FIFTH SUPPLEMENTAL INDENTURE
The undersigned are executing and delivering this Fifth
Supplemental Indenture pursuant to Section 4.13 of the Indenture, dated as
of August 24, 1998, as supplemented (the "Indenture"), among Xxxxx Plastics
Corporation (the "Company"), BPC Holding Corporation ("BPC Holding"), Xxxxx
Iowa Corporation ("Xxxxx Iowa"), Xxxxx Tri-Plas Corporation ("Xxxxx
Tri-Plas"), Xxxxx Xxxxxxxx Corporation ("Xxxxx Xxxxxxxx"), AeroCon, Inc.
("AeroCon"), PackerWare Corporation ("PackerWare"), Xxxxx Plastics Design
Corporation ("Xxxxx Design"), Venture Packaging, Inc. ("Venture"), Xxxxx
Plastics Technical Services, Inc. ("Xxxxx Technical"), Venture Packaging
Midwest, Inc. ("Midwest"), NIM Holdings Limited ("NIM"), Xxxxx Plastics
U.K. Limited ("Xxxxx UK"), Norwich Acquisition Limited ("Norwich"), Knight
Plastics, Inc. ("Knight"), CPI Holding Corporation ("CPI"), Cardinal
Packaging, Inc. ("Cardinal"), Poly-Seal Corporation ("Poly-Seal"), Xxxxx
Plastics Acquisition Corporation II ("BPAC II"), Xxxxx Plastics Acquisition
Corporation III ("BPAC III"), CBP Holdings S.r.l. (f/k/a Capsol Xxxxx
Plastics S.r.l.) ("CBP Holdings"), Capsol Xxxxx Plastics S.p.A. (f/k/a
Capsol S.p.A.) ("Capsol"), Ociesse S.r.l. ("Ociesse") and United States
Trust Company of New York, as trustee (the "Trustee"). Capitalized terms
used herein have the same meanings given in the Indenture unless otherwise
indicated.
By executing and delivering to the Trustee this Fifth
Supplemental Indenture, Pescor, Inc., a Delaware corporation ("New
Guarantor"), hereby becomes a "Guarantor" under the Indenture and hereby
agrees to become a party to, to be bound by, and to comply with the
provisions of the Indenture in the same manner as if it were an original
signatory to such agreement.
The New Guarantor hereby unconditionally guarantees that (i) the
principal of and interest on the Notes will be paid in full when due,
whether at the maturity or interest payment or mandatory redemption date,
by acceleration, call for redemption or otherwise, and interest on the
overdue principal of and interest, if any, on the Notes and all other
obligations of the Company to the Holders or the Trustee under the
Indenture or the Notes will be promptly paid in full or performed, all in
accordance with the terms of the Indenture and the Notes and (ii) in case
of any extension of time of payment or renewal of any Notes or any of such
other obligations, that the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether
at maturity, by acceleration or otherwise.
By executing and delivering to the Trustee this Fifth
Supplemental Indenture, each of BPC Holding, Xxxxx Iowa, Xxxxx Tri-Plas,
Xxxxx Xxxxxxxx, AeroCon, PackerWare, Xxxxx Design, Venture, Xxxxx
Technical, Midwest, NIM, Xxxxx UK, Norwich, Knight, CPI, Cardinal, Poly-
Seal, BPAC II, BPAC III, CBP Holdings, Capsol, and Ociesse (each an "Old
Guarantor") hereby reaffirms its obligations under the Indenture as
previously supplemented and as further supplemented hereby.
The obligations of each of the undersigned to each Holder and to
the Trustee pursuant hereto are as expressly set forth in Article 10 of the
Indenture which terms are incorporated herein by reference.
This is a continuing guarantee and shall remain in full force and
effect and shall be binding upon each of the undersigned and its successors
and assigns until full and final payment of all of the Company's
obligations under the Notes and the Indenture and shall inure to the
benefit of the successors and assigns of the Trustee and the Holders and,
in the event of any transfer or assignment of rights by any Holder or the
Trustee, the rights and privileges herein conferred upon that party shall
automatically extend to and be vested in such transferee or assignee, all
subject to the terms and conditions hereof. This is a guarantee of payment
and not a guarantee of collection.
