amendedandrestatedcreditagre.htm - Generated by SEC Publisher for SEC Filing










 








AMENDMENT
NO. 3 TO THE 

AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT


 


This AMENDMENT NO. 3 TO THE
AMENDED AND RESTATED CREDIT AGREEMENT,
dated as of June 28, 2011 (this “Amendment”), is entered into by and
among BERRY PLASTICS GROUP, INC., a Delaware corporation (“Holdings”),
BERRY PLASTICS CORPORATION, a Delaware corporation (the “Company”),
certain domestic subsidiaries of the Company party hereto as additional
borrowers (together with the Company, the “Borrowers”), certain other
subsidiaries of the Company party hereto, the financial institutions party
hereto as lenders under the Unamended Credit Agreement (as defined below) (the
“Consenting Lenders”), the Designated Lenders (as defined below), and
BANK OF AMERICA, N.A., as administrative agent (in such capacity, the “Administrative
Agent”) and collateral agent (in such capacity, the “Collateral Agent”). 


PRELIMINARY STATEMENTS:


(1)              
Holdings, the Company, the
Borrowers, the lenders from time to time party thereto (the “Existing
Lenders”), the Administrative Agent, the Collateral Agent and the other
agents party thereto, entered into that certain Amended and Restated Revolving
Credit Agreement, dated as of April 3, 2007 (as amended by Amendment No. 1 to
the Amended and Restated Revolving Credit Agreement, dated as of December 14,
2007, Amendment No. 2 to the Amended and Restated Credit Agreement, dated as of
January 11, 2008, and the Incremental Assumption Agreement, dated as of
December 23, 2009, the “Unamended Credit Agreement”);  


(2)              
The Borrower has requested that
(i) the Existing Lenders approve certain amendments to the Unamended Credit
Agreement specified herein, (ii) the Designated Lenders (as hereinafter
defined), as designated by the Administrative Agent pursuant to Section 9.04(g)
of the Unamended Credit Agreement (as amended as contemplated by preceding
clause (i)), accept assignments of the Loans and Commitments of each Existing
Lender and in connection therewith, the Administrative Agent shall prepay and
terminate the Loans and Commitments of each Defaulting Lender, and (iii) the
Designated Lenders, which shall constitute all of the Lenders at such time,
subsequently amend the Unamended Credit Agreement in the form of the Amended
and Restated Revolving Credit Agreement attached as Annex A hereto (the
“Amended Credit Agreement”); and


(3)              
In accordance with Section 9.08 of
the Unamended Credit Agreement, the Administrative Agent, the Consenting
Lenders, the Company, the Collateral Agent, the Swingline Lender, the Issuing
Bank, the Designated Lenders and the other Loan Parties have each agreed,
subject to the terms and conditions stated below, to the transactions described
in the preceding paragraph;


NOW,
THEREFORE, in consideration of the premises and in order to induce the parties
hereto to enter into the transactions described herein and the lenders under
the Amended Credit Agreement to extend credit and other financial
accommodations to the Borrowers pursuant to the Amended Credit Agreement, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, each of the Administrative Agent, the Consenting
Lenders, the Designated Lenders, the Borrowers and the other Loan Parties
hereby covenant and agree as follows:


SECTION 1.        
Definitions. 


  Each capitalized term
used herein shall have the meaning provided below or in the introduction
hereto:


“Administrative Agent” has the meaning given to
such term in the preamble hereof. 









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“ALTA Policy” has
the meaning given to such term in Section 8(b) hereof. 


“Amended Credit Agreement” has the meaning
given to such term in the second recital hereof. 


“Amendment” has the meaning given to such term
in the preamble hereof. 


“Amendment Effective Date” has the meaning
given to such term in Section 7 hereof. 


“Borrowers” has the meaning given to such term
in the preamble hereof. 


“Collateral Agent” has the meaning given to
such term in the preamble hereof. 


“Company” has the meaning given to such term in
the preamble hereof. 


“Consenting Lenders” has the meaning given to
such term in the preamble hereof. 


“Designated Lenders” has the meaning given to
such term in Section 4 hereof. 


“Existing Defaulting Lender” means each person
who is, as of the date hereof and immediately prior to giving effect to this
Amendment (other than Section 2(a) hereof, which shall be given full force and
effect for the purposes of this definition), a “Lender” under, and as defined
in, the Unamended Credit Agreement and is also a “Defaulting Lender” under, and
as defined in, the Unamended Credit Agreement, as amended pursuant to Section
2(a) hereof. 


“Existing Lender” has the meaning given to such
term in the first recital hereof.


“Flood Hazard Property” has the meaning given
to such term in Section 8(c) hereof. 


“Holdings” has the meaning given to such term
in the preamble hereof.


“Holdings Credit Agreement” shall mean the Term
Loan Credit Agreement, dated as of June 5, 2007, among Holdings (as borrower),
the lenders and agents party thereto and Credit Suisse, as administrative agent
for such lenders, as amended, restated, supplemented, waived, replaced,
restructured, repaid, refunded, refinanced or otherwise modified from time to
time, including any agreement or indenture extending the maturity thereof,
refinancing, replacing or otherwise restructuring all or any portion of the Indebtedness
under such agreement or agreements or indenture or indentures or increasing the
amount loaned thereunder or altering the maturity thereof.


“Modification Endorsements” has the meaning
given to such term in Section 8(b) hereof. 


“Mortgage Amendment” has the meaning given to
such term in Section 8(a) hereof. 


“New York Courts” has the meaning given to such
term in Section 13(a) hereof.


“Title Insurance” has the meaning given to such
term in Section 8(b) hereof. 


“Title Policies” has the meaning given to such
term in Section 8(b) hereof. 


“Unamended Credit Agreement” has the meaning
given to such term in the first recital hereof. 









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All
capitalized terms not otherwise defined herein shall have the meanings
attributed thereto in the Amended Credit Agreement.


SECTION 2.        
Amendments of Unamended Credit Agreement.


 
The parties hereto hereby agree to amend the
Unamended Credit Agreement as of the Amendment Effective Date, with such
amendments to occur in the order set forth below, as follows: 


(a)   
       The definition of “Defaulting
Lender” of the Unamended Credit Agreement is hereby amended by deleting the
definition in its entirety and inserting in its place the following:


““Defaulting Lender” shall mean, subject to
Section 2.23, any Lender that (a) has failed to (i) fund all or any portion of
its Loans within two Business Days of the date such Loans were required to be
funded hereunder unless such Lender notifies the Administrative Agent and the
Company in writing that such failure is the result of such Lender’s
determination that one or more conditions precedent to funding (each of which
conditions precedent, together with any applicable default, shall be
specifically identified in such writing) has not been satisfied, or (ii) pay to
the Administrative Agent, any Issuing Bank, the Swingline Lender or any other
Lender any other amount required to be paid by it hereunder (including in
respect of its participation in Letters of Credit or Swingline Loans) within
two Business Days of the date when due, (b) has notified the Company, the
Administrative Agent or any Issuing Bank or Swingline Lender in writing that it
does not intend to comply with its funding obligations hereunder, or has made a
public statement to that effect (unless such writing or public statement
relates to such Lender’s obligation to fund a Loan hereunder and states that
such position is based on such Lender’s determination that a condition
precedent to funding (which condition precedent, together with any applicable
default, shall be specifically identified in such writing or public statement)
cannot be satisfied), (c) has failed, within three Business Days after written
request by the Administrative Agent or the Company, to confirm in writing to
the Administrative Agent and the Company that it will comply with its prospective
funding obligations hereunder (provided that such Lender shall cease to be a
Defaulting Lender pursuant to this clause (c) upon receipt of such written
confirmation by the Administrative Agent and the Company), or (d) has, or has a
direct or indirect parent company that has, (i) become the subject of a
proceeding under any Debtor Relief Law, or (ii) had appointed for it a
receiver, custodian, conservator, trustee, administrator, assignee for the
benefit of creditors or similar Person charged with reorganization or
liquidation of its business or assets, including the Federal Deposit Insurance
Corporation or any other state or federal regulatory authority acting in such a
capacity; provided, that a Lender shall not be a Defaulting Lender solely by virtue
of the ownership or acquisition of any equity interest in that Lender or any
direct or indirect parent company thereof by a Governmental Authority so long
as such ownership interest does not result in or provide such Lender with
immunity from the jurisdiction of courts within the United States or from the
enforcement of judgments or writs of attachment on its assets or permit such
Lender (or such Governmental Authority) to reject, repudiate, disavow or
disaffirm any contracts or agreements made with such Lender. Any determination
by the Administrative Agent and the Company that a Lender is a Defaulting
Lender under clauses (a) through (d) above shall be conclusive and binding
absent manifest error, and such Lender shall be deemed to be a Defaulting Lender
(subject to Section 2.23) upon delivery of written notice of such determination
to the Company, each Issuing Bank, each Swingline Lender and each Lender.”            


(b)  
       Section 9.04(g) of
the Unamended Credit Agreement is hereby amended by deleting it in its entirety
and inserting in its place the following:


“(g)      If the Company wishes to replace the Loans or
Commitments under the Revolving Facility with ones having different terms, it
shall have the option, with the consent of the Administrative Agent, and
subject to at least three Business Days’ advance notice to the Lenders under
the Revolving Facility, instead of prepaying the Loans or reducing or
terminating the Commitments to be replaced, to (i) (A) with respect to all
Loans and Commitments held by Lenders who are not then Defaulting Lenders, require all such Lenders under the Revolving
Facility to assign all such Loans or Commitments to the Administrative Agent or
its designees and (B) with respect to all Loans and Commitments held by Lenders
who are then Defaulting Lenders, and notwithstanding anything to the contrary
in Section 2.08, 2.18 or otherwise in this Agreement, prepay all amounts
outstanding under any Loans held by such Defaulting Lenders, and terminate and
cancel the Commitments held by such Defaulting Lenders; and (ii) amend the
terms of all such Loans and Commitments so assigned pursuant to the preceding
clause (i)(A) in accordance with Section 9.08 (with such replacement, if
applicable, being deemed to have been made pursuant to Section 9.08(d)).  Pursuant
to any such assignment, all Loans and Commitments to be replaced, terminated,
canceled and/or repaid pursuant to this Section 9.04(g) shall be purchased or
repaid at par (allocated among the Lenders under the Revolving Facility in the
same manner as would be required if such Loans were being optionally prepaid or
such Commitments were being optionally reduced or terminated by the Borrowers),
accompanied by payment of any accrued interest and fees thereon and any other
amounts owing pursuant to Section 9.05(b).  By receiving such purchase price,
the Lenders under the Revolving Facility shall automatically be deemed to have
assigned the Loans or Commitments under the Revolving Facility pursuant to the
terms of the form of Assignment and Acceptance attached hereto as Exhibit A,
and accordingly no other action by such Lenders shall be required in connection
therewith.  The provisions of this paragraph (g) are intended to facilitate the
maintenance of the perfection and priority of existing security interests in
the Collateral during any such replacement.”







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(c)   
       Section 2.18(c) of
the Unamended Credit Agreement is hereby amended by inserting after the last
sentence thereof the following:


“For the avoidance of doubt, the provisions of this
Section shall not be construed to apply to the assignments and repayments
described in Section 9.04(g).”


SECTION 3.        
Certain Waivers


.  Each Consenting Lender party hereto hereby waives
its right under Section 9.04(g) of the Unamended Credit Agreement (as amended
pursuant to Section 2 above) to receive three Business Days notice prior to the
invocation of such Section 9.04(g) by the Company and the Administrative Agent.


SECTION 4.        
Exercise of Section 9.04(g) of the Unamended Credit Agreement


.  Immediately upon the effectiveness of the
amendments set forth in Section 2 above, the Administrative Agent and the
Company shall exercise their rights under Section 9.04(g) of the Unamended
Credit Agreement (as amended pursuant to Section 2 above), and pursuant
thereto, shall immediately (a) cause all Loans and Commitments then held by the
Lenders to be assigned to the Administrative Agent’s designees as set forth in
Schedule 1 hereto in the Loan and Commitment amounts set forth thereon (the “Designated
Lenders”), and make all payments to the Lenders required under the terms of
Section 9.04(g) of the Unamended Credit Agreement (as amended pursuant to
Section 2 above), and (b) terminate and cancel all Commitments and repay all
Loans (each under the Unamended Credit Agreement) then held by Defaulting
Lenders (such term, as amended pursuant to Section 2 above), and make all
payments to the Existing Defaulting Lenders required to be made under the terms
of Section 9.04(g) of the Unamended Credit Agreement (as amended pursuant to
Section 2 above).  Each Designated Lender acknowledges and agrees that it shall
be deemed to have received such assignments of the Loans and Commitments under
the Revolving Facility, and shall become a Lender, pursuant to the terms of the
form of Assignment and Acceptance attached to the Unamended Credit Agreement as
Exhibit A. 


SECTION 5.        
Amendment of Unamended Credit Agreement


.  The Administrative Agent, each Designated Lender,
the Collateral Agent, each Issuing Bank, the Swingline Lender, Holdings, the
Company and each other Loan Party hereby agrees that, immediately upon, and
subject to, (a) the Designated Lenders becoming the Lenders, pursuant to
Section 4 above, and (b) the satisfaction or waiver in accordance with Section
9.08 of the Unamended Credit Agreement of each of the conditions to effectiveness
set forth in Section 7 below, the Unamended Credit
Agreement is, effective as of the Amendment Effective Date, hereby amended as
set forth in the form of the Amended Credit Agreement.







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SECTION 6.        
Effect of Amendment


.  (a)  On and after the Amendment Effective Date, (i)
each reference in the Amended Credit Agreement to “this Agreement”,
“hereunder”, “hereof” or words of like import referring to the Amended Credit
Agreement (including for purposes of indemnification and reimbursement of fees)
shall mean and be a reference to the Amended Credit Agreement, (ii) each
reference in the other Loan Documents to “the Revolving Credit Agreement”,
“therein”, “thereunder”, “thereof” or words of like import referring to the
Unamended Credit Agreement, shall mean and be a reference to the Amended Credit
Agreement, and (iii) all references to any Section (or subsection) of
the Unamended Credit Agreement in any Loan Document (but not the Amended Credit
Agreement) shall be amended to become, mutatis mutandis, references to
the corresponding provisions of the Amended Credit Agreement. 


(b)  
       The Unamended Credit
Agreement and each of the other Loan Documents, as specifically amended by this
Amendment, are and shall continue to be in full force and effect and are hereby
in all respects ratified and confirmed.  


(c)   
      The parties hereto
acknowledge and agree that (1) this Amendment and the other Loan Documents,
whether executed and delivered in connection herewith or otherwise, do not
constitute a novation or termination of the Obligations under the Unamended
Credit Agreement as in effect prior to the Amendment Effective Date and which
remain outstanding, (2) the Obligations are in all respects continuing (as
amended by the Amended Credit Agreement and which are hereafter subject to the
terms of the Amended Credit Agreement), (3) the security interests as granted
under the applicable Loan Documents (other than the Mortgages) securing payment
of such Obligations are in all respects continuing and in full force and effect
and are reaffirmed hereby with no change in the
priority applicable and such security interests are and continue to be, duly perfected security
interests, subject only to (i) the terms thereof, and (ii) the Liens permitted
under the Loan Documents, and (4) after giving effect to the Mortgage
Amendments, the security interests as granted under the Mortgages securing
payment of such Obligations are in all respects continuing and in full force
and effect and are reaffirmed hereby with no change in the priority applicable
and such security interests are and continue to be, duly perfected security
interests, subject only to (i) any limitations contained in the Mortgages,
including maximum indebtedness permitted to be secured thereby or stated
maturity, (ii) the terms thereof, and (iii) the Liens permitted under the Loan
Documents.


(d)  
       The amendment of the
Unamended Credit Agreement pursuant to this Amendment is limited as written and
is not a consent to any other amendment, restatement or waiver or other
modification, whether or not similar and, except as expressly provided herein
or in any other Loan Document, all terms and conditions of the Loan Documents
remain in full force and effect unless otherwise specifically amended hereby or
by any other Loan Document.


(e)   
       This Amendment shall be a
Loan Document.


SECTION 7.        
Conditions of Effectiveness.


 
This Amendment shall become effective in the
order and in the manner herein described, as of the first date upon which each
of the conditions precedent set forth below in this Section 7 shall be
satisfied or waived in accordance with Section 9.08 of the Unamended Credit
Agreement (such date, the “Amendment Effective Date”):


(a)               
The representations and warranties
set forth in the Amended Credit Agreement and the other Loan Documents shall be
true and correct in all material respects as of the Amendment Effective Date,
with the same effect as though made on and as of such date, except to the
extent such representations and warranties expressly relate to an earlier date
(in which case such representations and warranties shall be true and correct in
all material respects as of such earlier date).


 







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(b)              
Both on and as of the date hereof
and on and as of the Amendment Effective Date, both before and after giving
effect to this Amendment, no event has occurred and is continuing that constitutes
a Default or an Event of Default under the Unamended Credit Agreement, the
Amended Credit Agreement and the other Loan Documents


(c)               
The execution, delivery of, and
the performance of this Amendment by Holdings, the Company and the other
Borrowers is permitted under the terms of all Material Indebtedness.


(d)              
The Administrative Agent (or its
counsel) shall have received from Holdings, the Company, the other Borrowers
and each Subsidiary Loan Party and from each other party hereto (including (x)
the Administrative Agent and each of the Consenting Lenders constituting the
“Required Lenders” (as defined in the Unamended Credit Agreement) and (y) all
Designated Lenders) either (i) a counterpart of this Amendment signed on behalf
of such party or (ii) written evidence satisfactory to the Exiting
Administrative Agent (which may include telecopy transmission of a signed
signature page of this Amendment) that such party has signed a counterpart of
this Agreement.  


(e)               
The Administrative Agent shall
have received, on behalf of itself and the Lenders and each Issuing Bank on the
Amendment Effective Date, a favorable written opinion of (i) Wachtell, Lipton,
Rosen & Katz, special counsel for the Loan Parties, (ii) Jeff Thompson,
in-house counsel for the Loan Parties, (iii) VanCott, Bagley, Cornwall &
McCarthy, Utah counsel for certain of the Loan Parties, (iv) Richards, Layton
& Finger, Delaware counsel for certain of the Loan Parties, (v) Rudolph,
Fine, Porter & Johnson, LLP, Indiana counsel for certain of the Loan
Parties, (vi) McDonald Hopkins LLC, Ohio counsel for certain of the Loan
Parties, (vii) Gentry, Locke, Rakes & Moore, Virginia counsel for certain
of the Loan Parties, and (viii) Venable LLP, Maryland counsel for certain of
the Loan Parties, in each case (A) dated the Amendment Effective Date, (B)
addressed to each Issuing Bank on the Amendment Effective Date, the
Administrative Agent and the Lenders, and (C) in form and substance reasonably
satisfactory to the Administrative Agent and covering such other matters relating
to the Loan Documents as the Administrative Agent shall reasonably request.


(f)               
The Administrative Agent shall
have received in the case of each Loan Party each of the items referred to in
clauses (i), (ii), (iii), (iv) and (v) below:


(i)                
only if such document or item has
not previously been delivered, or shall have changed since the latter of (x)
its last date of its previous delivery to the Administrative Agent pursuant to
the Unamended Credit Agreement, and (y) the Original Agreement Date, a copy of
the certificate or articles of incorporation, certificate of limited
partnership or certificate of formation, as applicable, including all
amendments thereto, of each Loan Party, (A) in the case of a corporation,
certified as of a recent date of the Amendment Effective Date by the Secretary
of State (or other similar official) of the jurisdiction of its organization,
and a certificate as to the good standing (to the extent such concept or a
similar concept exists under the laws of such jurisdiction) of each such Loan
Party as of a recent date of the Amendment Effective Date (and if available,
accompanied by a “bring down” dated as of the Amendment Effective Date) from
such Secretary of State (or other similar official) or (B) in the case of a
partnership or limited liability company, certified by the Secretary or
Assistant Secretary of each such Loan Party;


(ii)              
a certificate of the Secretary or
Assistant Secretary or similar officer of each Loan Party dated the Amendment
Effective Date and certifying:


(A)       
(1) that attached thereto is a
true and complete copy of the by laws (or partnership agreement, limited
liability company agreement, operating 







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agreement or
other equivalent governing documents) of such Loan Party as in effect on the
Amendment Effective Date and at all times since the date of the resolutions
described in clause (B) below, or (2) that the by-laws (or partnership
agreement, limited liability company agreement or other equivalent governing
documents) of such Loan Party, as in effect on the Amendment Effective Date,
have not been modified, rescinded or amended since the latter of (x) its last
date of delivery to the Administrative Agent pursuant to the Unamended Credit
Agreement and (y) the Original Agreement Date,


(B)       
that attached thereto is a true
and complete copy of resolutions duly adopted by the Board of Directors (or
equivalent governing body) of such Loan Party (or its managing general partner
or managing member) authorizing the execution, delivery and performance of the
Loan Documents to which such person is a party and, in the case of the
Borrowers, the borrowings hereunder, and that such resolutions have not been
modified, rescinded or amended and are in full force and effect on the
Amendment Effective Date,


(C)       
that the certificate or articles
of incorporation, certificate of limited partnership or certificate of
formation of such Loan Party has not been amended since the date of the last
amendment thereto disclosed or delivered pursuant to clause (i) above,


(D)       
as to the incumbency and specimen
signature of each officer executing any Loan Document or any other document
delivered in connection herewith on behalf of such Loan Party, and


(E)        
as to the absence of any pending
proceeding for the dissolution or liquidation of such Loan Party or, to the
knowledge of such person, threatening the existence of such Loan Party; 


(iii)            
a certificate of a director or
another officer as to the incumbency and specimen signature of the Secretary or
Assistant Secretary or similar officer executing the certificate pursuant to
clause (ii) above; 


(iv)            
a Borrowing Base Certificate in
the form attached to the Amended Credit Agreement, dated as of the Amendment
Effective Date; and


(v)              
such other documents as the
Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may
reasonably request (including without limitation, tax identification numbers
and addresses).


(g)               
The Loan Parties shall be in full
compliance with all elements of the Collateral and Guarantee Requirement
required to be satisfied on the Amendment Effective Date, and the Administrative
Agent shall have received a completed Perfection Certificate, dated the
Amendment Effective Date and signed by a Responsible Officer of the Company,
together with all attachments contemplated thereby.


(h)              
On the Amendment Effective Date,
after giving effect to the transactions contemplated hereby, Holdings shall
have outstanding no Indebtedness other than Indebtedness under the Holdings
Credit Agreement, the Term Loan Credit Agreement or the Amended Credit
Agreement, and the Borrowers and the Subsidiaries shall have outstanding no
Indebtedness other than (i) the Loans and other extensions of credit under the
Amended Credit Agreement, (ii) the Senior Subordinated Notes, (iii) the 







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Second Lien Notes, (iv) the Term Loans, (v) the First
Priority Notes, and (vi) other Indebtedness permitted pursuant to
Section 6.01 of the Amended Credit Agreement.


(i)                
The Lenders shall have received a
solvency certificate substantially in the form attached to the Amended Credit
Agreement and signed by the Chief Financial Officer of the Company confirming
the solvency of the Company and its Subsidiaries on a consolidated basis on the
Amendment Effective Date. 


(j)                
The Administrative Agent shall
have received from a Financial Officer of the Company, an officer's certificate
to the effect that the execution, delivery and performance of this Amendment,
the Amended Credit Agreement and the other Loan Documents by the Loan Parties,
and the incurrence of Indebtedness under the Revolving Facility and the
incurrence of the Liens pursuant to the Loan Documents, will not conflict with,
result in a breach of or constitute a default under, or give rise to a right
of, or result in, any cancellation or acceleration under, any indenture, credit
or loan agreement or other documents or instruments to which any Loan Party is
party with respect to any Material Indebtedness, which certificate shall
include reasonably detailed backup calculations, in form and substance
reasonably acceptable to the Administrative Agent, demonstrating such absence
of conflict.


(k)              
The Agents shall have received all
fees payable thereto or to any Lender on or prior to the Amendment Effective
Date and, to the extent invoiced at least 2 Business Days prior to the
Amendment Effective Date, all other amounts due and payable pursuant to the Loan
Documents on or prior to the Amendment Effective Date, including, to the extent
invoiced, reimbursement or payment of all reasonable out‐of‐pocket
expenses (including reasonable fees, charges and disbursements of Shearman
& Sterling LLP and local counsel) required to be reimbursed or paid by the
Loan Parties hereunder or under any Loan Document.


For purposes of determining
compliance with the conditions specified above, each Lender shall be deemed to
have consented to, approved or accepted or to be satisfied with each document
or other matter required thereunder to be consented to or approved by or
acceptable or satisfactory to the Lenders unless an officer of the
Administrative Agent responsible for the transactions contemplated by the Loan
Documents shall have received notice from such Lender prior to the Amendment
Effective Date specifying its objection thereto and such Lender shall not have
made available to the Administrative Agent such Lender’s ratable portion of the
initial Borrowing, if any.


SECTION 8.        
Covenants 


.  


(a)               
Within 90 days after the Amendment
Effective Date (which period may be extended in the sole and absolute
discretion of the Administrative Agent and the Collateral Agent without any
further consent from any Lender), the Loan Parties shall deliver to the
Collateral Agent:


(i)                
(A) counterparts of an amendment
to each Mortgage (each such amendment, a “Mortgage Amendment”) entered
into with respect to each Mortgaged Property set forth on Schedule 1.01(c) of
the Amended Credit Agreement, duly executed, acknowledged and delivered by the
record owner of such Mortgaged Property, suitable for recording or filing, 
with all filing and recording taxes and fees paid for by or on behalf of the
Borrowers and (B) such other documents including, but not limited to, any
consents, agreements and confirmations of third parties, as the Collateral
Agent may have reasonably requested with respect to any Mortgage Amendment or
any Mortgaged Property;


(ii)              
(A) with respect to any Mortgaged
Properties for which title insurance policies were not previous issued in favor
of Collateral Agent, a policy or policies or 







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marked up
unconditional binder of American Land Title Association Lender’s Extended
Coverage title insurance (an “ALTA Policy”) or alternative title
insurance policies reasonably acceptable to Collateral Agent in states where an
ALTA Policy is unavailable or if a new property survey would be required to be
made in order to issue a ALTA Policy (“Title Policies”), and (B)
“datedown” and mortgage modification endorsements to the existing title
insurance policies with respect to the Mortgaged Properties (“Modification
Endorsements”; Title Policies and Modification Endorsements, to the extent
required, collectively, “Title Insurance”), such Title Insurance paid
for by the Borrowers, issued by a nationally recognized title insurance company
insuring the Lien of each Mortgage (as amended by the Mortgage Amendment), as a
valid first Lien on the Mortgaged Property described therein, free of any other
Liens except as permitted by Section 6.02 of the Amended Credit Agreement, such
Title Insurance in a form and substance reasonably acceptable to Collateral
Agent and together with such customary endorsements (including zoning
endorsements where reasonably appropriate and available, which, in the case of
a Modification Endorsement, shall not be required where a recent zoning report
shows no changes in zoning since the date of the existing title policy or the
last zoning endorsement), coinsurance and reinsurance as the Collateral Agent
may reasonably request, and with respect to any such property located in a
state in which a zoning endorsement is not available, a zoning compliance
letter from the applicable municipality in a form reasonably acceptable to the
Collateral Agent;


(iii)            
(A) a standard flood hazard
determination form ordered by the Collateral Agent evidencing whether each such
Mortgaged Property is in an area designated by the Federal Emergency Management
Agency as having special flood or mud slide hazards (a “Flood Hazard
Property”) and whether the community in which such Mortgaged Property is
located is participating in the National Flood Insurance Program, (B) for each
Flood Hazard Property, the applicable Loan Party’s written acknowledgment of
receipt of written notification from the Collateral Agent as to the fact that
such Mortgaged Property is a Flood Hazard Property and as to whether the
community in which each such Flood Hazard Property is located is participating
in the National Flood Insurance Program, and (C) for each Flood Hazard Property,
copies of the applicable Loan Party’s application for a flood insurance policy
plus proof of premium payment, and a declaration page confirming that flood
insurance has been issued naming the Collateral Agent as sole loss payee on
behalf of the Secured Parties;


(iv)            
evidence of the insurance required
by the terms of the Mortgages (as amended by the Mortgage Amendments);


(v)              
payment in full of all costs,
expenses and fees payable to the Agents in connection with the deliverables set
forth in this Section 8 in accordance with the terms and provisions of Section
9.05(a) of the Amended Credit Agreement that are invoiced and sent in writing
to the Company not later than 3 Business Days prior to the end of such 90-day
period (or the end of any extended period, if applicable); and


(vi)            
an amendment to or replacement of
that certain Blocked Account Control Agreement, dated as of June 1, 2007, made
by and among Fifth Third Bank, Berry and Bank of America, N.A., as collateral
agent.


(b)              
Promptly after the consummation of
the Specified Asset Sale, the Company shall deliver to the Administrative Agent
an officer's certificate from a Financial Officer of the Company demonstrating
the aggregate principal amount of Indebtedness under the Revolving Facility
that the 







9










 








                                                                               








Company can incur under the First Priority
Notes, the Term Loan Credit Agreement and the Second Lien Notes, which
certificate shall include reasonably detailed backup calculations, in form and
substance reasonably acceptable to the Administrative Agent.  In the event that
such certificate relates to an amount that is less than the principal amount of
the Revolving Facility Commitments at such time, then from time to time
thereafter the Company may deliver to the Administrative Agent a supplemental
certificate meeting the description in the previous sentence demonstrating the
ability to incur an amount greater than the amount stated in such prior
certificate up to the aggregate principal amount of Revolving Facility
Commitments.


SECTION 9.        
Confirmation of Representations and Warranties


.  


(a)               
The Company hereby represents and
warrants, both on and as of the date hereof and on and as of the Amendment
Effective Date, that all representations and warranties set forth in the Loan
Documents are true and correct in all material respects, in each case, with the
same effect as though made on and as of such date, except to the extent such
representations and warranties expressly relate to an earlier date (in which
case such representations and warranties shall be true and correct in all
material respects as of such earlier date.


(b)              
Each Loan Party represents and
warrants, on and as of the date hereof, that (i) the execution, delivery and
performance by Holdings, each Borrower and each of the Subsidiary Loan Parties
of this Amendment and the transactions contemplated hereby have been duly
authorized by all corporate, stockholder, partnership or limited liability
company action required to be obtained by Holdings, such Borrower and such
Subsidiary Loan Parties, and (ii) this Amendment has been duly executed and
delivered by Holdings, each Borrower and each of the Subsidiary Loan Parties
and constitutes a legal, valid and binding obligation of such Loan Party
enforceable against each such Loan Party in accordance with its terms, subject
to (1) the effects of bankruptcy, insolvency, moratorium, reorganization,
fraudulent conveyance or other similar laws affecting creditors’ rights
generally, (2) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and (3)
implied covenants of good faith and fair dealing.


(c)               
Each Loan Party hereby represents
and warrants that, both on and as of the date hereof and on and as of the
Amendment Effective Date, both before and after giving effect to this
Amendment, no event has occurred and is continuing that constitutes a Default
or an Event of Default under the Unamended Credit Agreement, the Amended Credit
Agreement and the other Loan Documents.


SECTION 10.    
Execution in Counterparts.


  This Amendment may
be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute but one and the same
agreement.  Delivery of an executed counterpart of a signature page to this
Amendment by telecopier or other electronic means shall be effective as
delivery of a manually executed counterpart of this Amendment.


SECTION 11.    
Governing Law.


  This Amendment
shall be governed by, and construed in accordance with, the laws of the state
of New York. 


SECTION 12.    
WAIVER OF JURY TRIAL


.  EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AMENDMENT OR ANY OF THE OTHER LOAN DOCUMENTS.  EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER, AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES
HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AMENDMENT AND THE OTHER LOAN
DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 12.







10










 








                                                                               










SECTION 13.    
Jurisdiction; Consent to Service of Process.


(a)               
Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or federal court of the
United States of America sitting in New York City, and any appellate court from
any thereof (collectively, “New York Courts”), in any action or
proceeding arising out of or relating to this Amendment or the other Loan
Documents, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such
New York State or, to the extent permitted by law, in such federal court.  Each
of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law.  Nothing in this Amendment
shall affect any right that any party may otherwise have to bring any action or
proceeding relating to this Amendment or any of the other Loan Documents in the
courts of any jurisdiction, except that each of the Loan Parties agrees that
(a) it will not bring any such action or proceeding in any court other than New
York Courts (it being acknowledged and agreed by the parties hereto that any
other forum would be inconvenient and inappropriate in view of the fact that
more of the Lenders who would be affected by any such action or proceeding have
contacts with the State of New York than any other jurisdiction), and (b) in
any such action or proceeding brought against any Loan Party in any other
court, it will not assert any cross-claim, counterclaim or setoff, or seek any
other affirmative relief, except to the extent that the failure to assert the
same will preclude such Loan Party from asserting or seeking the same in the
New York Courts.


(b)              
Each of the parties hereto hereby
irrevocably and unconditionally waives, to the fullest extent it may legally
and effectively do so, any objection which it may now or hereafter have to the
laying of venue of any suit, action or proceeding arising out of or relating to
this Amendment or the other Loan Documents in any New York State or federal
court.  Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.


[Remainder of Page Intentionally Left Blank] 
















11










 








 








                        IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed by their respective authorized officers as of the day and year first
written above.


 


BERRY
PLASTICS CORPORATION


 


 


By:__/s/ Jeffrey D. Thompson__________________________

Name: Jeffrey D. Thompson

Title: Executive Vice President and Assistant Secretary


 












                 




 










 








                                                                               








 


BERRY
PLASTICS GROUP, INC.


 


 


By:__/s/ Jeffrey D. Thompson_____________________________

Name: Jeffrey D. Thompson

Title: Executive Vice President and Assistant Secretary












2










 








                                                                               








 


BERRY PLASTICS TECHNICAL SERVICES, INC.


BERRY STERLING CORPORATION


CARDINAL PACKAGING, INC.


CPI HOLDING CORPORATION


PESCOR, INC.


VENTURE PACKAGING, INC.


VENTURE PACKAGING MIDWEST, INC.


BERRY PLASTICS ACQUISITION CORPORATION III


BERRY PLASTICS ACQUISITION CORPORATION V


BERRY PLASTICS OPCO, INC.


BERRY PLASTICS ACQUISITION CORPORATION VIII


BERRY PLASTICS ACQUISITION CORPORATION IX


BERRY PLASTICS ACQUISITION CORPORATION X


BERRY PLASTICS ACQUISITION CORPORATION XI


BERRY PLASTICS ACQUISITION CORPORATION XII


BERRY PLASTICS ACQUISITION CORPORATION XIII


BERRY PLASTICS SP, INC.


ROLLPAK CORPORATION


CAPLAS NEPTUNE, LLC


CAPLAS LLC


 


 


By:__/s/ Jeffrey D. Thompson____________________________

Name: Jeffrey D. Thompson

Title: Executive Vice President and Assistant Secretary












3










 








                                                                               








 


AEROCON,
LLC 


BERRY IOWA, LLC 


BERRY
PLASTICS ACQUISITION CORPORATION XV, LLC


BERRY PLASTICS
DESIGN, LLC


COVALENCE SPECIALTY COATINGS LLC


COVALENCE SPECIALTY ADHESIVES LLC


KERR GROUP, LLC


POLY-SEAL, LLC


 


By:  BERRY PLASTICS CORPORATION,

 its sole member


 


 


By:__/s/ Jeffrey D. Thompson____________________________

Name: Jeffrey D. Thompson

Title: Executive Vice President and Assistant Secretary












4










 








                                                                               








 


PLIANT, LLC


 


By:__/s/ Jeffrey D. Thompson____________________________

Name: Jeffrey D. Thompson

Title: Executive Vice President and Assistant Secretary












5










 








                                                                               








 


UNIPLAST HOLDINGS, LLC






By:__/s/ Jeffrey D. Thompson____________________________

Name: Jeffrey D. Thompson

Title: Executive Vice President and Assistant Secretary


 












6










 








                                                                               








 


CAPTIVE PLASTICS, LLC


 


By:__/s/ Jeffrey D. Thompson____________________________

Name: Jeffrey D. Thompson

Title: Executive Vice President and Assistant Secretary












7










 








                                                                               








 


CAPTIVE PLASTICS HOLDINGS, LLC


 


By:__/s/ Jeffrey D. Thompson____________________________

Name: Jeffrey D. Thompson

Title: Executive Vice President and Assistant Secretary












8










 








                                                                               








 


KNIGHT PLASTICS, LLC


 


By:__/s/ Jeffrey D. Thompson____________________________

Name: Jeffrey D. Thompson

Title: Executive Vice President and Assistant Secretary












9










 








                                                                               








 


PACKERWARE, LLC


 


By:__/s/ Jeffrey D. Thompson____________________________

Name: Jeffrey D. Thompson

Title: Executive Vice President and Assistant Secretary


 












10










 








                                                                               








 


 


SAFFRON ACQUISITION, LLC






By:  KERR GROUP, LLC, 

its sole member and manager






        By:  BERRY PLASTICS CORPORATION, 

         its sole member 


 


 


By:__/s/ Jeffrey D. Thompson____________________________

Name: Jeffrey D. Thompson

Title: Executive Vice President and Assistant Secretary






 












11










 








                                                                               








SUN COAST INDUSTRIES,
LLC


 


By:  SAFFRON ACQUISITION, LLC, 

its sole member and manager


 


By:  KERR GROUP, LLC, 

 its sole member and manager


 


By:  BERRY PLASTICS CORPORATION, 

its sole member and manager


 


 


By:__/s/ Jeffrey D. Thompson____________________________

Name: Jeffrey D. Thompson

Title: Executive Vice President and Assistant Secretary


 


 


SETCO, LLC


 


By:  KERR GROUP, LLC, 

its sole member


 


By: 
BERRY PLASTICS CORPORATION, its sole member and manager


 


 


By:__/s/ Jeffrey D. Thompson____________________________

Name: Jeffrey D. Thompson

Title: Executive Vice President and Assistant Secretary


 


 


 


 


GRAFCO INDUSTRIES LIMITED PARTNERSHIP






By:  Caplas Neptune, LLC,

its General Partner


 


 


By:__/s/ Jeffrey D. Thompson____________________________

Name: Jeffrey D. Thompson

Title: Executive Vice President and Assistant Secretary


 


 


 












12










 








                                                                               








 


PLIANT CORPORATION INTERNATIONAL


 


By:__/s/ Jeffrey D. Thompson____________________________

Name: Jeffrey D. Thompson

Title: Executive Vice President and Assistant Secretary












13










 








                                                                               








 


UNIPLAST U.S., INC.


 


 


By:__/s/ Jeffrey D. Thompson____________________________

Name: Jeffrey D. Thompson

Title: Executive Vice President and Assistant Secretary












14










 








                                                                               








BANK OF AMERICA, N.A., 

as Administrative Agent and Collateral Agent, and as a Lender


 


 


By:__/s/ Robert Anchundia____________________________

Name: Robert Anchundia

Title: Vice President


 
















15










 








 








Wells Fargo Capital Finance, LLC

as Lender


 


 


By:____/s/
Brant Murdock________________________________

Name: Brant Murdock

Title: Vice President


 


 












                                 




 










 








                                                                               








Barclays Bank, PLC,

as Lender


 


 


By:____/s/
Michael J. Mozer_____________________________

Name: Michael J. Mozer

Title: Vice President












2










 








                                                                               








Citicorp North America, Inc.,

as Lender


 


 


By:____/s/Brendan
Mackay_____________________________

Name: Brant Murdock

Title: Director


 












3










 








                                                                               








Credit Suisse AG, Cayman Islands Branch, 

as Lender


 


 


By:____/s/
Robert Hetu________________________________

Name: Robert Hetu

Title: Managing Director


 


By:____/s/
Kevin Buddhdew___________________________

Name: Kevin Buddhdew

Title: Associate


 












4










 








                                                                               








Deutsche Bank Trust Company Americas, 

as Lender


 


 


By:____/s/
Erin Morrissey________________________________

Name: Erin Morrissey

Title: Director


 


By:____/s/
Carin Keegan_­­_______________________________

Name: Carin Keegan

Title: Director












5










 








                                                                               








U.S. Bank, National Association 

as Lender


 


 


By:____/s/
Sandra Evans________________________________

Name: Sandra Evans

Title: Senior Vice President












6










 








                                                                               








Siemens Financial Services, Inc.,  

as Lender


 


 


By:____/s/
Anthony Casciano____________________________

Name: Anthony Casciano

Title: Senior Vice President


 


By:____/s/
Paul Ramseur_­­_______________________________

Name: Paul Ramseur

Title: Vice President












7










 








                                                                               








Goldman Sachs Lending Partners LLC, 

as Existing Lender


 


 


By:____/s/
Lauren Day________________________________

Name: Lauren Day

Title: Authorized Signatory












8










 








                                                                               








Goldman Sachs Bank USA, 

as Lender


 


 


By:____/s/
Mark Walton________________________________

Name: Mark Walton

Title: Authorized Signatory












9










 








                                                                               








UBS Loan Finance LLC,  as Lender


 


 


By:____/s/
Irja R. Otsa____________________________

Name: Irja R. Otsa

Title: Associate Director


 


By:____/s/
Mary E. Evans_________________________

Name: Mary E. Evans

Title: Associate Director


 


 


 
















10










 








 








Annex A




CONSOLIDATED
CONFORMED VERSION


 





$650,000,000


AMENDED AND RESTATED REVOLVING
CREDIT AGREEMENT


Dated as of April 3, 2007,


Among


Berry Plastics Corporation,






 


BERRY PLASTICS GROUP, INC.


 


and


CERTAIN OF ITS
SUBSIDIARIES PARTY HERETO


as Borrowers,


THE LENDERS PARTY HERETO,


BANK OF AMERICA, N.A.,

as Collateral Agent and Administrative Agent,


Citigroup Global Markets Inc.
and Credit Suisse AG, Cayman Islands Branch,

as Co-Syndication Agents,


Barclays Bank PLC and Wells Fargo Capital Finance, LLC,

as Co-Documentation Agents,








Merrill Lynch, Pierce, Fenner & Smith Inc., Wells
Fargo Capital Finance, LLC, Barclays Capital  


and Citigroup Global Markets
Inc.,

as Joint Lead Arrangers


and


Merrill Lynch, Pierce, Fenner & Smith Inc., Wells
Fargo Capital Finance, LLC and Barclays Capital,

as Joint Bookrunners


 




 





 
















 










 







 



TABLE OF CONTENTS


 




	

    
	

   Page


    

	

   ARTICLE I


    
	

    

	

              Definitions


    
	

   8

	

   Section 1.01. Defined Terms


    
	

   8

	

   Section 1.02. Terms Generally


    
	

   63

	

   Section 1.03. Effectuation of Transactions


    
	

   63

	

   Section 1.04. Exchange Rates; Currency Equivalents


    
	

   63

	

   Section 1.05. Senior Debt


    
	

   64

	

   ARTICLE II

The Credits


    
	

   64

	

   Section 2.01. Commitments


    
	

   64

	

   Section 2.02. Loans and Borrowings


    
	

   64

	

   Section 2.03. Requests for Borrowings


    
	

   65

	

   Section 2.04. Swingline Loans and Agent Advances


    
	

   66

	

   Section 2.05. Letters of Credit


    
	

   69

	

   Section 2.06. Funding of Borrowings


    
	

   75

	

   Section 2.07. Interest Elections


    
	

   75

	

   Section 2.08. Termination and Reduction of Commitments


    
	

   76

	

   Section 2.09. Repayment of Loans; Evidence of Debt


    
	

   77

	

   Section 2.10. Repayment of Revolving Loans


    
	

   78

	

   Section 2.11. Prepayment of Loans


    
	

   78

	

   Section 2.12. Fees


    
	

   79

	

   Section 2.13. Interest


    
	

   80

	

   Section 2.14. Alternate Rate of Interest


    
	

   81

	

   Section 2.15. Increased Costs


    
	

   82

	

   Section 2.16. Break Funding Payments


    
	

   83

	 	 	 




 




                                                                                1                                                                                









 








 








 




	

   Section 2.17. Taxes


    
	

   83

	

   Section 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set‐offs


    
	

   86

	

   Section 2.19. Mitigation Obligations; Replacement of Lenders


    
	

   87

	

   Section 2.20. Illegality


    
	

   89

	

   Section 2.21. Incremental Commitments


    
	

   89

	

   Section 2.22. Cash Collateral for Defaulting Lenders


    
	

   90

	

   Section 2.23. Defaulting Lenders


    
	

   91

	

   ARTICLE III

Representations and Warranties


    
	

   93

	

   Section 3.01. Organization; Powers


    
	

   93

	

   Section 3.02. Authorization


    
	

   93

	

   Section 3.03. Enforceability


    
	

   93

	

   Section 3.04. Governmental Approvals


    
	

   94

	

   Section 3.05. Financial Statements


    
	

   94

	

   Section 3.06. No Material Adverse Effect


    
	

   94

	

   Section 3.07. Title to Properties; Possession Under Leases


    
	

   95

	

   Section 3.08. Subsidiaries


    
	

   95

	

   Section 3.09. Litigation; Compliance with Laws


    
	

   95

	

   Section 3.10. Federal Reserve Regulations


    
	

   96

	

   Section 3.11. Investment Company Act


    
	

   96

	

   Section 3.12. Use of Proceeds


    
	

   96

	

   Section 3.13. Tax Returns


    
	

   96

	

   Section 3.14. No Material Misstatements


    
	

   97

	

   Section 3.15. Employee Benefit Plans


    
	

   98

	

   Section 3.16. Environmental Matters


    
	

   98





2 









 








 





	

   Section 3.17. Security Documents


    
	

   99

	

   Section 3.18. Location of Real Property and Leased Premises


    
	

   100

	

   Section 3.19. Solvency


    
	

   100

	

   Section 3.20. Labor Matters


    
	

   101

	

   Section 3.21. Insurance


    
	

   101

	

   Section 3.22. No Default


    
	

   101

	

   Section 3.23. Intellectual Property; Licenses, Etc.


    
	

   101

	

   Section 3.24. Senior Debt


    
	

   102

	

   Section 3.25. Common Enterprise


    
	

   102

	

   Section 3.26. Sanctioned Persons; Anti-Money Laundering; Etc.


    
	

   102

	

   ARTICLE IV

Conditions of Lending


    
	

   102

	

   Section 4.01. All Credit Events


    
	

   103

	

   Section 4.02. Effectiveness of the Commitments


    
	

   103

	

   ARTICLE V

Affirmative Covenants


    
	

   106

	

   Section 5.01. Existence; Businesses and Properties


    
	

   106

	

   Section 5.02. Insurance


    
	

   107

	

   Section 5.03. Taxes


    
	

   108

	

   Section 5.04. Financial Statements, Reports, etc


    
	

   108

	

   Section 5.05. Litigation and Other Notices


    
	

   111

	

   Section 5.06. Compliance with Laws


    
	

   111

	

   Section 5.07. Maintaining Records; Access to Properties and Inspections


    
	

   111

	

   Section 5.08. Use of Proceeds


    
	

   112

	

   Section 5.09. Compliance with Environmental Laws


    
	

   112





 




                                                                                  3                                                                                  









 








 




	

    
	

   Page


    

	

   Section 5.10. Further Assurances; Additional Security


    
	

   112

	

   Section 5.11. Appraisals and Reports


    
	

   114

	

   Section 5.12. Collateral Reporting


    
	

   115

	

   Section 5.13. Accounts


    
	

   115

	

   Section 5.14. Collection of Accounts; Payments


    
	

   116

	

   Section 5.15. Inventory; Perpetual Inventory


    
	

   118

	

   ARTICLE VI


   
Negative Covenants


    
	

   118

	

   Section 6.01. Indebtedness


    
	

   118

	

   Section 6.02. Liens


    
	

   123

	

   Section 6.03. Sale and Lease‐Back Transactions


    
	

   127

	

   Section 6.04. Investments, Loans and Advances


    
	

   127

	

   Section 6.05. Mergers, Consolidations, Sales of Assets and Acquisitions


    
	

   131

	

   Section 6.06. Dividends and Distributions


    
	

   134

	

   Section 6.07. Transactions with Affiliates


    
	

   136

	

   Section 6.08. Business of the Borrowers and the Subsidiaries


    
	

   139

	

   Section 6.09. Limitation on Modifications of Indebtedness; 


   Modifications of Certificate of Incorporation, By‐Laws and Certain Other Agreements; etc.


    
	

   139

	

   Section 6.10. Fiscal Year; Accounting


    
	

   141

	

   Section 6.11. Availability Triggering Event


    
	

   142

	

   Section 6.12. Qualified CFC Holding Companies


    
	

   142

	

   ARTICLE VIA 


    


           Holding Covenants


    
	

   142

	

   ARTICLE VII


   
Events of Default


    
	

   142

	

   Section 7.01. Events of Default


    
	

   143

	

   Section 7.02. Exclusion of Immaterial Subsidiaries


    
	

   146

	 	 	 




 




 



 





                                                                                 4                                                                                 









 








 




	

   Section 7.03. Holdings’ Right to Cure
	

    


   146

	

   ARTICLE VIII

The Agents


    
	

    


    


   146

	

   Section 8.01. Appointment


    
	

   146

	

   Section 8.02. Delegation of Duties


    
	

   149

	

   Section 8.03. Exculpatory Provisions


    
	

   149

	

   Section 8.04. Reliance by Administrative Agent


    
	

   150

	

   Section 8.05. Notice of Default


    
	

   150

	

   Section 8.06. Non-Reliance on Agents and Other Lenders


    
	

   151

	

   Section 8.07. Indemnification


    
	

   151

	

   Section 8.08. Agent in Its Individual Capacity


    
	

   152

	

   Section 8.09. Successor Administrative Agent


    
	

   152

	

   Section 8.10. Agents and Arrangers


    
	

   152

	

   Section 8.11. Field Audit and Examination Reports; Disclaimer by Lenders


    
	

   153

	

   ARTICLE IX

Miscellaneous


    
	

    


    


   153

	

   Section 9.01. Notices; Communications


    
	

   153

	

   Section 9.02. Survival of Agreement


    
	

   155

	

   Section 9.03. Binding Effect


    
	

   155

	

   Section 9.04. Successors and Assigns


    
	

   155

	

   Section 9.05. Expenses; Indemnity


    
	

   160

	

   Section 9.06. Right of Set‐off


    
	

   162

	

   Section 9.07. Applicable Law


    
	

   162

	

   Section 9.08. Waivers; Amendment


    
	

   162

	

   Section 9.09. Interest Rate Limitation


    
	

   164

	

   Section 9.10. Entire Agreement


    
	

   165

	

   Section 9.11. WAIVER OF JURY TRIAL


    
	

   165





 





                                                                                 5                                                                                 









 








 








 




	

   Section 9.12. Severability


    
	

   165

	

   Section 9.13. Counterparts


    
	

   165

	

   Section 9.14. Headings


    
	

   165

	

   Section 9.15. Jurisdiction; Consent to Service of Process


    
	

   166

	

   Section 9.16. Confidentiality


    
	

   166

	

   Section 9.17. Platform; Borrower Materials


    
	

   167

	

   Section 9.18. Release of Liens and Guarantees


    
	

   167

	

   Section 9.19. Judgment Currency


    
	

   168

	

   Section 9.20. USA PATRIOT Act Notice


    
	

   168

	

   Section 9.21. Joint and Several Liability


    
	

   168

	

   Section 9.22. Contribution and Indemnification among the Borrowers


    
	

   170

	

   Section 9.23. Agency of Company for Each Other Borrower


    
	

   170

	

   Section 9.24. Additional Borrowers


    
	

   170

	

   Section 9.25. Express Waivers By Borrowers In Respect of Cross Guaranties and Cross Collateralization


    
	

   171

	

   Section 9.26. Intercreditor Agreements and Collateral Agreement


    
	

   172





 


 


6 









 








 



Exhibits and Schedules


Exhibit A                    Form of Assignment and Acceptance


Exhibit B                     Form of Solvency Certificate


Exhibit C‐1                 Form of Borrowing Request


Exhibit C‐2                 Form of Swingline Borrowing Request


Exhibit D                    Form of Collateral Agreement


Exhibit E                     Form of Borrowing Base Certificate


Exhibit F                     Form of Borrower Joinder Agreement


 


Schedule 1.01(a)         Certain U.S. Subsidiaries


Schedule 1.01(b)         Acceptable Appraisers


Schedule 1.01(c)         Mortgaged Properties


Schedule 1.01(d)         Immaterial Subsidiaries


Schedule 1.01(e)         Past Due Accounts


Schedule 1.01(f)         Existing Bankers’ Acceptances


Schedule 1.01(g)         Existing Letters of Credit


Schedule 1.01(i)          Unrestricted Subsidiaries


Schedule 2.01             Commitments


Schedule 3.01             Organization and Good Standing


Schedule 3.04             Governmental Approvals


Schedule 3.07(b)         Possession under Leases


Schedule 3.08(a)         Subsidiaries


Schedule 3.08(b)         Subscriptions


Schedule 3.13             Taxes


Schedule 3.16             Environmental Matters


Schedule 3.21             Insurance


Schedule 3.23             Intellectual Property


Schedule 4.02             Borrowing Base Calculation on Closing Date


Schedule 4.02(c)         Borrowing Base Calculation on Amendment Effective Date


Schedule 4.02(d)         Post-Closing Interest Deliveries


Schedule 6.01             Indebtedness


Schedule 6.02(a)         Liens


Schedule 6.04             Investments


Schedule 6.05             Mergers, Consolidations, Sales of Assets and Acquisitions


Schedule 6.07             Transactions with Affiliates


Schedule 9.01             Notice Information


 


 




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This
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT is entered into as of April 3,
2007 (this “Agreement”), among BERRY PLASTICS GROUP, INC., a Delaware
corporation (“Holdings”), COVALENCE SPECIALTY MATERIALS CORP., a Delaware
corporation (“Covalence”), which on the Closing Date was merged with and into
Berry Plastics Holding Corporation, a Delaware corporation (“Berry”), with
Berry surviving such merger (Berry together with its successor, the “Company”),
certain domestic Subsidiaries of the Company party hereto from time to time as
BORROWERS (as defined below), the LENDERS party hereto from time to time, BANK
OF AMERICA, N.A., as administrative agent (in such capacity, the
“Administrative Agent”) and collateral agent for the Lenders, CITIGROUP GLOBAL
MARKETS INC. and CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as co-syndication
agents (in such capacities, the “Syndication Agents”), and BARCLAYS BANK PLC
and WELLS FARGO CAPITAL FINANCE, LLC. as co-documentation agents (in such
capacities, the “Documentation Agents”).


WHEREAS, this Agreement has
been titled the “Amended and Restated Revolving Credit Agreement” for
convenience of reference only and is, and is intended to be, a further amended
revolving credit agreement;


WHEREAS, Covalence Holdings
(as defined below), Covalence, the lenders and agents named therein, and Bank
of America, N.A., as administrative agent for such lenders, entered into that
certain Revolving  Credit Agreement dated as of May 18, 2006 (“the “Existing
Credit Agreement”);


WHEREAS, Holdings, the
Company, certain of the other Borrowers, the Administrative Agent, and the
Collateral Agent (as defined below) have amended and restated the Existing
Credit Agreement by entering into that certain Amended and Restated Revolving
Credit Agreement, dated as of April 3, 2007 (as amended, amended and restated,
supplemented or otherwise modified through the date hereof and in effect
immediately prior to the effectiveness of the Amendment, the “Unamended Credit
Agreement”), with the lenders from time to time party thereto and the other
agents party and issuing banks thereto;


WHEREAS, the Company has
requested from the Existing Lenders (as defined below) and the Administrative
Agent, certain modifications to the Unamended Credit Agreement, including an
extension of the maturity date, an increase in the aggregate Revolving Facility
Commitments (as defined below), and certain other amendments as set forth in
the Amendment; 


WHEREAS, to effect such
modifications, Holdings, the Company, the Borrowers, the Lenders, the
Administrative Agent, the Collateral Agent, and the other agents and issuing
banks party hereto have agreed to amend the Unamended Credit Agreement as set
forth in the Amendment;


NOW, THEREFORE, the
Borrowers, the Lenders and the other parties hereto hereby agree as follows:


ARTICLE I



Definitions


(a)     Defined
Terms


.  As used in this Agreement, the following terms shall
have the meanings specified below:


“2011 Information Memorandum” shall mean the Confidential
Information Memorandum dated June 7, 2011, as modified or supplemented prior to
the Amendment Effective Date.









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“2011 Projections” shall mean the
projections of Holdings, the Company and the Subsidiaries included in the 2011
Information Memorandum and any other projections and any forward‐looking
statements (including statements with respect to booked business) of such
entities furnished to the Lenders or the Administrative Agent by or on behalf
of Holdings, the Company or any of the Subsidiaries in connection with the
transactions contemplated on or about the Amendment Effective Date and
delivered prior thereto.


“ABL Fixed Charge Coverage Ratio” shall mean the
ratio of (a) EBITDA of the Company for the most recent period of four
consecutive fiscal quarters of the Company for which financial statements are
available minus the income taxes paid in cash by the Company and included in
the determination of Consolidated Net Income during such period minus non‐financed
Capital Expenditures of the Company and its Subsidiaries during such period to
(b) the sum of (i) scheduled principal payment required to be made
during such period in respect of Indebtedness for borrowed money plus 
(ii) the Consolidated Interest Expense (excluding amortization of any
original issue discount, interest paid in kind or added to principal and other
noncash interest) of the Company and its Subsidiaries for such period plus 
(iii) Distributions pursuant to Sections 6.06(c) and (e) in each case
to the extent paid by the Company in cash.


For fiscal periods ending prior to the first full fiscal
quarter after the Closing Date, the ratio shall be calculated on a Pro Forma
Basis giving effect to the Transactions.


“ABR” shall mean, for any day, a fluctuating rate per
annum equal to the higher of (a) the Federal Funds Effective Rate plus
1/2 of 1% and (b) the rate of interest in effect for such day as publicly
announced from time to time by Bank of America as its “prime rate.”  The “prime
rate” is a rate set by Bank of America based upon various factors including
Bank of America’s costs and desired return, general economic conditions and
other factors, and is used as a reference point for pricing some loans, which
may be priced at, above or below such announced rate.  Any change in such rate
announced by Bank of America shall take effect at the opening of business on
the day specified in the public announcement of such change.


“ABR Borrowing” shall mean a Borrowing comprised of
ABR Loans.


“ABR Loan” shall mean any ABR Revolving Loan,
Swingline Loan or Agent Advance.


“ABR Revolving Facility Borrowing” shall mean a
Borrowing comprised of ABR Revolving Loans.


“ABR Revolving Loan” shall mean any Revolving Loan
bearing interest at a rate determined by reference to the ABR in accordance
with the provisions of Article II.


“Acceptable Appraiser” shall mean (a) any person
listed on Schedule 1.01(b), or (b) any other experienced and
reputable appraiser reasonably acceptable to the Company and the Administrative
Agent.


“Acceptance Credit” shall mean a commercial Letter of
Credit in which the applicable Issuing Bank engages with the beneficiary of
such Letter of Credit to accept a time draft.









                                                                                                                                                              










 








 








“Acceptance Documents” shall
mean such general acceptance agreements, applications, certificates and other
documents as the applicable Issuing Bank may require in connection with the
creation of Bankers’ Acceptances.


“Accommodation Payment” shall have the meaning
assigned to such term in Section 9.22.


“Account” shall mean, with respect to a person, any
of such person’s now owned and hereafter acquired or arising accounts, as
defined in the UCC, including any rights to payment for the sale or lease of
goods or rendition of services, whether or not they have been earned by
performance, and “Accounts” shall mean, with respect to any such person,
all of the foregoing.


“Account Debtor” shall mean each person obligated on
an Account.


“Acquisition Agreement” shall mean the Stock and
Asset Purchase Agreement (as amended by that certain Closing Agreement dated as
of February 16, 2006) dated as of December 20, 2005, among Tyco Group S.a.r.l.,
a Luxembourg company, Covalence and, for purposes of Section 11.15 thereof
only, Tyco International Group S.A.


“Act” shall have the meaning assigned to such term in
Section 9.20.


“Additional Mortgage” shall have the meaning assigned
to such term in Section 5.10(c).


“Adjusted LIBO Rate” shall mean, with respect to any
Eurocurrency Borrowing for any Interest Period, an interest rate per annum
equal to (a) the LIBO Rate in effect for such Interest Period divided by
(b) (i) one minus (ii) the Statutory Reserves applicable to such
Eurocurrency Borrowing, if any.


“Administrative Agent” shall have the meaning
assigned to such term in the introductory paragraph of this Agreement.


“Administrative Agent Fees” shall have the meaning
assigned to such term in Section 2.12(e).


“Administrative Questionnaire” shall mean an
Administrative Questionnaire in a form supplied by the Administrative Agent.


“Affiliate” shall mean, when used with respect to a
specified person, another person that directly, or indirectly through one or
more intermediaries, Controls or is Controlled by or is under common Control
with the person specified.  For purposes of clause (h) of the
definition of Eligible Accounts, the term “Affiliate”, however, with respect to
any Loan Party or the Equity Investors, shall exclude any Apollo Operating
Company.


“Agent Advance Exposure” shall mean at any time the
aggregate principal amount of all outstanding Agent Advances at such time.  The
Agent Advance Exposure of any Revolving Lender at any time shall mean its Pro
Rata Share of the aggregate Agent Advance Exposure at such time.









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“Agent Advances” shall have
the meaning assigned to such term in Section 2.04(d).


“Agents” shall mean the Administrative Agent and the
Collateral Agent.


“Agreement” shall have the meaning assigned to such
term in the Introductory paragraph of this Agreement.


“Agreement Currency” shall have the meaning assigned
to such term in Section 9.19.


“Allocable Amount” shall have the meaning assigned to
such term in Section 9.22.


“Alternate Currency” shall mean, with respect to any
Letter of Credit, Canadian Dollars or Euros and any other currency other than
Dollars as may be acceptable to the Administrative Agent and the Issuing Bank
with respect thereto in their sole discretion. 


“Alternate Currency Letter of Credit” shall mean any
Letter of Credit denominated in an Alternate Currency. 


“Amendment” shall mean that certain Amendment No. 3
to this Agreement, dated as of the Amendment Effective Date, among Holdings,
the Company, the other Borrowers, certain other subsidiaries of the Company
party thereto, the Consenting Lenders (as defined therein), the Designated
Lenders (as defined therein), the Administrative Agent, the Collateral Agent,
and the other agents and issuing banks party thereto.


“Amendment Effective Date” shall mean the date on
which the Amendment shall have become effective in accordance with its terms.


“Apollo Operating Company” shall mean a person
engaged in the business of producing goods or providing services that but for
the last sentence of the definition of Affiliate would be an Affiliate of the
Equity Investors.


“Applicable Margin” shall mean for any day prior to
September 27, 2011, 2.00% per annum in the case of any Eurocurrency Loan
and 1.00% per annum in the case of any ABR Loan and on and after
September 27, 2011, the Applicable Margin will be determined pursuant to the
Pricing Grid.


“Applicable Period” shall mean an Excess Cash Flow
Period or an Excess Cash Flow Interim Period, as the case may be.


“Approved Fund” shall have the meaning assigned to
such term in Section 9.04(b).


“Asset Sale” shall mean any loss, damage, destruction
or condemnation of, or any sale, transfer or other disposition (including any
sale and leaseback of assets and any mortgage or lease of real property) to any
person of any asset or assets of the Company or any Subsidiary.


“Assignee” shall have the meaning assigned to such
term in Section 9.04(b).









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“Assignment and Acceptance”
shall mean an assignment and acceptance entered into by a Lender and an
Assignee, and accepted by the Administrative Agent and the Company (if required
by such assignment and acceptance), in the form of Exhibit A  or
such other form as shall be approved by the Administrative Agent.


“Availability” shall mean, at any time, (a) the
Borrowing Base minus  (b) the Revolving Facility Credit Exposure.


“Availability Period” shall mean the period from and
including the Amendment Effective Date to but excluding the earlier of the
Revolving Facility Maturity Date and the date of termination of the Revolving
Facility Commitments.


“Availability Triggering Event” shall mean that
(a) except for purposes of Sections 5.07, 5.11, 5.12 and 5.14, the
Availability is less than the Threshold Amount, or (b) for purposes of
Section 5.07, 5.11, 5.12 and 5.14 only, the Availability is less than the
Threshold Amount for five consecutive Business Days.  Once an Availability
Triggering Event has occurred, it shall continue until such time as the
Availability is greater than the Threshold Amount for a period of 10
consecutive days.


“Available Unused Commitment” shall mean, with
respect to a Revolving Lender at any time, an amount equal to the amount by
which (a) the Revolving Facility Commitment of such Revolving Lender at
such time exceeds (b) the Revolving Facility Credit Exposure of such
Revolving Lender at such time minus such Revolving Lender’s Pro Rata Share of
the Swingline Exposure and the Agent Advance Exposure.


“Bank of America” shall mean Bank of America, N.A.
and its successors.


“Bankers’ Acceptance” or “BA” shall mean a time
draft, drawn by the beneficiary under an Acceptance Credit and accepted by the
applicable Issuing Bank upon presentation of documents by the beneficiary of an
Acceptance Credit pursuant to Section 2.05 hereof, in the standard form
for bankers’ acceptances of such Issuing Bank.


“Bankruptcy Code” shall mean Title 11 of the
United States Code (11 U.S.C. § 101 et  seq.). 


“BBA LIBOR” shall have the meaning assigned to such
term in the definition of “LIBO Rate” in this Section 1.01.


“Below Threshold Asset Sale Proceeds” shall have the
meaning assigned to such term in the definition of “Cumulative Credit” in this
Section 1.01.


“Berry” shall have the meaning assigned to such term
in the introductory paragraph of this Agreement.


“Berry Holdings” shall mean Berry Plastics Group,
Inc., which prior to the Closing Date was merged with and into Covalence
Holdings.









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“Berry Senior Subordinated Note
Documents” shall mean the Berry Senior Subordinated Notes and the Berry
Senior Subordinated Notes Indenture.


“Berry Senior Subordinated Notes” shall mean the 11%
Senior Subordinated Notes due 2016, issued pursuant to the Berry Senior
Subordinated Notes Indenture and any notes issued in exchange for, and as
contemplated by, the Berry Senior Subordinated Notes and the related
registration rights agreement with substantially identical terms as the Berry
Senior Subordinated Notes.


“Berry Senior Subordinated Notes Indenture” shall
mean the Indenture dated as of September 20, 2006 under which the Berry Senior
Subordinated Notes were issued, among BPC Holding Corporation, a predecessor of
Berry and certain of its subsidiaries party thereto and the trustee named therein
from time to time, as in effect on the Closing Date and as amended, restated,
supplemented or otherwise modified from time to time in accordance with the
requirements thereof and of this Agreement.


 “Blocked Account Agreement” shall mean an agreement
among one or more of the Loan Parties, the Collateral Agent, and a Clearing
Bank, in form and substance reasonably satisfactory to the Collateral Agent,
concerning the collection of payments which represent the proceeds of Accounts
and other Collateral of a Loan Party.


“Board” shall mean the Board of Governors of the
Federal Reserve System of the United States of America.


“Board of Directors” shall mean as to any person, the
board of directors or other governing body of such person, or, if such person
is owned or managed by a single entity, the board of directors or other
governing body of such person.


“Borrower” shall mean, the Company, those certain
domestic subsidiaries of the Company party hereto, and each Other Borrower who
becomes a Borrower hereunder in accordance with the terms of this Agreement,
jointly, severally, and collectively, and “Borrowers” shall mean more
than one or all of the foregoing persons, jointly, severally, and collectively,
as the context requires.  


“Borrower Joinder Agreement” shall mean a joinder
agreement, in the form attached hereto as Exhibit F. 


“Borrower Materials” shall have the meaning assigned
to such term in Section 9.17.


“Borrowing” shall mean all Revolving Loans of a
single Type and made on a single date and, in the case of Eurocurrency Loans,
as to which a single Interest Period is in effect.  Unless the context
indicates otherwise, the term “Borrowing” shall also include any Swingline
Borrowing and any Agent Advance.


“Borrowing Base” shall mean, at any time, an amount
equal to the lesser of: 


(a)               
the Revolving Facility Commitment; and 


 







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(b)              
the result of:


the sum of
(A) eighty‐five percent (85.0%) of the Net Amount of Eligible
Accounts, and  (B) eighty-five percent (85.0%) of the Orderly
Liquidation Value of Eligible Inventory, minus 


all
Reserves, without duplication of any items that are otherwise addressed or
excluded through eligibility criteria, which the Administrative Agent deems
necessary in the exercise of its Reasonable Credit Judgment to maintain with
respect to any Loan Party, including Reserves for any amounts which the
Administrative Agent or any Lender may be obligated to pay in the future for
the account of any Loan Party.


The specified percentages set forth
in this definition will not be reduced without the consent of the Company.  Any
determination by the Administrative Agent in respect of the Borrowing Base
shall be based on the Administrative Agent’s Reasonable Credit Judgment.  The
parties understand that the exclusionary criteria in the definitions of Eligible
Accounts and Eligible Inventory, any Reserves that may be imposed as provided
herein, and Net Amount of Eligible Accounts and factors considered in the
calculation of Orderly Liquidation Value of Eligible Inventory have the effect
of reducing the Borrowing Base, and, accordingly, whether or not any provisions
hereof so state, all of the foregoing shall be determined without duplication
so as not to result in multiple reductions in the Borrowing Base for the same
facts or circumstances.


“Borrowing Base Certificate” shall mean a certificate
by a Responsible Officer of the Company, substantially in the form of Exhibit
E (or another form reasonably acceptable to the Administrative Agent,
including, on the Amendment Effective Date only, Schedule 4.02(c))
setting forth the calculation of the Borrowing Base, including a calculation of
each component thereof (including, to the extent the Company has received
notice of any such Reserve from the Administrative Agent, any of the Reserves
included in such calculation pursuant to clause (b)(ii) of the definition
of the Borrowing Base), all in such detail as shall be reasonably satisfactory
to the Administrative Agent.


“Borrowing Minimum” shall mean $5 million, except in
the case of Swingline Loans, $1 million.


“Borrowing Multiple” shall mean $1 million, except in
the case of Swingline Loans, $500,000.


“Borrowing Request” shall mean a request by a
Borrower in accordance with the terms of Section 2.03 and substantially in
the form of Exhibit C‐1. 


“Budget” shall have the meaning assigned to such term
in Section 5.04(e).


“Business Combination” shall mean the business
combination pursuant to which (i) immediately prior to the effectiveness of the
Unamended Credit Agreement, Berry Holdings merged with and into Covalence
Holdings, and Covalence Holdings was renamed Berry Plastics Group, Inc. (ii)
substantially simultaneously with the effectiveness of the Unamended Credit
Agreement, Covalence Holdings contributed all of the capital stock of Berry to
Covalence, and (iii) immediately following the
effectiveness of the Unamended Credit Agreement, Covalence merged with and into
Berry, with Berry as the surviving corporation, pursuant to the Merger
Agreement.







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“Business Day” shall mean any day that is not a
Saturday, Sunday or other day on which commercial banks in New York City are
authorized or required by law to remain closed; provided, that
when used in connection with a Eurocurrency Loan, the term “Business Day” shall
also exclude any day on which banks are not open for dealings in deposits in
the applicable currency in the London interbank market.


 “Capital Expenditures” shall mean, for any person in
respect of any period, the aggregate of all expenditures incurred by such
person during such period that, in accordance with GAAP, are or should be
included in “additions to property, plant or equipment” or similar items
reflected in the statement of cash flows of such person, provided, however,
that Capital Expenditures for the Company and the Subsidiaries shall not
include:


(a)        expenditures to the
extent they are made with proceeds of the issuance of Equity Interests of
Holdings after the Closing Date or funds that would have constituted any Net
Proceeds under clause (a) of the definition of the term “Net Proceeds”
(but for the application of the first proviso to such clause (a)),


(b)        expenditures with
proceeds of insurance settlements, condemnation awards and other settlements in
respect of lost, destroyed, damaged or condemned assets, equipment or other
property to the extent such expenditures are made to replace or repair such
lost, destroyed, damaged or condemned assets, equipment or other property or
otherwise to acquire, maintain, develop, construct, improve, upgrade or repair
assets or properties useful in the business of the Company and the Subsidiaries
within 15 months of receipt of such proceeds (or, if not made within such
period of 15 months, are committed to be made during such period),


(c)        interest capitalized
during such period,


(d)       expenditures that are
accounted for as capital expenditures of such person and that actually are paid
for by a third party (excluding Holdings, the Company or any Subsidiary
thereof) and for which neither Holdings, the Company nor any Subsidiary has
provided or is required to provide or incur, directly or indirectly, any
consideration or obligation to such third party or any other person (whether
before, during or after such period),


(e)        the book value of any
asset owned by such person prior to or during such period to the extent that
such book value is included as a capital expenditure during such period as a
result of such person reusing or beginning to reuse such asset during such
period without a corresponding expenditure actually having been made in such
period; provided, that (i) any expenditure necessary in
order to permit such asset to be reused shall be included as a Capital
Expenditure during the period that such expenditure actually is made and
(ii) such book value shall have been included in Capital Expenditures when
such asset was originally acquired,


(f)        the purchase price of
equipment purchased during such period to the extent the consideration therefor
consists of any combination of (i) used or surplus equipment traded in at
the time of such purchase and (ii) the proceeds of a concurrent sale of
used or surplus equipment, in each case, in the ordinary course of business,









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(g)        Investments
in respect of a Permitted Business Acquisition, 


(h)        the Business
Combination, or


(i)         the purchase of
property, plant or equipment made within 15 months of the sale of any asset to
the extent purchased with the proceeds of such sale (or, if not made within
such period of 15 months, to the extent committed to be made during such
period).


“Capital Lease Obligations” of any person shall mean
the obligations of such person to pay rent or other amounts under any lease of
(or other arrangement conveying the right to use) real or personal property, or
a combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under GAAP
and, for purposes hereof, the amount of such obligations at any time shall be
the capitalized amount thereof at such time determined in accordance with GAAP.


“Cash Collateral” shall have the meaning assigned to such
term in the definition of “Cash Collateralize” in this Section 1.01.


“Cash Collateralize” shall mean to pledge and deposit
with or deliver to the Administrative Agent, for the benefit of the
Administrative Agent, Issuing Bank or Swingline Lender (as applicable) and the
Lenders, as collateral for Revolving L/C – BA Exposure, Obligations in respect
of Swingline Loans, or obligations of Lenders to fund participations in respect
of either thereof (as the context may require), cash or deposit account balances
or, if the Issuing Bank or Swingline Lender benefiting from such collateral
shall agree in its sole discretion, other credit support, in each case pursuant
to documentation in form and substance reasonably satisfactory to (a) the
Administrative Agent and (b) the Issuing Bank or the Swingline Lender (as
applicable).  “Cash Collateral” shall have a meaning correlative to the
foregoing and shall include the proceeds of such cash collateral and other
credit support.


“Cash Interest Expense” shall mean, with respect to
the Company and the Subsidiaries on a consolidated basis for any period,
Interest Expense for such period, less the sum of, without duplication,
(a) pay in kind Interest Expense or other noncash Interest Expense
(including as a result of the effects of purchase accounting), (b) to the
extent included in Interest Expense, the amortization of any financing fees
paid by, or on behalf of, the Company or any Subsidiary, including such fees
paid in connection with the Transactions or upon entering into a Permitted
Receivables Financing, (c) the amortization of debt discounts, if any, or
fees in respect of Swap Agreements and (d) cash interest income of Company
and its Subsidiaries for such period; provided, that Cash Interest
Expense shall exclude any one time financing fees, including those paid in
connection with the Transactions or upon entering into a Permitted Receivables
Financing, or upon entering into any amendment of this Agreement.


For fiscal periods ending prior to the first full fiscal
quarter after the Closing Date, Cash Interest Expense shall be calculated on a
Pro Forma Basis giving effect to the Transactions.


“CD” and “Canadian Dollars” each shall mean
the lawful currency of Canada.


A “Change in Control” shall be deemed to occur if:









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(a)        at
any time, (i) Holdings shall fail to own, directly or indirectly,
beneficially and of record, 100% of the issued and outstanding Equity Interests
of the Company, (ii) a majority of the seats (other than vacant seats) on
the Board of Directors of Holdings shall at any time be occupied by persons who
were neither (A) nominated by the board of directors of Holdings or a Permitted
Holder, (B) appointed by directors so nominated nor (C) appointed by
a Permitted Holder or (iii) a “change of control” (or similar event) shall
occur under any Second Lien Notes Indenture, any Senior Subordinated Notes
Indenture, any First Priority Notes Indenture, any Material Indebtedness or any
Permitted Refinancing Indebtedness in respect of any of the foregoing or any
Disqualified Stock (to the extent the aggregate amount of the applicable
Disqualified Stock exceeds $35 million);


(b)        at any time prior to a
Qualified IPO, any combination of Permitted Holders shall fail to own
beneficially (within the meaning of Rule 13d-5 of the Exchange Act as in effect
on the Closing Date), directly or indirectly, in the aggregate Equity Interests
representing at least a majority of the aggregate ordinary voting power
represented by the issued and outstanding Equity Interests of Holdings; or


(c)        at any time after a
Qualified IPO, any person or “group” (within the meaning of Rules 13d‐3
and 13d‐5 under the Securities Exchange Act of 1934 as in effect on the
Closing Date), other than any combination of the Permitted Holders or any
“group” including any Permitted Holders, shall have acquired beneficial
ownership of 35% or more on a fully diluted basis of the voting interest in
Holdings’ Equity Interests and the Permitted Holders shall own, directly or
indirectly, less than such person or “group” on a fully diluted basis of the
voting interest in Holdings’ Equity Interests.


“Change in Law” shall mean (a) the adoption of
any law, rule or regulation after the Closing Date, (b) any change in law,
rule or regulation or in the interpretation or application thereof by any
Governmental Authority after the Closing Date or (c) compliance by any
Lender or Issuing Bank (or, for purposes of Section 2.15(b), by any
Lending Office of such Lender or by such Lender’s or Issuing Bank’s holding
company, if any) with any written request, guideline or directive (whether or
not having the force of law) of any Governmental Authority made or issued after
the Closing Date.


“Charges” shall have the meaning assigned to such
term in Section 9.09. 


“Clearing Bank” shall mean either Bank of America or
any other banking institution with whom a Payment Account has been established
pursuant to a Blocked Account Agreement.


“Closing Date” shall mean April 3, 2007.


“Code” shall mean the Internal Revenue Code of 1986,
as amended from time to time.


“Collateral” shall mean all the “Collateral” as
defined in any Security Document and shall also include the Mortgaged
Properties and all other property that is subject to any Lien in favor of the
Collateral Agent or any Subagent for the benefit of the Lenders pursuant to any
Security Documents.









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“Collateral Access Agreement”
shall mean a landlord waiver, bailee letter or similar acknowledgment, in form
and substance reasonably satisfactory to the Collateral Agent and containing
such lien waivers, subordination provisions and other agreements of any lessor,
landlord, warehouseman or processor in possession of Inventory, in each case
reasonably required by the Collateral Agent to preserve, protect and maintain
the security interest (and the priority of the security interest) of the
Collateral Agent in such Inventory and executed pursuant to the requirements
set forth in clause (j) of the definition of “Eligible Inventory”.


“Collateral Agent” shall mean the party acting as
collateral agent for the Secured Parties under the Security Documents.  On the
Closing Date, the Collateral Agent is the same person as the Administrative
Agent. Unless the context otherwise requires, the term “Administrative Agent”
as used herein shall, unless the context otherwise requires, include the
Collateral Agent, notwithstanding various specific references to the Collateral
Agent herein.


“Collateral Agent’s Liens” shall mean the Liens in
the Collateral granted to the Collateral Agent, for the benefit of the Secured
Parties, pursuant to the Collateral Agreement and the other Loan Documents.


“Collateral Agreement” shall mean the Second Amended
and Restated First Lien Guarantee and Collateral Agreement, dated as of the
date hereof, as amended, supplemented or otherwise modified from time to time,
in the form of Exhibit D, among Holdings, the Company, each Subsidiary
Loan Party, the Collateral Agent and Credit Suisse as collateral agent.


“Collateral and Guarantee Requirement” shall mean the
requirement that:


(a)        on the Closing Date, the
Collateral Agent shall have received (i) from Holdings, the Company and each
Subsidiary Loan Party, a counterpart of the Collateral Agreement duly executed
and delivered on behalf of such person and (ii) an Acknowledgment and Consent
in the form attached to the Collateral Agreement, executed and delivered by
each issuer of Pledged Collateral (as defined in the Collateral Agreement), if
any, that is not a Loan Party;  


(b)        on or before the Closing
Date, (i) the Collateral Agent shall have received (A) a pledge of
all the issued and outstanding Equity Interests of (x) the Company and
(y) each Domestic Subsidiary (other than Subsidiaries listed on Schedule 1.01(a))
owned on the Closing Date directly by or on behalf of the Company or any
Subsidiary Loan Party and (B) a pledge of 65% of the outstanding Equity
Interests of (1) each “first tier” Foreign Subsidiary directly owned by
any Loan Party (except for NIM Holdings Limited, Berry Plastics Asia Pte. Ltd.,
Ociesse s.r.l., Berry Plastics Acquisition Corporation II, and Berry Plastics
Acquisition Corporation XIV, LLC), and (2) each “first tier” Qualified CFC
Holding Company directly owned by any Loan Party and (ii) a collateral
agent under the Collateral Agreement, shall have received all certificates or
other instruments (if any) representing such Equity Interests, together with
stock powers or other instruments of transfer with respect thereto endorsed in
blank;


(c)        (i) all
Indebtedness of the Company and each Subsidiary having, in the case of each
instance of Indebtedness, an aggregate principal amount in excess of
$5 million (other than (A) intercompany current liabilities incurred
in the ordinary course of business in connection with the cash management
operations of Holdings and its Subsidiaries or (B) to the extent that a
pledge of such promissory note or instrument would
violate applicable law) that is owing to any Loan Party shall be evidenced by a
promissory note or an instrument and shall have been pledged pursuant to the
Collateral Agreement (or other applicable Security Document as reasonably
required by the Administrative Agent) (which pledge, in the case of any
intercompany note evidencing debt owed by a Foreign Subsidiary to a Loan Party,
shall be limited to 65% of the amount outstanding thereunder), and
(ii) Credit Suisse, as a collateral agent under the Collateral Agreement
shall have received all such promissory notes or instruments, together with
note powers or other instruments of transfer with respect thereto endorsed in
blank;







                                                                                  10                                                                                  










 








 










(d) in the case of any person that
becomes a Subsidiary Loan Party after the Closing Date, the Collateral Agent
shall have received a supplement to each of the Collateral Agreement, the
Intercreditor Agreement and the Senior Lender Intercreditor Agreement, in the
form specified therein, duly executed and delivered on behalf of such
Subsidiary Loan Party;


(e) in the case of any person that
becomes a “first tier” Foreign Subsidiary directly owned by the Company or a
Subsidiary Loan Party after the Closing Date, the Collateral Agent shall have
received, as promptly as practicable following a request by the Collateral
Agent, a Foreign Pledge Agreement, duly executed and delivered on behalf of
such Foreign Subsidiary and the direct parent company of such Foreign
Subsidiary;


(f) after the Closing Date,
(i) all the outstanding Equity Interests of (A) any person that
becomes a Subsidiary Loan Party after the Closing Date and (B) subject to
Section 5.10(g), all the Equity Interests that are acquired by a Loan Party
after the Closing Date (including, without limitation, the Equity Interests of
any Special Purpose Receivables Subsidiary established after the Closing Date),
shall have been pledged pursuant to the Collateral Agreement; provided,
that in no event shall more than 65% of the issued and outstanding Equity
Interests of any “first tier” Foreign Subsidiary or any “first tier” Qualified
CFC Holding Company directly owned by such Loan Party be pledged to secure
Obligations, and in no event shall any of the issued and outstanding Equity
Interests of any Foreign Subsidiary that is not a “first tier” Foreign
Subsidiary of a Loan Party or any Qualified CFC Holding Company that is not a
“first tier” Subsidiary of a Loan Party be pledged to secure Obligations, and
(ii) a collateral agent under the Collateral Agreement shall have received
all certificates or other instruments (if any) representing such Equity
Interests, together with stock powers or other instruments of transfer with
respect thereto endorsed in blank;


(g)        except as otherwise
contemplated by any Security Document, all documents and instruments, including
Uniform Commercial Code financing statements, required by law or reasonably
requested by the Collateral Agent to be filed, registered or recorded to create
the Liens intended to be created by the Security Documents (in each case,
including any supplements thereto) and perfect such Liens to the extent
required by, and with the priority required by, the Security Documents, shall
have been filed, registered or recorded or delivered to the Collateral Agent
for filing, registration or the recording concurrently with, or promptly
following, the execution and delivery of each such Security Document;


(h)        within 90 days (or such
longer period as the Administrative Agent may determine) after the Closing
Date, the Collateral Agent shall have received (i) counterparts of each
Mortgage to be entered into with respect to each Mortgaged Property set forth
on Schedule 1.01(c)  duly executed and delivered by the record owner
of such Mortgaged Property and suitable for recording or
filing and (ii) such other documents including, but not limited to, any
consents, agreements and confirmations of third parties, as the Collateral
Agent may reasonably request with respect to any such Mortgage or Mortgaged
Property;







                                                                                 11                                                                                 










 








 










(i)         within 90 days (or such
longer period as the Administrative Agent may determine) after the Closing
Date, the Collateral Agent shall have received, except as otherwise set forth
in clause (l) below, a policy or policies or marked‐up unconditional
binder of title insurance or foreign equivalent thereof, as applicable, paid
for by the Borrowers, issued by a nationally recognized title insurance company
insuring the Lien of each Mortgage to be entered into on or after, the Closing
Date, as a valid first Lien on the Mortgaged Property described therein, free
of any other Liens except as permitted by Section 6.02 and Liens arising
by operation of law, together with such customary endorsements (including
zoning endorsements where reasonably appropriate and available), coinsurance
and reinsurance as the Collateral Agent may reasonably request, and with
respect to any such property located in a state in which a zoning endorsement
is not available, a zoning compliance letter from the applicable municipality
in a form reasonably acceptable to the Collateral Agent;


(j)         at or prior to delivery
of any Mortgages, evidence of the insurance required by the terms of the
Mortgages;


(k)        except as otherwise
contemplated by any Security Document, each Loan Party shall have obtained all
consents and approvals required to be obtained by it in connection with
(i) the execution and delivery of all Security Documents (or supplements
thereto) to which it is a party and the granting by it of the Liens thereunder
and (ii) the performance of its obligations thereunder; and


(l)         after the Closing Date,
the Administrative Agent shall have received (i) such other Security
Documents as may be required to be delivered pursuant to Section 5.10, and
(ii) upon reasonable request by the Administrative Agent, evidence of
compliance with any other requirements of Section 5.10.


“Collateral Audit” shall have the meaning assigned to
such term in Section 5.07.


“Commitment Fee” shall have the meaning assigned to
such term in Section 2.12(b).


“Commitments” shall mean (a) with respect to any
Lender, such Lender’s Revolving Facility Commitment (including any Incremental
Revolving Facility Commitment), and (b) with respect to any Swingline
Lender, its Swingline Commitment.


“Company” shall have the meaning assigned to such
term in the recitals hereto.


“Conduit Lender” shall mean any special purpose
corporation organized and administered by any Lender for the purpose of making
Loans otherwise required to be made by such Lender and designated by such
Lender in a written instrument; provided, that the designation by
any Lender of a Conduit Lender shall not relieve the designating Lender of any
of its obligations to fund a Loan under this Agreement if, for any reason, its
Conduit Lender fails to fund any such Loan, and the designating Lender (and not
the Conduit Lender) shall have the sole right and
responsibility to deliver all consents and waivers required or requested under
this Agreement with respect to its Conduit Lender; provided, further,
that no Conduit Lender shall (a) be entitled to receive any greater amount
pursuant to Section 2.15, 2.16, 2.17 or 9.05 than the designating Lender
would have been entitled to receive in respect of the extensions of credit made
by such Conduit Lender or (b) be deemed to have any Commitment.







                                                                                 12                                                                                 










 








 










“Consolidated Debt” at any date shall mean the sum of
(without duplication) all Indebtedness consisting of Capital Lease Obligations,
Indebtedness for borrowed money (other than letters of credit to the extent
undrawn but including all Bankers’ Acceptances issued under Acceptance
Credits), Disqualified Stock and Indebtedness in respect of the deferred
purchase price of property or services of the Company and the Subsidiaries
determined on a consolidated basis on such date in accordance with GAAP. 


“Consolidated Interest Expense” shall mean, with
respect to any person for any period, the sum, without duplication, of:


(i) consolidated interest expense
of such person for such period, to the extent such expense was deducted in computing
Consolidated Net Income (including amortization of original issue discount, the
interest component of Capital Lease Obligations, and net payments and receipts
(if any) pursuant to interest rate Hedging Obligations and excluding
amortization of deferred financing fees and expensing of any bridge or other
financing fees);


(ii) consolidated capitalized
interest of such person for such period, whether paid or accrued; and


(iii) less interest income for such
period.


“Consolidated Net Income” shall mean, with respect to
any person for any period, the aggregate of the Net Income of such person and
its subsidiaries for such period, on a consolidated basis; provided, however,
that, without duplication,


(i)         any net after-tax extraordinary,
nonrecurring or unusual gains or losses or income or expense or charge (less
all fees and expenses relating thereto) including, without limitation, any
severance, relocation or other restructuring expenses, any expenses relating to
any reconstruction, recommissioning or reconfiguration of fixed assets for
alternative uses and fees, expenses or charges relating to new product lines,
plant shutdown costs, acquisition integration costs, and fees, expenses or
charges related to any offering of Equity Interests of Holdings, any Investment,
acquisition or Indebtedness permitted to be incurred hereunder (in each case,
whether or not successful), including any such fees, expenses, charges or
change in control payments related to the Transactions (including any
transition-related expenses incurred before, on or after the Original Agreement
Date), in each case, shall be excluded,


(ii)        any net after‐tax income or loss
from discontinued operations and any net after‐tax gain or loss from
disposed, abandoned, transferred, closed or discontinued operations shall be
excluded,


 







                                                                                 13                                                                                 










 








 








(iii)       any net after‐tax
gain or loss (less all fees and expenses or charges relating thereto)
attributable to business dispositions or asset dispositions other than in the
ordinary course of business (as determined in good faith by the Board of
Directors of the Company) shall be excluded,


(iv)       any net after‐tax income or loss
(less all fees and expenses or charges relating thereto) attributable to the
early extinguishment of indebtedness shall be excluded,


(v)        (A) the Net Income for such period
of any person that is not a subsidiary of such person, or is an Unrestricted
Subsidiary, or that is accounted for by the equity method of accounting, shall
be included only to the extent of the amount of dividends or distributions or other
payments paid in cash (or to the extent converted into cash) to the referent
person or a subsidiary thereof in respect of such period and (B) the Net
Income for such period shall include any ordinary course dividend distribution
or other payment in cash received from any person in excess of the amounts
included in clause (A),


(vi)       Consolidated Net Income for such period
shall not include the cumulative effect of a change in accounting principles
during such period, 


(vii)      any increase in amortization or
depreciation or any one‐time non‐cash charges resulting from
purchase accounting (or similar accounting, in the case of the Transactions) in
connection with the Transactions or any acquisition that is consummated after
the Original Agreement Date shall be excluded, 


(viii)     any non‐cash impairment charges
or asset write-off resulting from the application of GAAP, and the amortization
of intangibles arising pursuant to GAAP, shall be excluded,


(ix)       any non‐cash expenses realized or
resulting from stock option plans, employee benefit plans or post-employment
benefit plans, grants of stock appreciation or similar rights, stock options,
restricted stock grants or other rights to officers, directors and employees of
such person or any of its subsidiaries shall be excluded, 


(x)        accruals and reserves that are
established within twelve months after the Closing Date and that are so
required to be established in accordance with GAAP shall be excluded, 


(xi)       any expenses realized in respect of the
obligations under Sections 2.9 or 5.4 of the Acquisition Agreement, shall in
each case be excluded, 


(xii)      non-cash gains, losses, income and
expenses resulting from fair value accounting required by Statement of
Financial Accounting Standards No. 133 shall be excluded, and


(xiii)     non-cash charges for deferred tax asset
valuation allowances shall be excluded.  









                                                                                 14                                                                                 










 








 








 “Consolidated Total Assets”
shall mean, as of any date, the total assets of the Company and the
consolidated Subsidiaries, determined in accordance with GAAP, as set forth on
the consolidated balance sheet of the Company as of such date.


“Control” shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of a person, whether through the ownership of voting securities, by
contract or otherwise, and “Controlling” and “Controlled” shall
have meanings correlative thereto.


“Covalence” shall have the meaning assigned to such
term in the introductory paragraph of this Agreement.


“Covalence Holdings” shall mean Covalence Specialty
Materials Holding Corp., which immediately prior to the Closing Date was merged
with Berry Holdings, with Covalence Specialty Materials Holding Corp. surviving
and being renamed Berry Plastics Group, Inc.


“Covalence Senior Subordinated Note Documents” shall
mean the Covalence Senior Subordinated Notes and the Covalence Senior
Subordinated Notes Indenture.


“Covalence Senior Subordinated Notes” shall mean the
Company’s 101⁄4% Senior Subordinated Notes due 2016, issued pursuant to the Covalence
Senior Subordinated Notes Indenture and any notes issued by the Company in
exchange for, and as contemplated by, the Covalence Senior Subordinated Notes
and the related registration rights agreement with substantially identical
terms as the Covalence Senior Subordinated Notes.


“Covalence Senior Subordinated Notes Indenture” shall
mean the Indenture dated as of February 16, 2006 among Covalence and certain of
the Subsidiaries party thereto and the trustee named therein from time to time,
as in effect on the Closing Date and as amended, restated, supplemented or
otherwise modified from time to time in accordance with the requirements
thereof and of this Agreement.


“Credit Event” shall have the meaning assigned to
such term in Article IV.


“Credit Suisse” shall mean Credit Suisse, Cayman
Islands Branch (or its successor entity, Credit Suisse AG, Cayman Islands
Branch).


“Cumulative Credit” shall mean, at any date, an
amount, not less than zero in the aggregate, determined on a cumulative basis
equal to, without duplication:


(a) $100.0 million, plus: 


(b) the Cumulative Retained Excess Cash Flow Amount at such
time, plus   


(c) the aggregate amount of proceeds received after the
Original Agreement Date and prior to such time that would have constituted Net
Proceeds pursuant to clause (a) of the definition thereof except for
the operation of clause (A), (B) or (C) of the second proviso thereof
(the “Below Threshold Asset Sale Proceeds”), plus   









                                                                                 15                                                                                 










 








 








(d) the cumulative amount of
proceeds (including cash and the fair market value of property other than cash)
from the sale of Equity Interests of Holdings or any Parent Entity after the
Original Agreement Date and on or prior to such time (including  upon exercise
of warrants or options) which proceeds have been contributed as common equity
to the capital of the Company and common Equity Interests of the Company issued
upon conversion of Indebtedness of the Company or any Subsidiary owed to a
person other than the Company or a Subsidiary not previously applied for a
purpose other than use in the Cumulative Credit; provided, that this
clause (d) shall exclude Permitted Cure Securities and the proceeds
thereof, sales of Equity Interests financed as contemplated by
Section 6.04(e) and any amounts used to finance the payments or distributions
in respect of any Junior Financing pursuant to Section 6.09(b), plus 


(e) 100% of the aggregate amount of contributions to the
common capital of the Company received in cash (and the fair market value of
property other than cash) after the Original Agreement Date (subject to the
same exclusions as are applicable to clause (d) above); plus 


(f) the principal amount of any Indebtedness (including the
liquidation preference or maximum fixed repurchase price, as the case may be,
of any Disqualified Stock) of the Company or any Subsidiary thereof issued
after the Original Agreement Date (other than Indebtedness issued to a
Subsidiary), which has been converted into or exchanged for Equity Interests
(other than Disqualified Stock) in Holdings or any Parent Entity, plus 


(g) 100% of the aggregate amount received by the Company or
any Subsidiary in cash (and the fair market value of property other than cash
received by the Company or any Subsidiary) after the Original Agreement Date
from:


(A)       the sale (other than to the Company or any
Subsidiary) of the Equity Interests of an Unrestricted Subsidiary, or


(B)       any dividend or other distribution by an
Unrestricted Subsidiary, plus 


(h) in the event any Unrestricted Subsidiary has been
redesignated as a Subsidiary or has been merged, consolidated or amalgamated
with or into, or transfers or conveys its assets to, or is liquidated into,
Holdings, the Company or any Subsidiary, the fair market value of the
Investments of Holdings, the Company or any Subsidiary in such Unrestricted
Subsidiary at the time of such Subsidiary Redesignation, combination or
transfer (or of the assets transferred or conveyed, as applicable), plus 


(i) an amount equal to any returns (including dividends,
interest, distributions, returns of principal, profits on sale, repayments,
income and similar amounts) actually received by the Company or any Subsidiary
in respect of any Investments made pursuant to Section 6.04(j) (or the
corresponding provision of the senior secured bank credit facility then applicable
to such entity) after the Original Agreement Date, minus   


(j) any amounts thereof used to make Investments pursuant to
Section 6.04(b)(y) (or the corresponding provision of the senior secured
bank credit facility then applicable to such entity) after the Original
Agreement Date prior to such time, minus   









                                                                                 16                                                                                 










 








 








(k) any amounts thereof used to
make Investments pursuant to Section 6.04(j)(ii) (or the
corresponding provision of the senior secured bank credit facility then
applicable to such entity) after the Original Agreement Date prior to such
time, minus   


(l) the cumulative amount of dividends paid and
distributions made pursuant to Section 6.06(e) (or the corresponding
provision of the senior secured bank credit facility then applicable to such
entity) after the Original Agreement Date prior to such time, minus   


(m) payments or distributions in respect of Junior
Financings pursuant to Section 6.09(b)(i) (or the corresponding provision
of the senior secured bank credit facility then applicable to such entity)
(other than payments made with proceeds from the issuance of Equity Interests
that were excluded from the calculation of the Cumulative Credit pursuant to
clause (d) above) after the Original Agreement Date;


provided, however, for
purposes of Section 6.06(e), the calculation of the Cumulative Credit
shall not include any Below Threshold Asset Sale Proceeds except to the extent
they are used as contemplated in clauses (j) and (k) above.


For the avoidance of doubt, the amount resulting
from calculation of Cumulative Credit prior to the Amendment Effective Date is
intended to be the same amount as would be calculated under the Unamended
Credit Agreement.


“Cumulative Retained Excess Cash Flow Amount” shall
mean, at any date, an amount, not less than zero in the aggregate, determined
on a cumulative basis equal to:


(a)        the aggregate cumulative sum of the Retained
Percentage of Excess Cash Flow for all Excess Cash Flow Periods ending after
the Original Agreement Date and prior to such date, plus 


(b)        for each Excess Cash Flow Interim Period ended
prior to such date but as to which the corresponding Excess Cash Flow Period
has not ended, an amount equal to the Retained Percentage of Excess Cash Flow
for such Excess Cash Flow Interim Period, minus 


(c)        the cumulative amount of all Retained Excess Cash
Flow Overfundings as of such date.


“Cure Amount” shall have the meaning assigned to such
term in Section 7.03(a).


“Cure Right” shall have the meaning assigned to such
term in Section 7.03(a).


“Current Assets” shall mean, with respect to the
Company and the Subsidiaries on a consolidated basis at any date of
determination, the sum of (a) all assets (other than cash and Permitted
Investments or other cash equivalents and amounts receivable under Sections 2.9
and 5.4 of the Acquisition Agreement) that would, in accordance with GAAP, be
classified on a consolidated balance sheet of the Company and the Subsidiaries
as current assets at such date of determination, other than amounts related to
current or deferred Taxes based on income or profits and (b) in the event
that a Permitted Receivables Financing is accounted for off balance sheet, (x) gross accounts receivable comprising part of the
Receivables Assets subject to such Permitted Receivables Financing less
(y) collections against the amounts sold pursuant to clause (x).







                                                                                 17                                                                                 










 








 










“Current Liabilities” shall mean, with respect to the
Company and the Subsidiaries on a consolidated basis at any date of
determination, all liabilities that would, in accordance with GAAP, be
classified on a consolidated balance sheet of the Company and the Subsidiaries
as current liabilities at such date of determination, other than (a) the
current portion of any Indebtedness, (b) accruals of Interest Expense
(excluding Interest Expense that is due and unpaid), (c) accruals for
current or deferred Taxes based on income or profits, (d) accruals, if
any, of transaction costs resulting from the Transactions, (e) accruals,
if any, of transaction costs resulting from  and obligations under Sections 2.9
and 5.4 of the Acquisition Agreement, (f) accruals of any costs or
expenses related to (i) severance or termination of employees prior to the
Original Agreement Date or (ii) bonuses, pension and other post‐retirement
benefit obligations, and (g) accruals for add‐backs to EBITDA
included in clauses (a)(iv) through (a)(vi) of the definition of such
term. 


“Debt Service” shall mean, with respect to the
Company and the Subsidiaries on a consolidated basis for any period, Cash
Interest Expense for such period plus scheduled principal amortization of
Consolidated Debt for such period.


“Debtor Relief Laws” shall mean the Bankruptcy Code
of the United States, and all other liquidation, conservatorship, bankruptcy,
assignment for the benefit of creditors, moratorium, rearrangement,
receivership, insolvency, reorganization, or similar debtor relief Laws of the
United States or other applicable jurisdictions from time to time in effect.


“Default” shall mean any event or condition that upon
notice, lapse of time or both would constitute an Event of Default.


“Defaulting Lender” shall mean, subject to
Section 2.23, any Lender that (a) has failed to (i) fund all or
any portion of its Loans within two Business Days of the date such Loans were
required to be funded hereunder unless such Lender notifies the Administrative
Agent and the Company in writing that such failure is the result of such
Lender’s determination that one or more conditions precedent to funding (each
of which conditions precedent, together with any applicable default, shall be
specifically identified in such writing) has not been satisfied, or
(ii) pay to the Administrative Agent, any Issuing Bank, the Swingline
Lender or any other Lender any other amount required to be paid by it hereunder
(including in respect of its participation in Letters of Credit or Swingline
Loans) within two Business Days of the date when due, (b) has notified the
Company, the Administrative Agent or any Issuing Bank or Swingline Lender in
writing that it does not intend to comply with its funding obligations
hereunder, or has made a public statement to that effect (unless such writing
or public statement relates to such Lender’s obligation to fund a Loan
hereunder and states that such position is based on such Lender’s determination
that a condition precedent to funding (which condition precedent, together with
any applicable default, shall be specifically identified in such writing or
public statement) cannot be satisfied), (c) has failed, within three
Business Days after written request by the Administrative Agent or the Company,
to confirm in writing to the Administrative Agent and the Company that it will
comply with its prospective funding obligations hereunder (provided that such
Lender shall cease to be a Defaulting Lender pursuant to this clause (c)
upon receipt of such written confirmation by the Administrative
Agent and the Company), or (d) has, or has a direct or indirect parent
company that has, (i) become the subject of a proceeding under any Debtor
Relief Law, or (ii) had appointed for it a receiver, custodian,
conservator, trustee, administrator, assignee for the benefit of creditors or
similar Person charged with reorganization or liquidation of its business or
assets, including the Federal Deposit Insurance Corporation or any other state
or federal regulatory authority acting in such a capacity; provided,
that a Lender shall not be a Defaulting Lender solely by virtue of the
ownership or acquisition of any equity interest in that Lender or any direct or
indirect parent company thereof by a Governmental Authority so long as such
ownership interest does not result in or provide such Lender with immunity from
the jurisdiction of courts within the United States or from the enforcement of
judgments or writs of attachment on its assets or permit such Lender (or such
Governmental Authority) to reject, repudiate, disavow or disaffirm any
contracts or agreements made with such Lender. Any determination by the
Administrative Agent and the Company that a Lender is a Defaulting Lender under
clauses (a) through (d) above shall be conclusive and binding absent manifest
error, and such Lender shall be deemed to be a Defaulting Lender (subject to
Section 2.23) upon delivery of written notice of such determination to the
Company, each Issuing Bank, each Swingline Lender and each Lender.







                                                                                 18                                                                                 










 








 










“Designated Non-Cash Consideration” mean the fair
market value of non-cash consideration received by the Company or one of its
Subsidiaries in connection with an Asset Sale that is so designated as
Designated Non-Cash Consideration pursuant to a certificate of a Responsible
Officer, setting forth the basis of such valuation, less the amount of cash
equivalents received in connection with a subsequent sale of such Designated
Non-Cash Consideration.


“Disqualified Stock” shall mean, with respect to any
person, any Equity Interests of such person that, by its terms (or by the terms
of any security or other Equity Interests into which it is convertible or for
which it is redeemable or exchangeable), or upon the happening of any event or
condition (a) matures or is mandatorily redeemable (other than solely for
Qualified Equity Interests), pursuant to a sinking fund obligation or otherwise
(except as a result of a change of control or asset sale so long as any rights
of the holders thereof upon the occurrence of a change of control or asset sale
event shall be subject to the prior repayment in full of the Loans and all
other Obligations that are accrued and payable and the termination of the
Commitments), (b) is redeemable at the option of the holder thereof (other
than solely for Qualified Equity Interests), in whole or in part,
(c) provides for the scheduled payments of dividends in cash, or
(d) is or becomes convertible into or exchangeable for Indebtedness or any
other Equity Interests that would constitute Disqualified Stock, in each case,
prior to the date that is ninety-one (91) days after the Revolving Facility
Maturity Date; provided, however, that only the portion of the
Equity Interests that so mature or are mandatorily redeemable, are so
convertible or exchangeable or are so redeemable at the option of the holder
thereof prior to such date shall be deemed to be Disqualified Stock; provided 
further, however, that if such Equity Interests are issued to any
employee or to any plan for the benefit of employees of the Company or the
Subsidiaries or by any such plan to such employees, such Equity Interests shall
not constitute Disqualified Stock solely because they may be required to be
repurchased by the Company in order to satisfy applicable statutory or
regulatory obligations or as a result of such employee’s termination, death or
disability.


“Distributions” shall have the meaning assigned to
such term in Section 6.06.









                                                                                 19                                                                                 










 








 








“Documentation Agents” shall
have the meaning assigned to such term in the introductory paragraph of
this Agreement.


“Dollar” and “$” shall mean dollars in the
lawful currency of the United States.


“Dollar Equivalent” shall mean, at any time,
(a) with respect to any amount denominated in Dollars, such amount, and (b) with
respect to any amount denominated in any currency other than Dollars, the
equivalent amount thereof in Dollars as determined by the Administrative Agent
at such time on the basis of the Spot Rate (determined in respect of the most
recent Revaluation Date or other applicable date of determination) for the
purchase of Dollars with such currency.


“Domestic Subsidiary” shall mean any Subsidiary that
is not a Foreign Subsidiary or a Qualified CFC Holding Company or a subsidiary
listed on Schedule 1.01(a). 


“EBITDA” shall mean, with respect to the Company and
the Subsidiaries on a consolidated basis for any period, the Consolidated Net
Income of the Company and the Subsidiaries for such period plus  (a) the
sum of (in each case without duplication and to the extent the respective
amounts described in subclauses (i) through (vii) of this
clause (a) reduced such Consolidated Net Income (and were not
excluded therefrom) for the respective period for which EBITDA is being
determined):


(i)         provision for Taxes based on income,
profits or capital of the Company and the Subsidiaries for such period,
including, without limitation, state, franchise, business activity and similar
taxes,


(ii)        Interest Expense of the Company and
the Subsidiaries for such period (net of interest income of the Company and its
Subsidiaries for such period),


(iii)       depreciation and amortization expenses
of the Company and the Subsidiaries for such period,


(iv)       business optimization expenses and
other restructuring charges (which, for the avoidance of doubt, shall include,
without limitation, the effect of inventory optimization programs, plant
closure, retention, severance, systems establishment costs and excess pension
charges); provided, that with respect to each business optimization
expense or other restructuring charge, the Company shall have delivered to the
Administrative Agent an officers’ certificate specifying and quantifying such
expense or charge,


(v)        any other non‐cash charges; provided,
that, for purposes of this subclause (v) of this clause (a), any non‐cash
charges or losses shall be treated as cash charges or losses in any subsequent
period during which cash disbursements attributable thereto are made, 


(vi)       the amount of management, consulting,
monitoring, transaction and advisory fees and related expenses paid to any Fund
or any Fund Affiliates (or any accruals related to such fees and related
expenses) during such period; provided, that such amount shall not
exceed in any four quarter period the sum of (i) the greater of
$7.5 million and 







                                                                                 20                                                                                 










 








 








2.0% of EBITDA for such four
quarter period, plus  (ii) the amount of deferred fees (to the
extent such fees would otherwise have been permitted to be included in
clause (i) if paid, but were not included in such clause (i)), plus 
(iii) 2.0% of the value of transactions permitted hereunder and entered into by
the Company or any of the Subsidiaries with respect to which any Fund or any
Fund Affiliate provides any of the aforementioned types of services, and


(vii)      non-operating expenses.


minus (b) the sum of (without duplication and
to the extent the amounts described in this clause (b) increased such
Consolidated Net Income for the respective period for which EBITDA is being
determined) non‐cash items increasing Consolidated Net Income of the
Company and the Subsidiaries for such period (but excluding any such items
(A) in respect of which cash was received in a prior period or will be
received in a future period or (B) which represent the reversal of any
accrual of, or cash reserve for, anticipated cash charges in any prior period).


For purposes of determining EBITDA under this Agreement
for any quarter ending prior to the first full quarter ending after the Closing
Date, EBITDA for such fiscal quarter shall be calculated on a Pro Forma Basis,
giving effect to the Business Combination and the other Transactions occurring
on the Closing Date.


“Eligible Accounts” shall mean all Accounts of the
Borrowers reflected in the most recent Borrowing Base Certificate, except any
Account with respect to which any of the exclusionary criteria set forth below
applies (unless the Administrative Agent in its reasonable discretion elects to
include such Account), such excluded Accounts being any Account or Accounts:


            (a)        with respect to which
more than 120 days have elapsed since the date of the original invoice therefor
or which is more than 60 days past due; provided  that Accounts listed on
Schedule 1.01(e)  (as updated from time to time by the Company with
the consent of the Administrative Agent (not to be unreasonably withheld or
delayed)) in an aggregate amount of not more than $5 million at any time shall
be ineligible pursuant to this clause (a) only if they are more than 60
days past due or 180 days from the invoice date;


            (b)        that do not represent
a bona fide indebtedness incurred in the amount of the Account for goods sold
or services rendered to, and accepted by, the applicable Account Debtor; or
that are not for a liquidated amount payable by the Account Debtor on the terms
then in effect for such Account; or for which payment has been or will be
received or credit, discount or extension, or agreement therefor, or
compromise, compounding or settlement thereof, has been or will be granted, or
any party liable thereon has been released, in each case other than in the
ordinary course of business consistent with past practice; or for which
invoices have not been issued or copies of any invoice with respect to such
Account delivered to the Collateral Agent by any Loan Party do not represent
genuine copies of the original invoice sent to the Account Debtor named
therein;


            (c)        with respect to which
Account (or any other Account due from such Account Debtor), in whole or in
part, a check, promissory note, draft, trade acceptance, or other instrument
for the payment of money has been received, presented for payment, and returned
uncollected for any reason;









                                                                                 21                                                                                 










 








 








            (d)        which
represents a progress billing; provided  that for the purposes
hereof, “progress billing” shall mean any invoice for goods sold or leased or
services rendered under a contract or agreement pursuant to which the Account
Debtor’s obligation to pay such invoice is conditioned upon the applicable
Borrower’s completion of any further performance under the contract or
agreement;


            (e)        with respect to which
any one or more of the following events has occurred to the Account Debtor on
such Account: (i) death or judicial declaration of incompetency of an
Account Debtor who is an individual; (ii) the filing by or against the
Account Debtor of a request or petition for liquidation, reorganization,
arrangement, adjustment of debts, adjudication as a bankrupt, winding‐up,
or other relief under the bankruptcy, insolvency, or similar laws of the United
States, any state or territory thereof, or any foreign jurisdiction, now or hereafter
in effect; (iii) the making of any general assignment by the Account
Debtor for the benefit of creditors; (iv) the appointment of a receiver or
trustee for the Account Debtor or for all or a substantial portion of the
assets of the Account Debtor, including, without limitation, the appointment of
or taking possession by a “custodian”, as defined in the Bankruptcy Code;
(v) the institution by or against the Account Debtor of any other type of
insolvency proceeding (under the Bankruptcy Code or otherwise) or of any formal
or informal proceeding for the dissolution or liquidation of, settlement of
claims against, or winding up of affairs of, the Account Debtor; (vi) the
sale, assignment, or transfer of all or substantially all of the assets of the
Account Debtor (unless the obligations under such Account are assumed by the
successor); (vii) the nonpayment generally by the Account Debtor of its
debts as they become due; or (viii) the cessation of the business of the
Account Debtor as a going concern;


            (f)        if fifty percent
(50.0%) or more of the aggregate Dollar amount of outstanding Accounts owed at
such time by the Account Debtor thereon is classified as ineligible under clause (a) 
preceding;


            (g)        owed by an Account
Debtor which: (i) is not organized under the laws of the United States or
Canada or any political subdivision, state, or province thereof; or
(ii) is the government of any foreign country or sovereign state, or of
any state, province, municipality, or other political subdivision thereof, or of
any department, agency, public corporation, or other instrumentality thereof;
except to the extent that such Account is insured by the Export‐Import
Bank of the United States or secured or payable by a letter of credit
satisfactory to the Administrative Agent in its reasonable discretion;


            (h) which are Intercompany
Accounts or other Accounts owed by an Account Debtor which is an Affiliate or
employee of any Borrower (not including, for the avoidance of doubt, any Apollo
Operating Company);


            (i) except as agreed by the
Administrative Agent as provided in clause (g)  preceding or clause (l) 
following regarding political subdivisions of the United States but not the
U.S. federal government, with respect to which either the perfection,
enforceability, or validity of the Collateral Agent’s Lien in such Account, or
the Collateral Agent’s right or ability to obtain direct payment to the
Collateral Agent of the proceeds of such Account, is governed by any federal,
state, or local statutory requirements other than those of the UCC; except to
the extent that such Account is insured by the Export‐Import Bank of the
United States or secured or payable by a letter of credit satisfactory to the
Administrative Agent in its reasonable discretion;


            (j) owed by an Account Debtor to
which a Loan Party or any of their respective Subsidiaries is indebted in any
way, or which is subject to any right of set‐off or recoupment by the
Account Debtor (but only to the extent of such indebtedness, right of set-off
or recoupment), unless the Account Debtor has entered
into an agreement acceptable to the Administrative Agent to waive set‐off
rights; or if the Account Debtor thereon has disputed liability on such Account
or made any claim with respect to any other Account due from such Account
Debtor (but only to the extent of such disputed liability or claim); but in
each such case only if the aggregate amount of all such indebtedness, set‐offs,
recoupments, disputes and claims with respect to all Eligible Accounts exceeds
$2 million, and then only to the extent of such aggregate indebtedness, set‐offs,
recoupments, disputes and claims in excess of $2 million;







                                                                                 22                                                                                 










 








 










            (k)         with respect to
which any Borrower at the time of determination deems such Account as
uncollectible;


            (l)         owed by any state of
the United States or any municipality, or other political subdivision,
department, agency, public corporation, or other instrumentality thereof, and
as to which the Collateral Agent determines that its Lien therein is not or
cannot be perfected; except to the extent that such Account is insured by the
Export‐Import Bank of the United States or secured or payable by a letter
of credit satisfactory to the Administrative Agent in its reasonable
discretion;


            (m)       which represents a
sale on a bill‐and‐hold, guaranteed sale, sale and return, sale on
approval, consignment, or other repurchase or return basis;


            (n)         which is evidenced
by a promissory note or other instrument or by chattel paper;


            (o)        of any one Account
Debtor or group of affiliated Account Debtors that are in excess of (i) 35%, in
the case of Wal-Mart Stores, Inc., its Affiliates and subsidiaries, and
(ii) 20% in the case of all other Account Debtors, of total Eligible
Accounts;


            (p)        which arises out of a
sale not made in the ordinary course of such Borrower’s business except to the
extent that the aggregate amount of such Accounts outstanding does not exceed
$2 million;


            (q)        with respect to which
the goods giving rise to such Account have not been shipped and delivered to,
or have been rejected by, the Account Debtor or the services giving rise to
such Account have not been performed by the applicable Borrower, and, if
applicable, accepted by the Account Debtor, or the Account Debtor revokes its
acceptance of such goods or services, but, in each case, only to the extent of
the portion of such Account applicable to goods or services in question;


            (r)        which arises out of
an enforceable contract or order which, by its terms, validly forbids,
restricts, or makes void or unenforceable the granting of a Lien by such Loan
Party to the Collateral Agent with respect to such Account;


            (s)        which is not subject
to a first priority and perfected security interest in favor of the Collateral
Agent, for the benefit of the Collateral Agent and the Lenders, or which is
subject to any other Lien other than Liens securing the Second Lien
Obligations, the First Priority Obligations and/or Permitted Liens arising by
operation of law;


            (t)         30% of the value of
each Account which is owed to a Newly Obligated Party acquired in a Permitted
Business Acquisition under this Agreement, for which the Administrative Agent
has not been given the opportunity for a reasonable period (which shall not be
required to be longer than thirty (30) days (or, in the case of acquisitions of
less than $50 million, twenty (20) days)) prior to
and/or after the closing of such acquisition to complete such due diligence as
it deems, in the exercise of Reasonable Credit Judgment, to be necessary in the
circumstances; and







                                                                                 23                                                                                 










 








 










            (u)        any Account from the
time it is sold to or financed by a Special Purpose Receivables Subsidiary or
otherwise sold pursuant to a Permitted Receivables Financing or any Account
from the time it is transferred to a third-party financial institution pursuant
to a Permitted Supplier Finance Facility.


If any Account at any time ceases to be an Eligible Account,
then such Account shall promptly be excluded from the calculation of the
Borrowing Base; provided, however, that if any Account
ceases to be an Eligible Account because of the adjustment of or imposition of
new exclusionary criteria pursuant to the succeeding paragraph, the
Administrative Agent will not require exclusion of such Account from the
Borrowing Base until 20 days following the date on which the Administrative
Agent gives notice to the Company of such ineligibility.


The Administrative Agent and the Collateral Agent reserve
the right, at any time and from time to time after the Closing Date, or upon
reasonable request of the Company upon completion and delivery to the Administrative
Agent of field examinations and appraisals in accordance with Section 5.11
(including, without limitation, the Post-Closing Reports), to adjust any of the
exclusionary criteria set forth above and to establish new criteria, in their
Reasonable Credit Judgment (based on an analysis of material facts or events
first occurring, or first discovered by such Agents, in connection with the
preparation and review of the Post-Closing Reports or thereafter), subject,
after any adjustments based on the Post-Closing Reports, to the approval of
Required Lenders in the case of adjustments or new criteria which have the
effect of making more credit available than would have been available based
upon the criteria in effect.


“Eligible Inventory” shall mean all Inventory of the
Borrowers reflected in the most recent Borrowing Base Certificate, except any
Inventory with respect to which any of the exclusionary criteria set forth
below applies (unless the Administrative Agent in its reasonable discretion
elects to include any such Inventory):


            (a)        Inventory
that is not owned by a Borrower;


                        (b)        Inventory
that is not subject to the Collateral Agent’s Liens, or is subject to any other
Lien (other than Permitted Liens arising by operation of law, or the Liens
securing the Second Lien Obligations and the First Priority Obligations); provided 
that (unless such Permitted Liens (A) are junior in priority to the
Collateral Agent’s Liens (other than statutory landlord’s Liens to the extent
provided otherwise by a Requirement of Law) and (B) do not impair directly
or indirectly the ability of the Collateral Agent to realize on or obtain the
full benefit of the Collateral), the Administrative Agent may, in the exercise
of Reasonable Credit Judgment, establish a Reserve against availability with
respect to any Inventory subject to such Permitted Liens in an amount not to
exceed (on an aggregate basis for all Inventory from time to time subject to
such Permitted Liens) (A) in the case of Inventory subject to Liens
described in Section 6.02(e), the greater of (x) an amount equal to
the amount which would have to be paid to such Lien claimant in order to obtain
a release of such Liens, or (y) an amount equal to thirty (30) days’
rent for the properties or facilities on or at which the applicable Inventory
is located and (B) in the case of Inventory subject to Liens described in
Section 6.02(d), the amount of such taxes, fees, assessments or other
charges;









                                                                                 24                                                                                 










 








 








            (c)        Inventory
that consists of packing and shipping materials (other than finished goods
inventory), or advertising or marketing materials (including samples);


            (d)        Inventory that is
unmerchantable, or the sale or other disposition of which would contravene in
any material respect any applicable laws or other governmental rules or regulations,
but only if such contravention would have a material effect on the salability
or value of such Inventory;


            (e)        Inventory that is not
currently either usable or salable in the normal course of the applicable
Borrower’s business, as so identified according to the Company’s accounting
policy;


            (f)        Inventory that is
slow‐moving, obsolete or defective, as so identified according to the
Company’s accounting policy;


            (g)        Inventory that has
been returned to a Borrower or a Subsidiary by a buyer or held for return by a
supplier (and is not held for resale);


            (h)        Inventory that is
subject to any Lien permitted under Section 6.02(p) or (bb) or any
other Inventory financed by letters of credit or bankers’ acceptances for which
the Collateral Agent does not have possession or control of the documents of
title;


            (i)         Inventory
that is not located within the United States or Canada (or is in‐transit
from vendors or suppliers, except that in-transit Inventory will not be deemed
ineligible if (i) in the case of in-transit inventory not located within
the United States or Canada, it has been paid for in advance of shipment and
legal ownership thereof has passed to the applicable Borrower as evidenced by
customary documents of title, and (ii) in the case of in-transit Inventory
located within the United States or Canada, legal ownership thereof has passed
to the applicable Borrower as evidenced by customary documents of title);


            (j)         Inventory that is
(i) stored or located on property that is (A) leased to the Borrower
that owns such Inventory, or (B) owned or leased by a warehouseman that
has contracted with such Borrower to store such Inventory, or (ii) stored
with or otherwise in the possession of a bailee, provided  that such
Inventory shall not be excluded if (1) the applicable Borrower shall have
delivered to the Collateral Agent a Collateral Access Agreement executed by
such lessor or warehouseman or bailee with respect to such property,
(2) the Collateral Agent has given its prior consent thereto, or (3) Reserves
have been established with respect thereto, in an amount (on an aggregate basis
for all Inventory from time to time so located or possessed) not to exceed
(a) in the case of Inventory located in a warehouse or leased facility,
the greater of (x) an amount equal to the amount which would have to be
paid to such claimant in order to obtain a release of any Permitted Lien held
by such claimant, or (y) an amount equal to thirty (30) days’ rent or
storage fee for the warehouses or facilities on or at which the applicable
Inventory is located and (b) in the case of Inventory otherwise in the
possession of a bailee, the amount necessary to complete any work being
performed on such Inventory and/or to obtain a surrender of the Inventory to
the possession of the applicable Borrower or the Collateral Agent, or, in any
such case under this clause (3), such lesser amount as may be approved by
the Collateral Agent;


            (k)        if such Inventory
contains or bears any Proprietary Rights licensed to a Borrower by any third
party, and the Administrative Agent shall not be able to sell or otherwise
dispose of such Inventory pursuant to Article VII  or the terms of
the Collateral Agreement subject to the same rights and obligations as the
applicable Borrower pursuant to the contract with such licensor without
infringing the rights of the licensor of such Proprietary Rights or violating
any contract with such licensor (and without payment
of any royalties other than any royalties due with respect to the sale or
disposition of such Inventory pursuant to the existing license agreement), and,
if the Administrative Agent deems it necessary, such Borrower shall deliver to
the Administrative Agent a consent or sublicense agreement from such licensor
in form and substance reasonably acceptable to the Administrative Agent; and







                                                                                 25                                                                                 










 








 










            (l)         20% of the total
book value of Inventory that is owned by a Newly Obligated Party acquired in a
Permitted Business Acquisition under this Agreement, for which the
Administrative Agent has not been given the opportunity for a reasonable period
(which shall not be required to be longer than thirty (30) days (or, in the
case of acquisitions of less than $50 million, twenty (20) days)) prior to
and/or after the closing of such acquisition to complete such due diligence as
it deems, in the exercise of Reasonable Credit Judgment, to be necessary in the
circumstances.


If any Inventory at any time ceases to be Eligible
Inventory, such Inventory shall promptly be excluded from the calculation of
the Borrowing Base; provided, however, that if any
Inventory ceases to be Eligible Inventory because of the adjustment of or
imposition of new exclusionary criteria pursuant to the succeeding paragraph,
the Agents will not require exclusion of such Inventory from the Borrowing Base
until 20 days following the date on which the Administrative Agent gives notice
to the Company of such ineligibility.


The Administrative Agent and the Collateral Agent reserve
the right, at any time and from time to time after the Closing Date, or upon
reasonable request of the Company upon completion and delivery to the
Administrative Agent of field examinations and appraisals in accordance with
Section 5.11 (including, without limitation, the Post-Closing Reports), to
adjust any of the exclusionary criteria set forth above and to establish new
criteria, in their Reasonable Credit Judgment (based on an analysis of material
facts or events first occurring, or first discovered by such Agents, in
connection with the preparation and review of the Post-Closing Reports or thereafter),
subject, after any adjustments based on the Post-Closing Reports, to the
approval of Required Lenders in the case of adjustments or new criteria which
have the effect of making more credit available than would have been available
based upon the criteria in effect.


“EMU” shall mean the economic and monetary union
in accordance with the Treaty of Rome 1957, as amended by the Single European
Act 1986, the Maastricht Treaty of 1992 and the Amsterdam Treaty of 1998.


“EMU Legislation” shall mean the legislative
measures of the European Council for the introduction of, changeover to or
operation of a single or unified European currency.


“environment” shall mean ambient and indoor air,
surface water and groundwater (including potable water, navigable water and
wetlands), the land surface or subsurface strata, natural resources such as
flora and fauna, the workplace or as otherwise defined in any Environmental
Law.


“Environmental Laws” shall mean all applicable laws
(including common law), rules, regulations, codes, ordinances, orders, decrees
or judgments, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the generation, management, Release or threatened Release of, or
exposure to, any Hazardous Material or to occupational
health and safety matters (to the extent relating to the environment or
Hazardous Materials).







                                                                                 26                                                                                 










 








 










“Equity Interests” of any person shall mean any and
all shares, interests, rights to purchase or otherwise acquire, warrants,
options, participations or other equivalents of or interests in (however
designated) equity or ownership of such person, including any preferred stock,
any limited or general partnership interest and any limited liability company
membership interest, and any securities or other rights or interests
convertible into or exchangeable for any of the foregoing.


“Equity Investors” shall mean one or more investment
funds advised, managed or controlled by Apollo Management V, L.P. Apollo
Management VI, L.P., their Affiliates, and any group in which any such Equity 
Investors are, in the aggregate, a principal member.


“ERISA” shall mean the Employee Retirement Income
Security Act of 1974, as the same may be amended from time to time and any
final regulations promulgated and the rulings issued thereunder.


“ERISA Affiliate” shall mean any trade or business
(whether or not incorporated) that, together with Holdings, the Company or a
Subsidiary, is treated as a single employer under Section 414(b) or
(c) of the Code, or, solely for purposes of Section 302 of ERISA and
Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.


“ERISA Event” shall mean (a) any Reportable
Event or the requirements of
Section 4043(b) of ERISA apply with respect to a Plan;  (b) a determination that any
Plan is in “at risk” status (within the meaning of Section 303 of ERISA);
(c) the filing pursuant to Section 412(c) of the Code or
Section 302(c) of ERISA of an application for a waiver of the minimum
funding standard with respect to any Plan, the failure to make by its due date
a required installment under Section 430(k) of the Code with respect to
any Plan or the failure to make any required contribution to a Multiemployer
Plan; (d) the incurrence by Holdings, the Company, a Subsidiary or any
ERISA Affiliate of any liability under Title IV of ERISA with respect to
the termination of any Plan or Multiemployer Plan; (e) the receipt by
Holdings, the Company, a Subsidiary or any ERISA Affiliate from the PBGC or a
plan administrator of any notice relating to an intention to terminate any Plan
or to appoint a trustee to administer any Plan under Section 4042 of
ERISA; (f) the incurrence by Holdings, the Company, a Subsidiary or any
ERISA Affiliate of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; (g) the receipt by
Holdings, the Company, a Subsidiary or any ERISA Affiliate of any notice, or
the receipt by any Multiemployer Plan from Holdings, the Company, a Subsidiary
or any ERISA Affiliate of any notice, concerning the impending imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of Title IV
of ERISA; or (h) the conditions for imposition
of a lien under Section 303(k) of ERISA shall have been met with respect
to any Plan. 


“Euro” and “EUR” each shall mean the lawful
currency of the Participating Member States introduced in accordance with the EMU
Legislation.


 “Eurocurrency Borrowing” shall mean a Borrowing
comprised of Eurocurrency Loans.









                                                                                 27                                                                                 










 








 








“Eurocurrency Loan” shall
mean any Eurocurrency Revolving Loan.


“Eurocurrency Revolving Facility Borrowing” shall
mean a Borrowing comprised of Eurocurrency Revolving Loans.


“Eurocurrency Revolving Loan” shall mean any
Revolving Loan bearing interest at a rate determined by reference to the
Adjusted LIBO Rate in accordance with the provisions of Article II.


“Event of Default” shall have the meaning assigned to
such term in Section 7.01.


“Excess Cash Flow” shall mean, with respect to the
Company and its Subsidiaries on a consolidated basis for any Applicable Period,
EBITDA of the Company and its Subsidiaries on a consolidated basis for such
Applicable Period, minus, without duplication,


(a)        Debt Service for such Applicable
Period,


(b)        the amount of any voluntary prepayment
permitted hereunder (or, if made prior to the Closing Date, permitted under the
senior secured bank credit facility then applicable to such entity) of term
Indebtedness during such Applicable Period (other than any voluntary prepayment
of the Revolving Loans), so long as the amount of such prepayment is not
already reflected in Debt Service,


(c)        (i) Capital Expenditures by the
Company and the Subsidiaries on a consolidated basis during such Applicable
Period that are paid in cash (to the extent permitted under this Agreement) and
(ii) the aggregate consideration paid in cash during the Applicable Period
in respect of Permitted Business Acquisitions and other Investments permitted
hereunder less  any amounts received in respect thereof as a return of
capital,


(d)       Capital Expenditures that the Company or
any Subsidiary shall, during such Applicable Period, become obligated to make
but that are not made during such Applicable Period (to the extent permitted
under this Agreement or if prior to the Closing Date, the senior secured bank
credit facility then applicable to such entity); provided, that
(i) Holdings shall deliver a certificate to the Administrative Agent not
later than 90 days after the end of such Applicable Period, signed by a
Responsible Officer of the Company and certifying that such Capital
Expenditures and the delivery of the related equipment will be made in the
following Applicable Period, and (ii) any amount so deducted shall not be
deducted again in a subsequent Applicable Period,


(e)        Taxes paid in cash by Holdings and its
Subsidiaries on a consolidated basis during such Applicable Period or that will
be paid within six months after the close of such Applicable Period; provided,
that with respect to any such amounts to be paid after the close of such
Applicable Period, (i) any amount so deducted shall not be deducted again
in a subsequent Applicable Period, and (ii) appropriate reserves shall
have been established in accordance with GAAP,


(f)        an amount equal to any increase in
Working Capital of the Company and its Subsidiaries for such Applicable Period,


 







                                                                                 28                                                                                 










 








 








(g)        cash
expenditures made in respect of Swap Agreements during such Applicable Period,
to the extent not reflected in the computation of EBITDA or Interest Expense,


(h)        permitted dividends or distributions or
repurchases of its Equity Interests paid in cash by the Company during such
Applicable Period and permitted dividends paid by any Subsidiary to any person
other than Holdings, the Company or any of the Subsidiaries during such
Applicable Period, in each case in accordance with Section 6.06 hereof (or
the corresponding provision of the senior secured bank credit facility then
applicable to such entity) (other than Section 6.06(e) or the
corresponding provision of the senior secured bank credit facility then
applicable to such entity),


(i)         amounts paid in cash during such
Applicable Period on account of (A) items that were accounted for as
noncash reductions of Net Income in determining Consolidated Net Income or as
noncash reductions of Consolidated Net Income in determining EBITDA of the
Company and its Subsidiaries in a prior Applicable Period and (B) reserves
or accruals established in purchase accounting, 


(j)         to the extent not deducted in the
computation of Net Proceeds in respect of any asset disposition or condemnation
giving rise thereto, the amount of any mandatory prepayment of Indebtedness
(other than Indebtedness created hereunder or under any other Loan Document),
together with any interest, premium or penalties required to be paid (and
actually paid) in connection therewith,


(k)        the aggregate amount of items that were
added to or not deducted from Net Income in calculating Consolidated Net Income
or were added to or not deducted from Consolidated Net Income in calculating
EBITDA to the extent such items represented a cash payment (which had not
reduced Excess Cash Flow upon the accrual thereof in a prior Applicable Period),
or an accrual for a cash payment, by the Company and its Subsidiaries or did
not represent cash received by the Company and its Subsidiaries, in each case
on a consolidated basis during such Applicable Period, and


(l)         amounts paid in cash during such Applicable
Period in respect of obligations under Sections 2.9 and 5.4 of the Acquisition
Agreement,


plus,
without duplication,


(i)         an amount equal to any decrease in
Working Capital for such Applicable Period,


(ii)        all amounts referred to in
clauses (b), (c), (d) and (h) above to the extent funded with
the proceeds of the issuance or the incurrence of Indebtedness (including
Capital Lease Obligations and purchase money Indebtedness, but excluding,
solely as relating to Capital Expenditures, proceeds of Revolving Loans (or, if
prior to the Closing Date, revolving loans pursuant to the senior secured bank
credit facility then applicable to such entity)), the sale or issuance of any
Equity Interests (including any capital contributions) and any loss, damage,
destruction or condemnation of, or any sale, transfer or other disposition
(including any sale and leaseback of assets and any mortgage or lease 







                                                                                 29                                                                                 










 








 








of Real Property) to any person of any asset or assets,
in each case to the extent there is a corresponding deduction from Excess Cash
Flow above,


(iii)       to the extent any permitted Capital
Expenditures referred to in clause (d) above and the delivery of the
related equipment do not occur in the following Applicable Period of the
Company specified in the certificate of the Company provided pursuant to
clause (d) above, the amount of such Capital Expenditures that were not so
made in such following Applicable Period,


(iv)       cash payments received in respect of
Swap Agreements during such Applicable Period to the extent (i) not
included in the computation of EBITDA or (ii) such payments do not reduce
Cash Interest Expense,


(v)        any extraordinary or nonrecurring gain
realized in cash during such Applicable Period,


(vi)       to the extent deducted in the
computation of EBITDA, cash interest income, and


(vii)      the aggregate amount
of items that were deducted from or not added to Net Income in connection with
calculating Consolidated Net Income or were deducted from or not added to
Consolidated Net Income in calculating EBITDA to the extent either
(i) such items represented cash received by the Company or any Subsidiary
or (ii) such items do not represent cash paid by the Company or any
Subsidiary, in each case on a consolidated basis during such Applicable Period.



For the avoidance of doubt, the amount resulting
from calculation of Excess Cash Flow prior to the Amendment Effective Date is
intended to be the same amount as would be calculated under the Unamended
Credit Agreement.


“Excess Cash Flow Interim
Period” shall mean, (x) during any Excess Cash Flow Period, any one-,
two-, or three-quarter period (a) commencing on the later of (i) the
end of the immediately preceding Excess Cash Flow Period and (ii) if
applicable, the end of any prior Excess Cash Flow Interim Period occurring
during the same Excess Cash Flow Period and (b) ending on the last day of
the most recently ended fiscal quarter (other than the last day of the Fiscal
Year) during such Excess Cash Flow Period for which financial statements
are available and (y) during the period from the Original Agreement Date
until the beginning of the first Excess Cash Flow Period, any period commencing
on the Original Agreement Date and ending on the last day of the most recently
ended fiscal quarter for which financial statements are available.


“Excess Cash Flow Period” shall mean (i) each fiscal
year of the Company, commencing with the first full fiscal year of the Company
following the Closing Date, and (ii) the period from January 1, 2007
through the day prior to the initial fiscal year referred to in
clause (i).


“Exchange Act” shall mean the Securities Exchange Act
of 1934, as amended.


“Excluded Indebtedness” shall mean all Indebtedness
permitted to be incurred under Section 6.01.









                                                                                 30                                                                                 










 








 








“Excluded Taxes” shall mean,
with respect to the Administrative Agent, any Lender, any Issuing Bank or any
other recipient of any payment to be made by or on account of any obligation of
any Borrower hereunder, (a) any income taxes imposed on (or measured by)
its net income (or franchise taxes imposed in lieu of net income taxes) by the
United States of America (or any state or locality thereof) or the jurisdiction
under the laws of which such recipient is organized or in which its principal
office is located or, in the case of any Lender, in which its applicable Lending
Office is located or any other jurisdiction as a result of such recipient
engaging in a trade or business in such jurisdiction for tax purposes,
(b) any branch profits tax or any similar tax that is imposed by any
jurisdiction described in clause (a) above, (c) in the case of a
Lender making a Loan to any Borrower, any tax (including any backup withholding
tax) imposed by the United States (or the jurisdiction under the laws of which
such Lender is organized or in which its principal office is located or in
which its applicable Lending Office is located or any other jurisdiction as a
result of such Lender engaging in a trade or business or having a taxable
presence in such jurisdiction for tax purposes) that (x) is in effect and
would apply to amounts payable hereunder to such Lender at the time such Lender
becomes a party to such Loan to any Borrower (or designates a new Lending
Office) except to the extent that the assignor to such Lender in the case of an
assignment or the Lender in the case of a designation of a new Lending Office
(for the absence of doubt, other than the Lending Office at the time such
Lender becomes a party to such Loan) was entitled, at the time of such
assignment or designation of a new Lending Office, respectively, to receive additional
amounts from a Loan Party with respect to any withholding tax pursuant to
Section 2.17(a) or Section 2.17(c) or (y) is attributable to such
Lender’s failure to comply with Section 2.17(e) or (f) with respect
to such Loan, (d) any United States Federal withholding Taxes that are
imposed on a Lender as a result of such Lender’s failure to comply with the
requirements under FATCA (including, without limitation, the requirements of
Sections 1471(b) and 1472(b) of the Code) or as a result of a Lender’s election
under Section 1471(b)(3) of the Code, and (e) any taxes that are imposed
as a result of any event occurring after the Lender becomes a Lender (other
than a Change in Law), and in the case of clause (a), (b), (c), (d) and
(r), together with any and all interest and penalties related thereto. 


“Existing Bankers’ Acceptance” shall mean each of the
bankers’ acceptances set forth on Schedule 1.01(f). 


“Existing Credit Agreement” shall have the meaning
set forth in the recitals hereto.


“Existing Lender” shall mean each person who is, as
of the date hereof and immediately prior to giving effect to the Amendment, a
“Lender” under, and as defined in, the Unamended Credit Agreement, but
excluding therefrom any “Defaulting Lenders” under, and as defined in, the
Unamended Credit Agreement.


“Existing Letter of Credit” shall mean each of the
letters of credit set forth on Schedule 1.01(g). 


“Facility” shall mean the Revolving Facility.


“FATCA” shall mean Sections 1471 through 1474 of the
Code as of the date hereof (or any amended or successor provisions that are
substantively similar) and any current or future regulations thereunder or
official interpretation thereof.









                                                                                 31                                                                                 










 








 








“Federal Funds Effective Rate”
shall mean, for any day, the rate per annum equal to the weighted average
of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day; provided  that (a) if such day is not a
Business Day, the Federal Funds Effective Rate for such day shall be such rate
on such transactions on the next preceding Business Day as so published on the
next succeeding Business Day, and (b) if no such rate is so published on
such next succeeding Business Day, the Federal Funds Effective Rate for such
day shall be the average rate (rounded upward, if necessary, to a whole
multiple of 1/100 of 1%) charged to Bank of America on such day on such
transactions as determined by the Administrative Agent.


“Fee Letter” shall mean (i) that certain Fee Letter
dated March 2, 2007 by and among the Company, Bank of America, N.A., Banc of
America Securities LLC, Citigroup Global Markets Inc., Credit Suisse, Credit
Suisse Securities (USA) LLC, Deutsche Bank AG New York Branch, Deutsche Bank
Securities Inc., Goldman Sachs Credit Partners L.P., JPMorgan Chase Bank, N.A.,
J.P. Morgan Securities Inc. and Lehman Brothers Inc., and (ii) that certain
Engagement Letter dated June 24, 2011 by and among Holdings, the Company, Bank
of America, N.A. and Merrill Lynch, Pierce, Fenner & Smith Incorporated.


“Fees” shall mean the Commitment Fees, the L/C – BA
Participation Fees, the Issuing Bank Fees and the Administrative Agent Fees.


“Financial Officer” of any person shall mean the
Chief Financial Officer, principal accounting officer, Treasurer, Assistant
Treasurer or Controller of such person.


