Exhibit 3.2

 

Exhibit A

 

AMENDED AND RESTATED BYLAWS

 

OF

 

BERRY PLASTICS CORPORATION

 

 

ARTICLE I

OFFICES

 

Section 1.1   Registered Office. The registered office of Berry Plastics Corporation (the “Corporation”) in the State of Delaware shall be at 160 Greentree Drive, Suite 101, Dover, Delaware 19904, Kent County, and the registered agent in charge thereof shall be National Registered Agents, Inc.

 

Section 1.2 Other Offices. The Corporation may have other offices, either within or without the State of Delaware, at such place or places as the Board of Directors may from time to time select or the business of the Corporation may require.

 

ARTICLE II

MEETINGS OF STOCKHOLDERS

 

Section 2.1 Annual Meetings. The annual meeting of the stockholders of the Corporation for the election of directors and such other business as may be stated in the notice of the meeting shall be held at such place, either within or without the State of Delaware, on such date and at such time as shall from time to time be fixed by the Board of Directors. At the annual meeting, the stockholders shall elect a Board of Directors and transact such other business as may properly be brought before the meeting.

 

Section 2.2 Special Meetings. Special meetings of the stockholders of the Corporation for any purpose or purposes may be called by the Chief Executive Officer or the Secretary or by resolution of the Board of Directors.

 

Section 2.3 Voting. Each stockholder entitled to vote in accordance with the terms of the Certificate of Incorporation and these Bylaws may vote in person or by proxy, but no proxy shall be voted after three years from its date unless such proxy provides for a longer period. All elections for directors shall be decided by plurality vote; all other questions shall be decided by majority vote, in each case except as otherwise provided in the Certificate of Incorporation or the laws of the State of Delaware.

 

  

A complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, with the address of each and the number of shares held by each, shall be open to the examination of any stockholder, for any purpose germane to the meeting, for a period of at least ten days prior to the meeting (a) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (b) during ordinary business hours, at the principal place of business of the Corporation. The list shall also be produced and kept at the time and place of the meeting and may be inspected by any stockholder who is entitled to be present.

 

Section 2.4 Quorum. Except as otherwise required by law, the Certificate of Incorporation or these Bylaws, the presence, in person or by proxy, of stockholders holding shares constituting a majority of the voting power of the Corporation shall constitute a quorum at all meetings of the stockholders. In case a quorum shall not be present at any meeting, a majority in interest of the stockholders entitled to vote thereat, present in person or by proxy, shall have the power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until the requisite amount of stock entitled to vote shall be present. At any such adjourned meeting at which the requisite amount of stock entitled to vote shall be represented, any business may be transacted that might have been transacted at the meeting as originally noticed, but only those stockholders entitled to vote at the meeting as originally noticed shall be entitled to vote at any adjournment or adjournments thereof.

 

Section 2.5 Notice of Meetings. Written notice, stating the place, date and time of the meeting and the business to be considered, shall be given to each stockholder entitled to vote thereat, at his or her address as it appears on the records of the Corporation, not less than ten nor more than sixty days before the date of the meeting.

 

Section 2.6 Action by Written Consent. Any action required or permitted to be taken at any meeting of stockholders may be taken without a meeting, without prior notice and without a vote if a consent in writing, setting forth the action so taken, is signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted.

 

ARTICLE III

BOARD OF DIRECTORS

 

Section 3.1 General Powers. The business and affairs of the Corporation shall be managed under the direction of its Board of Directors.

 

Section 3.2 Number and Election. The Board of Directors shall initially consist of three directors, but this number may be from time to time increased or decreased by the Board of Directors or by the stockholders, but in no case shall the number be less than one. Directors shall hold office until their resignation, removal, retirement, death, disqualification, or until their successor is elected and has qualified. A director need not be a stockholder.

 

  

Section 3.3 Vacancies. Any vacancy occurring on the Board of Directors, including a vacancy resulting from an increase in the number of directors, may be filled by action of the stockholders or by the affirmative vote of a majority of the remaining directors though such majority be less than a quorum of the Board of Directors.

 

Section 3.4 Regular Meetings. The Board of Directors may hold a regular meeting at such time and place as the Board may from time to time determine. Regular meetings may be held without notice.

 

Section 3.5 Special Meetings. Special meetings of the Board of Directors may be called by or at the request of the Chief Executive Officer, the Secretary or any director. Notice of the time and place of each special meeting shall be given orally or in writing to each director in advance of the meeting. Any director may waive notice of any meeting, and attendance at or participation in any meeting shall constitute a waiver of notice of such meeting unless the director objects at the beginning of the meeting, or promptly upon arrival, to holding it or transacting business at the meeting and does not thereafter vote for or assent to action taken at the meeting.

 

Section 3.6 Quorum. A majority of the number of directors determined under these Bylaws shall constitute a quorum for the transaction of business at any meeting of the Board of Directors. If a quorum is not present, a majority of those in attendance may adjourn the meeting from time to time until a quorum is obtained. The vote of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors unless the Certificate of Incorporation or these Bylaws shall require the vote of a greater number.

 

Section 3.7 Removal and Resignations. Except as provided in the Certificate of Incorporation or by the laws of the State of Delaware, any director may be removed either for or without cause at any time by the affirmative vote of the holders of a majority of the voting power entitled to vote for the election of directors, at an annual meeting or a special meeting called for the purpose. Any director may resign at any time; such resignation shall be made in writing and shall take effect at the time specified therein, or if no time is specified, at the time of its receipt by an officer of the Corporation. The acceptance of a resignation shall not be necessary to make it effective.

 

Section 3.8 Action by Written Consent. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of the Board of Directors may be taken without a meeting if all members of the Board of Directors consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board of Directors.

 

ARTICLE IV
COMMITTEES

 

Section 4.1 Membership. Except for those duties which by law or regulation must be performed by at least a majority of the full Board of Directors, the performance of such duties as the Board deems appropriate may be assigned to one or more committees. Each

 

  

committee shall have the authority of the Board to the full extent provided in these Bylaws or as otherwise determined by the Board. Except as otherwise provided in these Bylaws, membership of each committee shall be established from time to time by the Board of Directors. All members of committees shall serve at the pleasure of the Board of Directors.

 

Section 4.2 Notice. Unless a committee shall provide otherwise, it shall not be necessary to give notice of any of its regular meetings. Special meetings of a committee may be called by or at the request of the chairman of the committee or in such manner as provided in these Bylaws for calling special meetings of the Board of Directors.

 

Section 4.3 Action by Written Consent. Any action that may be taken at a meeting of a committee of the Board of Directors may also be taken without a meeting in accordance with the procedures applicable to actions taken by the full Board of Directors.

 

ARTICLE V
OFFICERS

 

Section 5.1 Officers. The officers of the Corporation may include a Chief Executive Officer, a Chief Financial Officer, a Secretary, a Treasurer, one or more Executive Vice Presidents, one or more Vice Presidents and such other officers as may be appointed, from time to time, by the Board of Directors. Additionally, the Chief Executive Officer shall have the power to appoint and to delegate the power to appoint such officers as the Chief Executive Officer may deem appropriate.

 

Section 5.2 Term. Each officer of the Corporation shall serve at the pleasure of the Board of Directors, and the Board of Directors may remove any officer at any time with or without cause. Any officer, if appointed by a committee of the Board of Directors or by another officer of the Corporation, may likewise be removed by such committee or an officer of the Corporation.

 

Section 5.3 Authority and Duties. All officers of the Corporation shall have such authority and perform such duties in the management of the property and affairs of the Corporation as generally pertain to their respective offices, as well as such authority and duties as may be determined by the Board of Directors, a committee of the Board of Directors or the Chief Executive Officer.

 

Section 5.4 Employees Other Than Officers. Subject to the authority of the Board of Directors, a committee of the Board of Directors, the Chief Executive Officer or any officer authorized by a committee of the Board of Directors or the Chief Executive Officer may employ such agents and employees other than officers as such committee or officer may deem advisable for the prompt and orderly transaction of the business of the Corporation, define their duties, fix their compensation and dismiss them.

 

  

ARTICLE VI

CERTIFICATES FOR SHARES AND THEIR TRANSFER

 

Section 6.1 Form and Signatures. Shares of the Corporation may but need not be represented by certificates. Any certificates evidencing shares of the Corporation shall be signed by (a) the Chief Executive Officer or an Executive Vice President and (b) the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer, or any other officers authorized by a resolution of the Board of Directors, and may but need not be sealed by the seal of the Corporation or a facsimile thereof. The signatures of the officers upon a certificate may be facsimiles.

 

Section 6.2 Lost Certificates. A new certificate of stock may be issued in the place of any certificate theretofore issued by the Corporation, alleged to have been lost or destroyed, and the Board of Directors may, in its discretion, require the owner of the lost or destroyed certificate, or such owner’s legal representatives, to give the Corporation a bond, in such sum as they may direct, not exceeding double the value of the stock, to indemnify the Corporation against any claim that may be made against it on account of the alleged loss of any such certificate, or the issuance of any such new certificate.

 

Section 6.3 Transfer of Shares. Assignment or transfer of shares of the Corporation shall be made only on the books of the Corporation, and any assignment or transfer shall be made at the direction of the holder of record thereof or by the legal representative of the holder of record.

 

ARTICLE VII
INDEMNIFICATION

 

Section 7.1 Indemnification, Mandatory Advancement of Expenses and Contract Rights.

 

(a)          Each person who was or is made a party or is threatened to be made a party to or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “proceeding”), by reason of the fact that he or she or a person of whom he or she is the legal representative is or was, at any time during which these Bylaws are in effect (whether or not such person continues to serve in such capacity at the time any indemnification or payment of expenses pursuant hereto is sought or at the time any proceeding relating thereto exists or is brought), a director or officer of the Corporation or is or was at any such time serving at the request of the Corporation as a director, officer, trustee, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans maintained or sponsored by the Corporation (hereinafter, an “indemnitee”), whether the basis of such proceeding is alleged action in an official capacity as a director, officer, trustee, employee or agent or in any other capacity while serving as a director, officer, trustee, employee or agent, shall be (and shall be deemed to have a contractual right to be) indemnified and held harmless by the Corporation (and any successor of the Corporation by merger or otherwise) to the fullest extent authorized by the DGCL as the same exists or may hereafter be amended or modified from time to time (but, in the case of any such amendment or modification, only to the extent that such amendment or modification

 

  

permits the Corporation to provide greater indemnification rights than said law permitted the Corporation to provide prior to such amendment or modification), against all expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer, trustee, employee or agent and shall inure to the benefit of his or her heirs, executors and administrators; provided, however, that except as provided in Section 7.2(a) of this Article VII, the Corporation shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by the Board of Directors. The right to indemnification conferred in this Article VII shall include the right, without the need for any action by the Board of Directors, to be paid by the Corporation (and any successor of the Corporation by merger or otherwise) the expenses incurred in defending any such proceeding in advance of its final disposition, such advances to be paid by the Corporation within twenty (20) days after the receipt by the Corporation of a statement or statements from the claimant requesting such advance or advances from time to time; provided, however, that if the DGCL requires, the payment of such expenses incurred by a director or officer in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) shall be made only upon delivery to the Corporation of an undertaking (hereinafter, the “undertaking”) by or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right of appeal (a “final disposition”) that such director or officer is not entitled to be indemnified for such expenses under this Article VII or otherwise. The rights conferred upon indemnitees in this Article VII shall be contract rights between the Corporation and each indemnitee to whom such rights are extended that vest at the commencement of such person’s service to or at the request of the Corporation and all such rights shall continue as to an indemnitee who has ceased to be a director or officer of the Corporation or ceased to serve at the Corporation’s request as a director, officer, trustee, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, as described herein, and shall inure to the benefit of the indemnitee’s heirs, executors and administrators.

 

(b)          To obtain indemnification under this Article VII, a claimant shall submit to the Corporation a written request, including therein or therewith such documentation and information as is reasonably available to the claimant and is reasonably necessary to determine whether and to what extent the claimant is entitled to indemnification. Upon written request by a claimant for indemnification pursuant to the first sentence of this paragraph (b), a determination, if required by applicable law, with respect to the claimant's entitlement thereto shall be made as follows: (i) if requested by the claimant, by Independent Counsel (as hereinafter defined), or (ii) if no request is made by the claimant for a determination by Independent Counsel, (A) by the Board of Directors by a majority vote of a quorum consisting of Disinterested Directors (as hereinafter defined), (B) if a quorum of the Board consisting of Disinterested Directors is not obtainable or, even if obtainable, such quorum of Disinterested Directors so directs, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to the claimant, or (C) if a quorum of Disinterested Directors so directs, by a majority of the stockholders of the Corporation. In the event the determination of entitlement to indemnification is to be made by Independent Counsel, the Independent Counsel shall be selected by the Board.

 

  

If it is so determined that the claimant is entitled to indemnification, payment to the claimant shall be made within ten (10) days after such determination.

 

Section 7.2 Claims.

 

(a)          If a claim under paragraph (a) of Section 7.1 of this Article VII is not paid in full by the Corporation within thirty (30) days after a written claim pursuant to paragraph (b) of Section 7.1 of this Article VII has been received by the Corporation (except in the case of a claim for advancement of expenses, for which the applicable period is twenty (20) days), the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim. It shall be a defense to any such action that the claimant has not met the standard of conduct which makes it permissible under the DGCL for the Corporation to indemnify the claimant for the amount claimed or that the claimant is not entitled to the requested advancement of expenses, but (except where the required undertaking, if any, has not been tendered to the Corporation) the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, Independent Counsel or stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the DGCL, nor an actual determination by the Corporation (including its Board of Directors, Independent Counsel or stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct.

 

(b)          If a determination shall have been made pursuant to paragraph (b) of Section 7.1 of this Article VII that the claimant is entitled to indemnification, the Corporation shall be bound by such determination in any judicial proceeding commenced pursuant to paragraph (a) of this Section 7.2.

 

(c)          The Corporation shall be precluded from asserting in any judicial proceeding commenced pursuant to paragraph (a) of this Section 7.2 that the procedures and presumptions of this Article VII are not valid, binding and enforceable and shall stipulate in such proceeding that the Corporation is bound by all the provisions of this Article VII.

 

Section 7.3 Non-Exclusivity of Rights; Amendment and Repeal. The right to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article VII: (i) shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the Certificate of Incorporation or these Bylaws, agreement, vote of stockholders or Disinterested Directors or otherwise and (ii) cannot be terminated by the Corporation, the Board of Directors or the stockholders of the Corporation with respect to a person’s service prior to the date of such termination. Any amendment, modification, alteration or repeal of this Article VII that in any way diminishes, limits, restricts, adversely affects or eliminates any right of an indemnitee or his or her successors to indemnification, advancement of expenses or otherwise shall be prospective only and shall not, without the written consent of the indemnitee, in any way diminish, limit, restrict, adversely affect or eliminate any such right with respect to any actual or alleged state of

 

  

facts, occurrence, action or omission then or previously existing, or any action, suit or proceeding previously or thereafter brought or threatened based in whole or in part upon any such actual or alleged state of facts, occurrence, action or omission.

 

Section 7.4 Insurance, Other Indemnification and Advancement of Expenses.

 

(a)          The Corporation may maintain insurance, at its expense, to protect itself and any current or former director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the DGCL. To the extent that the Corporation maintains any policy or policies providing such insurance, each such current or former director or officer, and each such agent or employee to which rights to indemnification have been granted as provided in paragraph (b) of this Section 7.4, shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage thereunder for any such current or former director, officer, employee or agent.

 

(b)          The Corporation may, to the extent authorized from time to time by the Board of Directors or the Chief Executive Officer, grant rights to indemnification, and rights to be paid by the Corporation the expenses incurred in connection with any proceeding in advance of its final disposition, to any current or former employee or agent of the Corporation to the fullest extent of the provisions of this Article VII with respect to the indemnification and advancement of expenses of current or former directors and officers of the Corporation.

 

Section 7.5 Severability. If any provision or provisions of this Article VII shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (i) the validity, legality and enforceability of the remaining provisions of this Article VII (including, without limitation, each portion of any paragraph of this Article VII containing any such provision held to be invalid, illegal or unenforceable, that is not itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby; and (ii) to the fullest extent possible, the provisions of this Article VII (including, without limitation, each such portion of any paragraph of this Article VII containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable.

 

Section 7.6 Definitions. For purposes of this Article VII:

 

(i)          “Disinterested Director” means a director of the Corporation who is not and was not a party to the matter in respect of which indemnification is sought by the claimant.

 

(ii)         “Independent Counsel” means a law firm, a member of a law firm, or an independent practitioner, that is experienced in matters of corporate law and shall include any person who, under the applicable standards of professional conduct then prevailing, would not have a conflict of interest in representing either the Corporation or the claimant in an action to determine the claimant’s rights under this Article VII.

 

Section 7.7 Notices. Any notice, request or other communication required or permitted to be given to the Corporation under this Article VII shall be in writing and either

 

  

delivered in person or sent by telecopy, telex, telegram, overnight mail or courier service, or certified or registered mail, postage prepaid, return receipt requested, to the Secretary of the Corporation and shall be effective only upon receipt by the Secretary.

 

ARTICLE VIII
GENERAL PROVISIONS

 

Section 8.1 Execution of Instruments. All agreements, indentures, mortgages, deeds, conveyances, transfers, contracts, checks, notes, drafts, loan documents, letters of credit, guarantees, master agreements, swap agreements, security and pledge agreements, guarantees of signatures, certificates, declarations, receipts, discharges, releases, satisfactions, settlements, petitions, schedules, accounts, affidavits, bonds, undertakings, powers of attorney, and other instruments or documents may be signed, executed, acknowledged, verified, attested, delivered or accepted on behalf of the Corporation by the Chief Executive Officer, any Executive Vice President, any Vice President or any individual who is listed on the personnel records of the Corporation in a position equal to any of the aforementioned officer positions, or such other officers, employees or agents as the Board of Directors or any of such designated officers or individuals may direct. The provisions of this Section 7.1 are supplementary to any other provision of these Bylaws and shall not be construed to authorize execution of instruments otherwise dictated by law.

 

Section 8.2 Shares of Other Corporations. The Chief Executive Officer, any Executive Vice President, Vice President, Secretary or Assistant Secretary or Treasurer or Assistant Treasurer, or such other officers, employees or agents as the Board of Directors or such designated officers may direct, are authorized to vote, represent and exercise on behalf of the Corporation all rights incident to any and all shares of any other corporations or associations standing in the name of the Corporation. The authority herein granted to said individual to vote or represent on behalf of the Corporation any and all shares held by the Corporation in any other corporations or associations may be exercised either by the individual in person or by any duly executed proxy or power of attorney.

 

Section 8.3 Seal. Any Secretary, Assistant Secretary or person authorized to execute instruments in accordance with Section 6.1 shall have the authority to affix any corporate seal, or a facsimile thereof, to any document requiring a seal and to attest the same. Affixing the seal is not necessary to make the execution of any document effective or binding.

 

Section 8.4 Electronic Meetings. Subject to the requirements of these Bylaws or the Certificate of Incorporation, stockholders, members of the Board of Directors or members of any committee of the Board of Directors may participate in and hold meetings by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear or otherwise communicate with each other. Participation in such a meeting shall constitute presence in person at such meeting, except where a person participates in the meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened.

 

Section 8.5 Fiscal Year. The fiscal year of the Corporation shall be determined by the Board of Directors.

  

Section 8.6 Amendments. These Bylaws may be altered, amended or repealed, and new Bylaws may be adopted, by the Board of Directors or by the stockholders.

 

 

Exhibit 4.1B

 

SUPPLEMENTAL INDENTURE

 

SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”) dated as of February 11, 2016, among the companies set forth on Schedule I hereto (each of the foregoing entities, a “New Subsidiary Guarantor” and collectively, the “New Subsidiary Guarantors”), each of which is an indirect Restricted Subsidiary of Berry Plastics Corporation, a Delaware corporation (the “Issuer”), and U.S. Bank National Association, a national banking association, as trustee under the indenture referred to below (the “Trustee”).

 

WITNESSETH:

 

WHEREAS, Berry Plastics Escrow Corporation (the “Escrow Issuer”) and the Trustee have heretofore executed and delivered to the Trustee an indenture dated as of October 1, 2015 (as amended, supplemented or otherwise modified, the “Indenture”), providing initially for the issuance of $400,000,000 in aggregate principal amount of the Escrow Issuer’s 6.000% Second Priority Senior Secured Notes due 2022 (the “Securities”);

 

WHEREAS, pursuant to a Supplemental Indenture dated as of October 1, 2015, the Issuer assumed the obligations of the Escrow Issuer under the Indenture and the Securities and the Parent Guarantor and the existing Subsidiary Guarantors guaranteed the Issuer’s obligations under the Indenture and the Securities;

 

WHEREAS, in connection with the acquisition by the Issuer of AVINTIV Inc., a Delaware corporation and a direct Restricted Subsidiary of the Issuer (“AVINTIV”), Berry Plastics Acquisition Corporation IX (“Berry Acquisition”), an existing Subsidiary Guarantor, has merged with and into AVINTIV, with AVINTIV as the survivor, with the result that AVINTIV is a Restricted Subsidiary of the Issuer; and

 

WHEREAS, in connection with the acquisition by the Issuer of AVINTIV, the New Subsidiary Guarantors which are Restricted Subsidiaries that are Domestic Subsidiaries of AVINTIV are required to become Subsidiary Guarantors pursuant to Sections 4.11 and 12.06 of the Indenture pursuant to a supplemental indenture, and Section 9.01(v) of the Indenture provides that such supplemental indenture may be entered into without the consent of the Holders.

 

NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, each New Subsidiary Guarantor and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders as follows:

 

1.          Defined Terms. As used in this Supplemental Indenture, terms defined in the Indenture or in the preamble or recitals hereto are used herein as therein defined, except that the term “Holders” in this Subsidiary Guarantee shall refer to the term “Holders” as defined in the Indenture, the Trustee and the Collateral Agent acting on behalf of and for the benefit of such Holders. The words “herein,” “hereof” and “hereby” and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof.

 

 

2.          Agreement to Guarantee. Each New Subsidiary Guarantor hereby agrees, jointly and severally with all existing Subsidiary Guarantors, to unconditionally guarantee the Issuer’s Obligations under the Securities and the Indenture on the terms and subject to the conditions set forth in Article 12 of the Indenture and to be bound by all other applicable provisions of the Indenture and the Securities and to perform all of the obligations and agreements of a Subsidiary Guarantor under the Indenture.

 

3.          Notices. All notices or other communications to each New Subsidiary Guarantor shall be given as provided in Section 13.02 of the Indenture.

 

4.          Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every holder of Securities heretofore or hereafter authenticated and delivered shall be bound hereby.

 

5.          Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.

 

6.          Trustee Makes No Representation. The Trustee makes no representation as to the validity or sufficiency of this Supplemental Indenture. The Trustee accepts the amendments of the Indenture effected by this Supplemental Indenture, but on the terms and conditions set forth in the Indenture, including the terms and provisions defining and limiting the liabilities and responsibilities of the Trustee. Without limiting the generality of the foregoing, the Trustee shall not be responsible in any manner whatsoever for or with respect to any of the recitals or statements contained herein, or for or with respect to (i) the validity or sufficiency of this Supplemental Indenture or any of the terms or provisions hereof, (ii) the proper authorization hereof by the Issuer by action or otherwise, (iii) the due execution hereof by the Issuer or (iv) the consequences of any amendment herein provided for, and the Trustee makes no representation with respect to any such matters.

 

7.          Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.

 

8.          Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction thereof.

 

[Signature pages follow]

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.

 

	FIBERWEB GEOS, INC.
	FIBERWEB HOLDINGS, INC.
	FIBERWEB, INC.
	FIBERWEB INDUSTRIAL TEXTILES CORPORATION
	FIBERWEB USA HOLDINGS, INC.
	FIBERWEB WASHOUGAL, INC.
	OLD HICKORY STEAMWORKS, LLC
	PRISTINE BRANDS CORPORATION
	PROVIDENCIA USA, INC., each as a New Subsidiary Guarantor
	By:	/s/ Jason K. Greene
		Name: Jason K. Greene
		Title: Executive Vice President, General Counsel and Secretary

 

 

	U.S. BANK NATIONAL ASSOCIATION, as Trustee
	By:	/s/ Beverly A. Freeney
			Name:	Beverly A. Freeney
			Title:	Vice President

 

 

SCHEDULE I

 

NEW SUBSIDIARY GUARANTORS

 

·

Fiberweb Geos, Inc.

 

·

Fiberweb Holdings, Inc.

 

·

Fiberweb, Inc.

 

·

Fiberweb Industrial Textiles Corporation

 

·

Fiberweb USA Holdings, Inc.

 

·

Fiberweb Washougal, Inc.

 

·

Old Hickory Steamworks, LLC

 

·

Pristine Brands Corporation

 

·

Providencia USA, Inc.

 

 

Exhibit 5.1

 

 

May 2, 2016

 

Berry Plastics Corporation

101 Oakley Street

Evansville, Indiana 47710

 

Re: Registration Statement on Form S-4 filed by Berry Plastics Corporation

 

Ladies and Gentlemen:

 

We have served as special counsel to Berry Plastics Corporation, a Delaware corporation (“BPC”), in connection with the Registration Statement on Form S-4 (the “Registration Statement”) filed by BPC, Berry Plastics Group, Inc. (“Berry”) and the subsidiary guarantors listed on Schedule I (such subsidiaries, together with Berry, being sometimes collectively referred to herein as the “Guarantors”) with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”), relating to the offer by BPC (the “Exchange Offer”) to exchange up to $400,000,000 in aggregate principal amount of BPC’s registered 6.00% Second Priority Senior Secured Notes due 2022 (the “Exchange Notes”) for an equal aggregate principal amount of its existing 6.00% Second Priority Senior Secured Notes due 2022 issued and outstanding in the aggregate principal amount of $400,000,000 (the “Initial Notes”), under the indenture dated as of October 1, 2015 (the “Original Indenture”), originally between Berry Plastics Escrow Corporation (“BP Escrow”) and U.S. Bank National Association, as trustee (the “Trustee”), as supplemented by that certain (a) Second Priority Notes First Supplemental Indenture, dated as of October 1, 2015, by and among BP Escrow, BPC, Berry, the Subsidiary Guarantors party thereto and the Trustee, pursuant to which, among other things, BPC was substituted for BP Escrow as issuer of the Initial Notes, and Berry and those Subsidiary Guarantors party thereto guaranteed the Initial Notes, and that certain (b) Supplemental Indenture, dated as of February 11, 2016 (the Original Indenture, as so supplemented, being herein referred to as the “Indenture”), pursuant to which the remaining Subsidiary Guarantors guaranteed the Initial Notes. All capitalized terms which are defined in the Indenture shall have the same meanings when used herein, unless otherwise specified. Payment of the Exchange Notes is to be guaranteed by each of the Guarantors pursuant to a guarantee (collectively, the “Guarantee”) contained in the Indenture.

 

In connection herewith, we have examined:

 

(1)

the Registration Statement (including all exhibits thereto);

 

(2)

an executed copy of the Indenture;

 

(3)

executed copies of the Initial Notes;

 

(4)

the form of the Exchange Notes;

 

 

Berry Plastics Corporation

May 2, 2016

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(5)

the charter, certificate or articles of incorporation, formation and bylaws, limited liability company agreement, limited partnership agreement or other organizational documents of BPC and each of the Guarantors incorporated, formed or organized under the laws of the States of Delaware, North Carolina and South Carolina (such Guarantors, as so identified on Schedule I, being sometimes collectively referred to herein as the “Identified Guarantors”), as in effect on the date hereof and as certified by the applicable Secretary, Assistant Secretary or other appropriate representative of BPC or the Identified Guarantors (the “Organizational Documents”);

 

(6)

a certificate of legal existence and good standing for BPC and each of the Identified Guarantors as of the date indicated on Schedule II; and

 

(7)

certificates of the respective Secretaries, Assistant Secretaries or other appropriate representatives of BPC and each of the Identified Guarantors, certifying as to resolutions relating to the transactions referred to herein and the incumbency of officers.

 

The documents referenced as items (1) through (4) above are collectively referred to as the “Transaction Documents.” The documents referenced as items (1) through (7) above are collectively referred to as the “Reviewed Documents.”

 

We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such other corporate, limited liability company and limited partnership records, agreements and instruments of BPC and the Identified Guarantors, certificates of public officials and officers or other appropriate representatives of BPC and the Identified Guarantors, and such other documents, records and instruments, and we have made such legal and factual inquiries, as we have deemed necessary or appropriate as a basis for us to render the opinions hereinafter expressed. In our examination of the Reviewed Documents and the foregoing, we have assumed the genuineness of all signatures, the legal competence and capacity of natural persons, the authenticity of documents submitted to us as originals and the conformity with authentic original documents of all documents submitted to us as copies or by facsimile or other means of electronic transmission, or which we obtained from the Commission’s Electronic Data Gathering Analysis and Retrieval system (“EDGAR”) or other sites maintained by a court or government authority or regulatory body, and the authenticity of the originals or such latter documents. If any document we examined in printed, word processed or similar form has been filed with the Commission on EDGAR or such court or governmental authority or regulatory body, we have assumed that the document so filed is identical to the document we examined except for formatting changes. When relevant facts were not independently established, we have relied without independent investigation as to matters of fact upon statements of governmental officials and upon representations made in or pursuant to certificates and statements of appropriate representatives of BPC and the Identified Guarantors.

 

In connection herewith, we have assumed that, other than with respect to BPC and the Identified Guarantors, all of the documents referred to in this opinion have been duly authorized by, have

 

 

Berry Plastics Corporation

May 2, 2016

Page 3

 

been duly executed and delivered by, all of the parties thereto, all of the signatories to such documents have been duly authorized by all such parties and all such parties are duly organized and validly existing and have the power and authority (corporate or other) to execute, deliver and perform such documents. We have further assumed that all of the documents referred to in this opinion constitute the valid, binding and enforceable obligations of all of the parties thereto other than BPC and the Guarantors.

 

We have further assumed, with your permission, that (i) each of the Subsidiary Guarantors other than the Identified Guarantors (each, an “Other Guarantor,” and collectively, the “Other Guarantors”) has been duly organized and is validly existing in good standing under the laws of its state of organization, (ii) the execution and delivery by each such Other Guarantor of the Transaction Documents to which it is a party and the performance by it of its obligations thereunder are within its organizational power and have been duly authorized by all necessary action (corporate or other) on its part, and (iii) each of the Transaction Documents to which any Other Guarantor is a party has been duly executed and delivered by each such Other Guarantor. We understand that you are receiving opinion letters, dated the date hereof, from the various law firms indicated on Schedule III (the “Local Counsel Opinions”), as to such matters relating to the Other Guarantors under the laws of the Other Guarantors’ respective states of organization, and that such opinion letters are being filed as exhibits to the Registration Statement as indicated on Schedule III. With your permission we have assumed the correctness of the conclusions set forth in the Local Counsel Opinions and express no opinion herein with regard thereto.

 

Based upon the foregoing and in reliance thereon, and subject to the assumptions, comments, qualifications, limitations and exceptions set forth herein, we are of the opinion that, when (i) the Registration Statement has become effective under the Act, (ii) the Indenture has become duly qualified under the Trust Indenture Act of 1939, as amended, and (iii) the Exchange Notes (in the form examined by us) have been duly executed by BPC and authenticated and delivered by the Trustee and issued in exchange for the Initial Notes in accordance with the provisions of the Indenture upon consummation of the Exchange Offer, and otherwise in accordance with the terms of the Registration Statement and the exhibits thereto:

 

(1)

the Exchange Notes will constitute valid and binding obligations of BPC; and

 

(2)

the Guarantee will constitute the valid and binding obligations of the respective Guarantors.

 

In addition to the assumptions, comments, qualifications, limitations and exceptions set forth above, the opinions set forth herein is further limited by, subject to and based upon the following assumptions, comments, qualifications, limitations and exceptions:

 

(a)          Our opinions set forth herein reflect only the application of applicable New York law (excluding the securities and blue sky laws of such states, as to which we express no opinion), and to the extent required by the foregoing opinions, the General Corporation Law of the State of Delaware (8 Delaware Code Chapter 1), the Delaware Limited Liability Company Act (6 Delaware Code Chapter 18), the North Carolina Business Corporation Act (Chapter 55 of the North

 

 

Berry Plastics Corporation

May 2, 2016

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Carolina General Statutes) and the South Carolina Business Corporation Act of 1988 (Title 33 of the South Carolina Code of Laws) (the jurisdictions referred to in this sentence being sometimes collectively referred to herein as the “Opinion Jurisdictions”). The opinions set forth herein are made as of the date hereof and are subject to, and may be limited by, future changes in the factual matters set forth herein, and we undertake no duty to advise you of the same. The opinions expressed herein are based upon the law in effect (and published or otherwise generally available) on the date hereof, and we assume no obligation to revise or supplement these opinions should such law be changed by legislative action, judicial decision or otherwise. In rendering our opinion, we have not considered, and hereby disclaim any opinion as to, the application or impact of the laws of any jurisdiction other than the Opinion Jurisdictions, or in the case of Delaware, North Carolina and South Carolina , any other laws of such states.

 

(b)          Our opinions contained herein may be limited by (i) applicable bankruptcy, insolvency, reorganization, receivership, moratorium or similar laws affecting or relating to the rights and remedies of creditors generally including, without limitation, laws relating to fraudulent transfers or conveyances, preferences and equitable subordination, (ii) general principles of equity (regardless of whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.

 

(c)          Our opinions are further subject to the effect of generally applicable rules of law arising from statutes, judicial and administrative decisions, and the rules and regulations of governmental authorities that: (i) limit or affect the enforcement of provisions of a contract that purport to require waiver of the obligations of good faith, fair dealing, diligence and reasonableness; (ii) limit the availability of a remedy under certain circumstances where another remedy has been elected; (iii) limit the enforceability of provisions releasing, exculpating, or exempting a party from, or requiring indemnification of a party for, liability for its own action or inaction, to the extent the action or inaction involves negligence, recklessness, willful misconduct or unlawful conduct; (iv) may, where less than all of the contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in which the unenforceable portion is not an essential part of the agreed exchange; and (v) govern and afford judicial discretion regarding the determination of damages and entitlement to attorneys’ fees.

 

 

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May 2, 2016

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(d)          We express no opinion as to:

 

(i)          the enforceability of (A) any provision of the Indenture or the Exchange Notes (collectively, the “Operative Documents”) purporting or attempting to (1) confer exclusive jurisdiction and/or venue upon certain courts or otherwise waive the defenses of forum non conveniens or improper venue, (2) confer subject matter jurisdiction on a court not having independent grounds therefor, (3) modify or waive the requirements for effective service of process for any action that may be brought, (4) waive the right of BPC, any Guarantor or any other person to a trial by jury, (5) provide that remedies are cumulative or that decisions by a party are conclusive, (6) modify or waive the rights to notice, legal defenses, statutes of limitations or other benefits that cannot be waived under applicable law or (7) provide for or grant a power of attorney, or (B) any provision of the Operative Documents relating to choice of law; or

 

(ii)         the enforceability of (A) any rights to indemnification or contribution provided for in the Operative Documents which are violative of public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation) or the legality of such rights, (B) any provisions in the Operative Documents purporting to provide to the Trustee or any other person the right to receive costs and expenses beyond those reasonably incurred by it, or (C) provisions in the Operative Documents whose terms are left open for later resolution by the parties.

 

(e)          Enforceability of the Guarantee is further subject to the qualification that certain waivers, procedures, remedies, and other provisions of the Indenture may be unenforceable under or limited by the laws of the Opinion Jurisdictions; however, such laws do not in our opinion, substantially prevent the practical realization of the benefits intended by the Guarantee, except that the application of principles of guaranty and suretyship to the acts or omissions of the holder of the Guarantee after consummation of the Exchange Offer may prevent the practical realization of the benefits intended by the Guarantee through a release or discharge of one or more Guarantors.

 

(f)          We express no opinion as to whether a subsidiary may guarantee or otherwise be liable for indebtedness incurred by its parent except to the extent that such subsidiary may be determined to have benefited from the incurrence of the indebtedness by its parent or whether such benefit may be measured other than by the extent to which the proceeds of the indebtedness incurred by its parent are, directly or indirectly, made available to such subsidiary for its corporate or other analogous purposes.

 

We do not render any opinions except as set forth above. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of our name under the caption “Legal Matters” in the prospectus filed as a part thereof. In giving such consent, we do not thereby concede that we are within the category of persons whose consent is required under Section 7 of the Act or the Rules and Regulations of the Commission thereunder.

 

Very truly yours,

 

/s/ Bryan Cave LLP

 

Bryan Cave LLP

 

 

Schedule I

Page 1 of 2

 

Schedule I

 

Guarantors

 

Entity Name		State or other jurisdiction of formation
AeroCon, LLC		Delaware
AVINTIV Acquisition Corporation		Delaware
AVINTIV Inc.		Delaware
AVINTIV Specialty Materials, Inc.		Delaware
Berry Plastics IK, LLC		Delaware
Berry Plastics Acquisition Corporation V		Delaware
Berry Plastics Acquisition Corporation XI		Delaware
Berry Plastics Acquisition Corporation XII		Delaware
Berry Plastics Acquisition Corporation XIII		Delaware
Berry Plastics Acquisition Corporation XV, LLC		Delaware
Berry Plastics Acquisition LLC X		Delaware
Berry Plastics Design, LLC		Delaware
Berry Plastics Filmco, Inc.		Delaware
Berry Plastics Group, Inc.		Delaware
Berry Plastics Opco, Inc.		Delaware
Berry Plastics SP, Inc.		Delaware
Berry Plastics Technical Services, Inc.		Delaware
Berry Sterling Corporation		Delaware
BPRex Brazil Holding Inc.		Delaware
BPRex Closure Systems, LLC		Delaware
BPRex Closures Kentucky Inc.		Delaware
BPRex Closures, LLC		Delaware
BPRex Delta Inc.		Delaware
BPRex Healthcare Brookville Inc.		Delaware
BPRex Healthcare Packaging Inc.		Delaware
BPRex Plastic Packaging Inc.		Delaware
BPRex Plastics Services Company Inc.		Delaware
Caplas LLC		Delaware
Caplas Neptune, LLC		Delaware
Captive Plastics Holdings, LLC		Delaware
Captive Plastics, LLC		Delaware
Cardinal Packaging, Inc.		Delaware
Chicopee, Inc.		Delaware
Covalence Specialty Adhesives LLC		Delaware
Covalence Specialty Coatings LLC		Delaware
CPI Holding Corporation		Delaware
Dominion Textile (USA), L.L.C.		Delaware
Fabrene, L.L.C.		Delaware
Fiberweb Holdings, Inc.		Delaware
Fiberweb Industrial Textiles Corporation		Delaware
Fiberweb USA Holdings, Inc.		Delaware

 

 

Schedule I

Page 2 of 2

 

Entity Name		State or other jurisdiction of formation
Fiberweb Washougal, Inc.		Delaware
Kerr Group, LLC		Delaware
Knight Plastics, LLC		Delaware
Old Hickory Steamworks, LLC		Delaware
Packerware, LLC		Delaware
Pescor, Inc.		Delaware
PGI Europe, Inc.		Delaware
PGI Polymer, Inc.		Delaware
Pliant, LLC		Delaware
Poly-Seal, LLC		Delaware
Pristine Brands Corporation		Delaware
Rollpak Corporation		Delaware
Saffron Acquisition, LLC		Delaware
Seal for Life Industries, LLC		Delaware
Setco, LLC		Delaware
Sun Coast Industries, LLC		Delaware
Uniplast Holdings, LLC		Delaware
Uniplast U.S., Inc.		Delaware
Venture Packaging Midwest, Inc.		Delaware
Venture Packaging, Inc.		Delaware
Grafco Industries Limited Partnership		Maryland
BPRex Product Design and Engineering Inc.		Minnesota
BPRex Specialty Products Puerto Rico Inc.		New Jersey
Providencia USA, Inc.		North Carolina
Fiberweb, Inc.		South Carolina
Pliant Corporation International		Utah
Fiberweb Geos, Inc.		Virginia
Prime Label & Screen Incorporated		Wisconsin

 

 

Schedule II

Page 1 of 2

 

Schedule II

 

LIST OF GOOD STANDING CERTIFICATES

(Berry Plastics Corporation, Berry Plastics Group, Inc. and each Identified Guarantor)

 

Entity Name		State or other jurisdiction of formation		Issuance Date of Good Standing Certificate
AeroCon, LLC		Delaware		April 15, 2016
AVINTIV Acquisition Corporation		Delaware		April 15, 2016
AVINTIV Inc.		Delaware		April 15, 2016
AVINTIV Specialty Materials, Inc.		Delaware		April 15, 2016
Berry Plastics IK, LLC		Delaware		April 15, 2016
Berry Plastics Acquisition Corporation V		Delaware		April 15, 2016
Berry Plastics Acquisition Corporation XI		Delaware		April 15, 2016
Berry Plastics Acquisition Corporation XII		Delaware		April 15, 2016
Berry Plastics Acquisition Corporation XIII		Delaware		April 15, 2016
Berry Plastics Acquisition Corporation XV, LLC		Delaware		April 15, 2016
Berry Plastics Acquisition LLC X		Delaware		April 15, 2016
Berry Plastics Corporation		Delaware		April 15, 2016
Berry Plastics Design, LLC		Delaware		April 15, 2016
Berry Plastics Filmco, Inc.		Delaware		April 15, 2016
Berry Plastics Group, Inc.		Delaware		April 15, 2016
Berry Plastics Opco, Inc.		Delaware		April 15, 2016
Berry Plastics SP, Inc.		Delaware		April 15, 2016
Berry Plastics Technical Services, Inc.		Delaware		April 15, 2016
Berry Sterling Corporation		Delaware		April 15, 2016
BPRex Brazil Holding Inc.		Delaware		April 15, 2016
BPRex Closure Systems, LLC		Delaware		April 15, 2016
BPRex Closures Kentucky Inc.		Delaware		April 15, 2016
BPRex Closures, LLC		Delaware		April 15, 2016
BPRex Delta Inc.		Delaware		April 15, 2016
BPRex Healthcare Brookville Inc.		Delaware		April 15, 2016
BPRex Healthcare Packaging Inc.		Delaware		April 15, 2016
BPRex Plastic Packaging Inc.		Delaware		April 15, 2016
BPRex Plastics Services Company Inc.		Delaware		April 15, 2016
Caplas LLC		Delaware		April 15, 2016
Caplas Neptune, LLC		Delaware		April 15, 2016
Captive Plastics Holdings, LLC		Delaware		April 15, 2016
Captive Plastics, LLC		Delaware		April 15, 2016
Cardinal Packaging, Inc.		Delaware		April 15, 2016
Chicopee, Inc.		Delaware		April 15, 2016
Covalence Specialty Adhesives LLC		Delaware		April 15, 2016
Covalence Specialty Coatings LLC		Delaware		April 15, 2016
CPI Holding Corporation		Delaware		April 15, 2016
Dominion Textile (USA), L.L.C.		Delaware		April 15, 2016