Each of the Company and the Guarantors (hereinafter,
collectively, the "Obligors") hereby agrees that all judicial proceedings
brought against it arising out of or relating to the Indenture, or any
obligations hereunder, may be brought in any State or Federal Court of
competent jurisdiction in the State, County and City of New York in the
United States of America. By executing and delivering this Fifth
Supplemental Indenture, each of the Obligors hereby irrevocably: (i)
accepts generally and unconditionally the nonexclusive jurisdiction and
venue of such courts, (ii) waives any defense of FORUM NON CONVENIENS;
(iii) designates and appoints Xxxxxx X. Xxxx, or such other persons located
in New York State selected by the Obligors from time to time, and agreeing
in writing to so serve, as its agent to receive on its behalf service of
all process in any such proceedings in any such court, such service being
hereby acknowledged by each of the Obligors to be effective and binding
service in every respect (with a copy of any such process so served to be
mailed by registered mail to each of the Obligors at its address provided
that, unless otherwise provided by applicable law, any failure to mail such
copy shall not affect the validity of service of such process) and each of
the Obligors hereby agrees that service of process sufficient for personal
jurisdiction in any action in the State of New York may be made by
registered or certified mail, return receipt requested, to it at its
address and hereby acknowledges that such service shall be effective and
binding in every respect; and nothing herein shall affect the right to
serve process in any other manner permitted by law or shall limit the right
to bring proceedings against any of the Obligors in the courts of any other
jurisdiction; and (iv) agrees that the provisions of this Fifth
Supplemental Indenture relating to jurisdiction and venue shall be binding
and enforceable to the fullest extent permissible under New York General
Obligations Law, Section 5-1402 or otherwise.
Any and all payments to be made by any of the undersigned to the
Trustee shall be made in U.S. Dollars. If, for the purpose of calculating
the amount of any judgment in any court, it is necessary to convert into
any other currency (the "Judgment Currency") an amount due in U.S. Dollars
under the Indenture, then the conversion shall be made at the discretion of
the Trustee, at the rate of exchange prevailing either on the date of
default or on the day before the day on which the award or judgment is
given (the "Conversion Date"). If there is a change in the rate of
exchange prevailing between the Conversion Date and the date of actual
payment of the amount due, the undersigned will pay such additional amounts
(if any, but in any event, not a lesser amount) as may be necessary to
ensure that the amount paid in the Judgment Currency when converted at the
rate of exchange prevailing on the date of payment will produce the amount
then due in U.S. Dollars.
This Fifth Supplemental Indenture may be executed in
counterparts. Each signed copy shall be an original, but all of them
together represent the same agreement.
IN WITNESS WHEREOF, the undersigned have duly executed and delivered this
Fifth Supplemental Indenture as of the 14th day of May, 2001.
ATTEST: XXXXX PLASTICS CORPORATION
By: /S/ XXXXX X. XXXXXXXXXX
By: Xxxxx X. Xxxxxxxxxx
/S/ Executive Vice President, Chief Financial
XXXXXX Officer, Treasurer and Secretary
X.
XXXXXX
Xxxxxx
X.
Xxxxxx
BPC HOLDING CORPORATION
By: /S/ XXXXX X. XXXXXXXXXX
Xxxxx X. Xxxxxxxxxx
Executive Vice President, Chief Financial
Officer, Treasurer and Secretary
XXXXX IOWA CORPORATION
By: /S/ XXXXX X. XXXXXXXXXX
Xxxxx X. Xxxxxxxxxx
Executive Vice President, Chief Financial
Officer, Treasurer and Secretary
XXXXX XXX-XXXX CORPORATION
By: /S/ XXXXX X. XXXXXXXXXX
Xxxxx X. Xxxxxxxxxx
Executive Vice President, Chief Financial
Officer, Treasurer and Secretary
XXXXX XXXXXXXX CORPORATION
By: /S/ XXXXX X. XXXXXXXXXX
Xxxxx X. Xxxxxxxxxx
Executive Vice President, Chief Financial
Officer, Treasurer and Secretary
AEROCON, INC.
By: /S/ XXXXX X. XXXXXXXXXX
Xxxxx X. Xxxxxxxxxx
Executive Vice President, Chief Financial
Officer, Treasurer and Secretary
PACKERWARE CORPORATION
By: /S/ XXXXX X. XXXXXXXXXX
Xxxxx X. Xxxxxxxxxx
Executive Vice President, Chief Financial
Officer, Treasurer and Secretary
XXXXX PLASTICS DESIGN CORPORATION
By: /S/ XXXXX X. XXXXXXXXXX
Xxxxx X. Xxxxxxxxxx
Executive Vice President, Chief Financial
Officer, Treasurer and Secretary
VENTURE PACKAGING, INC.
By: /S/ XXXXX X. XXXXXXXXXX
Xxxxx X. Xxxxxxxxxx
Executive Vice President, Chief Financial
Officer, Treasurer and Secretary
XXXXX PLASTICS TECHNICAL SERVICES, INC.
By: /S/ XXXXX X. XXXXXXXXXX
Xxxxx X. Xxxxxxxxxx
Executive Vice President, Chief Financial
Officer, Treasurer and Secretary
VENTURE PACKAGING MIDWEST, INC.
By: /S/ XXXXX X. XXXXXXXXXX
Xxxxx X. Xxxxxxxxxx
Executive Vice President, Chief Financial
Officer, Treasurer and Secretary
NIM HOLDINGS LIMITED
By: /S/ XXXXX X. XXXXXXXXXX
Xxxxx X. Xxxxxxxxxx
Director
XXXXX PLASTICS U.K. LIMITED
By: /S/ XXXXX X. XXXXXXXXXX
Xxxxx X. Xxxxxxxxxx
Director
NORWICH ACQUISITION LIMITED
By: /S/ XXXXX X. XXXXXXXXXX
Xxxxx X. Xxxxxxxxxx
Director
KNIGHT PLASTICS, INC.
By: /S/ XXXXX X. XXXXXXXXXX
Xxxxx X. Xxxxxxxxxx
Executive Vice President, Chief Financial
Officer, Treasurer and Secretary
CPI HOLDING CORPORATION
By: /S/ XXXXX X. XXXXXXXXXX
Xxxxx X. Xxxxxxxxxx
Executive Vice President, Chief Financial Officer, Treasurer and Secretary
CARDINAL PACKAGING, INC.
By: /S/ XXXXX X. XXXXXXXXXX
Xxxxx X. Xxxxxxxxxx
Executive Vice President, Chief Financial Officer, Treasurer and Secretary
XXXXX PLASTICS ACQUISITION CORPORATION II
By: /S/ XXXXX X. XXXXXXXXXX
Xxxxx X. Xxxxxxxxxx
Executive Vice President, Chief Financial
Officer, Treasurer and Secretary
XXXXX PLASTICS ACQUISITION CORPORATION III
By: /S/ XXXXX X. XXXXXXXXXX
Xxxxx X. Xxxxxxxxxx
Executive Vice President, Chief Financial
Officer, Treasurer and Secretary
POLY-SEAL CORPORATION
By: /S/ XXXXX X. XXXXXXXXXX
Xxxxx X. Xxxxxxxxxx
Executive Vice President, Chief Financial
Officer, Treasurer and Secretary
CBP HOLDINGS S.R.L.
By: /S/ XXXXX X. XXXXXXXXXX
Xxxxx X. Xxxxxxxxxx
Director
CAPSOL XXXXX PLASTICS S.P.A.
By: /S/ XXXXX X. XXXXXXXXXX
Xxxxx X. Xxxxxxxxxx
Director
OCIESSE S.R.L.
By: /S/ XXXXX X. XXXXXXXXXX
Xxxxx X. Xxxxxxxxxx
Director
PESCOR, INC.
By: /S/ XXXXX X. XXXXXXXXXX
Xxxxx X. Xxxxxxxxxx
Executive Vice President, Chief Financial Officer, Treasurer and
Secretary
UNITED STATES TRUST COMPANY OF NEW YORK, AS TRUSTEE
By: /S/ XXXXXXX XXXXXX
Name: Xxxxxxx Xxxxxx
Title: Assistant Vice President
