Exhibit 10.4
COUNTERPART AGREEMENT
November 20, 2003
This Counterpart Agreement ("COUNTERPART AGREEMENT") of Xxxxxx
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 Xxxxx Plastics Corporation
("XXXXX"), BPC Holding Corporation, certain Subsidiaries of Xxxxx, as
Guarantors, the Lenders party thereto from time to time, Xxxxxxx Xxxxx 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.
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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.
XXXXXX PLASTICS, INC.
By:/s/ Xxxxx X. Xxxxxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Secretary
Address for Notices:
Xxxxx Plastics Corporation
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Chief Financial Officer
Telecopier: (000) 000-0000
with a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Telecopier: (000) 000-0000
ACKNOWLEDGED AND ACCEPTED,
as of the date above first written:
XXXXXXX XXXXX CREDIT PARTNERS L.P.,
as Administrative Agent
By:/s/ X. X. Xxxxxx
-------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
FLEET NATIONAL BANK,
as Collateral Agent
By:/s/ Xxxxxxx XxXxxxxx
-----------------------
Name: Xxxxxxx XxXxxxxx
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. 0000 Xxxxx 0xx Xxxxxx Xxxxxxxxxx, XX 00000 White County
2. 000 Xxxxxxxx Xxxx Xxxxxxxx, XX 00000 Xxxxx Xxxxxx
Leased Property:
ADDRESS CITY, STATE & ZIP CODE COUNTY
------- ---------------------- ------
1. 0000 Xxxx Xxxxxxxxxx Xx Xxxxxxxx, XX 00000 Maricopa County
2. 5750-5751 000 Xxxxxx Xxxxx, Xxxxxxxx 00000 Xxxx Xxxxxx
3. 11600/11700 Xxxxx Xxxxx, XX 00000 Xxxx County
Central Ave.
4. 0000 Xxxxxx Xxx. Xxxxxx, XX 00000 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. Xxxxxx 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. Xxxxx Plastics Corporation Xxxxxx Plastics, Inc. 100 100%
SCHEDULE 4.4 TO
AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT
GUARANTOR SUBSIDIARIES:
1. Xxxxxx 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
--------------------- --------------------- ------ ------------------------
Xxxxxx Plastics, Inc. 0000 Xxxxx 0xx Xxxxxx Xxxxx Xxxxxxxxxx, XX 00000
Xxxxxx Plastics, Inc. 000 Xxxxxxxx Xxxx Xxxxx Xxxxxxxx, XX 00000
LEASED REAL PROPERTY:
CITY, STATE MONTHLY RENTAL
ENTITY MAILING ADDRESS COUNTY AND ZIP CODE TERM PAYMENT
--------------------- -------------------- -------- -------------- ----------------------- --------------
Xxxxxx Plastics, Inc. 0000 Xxxx Xxxxxxxxxx Xxxxxxxx Xxxxxxxx, XX Term expires 11/[ ]/23 [ ]
Street 85353
Xxxxxx Plastics, Inc. 0000-0000 000xx Xxxx Xxxxx, XX Term expires 11/[ ]/23 [ ]
Street/ 60482
Xxxxxx Plastics, Inc. 11600/11700 South Xxxx Alsip, IL Term expires 11/[ ]/23 [ ]
Xxxxxxx Xxxxxx 00000
Xxxxxx Plastics, Inc. 00000 Xxxxx Xxxxxxx Xxxx Xxxxxxx Xxxxx, [ ] [ ]
Xxxxxx XX 00000
Xxxxxx Plastics, Inc. 0000 Xxxxxx Xxxxxx, Xxxxxxx Xxxxxx, XX Term expires 11/[ ]/23 [ ]
Xxxxxx, XX 00000
Xxxxxx Plastics, Inc. 0000 Xxxxxxxx Xxxx Xxxxxxx Xxxxx, [ ] [ ]
Xxxxxxxxx XX 00000
