EX-10.4 8 y92946exv10w4.txt COUNTERPART AGREEMENT Exhibit 10.4 COUNTERPART AGREEMENT November 20, 2003 This Counterpart Agreement ("COUNTERPART AGREEMENT") of Landis Plastics, Inc. (the "CORPORATION") is delivered pursuant to that certain Amended and Restated Credit and Guaranty Agreement, dated as of November 10, 2003 (as it may be amended, supplemented or otherwise modified, the "AMENDED CREDIT AGREEMENT"; the terms defined therein and not otherwise defined herein being used herein as therein defined), by and among Berry Plastics Corporation ("BERRY"), BPC Holding Corporation, certain Subsidiaries of Berry, as Guarantors, the Lenders party thereto from time to time, Goldman Sachs Credit Partners L.P., as Administrative Agent, JPMorgan Chase Bank, as Syndication Agent, Fleet National Bank, as Collateral Agent, Issuing Bank and Swing Line Lender and The Royal Bank of Scotland and GE Capital Corporation, as Co-Documentation Agents. 1. Certifications. Pursuant to Section 5.10 of the Amended Credit Agreement, the Corporation hereby: (a) Consent. Agrees that this Counterpart Agreement may be attached to the Amended Credit Agreement and that by the execution and delivery hereof, the Corporation becomes a Guarantor under the Amended Credit Agreement and agrees to be bound by all of the terms thereof; (b) Representations and Warranties. Represents and warrants that each of the representations and warranties set forth in the Amended Credit Agreement and each other Credit Document and applicable to the Corporation is true and correct both before and after giving effect to this Counterpart Agreement, except to the extent that any such representation and warranty relates solely to any earlier date, in which case such representation and warranty is true and correct as of such earlier date; (c) Event of Default. Certifies that no event has occurred or is continuing as of the date hereof, or will result from the transactions contemplated hereby on the date hereof, that would constitute an Event of Default or a Default; (d) Unconditional Guarantee. Agrees to irrevocably and unconditionally guaranty the due and punctual payment in full of all Obligations when the same shall become due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise (including amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. Section 362(a)) and in accordance with Section 7 of the Credit Agreement; (e) Pledge and Security Agreement. (i) agrees that this counterpart may be attached to the Pledge and Security Agreement, (ii) agrees that the Corporation will comply with all the terms and conditions of the Pledge and Security Agreement as if it were an original signatory thereto, (iii) grants to Secured Parties (as such term is defined in the Pledge and Security Agreement) a security interest in all of the Corporation's right, title and interest in and to all "Collateral" (as such term is defined in the Pledge and Security Agreement) of the Corporation, in each case whether now or hereafter existing or in which the Corporation now has or hereafter acquires an interest and wherever the same may be located and (iv) delivers to Collateral Agent supplements to all schedules attached to the Pledge and Security Agreement. All such Collateral shall be deemed to be part of the "Collateral" and hereafter subject to each of the terms and conditions of the Pledge and Security Agreement; and (f) Intercompany Subordination Agreement. (i) agrees that this counterpart may be attached to the Intercompany Subordination Agreement and (ii) agrees that the Corporation will comply with all the terms and conditions of the Intercompany Subordination Agreement as if it were an original signatory thereto. 2. Administrative Agent. The Corporation agrees from time to time, upon request of Administrative Agent, to take such additional actions and to execute and deliver such additional documents and instruments as Administrative Agent and as Collateral Agent may request to effect the transactions contemplated by, and to carry out the intent of, this Agreement. Neither this Agreement nor any term hereof may be changed, waived, discharged or terminated, except by an instrument in writing signed by the party (including, if applicable, any party required to evidence its consent to or acceptance of this Agreement) against whom enforcement of such change, waiver, discharge or termination is sought. Any notice or other communication herein required or permitted to be given shall be given in accordance with the requirements of Section 10.1 of the Amended Credit Agreement, and all for purposes thereof, the notice address of the Corporation shall be the address as set forth on the signature page hereof. In case any provision in or obligation under this Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF. [The remainder of this page intentionally left blank.] -2- IN WITNESS WHEREOF, the undersigned has caused this Counterpart Agreement to be duly executed and delivered by its duly authorized officer as of the date above first written. LANDIS PLASTICS, INC. By:/s/ James M. Kratochvil -------------------------- Name: James M. Kratochvil Title: Secretary Address for Notices: Berry Plastics Corporation 101 Oakley Street Evansville, IN 47710 Attention: Chief Financial Officer Telecopier: (812) 424-0128 with a copy to: Fried, Frank, Harris, Shriver & Jacobson One New York Plaza, 26th Floor New York, NY 10004 Attention: Arthur Kaufman Telecopier: (212) 859-4000 ACKNOWLEDGED AND ACCEPTED, as of the date above first written: GOLDMAN SACHS CREDIT PARTNERS L.P., as Administrative Agent By:/s/ W. W. Archer ------------------- Name: William W. Archer Title: Managing Director FLEET NATIONAL BANK, as Collateral Agent By:/s/ Michael DiSandro ----------------------- Name: Michael DiSandro Title: Director SCHEDULE 3.1(l) TO AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT CLOSING DATE MORTGAGED PROPERTIES: Owned Property:
ADDRESS CITY, STATE & ZIP CODE COUNTY ------- ---------------------- ------ 1. 1207 North 6th Street Monticello, IN 47960 White County 2. 630 Commerce Road Richmond, IN 47374 Wayne County
Leased Property:
ADDRESS CITY, STATE & ZIP CODE COUNTY ------- ---------------------- ------ 1. 8400 West Washington St Tolleson, AZ 85353 Maricopa County 2. 5750-5751 118 Street Alsip, Illinois 60482 Cook County 3. 11600/11700 South Alsip, IL 60658 Cook County Central Ave. 4. 1500 Milton Ave. Solvay, NY 13209 Onadoga County
SCHEDULE 4.1 TO AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT JURISDICTIONS OF ORGANIZATION AND QUALIFICATION:
JURISDICTION OF TYPE OF ORGANIZATION/ NAME ORGANIZATION FORMATION FOREIGN QUALIFICATIONS ---- ------------ --------- ---------------------- 1. Landis Plastics, Inc. Corporation Illinois Arizona, Indiana, New York
SCHEDULE 4.2 TO AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT CAPITAL STOCK AND OWNERSHIP:
TOTAL NUMBER OF SHARES % OF HOLDER STOCK ISSUER OUTSTANDING OWNERSHIP -------------------------- -------------------- --------------- --------- 1. Berry Plastics Corporation Landis Plastics, Inc. 100 100%
SCHEDULE 4.4 TO AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT GUARANTOR SUBSIDIARIES: 1. Landis Plastics, Inc. SCHEDULE 4.13 TO AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT REAL ESTATE ASSETS: OWNED REAL PROPERTY:
ENTITY MAILING ADDRESS COUNTY CITY, STATE AND ZIP CODE --------------------- --------------------- ------ ------------------------ Landis Plastics, Inc. 1207 North 6th Street White Monticello, IN 47960 Landis Plastics, Inc. 630 Commerce Road Wayne Richmond, IN 47374
LEASED REAL PROPERTY:
CITY, STATE MONTHLY RENTAL ENTITY MAILING ADDRESS COUNTY AND ZIP CODE TERM PAYMENT --------------------- -------------------- -------- -------------- ----------------------- -------------- Landis Plastics, Inc. 8400 West Washington Maricopa Tolleson, AZ Term expires 11/[ ]/23 [ ] Street 85353 Landis Plastics, Inc. 5750-5751 118th Cook Alsip, IL Term expires 11/[ ]/23 [ ] Street/ 60482 Landis Plastics, Inc. 11600/11700 South Cook Alsip, IL Term expires 11/[ ]/23 [ ] Central Avenue 60658 Landis Plastics, Inc. 10800 South Central Cook Chicago Ridge, [ ] [ ] Avenue IL 60415 Landis Plastics, Inc. 1500 Milton Avenue, Onodaga Solvay, NY Term expires 11/[ ]/23 [ ] Solvay, NY 13209 Landis Plastics, Inc. 5632 Pleasant Cook Chicago Ridge, [ ] [ ] Boulevard IL 60415