“First Lien Debt” at any date shall mean (i) the
aggregate principal amount of Consolidated Debt of the Company and its
Subsidiaries outstanding at such date that consists of, without duplication,
Indebtedness that in each case is then secured by first priority Liens on
property or assets of the Company and its Subsidiaries (other than property or
assets held in a defeasance or similar trust or arrangement for the benefit of
the Indebtedness secured thereby), less (ii) without duplication, the
Unrestricted Cash and Permitted Investments of the Company and its Subsidiaries
on such date.


“First Priority Fixed Rate 2015 Notes” shall mean the
81⁄4% First Priority Senior Secured Fixed Rate Notes due 2015, issued by
the Company, via Berry Plastics Escrow LLC and Berry Plastics Escrow
Corporation, pursuant to the First Priority Fixed Rate 2015 Notes Indenture and
any notes issued in exchange for, and as contemplated by, the First Priority
Fixed Rate 2015 Notes and the related registration rights agreement with
substantially identical terms as the First Priority Fixed Rate 2015 Notes.


“First Priority Floating Rate 2015 Notes” shall mean
the First Priority Senior Secured Floating Rate Notes due 2015 issued by
the Company pursuant to the First Priority Floating Rate 2015 Notes Indenture
and any notes issued in exchange for, and as contemplated by, the First
Priority Floating Rate 2015 Notes and the related registration rights agreement
with substantially identical terms as the First Priority Floating Rate 2015
Notes.









                                                                                 32                                                                                 










 








 








“First Priority Note Documents”
shall mean, collectively, the First Priority Notes, the First Priority Notes
Indentures and the First Priority Security Documents.


“First Priority Fixed Rate 2015 Notes Indenture”
shall mean the Indenture dated as of November 12,
2009 among, Berry Plastics Escrow LLC and Berry Plastics Escrow (later assumed
by the Company) and the trustee named therein from time to time, as in effect
on the Amendment Effective Date and as amended, restated, supplemented or
otherwise modified from time to time in accordance with the requirements
thereof and of this Agreement.


“First Priority Floating Rate 2015 Notes Indenture”
shall mean the Indenture dated as of April 21,
2008 among, the Company, and certain of its subsidiaries party thereto and the
trustee named therein from time to time, as in effect on the Amendment
Effective Date and as amended, restated, supplemented or otherwise modified
from time to time in accordance with the requirements thereof and of this
Agreement.


“First Priority Notes” shall mean the First Priority
Fixed Rate 2015 Notes and the First Priority Floating Rate 2015 Notes.


“First Priority Notes Indentures” shall mean,
collectively, the First Priority Fixed Rate 2015 Notes Indenture and the First
Priority Floating Rate 2015 Notes Indenture.


“First Priority Obligations” shall mean,
collectively, the obligations of the respective borrowers and guarantors under
the First Priority Note Documents and the Term Loan Obligations, in all cases
subject to the provisions of the Senior Lender Intercreditor Agreement.


“First Priority Security Documents” shall mean the
“Security Documents” as defined in the First Priority Notes Indentures.


“Fiscal Period” shall mean Berry’s fiscal calendar
month.


“Foreign Pledge Agreement” shall mean a pledge
agreement with respect to the Pledged Collateral that constitutes Equity
Interests of a “first tier” Foreign Subsidiary, in form and substance
reasonably satisfactory to the Collateral Agent; provided, that in no
event shall more than 65% of the issued and outstanding Equity Interests of
such Foreign Subsidiary be pledged to secure Obligations of the Borrowers.


“Foreign Subsidiary” shall mean (a) any Subsidiary
that is incorporated or organized under the laws of any jurisdiction other than
the United States of America, any State thereof or the District of Columbia,
and (b) any Subsidiary of any Subsidiary described in the foregoing clause (a).


“Fronting Exposure” shall mean, at any time there is
a Defaulting Lender, (a) with respect to the applicable Issuing Bank, such
Defaulting Lender’s Pro Rata Share of the outstanding Revolving L/C – BA
Exposure other than Revolving L/C – BA Exposure as to which such Defaulting
Lender’s participation obligation has been reallocated to other Lenders or Cash
Collateralized in accordance with the terms hereof, and (b) with respect
to the Swingline Lender, such Defaulting Lender’s Pro Rata Share of Swingline
Loans other than Swingline Loans as to which such
Defaulting Lender’s participation obligation has been reallocated to other
Lenders or Cash Collateralized in accordance with the terms hereof.







                                                                                 33                                                                                 










 








 










“Fund Affiliates” shall mean (i) each Affiliate
of any Funds, (ii) any individual who is a partner or employee of Apollo
Management, L.P., Apollo Management IV, L.P. or Apollo Management V, L.P.,
Apollo Management VI, L.P., and (iii) Graham BPC Investment Holdings, LP.


“Fund I” shall mean Apollo Management V, L.P. and
other affiliated co‐investment partnerships.


“Fund II” shall mean affiliates of Apollo Management
VI, L.P. and other affiliated co-investment partnerships and Graham Partners
Inc.


“Fund Termination Fee” shall have the meaning specified
in Section 6.07(b)(xiv).


“Funds” shall mean Fund I and Fund II, collectively.


“GAAP” shall mean generally accepted accounting
principles in effect from time to time in the United States, applied on a
consistent basis, subject to the provisions of Section 1.02; provided 
that any reference to the application of GAAP in Sections 3.13(b), 3.20, 5.03,
5.07 and 6.02(e) to a Foreign Subsidiary (and not as a consolidated Subsidiary
of the Company) shall mean generally accepted accounting principles in effect
from time to time in the jurisdiction of organization of such Foreign
Subsidiary. 


“Governmental Authority” shall mean any federal,
state, local or foreign court or governmental agency, authority,
instrumentality or regulatory or legislative body.


“Guarantee” of or by any person (the “guarantor”)
shall mean (a) any obligation, contingent or otherwise, of the guarantor
guaranteeing or having the economic effect of guaranteeing any Indebtedness or
other obligation of any other person (the “primary obligor”) in any
manner, whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (i) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Indebtedness or other
obligation (whether arising by virtue of partnership arrangements, by agreement
to keep well, to purchase assets, goods, securities or services, to take‐or‐pay
or otherwise) or to purchase (or to advance or supply funds for the purchase
of) any security for the payment of such Indebtedness or other obligation,
(ii) to purchase or lease property, securities or services for the purpose
of assuring the owner of such Indebtedness or other obligation of the payment
thereof, (iii) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness or other obligation,
(iv) entered into for the purpose of assuring in any other manner the
holders of such Indebtedness or other obligation of the payment thereof or to
protect such holders against loss in respect thereof (in whole or in part) or
(v) as an account party in respect of any letter of credit, bank
guarantee, bankers’ acceptance or other letter of guaranty issued to support such
Indebtedness or other obligation, or (b) any Lien on any assets of the
guarantor securing any Indebtedness (or any existing right, contingent or
otherwise, of the holder of Indebtedness to be secured by such a Lien) of any
other person, whether or not such Indebtedness or other obligation is assumed
by the guarantor; provided, however, the term
“Guarantee” shall not include endorsements of
instruments for deposit or collection in the ordinary course of business or
customary and reasonable indemnity obligations in effect on the Closing Date or
entered into in connection with any acquisition or disposition of assets
permitted by this Agreement (other than such obligations with respect to
Indebtedness).  The amount of any Guarantee shall be deemed to be an amount
equal to the stated or determinable amount of the Indebtedness in respect of
which such Guarantee is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such person is
required to perform thereunder) as determined by such person in good faith. “Guarantee”,
if used as a verb, shall have a meaning correlative to the foregoing.







                                                                                 34                                                                                 










 








 










“guarantor” shall have the meaning assigned to such
term in the definition of the term “Guarantee.”


“Hazardous Materials” shall mean all pollutants,
contaminants, wastes, chemicals, materials, substances and constituents,
including, without limitation, explosive or radioactive substances or petroleum
or petroleum distillates, asbestos or asbestos containing materials, polychlorinated
biphenyls or radon gas, of any nature subject to regulation or which can give
rise to liability under any Environmental Law.


“Hedging Obligations” shall mean, with respect to any
person, the obligations of such person under (i) currency exchange,
interest rate or commodity swap agreements, currency exchange, interest rate or
commodity cap agreements and currency exchange, interest rate or commodity
collar agreements, and (ii) other agreements or arrangements designed to
protect such person against fluctuations in currency exchange, interest rates
or commodity prices.


“Holdings” shall have the meaning assigned to such
term in the introductory paragraph of this Agreement.


“Immaterial Subsidiary” shall mean any Subsidiary
that is not a Borrower and that, as of the last day of the fiscal quarter of
the Company most recently ended, (a) did not have assets with a value in
excess of 5.0% of the Consolidated Total Assets or revenues representing in
excess of 5.0% of total revenues of the Company and the Subsidiaries on a
consolidated basis as of such date and (b) when taken together with all
other Immaterial Subsidiaries as of such date, did not have assets with a value
in excess of 10.0% of the Consolidated Total Assets or revenues representing in
excess of 10.0% of total revenues of the Company and the Subsidiaries on a
consolidated basis as of such date.  Each Immaterial Subsidiary as of the
Amendment Effective Date shall be set forth in Schedule 1.01(d). 


“Increased Amount Date” shall have the meaning assigned
to such term in Section 2.21(a).


“Incremental Amount” shall mean, at any time, the
excess, if any, of (a) $250 million over  (b) the
aggregate amount of all Incremental Revolving Facility Commitments established
prior to such time pursuant to Section 2.21.


“Incremental Assumption Agreement” shall mean an
Incremental Assumption Agreement in form and substance reasonably satisfactory
to the Administrative Agent, among the Borrowers, the Administrative Agent and
one or more Incremental Revolving Lenders.









                                                                                 35                                                                                 










 








 








“Incremental Revolving Facility
Commitment” shall mean any increased or incremental Revolving Facility
Commitment provided pursuant to Section 2.21.


“Incremental Revolving Lender” shall mean a Lender
with a Revolving Facility Commitment or an outstanding Revolving Loan as a
result of an Incremental Revolving Facility Commitment.


“Indebtedness” of any person shall mean, without
duplication, (a) all obligations of such person for borrowed money,
(b) all obligations of such person evidenced by bonds, debentures, notes
or similar instruments, (c) all obligations of such person under
conditional sale or other title retention agreements relating to property or
assets purchased by such person, (d) all obligations of such person issued
or assumed as the deferred purchase price of property or services, to the
extent that the same would be required to be shown as a long term liability on
a balance sheet prepared in accordance with GAAP, (e) all Capital Lease
Obligations of such person, (f) all net payments that such person would
have to make in the event of an early termination, on the date Indebtedness of
such person is being determined, in respect of outstanding Swap Agreements,
(g) the principal component of all obligations, contingent or otherwise,
of such person as an account party in respect of letters of credit,
(h) the principal component of all obligations of such person in respect
of bankers’ acceptances, (i) all Guarantees by such person of Indebtedness
described in clauses (a) to (h) above) and (j) the amount of all
obligations of such person with respect to the redemption, repayment or other
repurchase of any Disqualified Stock (excluding accrued dividends that have not
increased the liquidation preference of such Disqualified Stock); provided,
that Indebtedness shall not include (A) trade payables, accrued expenses
and intercompany liabilities arising in the ordinary course of business,
(B) prepaid or deferred revenue arising in the ordinary course of
business, (C) purchase price holdbacks arising in the ordinary course of
business in respect of a portion of the purchase prices of an asset to satisfy
unperformed obligations of the seller of such asset, (D) earn-out
obligations until such obligations become a liability on the balance sheet of
such person in accordance with GAAP, or (E) obligations under
Section 2.9 and 5.4 of the Acquisition Agreement. The Indebtedness of any
person shall include the Indebtedness of any partnership in which such person
is a general partner, other than to the extent that the instrument or agreement
evidencing such Indebtedness expressly limits the liability of such person in
respect thereof.  To the extent not otherwise included, Indebtedness shall
include the amount of any Receivables Net Investment.


“Indemnified Taxes” shall mean all Taxes other than
Excluded Taxes. 


“Indemnitee” shall have the meaning assigned to such
term in Section 9.05(b).


“Ineligible Institution” shall mean the persons
identified in writing to the Administrative Agent by the Company on the Closing
Date, and as may be identified in writing to the Administrative Agent by the
Company from time to time thereafter with the consent of the Administrative
Agent (not to be unreasonably withheld or delayed), by delivery of a notice
thereof to the Administrative Agent setting forth such person or persons (or
the person or persons previously identified to the Administrative Agent that
are to be no longer considered “Ineligible Institutions”).


“Information” shall have the meaning assigned to such
term in Section 3.14(a).









                                                                                 36                                                                                 










 








 








“Information Memorandum”
shall mean the Confidential Information Memorandum dated March 13, 2007, as
modified or supplemented prior to the Closing Date.


“Initial Pro Forma Adjustment” shall mean an amount
equal to $2.75 million for each quarterly period ending March 2006 and June
2006, $5.876 million for the quarterly period ending September 2006, and $3.125
million for the quarterly period ending December 2006.


“Intellectual Property Rights” shall have the meaning
assigned to such term in Section 3.23.


“Intercreditor Agreement” shall mean the Second
Amended and Restated Intercreditor Agreement, dated as of February 5, 2008, by
and among Credit Suisse and Bank of America, as first lien agents, Wells Fargo
Bank, N.A., as trustee, Holdings, the Company and the Subsidiary Loan Parties
party thereto or that shall become party thereto, as in effect on the Amendment
Effective Date and each Other First Priority Lien Obligations Collateral Agent
(as defined therein) from time to time party thereto.


“Intercreditor Agreements” shall mean, collectively,
the Intercreditor Agreement, Senior Fixed Collateral Intercreditor Agreement,
and Senior Lender Intercreditor Agreement.


“Intercompany Accounts” shall mean all assets and
liabilities, however arising, which are due to any Loan Party from, which are
due from any Loan Party to, or which otherwise arise from any transaction by
any Loan Party with, any Affiliate of such Loan Party.


“Interest Election Request” shall mean a request by a
Borrower to convert or continue a Revolving Facility Borrowing in accordance
with Section 2.07.


“Interest Expense” shall mean, with respect to any
person for any period, the sum of (a) gross interest expense of such
person for such period on a consolidated basis, including (i) the
amortization of debt discounts, (ii) the amortization of all fees
(including fees with respect to Swap Agreements) payable in connection with the
incurrence of Indebtedness to the extent included in interest expense,
(iii) the portion of any payments or accruals with respect to Capital
Lease Obligations allocable to interest expense and (iv) net payments and
receipts (if any) pursuant to interest rate Hedging Obligations,
(b) capitalized interest of such person, and (c) commissions,
discounts, yield and other fees and charges incurred in connection with any
Permitted Receivables Financing which are payable to any person other than the
Company or a Subsidiary Loan Party.  For purposes of the foregoing, gross
interest expense shall be determined after giving effect to any net payments
made or received and costs incurred by the Company and the Subsidiaries with
respect to Swap Agreements.


“Interest Payment Date” shall mean, (a) with
respect to any Eurocurrency Loan, the last day of each Interest Period
applicable to the Borrowing of which such Loan is a part and, in the case of a
Eurocurrency Borrowing with an Interest Period of more than three months’
duration, each day that would have been an Interest Payment Date had successive
Interest Periods of three months’ duration been applicable to such Borrowing
and, in addition, the date of any refinancing or conversion of such Borrowing
with or to a Borrowing of a different Type, (b) with respect to any ABR
Loan, the last Business Day of each calendar quarter and (c) with respect
to any Swingline Loan or Agent Advance, the last Business Day of each calendar
month and on the Revolving Facility Maturity Date or,
if earlier, on the date on which the Revolving Facility Commitments of all the
Lenders shall be terminated as provided herein.







                                                                                 37                                                                                 










 








 










“Interest Period” shall mean, as to any Eurocurrency
Borrowing, the period commencing on the date of such Borrowing or on the last
day of the immediately preceding Interest Period applicable to such Borrowing,
as applicable, and ending on the numerically corresponding day (or, if there is
no numerically corresponding day, on the last day) in the calendar month that
is 1, 2, 3 or 6 months thereafter (or 9 or 12 months, if at the time of the
relevant Borrowing, all Lenders make interest periods of such length
available), as the Borrowers may elect, or the date any Eurocurrency Borrowing
is converted to an ABR Borrowing in accordance with Section 2.07 or repaid
or prepaid in accordance with Section 2.09, 2.10 or 2.11; provided,
however, that if any Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless such next succeeding Business Day would fall in the next
calendar month, in which case such Interest Period shall end on the next
preceding Business Day.  Interest shall accrue from and including the first day
of an Interest Period to but excluding the last day of such Interest Period.


“Inventory” shall mean, with respect to a person, all
of such person’s now owned and hereafter acquired inventory, as defined in the
UCC, goods, and merchandise, wherever located, in each case to be furnished
under any contract of service or held for sale or lease, all returned goods,
raw materials, work‐in‐process, finished goods (including embedded
software), other materials, and supplies of any kind, nature, or description
which are used or consumed in such person’s business or used in connection with
the packing, shipping, advertising, selling, or finishing of such goods,
merchandise, and other property, and all documents of title or other documents
representing them.


“Investment” shall have the meaning assigned to such
term in Section 6.04.


“Issuing Bank” shall mean (i) Bank of America, (ii)
Credit Suisse, (iii) Deutsche Bank AG New York Branch (solely with respect to
the Letters of Credit issued by Deutsche Bank AG New York Branch prior to the
Amendment Effective Date), and (iv) each other Issuing Bank designated pursuant
to Section 2.05(k), in each case in its capacity as an issuer of Letters
of Credit hereunder, and its successors in such capacity as provided in
Section 2.05(i).  An Issuing Bank may, in its discretion, arrange for one
or more Letters of Credit to be issued by Affiliates of such Issuing Bank, in
which case the term “Issuing Bank” shall include any such Affiliate with
respect to Letters of Credit issued by such Affiliate.


“Issuing Bank Fees” shall have the meaning assigned
to such term in Section 2.12(d).


“Joint Bookrunners” shall mean Merrill Lynch, Pierce,
Fenner & Smith Inc., Barclays Capital, the investment banking division of
Barclays Bank PLC, and Wells Fargo Capital Finance, LLC, in their capacities as
joint bookrunners.


“Joint Lead Arrangers” shall mean Merrill Lynch,
Pierce, Fenner & Smith Inc., Wells Fargo Capital Finance, LLC, Barclays
Capital, the investment banking division of Barclays Bank PLC and Citigroup
Global Markets Inc., in their capacities as joint lead arrangers.









                                                                                 38                                                                                 










 








 








“Judgment Currency” shall
have the meaning assigned to such term in Section 9.19.


“Junior Financing” shall have the meaning assigned to
such term in Section 6.09(b)(i).


“L/C – BA Disbursement” shall mean (i) a payment
or disbursement made by an Issuing Bank pursuant to a Letter of Credit (other
than an Acceptance Credit) or (ii) a payment of a Bankers’ Acceptance upon
presentation.


“L/C – BA Participation Fee” shall have the meaning
assigned such term in Section 2.12(d).


 “Lender” shall mean each financial institution
listed on Schedule 2.01, as well as any person that becomes a
“Lender” hereunder pursuant to Section 9.04.  For the avoidance of doubt,
the term “Lender” includes the Swingline Lender and, with respect to any Agent
Advances, the Administrative Agent.


“Lending Office” shall mean, as to any Lender, the
applicable branch, office or Affiliate of such Lender designated by such Lender
to make Loans.


“Letter of Credit” shall mean any letter of credit
and any bank guarantee issued pursuant to Section 2.05, including any
Acceptance Credit and any Alternate Currency Letter of Credit.  Each Existing
Letter of Credit shall be deemed to constitute a Letter of Credit issued
hereunder on the Closing Date for all purposes of the Loan Documents.


“Letter of Credit Commitment” shall mean, with
respect to each Issuing Bank, the commitment of such Issuing Bank to issue
Letters of Credit pursuant to Section 2.05.   


“Letter of Credit Sublimit” shall mean the aggregate
Letter of Credit Commitments of the Issuing Banks, in an amount not to exceed
$130 million (or the equivalent thereof in an Alternate Currency).


“LIBO Rate” shall mean, with respect to any
Eurocurrency Borrowing for any Interest Period, the rate per annum equal
to the British Bankers Association LIBOR Rate (“BBA LIBOR”), as
published by Reuters (or other commercially available source providing quotations
of BBA LIBOR as designated by the Administrative Agent from time to time) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, for Dollar deposits (for delivery on the
first day of such Interest Period) with a term equivalent to such Interest
Period; provided, that if such rate is not available at such time for
any reason, then the “LIBO Rate” for such Interest Period shall be the rate per
annum determined by the Administrative Agent to be the rate at which
deposits in Dollars for delivery on the first day of such Interest Period in
same day funds in the approximate amount of the Eurocurrency Loan being made,
continued or converted by Bank of America and with a term equivalent to such
Interest Period would be offered by Bank of America’s London Branch to major
banks in the London interbank eurodollar market at their request at
approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.









                                                                                 39                                                                                 










 








 








“Lien” shall mean, with
respect to any asset, (a) any mortgage, deed of trust, lien,
hypothecation, pledge, charge, security interest or similar encumbrance in or
on such asset and (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset, provided, that in no event shall an
operating lease or an agreement to sell be deemed to constitute a Lien.


“Loan Account” shall mean the loan account of the
Borrowers, which account shall be maintained by the Administrative Agent.


“Loan Documents” shall mean this Agreement, the
Letters of Credit, the Security Documents, the Intercreditor Agreement, the Senior
Lender Intercreditor Agreement and any Note issued under Section 2.09(e),
and solely for the purposes of Sections 4.02 and 7.01 hereof, the Fee Letter.


“Loan Parties” shall mean Holdings, the Borrowers and
the Subsidiary Loan Parties.


“Loans” shall mean the Revolving Loans, the Swingline
Loans and the Agent Advances.


“Local Time” shall mean New York City time.


“Management Group” shall mean the group consisting of
the directors, executive officers and other management personnel of the
Company, Holdings and their Subsidiaries, as the case may be, on the Closing
Date together with (a) any new directors whose election by such boards of
directors or whose nomination for election by the shareholders of the Company
or Holdings, as the case may be, was approved by a vote of a majority of the
directors of the Company or Holdings, as the case may be, then still in office
who were either directors on the Closing Date or whose election or nomination
was previously so approved and (b) executive officers and other management
personnel of the Company or Holdings and their Subsidiaries, as the case may
be, hired at a time when the directors on the Closing Date together with the
directors so approved constituted a majority of the directors of the Company or
Holdings, as the case may be.


“Margin Stock” shall have the meaning assigned to
such term in Regulation U.


“Material Adverse Effect” shall mean a material
adverse effect on the business, property, operations or condition of the
Company and its Subsidiaries, taken as a whole, or the validity or
enforceability of any of the material Loan Documents or the rights and remedies
of the Administrative Agent and the Lenders thereunder.


“Material Indebtedness” shall mean Indebtedness
(other than Loans and Letters of Credit) of any one or more of the Company or
any Subsidiary in an aggregate principal amount exceeding $35 million.


“Material Subsidiary” shall mean any Subsidiary other
than an Immaterial Subsidiary.









                                                                                 40                                                                                 










 








 








“Maximum Rate” shall have
the meaning assigned to such term in Section 9.09. 


“Merger Agreement” shall mean that certain Agreement
and Plan of Merger and Corporate Reorganization among Covalence, Holdings and
Berry Holdings dated March 9, 2007.


“Merger Documents” shall mean the collective
reference to the Merger Agreement, all material exhibits and schedules thereto
and all agreements expressly contemplated thereby.


“Moody’s” shall mean Moody’s Investors Service, Inc.


“Mortgaged Properties” shall mean the Real Properties
owned in fee by the Loan Parties that are set forth on Schedule 1.01(c) 
and each additional Real Property encumbered by a Mortgage pursuant to
Section 5.10.


“Mortgages” shall mean the mortgages, trust deeds,
deeds of trust, deeds to secure debt, assignments of leases and rents, and
other security documents delivered with respect to Mortgaged Properties, each
in form and substance reasonably satisfactory to the Administrative Agent and
the Company, as amended, supplemented or otherwise modified from time to time. 
For the avoidance of doubt, Mortgages may include mortgages delivered under the
Existing Credit Agreement to the extent amended to be in a form otherwise
satisfactory to the Administrative Agent.


“Multiemployer Plan” shall mean a multiemployer plan
as defined in Section 4001(a)(3) of ERISA to which the Company, Holdings
or any Subsidiary or any ERISA Affiliate (other than one considered an ERISA
Affiliate only pursuant to subsection (m) or (o) of Code
Section 414) is making or accruing an obligation to make contributions, or
has within any of the preceding six plan years made or accrued an obligation to
make contributions.


“Net Amount of Eligible Accounts” shall mean, at any
time, the gross amount of Eligible Accounts less sales, excise, or similar
taxes, and less returns, discounts, claims, credits, and allowances of any
nature at any time issued, owing, granted, outstanding, available, or claimed
(in each case without duplication, whether of the exclusionary criteria set
forth in the definition of Eligible Accounts, of any Reserve, or otherwise).


“Net Income” shall mean, with respect to any person,
the net income (loss) of such person, determined in accordance with GAAP and
before any reduction in respect of preferred stock dividends.


“Net Proceeds” shall mean:


(a)        100% of the cash
proceeds actually received by the Company or any Subsidiary Loan Party
(including any cash payments received by way of deferred payment of principal
pursuant to a note or installment receivable or purchase price adjustment
receivable or otherwise and including casualty insurance settlements and
condemnation awards, but only as and when received) from any Asset Sale (other
than those pursuant to Section 6.05(a), (b), (c), (d) (except as
contemplated by Section 6.03(b)), (e), (f), (h), (i) or (j)), net of
(i) attorneys’ fees, accountants’ fees, investment banking fees, survey
costs, title insurance premiums, and related search and recording charges,
transfer taxes, deed or mortgage recording taxes, required debt payments and required payments of other obligations relating to the applicable
asset to the extent such debt or obligations are secured by a Lien permitted
hereunder (other than pursuant to the Loan Documents or the Term Loan
Documents) on such asset, other customary expenses and brokerage, consultant
and other customary fees actually incurred in connection therewith,
(ii) Taxes paid or payable as a result thereof, and (iii) the amount
of any reasonable reserve established in accordance with GAAP against any
adjustment to the sale price or any liabilities (other than any taxes deducted
pursuant to clause (i) above) (x) related to any of the
applicable assets and (y) retained by the Company or any of the
Subsidiaries including, without limitation, pension and other post-employment
benefit liabilities and liabilities related to environmental matters or against
any indemnification obligations (however, the amount of any subsequent
reduction of such reserve (other than in connection with a payment in respect
of any such liability) shall be deemed to be Net Proceeds of such Asset Sale
occurring on the date of such reduction); provided, that, if no Event of
Default exists and the Company shall deliver a certificate of a Responsible
Officer of the Company to the Administrative Agent promptly following receipt
of any such proceeds setting forth the Company’s intention to use any portion
of such proceeds, to acquire, maintain, develop, construct, improve, upgrade or
repair assets useful in the business of the Company and the Subsidiaries or to
make investments in Permitted Business Acquisitions, in each case within 15
months of such receipt, such portion of such proceeds shall not constitute Net
Proceeds except to the extent not, within 15 months of such receipt, so used or
contractually committed to be so used (it being understood that if any portion
of such proceeds are not so used within such 15-month period but within such
15-month period are contractually committed to be used, then upon the
termination of such contract, such remaining portion shall constitute Net
Proceeds as of the date of such termination or expiry without giving effect to
this proviso); provided, further, that (A) no proceeds
realized in a single transaction or series of related transactions shall
constitute Net Proceeds unless such proceeds shall exceed $5.0 million,
(B) no proceeds shall constitute Net Proceeds in any fiscal year until the
aggregate amount of all such proceeds in such fiscal year shall exceed $10.0
million, (C) at any time during the 15-month period contemplated by
the immediately preceding proviso above, if, on a Pro Forma Basis after giving
effect to the Asset Sale and the application of the proceeds thereof, the Total
Net First Lien Leverage Ratio is less than or equal to 2.00 to 1.00, up to $100
million of such proceeds shall not constitute Net Proceeds, and







                                                                                 41                                                                                 










 








 










(b)        100% of the cash
proceeds from the incurrence, issuance or sale by the Borrowers or any
Subsidiary Loan Party of any Indebtedness (other than Excluded Indebtedness),
net of all taxes and fees (including investment banking fees), commissions,
costs and other expenses, in each case incurred in connection with such
issuance or sale.


For purposes of calculating the amount of Net Proceeds,
fees, commissions and other costs and expenses payable to the Company or any
Affiliate of the Company shall be disregarded, except for financial advisory
fees customary in type and amount paid to Affiliates of the Funds and otherwise
not prohibited from being paid hereunder.


“New York Courts” shall have the meaning assigned to
such term in Section 9.15(a).


“Newly Obligated Party” shall mean each person, if
any, who becomes party to this Agreement as a Loan Party effective as of any
date after the Closing Date.









                                                                                 42                                                                                 










 








 








“Non‐Consenting Lender”
shall have the meaning assigned to such term in Section 2.19(c).


“Note” shall have the meaning assigned to such term
in Section 2.09(e).


“Obligations” shall mean all amounts owing to the
Administrative Agent or any Lender pursuant to the terms of this Agreement or
any other Loan Document.


“Orderly Liquidation Value” shall mean an amount
equal to the most recently determined Orderly Liquidation Value Factor
multiplied by the book value of all Eligible Inventory of the Loan Parties.


“Orderly Liquidation Value Factor” shall mean, with
respect to Eligible Inventory of the Loan Parties, the net orderly liquidation
value thereof (expressed as a percentage) as determined by an Acceptable
Appraiser in accordance with Section 5.11; provided, that the
Orderly Liquidation Value Factor as of the Closing Date shall be 75% until
otherwise determined in accordance with Section 5.11.


“Original Agreement Date” shall mean February 16,
2006 in respect of the subsidiaries of Covalence Holdings prior to the Closing
Date, shall mean September 20, 2006 in respect of subsidiaries of Holdings
prior to the Closing Date, and shall mean the Closing Date in respect of
subsidiaries of Holdings that were not subsidiaries of Covalence Holdings or
Holdings prior to the Closing Date.


“Original Second Lien Notes” shall mean the Second
Lien Fixed Rate 2014 Notes and the Second Lien Floating Rate 2014 Notes.


“Original Second Lien Notes Indenture” shall mean the
Second Lien 2014 Notes Indenture.


“Other Borrower” shall mean each domestic Subsidiary
who shall from time to time, pursuant to Section 9.24 hereof, become a
“Borrower” hereunder pursuant to a Borrower Joinder Agreement or other form
satisfactory to the Administrative Agent.“Other Taxes” shall mean any
and all present or future stamp or documentary taxes or any other excise,
transfer, sales, property, intangible, mortgage recording, or similar taxes,
charges or levies arising from any payment made hereunder or from the
execution, delivery or enforcement of, or otherwise with respect to, the Loan
Documents, and any and all interest and penalties related thereto (but not Excluded
Taxes).


“Overdraft Line” shall have the meaning assigned to
such term in Section 6.01(w).


“Parent Entity” shall mean any direct or indirect
parent of Holdings. 


“Participant” shall have the meaning assigned to such
term in Section 9.04(c)(i). 


“Participating Member State” shall mean each state so
described in any EMU Legislation.









                                                                                 43                                                                                 










 








 








“Payment Account” shall mean
each bank account established or maintained pursuant to Section 5.14, to
which the funds of the Borrowers and their Subsidiaries (including proceeds of
Accounts and other Collateral) are deposited or credited, and which is
maintained in the name of the Collateral Agent or any Loan Party, or any of
them, as the Collateral Agent may determine, on terms acceptable to the
Collateral Agent.


“Pending Revolving Loans” shall mean, at any time,
the aggregate principal amount of all Revolving Loans, Swingline Loans and
Agent Advances requested in any Borrowing Request received by the
Administrative Agent or otherwise which have not yet been advanced.


“PBGC” shall mean the Pension Benefit Guaranty
Corporation referred to and defined in ERISA.


“Perfection Certificate” shall mean the Perfection
Certificate with respect to Company and the other Loan Parties in a form
reasonably satisfactory to the Administrative Agent.


“Permitted Business Acquisition” shall mean any
acquisition of all or substantially all the assets of, or all the Equity
Interests (other than directors’ qualifying shares) in, or merger or
consolidation with, a person or division or line of business of a person (or
any subsequent investment made in a person, division or line of business
previously acquired in a Permitted Business Acquisition), if immediately after
giving effect thereto:  (i) no Event of Default shall have occurred and be
continuing or would result therefrom; (ii) all transactions related
thereto shall be consummated in accordance with applicable laws;
(iii) with respect to any such acquisition or investment with a fair
market value in excess of $20.0 million, the Company and its Subsidiaries shall
be in Pro Forma Compliance after giving effect to such acquisition or
investment and any related transaction; (iv) any acquired or newly formed
Subsidiary shall not be liable for any Indebtedness except for Indebtedness
permitted by Section 6.01; (v) to the extent required by
Section 5.10, any person acquired in such acquisition, if acquired by a
Borrower or a Domestic Subsidiary, shall be merged into a Borrower or a
Subsidiary Loan Party or become upon consummation of such acquisition a Subsidiary
Loan Party; and (vi) the aggregate amount of such acquisitions and 
investments in assets that are not owned by the Borrowers or Subsidiary Loan
Parties or in Equity Interests in persons that are not Subsidiary Loan Parties
or persons that do not become Subsidiary Loan Parties upon consummation of such
acquisition shall not exceed the greater (x) 4.5% of Consolidated Total
Assets as of the end of the fiscal quarter immediately prior to the date of
such acquisition or investment for which financial statements have been
delivered pursuant to Section 5.04 and (y) $150 million.


“Permitted Cure Securities” shall mean any equity
securities of Holdings other than Disqualified Stock and upon which all
dividends or distributions (if any) shall, prior to 91 days after the Revolving
Facility Maturity Date, be payable solely in additional shares of such equity
security.


“Permitted Holder” shall mean each of (i) the
Funds and the Fund Affiliates, and (ii) the Management Group.


“Permitted Investments” shall mean:  


 







                                                                                 44                                                                                 










 








 








(a)        direct
obligations of the United States of America or any member of the European Union
or any agency thereof or obligations guaranteed by the United States of America
or any member of the European Union or any agency thereof, in each case with
maturities not exceeding two years;


(b)        time deposit accounts, certificates of
deposit and money market deposits maturing within 180 days of the date of
acquisition thereof issued by a bank or trust company that is organized under
the laws of the United States of America, any state thereof or any foreign
country recognized by the United States of America having capital, surplus and
undivided profits in excess of $250 million and whose long‐term debt, or
whose parent holding company’s long‐term debt, is rated A (or such
similar equivalent rating or higher by at least one nationally recognized
statistical rating organization (as defined in Rule 436 under the
Securities Act));


(c)        repurchase obligations with a term of
not more than 180 days for underlying securities of the types described in
clause (a) above entered into with a bank meeting the qualifications
described in clause (b) above;


(d)       commercial paper, maturing not more than
one year after the date of acquisition, issued by a corporation (other than an
Affiliate of any Borrower) organized and in existence under the laws of the
United States of America or any foreign country recognized by the United States
of America with a rating at the time as of which any investment therein is made
of P‐1 (or higher) according to Moody’s, or A‐1 (or higher)
according to S&P;


(e)        securities with maturities of two years
or less from the date of acquisition issued or fully guaranteed by any State,
commonwealth or territory of the United States of America, or by any political
subdivision or taxing authority thereof, and rated at least A by S&P or A
by Moody’s;


(f)        shares of mutual funds whose investment
guidelines restrict 95% of such funds’ investments to those satisfying the
provisions of clauses (a) through (e) above;


(g)        money market funds that (i) comply
with the criteria set forth in Rule 2a‐7 under the Investment
Company Act of 1940, (ii) are rated AAA by S&P and Aaa by Moody’s and
(iii) have portfolio assets of at least $5,000.0 million; and


(h)        time deposit accounts, certificates of
deposit and money market deposits in an aggregate face amount not in excess of
0.5% of the total assets of the Company and the Subsidiaries, on a consolidated
basis, as of the end of the Company’s most recently completed fiscal year; and


(i)         instruments equivalent to those
referred to in clauses (a) through (h) above denominated in any
foreign currency comparable in credit quality and tenor to those referred to
above and commonly used by corporations for cash management purposes in any
jurisdiction outside the United States to the extent reasonably required in
connection with any business conducted by any Subsidiary organized in such
jurisdiction.









                                                                                 45                                                                                 










 








 








“Permitted Liens” shall have
the meaning assigned to such term in Section 6.02.


“Permitted Receivables Documents” shall mean all
documents and agreements evidencing, relating to or otherwise governing a
Permitted Receivables Financing.


“Permitted Receivables Financing” shall mean one or
more transactions pursuant to which (i) Receivables Assets or interests therein
are sold to or financed by one or more Special Purpose Receivables
Subsidiaries, and (ii) such Special Purpose Receivables Subsidiaries finance
their acquisition of such Receivables Assets or interests therein, or the
financing thereof, by selling or borrowing against Receivables Assets; provided
that (A) recourse to the Company or any Subsidiary (other than the Special
Purpose Receivables Subsidiaries) in connection with such transactions shall be
limited to the extent customary for similar transactions in the applicable
jurisdictions (including, to the extent applicable, in a manner consistent with
the delivery of a “true sale”/“absolute transfer” opinion with respect to any
transfer by the Company or any Subsidiary (other than a Special Purpose Receivables
Subsidiary), (B) once sold or financed in connection herewith, such Receivables
Assets shall no longer be part of the Borrowing Base, and (C) the aggregate
Receivables Net Investment since the Amendment Effective Date shall not exceed
$100 million at any time.


“Permitted Refinancing Indebtedness” shall mean any
Indebtedness issued in exchange for, or the net proceeds of which are used to
extend, refinance, renew, replace, defease or refund (collectively, to “Refinance”),
the Indebtedness being Refinanced (or previous refinancings thereof
constituting Permitted Refinancing Indebtedness); provided, that
(a) the principal amount (or accreted value, if applicable) of such
Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted
value, if applicable) of the Indebtedness so Refinanced (plus unpaid accrued
interest and premium thereon and underwriting discounts, fees, commissions and
expenses), (b) except with respect to Section 6.01(i), the weighted
average life to maturity of such Permitted Refinancing Indebtedness is greater
than or equal to the earlier of (i) the weighted average life to maturity
of the Indebtedness being Refinanced and (ii) 90 days after the Revolving
Facility Maturity Date, (c) if the Indebtedness being Refinanced is
subordinated in right of payment to the Obligations under this Agreement, such
Permitted Refinancing Indebtedness shall be subordinated in right of payment to
such Obligations on terms at least as favorable to the Lenders as those
contained in the documentation governing the Indebtedness being Refinanced,
(d) no Permitted Refinancing Indebtedness shall have different obligors,
or greater guarantees or security, than the Indebtedness being Refinanced and
(e) if the Indebtedness being Refinanced is secured by any collateral
(whether equally and ratably with, or junior to, the Secured Parties or
otherwise), such Permitted Refinancing Indebtedness may be secured by such
collateral (including in respect of working capital facilities of Foreign Subsidiaries
otherwise permitted under this Agreement only, any collateral pursuant to after‐acquired
property clauses to the extent any such collateral secured the Indebtedness
being Refinanced) on terms no less favorable to the Secured Parties than those
contained in the documentation governing the Indebtedness being Refinanced; provided 
further, that with respect to a refinancing of (x) the Senior
Subordinated Notes or other subordinated Indebtedness permitted to be incurred
herein, such Permitted Refinancing Indebtedness shall (i) be subordinated
to the guarantee by Holdings and the Subsidiary Loan Parties of the Revolving
Facility, and (ii) be otherwise on terms not materially less favorable to
the Lenders than those contained in the documentation governing the
Indebtedness being Refinanced; and (y) the Original Second Lien Notes,
(i) the Liens, if any, securing such Permitted Refinancing Indebtedness shall be subject to an intercreditor
agreement that is substantially consistent with and no less favorable to the
Lenders in all material respects than the Intercreditor Agreement and
(ii) such Permitted Refinancing Indebtedness shall be otherwise on terms
not materially less favorable to the Lenders than those contained in the
documentation governing the Indebtedness being Refinanced.







                                                                                 46                                                                                 










 








 










“Permitted Supplier Finance Facility” shall mean an
arrangement entered into with one or more third-party financial institutions
for the purpose of facilitating the processing of receivables such that
receivables are purchased directly by such third-party financial institutions
from one or more of the Borrowers at such discounted rates as may be agreed; provided 
that (i) no third-party financial institution shall have any recourse to any
Borrower in connection with such arrangement and no Borrower shall Guarantee
any liabilities or obligations with respect to such arrangement (including,
without limitation, no Borrower shall provide any guarantee, surety or other
credit support for any of the obligations owed by any customer to such third-party
financial institution under any such financing arrangement), and (ii) such
receivables purchased by any such third party institutions shall no longer be
part of the Borrowing Base.


“person” shall mean any natural person, corporation,
business trust, joint venture, association, company, partnership, limited
liability company or government, individual or family trusts, or any agency or
political subdivision thereof.


“Plan” shall mean any employee pension benefit plan,
as such term is defined in Section 3(2) of ERISA, (other than a
Multiemployer Plan), (i) subject to the provisions of Title IV of
ERISA, and (ii) (x) sponsored or maintained (at the time of
determination or at any time within the five years prior thereto) by Holdings,
the Company or any ERISA Affiliate, or (y) in respect of which Holdings,
the Company, any Subsidiary or any ERISA Affiliate is (or, if such plan were
terminated, would under Section 4069 of ERISA be deemed to be) an
“employer” as defined in Section 3(5) of ERISA.


“Platform” shall have the meaning assigned to such
term in Section 9.17(b).


“Pledged Collateral” shall have the meaning assigned
to such term in the Collateral Agreement.


“Post-Closing Reports” shall mean field exam reports
and appraisals with respect to the Accounts and Inventory of the Loan Parties,
in each case in form customary for financings similar to this Agreement.












                                                                                 47                                                                                 










 








 








“Pricing Grid” shall mean,
with respect to the Revolving Loans, the table set forth below: 


	
  Level

  	
  Quarterly
  Average Daily Availability

  (as a percentage of the Borrowing Base)

  	
  Applicable
  Margin for ABR Loans

  	
  Applicable
  Margin for Eurocurrency Loans

  
	
  I

  	
  Less than or equal to 25%

  	
  1.25%

  	
  2.25%

  
	
  II

  	
  More than 25% but less
  than or equal to 60%

  	
  1.00%

  	
  2.00%

  
	
  III

  	
  More than 60%

  	
  0.75%

  	
  1.75%

  




 


For the purposes of the Pricing Grid, changes in the
Applicable Margin shall become effective on the first Business Day of each
calendar quarter (to be effective from such date until changed pursuant to the
Pricing Grid), and shall be determined in accordance with the Pricing Grid
based on average daily Availability during the immediately preceding fiscal
quarter.  


“primary obligor” shall have the meaning given such
term in the definition of the term “Guarantee.”


“Primary Payment Account” shall have the meaning
assigned to such term in Section 5.14(a).


“Pro Forma Adjusted EBITDA” shall have the meaning
assigned to such term in Section 3.05(a).


“Pro Forma Basis” shall mean, as to any person, for
any events as described below that occur subsequent to the commencement of a
period for which the financial effect of such events is being calculated, and
giving effect to the events for which such calculation is being made, such
calculation as will give pro forma effect to such events as if such events
occurred on the first day of the four consecutive fiscal quarter period ended
on or before the occurrence of such event (the “Reference Period”): 
(i) in making any determination of EBITDA, effect shall be given to any
Asset Sale, any acquisition (or any similar transaction or transactions not
otherwise permitted under Section 6.04 or 6.05 that require a waiver or
consent of the Required Lenders and such waiver or consent has been obtained),
any dividend, distribution or other similar payment, any designation of any
Subsidiary as an Unrestricted Subsidiary and any Subsidiary Redesignation, the
Initial Pro Forma Adjustment for the quarters ending March 2006, June 2006,
September 2006, and December 2006, and any restructurings of the business of
the Company or any of its Subsidiaries that are expected to have a continuing
impact and are factually supportable, which would include cost savings
resulting from head count reduction, closure of facilities and similar operational and other cost savings, which adjustments the
Company determines are reasonable as set forth in a certificate of a Financial
Officer of the Company (the foregoing, together with any transactions related
thereto or in connection therewith, the “relevant transactions”), in
each case that occurred during the Reference Period (or, in the case of
determinations made pursuant to the definition of the term “Permitted Business
Acquisition”, or pursuant to Sections, 6.01(r), 6.02(u) or 6.06(e),
occurring during the Reference Period or thereafter and through and including
the date upon which the respective Permitted Business Acquisition or incurrence
of Indebtedness or Liens, Asset Sale, or dividend is consummated), (ii) in
making any determination on a Pro Forma Basis, (x) all Indebtedness
(including Indebtedness issued, incurred or assumed as a result of, or to
finance, any relevant transactions and for which the financial effect is being
calculated, whether incurred under this Agreement or otherwise, but excluding
normal fluctuations in revolving Indebtedness incurred for working capital
purposes and amounts outstanding under any Permitted Receivables Financing, in
each case not to finance any acquisition) issued, incurred, assumed or
permanently repaid during the Reference Period (or, in the case of
determinations made pursuant to the definition of the term “Permitted Business
Acquisition” or pursuant to Sections 6.01(r), 6.02(u) or 6.06(e), occurring
during the Reference Period or thereafter and through and including the date
upon which the respective Permitted Business Acquisition or incurrence of
Indebtedness or Liens, Asset Sale, or dividend is consummated) shall be deemed
to have been issued, incurred, assumed or permanently repaid at the beginning
of such period and (y) Interest Expense of such person attributable to
interest on any Indebtedness, for which pro forma effect is being given as
provided in preceding clause (x) (A) bearing floating interest rates
shall be computed on a pro forma basis as if the rate in effect on the date of
such calculation had been the applicable rate for the entire period (taking
into account any Hedging Obligations applicable to such Indebtedness if such
Hedging Obligation has a remaining term in excess of 12 months), and
(B) in respect of a Capital Lease Obligation shall be deemed to accrue at an
interest rate reasonably determined by a responsible financial or accounting
officer of the Company to be the rate of interest implicit in such Capital
Lease Obligation in accordance with GAAP; and (iii) (A) any Subsidiary
Redesignation then being designated, effect shall be given to such Subsidiary
Redesignation and all other Subsidiary Redesignations after the first day of
the relevant Reference Period and on or prior to the date of the respective
Subsidiary Redesignation then being designated, collectively, and (B) any
designation of a Subsidiary as an Unrestricted Subsidiary, effect shall be
given to such designation and all other designations of Subsidiaries as
Unrestricted Subsidiaries after the first day of the relevant Reference Period
and on or prior to the date of the then applicable designation of a Subsidiary
as an Unrestricted Subsidiary, collectively.







                                                                                 48                                                                                 










 








 










Calculations made pursuant to the definition of the term
“Pro Forma Basis” shall be determined in good faith by a Responsible Officer of
the Company and may include adjustments to reflect (1) operating expense
reductions and other operating improvements or synergies reasonably expected to
result from such relevant transaction, which adjustments are reasonably
anticipated by the Company to be realizable in connection with such relevant
transaction (or any similar transaction or transactions made in compliance with
this Agreement or that require a waiver or consent of the Required Lenders),
and are estimated on a good faith basis by the Company, and (2) all adjustments
reflected in the Pro Forma Financial Statements and Pro Forma Adjusted EBITDA
to the extent such adjustments, without duplication, continue to be
applicable.  The Company shall deliver to the Administrative Agent a
certificate of a Financial Officer of the Company setting forth such
demonstrable or additional operating expense reductions and other operating improvements or synergies and information and
calculations supporting them in reasonable detail.







                                                                                 49                                                                                 










 








 










“Pro Forma Compliance” shall mean, at any date of
determination, that (a) either (i) the Availability is equal to or
greater than 15.0% of the lesser of (A) the then-current Borrowing Base
and (B) the aggregate Revolving Facility Commitments, immediately before
and after giving effect on a Pro Forma Basis to the relevant transactions
(including the assumption, issuance, incurrence and repayment of
Indebtedness) at such time and during the 30 consecutive day period
immediately prior thereto, or (ii) (A) the Company and its Subsidiaries
shall be in compliance, on a Pro Forma Basis after giving effect on a Pro Forma
Basis to the relevant transactions, with an ABL Fixed Charge Coverage Ratio of
at least 1:00 to 1:00 recomputed as at the last day of the most recently ended
fiscal quarter of the Company and its Subsidiaries for which the financial
statements and certificates required pursuant to Section 5.04 have been
delivered, and (B) the Availability is equal to or greater than 12.5% of
the lesser of (x) the then-current Borrowing Base and (y) the aggregate
Revolving Facility Commitments, immediately before and after giving effect on a
Pro Forma Basis to the relevant transactions (including the assumption,
issuance, incurrence and repayment of Indebtedness) at such time and during the
30 consecutive day period immediately prior thereto; provided  that,
notwithstanding anything to the contrary in the preceding clauses (i) and
(ii), solely for the purpose of determining Pro Forma Compliance to permit
application of the Cumulative Credit to the payment of dividends to Holdings
under Section 6.06(e), “Pro Forma Compliance” shall mean that (I) the
Company and its Subsidiaries are in compliance, on a Pro Forma Basis after
giving effect on a Pro Forma Basis to the relevant distribution, with an ABL Fixed
Charge Coverage Ratio of at least 1:10 to 1:00 recomputed as at the last day of
the most recently ended fiscal quarter of the Company and its Subsidiaries for
which the financial statements and certificates required pursuant to
Section 5.04 have been delivered and (II) the Availability is equal
to or greater than 15.0% of the lesser of (x) the then-current Borrowing
Base and (y) the aggregate Revolving Facility Commitments, immediately
before and after giving effect on a Pro Forma Basis to the relevant payment of
dividends at such time and during the 30 consecutive day period immediately
prior thereto; and (b) the Borrowers shall have delivered to the
Administrative Agent a certificate of a Responsible Officer of the Borrowers to
such effect, together with all relevant financial information.


 “Pro Forma Financial Statements” shall have the
meaning assigned to such term in Section 3.05(a).


“Pro Rata Share” shall mean, with respect to a
Lender, a fraction (expressed as a percentage), the numerator of which is the
amount of such Lender’s Revolving Facility Commitment and the denominator of
which is the sum of the amounts of all of the Lenders’ Revolving Facility
Commitments, or if no Revolving Facility Commitments are outstanding, a
fraction (expressed as a percentage), the numerator of which is the principal
amount of Obligations owed to such Lender and the denominator of which is the
aggregate principal amount of the Obligations owed to the Lenders, in each case
giving effect to a Lender’s participation in Swingline Loans and Agent
Advances.


“Projections” shall mean the projections of Holdings,
the Company and the Subsidiaries included in the Information Memorandum and any
other projections and any forward‐looking statements (including
statements with respect to booked business) of such entities furnished to the Lenders or the Administrative Agent by
or on behalf of Holdings, the Company or any of the Subsidiaries prior to the
Closing Date.







                                                                                 50                                                                                 










 








 










“Proprietary Rights” shall mean, with respect to a
person, all of such person’s now owned and hereafter arising or acquired
licenses, franchises, permits, patents, patent rights, copyrights, works which
are the subject matter of copyrights, trademarks, service marks, trade names,
trade styles, patent, trademark and service mark applications, and all licenses
and rights related to any of the foregoing, and all other rights under any of
the foregoing, all extensions, renewals, reissues, divisions, continuations,
and continuations‐in‐part of any of the foregoing, and all rights
to sue for past, present, and future infringement of any of the foregoing.


“Public Lender” shall have the meaning assigned to
such term in Section 9.17.


“Qualified CFC Holding Company” shall mean a Wholly
Owned Subsidiary of the Company that is a limited liability company, that (a) is in compliance with Section 6.12 and
(b) the primary asset of which consists of Equity Interests in either
(i) a Foreign Subsidiary or (ii) a limited liability company that is
in compliance with Section 6.12 and the primary asset of which consists of
Equity Interests in a Foreign Subsidiary. 


“Qualified Equity Interests” shall mean any Equity
Interest other than Disqualified Stock.


“Qualified IPO” shall mean an underwritten public
offering of the Equity Interests of Holdings (or any Parent Entity) which
generates cash proceeds of at least $50 million.


“Real Property” shall mean, collectively, all right,
title and interest (including any leasehold estate) in and to any and all
parcels of or interests in real property owned in fee or leased by any Loan
Party, together with, in each case, all easements, hereditaments and
appurtenances relating thereto, all improvements and appurtenant fixtures
incidental to the ownership or lease thereof.


“Reasonable Credit Judgment” shall mean reasonable
credit judgment in accordance with customary business practices for comparable
asset‐based lending transactions and as it relates to the establishment
of Reserves or the adjustment or imposition of exclusionary criteria shall
require that, (x) such establishment, adjustment or imposition after the
Closing Date be based on the analysis of facts or events relating to the
Accounts, Inventory or other components of the Borrowing Base first occurring
or first discovered by the Administrative Agent after the Closing Date or that
are materially different from facts or events occurring or known to the
Administrative Agent on the Closing Date, (y) the contributing factors to
the imposition of any Reserve shall not duplicate (i) the exclusionary
criteria set forth in definitions of “Eligible Accounts” and “Eligible
Inventory”, as applicable (and vice versa) or (ii) any reserves
deducted in computing book value and (z) the amount of any such Reserve so
established or the effect of any adjustment or imposition of exclusionary criteria
be a reasonable quantification of the incremental dilution of the Borrowing
Base attributable to such contributing factors.


“Receivables Assets” shall mean accounts receivable
(including any bills of exchange) and related assets and property from time to
time originated, acquired or otherwise owned by the Company or any Subsidiary.









                                                                                 51                                                                                 










 








 








“Receivables Net Investment”
shall mean the aggregate cash amount paid by the lenders or purchasers under
any Permitted Receivables Financing in connection with their purchase of, or
the making of loans secured by, Receivables Assets or interests therein, as the
same may be reduced from time to time by collections with respect to such
Receivables Assets or otherwise in accordance with the terms of the Permitted
Receivables Documents (but excluding any such collections used to make payments
of items included in clause (c) of the definition of Interest Expense); provided,
however, that if all or any part of such Receivables Net Investment
shall have been reduced by application of any distribution and thereafter such
distribution is rescinded or must otherwise be returned for any reason, such
Receivables Net Investment shall be increased by the amount of such
distribution, all as though such distribution had not been made.


“Reference Period” shall have the meaning assigned to
such term in the definition of the term “Pro Forma Basis.”


“Refinance” shall have the meaning assigned to such
term in the definition of the term “Permitted Refinancing Indebtedness,” and “Refinanced”
shall have a meaning correlative thereto.


“Refinancing” shall mean the refinancing of (x) the
“Revolving Loans” (as defined in the Credit Agreement, dated as of September
20, 2006, by and between Holdings, the Company, Credit Suisse, Cayman Islands
Branch, as administrative agent and collateral agent and the other parties
thereto), and (y) the “Loans” (as defined in the Revolving Credit Agreement,
dated as of May 18, 2006, by and between Covalence Specialty Materials Corp.,
Covalence Specialty Materials Holding Corp., Bank of America, N.A., as
administrative agent, and the other parties thereto), in each case that was
consummated on or about April 3, 2007.


“Register” shall have the meaning assigned to such
term in Section 9.04(b).


“Regulation U” shall mean Regulation U of the Board
as from time to time in effect and all official rulings and interpretations
thereunder or thereof.


“Regulation X” shall mean Regulation X of the Board
as from time to time in effect and all official rulings and interpretations
thereunder or thereof.


“Related Fund” shall mean, with respect to any Lender
that is a fund that invests in bank or commercial loans and similar extensions
of credit, any other fund that invests in bank or commercial loans and similar
extensions of credit and is advised or managed by (a) such Lender,
(b) an Affiliate of such Lender or (c) an entity (or an Affiliate of
such entity) that administers, advises or manages such Lender.


“Related Parties” shall mean, with respect to any
specified person, such person’s Affiliates and the respective directors,
trustees, officers, employees, agents and advisors of such person and such
person’s Affiliates.


“Related Sections” shall have the meaning assigned to
such term in Section 6.04.









                                                                                 52                                                                                 










 








 








“Release” shall mean any
spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping, disposing, depositing, emanating or
migrating in, into, onto or through the environment.


“relevant transactions” shall have the meaning
assigned to such term in the definition of “Pro Forma Basis” in this
Section 1.01.


“Remaining Present Value” shall mean, as of any date
with respect to any lease, the present value as of such date of the scheduled
future lease payments with respect to such lease, determined with a discount
rate equal to a market rate of interest for such lease reasonably determined at
the time such lease was entered into.


“Report” shall have the meaning assigned to such term
in Section 8.11(a).


“Reportable Event” shall mean any reportable event as
defined in Section 4043(c) of ERISA or the regulations issued thereunder,
other than those events as to which the 30‐day notice period referred to
in Section 4043(c) of ERISA has been waived, with respect to a Plan (other
than a Plan maintained by an ERISA Affiliate that is considered an ERISA
Affiliate only pursuant to subsection (m) or (o) of Section 414 of
the Code).


“Required Lenders” shall mean, at any time, Lenders
whose Pro Rata Shares aggregate more than fifty percent (50%).  The Pro Rata
Share of any Defaulting Lender shall be disregarded in determining the Required
Lenders at any time.


“Required Percentage” shall mean, with respect to an
Excess Cash Flow Period (or Excess Cash Flow Interim Period), 50%; provided,
that (a) if the Total Net First Lien Leverage Ratio at the end of the
Applicable Period (or Excess Cash Flow Interim Period) is greater than 1.50 to
1.00 but less than or equal to 2.00 to 1.00, such percentage shall be 25%, and
(b) if the Total Net First Lien Leverage Ratio at the end of the
Applicable Period (or Excess Cash Flow Interim Period) is less than or equal to
1.50 to 1.00, such percentage shall be 0%.


“Requirement of Law” shall mean, as to any person,
any law (statutory or common), treaty, rule, or regulation or determination of
an arbitrator or of a Governmental Authority, in each case applicable to or
binding upon the person or any of its property or to which the person or any of
its property is subject.


“Reserves” shall mean such reserves against the
Borrowing Base that the Administrative Agent has, in the exercise of its
Reasonable Credit Judgment, established from time to time upon at least seven
Business Days’ notice to the Company.


“Responsible Officer” of any person shall mean any
executive officer or Financial Officer of such person and any other officer or
similar official thereof responsible for the administration of the obligations
of such person in respect of this Agreement.


“Retained Excess Cash Flow Overfunding” shall mean,
at any time, in respect of any Excess Cash Flow Interim Period as to which the
corresponding Excess Cash Flow Period has ended at such time, a portion of the
cumulative Excess Cash Flow for such Excess Cash Flow Interim Period equal to
the amount, if any, by which the Retained Percentage of Excess Cash Flow for such Excess Cash Flow Interim Period exceeds the
Retained Percentage of Excess Cash Flow for such corresponding Excess Cash Flow
Period.







                                                                                 53                                                                                 










 








 










“Retained Percentage” shall mean, with respect to any
Excess Cash Flow Period (or Excess Cash Flow Interim Period), (a) 100%
minus (b) the Required Percentage with respect to such Excess Cash Flow
Period (or Excess Cash Flow Interim Period).


“Revaluation Date” shall mean, with respect to any
Alternate Currency Letter of Credit, each of the following:  (i) each date
of issuance of an Alternate Currency Letter of Credit, (ii) each date of
an amendment of an Alternate Currency Letter of Credit having the effect of
increasing the amount thereof, (iii) each date of any payment by the
Issuing Bank under an Alternate Currency Letter of Credit, and (iv) such
additional dates as the Administrative Agent or the Issuing Bank shall determine
or the Required Lenders shall require.


“Revolving Facility” shall mean the Revolving
Facility Commitments (including any Incremental Revolving Facility Commitments)
and the extensions of credit made hereunder by the Revolving Lenders.


“Revolving Facility Borrowing” shall mean a Borrowing
comprised of Revolving Loans.


“Revolving Facility Commitment” shall mean, with
respect to each Revolving Lender, the commitment of such Revolving Lender to
make Revolving Loans pursuant to Section 2.01, expressed as an amount
representing the maximum aggregate permitted amount of such Revolving Lender’s
Revolving Facility Credit Exposure hereunder, as such commitment may be
(a) reduced from time to time pursuant to Section 2.08,
(b) reduced or increased from time to time pursuant to assignments by or
to such Lender under Section 9.04, and (c) increased or provided
under Section 2.21.  The initial amount of each Lender’s Revolving
Facility Commitment is set forth on Schedule 2.01, or in the
Assignment and Acceptance or Incremental Assumption Agreement pursuant to which
such Lender shall have assumed its Revolving Facility Commitment (or
Incremental Revolving Facility Commitment), as applicable.  The initial
aggregate amount of the Lenders’ Revolving Facility Commitments prior to any
Incremental Revolving Facility Commitments) is $650 million.


“Revolving Facility Credit Exposure” shall mean, at
any time, the sum of (a) the aggregate principal amount of the Revolving Loans
outstanding at such time, (b) the aggregate amount of Pending Revolving
Loans, (c) the Swingline Exposure and Agent Advance Exposure at such time
and (d) the Revolving L/C – BA Exposure at such time.  The Revolving
Facility Credit Exposure of any Revolving Lender at any time shall be the
product of (x) such Revolving Lender’s Pro Rata Share and (y) the
aggregate Revolving Facility Credit Exposure of all Revolving Lenders, collectively,
at such time.


“Revolving Facility Maturity Date” shall mean the
earlier to occur of (a) June 28, 2016, and (b) the date that is 45 days prior
to the earliest scheduled maturity of any of the Company’s or its Subsidiaries’
First Priority Notes, Term Loan Credit Agreement or Second Lien Notes, except
to the extent that such Indebtedness is refinanced or otherwise extended to a
maturity date that is more than five years and 45 days after the Amendment
Effective Date, or is repaid or defeased prior to
such scheduled maturity date; provided, that the earlier maturity of the
Revolving Facility described in the preceding clause (b) shall not be triggered
by the impending maturity of the Second Lien Floating Rate 2014 Notes, so long
as no later than the 45th day prior to such maturity (i) the Company
maintains on deposit in a segregated deposit account, subject to a Blocked
Account Agreement, under the sole dominion and control of the Administrative
Agent pursuant to documentation reasonably satisfactory to the Administrative
Agent, unrestricted (other than security interests pursuant to the Loan
Documents and Permitted Liens under clauses (b), (u), (ee) and (hh) of Section
6.02 and all involuntary Liens that are Permitted Liens and subject to the
Intercreditor Agreements) domestic cash and cash equivalents in an amount at
least equal to the then-outstanding aggregate principal balance of the Second
Lien Floating Rate 2014 Notes, together with accrued and unpaid interest to the
stated maturity date thereof, along with irrevocable instructions to use such
cash to repay such Second Lien Floating 2014 Rate Notes on their maturity date
in the event the Company has not done so as of such date or (ii) has made such
other arrangements for the repayment of such notes as are satisfactory to the
Administrative Agent.     







                                                                                 54                                                                                 










 








 










“Revolving Lender” shall mean a Lender (including an
Incremental Revolving Lender) with a Revolving Facility Commitment or with
outstanding Revolving Loans.


“Revolving Loan” shall mean a Loan made by a
Revolving Lender pursuant to Section 2.01.


“Revolving L/C – BA Exposure” shall mean at any time
the sum of (a) the aggregate undrawn amount of all Letters of Credit
outstanding at such time (calculated, in the case of Alternate Currency Letters
of Credit, based on the Dollar Equivalent thereof), (b) the sum of the
maximum aggregate amount that is, or at any time thereafter may become, payable
by the Issuing Banks under all then outstanding Bankers’ Acceptances
(calculated, in the case of Alternate Currency Letters of Credit, based on the
Dollar Equivalent thereof) and (c) the aggregate principal amount of all
L/C – BA Disbursements that have not yet been reimbursed at such time
(calculated, in the case of Alternate Currency Letters of Credit, based on the
Dollar Equivalent thereof).  The Revolving L/C – BA Exposure of any Revolving
Lender at any time shall mean its Pro Rata Share  of the aggregate Revolving
L/C – BA Exposure at such time.  For all purposes of this Agreement, if on any
date of determination a Letter of Credit has expired by its terms but any
amount may still be drawn thereunder by reason of the operation of Rule 3.14 of
the International Standby Practices (ISP98), such Letter of Credit shall be
deemed to be “outstanding” in the amount so remaining available to be drawn. 
Unless otherwise specified herein, the amount of a Letter of Credit at any time
shall be deemed to be the stated amount of such Letter of Credit in effect at
such time; provided, that with respect to any Letter of Credit that, by
its terms or the terms of any document related thereto, provides for one or
more automatic increases in the stated amount thereof, the amount of such
Letter of Credit shall be deemed to be the maximum stated amount of such Letter
of Credit after giving effect to all such increases, whether or not such
maximum stated amount is in effect at such time.


“S&P” shall mean Standard & Poor’s Financial
Services LLC, a wholly-owned subsidiary of The McGraw-Hill Companies, Inc. 


“Sale and Lease‐Back Transaction” shall have
the meaning assigned to such term in Section 6.03.









                                                                                 55                                                                                 










 








 








“SEC” shall mean the
Securities and Exchange Commission or any successor thereto.


“Second Lien Fixed Rate 2014 Notes” shall mean the
87⁄8% Second Priority Senior Secured Fixed Rate Notes due 2014,
issued by the Company pursuant to the Second Lien 2014 Notes Indenture and any
notes issued in exchange for, and as contemplated by, the Second Lien Fixed
Rate 2014 Notes and the related registration rights agreement with
substantially identical terms as the Second Lien Fixed Rate 2014 Notes.


“Second Lien Fixed Rate 2018 Notes” shall mean the
91⁄2% Second Priority Senior Secured Fixed Rate Notes due 2018, issued by
the Company pursuant to the Second Lien 2018 Notes Indenture and any notes
issued in exchange for, and as contemplated by, the Second Lien Fixed Rate 2018
Notes and the related registration rights agreement with substantially
identical terms as the Second Lien Fixed Rate 2018 Notes.


“Second Lien Fixed Rate 2021 Notes” shall mean the
9.75% Second Priority Senior Secured Fixed Rate Notes due 2021, issued
by the Company pursuant to the Second Lien 2021 Notes Indenture and any notes
issued in exchange for, and as contemplated by, the Second Lien Fixed Rate 2021
Notes and the related registration rights agreement with substantially
identical terms as the Second Lien Fixed Rate 2021 Notes.


 “Second Lien Floating Rate 2014 Notes” shall mean
the floating rate Second Priority Senior Secured Floating Rate Notes due 2014,
issued pursuant to the Second Lien Notes Indenture and any notes issued by the
Company or another Borrower in exchange for, and as contemplated by, the Second
Lien Floating Rate 2014 Notes and the related registration rights agreement
with substantially identical terms as the Second Lien Floating Rate 2014 Notes.


“Second Lien Note Documents” shall mean,
collectively, the Second Lien Notes, the Second Lien Notes Indentures and the
Second Lien Security Documents.


“Second Lien Notes” shall mean the Second Lien Fixed
Rate 2014 Notes, the Second Lien Floating Rate 2014 Notes, Second Lien Fixed
Rate 2018 Notes and Second Lien Fixed Rate 2021 Notes.


“Second Lien 2014 Notes Indenture” shall mean the
Indenture dated as of September 20, 2006 among
BPC Acquisition Corp., as predecessor of Berry, and certain of its subsidiaries
party thereto and the trustee named therein from time to time, as in effect on
the Closing Date and as amended, restated, supplemented or otherwise modified
from time to time in accordance with the requirements thereof and of this
Agreement.


“Second Lien 2018 Notes Indenture” shall mean the
Indenture dated as of April 30, 2010 among the
Company, and certain of its subsidiaries party thereto and the trustee named
therein from time to time, as in effect on the Amendment Effective Date and as
amended, restated, supplemented or otherwise modified from time to time in
accordance with the requirements thereof and of this Agreement.


“Second Lien 2021 Notes Indenture” shall mean the
Indenture dated as of November 19, 2010 among
the Company, and certain of its subsidiaries party thereto and the trustee named therein from time to time, as in effect on
the Amendment Effective Date and as amended, restated, supplemented or
otherwise modified from time to time in accordance with the requirements
thereof and of this Agreement.







                                                                                 56                                                                                 










 








 










“Second Lien Notes Indentures” shall mean,
collectively, the Second Lien 2014 Notes Indenture, the Second Lien 2018 Notes
Indenture and the Second Lien 2021 Notes Indenture.


“Second Lien Obligations” shall mean the obligations
of the respective borrowers and guarantors under the Second Lien Note
Documents.


“Second Lien Security Documents” shall mean the
“Security Documents” as defined in the Second Lien Notes Indentures.


“Secured Parties” shall mean the “Secured Parties” as
defined in the Collateral Agreement.


“Securities Act” shall mean the Securities Act of
1933, as amended.


“Security Documents” shall mean the Mortgages, the
Collateral Agreement, the Foreign Pledge Agreements and each of the security
agreements and other instruments and documents executed and delivered pursuant
to any of the foregoing or pursuant to Section 5.10.


“Senior Fixed Collateral Intercreditor Agreement” shall
mean the Senior Fixed Collateral Priority and Intercreditor Agreement, dated as
of February 5, 2008, as amended, supplemented or otherwise modified from time
to time, among Credit Suisse, Bank of America, Holdings, the Company and
certain of the Company’s Subsidiaries.


“Senior Lender Intercreditor Agreement” shall mean
the Second Amended and Restated Senior Lender Priority and Intercreditor
Agreement, dated as of February 5, 2008, as amended, supplemented or otherwise
modified from time to time, among Holdings, the Company, the Borrowers, each
Subsidiary that became or becomes a party thereto after February 5, 2008, the
Collateral Agent, the Administrative Agent, the “Administrative Agent” under
the Term Loan Credit Agreement, the “Collateral Agent” under the Term Loan
Credit Agreement, each other First Priority Lien Obligations Administrative
Agent (as defined therein) and each Other First Priority Lien Obligations
Collateral Agent (as defined therein) from time to time party thereto. 


“Senior Subordinated Note Documents” shall mean the
Covalence Senior Subordinated Note Documents and the Berry Senior Subordinated
Note Documents.


“Senior Subordinated Notes” shall mean the Covalence
Senior Subordinated Notes and the Berry Senior Subordinated Notes.


“Senior Subordinated Notes Indentures” shall mean the
Covalence Senior Subordinated Notes Indenture and the Berry Senior Subordinated
Notes Indenture.


“Settlement” and “Settlement Date” have the
meanings specified in Section 2.04(e)(i).









                                                                                 57                                                                                 










 








 








“Special Purpose Receivables
Subsidiary” shall mean a direct or indirect Subsidiary of the Company
established in connection with a Permitted Receivables Financing for the
acquisition of Receivables Assets or interests therein, and which is organized
in a manner intended to reduce the  likelihood that it would be substantively
consolidated with Holdings, the Company or any of the Subsidiaries (other than
Special Purpose Receivables Subsidiaries) in the event Holdings, the Company or
any such Subsidiary becomes subject to a proceeding under the U.S. Bankruptcy
Code (or other insolvency law).


“Specified Asset Sale” shall mean that certain
anticipated sale of a certain division or line of business (which was
identified to the Agents and the Joint Bookrunners prior to the Amendment
Effective Date), to be made by one or more of the Borrowers.


“Specified Default” shall mean the occurrence of any
Event of Default specified in Sections 7.01(b), (c), (h) or (i).


“Specified Stock Purchases” shall mean the
acquisition by one or more of the Borrowers of all of the outstanding Equity
Interests in those certain business entities which were identified to the
Agents and the Joint Bookrunners prior to the Amendment Effective Date as being
acquisition targets, if immediately after giving effect thereto: (i) no Event
of Default shall have occurred and be continuing or would result therefrom,
(ii) all transactions related thereto shall be consummated in accordance with
applicable laws, (iii) any acquired or newly formed Subsidiary shall not
be liable for any Indebtedness except for Indebtedness permitted by
Section 6.01, and (iv) to the extent required by Section 5.10,
any person acquired in such acquisition, if acquired by a Borrower or a
Domestic Subsidiary, shall be merged into a Borrower or a Subsidiary Loan Party
or become upon consummation of such acquisition a Subsidiary Loan Party.


“Spot Rate” for a currency shall mean the rate
determined by the Administrative Agent or the Issuing Bank, as applicable, to
be the rate quoted by the person acting in such capacity as the spot rate for
the purchase by such person of such currency with another currency through its
principal foreign exchange trading office at approximately 11:00 a.m. on the
date three Business Days prior to the date as of which the foreign exchange
computation is made or if such rate cannot be computed as of such date such
other rate as the Administrative Agent or the Issuing Bank shall reasonably
determine is appropriate under the circumstances; provided  that the
Administrative Agent or the Issuing Bank may obtain such spot rate from another
financial institution designated by the Administrative Agent or the Issuing
Bank if the person acting in such capacity does not have as of the date of
determination a spot buying rate for any such currency; and provided 
further that the Issuing Bank may use such spot rate quoted on the date as of
which the foreign exchange computation is made in the case of any Letter of
Credit denominated in an Alternate Currency.


“Statutory Reserves” shall mean, with respect to any
currency, any reserve, liquid asset or similar requirements established by any
Governmental Authority of the United States of America or of the jurisdiction
of such currency or any jurisdiction in which Loans in such currency are made
to which banks in such jurisdiction are subject for any category of deposits or
liabilities customarily used to fund loans in such currency or by reference to
which interest rates applicable to Loans in such currency are determined.


“Subagent” shall have the meaning assigned to such
term in Section 8.02.









                                                                                 58                                                                                 










 








 








“Subordinated Intercompany Debt”
shall have the meaning assigned to such term in Section 6.01(e).


“subsidiary” shall mean, with respect to any person
(herein referred to as the “parent”), any corporation, partnership, association
or other business entity (a) of which securities or other ownership
interests representing more than 50% of the equity or more than 50% of the
ordinary voting power or more than 50% of the general partnership interests
are, at the time any determination is being made, directly or indirectly,
owned, Controlled or held, or (b) that is, at the time any determination
is made, otherwise Controlled, by the parent or one or more subsidiaries of the
parent or by the parent and one or more subsidiaries of the parent.


“Subsidiary” shall mean, unless the context otherwise
requires, a subsidiary of the Company.  Notwithstanding the foregoing (and
except for purposes of Sections 3.09, 3.13, 3.15, 3.16, 5.03, 5.09 and 7.01(k),
and the definition of Unrestricted Subsidiary contained herein), an
Unrestricted Subsidiary shall be deemed not to be a Subsidiary of the Company or
any of its Subsidiaries for purposes of this Agreement.


“Subsidiary Loan Party” shall mean (a) each
Domestic Subsidiary of the Company on the Closing Date and (b) each
Domestic Subsidiary of the Company that becomes, or is required to become, a
party to the Collateral Agreement, the Intercreditor Agreement and the Senior
Lender Intercreditor Agreement after the Closing Date. 


“Subsidiary Redesignation” shall have the meaning
provided in the definition of “Unrestricted Subsidiary” contained in this
Section 1.01.


“Swap Agreement” shall mean any agreement with
respect to any swap, forward, future or derivative transaction or option or
similar agreement involving, or settled by reference to, one or more rates,
currencies, commodities (including, for the avoidance of doubt, resin), equity
or debt instruments or securities, or economic, financial or pricing indices or
measures of economic, financial or pricing risk or value or any similar
transaction or any combination of these transactions; provided,
that no phantom stock or similar plan providing for payments only on account of
services provided by current or former directors, officers, employees or
consultants of Holdings, the Company or any of the Subsidiaries shall be a Swap
Agreement.


“Swingline Borrowing” shall mean a Borrowing
comprised of Swingline Loans.


“Swingline Borrowing Request” shall mean a request by
a Borrower substantially in the form of Exhibit C‐2. 


 “Swingline Commitment” shall mean, with respect to
the Swingline Lender, the commitment of the Swingline Lender to make Swingline
Loans pursuant to Section 2.04.  The aggregate amount of the Swingline
Commitments on the Amendment Effective Date is $32.5 million; provided,
that the Swingline Lender may at any time and from time to time, at its sole
discretion, reduce such aggregate commitment amount by the aggregate amount of
all Swingline Commitments then held by or attributed to Lenders who are then
Defaulting Lenders.


“Swingline Exposure” shall mean at any time the
aggregate principal amount of all outstanding Swingline Borrowings at such
time.  The Swingline Exposure of any Revolving Lender
at any time shall mean its Pro Rata Share of the aggregate Swingline Exposure
at such time.







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“Swingline Lender” shall mean Bank of America in its
capacity as a lender of Swingline Loans.


“Swingline Loans” shall mean the swingline loans made
to the Borrowers pursuant to Section 2.04.


“Syndication Agent” shall have the meaning assigned
to such term in the introductory paragraph of this Agreement.


“Taxes” shall mean any and all present or future
taxes, levies, imposts, duties (including stamp duties), deductions,
withholdings or similar charges (including ad valorem charges) imposed
by any Governmental Authority and any and all interest and penalties related
thereto.


“Term Facility Collateral Agent” shall have the
meaning assigned to such term in the Senior Lender Intercreditor Agreement.


“Term Loans” shall mean loans made pursuant to and in
accordance with the Term Loan Credit Agreement.


“Term Loan Credit Agreement” shall mean the Second
Amended and Restated Term Loan Credit Agreement, dated as of April 3, 2007,
among Holdings, the Company, the lenders and agents party thereto and Credit
Suisse, as administrative agent and collateral agent for such lenders, as
amended, restated, supplemented, waived, replaced, restructured, repaid,
refunded, refinanced or otherwise modified from time to time, including any
agreement or indenture extending the maturity thereof, refinancing, replacing
or otherwise restructuring all or any portion of the Indebtedness under such
agreement or agreements or indenture or indentures or increasing the amount
loaned thereunder or altering the maturity thereof.


“Term Loan Documents” shall mean the “Loan Documents”
as defined in the Term Loan Credit Agreement. 


“Term Loan Obligations” shall mean the “Obligations”
as defined in the Term Loan Credit Agreement. 


“Term Loan Secured Parties” shall have the meaning
assigned to such term in the Senior Lender Intercreditor Agreement.


“Test Period” shall mean, on any date of
determination, the period of four consecutive fiscal quarters of the Company
then most recently ended (taken as one accounting period).


“Threshold Amount” shall mean (except as noted in
Section 6.11) 12.5% of the lesser of (i) the Revolving Facility
Commitments and (ii) the Borrowing Base, but notwithstanding
the foregoing, in no event shall such amount be less than $45,000,000, in each
case as of any date of determination.







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“Total Net First Lien Leverage Ratio” shall mean, on
any date, the ratio of (a) First Lien Debt as of such date to
(b) EBITDA for the period of four consecutive fiscal quarters of the
Company most recently ended as of such date, all determined on a consolidated
basis in accordance with GAAP; provided, that EBITDA shall be determined
for the relevant Test Period on a Pro Forma Basis.


“Transaction Documents” shall mean the Loan
Documents, the Term Loan Credit Agreement and the “Loan Documents” as defined
therein and the Merger Documents.


“Transaction Expenses” shall mean any fees or
expenses incurred or paid by the Funds or Fund Affiliates, Holdings, the
Company (or any direct or indirect parent of the Company) or any of its
Subsidiaries in connection with the Transactions, this Agreement and the other
Loan Documents (including expenses in connection with Swap Agreements) and the
transactions contemplated hereby and thereby.


“Transactions” shall mean, collectively, the
transactions to occur pursuant to the Transaction Documents, including (a) the
consummation of the Business Combination; (b) the execution and delivery of the
Loan Documents, the creation or continuation of the Liens pursuant to the
Security Documents, and the initial borrowings hereunder; (c) the Refinancing;
and (d) the payment of all Transaction Expenses.


“Type” shall mean, when used in respect of any Loan
or Borrowing, the Rate by reference to which interest on such Loan or on the
Loans comprising such Borrowing is determined.  For purposes hereof, the term “Rate”
shall include the Adjusted LIBO Rate and the ABR.


“UFCA” shall have the meaning assigned to such term
in Section 9.22.


“UFTA” shall have the meaning assigned to such term
in Section 9.22.


“Unamended Credit Agreement” shall have the meaning
set forth in the recitals hereto.


“Unfunded Pension Liability” shall mean the excess of
a Plan’s benefit liabilities under Section 4001(a)(16) of ERISA, over the
current value of that Plan’s assets, determined in accordance with the
assumptions used for funding the Plan pursuant to Section 412 of the Code
for the applicable plan year.


“Uniform Commercial Code” or  “UCC” shall mean
the Uniform Commercial Code as the same may from time to time be in effect in
the State of New York or the Uniform Commercial Code (or similar code or
statute) of another jurisdiction, to the extent it may be required to apply to
any item or items of Collateral.









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“Unrestricted Cash” shall
mean domestic cash or cash equivalents of the Company or any of its
Subsidiaries that would not appear as “restricted” on a consolidated balance
sheet of the Company or any of its Subsidiaries.


“Unrestricted Subsidiary” shall mean (i) any
subsidiary of the Company identified on Schedule 1.01(i) and
(ii) any subsidiary of the Company that is acquired or created after the
Closing Date and designated by the Company as an Unrestricted Subsidiary
hereunder by written notice to the Administrative Agent; provided, that
the Company shall only be permitted to so designate a new Unrestricted
Subsidiary after the Closing Date and so long as (a) no Default or Event
of Default has occurred and is continuing or would result therefrom,
(b) such Unrestricted Subsidiary shall be capitalized (to the extent
capitalized by the Company or any of its Subsidiaries) through Investments as
permitted by, and in compliance with, Section 6.04(j), and any prior or
concurrent Investments in such Subsidiary by the Company or any of its
Subsidiaries shall be deemed to have been made under Section 6.04(j),
(c) without duplication of clause (b), any assets owned by such
Unrestricted Subsidiary at the time of the initial designation thereof shall be
treated as Investments pursuant to Section 6.04(j), and (d) such Subsidiary shall have been designated an
“unrestricted subsidiary” (or otherwise not be subject to the covenants and
defaults) under the Second Lien Notes Indentures, the Senior Subordinated
Notes Indentures, the First Priority Notes Indentures, any other Indebtedness
permitted to be incurred hereby and all Permitted Refinancing Indebtedness in
respect of any of the foregoing and all Disqualified Stock; provided,
further, that at the time of the initial Investment by the Company or
any of its Subsidiaries in such Subsidiary, the Company shall designate such
entity as an Unrestricted Subsidiary in a written notice to the Administrative
Agent.  The Company may designate any Unrestricted Subsidiary to be a
Subsidiary for purposes of this Agreement (each, a “Subsidiary Redesignation”);
provided, that (i) such Unrestricted Subsidiary, both before and
after giving effect to such designation, shall be a Wholly Owned Subsidiary of
the Company, (ii) no Default or Event of Default has occurred and is
continuing or would result therefrom, (iii) all representations and
warranties contained herein and in the other Loan Documents shall be true and
correct in all material respects with the same effect as though such
representations and warranties had been made on and as of the date of such
Subsidiary Redesignation (both before and after giving effect thereto), unless
stated to relate to a specific earlier date, in which case such representations
and warranties shall be true and correct in all material respects as of such
earlier date, and (iv) the Company shall have delivered to the
Administrative Agent an officer’s certificate executed by a Responsible Officer
of the Company, certifying to the best of such officer’s knowledge, compliance
with the requirements of preceding clauses (i) through (iii), inclusive. 


“Wholly Owned Subsidiary” of any person shall mean a
subsidiary of such person, all of the Equity Interests of which (other than
directors’ qualifying shares or nominee or other similar shares required
pursuant to applicable law) are owned by such person or another Wholly Owned
Subsidiary of such person.


“Withdrawal Liability” shall mean liability to a Multiemployer
Plan as a result of a complete or partial withdrawal from such Multiemployer
Plan, as such terms are defined in Part I of Subtitle E of Title IV of
ERISA.


“Working Capital” shall mean, with respect to the
Company and the Subsidiaries on a consolidated basis at any date of
determination, Current Assets at such date of determination minus Current Liabilities at such date of
determination; provided, that, for purposes of calculating Excess
Cash Flow, increases or decreases in Working Capital shall be calculated
without regard to any changes in Current Assets or Current Liabilities as a
result of (a) any reclassification in accordance with GAAP of assets or
liabilities, as applicable, between current and noncurrent or (b) the
effects of purchase accounting.







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                        SECTION
1.02. Terms Generally


.  The definitions set forth or referred to in
Section 1.01 shall apply equally to both the singular and plural forms of
the terms defined.  Whenever the context may require, any pronoun shall include
the corresponding masculine, feminine and neuter forms.  The words “include,”
“includes” and “including” shall be deemed to be followed by the phrase
“without limitation.”  All references herein to Articles, Sections, Exhibits
and Schedules shall be deemed references to Articles and Sections of, and
Exhibits and Schedules to, this Agreement unless the context shall otherwise
require.  Except as otherwise expressly provided herein, any reference in this
Agreement to any Loan Document shall mean such document as amended, restated,
supplemented or otherwise modified from time to time.  Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided,
that, if the Company notifies the Administrative Agent that the Company
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the  Closing Date in GAAP or in the application thereof
on the operation of such provision (or if the Administrative Agent notifies the
Company that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have
been withdrawn or such provision amended in accordance herewith.


                        SECTION
1.03. Effectuation of Transactions


.  Each of the representations and warranties of Holdings
and the Borrowers contained in this Agreement (and all corresponding
definitions) are made after giving effect to the Transactions, unless the
context otherwise requires.


                        SECTION
1.04. Exchange Rates; Currency Equivalents


.  (a)  The Administrative Agent shall determine the Spot
Rate as of each Revaluation Date to be used for calculating Dollar Equivalent
amounts of Alternate Currency Letters of Credit.  Such Spot Rate shall become
effective as of such Revaluation Date and shall be the Spot Rate employed in
converting any amounts between the Dollars and each Alternate Currency until
the next Revaluation Date to occur.  Except for purposes of financial
statements delivered by Loan Parties hereunder or calculating financial
covenants hereunder or except as otherwise provided herein, the applicable
amount of any currency (other than Dollars) for purposes of the Loan Documents
shall be such Dollar Equivalent amount as so determined by the Administrative
Agent.  No Default or Event of Default shall arise as a result of any
limitation or threshold set forth in U.S. Dollars in Article VI or
paragraph (f) or (j) of Section 7.01 being exceeded solely as a
result of changes in currency exchange rates from those rates applicable on the
first day of the fiscal quarter in which such determination occurs or in
respect of which such determination is being made.


 







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(c)               
Wherever in this Agreement in connection with an Alternate Currency
Letter of Credit, an amount, such as a required minimum or multiple amount, is
expressed in Dollars, such amount shall be the Dollar Equivalent of such Dollar
amount (rounded to the nearest unit of such Alternate Currency, with 0.5 of a
unit being rounded upward), as determined by the Administrative Agent.


                        SECTION
1.05. Senior Debt


.  The Obligations constitute (a) “First-Lien
Indebtedness” pursuant to, and as defined in, the Intercreditor Agreement,
(b) “Senior Debt” and “Designated Senior Debt” pursuant to, and as defined
in, each Senior Subordinated Notes Indenture, (c) “First-Priority Lien
Obligations” pursuant to, and as defined in, each Second Lien Notes Indenture,
and (d) “Revolving Facility Obligations” as defined in the Senior Lender
Intercreditor Agreement.  This Agreement is a “Credit Agreement” for purposes
of the Subordinated Indentures, the First Priority Notes Indentures and the
Second Lien Notes Indentures.


ARTICLE II



The Credits


SECTION 2.01.
Commitments 


.  Subject to the terms and conditions set forth herein,
each Lender agrees to make Revolving Loans to the Borrowers from time to time
during the Availability Period in an aggregate principal amount that will not
result in (i) such Lender’s Revolving Facility Credit Exposure (except for
the Administrative Agent with respect to Agent Advances) exceeding such
Lender’s Revolving Facility Commitment (or, if less, prior to delivery to the
Administrative Agent of the Post-Closing Reports, such Lender’s Pro Rata Share
of $340 million), or (ii) the Revolving Facility Credit Exposure
exceeding the total Revolving Facility Commitments or, until delivery of the
Post-Closing Reports to the Administrative Agent, $340 million, or
(iii) such Lender’s Revolving Facility Credit Exposure exceeding such
Lender’s Pro Rata Share of the Borrowing Base.  The Lenders, however, in their
unanimous discretion, may elect to make Revolving Loans or issue or arrange to
have issued Letters of Credit in excess of the Availability on one or more
occasions, but if they do so, neither the Administrative Agent nor the Lenders
shall be deemed thereby to have changed the limits of the Borrowing Base or to
be obligated to exceed such limits on any other occasion.  If the Revolving
Facility Credit Exposure exceeds the Borrowing Base, the Lenders may refuse to
make or otherwise restrict the making of Revolving Loans and the issuance of
Letters of Credit as the Lenders determine until such excess has been
eliminated, subject to the Administrative Agent’s authority, in its sole
discretion, to make Agent Advances pursuant to the terms of
Section 2.04(d).  Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrowers may borrow, prepay and reborrow
Revolving Loans.


            SECTION 2.03. Loans
and Borrowings


.  (a)  Each Revolving Loan shall be made as part of a
Borrowing consisting of Loans under the Revolving Facility and of the same Type
made by the Lenders ratably in accordance with their respective Commitments
under the Revolving Facility (or, in the case of Swingline Loans, in accordance
with their respective Swingline Commitments); provided, however,
that Revolving Loans shall be made by the Revolving Lenders ratably in
accordance with their respective Pro Rata Shares on the date such Loans are
made hereunder.  The failure of any Lender to make any Loan required to be made
by it shall not relieve any other Lender of its
obligations hereunder; provided, that the Commitments of the
Lenders are several and no Lender shall be responsible for any other Lender’s
failure to make Loans as required.







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            (b)
       Subject to Section 2.14, each Borrowing (other than a Swingline
Borrowing and excluding Agent Advances) shall be comprised entirely of ABR
Loans or Eurocurrency Loans as the Borrowers may request in accordance
herewith.  Each Swingline Borrowing shall be an ABR Borrowing.  Each Lender at
its option may make any ABR Loan or Eurocurrency Loan by causing any domestic
or foreign branch or Affiliate of such Lender to make such Loan; provided,
that any exercise of such option shall not affect the obligation of the
Borrowers to repay such Loan in accordance with the terms of this Agreement and
such Lender shall not be entitled to any amounts payable under
Section 2.15 or 2.17 solely in respect of increased costs resulting from
such exercise and existing at the time of such exercise.


            (c)        At
the commencement of each Interest Period for any Eurocurrency Revolving
Facility Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of the Borrowing Multiple and not less than the Borrowing
Minimum.  At the time that each ABR Revolving Facility Borrowing is made, such
Borrowing shall be in an aggregate amount that is an integral multiple of the
Borrowing Multiple and not less than the Borrowing Minimum; provided,
that an ABR Revolving Facility Borrowing may be in an aggregate amount that is
equal to the entire unused balance of the Revolving Facility Commitments or
that is required to finance the reimbursement of an L/C – BA Disbursement as
contemplated by Section 2.05(e).  Each Swingline Borrowing shall be in an
amount that is an integral multiple of the Borrowing Multiple and not less than
the Borrowing Minimum.  Borrowings of more than one Type and under more than
one Facility may be outstanding at the same time; provided, that
there shall not at any time be more than a total of 10 Eurocurrency Borrowings
outstanding under the Revolving Facility.


(d)                                      
Notwithstanding any other provision of this Agreement, no Borrower shall
be entitled to request, or to elect to convert or continue, any Borrowing if
the Interest Period requested with respect thereto would end after the
Revolving Facility Maturity Date.


            SECTION 2.03. Requests
for Borrowings


.  To request a Revolving Facility Borrowing, a Borrower
shall notify the Administrative Agent of such request by telephone (a) in
the case of a Eurocurrency Borrowing, not later than 12:00 p.m., Local Time,
three Business Days before the date of the proposed Borrowing or (b) in
the case of an ABR Borrowing, not later than 12:00 noon, Local Time, one
Business Day before the date of the proposed Borrowing; provided, that
any such notice of an ABR Revolving Facility Borrowing to finance the
reimbursement of an L/C – BA Disbursement as contemplated by
Section 2.05(e) may be given not later than 10:00 a.m., Local Time, on the
date of the proposed Borrowing.  Each such telephonic Borrowing Request shall
be irrevocable and shall be confirmed promptly by hand delivery or telecopy to
the Administrative Agent of a written Borrowing Request in a form approved by
the Administrative Agent and signed by such Borrower.  Each such telephonic and
written Borrowing Request shall specify the following information in compliance
with Section 2.02:


(i) the aggregate amount of
the requested Borrowing;


(ii) the date of such
Borrowing, which shall be a Business Day;


 







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(iii)
whether such Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing;


(iv) in the case of a
Eurocurrency Borrowing, the initial Interest Period to be applicable thereto,
which shall be a period contemplated by the definition of the term “Interest
Period”; and


(v) the location and number
of the Borrower’s account to which funds are to be disbursed.


If
no election as to the Type of Revolving Facility Borrowing is specified, then
the requested Revolving Facility Borrowing shall be an ABR Borrowing.  If no
Interest Period is specified with respect to any requested Eurocurrency
Borrowing, then the applicable Borrower shall be deemed to have selected an
Interest Period of one month’s duration.  Promptly following receipt of a
Borrowing Request in accordance with this Section, the Administrative Agent
shall advise each Lender of the details thereof and of the amount of such
Lender’s Loan to be made as part of the requested Borrowing.


SECTION 2.04. Swingline
Loans and Agent Advances


.


(a)                           
Subject to the terms and conditions set forth herein, the Swingline
Lender, in reliance upon the agreements of the other Lenders set forth in this
Section 2.04, agrees to make Swingline Loans to the Borrowers from time to
time during the Availability Period, in an aggregate principal amount at any
time outstanding that will not result in (i) the aggregate principal
amount of outstanding Swingline Loans exceeding the Swingline Commitment or
(ii) the Revolving Facility Credit Exposure exceeding the Borrowing Base;
provided, that the Swingline Lender shall not be required to make a
Swingline Loan to refinance an outstanding Swingline Borrowing.  Within the
foregoing limits and subject to the terms and conditions set forth herein, the
Borrowers may borrow, prepay and reborrow Swingline Loans.


(b)              
To request a Swingline Borrowing, the Borrowers shall notify the
Administrative Agent and the Swingline Lender of such request by telephone
(confirmed by a Swingline Borrowing Request by telecopy), not later than 1:00
p.m., Local Time, on the day of a proposed Swingline Borrowing.  Each such
notice and Swingline Borrowing Request shall be irrevocable and shall specify
(i) the requested date (which shall be a Business Day) and (ii) the
amount of the requested Swingline Borrowing.  The Swingline Lender shall
consult with the Administrative Agent as to whether the making of the Swingline
Loan is in accordance with the terms of this Agreement prior to the Swingline
Lender funding such Swingline Loan.  The Swingline Lender shall make each
Swingline Loan in accordance with Section 2.02(a) on the proposed date
thereof by wire transfer of immediately available funds by 3:00 p.m., Local
Time, to the account of such Borrower (or, in the case of a Swingline Borrowing
made to finance the reimbursement of an L/C – BA Disbursement as provided in
Section 2.05(e), by remittance to the applicable Issuing Bank).


(c)               
The Swingline Lender may by written notice given to the Administrative
Agent not later than 10:00 a.m., Local Time, on any Business Day require the
Revolving Lenders to acquire participations on such Business Day in all or a
portion of the outstanding Swingline 







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Loans made by
it.  Such notice shall specify the aggregate amount of such Swingline Loans in
which the Revolving Lenders will participate.  Promptly upon receipt of such
notice, the Administrative Agent will give notice thereof to each such Lender,
specifying in such notice such Lender’s Revolving Lender’s Pro Rata Share of
such Swingline Loan or Loans.  Each Revolving Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above, to pay to the
Administrative Agent for the account of the Swingline Lender, such Revolving
Lender’s Pro Rata Share of such Swingline Loan or Loans.  Each Revolving Lender
acknowledges and agrees that its respective obligation to acquire
participations in Swingline Loans pursuant to this paragraph is absolute
and unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever.  Each
Revolving Lender shall comply with its obligation under this paragraph by
wire transfer of immediately available funds (and the Administrative Agent may
apply Cash Collateral available with respect to the applicable Swingline Loan),
in the same manner as provided in Section 2.06 with respect to Loans made
by such Revolving Lender (and Section 2.06 shall apply, mutatis
mutandis, to the payment obligations of the Lenders), and the
Administrative Agent shall promptly pay to the Swingline Lender the amounts so
received by it from the Revolving Lenders.  The Administrative Agent shall
notify the Borrowers of any participations in any Swingline Loan acquired
pursuant to this paragraph (c), and thereafter payments in respect of such
Swingline Loan shall be made to the Administrative Agent and not to the Swingline
Lender.  Any amounts received by the Swingline Lender from the Borrowers (or
other party on behalf of such Borrowers) in respect of a Swingline Loan after
receipt by the Swingline Lender of the proceeds of a sale of participations
therein shall be promptly remitted to the Administrative Agent; any such
amounts received by the Administrative Agent shall be promptly remitted by the
Administrative Agent to the Revolving Lenders that shall have made their
payments pursuant to this paragraph and to the Swingline Lender, as their
interests may appear; provided, that any such payment so remitted
shall be repaid to the Swingline Lender or to the Administrative Agent, as
applicable, if and to the extent such payment is required to be refunded to the
applicable Borrower for any reason.  The purchase of participations in a
Swingline Loan pursuant to this paragraph shall not relieve the Borrowers
of any default in the payment thereof.


(d)              
Subject to the limitations set forth in the provisos contained in this Section 2.04(d),
the Administrative Agent is hereby authorized by the Borrowers and the Lenders,
from time to time in the Administrative Agent’s sole discretion, (i) after
the occurrence of a Default or an Event of Default, or (ii) at any time
that any of the other applicable conditions precedent set forth in Article IV 
have not been satisfied, to make advances to or for the account of any Borrower
on behalf of the Lenders which the Administrative Agent, in its reasonable
business judgment, deems necessary or desirable (A) to preserve or protect
the Collateral, or any portion thereof, (B) to enhance the likelihood of,
or maximize the amount of, repayment of the Revolving Loans and other
Obligations, or (C) to pay any other amount chargeable to the Borrowers
pursuant to the terms of this Agreement, including costs, fees, and expenses as
described in Section 9.05(a) (any of the advances described in this Section 2.04(d) 
being hereinafter referred to as “Agent Advances”); provided  that
(1) the Revolving Facility Credit Exposure after giving effect to any
Agent Advance shall not exceed the Revolving Facility Commitments and
(2) Agent Advances outstanding and unpaid at no time will exceed $30
million in the aggregate, and provided  further  that the Required
Lenders may at any time revoke the Administrative Agent’s 







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authorization
contained in this Section 2.04(d)  to make Agent Advances, any such
revocation to be in writing and to become effective prospectively upon the
Administrative Agent’s receipt thereof.  The Agent Advances shall be repayable
on demand and secured by the Collateral Agent’s Liens in and to the Collateral,
shall constitute Obligations hereunder, and shall bear interest at the rate
applicable to Revolving Loans from time to time.  The Administrative Agent
shall notify each Lender in writing of each Agent Advance; provided  that
any delay or failure of the Administrative Agent in providing any such notice
to any Lender shall not result in any liability or constitute the breach of any
duty or obligation of the Administrative Agent hereunder.


(e)               
The Administrative Agent, the Swingline Lender and the Lenders agree
(which agreement shall not be for the benefit of or enforceable by the
Borrowers) that in order to facilitate the administration of this Agreement and
the other Loan Documents, settlement among them as to the Revolving Loans and
the Swingline Loans and the Agent Advances shall take place on a periodic basis
in accordance with the following provisions:


(i)         The Administrative Agent shall request
settlement (a “Settlement”) with the Lenders on at least a weekly basis,
or on a more frequent basis if so determined by the Administrative Agent, (A)
on behalf of the Swingline Lender, with respect to each outstanding Swingline
Loan, (B) for itself, with respect to each Agent Advance, and
(C) with respect to collections received, in each case, by notifying the
Lenders of such requested Settlement by telecopy, telephone, or other similar
form of transmission, of such requested Settlement, no later than 12:00 noon,
Local Time, on the date of such requested Settlement (the “Settlement Date”). 
Each Lender (other than the Swingline Lender, in the case of Swingline Loans,
and the Administrative Agent, in the case of Agent Advances) shall make
the amount of such Lender’s Pro Rata Share of the outstanding principal amount
of the Swingline Loans and Agent Advances with respect to which Settlement is
requested available to the Administrative Agent, to such account of the
Administrative Agent as the Administrative Agent may designate, not later than
3:00 p.m., Local Time, on the Settlement Date applicable thereto, which may
occur before or after the occurrence or during the continuation of a Default or
an Event of Default and whether or not the applicable conditions precedent set
forth in Article IV have then been satisfied.  Such amounts made available
to the Administrative Agent shall be applied against the amounts of the
applicable Swingline Loan or Agent Advance and, together with the portion of
such Swingline Loan or Agent Advance representing the Swingline Lender’s or
Administrative Agent’s Pro Rata Share thereof, shall constitute Revolving Loans
of the Revolving Lenders.  If any such amount is not made available to the
Administrative Agent by any Revolving Lender on the Settlement Date applicable
thereto, the Administrative Agent shall, on behalf of the Swingline Lender with
respect to each outstanding Swingline Loan and for itself with respect to each
Agent Advance, be entitled to recover such amount on demand from such Revolving
Lender together with interest thereon at the Federal Funds Effective Rate for
the first three days from and after the Settlement Date and thereafter at the
interest rate then applicable to ABR Revolving Loans.


(ii)        Notwithstanding the foregoing, not more than one
Business Day after demand is made by the Administrative Agent (whether before
or after the occurrence of a Default or an Event of Default and regardless of
whether the Administrative Agent has requested a Settlement with respect to a
Swingline Loan or Agent Advance), each Revolving Lender (A) shall irrevocably
and unconditionally purchase and receive from the Swingline Lender or the
Administrative Agent, as the case may be, without recourse or warranty, an
undivided interest and participation in such
Swingline Loan or Agent Advance equal to such Revolving Lender’s Pro Rata Share
of such Swingline Loan  or Agent Advance and (B) if Settlement has not
previously occurred with respect to such Swingline Loans or Agent Advances,
upon demand by the Swingline Lender or the Administrative Agent, as the case
may be, shall pay to the Swingline Lender or Administrative Agent, as
applicable, as the purchase price of such participation an amount equal to one‐hundred
percent (100%) of such Revolving Lender’s Pro Rata Share of such Swingline
Loans or Agent Advances. If such amount is not in fact made available to the
Administrative Agent by any Lender, the Administrative Agent shall be entitled
to recover such amount on demand from such Lender together with interest
thereon at the Federal Funds Effective Rate for the first three days from and
after such demand and thereafter at the Interest Rate then applicable to ABR
Revolving Loans.







                                                                                 68                                                                                 










 








 










(iii)       From and after the date, if any, on which any
Lender purchases an undivided interest and participation in any Swingline Loan
or Agent Advance pursuant to clause (ii) preceding, the
Administrative Agent shall promptly distribute to such Revolving Lender such
Revolving Lender’s Pro Rata Share of all payments of principal and interest and
all proceeds of Collateral received by the Administrative Agent in respect of
such Swingline Loan or Agent Advance.


(iv)       Between Settlement Dates, to the extent no Agent
Advances are outstanding, the Administrative Agent may pay over to the
Swingline Lender any payments received by the Administrative Agent, which in
accordance with the terms of this Agreement would be applied to the reduction
of the Revolving Loans, for application to the Swingline Lender’s Revolving
Loans or Swingline Loans.  If, as of any Settlement Date, collections received
since the then immediately preceding Settlement Date have been applied to the
Swingline Lender’s Revolving Loans, the Swingline Lender shall pay to the
Administrative Agent for the accounts of the Lenders, to be applied to the
outstanding Revolving Loans of such Lenders, an amount such that each Lender
shall, upon receipt of such amount, have, as of such Settlement Date, its Pro
Rata Share of the Revolving Loans.  During the period between Settlement Dates,
the Swingline Lender with respect to Swingline Loans, the Administrative Agent
with respect to Agent Advances, and each Revolving Lender with respect to the
Revolving Loans, shall be entitled to interest at the applicable rate or rates
payable under this Agreement on the actual average daily amount of funds
employed by the Swingline Lender, the Administrative Agent and the Revolving
Lenders.


            SECTION 2.05. Letters
of Credit


.  (a)  General.  Subject to the terms and conditions set
forth herein, any Borrower may request the issuance of Letters of Credit for
its own account in a form reasonably acceptable to the applicable Issuing Bank,
at any time and from time to time during the Availability Period and prior to
the date that is five Business Days prior to the Revolving Facility Maturity
Date.  In the event of any inconsistency between the terms and conditions of
this Agreement and the terms and conditions of any form of letter of credit
application or other agreement (including any Acceptance Documents) submitted
by a Borrower to, or entered into by a Borrower with, an Issuing Bank relating
to any Letter of Credit, the terms and conditions of this Agreement shall
control.  Each Existing Letter of Credit and Existing Bankers’ Acceptance shall
be deemed to be a Letter of Credit or Bankers’ Acceptance, as applicable, under
this Facility and each Lender that is an issuer of an Existing Letter of Credit
or Existing Bankers’ Acceptance shall be deemed to be an Issuing Bank with
respect to such Existing Letter of Credit or Existing
Bankers’ Acceptance, as applicable, and shall have all rights of an Issuing
Bank hereunder (but shall have no obligation extend or renew any Existing
Letter of Credit or Existing Bankers’ Acceptance or to issue additional Letters
of Credit or Bankers’ Acceptances) until such Existing Letter of Credit or
Existing Bankers’ Acceptance, as applicable, has been terminated.  No Issuing
Bank shall be under any obligation to issue any Letter of Credit if any Lender
is at that time a Defaulting Lender, unless the Issuing Bank has entered into
customary cash collateral arrangements with the Company or such Lender to
eliminate the Issuing Bank’s actual or potential Fronting Exposure (after
giving effect to Section 2.23(a)(iv)) with respect to the Defaulting
Lender arising from the Letter of Credit then proposed to be issued.  







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            (b)        Notice
of Issuance,  Amendment,  Renewal,  Extension:  Certain
Conditions.  To request the issuance of a Letter of Credit (or the
amendment, renewal (other than an automatic extension in accordance with
paragraph (c) of this Section) or extension of an outstanding Letter of
Credit), a Borrower shall hand deliver or telecopy (or transmit by electronic
communication, if arrangements for doing so have been approved by the
applicable Issuing Bank) to the applicable Issuing Bank and the Administrative
Agent (three Business Days in advance of the requested date of issuance,
amendment or extension or such shorter period as the Administrative Agent and
the Issuing Bank in their sole discretion may agree) a notice requesting the
issuance of a Letter of Credit, or identifying the Letter of Credit to be
amended or extended, and specifying the date of issuance, amendment or
extension (which shall be a Business Day), the date on which such Letter of
Credit and, in the case of an Acceptance Credit, all Bankers’ Acceptances
created thereunder are to expire (which shall comply with
paragraph (c) of this Section), the amount and currency (which may be
Dollars or an Alternate Currency) of such Letter of Credit, the name and
address of the beneficiary thereof and such other information as shall be
necessary to issue, amend or extend such Letter of Credit (including whether
such Letter of Credit is an Acceptance Credit).  If requested by the applicable
Issuing Bank, such Borrower also shall submit a letter of credit application on
such Issuing Bank’s standard form in connection with any request for a Letter
of Credit.  A Letter of Credit shall be issued, amended or extended only if
(and upon issuance, amendment or extension of each Letter of Credit such
Borrower shall be deemed to represent and warrant that), after giving effect to
such issuance, amendment or extension (i) the Revolving L/C – BA Exposure
shall not exceed the Letter of Credit Sublimit, (ii) the Revolving Facility
Credit Exposure shall not exceed the Borrowing Base and (iii) in the case
of any Acceptance Credit, the creation of any related Bankers’ Acceptances
would not cause the applicable Issuing Bank to exceed the maximum amount of
outstanding bankers’ acceptances permitted by applicable law.


            (c)        Expiration
Date.  Each Letter of Credit shall expire (and in the case of an Acceptance
Credit, shall provide that all Bankers’ Acceptances created thereunder (which
shall in no event have a maturity of less than 30 or more than 120 days after
creation thereof) shall expire) at or prior to the close of business on
the earlier of (i) the date one year (unless otherwise agreed upon by the
Administrative Agent and the Issuing Bank in their sole discretion) after the
date of the issuance of such Letter of Credit (or, in the case of any extension
thereof, one year (unless otherwise agreed upon by the Administrative Agent and
the Issuing Bank in their sole discretion) after such renewal or extension) and
(ii) the date that is three Business Days prior to the Revolving Facility
Maturity Date; provided, that any Letter of Credit with one year
tenor may provide for automatic extension thereof for additional one year
periods (which, in no event, shall extend beyond the date referred to in
clause (ii) of this paragraph (c)) so long as such Letter of
Credit permits the Issuing Bank to prevent any such extension at least once in
each twelve-month 







                                                                                 70                                                                                 










 








 








period (commencing with the date of
issuance of such Letter of Credit) by giving prior notice to the beneficiary
thereof not later than five days in each such twelve-month period to be agreed
upon at the time such Letter of Credit is issued; provided, further,
that if the Issuing Bank and the Administrative Agent each consent in their
sole discretion, the expiration date on any Letter of Credit (or, in the case
of an Acceptance Credit, any Bankers’ Acceptances thereunder) may extend beyond
the date referred to in clause (ii) above, provided that, if any such
Letter of Credit is outstanding or is issued after the date that is 30 days
prior to the Revolving Facility Maturity Date the Borrowers shall provide cash
collateral pursuant to documentation reasonably satisfactory to the
Administrative Agent and the relevant Issuing Bank in an amount equal to 105%
of the face amount of each such Letter of Credit on or prior to the date that
is 30 days prior to the Revolving Facility Maturity Date or, if later, such
date of issuance.


            (d)       Participations. 
By the issuance of a Letter of Credit (or an amendment to a Letter of Credit
increasing the amount thereof) or the creation of a Bankers’ Acceptance in
respect of an Acceptance Credit, and without any further action on the part of
the applicable Issuing Bank or the Revolving Lenders, such Issuing Bank hereby
grants to each Revolving Lender, and each Revolving Lender hereby acquires from
such Issuing Bank, a participation in such Letter of Credit or Bankers’
Acceptance equal to such Revolving Lender’s Pro Rata Share of the aggregate
amount available to be drawn under such Letter of Credit or the aggregate
amount of such Bankers’ Acceptance (calculated, in the case of Alternate
Currency Letters of Credit, based on the Dollar Equivalent thereof).  In
consideration and in furtherance of the foregoing, each Revolving Lender hereby
absolutely and unconditionally agrees to pay to the Administrative Agent, for
the account of the applicable Issuing Bank, in Dollars, such Revolving Lender’s
Pro Rata Share of each L/C – BA Disbursement made by such Issuing Bank and not
reimbursed by the Borrowers on the date due as provided in paragraph (e)
of this Section, or of any reimbursement payment required to be refunded to the
Borrowers for any reason (calculated, in the case of any Alternate Currency
Letter of Credit, based on the Dollar Equivalent thereof).  Each Revolving
Lender acknowledges and agrees that its obligation to acquire participations
pursuant to this paragraph in respect of Letters of Credit is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including any amendment, renewal or extension of any Letter of Credit or the
occurrence and continuance of a Default or reduction or termination of the
Commitments, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever.


            (e)        Reimbursement. 
If the applicable Issuing Bank shall make any L/C – BA Disbursement in respect
of a Letter of Credit or Bankers’ Acceptance, the Borrowers shall reimburse
such L/C – BA Disbursement by paying to the Administrative Agent an amount in
Dollars equal to such L/C – BA Disbursement (or, in the case of an Alternate
Currency Letter of Credit, the Dollar Equivalent thereof) not later than 2:00
p.m., Local Time, on the third Business Day after the Borrowers receives notice
under paragraph (g) of this Section of such L/C – BA Disbursement,
together with accrued interest thereon from the date of such L/C – BA
Disbursement at the rate applicable to ABR Loans; provided, that
the Borrowers may, subject to the conditions to borrowing set forth herein,
request in accordance with Section 2.03 or 2.04 that such payment be
financed with an ABR Revolving Facility Borrowing or a Swingline Borrowing, as
applicable, in an equivalent amount and, to the extent so financed, the Borrowers’
obligation to make such payment shall be discharged and replaced by the
resulting ABR Revolving Facility Borrowing or Swingline Borrowing.  If the
Borrowers fail to reimburse any L/C – BA Disbursement when due, then the
Administrative Agent shall promptly notify the applicable 







                                                                                 71                                                                                 










 








 








Issuing
Bank and each other Revolving Lender of the applicable L/C – BA Disbursement,
the payment then due from the Borrowers in respect thereof and, in the case of
a Revolving Lender, such Lender’s Pro Rata Share thereof.  Promptly following
receipt of such notice, each Revolving Lender shall pay to the Administrative
Agent in Dollars its Pro Rata Share of the payment then due from the Borrowers
in the same manner as provided in Section 2.06 with respect to Loans made
by such Lender (and Section 2.06 shall apply, mutatis  mutandis,
to the payment obligations of the Revolving Lenders), and the Administrative
Agent shall promptly pay to the applicable Issuing Bank the amounts so received
by it from the Revolving Lenders.  Promptly following receipt by the
Administrative Agent of any payment from the Borrowers pursuant to this
paragraph, the Administrative Agent shall distribute such payment to the
applicable Issuing Bank or, to the extent that Revolving Lenders have made
payments pursuant to this paragraph to reimburse such Issuing Bank, then
to such Lenders and such Issuing Bank as their interests may appear.  Any
payment made by a Revolving Lender pursuant to this paragraph to reimburse
an Issuing Bank for any L/C – BA Disbursement (other than the funding of an ABR
Revolving Loan or a Swingline Borrowing as contemplated above) shall not
constitute a Loan and shall not relieve the Borrowers of their obligation to
reimburse such L/C – BA Disbursement.


(f)               
Obligations Absolute.  The obligation of the Borrowers to
reimburse L/C – BA Disbursements as provided in paragraph (e) of this
Section shall be absolute, unconditional and irrevocable, and shall be
performed strictly in accordance with the terms of this Agreement under any and
all circumstances whatsoever and irrespective of (i) any lack of validity
or enforceability of any Letter of Credit, any Bankers’ Acceptance or this
Agreement, or any term or provision therein, (ii) any draft or other
document presented under a Letter of Credit or Bankers’ Acceptance  proving to
be forged, fraudulent or invalid in any respect or any statement therein being
untrue or inaccurate in any respect, (iii) payment by the applicable
Issuing Bank under a Letter of Credit or Bankers’ Acceptance against presentation
of a draft or other document that does not comply with the terms of such Letter
of Credit or Bankers’ Acceptance or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of,
or provide a right of setoff against, the Borrowers’ obligations hereunder. 
Neither the Administrative Agent, the Lenders nor any Issuing Bank, nor any of
their Related Parties, shall have any liability or responsibility by reason of
or in connection with the issuance or transfer of any Letter of Credit or
Bankers’ Acceptance or any payment or failure to make any payment thereunder
(irrespective of any of the circumstances referred to in the preceding
sentence), or any error, omission, interruption, loss or delay in transmission
or delivery of any draft, notice or other communication under or relating to
any Letter of Credit or Bankers’ Acceptance (including any document required to
make a drawing thereunder), any error in interpretation of technical terms or
any consequence arising from causes beyond the control of such Issuing Bank, or
any of the circumstances referred to in clauses (i), (ii) or
(iii) of the first sentence; provided, that the foregoing shall not
be construed to excuse the applicable Issuing Bank from liability to the
Borrowers to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by the Borrowers to the
extent permitted by applicable law) suffered by the Borrowers that are
determined by a court of competent jurisdiction to have been caused by such
Issuing Bank’s failure to exercise care when determining whether drafts and
other documents presented under a Letter of Credit or Bankers’ Acceptance
comply with the terms thereof.  The parties hereto expressly agree that, in the
absence of gross negligence or willful misconduct on the part of the applicable
Issuing Bank, such Issuing Bank shall be deemed to have exercised care in each
such determination.  In furtherance of the 







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foregoing
and without limiting the generality thereof, the parties agree that, with
respect to documents presented which appear on their face to be in substantial
compliance with the terms of a Letter of Credit or Bankers’ Acceptance, the
applicable Issuing Bank may, in its sole discretion, either accept and make
payment upon such documents without responsibility for further investigation,
regardless of any notice or information to the contrary.


(g)              
Disbursement Procedures.  The applicable Issuing Bank shall,
promptly following its receipt thereof, examine all documents purporting to
represent a demand for payment or creation of a Bankers’ Acceptance under a
Letter of Credit or any presentation for payment of a Bankers’ Acceptance. 
Such Issuing Bank shall promptly notify the Administrative Agent and the
applicable Borrower by telephone (confirmed by telecopy) of any such demand for
payment or Bankers’ Acceptance and whether such Issuing Bank has made or will make
a L/C – BA Disbursement thereunder; provided, that any failure to
give or delay in giving such notice shall not relieve the Borrowers of their
obligation to reimburse such Issuing Bank and the Revolving Lenders with
respect to any such L/C – BA Disbursement.


(h)              
Interim Interest.  If an Issuing Bank shall make any L/C – BA
Disbursement, then, unless the Borrowers shall reimburse such L/C – BA
Disbursement in full on the date such L/C – BA Disbursement is made, the unpaid
amount thereof shall bear interest, for each day from and including the date
such L/C – BA Disbursement is made to but excluding the date that the Borrowers
reimburse such L/C – BA Disbursement, at the rate per annum then
applicable to ABR Revolving Loans; provided, that, if such L/C –
BA Disbursement is not reimbursed by the Borrowers when due pursuant to
paragraph (e) of this Section, then Section 2.13(c) shall apply. 
Interest accrued pursuant to this paragraph shall be for the account of
the applicable Issuing Bank, except that interest accrued on and after the date
of payment by any Revolving Lender pursuant to paragraph (e) of this
Section to reimburse such Issuing Bank shall be for the account of such
Revolving Lender to the extent of such payment.


(i)                
Replacement of an Issuing Bank.  An Issuing Bank may be replaced
at any time by written agreement among the Company, the Administrative Agent,
the replaced Issuing Bank and the successor Issuing Bank.  The Administrative
Agent shall notify the Lenders of any such replacement of an Issuing Bank.  At
the time any such replacement shall become effective, the Borrowers shall pay
all unpaid fees accrued for the account of the replaced Issuing Bank pursuant
to Section 2.12.  From and after the effective date of any such
replacement, (i) the successor Issuing Bank shall have all the rights and
obligations of the replaced Issuing Bank under this Agreement with respect to
Letters of Credit to be issued thereafter and (ii) references herein to
the term “Issuing Bank” shall be deemed to refer to such successor or to any
previous Issuing Bank, or to such successor and all previous Issuing Banks, as
the context shall require.  After the replacement of an Issuing Bank hereunder,
the replaced Issuing Bank shall remain a party hereto and shall continue to
have all the rights and obligations of such Issuing Bank under this Agreement
with respect to Letters of Credit or Bankers’ Acceptances issued by it prior to
such replacement but shall not be required to issue additional Letters of
Credit.


(j)                
Cash Collateralization on Event of Default.  If any Event of
Default shall occur and be continuing, (i) in the case of an Event of
Default described in Section 7.01(h) or (i), on the Business Day or
(ii) in the case of any other Event of Default, on the third Business Day,
in each case, following the date on which the Company receives notice from the
Administrative 







                                                                                 73                                                                                 










 








 








Agent (or, if the maturity of the
Loans has been accelerated, Revolving Lenders with Revolving L/C – BA Exposure
representing greater than 50% of the total Revolving L/C – BA Exposure)
demanding the deposit of cash collateral pursuant to this paragraph, the
Borrowers shall deposit in an account with the Administrative Agent, in the
name of the Administrative Agent and for the benefit of the Lenders, an amount
in cash equal to the Revolving L/C – BA Exposure as of such date plus any
accrued and unpaid interest thereon; provided, that upon the
occurrence of any Event of Default with respect to any Borrower described in
clause (h) or (i) of Section 7.01, the obligation to deposit
such cash collateral shall become effective immediately, and such deposit shall
become immediately due and payable, without demand or other notice of any
kind.  Each such deposit pursuant to this paragraph shall be held by the
Administrative Agent as collateral for the payment and performance of the
obligations of the Borrowers under this Agreement.  The Administrative Agent
shall have exclusive dominion and control, including the exclusive right of
withdrawal, over such account.  Other than any interest earned on the
investment of such deposits, which investments shall be made at the option and
sole discretion of (i) for so long as an Event of Default shall be
continuing, the Administrative Agent and (ii) at any other time, the
Borrowers, in each case, in Permitted Investments and at the risk and expense
of the Borrowers, such deposits shall not bear interest.  Interest or profits,
if any, on such investments shall accumulate in such account.  Moneys in such
account shall be applied by the Administrative Agent to reimburse each Issuing
Bank for L/C – BA Disbursements for which such Issuing Bank has not been
reimbursed and, to the extent not so applied, shall be held for the
satisfaction of the reimbursement obligations of the Borrowers for the Revolving
L/C – BA Exposure at such time or, if the maturity of the Loans has been
accelerated (but subject to the consent of Revolving Lenders with Revolving L/C
– BA Exposure representing greater than 50% of the total Revolving L/C – BA
Exposure), be applied to satisfy other obligations of the Borrowers under this
Agreement.  If the Borrowers are required to provide an amount of cash
collateral hereunder as a result of the occurrence of an Event of Default, such
amount (to the extent not applied as aforesaid) shall be returned to the
Borrowers within three Business Days after all Events of Default have been
cured or waived. 


(k)              
Additional Issuing Banks.  From time to time, the Borrowers may
by notice to the Administrative Agent designate one or more Lenders (in addition
to Bank of America, Credit Suisse and Deutsche Bank AG New York Branch) each of
which agrees (in its sole discretion) to act in such capacity and is reasonably
satisfactory to the Administrative Agent as an Issuing Bank.  Each such
additional Issuing Bank shall execute a counterpart of this Agreement upon the
approval of the Administrative Agent (which approval shall not be unreasonably
withheld) and shall thereafter be an Issuing Bank hereunder for all purposes.


(l)                
Reporting.  Unless otherwise requested by the Administrative
Agent, each Issuing Bank shall (i) provide to the Administrative Agent copies
of any notice received from the Borrowers pursuant to Section 2.05(b) no
later than the next Business Day after receipt thereof and (ii) report in
writing to the Administrative Agent (A) on or prior to each Business Day
on which such Issuing Bank expects to issue, amend or extend any Letter of
Credit, the date of such issuance, amendment or extension, and the aggregate
face amount of the Letters of Credit to be issued, amended or extended by it
and outstanding after giving effect to such issuance, amendment or extension
occurred (and whether the amount thereof changed), and the Issuing Bank shall
be permitted to issue, amend or extend such Letter of Credit if the
Administrative Agent shall not have advised the Issuing Bank that such
issuance, amendment or extension would not be in conformity with the
requirements of this Agreement, (B) on each Business Day on which such 







                                                                                 74                                                                                 










 








 








Issuing Bank makes any L/C – BA Disbursement or creates
any Bankers’ Acceptance, the date of such L/C – BA Disbursement or Bankers’
Acceptance and the amount of such L/C – BA Disbursement or Bankers’ Acceptance
and (C) on any other Business Day, such other information as the
Administrative Agent shall reasonably request, including but not limited to
prompt verification of such information as may be requested by the
Administrative Agent.


                        SECTION
2.06. Funding of Borrowings


.  (a)  Each Lender shall make each Loan to be made by it
hereunder on the proposed date thereof by wire transfer of immediately
available funds by 12:00 noon, Local Time, to the account of the Administrative
Agent most recently designated by it for such purpose by notice to the Lenders;
provided, that Swingline Loans and Agent Advances shall be made as
provided in Section 2.04.  The Administrative Agent will make such Loans
available to the Borrowers by promptly crediting the amounts so received, in
like funds, to an account of the Borrowers maintained with the Administrative
Agent in New York City; provided, that ABR Revolving Loans and
Swingline Borrowings made to finance the reimbursement of a L/C – BA
Disbursement and reimbursements as provided in Section 2.05(e) shall be
remitted by the Administrative Agent to the applicable Issuing Bank.


(b)                          
Unless the Administrative Agent shall have received notice from a Lender
prior to the proposed date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender’s share of such Borrowing,
the Administrative Agent may assume that such Lender has made such share
available on such date in accordance with paragraph (a) of this
Section and may, in reliance upon such assumption, make available to the
Borrowers a corresponding amount.  In such event, if a Lender has not in fact
made its share of the applicable Borrowing available to the Administrative
Agent, then the applicable Lender and the Borrowers severally agree to pay to
the Administrative Agent forthwith on demand (without duplication) such
corresponding amount with interest thereon, for each day from and including the
date such amount is made available to the Borrowers to but excluding the date
of payment to the Administrative Agent, at (i) in the case of such Lender,
the Federal Funds Effective Rate and a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation or
(ii) in the case of the Borrowers, the interest rate applicable to ABR
Loans at such time.  If such Lender pays such amount to the Administrative
Agent, then such amount shall constitute such Lender’s Loan included in such
Borrowing.


                        SECTION
2.07. Interest Elections


.  (a)  Each Borrowing initially shall be of the Type
specified in the applicable Borrowing Request and, in the case of a Eurocurrency
Borrowing, shall have an initial Interest Period as specified in such Borrowing
Request.  Thereafter, any Borrower may elect to convert such Borrowing to a
different Type or to continue such Borrowing and, in the case of a Eurocurrency
Borrowing, may elect Interest Periods therefor, all as provided in this
Section.  Any Borrower may elect different options with respect to different
portions of the affected Borrowing, in which case each such portion shall be
allocated ratably among the Lenders holding the Loans comprising such
Borrowing, and the Loans comprising each such portion shall be considered a
separate Borrowing.  This Section shall not apply to Swingline Borrowings
or Agent Advances, which may not be converted or continued.


(b)                          
To make an election pursuant to this Section, the applicable Borrower
shall notify the Administrative Agent of such election by telephone by the time
that a Borrowing Request would be required under Section 2.03 if such
Borrower were requesting a Borrowing of 







                                                                                 75                                                                                 










 








 








the Type
resulting from such election to be made on the effective date of such
election.  Each such telephonic Interest Election Request shall be irrevocable
and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Interest Election Request in a form approved
by the Administrative Agent and signed by the applicable Borrower.


(c)               
Each telephonic and written Interest Election Request shall specify the
following information in compliance with Section 2.02:


(i)         the Borrowing to which such
Interest Election Request applies and, if different options are being elected
with respect to different portions thereof, the portions thereof to be
allocated to each resulting Borrowing (in which case the information to be
specified pursuant to clauses (iii) and (iv) below shall be
specified for each resulting Borrowing);


(ii)        the effective date of the election
made pursuant to such Interest Election Request, which shall be a Business Day;


(iii)       whether the resulting Borrowing is
to be an ABR Borrowing or a Eurocurrency Borrowing; and


(iv)       if the resulting Borrowing is a
Eurocurrency Borrowing, the Interest Period to be applicable thereto after
giving effect to such election, which shall be a period contemplated by
clause (a) of the definition of the term “Interest Period.”


If
any such Interest Election Request requests a Eurocurrency Borrowing but does
not specify an Interest Period, then the applicable Borrower shall be deemed to
have selected an Interest Period of one month’s duration.


(d)              
Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender to which such Interest Election
Request relates of the details thereof and of such Lender’s portion of each
resulting Borrowing.


(e)               
If any Borrower fails to deliver a timely Interest Election Request with
respect to a Eurocurrency Borrowing prior to the end of the Interest Period
applicable thereto, then, unless such Borrowing is repaid as provided herein,
at the end of such Interest Period such Borrowing shall be converted to an ABR
Borrowing.  Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing and the Administrative Agent, at the
written request (including a request through electronic means) of the Required
Lenders, so notifies the applicable Borrower, then, so long as an Event of
Default is continuing (i) no outstanding Borrowing may be converted to or
continued as a Eurocurrency Borrowing and (ii) unless repaid, each
Eurocurrency Borrowing shall be converted to an ABR Borrowing at the end of the
Interest Period applicable thereto.


                        SECTION
2.08. Termination and Reduction of Commitments


.  (a)  Unless previously terminated, the Revolving
Facility Commitments shall terminate on the Revolving Facility Maturity Date.


 







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(b)                          
The Borrowers may at any time terminate, or from time to time reduce,
the Revolving Facility Commitments; provided, that (i) each
reduction of the Revolving Facility Commitments shall be in an amount that is
an integral multiple of $1 million and not less than $5 million (or, if
less, the remaining amount of the Revolving Facility Commitments), and
(ii) the Borrowers shall not terminate or reduce the Revolving Facility
Commitments if, after giving effect to any concurrent prepayment of the Revolving
Loans in accordance with Section 2.11, the Revolving Facility Credit
Exposure would exceed the Borrowing Base.


(c)               
The Borrowers shall notify the Administrative Agent of any election to
terminate or reduce the Revolving Facility Commitments under paragraph (b)
of this Section at least three Business Days prior to the effective date
of such termination or reduction, specifying such election and the effective
date thereof.  Promptly following receipt of any notice, the Administrative
Agent shall advise the applicable Lenders of the contents thereof.  Each notice
delivered by the Borrowers pursuant to this Section shall be irrevocable;
provided, that a notice of termination of the Revolving Facility
Commitments delivered by the Borrowers may state that such notice is conditioned
upon the effectiveness of other credit facilities, in which case such notice
may be revoked by the Borrowers (by notice to the Administrative Agent on or
prior to the specified effective date) if such condition is not satisfied.  Any
termination or reduction of the Revolving Facility Commitments shall be
permanent.  Each reduction of the Revolving Facility Commitments shall be made
ratably among the Lenders in accordance with their respective Revolving
Facility Commitments.


                        SECTION
2.09. Repayment of Loans; Evidence of Debt


.  (a)  The Borrowers hereby unconditionally promise to
pay (i) to the Administrative Agent for the account of each Revolving Lender
the then unpaid principal amount of each Revolving Loan to the Borrowers on the
Revolving Facility Maturity Date, (ii) to the Swingline Lender the then
unpaid principal amount of each Swingline Loan on the Revolving Facility
Maturity Date, and (iii) to the Administrative Agent the then unpaid
principal amount of each Agent Advance on the Revolving Facility Maturity Date;
provided, that on each date that a Revolving Facility Borrowing is
made by any Borrower, the Borrowers shall repay all Swingline Loans and Agent
Advances then outstanding.


(b)                          
Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrowers to such Lender
resulting from each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.


(c)               
The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Type thereof and
the Interest Period (if any) applicable thereto, (ii) the amount of
any principal or interest due and payable or to become due and payable from the
Borrowers to each Lender hereunder and (iii) any amount received by the
Administrative Agent hereunder for the account of the Lenders and each Lender’s
share thereof.


(d)              
The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie
evidence of the existence and amounts of the obligations recorded therein; provided,
that the failure of any Lender or the Administrative Agent to maintain 







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such accounts or any error therein shall not in any
manner affect the obligation of the Borrowers to repay the Loans in accordance
with the terms of this Agreement.


(e)               
Any Lender may request that Loans made by it be evidenced by a
promissory note (a “Note”).  In such event, the Borrowers shall prepare,
execute and deliver to such Lender a promissory note payable to the order of
such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent and reasonably
acceptable to the Borrowers.  Thereafter, the Loans evidenced by such
promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 9.04) be represented by one or more
promissory notes in such form payable to the order of the payee named therein
(or, if such promissory note is a registered note, to such payee and its
registered assigns).


                        SECTION
2.10. Repayment of Revolving Loans


.  (a)  To the extent not previously paid,
outstanding Revolving Loans shall be due and payable on the Revolving Facility
Maturity Date.


(b)                          
Prior to any repayment of any Loan hereunder, the Borrowers shall select
the Borrowing or Borrowings to be repaid and shall notify the Administrative
Agent by telephone (confirmed by telecopy) of such selection not later than
1:00 p.m., Local Time, (i) in the case of an ABR Borrowing, one Business
Day before the scheduled date of such repayment and (ii) in the case of a
Eurocurrency Borrowing, three Business Days before the scheduled date of such
repayment.  Each repayment of a Borrowing shall be applied to the Revolving
Loans included in the repaid Borrowing such that each Revolving Lender receives
its ratable share of such repayment (based upon the respective Revolving
Facility Credit Exposures of the Revolving Lenders at the time of such repayment). 
Notwithstanding anything to the contrary in the immediately preceding sentence,
prior to any repayment of a Swingline Loan hereunder, the Borrowers shall
select the Borrowing or Borrowings to be repaid and shall notify the
Administrative Agent by telephone (confirmed by telecopy) of such selection not
later than 1:00 p.m., Local Time, on the scheduled date of such repayment. 
Repayments of Loans shall be accompanied by accrued interest on the amount
repaid.


(c)               
All payments of interest, fees and reimbursement for expenses pursuant
to Section 9.05(a) may, if not paid by the due date, at the option of the
Administrative Agent, be paid from the proceeds of Revolving Loans made
hereunder, whether made following a request by the Borrowers pursuant to Section 2.03
or a deemed request as provided in this Section 2.10 (c).  Upon the
occurrence and during the continuance of any Event of Default, the Borrowers
hereby irrevocably authorize the Administrative Agent to charge the Loan
Account on the due date for the purpose of paying interest, fees and
reimbursing expenses pursuant to Section 9.05(a) and agree that all such
accounts charged shall constitute Revolving Loans (including Swingline Loans
and Agent Advances) and that all such Revolving Loans so made shall be deemed
to have been requested pursuant to Section 2.03 (except the Borrowers
shall not be deemed to make any representation or warranty pursuant to
Section 4.01(b) with respect to such Revolving Loans).


                        SECTION
2.11. Prepayment of Loans


.  (a)  The Borrowers shall have the right at any time
and from time to time to prepay any Loan in whole or in part, without premium
or penalty (but subject to Section 2.16), in an aggregate principal amount
that is an integral multiple of the Borrowing
Multiple and not less than the Borrowing Minimum or, if less, the amount
outstanding, subject to prior notice in accordance with Section 2.10(b).







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(b)                          
In the event and on such occasion that the total Revolving Facility
Credit Exposure exceeds the Borrowing Base (including any reduction in the
Borrowing Base as a result of a sale or other disposition pursuant to any
Permitted Receivables Financing or any Permitted Supplier Finance Facilities or
a sale or other disposition of Eligible Inventory or Eligible Accounts outside
the ordinary course of business), the Borrowers shall prepay Revolving Facility
Borrowings, Swingline Borrowings or Agent Advances (or, if no such Borrowings
or Agent Advances are outstanding, deposit cash collateral in an account with
the Administrative Agent pursuant to Section 2.05(j)) in an aggregate
amount equal to such excess.


(c)               
In the event and on such occasion as the Revolving L/C-BA Exposure
exceeds (i) the Letter of Credit Sublimit or (ii) the Borrowing Base, the
Borrowers shall deposit cash collateral in an account with the Administrative
Agent pursuant to Section 2.05(j) in an amount equal to such excess.


                        SECTION
2.12. Fees 


.  (a)  The Borrowers agree to pay to each Lender (other
than any Defaulting Lender), through the Administrative Agent, on the Amendment
Effective Date, all accrued and unpaid fees payable in accordance with the
applicable Fee Letter, this Agreement and the other Loan Documents. All
Commitment Fees shall be computed on the basis of the actual number of days
elapsed in a year of 360 days.  For the purpose of calculating any Lender’s
Commitment Fee, the outstanding Swingline Loans during the period for which
such Lender’s Commitment Fee is calculated shall be deemed to be zero.  


(b)                          
Prior to the Amendment Effective Date, the Borrowers agree to pay to
each Lender (other than any Defaulting Lender), through the Administrative
Agent on the fifth Business Day of each calendar quarter and on the Revolving
Facility Maturity Date and, if earlier, on the date on which the Revolving
Facility Commitments of all the Lenders shall be terminated as provided herein,
a commitment fee (a “Commitment Fee”)  on the daily amount of the
Available Unused Commitment of such Lender during the preceding quarter (or
other period commencing with the Closing Date or ending with the date on which
the last of the Commitments of such Lender shall be terminated), at a rate
equal to (i) if the average daily amount of the aggregate Available Unused
Commitments of all Lenders during such period is less than 50% of Revolving Facility
Commitments, 0.25% per annum, and (ii) otherwise, 0.30% per annum. 
The Commitment Fee due to each Lender under this Section 2.12(b) shall commence
to accrue on the Closing Date and shall cease to accrue on the Amendment
Effective Date.


(c)               
On and after the Amendment Effective Date, the Borrowers agree to pay to
each Lender (other than any Defaulting Lender), through the Administrative
Agent on the fifth Business Day of each calendar quarter and on the Revolving
Facility Maturity Date and, if earlier, on the date on which the Revolving
Facility Commitments of all the Lenders shall be terminated as provided herein,
a Commitment Fee on the daily amount of the Available Unused Commitment of such
Lender (or other period ending with the date on which the last of the
Commitments of such Lender shall be terminated), in each case, at a rate equal
to (i) if the average daily amount of the aggregate Available Unused
Commitments of all Lenders during such period is less than 60% of Revolving
Facility Commitments, 0.375% per annum, and (ii) otherwise, 0.50% per
annum  The 







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Commitment Fee due to each Lender
under this Section 2.12(c) shall commence to accrue on the Amendment Effective
Date and shall cease to accrue on the date on which the last of the Commitments
of such Lender shall be terminated as provided herein.    


(d)              
The Borrowers from time to time agree to pay (i) to each Revolving
Lender (other than any Defaulting Lender), through the Administrative Agent, on
the fifth Business Day of each calendar quarter and on the Revolving Facility
Maturity Date and, if earlier, on the date on which the Revolving Facility
Commitments of all the Lenders shall be terminated as provided herein, a fee
(an “L/C – BA Participation Fee”) on such Lender’s Pro Rata Share
of the daily aggregate Revolving L/C – BA Exposure (excluding the portion
thereof attributable to unreimbursed L/C – BA Disbursements) during the
preceding quarter (or shorter period commencing with the Closing Date or ending
with the Revolving Facility Maturity Date or the date on which the Revolving
Facility Commitments shall be terminated) at the rate per annum equal to
the Applicable Margin for Eurocurrency Revolving Facility Borrowings on such
payment date, and (ii) to the Issuing Bank, on the fifth Business Day of 
each calendar quarter and on the Revolving Facility Maturity Date and, if
earlier, on the date on which the Revolving Facility Commitments of all the
Lenders shall be terminated as provided herein, a fronting fee in respect of
each Letter of Credit issued by such Issuing Bank and outstanding during the
preceding quarter (or shorter period commencing with the Closing Date or ending
with the Revolving Facility Maturity Date or the date on which the Revolving
Facility Commitments shall be terminated) at a rate per annum equal to
1/8 of 1% per annum of the stated amount of such Letter of Credit, plus
(y) in connection with the issuance, amendment or transfer of any such
Letter of Credit or any L/C – BA Disbursement thereunder, such Issuing Bank’s
customary documentary and processing fees and charges (collectively, “Issuing
Bank Fees”).  All L/C Participation Fees and Issuing Bank Fees that are
payable on a per annum basis shall be computed on the basis of the
actual number of days elapsed in a year of 360 days.


(e)               
The Borrowers agree to pay to the Administrative Agent and the Joint 
Lead Arrangers, for the account of the Administrative Agent and the Joint Lead
Arrangers, as the case may be, the fees set forth in the Fee Letter, as
amended, restated, supplemented or otherwise modified from time to time, at the
times specified therein (the “Administrative Agent Fees”). 


(f)               
All Fees shall be paid on the dates due, in immediately available funds,
to the Administrative Agent for distribution, if and as appropriate, among the
Lenders, except that Issuing Bank Fees shall be paid directly to the applicable
Issuing Banks.  Once paid, none of the Fees shall be refundable under any
circumstances.


                        SECTION
2.13. Interest 


.  (a)  The Loans comprising each ABR Borrowing
(including each Swingline Loan and each Agent Advance) shall bear interest at
the ABR plus the Applicable Margin.


(b)                          
The Loans comprising each Eurocurrency Borrowing shall bear interest at
the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing
plus the Applicable Margin.


(c)               
Notwithstanding the foregoing, if any principal of or interest on any
Loan or any Fees or other amount payable by the Borrowers hereunder is not paid
when due, whether at 







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stated maturity, upon
acceleration or otherwise, such overdue amount shall bear interest, after as
well as before judgment, at a rate per annum equal to (i) in the
case of overdue principal of any Loan, 2% plus the rate otherwise applicable to
such Loan as provided in the preceding paragraphs of this Section or
(ii) in the case of any other amount, 2% plus the rate applicable to ABR
Loans as provided in paragraph (a) of this Section; provided,
that this paragraph (c) shall not apply to any Event of Default that has
been waived by the Lenders pursuant to Section 9.08.


(d)              
Accrued interest on each Loan shall be payable in arrears (i) on
each Interest Payment Date for such Loan, and (ii) upon termination of the
Revolving Facility Commitments; provided, that (A) interest
accrued pursuant to paragraph (c) of this Section shall be payable on
demand, (B) in the event of any repayment or prepayment of any Loan (other
than a prepayment of an ABR Revolving Loan prior to the end of the Availability
Period), accrued interest on the principal amount repaid or prepaid shall be
payable on the date of such repayment or prepayment, and (C) in the event
of any conversion of any Eurocurrency Loan prior to the end of the current
Interest Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.


(e)               
All interest hereunder shall be computed on the basis of a year of 360
days, except that interest computed by reference to the ABR at times when the
ABR is based on the “prime rate” shall be computed on the basis of a year of
365 days (or 366 days in a leap year), and in each case shall be payable for
the actual number of days elapsed (including the first day but excluding the
last day).  The applicable ABR, Adjusted LIBO Rate or LIBO Rate shall be
determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.


SECTION
2.14. Alternate Rate of Interest


.  If prior to the commencement of any Interest Period
for a Eurocurrency Borrowing:


(a)        the Administrative Agent determines (which
determination shall be            conclusive absent manifest error) that
adequate and reasonable means do not exist for            ascertaining the
Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest         Period;
or


(b)        the Administrative Agent is advised
by the Required Lenders that the Adjusted LIBO Rate or the LIBO Rate, as
applicable, for such Interest Period will not adequately and fairly reflect the
cost to such Lenders of making or maintaining their Loans included in such
Borrowing for such Interest Period;


then
the Administrative Agent shall give notice thereof to the Company and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Company and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurocurrency Borrowing denominated in such
currency shall be ineffective and such Borrowing shall be converted to or
continued as on the last day of the Interest Period applicable thereto an ABR
Borrowing, and (ii) if any Borrowing Request requests a Eurocurrency
Borrowing, such Borrowing shall be made as an ABR Borrowing.


 







                                                                                 81                                                                                 










 








 








SECTION 2.15. Increased Costs


.  (a)  If any Change in Law shall:


(i)         impose, modify or deem applicable
any reserve, special deposit or similar requirement against assets of, deposits
with or for the account of, or credit extended by, any Lender (except any such
reserve requirement reflected in the Adjusted LIBO Rate) or Issuing Bank; or


(ii)        impose on any Lender or Issuing
Bank or the London interbank market any other condition affecting this
Agreement or Eurocurrency Loans made by such Lender or any Letter of Credit or
participation therein;


and
the result of any of the foregoing shall be to increase the cost to such Lender
of making or maintaining any Eurocurrency Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or
Issuing Bank of participating in, issuing or maintaining any Letter of Credit
or to reduce the amount of any sum received or receivable by such Lender or
Issuing Bank hereunder (whether of principal, interest or otherwise), then the
Borrowers will pay to such Lender or Issuing Bank, as applicable, such
additional amount or amounts as will compensate such Lender or Issuing Bank, as
applicable, for such additional costs incurred or reduction suffered.


(b)                          
If any Lender or Issuing Bank determines that any Change in Law
regarding capital requirements has or would have the effect of reducing the
rate of return on such Lender’s or Issuing Bank’s capital or on the capital of
such Lender’s or Issuing Bank’s holding company, if any, as a consequence of
this Agreement or the Loans made by, or participations in Letters of Credit or
Swingline Loans held by, such Lender, or the Letters of Credit issued by such
Issuing Bank, to a level below that which such Lender or such Issuing Bank or
such Lender’s or such Issuing Bank’s holding company could have achieved but
for such Change in Law (taking into consideration such Lender’s or such Issuing
Bank’s policies and the policies of such Lender’s or such Issuing Bank’s
holding company with respect to capital adequacy), then from time to time the
Borrowers shall pay to such Lender or such Issuing Bank, as applicable, such
additional amount or amounts as will compensate such Lender or such Issuing
Bank or such Lender’s or such Issuing Bank’s holding company for any such
reduction suffered.


(c)               
A certificate of a Lender or an Issuing Bank setting forth the amount or
amounts necessary to compensate such Lender or Issuing Bank or its holding
company, as applicable, as specified in paragraph (a) or (b) of this
Section 2.15 shall be delivered to the Company and shall be conclusive
absent manifest error.  The Borrowers shall pay such Lender or Issuing Bank, as
applicable, the amount shown as due on any such certificate within 10 days
after receipt thereof.


(d)              
Promptly after any Lender or any Issuing Bank has determined that it
will make a request for increased compensation pursuant to this
Section 2.15, such Lender or Issuing Bank shall notify the Company
thereof.  Failure or delay on the part of any Lender or Issuing Bank to demand
compensation pursuant to this Section 2.15 shall not constitute a waiver
of such Lender’s or Issuing Bank’s right to demand such compensation; provided,
that the Borrowers shall not be required to compensate a Lender or an Issuing
Bank pursuant to this Section 2.15 for any increased costs or reductions
incurred more than 180 days prior to the date that such Lender or 







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Issuing Bank, as applicable, notifies the Company of the
Change in Law giving rise to such increased costs or reductions and of such
Lender’s or Issuing Bank’s intention to claim compensation therefor; provided,
further, that, if the Change in Law giving rise to such increased costs
or reductions is retroactive, then the 180‐day period referred to above
shall be extended to include the period of retroactive effect thereof.


(e)               
The foregoing provisions of this Section 2.15 shall not apply in
the case of any Change in Law in respect of Taxes, which shall instead be
governed by Section 2.17.


                        SECTION
2.16. Break Funding Payments


.  In the event of (a) the payment of any principal of
any Eurocurrency Loan other than on the last day of an Interest Period
applicable thereto (including as a result of an Event of Default), (b) the
conversion of any Eurocurrency Loan other than on the last day of the Interest
Period applicable thereto, (c) the failure to borrow, convert, continue or
prepay any Eurocurrency Loan on the date specified in any notice delivered
pursuant hereto or (d) the assignment of any Eurocurrency Loan other than
on the last day of the Interest Period applicable thereto as a result of a
request by a Borrower pursuant to Section 2.19, then, in any such event,
the Borrowers shall compensate each Lender for the loss, cost and expense
attributable to such event.  In the case of a Eurocurrency Loan, such loss,
cost or expense to any Lender shall be deemed to be the amount determined by
such Lender (it being understood that the deemed amount shall not exceed the
actual amount) to be the excess, if any, of (i) the amount of
interest which would have accrued on the principal amount of such Loan had such
event not occurred, at the Adjusted LIBO Rate that would have been applicable
to such Loan, for the period from the date of such event to the last day of the
then current Interest Period therefor (or, in the case of a failure to borrow,
convert or continue a Eurocurrency Loan, for the period that would have been
the Interest Period for such Loan), over (ii) the amount of interest which
would accrue on such principal amount for such period at the interest rate
which such Lender would bid were it to bid, at the commencement of such period,
for deposits in dollars of a comparable amount and period from other banks in
the Eurodollar market.  A certificate of any Lender setting forth any amount or
amounts that such Lender is entitled to receive pursuant to this
Section 2.16 shall be delivered to the Company and shall be conclusive
absent manifest error.  The Borrowers shall pay such Lender the amount shown as
due on any such certificate within 10 days after receipt thereof.


                        SECTION
2.17. Taxes 


.  (a)  Any and all payments by or on account of any
obligation of any Loan Party hereunder shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes; provided,
that if a Loan Party shall be required to deduct any Indemnified Taxes or Other
Taxes from such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section) the Administrative
Agent, any Lender or any Issuing Bank, as applicable, receives an amount equal
to the sum it would have received had no such deductions been made,
(ii) such Loan Party shall make such deductions and (iii) such Loan
Party shall timely pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.


(b)   In
addition, the Loan Parties shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.


 







                                                                                 83                                                                                 










 








 








(c)               
Each Loan Party shall indemnify the Administrative Agent, each Lender
and each Issuing Bank, within 10 days after written demand therefor, for the
full amount of any Indemnified Taxes or Other Taxes paid by the Administrative
Agent, such Lender or such Issuing Bank, as applicable, on or with respect to
any payment by or on account of any obligation of such Loan Party hereunder
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any reasonable expenses
arising therefrom or with respect thereto, whether or not such Indemnified Taxes
or Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority.  A certificate as to the amount of such payment or
liability delivered to such Loan Party by a Lender or an Issuing Bank, or by
the Administrative Agent on its own behalf, on behalf of another Agent or on
behalf of a Lender or an Issuing Bank, shall be conclusive absent manifest
error.


(d)              
As soon as practicable after any payment of Indemnified Taxes or Other
Taxes by a Loan Party to a Governmental Authority, such Loan Party shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy
of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.


(e)               
Any Lender that is entitled to an exemption from or reduction of
withholding Tax under the law of the jurisdiction in which any Borrower is
located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement shall deliver to the Company (with a copy to the
Administrative Agent), to the extent such Lender is legally entitled to do so,
at the time or times prescribed by applicable law, such properly completed and
executed documentation prescribed by applicable law as may reasonably be
requested by the Company to permit such payments to be made without such
withholding Tax or at a reduced rate; provided, that no Lender
shall have any obligation under this paragraph (e) with respect to
any withholding Tax imposed by any jurisdiction other than the United States if
in the reasonable judgment of such Lender such compliance would subject such
Lender to any material unreimbursed cost or expense or would otherwise be
disadvantageous to such Lender in any material respect.


(f)               
Each Lender shall deliver to the Company and the Administrative Agent on
the date on which such Lender becomes a Lender under this Agreement (and from
time to time thereafter upon the reasonable request of the Company or the
Administrative Agent), two original copies of whichever of the following is
applicable:  (i) duly completed copies of Internal Revenue Service Form
W-8BEN (or any subsequent versions thereof or successors thereto), claiming
eligibility for benefits of an income tax treaty to which the United States of
America is a party, (ii) duly completed copies of Internal Revenue Service
Form W-8ECI (or any subsequent versions thereof or successors thereto),
(iii) in the case of a Lender claiming the benefits of the exemption for
portfolio interest under Section 871(h) or 881(c) of the Code, (x) a
certificate to the effect that, for United States federal income tax purposes,
such Lender is not (A) a “bank” within the meaning of
Section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of
any Borrower within the meaning of Section 871(h)(3) or 881(c)(3)(B) of
the Code, or (C) a “controlled foreign corporation” described in
Section 881(c)(3)(C) of the Code and that, accordingly, such Lender qualifies
for such exemption and (y) duly completed copies of  Internal Revenue
Service Form W-8BEN (or any subsequent versions thereof or successors thereto),
(iv) duly completed copies of Internal Revenue Service Form W-8IMY,
together with forms and certificates described in clauses 







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(i) through
(iii) above (and additional Form W-8IMYs) as may be required or (v)
any other form prescribed by applicable law as a basis for claiming exemption
from or a reduction in United States federal withholding tax duly completed
together with such supplementary documentation as may be prescribed by
applicable law to permit the Borrowers to determine the withholding or
deduction required to be made.  In addition, in each of the foregoing
circumstances, each Lender shall deliver such forms, if legally entitled to
deliver such forms, promptly upon the obsolescence, expiration or invalidity of
any form previously delivered by such Lender.  Each Lender shall promptly
notify the Company at any time it determines that it is no longer in a position
to provide any previously delivered certificate to the  Company (or any other
form of certification adopted by the United States of America or other taxing
authorities for such purpose).  In addition, each Lender that is a “United
States person” (as defined in Section 770(a)(30) of the Code) shall deliver to
the Company and the Administrative Agent two copies of Internal Revenue Service
Form W‐9 (or any subsequent versions thereof or successors thereto) on or
before the date such Lender becomes a party and upon the expiration of any form
previously delivered by such Lender.  Notwithstanding any other provision of
this paragraph, a Lender shall not be required to deliver any form pursuant to
this paragraph that such Lender is not legally able to deliver.


(g)              
If the Administrative Agent or a Lender receives a refund of any
Indemnified Taxes or Other Taxes as to which it has been indemnified by a Loan
Party or with respect to which such Loan Party has paid additional amounts
pursuant to this Section 2.17, it shall pay over such refund to such Loan
Party (but only to the extent of indemnity payments made, or additional amounts
paid, by such Loan Party under this Section 2.17 with respect to the Taxes
or Other Taxes giving rise to such refund), net of all out‐of‐pocket
expenses of the Administrative Agent or such Lender (including any Taxes
imposed with respect to such refund) as is determined by the Administrative
Agent or such Lender, as applicable, in good faith and in its sole discretion,
and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund); provided, that such Loan
Party, upon the request of the Administrative Agent or such Lender, agrees to
repay as soon as reasonably practicable the amount paid over to such Loan Party
(plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) to the Administrative Agent or such Lender in the event
the Administrative Agent or such Lender is required to repay such refund to
such Governmental Authority.  This Section 2.17(g) shall not be construed
to require the Administrative Agent or any Lender to make available its Tax
returns (or any other information relating to its Taxes which it deems
confidential) to the Loan Parties or any other person.


(h)              
If a payment made by the Company hereunder or under any other Loan
Document would be subject to United States federal withholding tax imposed
pursuant to FATCA if any Lender or any Issuing Bank fails to comply with
applicable reporting and other requirements of FATCA (including those contained
in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender or
such Issuing Bank shall use commercially reasonable efforts to deliver to the
Company and the Administrative Agent, at the time or times prescribed by
applicable law or as reasonably requested by the Company or the Administrative
Agent, any documentation reasonably requested by the Company or the
Administrative Agent reasonably satisfactory to the Company or the
Administrative Agent for the Company and the Administrative Agent to comply
with their obligations under FATCA to determine the amount to withhold or
deduct from such payment and to determine that such Lender or such Issuing Bank
has complied with such applicable reporting and other requirements of FATCA, provided,
that, notwithstanding any other provision of this 







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subsection,
no Lender or Issuing Bank shall be required to deliver any document pursuant to
this subsection that such Lender or Issuing Bank, as the case may be, is not
legally able to deliver or, if in the reasonable judgment of such Lender or
Issuing Bank, such compliance would subject such Lender or Issuing Bank to any
material unreimbursed cost or expense or would otherwise be disadvantageous to
such Lender or Issuing Bank in any material respect, provided, further,
that in the event a Lender or Issuing Bank does not comply with the
requirements of this subsection 2.17(h) as a result of the application of the
first proviso of this subsection 2.17(h), then such Lender or Issuing Bank
shall be deemed for purposes of this Agreement to have failed to comply with
the requirements under FATCA.


SECTION 2.18. Payments
Generally; Pro Rata Treatment; Sharing of Set‐offs


.  


(a)    Unless
otherwise specified, each Borrower shall make each payment required to be made
by it hereunder (whether of principal, interest, fees or reimbursement of L/C –
BA Disbursements, or of amounts payable under Section 2.15, 2.16, or 2.17,
or otherwise) prior to 2:00 p.m., Local Time, on the date when due, in immediately
available funds, without condition or deduction for any defense, recoupment,
set‐off or counterclaim.  Any amounts received after such time on any
date may, in the discretion of the Administrative Agent, be deemed to have been
received on the next succeeding Business Day for purposes of calculating
interest thereon.  All such payments shall be made to the Administrative Agent
to the applicable account designated to the Borrowers by the Administrative
Agent, except payments to be made directly to the applicable Issuing Bank or
the Swingline Lender as expressly provided herein and except that payments
pursuant to Sections 2.15, 2.16, 2.17 and 9.05 shall be made directly to the
persons entitled thereto.  The Administrative Agent shall distribute any such
payments received by it for the account of any other person to the appropriate
recipient promptly following receipt thereof.  If any payment hereunder shall
be due on a day that is not a Business Day, the date for payment shall be
extended to the next succeeding Business Day, and, in the case of any payment
accruing interest, interest thereon shall be payable for the period of such
extension.  All payments under the Loan Documents shall be made in Dollars. 
Any payment required to be made by the Administrative Agent hereunder shall be
deemed to have been made by the time required if the Administrative Agent
shall, at or before such time, have taken the necessary steps to make such
payment in accordance with the regulations or operating procedures of the clearing
or settlement system used by the Administrative Agent to make such payment.


(b)              
If at any time insufficient funds are received by and available to the
Administrative Agent from the Borrowers to pay fully all amounts of principal,
unreimbursed L/C – BA Disbursements, interest and fees then due from the
Borrowers hereunder, such funds shall be applied (i) first, towards
payment of interest and fees then due from the Borrowers hereunder, ratably
among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, towards payment of
principal and unreimbursed L/C – BA Disbursements then due from the Borrowers
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal and unreimbursed L/C – BA Disbursements then due to
such parties.


 







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(c)               
If any Lender shall, by exercising any right of set‐off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans or participations in L/C – BA
Disbursements or Swingline Loans resulting in such Lender receiving payment of
a greater proportion of the aggregate amount of its Revolving Loans and
participations in L/C – BA Disbursements and Swingline Loans and accrued
interest thereon than the proportion received by any other Lender, then the
Lender receiving such greater proportion shall purchase (for cash at face
value) participations in the Revolving Loans and participations in L/C – BA
Disbursements and Swingline Loans of other Lenders to the extent necessary so
that the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Revolving Loans and participations in L/C – BA Disbursements
and Swingline Loans; provided, that (i) if any such
participations are purchased and all or any portion of the payment giving rise
thereto is recovered, such participations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph (c) shall not be construed to
apply to any payment made by the Borrowers pursuant to and in accordance with
the express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its
Loans or participations in L/C – BA Disbursements to any assignee or
participant, other than to the Borrowers or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph (c) shall apply).  Each
Borrower consents to the foregoing and agrees, to the extent it may effectively
do so under applicable law, that any Lender acquiring a participation pursuant
to the foregoing arrangements may exercise against such Borrower rights of set‐off
and counterclaim with respect to such participation as fully as if such Lender
were a direct creditor of such Borrower in the amount of such participation. 
For the avoidance of doubt, the provisions of this Section shall not be
construed to apply to the application of Cash Collateral provided for in
Section 2.23 or to the assignments and repayments described in
Section 9.04(g).


(d)              
Unless the Administrative Agent shall have received notice from the
Borrowers prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders or the applicable Issuing Bank hereunder
that the Borrowers will not make such payment, the Administrative Agent may
assume that the Borrowers have made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the Lenders
or the applicable Issuing Bank, as applicable, the amount due.  In such event,
if the Borrowers have not in fact made such payment, then each of the Lenders or
the applicable Issuing Bank, as applicable, severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such
Lender or Issuing Bank with interest thereon, for each day from and including
the date such amount is distributed to it to but excluding the date of payment
to the Administrative Agent, at the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation.


(e)               
If any Lender shall fail to make any payment required to be made by it
pursuant to Section 2.06(b) or 2.18(d), then the Administrative Agent may,
in its discretion (notwithstanding any contrary provision hereof), apply any
amounts thereafter received by the Administrative Agent for the account of such
Lender to satisfy such Lender’s obligations under such Sections until all such
unsatisfied obligations are fully paid.


SECTION 2.19. Mitigation
Obligations; Replacement of Lenders


.  


 







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(a)   
If any Lender requests compensation under Section 2.15, or if the
Borrowers are required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to
Section 2.17, then such Lender shall use reasonable efforts to designate a
different Lending Office for funding or booking its Loans hereunder or to
assign its rights and obligations hereunder to another of its offices, branches
or Affiliates, if, in the reasonable judgment of such Lender, such designation
or assignment (i) would eliminate or reduce amounts payable pursuant to
Section 2.15 or 2.17, as applicable, in the future and (ii) would not
subject such Lender to any material unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender in any material respect.  The
Borrowers hereby agree to pay all reasonable costs and expenses incurred by any
Lender in connection with any such designation or assignment.


(b)              
If any Lender requests compensation under Section 2.15, or if the
Borrowers are required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to
Section 2.17, or is a Defaulting Lender, then the Borrowers may, at their
sole expense and effort, upon notice to such Lender and the Administrative
Agent, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this
Agreement to an assignee that shall assume such obligations (which assignee may
be another Lender, if a Lender accepts such assignment); provided,
that (i) the Borrowers shall have received the prior written consent of
the Administrative Agent (and, if in respect of any Revolving Facility
Commitment or Revolving Loan, the Swingline Lender and the Issuing Bank), which
consent shall not unreasonably be withheld, (ii) such Lender shall have
received payment of an amount equal to the outstanding principal of its Loans
and participations in L/C – BA Disbursements and Swingline Loans, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder,
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrowers (in the case of all other amounts) and (iii) in
the case of any such assignment resulting from a claim for compensation under
Section 2.15 or payments required to be made pursuant to
Section 2.17, such assignment will result in a reduction in such
compensation or payments.  Nothing in this Section 2.19 shall be deemed to
prejudice any rights that the Borrowers may have against any Lender that is a
Defaulting Lender.


(c)               
If any Lender (such Lender, a “Non‐Consenting Lender”) has
failed to consent to a proposed amendment, waiver, discharge or termination which
pursuant to the terms of Section 9.08 requires the consent of all of the
Lenders affected and with respect to which the Required Lenders shall have
granted their consent, then the Borrowers shall have the right (unless such Non‐Consenting
Lender grants such consent) to replace such Non‐Consenting Lender by
deeming such Non‐Consenting Lender to have assigned its Loans, and its
Commitments hereunder to one or more Assignees reasonably acceptable to
(i) the Administrative Agent and (ii) if in respect of any Revolving
Facility Commitment or Revolving Loan, the Swingline Lender and the Issuing
Bank; provided, that:  (a) all Obligations of the Borrowers owing
to such Non‐Consenting Lender being replaced shall be paid in full to
such Non‐Consenting Lender concurrently with such assignment, and
(b) the replacement Lender shall purchase the foregoing by paying to such
Non‐Consenting Lender a price equal to the principal amount thereof plus
accrued and unpaid interest thereon.  No action by or consent of the Non-Consenting
Lender shall be necessary in connection with such assignment, which shall be
immediately and automatically effective upon payment of such purchase price. 
In connection with any such assignment, the Borrowers, 







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Administrative
Agent, such Non‐Consenting Lender and the replacement Lender shall
otherwise comply with Section 9.04; provided, that if such
Non-Consenting Lender does not comply with Section 9.04 within three
Business Days after Borrowers’ request, compliance with Section 9.04 shall
not be required to effect such assignment.


SECTION 2.20. Illegality 


.  If any Lender reasonably determines that any Change in
Law has made it unlawful, or that any Governmental Authority has asserted after
the Closing Date that it is unlawful, for any Lender or its applicable Lending
Office to make or maintain any Eurocurrency Loans, then, on notice thereof by
such Lender to the Company through the Administrative Agent, any obligations of
such Lender to make or continue Eurocurrency Loans or to convert ABR Borrowings
to Eurocurrency Borrowings shall be suspended until such Lender notifies the
Administrative Agent and the Company that the circumstances giving rise to such
determination no longer exist.  Upon receipt of such notice, the Borrowers
shall upon demand from such Lender (with a copy to the Administrative Agent),
either convert all Eurocurrency Borrowings of such Lender to ABR Borrowings,
either on the last day of the Interest Period therefor, if such Lender may
lawfully continue to maintain such Eurocurrency Borrowings to such day, or
immediately, if such Lender may not lawfully continue to maintain such Loans. 
Upon any such prepayment or conversion, the Borrowers shall also pay accrued
interest on the amount so prepaid or converted. 


SECTION 2.21. Incremental
Commitments


.  (a)  The Borrowers may, by written notice to the
Administrative Agent from time to time, request Incremental Revolving Facility
Commitments in an amount not to exceed the Incremental Amount from one or more
Incremental Revolving Lenders (which may include any existing Lender) willing
to provide such Incremental Revolving Facility Commitments, as the case may be,
in their own discretion; provided, that (i) each Incremental
Revolving Lender shall be subject to the approval of the Administrative Agent
(which approval shall not be unreasonably withheld) unless such Incremental
Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility
Commitment shall be on the same terms as the existing Revolving Facility
Commitments and in all respects shall become a part of the Revolving Facility
hereunder on such terms; provided  that the Applicable Margin (including
the Pricing Grid) and the Commitment Fee applicable to the existing Revolving
Facility Commitments shall automatically be increased (but in no event
decreased) to the extent necessary to cause any Incremental Revolving Facility
to comply with this clause (ii).  Such notice shall set forth (i) the
amount of the Incremental Revolving Facility Commitments being requested (which
shall be in minimum increments of $5 million and a minimum amount of $25
million or equal to the remaining Incremental Amount), (ii) the aggregate
amount of Incremental Revolving Facility Commitments, which shall not exceed
the Incremental Amount, and (iii) the date on which such Incremental
Revolving Facility Commitments are requested to become effective (the “Increased
Amount Date”).   


(b)        The Borrowers and
each Incremental Revolving Lender shall execute and deliver to the
Administrative Agent an Incremental Assumption Agreement and such other
documentation as the Administrative Agent shall reasonably specify to evidence
the Incremental Revolving Facility Commitment of such Incremental Revolving
Lender.  Each of the parties hereto hereby agrees that upon the effectiveness
of any Incremental Assumption Agreement, this Agreement shall be deemed amended
to the extent (but only to the extent) necessary to increase the Revolving
Facility by the amount of the Incremental Revolving Loan Commitments evidenced
thereby.  Any such deemed amendment may be memorialized in writing by the
Administrative 







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Agent with the Borrowers’ consent (not
to be unreasonably withheld) and furnished to the other parties hereto.


                        (c)        Notwithstanding
the foregoing, no Incremental Revolving Facility Commitment shall become
effective under this Section 2.21 unless (i) on the date of such
effectiveness, the conditions set forth in paragraphs (b) and (c) of
Section 4.01 shall be satisfied, and the Administrative Agent shall have
received a certificate to that effect dated such date and executed by a
Responsible Officer of the Company,  and (ii) the Administrative Agent
shall have received legal opinions, board resolutions and other closing
certificates and documentation as required by the relevant Incremental
Assumption Agreement and, to the extent required by the Administrative Agent,
consistent with those delivered on the Closing Date under Section 4.02 and
such additional documents and filings (including amendments to the Mortgages
and other Security Documents and title endorsement bringdowns) as the
Administrative Agent may reasonably require to assure that the Revolving Loans
in respect of Incremental Revolving Facility Commitments are secured by the
Collateral ratably with all other Revolving Loans.


(d)              
Each of the parties hereto hereby agrees that the Administrative Agent
may take any and all action as may be reasonably necessary to ensure all
Revolving Loans in respect of Incremental Revolving Facility Commitments, when
originally made, are included in each Borrowing of outstanding Revolving Loans
on a pro rata basis.  The Borrowers agree that Section 2.16 shall
apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required
by the Administrative Agent to effect the foregoing.


SECTION 2.22. Cash
Collateral for Defaulting Lenders


. 


(a)    At
any time that there shall exist a Defaulting Lender, within three Business Days
following notice by the Administrative Agent, the Issuing Bank or the Swingline
Lender, the Company shall deliver to the Administrative Agent Cash Collateral
in an amount sufficient to cover the Company’s obligations corresponding to the
Fronting Exposure related to such Defaulting Lender (after giving effect to
Section 2.23(a)(iv) and any Cash Collateral provided by the Defaulting Lender)
for so long as the Fronting Exposure remains outstanding.


(b)              
All Cash Collateral (other than credit support not constituting funds
subject to deposit) shall be maintained in blocked, non-interest bearing
deposit accounts at Bank of America.  The Borrower, and to the extent provided
by any Lender, such Lender, shall maintain (pursuant to, if necessary in order
to create such a security interest, a customary pledge agreement reasonably
acceptable to the Administrative Agent) a first priority security interest,
subject (in the case of a grant by the Borrower) to the Intercreditor
Agreements, in all such cash, deposit accounts and all balances therein, and
all other property so provided as collateral pursuant hereto, and in all
proceeds of the foregoing, all as security for the obligations to which such
Cash Collateral may be applied pursuant to Section 2.22(c).  If at any
time the Administrative Agent determines that Cash Collateral is subject to any
prior right or claim of any Person other than the Collateral Agent as herein
provided, or that the total amount of such Cash Collateral is less than the
applicable Fronting Exposure, the Company or the relevant Defaulting Lender
will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative
Agent additional Cash Collateral in an amount sufficient to eliminate such
deficiency.


 







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(c)               
(i) If no Event of Default shall have occurred and be continuing, Cash
Collateral provided by the Company to reduce such obligations corresponding to
such Fronting Exposure shall be released promptly to the Company as and to the
extent that, after giving effect to such return, the applicable Fronting
Exposure is eliminated, and (ii) if an Event of Default shall have occurred and
be continuing, Cash Collateral provided by the Company to reduce such
obligations corresponding to such Fronting Exposure shall be applied as
provided in this Section 2.22 and otherwise in accordance with Section 5.02 of
the Collateral Agreement and the other Loan Documents (subject to the
Intercreditor Agreements), and then shall be released promptly to the Company
following such application.


SECTION
2.23. Defaulting Lenders


.


(a)    Notwithstanding
anything to the contrary contained in this Agreement, if any Lender becomes a
Defaulting Lender, then, until such time as that Lender is no longer a
Defaulting Lender, to the extent permitted by applicable Law:


(i)         That Defaulting
Lender’s right to approve or disapprove any amendment, waiver or consent with
respect to this Agreement shall be restricted as set forth in Sections 1.01 and
9.08.


(ii)        Any payment of
principal, interest, fees or other amounts received by the Administrative Agent
for the account of that Defaulting Lender (whether voluntary or mandatory, at
maturity, and including any amounts made available to the Administrative Agent
by that Defaulting Lender pursuant to Section 9.06), shall, in lieu of
being distributed to such defaulting Lender, be retained by the Administrative
Agent in a blocked, non-interest bearing deposit account at Bank of America
and, subject to any applicable requirements of law, be applied at such time or
times as may be determined by the Administrative Agent as follows:  first,
to the payment of any amounts owing by that Defaulting Lender to the
Administrative Agent hereunder; second, to the payment on a pro rata
basis of any amounts owing by that Defaulting Lender to the Issuing Bank or
Swingline Lender hereunder; third, if so determined by the
Administrative Agent or requested by the Issuing Bank or Swingline Lender, to
be held as Cash Collateral for future funding obligations of that Defaulting
Lender of any participation in any Swingline Loan or Letter of Credit; fourth,
as the Company may request (so long as no Default or Event of Default exists),
to the funding of any Revolving Loan in respect of which that Defaulting Lender
has failed to fund its portion thereof as required by this Agreement, as
determined by the Administrative Agent; fifth, if so determined by the
Administrative Agent and the Company, to be held in a non-interest bearing
deposit account and released in order to satisfy obligations of that Defaulting
Lender to fund Revolving Loans under this Agreement; sixth, to the
payment of any amounts owing to the Lenders, the Issuing Bank or Swingline Lender
as a result of any judgment of a court of competent jurisdiction obtained by
any Lender, the Issuing Bank or Swingline Lender against that Defaulting Lender
as a result of that Defaulting Lender’s breach of its obligations under this
Agreement; seventh, to the payment of any amounts owing to the Company
as a result of any judgment of a court of competent jurisdiction obtained by
the Company against that Defaulting Lender as a result of that Defaulting
Lender’s breach of its obligations under this Agreement; and eighth, to
that Defaulting Lender or as otherwise directed by a court of competent 







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jurisdiction; provided  that if (x) such payment
is a payment of the principal amount of any Loans or L/C Borrowings in respect
of which that Defaulting Lender has not fully funded its appropriate share and
(y) such Loans or L/C Borrowings were made at a time when the conditions
set forth in Section 4.01 were satisfied or waived, such payment shall be
applied solely to pay the Loans of, and L/C Borrowings owed to, all non-Defaulting
Lenders on a pro rata basis prior to being applied to the payment of any Loans
of, or L/C Borrowings owed to, that Defaulting Lender.  Any payments,
prepayments or other amounts paid or payable to a Defaulting Lender that are
applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash
Collateral pursuant to this Section 2.23(a)(ii) shall be deemed paid to
and redirected by that Defaulting Lender, and each Lender irrevocably consents
hereto.  Notwithstanding anything to the contrary in this Agreement, provisions
relating to Defaulting Lenders shall be subject to the Intercreditor
Agreements.


(iii)       That Defaulting
Lender (x) shall not be entitled to receive any commitment fee pursuant to
Section 2.12(b) or (c) for any period during which that Lender is a
Defaulting Lender (and the Company shall not be required to pay any such fee
that otherwise would have been required to have been paid to that Defaulting
Lender) and (y) shall be limited in its right to receive Letter of Credit
Fees as provided in Section 2.05.


(iv)       During any period
in which there is a Defaulting Lender, for purposes of computing the amount of
the obligation of each non-Defaulting Lender to acquire, refinance or fund
participations in Letters of Credit or Swingline Loans pursuant to Sections
2.04 and 2.05, the “Pro Rata Share” of each non-Defaulting Lender shall be
computed without giving effect to the Commitment of that Defaulting Lender; provided,
that, (i) each such reallocation shall be given effect only if, at the date the
applicable Lender becomes a Defaulting Lender, no Default or Event of Default
exists; and (ii) the aggregate obligation of each non-Defaulting Lender to
acquire, refinance or fund participations in Letters of Credit and Swingline
Loans shall not exceed the positive difference, if any, of (1) the
Commitment of that non-Defaulting Lender minus (2) the Revolving Credit
Facility Exposure of that Lender. 


(b)              
If the Company, the Administrative Agent, Swingline Lender and each
Issuing Bank agree in writing in their sole discretion that a Defaulting Lender
should no longer be deemed to be a Defaulting Lender, the Administrative Agent
will so notify the parties hereto, whereupon as of the effective date specified
in such notice and subject to any conditions set forth therein (which may
include arrangements with respect to any Cash Collateral), that Lender will, to
the extent applicable, purchase that portion of outstanding Loans of the other
Lenders or take such other actions as the Administrative Agent may reasonably
determine to be necessary to cause the Committed Loans and funded and unfunded
participations in Letters of Credit and Swingline Loans to be held on a pro
rata basis by the Lenders in accordance with their Pro Rata Shares (without
giving effect to Section 2.23(a)(iv)), whereupon that Lender will cease to
be a Defaulting Lender; provided that no adjustments will be made retroactively
with respect to fees accrued or payments made by or on behalf of the Company
while that Lender was a Defaulting Lender; and provided, further, that except
to the extent otherwise expressly agreed by the affected parties, no change
hereunder from Defaulting Lender to Lender will constitute a waiver or release
of any claim of any party hereunder arising from that Lender’s having been a
Defaulting Lender.


 







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ARTICLE III



Representations and Warranties


On the date of each Credit Event as provided in
Section 4.01, each of Holdings and each of the Borrowers represent and
warrant to each of the Lenders that:  


                        SECTION
3.01. Organization; Powers


.  Except as set forth on Schedule 3.01, each
of Holdings, each Borrower and the Material Subsidiaries (a) is a
partnership, limited liability company or corporation duly organized, validly
existing and in good standing (or, if applicable in a foreign jurisdiction,
enjoys the equivalent status under the laws of any jurisdiction of organization
outside the United States) under the laws of the jurisdiction of its
organization, (b) has all requisite power and authority to own its property
and assets and to carry on its business as now conducted, (c) is qualified
to do business in each jurisdiction where such qualification is required,
except where the failure so to qualify would not reasonably be expected to have
a Material Adverse Effect, and (d) has the power and authority to execute,
deliver and perform its obligations under each of the Loan Documents and each
other agreement or instrument contemplated thereby to which it is or will be a
party and, in the case of the Borrowers, to borrow and otherwise obtain credit
hereunder.


                        SECTION
3.02. Authorization 


.  The execution, delivery and performance by Holdings,
each Borrower and each of the Subsidiary Loan Parties of each of the Loan
Documents to which it is a party, and the borrowings hereunder and the
transactions forming a part of the Transactions (a) have been duly
authorized by all corporate, stockholder, partnership or limited liability
company action required to be obtained by Holdings, such Borrower and such
Subsidiary Loan Parties and (b) will not (i) violate (A) any
provision of law, statute, rule or regulation, or of the certificate or
articles of incorporation or other constitutive documents (including any
partnership, limited liability company or operating agreements) or by‐laws
of Holdings, any such Borrower or any such Subsidiary Loan Party, (B) any
applicable order of any court or any rule, regulation or order of any
Governmental Authority or (C) any provision of any indenture, certificate
of designation for preferred stock, agreement or other instrument to which
Holdings, any such Borrower or any such Subsidiary Loan Party is a party or by
which any of them or any of their property is or may be bound, (ii) be in
conflict with, result in a breach of or constitute (alone or with notice or
lapse of time or both) a default under, give rise to a right of or result in
any cancellation or acceleration of any right or obligation (including any
payment) or to a loss of a material benefit under any such indenture,
certificate of designation for preferred stock, agreement or other instrument,
where any such conflict, violation, breach or default referred to in
clause (i) or (ii) of this Section 3.02(b), would reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect,
or (iii) result in the creation or imposition of any Lien upon or with respect
to any property or assets now owned or hereafter acquired by Holdings, any such
Borrower or any such Subsidiary Loan Party, other than the Liens created by the
Loan Documents and Permitted Liens.


                        SECTION
3.03. Enforceability 


.  This Agreement has been duly executed and delivered by
Holdings and the Borrowers and constitutes, and each other Loan Document when
executed and delivered by each Loan Party that is party thereto will
constitute, a legal, valid and binding obligation of such Loan Party
enforceable against each such Loan Party in accordance with
its terms, subject to (i) the effects of bankruptcy, insolvency,
moratorium, reorganization, fraudulent conveyance or other similar laws
affecting creditors’ rights generally, (ii) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) and (iii) implied covenants of good faith and fair
dealing.







                                                                                 93                                                                                 










 








 










                        SECTION
3.04. Governmental Approvals


.  No action, consent or approval of, registration or
filing with or any other action by any Governmental Authority is or will be
required in connection with the Transactions, the perfection or maintenance of
the Liens created under the Security Documents or the exercise by any Agent or
any Lender of its rights under the Loan Documents or the remedies in respect of
the Collateral, except for (a) the filing of Uniform Commercial Code
financing statements and/or continuation statements, (b) filings with the
United States Patent and Trademark Office and the United States Copyright
Office and comparable offices in foreign jurisdictions and equivalent filings
in foreign jurisdictions, (c) recordation of the Mortgages, (d) such
as have been made or obtained and are in full force and effect, (e) such
actions, consents and approvals the failure of which to be obtained or made
would not reasonably be expected to have a Material Adverse Effect and
(f) filings or other actions listed on Schedule 3.04. 


                       SECTION
3.05. Financial Statements


.  (a)  The unaudited pro forma consolidated financial information, (the “Pro Forma Financial Statements”) and pro forma
adjusted EBITDA (the “Pro Forma Adjusted EBITDA”), for the twelve
months ended on or about December 30, 2006, copies of which have heretofore
been furnished to each Lender (via inclusion on page 38 the Information
Memorandum), have been prepared giving effect (as if such events had occurred
on such date) to the Transactions.  Each of the Pro Forma Financial Statements
and the Pro Forma Adjusted EBITDA has been prepared in good faith based on
assumptions believed by the Borrower to have been reasonable as of the date of
delivery thereof (it being understood that such assumptions are based on good
faith estimates of certain items and that the actual amount of such items on
the Closing Date is subject to change), and presents fairly in all material
respects on a Pro Forma Basis the estimated financial position of the Borrower
and its consolidated Subsidiaries as at December 30, 2006, assuming that the
Transactions had actually occurred at such date, and the results of operations
of Borrower and its consolidated subsidiaries for the twelve-month period ended
December 30, 2006, assuming that the Transactions had actually occurred on the
first day of such twelve-month period.


(b)   The
audited combined balance sheets of each of Covalence (or its predecessor) and
Berry (or its predecessor) as at the end of 2006, 2005 and 2004 fiscal years,
and the related audited combined statements of income, stockholders’ equity and
cash flows for such fiscal years, reported on by and accompanied by a report
from Deloitte & Touche LLP, and Ernst & Young LLP, respectively, copies
of which have heretofore been furnished to each Lender, present fairly in all
material respects the combined financial position of Covalence or Berry, as
applicable, as at such date and the combined results of operations,
shareholders’ equity and cash flows of Covalence or Berry, as applicable, for
the years then ended.


                        SECTION
3.06. No Material Adverse Effect


.  Since October 2, 2010, there has been no event,
development or circumstance that has or would reasonably be expected to have a
Material Adverse Effect.


 







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                        SECTION
3.07. Title to Properties; Possession Under Leases


.


(a)    Each
of Holdings, the Borrowers and the Subsidiaries has valid fee simple title to,
or valid leasehold interests in, or easements or other limited property
interests in, all its Real Properties (including all Mortgaged Properties) and
has valid title to its personal property and assets, in each case, except for
Permitted Liens and except for defects in title that do not materially
interfere with its ability to conduct its business as currently conducted or to
utilize such properties and assets for their intended purposes and except where
the failure to have such title would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.  All such
properties and assets are free and clear of Liens, other than Permitted Liens.


(b)              
Each of the Borrowers and the Subsidiaries has complied with all
obligations under all leases to which it is a party, except where the failure
to comply would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect, and all such leases are in full force and
effect, except leases in respect of which the failure to be in full force and
effect would not reasonably be expected to have a Material Adverse Effect. 
Except as set forth on Schedule 3.07(b), each of the Borrowers and
each of the Subsidiaries enjoys peaceful and undisturbed possession under all
such leases, other than leases in respect of which the failure to enjoy
peaceful and undisturbed possession would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.


(c)               
As of the Amendment Effective Date, none of the Borrowers or the
Subsidiaries has received any notice of any pending or contemplated condemnation
proceeding affecting any material portion of the Mortgaged Properties or any
sale or disposition thereof in lieu of condemnation that remains unresolved as
of the Amendment Effective Date.


(d)              
None of the Borrowers or the Subsidiaries is obligated on the Amendment
Effective Date under any right of first refusal, option or other contractual
right to sell, assign or otherwise dispose of any Mortgaged Property or any
interest therein, except as permitted under Section 6.02 or 6.05.


                        SECTION
3.08. Subsidiaries 


.


(a)    Schedule 3.08(a) 
sets forth as of the Amendment Effective Date the name and jurisdiction of
incorporation, formation or organization of each subsidiary of Holdings and, as
to each such subsidiary, the percentage of each class of Equity Interests owned
by Holdings or by any such subsidiary.


(b)              
As of the Amendment Effective Date, there are no outstanding
subscriptions, options, warrants, calls, rights or other agreements or
commitments (other than stock options and stock appreciation rights granted to employees
or directors and directors’ qualifying shares) of any nature relating to any
Equity Interests of Holdings, the Borrowers or any of the Subsidiaries, except
rights of current or former employees, officers or directors to purchase Equity
Interests of Holdings or as set forth on Schedule 3.08(b).   


                        SECTION
3.09. Litigation; Compliance with Laws


. 


 







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(a)   
There are no actions, suits or proceedings at law or in equity or, to
the knowledge of the Borrowers, investigations by or on behalf of any
Governmental Authority or in arbitration now pending, or, to the knowledge of
Holdings or the Borrowers, threatened in writing against or affecting Holdings
or the Borrowers or any of the Subsidiaries or any business, property or rights
of any such person which would reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect.


(b)              
None of Holdings, the Borrowers, the Subsidiaries and their respective
properties or assets is in violation of (nor will the continued operation of
their material properties and assets as currently conducted violate) any law,
rule or regulation (including any zoning, building, ordinance, code or approval
or any building permit, but excluding any Environmental Laws, which are subject
to Section 3.16) or any restriction of record or agreement affecting any
Mortgaged Property, or is in default with respect to any judgment, writ,
injunction or decree of any Governmental Authority, where such violation or
default would reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect. 


                        SECTION
3.10. Federal Reserve Regulations


.


(a)    None
of Holdings, the Borrowers or the Subsidiaries is engaged principally, or as
one of its important activities, in the business of extending credit for the
purpose of purchasing or carrying Margin Stock.


(b)              
No part of the proceeds of any Loan will be used, whether directly or
indirectly, and whether immediately, incidentally or ultimately, (i) to
purchase or carry Margin Stock or to extend credit to others for the purpose of
purchasing or carrying Margin Stock or to refund indebtedness originally
incurred for such purpose, or (ii) for any purpose that entails a
violation of, or that is inconsistent with, the provisions of the Regulations
of the Board, including Regulation U or Regulation X.       


                        SECTION
3.11. Investment Company Act


.  None of Holdings, the Borrowers and the Subsidiaries
is an “investment company” as defined in, or subject to regulation under, the
Investment Company Act of 1940, as amended.


                        SECTION
3.12. Use of Proceeds


.  The Borrowers will use the proceeds of the Revolving Loans, together with other cash, to consummate the Refinancing, for general
corporate purposes and to pay the Transaction Expenses.


                        SECTION
3.13. Tax Returns


.  Except as set forth on Schedule 3.13:   


(a)        except as would not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect,
(i) each of Holdings, the Borrowers and the Subsidiaries has filed or caused
to be filed all federal, state, local and non‐U.S. Tax returns required
to have been filed by it and (ii) taken as a whole, and each such Tax
return is true and correct;


(b)        each of Holdings, the Borrowers and
the Subsidiaries has timely paid or caused to be timely paid all Taxes shown to
be due and payable by it on the returns referred to in clause (a) and all
other Taxes or assessments (or made adequate provision (in accordance
with GAAP) for the payment of all Taxes due) with respect to all periods or
portions thereof ending on or before the Amendment Effective Date (except Taxes
or assessments that are being contested in good faith by appropriate
proceedings in accordance with Section 5.03 and for which Holdings, the
Borrowers or any of the Subsidiaries (as the case may be) has set aside on its
books adequate reserves in accordance with GAAP), which Taxes, if not paid or
adequately provided for, would, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect; and







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(c)        other than as would not be,
individually or in the aggregate, reasonably expected to have a Material
Adverse Effect:  as of the Amendment Effective Date, with respect to each of
Holdings, the Borrowers and the Subsidiaries, there are no claims being asserted
in writing with respect to any Taxes.


SECTION 3.14. No Material Misstatements


(a)    All
written information (other than the Projections, estimates and information on Schedule 4.02 
or estimates and information of a general economic nature or general industry nature)
(the “Information”) concerning Holdings, the Borrowers, the
Subsidiaries, the Transactions and any other transactions contemplated hereby
included in the Information Memorandum or otherwise prepared by or on behalf of
the foregoing or their representatives and made available to any Lenders or the
Administrative Agent in connection with the Transactions or the other
transactions contemplated hereby, when taken as a whole, was true and correct
in all material respects, as of the date such Information was furnished to the
Lenders and as of the Closing Date and did not, taken as a whole, contain any
untrue statement of a material fact as of any such date or omit to state a
material fact necessary in order to make the statements contained therein,
taken as a whole, not materially misleading in light of the circumstances under
which such statements were made.


(b)              
The Projections and estimates and information of a general economic
nature prepared by or on behalf of the Borrowers or any of their
representatives and that have been made available to any Lenders or the
Administrative Agent in connection with the Transactions or the other
transactions contemplated hereby (i) have been prepared in good faith based
upon assumptions believed by the Borrowers to be reasonable as of the date
thereof (it being understood that actual results may vary materially from the
Projections), as of the date such Projections and estimates were furnished to
the Lenders and as of the Closing Date, and (ii) as of the Closing Date, have not
been modified in any material respect by the Borrowers.


(c)               
All written information (other than the projections, estimates and
information on Schedule 4.02(c)  or estimates and information of a
general economic nature or general industry nature) concerning Holdings, the
Borrowers, the Subsidiaries, and any transactions contemplated hereby included
in the 2011 Information Memorandum or otherwise prepared by or on behalf of the
foregoing or their representatives and made available to any Lenders or the
Administrative Agent in connection with any of the transactions contemplated
hereby, when taken as a whole, was true and correct in all material respects,
as of the date such information was furnished to the Lenders and as of the
Amendment Effective Date and did not, taken as a whole, contain any untrue
statement of a material fact as of any such date or omit to state 







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a material fact necessary in order to make the
statements contained therein, taken as a whole, not materially misleading in
light of the circumstances under which such statements were made.


(d)              
The 2011 Projections and estimates and information of a general economic
nature prepared by or on behalf of the Borrowers or any of their
representatives and that have been made available to any Lenders or the Administrative
Agent in connection with the transactions contemplated hereby (i) have been
prepared in good faith based upon assumptions believed by the Borrowers to be
reasonable as of the date thereof (it being understood that actual results may
vary materially from the 2011 Projections), as of the date such 2011
Projections and estimates were furnished to the Lenders and as of the Amendment
Effective Date, and (ii) as of the Amendment Effective Date, have not been
modified in any material respect by the Borrowers.


                        SECTION
3.15. Employee Benefit Plans


(a)    Except
as would not reasonably be expected, individually or in the aggregate, to have
a Material Adverse Effect:  (i) each Plan is in compliance in all material
respects with the applicable provisions of ERISA and the Code; (ii) no
Reportable Event has occurred during the past five years as to which the
Borrowers, Holdings, any of their Subsidiaries or any ERISA Affiliate was
required to file a report with the PBGC, other than reports that have been
filed; (iii) no Plan has any Unfunded Pension Liability in excess of
$50 million; (iv) no ERISA Event has occurred or is reasonably
expected to occur; and (v) none of the Borrowers, Holdings, the
Subsidiaries and the ERISA Affiliates (A) has received any written
notification that any Multiemployer Plan is in reorganization or has been
terminated within the meaning of Title IV of ERISA, or has knowledge that
any Multiemployer Plan is reasonably expected to be in reorganization or to be
terminated or (B) has incurred or is reasonably expected to incur any
Withdrawal Liability to any Multiemployer Plan.


(b)              
Each of Holdings, the Borrowers and the Subsidiaries is in compliance
(i) with all applicable provisions of law and all applicable regulations
and published interpretations thereunder with respect to any employee pension
benefit plan or other employee benefit plan governed by the laws of a
jurisdiction other than the United States and (ii) with the terms of any
such plan, except, in each case, for such noncompliance that would not
reasonably be expected to have a Material Adverse Effect.


                        SECTION
3.16. Environmental Matters


.  Except as set forth in Schedule 3.16  and
except as to matters that would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect:  (i) no
written notice, request for information, order, complaint or penalty has been
received by the Borrowers or any of their Subsidiaries, and there are no
judicial, administrative or other actions, suits or proceedings pending or, to
such Borrower’s knowledge, threatened which allege a violation of or liability
under any Environmental Laws, in each case relating to the Borrowers or any of
their Subsidiaries, (ii) each of the Borrowers and their Subsidiaries has
all environmental permits, licenses and other approvals necessary for its
operations to comply with all applicable Environmental Laws and is, and during
the term of all applicable statutes of limitation, has been, in compliance with
the terms of such permits, licenses and other approvals and with all other
applicable Environmental Laws, (iii) to the Borrowers’ knowledge, no
Hazardous Material is located at, on or under any property currently owned, operated or leased by the Borrowers or any of their
Subsidiaries that would reasonably be expected to give rise to any cost,
liability or obligation of the Borrowers or any of their Subsidiaries under any
Environmental Laws, and no Hazardous Material has been generated, owned,
treated, stored, handled or controlled by the Borrowers or any of their
Subsidiaries and transported to or Released at any location in a manner that
would reasonably be expected to give rise to any cost, liability or obligation
of the Borrowers or any of their Subsidiaries under any Environmental Laws, and
(iv) there are no agreements in which the Borrowers or any of their
Subsidiaries have expressly assumed or undertaken responsibility for any known
or reasonably likely liability or obligation of any other person arising under
or relating to Environmental Laws, which in any such case has not been made
available to the Administrative Agent prior to the date hereof.







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                        SECTION
3.17. Security Documents


. 


(a)    The
Collateral Agreement is effective to create in favor of the Collateral Agent
(for the benefit of the Secured Parties) a legal, valid and enforceable
security interest in the Collateral described therein and proceeds thereof.  In
the case of the Pledged Collateral described in the Collateral Agreement, when
certificates or promissory notes, as applicable, representing such Pledged
Collateral are delivered to the Collateral Agent, and in the case of the other
Collateral described in the Collateral Agreement (other than the Intellectual
Property (as defined in the Collateral Agreement)), when financing statements
and other filings specified in the Perfection Certificate are filed in the
offices specified in the Perfection Certificate, the Collateral Agent (for the
benefit of the Secured Parties) shall have a fully perfected Lien on, and
security interest in, all right, title and interest of the Loan Parties in such
Collateral and, subject to Section 9‐315 of the New York Uniform
Commercial Code, the proceeds thereof, as security for the Obligations to the
extent perfection can be obtained by filing Uniform Commercial Code financing
statements, in each case prior and superior in right to any other person
(except Permitted Liens).


(b)              
When the Collateral Agreement or a summary thereof is properly filed in
the United States Patent and Trademark Office and the United States Copyright
Office, and, with respect to Collateral in which a security interest cannot be
perfected by such filings, upon the proper filing of the financing statements
referred to in paragraph (a) above, the Collateral Agent (for the benefit
of the Secured Parties) shall have a fully perfected Lien on, and security
interest in, all right, title and interest of the Loan Parties thereunder in
all domestic Intellectual Property, in each case prior and superior in right to
any other person (it being understood that subsequent recordings in the United
States Patent and Trademark Office and the United States Copyright Office may
be necessary to perfect a lien on registered trademarks and patents, trademark
and patent applications and registered copyrights acquired by the grantors
after the Closing Date) (except Permitted Liens).


(c)               
Each Foreign Pledge Agreement, if any, shall be effective to create in
favor of the Collateral Agent, for the benefit of the Secured Parties, a legal,
valid and enforceable security interest in the Collateral described therein and
proceeds thereof to the fullest extent permissible under applicable law.  In
the case of the Pledged Collateral described in a Foreign Pledge Agreement,
when certificates representing such Pledged Collateral (if any) are delivered
to the Collateral Agent, the Collateral Agent (for the benefit of the Secured
Parties) shall have a fully perfected Lien on, and security interest in, all
right, title and interest of the Loan Parties in such 







                                                                                 99                                                                                 










 








 








Collateral
and the proceeds thereof, as security for the Obligations, in each case prior
and superior in right to any other person.


(d)              
The Mortgages (if any) executed and delivered on or before the Amendment
Effective Date are, and the Mortgages to be executed and delivered after the
Amendment Effective Date pursuant to Section 5.10 shall be, effective to
create in favor of the Collateral Agent (for the benefit of the Secured
Parties) a valid Lien on all of the Loan Parties’ right, title and interest in
and to the Mortgaged Property thereunder and the proceeds thereof, and when
such Mortgages are filed or recorded in the proper real estate filing or
recording offices, the Collateral Agent (for the benefit of the Secured
Parties) shall have a fully perfected Lien on, and security interest in, all right,
title and interest of the Loan Parties in such Mortgaged Property and, to the
extent applicable, subject to Section 9‐315 of the Uniform
Commercial Code, the proceeds thereof, in each case prior and superior in right
to any other person, other than with respect to the rights of a person pursuant
to Permitted Liens.


(e)               
Notwithstanding anything herein (including this Section 3.17) or in
any other Loan Document to the contrary, other than to the extent set forth in
the applicable Foreign Pledge Agreements, no Borrower or any other Loan Party
makes any representation or warranty as to the effects of perfection or
non-perfection, the priority or the enforceability of any pledge of or security
interest in any Equity Interests of any Foreign Subsidiary that is not a Loan
Party, or as to the rights and remedies of the Agents or any Lender with
respect thereto, under foreign law.


                        SECTION
3.18. Location of Real Property and Leased Premises


.  (a)  The Perfection Certificate lists
completely and correctly, in all material respects, as of the Amendment
Effective Date all material Real Property owned by Holdings, the Borrowers and
the Subsidiary Loan Parties and the addresses thereof.  As of the Amendment
Effective Date, Holdings, the Borrowers and the Subsidiary Loan Parties own in
fee all the Real Property set forth as being owned by them on the Perfection
Certificate.


(b)   The
Perfection Certificate lists completely and correctly in all material respects,
as of the Amendment Effective Date, all material real property leased by
Holdings, the Borrowers and the Subsidiary Loan Parties and the addresses
thereof.  As of the Amendment Effective Date, Holdings, the Borrowers and the
Subsidiary Loan Parties have in all material respects valid leases in all the
real property set forth as being leased by them on the Perfection Certificate.


                        SECTION
3.19. Solvency 


.  (a)  Immediately after the Amendment
Effective Date, (i) the fair value of the assets of the Company (individually)
and Holdings, the Company and its Subsidiaries on a consolidated basis, at a
fair valuation, will exceed the debts and liabilities, direct, subordinated,
contingent or otherwise, of the Company (individually) and Holdings, the
Company and its Subsidiaries on a consolidated basis, respectively;
(ii) the present fair saleable value of the property of the Company
(individually) and Holdings, the Company and its Subsidiaries on a consolidated
basis will be greater than the amount that will be required to pay the probable
liability of the Company (individually) and Holdings, the Company and its
Subsidiaries on a consolidated basis, respectively, on their debts and other
liabilities, direct, subordinated, contingent or otherwise, as such debts and
other liabilities become absolute and matured; (iii) the Company (individually)
and Holdings, the Company and its Subsidiaries on a consolidated basis will be
able to pay their debts and liabilities, direct,
subordinated, contingent or otherwise, as such debts and liabilities become
absolute and matured; and (iv) the Company (individually) and Holdings,
the Company and its Subsidiaries on a consolidated basis will not have
unreasonably small capital with which to conduct the businesses in which they
are engaged as such businesses are now conducted and are proposed to be conducted
following the Amendment Effective Date.







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(b)   On the
Amendment Effective Date, neither Holdings nor any Borrower intends to, and
neither Holdings nor any Borrower believes that it or any of its subsidiaries
will, incur debts beyond its ability to pay such debts as they mature, taking
into account the timing and amounts of cash to be received by it or any such
subsidiary and the timing and amounts of cash to be payable on or in respect of
its Indebtedness or the Indebtedness of any such subsidiary.


                        SECTION
3.20. Labor Matters


.  Except as, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect:  (a) there are
no strikes or other labor disputes pending or threatened against Holdings, the
Borrowers or any of the Subsidiaries; (b) the hours worked and payments
made to employees of Holdings, the Borrowers and the Subsidiaries have not been
in violation of the Fair Labor Standards Act or any other applicable law
dealing with such matters; and (c) all payments due from Holdings, the
Borrowers or any of the Subsidiaries or for which any claim may be made against
Holdings, the Borrowers or any of the Subsidiaries, on account of wages and
employee health and welfare insurance and other benefits have been paid or
accrued as a liability on the books of Holdings, the Borrowers or such
Subsidiary to the extent required by GAAP.  Except as, individually or in the
aggregate, would not reasonably be expected to have a Material Adverse Effect,
the consummation of the Transactions will not give rise to a right of
termination or right of renegotiation on the part of any union under any
material collective bargaining agreement to which Holdings, the Borrowers or
any of the Subsidiaries (or any predecessor) is a party or by which Holdings,
the Borrowers or any of the Subsidiaries (or any predecessor) is bound.


                        SECTION
3.21. Insurance 


.  Schedule 3.21  sets forth a true, complete
and correct description of all material insurance maintained by or on behalf of
Holdings, the Borrowers or the Subsidiaries as of the Amendment Effective
Date.  As of such date, such insurance is in full force and effect.  


                        SECTION
3.22. No Default


.  No Default or Event of Default has occurred and is
continuing or would result from the consummation of the transactions
contemplated by this Agreement or any other Loan Document.  


                        SECTION
3.23. Intellectual Property; Licenses, Etc.


  Except as would not reasonably be expected to have a
Material Adverse Effect and as set forth in Schedule 3.23,
(a) the Borrowers and each of their Subsidiaries own, or possess the right
to use, all of the patents, patent rights, trademarks, service marks, trade
names, copyrights and any and all applications or registrations for any of the
foregoing (collectively, “Intellectual Property Rights”) that are
reasonably necessary for the operation of their respective businesses, without
conflict with the rights of any other person, (b) to the best knowledge of
the Borrowers, no  intellectual property right, proprietary right, product,
process, method, substance, part, or other material now employed, sold or
offered by or contemplated to be employed, sold or offered by the Borrowers or
their Subsidiaries infringes upon any rights held by
any other person, and (c) no claim or litigation regarding any of the
foregoing is pending or, to the best knowledge of the Borrowers, threatened.







                                                                                101                                                                                










 








 










                        SECTION
3.24. Senior Debt


.  The Obligations constitute “Senior Debt” (or the
equivalent thereof) and “Designated Senior Debt” (or the equivalent thereof)
under the Senior Subordinated Notes Indentures or any Permitted Refinancing
Indebtedness in respect of the Senior Subordinated Notes or such other
Indebtedness permitted to be incurred hereunder constituting subordinated
Indebtedness.


                        SECTION
3.25. Common Enterprise


.  The successful operation and condition of each of the
Loan Parties is enhanced by the continued successful performance of the
functions of the group of Loan Parties as a whole.  Each of the Loan Parties
expects to derive benefit (and its board of directors or other governing body
has determined that it may reasonably be expected to derive benefit), directly
and indirectly, from successful operations of Holdings and each of the other
Loan Parties.  Each Loan Party expects to derive benefit (and the boards of
directors or other governing body of each such Loan Party have determined that
it may reasonably be expected to derive benefit), directly and indirectly, from
the credit extended by the Lenders to the Loan Parties hereunder, both in their
separate capacities and as members of the group of companies.  Each Loan Party
has determined that execution, delivery, and performance of this Agreement and
any other Loan Documents to be executed by such Loan Party are within its
corporate purpose, will be of direct and indirect benefit to such Loan Party,
and are in its best interest.


                        SECTION
3.26. Sanctioned Persons; Anti-Money Laundering; Etc. 


  Neither Holdings, the Company   nor any of the
Subsidiaries, nor, to the knowledge of any Responsible Officer of the Company,
any director, officer, agent or employee of Holdings, the Company or any of the
Subsidiaries is currently subject to any United States sanctions administered
by the Office of Foreign Assets Control of the U.S. Treasury Department
(“OFAC”); and no Borrower will directly or indirectly use the proceeds of the
Loans, or otherwise make available such proceeds to any Person, for the purpose
of financing the activities of any Person currently subject to any U.S.
sanctions administered by OFAC.  To the extent applicable, Holdings, the
Company and the Subsidiaries are in compliance, in all material respects, with
the Trading with the Enemy Act, as amended, and each of the foreign assets
control regulations of the United States Treasury Department (31 C.F.R.,
Subtitle B, Chapter V, as amended) and any other enabling legislation or
executive order relating thereto.  No part of the proceeds of the Loans will be
used, directly or indirectly, for any payments to any governmental official or
employee, political party, official of a political party, candidate for
political office, or anyone else acting in an official capacity, in order to
obtain, retain or direct business or obtain any improper advantage, in
violation of the United States Foreign Corrupt Practices Act of 1977, as
amended.


ARTICLE IV



Conditions of Lending


The obligations of (a) the Lenders (including the
Swingline Lender) to make Loans and (b) any Issuing Bank to issue Letters
of Credit or increase the stated amounts of Letters of Credit hereunder (each,
a “Credit Event”) are subject to the satisfaction of the following
conditions:


 







                                                                                102                                                                                










 








 








                        SECTION
4.01. All Credit Events


.  On the date of each Credit Event:


(a)        The
Administrative Agent shall have received, in the case of a Borrowing, a
Borrowing Request as required by Section 2.03 (or a Borrowing Request
shall have been deemed given in accordance with the last paragraph of
Section 2.03) or, in the case of the issuance of a Letter of Credit, the
applicable Issuing Bank and the Administrative Agent shall have received a
notice requesting the issuance of such Letter of Credit as required by
Section 2.05(b).


(b)        The
representations and warranties set forth in the Loan Documents shall be true
and correct in all material respects as of such date (other than an amendment,
extension or renewal of a Letter of Credit without any increase in the stated
amount of such Letter of Credit), in each case, with the same effect as though
made on and as of such date, except to the extent such representations and
warranties expressly relate to an earlier date (in which case such
representations and warranties shall be true and correct in all material
respects as of such earlier date).


(c)        In
the case of each Credit Event that occurs after the Closing Date, at the time
of and immediately after such Credit Event, no Event of Default or Default
shall have occurred and be continuing or would result therefrom.


(d)       Such Credit Event is permitted
under the terms of all Material Indebtedness.


Each such Borrowing and each issuance, amendment,
extension or renewal of a Letter of Credit shall be deemed to constitute a
representation and warranty by the Borrowers on the date of such Borrowing,
issuance, amendment, extension or renewal as applicable, (i) as to the
matters specified in paragraphs (b), (c) and (d) of this
Section 4.01, and (b) that the aggregate amount of the Revolving
Facility Credit Exposure for which any Borrower is the borrower (in the case of
Loans) or the account party (in the case of Letters of Credit) does not exceed
the portion of the Borrowing Base attributable to such Borrower’s Accounts and
Inventory.


                        SECTION
4.02. Effectiveness of the Commitments


.  On the Closing Date:


(a)        The Administrative Agent (or its counsel) shall
have received from each party hereto either (i) a counterpart of this Agreement
signed on behalf of such party or (ii) written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a counterpart of
this Agreement.  


(b)        The Administrative Agent shall have received, on
behalf of itself and the Lenders and each Issuing Bank on the Closing Date, a
favorable written opinion of (i) Wachtell, Lipton, Rosen & Katz, special
counsel for the Loan Parties, in form and substance reasonably satisfactory to
the Administrative Agent, (ii) Jeff Thompson, in-house counsel for certain of
the Loan Parties, in form and substance reasonably satisfactory to the
Administrative Agent, and (iii) Gail Lehman, in-house counsel for certain of
the Loan Parties, in form and substance reasonably satisfactory to the
Administrative Agent, in each case (A) dated the Closing Date, (B) addressed to
each Issuing Bank on the Closing Date, the Administrative Agent and the Lenders
and (C) in form and substance reasonably satisfactory
to the Administrative Agent and covering such other matters relating to the
Loan Documents as the Administrative Agent shall reasonably request.







                                                                                103                                                                                










 








 










(c)        The Administrative Agent shall have received in
the case of each Loan Party each of the items referred to in clauses (i),
(ii), (iii), (iv) and (v) below:


(i)         only if such document or item shall have changed
since September 20, 2006 in respect of Berry and any Loan Party that was a
subsidiary of Berry Holdings immediately prior to Closing Date, or May 18, 2006
in respect of Covalence Holdings or any Loan Party that was a subsidiary of
Covalence Holdings immediately prior to the Closing Date, a copy of the
certificate or articles of incorporation, certificate of limited partnership or
certificate of formation, including all amendments thereto, of each Loan Party,
(A) in the case of a corporation, certified as of a recent date by the
Secretary of State (or other similar official) of the jurisdiction of its
organization, and a certificate as to the good standing (to the extent such
concept or a similar concept exists under the laws of such jurisdiction) of
each such Loan Party as of a recent date from such Secretary of State (or other
similar official) or (B) in the case of a partnership or limited liability
company, certified by the Secretary or Assistant Secretary of each such Loan
Party;


(ii)        a certificate of the Secretary or Assistant
Secretary or similar officer of each Loan Party dated the Closing Date and
certifying


(A)       (1) that attached thereto is a true and
complete copy of the by‐laws (or partnership agreement, limited liability
company agreement or other equivalent governing documents) of such Loan Party
as in effect on the Closing Date and at all times since the date of the
resolutions described in clause (B) below, or (2) that the by-laws (or
partnership agreement, limited liability company agreement or other equivalent
governing documents) of such Loan Party, as in effect on the Closing Date, have
not been modified, rescinded or amended since September 20, 2006 in respect of
Berry and any Loan Party that was a subsidiary of Berry Holdings immediately
prior to Closing Date, or May 18, 2006 in respect of Covalence Holdings or any
Loan Party that was a subsidiary of Covalence Holdings immediately prior to the
Closing Date,


(B)       that attached thereto is a true and
complete copy of resolutions duly adopted by the Board of Directors (or
equivalent governing body) of such Loan Party (or its managing general partner or
managing member) authorizing the execution, delivery and performance of the
Loan Documents to which such person is a party and, in the case of the
Borrowers, the borrowings hereunder, and that such resolutions have not been
modified, rescinded or amended and are in full force and effect on the Closing
Date,


(C)       that the certificate or articles of
incorporation, certificate of limited partnership or certificate of formation
of such Loan Party has not been amended since the date of the last amendment
thereto disclosed pursuant to clause (i) above,









                                                                                104                                                                                










 








 








(D)       as to the
incumbency and specimen signature of each officer executing any Loan Document
or any other document delivered in connection herewith on behalf of such Loan
Party, and


(E)       as to the absence of any pending proceeding
for the dissolution or liquidation of such Loan Party or, to the knowledge of
such person, threatening the existence of such Loan Party; 


(iii)       a certificate of a director or another officer
as to the incumbency and specimen signature of the Secretary or Assistant
Secretary or similar officer executing the certificate pursuant to
clause (ii) above; 


(iv)       a calculation of the Borrowing Base as of the
Closing Date in the form of Schedule 4.02 reasonably satisfactory to the
Administrative Agent; and


(v)        such other documents as the Administrative Agent,
the Lenders and any Issuing Bank on the Closing Date may reasonably request
(including without limitation, tax identification numbers and addresses).


(d)       The
elements of the Collateral and Guarantee Requirement required to be satisfied
on the Closing Date shall have been satisfied (other than in the case of any
security interest in the intended Collateral or any deliverable related to the
perfection of security interests in the intended Collateral (other than any
Collateral the security interest in which may be perfected by the filing of a
UCC financing statement or the delivery of stock certificates and the security
agreement giving rise to the security interest therein) that is not provided on
the Closing Date after the Company’s use of commercially reasonable efforts to
do so, which such security interest or deliverable shall be delivered within
the time periods specified with respect thereto in Schedule 4.02(d)),
and the Administrative Agent shall have received a completed Perfection
Certificate, dated the Closing Date and signed by a Responsible Officer of the
Company, together with all attachments contemplated thereby.


(e)        The
Business Combination shall have been consummated or shall be consummated
simultaneously with or immediately following the closing under this Agreement
in accordance with the terms and conditions of the Business Combination as set
forth in the Merger Documents, without material amendment, supplement,
modification or waiver thereof which is materially adverse to the Lenders
without the prior written consent of the Joint Lead Arrangers.


(f)        The
Lenders shall have received the financial statements referred to in
Section 3.05.


(g)        On
the Closing Date, after giving effect to the Transactions and the other
transactions contemplated hereby, Holdings shall have outstanding no
Indebtedness and the Borrowers and the Subsidiaries shall have outstanding no
Indebtedness other than (i) the Loans and other extensions of credit under this
Agreement, (ii) the Senior Subordinated Notes, (iii) the Original Second Lien
Notes, (iv) the Term Loans, and (v) other Indebtedness permitted pursuant to
Section 6.01.


 







                                                                                105                                                                                










 








 








(h)        The Lenders shall have received a solvency
certificate substantially in the form of Exhibit B  and signed by
the Chief Financial Officer of the Company confirming the solvency of the
Company and its Subsidiaries on a consolidated basis after giving effect to the
Transactions on the Closing Date. 


(i)         The
Agents shall have received all fees payable thereto or to any Lender on or
prior to the Closing Date and, to the extent invoiced, all other amounts due
and payable pursuant to the Loan Documents on or prior to the Closing Date,
including, to the extent invoiced, reimbursement or payment of all reasonable
out‐of‐pocket expenses (including reasonable fees, charges and
disbursements of Shearman & Sterling LLP and local counsel) required to be
reimbursed or paid by the Loan Parties hereunder or under any Loan Document.


(j)         Each
of (i) the Collateral Agreement, (ii) the Senior Lender Intercreditor
Agreement, (iii) Intercreditor Agreement and (iv) the Term Loan Credit
Agreement shall have been executed and delivered by the respective parties
thereto and shall have become effective, and the Administrative Agent shall
have received evidence satisfactory to it of such execution and delivery and
effectiveness.


For purposes of determining compliance with the
conditions specified in this Section 4.02, each Lender shall be deemed to have
consented to, approved or accepted or to be satisfied with each document or
other matter required thereunder to be consented to or approved by or
acceptable or satisfactory to the Lenders unless an officer of the
Administrative Agent responsible for the transactions contemplated by the Loan
Documents shall have received notice from such Lender prior to the Closing Date
specifying its objection thereto and such Lender shall not have made available
to the Administrative Agent such Lender’s ratable portion of the initial Borrowing.


ARTICLE V



Affirmative Covenants


The Borrowers covenant and agree with each Lender that
from and after the Amendment Effective Date, so long as this Agreement shall
remain in effect (other than in respect of contingent indemnification
obligations for which no claim has been made) and until the Commitments have
been terminated and the Obligations (including principal of and interest on
each Loan, all Fees and all other expenses or amounts payable under any Loan
Document) shall have been paid in full and all Letters of Credit and Bankers’
Acceptances have been canceled or fully cash collateralized (in a manner
reasonably acceptable to the Administrative Agent and the Issuing Banks) or
have expired and all amounts drawn or paid thereunder have been reimbursed in
full, unless the Required Lenders shall otherwise consent in writing, the
Borrowers will, and will cause each of the Material Subsidiaries to:


SECTION 5.01. Existence;
Businesses and Properties


. 


(a)    Do
or cause to be done all things necessary to preserve, renew and keep in full
force and effect its legal existence, except, in the case of a Subsidiary of
the Company, where the failure to do so would not reasonably be expected to
have a Material Adverse Effect, and except as otherwise expressly permitted under
Section 6.05, and 







                                                                                106                                                                                










 








 








except for the liquidation or
dissolution of Subsidiaries if the assets of such Subsidiaries to the extent
they exceed estimated liabilities are acquired by the Company or a Wholly Owned
Subsidiary of the Company in such liquidation or dissolution; provided,
that Subsidiary Loan Parties may not be liquidated into Subsidiaries that are
not Loan Parties and Domestic Subsidiaries may not be liquidated into Foreign
Subsidiaries.


(b)        Except where the
failure to do so would not reasonably be expected to have a Material Adverse
Effect, do or cause to be done all things necessary to (i) lawfully obtain,
preserve, renew, extend and keep in full force and effect the permits,
franchises, authorizations, patents, trademarks, service marks, trade names,
copyrights, licenses and rights with respect thereto necessary to the normal
conduct of its business and (ii) at all times maintain and preserve all
property necessary to the normal conduct of its business and keep such property
in good repair, working order and condition and from time to time make, or
cause to be made, all needful and proper repairs, renewals, additions,
improvements and replacements thereto necessary in order that the business
carried on in connection therewith, if any, may be properly conducted at all
times (in each case except as expressly permitted by this Agreement).


                        SECTION
5.02. Insurance 


.  


(a)    Maintain,
with financially sound and reputable insurance companies, insurance in such
amounts and against such risks as are customarily maintained by similarly
situated companies engaged in the same or similar businesses operating in the
same or similar locations and cause the Administrative Agent to be listed as a
co-loss payee on property and casualty policies and as an additional insured on
liability policies.


(b)              
With respect to any Mortgaged Properties, if at any time the area in
which the Premises (as defined in the Mortgages) are located is designated a
“flood hazard area” in any Flood Insurance Rate Map published by the Federal
Emergency Management Agency (or any successor agency), obtain flood insurance
in such reasonable total amount as the Administrative Agent may from time to
time reasonably require, and otherwise comply with the National Flood Insurance
Program as set forth in the Flood Disaster Protection Act of 1973, as it may be
amended from time to time.


(c)               
In connection with the covenants set forth in this Section 5.02, it
is understood and agreed that:


(i)         none of the
Administrative Agent, the Issuing Banks, the Lenders, and their respective
agents or employees shall be liable for any loss or damage insured by the
insurance policies required to be maintained under this Section 5.02, it
being understood that (A) the Loan Parties shall look solely to their
insurance companies or any other parties other than the aforesaid parties for
the recovery of such loss or damage and (B) such insurance companies shall
have no rights of subrogation against the Administrative Agent, the Lenders,
any Issuing Bank or their agents or employees.  If, however, the insurance
policies, as a matter of the internal policy of such insurer, do not provide
waiver of subrogation rights against such parties, as required above, then each
of Holdings and the Borrowers, on behalf of itself and behalf of each of its
subsidiaries, hereby agrees, to the extent permitted by law, to waive, and
further agrees to cause each of their Subsidiaries to 







                                                                                107                                                                                










 








 








waive,
its right of recovery, if any, against the Administrative Agent, the Lenders,
any Issuing Bank and their agents and employees; and


(ii)        the designation
of any form, type or amount of insurance coverage by the Administrative Agent
under this Section 5.02 shall in no event be deemed a representation,
warranty or advice by the Administrative Agent or the Lenders that such insurance
is adequate for the purposes of the business of Holdings, the Borrowers and the
Subsidiaries or the protection of their properties.


                        SECTION
5.03. Taxes 


.  Pay and discharge promptly when due all material
Taxes, imposed upon it or upon its income or profits or in respect of its
property, before the same shall become delinquent or in default, as well as all
lawful claims which, if unpaid, might give rise to a Lien upon such properties
or any part thereof; provided, however, that such payment and
discharge shall not be required with respect to any such Tax or claim so long
as the validity or amount thereof shall be contested in good faith by
appropriate proceedings, and Holdings, the Company or the affected Subsidiary,
as applicable, shall have set aside on its books reserves in accordance with
GAAP with respect thereto.


                        SECTION
5.04. Financial Statements,
Reports, etc.


  Furnish to the Administrative
Agent (which will promptly furnish such information to the Lenders):


(a)        within
90 days (or, if applicable, such shorter period as the SEC shall specify for
the filing of annual reports on Form 10-K) after the end of each fiscal year, a
consolidated balance sheet and related statements of operations, cash flows and
owners’ equity showing the financial position of the Company and its
Subsidiaries as of the close of such fiscal year and the consolidated results
of its operations during such year and, beginning with the financials delivered
pursuant to this clause (a) in respect of the 2008 fiscal year, setting forth
in comparative form the corresponding figures for the prior fiscal year, which
consolidated balance sheet and related statements of operations, cash flows and
owners’ equity shall be audited by independent public accountants of recognized
national standing and accompanied by an opinion of such accountants (which
opinion shall not be qualified as to scope of audit or as to the status of the
Company or any Material Subsidiary as a going concern) to the effect that such
consolidated financial statements fairly present, in all material respects, the
financial position and results of operations of the Company and its
Subsidiaries on a consolidated basis in accordance with GAAP (it being
understood that the delivery by the Company of annual reports on Form 10-K of
the Company and its consolidated Subsidiaries shall satisfy the requirements of
this Section 5.04(a) to the extent such annual reports include the
information specified herein);


(b)        within
45 days (or, if applicable, such shorter period as the SEC shall specify for
the filing of quarterly reports on Form 10‐Q) after the end of each of
the first three fiscal quarters of each fiscal year beginning with the fiscal
quarter ending June 30, 2007, for each of the first three fiscal quarters of
each fiscal year, (i) a consolidated balance sheet and related statements of
operations and cash flows showing the financial position of the Company and its
Subsidiaries as of the close of such fiscal quarter and the consolidated
results of its operations during such fiscal quarter and the then‐elapsed
portion of the fiscal year and setting forth in comparative form the
corresponding figures for the corresponding 







                                                                                108                                                                                










 








 








periods
of the prior fiscal year, and (ii) management’s discussion and analysis of
significant operational and financial developments during such quarterly
period, all of which shall be in reasonable detail and which consolidated
balance sheet and related statements of operations and cash flows shall be
certified by a Financial Officer of the Company on behalf of the Company as
fairly presenting, in all material respects, the financial position and results
of operations of the Company and its Subsidiaries on a consolidated basis in
accordance with GAAP (subject to normal year‐end audit adjustments and
the absence of footnotes) (it being understood that the delivery by the Company
of quarterly reports on Form 10‐Q of the Company and its consolidated
Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the
extent such quarterly reports include the information specified herein); 


(c)        (x)
concurrently with any delivery of financial statements under
paragraph (a) or (b) above, a certificate of a Financial Officer
of the Company  certifying (i) that no Event of Default or Default has
occurred or, if such an Event of Default or Default has occurred, specifying
the nature and extent thereof and any corrective action taken or proposed to be
taken with respect thereto, (ii) whether an Availability Triggering Event
has occurred during the applicable period covered by such financial statements,
(iii) the calculation of the ABL Fixed Charge Coverage Ratio as of the
last day of the applicable period covered by such financial statements, and
(iv) that the aggregate amount of the Revolving Facility Credit Exposure
for which any Borrower is the borrower (in the case of Loans) or the
account party (in the case of Letters of Credit) does not exceed the portion of
the Borrowing Base attributable to such Borrower’s Accounts and Inventory,
together with, if requested by the Administrative Agent, calculations
evidencing and supporting such certification, (v) the calculation and uses
of the Cumulative Credit for the fiscal period then ended if the Company shall
have used the Cumulative Credit for any purpose during such fiscal period, (vi)
a list of names of all Immaterial Subsidiaries for the following fiscal
quarter, that each Subsidiary set forth on such list individually qualifies as
an Immaterial Subsidiary and that all such Subsidiaries in the aggregate
(together with all Unrestricted Subsidiaries) do not exceed the limitation
set forth in clause (b) of the definition of the term Immaterial
Subsidiary, and (vii) a list of names of all Unrestricted Subsidiaries,
that each Subsidiary set forth on such list individually qualifies as an
Unrestricted Subsidiary, and (y) concurrently with any delivery of
financial statements under paragraph (a) above, if the accounting
firm is not restricted from providing such a certificate by its policies of its
national office, a certificate of the accounting firm opining on or certifying
such statements stating whether they obtained knowledge during the course of
their examination of such statements of any Default or Event of Default (which
certificate may be limited to accounting matters and disclaim responsibility
for legal interpretations);


(d)       promptly
after the same become publicly available, copies of all periodic and other
publicly available reports, proxy statements and, to the extent requested by
the Administrative Agent, other materials filed by Holdings, the Company or any
of the Subsidiaries with the SEC, or after an initial public offering,
distributed to its stockholders generally, as applicable; provided, however,
that such reports, proxy statements, filings and other materials required to be
delivered pursuant to this clause (d) shall be deemed delivered for
purposes of this Agreement when posted to the website of the Company;


 







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(e)        within 90 days after the beginning of each
fiscal year, a reasonably detailed consolidated quarterly budget for such
fiscal year (including a projected consolidated balance sheet of the Company
and its Subsidiaries as of the end of the following fiscal year, and the
related consolidated statements of projected cash flow and projected income),
including a description of underlying assumptions with respect thereto
(collectively, the “Budget”), which Budget shall in each case be
accompanied by the statement of a Financial Officer of the Company to the
effect that the Budget is based on assumptions believed by such Financial
Officer to be reasonable as of the date of delivery thereof;


(f)        upon
the reasonable request of the Administrative Agent, an updated Perfection
Certificate (or, to the extent such request relates to specified information
contained in the Perfection Certificate, such information) reflecting all
changes since the date of the information most recently received pursuant to
this paragraph (f) or Section 5.10(g);


(g)        promptly,
from time to time, such other information regarding the operations, business
affairs and financial condition of Holdings, the Company or any of the
Subsidiaries, or compliance with the terms of any Loan Document, or such
consolidating financial statements as in each case the Administrative Agent may
reasonably request (for itself or on behalf of any Lender); 


(h)        in
the event that (i) in respect of the Second Lien Notes, the First Priority
Notes or the Senior Subordinated Notes, and any Refinancing Indebtedness with
respect thereto, the rules and regulations of the SEC permit the Company,
Holdings or any Parent Entity to report at Holdings’ or such Parent Entity’s
level on a consolidated basis and (ii) Holdings or such Parent Entity, as
the case may be, is not engaged in any business or activity, and does not own any
assets or have other liabilities, other than those incidental to its ownership
directly or indirectly of the capital stock of the Company and the incurrence
of Indebtedness for borrowed money (and, without limitation on the foregoing,
does not have any subsidiaries other than the Company and the Company’s
Subsidiaries and any direct or indirect parent companies of the Company that
are not engaged in any other business or activity and do not hold any other
assets or have any liabilities except as indicated above) such consolidated
reporting at such Parent Entity’s level in a manner consistent with that
described in paragraphs (a) and (b) of this Section 5.04 for the
Company (together with a reconciliation showing the adjustments necessary to
determine the ABL Fixed Charge Coverage Ratio) will satisfy the requirements of
such paragraphs; 


(i)         promptly
upon request by the Administrative Agent, copies of: (i) each Schedule SB
(Actuarial Information) to the most recent annual report (Form 5500 Series)
filed with the U.S. Department of Labor with respect to a Plan; (ii) the
most recent actuarial valuation report for any Plan; (iii) all notices
received from a Multiemployer Plan sponsor, a plan administrator or any
governmental agency, or provided to any Multiemployer Plan by Holdings, the
Company, a Subsidiary or any ERISA Affiliate, concerning an ERISA Event; and
(iv) such other documents or governmental reports or filings relating to
any Plan or Multiemployer Plan as the Administrative Agent shall reasonably request;
and


 







                                                                                110                                                                                










 








 








(j)         promptly upon Holdings, the Company or the
Subsidiaries becoming aware of any fact or condition which would reasonably be
expected to result in an ERISA Event, the Company shall deliver to
Administrative Agent a summary of such facts and circumstances and any action
it or Holdings or the Subsidiaries intend to take regarding such facts or
conditions.


SECTION 5.05. Litigation
and Other Notices


.  Furnish to the Administrative Agent (which will
promptly thereafter furnish to the Lenders) written notice of the following
promptly after any Responsible Officer of Holdings or the Company obtains
actual knowledge thereof:


(a)        any
Event of Default or Default, specifying the nature and extent thereof and the
corrective action (if any) proposed to be taken with respect thereto;


(b)        the
filing or commencement of, or any written threat or notice of intention of any
person to file or commence, any action, suit or proceeding, whether at law or
in equity or by or before any Governmental Authority or in arbitration, against
Holdings, the Company or any of the Subsidiaries as to which an adverse
determination is reasonably probable and which, if adversely determined, would
reasonably be expected to have a Material Adverse Effect;


(c)        any
other development specific to Holdings, the Company or any of the Subsidiaries
that is not a matter of general public knowledge and that has had, or would
reasonably be expected to have, a Material Adverse Effect;


(d)       the
development of any ERISA Event that, together with all other ERISA Events that
have developed or occurred, would reasonably be expected to have a Material
Adverse Effect; and


(e)        any
default or event of default under any lease of Real Property if the fair market
value of the Inventory of the Borrowers stored, maintained or otherwise located
on such leased Real Property exceeds $5,000,000.


SECTION 5.06. Compliance
with Laws


.  Comply with all laws, rules, regulations and orders of
any Governmental Authority applicable to it or its property, except where the
failure to do so, individually or in the aggregate, would not reasonably be
expected to result in a Material Adverse Effect; provided, that this
Section 5.06 shall not apply to Environmental Laws, which are the subject
of Section 5.09, or to laws related to Taxes, which are the subject of
Section 5.03.


SECTION 5.07. Maintaining
Records; Access to Properties and Inspections


.  Maintain all financial records in accordance with GAAP
and, upon five Business Days’ notice (or, if an Event of Default has occurred
and is continuing, one Business Day’s notice), permit any authorized
representatives of the Administrative Agent and the Collateral Agent to visit,
audit and inspect any of the properties of such Borrower and its Subsidiaries,
including its and their financial and accounting records, and to make copies
and take extracts therefrom, and to discuss its and their affairs, finances and
business with its and their officers and certified public accountants (so long
as such Borrower has the opportunity to participate in any discussions with
such certified public accountants), at such reasonable times during normal
business hours and without undue disruption to the business of the Borrowers as
often as may be reasonably requested, in each case at the expense
of the Borrowers (a “Collateral Audit”); provided, that so long
as no Availability Triggering Event or Event of Default has occurred and is
continuing, the Administrative Agent shall not conduct more than one Collateral
Audit per year unless the Availability is less than $100 million for five
consecutive days, in which case the Administrative Agent may, but shall not be
required to, conduct two Collateral Audits per year.  If an Availability
Triggering Event or Event of Default has occurred and is continuing,
representatives of each Lender (at such Lender’s expense) will be permitted to
accompany representatives of the Administrative Agent during each visit,
inspection and discussion conducted during the existence of such Availability
Triggering Event or Event of Default.







                                                                                111                                                                                










 








 










SECTION 5.08. Use of
Proceeds


.  Use the proceeds of the Revolving Loans and the
Swingline Loans and request the issuance of Letters of Credit, together with
other cash, to consummate the Refinancing and the other Transactions and for
general corporate purposes including to support payment obligations incurred in
the ordinary course of business of the Borrowers and their Subsidiaries.  


SECTION 5.09. Compliance
with Environmental Laws


.  Comply, and make reasonable efforts to cause all
lessees and other persons occupying its properties to comply, with all
Environmental Laws applicable to its operations and properties; and obtain and
renew all material authorizations and permits required pursuant to
Environmental Law for its operations and properties, in each case in accordance
with Environmental Laws, except, in each case with respect to this
Section 5.09, to the extent the failure to do so would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect.


SECTION
5.10. Further Assurances; Additional Security


.


(a)    Execute
any and all further documents, financing statements, agreements and
instruments, and take all such further actions (including the filing and
recording of financing statements, fixture filings, Mortgages and other documents
and recordings of Liens in stock registries), that may be required under any
applicable law, or that the Collateral Agent may reasonably request, to satisfy
the Collateral and Guarantee Requirement and to cause the Collateral and
Guarantee Requirement to be and remain satisfied, all at the expense of the
Loan Parties and provide to the Collateral Agent, from time to time upon
reasonable request, evidence reasonably satisfactory to the Collateral Agent as
to the perfection and priority of the Liens created or intended to be created
by the Security Documents.


(b)              
If any asset (including any Real Property (other than Real Property
covered by paragraph (c) below) or improvements thereto or any interest
therein) that has an individual fair market value in an amount greater than $5
million is acquired by the Company or any other Loan Party after the Closing
Date or owned by an entity at the time it becomes a Subsidiary Loan Party (in
each case other than (x) assets constituting Collateral under a Security Document
that become subject to the Lien of such Security Document upon acquisition
thereof and (y) assets that are not required to become subject to Liens in
favor of the Collateral Agent pursuant to Section 5.10(g) or the Security
Documents) (i) notify the Collateral Agent thereof, (ii) if such
asset is comprised of Real Property, deliver to Collateral Agent an updated Schedule 1.01(c) 
reflecting the addition of such asset, and (iii) cause such asset to be
subjected to a Lien securing the Obligations and take, 







                                                                                112                                                                                










 








 








and
cause the Subsidiary Loan Parties to take, such actions as shall be necessary
or reasonably requested by the Administrative Agent to grant and perfect such
Liens, including actions described in paragraph (a) of this Section, all
at the expense of the Loan Parties, subject to paragraph (g) below.


(c)               
Promptly notify the Collateral Agent of the acquisition of and grant and
cause each of the Subsidiary Loan Parties to grant to the Collateral Agent
security interests and mortgages in such Real Property of the Company or any
such Subsidiary Loan Parties as are not covered by the original Mortgages, to
the extent acquired after the Closing Date and having a value at the time of
acquisition in excess of $5 million pursuant to documentation substantially in
the form of the Mortgages delivered to the Collateral Agent on the Closing Date
or in such other form as is reasonably satisfactory to the Administrative Agent
(each, an “Additional Mortgage”) and constituting valid and enforceable
Liens subject to no other Liens except Permitted Liens, at the time of
perfection thereof, record or file, and cause each such Subsidiary to record or
file, the Additional Mortgage or instruments related thereto in such manner and
in such places as is required by law to establish, perfect, preserve and
protect the Liens in favor of the Collateral Agent required to be granted
pursuant to the Additional Mortgages and pay, and cause each such Subsidiary to
pay, in full, all Taxes, fees and other charges payable in connection
therewith, in each case subject to paragraph (g) below.  Unless otherwise
waived by the Collateral Agent, with respect to each such Additional Mortgage,
the Company shall deliver to the Collateral Agent contemporaneously therewith a
title insurance policy, and a survey.


(d)              
If any additional direct or indirect Subsidiary of the Company is formed
or acquired after the Closing Date (with any Subsidiary Redesignation resulting
in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute
the acquisition of a Subsidiary) and if such Subsidiary is a Subsidiary Loan
Party, within five Business Days after the date such Subsidiary is formed or
acquired, notify the Collateral Agent and the Lenders thereof and, within 20
Business Days after the date such Subsidiary is formed or acquired or such
longer period as the Collateral Agent shall agree, cause the Collateral and
Guarantee Requirement to be satisfied with respect to such Subsidiary and with
respect to any Equity Interest in or Indebtedness of such Subsidiary owned by
or on behalf of any Loan Party, subject to paragraph (g) below.


(e)               
If any additional Foreign Subsidiary of the Company is formed or
acquired after the Closing Date (with any Subsidiary Redesignation resulting in
an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the
acquisition of a Subsidiary) and if such Subsidiary is a “first tier” Foreign
Subsidiary, within five Business Days after the date such Foreign Subsidiary is
formed or acquired, notify the Collateral Agent and the Lenders thereof and,
within 20 Business Days after the date such Foreign Subsidiary is formed or
acquired or such longer period as the Collateral Agent shall agree, cause the
Collateral and Guarantee Requirement to be satisfied with respect to any Equity
Interest in such Foreign Subsidiary owned by or on behalf of any Loan Party,
subject to paragraph (g) below.


(f)               
(i) Furnish to the Collateral Agent prompt written notice of any
change (A) in any Loan Party’s corporate or organization name, (B) in
any Loan Party’s identity or organizational structure or (C) in any Loan
Party’s organizational identification number; provided, that the
Borrowers shall not effect or permit any such change unless all filings have
been made, or will have been made within any statutory period, under the
Uniform Commercial Code or 







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otherwise that are
required in order for the Collateral Agent to continue at all times following
such change to have a valid, legal and perfected security interest in all the
Collateral for the benefit of the Secured Parties and (ii) promptly notify
the Administrative Agent if any material portion of the Collateral is damaged
or destroyed.


(g)              
The Collateral and Guarantee Requirement and the other provisions of
this Section 5.10 need not be satisfied with respect to (i) any Real
Property held by the Borrowers or any of their Subsidiaries as a lessee under a
lease, (ii) any vehicle, (iii) except as required pursuant to
Section 5.14, cash, deposit account and security accounts (provided 
that this clause (iii) shall not affect the Collateral Agent’s right
to claim a security interest in proceeds of Accounts and Inventory),
(iv) any Equity Interests acquired after the Closing Date (other than
Equity Interests in the Company or, in the case of any person which is a
Subsidiary, Equity Interests in such person issued or acquired after such
person became a Subsidiary) in accordance with this Agreement if, and to the
extent that, and for so long as (A) such Equity Interests constitute less
than 100% of all applicable Equity Interests of such person and the person
holding the remainder of such Equity Interests are not Affiliates,
(B) doing so would violate applicable law or a contractual obligation
binding on such Equity Interests and (C) with respect to such contractual
obligations, such obligation existed at the time of the acquisition thereof and
was not created or made binding on such Equity Interests in contemplation of or
in connection with the acquisition of such Subsidiary, (v) any assets
acquired after the Closing Date, to the extent that, and for so long as, taking
such actions would violate an enforceable contractual obligation binding on
such assets that existed at the time of the acquisition thereof and was not
created or made binding on such assets in contemplation or in connection with
the acquisition of such assets (except in the case of assets acquired with
Indebtedness permitted pursuant to Section 6.01(i) that is secured by a
Permitted Lien) or (vi) those assets as to which the Collateral Agent
shall reasonably determine that the costs of obtaining or perfecting such a
security interest are excessive in relation to the value of the security to be
afforded thereby; provided, that, upon the reasonable request of the
Collateral Agent, the Company shall, and shall cause any applicable Subsidiary
to, use commercially reasonable efforts to have waived or eliminated any
contractual obligation of the types described in clauses (iv) and
(v) above.


                        SECTION
5.11. Appraisals and Reports


.  The Company shall use commercially reasonable efforts
to facilitate the completion of Post-Closing Reports within 90 days after the
Closing Date.  In addition, the Borrowers shall provide to the Collateral
Agent, upon request of the Collateral Agent and at the expense of the
Borrowers, (a) so long as no Availability Triggering Event or Event of
Default has occurred and is continuing, once in each calendar year (in
coordination with the Company’s annual financial statement audit), or
(b) if the Availability is less than $100 million for five consecutive
days, twice per calendar year, and (c) if any Availability Triggering
Event or Event of Default has occurred and is continuing, one additional time
during any calendar year, appraisals or updates thereof of any or all of the
Collateral from one or more Acceptable Appraisers (as selected by the
Borrowers), and prepared in a form and on a basis reasonably satisfactory to
the Collateral Agent, such appraisals and updates to include, without
limitation, information required by Requirements of Law and by the internal
policies of the Lenders.  In addition, the Borrowers shall have the right (but
not the obligation), at their expense, at any time and from time to time (but
not more than twice per year) to provide the Collateral Agent with additional
appraisals or updates thereof of any or all of the Collateral from one or more
Acceptable Appraisers (as selected by the Borrowers), and prepared in a form
and on a basis reasonably satisfactory to the
Collateral Agent, in which case such appraisals or updates shall be used in
connection with the determination of the Orderly Liquidation Value and the
calculation of the Borrowing Base hereunder.  In connection with any appraisal
requested by the Collateral Agent pursuant to this Section 5.11, the
Borrowers shall be given 20 days following such request by the Collateral Agent
to choose and engage the Acceptable Appraiser prior to the commencement of such
appraisal.  With respect to each appraisal made pursuant to this
Section 5.11 after the Closing Date, (i) the Collateral Agent and the
Borrowers shall each be given a reasonable amount of time to review and comment
on a draft form of the appraisal prior to its finalization and (ii) any
adjustments to the Orderly Liquidation Value or the Borrowing Base hereunder as
a result of such appraisal shall become effective 20 days following the
finalization of such appraisal.  







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                        SECTION
5.12. Collateral Reporting


.  Provide, or cause to be provided, to the Collateral
Agent, a Borrowing Base Certificate on or before the 20th Business
Day of each Fiscal Period, or, during the continuance of an Availability
Triggering Event or Event of Default, more frequently if requested by the
Collateral Agent (but in no event more frequently than once in any seven
consecutive day period), for the preceding Fiscal Period end (or such shorter
period during the continuance of an Availability Triggering Event or Event of
Default), substantially in the form of Exhibit E.  If the Borrowers’
records or reports of the Collateral required to be delivered pursuant to this
Agreement are prepared by an accounting service or other agent, the Borrowers
hereby authorize such service or agent to deliver such records or reports to
the Collateral Agent, for distribution to the Lenders.


                        SECTION
5.13. Accounts 


.  


(a)    Not
re‐date any invoice or sale or make sales on extended dating or extend or
modify any Account outside the ordinary course of business.


(b)              
Not, without the Collateral Agent’s prior written consent, accept any
note or other instrument (except a check or other instrument for the immediate
payment of money) with respect to any Account other than Accounts which
(i) do not exceed $1 million individually and (ii) at the time of
accepting such note or other instrument are not less than 90 days past due from
the date of the original invoice therefor or in settlement of a bankrupt or
disputed account.  If the Collateral Agent consents to the acceptance of any
such instrument, such Loan Party will promptly deliver such instrument to the
Collateral Agent, endorsed to the Collateral Agent in a manner satisfactory in
form and substance to the Collateral Agent.


(c)               
Take commercially reasonable steps to settle, contest, or adjust any
dispute or claim in excess of $1 million at no expense to the Secured Parties. 
No discount, credit, or allowance shall be granted to any Account Debtor
without the Collateral Agent’s prior written consent, except for discounts,
credits, and allowances made or given in the ordinary course of business of the
Borrowers (unless an Event of Default has occurred and is continuing and the
Collateral Agent has notified the Borrowers that such exception is withdrawn).


(d)              
If an Account Debtor returns any Inventory to any Borrower then, unless
an Event of Default exists and the Collateral Agent has given notice to the
Borrowers not to do so, such Borrower shall promptly determine the reason for
such return and if such return has a valid 







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reason
shall issue a credit memorandum to the Account Debtor in the appropriate
amount.  All returned Inventory of the Borrowers or its Subsidiaries shall be
subject to the Collateral Agent’s Liens thereon.  Whenever any Inventory is
returned, the related Account shall be deemed ineligible (without duplication
of any other exclusion) to the extent of the amount owing by the Account Debtor
with respect to such returned Inventory.


SECTION
5.14. Collection of Accounts; Payments


.  


(a)    Within
120 days after the Closing Date, establish a Payment Account (the “Primary
Payment Account”) subject to a Blocked Account Agreement and other documentation reasonably acceptable to the
Administrative Agent, into which all Account collections and proceeds of
Revolving Facility Senior Collateral (as defined in the Senior Lender
Intercreditor Agreement) will be deposited, and the Borrowers hereby agree
that, if an Availability Triggering Event or Specified Default has occurred and
is continuing, the Collateral Agent will have exclusive dominion and control
over the Primary Payment Account.  In the absence of an Availability Triggering
Event or Specified Default, the Borrowers will be entitled to direct the
application of funds in the Primary Payment Account, including directing the
Administrative Agent (or other depository bank, if applicable) to apply funds
to the repayment of the outstanding Loans and other amounts payable under the
Loan Documents and to otherwise withdraw funds from the Primary Payment
Account; provided  that all funds withdrawn from the Primary Payment
Account will be applied to repay operating expenses of the Borrowers and their
Subsidiaries in the ordinary course of business or for other purposes permitted
hereunder other than transfers of funds to a deposit account that is not
subject to a Blocked Account Agreement (an “Unblocked Account”) or
investments in Permitted Investments unless (i) the Collateral Agent has a
first priority perfected security interest in such Permitted Investment or
Unblocked Account or (ii) the amount of such Permitted Investments and
funds in Unblocked Accounts so transferred for which the Collateral Agent does
not have a first priority perfected security interest does not exceed $40
million at any one time; provided, further, that no such
transfers of funds to Unblocked Accounts or Permitted Investments may be made
pursuant to this clause (ii) if the Availability is less than $100
million on such date immediately before and after giving effect to such
transfer or Permitted Investment.  If an Availability Triggering Event
or Specified Default has occurred and is continuing, (i) the Collateral
Agent shall have the right to apply collections received into the Primary
Payment Account to the outstanding Loans as provided in Section 5.02 of
the Collateral Agreement and the Borrowers shall have the right, subject to the
terms and conditions of this Agreement, to request Borrowings hereunder and
direct the disposition of Revolving Loan proceeds, and (ii) the Borrowers
shall not be entitled to present items drawn on or otherwise to withdraw or
direct the dispositions of funds from the Primary Payment Account nor shall any
Borrower be entitled to close the Primary Payment Account until all obligations
under this Agreement are paid and performed in full.  Notwithstanding any other
agreements the Borrowers may have with any Secured Party, the Collateral Agent
shall be entitled, during the continuance of any Event of Default, for purposes
of this Agreement to give instructions as to the withdrawal or disposition of
funds from time to time credited to any deposit account with the Collateral
Agent, any Payment Account, or the Primary Payment Account, or as to any other
matters relating to any of the forgoing without further consent of the
Borrowers.  The Collateral Agent’s power under this 







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Agreement
to give instructions as to the withdrawal or disposition of any funds from time
to time credited to the Primary Payment Account, any other Payment Account or
deposit account with the Collateral Agent or as to any other matters relating
to the foregoing includes, without limitation, during an Event of Default, the
power to give stop payment orders for any items being presented to such
accounts for payment.  


(b)              
No later than 120 days after the Closing Date or such later time as
the Administrative Agent shall agree, establish a lock‐box service for
collections of Accounts at Clearing Banks reasonably acceptable to the
Administrative Agent and, with respect to bank accounts with Clearing Banks
other than the Collateral Agent, if requested by the Administrative Agent,
subject to Blocked Account Agreements and other documentation reasonably
acceptable to the Administrative Agent (provided, that Blocked Account
Agreements and other documentation consistent in form and substance with the
Blocked Account Agreements and documentation established in connection with the
Existing Credit Agreement shall be acceptable to the Administrative Agent). 
The Borrowers shall instruct all new Account Debtors with respect to Accounts
to make all payments directly to the address established for each such lock‐box
service or electronically into such lockbox accounts.  If, notwithstanding such
instructions, any Borrower receives any proceeds of Accounts, it shall deliver
such payments to the Collateral Agent or deposit them into the Primary Payment
Account of another Payment Account established pursuant to this Section 5.14(b).
 All funds received in any Payment Account other than the Primary Payment
Account shall be promptly transferred to the Primary Payment Account.  During
an Availability Triggering Event or Specified Default, all collections received
in any lock‐box or Payment Account or directly by the Borrowers or the
Collateral Agent, and all funds in any Payment Account or other account to
which such collections are deposited, shall be subject to the Collateral
Agent’s exclusive dominion and control and withdrawals by the Borrowers shall
not be permitted; provided, however, that, in the
absence of an Availability Triggering Event or Specified Default, all
collections received in any lock‐box or Payment Account, and all funds in
any Payment Account or other account to which such collections are deposited
shall be subject to direction as to application thereof and withdrawal by the
Borrowers in the same manner as provided in Section 5.14(a) for the
Primary Payment Account.  The Collateral Agent or its designee may, at any time
after the occurrence and during the continuation of an Event of Default, upon
notice to the Borrowers, notify Account Debtors that the Accounts have been
assigned to the Collateral Agent and of the Collateral Agent’s security
interest therein, and may collect them directly and charge the collection costs
and expenses to the Loan Account as a Revolving Loan.  So long as an Event of
Default exists, the Borrowers, at the Collateral Agent’s request, shall execute
and deliver to the Collateral Agent such documents as the Collateral Agent
shall reasonably request to grant the Collateral Agent access to any post
office box in which collections of Accounts are received.  


(c)               
If sales of Inventory are made or services are rendered by any of the
Borrowers for cash, such Borrowers shall promptly deposit such cash into a
Payment Account.


(d)              
Except as otherwise provided in this Section 5.14, all payments
received by the Collateral Agent in a bank account, an account separate from
the Primary Payment Account, a Payment Account or a lock‐box account,
designated by the Borrowers and the Collateral Agent will be credited to the
Loan Account (conditional upon final collection) on the same day received (if
received prior to 3:00 p.m., Local Time); provided  that the
Borrowers shall compensate the 







                                                                                117                                                                                










 








 








Collateral Agent for
the cost of collection and clearance of remittances applied to the Loan
Account, including interest for one day, on all uncollected funds credited to
the Loan Account as provided by this Section 5.14(d).


(e)               
In the event all of the Obligations (other than contingent
indemnification and expense reimbursement obligations for which no claim has
been made) are repaid upon the termination of this Agreement or upon
acceleration of the Obligations, other than through the Collateral Agent’s
receipt of payments on account of the Accounts or proceeds of the other
Collateral, such payment will be credited (conditional upon final collection)
to the Loan Account (i) on the date of the Collateral Agent’s receipt of
such funds if such funds are collected funds or other immediately available
funds if received by 3:00 p.m. (New York, New York time) or (ii) one
Business Day after the Collateral Agent’s receipt of such funds if such funds
are uncollected funds or collected or immediately available funds received
after such time.


SECTION
5.15. Inventory; Perpetual Inventory


.  


(a)    Keep
its Inventory (other than returned or obsolete Inventory) in good and
marketable condition, except for damaged or defective goods arising in the
ordinary course of its business.  The Borrowers will not, without the prior
written consent of the Collateral Agent, acquire or maintain any Inventory in
excess of $5 million at any time on consignment or approval unless such
Inventory is disclosed to the Collateral Agent pursuant to Section 5.12
and the Borrowers take appropriate steps to insure that all of such Inventory
meets the criteria of Eligible Inventory, including delivery of appropriate
subordination agreements, if necessary.  The Borrowers will conduct a physical
count of their Inventory at least once per its fiscal year, and during the
existence of an Event of Default, at such other times as the Collateral Agent
may reasonably request.  Without the Collateral Agent’s written consent, the
Borrowers will not sell, through a single transaction or a series of related
transactions, Inventory on a bill‐and‐hold, guaranteed sale, sale
and return, sale on approval, consignment, or other repurchase or return basis
in excess of $5 million.


(b)              
In connection with all Inventory financed by letters of credit, the
Borrowers will, when an Event of Default is continuing, at the Collateral
Agent’s request, instruct all suppliers, carriers, forwarders, customs brokers,
warehouses or other persons receiving or holding cash, checks, Inventory, documents
or instruments in which the Collateral Agent holds a security interest to
deliver them to the Collateral Agent and/or subject to the Collateral Agent’s
order, and if they shall come into the Borrowers’ or their Subsidiaries’
possession, to deliver them, upon request, to the Collateral Agent in their
original form.  The Borrowers shall also, when an Event of Default is
continuing, at the Collateral Agent’s request, designate the Collateral Agent
as the consignee on all bills of lading and other negotiable and non‐negotiable
documents.


ARTICLE VI



Negative Covenants


The Borrowers covenant and agree with each Lender that,
from and after the Amendment Effective Date, and so long as this Agreement
shall remain in effect (other than in respect of contingent
indemnification obligations for which no claim has been made) and until the
Commitments have been
terminated and the Obligations (including principal of and
interest on each Loan, all Fees and all other expenses or amounts payable under
any Loan Document) have been paid in full and all Letters of Credit and
Bankers’ Acceptances have been canceled or fully cash collateralized (in a
manner reasonably acceptable to the Administrative Agent and the Issuing Banks)
or have expired and all amounts drawn or paid thereunder have been reimbursed
in full, unless the Required Lenders shall otherwise consent in writing, the
Borrowers will not, and will not permit any of the Material Subsidiaries to:







                                                                                118                                                                                










 








 










SECTION 6.01. Indebtedness 


.  Incur, create, assume or permit to exist any
Indebtedness, except:


(a)        Indebtedness
existing on the Amendment Effective Date and set forth on Schedule 6.01 
and any Permitted Refinancing Indebtedness incurred to Refinance such
Indebtedness (other than intercompany indebtedness Refinanced with Indebtedness
owed to a person not affiliated with the Company or any Subsidiary);


(b)        Indebtedness
created hereunder and under the other Loan Documents;


(c)        Indebtedness
pursuant to Swap Agreements;


(d)       Indebtedness
owed to (including obligations in respect of letters of credit or bank
guarantees or similar instruments for the benefit of) any person providing
workers’ compensation, health, disability or other employee benefits or
property, casualty or liability insurance to the Company or any Subsidiary, pursuant
to reimbursement or indemnification obligations to such person, in each case in
the ordinary course of business; provided, that upon the incurrence of
Indebtedness with respect to reimbursement obligations regarding workers’
compensation claims, such obligations are reimbursed not later than 30 days
following such incurrence;


(e)       Indebtedness
of the Company to Holdings or any Subsidiary and of any Subsidiary to Holdings,
the Company or any other Subsidiary; provided, that
(i) Indebtedness of any Subsidiary that is not a Subsidiary Loan Party
owing to the Loan Parties shall be subject to Section 6.04(b) and
(ii) Indebtedness of the Company to Holdings or any Subsidiary and
Indebtedness of any other Loan Party to Holdings or any Subsidiary that is not
a Subsidiary Loan Party (the “Subordinated Intercompany Debt”) shall be
subordinated to the Obligations on terms reasonably satisfactory to the
Administrative Agent;


(f)        Indebtedness
in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion
guarantees and similar obligations, in each case provided in the ordinary
course of business, including those incurred to secure health, safety and
environmental obligations in the ordinary course of business;


(g)        Indebtedness
arising from the honoring by a bank or other financial institution of a check,
draft or similar instrument drawn against insufficient funds in the ordinary
course of business or other cash management services in the ordinary course of
business; provided, that (x) such Indebtedness (other than credit
or purchase cards) is extinguished within ten Business Days of notification to
the applicable Borrower of its 







                                                                                119                                                                                










 








 








incurrence and (y)
such Indebtedness in respect of credit or purchase cards is extinguished within
60 days from its incurrence;


(h)        (i) Indebtedness
of a Subsidiary acquired after the Closing Date or an entity merged into or
consolidated with the Company or any Subsidiary after the Closing Date and
Indebtedness assumed in connection with the acquisition of assets, which Indebtedness
in each case exists at the time of such acquisition, merger or consolidation
and is not created in contemplation of such event and where such acquisition,
merger or consolidation is permitted by this Agreement and (ii) any
Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided,
no Default or Event of Default shall have occurred and be continuing or would
result therefrom;


(i)         Capital
Lease Obligations, mortgage financings and purchase money Indebtedness incurred
by the Company or any Subsidiary prior to or within 270 days after the
acquisition, lease or improvement of the respective asset permitted under this
Agreement in order to finance such acquisition or improvement, and any
Permitted Refinancing Indebtedness in respect thereof; provided, that,
if immediately after giving effect to such transaction, the Total Net First
Lien Leverage Ratio of the Company on a Pro Forma Basis would be greater than
4.00 to 1.00, then the amount of Indebtedness incurred pursuant to this
paragraph (i), when combined with the Remaining Present Value of
outstanding leases permitted under Section 6.03, shall not exceed the
greater of $150 million and 4.5% of Consolidated Total Assets as of the end of
the fiscal quarter immediately prior to the date of such incurrence for which
financial statements have been delivered pursuant to Section 5.04; 


(j)         Capital
Lease Obligations incurred by the Company or any Subsidiary in respect of any
Sale and Lease‐Back Transaction that is permitted under Section 6.03
and any Permitted Refinancing Indebtedness in respect thereof;


(k)        other
Indebtedness of the Company or any Subsidiary, in an aggregate principal amount
that at the time of, and after giving effect to, the incurrence thereof, would
not exceed the greater of $175 million and 5.0% of Consolidated Total Assets as
of the end of the fiscal quarter immediately prior to the date of such
incurrence for which financial statements have been delivered pursuant to
Section 5.04;


(l)         Indebtedness
of the Company and/or its Subsidiaries pursuant to (i) the Second Lien
Notes in an aggregate principal amount that is not in excess of
$1,525.0 million, (ii) the Berry Senior Subordinated Notes in an
aggregate principal amount that is not in excess of $454.6 million, (iii) the
Covalence Senior Subordinated Notes in an aggregate principal amount that is
not in excess of $265 million, (iv) the extensions of Term Loans under the
Term Loan Credit Agreement, (v) the First Priority Notes in an aggregate
principal amount that is not in excess of $1,050.6 million, and (vi) any
Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness;


(m)       Guarantees
(i) by the Subsidiary Loan Parties of the Indebtedness of the Company and
its Subsidiaries described in paragraph (1) of this
Section 6.01, so long as the Guarantee of the Senior Subordinated Notes or
any Permitted Refinancing 







                                                                                120                                                                                










 








 








Indebtedness in respect
thereof is subordinated substantially on terms as set forth in the Senior
Subordinated Notes Indentures with respect to the Senior Subordinated Notes,
and so long as any Liens securing the Guarantee of the Original Second Lien
Notes or any Permitted Refinancing Indebtedness in respect thereof are subject
to the Intercreditor Agreement, (ii) by the Company or any Subsidiary Loan
Party of any Indebtedness of any Borrower or any Subsidiary Loan Party
expressly permitted to be incurred under this Agreement, (iii) by the
Company or any Subsidiary Loan Party of Indebtedness otherwise permitted
hereunder of Holdings or any Subsidiary that is not a Subsidiary Loan Party to
the extent such Guarantees are permitted by Section 6.04 (other than
Section 6.04(v)), (iv) by any Foreign Subsidiary of Indebtedness of
another Foreign Subsidiary, and (v) by the Company of Indebtedness of Foreign
Subsidiaries incurred for working capital purposes in the ordinary course of
business on ordinary business terms so long as such Indebtedness is permitted
to be incurred under Section 6.01(s) to the extent such Guarantees
are permitted by 6.04 (other than Section 6.04(v)); provided, that
Guarantees by the Company or any Subsidiary Loan Party under this
Section 6.01(m) of any other Indebtedness of a person that is
subordinated to other Indebtedness of such person shall be expressly
subordinated to the Obligations to at least the same extent as the Guarantee of
the Senior Subordinated Notes is under the Senior Subordinated Notes
Indentures;


(n)        Indebtedness
arising from agreements of the Company or any Subsidiary providing for
indemnification, adjustment of purchase or acquisition price or similar
obligations, in each case, incurred or assumed in connection with the
Transactions, Specified Stock Purchases and any Permitted Business Acquisition
or the disposition of any business, assets or a Subsidiary not prohibited by
this Agreement, other than Guarantees of Indebtedness incurred by any person
acquiring all or any portion of such business, assets or a Subsidiary for the
purpose of financing such acquisition;


(o)        Indebtedness
in respect of letters of credit, bank guarantees, warehouse receipts or similar
instruments issued to support performance obligations and trade letters of
credit (other than obligations in respect of other Indebtedness) in the
ordinary course of business;


(p)        Indebtedness
supported by a Letter of Credit, in a principal amount not in excess of the
stated amount of such Letter of Credit;


(q)        Indebtedness
consisting of (i) the financing of insurance premiums or (ii) take‐or‐pay
obligations contained in supply arrangements, in each case, in the ordinary
course of business;


 (r)       (i) other
Indebtedness incurred by the Company or any Subsidiary Loan Party; provided
that (A) at the time of the incurrence of such Indebtedness and after
giving effect thereto, no Default or Event of Default shall have occurred and
be continuing or would result therefrom, (B) the Company and its
Subsidiaries shall be in Pro Forma Compliance after giving effect to the
issuance incurrence or assumption of such Indebtedness and (C) in the case
of any such Indebtedness that is secured, immediately after giving effect to
the issuance, incurrence or assumption of such Indebtedness, the Total 







                                                                                121                                                                                










 








 








Net First Lien Leverage Ratio on a Pro Forma Basis shall
not be greater than 3.75 to 1.00 and (ii) Permitted Refinancing
Indebtedness in respect thereof; 


(s)        Indebtedness
of Foreign Subsidiaries; provided  that the aggregate amount of
Indebtedness incurred under this clause (s), when aggregated with all
other Indebtedness incurred and outstanding pursuant to this clause (s),
shall not exceed the greater of $100 million and 10.0% of the consolidated
assets of the Foreign Subsidiaries at the time of such incurrence; 


(t)        unsecured
Indebtedness in respect of obligations of the Company or any Subsidiary to pay
the deferred purchase price of goods or services or progress payments in
connection with such goods and services; provided, that such obligations
are incurred in connection with open accounts extended by suppliers on
customary trade terms (which require that all such payments be made within 60
days after the incurrence of the related obligations) in the ordinary course of
business and not in connection with the borrowing of money or any Swap
Agreements;


(u)        Indebtedness
representing deferred compensation to employees of the Company or any Subsidiary
incurred in the ordinary course of business;


(v)        Indebtedness
in connection with Permitted Receivables Financings; provided that, after
giving effect to such Indebtedness, the Borrowers shall be in compliance with
Section 2.11(b);


(w)       Indebtedness
of Foreign Subsidiaries incurred under lines of credit or overdraft facilities
(including, but not limited to, intraday, ACH and purchasing card/T&E
services) extended by one or more financial institutions reasonably acceptable
to the Administrative Agent or one or more of the Lenders and (in each case)
established for such Foreign Subsidiaries’ ordinary course of operations (such
Indebtedness, the “Overdraft Line”), which Indebtedness may be secured
as, but only to the extent, provided in Section 6.02(b) and in the
Security Documents;


(x)        Indebtedness
incurred on behalf of, or representing Guarantees of Indebtedness of, joint
ventures not in excess, at any one time outstanding, of the greater of $175
million or 5.0% of Consolidated Total Assets as of the end of the fiscal
quarter immediately prior to the date of such incurrence for which financial
statements have been delivered pursuant to Section 5.04;


(y)        Indebtedness
consisting of promissory notes issued by the Company or any Subsidiary to
current or former officers, directors and employees, their respective estates,
spouses or former spouses to finance the purchase or redemption of Equity
Interests of Holdings or any Parent Entity permitted by Section 6.06;


(z)        Indebtedness
consisting of obligations of the Company or any Subsidiary under deferred
compensation or other similar arrangements incurred by such Person in
connection with the Transactions, Specified Stock Purchases, Permitted Business
Acquisitions or any other Investment expressly permitted hereunder; and


 







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(aa)      all premium (if any), interest (including post‐petition
interest), fees, expenses, charges and additional or contingent interest on
obligations described in paragraphs (a) through (z) above.


SECTION 6.02. Liens 


.  Create, incur, assume or permit to exist any Lien on
any property or assets (including stock or other securities of any person,
including the Company and any Subsidiary) at the time owned by it or on any
income or revenues or rights in respect of any thereof, except the following (collectively,
“Permitted Liens”): 


(a)        Liens
on property or assets of the Company and the Subsidiaries existing on the
Amendment Effective Date and set forth on Schedule 6.02(a)  or, to
the extent not listed in such Schedule, where such property or assets have a
fair market value that does not exceed $10 million in the aggregate and $5
million in respect of Accounts and Inventory, and any modifications,
replacements, renewals or extensions thereof; provided, that such Liens
shall secure only those obligations that they secure on the Closing Date (and
any Permitted Refinancing Indebtedness in respect of such obligations permitted
by Section 6.01(a)) and shall not subsequently apply to any other property
or assets of the Company or any Subsidiary other than (A) after-acquired
property that is affixed or incorporated into the property covered by such
Lien, and (B) proceeds and products thereof;


(b)        any
Lien created under the Loan Documents (including, without limitation, Liens
created under the Security Documents securing obligations in respect of Swap
Agreements owed to a person that is a Lender or an Affiliate of a Lender at the
time of entry into such Swap Agreements) or permitted in respect of any
Mortgaged Property by the terms of the applicable Mortgage and, provided that
such Liens are subject to the terms of the Senior Lender Intercreditor
Agreement, any Lien securing the Term Loan Credit Agreement or any Indebtedness
or obligations under the Term Loan Credit Agreement or any “Loan Documents”
thereunder; provided, however, in no event shall the holders of
the Indebtedness under the Overdraft Line have the right to receive proceeds in
respect of a claim in excess of $20 million in the aggregate (plus (i) any
accrued and unpaid interest in respect of Indebtedness incurred by the Company
and the Subsidiaries under the Overdraft Line and (ii) any accrued and
unpaid fees and expenses owing by the Company and the Subsidiaries under the
Overdraft Line) from the enforcement of any remedies available to the Secured
Parties under all of the Loan Documents;


(c)        any
Lien on any property or asset (other than Accounts and Inventory unless such
Accounts and Inventory are held by a Subsidiary that is not a Borrower and such
Accounts and Inventory are not commingled with the Accounts and Inventory of
any other Borrower) of the Company or any Subsidiary securing Indebtedness or
Permitted Refinancing Indebtedness permitted by Section 6.01(h); provided,
that such Lien (i) does not apply to any other property or assets of the Company
or any of the Subsidiaries not securing such Indebtedness at the date of the
acquisition of such property or asset (other than after acquired property
subjected to a Lien securing Indebtedness and other obligations incurred prior
to such date and which Indebtedness and other obligations are permitted
hereunder that require a pledge of after acquired property, it being understood
that such requirement shall not be permitted to apply to any property to which
such 







                                                                                123                                                                                










 








 








requirement would not have applied but for such
acquisition), (ii) such Lien is not created in contemplation of or in
connection with such acquisition and (iii) in the case of a Lien securing
Permitted Refinancing Indebtedness, any such Lien is permitted, subject to
compliance with clause (e) of the definition of the term “Permitted
Refinancing Indebtedness”;


(d)       Liens
for Taxes, assessments or other governmental charges or levies not yet
delinquent or that are being contested in compliance with Section 5.03;


(e)       Liens
imposed by law, such as landlord’s, carriers’, warehousemen’s, mechanics’,
materialmen’s, repairmen’s, construction or other like Liens arising in the
ordinary course of business and securing obligations that are not overdue by
more than 30 days or that are being contested in good faith by appropriate
proceedings and in respect of which, if applicable, the Company or any
Subsidiary shall have set aside on its books reserves in accordance with GAAP;


(f)        (i) pledges
and deposits and other Liens with respect to property other than Accounts and
Inventory made in the ordinary course of business in compliance with the
Federal Employers Liability Act or any other workers’ compensation,
unemployment insurance and other social security laws or regulations and
deposits securing liability to insurance carriers under insurance or self‐insurance
arrangements in respect of such obligations and (ii) pledges and deposits
and other Liens with respect to property other than Accounts and Inventory
securing liability for reimbursement or indemnification obligations of
(including obligations in respect of letters of credit or bank guarantees for
the benefit of) insurance carriers providing property, casualty or
liability insurance to the Company or any Subsidiary;


(g)        deposits
to secure the performance of bids, trade contracts (other than for
Indebtedness), leases (other than Capital Lease Obligations), statutory
obligations, surety and appeal bonds, performance and return of money bonds,
bids, leases, government contracts, trade contracts, agreements with utilities,
and other obligations of a like nature (including letters of credit in lieu of
any such bonds or to support the issuance thereof) incurred in the ordinary
course of business, including those incurred to secure health, safety and
environmental obligations in the ordinary course of business;


(h)        zoning
restrictions, survey exceptions and such matters as an accurate survey would
disclose, easements, trackage rights, leases (other than Capital Lease
Obligations), licenses, special assessments, rights‐of‐way,
covenants, conditions, restrictions and declaration on or with respect to the
use of Real Property, servicing agreements, development agreements, site plan
agreements and other similar encumbrances incurred in the ordinary course of
business and title defects or irregularities that are of a minor nature and
that, in the aggregate, do not interfere in any material respect with the
ordinary conduct of the business of the Company or any Subsidiary;


(i)         Liens
securing Indebtedness permitted by Section 6.01(i) (limited to the assets
subject to such Indebtedness);


 







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(j)         Liens arising out of capitalized lease
transactions permitted under Section 6.03, so long as such Liens attach
only to the property sold and being leased in such transaction and any
accessions thereto or proceeds thereof and related property;


(k)        Liens
securing judgments that do not constitute an Event of Default under
Section 7.01(j);


(l)         Liens
disclosed by the title insurance policies delivered on or subsequent to the
Closing Date and pursuant to Section 5.10 and any replacement, extension
or renewal of any such Lien; provided, that such replacement, extension
or renewal Lien shall not cover any property other than the property that was
subject to such Lien prior to such replacement, extension or renewal; provided,
further, that the Indebtedness and other obligations secured by such
replacement, extension or renewal Lien are permitted by this Agreement;


(m)       any
interest or title of a lessor or sublessor under any leases or subleases
entered into by the Company or any Subsidiary in the ordinary course of
business;


(n)        Liens
that are contractual rights of set‐off (i) relating to the establishment
of depository relations with banks not given in connection with the issuance of
Indebtedness, (ii) relating to pooled deposit or sweep accounts of the
Company or any Subsidiary to permit satisfaction of overdraft or similar
obligations incurred in the ordinary course of business of the Company or any
Subsidiary or (iii) relating to purchase orders and other agreements
entered into with customers of the Company or any Subsidiary in the ordinary
course of business;


(o)        Liens
arising solely by virtue of any statutory or common law provision relating to
banker’s liens, rights of set‐off or similar rights;


(p)        Liens
securing obligations in respect of trade‐related letters of credit,
banker’s acceptances or bank guarantees permitted under Section 6.01(f),
(k) or (o) and covering the goods (or the documents of title in
respect of such goods) financed by such letters of credit, bankers’ acceptances
or bank guarantees and the proceeds and products thereof;


(q)        leases
or subleases, licenses or sublicenses (including with respect to intellectual
property and software) granted to others in the ordinary course of business not
interfering in any material respect with the business of the Company and its
Subsidiaries, taken as a whole; 


(r)        Liens
in favor of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of goods;


(s)        Liens
solely on any cash earnest money deposits made by the Company or any of the
Subsidiaries in connection with any letter of intent or purchase agreement in
respect of any Investment permitted hereunder;


 







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(t)        Liens with respect to property or assets of
any Foreign Subsidiary securing Indebtedness of a Foreign Subsidiary permitted
under Section 6.01;


(u)        other
Liens with respect to property or assets of the Company or any Subsidiary; provided 
that (i) after giving effect to any such Lien and the incurrence of
Indebtedness, if any, secured by such Lien is created, incurred, acquired or
assumed (or any prior Indebtedness becomes so secured) on a Pro Forma
Basis, the Total Net First Lien Leverage Ratio on the last day of the Company’s
then most recently completed fiscal quarter for which financial statements are
available shall be less than or equal to 3.75 to 1.00, (ii) at the time of the
incurrence of such Lien and after giving effect thereto, no Default or Event of
Default shall have occurred and be continuing or would result therefrom,
(iii) the Indebtedness or other obligations secured by such Lien are
otherwise permitted by this Agreement, and (iv) an intercreditor agreement
on customary terms that is reasonably satisfactory to the Administrative Agent
shall be entered into providing for the treatment of such Liens and the
additional Indebtedness and other obligations secured by such Liens in relation
to the Obligations and the Liens securing the Obligations in a manner that is
the same as, or no less favorable to the Lenders than, the treatment under the
Senior Lender Intercreditor Agreement of the “Term Loan Obligations” (as
defined in the Senior Lender Intercreditor Agreement) and the security therefor
(including with regard to each class of collateral); 


(v)        the
prior rights of consignees and their lenders under consignment arrangements
entered into in the ordinary course of business; 


(w)       agreements
to subordinate any interest of the Company or any Subsidiary in any accounts
receivable or other proceeds arising from inventory consigned by the Company or
any of its Subsidiaries pursuant to an agreement entered into in the ordinary
course of business;


(x)        Liens
arising from precautionary Uniform Commercial Code financing statements or
consignments entered into in connection with any transaction otherwise
permitted under this Agreement;


(y)        Liens
on Equity Interests in joint ventures securing obligations of such joint
venture; 


(z)        Liens
on securities that are the subject of repurchase agreements constituting
Permitted Investments under clause (c) of the definition thereof;


(aa)      [Reserved];


(bb)      Liens
on goods or inventory the purchase, shipment or storage price of which is
financed by a documentary letter of credit, bank guarantee or bankers’
acceptance issued or created for the account of a Borrower or any Subsidiary in
the ordinary course of business; provided, that such Lien secures only
the obligations of such Borrower or such Subsidiaries in respect of such letter
of credit, bankers’ acceptance or bank guarantee to the extent permitted under
Section 6.01; 


 







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(cc)      Liens securing insurance premiums financing
arrangements, provided, that such Liens are limited to the applicable
unearned insurance premiums; 


(dd)     Liens
in favor of the Company or any Subsidiary Loan Party; provided  that if
any such Lien shall cover any Collateral, the holder of such Lien shall execute
and deliver to the Administrative Agent a subordination agreement in form and
substance reasonably satisfactory to the Administrative Agent;


(ee)      Liens
securing obligations under the Second Lien Note Documents and any Permitted
Refinancing Indebtedness in respect thereof, to the extent such Liens are
subject to the Intercreditor Agreement; 


(ff)       Liens
on not more than $30 million of deposits securing Swap Agreements; 


(gg)      Liens
in respect of Permitted Receivables Financings and Permitted Supplier Finance
Facilities that extend only to the receivables subject thereto, provided 
that, after giving effect to such Liens, the Borrowers shall be in compliance
with Section 2.11(b); 


(hh)      Liens
securing obligations under the First Priority Note Documents and any Permitted
Refinancing Indebtedness in respect thereof, to the extent such Liens are
subject to the Senior Fixed Collateral Intercreditor Agreement; and


(ii)        other
Liens with respect to property or assets of the Company or any Subsidiary
securing obligations in an aggregate principal amount outstanding at any time
not to exceed $30 million.


SECTION 6.03. Sale and
Lease‐Back Transactions


.  Enter into any arrangement, directly or indirectly,
with any person whereby it shall sell or transfer any property, real or
personal, used or useful in its business, whether now owned or hereafter
acquired, and thereafter rent or lease such property or other property that it
intends to use for substantially the same purpose or purposes as the property
being sold or transferred (a “Sale and Lease‐Back Transaction”); provided,
that a Sale and Lease‐Back Transaction shall be permitted (A) with
respect to property (i) owned by the Company or any Domestic Subsidiary that is
acquired after the Closing Date so long as such Sale and Lease Back Transaction
is consummated within 180 days of the acquisition of such property or (ii) by
any Foreign Subsidiary regardless of when such property was acquired, and (B)
with respect to any property owned by the Company or any Domestic Subsidiary,
if at the time the lease in connection therewith is entered into, and after
giving effect to the entering into of such lease, (a) the Total Net First
Lien Leverage Ratio is equal to or less than 4.00 to 1.00, or (b) if the
Total Net First Lien Leverage Ratio is greater than 4.00 to 1.00, the Remaining
Present Value of such lease, together with Indebtedness outstanding pursuant to
Section 6.01(i) and the Remaining Present Value of outstanding leases
entered into under this Section 6.03(b) on or after the Amendment
Effective Date, shall not exceed the greater of $150 million and 4.5% of
Consolidated Total Assets as of the end of the fiscal quarter immediately prior
to the date the lease was entered into for which financial statements have been
delivered pursuant to Section 5.04.


SECTION 6.04. Investments,
Loans and Advances


.  Purchase, hold or acquire (including pursuant to any
merger with a person that is not a Wholly Owned Subsidiary immediately prior to
such merger) any Equity Interests, evidences of
Indebtedness or other securities of, make or permit to exist any loans or
advances to or Guarantees of the obligations of, or make or permit to exist any
investment or any other interest in (each, an “Investment”), any other
person, except:







                                                                                127                                                                                










 








 










(a)        the
Transactions and Investments arising as a result of one or more Permitted
Supplier Finance Facilities;


(b)        (i) Investments
by the Company or any Subsidiary in the Equity Interests of the Company or any
Subsidiary; (ii) intercompany loans from the Company or any Subsidiary to
the Company or any Subsidiary; and (iii) Guarantees by the Company or any
Subsidiary Loan Party of Indebtedness otherwise expressly permitted hereunder
of the Company or any Subsidiary; provided, that the sum of
(A) Investments (valued at the time of the making thereof and without
giving effect to any write‐downs or write‐offs thereof) made after
the Closing Date by the Loan Parties pursuant to clause (i) in
Subsidiaries that are not Subsidiary Loan Parties, plus  (B) net
intercompany loans made after the Closing Date to Subsidiaries that are not
Subsidiary Loan Parties pursuant to clause (ii), plus 
(C) Guarantees of Indebtedness after the Amendment Effective Date of
Subsidiaries that are not Subsidiary Loan Parties pursuant to
clause (iii), shall not exceed an aggregate net amount equal to
(x) the greater of (1) $100 million and (2) 4.5% of Consolidated
Total Assets as of the end of the fiscal quarter immediately prior to the date
of such Investment for which financial statements have been delivered pursuant
to Section 5.04 (plus  any return of capital actually received by
the respective investors in respect of Investments theretofore made by them
pursuant to this paragraph (b)); plus  (y) the portion, if any,
of the Cumulative Credit on the date of such election that the Company elects
to apply to this Section 6.04(b)(y), such election to be specified in a
written notice of a Responsible Officer of the Company calculating in
reasonable detail the amount of Cumulative Credit immediately prior to such
election and the amount thereof elected to be so applied; provided, further,
that intercompany current liabilities incurred in the ordinary course of
business in connection with the cash management operations of the Company and
the Subsidiaries shall not be included in calculating the limitation in this
paragraph at any time.


(c)        Permitted
Investments and Investments that were Permitted Investments when made;


(d)       Investments
arising out of the receipt by the Company or any Subsidiary of noncash
consideration for the sale of assets permitted under Section 6.05;


(e)        loans
and advances to officers, directors, employees or consultants of the Company or
any Subsidiary (i) in the ordinary course of business not to exceed the
greater of $25 million and 1.0% of Consolidated Total Assets as of the end of
the fiscal quarter immediately prior to the date of such loan or advance for
which financial statements have been delivered pursuant to Section 5.04,
in the aggregate at any time outstanding (calculated without regard to write
downs or write offs thereof), (ii) in respect of payroll payments and
expenses in the ordinary course of business and (iii) in connection with
such person’s purchase of Equity Interests of Holdings (or any Parent Entity)
solely to the extent that the amount of such loans and advances shall be
contributed to the Company in cash as common equity;


 







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(f)        accounts receivable, security deposits and
prepayments arising and trade credit granted in the ordinary course of business
and any assets or securities received in satisfaction or partial satisfaction
thereof from financially troubled account debtors to the extent reasonably necessary
in order to prevent or limit loss and any prepayments and other credits to
suppliers made in the ordinary course of business;


(g)        Swap
Agreements;


(h)        Investments
existing on, or contractually committed as of, the Amendment Effective Date and
set forth on Schedule 6.04  and any extensions, renewals or
reinvestments thereof, so long as the aggregate amount of all Investments
pursuant to this clause (h) is not increased at any time above the amount
of such Investment existing on the Amendment Effective Date; 


(i)         Investments
resulting from pledges and deposits under Sections 6.02(f), (g), (k), (r),
(s), and (u);


(j)         other
Investments by the Company or any Subsidiary in an aggregate amount (valued at
the time of the making thereof, and without giving effect to any write‐downs
or write‐offs thereof) not to exceed (i) the greater of $225 million
and 6.5% of Consolidated Total Assets as of the end of the fiscal quarter
immediately prior to the date of such incurrence for which financial statements
have been delivered pursuant to Section 5.04 (plus  any returns of
capital actually received by the respective investor in respect of investments
theretofore made by it pursuant to this paragraph (j)) plus 
(ii) the portion, if any, of the Cumulative Credit on the date of such
election that the Company elects to apply to this Section 6.04(j)(ii),
such election to be specified in a written notice of a Responsible Officer of
the Company calculating in reasonable detail the amount of Cumulative Credit
immediately prior to such election and the amount thereof elected to be so
applied;


(k)        Investments
constituting Permitted Business Acquisitions and Investments constituting the
Specified Stock Purchases;


(l)         intercompany
loans between Foreign Subsidiaries and Guarantees by Foreign Subsidiaries
permitted by Section 6.01(m); 


(m)       Investments
received in connection with the bankruptcy or reorganization of, or settlement
of delinquent accounts and disputes with or judgments against, customers and
suppliers, in each case in the ordinary course of business or Investments
acquired by the Company as a result of a foreclosure by the Company or any of
the Subsidiaries with respect to any secured Investments or other transfer of
title with respect to any secured Investment in default;


(n)        Investments
of a Subsidiary acquired after the Closing Date or of an entity merged into the
Company or merged into or consolidated with a Subsidiary after the Closing
Date, in each case, to the extent permitted under this Section 6.04 and,
in the case of any merger or consolidation, in accordance with
Section 6.05 to the extent that such Investments were not made in
contemplation of or in connection with such acquisition, 







                                                                                129                                                                                










 








 








merger
or consolidation and were in existence on the date of such acquisition, merger
or consolidation; 


(o)        acquisitions
by the Company of obligations of one or more officers or other employees of
Holdings, any Parent Entity, the Company or its Subsidiaries in connection with
such officer’s or employee’s acquisition of Equity Interests of Holdings or any
Parent Entity, so long as no cash is actually advanced by the Company or any of
the Subsidiaries to such officers or employees in connection with the
acquisition of any such obligations; 


(p)        Guarantees
by the Company or any Subsidiary of operating leases (other than Capital Lease
Obligations) or of other obligations that do not constitute Indebtedness, in
each case entered into by the Company or any Subsidiary in the ordinary course
of business;


(q)        Investments
to the extent that payment for such Investments is made with Equity Interests
of Holdings (or any Parent Entity);


(r)        Investments
in the equity interests of one or more newly formed persons that are received
in consideration of the contribution by Holdings, the Company or the applicable
Subsidiary of assets (including Equity Interests and cash) to such person or
persons; provided, that (i) the fair market value of such assets,
determined on an arms’-length basis, so contributed pursuant to this
paragraph (r) shall not in the aggregate exceed $30 million and
(ii) in respect of each such contribution, a Responsible Officer of the
Company shall certify, in a form to be agreed upon by the Company and the
Administrative Agent (x) after giving effect to such contribution, no
Default or Event of Default shall have occurred and be continuing, (y) the
fair market value of the assets so contributed and (z) that the
requirements of paragraph (i) of this proviso remain satisfied;


(s)        Investments
consisting of the redemption, purchase, repurchase or retirement of any Equity
Interests permitted under Section 6.06;


(t)        Investments
in the ordinary course of business consisting of Uniform Commercial Code
Article 3 endorsements for collection or deposit and Uniform Commercial
Code Article 4 customary trade arrangements with customers consistent with
past practices; 


(u)        Investments
in Foreign Subsidiaries not to exceed the greater of $75 million and 2.0%
of Consolidated Total Assets as of the end of the fiscal quarter immediately
prior to the date of such Investment for which financial statements have been
delivered pursuant to Section 5.04, in the aggregate, as valued at the
fair market value of such Investment at the time such Investment is made;


(v)        Guarantees
permitted under Section 6.01 (except to the extent such Guarantee is
expressly subject to Section 6.04);


(w)       advances
in the form of a prepayment of expenses, so long as such expenses are being
paid in accordance with customary trade terms of the Company or such
Subsidiary;


 







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(x)        Investments by the Company and its
Subsidiaries, including loans to any direct or indirect parent of the Company,
if such Borrower or any other Subsidiary would otherwise be permitted to make a
dividend or distribution in such amount (provided that the amount of any such
investment shall also be deemed to be a distribution under the appropriate
clause of Section 6.06 for all purposes of this Agreement); 


(y)        Investments
arising as a result of Permitted Receivables Financings;


(z)        Investments
received substantially contemporaneously in exchange for Equity Interests of
any Parent Entity; provided  that such Investments are not included in
any determination of the Cumulative Credit; and 


(aa)      Investments
in joint ventures not in excess of  the greater of $75 million and 2.0% of
Consolidated Total Assets as of the end of the fiscal quarter immediately prior
to the date of such Investment for which financial statements have been
delivered pursuant to Section 5.04, in the aggregate.


