Exhibit 10.22
EXECUTION COPY
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PURCHASE AGREEMENT
$105,000,000
12 1/2% Senior Secured Notes due 2006
of
BPC Holding Corporation
June 12, 1996
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
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BPC HOLDING CORPORATION
$105,000,000
12 1/2% Senior Secured Notes due 2006 of
BPC Holding Corporation
PURCHASE AGREEMENT
June 12, 1996
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
277 Park Avenue
New York, New York 10172
Ladies and Gentlemen:
BPC Holding Corporation, a Delaware corporation (the "COMPANY"),
and Berry Plastics Corporation, a Delaware corporation ("BERRY"), agree
with you as follows:
1. ISSUANCE OF SECURITIES. The Company proposes to issue and
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sell to Donaldson, Lufkin & Jenrette Securities Corporation (the "INITIAL
PURCHASER") $105,000,000 in aggregate principal amount of 12 1/2% Senior
Secured Notes due 2006 (the "SENIOR NOTES"). The Senior Notes are to be
issued pursuant to the provisions of an indenture (the "INDENTURE") to be
dated June 18, 1996, between the Company and First Trust of New York,
National Association, as trustee (the "TRUSTEE"). Capitalized terms used
but not defined herein shall have the meanings given to such terms in the
Indenture.
The Senior 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, dated May 31, 1996 (the "PRELIMINARY OFFERING
MEMORANDUM") and a final offering memorandum, dated June 12, 1996 (the
"OFFERING MEMORANDUM"), relating to the Company and the Senior Notes.
Upon original issuance thereof, and until such time as the same
is no longer required under the applicable requirements of the Act, the
Senior 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, OR (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 SO
REQUESTS), (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 Senior Notes purchased by you hereunder on the
terms set forth in the Offering Memorandum, as amended or supplemented,
solely to (i) persons (each, a "144A PURCHASER") whom you reasonably
believe to be "qualified institutional buyers" as defined in Rule 144A
under the Act ("QIBS") and (ii) a limited number of other institutional
"accredited investors," as defined in Rule 501(a) (1), (2), (3) or (7)
under the Act, that make certain representations and agreements to the
Company (each, an "ACCREDITED INVESTOR") (such persons specified in clauses
(i) and (ii) being referred to herein as the "ELIGIBLE PURCHASERS").
Holders (including subsequent transferees) of the Senior 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,
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for so long as such Senior Notes constitute "TRANSFER RESTRICTED
SECURITIES" (as defined in the Registration Rights Agreement). Pursuant to
the Registration Rights Agreement, the Company will agree to file with the
Securities and Exchange Commission (the "COMMISSION") within 45 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 1/2% Series B Senior Secured Notes
due 2006 (the "SERIES B NOTES" and, together with the Senior Notes, the
"NOTES") to be offered in exchange for the Senior 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") relating to the resale by certain
holders of the Senior Notes, and to use its best efforts to cause such
Registration Statements to be declared effective within 90 days of the
Closing Date. This Agreement, the Indenture, the Registration Rights
Agreement, the Escrow and Disbursement Agreement and the Holding Pledge
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
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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, $105,000,000 in
aggregate principal amount of Senior Notes at a purchase price equal to
$1,000 per Senior Note (the "PURCHASE PRICE").
3. DELIVERY AND PAYMENT. Delivery to you of and payment for
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the Senior Notes shall be made at 9:00 A.M., New York City time, on June
18, 1996 (the "CLOSING DATE") at the offices of O'Sullivan Graev &
Karabell, LLP, 30 Rockefeller Plaza, New York, New York 10112, or such
other time or place as you shall reasonably designate.
One or more Senior Notes in definitive 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
Senior Notes sold pursuant to Exempt Resales to QIBs and Accredited
Investors (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 therefor, 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. The Company hereby agrees with
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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 Senior 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 Preliminary Offering
Memorandum or the Offering Memorandum untrue or which requires the
making of any additions to or changes in the Preliminary Offering
Memorandum or 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 shall use its reasonable best efforts to
prevent the issuance of any stop order or order suspending the
qualification or exemption of the Senior 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 Senior Notes, the Company 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
Preliminary Offering Memorandum and Offering Memorandum, and any
amendments or supplements thereto, as you may reasonably request. The
Company consents to the use of the Preliminary Offering Memorandum and
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 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 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 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 Senior 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 the Company
shall not 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 will
continue such qualification in effect so long as required by law for
distribution of the Senior 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, the Transaction Documents (as defined herein), the Escrow
and Disbursement Agreement and the Holding Pledge 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 of the Notes, (iv) the qualification of
the Notes 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 (including, without limitation, printing
and engraving thereof), (vii) the fees, disbursements and expenses of
the Company's counsel and accountants, (viii) all expenses and listing
fees in connection with the application for quotation of the Senior
Notes in the National Association of Securities Dealers, Inc.
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 in connection with
approval of the Notes by DTC for "book-entry" transfer, (xi) all fees
and expenses related to filing, recording or otherwise creating and
perfecting all necessary security interests pursuant to the
Escrow and Disbursement Agreement and the Holding Pledge Agreement, as
applicable, and (xii) the performance by the Company of its other
obligations under this Agreement and the Operative Documents.
(g) To use the proceeds from the sale of the Senior 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 Senior 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 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 Senior Notes.
(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 Senior Notes in a manner
that would require the registration under the Act of the sale to you
or the Eligible Purchasers of Senior 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 Senior Notes in connection with any sale thereof
and any prospective purchaser of such Senior 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 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 B Notes to be offered
in exchange for the Senior Notes 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
Senior 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 shall mail or otherwise make available to
its holders and (ii) all reports, financial statements and proxy or
information statements filed by the Company with the Commission or any
national securities exchange and such other publicly available
information concerning the Company or its subsidiaries, including
without limitation, press releases.
(q) Neither 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 to facilitate
the sale or resale of the Notes. Except as permitted by the Act, the
Company will not distribute any preliminary offering memorandum,
offering memorandum or other offering material in connection with the
offering and sale of the Notes.
(r) Upon the closing of the offering of the Senior Notes, to use
a portion of the net proceeds of the offering of the Senior Notes to
purchase and pledge to the Trustee for the benefit of holders of the
Notes the Marketable Securities in such amount as will be sufficient
upon receipt of scheduled interest and principal payments of such
securities, in the opinion of a nationally recognized firm of public
accountants selected by the Company, to provide for payment in full of
the first six scheduled interest payments due on the Notes. The
Company will take all actions necessary to pledge, assign and set over
to the Trustee, for the benefit of holders of the Notes, and
irrevocably grant to the Trustee for the benefit of the holders of the
Notes a first priority security interest in all of its right, title
and interest in such Marketable Securities held by the Trustee or on
its behalf, in order to secure the obligations of the Company to pay
interest on the Notes and, in certain circumstances, the obligations
of the Company to pay principal on the Notes.
(s) To use its best efforts to do and perform all things
necessary to perfect, to the extent permitted by law, a first priority
security interest in favor of the Trustee for the benefit of the
holders of the Notes, in the Collateral.
(t) To comply with the agreements in the Indenture, the
Registration Rights Agreement, the Transaction Documents, the Escrow
and Disbursement Agreement, the Holding Pledge Agreement and each
other Operative Document.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
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represents and warrants to you that:
(a) The Preliminary Offering Memorandum, and the Offering
Memorandum (and each supplement and amendment thereto) have been
prepared in connection with the Exempt Resales. The Preliminary
Offering Memorandum and the Offering Memorandum do 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 Preliminary
Offering Memorandum or Offering Memorandum (or any supplement or
amendment to them) made in reliance upon and in conformity with
information relating to you furnished to the Company in writing by you
expressly for use therein. The Company acknowledges 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
and fifth 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 by you expressly for
use in the Offering Memorandum (or any amendment or supplement
thereto).
(b) Each of 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 the Company and the Subsidiaries
taken as a whole (a "MATERIAL ADVERSE EFFECT").
(c) The Company has all necessary corporate power and authority
to execute and deliver this Agreement, the Notes, the Indenture, the
Registration Rights Agreement, the Escrow and Disbursement Agreement
and the Holding Pledge Agreement, and to perform its obligations under
this Agreement, the Indenture, the Registration Rights Agreement, the
Escrow and Disbursement Agreement and the Holding Pledge Agreement and
to authorize, issue, sell and deliver the Notes as contemplated by
this Agreement.
(d) This Agreement has been duly authorized and validly executed
and delivered by the Company and constitutes a legal, valid and
binding agreement of the Company, enforceable against it 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 Senior 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 Senior Notes have been taken; each of the Senior 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 B Notes; the issuance 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 of the
Series B Notes have been taken; each of the Series B 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 Indenture has been duly authorized by the Company and,
on the Closing Date, will have been duly executed by the Company 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,
enforceable against it 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.
(h) The Registration Rights Agreement has been duly authorized
by the Company and, on the Closing Date, will have been duly executed
by the Company 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, enforceable
against it 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.
(i) The Escrow and Disbursement Agreement has been duly
authorized by the Company and, on the Closing Date, will have been
duly executed by the Company and will conform to the description
thereof in the Offering Memorandum. When the Escrow and Disbursement
Agreement has been duly executed and delivered, the Escrow and
Disbursement Agreement will be a valid and legally binding agreement
of the Company, enforceable against it 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 Holding Pledge Agreement has been duly authorized by the
Company and, on the Closing Date, will have been duly executed by the
Company and will conform to the description thereof in the Offering
Memorandum. When the Holding Pledge Agreement has been duly executed
and delivered, the Holding Pledge Agreement will be a valid and
legally binding agreement of the Company, enforceable against it 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 Company has all requisite corporate power and authority
to enter into the all agreements in connection with the Transaction
(as defined in the Offering Memorandum), including but not limited to
the Preferred Stock and Warrant Purchase Agreement, the Common Stock
Purchase and Recapitalization Agreement, the Stockholders Agreement
and the Agreement and Plan of Merger (collectively, the "TRANSACTION
DOCUMENTS"). When each of the Transaction Documents has been duly
executed and delivered, each such Transaction Document will be a valid
and legally binding agreement of the Company, enforceable against it
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.
(l) The Preferred Stock and each class of Common Stock set forth
in the Agreement and Plan of Merger has been duly and validly
authorized for issuance and sale to the respective purchasers of such
classes of stock by the Company. The description of the Preferred
Stock and the Common Stock in the Offering Memorandum is accurate in
all material respects.
(m) 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"). 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.
(n) Except as set forth on Schedule B hereto, neither 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 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 the Company or
any of the Subsidiaries is subject. To the knowledge of the Company
and the Subsidiaries, there exists no condition which, with notice,
the passage of time or otherwise, would constitute a default under any
such document or instrument.
(o) The execution and delivery of this Agreement, the Indenture,
the Registration Rights Agreement, the Transaction Documents, the
Escrow and Disbursement Agreement and the Holding Pledge Agreement,
the issuance and sale of the Notes, the performance of this Agreement,
the Indenture, the Registration Rights Agreement, the Transaction
Documents, the Escrow and Disbursement Agreement and the Holding
Pledge Agreement, compliance by the Company with the provisions hereof
and thereof and of the Notes, 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 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 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 the Company or any of the Subsidiaries is or
may be subject (other than as set forth on Schedule C hereto, which
default shall be waived on or before the Closing Date), or contravene
any order of any court or governmental agency or body having
jurisdiction over 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 the Company or any of the Subsidiaries, or any of their
respective properties.
(p) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, pending
against or affecting 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 Preliminary Offering Memorandum or 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 Subsidiaries,
no such proceedings are contemplated or threatened.
(q) To the knowledge of the Company and the Subsidiaries, 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, prevents or suspends the use
of any Preliminary Offering Memorandum or Offering Memorandum or
suspends the sale of the Notes, 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 the Company or any of the Subsidiaries which
would prevent or suspend the issuance or sale of the Notes, or the use
of any Preliminary Offering Memorandum or 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
Subsidiaries threatened against or affecting 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 in any manner draw into question the
validity of this Agreement, the Indenture, the Registration Rights
Agreement, the Transaction Documents, the Escrow and Disbursement
Agreement and the Holding Pledge Agreement or the Notes; and every
request of the Commission or any securities authority or agency of any
jurisdiction for additional information (to be included in the
Preliminary Offering Memorandum or Offering Memorandum or otherwise)
has been complied with.
(r) Except as set forth in the Offering Memorandum, 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.
(s) Neither 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 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 the
Company or any of the Subsidiaries or, to the best knowledge of the
Company and the Subsidiaries, 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 the Company or any of the Subsidiaries or, to
the best knowledge of the Company and the Subsidiaries, threatened
against any of them, (ii) no significant strike, labor dispute,
slowdown or stoppage pending against the Company, or any of the
Subsidiaries or, to the best knowledge of the Company and the
Subsidiaries, threatened against the Company or any of the
Subsidiaries and (iii) to the best knowledge of the Company and the
Subsidiaries, no union representation question exists with respect to
the employees of 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.
(t) 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 Revolving Credit Facility (as defined in the Offering
Memorandum), (B) the Nevada Bonds and the Iowa Bonds (as defined in
the Offering Memorandum), (C) the Escrow and Disbursement Agreement
and (D) the Holding Pledge Agreement, 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 30, 1995.
(u) The firms of accountants that have certified or shall
certify the applicable financial statements and supporting schedules
of 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 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 D
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
the Company and the Subsidiaries, as the case may be.
(v) 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 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 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 the
Company or any Subsidiary (each, a "MATERIAL ADVERSE CHANGE").
(w) All tax returns required to be filed by 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.
(x) 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 TIA or
the Act, or have been obtained and made under Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), or
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 Transaction, the transactions contemplated by this
Agreement, the Transaction Documents, the Notes, the Indenture, the
Registration Rights Agreement, the Escrow and Disbursement Agreement
and the Holding Pledge Agreement or the Offering Memorandum, except
for such consents or waivers which have been, or will be, obtained
prior to the Closing Date.
(y) Neither the Company nor any of the Subsidiaries does
business with the Government of Cuba or with any person or any
affiliate located in Cuba.
(z) (i) Each of 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) 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
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.
(aa) Neither 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.
(ab) No holder of any security of 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.
(ac) There are no contracts, agreements or understandings between
the Company or any of the Subsidiaries and any person (other than the
Initial Purchaser) that would give rise to a valid claim against 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.
(ad) 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 the Company nor any Subsidiary has
received any notice of infringement of or conflict with asserted
rights of others with respect to the foregoing.
(ae) 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 generally accepted accounting principles 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.
(af) The present fair saleable value of the assets of each of the
Company and the Subsidiaries 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 Subsidiaries do not constitute unreasonably small capital to
carry out their businesses as conducted or as proposed to be
conducted. Neither the Company or the Subsidiaries 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 Senior Notes, the
present fair saleable value of the assets of each of the Company and
the Subsidiaries 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
Subsidiaries, upon the issuance of the Senior 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 Subsidiaries, taking into account the projected capital
requirements and capital availability of each of the Company and the
Subsidiaries.
(ag) None of 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 Operative
Documents, any of the Transaction Documents, the consummation of the
Transaction, the purchase of Marketable Securities pursuant to the
Escrow and Disbursement Agreement or the issuance or sale of the 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.
(ah) 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 the Company and
the Subsidiaries and their businesses. Neither 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.
(ai) When the Notes are issued and delivered pursuant to this
Agreement, such 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.
(aj) After the Closing Date, the Company will be the sole
beneficial owner of the Marketable Securities and no Lien will exist
upon any such Marketable Securities (and no right or option to acquire
the same will exist in favor of any other person or entity), except
for the pledge and security interest in favor of the Trustee to be
created or provided for in the Escrow and Disbursement Agreement,
which pledge and security interest constitute a first priority
perfected pledge and security interest in and to all of the Marketable
Securities.
(ak) Subject to the terms and conditions of this Agreement, the
security interest granted by the Company under the Holding Pledge
Agreement will constitute a valid and perfected security interest in
(i) all of the Company's right title and interest in the outstanding
capital stock of Berry (the "COLLATERAL") and (ii) all distributions
or allocations of distributable cash, property, securities or other
assets from the Collateral together with all substitutes and
replacements for and proceeds of the foregoing, subject to no equal or
prior security interest of any other creditor of the Company. No
registration, recording or filing with any federal governmental body
or agency or any governmental body or agency in the State of Indiana,
State of Delaware or any other jurisdiction is required for the
perfection of such security interest.
(al) Subject to the terms and conditions of this Agreement, the
execution by the Company of the Holding Pledge Agreement and delivery
to the Trustee of the Collateral pursuant thereto, shall cause the
Trustee, for the ratable benefit of the holders of Notes, to have, as
security for the payment of the obligations under the Indenture and
the Notes, a valid, duly perfected security interest (as to the
creation of which no consent is required by a third party or such
consents have been obtained) in the Collateral and the actions
described in this section (al) are the only actions, recordings and
filings necessary to establish the validity of such security interest
in the Collateral. From and after the date hereof, the liens or
security interests created by the Collateral will be duly perfected,
creating a first priority interest in the Trustee for the ratable
benefit of the holders of the Notes in the Collateral over all other
liens and security interests in respect of the Collateral, whether now
existing or hereafter created.