 

 

Schedule II

Page 2 of 2

 

Entity Name		State or other jurisdiction of formation		Issuance Date of Good Standing Certificate
Fabrene, L.L.C.		Delaware		April 15, 2016
Fiberweb Holdings, Inc.		Delaware		April 15, 2016
Fiberweb Industrial Textiles Corporation		Delaware		April 15, 2016
Fiberweb USA Holdings, Inc.		Delaware		April 15, 2016
Fiberweb Washougal, Inc.		Delaware		April 15, 2016
Kerr Group, LLC		Delaware		April 15, 2016
Knight Plastics, LLC		Delaware		April 15, 2016
Old Hickory Steamworks, LLC		Delaware		April 15, 2016
Packerware, LLC		Delaware		April 15, 2016
Pescor, Inc.		Delaware		April 15, 2016
PGI Europe, Inc.		Delaware		April 15, 2016
PGI Polymer, Inc.		Delaware		April 15, 2016
Pliant, LLC		Delaware		April 15, 2016
Poly-Seal, LLC		Delaware		April 15, 2016
Pristine Brands Corporation		Delaware		April 15, 2016
Rollpak Corporation		Delaware		April 15, 2016
Saffron Acquisition, LLC		Delaware		April 15, 2016
Seal for Life Industries, LLC		Delaware		April 15, 2016
Setco, LLC		Delaware		April 15, 2016
Sun Coast Industries, LLC		Delaware		April 15, 2016
Uniplast Holdings, LLC		Delaware		April 15, 2016
Uniplast U.S., Inc.		Delaware		April 15, 2016
Venture Packaging Midwest, Inc.		Delaware		April 15, 2016
Venture Packaging, Inc.		Delaware		April 15, 2016
Providencia USA, Inc.		North Carolina		April 15, 2016
Fiberweb, Inc.		South Carolina		April 15, 2016

 

 

Schedule III

Page 1 of 1

 

Schedule III

 

Local Counsel

 

Law Firm		State		Exhibit
Venable LLP		Maryland		5.2
Faegre Baker Daniels LLP		Minnesota		5.3
Gess Gess & Wallace, P.C.		New Jersey		5.4
Fabian VanCott		Utah		5.5
Gentry Locke, Attorneys		Virginia		5.6
Foley & Lardner LLP		Wisconsin		5.7

 

 

 

Exhibit 5.2

 

 

May 2, 2016

 

Berry Plastics Corporation

101 Oakley Street

Evansville, Indiana 47706

 

Re:

Registration Statement on Form S-4

 

Ladies and Gentlemen:

 

We have served as Maryland counsel to Grafco Industries Limited Partnership, a Maryland limited partnership (the “Partnership”), in connection with certain matters of Maryland law arising out of the Registration Statement on Form S-4 (the “Registration Statement”) filed by Berry Plastics Corporation, a Delaware corporation (“BPC”), Berry Plastics Group, Inc., a Delaware corporation (“Berry”) and the subsidiary guarantors listed on Schedule I thereto, including the Partnership (together with Berry sometimes collectively referred to as the “Guarantors”), with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”), relating to the offer by BPC to exchange up to $400,000,000 in aggregate principal amount of BPC’s registered 6.00% Second Priority Senior Secured Notes due 2022 (the “Exchange Notes”) for an equal aggregate principal amount of its existing 6.00% Second Priority Senior Secured Notes due 2022 issued and outstanding in the aggregate principal amount of $400,000,000 (the “Initial Notes”), under that certain Indenture dated as of October 1, 2015 (the “Original Indenture”), originally between Berry Plastics Escrow Corporation (“BP Escrow”) and U.S. Bank National Association, as trustee (the “Trustee”), as supplemented by that certain (a) Supplemental Indenture, dated as of October 1, 2015, by and among BP Escrow, BPC, Berry, the Subsidiary Guarantors party thereto and the Trustee, pursuant to which, among other things, BPC was substituted for BP Escrow as issuer of the Initial Notes, and the Initial Notes were guaranteed by Berry and such Subsidiary Guarantors, and that certain (b) Supplemental Indenture, dated as of February 11, 2016 (the Original Indenture, as so supplemented, being herein referred to as the “Indenture”). Payment of the Exchange Notes is to be guaranteed by the Guarantors pursuant to a guarantee (the “Guarantee”) contained in the Indenture. All capitalized terms which are defined in the Indenture shall have the same meanings when used herein, unless otherwise specified.

 

 

  

Berry Plastics Corporation

May 2, 2016

Page 2

 

In connection with our representation of the Partnership, and as a basis for the opinion hereinafter set forth, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents (hereinafter collectively referred to as the “Documents”):

 

1.          The Registration Statement and the related form of prospectus included therein (including all exhibits thereto), in the form in which it was transmitted to the Commission under the Act;

 

2.          An executed copy of the Indenture;

 

3.          Executed copies of the Initial Notes;

 

4.          The form of the Exchange Notes;

 

5.          The Partnership’s Sixth Amended and Restated Certificate of Limited Partnership, certified by the State Department of Assessments and Taxation of Maryland (the “SDAT”);

 

6.          The Limited Partnership Agreement of the Partnership, certified as of the date hereof by an officer of the General Partner (as hereinafter defined);

 

7.          A certificate of the SDAT as to the good standing of Partnership, dated as of April 15, 2016;

 

8.          Resolutions adopted by Caplas Neptune, LLC, a Delaware limited liability company, acting in its capacity as sole general partner of the Partnership (in such capacity, the “General Partner”), relating to, among other matters, (a) the Registration Statement; (b) the issuance of the Exchange Notes, and (c) the authorization of the execution, delivery and performance by the Partnership of the Indenture and authorization of the Guarantee, certified as of the date hereof by an officer of the General Partner;

 

9.          A certificate executed by an officer of the General Partner, dated as of the date hereof; and

 

 

 

Berry Plastics Corporation

May 2, 2016

Page 3

 

10.         Such other documents and matters as we have deemed necessary or appropriate to express the opinion set forth below, subject to the assumptions, limitations and qualifications stated herein.

 

In expressing the opinion set forth below, we have assumed the following:

 

1.          Each individual executing any of the Documents, whether on behalf of such individual or another person, is legally competent to do so.

 

2.          Each individual executing any of the Documents on behalf of a party (other than the General Partner on behalf of the Partnership) is duly authorized to do so.

 

3.          Each of the parties (other than the Partnership) executing any of the Documents has duly and validly executed and delivered each of the Documents to which such party is a signatory, and such party’s obligations set forth therein are legal, valid and binding and are enforceable in accordance with all stated terms.

 

4.          All Documents submitted to us as originals are authentic. The form and content of all Documents submitted to us as unexecuted drafts do not differ in any respect relevant to this opinion from the form and content of such Documents as executed and delivered. All Documents submitted to us as certified or photostatic copies conform to the original documents. All signatures on all Documents are genuine. All public records reviewed or relied upon by us or on our behalf are true and complete. All representations, warranties, statements and information contained in the Documents are true and complete in all respects material to our opinions below. There has been no oral or written modification of or amendment to any of the Documents, and there has been no waiver of any provision of any of the Documents, by action or omission of the parties or otherwise.

 

5.          The Exchange Notes, if and when issued, will have substantially identical terms as the Initial Notes and be issued in exchange therefor as contemplated by the Indenture and the Registration Statement.

 

Based upon the foregoing, and subject to the assumptions, limitations and qualifications stated herein, it is our opinion that:

 

 

 

Berry Plastics Corporation

May 2, 2016

Page 4

 

1.          The Partnership (a) is a limited partnership validly existing and in good standing under the laws of the State of Maryland and (b) has the necessary limited partnership power to guarantee the Exchange Notes pursuant to the terms of the Indenture.

 

2.          The Partnership’s guarantee of the Exchange Notes pursuant to the terms of the Indenture has been duly authorized by all necessary limited partnership action, and the Partnership has duly authorized the issuance of the Guarantee of the Exchange Notes.

 

3.          The Indenture has been duly executed and delivered by the Partnership.

 

The foregoing opinion is limited to the laws of the State of Maryland and we do not express any opinion herein concerning any other law. We express no opinion as to compliance with any federal or state securities laws, including the securities laws of the State of Maryland, or as to federal or state laws regarding fraudulent transfers or the laws, codes or regulations of any municipality or other local jurisdiction. To the extent that any matter as to which our opinion is expressed herein would be governed by any jurisdiction other than the State of Maryland, we do not express any opinion on such matter. The opinion expressed herein is subject to the effect of judicial decisions which may permit the introduction of parol evidence to modify the terms or the interpretation of agreements.

 

The opinion expressed herein is limited to the matters specifically set forth herein and no other opinion shall be inferred beyond the matters expressly stated. We assume no obligation to supplement this opinion if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinion expressed herein after the date hereof.

 

This opinion is being furnished to you for submission to the Commission as an exhibit to the Registration Statement. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of the name of our firm therein. In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of the 1933 Act.

 

	Very truly yours,
	/s/ Venable LLP

 

 

 

Exhibit 5.3

 

 

Faegre Baker Daniels LLP

2200 Wells Fargo Center 90 South Seventh Street

Minneapolis Minnesota 55402-3901

Phone +1 612 766 7000

Fax +1 612 766 1600

 

May 2, 2016

 

Berry Plastics Corporation

101 Oakley Street

Evansville, Indiana 47710

 

Ladies and Gentlemen:

 

We have acted as local Minnesota counsel for BPRex Product Design and Engineering Inc., a Minnesota corporation (the “Minnesota Guarantor”), in connection with the registration, pursuant to a Registration Statement on Form S-4 (the “Registration Statement”) filed by Berry Plastics Corporation, a Delaware corporation (the “Company”), with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), of an offer by the Company to exchange up to $400 million in aggregate principal amount of the Company’s registered 6.00% Second Priority Senior Secured Notes due 2022 (the “Exchange Notes”) for an equal aggregate principal amount of the Company’s outstanding 6.00% Second Priority Senior Secured Notes due 2022 (the “Initial Notes”). The Exchange Notes are to be issued under an Indenture dated as of October 1, 2015 (the “Original Indenture”) originally between Berry Plastics Escrow Corporation, a Delaware corporation (the “Escrow Issuer”), and U.S. Bank National Association, a national banking association, as trustee (the “Trustee”), as supplemented by (a) the Second Priority Notes First Supplemental Indenture dated as of October 1, 2015 (the “First Supplemental Indenture”) among the Escrow Issuer, the Company, Berry Plastics Group, Inc., a Delaware corporation (the “Parent Guarantor”), the Subsidiary Guarantors (as defined in the Original Indenture) party thereto (including without limitation the Minnesota Guarantor) and the Trustee, pursuant to which the Company, the Parent Guarantor and such Subsidiary Guarantors became parties to the Original Indenture, the Company assumed the obligations of the Escrow Issuer under the Initial Notes and the Original Indenture, and the Parent Guarantor and such Subsidiary Guarantors guaranteed the Initial Notes, and (b) the Supplemental Indenture dated as of February 11, 2016 among the Subsidiary Guarantors party thereto and the Trustee (the “Second Supplemental Indenture”; the Original Indenture, as supplemented by the First Supplemental Indenture and the Second Supplemental Indenture, being herein called the “Indenture”). Payment of the Exchange Notes is to be guaranteed by the Parent Guarantor and the Subsidiary Guarantors pursuant to a guarantee contained in the Indenture.

 

 

Berry Plastics Corporation

Page 2

May 2, 2016

 

For purposes of rendering the opinions set forth below, we have made such examination of law as we have deemed necessary as a basis for such opinions and have reviewed originals or facsimile or electronic copies of the following documents:

 

(i)

an executed copy of the Original Indenture;

 

(ii)

an executed copy of the First Supplemental Indenture;

 

(iii)

an executed copy of the Second Supplemental Indenture;

 

(iv)

executed copies of the Initial Notes;

 

(v)

the form of Exchange Notes;

 

(vi)

the articles of incorporation of the Minnesota Guarantor, as certified by the Minnesota Secretary of State as of May 6, 2015, the bylaws of the Minnesota Guarantor, and resolutions of the board of directors of the Minnesota Guarantor approving the Guarantee, together with a certificate of the Secretary or an Assistant Secretary of the Minnesota Guarantor dated the date hereof certifying as to such documents and as to the incumbency of officers of the Minnesota Guarantor (the “Secretary’s Certificate”);

 

(vii)

a certificate of an officer of the Minnesota Guarantor dated the date hereof certifying as to certain additional matters relevant to the opinions expressed herein (the “Officer’s Certificate”); and

 

(viii)

a good standing certificate for the Minnesota Guarantor dated April 15, 2016 from the Secretary of State of the State of Minnesota (the “Good Standing Certificate”).

 

We have not reviewed any document other than the documents listed above for purposes of rendering the opinions expressed herein and we have assumed that there are no provisions of any such other document that bear upon or are inconsistent with such opinions. The articles of incorporation and bylaws of the Minnesota Guarantor attached to or referred to in (as the case may be) the Secretary’s Certificate are hereinafter collectively called the “Organizational Documents”.

 

Based upon and subject to the foregoing and the assumptions, qualifications and exceptions set forth below, we are of the opinion that:

 

(1)           The Minnesota Guarantor is a corporation validly existing and in good standing under the laws of the State of Minnesota.

 

(2)           The Minnesota Guarantor has the corporate power to execute, deliver and perform its obligations under the First Supplemental Indenture and to guarantee the Exchange Notes pursuant to the Indenture.

 

(3)           The execution, delivery and performance by the Minnesota Guarantor of the First Supplemental Indenture and the guarantee by the Minnesota Guarantor of the Exchange Notes pursuant

 

 

Berry Plastics Corporation

Page 3

May 2, 2016

 

to the Indenture have been properly authorized by all necessary corporate action on the part of the Minnesota Guarantor.

 

(4)           The Minnesota Guarantor has duly executed and delivered the First Supplemental Indenture.

 

ASSUMPTIONS, QUALIFICATIONS AND EXCEPTIONS

 

In rendering the foregoing opinions, we wish to advise you of the following additional assumptions, qualifications and exceptions to which such opinions are subject:

 

A.

We have relied solely on the Good Standing Certificate as to the opinion set forth in paragraph (1) above, and we have assumed that the information set forth in such certificate is true and correct as of the date of this opinion letter. We have conducted no independent factual investigation of our own for purposes of rendering the opinions expressed above, but rather have relied, as to the accuracy of all relevant factual matters, on the assumptions set forth below and the statements and information set forth in the Secretary’s Certificate and the Officer’s Certificate, in each case without independent verification thereof or other investigation; provided, however, that our Primary Lawyers have no Actual Knowledge concerning the factual matters upon which reliance is placed that would render such reliance unreasonable. Further, we have not communicated directly with the Company or the Minnesota Guarantor in connection with the preparation of this opinion letter and our communications regarding factual and other matters relevant to the Minnesota Guarantors and the opinions expressed herein have been conducted solely with Byran Cave LLP, lead counsel for the Company with respect to this matter, on behalf of the Company and the Minnesota Guarantor. For purposes hereof, the term “Primary Lawyers” means lawyers in this firm who have given substantive legal attention to representation of the Minnesota Guarantor in connection with this matter, and the term “Actual Knowledge” means the conscious awareness by such Primary Lawyers at the time this opinion letter is delivered of facts or other information without any other investigation.

 

B.

This opinion letter is limited to the laws of the State of Minnesota.

 

C.

We express no opinion as to whether, or the extent to which, the laws of any particular jurisdiction apply to the subject matter hereof.

 

D.

We have relied, without investigation, upon the following assumptions (i) natural persons who are involved on behalf of the Minnesota Guarantor have sufficient legal capacity to enter into and perform the transactions contemplated by the Indenture and to carry out their role in such transactions; (ii) each document submitted to us for review is accurate and complete, each such document that is an original is authentic, each such document that is a copy conforms to an authentic original, and all signatures on each such document are genuine; and (iii) documents reviewed by us, including the Indenture, would be enforced as written.

 

 

Berry Plastics Corporation

Page 4

May 2, 2016

 

E.

The opinions expressed above are limited to the specific issues addressed and to laws and facts existing on the date hereof. By rendering our opinions, we do not undertake to advise you with respect to any other matter or of any change in such laws or in the interpretation thereof, or of any change in facts, that may occur after the date hereof.

 

F.

The opinions expressed above do not address any of the following legal issues: (i) compliance with fiduciary duty and conflict of interest requirements; and (ii) the statutes and ordinances, administrative decisions and the rules and regulations of counties, towns, municipalities and special political subdivisions (whether created or enabled through legislative action at the federal, state or regional level) and judicial decisions to the extent that they deal with the foregoing.

 

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to being named in the prospectus forming a part of the Registration Statement under the caption “Legal Matters” with respect to the matters stated therein without implying or admitting that we are “experts” within the meaning of the Securities Act, or other rules and regulations of the Commission issued thereunder with respect to any part of the Registration Statement, including this exhibit.

 

Very truly yours,

 

FAEGRE BAKER DANIELS LLP

 

By	/s/ Jennifer R. Mewaldt
	Jennifer R. Mewaldt

 

 

 

Exhibit 5.4

 

 

	Law Offices
	Gess  Gess & Wallace
	A Professional Corporation
Richard B. Gess*	89 Hudson Street
Eric A. Gess*	Hoboken, NJ 07030
Jeremy Wallace	(201) 610-1340
	Email: rich@gesslaw.com

 

* Admitted in NY & NJ

 

May 2, 2016

 

Berry Plastics Corporation

101 Oakley Street

Evansville, Indiana 47710

 

Re: Registration Statement on Form S-4 filed by Berry Plastics Corporation

 

Ladies and Gentlemen:

 

We have served as special counsel to Berry Plastics Corporation, a Delaware corporation ( “BPC”) and BPRex Specialty Products Puerto Rico, Inc. (“BPR”), in connection with the Registration Statement on Form S-4 (the “Registration Statement”) filed by BPC, Berry Plastics Group, Inc. (“Berry”) and the subsidiary guarantors listed on Schedule I thereto (such subsidiaries, together with Berry, being sometimes collectively referred to herein as the “Guarantors”) with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”), relating to the offer by BPC (the “Exchange Offer”) to exchange up to $400,000,000 in aggregate principal amount of BPC’s registered 6.00% Second Priority Senior Secured Notes due 2022 (the “Exchange Notes”) for an equal aggregate principal amount of its existing 6.00% Second Priority Senior Secured Notes due 2022 issued and outstanding in the aggregate principal amount of $400,000,000 (the “Initial Notes”), under the indenture dated as of October 1, 2015 (the “Original Indenture”), originally between Berry Plastics Escrow Corporation (“BP Escrow”) and U.S. Bank National Association, as trustee (the “Trustee”), as supplemented by that certain (a) Second Priority Notes First Supplemental Indenture, dated as of October 1, 2015, by and among BP Escrow, BPC, Berry, the Subsidiary Guarantors party thereto and the Trustee, pursuant to which, among other things, BPC was substituted for BP Escrow as issuer of the Initial Notes, and Berry and those Subsidiary Guarantors party thereto guaranteed the Initial Notes, and that certain (b) Supplemental Indenture, dated as of February 11, 2016 (the Original Indenture, as so supplemented, being herein referred to as the “Indenture”), pursuant to which the remaining Subsidiary Guarantors guaranteed the Initial Notes. All capitalized terms which are defined in the Indenture shall have

 

 

Berry Plastics Corporation

May 2, 2016

Page 2

 

the same meanings when used herein, unless otherwise specified. Payment of the Exchange Notes is to be guaranteed by each of the Guarantors pursuant to a guarantee (collectively, the “Guarantee”) contained in the Indenture.

 

All capitalized terms which are defined in the Indenture shall have the same meanings when used herein, unless otherwise specified.

 

In connection herewith, we have examined:

 

(1)

the Registration Statement (including all exhibits thereto);

 

(2)

an executed copy of the Indenture;

 

(3)

executed copies of the Initial Notes;

 

(4)

the form of the Exchange Notes;

 

(5)

A photocopy of the following Certificate of Incorporation and Amendments:

 

a)

Certificate of Incorporation of Dougherty Brothers Company of Puerto Rico, Inc.

 

b)

Amendment changing name from Owens Illinois Specialty products Puerto Rico, Inc. to Rexam Specialty Products Puerto Rico Inc. filed July 20, 2007

 

c)

Amendment changing name from Rexam Specialty Products Puerto Rico Inc. to BPRex Specialty Products Puerto Rico Inc. filed June 13, 2014

 

(6)

Bylaws of BPR (the “BPR Bylaws” and together with the Certificate of Incorporation and Amendments referenced above, hereinafter “BPR Organizational Documents”);

 

(7)

A certificate of good standing for BPR dated April 16, 2016; and

 

(8)

certificates of the respective Secretaries, Assistant Secretaries or other appropriate representatives of BPC, Berry and BPR, certifying as to resolutions relating to the transactions referred to herein and the incumbency of officers.

 

The documents referenced as items (1) through (4) above are collectively referred to as the “Transaction Documents.” The documents referenced as items (1) through (7) above are collectively referred to as the “Reviewed Documents.”

 

We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such other corporate, limited liability company and limited partnership records, agreements and instruments of BPC, Berry and BPR, certificates of public officials and officers or other

 

 

Berry Plastics Corporation

May 2, 2016

Page 3

 

appropriate representatives of BPC, Berry and BPR, and such other documents, records and instruments, and we have made such legal and factual inquiries, as we have deemed necessary or appropriate as a basis for us to render the opinions hereinafter expressed. In our examination of the Reviewed Documents and the foregoing, we have assumed the genuineness of all signatures, the legal competence and capacity of natural persons, the authenticity of documents submitted to us as originals and the conformity with authentic original documents of all documents submitted to us as copies or by facsimile or other means of electronic transmission, or which we obtained from the Commission’s Electronic Data Gathering Analysis and Retrieval system (“EDGAR”) or other sites maintained by a court or government authority or regulatory body, and the authenticity of the originals or such latter documents. If any document we examined in printed, word processed or similar form has been filed with the Commission on EDGAR or such court or governmental authority or regulatory body, we have assumed that the document so filed is identical to the document we examined except for formatting changes. When relevant facts were not independently established, we have relied without independent investigation as to matters of fact upon statements of governmental officials and upon representations made in or pursuant to certificates and statements of appropriate representatives of BPC, Berry and BPR.

 

In connection herewith, we have assumed that, other than with respect to BPC, Berry and BPR, all of the documents referred to in this opinion have been duly authorized by, have been duly executed and delivered by, and constitute the valid, binding and enforceable obligations of, all of the parties thereto, all of the signatories to such documents have been duly authorized by all such parties and all such parties are duly organized and validly existing and have the power and authority (corporate or other) to execute, deliver and perform such documents.

 

We have further assumed, with your permission, that (i) each of the Subsidiary Guarantors other than BPR (each, an “Other Guarantor,” and collectively, the “Other Guarantors”) has been duly organized and is validly existing in good standing under the laws of its state of organization, (ii) the execution and delivery by each such Other Guarantor of the Transaction Documents to which it is a party and the performance by it of its obligations thereunder are within its organizational power and have been duly authorized by all necessary action (corporate or other) on its part, (iii) each of the Transaction Documents to which any Other Guarantor is a party has been duly executed and delivered by each such Other Guarantor and (iv) the execution and delivery by each Other Guarantor of the Transaction Documents to which it is a party and the performance by it of its obligations thereunder do not result in any violation by it of the provisions of its organizational documents.

 

Based upon the foregoing and in reliance thereon, and subject to the assumptions, comments, qualifications, limitations and exceptions set forth herein, we are of the opinion that:

 

1.          BPR is a corporation validly existing and in good standing under the laws of the State of New Jersey.

 

2.          BPR has the all necessary corporate power and authority to guarantee the Exchange Notes pursuant to the Indenture and the Guarantee.

 

 

Berry Plastics Corporation

May 2, 2016

Page 4

 

3.          The execution and delivery by BPR of the Indenture have been duly authorized by all necessary corporate action on the part of BPR.

 

4.          The Indenture has been duly executed and delivered by BPR.

 

In addition to the assumptions, comments, qualifications, limitations and exceptions set forth above, the opinions set forth herein is further limited by, subject to and based upon the following assumptions, comments, qualifications, limitations and exceptions:

 

(a)          Our opinions set forth herein reflect only the application of the applicable law of the State of New Jersey law. For such purpose the term “applicable law” means the New Jersey Business Corporation Act- Title 14A et seq. (“NJSA 14A”) (as hereinafter defined), NJSA 14A, and those laws, rules and regulations of the State of New Jersey that a New Jersey lawyer exercising customary professional diligence would reasonably be expected to recognize as being applicable to transactions of the type contemplated by the Indenture and the Guarantees and to guarantors generally, without our having made any special investigation as to the applicability of any specific law, rule or regulation other than NJSA 14A. In rendering our opinion, we have not considered, and hereby disclaim any opinion as to, the application or impact of the laws of any jurisdiction other than the Opinion Jurisdictions, or any other laws of such states.

 

(b)          We do not render any opinions except as set forth above. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of our name under the caption “Legal Matters” in the prospectus filed as a part thereof. In giving such consent, we do not thereby concede that we are within the category of persons whose consent is required under Section 7 of the Act or the Rules and Regulations of the Commission thereunder.

 

Very truly yours,

 

Gess Gess & Wallace. P.C.

 

By:	/s/ Richard B. Gess
	Richard B. Gess, Partner

 

 

 

Exhibit 5.5

 

[Letterhead of Fabian VanCott]

 

May 2, 2016

 

Berry Plastics Corporation

101 Oakley Street

Evansville, Indiana 47710

 

Re:

Berry Plastics Corporation Indenture with Respect to Registered Second Priority Senior Secured Notes Due 2022

 

Ladies and Gentlemen:

 

We have served as special Utah counsel to Berry Plastics Corporation, a Delaware corporation ( “BPC”) and Pliant Corporation International, a Utah corporation (“PCI”), in connection with the Registration Statement on Form S-4 (the “Registration Statement”) filed by BPC, Berry Plastics Group, Inc. (“Berry”) and the subsidiary guarantors (including PCI) listed on Schedule I thereto (such subsidiaries, together with Berry, being sometimes collectively referred to herein as the “Guarantors”) with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933 relating to the offer by BPC (the “Exchange Offer”) to exchange up to $400,000,000 in aggregate principal amount of BPC’s registered 6.00% Second Priority Senior Secured Notes due 2022 (the “Exchange Notes”) for an equal aggregate principal amount of its existing 6.00% Second Priority Senior Secured Notes due 2022 issued and outstanding in the aggregate principal amount of $400,000,000 (the “Initial Notes”), under the indenture dated as of October 1, 2015 (the “Original Indenture”), originally between Berry Plastics Escrow Corporation (“BP Escrow”) and U.S. Bank National Association, as trustee (the “Trustee”) , as supplemented by (a) that certain Second Priority Notes First Supplemental Indenture, dated as of October 1, 2015 (the “First Supplemental Indenture”), by and among BP Escrow, BPC, Berry, the Subsidiary Guarantors party thereto (including PCI) and the Trustee, pursuant to which, among other things, BPC was substituted for BP Escrow as issuer of the Initial Notes, and Berry and such Subsidiary Guarantors guaranteed the Initial Notes, and (b) that certain Supplemental Indenture, dated as of February 11, 2016 (the Original Indenture, as so supplemented, being herein referred to as the “Indenture”). Payment of the Exchange Notes is to be guaranteed by the Guarantors pursuant to a guarantee contained in the Indenture. All capitalized terms which are defined in the Indenture shall have the same meanings when used herein, unless otherwise specified.