The
amount of Investments that may be made at any time pursuant to
clause (C) of the proviso of Section 6.04(b) or 6.04(j) (such
Sections, the “Related Sections”) may, at the election of the Company,
be increased by the amount of Investments that could be made at such time under
the other Related Section; provided  that the amount of each such
increase in respect of one Related Section shall be treated as having been
used under the other Related Section.  


SECTION 6.05. Mergers,
Consolidations, Sales of Assets and Acquisitions


.  Merge into or consolidate with any other person, or
permit any other person to merge into or consolidate with it, or sell,
transfer, lease or otherwise dispose of (in one transaction or in a series of
transactions) all or any part of its assets (whether now owned or hereafter
acquired), or issue, sell, transfer or otherwise dispose of any Equity
Interests of the Company or any Subsidiary, or purchase, lease or otherwise
acquire (in one transaction or a series of transactions) all or any substantial
part of the assets of any other person or any division, unit or business of any
person, except that this Section shall not prohibit:


(a)        (i) the
purchase and sale of inventory in the ordinary course of business by the
Company or any Subsidiary and the sale of receivables by any Foreign Subsidiary
pursuant to non-recourse factoring arrangements in the ordinary course of
business of such Foreign Subsidiary, (ii) the acquisition or lease
(pursuant to an operating lease) of any other asset in the ordinary course of
business by the Company or any Subsidiary, (iii) the sale of surplus,
obsolete or worn out equipment or other property in the ordinary course of
business by the Company or any Subsidiary or (iv) the sale of Permitted
Investments in the ordinary course of business;


(b)        if
at the time thereof and immediately after giving effect thereto no Default or
Event of Default shall have occurred and be continuing or would result
therefrom, (i) the merger of any Subsidiary into the Company in a
transaction in which the Company is the survivor, (ii) the merger or
consolidation of any Subsidiary into or with any Subsidiary Loan Party in a
transaction in which the surviving or resulting entity is a Subsidiary Loan
Party and, in the case of each of clauses (i) and (ii), no person
other than the Company or 







                                                                                131                                                                                










 








 








Subsidiary Loan Party
receives any consideration, (iii) the merger or consolidation of any
Subsidiary that is not a Subsidiary Loan Party into or with any other
Subsidiary that is not a Subsidiary Loan Party, (iv) the liquidation or
dissolution or change in form of entity of any Subsidiary (other than the
Company) if the Company determines in good faith that such liquidation,
dissolution or change in form is in the best interests of the Company and is
not materially disadvantageous to the Lenders or (v) any Subsidiary may
merge with any other person in order to effect an Investment permitted pursuant
to Section 6.04 so long as the continuing or surviving person shall be a
Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan
Party and which together with each of its Subsidiaries shall have complied with
the requirements of Section 5.10;


(c)        sales,
transfers, leases or other dispositions to the Company or a Subsidiary (upon
voluntary liquidation or otherwise); provided, that any sales, transfers,
leases or other dispositions by a Loan Party to a Subsidiary that is not a
Subsidiary Loan Party in reliance on this paragraph (c) shall be made in
compliance with Section 6.07 and shall be included in
Section 6.05(g); 


(d)       Sale
and Lease‐Back Transactions permitted by Section 6.03;


(e)        Investments
permitted by Section 6.04, Permitted Liens, Dividends permitted by
Section 6.06 and capital expenditures;


(f)        the
sale of defaulted receivables in the ordinary course of business and not as
part of an accounts receivables financing transaction;


(g)        sales,
transfers, leases or other dispositions of assets not otherwise permitted by
this Section 6.05 (or required to be included in this clause (g)
pursuant to Section 6.05(c)); provided, that (i) the aggregate
gross proceeds (including noncash proceeds) of any or all assets sold,
transferred, leased or otherwise disposed of in reliance upon this
paragraph (g) shall not exceed, in any fiscal year of the Company,
the greater of (x) $200 million and (y) 6.5% of Consolidated Total
Assets as of the end of the fiscal quarter immediately prior to the date of
such incurrence for which financial statements have been delivered pursuant to
Section 5.04, (ii) no Default or Event of Default exists or would result
therefrom; (iii) immediately after giving effect thereto, the Revolving
Facility Credit Exposure shall not exceed the Borrowing Base calculated on a
Pro Forma Basis after giving effect to such sale, transfer, lease or other
disposition, and (iv) immediately after giving effect to any such sale,
lease, transfer, lease or other disposition of Accounts or Inventory not
undertaken in the ordinary course of business, the Revolving Facility Credit
Exposure shall not exceed the Borrowing Base;


(h)        Permitted
Business Acquisitions (including any merger or consolidation in order to effect
a Permitted Business Acquisition); provided, that following any such
merger or consolidation (i) involving the Company, the Company is the
surviving corporation, (ii) involving a Domestic Subsidiary, the surviving
or resulting entity shall be a Subsidiary Loan Party that is a Wholly Owned
Subsidiary and (iii) involving a Foreign Subsidiary, the surviving or
resulting entity shall be a Wholly Owned Subsidiary;


 







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(i)         leases, licenses (on a non-exclusive basis
with respect to intellectual property), or subleases or sublicenses (on a
non-exclusive basis with respect to intellectual property) of any real or
personal property in the ordinary course of business;


(j)         sales,
leases or other dispositions of inventory of the Company and its Subsidiaries
determined by the management of the Company to be no longer useful or necessary
in the operation of the business of the Company or any of the Subsidiaries;


(k)        acquisitions
and purchases made with the proceeds of any Asset Sale pursuant to the first
proviso of paragraph (a) of the definition of “Net Proceeds”;


(l)         the
purchase and sale or other transfer (including by capital contribution) of
Receivables Assets pursuant to Permitted Receivables Financings; provided,
that, after giving effect to each such purchase and sale or other transfer, the
Borrower shall be in compliance with Section 2.11(b);


(m)       any
exchange of assets for services and/or other assets of comparable or greater
value; provided, that (i) at least 90% of the consideration
received by the transferor consists of assets that will be used in a business
or business activity permitted hereunder, (ii) in the event of a swap with
a fair market value in excess of $10.0 million, the Administrative Agent shall
have received a certificate from a Responsible Officer of the Company with
respect to such fair market value and (iii) in the event of a swap with a
fair market value in excess of $20.0 million, such exchange shall have been
approved by at least a majority of the Board of Directors of Holdings or the
Company; provided, that (A) the aggregate gross consideration
(including exchange assets, other noncash consideration and cash proceeds) of
any or all assets exchanged in reliance upon this paragraph (m) shall
not exceed, in any fiscal year of the Company, the greater of $200 million
and 6.5% of Consolidated Total Assets as of the end of the fiscal quarter
immediately prior to the date of such incurrence for which financial statements
have been delivered pursuant to Section 5.04, (B) no Default or Event
of Default exists or would result therefrom and (C) immediately after
giving effect to such exchange, the Revolving Facility Credit Exposure shall
not exceed the Borrowing Base calculated on a Pro Forma Basis after giving
effect to such exchange; 


(n)        the
sale of assets described on Schedule 6.05;  


(o)        the
sale of assets as part of the Specified Asset Sale; and


(p)        the
purchase and sale or other transfer of Receivables Assets in connection with a
Permitted Supplier Finance Facility; provided, that, after giving effect
to each such purchase and sale or other transfer, the Borrower shall be in
compliance with Section 2.11(b).


Notwithstanding anything to the contrary contained in
Section 6.05 above, (i) no sale, transfer or other disposition of
assets shall be permitted by this Section 6.05 (other than sales,
transfers, leases, licenses or other dispositions to Loan Parties pursuant to
paragraph (c) of this Section 6.05) unless such disposition
is for fair market value and (ii) no sale, transfer or other disposition
of assets in excess of $15 million shall be permitted by
paragraph (g) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided,
that for purposes of clause (ii), (a) the amount of any liabilities
(as shown on the Company’s or any Subsidiary’s most recent balance sheet or in
the notes thereto) of the Company or any Subsidiary of the Company (other than
liabilities that are by their terms subordinated to the Obligations) that are
assumed by the transferee of any such assets, (b) any notes or other
obligations or other securities or assets received by the Company or such
Subsidiary of the Company from such transferee that are converted by the
Company or such Subsidiary of the Company into cash within 180 days of the
receipt thereof (to the extent of the cash received) and (c) any
Designated Non-Cash Consideration received by the Company or any of its
Subsidiaries in such Asset Sale having an aggregate fair market value, taken
together with all other Designated Non-Cash Consideration received pursuant to
this clause (c) that is at that time outstanding, not to exceed the
greater of 3.0% of Consolidated Total Assets and $100 million at the time of
the receipt of such Designated Non-Cash Consideration (with the fair market
value of each item of Designated Non-Cash Consideration being measured at the
time received and without giving effect to subsequent changes in value) shall
be deemed to be cash.  To the extent any Collateral is disposed of in a
transaction expressly permitted by this Section 6.05 to any Person other
than Holdings, the Company or any Subsidiary, such Collateral shall be sold
free and clear of the Liens created by the Loan Documents, and the
Administrative Agent shall take, and shall be authorized by each Lender to
take, any actions reasonably requested by the Company in order to evidence the
foregoing.  Anything contained herein to the contrary notwithstanding,
(A) neither the Company nor any other Loan Party shall sell or otherwise
dispose of any Inventory or Accounts (other than sales of Inventory in the
ordinary course of business and sales of Accounts for collection) if, as a
result of such sale or other disposition, the Revolving Facility Credit
Exposure would exceed the Borrowing Base, in each case determined as of the
time of such sale or other disposition, and (B) none of the capital stock
of any Borrower shall be sold or transferred, nor shall any Borrower enter into
any merger or similar transaction in which such Borrower is not the surviving
entity, unless in any such case (1) the obligations of such Borrower are
assumed by another Borrower on terms reasonably acceptable to the
Administrative Agent, (2) such event would not result in a Default or an
Event of Default, and (3) the portion of the Revolving Facility Credit
Exposure of the assuming Borrower does not exceed the portion of the Borrowing
Base attributable to the Accounts and Inventory of the assuming Borrower.







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            SECTION 6.06. Dividends
and Distributions


.  Declare or pay any dividend or make any other
distribution (by reduction of capital or otherwise), whether in cash, property,
securities or a combination thereof, with respect to any of its Equity
Interests (other than dividends and distributions on Equity Interests payable
solely by the issuance of additional Equity Interests (other than Disqualified
Stock) of the person paying such dividends or distributions) or directly or
indirectly redeem, purchase, retire or otherwise acquire for value (or permit
any Subsidiary to purchase or acquire) any of its Equity Interests or set aside
any amount for any such purpose (other than through the issuance of additional
Equity Interests (other than Disqualified Stock) of the person redeeming,
purchasing, retiring or acquiring such shares) (collectively, the “Distributions”);
provided, however, that:


(a)        any
Subsidiary of the Company may declare and pay dividends to, repurchase its
Equity Interests from or make other distributions to the Company or to any
Wholly Owned Subsidiary of the Company (or, in the case of non‐Wholly
Owned Subsidiaries, to the Company or any Subsidiary that is a direct or
indirect shareholder of such Subsidiary and to each other owner of Equity
Interests of such Subsidiary on a pro  







                                                                                134                                                                                










 








 








rata
basis (or more favorable basis from the perspective of the Company or such
Subsidiary) based on their relative ownership interests so long as any
repurchase of its Equity Interests from a person that is not the Company or a
Subsidiary is permitted under Section 6.04);


(b)        the
Company may declare and pay dividends or make other distributions to Holdings
in respect of (i) overhead, legal, accounting and other professional fees
and expenses of Holdings or any Parent Entity, (ii) fees and expenses
related to any public offering or private placement of debt or equity
securities of Holdings or any Parent Entity whether or not consummated,
(iii) franchise taxes and other fees, taxes and expenses in connection
with the maintenance of its existence and its (or any Parent Entity’s
indirect) ownership of the Company, (iv) payments permitted by
Section 6.07(b), (v) the tax liability to each relevant jurisdiction
in respect of consolidated, combined, unitary or affiliated returns for the
relevant jurisdiction of Holdings (or any Parent Entity) attributable to
Holdings, the Company or its Subsidiaries and (vi) customary salary, bonus
and other benefits payable to, and indemnities provided on behalf of, officers
and employees of Holdings or any Parent Entity, in each case in order to permit
Holdings or any Parent Entity to make such payments; provided, that in
the case of clauses (i), (ii) and (iii), the amount of such dividends and
distributions shall not exceed the portion of any amounts referred to in such
clauses (i), (ii) and (iii) that are allocable to the Company and its
Subsidiaries (which shall be 100% for so long as Holdings or such Parent
Entity, as the case may be, owns no assets other than the Equity Interests in
the Company, Holdings or another Parent Entity);


(c)        the
Company may declare and pay dividends or make other distributions to Holdings
the proceeds of which are used to purchase or redeem the Equity Interests of
Holdings or any Parent Entity (including related stock appreciation rights or
similar securities) held by then present or former directors, consultants,
officers or employees of Holdings, the Company or any of the Subsidiaries or by
any Plan or shareholders’ agreement then in effect upon such person’s death,
disability, retirement or termination of employment or under the terms of any
such Plan or any other agreement under which such shares of stock or related
rights were issued; provided, that the aggregate amount of such
purchases or redemptions under this paragraph (c) shall not exceed in
any fiscal year $20 million (plus the amount of net proceeds contributed to the
Company that were (x) received by Holdings or any Parent Entity during such
calendar year from sales of Equity Interests of Holdings or any Parent Entity
of Holdings to directors, consultants, officers or employees of Holdings, any
Parent Entity, the Company or any Subsidiary in connection with permitted
employee compensation and incentive arrangements and (y) of any key‐man
life insurance policies received during such calendar year), which, if not used
in any year, may be carried forward to any subsequent calendar year;


(d)       noncash
repurchases of Equity Interests deemed to occur upon exercise of stock options
if such Equity Interests represent a portion of the exercise price of such
options; 


(e)       the
Company may pay dividends to Holdings in an aggregate amount equal to the
portion, if any, of the Cumulative Credit on such date that the Company elects
to apply to this Section 6.06(e), such election to be specified in a
written notice of a 







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Responsible Officer of the
Company calculating in reasonable detail the amount of Cumulative Credit
immediately prior to such election and the amount thereof elected to be so
applied; provided, that no Default or Event of Default has occurred and
is continuing or would result therefrom and, after giving effect thereto, that
the Company and its Subsidiaries shall be in Pro Forma Compliance;


(f)        the
Company may pay dividends on the Closing Date to consummate the Transactions;


(g)        the
Company may pay dividends or distributions to allow Holdings or any Parent
Entity to make payments in cash, in lieu of the issuance of fractional shares,
upon the exercise of warrants or upon the conversion or exchange of Equity
Interests of any such person; 


(h)        after
a Qualified IPO, the Company may pay dividends and make distributions to, or
repurchase or redeem shares from, its equity holders in an amount equal to 6.0%
per annum of the net proceeds received by the Company from any public
offering of Equity Interests of the Company or any direct or indirect parent of
the Company;


(i)         the
Company may make distributions to Holdings or any Parent Entity to finance any
Investment permitted to be made pursuant to Section 6.04; provided,
that (A) such distribution shall be made substantially concurrently with
the closing of such Investment and (B) such parent shall, immediately
following the closing thereof, cause (1) all property acquired (whether
assets or Equity Interests) to be contributed to the Company or a
Subsidiary or (2) the merger (to the extent permitted in
Section 6.05) of the Person formed or acquired into the Company or a
Subsidiary in order to consummate such Permitted Business Acquisition or
Investment; and


(j)         the
Company may pay dividends after the Closing Date to permit Holdings to make
payments required under the Acquisition Agreement (including Sections 2.9 and
5.4 thereof).


            SECTION 6.07. Transactions
with Affiliates


.  


(a)    Sell
or transfer any property or assets to, or purchase or acquire any property or
assets from, or otherwise engage in any other transaction with, any of its
Affiliates or any known direct or indirect holder of 10% or more of any class
of capital stock of Holdings or the Company in a transaction involving
aggregate consideration in excess of $5 million, unless such transaction is (i)
otherwise permitted (or required) under this Agreement or (ii) upon terms
no less favorable to the Company or such Subsidiary, as applicable, than would
be obtained in a comparable arm’s‐length transaction with a person that
is not an Affiliate.


(b)              
The foregoing paragraph (a) shall not prohibit, to the extent
otherwise permitted under this Agreement,


(i)         any issuance of
securities, or other payments, awards or grants in cash, securities or
otherwise pursuant to, or the funding of, employment arrangements, equity 







                                                                                136                                                                                










 








 








purchase agreements, stock options and stock ownership
plans approved by the Board of Directors of Holdings or of the Company,


(ii)        loans or advances
to employees or consultants of Holdings (or any Parent Entity), the Company or
any of the Subsidiaries in accordance with Section 6.04(e),


(iii)       transactions
among the Company or any Subsidiary or any entity that becomes a Subsidiary as
a result of such transaction (including via merger or consolidation in which a
Subsidiary is the surviving entity) not prohibited by this Agreement,


(iv)       the payment of
fees, reasonable out-of-pocket costs and indemnities to directors, officers,
consultants and employees of Holdings, any Parent Entity, the Company and the
Subsidiaries in the ordinary course of business (limited, in the case of any Parent
Entity, to the portion of such fees and expenses that are allocable to the
Company and its Subsidiaries (which shall be 100% for so long as Holdings or
such Parent Entity, as the case may be, owns no assets other than the Equity
Interests in the Company, Holdings or another Parent Entity and assets
incidental to the ownership of the Company and its Subsidiaries)),


(v)        subject to the
limitations set forth in Section 6.07(b)(xiv), if applicable, transactions
pursuant to the Transaction Documents and permitted agreements in existence on
the Closing Date and set forth on Schedule 6.07  or any amendment
thereto to the extent such amendment is not adverse to the Lenders in any
material respect and other transactions, agreements and arrangements described
on Schedule 6.07  and any amendment thereto to the extent such
amendment is not adverse to the Lenders in any material respect or similar
transactions, agreements or arrangements entered into by the Company or any of
its Subsidiaries.


(vi)       (A) any
employment agreements entered into by the Company or any of the Subsidiaries in
the ordinary course of business, (B) any subscription agreement or similar
agreement pertaining to the repurchase of Equity Interests pursuant to put/call
rights or similar rights with employees, officers or directors, and
(C) any employee compensation, benefit plan or arrangement, any health,
disability or similar insurance plan which covers employees, and any reasonable
employment contract and transactions pursuant thereto,


(vii)      dividends,
redemptions and repurchases permitted under Section 6.06, including
payments to Holdings (and any Parent Entity),


(viii)     any purchase by
Holdings of the equity capital of the Company; provided, that any Equity
Interests of the Company purchased by Holdings shall be pledged to the
Administrative Agent on behalf of the Lenders pursuant to the Collateral
Agreement,


(ix)       payments by the
Company or any of the Subsidiaries to any Fund or any Fund Affiliate made for
any financial advisory, financing, underwriting or placement services or in
respect of other investment banking activities, including in connection with
acquisitions or divestitures, which payments are approved by the majority of
the Board of Directors of the Company, or a majority of disinterested members
of the Board of Directors of the Company, in good faith,


 







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(x)        transactions
with Wholly Owned Subsidiaries for the purchase or sale of goods, products,
parts and services entered into in the ordinary course of business in a manner
consistent with past practice,


(xi)       any transaction in
respect of which the Company delivers to the Administrative Agent (for delivery
to the Lenders) a letter addressed to the Board of Directors of the Company
from an accounting, appraisal or investment banking firm, in each case of
nationally recognized standing that is (A) in the good faith determination
of the Company qualified to render such letter and (B) reasonably
satisfactory to the Administrative Agent, which letter states that such
transaction is on terms that are no less favorable to the Company or such
Subsidiary, as applicable, than would be obtained in a comparable arm’s‐length
transaction with a person that is not an Affiliate,


(xii)      subject to
paragraph (xiv) below, the payment of all fees, expenses, bonuses and
awards related to the Transactions contemplated by the Information Memorandum,
including fees to any Fund or any Fund Affiliates and as set forth on Schedule 6.07,
 


(xiii)     transactions with
joint ventures for the purchase or sale of goods, equipment and services
entered into in the ordinary course of business and in a manner consistent with
past practice,


(xiv)     any agreement to
pay, and the payment of, monitoring, management, transaction, advisory or similar
fees payable to any Fund or any Fund Affiliate (A) in an aggregate amount
in any fiscal year not to exceed the sum of (1) the greater of
$7.5 million and 2.0% of EBITDA for such fiscal year, plus reasonable out
of pocket costs and expenses in connection therewith and unpaid amounts accrued
for prior periods; plus (2) any deferred fees (to the extent such fees
were within such amount in clause (A) (1) above originally), plus
(B) 2.0% of the value of transactions with respect to which any Fund or
any Fund Affiliate provides any transaction, advisory or other services, plus
(C) so long as no Availability Triggering Event or Event of Default has
occurred and is continuing, in the event of a Qualified IPO, the present value
of all future amounts payable pursuant to any agreement referred to in
clause (A) (1) above in connection with the termination of such
agreement with the Funds and Fund Affiliates (the “Fund Termination Fee”);
provided, that if any such payment pursuant to clause (C) is
not permitted to be paid as a result of an Availability Triggering Event or
Event of Default, such payment shall accrue and may be payable when no
Availability Triggering Event or Events of Default are continuing to the extent
that no further Availability Triggering Event or Event of Default would result
therefrom, 


(xv)      the issuance, sale,
transfer of Equity Interests of Company to Holdings and capital contributions
by Holdings to Company, 


(xvi)     the Business
Combination and all transactions in connection therewith, 


(xvii)    without duplication
of any amounts otherwise paid with respect to taxes, payments by Holdings (and
any Parent Entity), the Company and the Subsidiaries pursuant to tax sharing
agreements among Holdings (and any such Parent Entity), the Company and 







                                                                                138                                                                                










 








 








the Subsidiaries on customary terms that require each
party to make payments when such taxes are due or refunds received of amounts
equal to the income tax liabilities and refunds generated by each such party
calculated on a separate return basis and payments to the party generating tax
benefits and credits of amounts equal to the value of such tax benefits and
credits made available to the group by such party, or


(xviii)   transactions
pursuant to any Permitted Receivables Financing.


SECTION 6.08 Business of
the Borrowers and the Subsidiaries


.  Notwithstanding any other provisions hereof, engage at
any time in any business or business activity other than any business or
business activity conducted by any of them on the Closing Date and any business
or business activities incidental or related thereto, or any business or
activity that is reasonably similar or complementary thereto or a reasonable
extension, development or expansion thereof or ancillary thereto, and in the
case of a Special Purpose Receivables Subsidiary, Permitted Receivables
Financing.


SECTION 6.09 Limitation on
Modifications of Indebtedness; Modifications of Certificate of Incorporation,
By‐Laws and Certain Other Agreements; etc.


   


(a)    Amend
or modify in any manner materially adverse to the Lenders, or grant any waiver
or release under or terminate in any manner (if such granting or termination
shall be materially adverse to the Lenders), the articles or certificate of
incorporation, by‐laws, limited liability company operating agreement,
partnership agreement or other organizational documents of the Company or any
of the Subsidiaries or the Merger Agreement.


(b)              
(i)  Make, or agree or offer to pay or make, directly or
indirectly, any payment or other distribution (whether in cash, securities or
other property) of or in respect of principal of or interest on the loans under
the Senior Subordinated Notes or any Permitted Refinancing Indebtedness in
respect of the Senior Subordinated Notes or any preferred Equity Interests or
any Disqualified Stock (“Junior Financing”), or any payment or other
distribution (whether in cash, securities or other property), including any
sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancellation or termination in respect of any Junior
Financing except for (A) refinancings permitted by Section 6.01(l) or
(r), (B) payments of regularly scheduled interest, and, to the extent this
Agreement is then in effect, principal on the scheduled maturity date of any
Junior Financing, (C) payments or distributions in respect of all or any
portion of the Junior Financing with the proceeds contributed to the Company by
Holdings from the issuance, sale or exchange by Holdings (or any Parent Entity)
of Equity Interests made within eighteen months prior thereto, (D) the
conversion of any Junior Financing to Equity Interests of Holdings or any
Parent Entity; and (E) so long as no Default or Event of Default has
occurred and is continuing or would result therefrom and after giving effect to
such payment or distribution the Company would be in Pro Forma Compliance,
payments or distributions in respect of Junior Financings prior to their
scheduled maturity made, in an aggregate amount, not to exceed the sum of (x)
$60 million and (y) the Cumulative Credit; or


(ii)        Amend or modify, or permit the
amendment or modification of, any provision of Junior Financing, or any
agreement, document or instrument evidencing or relating
thereto, other than amendments or modifications that (A) are not in any
manner materially adverse to Lenders and that do not affect the subordination
or payment provisions thereof (if any) in a manner adverse to the Lenders and
(B) otherwise comply with the definition of “Permitted Refinancing
Indebtedness”.







                                                                                139                                                                                










 








 










(c)               
Permit any Material Subsidiary to enter into any agreement or instrument
that by its terms restricts (i) the payment of dividends or distributions or
the making of cash advances to the Company or any Subsidiary that is a direct
or indirect shareholder of such Subsidiary or (ii) the granting of Liens
by the Company or such Material Subsidiary pursuant to the Security Documents,
in each case other than those arising under any Loan Document, except, in each
case, restrictions existing by reason of:


(i)         restrictions imposed by applicable
law;


(ii)        contractual
encumbrances or restrictions in effect on the Amendment Effective Date under
Indebtedness existing on the Amendment Effective Date and set forth on Schedule 6.01,
the Term Loan Credit Agreement, the Second Lien Notes, the Senior Subordinated
Notes, the First Priority Notes or any agreements related to any Permitted
Refinancing Indebtedness in respect of any such Indebtedness that does not
expand the scope of any such encumbrance or restriction;


(iii)       any
restriction on a Subsidiary imposed pursuant to an agreement entered into for
the sale or disposition of the Equity Interests or assets of a Subsidiary
pending the closing of such sale or disposition;


(iv)       customary
provisions in joint venture agreements and other similar agreements applicable
to joint ventures entered into in the ordinary course of business;


(v)        any
restrictions imposed by any agreement relating to secured Indebtedness
permitted by this Agreement to the extent that such restrictions apply only to
the property or assets securing such Indebtedness;


(vi)       any
restrictions imposed by any agreement relating to Indebtedness incurred
pursuant to Section 6.01(r), to the extent such restrictions are not more
restrictive, taken as a whole, than the restrictions contained in the Senior Subordinated
Note Documents and Second Lien Note Documents;


(vii)      customary
provisions contained in leases or licenses of intellectual property and other
similar agreements entered into in the ordinary course of business;


(viii)     customary
provisions restricting subletting or assignment of any lease governing a
leasehold interest;


(ix)       customary
provisions restricting assignment of any agreement entered into in the ordinary
course of business;









                                                                                140                                                                                










 








 








(x)        customary restrictions and conditions
contained in any agreement relating to the sale, transfer, lease or other
disposition of any asset permitted under Section 6.05 pending the
consummation of such sale, transfer, lease or other disposition; 


(xi)       customary
restrictions and conditions contained in the document relating to any Lien, so
long as (1) such Lien is a Permitted Lien and such restrictions or
conditions relate only to the specific asset subject to such Lien, and
(2) such restrictions and conditions are not created for the purpose of
avoiding the restrictions imposed by this Section 6.09;


(xii)      customary
net worth provisions contained in Real Property leases entered into by
Subsidiaries of the Company, so long as the Company has determined in good
faith that such net worth provisions would not reasonably be expected to impair
the ability of the Company and its Subsidiaries to meet their ongoing
obligations; 


(xiii)     any
agreement in effect at the time such subsidiary becomes a Subsidiary, so long
as such agreement was not entered into in contemplation of such person becoming
a Subsidiary other than Subsidiaries of such new Subsidiary; 


(xiv)     restrictions
in agreements representing Indebtedness permitted under Section 6.01 of a
Subsidiary of the Company that is not a Subsidiary Loan Party; 


(xv)      customary
restrictions on leases, subleases, licenses or Equity Interests or asset sale
agreements otherwise permitted hereby as long as such restrictions relate to
the Equity Interests and assets subject thereto;


(xvi)     restrictions
on cash or other deposits imposed by customers under contracts entered into in
the ordinary course of business; 


(xvii)    restrictions
contained in any Permitted Receivables Document with respect to any Special
Purpose Receivables Subsidiary; or


(R)       any
encumbrances or restrictions of the type referred to in Sections
6.09(c)(i) and 6.09(c)(ii) above imposed by any amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings of the contracts, instruments or obligations
referred to in clauses (A) through (Q) above; provided that such
amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings are, in the good faith judgment of the
Company, no more restrictive with respect to such dividend and other payment
restrictions than those contained in the dividend or other payment restrictions
prior to such amendment, modification, restatement, renewal, increase,
supplement, refunding, replacement or refinancing.


SECTION 6.10 Fiscal Year;
Accounting


.  Permit its fiscal year to end on any date other than
(a) September 30 or December 30 during the 2007 fiscal year, or (b) the
Saturday nearest September 30, without prior notice to the Administrative Agent
given concurrently with any required notice to the SEC.


 







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SECTION
6.11 Availability Triggering Event


.  If an Availability Triggering Event or Event of
Default shall have occurred and shall be continuing, permit the ABL Fixed
Charge Coverage Ratio, calculated as of the last day of the preceding fiscal
quarter for which financial statements have been delivered to the
Administrative Agent pursuant to Section 5.04(b), to be less than 1.00 to
1.00 (which calculation shall be made on a Pro Forma Basis to take into account
any events described in the definition of “Pro Forma Basis” occurring during
the period of four fiscal quarters ending on the last day of such preceding
fiscal quarter); provided, that solely for the purpose of determining
the occurrence of an Availability Triggering Event under this
Section 6.11, the term “Threshold Amount” shall mean 10.0% of the lesser
of (i) the Revolving Facility Commitments and (ii) the Borrowing
Base, but notwithstanding the foregoing, in no event shall such amount be less
than $45,000,000, in each case as of any date of determination.


SECTION 6.12 Qualified CFC
Holding Companies


.  Permit any Qualified CFC Holding Company to
(a) create, incur or assume any Indebtedness or other liability, or
create, incur, assume or suffer to exist any Lien on, or sell, transfer or
otherwise dispose of, other than in a transaction permitted under
Section 6.05, any of the Equity Interests of a Foreign Subsidiary held by
such Qualified CFC Holding Company, or any other assets, or (b) engage in
any business or activity or acquire or hold any assets other than the Equity
Interests of one or more Foreign Subsidiaries of the Company and/or one or more
other Qualified CFC Holding Companies and the receipt and distribution of
dividends and distributions in respect thereof.


ARTICLE VIA



Holdings Covenants


Holdings covenants and agrees with each Lender that, so
long as this Agreement shall remain in effect (other than in respect of
contingent indemnification obligations for which no claim has been made) and
until the Commitments have been terminated and the Obligations (including
principal of and interest on each Loan, all Fees and all other expenses or
amounts payable under any Loan Document) have been paid in full and all Letters
of Credit and Bankers’ Acceptances have been canceled or fully cash
collateralized (in a manner reasonably acceptable to the Administrative Agent
and the Issuing Banks) or have expired and all amounts drawn or paid thereunder
have been reimbursed in full, unless the Required Lenders shall otherwise
consent in writing, (a) Holdings will not create, incur, assume or permit to
exist any Lien (other than Liens of a type described in Section 6.02(d),
(e) or (k)) on any of the Equity Interests issued by the Company other
than the Liens created under the Loan Documents, (b) Holdings shall do or
cause to be done all things necessary to preserve, renew and keep in full force
and effect its legal existence; provided, that so long as no Default or
Event of Default exists or would result therefrom, Holdings may merge with any
other person, and (c) Holdings shall at all times own directly 100% of the
Equity Interests of the Company and shall not sell, transfer or otherwise
dispose of the Equity Interests in the Company.


ARTICLE VII



Events of Default


 







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SECTION
7.01 Events of Default


.  In case of the happening of any of the following
events (each, an “Event of Default”): 


(a)        any
representation or warranty made or deemed made by Holdings, any Borrower or any
other Loan Party herein or in any other Loan Document or any certificate or
document delivered pursuant hereto or thereto shall prove to have been false or
misleading in any material respect when so made or deemed made;


(b)        default
shall be made in the payment of any principal of any Loan when and as the same
shall become due and payable, whether at the due date thereof or at a date
fixed for prepayment thereof or by acceleration thereof or otherwise;


(c)        default
shall be made in the payment of any interest on any Loan or the reimbursement
with respect to any L/C Disbursement or in the payment of any Fee or any other
amount (other than an amount referred to in (b) above) due under any Loan
Document, when and as the same shall become due and payable, and such default
shall continue unremedied for a period of five Business Days;


(d)       default
shall be made in the due observance or performance by Holdings, any Borrower or
any of the Subsidiaries of any covenant, condition or agreement contained in
Section 5.01(a), 5.05(a) or 5.08 or in Article VI or VIA;


(e)        default
shall be made in the due observance or performance by Holdings, any Borrower or
any of the Subsidiaries of any covenant, condition or agreement contained in
(i) Section 5.07 or  Sections 5.11 through 5.15 and such default
shall continue unremedied for a period of seven days after notice thereof from
the Administrative Agent to the Borrowers, or (ii) any Loan Document
(other than those specified in paragraphs (b), (c) and (d) above) and
such default shall continue unremedied for a period of 30 days (or 60 days if
such default results solely from a Foreign Subsidiary’s failure to duly observe
or perform any such covenant, condition or agreement) after notice thereof from
the Administrative Agent to the Company;


(f)        (i)
any event or condition occurs that (A) results in any Material
Indebtedness becoming due prior to its scheduled maturity or (B) enables
or permits (with all applicable grace periods having expired) the holder
or holders of any Material Indebtedness or any trustee or agent on its or their
behalf to cause any Material Indebtedness to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its
scheduled maturity or (ii) Holdings, any Borrower or any of the Subsidiaries
shall fail to pay the principal of any Material Indebtedness at the stated
final maturity thereof; provided, that this
clause (f) shall not apply to secured Indebtedness that becomes due
as a result of the voluntary sale or transfer of the property or assets
securing such Indebtedness if such sale or transfer is permitted hereunder and
under the documents providing for such Indebtedness;


(g)        there
shall have occurred a Change in Control;


(h)        an
involuntary proceeding shall be commenced or an involuntary petition shall be
filed in a court of competent jurisdiction seeking (i) relief in respect
of Holdings, 







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any Borrower or any of the Subsidiaries,
or of a substantial part of the property or assets of Holdings, any Borrower or
any Subsidiary, under Title 11 of the United States Code, as now
constituted or hereafter amended, or any other federal, state or foreign
bankruptcy, insolvency, receivership or similar law, (ii) the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar
official for Holdings, any Borrower or any of the Subsidiaries or for a
substantial part of the property or assets of Holdings, any Borrower or any of
the Subsidiaries or (iii) the winding‐up or liquidation of Holdings,
any Borrower or any Subsidiary (except, in the case of any Subsidiary, in a
transaction permitted by Section 6.05); and such proceeding or petition
shall continue undismissed for 60 days or an order or decree approving or
ordering any of the foregoing shall be entered;


(i)         Holdings,
any Borrower or any Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking relief under Title 11 of the
United States Code, as now constituted or hereafter amended, or any other
federal, state or foreign bankruptcy, insolvency, receivership or similar law,
(ii) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or the filing of any petition described in
paragraph (h) above, (iii) apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for Holdings, any Borrower or any of the Subsidiaries or for a
substantial part of the property or assets of Holdings, any Borrower or any
Subsidiary, (iv) file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors or (vi) become unable or admit in
writing its inability or fail generally to pay its debts as they become due;


(j)         the
failure by Holdings, any Borrower or any Subsidiary to pay one or more final
judgments aggregating in excess of $35 million (to the extent not covered by
insurance), which judgments are not discharged or effectively waived or stayed
for a period of 45 consecutive days;


(k)        (i) 
a trustee shall be appointed by a United States district court to administer
any Plan, (ii) an ERISA Event or ERISA Events shall have occurred with
respect to any Plan or Multiemployer Plan, (iii) the PBGC shall institute
proceedings (including giving notice of intent thereof) to terminate any
Plan or Plans, (iv) Holdings, any Borrower or any Subsidiary or any ERISA
Affiliate shall have been notified by the sponsor of a Multiemployer Plan that
such Multiemployer Plan is in reorganization or is being terminated, within the
meaning of Title IV of ERISA, or (v) Holdings, any Borrower or any
Subsidiary shall engage in any “prohibited transaction” (as defined in
Section 406 of ERISA or Section 4975 of the Code) involving any Plan;
and in each case in clauses (i) through (v) above, such event or
condition, together with all other such events or conditions, if any, would
reasonably be expected to have a Material Adverse Effect;


(l)         (i) any
Loan Document shall for any reason be asserted in writing by Holdings, any
Borrower or any Subsidiary not to be a legal, valid and binding obligation of
any party thereto, (ii) any security interest purported to be created by
any Security Document and to extend to assets that are not immaterial to
Holdings, the Borrowers and the Subsidiaries on a consolidated basis, shall
cease to be, or shall be asserted in writing by any Borrower or any other Loan
Party not to be, a valid and perfected security interest 







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(perfected
as or having the priority required by this Agreement or the relevant Security
Document and subject to such limitations and restrictions as are set forth
herein and therein) in the securities, assets or properties covered thereby,
except to the extent that any such loss of perfection or priority results from
the limitations of foreign laws, rules and regulations as they apply to pledges
of Equity Interests in Foreign Subsidiaries or the application thereof, or from
the failure of the Administrative Agent to maintain possession of certificates
actually delivered to it representing securities pledged under the Collateral
Agreement or to file Uniform Commercial Code continuation statements or take
the actions described on Schedule 3.04  and except to the extent
that such loss is covered by a Lender’s title insurance policy and the
Administrative Agent shall be reasonably satisfied with the credit of such
insurer, or (iii) the Guarantees pursuant to the Security Documents by
Holdings, any Borrower or the Subsidiary Loan Parties of any of the Obligations
shall cease to be in full force and effect (other than in accordance with the
terms thereof), or shall be asserted in writing by Holdings or any Borrower or
any Subsidiary Loan Party not to be in effect or not to be legal, valid and
binding obligations; 


(m)       (i) the
Obligations shall fail to constitute “Senior Debt” (or the equivalent thereof)
and “Designated Senior Debt” (or the equivalent thereof) under the Senior
Subordinated Notes Indentures and under the documentation governing any
Indebtedness incurred pursuant to Section 6.01(r) constituting subordinated
Indebtedness or any Permitted Refinancing Indebtedness in respect of the Senior
Subordinated Notes or such Indebtedness incurred pursuant to
Section 6.01(r) constituting subordinated Indebtedness, or (ii) the
subordination provisions thereunder shall be invalidated or otherwise cease, or
shall be asserted in writing by Holdings, the Borrowers or any Subsidiary Loan
Party to be invalid or to cease to be legal, valid and binding obligations of
the parties thereto, enforceable in accordance with their terms; or


(n)        there
shall occur and be continuing an “Event of Default” under and as defined in the
Term Loan Credit Agreement.


then,
and in every such event (other than an event with respect to any Borrower
described in paragraph (h) or (i) above), and at any time
thereafter during the continuance of such event, the Administrative Agent, at
the request of the Required Lenders, shall, by notice to the Company, take any
or all of the following actions, at the same or different times: 
(i) terminate forthwith the Commitments, (ii) declare the Loans then
outstanding to be forthwith due and payable in whole or in part, whereupon the
principal of the Loans so declared to be due and payable, together with accrued
interest thereon and any unpaid accrued Fees and all other liabilities of the
Borrowers accrued hereunder and under any other Loan Document, shall become
forthwith due and payable, without presentment, demand, protest or any other
notice of any kind, all of which are hereby expressly waived by the Borrowers,
anything contained herein or in any other Loan Document to the contrary
notwithstanding and (iii) if the Loans have been declared due and payable
pursuant to clause (ii) above, demand cash collateral pursuant to
Section 2.05(j); and in any event with respect to any Borrower described
in paragraph (h) or (i) above, the Commitments shall
automatically terminate, the principal of the Loans then outstanding, together
with accrued interest thereon and any unpaid accrued Fees and all other liabilities
of the Borrowers accrued hereunder and under any other Loan Document, shall
automatically become due and payable and the Administrative Agent shall be
deemed to have made a demand for cash collateral to the full extent permitted
under Section 2.05(j), without presentment,
demand, protest or any other notice of any kind, all of which are hereby
expressly waived by the Borrowers, anything contained herein or in any other
Loan Document to the contrary notwithstanding.







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SECTION 7.02 Exclusion of
Immaterial Subsidiaries


.  Solely for the purposes of determining whether an
Event of Default has occurred under clause (h), (i) or (l) of
Section 7.01, any reference in any such clause to any Subsidiary
shall be deemed not to include any Immaterial Subsidiary affected by any event
or circumstance referred to in any such clause.


SECTION 7.03 Holdings’
Right to Cure


.  (a)  Notwithstanding anything to the contrary
contained in Section 7.01, in the event that the Borrowers fail to comply
with the requirements of the ABL Fixed Charge Coverage Ratio set forth in
Section 6.11 hereof, until the expiration of the 10th day subsequent to
the date that the certificate calculating such ABL Fixed Charge Coverage Ratio
is required to be delivered pursuant to Section 5.04(c), Holdings shall have
the right to issue Permitted Cure Securities for cash or otherwise receive cash
contributions to the capital of Holdings, and, in each case, to contribute any
such cash to the capital of the Company (collectively, the “Cure Right”),
and upon the receipt by the Company of such cash (the “Cure Amount”)
pursuant to the exercise by Holdings of such Cure Right, such ABL Fixed Charge
Coverage Ratio shall be recalculated giving effect to the following pro forma
adjustment:


(i)         EBITDA shall be
increased with respect to such applicable quarter and any four-quarter period
that contains such quarter, solely for the purpose of measuring the ABL Fixed
Charge Coverage Ratio and not for any other purpose under this Agreement, by an
amount equal to the Cure Amount; and


(ii)        If, after giving
effect to the foregoing pro forma adjustment, the Borrowers shall then be in
compliance with the requirements of the ABL Fixed Charge Coverage Ratio set
forth in Section 6.11 hereof, the Borrowers shall be deemed to have
satisfied the requirements of such Section 6.11 as of the relevant date of
determination with the same effect as though there had been no failure to
comply therewith at such date, and the applicable breach or default of such
Section 6.11 that had occurred shall be deemed cured for this purposes of
the Agreement.


            (b)        Notwithstanding
anything herein to the contrary, (i) in each four‐fiscal‐quarter
period there shall be at least one fiscal quarter in which the Cure Right is
not exercised, (ii) in each eight‐fiscal‐quarter period, there
shall be a period of at least four consecutive fiscal quarters during which the
Cure Right is not exercised, and (iii) for purposes of this
Section 7.03, the Cure Amount shall be no greater than the amount required
for purposes of complying with Section 6.11.


ARTICLE VIII



The Agents


SECTION 8.01 Appointment 


. 


(a)    Each
Lender (in its capacities as a Lender and the Swingline Lender (if applicable)
and on behalf of itself and its Affiliates as potential counterparties to Swap
Agreements) and each Issuing Bank (in such capacities and on behalf of itself
and its 







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Affiliates as potential counterparties to
Swap Agreements) hereby irrevocably designates and appoints (A) the
Administrative Agent as the agent of such Lender under this Agreement and the
other Loan Documents, including as a Collateral Agent for such Lender and the
other Secured Parties (including the Term Loan Secured Parties) under the
Security Documents, and each such Lender irrevocably authorizes the
Administrative Agent, in such capacity, to take such action on its behalf under
the provisions of this Agreement and the other Loan Documents and to exercise
such powers and perform such duties as are expressly delegated to the
Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto
and (B) the Term Facility Collateral Agent as collateral agent for such
lender for purposes of the Security Documents.  In addition, to the extent
required under the laws of any jurisdiction other than the United States, each
of the Lenders and the Issuing Banks hereby grants to the Administrative Agent
any required powers of attorney to execute any Security Document governed by
the laws of such jurisdiction on such Lender’s or Issuing Bank’s behalf. 
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except
those expressly set forth herein, or any fiduciary relationship with any Lender,
and no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent.  Except as expressly
otherwise provided in this Agreement, the Administrative Agent shall have and
may use its sole discretion with respect to exercising or refraining from
exercising any discretionary rights or taking or refraining from taking any
actions which such Agent is expressly entitled to take or assert under this
Agreement and the other Loan Documents, including (a) the determination of
the applicability of ineligibility criteria and other determinations with
respect to the calculation of the Borrowing Base, (b) the making of Agent
Advances pursuant to Section 2.04(d), and (c) the exercise of
remedies pursuant to Section 7.01, and any action so taken or not taken
shall be deemed consented to by the Lenders.


(b)   In
furtherance of the foregoing, each Lender (in its capacities as a Lender and
the Swingline Lender (if applicable) and on behalf of itself and its Affiliates
as potential counterparties to Swap Agreements) and each Issuing Bank (in such
capacities and on behalf of itself and its Affiliates as potential
counterparties to Swap Agreements) hereby appoints and authorizes the
Collateral Agent to act as the agent of such Lender for purposes of acquiring,
holding and enforcing any and all Liens on Collateral granted by any of the
Loan Parties to secure any of the Obligations, together with such powers and
discretion as are reasonably incidental thereto and to enter into and take such
action on its behalf under the provisions of the Intercreditor Agreement and
the Senior Lender Intercreditor Agreement  and to exercise such powers and
perform such duties as are expressly delegated to the Collateral Agent by the
terms of the Intercreditor Agreement and the Senior Lender Intercreditor
Agreement, together with such other powers as are reasonably incidental
thereto.  In this connection, the Collateral Agent (and any Subagents appointed
by the Collateral Agent pursuant to Section 8.02 for purposes of holding
or enforcing any Lien on the Collateral (or any portion thereof) granted under
the Security Documents, or for exercising any rights or remedies thereunder at
the direction of the Collateral Agent) shall be entitled to the benefits of
this Article VIII (including, without 







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limitation,
Section 8.07) as though the Collateral Agent (and any such Subagents) were
an “Agent” under the Loan Documents, as if set forth in full herein with
respect thereto. 


(c)    Each
Lender (in its capacities as a Lender and the Swingline Lender (if applicable)
and on behalf of itself and its Affiliates as potential counterparties to Swap
Agreements) and each Issuing Bank (in such capacities and on behalf of itself
and its Affiliates as potential counterparties to Swap Agreements) irrevocably
authorizes each of the Administrative Agent and the Collateral Agent, at its
option and in its discretion, (i) to release any Lien on any property granted
to or held by the Collateral Agent under any Loan Document (A) upon
termination of the Commitments and payment in full of all Obligations (other
than contingent indemnification obligations) and the expiration, termination or
cash collateralization of all Letters of Credit and Bankers’ Acceptances,
(B) that is sold or to be sold as part of or in connection with any sale
permitted hereunder or under any other Loan Document, or (C) if approved,
authorized or ratified in writing in accordance with Section 9.08 hereof,
(ii) to release any Guarantor from its obligations under the Loan
Documents if such person ceases to be a Subsidiary as a result of a transaction
permitted hereunder; and (iii) to subordinate any Lien on any property
granted to or held by the Collateral Agent under any Loan Document to the
holder of any Lien on such property that is permitted by
Section 6.02(i) and (j).  Upon request by the Collateral Agent at any
time, the Required Lenders will confirm in writing the Collateral Agent’s
authority to release its interest in particular types or items of property, or
to release any Guarantor from its obligations under the Loan Documents.


(d)   In case
of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party, (i) the Administrative Agent
(irrespective of whether the principal of any Obligation shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on the Company)
shall be entitled and empowered, by intervention in such proceeding or
otherwise (A) to file and prove a claim for the whole amount of the
principal and interest owing and unpaid in respect of any or all of the
Obligations that are owing and unpaid and to file such other documents as may
be necessary or advisable in order to have the claims of the Lenders, the
Issuing Banks and the Administrative Agent and any Subagents allowed in such
judicial proceeding, and (B) to collect and receive any monies or other
property payable or deliverable on any such claims and to distribute the same,
and (ii) any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is
hereby authorized by each Lender and Issuing Bank to make such payments to the
Administrative Agent and, if the Administrative Agent shall consent to the
making of such payments directly to the Lenders and the Issuing Banks, to pay
to the Administrative Agent any amount due for the reasonable compensation,
expenses, disbursements and advances of the Administrative Agent and its agents
and counsel, and any other amounts due the Administrative Agent under the Loan
Documents.  Nothing contained herein shall be deemed to authorize the
Administrative Agent to authorize or consent to or accept or adopt on behalf of
any Lender or Issuing Bank any plan of reorganization, arrangement, adjustment
or composition affecting the Obligations or the rights of any Lender or Issuing
Bank or to authorize the 







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Administrative Agent to vote
in respect of the claim of any Lender or Issuing Bank in any such proceeding.  



                        SECTION
8.02 Delegation of Duties


.  The Administrative Agent may execute any of its duties
under this Agreement and the other Loan Documents (including for purposes of
holding or enforcing any Lien on the Collateral (or any portion thereof) by or
through agents, employees or attorneys-in-fact and shall be entitled to advice
of counsel and other consultants or experts concerning all matters pertaining
to such duties.  The Administrative Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.  The Administrative Agent may also from time to time, when the
Administrative Agent deems it to be necessary or desirable, appoint one or more
trustees, co-trustees, collateral co-agents, collateral subagents or
attorneys-in-fact (each, a “Subagent”) with respect to all or any part of the
Collateral; provided, that no such Subagent shall be authorized
to take any action with respect to any Collateral unless and except to the
extent expressly authorized in writing by the Administrative Agent.  Should any
instrument in writing from the Borrowers or any other Loan Party be required by
any Subagent so appointed by the Administrative Agent to more fully or
certainly vest in and confirm to such Subagent such rights, powers, privileges
and duties, the Borrowers shall, or shall cause such Loan Party to, execute,
acknowledge and deliver any and all such instruments promptly upon request by
the Administrative Agent.  If any Subagent, or successor thereto, shall die,
become incapable of acting, resign or be removed, all rights, powers,
privileges and duties of such Subagent, to the extent permitted by law, shall
automatically vest in and be exercised by the Administrative Agent until the
appointment of a new Subagent.  The Administrative Agent shall not be responsible
for the negligence or misconduct of any agent, attorney-in-fact or Subagent
that it selects in accordance with the foregoing provisions of this
Section 8.02 in the absence of the Administrative Agent’s gross negligence
or willful misconduct.


            SECTION 8.03 Exculpatory
Provisions


.  Neither any Agent or its Affiliates nor any of their
respective officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be (a) liable for any action lawfully taken or omitted to
be taken by it or such person under or in connection with this Agreement or any
other Loan Document (except to the extent that any of the foregoing are found
by a final and nonappealable decision of a court of competent jurisdiction to
have resulted from its or such person’s own gross negligence or willful
misconduct) or (b) responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by any Loan Party or
any officer thereof contained in this Agreement or any other Loan Document or in
any certificate, report, statement or other document referred to or provided
for in, or received by the Agents under or in connection with, this Agreement
or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or for any failure of any Loan Party a party thereto to perform its
obligations hereunder or thereunder.  The Agents shall not be under any
obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or
records of any Loan Party.  The Administrative Agent shall not have any duties
or obligations except those expressly set forth herein and in the other Loan
Documents.  Without limiting the generality of the foregoing, (x) the
Administrative Agent shall not be subject to any fiduciary or other implied
duties, regardless of whether a Default or Event of Default has occurred and is
continuing, and (y) the Administrative Agent shall not, except as
expressly set forth herein and in the other Loan Documents, have any duty to
disclose, and shall not be liable for the failure to
disclose, any information relating to the Borrowers or any of their Affiliates
that is communicated to or obtained by the person serving as the Administrative
Agent or any of its Affiliates in any capacity.  The Administrative Agent shall
be deemed not to have knowledge of any Default or Event of Default unless and
until written notice describing such Default or Event of Default is given to
the Administrative Agent by the Borrowers, a Lender or an Issuing Bank.  The
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or
in connection with this Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance
or observance of any of the covenants, agreements or other terms or conditions
set forth herein or therein or the occurrence of any Default or Event of
Default, (iv) the validity, enforceability, effectiveness or genuineness
of this Agreement, any other Loan Document or any other agreement, instrument
or document, or the creation, perfection or priority of any Lien purported to
be created by the Security Documents, (v) the value or the sufficiency of any
Collateral, or (vi) the satisfaction of any condition set forth in
Article IV or elsewhere herein, other than to confirm receipt of items
expressly required to be delivered to the Administrative Agent.







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                        SECTION
8.04 Reliance by Administrative Agent


.  The Administrative Agent shall be entitled to rely
upon, and shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing
(including any electronic message, Internet or intranet website posting or
other distribution) or conversation believed by it to be genuine and to have
been signed, sent or otherwise authenticated by the proper person.  The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to have been made by the proper person, and shall
not incur any liability for relying thereon.  In determining compliance with
any condition hereunder to any Credit Event, that by its terms must be
fulfilled to the satisfaction of a Lender or any Issuing Bank, the
Administrative Agent may presume that such condition is satisfactory to such
Lender or Issuing Bank unless the Administrative Agent shall have received
notice to the contrary from such Lender or the Issuing Bank prior to such Credit
Event.  The Administrative Agent may consult with legal counsel (including
counsel to Holdings or the Borrowers), independent accountants and other
experts selected by it, and shall not be liable for any action taken or not
taken by it in accordance with the advice of any such counsel, accountants or
experts.  The Administrative Agent may deem and treat the payee of any Note as
the owner thereof for all purposes unless a written notice of assignment,
negotiation or transfer thereof shall have been filed with the Administrative
Agent.  The Administrative Agent shall be fully justified in failing or
refusing to take any action under this Agreement or any other Loan Document
unless it shall first receive such advice or concurrence of the Required Lenders
(or, if so specified by this Agreement, all or other Lenders) as it deems
appropriate or it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense that may be incurred by it by reason
of taking or continuing to take any such action.  The Administrative Agent
shall in all cases be fully protected in acting, or in refraining from acting,
under this Agreement and the other Loan Documents in accordance with a request
of the Required Lenders (or, if so specified by this Agreement, all or other
Lenders), and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders and all future holders of the
Loans.  


            SECTION 8.05 Notice
of Default


.  The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default unless
the Administrative Agent has received written notice
from a Lender, Holdings or the Borrowers referring to this Agreement,
describing such Default or Event of Default and stating that such notice is a
“notice of default.”  In the event that the Administrative Agent receives such
a notice, the Administrative Agent shall give prompt notice thereof to the
Lenders.  The Administrative Agent shall take such action with respect to such
Default or Event of Default as shall be reasonably directed by the Required
Lenders (or, if so specified by this Agreement, all or other Lenders); provided,
that unless and until the Administrative Agent shall have received such directions,
the Administrative Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the Lenders.







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            SECTION 8.06 Non-Reliance
on Agents and Other Lenders


.  Each Lender expressly acknowledges that neither the
Agents nor any of their respective officers, directors, employees, agents,
attorneys-in-fact or affiliates have made any representations or warranties to
it and that no act by any Agent hereafter taken, including any review of the
affairs of a Loan Party or any affiliate of a Loan Party, shall be deemed to
constitute any representation or warranty by any Agent to any Lender.  Each
Lender represents to the Agents that it has, independently and without reliance
upon any Agent or any other Lender, and based on such documents and information
as it has deemed appropriate, made its own appraisal of and investigation into
the business, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their affiliates and made its own
decision to make its Loans hereunder and enter into this Agreement.  Each
Lender also represents that it will, independently and without reliance upon
any Agent or any other Lender, and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit
analysis, appraisals and decisions in taking or not taking action under this
Agreement and the other Loan Documents, and to make such investigation as it
deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Loan Parties and
their affiliates.  Except for notices, reports and other documents expressly
required to be furnished to the Lenders by the Administrative Agent hereunder,
the Administrative Agent shall not have any duty or responsibility to provide
any Lender with any credit or other information concerning the business,
operations, property, condition (financial or otherwise), prospects or
creditworthiness of any Loan Party or any affiliate of a Loan Party that may
come into the possession of the Administrative Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates.


            SECTION 8.07 Indemnification 


.  The Lenders agree to indemnify each Agent and each
Issuing Bank in its capacity as such (to the extent not reimbursed by Holdings
or the Borrowers and without limiting the obligation of Holdings or the
Borrowers to do so), in the amount of its pro rata share (based on its
aggregate Revolving Facility Credit Exposure and unused Commitments hereunder;
provided, that the aggregate principal amount of Swingline Loans
owing to the Swingline Lender and of L/C – BA Disbursements owing to any
Issuing Bank shall be considered to be owed to the Revolving Lenders ratably in
accordance with their respective Revolving Facility Credit Exposure), from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever that may at any time (whether before or after the payment of the
Loans) be imposed on, incurred by or asserted against such Agent or such
Issuing Bank in any way relating to or arising out of the Commitments, this
Agreement, any of the other Loan Documents (including, without limitation, the
Intercreditor Agreement and the Senior Lender Intercreditor Agreement) or any
documents contemplated by or referred to herein or
therein or the transactions contemplated hereby or thereby or any action taken
or omitted by such Agent or such Issuing Bank under or in connection with any
of the foregoing; provided, that no Lender shall be liable for
the payment of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements that are
found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from such Agent’s or such Issuing Bank’s gross
negligence or willful misconduct.  The failure of any Lender to reimburse any
Agent or any Issuing Bank, as the case may be, promptly upon demand for its
ratable share of any amount required to be paid by the Lenders to such Agent or
such Issuing Bank, as the case may be, as provided herein shall not relieve any
other Lender of its obligation hereunder to reimburse such Agent or such
Issuing Bank, as the case may be, for its ratable share of such amount, but no
Lender shall be responsible for the failure of any other Lender to reimburse
such Agent or such Issuing Bank, as the case may be, for such other Lender’s
ratable share of such amount.  The agreements in this Section shall
survive the payment of the Loans and all other amounts payable hereunder.







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            SECTION 8.08 Agent
in Its Individual Capacity


.  Each Agent and its affiliates may make loans to,
accept deposits from, and generally engage in any kind of business with any
Loan Party as though such Agent were not an Agent.  With respect to its Loans
made or renewed by it and with respect to any Letter of Credit issued, or
Letter of Credit or Swingline Loan participated in, by it, each Agent shall
have the same rights and powers under this Agreement and the other Loan
Documents as any Lender and may exercise the same as though it were not an
Agent, and the terms “Lender” and “Lenders” shall include each Agent in its
individual capacity.


            SECTION 8.09 Successor
Administrative Agent


.  The Administrative Agent may resign as Administrative
Agent upon 10 days’ notice to the Lenders and the Borrowers.  If the
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Loan Documents, then the Required Lenders shall appoint from
among the Lenders a successor agent for the Lenders, which successor agent
shall (unless an Event of Default under Section 7.01(b), (c), (h) or
(i) shall have occurred and be continuing) be subject to approval by the
Company (which approval shall not be unreasonably withheld or delayed), whereupon
such successor agent shall succeed to the rights, powers and duties of the
Administrative Agent, and the term “Administrative Agent” shall mean such
successor agent effective upon such appointment and approval, and the former
Administrative Agent’s rights, powers and duties as Administrative Agent shall
be terminated, without any other or further act or deed on the part of such
former Administrative Agent or any of the parties to this Agreement or any
holders of the Loans.  If no successor agent has accepted appointment as
Administrative Agent by the date that is 10 days following a retiring
Administrative Agent’s notice of resignation, the retiring Administrative
Agent’s resignation shall nevertheless thereupon become effective, and the
retiring Administrative Agent shall, on behalf of the Lenders, appoint a
successor agent which shall (unless an Event of Default under
Section 7.01(b), (c), (h) or (i) shall have occurred and be
continuing) be subject to approval by the Company (which approval shall not be
unreasonably withheld or delayed).  After any retiring Administrative Agent’s
resignation as Administrative Agent, the provisions of this Section 8.09
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent under this Agreement and the other Loan
Documents. 


SECTION 8.10 Agents and Arrangers









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Neither the Syndication Agent,
the Documentation Agents nor any of the Joint Lead Arrangers shall have any
duties or responsibilities hereunder in its capacity as such.


            SECTION 8.11 Field
Audit and Examination Reports; Disclaimer by Lenders


.  By signing this Agreement, each Lender:


(a)        is
deemed to have requested that the Collateral Agent furnish such Lender,
promptly after it becomes available, a copy of each field audit or examination
report (each a “Report” and collectively, “Reports”) prepared by
or on behalf of the Collateral Agent;


(b)        expressly
agrees and acknowledges that neither the Banks nor the Agents (i) make any
representation or warranty as to the accuracy of any Report, or (ii) shall
be liable for any information contained in any Report;


(c)        expressly
agrees and acknowledges that the Reports are not comprehensive audits or
examinations, that the Collateral Agent, a Bank, or other party performing any
audit or examination will inspect only specific information regarding the
Borrowers and will rely significantly upon the Borrowers’ books and records, as
well as on representations of the Borrowers’ personnel;


(d)       agrees
to keep all Reports confidential and strictly for its internal use, and not to
distribute except to its participants, or use any Report in any other manner;
and 


(e)        without
limiting the generality of any other indemnification provision contained in
this Agreement, agrees: (i) to hold the Agents and any other Lender
preparing a Report harmless from any action the indemnifying Lender may take or
conclusion the indemnifying Lender may reach or draw from any Report in
connection with any loans or other credit accommodations that the indemnifying
Lender has made or may make to the Borrowers, or the indemnifying Lender’s
participation in, or the indemnifying Lender’s purchase of, a loan or loans of
the Borrowers; and (ii) to pay and protect, and indemnify, defend, and
hold the Agents and any such other Lender preparing a Report harmless from and
against, the claims, actions, proceedings, damages, costs, expenses, and other
amounts (including Attorney Costs) incurred by the Agents and any such other
Lender preparing a Report as the direct or indirect result of any third parties
who might obtain all or part of any Report through the indemnifying Lender.


ARTICLE IX



Miscellaneous


SECTION
9.01 Notices; Communications


. 


(a)    Except
in the case of notices and other communications expressly permitted to be given
by telephone (and except as provided in Section 9.01(b) below), all
notices and other communications provided for herein shall be in writing and
shall be delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopier as follows, and all notices and other
communications expressly 







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permitted hereunder to be
given by telephone shall be made to the applicable telephone number, as
follows:


                        (i)         if to any Loan
Party, the Administrative Agent, the Issuing Bank or the Swingline Lender, to
the address, telecopier number, electronic mail address or telephone number
specified for such person on Schedule 9.01; and 


                        (ii)        if to any other
Lender, to the address, telecopier number, electronic mail address or telephone
number specified in its Administrative Questionnaire.


(b)   Notices
and other communications to the Lenders and the Issuing Bank hereunder may be
delivered or furnished by electronic communication (including e-mail and
Internet or intranet websites) pursuant to procedures approved by the
Administrative Agent; provided  that the foregoing shall not apply
to notices to any Lender or the Issuing Bank pursuant to Article II if
such Lender or the Issuing Bank, as applicable, has notified the Administrative
Agent that it is incapable of receiving notices under such Article by
electronic communication.  The Administrative Agent or the Borrowers may, in
its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it, provided 
that approval of such procedures may be limited to particular notices or
communications.


(c)    Notices
sent by hand or overnight courier service, or mailed by certified or registered
mail, shall be deemed to have been given when received.  Notices sent by
telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient).  Notices delivered through electronic communications to the extent
provided in Section 9.01(b) above shall be effective as provided in such
Section 9.01(b). 


(d)   Any party
hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto.


(e)    Documents
required to be delivered pursuant to Section 5.04 (to the extent any such
documents are included in materials otherwise filed with the SEC) may be
delivered electronically (including as set forth in Section 9.17) and if
so delivered, shall be deemed to have been delivered on the date (i) on which
the Company posts such documents, or provides a link thereto on the Company’s
website on the Internet at the website address listed on Schedule 9.01,
or (ii) on which such documents are posted on the Company’s behalf on an
Internet or intranet website, if any, to which each Lender and the
Administrative Agent have access (whether a commercial, third-party website or
whether sponsored by the Administrative Agent); provided, that
(A) the Company shall deliver paper copies of such documents to the
Administrative Agent or any Lender that requests the Borrowers to deliver such
paper copies until a written request to cease delivering paper copies is given
by the Administrative Agent or such Lender, and (B) the Borrowers shall
notify the Administrative Agent and each Lender (by telecopier or electronic
mail) of the posting of any such documents and provide to the Administrative
Agent by electronic mail electronic versions (i.e., soft copies) of such
documents.  Notwithstanding anything 







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contained
herein, in every instance the Borrowers shall be required to provide paper
copies of the certificates required by Section 5.04(c) to the
Administrative Agent.  Except for such certificates required by
Section 5.04(c), the Administrative Agent shall have no obligation to
request the delivery or to maintain copies of the documents referred to above,
and in any event shall have no responsibility to monitor compliance by the Borrowers
with any such request for delivery, and each Lender shall be solely responsible
for requesting delivery to it or maintaining its copies of such documents.


SECTION 9.02 Survival of
Agreement


.  All covenants, agreements, representations and
warranties made by the Loan Parties herein, in the other Loan Documents and in
the certificates or other instruments prepared or delivered in connection with
or pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Lenders and each Issuing Bank and shall survive
the making by the Lenders of the Loans, the execution and delivery of the Loan
Documents and the issuance of the Letters of Credit, regardless of any
investigation made by such persons or on their behalf, and shall continue in
full force and effect as long as the principal of or any accrued interest on
any Loan or L/C – BA Disbursement or any Fee or any other amount payable under
this Agreement or any other Loan Document is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not been
terminated.  Without prejudice to the survival of any other agreements
contained herein, indemnification and reimbursement obligations contained
herein (including pursuant to Sections 2.15, 2.17 and 9.05) shall survive the
payment in full of the principal and interest hereunder, the expiration of the
Letters of Credit and the termination of the Commitments or this Agreement.


SECTION 9.03 Binding
Effect


.  This Agreement shall become effective when it shall
have been executed by Holdings, the Borrowers and the Administrative Agent and
when the Administrative Agent shall have been notified by each Lender (or
otherwise received evidence satisfactory to the Administrative Agent) that such
Lender has executed it, and thereafter shall be binding upon and inure to the
benefit of Holdings, the Borrowers, each Issuing Bank, the Administrative Agent
and each Lender and their respective permitted successors and assigns.


SECTION 9.04 Successors
and Assigns


.  


(a)    The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns permitted hereby
(including any affiliate of the Issuing Bank that issues any Letter of Credit
or Bankers’ Acceptance), except that (i) the Borrowers may not assign or
otherwise transfer any of its rights or obligations hereunder without the prior
written consent of each Lender (and any attempted assignment or transfer by the
Borrowers without such consent shall be null and void) and (ii) no
Lender may assign or otherwise transfer its rights or obligations hereunder
except in accordance with this Section 9.04.  Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any person (other than
the parties hereto, their respective successors and assigns permitted hereby
(including any Affiliate of the Issuing Bank that issues any Letter of Credit),
Participants (to the extent provided in paragraph (c) of this
Section 9.04), and, to the extent expressly contemplated hereby, the
Related Parties of each of the Agents, the Issuing Bank and the Lenders) any
legal or equitable right, remedy or claim under or by reason of this Agreement
or the other Loan Documents.


 







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(b)              
(i)  Subject to the conditions set forth in
paragraph (b)(ii) below, any Lender may assign to one or more assignees
(each, an “Assignee”) all or a portion of its rights and obligations
under this Agreement (including all or a portion of its Commitments and the
Loans at the time owing to it) with the prior written consent (such consent not
to be unreasonably withheld) of:


(A)       the Company;
provided, that no consent of the Company shall be required for an
assignment to a Lender, an affiliate of a Lender, an Approved Fund (as defined
below) or, if an Event of Default under Sections 7.01(b), (c), (h) or
(i) has occurred and is continuing, any other person;


(B)       the
Administrative Agent; and


(C)       the Issuing
Bank and the Swingline Lender; provided, that no consent of the Issuing
Bank and the Swingline Lender shall be required for an assignment of all or any
portion of a Revolving Loan.


(ii)        Assignments
shall be subject to the following additional conditions:  


(A)       except in the
case of an assignment to a Lender, an affiliate of a Lender or an Approved Fund
or an assignment of the entire remaining amount of the assigning Lender’s
Commitments or Loans, the amount of the Commitments or Loans of the assigning
Lender subject to each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5 million, unless each of the
Company and the Administrative Agent otherwise consent; provided,
that (1) no such consent of the Company shall be required if an Event of
Default under Sections 7.01(b), (c), (h) or (i) has occurred and is
continuing and (2) such amounts shall be aggregated in respect of each
Lender and its Affiliates or Approved Funds (with simultaneous assignments to
or by two or more Related Funds shall be treated as one assignment), if any; 


(B)       the parties
to each assignment shall execute and deliver to the Administrative Agent an
Assignment and Acceptance via an electronic settlement system acceptable to the
Administrative Agent (or, if previously agreed with the Administrative Agent,
manually), and shall pay to the Administrative Agent a processing and
recordation fee of $3,500 (which fee may be waived or reduced in the
sole discretion of the Administrative Agent); 


(C)       the Assignee,
if it shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire and all applicable tax forms; 


(D)       the Assignee
shall not be a Borrower or any of the Borrowers’ Affiliates or Subsidiaries; 


(E)       no such
assignment shall be made to a Defaulting Lender; and


(F)       In connection
with any assignment of rights and obligations of any Defaulting Lender
hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth
herein, the parties to the assignment shall make such additional payments to
the Administrative Agent in an aggregate amount sufficient, upon distribution
thereof as appropriate (which may be outright payment, purchases by the
assignee of participations or subparticipations, or other compensating actions,
including funding, with the consent of the Company and the Administrative
Agent, the applicable pro rata share of Loans previously requested but not
funded by the Defaulting Lender, to each of which the applicable assignee and
assignor hereby irrevocably consent), to (x) pay and satisfy in full all
payment liabilities then owed by such Defaulting Lender to the Administrative
Agent or any Lender hereunder (and interest accrued thereon) and
(y) acquire (and fund as appropriate) its full pro rata share of all Loans
and participations in Letters of Credit and Swingline Loans in accordance with
its Applicable Percentage.  Notwithstanding the foregoing, in the event that
any assignment of rights and obligations of any Defaulting Lender hereunder
shall become effective under applicable Law without compliance with the
provisions of this paragraph, then the assignee of such interest shall be
deemed to be a Defaulting Lender for all purposes of this Agreement until such
compliance occurs.







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For
the purposes of this Section 9.04, “Approved Fund” means any person
(other than a natural person) that is engaged in making, purchasing, holding or
investing in bank loans and similar extensions of credit in the ordinary course
and that is administered or managed by (a) a Lender, (b) an Affiliate of a
Lender or (c) an entity or an Affiliate of an entity that administers or
manages a Lender.  Notwithstanding the foregoing, no Lender shall be permitted
to assign or transfer any portion of its rights and obligations under this
Agreement to an Ineligible Institution.


(iii)       Subject to acceptance and recording
thereof pursuant to paragraph (b)(v) below, from and after the
effective date specified in each Assignment and Acceptance the Assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Acceptance, be released from
its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender’s rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.15, 2.16, 2.17 and 9.05).  Any
assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this Section 9.04 shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with paragraph (c) of this
Section 9.04.


 


(iv)       The Administrative Agent, acting for this
purpose as an agent of the Borrowers, shall maintain at one of its offices a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amount of the Loans and Revolving L/C – BA Exposure owing to, each
Lender pursuant to the terms hereof from time to time (the “Register”).  The
entries in the Register shall be conclusive, and the Borrowers, the
Administrative Agent, the Issuing Bank and the Lenders may treat each person
whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary.  In addition, the Administrative Agent shall maintain on the Register
information regarding the designation, and revocation of designation, of any
Lender as Defaulting Lender.  The Register shall be available for inspection by the Borrowers, the Issuing Bank and
any Lender, at any reasonable time and from time to time upon reasonable prior
notice.







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(v)        Upon its receipt of a duly completed
Assignment and Acceptance executed by an assigning Lender and an Assignee, the
Assignee’s completed Administrative Questionnaire (unless the Assignee shall
already be a Lender hereunder), all applicable tax forms, the processing and
recordation fee referred to in paragraph (b) of this Section and any
written consent to such assignment required by paragraph (b) of this
Section, the Administrative Agent shall promptly accept such Assignment and
Acceptance and record the information contained therein in the Register.  No
assignment, whether or not evidenced by a promissory note, shall be effective
for purposes of this Agreement unless it has been recorded in the Register as
provided in this paragraph (b)(v).


 


(c)               
(i)  Any Lender may, without the consent of the Company or the
Administrative Agent, sell participations to one or more banks or other
entities (other than a Defaulting Lender) (a “Participant”) in all or a
portion of such Lender’s rights and obligations under this Agreement (including
all or a portion of its Commitments and the Loans owing to it); provided,
that (A) such Lender’s obligations under this Agreement shall remain
unchanged, (B) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (C) the
Borrowers, the Administrative Agent, the Issuing Bank and the other Lenders
shall continue to deal solely and directly with such Lender in connection with
such Lender’s rights and obligations under this Agreement.  Any agreement pursuant
to which a Lender sells such a participation shall provide that such Lender
shall retain the sole right to enforce this Agreement and the other Loan
Documents and to approve any amendment, modification or waiver of any provision
of this Agreement and the other Loan Documents; provided, that
(x) such agreement may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver that
(1) requires the consent of each Lender directly affected thereby pursuant
to Section 9.04(a)(i) or clauses (i), (ii), (iii), (iv),
(v) or (vi) of the first proviso to Section 9.08(b) and
(2) directly affects such Participant and (y) no other agreement with
respect to amendment, modification or waiver may exist between such Lender and
such Participant.  Subject to paragraph (c)(ii) of this Section 9.04,
the Borrowers agree that each Participant shall be entitled to the benefits of
Sections 2.15, 2.16 and 2.17 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this
Section 9.04.  To the extent permitted by law, each Participant also shall
be entitled to the benefits of Section 9.06 as though it were a Lender, provided 
such Participant shall be subject to Section 2.18(c) as though it were a
Lender.


            (ii)        A Participant shall not be
entitled to receive any greater payment under Section 2.15, 2.16 or 2.17
than the applicable Lender would have been entitled to receive with respect to
the participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Company’s prior written
consent.  A Participant shall not be entitled to the benefits of
Section 2.17 to the extent such Participant fails to comply with
Section 2.17(e) and (f) as though it were a Lender.


 


(d)              
Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement to secure obligations of such
Lender, including any pledge or assignment to secure obligations to a Federal
Reserve Bank, and this Section 9.04 shall 







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not
apply to any such pledge or assignment of a security interest; provided,
that no such pledge or assignment of a security interest shall release a Lender
from any of its obligations hereunder or substitute any such pledgee or
Assignee for such Lender as a party hereto.


(e)               
The Borrowers, upon receipt of written notice from the relevant Lender,
agree to issue Notes to any Lender requiring Notes to facilitate transactions
of the type described in paragraph (d) above.


(f)               
Notwithstanding the foregoing, any Conduit Lender may assign any or all
of the Loans it may have funded hereunder to its designating Lender without the
consent of the Company or the Administrative Agent.  Each of Holdings, the
Borrowers, each Lender and the Administrative Agent hereby confirms that it
will not institute against a Conduit Lender or join any other person in
instituting against a Conduit Lender any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding under any state bankruptcy or
similar law, for one year and one day after the payment in full of the latest
maturing commercial paper note issued by such Conduit Lender; provided,
however, that each Lender designating any Conduit Lender hereby
agrees to indemnify, save and hold harmless each other party hereto and each
Loan Party for any loss, cost, damage or expense arising out of its inability
to institute such a proceeding against such Conduit Lender during such period
of forbearance.


(g)              
If the Company wishes to replace the Loans or Commitments under the
Revolving Facility with ones having different terms, it shall have the option,
with the consent of the Administrative Agent, and subject to at least three
Business Days’ advance notice to the Lenders under the Revolving Facility,
instead of prepaying the Loans or reducing or terminating the Commitments to be
replaced, to (i) (A) with respect to all Loans and Commitments held by
Lenders who are not then Defaulting Lenders, require all such Lenders under the
Revolving Facility to assign all such Loans or Commitments to the
Administrative Agent or its designees and (B) with respect to all Loans
and Commitments held by Lenders who are then Defaulting Lenders, and
notwithstanding anything to the contrary in Section 2.08, 2.18 or otherwise
in this Agreement, prepay all amounts outstanding under any Loans held by such
Defaulting Lenders, and terminate and cancel the Commitments held by such
Defaulting Lenders; and (ii) amend the terms of all such Loans and
Commitments so assigned pursuant to the preceding clause (i)(A) in
accordance with Section 9.08 (with such replacement, if applicable, being
deemed to have been made pursuant to Section 9.08(d)).  Pursuant to any
such assignment, all Loans and Commitments to be replaced, terminated, canceled
and/or repaid pursuant to this Section 9.04(g) shall be purchased or
repaid at par (allocated among the Lenders under the Revolving Facility in the
same manner as would be required if such Loans were being optionally prepaid or
such Commitments were being optionally reduced or terminated by the Borrowers),
accompanied by payment of any accrued interest and fees thereon and any other
amounts owing pursuant to Section 9.05(b).  By receiving such purchase
price, the Lenders under the Revolving Facility shall automatically be deemed
to have assigned the Loans or Commitments under the Revolving Facility pursuant
to the terms of the form of Assignment and Acceptance attached hereto as Exhibit A,
and accordingly no other action by such Lenders shall be required in connection
therewith.  The provisions of this paragraph (g) are intended to
facilitate the maintenance of the perfection and priority of existing security
interests in the Collateral during any such replacement.


 







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(h)              
Notwithstanding the foregoing, no assignment may be made to an
Ineligible Institution without the prior written consent of the Company.


SECTION 9.05 Expenses;
Indemnity


.  


(a)    The
Borrowers agree to pay (i) all reasonable out‐of‐pocket
expenses (including Other Taxes) incurred by the Administrative Agent in
connection with the preparation of this Agreement and the other Loan Documents,
or by the Administrative Agent in connection with the syndication of the
Commitments or the administration of this Agreement (including reasonable
expenses incurred in connection with due diligence, to the extent incurred with
the reasonable prior approval of the Company and the reasonable fees,
disbursements and charges for no more than one counsel in each jurisdiction
where Collateral is located) or in connection with the administration of this
Agreement and any amendments, modifications or waivers of the provisions hereof
or thereof (whether or not the Transactions hereby contemplated shall be
consummated), including the reasonable fees, charges and disbursements of
Shearman & Sterling LLP, counsel to the Administrative Agent, the
Collateral Agent and the Joint Lead Arrangers, and, if necessary, the
reasonable fees, charges and disbursements of one local counsel per
jurisdiction; (ii) all reasonable out-of-pocket expenses incurred by the
Administrative Agent, the Collateral Agent or the Joint Lead Arrangers for
(A) the costs of appraisals, inspections and verifications of the
Collateral, including travel, lodging, and meals for inspections of the
Collateral and the Loan Parties’ operations by the Administrative Agent or the
Collateral Agent, plus the Administrative Agent’s then customary charge for
field examinations and audits and the preparation of reports thereof (such
charge is currently $850 per day (or portion thereof) for each agent or
employee of the Administrative Agent with respect to each field examination or
audit), (B) the costs and expenses of forwarding loan proceeds, collecting
checks, and other items of payment, and establishing and maintaining Payment
Accounts and lock boxes, and (C) the costs and expenses of lien searches,
taxes, fees and other charges for filing financing statements, and other
actions to maintain, preserve and protect the Collateral and the Collateral
Agent’s Lien thereon; provided, that so long as no Default or Event of
Default shall have occurred and be continuing, such costs, expenses and charges
described in clauses (A)-(C) shall not exceed (x) $100,000 per year
in any year that the Collateral Agent conducts no more than one Collateral
Audit and one appraisal of the Collateral and (y) $150,000 per year  in
any year that the Collateral Agent conducts more than one Collateral Audit and
appraisal of the Collateral; (iii) sums paid or incurred to pay any amount
or take any action required of any Borrower or other Loan Party under the Loan
Documents that such Borrower or Loan Party fails to take; and (iv) all out‐of‐pocket
expenses (including Other Taxes) incurred by the Administrative Agent or
any Lender in connection with the enforcement or protection of their rights in
connection with this Agreement and the other Loan Documents, in connection with
the Loans made or the Letters of Credit issued hereunder, including the fees,
charges and disbursements of counsel for the Administrative Agent (including
any special and local counsel).


(b)              
The Borrowers agree to indemnify the Administrative Agent, the
Collateral Agent, the Joint Lead Arrangers, each Issuing Bank, each Lender,
each of their respective Affiliates and each of their respective directors,
trustees, officers, employees, agents, trustees and advisors (each such person
being called an “Indemnitee”) against, and to hold each Indemnitee 







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harmless from, any and all losses, claims, damages,
liabilities and related expenses, including reasonable counsel fees, charges
and disbursements (except the allocated costs of in-house counsel), incurred by
or asserted against any Indemnitee arising out of, in any way connected with,
or as a result of (i) the execution or delivery of this Agreement or any
other Loan Document (including, without limitation, the Intercreditor Agreement
and the Senior Lender Intercreditor Agreement) or any agreement or instrument
contemplated hereby or thereby, the performance by the parties hereto and
thereto of their respective obligations thereunder or the consummation of the
Transactions and the other transactions contemplated hereby, (ii) the use
of the proceeds of the Loans or the use of any Letter of Credit or Bankers’
Acceptance or (iii) any claim, litigation, investigation or proceeding
relating to any of the foregoing, whether or not any Indemnitee is a party
thereto and regardless of whether such matter is initiated by a third party or
by Holdings, the Borrowers or any of their subsidiaries or Affiliates; provided,
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses are
determined by a final, non‐appealable judgment of a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct
of such Indemnitee (for purposes of this proviso only, each of the
Administrative Agent, the Joint Lead Arrangers, any Issuing Bank or any Lender
shall be treated as several and separate Indemnitees, but each of them together
with its respective Related Parties, shall be treated as a single Indemnitee). 
Subject to and without limiting the generality of the foregoing sentence, the
Borrowers agree to indemnify each Indemnitee against, and hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and related expenses,
including reasonable counsel or consultant fees, charges and disbursements
(limited to not more than one counsel, plus, if necessary, one local counsel
per jurisdiction) (except the allocated costs of in-house counsel), incurred by
or asserted against any Indemnitee arising out of, in any way connected with,
or as a result of (A) any claim related in any way to Environmental Laws
and Holdings, any Borrower or any of their Subsidiaries, or (B) any actual
or alleged presence, Release or threatened Release of Hazardous Materials at,
under, on or from any Property; provided, that such indemnity
shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted
from the gross negligence or willful misconduct of such Indemnitee or any of
its Related Parties.  None of the Indemnitees (or any of their respective
affiliates) shall be responsible or liable to the Fund, Holdings, the Borrowers
or any of their respective subsidiaries, Affiliates or stockholders or any
other person or entity for any special, indirect, consequential or punitive
damages, which may be alleged as a result of the Facility or the Transactions. 
The provisions of this Section 9.05 shall remain operative and in full
force and effect regardless of the expiration of the term of this Agreement,
the consummation of the transactions contemplated hereby, the repayment of any
of the Obligations, the invalidity or unenforceability of any term or provision
of this Agreement or any other Loan Document, or any investigation made by or
on behalf of the Administrative Agent, any Issuing Bank or any Lender.  All
amounts due under this Section 9.05 shall be payable on written demand
therefor accompanied by reasonable documentation with respect to any
reimbursement, indemnification or other amount requested.


(c)               
Except as expressly provided in Section 9.05(a) with respect to
Other Taxes, which shall not be duplicative with any amounts paid pursuant to
Section 2.17, this Section 9.05 shall not apply to Taxes.


 







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(d)              
To the fullest extent permitted by applicable law, Holdings and the Borrowers
shall not assert, and hereby waive, any claim against any Indemnitee, on any
theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in connection with, or
as a result of, this Agreement, any other Loan Document or any agreement or
instrument contemplated hereby, the transactions contemplated hereby or
thereby, any Loan or Letter of Credit or the use of the proceeds thereof.  No
Indemnitee shall be liable for any damages arising from the use by unintended
recipients of any information or other materials distributed by it through
telecommunications, electronic or other information transmission systems in
connection with this Agreement or the other Loan Documents or the transactions
contemplated hereby or thereby.


(e)               
The agreements in this Section 9.05 shall survive the resignation
of the Administrative Agent, any Issuing Bank, the replacement of any Lender,
the termination of the Commitments and the repayment, satisfaction or discharge
of all the other Obligations and the termination of this Agreement.


                        SECTION
9.06 Right of Set‐off


.  If an Event of Default shall have occurred and be
continuing, each Lender and each Issuing Bank is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by such Lender
or such Issuing Bank to or for the credit or the account of Holdings, the
Borrowers or any Subsidiary against any of and all the obligations of Holdings
or the Borrowers now or hereafter existing under this Agreement or any other
Loan Document held by such Lender or such Issuing Bank , irrespective of
whether or not such Lender or such Issuing Bank shall have made any demand
under this Agreement or such other Loan Document and although the obligations
may be unmatured.  The rights of each Lender and each Issuing Bank under this
Section 9.06 are in addition to other rights and remedies (including other
rights of set‐off) that such Lender or such Issuing Bank may have.


                        SECTION
9.07 Applicable Law


.  THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER
THAN LETTERS OF CREDIT AND AS EXPRESSLY SET FORTH IN OTHER LOAN DOCUMENTS)
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF
NEW YORK.


                        SECTION
9.08 Waivers; Amendment


.


(a)    No
failure or delay of the Administrative Agent, any Issuing Bank or any Lender in
exercising any right or power hereunder or under any Loan Document shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power.  The rights and remedies of the
Administrative Agent, each Issuing Bank and the Lenders hereunder and under the
other Loan Documents are cumulative and are not exclusive of any rights or
remedies that they would otherwise have.  No waiver of any provision of this
Agreement or any other Loan Document or consent to any departure by Holdings,
any Borrower or any other Loan Party therefrom shall in any event be effective
unless the same shall be permitted by paragraph (b) below, and then such
waiver or consent shall be 







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effective only in the
specific instance and for the purpose for which given.  No notice or demand on
Holdings, any Borrower or any other Loan Party in any case shall entitle such
person to any other or further notice or demand in similar or other
circumstances.


(b)              
Neither this Agreement nor any other Loan Document nor any provision
hereof or thereof may be waived, amended or modified except (x) as
provided in Section 2.21, (y) in the case of this Agreement, pursuant
to an agreement or agreements in writing entered into by Holdings, the
Borrowers and the Required Lenders, and (z) in the case of any other Loan
Document, pursuant to an agreement or agreements in writing entered into by
each party thereto and the Administrative Agent (or, in the case of any
Security Documents, the Collateral Agent if so provided therein) and consented
to by the Required Lenders; provided, however, that no
such agreement shall


(i)         decrease or
forgive the principal amount of, or extend the final maturity of, or decrease
the rate of interest on, any Loan or any L/C – BA Disbursement, or extend the
stated expiration of any Letter of Credit or Bankers’ Acceptance beyond the
Revolving Facility Maturity Date, without the prior written consent of each
Lender directly affected thereby, except as provided in Section 2.05(c),


(ii)        increase or
extend the Commitment of any Lender or decrease the Commitment Fees or L/C-BA
Participation Fees or other fees of any Lender without the prior written
consent of such Lender (it being understood that waivers or modifications of
conditions precedent, covenants, Defaults or Events of Default or of a
mandatory reduction in the aggregate Commitments shall not constitute an increase
of the Commitments of any Lender),


(iii)       extend any date
on which payment of interest on any Loan or any L/C – BA Disbursement or
any Fees is due, without the prior written consent of each Lender adversely
affected thereby,


(iv)       amend the
provisions of Section 5.02 of the Collateral Agreement in a manner that
would by its terms alter the pro rata sharing of payments required
thereby, without the prior written consent of each Lender adversely affected
thereby,


(v)        amend or modify
the provisions of this Section 9.08 or the definition of the term
“Required Lenders” or any other provision hereof specifying the number or
percentage of Lenders required to waive, amend or modify any rights hereunder
or make any determination or grant any consent hereunder, without the prior
written consent of each Lender adversely affected thereby (it being understood
that, with the consent of the Required Lenders, additional extensions of credit
pursuant to this Agreement may be included in the determination of the Required
Lenders on substantially the same basis as the Loans and Commitments are
included on the Closing Date),


(vi)       release all or
substantially all the Collateral or release any of Holdings, the Company or all
or substantially all of the Subsidiary Loan Parties from their respective
Guarantees under the Collateral Agreement, unless, in the case of a Subsidiary
Loan Party, all or substantially all the Equity Interests of such Subsidiary
Loan Party is sold or 







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otherwise disposed of in a
transaction permitted by this Agreement, without the prior written consent of
each Lender, 


(vii)      increase any of
the percentages set forth in the definition of the Borrowing Base without the
consent of all of the Lenders; or


(viii)     increase the Incremental
Revolving Facility Commitment above $150 million or add any other
Indebtedness under the Facility without the prior written consent of each
Lender;


provided,
further, that no such agreement shall amend, modify or otherwise affect
the rights or duties of the Administrative Agent or an Issuing Bank hereunder
without the prior written consent of the Administrative Agent or such Issuing
Bank acting as such at the effective date of such agreement, as applicable. 
Each Lender shall be bound by any waiver, amendment or modification authorized by
this Section 9.08 and any consent by any Lender pursuant to this
Section 9.08 shall bind any assignee of such Lender.


(c)               
Without the consent of the Syndication Agent, the Documentation Agent or
any Joint Lead Arranger or any Lender or Issuing Bank, the Loan Parties and the
Administrative Agent may (in their respective sole discretion, or shall, to the
extent required by any Loan Document) enter into any amendment, modification or
waiver of any Loan Document, or enter into any new agreement or instrument, to
effect the granting, perfection, protection, expansion or enhancement of any
security interest in any Collateral or additional property to become Collateral
for the benefit of the Secured Parties, or as required by local law to give
effect to, or protect any security interest for the benefit of the Secured
Parties, in any property or so that the security interests therein comply with
applicable law.


(d)              
Notwithstanding the foregoing, this Agreement may be amended (or amended
and restated) with the written consent of the Required Lenders, the
Administrative Agent, Holdings and the Borrowers (i) to add one or more
additional credit facilities to this Agreement and to permit the extensions of
credit from time to time outstanding thereunder and the accrued interest and
fees in respect thereof to share ratably in the benefits of this Agreement and
the other Loan Documents with the Revolving Loans and the accrued interest and
fees in respect thereof and (ii) to include appropriately the Lenders
holding such credit facilities in any determination of the Required Lenders.


(e)               
Notwithstanding the foregoing, technical and conforming modifications to
the Loan Documents may be made with the consent of the Borrowers and the
Administrative Agent to the extent necessary to integrate any Incremental
Revolving Facility Commitments on substantially the same basis as the Revolving
Loans.


                        SECTION
9.09 Interest Rate Limitation


.  Notwithstanding anything herein to the contrary, if at
any time the applicable interest rate, together with all fees and charges that
are treated as interest under applicable law (collectively, the “Charges”),
as provided for herein or in any other document executed in connection
herewith, or otherwise contracted for, charged, received, taken or reserved by
any Lender or any Issuing Bank, shall exceed the maximum lawful rate (the “Maximum
Rate”) that may be contracted for, charged, taken, received or reserved by such Lender in accordance with applicable law, the rate
of interest payable hereunder, together with all Charges payable to such Lender
or such Issuing Bank, shall be limited to the Maximum Rate; provided,
that such excess amount shall be paid to such Lender or such Issuing Bank on
subsequent payment dates to the extent not exceeding the legal limitation.







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                        SECTION
9.10 Entire Agreement


.  This Agreement, the other Loan Documents and the
agreements regarding certain Fees referred to herein constitute the entire
contract between the parties relative to the subject matter hereof.  Any
previous agreement among or representations from the parties or their
Affiliates with respect to the subject matter hereof is superseded by this
Agreement and the other Loan Documents.  Notwithstanding the foregoing, the Fee
Letter shall survive the execution and delivery of this Agreement and remain in
full force and effect.  Nothing in this Agreement or in the other Loan
Documents, expressed or implied, is intended to confer upon any party other
than the parties hereto and thereto any rights, remedies, obligations or
liabilities under or by reason of this Agreement or the other Loan Documents.


                        SECTION
9.11 WAIVER OF JURY TRIAL


.  EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS.  EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 9.11.


                        SECTION
9.12 Severability 


.  In the event any one or more of the provisions
contained in this Agreement or in any other Loan Document should be held
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein shall
not in any way be affected or impaired thereby.  The parties shall endeavor in
good‐faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.


                        SECTION
9.13 Counterparts 


.  This Agreement may be executed in two or more counterparts,
each of which shall constitute an original but all of which, when taken
together, shall constitute but one contract, and shall become effective as
provided in Section 9.03.  Delivery of an executed counterpart to this
Agreement by facsimile transmission (or other electronic transmission pursuant
to procedures approved by the Administrative Agent) shall be as effective as
delivery of a manually signed original.


                        SECTION
9.14 Headings 


.  Article and Section headings and the Table
of Contents used herein are for convenience of reference only, are not part of
this Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.


 







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                        SECTION
9.15 Jurisdiction; Consent to Service of Process


.


(a)    Each
of the parties hereto hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New York State
court or federal court of the United States of America sitting in New York
City, and any appellate court from any thereof (collectively, “New York
Courts”), in any action or proceeding arising out of or relating to this
Agreement or the other Loan Documents, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in such New York State or, to the extent permitted by law, in
such federal court.  Each of the parties hereto agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.  Nothing in this Agreement shall affect any right that any
party may otherwise have to bring any action or proceeding relating to this
Agreement or any of the other Loan Documents in the courts of any jurisdiction,
except that each of the Loan Parties agrees that (a) it will not bring any
such action or proceeding in any court other than New York Courts (it being
acknowledged and agreed by the parties hereto that any other forum would be
inconvenient and inappropriate in view of the fact that more of the Lenders who
would be affected by any such action or proceeding have contacts with the State
of New York than any other jurisdiction), and (b) in any such action or
proceeding brought against any Loan Party in any other court, it will not
assert any cross-claim, counterclaim or setoff, or seek any other affirmative
relief, except to the extent that the failure to assert the same will preclude
such Loan Party from asserting or seeking the same in the New York Courts.


(b)              
Each of the parties hereto hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Agreement or the
other Loan Documents in any New York State or federal court.  Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.


                        SECTION
9.16 Confidentiality 


.  Each of the Lenders, each Issuing Bank and each of the
Agents agrees that it shall maintain in confidence any information relating to
Holdings, the Borrowers and any Subsidiary furnished to it by or on behalf of
Holdings, the Borrowers or any Subsidiary (other than information that (a) has
become generally available to the public other than as a result of a disclosure
by such party, (b) has been independently developed by such Lender, such
Issuing Bank or such Agent without violating this Section 9.16 or
(c) was available to such Lender, such Issuing Bank or such Agent from a
third party having, to such person’s knowledge, no obligations of
confidentiality to Holdings, the Borrowers or any other Loan Party) and shall
not reveal the same other than to its directors, trustees, officers, employees
and advisors with a need to know or to any person that approves or administers
the Loans on behalf of such Lender (so long as each such person shall have been
instructed to keep the same confidential in accordance with this
Section 9.16), except:  (A) to the extent necessary to comply with law
or any legal process or the requirements of any Governmental Authority, the
National Association of Insurance Commissioners or of any securities exchange
on which securities of the disclosing party or any Affiliate of the disclosing
party are listed or traded, (B) as part of normal reporting or review procedures to, or examinations by, Governmental
Authorities or self‐regulatory authorities, including the National
Association of Insurance Commissioners or the National Association of
Securities Dealers, Inc., (C) to its parent companies, Affiliates or
auditors (so long as each such person shall have been instructed to keep the
same confidential in accordance with this Section 9.16), (D) in order
to enforce its rights under any Loan Document in a legal proceeding,
(E) to any pledge under Section 9.04(d) or any other prospective
assignee of, or prospective Participant in, any of its rights under this
Agreement (so long as such person shall have been instructed to keep the same
confidential in accordance with this Section 9.16) and (F) to
any direct or indirect contractual counterparty in Swap Agreements or such
contractual counterparty’s professional advisor (so long as such contractual
counterparty or professional advisor to such contractual counterparty agrees to
be bound by the provisions of this Section 9.16).







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                        SECTION
9.17 Platform; Borrower Materials


.  The Borrowers hereby acknowledge that (a) the
Administrative Agent and/or the Joint Lead Arrangers will make available to the
Lenders and the Issuing Bank materials and/or information provided by or on
behalf of the Borrowers hereunder (collectively, “Borrower Materials”)
by posting the Borrower Materials on IntraLinks or another similar electronic
system (the “Platform”), and (b) certain of the Lenders may be
“public-side” Lenders (i.e., Lenders that do not wish to receive material
non-public information with respect to the Borrowers or their securities)
(each, a “Public Lender”).  Each Borrower hereby agrees that it will use
commercially reasonable efforts to identify that portion of the Borrower
Materials that may be distributed to the Public Lenders and that (i) all
such Borrower Materials shall be clearly and conspicuously marked “PUBLIC”
which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently
on the first page thereof, (ii) by marking Borrower Materials “PUBLIC,”
the Borrowers shall be deemed to have authorized the Administrative Agent, the
Joint Lead Arrangers, the Issuing Bank and the Lenders to treat such Borrower
Materials as either publicly available information or not material information
(although it may be sensitive and proprietary) with respect to the Borrowers or
their securities for purposes of United States Federal and state securities
laws, (iii) all Borrower Materials marked “PUBLIC” are permitted to be
made available through a portion of the Platform designated “Public Investor;”
and (iv) the Administrative Agent and the Joint Lead Arrangers shall be
entitled to treat any Borrower Materials that are not marked “PUBLIC” as being
suitable only for posting on a portion of the Platform not designated “Public
Investor.”


                        SECTION
9.18 Release of Liens and Guarantees


.  In the event that any Loan Party conveys, sells,
leases, assigns, transfers or otherwise disposes of all or any portion of any
of the Equity Interests or assets of any Subsidiary Loan Party to a person that
is not (and is not required to become) a Loan Party in a transaction not
prohibited by Section 6.05, the Collateral Agent shall promptly (and the Lenders
hereby authorize the Collateral Agent to) take such action and execute any such
documents as may be reasonably requested by Holdings or the Borrowers and at
the Borrowers’ expense to release any Liens created by any Loan Document in
respect of such Equity Interests or assets, and, in the case of a disposition
of the Equity Interests of any Subsidiary Loan Party in a transaction permitted
by Section 6.05 and as a result of which such Subsidiary Loan Party would
cease to be a Subsidiary, terminate such Subsidiary Loan Party’s obligations
under its Guarantee.  In addition, the Collateral Agent agrees to take such
actions as are reasonably requested by Holdings or the Borrowers and at the
Borrowers’ expense to terminate the Liens and security interests created by the
Loan Documents when all the Obligations (other than contingent indemnification
Obligations with respect to which no claim has been made) are paid in full and
all Letters of Credit and Commitments are
terminated.  Any representation, warranty or covenant contained in any Loan
Document relating to any such Equity Interests, asset or subsidiary of Holdings
shall no longer be deemed to be made once such Equity Interests or asset is so
conveyed, sold, leased, assigned, transferred or disposed of. 







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SECTION 9.19. Judgment Currency.  If, for the
purposes of obtaining judgment in any court, it is necessary to convert a sum
due hereunder or any other Loan Document in one currency into another currency,
the rate of exchange used shall be that at which in accordance with normal
banking procedures the Administrative Agent could purchase the first currency
with such other currency on the Business Day preceding that on which final
judgment is given.  The obligation of the Borrowers in respect of any such sum
due from it to the Administrative Agent or the Lenders hereunder or under the
other Loan Documents shall, notwithstanding any judgment in a currency (the “Judgment
Currency”) other than that in which such sum is denominated in accordance
with the applicable provisions of this Agreement (the “Agreement Currency”),
be discharged only to the extent that on the Business Day following receipt by
the Administrative Agent of any sum adjudged to be so due in the Judgment
Currency, the Administrative Agent may in accordance with normal banking
procedures purchase the Agreement Currency with the Judgment Currency.  If the
amount of the Agreement Currency so purchased is less than the sum originally
due to the Administrative Agent from any Borrower in the Agreement Currency, such
Borrower agrees, as a separate obligation and notwithstanding any such
judgment, to indemnify the Administrative Agent or the Person to whom such
obligation was owing against such loss.  If the amount of the Agreement
Currency so purchased is greater than the sum originally due to the
Administrative Agent in such currency, the Administrative Agent agrees to
return the amount of any excess to such Borrower (or to any other Person who
may be entitled thereto under applicable law).


                        SECTION
9.20 USA PATRIOT Act Notice


.  Each Lender that is subject to the Act (as hereinafter
defined) and the Administrative Agent (for itself and not on behalf of any
Lender) hereby notifies the Borrowers that pursuant to the requirements of the
USA Patriot Act (Title III
of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), it is
required to obtain, verify and record information that identifies each Loan
Party, which information includes the name and address of each Loan Party and
other information that will allow such Lender or the Administrative Agent, as
applicable, to identify each Loan Party in accordance with the Act.  


                        SECTION
9.21 Joint and Several Liability


.  All Revolving Loans, upon funding, shall be deemed to
be jointly funded to and received by the Borrowers.  Each Borrower jointly and
severally agrees to pay, and shall be jointly and severally liable under this
Agreement for, all Obligations, regardless of the manner or amount in which
proceeds of Revolving Loans are used, allocated, shared, or disbursed by or
among the Borrowers themselves, or the manner in which an Agent and/or any
Lender accounts for such Revolving Loans or other extensions of credit on its
books and records.  Each Borrower shall be liable for all amounts due to an
Agent and/or any Lender under this Agreement, regardless of which Borrower
actually receives Revolving Loans or other extensions of credit hereunder or
the amount of such Revolving Loans and extensions of credit received or the
manner in which such Agent and/or such Lender accounts for such Revolving Loans
or other extensions of credit on its books and records.  Each Borrower’s
Obligations with respect to Revolving Loans and other extensions of credit made
to it, and such Borrower’s Obligations arising as a result of the joint and
several liability of such Borrower hereunder, with
respect to Loans made to the other Borrowers hereunder, shall be separate and
distinct obligations, but all such Obligations shall be primary obligations of
such Borrower.  The Borrowers acknowledge and expressly agree with the Agents
and each Lender that the joint and several liability of each Borrower is
required solely as a condition to, and is given solely as inducement for and in
consideration of, credit or accommodations extended or to be extended under the
Loan Documents to any or all of the other Borrowers and is not required or
given as a condition of extensions of credit to such Borrower.  Each Borrower’s
obligations under this Agreement and as an obligor under a Guaranty Agreement
shall be separate and distinct obligations.  Each Borrower’s obligations under
this Agreement shall, to the fullest extent permitted by law, be unconditional
irrespective of (i) the validity or enforceability, avoidance, or subordination
of the Obligations of any other Borrower or of any promissory note or other
document evidencing all or any part of the Obligations of any other Borrower,
(ii) the absence of any attempt to collect the Obligations from any other
Borrower, any Guarantor, or any other security therefor, or the absence of any
other action to enforce the same, (iii) the waiver, consent, extension,
forbearance, or granting of any indulgence by an Agent and/or any Lender with
respect to any provision of any instrument evidencing the Obligations of any other
Borrower or Guarantor, or any part thereof, or any other agreement now or
hereafter executed by any other Borrower or Guarantor and delivered to an Agent
and/or any Lender, (iv) the failure by an Agent and/or any Lender to take
any steps to perfect and maintain its security interest in, or to preserve its
rights to, any security or collateral for the Obligations of any other Borrower
or Guarantor, (v) an Agent’s and/or any Lender’s election, in any
proceeding instituted under the Bankruptcy Code, of the application of
Section 1111(b)(2) of the Bankruptcy Code, (vi) any borrowing or
grant of a security interest by any other Borrower, as debtor‐in‐possession
under Section 364 of the Bankruptcy Code, (vii) the disallowance of
all or any portion of an Agent’s and/or any Lender’s claim(s) for the
repayment of the Obligations of any other Borrower under Section 502 of
the Bankruptcy Code, or (viii) any other circumstances which might
constitute a legal or equitable discharge or defense of a guarantor or of any other
Borrower.  With respect to any Borrower’s Obligations arising as a result of
the joint and several liability of the Borrowers hereunder with respect to
Revolving Loans or other extensions of credit made to any of the other
Borrowers hereunder, such Borrower waives, until the Obligations shall have
been paid in full and this Agreement shall have been terminated, any right to
enforce any right of subrogation or any remedy which an Agent and/or any Lender
now has or may hereafter have against any other Borrower, any endorser or any
guarantor of all or any part of the Obligations, and any benefit of, and any
right to participate in, any security or collateral given to an Agent and/or
any Lender to secure payment of the Obligations or any other liability of any
Borrower to an Agent and/or any Lender.  Upon any Event of Default, the Agents
may proceed directly and at once, without notice, against any Borrower to
collect and recover the full amount, or any portion of the Obligations, without
first proceeding against any other Borrower or any other Person, or against any
security or collateral for the Obligations.  Each Borrower consents and agrees
that the Agents shall be under no obligation to marshal any assets in favor of
any Borrower or against or in payment of any or all of the Obligations. 
Notwithstanding anything to the contrary provided herein, until the
consummation of the merger of Covalence with and into Berry, with Berry
surviving, the amount of Obligations deemed funded to Berry and each of the Borrowers
that are subsidiaries of Berry, and the amount of Obligations for which such
Borrowers agree to pay and for which they shall be liable shall be limited to
the amount of such Obligations that such entities may incur pursuant to the
proviso of 







                                                                                168                                                                                










 








 








Section 4.03(a) of each of the Berry
Senior Subordinated Notes Indenture and the Original Second Lien Notes
Indenture.







                                                                                169                                                                                










 








 










                        SECTION
9.22 Contribution and Indemnification among the Borrowers


.  Each Borrower is obligated to repay the Obligations as
joint and several obligor under this Agreement.  To the extent that any
Borrower shall, under this Agreement as a joint and several obligor, repay any
of the Obligations constituting Revolving Loans made to another Borrower
hereunder or other Obligations incurred directly and primarily by any other
Borrower (an “Accommodation Payment”), then the Borrower making such
Accommodation Payment shall be entitled to contribution and indemnification
from, and be reimbursed by, each of the other Borrowers in an amount, for each
of such other Borrowers, equal to a fraction of such Accommodation Payment, the
numerator of which fraction is such other Borrower’s Allocable Amount (as
defined below) and the denominator of which is the sum of the Allocable Amounts
of all of the Borrowers.  As of any date of determination, the “Allocable
Amount” of each Borrower shall be equal to the maximum amount of liability
for Accommodation Payments which could be asserted against such Borrower
hereunder without (a) rendering such Borrower “insolvent” within the
meaning of Section 101 (31) of the Bankruptcy Code, Section 2 of the
Uniform Fraudulent Transfer Act (“UFTA”) or Section 2 of the
Uniform Fraudulent Conveyance Act (“UFCA”), (b) leaving such Borrower
with unreasonably small capital or assets, within the meaning of
Section 548 of the Bankruptcy Code, Section 4 of the UFTA, or
Section 5 of the UFCA, or (c) leaving such Borrower unable to pay its
debts as they become due within the meaning of Section 548 of the
Bankruptcy Code or Section 4 of the UFTA, or Section 5 of the UFCA. 
All rights and claims of contribution, indemnification, and reimbursement under
this Section shall be subordinate in right of payment to the prior payment
in full of the Obligations.  The provisions of this Section shall, to the extent
expressly inconsistent with any provision in any Loan Document, supersede such
inconsistent provision.


                        SECTION
9.23 Agency of Company for Each Other Borrower


.  Each of the other Borrowers irrevocably appoints the
Company as its agent for all purposes relevant to this Agreement, including the
giving and receipt of notices and execution and delivery of all documents,
instruments, and certificates contemplated herein (including, without
limitation, execution and delivery to the Agents of Borrowing Base
Certificates,  Borrowing Requests and Interest Election Requests) and all
modifications hereto.  Any acknowledgment, consent, direction, certification,
or other action which might otherwise be valid or effective only if given or
taken by all or any of the Borrowers or acting singly, shall be valid and
effective if given or taken only by the Company, whether or not any of the
other Borrowers joins therein, and the Agents and the Lenders shall have no
duty or obligation to make further inquiry with respect to the authority of the
Company under this Section 9.23, provided that nothing in this
Section 9.23 shall limit the effectiveness of, or the right of the Agents
and the Lenders to rely upon, any notice (including without limitation a
Borrowing Request or an Interest Election Request), document, instrument,
certificate, acknowledgment, consent, direction, certification, or other action
delivered by any Borrower pursuant to this Agreement.  


                        SECTION
9.24 Additional Borrowers


.  Subject to any applicable limitations set forth in the
Security Documents, upon the request of the Company from time to time, any
direct or indirect Domestic Subsidiary formed or otherwise purchased or
acquired after the Amendment Effective Date (including pursuant to a Permitted
Business Acquisition), or that ceases to constitute
an Unrestricted Subsidiary after the Amendment Effective Date, may be added as
an Other Borrower hereunder, effective upon the execution and delivery to the
Administrative Agent of (a) by such Domestic Subsidiary, (i) a Borrower
Joinder Agreement and amendments or joinders to any outstanding promissory
notes issued under Section 2.09(e) and (ii) any other Security
Documents and other documents that such Domestic Subsidiary would be required
to deliver pursuant to the Collateral and Guarantee Requirement if it were
becoming a guarantor (with such modifications thereto as are reasonably
necessary to accommodate such Domestic Subsidiary becoming a Borrower and not a
Guarantor), and (b) by Holdings and each Subsidiary Loan Party, reaffirmations
from each of their respective Guarantees under the Loan Documents. For the
avoidance of doubt, Other Borrowers designated as such prior to the Amendment
Effective Date shall be Other Borrowers hereunder.







                                                                                170                                                                                










 








 










SECTION 9.25 Express Waivers By Borrowers In Respect
of Cross Guaranties and Cross Collateralization.  Each Borrower agrees as
follows:


(a)        Each
Borrower hereby waives:  (i) notice of acceptance of this Agreement;
(ii) notice of the making of any Revolving Loans, the issuance of any
Letter of Credit or any other financial accommodations made or extended under
the Loan Documents or the creation or existence of any Obligations;
(iii) notice of the amount of the Obligations, subject, however, to such
Borrower’s right to make inquiry of the Administrative Agent to ascertain the
amount of the Obligations at any reasonable time; (iv) notice of any
adverse change in the financial condition of any other Borrower or of any other
fact that might increase such Borrower’s risk with respect to such other
Borrower under the Loan Documents; (v) notice of presentment for payment,
demand, protest, and notice thereof as to any promissory notes or other
instruments among the Loan Documents; and (vii) all other notices (except
if such notice is specifically required to be given to such Borrower hereunder
or under any of the other Loan Documents to which such Borrower is a party) and
demands to which such Borrower might otherwise be entitled;


(b)        Each
Borrower hereby waives the right by statute or otherwise to require an Agent or
any Lender to institute suit against any other Borrower or to exhaust any
rights and remedies which an Agent or any Lender has or may have against any
other Borrower.  Each Borrower further waives any defense arising by reason of
any disability or other defense of any other Borrower (other than the defense
that the Obligations shall have been fully and finally performed and paid) or
by reason of the cessation from any cause whatsoever of the liability of any
such Borrower in respect thereof.  


(c)        Each
Borrower hereby waives and agrees not to assert against an Agent, any Lender,
or any Issuing Bank: (i) any defense (legal or equitable), set‐off,
counterclaim, or claim which such Borrower may now or at any time hereafter
have against any other Borrower or any other party liable under the Loan
Documents; (ii) any defense, set‐off, counterclaim, or claim of any
kind or nature available to any other Borrower against an Agent, any Lender, or
any Issuing Bank, arising directly or indirectly from the present or future
lack of perfection, sufficiency, validity, or enforceability of the Obligations
or any security therefor; (iii) any right or defense arising by reason of
any claim or defense based upon an election of remedies by an Agent, any
Lender, or any Issuing Bank under any 







                                                                                171                                                                                










 








 








applicable law;
(iv) the benefit of any statute of limitations affecting any other
Borrower’s liability hereunder;


(d)       Each
Borrower consents and agrees that, without notice to or by such Borrower and
without affecting or impairing the obligations of such Borrower hereunder, the
Agents may (subject to any requirement for consent of any of the Lenders to the
extent required by this Agreement), by action or inaction: (i) compromise,
settle, extend the duration or the time for the payment of, or discharge the
performance of, or may refuse to or otherwise not enforce the Loan Documents;
(ii) release all or any one or more parties to any one or more of the Loan
Documents or grant other indulgences to any other Borrower in respect thereof;
(iii) amend or modify in any manner and at any time (or from time to
time) any of the Loan Documents; or (iv) release or substitute any
Person liable for payment of the Obligations, or enforce, exchange, release, or
waive any security for the Obligations or any Guaranty of the Obligations;


(e)        Each
Borrower represents and warrants to the Agents and the Lenders that such
Borrower is currently informed of the financial condition of all other
Borrowers and all other circumstances which a diligent inquiry would reveal and
which bear upon the risk of nonpayment of the Obligations.  Each Borrower
further represents and warrants that such Borrower has read and understands the
terms and conditions of the Loan Documents.  Each Borrower agrees that neither
the Agents, any Lender, nor any Issuing Bank has any responsibility to inform
any Borrower of the financial condition of any other Borrower or of any other
circumstances which bear upon the risk of nonpayment or nonperformance of the
Obligations. 


SECTION 9.26 Intercreditor
Agreements and Collateral Agreement


.  Each Lender hereunder (a) consents to the
priority and/or subordination of Liens provided for in the Intercreditor
Agreement, (b) consents to the priority and/or subordination of Liens
provided for in the Senior Lender Intercreditor Agreement, (c) agrees that
it will be bound by and will take no actions contrary to the provisions of the
Intercreditor Agreement or the Senior Lender Intercreditor Agreement,
(d) authorizes and instructs the Collateral Agent to enter into the
Intercreditor Agreement as First Lien Intercreditor Agent and on behalf of such
Lender, (e) authorizes and instructs the Administrative Agent and the
Collateral Agent to enter into the Senior Lender Intercreditor Agreement as
Revolving Facility Administrative Agent and Collateral Agent, respectively, and
on behalf of such Lender, and (f) consents to the amendment of the First
Lien Guarantee and Collateral Agreement under (and as defined in) the
Existing Credit Agreement, in the form of the Collateral Agreement referred to
herein.  The foregoing provisions are intended as an inducement to the Lenders
to extend credit and such Lenders are intended third party beneficiaries of
such provisions and the provisions of the Intercreditor Agreement and the
Senior Lender Intercreditor Agreement.


[SIGNATURE PAGES FOLLOW]


 


 
















                                                                                172                                                                                










 








 








IN WITNESS WHEREOF, the parties
hereto have caused this Agreement to be duly executed by their respective
authorized officers as of the day and year first written above.


COVALENCE SPECIALTY MATERIALS
CORP.


By:                  

        Name:

        Title:
















                                                                                173                                                                                










 








 








 


BERRY PLASTICS GROUP, INC.


By:                  

        Name:

        Title:
















	

                                                                                                                                                                                                                                                                  


  


















[Signature Page to the Amended and Restated Revolving Credit Agreement]










 








 












COVALENCE SPECIALTY ADHESIVES LLC


By:   COVALENCE SPECIALTY
MATERIALS CORP., 

         its sole member and manager


By:_________________________________

               Name:

               Title:


 






COVALENCE SPECIALTY COATINGS LLC


By:   COVALENCE SPECIALTY
MATERIALS CORP., 

         its sole member and manager


By:_________________________________

               Name:

               Title:


 




















	

                                                                                                                                                                                                                                                                  


  


















[Signature Page to the Amended and Restated Revolving Credit Agreement]










 








 








 


BERRY PLASTICS HOLDING
CORPORATION


BERRY PLASTICS
CORPORATION


AEROCON, INC.


BERRY IOWA CORPORATION


BERRY PLASTICS DESIGN
CORPORATION


BERRY PLASTICS TECHNICAL
SERVICES, INC.


BERRY STERLING
CORPORATION


CARDINAL PACKAGING, INC.


CPI HOLDING CORPORATION


KNIGHT PLASTICS, INC.


PACKERWARE CORPORATION


PESCOR, INC.


POLY-SEAL CORPORATION


VENTURE PACKAGING, INC.


VENTURE PACKAGING
MIDWEST, INC.


BERRY PLASTICS
ACQUISITION CORPORATION III


BERRY PLASTICS
ACQUISITION CORPORATION V


BERRY PLASTICS
ACQUISITION CORPORATION VII


BERRY PLASTICS
ACQUISITION CORPORATION VIII


BERRY PLASTICS
ACQUISITION CORPORATION IX


BERRY PLASTICS
ACQUISITION CORPORATION X


BERRY PLASTICS
ACQUISITION CORPORATION XI


BERRY PLASTICS
ACQUISITION CORPORATION XII


BERRY PLASTICS
ACQUISITION CORPORATION XIII


KERR GROUP, INC.


SAFFRON ACQUISITION CORP.


SUN COAST INDUSTRIES,
INC.


By:                  

        Name:

        Title:


LANDIS PLASTICS, INC.


 


By:                  

        Name:

        Title:


 


 












A-176










 







 



 


 


BERRY PLASTICS ACQUISITION CORPORATION XV, LLC


 


By:       Berry Plastics Corporation,


            its sole member


           


                   By:            ________________________________


                        Name:


                        Title:


 


SETCO, LLC


 


By:             Kerr Group, Inc.,


            its sole member


 


                   By:            ________________________________


                        Name:


                        Title:


 


 


TUBED PRODUCTS, LLC


 


By:             Kerr Group, Inc.,


            its sole member


 


                   By:            ________________________________


                        Name:


                        Title:


 


 








	

   







[Signature Page to the Amended and Restated Revolving Credit Agreement]









 








 



 


 


BANK OF AMERICA, N.A., 
as Administrative Agent and as Collateral Agent and as a Lender


By:                  
      Name:
      Title: 


 


 


 


 


 


 


 


 


 


 


 


 


[Signature Page to the Amended and Restated Revolving Credit Agreement]




 


A-178









 








 



EXHIBIT A


[FORM OF]
ASSIGNMENT AND ACCEPTANCE


This Assignment and Acceptance (the “Assignment and Acceptance”) is dated as of the Effective Date set forth below and is entered into by and between the Assignor identified in item 1 below (the “Assignor”) and the assignee identified on item 2 below (the “Assignee”).  Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as may be amended from time to time, the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Acceptance as if set forth herein in full.


For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s rights and obligations in its capacity as a Lender under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under the respective facilities identified below (including, without limitation, any Letters of Credit, guarantees and Swingline Loans included in such facilities), and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Lender) against any person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by the Assignor to the Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as the “Assigned Interest”). Each such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Acceptance, without representation or warranty by the Assignor.


1.         Assignor:                                                                                                                   


Assignor [is] [is not] a Defaulting Lender.


2.         Assignee:                                                                                                                   
[and is an Affiliate/Approved Fund of [Identify Lender]]


3.         Borrower(s):                                                                                                              


4.         Administrative Agent: Bank of America, N.A., as Administrative Agent under the Credit Agreement


5.         Credit Agreement: The Amended and Restated Revolving Credit Agreement dated as of April 3, 2007 (as amended, restated, supplemented, waived or otherwise modified from 


 


A-1







 













 








 





time to time, the “Credit Agreement”), among BERRY PLASTICS GROUP, INC., a Delaware corporation (“Holdings”), COVALENCE SPECIALTY MATERIALS CORP., a Delaware corporation (the “Company”), the SUBSIDIARY LOAN PARTIES party thereto from time to time (collectively with the Company, the “Borrowers”), the LENDERS party thereto from time to time, BANK OF AMERICA, N.A., as administrative agent and collateral agent (in such capacities, the “Administrative Agent” and “Collateral Agent” respectively) for the Lenders, GOLDMAN SACHS CREDIT PARTNERS L.P., as syndication agent (the “Syndication Agent”), and CITIGROUP GLOBAL MARKETS INC., CREDIT SUISSE SECURITIES (USA) LLC, DEUTSCHE BANK SECURITIES INC., J.P. MORGAN SECURITIES INC., and LEHMAN BROTHERS INC. as co-documentation agents (the “Documentation Agents”). 


6.         Assigned Interest:




	

   Facility Assigned
	

   Aggregate Amount of


   Commitment/Loans


   for all Lenders[1]
	

   Amount of


   Commitment/Loans


   Assigned[2]
	

   Percentage Assigned


   of Commitment/


   Loans[3]
	

    


    


   CUSIP


   Number

	

   Revolving Facility Loans
	

    
	

    
	

   %
	

    





 


7.         Trade Date:      __________________________[4]


[REMAINDER OF THIS PAGE IS LEFT BLANK INTENTIONALLY]









 
[1]                Amount to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date.




 
[2]                Amount to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date.




 
[3]                Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.


 


[4]                To be completed if the Assignor and the Assignee intend that the minimum assignment amount is to be determined as of the Trade Date.


 







A-2













	

   














 








 



Effective Date: __________________, ___, 20__. [TO BE INSERTED BY THE ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]


 


[REMAINDER OF THIS PAGE IS LEFT BLANK INTENTIONALLY] 


The terms set forth in this Assignment and Acceptance are hereby agreed to:




A-1









 








 






ASSIGNOR:


[NAME OF ASSIGNOR][5]


 


By:                                                                 
         Name:


Title:


 


ASSIGNEE:


[NAME OF ASSIGNEE][6]


 


By:                                                                 
         Name:


Title:


 


Consented[7] to and accepted:


BANK OF AMERICA, N.A.,
    AS ADMINISTRATIVE AGENT


 


By.                                                                    
Name:                                                     


         Title:


 


[Consented[8] to:]


BERRY PLASTICS CORPORATION


 









    
[5]                Add additional signature blocks as needed. Include both Fund/Pension Plan and manager making the trade (if applicable).


[6]                Add additional signature blocks as needed. Include both Fund/Pension Plan and manager making the trade (if applicable).


[7]                To be added only if the consent of the Administrative Agent is required by Section 9.04(b) of the Credit Agreement.


[8]                To be added only if the consent of the Borrower is required by Section 9.04(b) of the Credit Agreement.








	

   







A-2









 








 



By.                                                                    
Name:                                                     


         Title:


 


[Consented[9] to:]


[ISSUING BANK AND/OR SWINGLINE LENDER]


 


By:                                                                    
         Title:









 
[9]           To be added only if the consent of the other parties (e.g. Swingline Lender, Issuing Bank) is required by Section 9.04(b) of the Credit Agreement.




 


A-3









 








 



ANNEX 1


STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ACCEPTANCE


1.         Representations and Warranties.


(a)  Assignor. The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim, (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Acceptance and to consummate the transactions contemplated hereby, (iv) it is [not] a Defaulting Lender; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of Holdings, any Borrower, any of its Subsidiaries or Affiliates or any other person obligated in respect of any Loan Document, or (iv) the performance or observance by Holdings, any Borrower, any of its Subsidiaries or Affiliates or any other person of any of their respective obligations under any Loan Document.


(b)  Assignee. The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Acceptance and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it satisfies the requirements, if any, specified in the Credit Agreement that are required to be satisfied by it in order to acquire the Assigned Interest and become a Lender, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by the Assigned Interest and either it, or the person exercising discretion in making its decision to acquire the Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 5.04 thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment and Acceptance and to purchase the Assigned Interest, (vi)  it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Assignment and Acceptance and to purchase [the][such] Assigned Interest, and (vii) if it is a Foreign Lender , attached to the Assignment and Acceptance is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, the Assignor or any other Lender and, based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.


2.         Payments.  From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date. Notwithstanding the foregoing, the Administrative Agent shall make all payments of interest, fees or other amounts paid or payable in kind from and after the Effective Date to the Assignee.




A-4









 








 



3.         General Provisions. This Assignment and Acceptance shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Acceptance may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Acceptance by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Acceptance. This Assignment and Acceptance shall be governed by, and construed in accordance with, the law of the State of New York.




                                                   A-5









 








 



EXHIBIT B


[FORM OF]
SOLVENCY CERTIFICATE


                        This Certificate is being delivered pursuant to (i) Section 4.02(h) of the Amended and Restated Revolving Credit Agreement dated as of April 3, 2007,  (as amended, restated, supplemented, waived or otherwise modified from time to time, the “ABL Credit Agreement”), among Berry Plastics Holding Corporation (the “Company”, which on Closing Date was merged with Covalence Specialty Materials Corp., with Berry Plastics Holding Corporation surviving such merger), Covalence Specialty Materials Holding Corp. (“Holdings”), the Domestic Subsidiaries of the Company party thereto from time to time, the lenders party thereto from time to time, Bank of America, N.A., as Collateral Agent and Administrative Agent, and the other financial institutions party thereto from time to time, and , and (ii) Art. IV(h)(2) of the Second Amended and Restated Term Loan Credit Agreement dated as of April 3, 2007, (the “Term Loan Agreement,” and together with the ABL Credit Agreement, the “Credit Agreements), among the Company, Holdings, the lenders party thereto from time to time, Credit Suisse, Cayman Islands Branch, as Collateral Agent and Administrative Agent, and the other financial institutions party thereto.  Terms defined in the ABL Credit Agreement are used herein with the same meaning.


                        I, [●], hereby certify that I am the Chief Financial Officer of the Company and that I am knowledgeable of the financial and accounting matters of the Company and its Subsidiaries, the Credit Agreements and the covenants and representations (financial or otherwise) contained therein and that, as such, I am authorized to execute and deliver this Certificate on behalf of the Company. I further certify, in my capacity as Chief Financial Officer of the Company, and not individually, as follows:


                        Immediately after giving effect to the Transactions on the Closing Date, (i) the fair value of the assets of the Company (individually) and Holdings, the Company and its Subsidiaries on a consolidated basis, at a fair valuation, will exceed the debts and liabilities, direct, subordinated, contingent or otherwise, of the Company (individually) and Holdings, the Company and its Subsidiaries on a consolidated basis, respectively; (ii) the present fair saleable value of the property of the Company (individually) and Holdings, the Company and its Subsidiaries on a consolidated basis will be greater than the amount that will be required to pay the probable liability of the Company (individually) and Holdings, the Company and its Subsidiaries on a consolidated basis, respectively, on their debts and other liabilities, direct, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured; (iii) the Company (individually) and Holdings, the Company and its Subsidiaries on a consolidated basis will be able to pay their debts and liabilities, direct, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and (iv) the Company (individually) and Holdings, the Company and its Subsidiaries on a consolidated basis will not have unreasonably small capital with which to conduct the businesses in which they are engaged as such businesses are now conducted and are proposed to be conducted following the Closing Date.


                        I represent the foregoing information is provided to the best of my knowledge and belief and execute this Certificate this __ day of _________, 20__.


 


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                                                   B-1









 








 



 


By:_______________________________


Name:


Title:




                                                   B-2









 








 



EXHIBIT C-1


 


[FORM OF]
BORROWING REQUEST


Bank of America, N.A.


901 Main Street


Mail Code: TX1-492-14-12


Dallas, TX 75202-3714


Attn: [●]


Tel: [●]


Fax: [●]


 


Ladies and Gentlemen:


 


Reference is made to the Amended and Restated Revolving Credit Agreement dated as of April 3, 2007 (as amended, restated, supplemented, waived or otherwise modified from time to time, the “Credit Agreement”), among BERRY PLASTICS GROUP, INC., a Delaware corporation (“Holdings”), COVALENCE SPECIALTY MATERIALS CORP., a Delaware corporation (the “Company”), the SUBSIDIARY LOAN PARTIES party thereto from time to time (collectively with the Company, the “Borrowers”), the LENDERS party thereto from time to time, BANK OF AMERICA, N.A., as administrative agent and collateral agent (in such capacities, the “Administrative Agent” and “Collateral Agent” respectively) for the Lenders, GOLDMAN SACHS CREDIT PARTNERS L.P., as syndication agent (the “Syndication Agent”), and CITIGROUP GLOBAL MARKETS INC., CREDIT SUISSE SECURITIES (USA) LLC, DEUTSCHE BANK SECURITIES INC., J.P. MORGAN SECURITIES INC., and LEHMAN BROTHERS INC. as co-documentation agents (the “Documentation Agents”).  Terms defined in the Credit Agreement are used herein with the same meanings.  This notice constitutes a Borrowing Request and the Borrower named below hereby requests Borrowings under the Credit Agreement, and in that connection such Borrower specifies the following information with respect to such Borrowings requested hereby:


Facility:                                                                                                                                  


Aggregate Amount of Borrowing[10]:________________________________________ 


Date of Borrowing (which shall be a Business Day):                                                             


Type of Borrowing (ABR or Eurocurrency):                                                                         


Interest Period (if a Eurocurrency Borrowing)[11] 


: 


Location and number of Borrower’s account with the Administrative Agent to which proceeds of Borrowing are to be disbursed:                                                                                                                   


 


The Borrower named below hereby represents and warrants that the conditions specified in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement are satisfied.









 
[10]                 In the case of an ABR or Eurocurrency Revolving Borrowing not less than $5,000,000 and an integral multiple of $1,000,000. 


 


[11]               Which must comply with the definition of “Interest Period” and end not later than the Revolving Facility Maturity Date.


 




                                                   C-1-1









 








 



[REMAINDER OF THIS PAGE IS LEFT BLANK INTENTIONALLY]




                                                                          C-1-2                                                                         









 








 



Very truly yours,


[BORROWER]


 


By:                                                                 
         Name:
         Title:




                                                                               


C-1-3









 








 



EXHIBIT C-2


 


[FORM OF]
SWINGLINE BORROWING REQUEST


Bank of America, N.A. 


901 Main Street


Mail Code: TX1-492-14-12


Dallas, TX 75202-3714


Attn: [●]


Tel: [●]


Fax: [●]


 


[Date]


 


Ladies and Gentlemen:


 


Reference is made to the Amended and Restated Revolving Credit Agreement dated as of April 3, 2007, (as amended, restated, supplemented, waived or otherwise modified from time to time, the “Credit Agreement”), among BERRY PLASTICS GROUP, INC., a Delaware corporation (“Holdings”), COVALENCE SPECIALTY MATERIALS CORP., a Delaware corporation (the “Company”), the SUBSIDIARY LOAN PARTIES party thereto from time to time (collectively with the Company, the “Borrowers”), the LENDERS party thereto from time to time, BANK OF AMERICA, N.A., as administrative agent and collateral agent (in such capacities, the “Administrative Agent” and “Collateral Agent” respectively) for the Lenders, GOLDMAN SACHS CREDIT PARTNERS L.P., as syndication agent (the “Syndication Agent”), and CITIGROUP GLOBAL MARKETS INC., CREDIT SUISSE SECURITIES (USA) LLC, DEUTSCHE BANK SECURITIES INC., J.P. MORGAN SECURITIES INC., and LEHMAN BROTHERS INC. as co-documentation agents (the “Documentation Agents”). Terms defined in the Credit Agreement are used herein with the same meanings.  


This notice constitutes a Swingline Borrowing Request and the Borrower named below hereby requests Borrowings under the Credit Agreement, and in that connection such Borrower specifies the following information with respect to such Borrowings requested hereby:


Type of Borrowing: ABR Borrowing


Aggregate Amount of Borrowing[12]:                                                                             


Date of Borrowing (which shall be a Business Day):                                                 


Location and number of Borrower’s account to which proceeds of Borrowing are to be disbursed:    



The Borrower named below hereby represents and warrants that the conditions specified in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement are satisfied.


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[12]            In the case of a Swingline Borrowing, not less than $1,000,000 and an integral multiple of $500,000. 




                                                                          C-2-1                                                                         









 








 



Very truly yours,


[BORROWER]


 


By:                                                                
         Name:
         Title:




                                                                               


C-2-2









 








 



EXHIBIT D


[FORM OF]


 


COLLATERAL AGREEMENT


(See attached).




                                                                               


D-1









 








 



EXHIBIT E


[FORM OF]


 


BORROWING BASE CERTIFICATE


 


This Certificate is being delivered pursuant to Section 4.02(c)(iv) of the Amended and Restated Revolving Credit Agreement dated as of April 3, 2007, (as amended, restated, supplemented, waived or otherwise modified from time to time, the “Credit Agreement”), among BERRY PLASTICS GROUP, INC., a Delaware corporation (“Holdings”), COVALENCE SPECIALTY MATERIALS CORP., a Delaware corporation (the “Company”), the SUBSIDIARY LOAN PARTIES party thereto from time to time (collectively with the Company, the “Borrowers”), the LENDERS party thereto from time to time, BANK OF AMERICA, N.A., as administrative agent and collateral agent (in such capacities, the “Administrative Agent” and “Collateral Agent” respectively) for the Lenders, GOLDMAN SACHS CREDIT PARTNERS L.P., as syndication agent (the “Syndication Agent”), and CITIGROUP GLOBAL MARKETS INC., CREDIT SUISSE SECURITIES (USA) LLC, DEUTSCHE BANK SECURITIES INC., J.P. MORGAN SECURITIES INC., and LEHMAN BROTHERS INC. as co-documentation agents (the “Documentation Agents”).  Terms defined in the Credit Agreement are used herein with the same meaning as given to them therein,


                        I, [●], hereby certify that I am the Chief Financial Officer of the Company and that I am knowledgeable of the financial and accounting matters of the Company and its Subsidiaries, the Credit Agreement and the covenants and representations (financial or otherwise) contained therein and that, as such, I am authorized to execute and deliver this Certificate on behalf of the Company. I further certify, in my capacity as Chief Financial Officer of the Company, and not individually, as follows:


                        1.         Attached hereto is set forth a calculation of each component of the Borrowing Base (including, to the extent the Company has received notice of any such Reserve from the Administrative Agent, any of the Reserves included in such calculation pursuant to clause (b)(ii) of the definition of the Borrowing Base).


                        2.         As of the date hereof, no default has occurred and is continuing under any lease of any Real Property in which Collateral with a value equal to or greater than $5,000,000 is located.


I represent the foregoing information is provided to the best of my knowledge and belief and execute this Certificate this __ day of ___________, 20__.


 


[REMAINDER OF THIS PAGE IS LEFT BLANK INTENTIONALLY]




E-1









 








 



 


By:_______________________________


Name:


Title:


 


 




                                                    E-2









 








 



ANNEX 1


Calculation of Borrowing Base


(See Attached)


 




                                                    E-3









 








 



EXHIBIT F


[FORM OF]


BORROWER JOINDER AGREEMENT


BORROWER JOINDER AGREEMENT, dated as of _____________ (this “Agreement”), to the AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT, dated as of April 3, 2007 (as amended, restated, supplemented, waived or otherwise modified from time to time, the “Credit Agreement”), among BERRY PLASTICS GROUP, INC., a Delaware corporation (“Holdings”), COVALENCE SPECIALTY MATERIALS CORP., a Delaware corporation (the “Company”), the SUBSIDIARY LOAN PARTIES party thereto from time to time (collectively with the Company, the “Borrowers”), the LENDERS party thereto from time to time, BANK OF AMERICA, N.A., as administrative agent and collateral agent (in such capacities, the “Administrative Agent” and “Collateral Agent” respectively) for the Lenders, GOLDMAN SACHS CREDIT PARTNERS L.P., as syndication agent (the “Syndication Agent”), and CITIGROUP GLOBAL MARKETS INC., CREDIT SUISSE SECURITIES (USA) LLC, DEUTSCHE BANK SECURITIES INC., J.P. MORGAN SECURITIES INC., and LEHMAN BROTHERS INC. as co-documentation agents (the “Documentation Agents”). Capitalized terms used herein and not otherwise defined shall have the meanings assigned to such terms in the Credit Agreement.  


WHEREAS, Section 9.24 of the Credit Agreement provides that additional Domestic Subsidiaries may become Borrowers under the Credit Agreement by execution and delivery of an instrument in the form of this Agreement;


WHEREAS, the undersigned Domestic Subsidiary (the “New Borrower”) is executing this Agreement to record its accession to the Credit Agreement and such other Loan Documents to which Borrowers are parties (the “Other Loan Documents”) in accordance with the requirements of the Credit Agreement and to induce the Lenders to make additional Loans and each Issuing Bank to issue additional Letters of Credit and as consideration for Loans previously made and Letters of Credit previously issued.


Accordingly, the New Borrower and the Administrative Agent hereby agree as follows:


SECTION 1.   In accordance with Section 9.24 of the Credit Agreement, the New Borrower, by its signature below, hereby becomes a “Borrower” under, and as defined in, the Credit Agreement and a party to each Other Loan Document with the same force and effect as if the New Borrower had executed and delivered the Credit Agreement and the Other Loan Documents as of the date thereof.


(b)        Each reference to a “Borrower”, a “Loan Party” or a “Subsidiary Loan Party or words of like import in the Credit Agreement and the Other Loan Documents shall be deemed to include the New Borrower.  


SECTION 2.   The New Borrower hereby (a) agrees to be bound by all the terms and provisions of the Credit Agreement and the Other Loan Documents applicable to it as a Borrower under the Credit Agreement, and (b) represents and warrants that the representations and 


warranties made by it thereunder are true and correct, in all material respects (or where such representations and warranties are already qualified by materiality, such representations and warranties are true and correct without further qualification for materiality), on and as of the date hereof.  




                                                   F-1









 








 






SECTION 3.   The New Borrower hereby represents and warrants to the parties hereto and the Secured Parties that this Agreement has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, moratorium, reorganization, fraudulent conveyance or other similar laws affecting creditors’ rights generally, (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (iii) implied covenants of good faith and fair dealing.


SECTION 4.   This Agreement shall become effective when (a) the Administrative Agent shall have received a counterpart of this Agreement that bears the signature of the New Borrower, and (b) the Administrative Agent shall have executed a counterpart hereof.


SECTION 5.   Except as expressly supplemented hereby, the Credit Agreement and the Other Loan Documents shall remain in full force and effect.


SECTION 6.   All communications and notices hereunder shall be in writing and given as provided in Section 9.01 of the Credit Agreement. The New Borrower hereby confirms that its address details for notices pursuant to the Credit Agreement and the Other Loan Documents are as follows:


                        [Address details for notices to be inserted]


SECTION 7.   The New Borrower agrees to reimburse the Administrative Agent for their reasonable out-of-pocket expenses in connection with this Agreement, including the reasonable fees, disbursements and other charges of counsel for the Administrative Agent.


SECTION 8.   This Agreement may be executed in two or more counterparts, each of which shall constitute an original but all of which when taken together shall constitute but one contract.  Delivery of an executed signature page to this Agreement by facsimile or electronic transmission shall be as effective as delivery of a manually signed counterpart of this Agreement.


SECTION 9.   THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. 


SECTION 10. In the event any one or more of the provisions contained in this Agreement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein, in the Credit Agreement and in the Other Loan Documents shall not in any way be affected or impaired thereby.  The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.




F-2









 








 



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F-3









 








 



IN WITNESS WHEREOF, the New Borrower and the Administrative Agent have duly executed this Borrower Joinder Agreement as of the day and year first above written.


 


[Name of New BORROWER]




By:                                                                   


Name:
Title:


 


BANK OF AMERICA, N.A., 
as Administrative Agent




By:                                                                   


Name:
Title:


 




F-4









 








 



SCHEDULE 1.01(a)


Certain U.S. Subsidiaries


 


Berry Plastics Acquisition Corporation II


Berry Plastics Acquisition Corporation XIV, LLC




 









 








 



SCHEDULE 1.01(b)


Acceptable Appraisers


1.         Great American Group


2.         Gordon Brothers Industrial


3.         Hilco Appraisal Services, LLC


4.         Accuval Associates Inc.


5.         Tiger Valuation Services


6.         The Daley-Hodkin Group


7.         Value Knowledge LLC




 









 








 



SCHEDULE 1.01(c)


Mortgaged Properties


Berry Plastics Corporation: 


1.         3414 Wesley Chapel-Stouts Road, Monroe, North Carolina


2.         311 W. Monroe Street, Monroeville, Ohio owned by Venture Packaging Midwest, Inc., not Berry Plastics Corporation


3.         1275 Ethan Avenue, Streetsboro, Ohio owned by Cardinal Packaging, Inc., not Berry Plastics Corporation


4.         1008 Courtaulds Drive, Woodstock, Illinois owned by Knight Plastics, Inc., not Berry Plastics Corporation


5.         800 East Horizon Drive, Henderson, Nevada


6.         7350 26th Court East, Sarasota, Florida owned by Sun Coast Industries, LLC, not Berry Plastics Corporation


7.         1419 State Road, