATELY AFTER THE CLOSING OF THE SUBJECT TRANSACTION AS A
SUBSIDIARY GUARANTOR IN ACCORDANCE WITH THE TERMS OF SECTION
6.2.2(SUBSIDIARIES), EXCEPT THAT NEITHER BERRY UK NOR NORWICH
SHALL BE DESIGNATED OR REQUIRED TO QUALIFY AS A SUBSIDIARY
GUARANTOR,
(vii) AFTER GIVING EFFECT TO ANY BORROWINGS UNDER THE
REVOLVING LOAN, IF ANY, NEEDED TO FINANCE THE SUBJECT
TRANSACTION, THE BORROWER AND THE SUBSIDIARY GUARANTORS SHALL
HAVE AVAILABILITY UNDER THE REVOLVING LOAN IN AN AMOUNT AT
LEAST EQUAL TO TWENTY MILLION DOLLARS ($20,000,000) AND ARE
REASONABLY EXPECTED TO HAVE SUCH MINIMUM AVAILABILITY FOR A
PERIOD OF TEN (10) BUSINESS DAYS AFTER CLOSING AND CONSUMMATION
OF THE SUBJECT TRANSACTION, EXCEPT THAT IN CONNECTION WITH THE
NORWICH STOCK PURCHASE TRANSACTION, AVAILABILITY UNDER THE
REVOLVING LOAN NEED ONLY BE IN AN AMOUNT AT LEAST EQUAL TO
FIFTEEN MILLION DOLLARS ($15,000,000),
(viii) ALL LEGAL MATTERS INCIDENT TO THE SUBJECT
TRANSACTION SHALL BE ACCEPTABLE TO THE AGENT IN ITS REASONABLE
DISCRETION,
(ix) THE AGENT SHALL HAVE BEEN GIVEN NO LESS THAN THIRTY
(30) DAYS PRIOR WRITTEN NOTICE OF ANY PROPOSED SUBJECT
TRANSACTION AND SHALL HAVE BEEN PROVIDED WITH ALL INFORMATION
WHICH IT MAY HAVE REASONABLY REQUESTED IN CONNECTION WITH SUCH
PROPOSED SUBJECT TRANSACTION, EXCEPT THAT NOTWITHSTANDING THE
FOREGOING, THE AGENT AGREES THAT WITH RESPECT TO ANY PROPOSED
SUBJECT TRANSACTION INTENDED TO BE CLOSED AND CONSUMMATED
DURING THE PERIOD COMMENCING ON AUGUST 1, 1998 AND ENDING ON
NOVEMBER 15, 1998, THE BORROWER SHALL ONLY BE REQUIRED TO GIVE
THE AGENT NO LESS THAN TWENTY-ONE (21) DAYS WRITTEN NOTICE OF
SUCH PROPOSED SUBJECT TRANSACTION,
(x) IF REQUESTED BY THE AGENT, THE AGENT SHALL HAVE
RECEIVED, PRIOR TO OR SIMULTANEOUSLY WITH THE CLOSING OF A
SUBJECT TRANSACTION, AN OPINION OF COUNSEL REASONABLY
ACCEPTABLE TO THE AGENT IN ALL RESPECTS COVERING THE BORROWER'S
OR THE RELEVANT SUBSIDIARY'S, AS THE CASE MAY BE, DUE
INCORPORATION, VALID EXISTENCE, GOOD STANDING AND POWER AND
AUTHORITY TO ENTER INTO THE DOCUMENTS CONTEMPLATED BY THIS
AGREEMENT AND THE SUBJECT TRANSACTION AND SUCH OTHER MATTERS AS
MAY BE REASONABLY REQUESTED BY THE AGENT,
(xi) UNLESS OTHERWISE AGREED BY THE REQUISITE LENDERS, NO
SUBJECT TRANSACTION SHALL BE PERMITTED BY THE TERMS OF THIS
AGREEMENT IF THE BORROWER, BERRY UK, NORWICH AND THE SUBSIDIARY
GUARANTORS, ON A CONSOLIDATED BASIS AND TAKEN AS A WHOLE, HAVE
HAD, IMMEDIATELY PRIOR TO THE DATE OF THE CLOSING OF SUCH
SUBJECT TRANSACTION, THREE (3) CONSECUTIVE MONTHS OF NET
OPERATING LOSSES, AND
(xii) THE AGGREGATE PURCHASE PRICE OF, INVESTMENT IN,
ACQUISITION EXPENDITURES RELATING TO (EXCLUDING CUSTOMARY AND
REASONABLE TRANSACTION COSTS) AND ASSUMED LIABILITIES IN
CONNECTION WITH ALL SUBJECT TRANSACTIONS IN THE FISCAL YEAR
ENDING DECEMBER 31, 1998 SHALL NOT EXCEED THIRTY-FIVE MILLION
DOLLARS ($35,000,000) AND IN ANY OTHER FISCAL YEAR SHALL NOT
EXCEED SEVEN MILLION DOLLARS ($7,000,000); AND
(b) THE VENTURE STOCK PURCHASE/MERGER TRANSACTION AND THE
PACKERWARE MERGER TRANSACTION.
THE BORROWER UNDERSTANDS AND AGREES THAT THE AGENT SHALL HAVE
NO OBLIGATION OR COMMITMENT TO INCLUDE ANY OF THE ASSETS OR
PROPERTIES OF ANY PERSON ACQUIRED IN THE BORROWING BASE
PURSUANT TO A SUBJECT TRANSACTION. THE AGENT AND THE LENDERS
AGREE, HOWEVER, THAT IF AFTER COMPLETION AND REVIEW OF A
SATISFACTORY FIELD EXAMINATION OF THE ASSETS AND PROPERTIES
WHICH CONSTITUTE OR ARE PART OF A PERMITTED ACQUISITION, SUCH
ASSETS AND PROPERTIES SHALL BE INCLUDED IN THE BORROWING BASE
IF THE RESULTS OF SUCH FIELD EXAMINATION AND AUDIT ARE
REASONABLY ACCEPTABLE IN ALL RESPECTS TO THE AGENT IN ITS
DISCRETION AND SUCH ASSETS AND PROPERTIES OTHERWISE SATISFY THE
ELIGIBILITY CRITERIA FOR INCLUSION IN THE BORROWING BASE.
NOTWITHSTANDING THE FOREGOING, THE AGENT AND THE LENDERS AGREE
THAT THE ASSETS AND PROPERTIES OF BERRY UK AND NORWICH SHALL BE
INCLUDED IN THE UK BORROWING BASE SUBJECT TO THE ELIGIBILITY
CRITERIA SET FORTH IN THE DEFINITIONS OF ELIGIBLE UK INVENTORY
AND ELIGIBLE UK RECEIVABLES.
(d) The definition of "Subordinated Debt" on page 47 of the
Credit Agreement is hereby deleted in its entirety and the following
is substituted in its place:
"SUBORDINATED DEBT" MEANS COLLECTIVELY (i) THAT CERTAIN
INDEBTEDNESS FOR BORROWED MONEY OF THE BORROWER (AND ALL GUARANTEES
THEREOF BY THE BORROWER AND ITS SUBSIDIARIES) IN FAVOR OF UNITED
STATES TRUST COMPANY OF NEW YORK, AS TRUSTEE FOR THE HOLDERS OF THE
12-1/4% SENIOR SUBORDINATED NOTES DUE 2004 IN A STATED PRINCIPAL
AMOUNT OF ONE HUNDRED MILLION DOLLARS ($100,000,000) AND (ii) THE
ADDITIONAL SUBORDINATED DEBT.
(e) Section 2.2.3(b) on page 67 of the Credit Agreement is
hereby amended to provide that the Borrower shall not be obligated
to make a Term Loan A Mandatory Prepayment solely as the result of
the issuance of the Additional Subordinated Debt.
(f) Subsection (d) of Section 6.2.4 on page 144 of the Credit
Agreement is hereby deleted in its entirety and the following is
substituted in its place:
(d) SUBORDINATED INDEBTEDNESS, INCLUDING, WITHOUT LIMITATION,
THE ADDITIONAL SUBORDINATED DEBT; PROVIDED THAT THE PRINCIPAL AMOUNT
OF ALL SUCH SUBORDINATED INDEBTEDNESS SHALL NOT AT ANY TIME EXCEED,
IN THE AGGREGATE, THIRTY MILLION DOLLARS ($30,000,000)
3. The Agent and the Lenders hereby consent and agree to the
issuance of the Additional Subordinated Debt in accordance with the terms
and conditions of this Amendment; provided that (i) the Borrower executes
and delivers this Amendment, (ii) the proceeds of the Additional
Subordinated Debt (net of any and all customary and reasonable fees and
expenses incurred by the Borrower in connection with the closing and
consummation of the Additional Subordinated Debt) are paid to the Agent
immediately upon closing and consummation of the Additional Subordinated
Debt as a Revolving Loan Optional Prepayment and (iii) any portion of the
net proceeds of the Additional Subordinated Debt in excess of the then
unpaid principal balance of the Revolving Loan shall be used by the
Borrower in a manner mutually acceptable to the Agent, the Requisite
Lenders and the Borrower as determined within thirty (30) days of closing
the Additional Subordinated Debt.
4. The terms "this Agreement" as used in the Credit Agreement and
the terms "Credit Agreement" as used in any of the Financing Documents
shall mean the Credit 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.
5. The Borrower, the Agent and the Lenders will execute such
confirmatory instruments with respect to the Credit Agreement and/or any
of the Financing Documents as the Agent may reasonably require.
6. This Amendment may not be amended, changed, modified, altered or
terminated without in each instance the prior written consent of the
Agent, the Lenders and the Borrower. This Amendment shall be construed
in accordance with, and governed by, the laws of the State of Maryland.
7. The Borrower agree 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 Credit Agreement.
8. This Agreement 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 Agreement with its inked signature promptly to each
other party.
IN WITNESS WHEREOF, the Borrower, the Agent and the Lenders
have caused this Amendment to be executed under seal as of the date first
above written.
WITNESS: BERRY PLASTICS CORPORATION
_________________________ By:____________________________(Seal)
James M. Kratochvil
Vice President
WITNESS OR ATTEST: NIM HOLDINGS LIMITED
_________________________ By:_______________________(Seal)
James M. Kratochvil
Vice President
WITNESS OR ATTEST: NORWICH INJECTION MOULDERS LIMITED
_________________________ By:_______________________(Seal)
James M. Kratochvil
Vice President
1
WITNESS: NATIONSBANK, N.A.,
in its capacity as Agent
_________________________ By:____________________________(Seal)
Name: Vickie Tillman
Title: Senior Vice President
WITNESS: NATIONSBANK, N.A.,
in its capacity as a Lender
_________________________ By:____________________________(Seal)
Name: Vickie Tillman
Title: Senior Vice President
WITNESS: FLEET CAPITAL CORPORATION,
in its capacity as a Lender
_________________________ By:____________________________(Seal)
Name:
Title:
WITNESS:
GENERAL ELECTRIC CAPITAL
CORPORATION,
in its capacity as a Lender
_________________________ By:__________________________(Seal)
Name:
Title:
WITNESS: HELLER FINANCIAL, INC.
in its capacity as a Lender
_________________________ By:__________________________(Seal)
Name:
Title:
2
ACKNOWLEDGMENT AND CONSENT
BPC HOLDING CORPORATION, a corporation organized and existing
under the laws of the State of Delaware, BERRY IOWA CORPORATION, a
corporation organized and existing under the laws of the State of
Delaware, BERRY TRI-PLAS CORPORATION, a corporation organized under the
laws of the State of Delaware, BERRY STERLING CORPORATION, a corporation
organized under the laws of the State of Delaware, AEROCON, INC., a
corporation organized under the laws of the State of Delaware PACKERWARE
CORPORATION, a corporation organized under the laws of the State of
Kansas, BERRY PLASTICS DESIGN CORPORATION, a corporation organized and
existing under the laws of the State of Delaware, VENTURE PACKAGING,
INC., a corporation organized and existing under the laws of the State of
Delaware, VENTURE PACKAGING SOUTHEAST, INC., a corporation organized and
existing under the laws of the State of South Carolina and VENTURE
PACKAGING MIDWEST, INC., a corporation organized and existing under the
laws of State of Ohio (collectively, the "Guarantors") hereby consent and
agree to the foregoing Amendment and hereby acknowledge and agree that
(i) the joint and several obligations and liabilities of the Guarantors
under and in connection with those certain Guaranty of Payment Agreements
and all other Financing Documents executed and delivered in connection
with the Obligations (as amended, restated, supplemented or otherwise
modified, the "Guaranty Documents") shall include and to the extent
necessary are hereby amended to include any and all Obligations, as
amended by this Amendment and (ii) 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.
WITNESS OR ATTEST: BERRY IOWA CORPORATION
_________________________ By:__________________________(SEAL)
James M. Kratochvil
Vice President
WITNESS OR ATTEST: BERRY TRI-PLAS CORPORATION
_________________________ By:__________________________(SEAL)
James M. Kratochvil
Vice President
3
WITNESS OR ATTEST: BERRY STERLING CORPORATION
_________________________ By:__________________________(SEAL)
James M. Kratochvil
Vice President
WITNESS OR ATTEST: AERO CON, INC.
_________________________ By:__________________________(SEAL)
James M. Kratochvil
Vice President
WITNESS OR ATTEST: PACKERWARE CORPORATION
_________________________ By:__________________________(SEAL)
James M. Kratochvil
Vice President
WITNESS OR ATTEST: BERRY PLASTICS DESIGN CORPORATION
_________________________ By:__________________________(SEAL)
James M. Kratochvil
Vice President
WITNESS OR ATTEST: BPC HOLDING CORPORATION
_________________________ By:__________________________(SEAL)
James M. Kratochvil
Vice President
WITNESS OR ATTEST: VENTURE PACKAGING, INC.
_________________________ By:__________________________(SEAL)
James M. Kratochvil
Vice President
4
WITNESS OR ATTEST: VENTURE PACKAGING SOUTHEAST,
INC.
_________________________ By:__________________________(SEAL)
James M. Kratochvil
Vice President
WITNESS OR ATTEST: VENTURE PACKAGING MIDWEST,
INC.
_________________________ By:__________________________(SEAL)
James M. Kratochvil
Vice President
5
FIRST AMENDMENT TO SECOND AMENDED AND RESTATED
FINANCING AND SECURITY AGREEMENT
----------------------------------------------
THIS FIRST AMENDMENT TO SECOND AMENDED AND RESTATED FINANCING AND
SECURITY AGREEMENT (this "Amendment") is made as of the 31{st} day of July,
1998, by and among BERRY PLASTICS CORPORATION, a corporation organized and
existing under the laws of the State of Delaware (the "Borrower"); NIM
HOLDINGS LIMITED, a company organized and existing under the laws of
England and Wales ("Berry UK"), and NORWICH INJECTION MOULDERS LIMITED, a
company organized and existing under the laws of England and Wales
("Norwich"); NATIONSBANK, N.A., a national banking association, in its
capacity as a lender ("NationsBank"), FLEET CAPITAL CORPORATION, a
corporation organized and existing under the laws of the State of Rhode
Island ("Fleet"), GENERAL ELECTRIC CAPITAL CORPORATION, a corporation
organized and existing under the laws of the State of New York ("GE
Capital") and HELLER FINANCIAL, INC., a corporation organized and existing
under the laws of the State of Delaware ("Heller") (NationsBank, Fleet, GE
Capital and Heller are herein collectively referred to as the "Lenders" and
individually, as a "Lender"); and NATIONSBANK, N.A., a national banking
association, in its capacity as administrative and collateral agent for the
Lenders (the "Agent"); Witnesseth:
RECITALS
--------
A. The Lenders, the Borrower, Berry UK, Norwich and the Agent are
parties to that certain Second Amended and Restated Financing and Security
Agreement dated as of July 2, 1998 (as amended, restated, supplemented or
otherwise modified, the "Credit Agreement"). Under and subject to the
provisions of the Credit Agreement, the Lenders agreed to establish in
favor of the Borrower, Berry UK and Norwich certain revolving credit,
letter of credit and term loan facilities. All capitalized terms used
herein but not specifically defined herein shall have the meanings given
such terms in the Credit Agreement.
B. On or before the date of this Amendment, the Iowa Bond Trustee has
made or intends to make a Conversion Drawing on the Iowa Bond Letter of
Credit - NB to redeem Iowa Bonds. As permitted by Section 2.5.5(b) of the
Credit Agreement, the Borrower is permitted to pay the Conversion Drawing
over a period of ten (10) years; provided that payment of all amounts
outstanding with respect to such Conversion Drawing are repaid in full on
or before the Revolving Credit Termination Date.
C. The Borrower has requested, however, that the Lenders agree to
readvance a portion of Term Loans A previously advanced and repaid to pay
the Conversion Drawing in full. The Agent and the Lenders have so agreed;
provided that, among other things, the Borrower execute and delivered
amended and restated Term Loan A Notes and this Amendment.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Borrower, Berry UK, Norwich, the Lenders and the Agent
hereby agree as follows:
1. The Borrower, Berry UK, and Norwich hereby acknowledge and agree
that the recitals set forth above are true and accurate in each and every
respect and are incorporated herein by reference. The representations and
warranties of the Borrower, Berry UK and Norwich contained among the
provisions of the Credit Agreement are true as of the date of this
Amendment 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 Credit Agreement, shall also be deemed to cover
financial statements furnished from time to time to the Agent pursuant to
Section 6.1.1 (Financial Statements) of the Credit Agreement.
2. The Credit Agreement is hereby amended as follows:
(a) The first paragraph of Section 2.2.1 on page 65 of the Credit
Agreement is hereby deleted in its entirety and the following is
substituted in its place:
2.2.1 TERM LOAN A COMMITMENTS. Subject to and upon the
terms of this Agreement, each Lender severally agrees to make a
loan (each a "Term Loan A"; and collectively, the "Term Loans A")
to the Borrower in the principal amount set forth below opposite
such Lender's name (herein called such Lender's "Term Loan A
Committed Amount"). The total of each Lender's Term Loan A
Committed Amount is herein called the "Total Term Loan A
Committed Amount". The proportionate share set forth below
opposite each Lender's name is herein called such Lender's "Term
Loan A Pro Rata Share":
Term Loan A Term Loan A
LENDER COMMITTED AMOUNT PRO RATA SHARE
------ ---------------- --------------
Fleet $7,901,159.47 23.8525%
GE Capital $9,677,491.83 29.215%
NationsBank $9,677,491.83 29.215%
Heller $5,868,935.87 17.7175%
TOTAL TERM LOAN A
COMMITTED AMOUNT: $33,125,079 100%
The Borrower understands and agrees that the Term Loans A have been
fully funded and that none of the Lenders shall have any further
obligation or commitment to advance any additional portion of their
respective Term Loan A Committed Amount.
(b) The amortization schedule for the Term Loans A on page 66 of
the Credit Agreement is hereby deleted in its entirety and the following is
substituted in its place:
DUE DATE AMOUNT
-------- ------
August 1, 1998 $297,000
November 1, 1998 $432,477
February 1, 1999 $888,477
May 1, 1999 $888,477
August 1, 1999 $888,477
November 1, 1999 $888,477
February 1, 2000 $1,335,477
May 1, 2000 $1,335,477
August 1, 2000 $1,335,477
November 1, 2000 $1,335,477
February 1, 2001 $1,835,477
May 1, 2001 $1,835,477
August 1, 2001 $1,835,477
November 1, 2001 $1,835,477
January 21, 2002 $16,157,878
3. The terms "this Agreement" as used in the Credit Agreement and the
terms "Credit Agreement" as used in any of the Financing Documents shall
mean the Credit 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.
4. The Borrower, the Agent and the Lenders will execute such
confirmatory instruments with respect to the Credit Agreement and/or any of
the Financing Documents as the Agent may reasonably require.
5. This Amendment may not be amended, changed, modified, altered or
terminated without in each instance the prior written consent of the Agent,
the Lenders and the Borrower. This Amendment shall be construed in
accordance with, and governed by, the laws of the State of Maryland.
6. The Borrower agree 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 Credit Agreement.
7. This Agreement 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
Agreement with its inked signature promptly to each other party.
-1-
IN WITNESS WHEREOF, the Borrower, the Agent and the Lenders have caused
this Amendment to be executed under seal as of the date first above
written.
WITNESS: BERRY PLASTICS CORPORATION
_________________________ By:____________________________(Seal)
James M. Kratochvil
Vice President
WITNESS OR ATTEST: NIM HOLDINGS LIMITED
_________________________ By:_______________________(Seal)
James M. Kratochvil
Vice President
WITNESS OR ATTEST: NORWICH INJECTION MOULDERS LIMITED
_________________________ By:_______________________(Seal)
James M. Kratochvil
Vice President
WITNESS: NATIONSBANK, N.A.,
in its capacity as Agent
_________________________ By:____________________________(Seal)
Name: Alison Arbuthnot
Title: Vice President
WITNESS: NATIONSBANK, N.A.,
in its capacity as a Lender
_________________________ By:____________________________(Seal)
Name: Alison Arbuthnot
Title: Vice President
-2-
WITNESS: FLEET CAPITAL CORPORATION,
in its capacity as a Lender
_________________________ By:____________________________(Seal)
Name:
Title:
WITNESS: GENERAL ELECTRIC CAPITAL CORPORATION,
in its capacity as a Lender
_________________________ By:__________________________(Seal)
Name: Title:
WITNESS: HELLER FINANCIAL, INC.
in its capacity as a Lender
_________________________ By:__________________________(Seal)
Name: Title:
-3-
ACKNOWLEDGMENT AND CONSENT
BPC HOLDING CORPORATION, a corporation organized and existing under
the laws of the State of Delaware, BERRY IOWA CORPORATION, a corporation
organized and existing under the laws of the State of Delaware, BERRY TRI-
PLAS CORPORATION, a corporation organized under the laws of the State of
Delaware, BERRY STERLING CORPORATION, a corporation organized under the
laws of the State of Delaware, AEROCON, INC., a corporation organized under
the laws of the State of Delaware PACKERWARE CORPORATION, a corporation
organized under the laws of the State of Kansas, BERRY PLASTICS DESIGN
CORPORATION, a corporation organized and existing under the laws of the
State of Delaware, VENTURE PACKAGING, INC., a corporation organized and
existing under the laws of the State of Delaware, VENTURE PACKAGING
SOUTHEAST, INC., a corporation organized and existing under the laws of the
State of South Carolina and VENTURE PACKAGING MIDWEST, INC., a corporation
organized and existing under the laws of State of Ohio (collectively, the
"Guarantors") hereby consent and agree to the foregoing Amendment and
hereby acknowledge and agree that (i) the joint and several obligations and
liabilities of the Guarantors under and in connection with those certain
Guaranty of Payment Agreements and all other Financing Documents executed
and delivered in connection with the Obligations (as amended, restated,
supplemented or otherwise modified, the "Guaranty Documents") shall include
and to the extent necessary are hereby amended to include any and all
Obligations, as amended by this Amendment and (ii) 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.
WITNESS OR ATTEST: BERRY IOWA CORPORATION
_________________________ By:__________________________(SEAL)
James M. Kratochvil
Vice President
WITNESS OR ATTEST: BERRY TRI-PLAS CORPORATION
_________________________ By:__________________________(SEAL)
James M. Kratochvil
Vice President
-4-
WITNESS OR ATTEST: BERRY STERLING CORPORATION
_________________________ By:__________________________(SEAL)
James M. Kratochvil
Vice President
WITNESS OR ATTEST: AERO CON, INC.
_________________________ By:__________________________(SEAL)
James M. Kratochvil
Vice President
WITNESS OR ATTEST: PACKERWARE CORPORATION
_________________________ By:__________________________(SEAL)
James M. Kratochvil
Vice President
WITNESS OR ATTEST: BERRY PLASTICS DESIGN CORPORATION
_________________________ By:__________________________(SEAL)
James M. Kratochvil
Vice President
WITNESS OR ATTEST: BPC HOLDING CORPORATION
_________________________ By:__________________________(SEAL)
James M. Kratochvil
Vice President
WITNESS OR ATTEST: VENTURE PACKAGING, INC.
_________________________ By:__________________________(SEAL)
James M. Kratochvil
Vice President
-5-
WITNESS OR ATTEST: VENTURE PACKAGING SOUTHEAST, INC.
_________________________ By:__________________________(SEAL)
James M. Kratochvil
Vice President
WITNESS OR ATTEST: VENTURE PACKAGING MIDWEST, INC.
_________________________ By:__________________________(SEAL)
James M. Kratochvil
Vice President
-6-