ex1021.htm


    EXHIBIT
10.21

     

    PURCHASE AND SALE AGREEMENT
(this “Agreement”), dated as
of December 15, 2008, by and between BP Parallel Corporation, a Delaware
corporation (“Berry”), and Apollo
Management VI, L.P., a Delaware limited partnership (“Apollo”).

     

    WHEREAS,
Apollo and its affiliates from time to time purchase securities in open market
or privately negotiated transactions for their own account, including debt
securities;

     

    WHEREAS,
Apollo intends to facilitate from time to time during the term of this Agreement
certain purchases by Berry of outstanding debt securities of Berry Plastics
Corporation or Berry Plastics Group, Inc. by purchasing such debt securities in
open market or privately negotiated transactions (any such debt securities so
purchased by Apollo, the “Notes”);
and

     

    WHEREAS,
Apollo may propose to Berry that any purchases by Apollo of Notes be subject to
the terms of this Agreement, on the terms contemplated by this Agreement, mutatis
mutandis.

     

    NOW,
THEREFORE, in consideration of the premises and of the mutual covenants,
agreements and warranties herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:

     

    1.           Designation of
Notes.  From time to time Apollo may propose to sell Notes to
Berry in accordance with this Agreement.  In the event Berry desires
to purchase any such Notes, Apollo and Berry agree to execute a schedule of
designated notes (each a “Designated Notes Schedule”) which shall describe,
among other things, the Notes to be acquired, the anticipated Closing Date and
the Consideration (as defined below) therefore.  Notes set forth on a
Designated Notes Schedule are referred to herein as “Designated
Notes.”  For avoidance of doubt (a) in the event Apollo has acquired
any Notes prior to the date of this Agreement, such Notes shall not be
Designated Notes unless included on a Designated Notes Schedule signed by Berry
and Apollo and (b) the parties may execute a Designated Notes Schedule prior to
the purchase by Apollo of the applicable Designated Notes, in which case the
Designated Notes Schedule may provide (i) the range of acceptable purchase
prices with respect to Apollo’s purchase of such Designated Notes and (ii) that
such Designated Notes Schedule shall be void and of no force and effect if
Apollo has not acquired any of such Designated Notes by the end of a specified
period.

     

    2.           Purchase and Sale.
(a) Subject to the terms and conditions herein set forth, Berry agrees to
purchase, or cause one of its affiliates to purchase, from Apollo, and Apollo
agrees to sell to Berry or such affiliate, on a Closing Date (as hereinafter
defined), any Designated Notes held by Apollo as of such Closing Date in
exchange for the sum of Apollo’s purchase price of such Designated Notes set
forth in the applicable Designated Notes Schedule, plus any reasonable out of
pocket fees and expenses incurred by Apollo (such amount to be provided to Berry
in reasonable detail) in connection with Apollo’s purchase (collectively, the
“Consideration”),
provided, however, that if the
conditions set forth in Section 7(b) or (c) are not satisfied prior to or on the
fifth day following the filing of the fiscal quarter results for the third
fiscal quarter following Apollo’s purchase of any Designated Notes, then Apollo
may sell such Notes to third parties on terms and conditions reasonably
acceptable to Apollo (a “Third Party Sale”).
For the avoidance of doubt, any interest on the Designated Notes accruing
between the date of Apollo’s purchase and the Closing Date (or any sale of
Designated Notes pursuant to the preceding proviso) shall be for Apollo’s
account.

     

    (b) Upon
the earlier of a binding agreement for a Third Party Sale or consummation of a
Third Party Sale, this Agreement shall no longer be effective with respect to
the Notes that are the subject of the Third Party Sale, and neither party shall
have any liability or obligation to the other party hereto with respect to such
Designated Notes.

     

    3.           Representations and
Warranties of Berry. Berry hereby represents and warrants to Apollo, as
of the date of this Agreement and as of any Closing Date, as
follows:

     

    (a)           Due Organization.
Berry has been duly formed and is validly existing as a corporation in good
standing under the laws of the State of Delaware.

     

    (b)           Authorization. Berry
has the requisite power to enter into this Agreement and the transactions
contemplated hereby and to carry out its obligations hereunder and thereunder.
This Agreement has been duly authorized, and this Agreement has been duly
executed and delivered by Berry and constitutes a valid and binding agreement
enforceable in accordance with its terms, except, to the extent that
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other laws affecting the enforcement of creditors rights
generally or by general equitable principles. Neither the execution and delivery
of this Agreement, the consummation of the transactions contemplated hereby, nor
compliance with the terms, conditions or provisions of this Agreement will be a
violation of any of the terms, conditions or provisions of Berry’s
organizational documents (as amended through the Closing Date).

     

    4.           Representations and
Warranties of Apollo. Apollo hereby represents and warrants to Berry, as
of the date of this Agreement and as of any Closing Date, as
follows:

     

    (a)           Due Organization.
Apollo is duly organized and is validly existing as a limited partnership in
good standing under the laws of the State of Delaware.

     

    (b)           Authorization. Apollo
has the requisite power to enter into this Agreement and the transactions
contemplated hereby and to carry out its obligations hereunder and thereunder.
This Agreement has been duly authorized, executed and delivered by Apollo and
constitutes a valid and binding agreement of Apollo enforceable in accordance
with its terms, except to the extent that enforceability may be limited by
applicable bankruptcy, insolvency, reorganization or other laws affecting the
enforcement of creditors rights generally or by general equitable principles.
Neither the execution and delivery of this Agreement, consummation of the
transactions contemplated hereby, nor compliance with the terms, conditions or
provisions of this Agreement, will be a violation of any of the terms,
conditions or provisions of Apollo’s organizational documents (as amended
through the Closing Date).

     

    (c)           Title. As of the
Closing Date, Apollo will have good and valid title to the Designated Notes,
free and clear of any and all liens, encumbrances, claims, security interests
and other legal or equitable encumbrances of any nature whatsoever, and at the
Closing Date, upon delivery of the Consideration therefor, Apollo will deliver
to Berry good, valid and marketable title to the Designated Notes, free and
clear of all liens, encumbrances, claims, security interests and other legal or
equitable encumbrances of any nature whatsoever.

     

    5.           Public Announcements.
The parties will consult with each other before issuing, and provide each other
with the reasonable opportunity to review and comment upon, any press release or
otherwise making any public statements with respect to the transactions
contemplated by this Agreement, and shall not issue any such press release or
make any such public statement without the reasonable consent of the other
party, except as may be required by applicable law, by court process or by
obligations pursuant to any listing agreement with any national securities
exchange or transaction reporting system so long as the other party is notified
promptly by the disclosing party of such press release or public
statement.

     

    6.           Closing. With respect
to the acquisition of Designated Notes specified in Designated Notes Schedule,
the closing thereof (a “Closing”) shall occur
at 10:00 a.m. (Eastern time) as soon as practicable after the execution of such
Designated Notes Schedule but in any event no later than the second business day
following the date upon which all of the conditions set forth in Section 6 and
Section 7 are satisfied or waived (other than those conditions that by their
nature are to be satisfied at the Closing, but subject to the satisfaction or
(to the extent permitted by applicable law) waiver of those conditions), or at
such other place, time and date as shall be agreed in writing between Berry and
Apollo (such date being the “Closing Date”). The
Closing shall take place in person or electronically, at a place as the parties
shall mutually agree, at which time the parties shall make the deliveries
described below.

     

    (a)           Deliveries by Berry.
At the Closing, Berry shall deliver or cause to be delivered to Apollo the sum
of (i) the Consideration plus (ii) any accrued
and unpaid interest on the Designated Notes, which shall be delivered by wire
transfer of immediately available funds to the account specified by
Apollo.

     

    (b)           Deliveries by Apollo.
At the Closing, Apollo shall deliver or cause to be delivered to Berry a letter
of transmittal in customary form transferring the Designated Notes to Berry,
together with such other documents of transfer as Berry shall reasonably
request, all in form and substance reasonably satisfactory to
Berry.

     

    7.           Conditions to the
Obligations of Berry. The obligations of Berry under this Agreement are
subject to the fulfillment of each of the following conditions:

     

     (a)           Injunctions. No
preliminary or permanent injunction or other final order by any United States
federal or state court shall have been issued which prevents the consummation of
the transactions contemplated hereby.

     

    (b)           Financial Covenant
Compliance. Berry Plastics Corporation shall be in Pro Forma Compliance
as defined in and pursuant to (i) the Second Amended and Restated Term Loan
Credit Agreement, dated April 3, 2007, by and among Berry Plastics Corporation,
Berry Plastics Group, Inc., the subsidiaries of Berry Plastics Corporation party
thereto, the lenders party thereto, Credit Suisse, Cayman Islands Branch, as
administrative agent and the other agents party thereto, and (ii) the Amended
and Restated Revolving Credit Agreement, dated as of April 3, 2007, by and among
Berry Plastics Corporation, Berry Plastics Group, Inc., the subsidiaries of
Berry Plastics Corporation party thereto, the lenders party thereto, Bank of
America, N.A. as administrative agent and the other agents party
thereto.

     

    (c)           Other Debt Agreement
Compliance.  Berry Plastics Corporation and Berry Plastics
Group, Inc. shall be in compliance with all other material agreements evidencing
material indebtedness of Berry Plastics Corporation or Berry Plastics Group,
Inc. as applicable; and the purchase and sale of Designated Notes as
contemplated by this Agreement shall be permitted under the terms of all
material agreements evidencing material indebtedness of Berry Plastics
Corporation and Berry Plastics Group, Inc.

     

    8.           Conditions to the
Obligations of Apollo. The obligations of Apollo under this Agreement are
subject to the fulfillment of each of the following conditions:

     

    (a)           Performance. Berry
shall have performed and complied in all material respects with all agreements,
covenants, obligations and conditions required by this Agreement to be performed
or complied with by it.

     

    (b)           Injunctions. No
preliminary or permanent injunction or other final order by any United States
federal or state court shall have been issued which prevents the consummation of
the transactions contemplated hereby.

     

    9.           Survival. The
representations and warranties of the parties shall survive the Closing
indefinitely.

     

    10.           Termination.  This
Agreement may be terminated and the transactions contemplated hereby may be
abandoned at any time:

     

    (a)           by
mutual written consent of Berry and Apollo;

     

    (b)           by
either Berry or Apollo if a permanent injunction or other final order by any
United States federal or state court shall have been issued which prevents the
consummation of the transactions contemplated hereby; or

     

    (c)           by
either Berry or Apollo upon thirty (30) days prior written notice so long as
Apollo no longer holds any Designated Notes.

     

    11.           Successors and
Assigns. The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties and their respective legal successors and
permitted assigns. No provision of this Agreement is intended to confer any
rights, benefits, remedies, obligations or liabilities hereunder upon any person
or entity other than the parties and their respective legal successors and
permitted assigns. Neither party may assign, delegate or otherwise transfer any
of its rights or obligations under this Agreement without the prior written
consent of the other party.

     

    12.           Notices. Any notice
or other communication provided for herein or given hereunder to a party shall
be in writing and shall be given by delivery, by telex, telecopier or by mail
(registered or certified mail, postage prepaid, return receipt requested) to the
respective parties as follows:

     

    If to
Berry:

     

    BP
Parallel Corporation

    101
Oakley Street

    Evansville,
Indiana 47710

    Attn: Ira
G. Boots

    Fax:
(812) 421-9804

    


    If to any
Apollo entity:

     

    Apollo
Management VI, L.P.

    9 West
57th St.

    New York,
New York 10019

    Attn:
Robert V. Seminara

    Fax:
(212) 515-3263

    


    or to
such other address with respect to a party as such party shall notify the other
in writing.

     

    13.           Waiver. No party may
waive any of the terms or conditions of this Agreement, nor may this Agreement
be amended or modified, except by a duly signed writing referring to the
specific provision to be waived, amended or modified. No failure or delay by any
party in exercising any right, power or privilege hereunder shall operate as a
waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege.

     

    14.           Entire Agreement.
This Agreement constitutes the entire agreement, and supersedes all other prior
agreements and understandings, both written and oral, among the parties and
their affiliates.

     

    15.           Expenses. Except as
otherwise expressly contemplated herein to the contrary, regardless of whether
the transactions contemplated hereby are consummated, each party shall pay its
own expenses incident to preparing for, entering into and carrying out this
Agreement and the consummation of the transactions contemplated
hereby.

     

    16.           Captions. The Section
and Paragraph captions herein are for convenience of reference only, do not
constitute part of this Agreement and shall not be deemed to limit or otherwise
affect any of the provisions hereof.

     

    17.           Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original but all of which shall constitute one and the same
instrument. This Agreement shall become effective when each party shall have
received counterparts hereof signed by each of the other parties.

     

    18.           GOVERNING LAW. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REGARD TO THE CONFLICTS OF LAW RULES OF SUCH
STATE.

     

    19.           Jurisdiction; Venue;
Services of Process. Each of the parties hereto hereby irrevocably and
unconditionally consents to submit to the exclusive jurisdiction of the Delaware
Court of Chancery in and for New Castle County, or in the event (but only in the
event) that such court does not have subject matter jurisdiction over such
action or proceeding, the United States District Court for the District of
Delaware, for any proceeding arising out of or relating to this Agreement and
the transactions contemplated hereby (and agrees not to commence any proceeding
relating thereto except in such courts), and further agrees that service of any
process, summons, notice or document by U.S. registered mail to its respective
address set forth in this Agreement shall be effective service of process for
any proceeding brought against it in any such court.  Each of the
parties hereto hereby irrevocably and unconditionally waives any objection to
the laying of venue of any proceeding arising out of this Agreement or the
transactions contemplated hereby in the Delaware Court of Chancery in and for
New Castle County, or in the event (but only in the event) that such court does
not have subject matter jurisdiction over such action or proceeding, the United
States District Court for the District of Delaware, and hereby further
irrevocably and unconditionally waives and agrees not to plead or claim in any
such court that any such proceeding brought in any such court has been brought
in an inconvenient forum.  Each of the parties hereto agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.

     

    20.           Severability. If any
term, provision, covenant or restriction of this Agreement is held by a court of
competent jurisdiction or other authority to be invalid, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions of this
Agreement shall remain in full force and effect and shall in no way be affected,
impaired or invalidated so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner materially
adverse to any party.

     

    


     

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    IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed and
delivered as of the day and year first executed.

     

    


     

    BP
PARALLEL CORPORATION

    


    


    By:           ____________________________________

    Name:

     

    Title:

     

    APOLLO
MANAGEMENT VI, L.P.

    


    By: AIF
VI Management, LLC, its General Partner

    


    


    By:           ____________________________________

    Name:

     

    Title: