ADDITIONAL SECURED CREDITOR CONSENT
Exhibit 4.04
EXECUTION VERSION
ADDITIONAL SECURED CREDITOR CONSENT
U.S. BANK NATIONAL ASSOCIATION
100 Wall Street, Suite 1600
New York, NY 10005
Attention: Corporate Trust Services
Facsimile: 212 ###-###-####
November 19, 2010
Attn: Jeff Thompson
Berry Plastics Corporation
101 Oakley Street
Evansville, IN 47710
The undersigned is the trustee (the Authorized Representative) for persons wishing to become Secured Parties (the New Secured Parties) under the Collateral Agreement dated as of September 20, 2006 (as heretofore amended and/or supplemented, the Collateral Agreement (terms used without definition herein have the meanings assigned to such term by the Collateral Agreement)) among BERRY PLASTICS CORPORATION (as successor to Berry Plastics Holdings Corporation, the Issuer), each subsidiary of the Issuer identified therein as a party (each, a Subsidiary Party) and U.S. BANK NATIONAL ASSOCIATION, as successor to Wells Fargo Bank, N.A., as collateral agent (in such capacity, the Collateral Agent) for the Secured Parties (as defined therein).
In consideration of the foregoing, the undersigned hereby:
(i) represents that the Authorized Representative has been authorized by the New Secured Parties to become a party to the Collateral Agreement on behalf of the New Secured Parties under that certain Indenture dated as of November 19, 2010 among the Issuer, its subsidiaries named therein and the Authorized Representative, as trustee (as amended, restated, supplemented or otherwise modified from time to time, the New Secured Obligation) and to act as the Authorized Representative for the New Secured Parties;
(ii) acknowledges that the New Secured Parties have received a copy of the Collateral Agreement;
(iii) appoints and authorizes the Collateral Agent to take such action as agent on its behalf and on behalf of all other Secured Parties and to exercise such powers under the Collateral Agreement as are delegated to the Collateral Agent by the terms thereof, together with all such powers as are reasonably incidental thereto; and
(iv) accepts and acknowledges the terms of the Collateral Agreement applicable to it and the New Secured Parties and agrees to serve as Authorized Representative for the New Secured Parties with respect to the New Secured Obligations and agrees on
its own behalf and on behalf of the New Secured Parties to be bound by the terms hereof applicable to holders of Other Second-Lien Obligations, with all the rights and obligations of a Secured Party thereunder and bound by all the provisions thereof as fully as if it had been a Secured Party on the effective date of the Collateral Agreement.
The Collateral Agent, by acknowledging and agreeing to this Additional Secured Creditor Consent, accepts the appointment set forth in clause (iii) above.
The name and address of the Authorized Representative for purposes of Section 6.01 of the Collateral Agreement are as follows:
U.S. Bank National Association
100 Wall Street, Suite 1600
New York, NY 10005
Attention: Corporate Trust Services
Facsimile: 212 ###-###-####
THIS ADDITIONAL SECURED PARTY CONSENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
[SIGNATURE PAGES FOLLOW]
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EXECUTION VERSION
IN WITNESS WHEREOF, the undersigned has caused this Additional Secured Party Consent to be duly executed by its authorized officer as of the 19th day of November, 2010.
U.S. BANK NATIONAL ASSOCIATION, | ||||
as Authorized Representative | ||||
By: | /s/ Thomas E. Tabor | |||
Name: | Thomas E. Tabor | |||
Title: | Vice President |
Acknowledged and Agreed:
U.S. BANK NATIONAL ASSOCIATION, | ||||
as Collateral Agent | ||||
By: | /s/ Thomas E. Tabor | |||
Name: | Thomas E. Tabor | |||
Title: | Vice President | |||
BERRY PLASTICS CORPORATION | ||||
By: | /s/ Mark Miles | |||
Name: | Mark Miles | |||
Title: | Executive Vice President, Treasurer and Controller |
[Signature Page to Additional Secured Creditor Consent]
EXECUTION VERSION
BERRY PLASTICS TECHNICAL SERVICES, INC. | ||
BERRY STERLING CORPORATION | ||
CARDINAL PACKAGING, INC. | ||
CPI HOLDING CORPORATION | ||
PESCOR, INC. | ||
VENTURE PACKAGING, INC. | ||
VENTURE PACKAGING MIDWEST, INC. | ||
BERRY PLASTICS ACQUISITION CORPORATION III | ||
BERRY PLASTICS ACQUISITION CORPORATION V | ||
BERRY PLASTICS OPCO, INC. | ||
BERRY PLASTICS ACQUISITION CORPORATION VIII | ||
BERRY PLASTICS ACQUISITION CORPORATION IX | ||
BERRY PLASTICS ACQUISITION CORPORATION X | ||
BERRY PLASTICS ACQUISITION CORPORATION XI | ||
BERRY PLASTICS ACQUISITION CORPORATION XII | ||
BERRY PLASTICS ACQUISITION CORPORATION XIII | ||
ROLLPAK ACQUISITION CORPORATION | ||
ROLLPAK CORPORATION | ||
CAPLAS NEPTUNE, LLC | ||
CAPLAS LLC, each as a Guarantor |
By: | /s/ Mark Miles | |||
Name: | Mark Miles | |||
Title: | Executive Vice President and Treasurer |
[Signature Page to Additional Secured Creditor Consent]
COVALENCE SPECIALTY ADHESIVES LLC, as a Guarantor | ||||
By: | BERRY PLASTICS CORPORATION, | |||
its sole member | ||||
By: | /s/ Mark Miles | |||
Name: | Mark Miles | |||
Title: | Executive Vice President, Treasurer and Controller | |||
COVALENCE SPECIALTY COATINGS LLC, as a Guarantor | ||||
By: | BERRY PLASTICS CORPORATION, | |||
its sole member | ||||
By: | /s/ Mark Miles | |||
Name: | Mark Miles | |||
Title: | Executive Vice President, Treasurer and Controller | |||
AEROCON, LLC, as a Guarantor | ||||
By: | BERRY PLASTICS CORPORATION, | |||
its sole member and manager | ||||
By: | /s/ Mark Miles | |||
Name: | Mark Miles | |||
Title: | Executive Vice President, Treasurer and Controller | |||
BERRY IOWA, LLC, as a Guarantor | ||||
By: | BERRY PLASTICS CORPORATION, | |||
its sole member and manager | ||||
By: | /s/ Mark Miles | |||
Name: | Mark Miles | |||
Title: | Executive Vice President, Treasurer and Controller | |||
BERRY PLASTICS DESIGN, LLC, as a Guarantor | ||||
By: | BERRY PLASTICS CORPORATION, | |||
its sole member and manager | ||||
By: | /s/ Mark Miles | |||
Name: | Mark Miles | |||
Title: | Executive Vice President, Treasurer and Controller |
[Signature Page to Additional Secured Creditor Consent]
POLY-SEAL, LLC, as a Guarantor | ||||
By: | BERRY PLASTICS CORPORATION, | |||
its sole member and manager | ||||
By: | /s/ Mark Miles | |||
Name: | Mark Miles | |||
Title: | Executive Vice President, Treasurer and Controller | |||
KERR GROUP, LLC, as a Guarantor | ||||
By: | BERRY PLASTICS CORPORATION, | |||
its sole member and manager | ||||
By: | /s/ Mark Miles | |||
Name: | Mark Miles | |||
Title: | Executive Vice President, Treasurer and Controller | |||
SAFFRON ACQUISITION, LLC, as a Guarantor | ||||
By: | KERR GROUP, LLC, | |||
its sole member and manager | ||||
By: BERRY PLASTICS CORPORATION, | ||||
its sole member and manager | ||||
By: | /s/ Mark Miles | |||
Name: | Mark Miles | |||
Title: | Executive Vice President, Treasurer and Controller | |||
SUN COAST INDUSTRIES, LLC, as a Guarantor | ||||
By: | SAFFRON ACQUISITION, LLC, | |||
its sole member and manager | ||||
By: KERR GROUP, LLC, | ||||
its sole member and manager | ||||
By: BERRY PLASTICS CORPORATION, | ||||
its sole member and manager | ||||
By: | /s/ Mark Miles | |||
Name: | Mark Miles | |||
Title: | Executive Vice President, Treasurer and Controller |
[Signature Page to Additional Secured Creditor Consent]
SETCO, LLC, as a Guarantor | ||||
By: KERR GROUP, LLC, | ||||
its sole member | ||||
By: BERRY PLASTICS CORPORATION, | ||||
its sole member and manager | ||||
By: | /s/ Mark Miles | |||
Name: | Mark Miles | |||
Title: | Executive Vice President, Treasurer and Controller | |||
GRAFCO INDUSTRIES LIMITED PARTNERSHIP, as a Guarantor | ||||
By: | CAPLAS NEPTUNE, LLC | |||
its General Partner | ||||
By: | /s/ Mark Miles | |||
Name: | Mark Miles | |||
Title: | Executive Vice President and Treasurer | |||
BERRY PLASTICS ACQUISITION CORPORATION XV, | ||||
By: | BERRY PLASTICS CORPORATION, | |||
its sole member | ||||
By: | /s/ Mark Miles | |||
Name: | Mark Miles | |||
Title: | Executive Vice President, Treasurer and Controller | |||
PLIANT CORPORATION INTERNATIONAL, as a Guarantor | ||||
By: | /s/ Mark Miles | |||
Name: | Mark Miles | |||
Title: | Executive Vice President and Treasurer | |||
PLIANT FILM PRODUCTS OF MEXICO, INC., as a Guarantor | ||||
By: | /s/ Mark Miles | |||
Name: | Mark Miles | |||
Title: | Executive Vice President and Treasurer |
[Signature Page to Additional Secured Creditor Consent]
PLIANT PACKAGING OF CANADA, LLC, | ||||
as a Guarantor | ||||
By: | /s/ Mark Miles | |||
Name: | Mark Miles | |||
Title: | Executive Vice President and Treasurer | |||
UNIPLAST U.S., INC., as a Guarantor | ||||
By: | /s/ Mark Miles | |||
Name: | Mark Miles | |||
Title: | Executive Vice President and Treasurer | |||
BERRY PLASTICS SP, INC., as a Guarantor | ||||
By: | /s/ Mark Miles | |||
Name: | Mark Miles | |||
Title: | Executive Vice President and Treasurer | |||
PLIANT, LLC, as a Guarantor | ||||
By: | BERRY PLASTICS CORPORATION, | |||
its manager | ||||
By: | /s/ Mark Miles | |||
Name: | Mark Miles | |||
Title: | Executive Vice President, Treasurer and Controller | |||
UNIPLAST HOLDINGS, LLC, as a Guarantor | ||||
By: | PLIANT, LLC, | |||
its manager | ||||
By: BERRY PLASTICS CORPORATION, | ||||
its manager | ||||
By: | /s/ Mark Miles | |||
Name: | Mark Miles | |||
Title: | Executive Vice President, Treasurer and Controller | |||
KNIGHT PLASTICS, LLC, as a Guarantor |
[Signature Page to Additional Secured Creditor Consent]
By: | BERRY PLASTICS SP, INC., | |||
its manager | ||||
By: | /s/ Mark Miles | |||
Name: | Mark Miles | |||
Title: | Executive Vice President and Treasurer | |||
PACKERWARE, LLC, as a Guarantor | ||||
By: | BERRY PLASTICS SP, INC., | |||
its manager | ||||
By: | /s/ Mark Miles | |||
Name: | Mark Miles | |||
Title: | Executive Vice President and Treasurer | |||
CAPTIVE PLASTICS, LLC, as a Guarantor | ||||
By: | BERRY PLASTICS SP, INC., | |||
its manager | ||||
By: | /s/ Mark Miles | |||
Name: | Mark Miles | |||
Title: | Executive Vice President and Treasurer | |||
CAPTIVE PLASTICS HOLDINGS, LLC, as a Guarantor | ||||
By: | BERRY PLASTICS SP, INC., | |||
its manager | ||||
By: | /s/ Mark Miles | |||
Name: | Mark Miles | |||
Title: | Executive Vice President and Treasurer |
[Signature Page to Additional Secured Creditor Consent]