 

In connection with the preparation of this opinion letter, and as the basis for the opinions (the “Opinions”) set forth below, we have made such inquiry of and with respect to BPC and PCI as we have deemed relevant and necessary, we have made such investigations of the laws of the State of Utah as we have deemed relevant and necessary, and we have examined such documents and records as we have deemed relevant and necessary, including the following:

 

 

Berry Plastics Corporation

May 2, 2016

Page 2

 

(1)

The Registration Statement (including all exhibits thereto);

 

(2)

An executed copy of the Indenture;

 

(3)

Executed copies of the Initial Notes;

 

(4)

The form of the Exchange Notes provided to us by Bryan Cave LLP;

 

(5)

A photocopy of the Articles of Incorporation of Huntsman Container Corporation International (“HCCI”), marked to indicate they were filed with the Utah Department of Commerce, Division of Corporations and Commercial Code (the “Division”) on October 17, 1989, a photocopy of Articles of Merger of Huntsman Packaging International Corporation into Huntsman Container Corporation International marked to indicate that they were filed with the Division December 24, 1996, and a photocopy of Articles of Amendment to the Articles of Incorporation of HCCI which changed the name of HCCI to Pliant Corporation International, marked to indicate they were filed with the Division of December 6, 2000 (collectively, the “PCI Articles”) all as certified to by the Division on December 17, 2013;

 

(6)

A Certificate of Existence as to PCI issued electronically by the Division on April 15, 2016 (the “PCI Certificate of Existence”);

 

(7)

Secretary’s Certificate of Berry Plastics Corporation and the Subsidiary Guarantors dated as of the date hereof (the “Secretary’s Certificate”) and certain of the documents described therein and attached thereto, including, without limitation resolutions adopted by Unanimous Written Consent of Certain Subsidiaries of the Company (including PCI) dated as of September 16, 2015, the PCI Articles and the Amended and Restated Bylaws of PCI (the “PCI Bylaws” and, together with the PCI Articles, the “PCI Organizational Documents”).

 

For purposes of this opinion letter, the following terms and phrases have the following meanings:

 

(i)

“PCI Organizational Documents” shall have the meaning set forth in Paragraph (7) above.

 

(ii)

“internal laws of the State of Utah” means the laws of the State of Utah, excluding any provisions of the Utah law that might require the application of the law of any state or jurisdiction other than the State of Utah.

 

(iii)

“laws of the State of Utah” or “Utah law” means and is limited to the present published statutes of the State of Utah, the administrative rules and regulations of agencies of the State of Utah as contained in the present published Utah Administrative Code, and the present published decisions of the Utah Court of Appeals and the Utah Supreme Court.

 

 

Berry Plastics Corporation

May 2, 2016

Page 3

 

Based upon and subject to the foregoing examination and subject to the assumptions, qualifications, limitations and exceptions set forth herein, we are, as of the date hereof, of the opinion that under current interpretations of the laws of the State of Utah:

 

1.           PCI is a corporation validly existing and in good standing under the laws of the State of Utah.

 

2.           PCI has the all necessary corporate power and authority to execute and deliver the First Supplemental Indenture and to guarantee the Exchange Notes pursuant to the Indenture.

 

3.           The execution and delivery by PCI of the First Supplemental Indenture and the guarantee of the Exchange Notes pursuant to the indenture have been duly authorized by all necessary corporate action on the part of PCI.

 

4.           The First Supplemental Indenture has been duly executed and delivered by PCI.

 

The opinions set forth above (the “Opinions”) are predicated upon and limited to the correctness of the assumptions set forth therein, and are further subject to the assumptions, qualifications, exceptions and limitations set forth below:

 

A.

In our examinations, we have assumed the genuineness of all signatures, the legal competence and capacity of all natural persons, the authenticity of all documents submitted to us as originals, the conformity to the original of all documents submitted to us as copies or by facsimile or other means of electronic transmission or obtained from EDGAR and the authenticity of the original of all such documents.

 

B.

In rendering the Opinion in Paragraph 1 with respect to the good standing of PCI, we have relied solely upon and such opinion is as of the date of the PCI Certificate of Existence.

 

C.

Certain of the Opinions are necessarily rendered or given in reliance upon statements or assurances as to matters of fact made to us by governmental officers or agencies or by officers or representatives of BPC or PCI. Such Opinions assume the accuracy and completeness of such statements or assurances, and to the extent based on such statements or assurances, are as of the dates of such statements or assurances. Except as expressly set forth in this opinion letter, we have not investigated or verified such matters of fact and do not opine as to or confirm the accuracy or completeness of such matters of fact.

 

D.

In rendering the Opinions we have relied upon the factual circumstances of the transactions contemplated by the Indenture, and, except as expressly set forth in this opinion letter, we have relied upon and have assumed the accuracy of the factual matters referred to in the Indenture, including, without limitation, the factual statements, factual representations and factual warranties of BPC or PCI contained in the Indenture. Except as expressly set

 

 

Berry Plastics Corporation

May 2, 2016

Page 4

 

forth in this opinion letter, we have not independently investigated or verified any such facts, and we do not opine as to or confirm the accuracy or completeness of such factual matters.

 

E.

The Opinions set forth herein are limited to the internal laws of the State of Utah. We express no opinion as to other local laws, or the law of any other state or country.

 

F.

We expressly except from the Opinions set forth herein any opinion concerning the need for or compliance by any party with the securities and antitrust laws, regulations, or rules of the State of Utah or any other jurisdiction.

 

G.

Our responsibilities under and with respect to this opinion letter and the Opinions expressed herein shall at all times and in all respects be governed by and construed solely in accordance with the internal laws of the State of Utah.

 

H.

The Opinions set forth herein that relate to specified agreements or documents do not extend to documents, agreements, or instruments referred to in said agreements or documents (even if incorporated therein by reference), or to any exhibits, annexes, or schedules that are not identified in this opinion letter.

 

I.

These Opinions are limited to the matters expressly stated herein, and no opinion is implied or may be inferred beyond the matters expressly stated.

 

J.

Unless otherwise specifically indicated, the Opinions set forth herein are as of the date hereof and we assume no obligation to update or supplement such opinions to reflect any facts or circumstances that may hereafter come to our attention or any change in the law that may occur after the date hereof.

 

We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the use of our name under the caption “Legal Matters” in the prospectus filed as a part thereof. In giving such consent, we do not thereby concede that we are within the category of persons whose consent is required under Section 7 of the Act or the Rules and Regulations of the Commission thereunder.

 

	Very truly yours,
	FABIAN VANCOTT
	/s/ Fabian VanCott

 

 

 

Exhibit 5.6

 

[Letterhead of Gentry Locke, Attorneys]

 

May 2, 2016

 

Berry Plastics Corporation

101 Oakley Street

Evansville, Indiana 47710

 

Re: Registration Statement on Form S-4 filed by Berry Plastics Corporation

 

Ladies and Gentlemen:

 

We have served as special counsel to Fiberweb Geos, Inc., a Virginia corporation (“Geos”), in connection with the Registration Statement on Form S-4 (the “Registration Statement”) filed by Berry Plastics Corporation, a Delaware corporation ( “BPC”), Berry Plastics Group, Inc. (“Berry”) and the subsidiary guarantors listed on Schedule I thereto, including Geos (the “Subsidiary Guarantors,” and together with Berry, being sometimes collectively referred to herein as the “Guarantors”) with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”), relating to the offer by BPC (the “Exchange Offer”) to exchange up to $400,000,000 in aggregate principal amount of BPC’s registered 6.00% Second Priority Senior Secured Notes due 2022 (the “Exchange Notes”) for an equal aggregate principal amount of its existing 6.00% Second Priority Senior Secured Notes due 2022 issued and outstanding in the aggregate principal amount of $400,000,000 (the “Initial Notes”), under the indenture dated as of October 1, 2015 (the “Original Indenture”), originally between Berry Plastics Escrow Corporation (“BP Escrow”) and U.S. Bank National Association, as trustee (the “Trustee”), as supplemented by that certain (a) Second Priority Notes First Supplemental Indenture, dated as of October 1, 2015, by and among BP Escrow, BPC, Berry, the Subsidiary Guarantors party thereto and the Trustee, pursuant to which, among other things, BPC was substituted for BP Escrow as issuer of the Initial Notes, Berry and such Subsidiary Guarantors guaranteed the Initial Notes, and that certain (b) Supplemental Indenture, dated as of February 11, 2016 (the “Second Supplemental Indenture,” and together with the Original Indenture and the First Supplemental Indenture, being herein referred to as the “Indenture”). Payment of the Exchange Notes is to be guaranteed by the Guarantors pursuant to a guarantee contained in the Indenture. All capitalized terms which are defined in the Indenture shall have the same meanings when used herein, unless otherwise specified.

 

In connection herewith, we have examined:

 

(1)

the Registration Statement (including all exhibits thereto);

 

(2)

an executed copy of the Indenture;

 

(3)

executed copies of the Initial Notes;

 

(4)

the form of the Exchange Notes;

 

  

Berry Plastics Corporation

May 2, 2016

Page | 2

 

(5)

the articles of incorporation and bylaws of Geos incorporated under the laws of the Commonwealth of Virginia (such Guarantor, as so identified on Schedule I, being sometimes referred to herein as the “Identified Guarantor”), as in effect on the date hereof and as certified by the applicable Secretary, Assistant Secretary or other appropriate representative of the Identified Guarantor (the “Organizational Documents”);

 

(6)

a certificate of good standing for the Identified Guarantor as of the date indicated on Schedule II; and

 

(7)

certificate of the Secretary, Assistant Secretary or other appropriate representative of the Identified Guarantor, certifying as to resolutions relating to the transactions referred to herein and the incumbency of officers.

 

The documents referenced as items (1) through (4) above are collectively referred to as the “Transaction Documents.” The documents referenced as items (1) through (7) above are collectively referred to as the “Reviewed Documents.”

 

We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such other corporate records, agreements and instruments of Geos, certificates of public officials and officers or other appropriate representatives of the Identified Guarantor, and such other documents, records and instruments, and we have made such legal and factual inquiries, as we have deemed necessary or appropriate as a basis for us to render the opinions hereinafter expressed. In our examination of the Reviewed Documents and the foregoing, we have assumed the genuineness of all signatures, the legal competence and capacity of natural persons, the authenticity of documents submitted to us as originals and the conformity with authentic original documents of all documents submitted to us as copies or by facsimile or other means of electronic transmission, or which we obtained from the Commission’s Electronic Data Gathering Analysis and Retrieval system (“EDGAR”) or other sites maintained by a court or government authority or regulatory body, and the authenticity of the originals or such latter documents. If any document we examined in printed, word processed or similar form has been filed with the Commission on EDGAR or such court or governmental authority or regulatory body, we have assumed that the document so filed is identical to the document we examined except for formatting changes. When relevant facts were not independently established, we have relied without independent investigation as to matters of fact upon statements of governmental officials and upon representations made in or pursuant to certificates and statements of appropriate representatives of the Identified Guarantor.

 

In connection herewith, we have assumed that, other than with respect to the Identified Guarantor, all of the documents referred to in this opinion have been duly authorized by, have been duly executed and delivered by, and constitute the valid, binding and enforceable obligations of, all of the parties thereto, all of the signatories to such documents have been duly authorized by all such parties and all such parties are duly organized and validly existing and have the power and authority (corporate or other) to execute, deliver and perform such documents.

 

 

Berry Plastics Corporation

May 2, 2016

Page | 3

 

We have further assumed, with your permission, that (i) each of the Subsidiary Guarantors other than Geos (each, an “Other Guarantor,” and collectively, the “Other Guarantors”) has been duly organized and is validly existing in good standing under the laws of its state of organization, (ii) the execution and delivery by each such Other Guarantor of the Transaction Documents to which it is a party and the performance by it of its obligations thereunder are within its organizational power and have been duly authorized by all necessary action (corporate or other) on its part, (iii) each of the Transaction Documents to which any Other Guarantor is a party has been duly executed and delivered by each such Other Guarantor and (iv) the execution and delivery by each Other Guarantor of the Transaction Documents to which it is a party and the performance by it of its obligations thereunder do not result in any violation by it of the provisions of its organizational documents.

 

Based upon the foregoing and in reliance thereon, and subject to the assumptions, comments, qualifications, limitations and exceptions set forth herein, we are of the opinion that:

 

(1)

Geos is a corporation validly existing and in good standing under the laws of the Commonwealth of Virginia;

 

(2)

Geos has all the necessary corporate power and authority to execute and deliver the Second Supplemental Indenture and guarantee the Exchange Notes pursuant to the Indenture;

 

(3)

The execution and delivery by Geos of the Second Supplemental Indenture and the guarantee of the Exchange Notes pursuant to the Indenture have been duly authorized by all necessary corporation action on the part of Geos; and

 

(4)

The Second Supplemental Indenture has been duly executed and delivered by Geos.

 

In addition to the assumptions, comments, qualifications, limitations and exceptions set forth above, the opinions set forth herein is further limited by, subject to and based upon the following assumptions, comments, qualifications, limitations and exceptions:

 

(a)          Our opinions set forth herein reflect only the application of the Virginia Stock Corporation Act (Title 13.1, Chapter 9 of the Code of Virginia (1950), as amended) (the jurisdiction referred to in this sentence being sometimes referred to herein as the “Opinion Jurisdiction”). The opinions set forth herein are made as of the date hereof and are subject to, and may be limited by, future changes in the factual matters set forth herein, and we undertake no duty to advise you of the same. The opinions expressed herein are based upon the law in effect (and published or otherwise generally available) on the date hereof, and we assume no obligation to revise or supplement these opinions should such law be changed by legislative action, judicial decision or otherwise. In rendering our opinion, we have not considered, and hereby disclaim any opinion as to, the application or impact of the laws of any jurisdiction other than the Opinion Jurisdiction, or in the case of the Commonwealth of Virginia, any other laws of such states.

