BERRY PLASTICS CORPORATION
BPC HOLDING CORPORATION
BERRY IOWA CORPORATION
BERRY STERLING CORPORATION
BERRY TRI-PLAS CORPORATION
AEROCON, INC.
PACKERWARE CORPORATION
BERRY PLASTICS DESIGN CORPORATION
VENTURE PACKAGING, INC.
VENTURE PACKAGING MIDWEST, INC.
VENTURE PACKAGING SOUTHEAST, INC.
NIM HOLDINGS LIMITED
NORWICH INJECTION MOULDERS LIMITED
$25,000,000
12 1/4 % Series B Senior Subordinated Notes due 2004
PURCHASE AGREEMENT
August 19, 1998
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
$25,000,000
12 1/4 % Series B Senior Subordinated Notes due 2004
of Berry Plastics Corporation
PURCHASE AGREEMENT
August 19, 1998
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
277 Park Avenue
New York, New York 10172
Ladies and Gentlemen:
Each of Berry Plastics Corporation, a Delaware corporation (the
"COMPANY"), BPC Holding Corporation, a Delaware corporation ("HOLDING"),
Berry Iowa Corporation, a Delaware corporation, Berry Sterling
Corporation, a Delaware corporation, Berry Tri-Plas Corporation, a
Delaware corporation, AeroCon, Inc., a Delaware corporation, PackerWare
Corporation, a Kansas corporation, Berry Plastics Design Corporation, a
Delaware corporation, Venture Packaging, Inc., a Delaware corporation,
Venture Packaging Midwest, Inc., an Ohio corporation, Venture Packaging
Southeast, Inc., a South Carolina corporation, NIM Holdings Limited, a
company organized under the laws of England and Wales, and Norwich
Injection Moulders Limited, a company organized under the laws of England
and Wales (collectively with Holding, the "Guarantors"), agree with you
as follows:
1. ISSUANCE OF SECURITIES.
The Company proposes to issue and sell to Donaldson, Lufkin &
Jenrette Securities Corporation (the "INITIAL PURCHASER") $25,000,000 in
aggregate principal amount of 12 1/4 % Series B Senior Subordinated Notes
due 2004 (the "SERIES B NOTES"). The Series B Notes and the Series C
Notes (as defined below) issuable in exchange therefor are collectively
referred to herein as the "NOTES." The Notes will be guaranteed (the
"Note Guarantees") by each of the Guarantors. The Notes are to be issued
pursuant to the provisions of an indenture (the "INDENTURE") to be dated
August 24, 1998, among the Company, the Guarantors and United States
Trust Company of New York, as trustee (the "TRUSTEE"). Capitalized terms
used but not defined herein shall have the meanings given to such terms
in the Indenture.
The Series B Notes will be offered and sold to you pursuant to
an exemption from the registration requirements under the Securities Act
of 1933, as amended (the "ACT"). The Company has prepared a preliminary
offering memorandum (the "Preliminary Offering Memorandum"), and a final
offering memorandum, dated August 19, 1998 (the "OFFERING MEMORANDUM"),
relating to Holding, the Company and its subsidiaries, the Notes and the
Note Guarantees.
Upon original issuance thereof, and until such time as the same
is no longer required under the applicable requirements of the Act, the
Series B Notes (and all securities issued in exchange therefor or in
substitution thereof) shall bear the following legend:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER SECTION 5 OF THE UNITED STATES SECURITIES ACT OF 1933
(THE "SECURITIES ACT"), AND THE SECURITY EVIDENCED HEREBY MAY
NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED
THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE
144A THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED HEREBY
AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY
MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a)
INSIDE THE UNITED STATES TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A UNDER THE SECURITIES ACT, (b) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 OR (c) IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION
OF COUNSEL IF THE COMPANY AND THE GUARANTORS SO REQUEST), (2)
TO THE COMPANY, OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND, IN EACH CASE, IN
ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B)
THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,
NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY
OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE."
You have advised the Company that you will make offers (the
"EXEMPT RESALES") of the Series B Notes purchased by you hereunder on the
terms set forth in the Offering Memorandum, as amended or supplemented,
solely to persons (each, a "144A PURCHASER") whom you reasonably believe
to be "qualified institutional buyers" as defined in Rule 144A under the
Act ("QIBS") (such persons being referred to herein as the "ELIGIBLE
PURCHASERS").
Holders (including subsequent transferees) of the Series B
Notes will have the registration rights set forth in the registration
rights agreement (the "REGISTRATION RIGHTS AGREEMENT"), to be dated the
Closing Date (as defined herein), in substantially the form of Exhibit A
hereto, for so long as such Series B Notes constitute "TRANSFER
RESTRICTED SECURITIES" (as defined in the Registration Rights Agreement).
Pursuant to the Registration Rights Agreement, the Company and the
Guarantors will agree to file with the Securities and Exchange Commission
(the "COMMISSION") within 90 days of the Closing Date and under the
circumstances set forth therein, (i) a registration statement under the
Act (the "EXCHANGE OFFER REGISTRATION STATEMENT") relating to the
Company's 12 1/4 % Series C Senior Subordinated Notes due 2004 (the
"SERIES C NOTES") to be offered in exchange for the Series B Notes (such
offer to exchange being referred to as the "REGISTERED EXCHANGE OFFER")
and (ii) under the circumstances set forth in the Registration Rights
Agreement, a shelf registration statement pursuant to Rule 415 under the
Act (the "SHELF REGISTRATION STATEMENT" and, together with the Exchange
Offer Registration Statement, the "REGISTRATION STATEMENTS") relating to
the resale by certain holders of the Series B Notes, and to use their
best efforts to cause such Registration Statements to be declared
effective within the time periods set forth in the Registration Rights
Agreement. This Agreement, the Indenture, the Notes, the Notes
Guarantees and the Registration Rights Agreement are hereinafter referred
to collectively as the "OPERATIVE DOCUMENTS." As used in this Purchase
Agreement (this "AGREEMENT"), the term "SUBSIDIARY" shall mean any
subsidiary of the Company.
2. AGREEMENTS TO SELL AND PURCHASE.
On the basis of the representations and warranties contained in
this Agreement, and subject to the terms and conditions contained herein,
the Company agrees to issue and sell to you, and you agree to purchase
from the Company, $25,000,000 in aggregate principal amount of Series B
Notes at a purchase price equal to 102.335% of the principal amount
thereof (the "PURCHASE PRICE").
3. DELIVERY AND PAYMENT.
Delivery to you of and payment for the Series B Notes shall be
made at 9:00 A.M., New York City time, on August 24, 1998 (the "CLOSING
DATE") at the offices of Latham & Watkins, 885 Third Avenue, New York,
New York 10022, or such other time or place as you shall reasonably
designate.
One or more Series B Notes in definitive global form,
registered in the name of Cede & Co., as nominee of The Depository Trust
Company ("DTC"), having an aggregate amount corresponding to the
aggregate amount of the Series B Notes sold pursuant to Exempt Resales to
QIBs (collectively, the "GLOBAL NOTE"), shall be delivered by the Company
to the Initial Purchaser (or as the Initial Purchaser directs), against
payment by the Initial Purchaser of the Purchase Price, by wire transfer
of immediately available funds to such account or accounts as the Company
shall specify, provided that the Company shall give at least two business
days' prior written notice to the Initial Purchaser of the information
required to effect such wire transfers. The Global Note shall be made
available to the Initial Purchaser for inspection not later than 9:30
A.M. on the business day immediately preceding the Closing Date.
4. AGREEMENTS OF THE COMPANY AND THE GUARANTORS.
Each of the Company and the Guarantors hereby agrees with you
as follows:
(a) To advise you promptly and, if requested by you, confirm
such advice in writing, (i) of the issuance by any state securities
commission of any stop order suspending the qualification or
exemption from qualification of any Series B Notes for offering or
sale in any jurisdiction, or the initiation of any proceeding for
such purpose by the Commission or any state securities commission or
other regulatory authority and (ii) of the happening of any event
which makes any statement of a material fact made in the Offering
Memorandum untrue or which requires the making of any additions to
or changes in the Offering Memorandum in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading. The Company and the Guarantors
shall use their reasonable best efforts to prevent the issuance of
any stop order or order suspending the qualification or exemption of
the Series B Notes under any state securities or Blue Sky laws, and,
if at any time any state securities commission issues an order
suspending the qualification or exemption of the Series B Notes, the
Company and the Guarantors shall use every reasonable effort to
obtain the withdrawal or lifting of such order at the earliest
possible time.
(b) To furnish to you without charge as many copies of the
Offering Memorandum, and any amendments or supplements thereto, as
you may reasonably request. The Company and the Guarantors consent
to the use of the Offering Memorandum, and any amendments and
supplements thereto, required pursuant to this Agreement by you in
connection with the Exempt Resales.
(c) Not to amend or supplement the Offering Memorandum prior
to the Closing Date unless you shall previously have been advised
of, and shall not have reasonably objected to, such amendment or
supplement within a reasonable time, but in any event not longer
than five business days after being furnished a copy of such
amendment or supplement. The Company and the Guarantors shall
promptly prepare, upon any reasonable request by you, any amendment
or supplement to the Offering Memorandum that may be necessary or
advisable in connection with Exempt Resales.
(d) If, in connection with any Exempt Resales or market
making transactions after the date of this Agreement and prior to
the consummation of the Registered Exchange Offer, any event shall
occur that, in the judgment of the Company and the Guarantors or in
the judgment of counsel to you, makes any statement of a material
fact in the Offering Memorandum untrue or that requires the making
of any additions to or changes in the Offering Memorandum in order
to make the statements in the Offering Memorandum, in the light of
the circumstances at the time that the Offering Memorandum is
delivered to prospective Eligible Purchasers, not misleading, or if
it is necessary to amend or supplement the Offering Memorandum to
comply with all applicable laws, the Company and the Guarantors
shall promptly notify you of such event and prepare an appropriate
amendment or supplement to the Offering Memorandum so that (i) the
statements in the Offering Memorandum as amended or supplemented
will, in the light of the circumstances at the time that the
Offering Memorandum is delivered to prospective Eligible Purchasers,
not be misleading and (ii) the Offering Memorandum will comply with
applicable law.
(e) To cooperate with you and your counsel in connection with
the qualification of the Series B Notes for offer and sale by you
and by dealers under the state securities or Blue Sky laws of such
jurisdictions as you may request (provided, however, that neither
the Company nor any Guarantor shall be obligated to qualify as a
foreign corporation in any jurisdiction in which it is not now so
qualified or to take any action that would subject it to general
consent to service of process in any jurisdiction in which it is not
now so subject). The Company and the Guarantors will continue such
qualification in effect so long as required by law for distribution
of the Series B Notes and will file such consents to service of
process or other documents as may be necessary in order to effect
such qualification.
(f) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, to pay
all costs, expenses, fees and taxes incident to and in connection
with: (i) the preparation, printing, filing and distribution of the
Preliminary Offering Memorandum and the Offering Memorandum
(including, without limitation, financial statements and exhibits)
and all amendments and supplements thereto, (ii) the preparation,
printing (including, without limitation, word processing and
duplication costs) and delivery of this Agreement, the Indenture,
the Registration Rights Agreement, all preliminary and final Blue
Sky Memoranda and all other agreements, memoranda, correspondence
and other documents printed and delivered in connection herewith and
with the Exempt Resales, (iii) the issuance and delivery by the
Company and the Guarantors of the Notes and the Note Guarantees,
(iv) the qualification of the Notes and the Note Guarantees for
offer and sale under the securities or Blue Sky laws of the several
states (including, without limitation, the reasonable fees and
disbursements of your counsel relating to such registration or
qualification), (v) furnishing such copies of the Preliminary
Offering Memorandum and the Offering Memorandum, and all amendments
and supplements thereto, as may be reasonably requested for use in
connection with the Exempt Resales, (vi) the preparation of
certificates for the Notes and the Note Guarantees (including,
without limitation, printing and engraving thereof), (vii) the fees,
disbursements and expenses of the Company's and the Guarantors'
counsel and accountants, (viii) all expenses and listing fees in
connection with the application for quotation of the Series B Notes
in the National Association of Securities Dealers, Inc. ("NASD")
Automated Quotation System - PORTAL ("PORTAL"), (ix) the rating of
the Notes by rating agencies, if any, (x) all fees and expenses
(including fees and expenses of counsel) of the Company and the
Guarantors in connection with approval of the Notes by DTC for
"book-entry" transfer and (xii) the performance by the Company and
the Guarantors of their other obligations under this Agreement and
the other Operative Documents to which they are a party.
(g) To use the proceeds from the sale of the Series B Notes
in the manner described in the Offering Memorandum under the caption
"USE OF PROCEEDS."
(h) Not to voluntarily claim, and to actively resist any
attempts to claim, the benefit of any usury laws against the holders
of the Notes.
(i) Prior to the Closing Date, to furnish to you, as soon as
they have been prepared, a copy of any unaudited interim
consolidated financial statements of Holding or the Company for any
period subsequent to the period covered by the financial statements
appearing in the Offering Memorandum.
(j) To use its best efforts to do and perform all things
required to be done and performed under this agreement by it prior
to or after the Closing Date and to satisfy all conditions precedent
on its part to the delivery of the Series B Notes and the Note
Guarantees.
(k) Not to sell, offer for sale or solicit offers to buy or
otherwise negotiate in respect of any security (as defined in the
Act) that would be integrated with the sale of the Series B Notes in
a manner that would require the registration under the Act of the
sale to you or the Eligible Purchasers of Series B Notes.
(l) For so long as any of the Notes remain outstanding and
during any period in which the Company is not subject to Section 13
or 15(d) of the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"), to make available to any Eligible Purchaser or
beneficial owner of Notes in connection with any sale thereof and
any prospective purchaser of such Notes from such Eligible Purchaser
or beneficial owner, the information required by Rule 144A(d)(4)
under the Act.
(m) To comply with its agreements in the Registration Rights
Agreement, and all agreements set forth in the representation
letters of the Company and the Guarantors to DTC relating to the
approval of the Notes by DTC for "book-entry" transfer.
(n) To cause the Registered Exchange Offer to be made in the
appropriate form, as contemplated by the Registration Rights
Agreement, to permit registration of the Series C Notes and note
guarantees thereof to be offered in exchange for the Series B Notes
and Note Guarantees and to comply with all applicable federal and
state securities laws in connection with the Registered Exchange
Offer.
(o) To use its best efforts to effect the inclusion of the
Series B Notes in PORTAL.
(p) For so long as any of the Notes are outstanding, to
deliver without charge to the Initial Purchaser, promptly upon their
becoming available, copies of (i) all reports or other publicly
available information that the Company or any of the Guarantors
shall mail or otherwise make available to its securityholders and
(ii) all reports, financial statements and proxy or information
statements filed by the Company or any of the Guarantors with the
Commission or any national securities exchange and such other
publicly available information concerning Holding, the Company or
its Subsidiaries, including without limitation, press releases.
(q) Neither Holding, the Company nor any of its Subsidiaries
will take, directly or indirectly, any action designed to, or that
might reasonably be expected to, cause or result in stabilization or
manipulation of the price of any security of the Company or any of
the Guarantors to facilitate the sale or resale of the Notes.
Except as permitted by the Act, the Company and the Guarantors will
not distribute any preliminary offering memorandum, offering
memorandum or other offering material in connection with the
offering and sale of the Notes.
(r) To comply with the agreements in the Indenture, the
Registration Rights Agreement and each other Operative Document.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE GUARANTORS.
Each of the Company and the Guarantors represents and warrants
to you that:
(a) The Offering Memorandum (and each supplement and
amendment thereto) has been prepared in connection with the Exempt
Resales. The Offering Memorandum does not, and any supplement or
amendment thereto will not, contain any untrue statement of a
material fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that the
representations and warranties contained in this paragraph (a) shall
not apply to statements in or omissions from the Offering Memorandum
(or any supplement or amendment to it) made in reliance upon and in
conformity with information relating to you furnished to the Company
and the Guarantors in writing by you expressly for use therein. The
Company and the Guarantors acknowledge for all purposes under this
Agreement that the statements set forth in the last paragraph on the
cover page, the stabilization legend, and the third, fifth and
seventh paragraphs under the caption "Plan of Distribution" in the
Offering Memorandum (or any amendment or supplement) constitute the
only written information furnished to the Company and the Guarantors
by you expressly for use in the Offering Memorandum (or any
amendment or supplement thereto).
(b) Each of Holding, the Company and the Subsidiaries is a
duly organized and validly existing corporation in good standing
under the laws of its jurisdiction of incorporation, has the
requisite corporate power and authority to own, lease and operate
its properties and to conduct its business as it is currently being
conducted and described in the Offering Memorandum, and is duly
qualified as a foreign corporation and is in good standing in each
jurisdiction where the ownership, leasing or operation of property
or the conduct of its business requires such qualification, except
where the failure to be so qualified would not, singly or in the
aggregate, have a material adverse effect on the properties,
business, results of operations, condition (financial or otherwise),
affairs or prospects of Holding, the Company and the Subsidiaries
taken as a whole (a "MATERIAL ADVERSE EFFECT").
(c) Each of the Company and the Guarantors has all necessary
corporate power and authority to execute and deliver this Agreement,
the Notes (in the case only of the Company), the Note Guarantees (in
the case only of the Guarantors), the Indenture and the Registration
Rights Agreement, to perform its obligations under this Agreement,
the Indenture and the Registration Rights Agreement and to
authorize, issue, sell and deliver the Notes and the Note
Guarantees, as the case may be, as contemplated by this Agreement.
(d) This Agreement has been duly authorized and validly
executed and delivered by the Company and each of the Guarantors and
constitutes a legal, valid and binding agreement of the Company and
each of the Guarantors, enforceable against each of them in
accordance with its terms (assuming the due execution and delivery
hereof by you), subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws
in effect from time to time with respect to creditors' rights
generally and to principles of equity, whether at law or in equity
and except as rights to indemnity and contribution thereunder may be
limited by federal and state securities laws and public policy
considerations underlying such laws.
(e) The issuance and sale of the Series B Notes has been duly
authorized by the Company, and all legally required corporate
proceedings by the Company in connection with the issuance and sale
of the Series B Notes have been taken; each of the Series B Notes,
when issued and delivered to and paid for by the Initial Purchaser
in accordance with this Agreement (assuming the due authentication
thereof by the Trustee), will be a legal, valid and binding
obligation of the Company entitled to the benefits provided by the
Indenture, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws in effect from time to
time with respect to creditors' rights generally and to principles
of equity, whether at law or in equity and except as rights to
indemnity and contribution thereunder may be limited by federal and
state securities laws and public policy considerations underlying
such laws.
(f) The Company has all requisite power to authorize and
issue the Series C Notes; the issuance of the Series C Notes has
been duly authorized by the Company and all legally required
corporate proceedings by the Company in connection with the issuance
of the Series C Notes have been taken; each of the Series C Notes,
when and if issued and delivered in accordance with the terms of the
Registration Rights Agreement and the Indenture, will be validly
executed, issued and delivered and (assuming the due authentication
thereof by the Trustee) will be a legal, valid and binding
obligation of the Company entitled to the benefits provided by the
Indenture, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws in effect from time to
time with respect to creditors' rights generally and to principles
of equity, whether at law or in equity and except as rights to
indemnity and contribution thereunder may be limited by federal and
state securities laws and public policy considerations underlying
such laws.
(g) The Note Guarantee to be endorsed on the Series B Notes
by each Guarantor has been duly authorized by such Guarantor and, on
the Closing Date, will have been duly executed and delivered by each
such Guarantor and will conform to the description thereof in the
Offering Memorandum. When the Series B Notes have been issued,
executed and authenticated in accordance with the Indenture and
delivered to and paid for by the Initial Purchaser in accordance
with the terms of this Agreement, the Note Guarantee of each
Guarantor endorsed thereon will constitute valid and legally binding
obligations of such Guarantor, enforceable against such Guarantor in
accordance with its terms and entitled to the benefits of the
Indenture, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganizations, moratorium and similar laws in effect
from time to time with respect to creditors' rights generally and to
principles of equity whether at law or in equity.
(h) The note guarantee to be endorsed on the Series C Notes
by each Guarantor has been duly authorized by such Guarantor and all
legally required corporate proceedings by such Guarantor in
connection with the issuance of such note guarantees have been
taken; the note guarantees, when issued, will have been duly
executed and delivered by each such Guarantor and will conform to
the description thereof in the Offering Memorandum. When the Series
C Notes have been issued, executed and authenticated in accordance
with the terms of the Registered Exchange Officer and the Indenture,
the note guarantee of each Guarantor endorsed thereon will
constitute valid and legally binding obligations of such Guarantor,
enforceable against such Guarantor in accordance with its terms and
entitled to the benefits of the Indenture, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganizations,
moratorium and similar laws in effect from time to time with respect
to creditors' rights generally and to principles of equity whether
at law or in equity.
(i) The Indenture has been duly authorized by the Company and
each Guarantor and, on the Closing Date, will have been duly
executed by the Company and each Guarantor and will conform to the
description thereof in the Offering Memorandum. When the Indenture
has been duly executed and delivered, the Indenture will be a valid
and legally binding agreement of the Company and each Guarantor,
enforceable against each of them in accordance with its terms,
subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws in effect from time to
time with respect to creditors' rights generally and to principles
of equity, whether at law or in equity and except as rights to
indemnity and contribution thereunder may be limited by federal and
state securities laws and public policy considerations underlying
such laws.
(j) The Registration Rights Agreement has been duly
authorized by the Company and each Guarantor and, on the Closing
Date, will have been duly executed by the Company and each Guarantor
and will conform to the description thereof in the Offering
Memorandum. When the Registration Rights Agreement has been duly
executed and delivered, the Registration Rights Agreement will be a
valid and legally binding agreement of the Company and each
Guarantor, enforceable against each of them in accordance with its
terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws in effect
from time to time with respect to creditors' rights generally and to
principles of equity, whether at law or in equity and except as
rights to indemnity and contribution thereunder may be limited by
federal and state securities laws and public policy considerations
underlying such laws.
(k) The entities listed on Schedule A hereto are, and on the
Closing Date will be, the only Subsidiaries, direct or indirect, of
the Company. All of the issued and outstanding shares of capital
stock of, or other ownership interests in, each Subsidiary have been
duly and validly authorized and issued. All of the shares of
capital stock of, or other ownership interests in, each Subsidiary
are owned, directly or through Subsidiaries, by the Company. All
such shares of capital stock are fully paid and nonassessable, and
are owned free and clear of any security interest, mortgage, pledge,
claim, lien or encumbrance (each, a "LIEN") other than those Liens
created pursuant to the Credit Facility (as defined in the Offering
Memorandum). There are no outstanding subscriptions, rights,
warrants, options, calls, convertible securities, commitments of
sale or Liens related to or entitling any person to purchase or
otherwise to acquire any shares of the capital stock of, or other
ownership interest in, any Subsidiary.
(l) Except as set forth on Schedule B hereto, neither
Holding, the Company nor any of the Subsidiaries is in violation of
its respective charter or bylaws or in default in the performance of
any obligation, agreement or condition contained in any bond,
debenture, note or any other evidence of indebtedness or any
indenture, mortgage, deed of trust or other contract, lease or other
instrument to which Holding, the Company or any of the Subsidiaries
is a party or by which any of them is bound, or to which any of the
property or assets of Holding, the Company or any of the
Subsidiaries is subject. To the knowledge of the Company and the
Guarantors, there exists no condition which, with notice, the
passage of time or otherwise, would constitute a default under any
such document or instrument.
(m) The execution and delivery of this Agreement, the
Indenture, the Registration Rights Agreement, the Notes and the Note
Guarantees, the issuance and sale of the Notes and the Note
Guarantees, the performance of this Agreement, the Indenture and the
Registration Rights Agreement, compliance by the Company and the
Guarantors with the provisions hereof and thereof and of the Notes
and the Note Guarantees (in each case, to the extent the Company or
such Guarantor is a party thereto), the consummation of each of the
transactions contemplated hereby and thereby, in each case, as
applicable, will not result in a breach or violation of any of the
respective charters or bylaws of Holding, the Company or any of the
Subsidiaries or any of the terms or provisions of, or constitute a
default or cause an acceleration of any obligation under, or result
in the imposition or creation of (or the obligation to create or
impose) a Lien with respect to, any bond, note, debenture or other
evidence of indebtedness or any indenture, mortgage, deed of trust
or other agreement or instrument to which Holding, the Company or
any of the Subsidiaries is a party or by which it or any of them is
bound, or to which any properties of Holding, the Company or any of
the Subsidiaries is or may be subject, or contravene any order of
any court or governmental agency or body having jurisdiction over
Holding, the Company or any of the Subsidiaries or any of their
properties, or violate or conflict with any statute, rule or
regulation or administrative or court decree applicable to Holding,
the Company or any of the Subsidiaries, or any of their respective
properties.
(n) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, pending
against or affecting Holding, the Company or any of the
Subsidiaries, or any of their respective properties, which is
required to be disclosed and is not so disclosed, in the Offering
Memorandum, or which would result, singly or in the aggregate, in a
Material Adverse Effect or which would materially and adversely
affect the consummation of this Agreement or the transactions
contemplated hereby, and to the best knowledge of the Company and
the Guarantors, no such proceedings are contemplated or threatened.
(o) To the knowledge of the Company and the Guarantors, no
action has been taken and no statute, rule or regulation or order
has been enacted, adopted or issued by any governmental agency or
body which prevents the issuance of the Notes or the Note
Guarantees, prevents or suspends the use of any Offering Memorandum
or suspends the sale of the Notes or the Note Guarantees, in any
jurisdiction referred to in Section 4(e) hereof; no injunction,
restraining order or order of any nature by a federal or state court
of competent jurisdiction has been issued with respect to Holding,
the Company or any of the Subsidiaries which would prevent or
suspend the issuance or sale of the Notes or the Note Guarantees, or
the use of any Offering Memorandum in any jurisdiction referred to
in Section 4(e) hereof; no action, suit or proceeding is pending
against or, to the best knowledge of the Company and the Guarantors
threatened against or affecting Holding, the Company or any of the
Subsidiaries before any court or arbitrator or any governmental
body, agency or official, domestic or foreign, which, if adversely
determined, would materially interfere with or adversely affect the
issuance of the Notes or the Note Guarantees, or in any manner draw
into question the validity of this Agreement, the Indenture, the
Registration Rights Agreement, the Notes or the Note Guarantees; and
every request of the Commission or any securities authority or
agency of any jurisdiction for additional information (to be
included in the Offering Memorandum or otherwise) has been complied
with.
(p) Except as set forth in the Offering Memorandum, Holding,
the Company and the Subsidiaries are in compliance with all
applicable existing federal, state and local laws and regulations
relating to protection of human health or the environment or
imposing liability or standards of conduct concerning any Hazardous
Material ("ENVIRONMENTAL LAWS"), except where the failure to comply
would not have a Material Adverse Effect. The term "Hazardous
Material" means (a) any "hazardous substance" as defined by the
Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended, (b) any "hazardous waste" as defined by the
Resource Conservation and Recovery Act, as amended, (c) any
petroleum or petroleum product, (d) any polychlorinated biphenyl and
(e) any pollutant or contaminant or hazardous, dangerous or toxic
chemical, material, waste or substance.
(q) Neither Holding, the Company nor any of the Subsidiaries
has violated any federal, state or local law relating to
discrimination in the hiring, promotion or pay of employees or any
applicable wage or hour laws, nor any provisions of the Employee
Retirement Income Security Act of 1974 ("ERISA") or the rules and
regulations promulgated thereunder, nor has Holding, the Company or
any of the Subsidiaries engaged in any unfair labor practice, which
in each case would result, singly or in the aggregate, in a Material
Adverse Effect. There is (i) no significant unfair labor practice
complaint pending against Holding, the Company or any of the
Subsidiaries or, to the best knowledge of the Company and the
Guarantors, threatened against any of them before the National Labor
Relations Board or any state or local labor relations board, and no
significant grievance or significant arbitration proceeding arising
out of or under any collective bargaining agreement is so pending
against Holding, the Company or any of the Subsidiaries or, to the
best knowledge of the Company and the Guarantors, threatened against
any of them, (ii) no significant strike, labor dispute, slowdown or
stoppage is pending against Holding, the Company or any of the
Subsidiaries or, to the best knowledge of the Company and the
Guarantors, threatened against Holding, the Company or any of the
Subsidiaries and (iii) to the best knowledge of the Company and the
Guarantors, no union representation question exists with respect to
the employees of Holding, the Company or any of the Subsidiaries and
no union organizing activities are taking place, except (with
respect to any matter specified in clause (i), (ii) or (iii) above,
singly or in the aggregate) such as could not have a Material
Adverse Effect.
(r) Except (i) as would not result, singly or in the
aggregate, in a Material Adverse Effect, and (ii) for the liens
created pursuant to (A) the Credit Facility (as defined in the
Offering Memorandum), (B) the Nevada Bonds and the South Carolina
Bonds (as defined in the Offering Memorandum), (C) the Pledge,
Escrow and Disbursement Agreement dated June 18, 1996, among
Holding, First Trust of New York, National Association ("FIRST
TRUST"), as trustee, and First Trust, as escrow agent, and (D) the
Holding Pledge and Security Agreement dated June 18, 1996 between
Holding and First Trust, as collateral agent, Holding, the Company
and each of the Subsidiaries has good and marketable title, free and
clear of all Liens (except Liens for taxes not yet due and payable),
to all property and assets reflected in the Company's consolidated
financial statements at and for the year ended December 27, 1997.
(s) The firms of accountants that have certified or shall
certify the applicable financial statements and supporting schedules
of Holding, the Company and the Subsidiaries as part of the Offering
Memorandum are independent public accountants, as required by the
Act and the Exchange Act. The consolidated historical and pro forma
financial statements, together with related schedules and notes, set
forth in the Offering Memorandum comply as to form in all material
respects with the requirements of the Act. Such historical
financial statements fairly present in all material respects the
financial position of Holding, the Company and the Subsidiaries at
the respective dates indicated and the results of operations and
cash flows for the respective periods indicated, in accordance with
generally accepted accounting principles in the United States
("GAAP") consistently applied throughout such periods (other than as
set forth on Schedule C hereto). Such pro forma financial
statements have been prepared on a basis consistent with such
historical statements, except for the pro forma adjustments
specified therein, and give effect to assumptions made on a
reasonable basis. The other financial and statistical information
and data included in the Offering Memorandum, historical and pro
forma, are, in all material respects, prepared on a basis consistent
with such financial statements and the books and records of Holding,
the Company and the Subsidiaries, as the case may be.
(t) Subsequent to the respective dates as of which
information is given in the Offering Memorandum and up to the
Closing Date (except as disclosed in the Offering Memorandum),
neither Holding, the Company nor any of the Subsidiaries has
incurred any liabilities or obligations, direct or contingent, which
are material, individually or in the aggregate, to Holding, the
Company or any Subsidiary, nor entered into any transaction not in
the ordinary course of business and there has not been, singly or in
the aggregate, any material adverse change, or any development which
may reasonably be expected to involve a material adverse change, in
the properties, business, results of operations, condition
(financial or otherwise), affairs or prospects of Holding, the
Company or any Subsidiary (each, a "MATERIAL ADVERSE CHANGE").
(u) All tax returns required to be filed by Holding, the
Company or any of the Subsidiaries in any jurisdiction have been
filed, other than those filings being contested in good faith, and
all material taxes, including withholding taxes, penalties and
interest, assessments, fees and other charges due or claimed to be
due from such entities have been paid, other than those being
contested in good faith and for which adequate reserves have been
provided or those currently payable without penalty or interest.
(v) No authorization, approval or consent or order of, or
filing with, any court or governmental body or agency is necessary
in connection with the Transaction or the transactions contemplated
by this Agreement, except such as may be required by the NASD, the
Trust Indenture Act of 1939, as amended (the "TIA"), or the Act, or
have been obtained and made under state securities or Blue Sky laws
or regulations. No consents or waivers from any person under any
bond, debenture, note, indenture, mortgage, deed of trust or other
agreement or instrument are required to consummate the transactions
contemplated by this Agreement, the Notes, the Note Guarantees, the
Indenture and the Registration Rights Agreement or the Offering
Memorandum, except for such consents or waivers which have been, or
will be, obtained prior to the Closing Date.
(w) (i) Each of Holding, the Company and the Subsidiaries has
all certificates, consents, exemptions, orders, permits, licenses,
authorizations or other approvals (each, an "AUTHORIZATION") of and
from, and has made all declarations and filings with, all federal,
state, local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, necessary or
required to own, lease, license and use its properties and assets
and to engage in the business currently conducted by it, except as
such are described in the Offering Memorandum or to the extent that
the failure to obtain or file would not, singly or in the aggregate,
have a Material Adverse Effect, (ii) all such Authorizations are
valid and in full force and effect and (iii) Holding, the Company
and the Subsidiaries are in compliance in all material respects with
the terms and conditions of all such Authorizations that have been
obtained thereby and with the rules and regulations of the
regulatory authorities and governing bodies having jurisdiction with
respect thereto. Neither Holding, the Company nor any Subsidiary
believes that any governmental body or agency is considering
limiting, suspending or revoking any such material license,
certificate, permit, authorization, approval, franchise or right.
(x) Neither Holding, the Company nor any of the Subsidiaries
is (i) an "investment company" or a company "controlled" by an
investment company within the meaning of the Investment Company Act
of 1940, as amended, or (ii) a "holding company" or a "subsidiary
company" of a holding company or an "affiliate" thereof within the
meaning of the Public Utility Holding Company Act of 1935, as
amended.
(y) No holder of any security of Holding, the Company or any
of the Subsidiaries has or will have any right to require the
registration of such security by virtue of any transaction
contemplated by this Agreement.
(z) There are no contracts, agreements or understandings
between Holding, the Company or any of the Subsidiaries and any
person (other than the Initial Purchaser) that would give rise to a
valid claim against Holding, the Company, the Subsidiaries or the
Initial Purchaser for a brokerage commission, finder's fee or like
payment in connection with the issuance, purchase and sale of the
Notes.
(aa) Holding, the Company and the Subsidiaries possess all
material patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks and trade names
(collectively, "INTELLECTUAL PROPERTY") presently employed by them
in connection with the businesses now operated by them, and, except
as set forth in the Offering Memorandum, neither Holding, the
Company nor any Subsidiary has received any notice of infringement
of or conflict with asserted rights of others with respect to the
foregoing.
(bb) Holding, the Company and the Subsidiaries each maintain
a system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in
accordance with management's general or specific authorizations,
(ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with GAAP and to maintain asset
accountability, (iii) access to assets is permitted only in
accordance with management's general or specific authorization and
(iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(cc) The present fair saleable value of the assets of each of
the Company and the Guarantors exceeds the amount that will be
required to be paid on or in respect of the existing debts and other
liabilities (including contingent liabilities) of each such person
as they become absolute and matured. The assets of each of the
Company and the Guarantors do not constitute unreasonably small
capital to carry out their businesses as conducted or as proposed to
be conducted. Neither the Company nor any of the Guarantors
intends to, nor does it believe that it will, incur debts beyond its
ability to pay such debts as they mature. Upon the issuance of the
Series B Notes, the present fair saleable value of the assets of
each of the Company and the Guarantors will exceed the amount that
will be required to be paid on or in respect of the existing debts
and other liabilities (including contingent liabilities) of such
person as they become absolute and matured. The assets of each of
the Company and the Guarantors, upon the issuance of the Series B
Notes, will not constitute unreasonably small capital to carry out
their businesses as now conducted, including the capital needs of
each of the Company and the Guarantors, taking into account the
projected capital requirements and capital availability of each of
the Company and the Guarantors.
(dd) None of Holding, the Company, the Subsidiaries or any
agent thereof acting on the behalf of any of them has taken, and
none of them will take, any action that might cause this Agreement,
any of the other Operative Documents or the issuance or sale of the
Series B Notes to violate Regulation G (12 C.F.R. Part 207),
Regulation T (12 C.F.R. Part 220), Regulation U (12 C.F.R. Part 221)
or Regulation X (12 C.F.R. Part 224) of the Board of Governors of
the Federal Reserve System.
(ee) Holding, the Company and each Subsidiary maintains
insurance covering their properties, operations, personnel and
businesses. Such insurance insures against such losses and risks as
are adequate in accordance with customary industry practice to
protect Holding, the Company and the Subsidiaries and their
businesses. Neither Holding, the Company nor any Subsidiary has
received notice from any insurer or agent of such insurer that
substantial capital improvements or other expenditures will have to
be made in order to continue such insurance. All such insurance is
outstanding and duly in force on the date hereof and will be
outstanding and duly in force on the Closing Date.
(ff) When the Series B Notes and Note Guarantees are issued
and delivered pursuant to this Agreement, neither the Series B Notes
nor the Note Guarantees will be of the same class (within the
meaning of Rule 144A under the Act) as securities of the Company or
the Guarantors that are listed on a national securities exchange
registered under Section 6 of the Exchange Act or that are quoted in
a United States automated inter-dealer quotation system.
(gg) Assuming (i) that your representations and warranties in
Section 6 are true, (ii) compliance by you with your covenants set
forth in Section 8 and (iii) that each of the Eligible Purchasers is
a QIB, the purchase and resale of the Series B Notes pursuant hereto
(including pursuant to the Exempt Resales) is exempt from the
registration requirements of the Act. No form of general
solicitation or general advertising was used by the Company, the
Guarantors or any of their representatives (other than you, as to
whom the Company and the Guarantors make no representation) in
connection with the offer and sale of the Series B Notes, including,
but not limited to, articles, notices or other communications
published in any newspaper, magazine, or similar medium or broadcast
over television or radio, or any seminar or meeting whose attendees
have been invited by any general solicitation or general
advertising. No securities of the same class as the Series B Notes
have been issued and sold by the Company within the six-month period
immediately prior to the date hereof.
(hh) Set forth on Schedule D hereto is a list of each
employee pension or benefit plan with respect to which the Company
or any corporation considered an affiliate of the Company within the
meaning of Section 407(d)(7) of ERISA (an "AFFILIATE") is a party in
interest or disqualified person. The execution and delivery of this
Agreement, the other Operative Documents and the sale of the Series
B Notes to be purchased by the Eligible Purchasers will not involve
any prohibited transaction within the meaning of Section 406 of
ERISA or Section 4975 of the Code. The representation made by the
Company and the Guarantors in the preceding sentence is made in
reliance upon and subject to the accuracy of, and compliance with,
the representations and covenants made or deemed made by the
Eligible Purchasers as set forth in the Offering Memorandum under
the Section entitled "Notice to Investors."
(ii) The Offering Memorandum as of its date, and each
amendment or supplement thereto, as of its date, contains the
information specified in, and meets the requirements of Rule
144A(d)(4) of the Act.
(jj) Except as disclosed in the Offering Memorandum, there
are no business relationships or related party transactions required
to be disclosed therein pursuant to Item 404 of Regulation S-K of
the Commission (assuming for purposes of this paragraph 5(jj) that
Regulation S-K is applicable to the Offering Memorandum).
(kk) Prior to the effectiveness of any Registration
Statement, the Indenture is not required to be qualified under the
TIA.
6. INITIAL PURCHASER'S REPRESENTATIONS AND WARRANTIES.
The Initial Purchaser represents and warrants to the Company
and the Guarantors that:
(a) The Initial Purchaser is either a QIB or an accredited
investor (as defined in Rule 501(a)(1), (2), (3) or (7) under the
Act), in either case with such knowledge and experience in financial
and business matters as are necessary in order to evaluate the
merits and risks of an investment in the Series B Notes.
(b) The Initial Purchaser (i) is not acquiring the Series B
Notes with a view to any distribution thereof or with any present
intention of offering or selling any of the Series B Notes in a
transaction that would violate the Act or the securities laws of any
State of the United States or any other applicable jurisdiction and
(ii) will be reoffering and reselling the Series B Notes only to
QIBs in reliance on the exemption from the registration requirements
of the Act provided by Rule 144A.
(c) The Initial Purchaser also understands that the Company
and the Guarantors and, for purposes of the opinions to be delivered
to you pursuant to Sections 8(f) and 8(g) hereof, each of O'Sullivan
Graev & Karabell, LLP and Latham & Watkins, will rely upon the
accuracy and truth of the foregoing representations and you hereby
consent to such reliance.
(d) The Initial Purchaser further agrees that, in connection
with the Exempt Resales, the Initial Purchaser will solicit offers
to buy the Series B Notes only from, and will offer to sell the
Series B Notes only to, the Eligible Purchasers. You further agree
that you will offer to sell the Series B Notes only to, and will
solicit offers to buy the Series B Notes only from, persons who in
purchasing such Series B Notes will be deemed to have represented
and agreed (1) if such Eligible Purchaser is a QIB, that they are
purchasing the Series B Notes for their own account or an account
with respect to which they exercise sole investment discretion and
that they or such accounts are QIBs, (2) that such Series B Notes
will not have been registered under the Act and may be resold,
pledged or otherwise transferred, only (A) (I) to a person who the
seller reasonably believes is a "qualified institutional buyer"
within the meaning of Rule 144A under the Act in a transaction
meeting the requirements of Rule 144A, or in accordance with Rule
144 under the Act, or pursuant to another exemption from the
registration requirements of the Act (and based upon an opinion of
counsel if the Company and the Guarantors so request) or (II) to the
Company and (B) in each case, in accordance with any applicable
securities laws of any State of the United States or any other
applicable jurisdiction, (3) that the holder will, and each
subsequent holder is required to, notify any purchaser from it of
the security evidenced thereby of the resale restrictions set forth
in (2) above.
7. INDEMNIFICATION.
(a) The Company and each Guarantor (the "INDEMNIFYING
PARTIES") agree to indemnify and hold harmless (i) the Initial
Purchaser, (ii) each person, if any, who controls (within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act)
the Initial Purchaser (any of the persons referred to in this clause
(ii) being hereinafter referred to as a "CONTROLLING PERSON") and
(iii) the respective officers, directors, partners, employees,
representatives and agents of the Initial Purchaser or any
controlling person (any person referred to in clause (i), (ii) or
(iii) may hereinafter be referred to as an "INDEMNIFIED PERSON") to
the fullest extent lawful, from and against any and all losses,
claims, damages, liabilities, judgments, actions and expenses
(including without limitation and as incurred, reimbursement of all
reasonable costs of investigating, preparing or defending any claim
or action, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, including the reasonable
fees and expenses of counsel to any Indemnified Person) directly or
indirectly caused by, related to, based upon, arising out of or in
connection with any untrue statement or alleged untrue statement of
a material fact contained in the Offering Memorandum (or any
amendment or supplement thereto) or any omission or alleged omission
to state therein a material fact required to be stated therein or
necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, except
insofar as such losses, claims, damages, liabilities or expenses are
caused by an untrue statement or omission or alleged untrue
statement or omission that is made in reliance upon and in
conformity with information relating to the Initial Purchaser
furnished in writing to the Company and the Guarantors by the
Initial Purchaser expressly for use in the Offering Memorandum (or
any amendment or supplement thereto); provided, however, that the
foregoing indemnity shall not inure to the benefit of the Initial
Purchaser from whom the person asserting any such losses, claims,
damages, liabilities, judgments, actions or expenses purchased
Notes, or any controlling person of the Initial Purchaser, if a copy
of the Offering Memorandum (including any amendment or supplement
thereto delivered to the Initial Purchaser prior to the date such
Offering Memorandum was sent or given to such purchaser) was not
sent or given by or on behalf of the Initial Purchaser to such
person at or prior to the written confirmation of the sale of Notes
to such person, and if the Offering Memorandum (including any
amendment or supplement thereto delivered to the Initial Purchaser
prior to the date such Offering Memorandum was sent or given to such
purchaser) cured the defect giving rise to such losses, claims,
damages, liabilities, judgments, actions or expenses. The
Indemnifying Parties shall notify you promptly of the institution,
threat or assertion of any claim, proceeding (including any
governmental investigation) or litigation in connection with the
matters addressed by this Agreement which involves the Indemnifying
Parties or an Indemnified Person.
(b) In case any action or proceeding (including any
governmental investigation) shall be brought or asserted against any
of the Indemnified Persons with respect to which indemnity may be
sought against the Indemnifying Parties, such Indemnified Person (or
the entity controlled by such controlling person) shall promptly
notify the Company in writing (provided that the failure to give
such notice shall not relieve the Indemnifying Parties of their
obligations pursuant to this Agreement unless such failure to notify
has materially prejudiced the ability of the Indemnifying Parties to
defend any such claim) and the Indemnifying Parties shall assume the
defense thereof, including the employment of counsel reasonably
satisfactory to the Indemnified Parties and payment of all
reasonable fees and expenses. Such Indemnified Person shall have
the right to employ its own counsel in any such action and
participate in the defense thereof, but the fees and expenses of
such counsel shall be at the Indemnified Party's expense unless (i)
the employment of such counsel has been specifically authorized in
writing by the Company, (ii) the Indemnifying Parties have not
assumed the defense and employed counsel reasonably satisfactory to
such Indemnified Party within a reasonable time after notice of
commencement of such action or proceeding or (iii) the named parties
to any such action or proceeding (including any impleaded parties)
include both an Indemnified Party and any Indemnifying Party and any
such Indemnified Party shall have been advised by such counsel that
there may be one or more legal defenses available to it which are
different from or additional to those available to the Indemnifying
Parties (in which case the Indemnifying Parties shall not have the
right to assume the defense of such action on behalf of the
Indemnified Parties, it being understood, however, that the
Indemnifying Parties shall not, in connection with any one such
action or separate but substantially similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys (in addition to any local
counsel) at any time for such Indemnified Persons, which firm shall
be designated by the Initial Purchaser). The Indemnifying Parties
shall be liable for any settlement of any such action or proceeding
effected with the Indemnifying Parties' prior written consent, which
consent will not be unreasonably withheld, and the Indemnifying
Parties agree to indemnify and hold harmless any Indemnified Person
from and against any loss, claim, damage, liability or expense by
reason of any settlement of any action effected with the written
consent of the Indemnifying Parties. If at any time the Indemnified
Person shall have requested the Indemnifying Parties to reimburse
the Indemnified Person for fees and expenses of counsel as
contemplated by the second sentence of this paragraph in connection
with any such action or proceeding, the Indemnifying Parties agree
that they shall be liable for any settlement of any proceeding
effected without their written consent so long as they receive
written notice of such settlement if (i) such settlement is entered
into more than ninety business days after receipt by such
Indemnifying Parties of the aforesaid request and (ii) such
Indemnifying Parties shall not have reimbursed the Indemnified Party
in accordance with such request prior to the date of such
settlement. The Indemnifying Parties shall not, without the prior
written consent of each Indemnified Person, which will not be
unreasonably withheld, settle or compromise or consent to the entry
of a judgment in or otherwise seek to terminate any pending or
threatened action, claim, litigation or proceeding in respect of
which indemnification or contribution may be sought hereunder
(whether or not any Indemnified Person is a party thereto), unless
such settlement, compromise, consent or termination includes an
unconditional release of each Indemnified Person from all liability
arising out of such action, claim, litigation or proceeding.
(c) The Initial Purchaser agrees to indemnify and hold
harmless the Company and the Guarantors, their respective directors
and officers, any person controlling (within the meaning of Section
15 of the Act or Section 20 of the Exchange Act) the Company or the
Guarantors, and the officers, directors, partners, employees,
representatives and agents of each such person to the same extent as
the foregoing indemnity from the Indemnifying Parties to each of the
Indemnified Persons, but only with respect to claims and actions
based on information relating to the Initial Purchaser furnished in
writing by the Initial Purchaser expressly for use in the Offering
Memorandum.
(d) If the indemnification provided for in this Section 7 is
unavailable to a party entitled to indemnification pursuant to
Section 7(b) or (c) in respect of any losses, claims, damages,
liabilities or expenses referred to herein, then each indemnifying
party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities, expenses
and judgments (i) in such proportion as is appropriate to reflect
the relative benefits received by the indemnifying party (or
parties, as applicable) on the one hand and the indemnified party
(or parties, as applicable) on the other hand from the offering of
the Series B Notes or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the indemnifying
party (or parties, as applicable) and the indemnified party (or
parties, as applicable), as well as any other relevant equitable
considerations. The relative benefits received by the Company and
the Guarantors, on the one hand, and the Initial Purchaser, on the
other hand, shall be deemed to be in the same proportion as the
total proceeds from the offering (net of discounts and commissions
but before deducting expenses) received by the Company and the
Guarantors bear to the total discounts and commissions received by
the Initial Purchaser, in each case as set forth in the table on the
cover page of the Offering Memorandum. The relative fault of the
Company and the Guarantors, on the one hand, and the Initial
Purchaser, on the other hand, shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a
material fact related to information supplied by the Company or the
Guarantors, on the one hand, or the Initial Purchaser, on the other
hand, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The indemnity and contribution obligations of the Company
and the Guarantors set forth herein shall be in addition to any
liability or obligation the Company and the Guarantors may otherwise
have to any Indemnified Person.
The Company and the Guarantors and the Initial Purchaser agree
that it would not be just and equitable if contribution pursuant to
this Section 7(d) were determined by pro rata allocation or by any
other method of allocation which does not take account of the
equitable considerations referred to in this Section 7(d). The
amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities, expenses or judgments referred
to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7(d), the Initial
Purchaser (and its related Indemnified Persons) shall not be
required to contribute, in the aggregate, any amount in excess of
the amount by which the total discount received by the Initial
Purchaser applicable to the Series B Notes purchased by the Initial
Purchaser exceeds the amount of any damages which the Initial
Purchaser has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
8. CONDITIONS OF THE INITIAL PURCHASER'S OBLIGATIONS.
The obligations of the Initial Purchaser to purchase the Series
B Notes under this Agreement are subject to the satisfaction of each of
the following conditions:
(a) All the representations and warranties of the Company and
the Guarantors contained in this Agreement shall be true and correct
in all material respects (other than those representations and
warranties that are qualified by a reference to materiality, which
shall be true and correct in all respects) on the Closing Date with
the same force and effect as if made on and as of the date hereof
and the Closing Date, respectively. The Company and the Guarantors
shall have performed or complied with in all material respects all
of their obligations and agreements herein contained (other than
those obligations and agreements that are qualified by a reference
to materiality, which shall be performed or complied with in all
respects) and required to be performed or complied with by them at
or prior to the Closing Date.
(b) No stop order suspending the sale of the Series B Notes
in any jurisdiction referred to in Section 4(e) shall have been
issued and no proceeding for that purpose shall have been commenced
or shall be pending or threatened.
(c) (i) No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by
any governmental agency which would, as of the Closing Date, prevent
the issuance of the Series B Notes; (ii) no injunction, restraining
order or order of any nature by a federal or state court of
competent jurisdiction shall have been issued as of the Closing Date
which would prevent the issuance of the Series B Notes; and (iii) on
the Closing Date no action, suit or proceeding shall be pending
against or affecting or, to the knowledge of the Company and the
Guarantors, threatened against, Holding, the Company or any
Subsidiary before any court or arbitrator or any governmental body,
agency or official which, if adversely determined, would prohibit
the issuance of the Series B Notes except as disclosed in the
Offering Memorandum.
(d) (i) Since the date hereof or since the dates as of which
information is given in the Offering Memorandum, there shall not
have been any Material Adverse Change, (ii) since the date of the
latest balance sheet included in the Offering Memorandum, there
shall not have been any material change in the capital stock or
long-term debt, or material increase in short-term debt, of Holding,
the Company or any of the Subsidiaries (other than as disclosed in
the Offering Memorandum) and (iii) Holding, the Company and the
Subsidiaries shall have no liability or obligation, direct or
contingent, that is material to Holding, the Company and the
Subsidiaries taken as a whole and is required to be disclosed on a
balance sheet in accordance with GAAP and is not disclosed on the
latest balance sheet included in the Offering Memorandum.
(e) You shall have received certificates, dated the Closing
Date, signed by (i) the President or any Vice President or any other
executive officer and (ii) a principal financial or accounting
officer of the Company and each of the Guarantors confirming, as of
the Closing Date, the matters set forth in paragraphs (a), (b), (c)
and (d) of this Section 8.
(f) On the Closing Date, you shall have received an opinion
(satisfactory to you and your counsel), dated the Closing Date, of
O'Sullivan Graev & Karabell, LLP, counsel for the Company and the
Guarantors, to the effect that:
(i) Holding, the Company and each of the Subsidiaries is
a duly organized and validly existing corporation in good
standing under the laws of its jurisdiction of incorporation,
has the requisite corporate power and authority to own, lease
and operate its properties and to conduct its business as it is
currently being conducted and described in the Offering
Memorandum, and is duly qualified as a foreign corporation and
is in good standing in each jurisdiction listed on a schedule
attached to the opinion;
(ii) Each of the Company and the Guarantors has all
necessary corporate power and authority to execute and deliver
this Agreement, the Series B Notes, the Note Guarantees, the
Indenture and the Registration Rights Agreement, as applicable,
and to perform its obligations under this Agreement, the
Indenture and the Registration Rights Agreement and to
authorize, issue, sell and deliver the Series B Notes and the
Note Guarantees, as applicable, as contemplated by this
Agreement;
(iii) Each of this Agreement, the Series B Notes, the
Note Guarantees, the Registration Rights Agreement and the
Indenture has been duly authorized, executed and delivered by
the Company and the Guarantors, as applicable;
(iv) When authenticated in accordance with the terms of
the Indenture and delivered to and paid for by you in
accordance with the terms of this Agreement, the Series B Notes
will constitute valid and legally binding obligations of the
Company, enforceable against the Company in accordance with
their terms and entitled to the benefits of the Indenture,
subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws
affecting creditors' rights and remedies generally and to
general principles of equity (regardless of whether enforcement
is sought at law or in equity);
(v) When the Series B Notes are executed and
authenticated in accordance with the terms of the Indenture,
each of the Notes Guarantees endorsed thereon will constitute
valid and legally binding obligations of the respective
Guarantor, enforceable against each such Guarantor in
accordance with its terms and entitled to the benefits of the
Indenture, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar
laws affecting creditors' rights and remedies generally and to
general principles of equity (regardless of whether enforcement
is sought at law or in equity).
(vi) The Series C Notes and the note guarantees to be
endorsed thereon have been duly authorized by the Company and
each of the Guarantors, as the case may be;
(vii) The Indenture, assuming due authorization,
execution and delivery thereof by the Trustee, constitutes a
valid and legally binding agreement of the Company and each of
the Guarantors, enforceable against each of them in accordance
with its terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar
laws affecting creditors' rights and remedies generally and to
general principles of equity (regardless of whether enforcement
is sought at law or in equity);
(viii) The Notes, the Note Guarantees, the Indenture and
the Registration Rights Agreement conform to the descriptions
thereof contained in the Offering Memorandum in all material
respects;
(ix) All of the issued and outstanding shares of capital
stock of, or other ownership interests in, each Subsidiary have
been duly and validly authorized and issued and are fully paid
and nonassessable. All of the shares of capital stock of, or
other ownership interests in, each Subsidiary are owned,
directly or through Subsidiaries, by the Company;
(x) To the best knowledge of such counsel, there are no
outstanding subscriptions, rights, warrants, options, calls,
convertible securities, commitments of sale or Liens related to
or entitling any person to purchase or otherwise to acquire any
shares of the capital stock of, or other ownership interest in,
any Subsidiary (other than those Liens created pursuant to the
Credit Facility (as defined in the Offering Memorandum));
(xi) Neither Holding, the Company nor any of the
Subsidiaries is (a) an "investment company" or a company
"controlled" by an investment company within the meaning of the
Investment Company Act of 1940, as amended, or (b) a "holding
company" or a "subsidiary company" of a holding company or an
"affiliate" thereof within the meaning of the Public Utility
Holding Company Act of 1935, as amended;
(xii) The descriptions in the Offering Memorandum of
statutes, legal and governmental proceedings, and contracts and
other documents are accurate in all material respects; it being
understood that such counsel need express no opinion as to the
financial statements, notes or schedules or other financial
data included therein;
(xiii) To the knowledge of such counsel: (a) no action
has been taken and no statute, rule or regulation or order has
been enacted, adopted or issued by any governmental agency or
body which prevents the issuance of the Series B Notes or the
Notes Guarantees, and such counsel has received no notice which
suspends the sale of the Series B Notes or the Notes
Guarantees; (b) no injunction, restraining order or order of
any nature by a federal or state court of competent
jurisdiction has been issued with respect to Holding, the
Company or any of the Subsidiaries which would prevent or
suspend the issuance or sale of the Series B Notes or the Notes
Guarantees, and such counsel has not received notice which
prevents or suspends the use of the Offering Memorandum in any
jurisdiction referred to in Section 4(e) hereof; and (c) no
action, suit or proceeding is pending against or threatened
against or affecting Holding, the Company or any of the
Subsidiaries before any court or arbitrator or any governmental
body, agency or official, domestic or foreign, which, if
adversely determined, would prevent the issuance of the Series
B Notes or the Notes Guarantees;
(xiv) Except as may be required under state securities or
"Blue Sky" laws or regulations or by the NASD, as to which such
counsel expresses no opinion, no authorization, approval,
consent or order of, or filing with, any court or governmental
body or agency is required for the consummation of the
transactions contemplated by this Agreement, except such as
have been obtained and made under the Act; no consents or
waivers from any person under any bond, debenture, note,
indenture, mortgage, deed of trust or other agreement or
instrument that is listed on a schedule to the opinion are
required to consummate the transactions contemplated by this
Agreement or the other Operative Documents, except for any
consent or waiver which has been obtained on or prior to the
Closing Date;
(xv) On the Closing Date, the Offering Memorandum (except
for financial statements, the notes thereto and related
schedules and other financial data included therein, or omitted
therefrom, as to which no opinion need be expressed) complied
as to form in all material respects with Rule 144A(d)(4) of the
Act;
(xvi) To the best knowledge of such counsel, other than
as set forth on Schedule B to this Agreement, neither Holding,
the Company nor any of the Subsidiaries is in violation of its
respective charter or bylaws or in default in the performance
of any obligation, agreement or condition contained in any
agreement or instrument listed on a schedule to the opinion; to
the best knowledge of such counsel, there exists no condition
which, with notice, the passage of time or otherwise, would
constitute a default under any such document or instrument;
(xvii) The execution and delivery of this Agreement and
the other Operative Documents, the issuance and sale of the
Series B Notes and the Note Guarantees, the performance of this
Agreement and the other Operative Documents, compliance by the
Company and the Guarantors with the provisions hereof and
thereof and of the Series B Notes and the Note Guarantees, the
consummation of the transactions contemplated hereby and
thereby and the payments described in the Offering Memorandum
under the caption "Use of Proceeds," in each case, as
applicable, will not result in a breach or violation of any of
the respective charters or bylaws of Holding, the Company or
any of the Subsidiaries or any of the terms or provisions of,
or constitute a default or cause an acceleration of any
obligation under, or result in the imposition or creation of
(or the obligation to create or impose) a Lien with respect to,
any agreement or instrument listed on a schedule to the
opinion, or, to the knowledge of such counsel, contravene any
order of any court or governmental agency or body having
jurisdiction over Holding, the Company or any of the
Subsidiaries or any of their properties, or violate any
statute, rule or regulation or administrative or court decree
applicable to Holding, the Company or any of the Subsidiaries,
or any of their respective properties;
(xviii) The Registration Rights Agreement constitutes a
valid and legally binding agreement of the Company and each
Guarantor, enforceable against each of them in accordance with
its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to
or affecting creditors' rights generally, and to general
equitable principles (regardless of whether considered in a
proceeding in equity or at law) and, to the extent the
Registration Rights Agreement provides for rights of
indemnification and contribution, subject to the limitations of
applicable law;
(xix) When the Series B Notes are issued and delivered
pursuant to the Purchase Agreement, such Series B Notes will
not be of the same class (within the meaning of Rule 144A under
the Act) as securities of the Company that are listed on a
national securities exchange registered under Section 6 of the
Exchange Act or that are quoted in a United States automated
inter-dealer quotation system;
(xx) No registration under the Act of the Series B Notes
is required for the sale of the Series B Notes to you as
contemplated hereby or for the Exempt Resales (assuming,
without independent investigation, (A) that each of the
Eligible Purchasers who buy the Series B Notes in the Exempt
Resales are QIBs; (B) your representations and agreements
relating to the absence of general solicitation are accurate
and will be complied with; (C) the Company's and the
Guarantors' representations and agreements relating to (1)
whether the Notes are of the same class as other securities of
the Company that are listed on a national securities exchange
registered under Section 6 of the Exchange Act or quoted in a
U.S. automated inter-dealer quotation system, (2) whether any
form of general solicitation was used by the Company or the
Guarantors, (3) other offerings of securities of the same class
as the Notes and (4) whether the Offering Memorandum contains
all the information specified in, and meeting the requirements
of, Rule 144A(d)(4) under the Act are accurate; (D) each of the
Eligible Purchasers to whom the Initial Purchaser initially
resells the Series B Notes receives a copy of the Offering
Memorandum at or prior to delivery of a confirmation of such
sale, if delivery of the Offering Memorandum is required by
applicable law; and (E) that the certificates representing the
Series B Notes will bear the legend specified herein);
(xxi) Prior to the Exchange Offer or the effectiveness of
the Shelf Registration Statement, the Indenture is not required
to be qualified under the TIA; and
(xxii) The Offering Memorandum, as of its date, and each
amendment or supplement thereto, as of its date, contained the
information specified in, and meets the requirements of Rule
144A(d)(4) of the Act.
The opinions set forth in paragraphs (ix) and (x) will be based
solely on a review of stock records and other specified corporate record
books of Holding, the Company and its Subsidiaries and applicable law.
The opinion of O'Sullivan Graev & Karabell, LLP shall be
rendered to you at the request of the Company and the Guarantors and
shall so state therein.
In giving their opinion required by this subsection 8(f),
O'Sullivan Graev & Karabell, LLP shall additionally state that such
counsel has participated in conferences with officers and other
representatives of the Company and the Guarantors, representatives of the
independent public accountants for the Company and the Guarantors, your
representatives and your counsel in connection with the preparation of
the Offering Memorandum, although such counsel has not independently
verified the accuracy, completeness or fairness of such statements
(except as indicated above); and such counsel advises you that, on the
basis of the foregoing, no facts came to such counsel's attention that
caused such counsel to believe that the Offering Memorandum (as amended
or supplemented), as of its date and the Closing Date, contained an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (it being
understood that such counsel need express no opinion nor express any
statement or belief with respect to the financial statements and
schedules and other financial and data included in, or omitted from, the
Offering Memorandum or any supplement or amendment thereto).
(g) You shall have received an opinion, dated the Closing
Date, of Latham & Watkins, counsel for the Initial Purchaser, in
form and substance reasonably satisfactory to you.
(h) You shall have received letters on and as of the date
hereof as well as on and as of the Closing Date (in the latter case
constituting an affirmation of the statements set forth in the
former), in form and substance satisfactory to you, from Ernst &
Young, LLP, independent auditors, with respect to the financial
statements and certain financial information contained in the
Offering Memorandum relating to Holding, the Company and the
Subsidiaries.
(i) Latham & Watkins shall have been furnished with such
documents and opinions, in addition to those set forth above, as
they may reasonably require for the purpose of enabling them to
review or pass upon the matters referred to in this Section 8 and in
order to evidence the accuracy, completeness or satisfaction in all
material respects of any of the representations, warranties or
conditions herein contained.
(j) Prior to the Closing Date, the Company and the Guarantors
shall have furnished to you such further information, certificates
and documents as you may reasonably request.
(k) The Company, the Guarantors and the Trustee shall have
entered into the Indenture and you shall have received counterparts,
conformed as executed, thereof.
(l) The Company, the Guarantors and you shall have entered
into the Registration Rights Agreement, and you shall have received
counterparts, conformed as executed thereof.
(m) The Offering Memorandum shall have been distributed to
you not later than 5:00 P.M., New York City time, on August 20,
1998, or at such later date and time as you may approve in writing.
All opinions, certificates, letters and other documents
required by this Section 8 to be delivered by the Company and the
Guarantors will be in compliance with the provisions hereof only if they
are reasonably satisfactory in form and substance to you. The Company
and the Guarantors will furnish the Initial Purchaser with such conformed
copies of such opinions, certificates, letters and other documents as it
shall reasonably request.
9. EFFECTIVE DATE OF AGREEMENT AND TERMINATION.
(a) This Agreement shall become effective upon the execution
and delivery of this Agreement by the parties hereto.
(b) This Agreement may be terminated at any time on or prior
to the Closing Date by you by notice to the Company if any of the
following has occurred: (i) subsequent to the date of the Offering
Memorandum or of this Agreement, any Material Adverse Change which,
in the judgment of the Initial Purchaser, materially impairs the
investment quality of the Series B Notes; (ii) any outbreak or
escalation of hostilities or other national or international
calamity or crisis or material adverse change in the financial
markets of the United States or elsewhere, or any other substantial
national or international calamity or emergency if the effect of
such outbreak, escalation, calamity, crisis or emergency would, in
the judgment of the Initial Purchaser, make it impracticable or
inadvisable to market the Series B Notes or to enforce contracts for
the sale of the Series B Notes; (iii) any suspension or limitation
of trading generally in securities on the New York Stock Exchange,
the American Stock Exchange or in the over-the-counter markets or
any setting of minimum prices for trading on such exchange or
markets; (iv) any declaration of a general banking moratorium by
either federal or New York authorities; (v) the taking of any action
by any federal, state or local government or agency in respect of
its monetary or fiscal affairs that, in the judgment of the Initial
Purchaser, has a material adverse effect on the financial markets in
the United States and would, in the judgment of the Initial
Purchaser, make it impracticable or inadvisable to market the Series
B Notes or to enforce contracts for the sale of the Series B Notes;
or (vi) the enactment, publication, decree, or other promulgation of
any federal or state statute, regulation, rule or order of any court
or other governmental authority which, in your judgment, materially
and adversely affect, or will materially and adversely affect, the
business or operations of the Company and the Guarantors.
(c) The indemnities and contribution provisions and other
agreements, representations and warranties of the Company and the
Guarantors, their respective officers and directors and of the
Initial Purchaser set forth in or made pursuant to this Agreement
shall remain operative and in full force and effect, and will
survive delivery of and payment for the Series B Notes, regardless
of (i) any investigation, or statement as to the results thereof,
made by or on behalf of the Initial Purchaser or by or on behalf of
the Company and the Guarantors, the officers or directors of the
Company and the Guarantors or any controlling person of the Company
and the Guarantors, (ii) acceptance of the Series B Notes and
payment for them hereunder and (iii) termination of this Agreement.
(d) If this Agreement shall be terminated by the Initial
Purchaser pursuant to clause (i) of paragraph (b) of this Section 9
or because of the failure or refusal on the part of the Company or
any Guarantors to comply with the terms or to fulfill any of the
conditions of this Agreement, the Company and each of the Guarantors
agree to reimburse you for all out-of-pocket expenses (including the
fees and disbursements of counsel) incurred by you. Notwithstanding
any termination of this Agreement, the Company and each of the
Guarantors shall be liable for all expenses which it has agreed to
pay pursuant to Section 4(f) hereof.
(e) Except as otherwise provided, this Agreement has been and
is made solely for the benefit of and shall be binding upon the
Company, the Guarantors, the Initial Purchaser, any Indemnified
Person referred to herein and their respective successors and
assigns, all as and to the extent provided in this Agreement, and no
other person shall acquire or have any right under or by virtue of
this Agreement. The terms "successors and assigns" shall not
include a purchaser of any of the Notes from the Initial Purchaser
merely because of such purchase.
10. NOTICES.
Notices given pursuant to any provision of this Agreement shall
be addressed as follows: (a) if to the Company or any Guarantor, to
Berry Plastics Corporation, 101 Oakley Street, P.O. Box 959, Evansville,
Indiana 47710-0959, Attention: James M. Kratochvil, with a copy to
O'Sullivan Graev & Karabell, LLP, 30 Rockefeller Plaza, New York, New
York 10112, Attention: Michael Joseph O'Brien, and (b) if to the Initial
Purchaser, to 277 Park Avenue, New York, New York 10172, Attention:
Glenn Tongue, with a copy to Latham & Watkins, 885 Third Avenue, New
York, New York 10022, Attention: Philip E. Coviello, or in any case to
such other address as the person to be notified may have requested in
writing.
11. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK AS APPLIED TO CONTRACTS
MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK.
12. SUCCESSORS.
This Agreement will inure to the benefit of and be binding upon
the parties hereto and their respective successors and the officers and
directors and other persons referred to in Section 5, and no other person
will have any right or obligation hereunder.
[signature page follows]
This Agreement may be signed in various counterparts which
together shall constitute one and the same instrument. Please confirm
that the foregoing correctly sets forth the agreement among the Company,
the Guarantors and you.
[CAPTION]
Very truly yours,
BERRY PLASTICS CORPORATION
By:
Name:
Title:
BPC HOLDING CORPORATION
By:_________________________________
Name:
Title:
BERRY IOWA CORPORATION
By:_________________________________
Name:
Title:
BERRY STERLING CORPORATION
By:_________________________________
Name:
Title:
BERRY TRI-PLAS CORPORATION
By:_________________________________
Name:
Title:
AEROCON, INC.
By:_________________________________
Name:
Title:
PACKERWARE CORPORATION
By:_________________________________
Name:
Title:
BERRY PLASTICS DESIGN CORPORATION
By:_________________________________
Name:
Title:
VENTURE PACKAGING, INC.
By:_________________________________
Name:
Title:
VENTURE PACKAGING MIDWEST, INC.
By:_________________________________
Name:
Title:
VENTURE PACKAGING SOUTHEAST, INC.
By:_________________________________
Name:
Title:
NIM HOLDINGS LIMITED
By:_________________________________
Name:
Title:
NORWICH INJECTION MOULDERS LIMITED
By:_________________________________
Name:
Title:
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By:
Name:
Title:
SCHEDULE A
Subsidiaries
Berry Iowa Corporation
Berry Tri-Plas Corporation
Berry Sterling Corporation
AeroCon, Inc.
PackerWare Corporation
Berry Plastics Design Corporation
Venture Packaging, Inc.
Venture Packaging Midwest, Inc.
Venture Packaging Southeast, Inc.
NIM Holdings Limited
Norwich Injection Moulders Limited
SCHEDULE B
Pursuant to the terms of the Underwriting Agreement dated April 14, 1994
among the Company, Holding, Berry Iowa Corporation, Berry Tri-Plas
Corporation (formerly known as Berry-CPI Plastics Corp.) and Donaldson,
Lufkin & Jenrette Securities Corporation, the Company was obligated to
use the proceeds of the offering of the Units (as defined in the
Underwriting Agreement) to, among other things, purchase the assets of
CPI-Plastics, Inc. and its affiliates (the "CPI TRANSACTION") or, in the
alternative, to pay down certain industrial revenue bonds. The Company
utilized a portion of such proceeds to consummate other acquisitions,
rather than the CPI transaction or the repayment of such debt, and for
other capital expenditures related to such consummated acquisitions.
SCHEDULE C
With respect to the valuation of the outstanding employee stock options,
the Financial Statements contained in the 10-QA filed by Holding as of
May 13, 1996, were not prepared on a consistent basis with Financial
Statements in previously filed SEC Reports.
SCHEDULE D
1. Berry Plastics Corporation Employees 401(k) Retirement Plan.
2. Berry Plastics Health and Welfare Plan, which includes the following
benefits: (a) long term disability income (salaried employees); (b)
long term disability income (hourly employees); (c) short term
disability; (d) group life insurance; (e) vision; and (f) dental.
3. Berry Plastics Corporation Section 125 Plan.
1..Issuance of Securities.
2. Agreements to Sell and Purchase.
3. DELIVERY AND PAYMENT.
4. Agreements of the Company and the Guarantors.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE
GUARANTORS.
6. Initial Purchaser's Representations and Warranties.
7. INDEMNIFICATION.
8. Conditions of the Initial Purchaser's Obligations.
9. EFFECTIVE DATE OF AGREEMENT AND TERMINATION.
10. Notices.
11. GOVERNING LAW.
12. Successors.