(am) The Holding Pledge Agreement will secure the obligations of
the Company under the Notes and the Indenture.
(an) Assuming (i) that your representations and warranties in
Section 6 are true, (ii) that the representations of the Accredited
Investors set forth in the certificates of such Accredited Investors
in the form set forth in Annex A to the Offering Memorandum are true,
(iii) compliance by you with your covenants set forth in Section 8 and
(iv) that each of the Eligible Purchasers is a QIB or an Accredited
Investor, the purchase and resale of the Senior 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 or any of its
representatives (other than you, as to whom the Company makes no
representation) in connection with the offer and sale of the Senior
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 Senior Notes have been issued and sold by the Company
within the six-month period immediately prior to the date hereof.
(ao) Set forth on Schedule E 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 Senior 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 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."
(ap) Each of the Preliminary Offering Memorandum and the Offering
Memorandum as of their respective dates, 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.
(aq) 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(aq) that
Regulation S-K is applicable to the Offering Memorandum).
6. INITIAL PURCHASER'S REPRESENTATIONS AND WARRANTIES. The
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Initial Purchaser represents and warrants to the Company that:
(a) The Initial Purchaser is either a QIB or an Accredited
Investor, 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 Senior Notes.
(b) The Initial Purchaser (i) is not acquiring the Senior Notes
with a view to any distribution thereof or with any present intention
of offering or selling any of the Senior 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 Senior Notes only to QIBs in reliance on
the exemption from the registration requirements of the Act provided
by Rule 144A and to a limited number of Accredited Investors that
execute and deliver a letter containing certain representations and
agreements in the form attached as Annex A to the Offering Memorandum.
The Initial Purchaser also understands that the Company 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.
The Initial Purchaser further agrees that, in connection with the
Exempt Resales, the Initial Purchaser will solicit offers to buy the
Senior Notes only from, and will offer to sell the Senior Notes only
to, the Eligible Purchasers. You further agree that you will offer to
sell the Senior Notes only to, and will solicit offers to buy the
Senior Notes only from, persons who in purchasing such Senior Notes
will be deemed to have represented and agreed (1) if such Eligible
Purchaser is a QIB, that they are purchasing the Senior 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 Senior 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 so requests) 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.
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(a) The Company and Berry (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 (a) 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 Preliminary Offering
Memorandum (or any amendment or supplement thereto) or 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 by the Initial Purchaser expressly
for use in the Preliminary Offering Memorandum (or any amendment or
supplement thereto) or 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 Preliminary Offering
Memorandum or Offering Memorandum (including any amendment or
supplement thereto delivered to the Initial Purchaser prior to the
date such Preliminary Offering Memorandum or 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
Preliminary Offering Memorandum or Offering Memorandum (including any
amendment or supplement thereto delivered to the Initial Purchaser
prior to the date such Preliminary Offering Memorandum or 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 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 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, its directors and officers, any person controlling
(within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act) the Company, 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 Preliminary Offering Memorandum or 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 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, 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 underwriting discounts and
commissions but before deducting expenses) received by the Company
bear to the total underwriting 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, 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, 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 set forth herein shall be in addition to
any liability or obligation the Company may otherwise have to any
Indemnified Person.
The Company 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 paragraph 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 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
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obligations of the Initial Purchaser to purchase the Senior Notes under
this Agreement are subject to the satisfaction of each of the following
conditions:
(a) All the representations and warranties of the Company
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 shall have performed or complied in all
material respects with 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 Senior 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 Senior 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 Senior 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, threatened against, 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 Senior 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 Preliminary Offering Memorandum or
Offering Memorandum, there shall not have been any Material Adverse
Change, (ii) since the date of the latest balance sheet included in
the Preliminary Offering Memorandum or 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 the Company or
any of the Subsidiaries and (iii) the Company and the Subsidiaries
shall have no liability or obligation, direct or contingent, that is
material to 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 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, to the
effect that:
(i) 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) The Company has all necessary corporate power and
authority to execute and deliver this Agreement, the Senior
Notes, the Indenture, the Registration Rights Agreement, the
Transaction Documents, the Escrow and Disbursement Agreement
and the Holding Pledge Agreement, as applicable, and to
perform its obligations under this Agreement, the Indenture,
the Registration Rights Agreement, the Transaction
Documents, the Escrow and Disbursement Agreement and the
Holding Pledge Agreement, as applicable, and to authorize,
issue, sell and deliver the Senior Notes, as contemplated by
this Agreement;
(iii) Each of this Agreement, the Senior Notes, the
Registration Rights Agreement, the Indenture, the
Transaction Documents, the Escrow and Disbursement Agreement
and the Holding Pledge Agreement has been duly authorized,
executed and delivered by the Company;
(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 Senior
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) The Indenture, assuming due authorization,
execution and delivery thereof by the Trustee, constitutes a
valid and legally binding agreement of the Company,
enforceable against it 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);
(vi) The Notes, the Indenture, the Registration Rights
Agreement, the Transaction Documents, the Escrow and
Disbursement Agreement and the Holding Pledge Agreement
conform to the descriptions thereof contained in the
Offering Memorandum in all material respects;
(vii) Upon the consummation of the Transaction, the
authorized, issued and outstanding capital stock of the
Company will be as set forth in the Offering Memorandum
under the caption "Capitalization." Upon the consummation
of the Transaction, all of the outstanding shares of capital
stock of the Company will have been duly authorized, validly
issued, and are fully paid and nonassessable and were not
issued in violation of any preemptive rights or similar
rights under the Delaware General Corporation Law, or, to
the best of such counsel's knowledge, otherwise;
(viii) Each of the Preferred Stock and Warrant
Purchase Agreement and the Common Stock Purchase Agreement
constitute a valid and legally binding agreement of the
Company, enforceable against it in accordance with their
respective terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium and similar laws
relating to or affecting creditors' rights and remedies
generally and to general principles of equity (regardless of
whether considered in a proceeding in equity or at law);
(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;
(xi) Neither 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 Senior
Notes, and such counsel has received no notice which
suspends the sale of the Senior Notes; (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 the Company or any of the Subsidiaries which
would prevent or suspend the issuance or sale of the Senior
Notes, 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 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 Senior Notes;
(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 and the HSR 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,
the Operative Documents or the Transaction 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,
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, neither
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,
the Operative Documents and the Transaction Documents, the
issuance and sale of the Senior Notes, the performance of
this Agreement, the Operative Documents and the Transaction
Documents, compliance by the Company with the provisions
hereof and thereof and of the Senior Notes, the consummation
of the transactions contemplated hereby and thereby and of
the Transaction 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 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 govern-
mental agency or body having jurisdiction over 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 the Company or any of the
Subsidiaries, or any of their respective properties;
(xviii) The Registration Rights Agreement has been
duly authorized, executed and delivered by the Company and
constitutes a valid and legally binding agreement of the
Company, enforceable against it 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) Each of the Transaction Documents have been
duly authorized, executed and delivered by the Company and
constitute valid and legally binding agreements of the
Company, enforceable against it in accordance with their
respective 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
such enforceability is considered in a proceeding in equity
or at law) and, to the extent such Transaction Documents
provide for rights of indemnification and contribution
subject to the limitations of applicable law;
(xx) The Escrow and Disbursement Agreement has been
duly authorized, executed and delivered by the Company and
constitutes a valid and legally binding agreement of the
Company, enforceable against it 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 such
enforceability is considered in a proceeding in equity or at
law) and, to the extent the Escrow and Disbursement
Agreement provides for rights of indemnification and
contribution subject to the limitations of applicable law;
(xxi) The Holding Pledge Agreement has been duly
authorized, executed and delivered by the Company and
constitutes a valid and legally binding agreement of the
Company, enforceable against it 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 such
enforceability is considered in a proceeding in equity or at
law) and, to the extent the Holding Pledge Agreement
provides for rights of indemnification and contribution,
subject to the limitations of applicable law;
(xxii) The provisions of the Escrow and Disbursement
Agreement are effective to create valid security interests
in favor of the Trustee for the benefit of the holders of
the Notes in that portion of the collateral described in the
Escrow and Disbursement Agreement that is subject to Article
9 of the Uniform Commercial Code of the State of New York
(such collateral, the "NOTE COLLATERAL" and such statute the
"NEW YORK UCC") as security for the payment of the Secured
Obligations (as defined in the Escrow and Disbursement
Agreement) to the extent set forth in the Escrow and
Disbursement Agreement;
(xxiii) To the extent that acct no. ______ (the
"ESCROW ACCOUNT") is a "deposit account" (as defined in
Section 9-105(1)(e) of the New York UCC) that (a) is duly
established and maintained in the name of "First Trust of
New York, National Association, as Collateral Agent, for the
benefit of BPC Holding Corporation Note Holders" with First
Trust of New York, National Association, in its capacity as
collateral agent for the Trustee and the holders of the
Notes (the "COLLATERAL AGENT"), in New York, New York, (b)
remains at all times subject to the sole dominion and
control of the Trustee, and (c) is not evidenced at any time
by an indispensable instrument, the provisions of the Escrow
and Disbursement Agreement, together with such dominion and
control, are effective under the laws of the State of New
York to create in favor of the Trustee, for the
benefit of the Trustee and the holders of the Notes, a
security interest in, and a lien on, such deposit account to
secure the Secured Obligations to the extent set forth in
the Escrow and Disbursement Agreement. Such security
interest and lien will be prior to the interest of a
judgment lien creditor subsequently attaching or levying
against the Escrow Account or a bankruptcy trustee claiming
the rights of a hypothetical lien creditor pursuant to
Section 544 of the Bankruptcy Code;
(xxiv) The ___ financing statements naming the
Company as debtor and the Trustee as secured party, together
with all schedules and exhibits thereto to be filed in each
of the Filing Offices (together, the "FINANCING
STATEMENTS"), are in appropriate form for filing with the
appropriate jurisdictions (collectively, the "FILING
OFFICES"). Upon the proper filing of the Financing
Statements in the Filing Offices, the security interest in
favor of the Trustee in the Collateral described in the
Financing Statements will be perfected to the extent a
security interest in such Collateral can be perfected by
filing a financing statement under the provisions of the New
York UCC or the other applicable UCCs (to the extent the UCC
as in effect in a jurisdiction in which the opinion given is
not admitted to practice, the opinion given may rely
exclusively on the CCH Secured Transactions Guide, or
similar publication by service); as applicable;
(xxv) The provisions of the Escrow and Disbursement
Agreement, together with (i) delivery to the Collateral
Agent in the State of New York of the certificates or
instruments representing those Allowable Investments (as
defined in the Escrow and Disbursement Agreement) that
constitute "certificated securities" (as defined in Section
8-102 of the New York U.C.C.) or "negotiable instruments"
(as defined in Section 3-104 of the New York U.C.C.) and
related executed blank instruments of transfer, and (ii)
registration in the name of the Collateral Agent, as
pledgee, of those Allowable Investments that constitute
"uncertificated securities" (as defined in Article 8 of the
New York U.C.C.) are sufficient to create in favor of the
Collateral Agent a valid and perfected security interest in
all right, title and interest of the Company in such
Allowable Investments to the extent such creation and
perfection are governed by the New York U.C.C. Upon such
delivery or registration and assuming that the Collateral
Agent acquires its security interest in those Allowable
Investments that constitute "securities" (as defined in
Section 8-102 of the New York U.C.C.) in good faith without
knowledge of adverse claims, the Collateral Agent will
acquire its security interest in those Allowable Investments
that constitute securities free of adverse claims (including
other consensual security interests). The security interest
in that portion of the Allowable Investments which consist
of Government Securities (as defined in the Escrow and
Disbursement Agreement) will be a valid, perfected security
interest (with priority over (i) other consensual security
interests, (ii) interests of judgment lien creditors
subsequently attaching or levying against such collateral or
(iii) the interests of a bankruptcy trustee claiming the
rights of a hypothetical lien creditor pursuant to Section
544 of the Bankruptcy Code). If such Government Securities
are registered in the name of the Collateral Agent on the
records of the Federal Reserve Bank of New York. No
governmental filings or recordings are required in order to
perfect (or maintain the perfection or priority of) the
security interests created in Allowable Investments that
constitute securities (including Government Securities) or
negotiable instruments.
(xxvi) When the Senior Notes are issued and
delivered pursuant to the Purchase Agreement, such Senior
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;
(xxvii) The provisions of the Holding Pledge
Agreement, together with delivery to the Collateral Agent in
the State of New York of the certificates representing the
shares identified on Schedule I to the Holding Pledge
Agreement ( the "Pledged Shares") and blank stock powers
with respect thereto signed by the Company, are sufficient
to create in favor of the Collateral Agent a valid and
perfected security interest under the New York U.C.C. in all
right, title and interest of the Company in the Pledged
Shares. Upon such delivery and assuming that the Collateral
Agent acquires its security interest in the Pledged Shares
without knowledge of any adverse claims, the Collateral
Agent will acquire its security interest in the Pledged
Shares free of adverse claims (including other consensual
security interests). No governmental filings or recordings
are required in order to perfect (or maintain the perfection
or priority of) the security interests created in the
Pledged Shares.
(xxviii) No registration under the Act of the Senior
Notes is required for the sale of the Senior Notes to you as
contemplated hereby or for the Exempt Resales (assuming,
without independent investigation, (i) that the Eligible
Purchasers who buy the Senior Notes in the Exempt Resales
are QIBs or Accredited Investors, (ii) the accuracy of your
representations and those of the Company regarding the
absence of general solicitation in connection with the
Exempt Resales contained herein and (iii) the accuracy of
the representations made by each Accredited Investor who
purchases Senior Notes pursuant to an Exempt Resale as set
forth in the letters of representation executed by such
Accredited Investors in the form of Annex A to the Offering
Memorandum);
(xxix) Prior to the Exchange Offer or the
effectiveness of the Shelf Registration Statement, the
Indenture is not required to be qualified under the TIA;
(xxx) Each of the Preliminary Offering Memorandum
and the Offering Memorandum as of their respective dates,
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 (vii), (ix) and (x)
will be based solely on a review of stock records and other
specified corporate record books of 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 shall so state
therein.
In giving their opinion required by this subsection 8(f),
O'Sullivan Graev & Karabell shall additionally state that such
counsel has participated in conferences with officers and other
representatives of the Company, representatives of the
independent
public accountants for the Company, your representatives and your
counsel in connection with the preparation of the Preliminary
Offering Memorandum or 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 Preliminary Offering Memorandum (as amended or
supplemented, if applicable), at the time such Preliminary
Offering Memorandum or any post-effective amendment became
effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or 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 statistical data included in
the Preliminary Offering Memorandum or 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 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) On or before the Closing Date, the Company shall have
consummated the Transaction in the manner set forth in the Offering
Memorandum and shall have provided evidence of such consummation in
form satisfactory to you and your counsel.
(k) Prior to the Closing Date, the Company shall have furnished
to you such further information, certificates and documents as you may
reasonably request.
(l) The Company and the Trustee shall have entered into the
Indenture and you shall have received counterparts, conformed as
executed, thereof.
(m) The Initial Purchaser shall have received a solvency
opinion, dated the Closing Date, of Houlihan Lokey Howard & Zukin
substantially in the form previously approved by the Initial
Purchaser, and such opinion shall be addressed to the Trustee.
(n) The Offering Memorandum shall have been printed and copies
distributed to you not later than 9:00 A.M., New York City time, on
June 14, 1996, 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 will be in compliance with
the provisions hereof only if they are reasonably satisfactory in form and
substance to you. The Company 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.
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(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 Senior
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 Senior Notes or to enforce contracts for the sale of the Senior
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 Senior Notes or to
enforce contracts for the sale of the Senior 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.
(c) The indemnities and contribution provisions and other
agreements, representations and warranties of the Company, its 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 Senior 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, the
officers or directors of the Company or any controlling person of the
Company, (ii) acceptance of the Senior 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 to comply with
the terms or to fulfill any of the conditions of this Agreement, the
Company agrees 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 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
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
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Agreement shall be addressed as follows: (a) if to the Company, to BPC
Holding Corporation, 101 Oakley Street, P.O. Box 959, Evansville, Indiana
47706-0959, Attention: James M. Kratochvil, with a copy to O'Sullivan Graev
& Karabell, LLP, 30 Rockefeller Plaza, New York, New York 10112, Attention:
Lawrence G. Graev, 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: Raymond Y.
Lin, 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
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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
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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.
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 and you.
Very truly yours,
BPC HOLDING CORPORATION
By: /s/ Roberto Buaron
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Name: Roberto Buaron
Title: Chairman of the Board
BERRY PLASTICS CORPORATION
(WITH RESPECT TO SECTION 7 HEREOF)
By: /s/ Roberto Buaron
--------------------------------------
Name: Roberto Buaron
Title: Chairman of the Board
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By: /s/ Thomas G. McGonagle
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Name: Thomas G. McGonagle
Title: Senior Vice President