 

 

Berry Plastics Corporation

May 2, 2016

Page | 4

 

We do not render any opinions except as set forth above. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of our name under the caption “Legal Matters” in the prospectus filed as a part thereof. In giving such consent, we do not thereby concede that we are within the category of persons whose consent is required under Section 7 of the Act or the Rules and Regulations of the Commission thereunder.

 

Very truly yours,

 

/s/ Gentry Locke, Attorneys

 

Gentry Locke, Attorneys

 

 

 

Exhibit 5.7

 

ATTORNEYS AT LAW 777 East Wisconsin Avenue Milwaukee, WI 53202-5306 414.271.2400 TEL 414.297.4900 FAX www.foley.com

 

May 2, 2016

 

Berry Plastics Corporation
101 Oakley Street
Evansville, IN 47710

 

Ladies and Gentlemen:

 

We have acted as local Wisconsin counsel for Prime Label & Screen Incorporated, a Wisconsin corporation (the “Wisconsin Guarantor”), in connection with the preparation of a Registration Statement on Form S-4 (the “Registration Statement”), including the prospectus constituting a part thereof (the “Prospectus”), to be filed by Berry Plastics Group, Inc., a Delaware corporation (the “Parent”), Berry Plastics Corporation, a Delaware corporation (“BPC”) and the subsidiary guarantors listed on Schedule I thereto, including the Wisconsin Guarantor (the “Subsidiary Guarantors”), with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), relating to the offer by BPC (the “Exchange Offer”) to exchange up to $400,000,000 in aggregate principal amount of BPC’s registered 6.00% Second Priority Senior Secured Notes due 2022 (the “Exchange Notes”) for an equal aggregate principal amount of its existing 6.00% Second Priority Senior Secured Notes due 2022 issued and outstanding in the aggregate principal amount of $400,000,000 (the “Initial Notes”), under the indenture dated as of October 1, 2015 (the “Original Indenture”), originally between Berry Plastics Escrow Corporation (“BP Escrow”) and U.S. Bank National Association, as trustee (the “Trustee”), as supplemented by that certain (a) Second Priority Notes First Supplemental Indenture, dated as of October 1, 2015 (the “First Supplemental Indenture”), by and among BP Escrow, BPC, the Parent, the Subsidiary Guarantors party thereto and the Trustee, pursuant to which, among other things, BPC was substituted for BP Escrow as issuer of the Initial Notes, and the Parent and such Subsidiary Guarantors guaranteed the Initial Notes, and that certain (b) Second Priority Notes Supplemental Indenture, dated as of February 11, 2016 (the Original Indenture, as so supplemented, being herein referred to as the “Indenture”). The Exchange Notes will be fully and unconditionally guaranteed (the “Note Guarantee” and, together with the Exchange Notes, the “Securities”) by the Wisconsin Guarantor, among others, and will be issued under the Indenture, which establishes and sets forth certain terms and conditions of the Securities that are registered under the Securities Act.

 

As counsel to the Wisconsin Guarantor in connection with our opinion, we have examined: (i) the Registration Statement, including the Prospectus and the exhibits (including those incorporated by reference) constituting a part of the Registration Statement; (ii) the Indenture, including the First Supplemental Indenture; (iii) the Initial Notes, (iv) the forms of the Exchange Notes; and (v) such other proceedings, documents and records as we have deemed necessary to enable us to render this opinion.

 

In our examination of the above referenced documents, we have assumed the genuineness of all signatures, the authenticity of all documents, certificates and instruments submitted to us as

 

Boston Brussels CHICAGO Detroit

JACKSONVILLE LOS ANGELES MADISON MIAMI

MILWAUKEE NEW YORK ORLANDO SACRAMENTO

SAN DIEGO SAN FRANCISCO SHANGHAI SILICON VALLEY

TALLAHASSEE TAMPA TOKYO WASHINGTON, D.C.

 

   

 

May 2, 2016

Page 2

 

originals and the conformity with the originals of all documents submitted to us as copies. We have also assumed that (i) the Trustee, and each other party to the Indenture, other than the Wisconsin Guarantor, is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, and is duly qualified to engage in the activities contemplated by the Indenture; (ii) the Indenture has been duly authorized, executed and delivered by, and represents the valid and binding obligation of, the Trustee, and each other party to the Indenture, other than the Wisconsin Guarantor, enforceable against the Trustee and each other such party in accordance with its terms; (iii) the Registration Statement, including any amendments thereto, shall have become effective under the Securities Act; and (iv) the Exchange Notes are duly executed and delivered by BPC in the form contemplated by the Indenture and are authenticated in accordance with the Indenture.

 

Based upon and subject to the foregoing and the other matters set forth herein, and having regard for such legal considerations as we deem relevant, we are of the opinion that:

 

1.          Based solely on a certificate of the Wisconsin Department of Financial Institutions, the Wisconsin Guarantor is a domestic corporation organized under the laws of the State of Wisconsin, has filed its most recent required annual report and has not filed articles of dissolution with the Wisconsin Department of Financial Institutions.

 

2.          The Wisconsin Guarantor has the necessary corporate power and authority to guarantee the Exchange Notes pursuant to the Indenture and the Note Guarantee.

 

3.          The execution and delivery by the Wisconsin Guarantor of the First Supplemental Indenture have been duly authorized by all necessary corporate action on the part of the Wisconsin Guarantor.

 

4.          The First Supplemental Indenture has been duly executed and delivered by the Wisconsin Guarantor.

 

We render no opinion herein as to matters involving the laws of any jurisdiction other than the laws of the States of Wisconsin and the federal laws of the United States of America. This opinion is limited to the effect of the current laws of the State of Wisconsin and the federal laws of the United States of America and the facts as they currently exist. We assume no obligation to revise or supplement this opinion in the event of future changes in such laws or the interpretations thereof or the facts as they currently exist.

 

We hereby consent to the deemed incorporation by reference of this opinion into the Registration Statement and the Prospectus and to the references to our firm therein. In giving this consent, we do not admit that we are “experts” within the meaning of Section 11 of the Securities Act or within the category of persons whose consent is required by Section 7 of the Securities Act.

 

	Very truly yours,
	/s/ Foley & Lardner LLP

 

 

 

Exhibit 12.1

 

 

 

	Calculation of Ratio of Earnings to Fixed Charges (dollars in millions)
	Fiscal Year						One Quarter Ended
	2011	2012	2013	2014	2015		2015	2016
Earnings:
Income (loss) before taxes	$(346)	$4	$85	$67	$122		$16	$7
Interest	327	328	244	221	191		53	75
Interest portion of rental expense	19	20	18	18	17		4	6
	(0)	352	347	306	330		73	88
Fixed Charges:
Interest	327	328	244	221	191		53	75
Interest capitalized	3	5	5	6	6		1	2
Interest portion of rental expense	19	20	18	18	17		4	4
	349	353	267	245	215		59	81
Ratio	(0.0)	1.0	1.3	1.2	1.5		1.2	1.1

 

Exhibit 21

 

Subsidiaries of Berry Plastics Group, Inc.

 

(As of May 2, 2016)

 

Entity Name		Country		State
159422 Canada Inc.		CANADA
AeroCon, LLC		USA		DE
Aspen Industrial S.A. de C.V.		MEXICO
AVINTIV  Inc.		USA		DE
AVINTIV Acquisition Corporation		USA		DE
AVINTIV Specialty Materials, Inc.		USA		DE
Berry Plastics (Australia) Pty Ltd.		AUSTRALIA
Berry Plastics Acquisition Corporation V		USA		DE
Berry Plastics Acquisition Corporation XI		USA		DE
Berry Plastics Acquisition Corporation XII		USA		DE
Berry Plastics Acquisition Corporation XIII		USA		DE
Berry Plastics Acquisition Corporation XIV, LLC		USA		DE
Berry Plastics Acquisition Corporation XV, LLC		USA		DE
Berry Plastics Acquisition LLC II		USA		DE
Berry Plastics Acquisition LLC X		USA		DE
Berry Plastics Asia Pacific Limited		HONG KONG
Berry Plastics Asia Pte. Ltd.		SINGAPORE
Berry Plastics Beheer B.V.		NETHERLANDS
Berry Plastics Canada, Inc.		CANADA
Berry Plastics Corporation		USA		DE
Berry Plastics de Mexico, S. de R.L. de C.V.		MEXICO
Berry Plastics Design, LLC		USA		DE
Berry Plastics Dutch Holding Cooperatief U. A.		NETHERLANDS
Berry Plastics Dutch Holding Cooperatief U. A.		NETHERLANDS
Berry Plastics Escrow Corporation		USA		DE
Berry Plastics Escrow, LLC		USA		DE

 

 

Berry Plastics Filmco, Inc.		USA		DE
Berry Plastics France Holdings SAS		FRANCE
Berry Plastics GmbH		GERMANY
Berry Plastics Group, Inc.		USA		DE
Berry Plastics Holding GmbH & Co. KG		GERMANY
Berry Plastics Hong Kong Limited		HONG KONG
Berry Plastics IK, LLC		USA		DE
Berry Plastics International B.V.		NETHERLANDS
Berry Plastics International C.V.		NETHERLANDS
Berry Plastics International GmbH		GERMANY
Berry Plastics International, LLC		USA		DE
Berry Plastics Malaysia SDN BHD		MALAYSIA
Berry Plastics Opco, Inc.		USA		DE
Berry Plastics Qingdao Limited		CHINA
Berry Plastics SP, Inc.		USA		DE
Berry Plastics Technical Services, Inc.		USA		DE
Berry Sterling Corporation		USA		DE
Boddington International Limited		UK
Bonlam Holdings B.V.		NETHERLANDS
Bonlam, S.A. DE C.V.		MEXICO
Bonlam, S.A. DE C.V.		MEXICO
BP Parallel, LLC		USA		DE
BPRex Brazil Holding Inc.		USA		DE
BPRex Closure Systems, LLC		USA		DE
BPRex Closures and Packaging Services Ltd.		UK
BPRex Closures Kentucky Inc.		USA		DE
BPRex Closures, LLC		USA		DE
BPRex de Mexico S.A. de R.L. de CV		MEXICO
BPRex Delta Inc.		USA		DE
BPRex Healthcare Brookville Inc.		USA		DE
BPRex Healthcare Offranville		FRANCE
BPRex Healthcare Packaging, Inc.		USA		DE

 

 

BPRex Partipacoes Ltda		BRAZIL
BPRex Partipacoes Ltda		BRAZIL
BPRex Plastic Packaging (India Holdings) Limited		UK
BPRex Plastic Packaging de Mexico S.A. de C.V.		MEXICO
BPRex Plastic Packaging de Mexico S.A. de C.V.		MEXICO
BPRex Plastic Packaging de Mexico S.A. de C.V.		MEXICO
BPRex Plastic Packaging, Inc.		USA		DE
BPRex Plastic Services Company Inc.		USA		DE
BPRex Plasticos Do Brasil Ltda		BRAZIL
BPRex Product Design & Engineering Inc.		USA		MN
BPRex Singapore Pte. Ltd.		SINGAPORE
BPRex Specialty Products Puerto Rico Inc.		USA		NJ
Caplas LLC		USA		DE
Caplas Neptune, LLC		USA		DE
Captive Plastics Holdings, LLC		USA		DE
Captive Plastics, LLC		USA		DE
Cardinal Packaging, Inc.		USA		DE
Chicopee Asia, Limited		HONG KONG
Chicopee Holdings B.V.		NETHERLANDS
Chicopee Holdings C.V.		NETHERLANDS
Chicopee Holdings C.V.		NETHERLANDS
Chicopee, Inc.		USA		DE
Companhai Providencia Industria e Comercio		BRAZIL
Cordustex (PTY) Limited		SOUTH AFRICA
Cordustex Manufacturing (PTY) Limited		SOUTH AFRICA
Covalence Specialty Adhesives LLC		USA		DE
Covalence Specialty Coatings LLC		USA		DE
CPI Holding Corporation		USA		DE
CSM Mexico SPV LLC		USA		DE
DIFCO Performance Fabrics, Inc.		CANADA
Dominion Textile (USA), L.L.C.		USA		DE
Dominion Textile Inc.		CANADA
Dominion Textile Mauritius Inc.		MAURITIUS
Dounor SAS		FRANCE
DT Acquisition Inc.		CANADA
Fabrene, Inc.		CANADA
Fabrene, L.L.C.		USA		DE
Fiberweb (Tianjin) Specialty Nonwovens Company Limited		CHINA
Fiberweb Asia Pacific Limited		HONG KONG

 

 

Fiberweb Berlin GmbH		GERMANY
Fiberweb France SAS		FRANCE
Fiberweb Geo GmbH		GERMANY
Fiberweb Geos, Inc.		USA		VA
Fiberweb Geosynthetics Limited		UK
Fiberweb Geosynthetiques Sarl		FRANCE
Fiberweb Holding Deutschland GmbH		GERMANY
Fiberweb Holdings Limited		UK
Fiberweb Holdings, Inc.		USA		DE
Fiberweb Industrial Textiles Corporation		USA		DE
Fiberweb Italia S.p.A.		ITALY
Fiberweb Joint Venture 1 Limited		UK
Fiberweb Joint Venture 2 Limited		UK
Fiberweb Limited		UK
Fiberweb Technical Fabrics (Shanghai) Company Limted		CHINA
Fiberweb Terno D'Isola Srl		ITALY
Fiberweb UK Limited		UK
Fiberweb US Holdings Limited		UK
Fiberweb USA Holdings, Inc.		USA		DE
Fiberweb Washougal, Inc.		USA		DE
Fiberweb, Inc.		USA		SC
Frans Nooren Afdichtingssystemen B.V.		NETHERLANDS
Geca-Tapes B.V.		NETHERLANDS
Grafco Industries Limited Partnership		USA		MD
Grafco Industries Limited Partnership		USA		MD
Grupo de Servicios Berpla, S. de R.L. de C.V.		MEXICO
Jacinto Mexico, S.A. de C.V.		MEXICO
Jacinto Mexico, S.A. de C.V.		MEXICO
Kerr Group, LLC		USA		DE
Knight Plastics, LLC		USA		DE
Korma S.p.A.		ITALY
Nanhai Nanxin Non Woven Co. Ltd		CHINA
Old Hickory Steamworks, LLC		USA		DE
Packerware, LLC		USA		DE
Pescor, Inc.		USA		DE
PGI Acquisition Limited		UK
PGI Argentina S.A.		ARGENTINA

 

 

PGI Argentina S.A.		ARGENTINA
PGI Colombia LTDA		COLUMBIA
PGI Columbia LTDA		COLUMBIA
PGI Europe, Inc.		USA		DE
PGI France Holdings SAS		FRANCE
PGI France SAS		FRANCE
PGI Holdings B.V.		NETHERLANDS
PGI Netherlands Holdings (NO. 2) B.V.		NETHERLANDS
PGI Netherlands Holdings B.V.		NETHERLANDS
PGI Non-Woven (China) Co. Ltd		CHINA
PGI Non-Woven (Foshan) Co. Ltd		CHINA
PGI Nonwovens (Mauritius)		NETHERLANDS
PGI Nonwovens B.V.		NETHERLANDS
PGI Nonwovens B.V.		NETHERLANDS
PGI Nonwovens Germany GmbH		GERMANY
PGI Nonwovens Limited		UK
PGI Polimeros Do Brazil S.A.		BRAZIL
PGI Polimeros Do Brazil S.A.		BRAZIL
PGI Polymer, Inc.		USA		DE
PGI Spain S.L. U		SPAIN
Pliant Corporation International		USA		UT
Pliant de Mexico S.A. de C.V.		MEXICO
Pliant de Mexico S.A. de C.V.		MEXICO
Pliant, LLC		USA		DE
Polymer Group Holdings C.V.		NETHERLANDS
Poly-Seal, LLC		USA		DE
Prime Label & Screen Incorporated		USA		WI
Pristine Brands Corporation		USA		DE
Providencia USA, Inc.		USA		NC
Rafypak, S.A. de C.V.		MEXICO
Rafypak, S.A. de C.V.		MEXICO
Rexam Pharma Packaging India Pvt. Ltd.		INDIA
Rollpak Corporation		USA		DE
Saffron Acquisition, LLC		USA		DE
SCI Vertuquet		FRANCE
Seal for Life India Private Limited		INDIA
Seal for Life Industries Beta LLC		USA		DE

 

 

Seal for Life Industries BVBA		BELGIUM
Seal for Life Industries BVBA		BELGIUM
Seal for Life Industries Mexico, S. de R.L. de C.V.		MEXICO
Seal for Life Industries Mexico, S. de R.L. de C.V.		MEXICO
Seal for Life Industries Tijuana LLC		USA		DE
Seal for Life Industries, LLC		USA		DE
Seal for Life Technologies & Services B.V.		NETHERLANDS
Setco, LLC		USA		DE
Stopaq B.V.		NETHERLANDS
Stopaq Saudi Factory LLC		SAUDI ARABIA
Sun Coast Industries, LLC		USA		DE
Terram Defencell Limited		UK
Terram Geosynthetics Private Limited		INDIA
Terram Geosynthetics Private Limited		INDIA
Terram Limited		UK
Tesalca Polska SP ZO.O		POLAND
Tubex Limited		UK
Tyco Acquisition Alpha LLC		USA		NV
Uniplast Holdings, LLC		USA		DE
Uniplast U.S., Inc.		USA		DE
Venture Packaging Midwest, Inc.		USA		DE
Venture Packaging, Inc.		USA		DE

 

 

Exhibit 23.1

 

Consent of Independent Registered Public Accounting Firm

 

We consent to the reference to our firm under the caption "Experts" and to the use of our report dated November 23, 2015, except for Notes 1, 2, 10, 13, and 17, as to which the date is May 2, 2016, with respect to the consolidated financial statements of Berry Plastics Group, Inc. for the years ended September 26, 2015 and September 27, 2014 and each of the three years in the period ended September 26, 2015, appearing in the Registration Statement (Form S-4) of Berry Plastics Corporation for the registration of $400,000,000 of 6% Second Priority Senior Secured Notes due 2022. We also consent to the incorporation by reference therein of our report dated November 23, 2015, with respect to the effectiveness of internal control over financial reporting of Berry Plastics Group, Inc. as of September 26, 2015 included in the 2015 Annual Report (Form 10-K), filed with the Securities and Exchange Commission.

  

 

 

/s/ Ernst & Young LLP

Indianapolis, Indiana

May 2, 2016

 

 

 

Exhibit 23.2

 

 

Consent of Independent Registered Public Accounting Firm

We consent to the reference to our firm under the caption "Experts" in the Registration Statement (Form S-4) and related Prospectus of Berry Plastics Group, Inc. for the exchange of an aggregate principal amount of up to $400,000,000 of new 6.00% Second Priority Senior Secured Notes due 2022 for all of their outstanding unregistered 6.00% Second Priority Senior Secured Notes due 2022 and to the incorporation by reference therein of our reports dated April 27, 2015, with respect to the consolidated financial statements of AVINTIV Inc. for the year ended December 31, 2014, included in Berry Plastics Group, Inc. 8-K/A, filed with the Securities and Exchange Commission.

 

/s/ Ernst & Young LLP

Charlotte, North Carolina

May 2, 2016

 

 

 

 

 

Exhibit 25

 

 

securities and exchange commission

Washington, D.C. 20549

__________________________

 

FORM T-1

 

Statement of Eligibility Under

The Trust Indenture Act of 1939 of a

Corporation Designated to Act as Trustee

Check if an Application to Determine Eligibility of

a Trustee Pursuant to Section 305(b)(2)

_______________________________________________________

 

U.S. BANK NATIONAL ASSOCIATION

(Exact name of Trustee as specified in its charter)

 

31-0841368

I.R.S. Employer Identification No.

 

800 Nicollet Mall Minneapolis, Minnesota		55402
(Address of principal executive offices)		(Zip Code)

 

Beverly A. Freeney

U.S. Bank National Association

100 Wall Street, Suite 1600

New York, NY 10005

(212) 361-2893

(Name, address and telephone number of agent for service)

 

BERRY PLASTICS CORPORATION

a wholly owned subsidiary of

Berry Plastics Group, Inc.

(Issuer with respect to the Securities)

 

Delaware		35-1814673
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification No.)

 

SEE TABLE OF ADDITIONAL REGISTRANT GUARANTORS

 

101 Oakley Street Evansville, Indiana		47710
(Address of Principal Executive Offices)		(Zip Code)

 

6.00% Second Priority Senior Secured Notes due 2022

(Title of the Indenture Securities)

 

 

 

Table of Additional Registrant Guarantors

 

Exact name of registrant as specified in its charter (1)		State or other jurisdiction of formation		I.R.S. Employer Identification No.
AeroCon, LLC		Delaware		35-1948748
Berry Plastics Acquisition Corporation V		Delaware		36-4509933
Berry Plastics Acquisition Corporation XI		Delaware		35-2184300
Berry Plastics Acquisition Corporation XII		Delaware		35-2184299
Berry Plastics Acquisition Corporation XIII		Delaware		35-2184298
Berry Plastics Acquisition Corporation XV, LLC		Delaware		35-2184293
Berry Plastics Acquisition LLC X		Delaware		35-2184301
Berry Plastics Design, LLC		Delaware		62-1689708
Berry Plastics Group, Inc.		Delaware		20-5234618
Berry Plastics Filmco, Inc.		Delaware		34-1848686
Berry Plastics IK, LLC		Delaware		42-1382173
Berry Plastics Opco, Inc.		Delaware		30-0120989
Berry Plastics SP, Inc.		Delaware		52-1444795
Berry Plastics Technical Services, Inc.		Delaware		57-1029638
Berry Sterling Corporation		Delaware		54-1749681
BPRex Brazil Holding Inc.		Delaware		34-1864772
BPRex Closure Systems, LLC		Delaware		27-4588544
BPRex Closures Kentucky Inc.		Delaware		56-2209554
BPRex Closures, LLC		Delaware		27-4579074
BPRex Delta Inc.		Delaware		71-0725503
BPRex Healthcare Brookville Inc.		Delaware		22-2784127
BPRex Healthcare Packaging Inc.		Delaware		20-1555450
BPRex Plastic Packaging Inc.		Delaware		34-1559354
BPRex Plastics Services Company Inc.		Delaware		62-1256003
BPRex Product Design and Engineering Inc.		Minnesota		41-0751022
BPRex Specialty Products Puerto Rico Inc.		New Jersey		66-0414062
Caplas LLC		Delaware		20-3888603
Caplas Neptune, LLC		Delaware		20-5557864
Captive Plastics Holdings, LLC		Delaware		20-1290475
Captive Plastics, LLC		Delaware		22-1890735
Cardinal Packaging, Inc.		Delaware		34-1396561
Covalence Specialty Adhesives LLC		Delaware		20-4104683
Covalence Specialty Coatings LLC		Delaware		20-4104683
CPI Holding Corporation		Delaware		34-1820303
Grafco Industries Limited Partnership		Maryland		52-1729327
Kerr Group, LLC		Delaware		95-0898810
Knight Plastics, LLC		Delaware		35-2056610
Packerware, LLC		Delaware		48-0759852
Pescor, Inc.		Delaware		74-3002028
Pliant Corporation International		Utah		87-0473075
Pliant, LLC		Delaware		43-2107725
Poly-Seal, LLC		Delaware		52-0892112
Prime Label & Screen Incorporated		Wisconsin		39-1741360
Rollpak Corporation		Delaware		35-1582626
Saffron Acquisition, LLC		Delaware		94-3293114
Seal for Life Industries, LLC		Delaware		46-1748055
Setco, LLC		Delaware		56-2374074
Sun Coast Industries, LLC		Delaware		59-1952968
Uniplast Holdings, LLC		Delaware		13-3999589
Uniplast U.S., Inc.		Delaware		04-3199066
Venture Packaging Midwest, Inc.		Delaware		34-1809003
Venture Packaging, Inc.		Delaware		51-0368479
AVINTIV Inc.		Delaware		27-4132779
AVINTIV Acquisition Corporation		Delaware		27-4133195
AVINTIV Specialty Materials, Inc.		Delaware		57-1003983
PGI Polymer, Inc.		Delaware		57-0962088
Chicopee, Inc.		Delaware		57-1013629
Fabrene, L.L.C.		Delaware		51-0319685
Dominion Textile (USA), L.L.C.		Delaware		13-2865428
PGI Europe, Inc.		Delaware		56-2154891
Fiberweb Geos, Inc.		Virginia		27-4528301
Fiberweb Holdings, Inc.		Delaware		20-5842445
Fiberweb, Inc.		South Carolina		20-5842445
Fiberweb Industrial Textiles Corporation		Delaware		20-5292500
Fiberweb USA Holdings, Inc.		Delaware		20-5842445
Fiberweb Washougal, Inc.		Delaware		62-1421310
Old Hickory Steamworks, LLC		Delaware		27-1393212
Pristine Brands Corporation		Delaware		62-1864653
Providencia USA, Inc.		North Carolina		26-3133752

 

All additional registrants have the following principal executive office:

 

c/o Berry Plastics Corporation
101 Oakley Street,
Evansville, Indiana 47710

 

 

FORM T-1

 

Item 1.

GENERAL INFORMATION. Furnish the following information as to the Trustee.

 

a)

Name and address of each examining or supervising authority to which it is subject.

Comptroller of the Currency

Washington, D.C.

 

b)

Whether it is authorized to exercise corporate trust powers.

Yes

 

Item 2.

AFFILIATIONS WITH OBLIGOR. If the obligor is an affiliate of the Trustee, describe each such affiliation.

None

 

Items 3-15

Items 3-15 are not applicable because to the best of the Trustee's knowledge, the obligor is not in default under any Indenture for which the Trustee acts as Trustee.

 

Item 16.

LIST OF EXHIBITS: List below all exhibits filed as a part of this statement of eligibility and qualification.

 

1.

A copy of the Articles of Association of the Trustee.*

 

2.

A copy of the certificate of authority of the Trustee to commence business.***

 

3.

A copy of the certificate of authority of the Trustee to exercise corporate trust powers.***

 

4.

A copy of the existing bylaws of the Trustee.**

 

5.

A copy of each Indenture referred to in Item 4. Not applicable.

 

6.

The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939, attached as Exhibit 6.

 

7.

Report of Condition of the Trustee as of December 31, 2015 published pursuant to law or the requirements of its supervising or examining authority, attached as Exhibit 7.

 

*

Incorporated by reference to Exhibit 25.1 to Amendment No. 2 to registration statement on S-4, Registration Number 333-128217 filed on November 15, 2005.

 

**

Incorporated by reference to Exhibit 25.1 to registration statement on form S-3ASR, Registration Number 333-199863 filed on November 5, 2014.

 

***

Incorporated by reference to Exhibit 25.1 to registration statement on S-4, Registration Number 333-210534 filed on April 1, 2016.

 

 

SIGNATURE

 

Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the Trustee, U.S. BANK NATIONAL ASSOCIATION, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York, State of New York on the 14th of April, 2016.

 

	By:	/s/ Beverly A. Freeney
		Beverly A. Freeney
		Vice President

 

 

Exhibit 6

 

CONSENT

 

In accordance with Section 321(b) of the Trust Indenture Act of 1939, the undersigned, U.S. BANK NATIONAL ASSOCIATION hereby consents that reports of examination of the undersigned by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.

 

Dated: April 14, 2016

 

	By:	/s/ Beverly A. Freeney
		Beverly A. Freeney
		Vice President

 

 

Exhibit 7

U.S. Bank National Association

Statement of Financial Condition

As of 12/31/2015

 

($000’s)

 

		12/31/2015
Assets
Cash and Balances Due From		$	11,116,460
Depository Institutions
Securities			105,221,515
Federal Funds			66,242
Loans & Lease Financing Receivables			259,137,459
Fixed Assets			4,356,531
Intangible Assets			13,140,000
Other Assets			24,420,027
Total Assets		$	417,458,234
Liabilities
Deposits		$	310,443,288
Fed Funds			1,617,316
Treasury Demand Notes			0
Trading Liabilities			989,983
Other Borrowed Money			46,198,790
Acceptances			0
Subordinated Notes and Debentures			3,150,000
Other Liabilities			12,012,892
Total Liabilities		$	374,412,269
Equity
Common and Preferred Stock			18,200
Surplus			14,266,400
Undivided Profits			27,904,230
Minority Interest in Subsidiaries			857,135
Total Equity Capital		$	43,045,965
Total Liabilities and Equity Capital		$	417,458,234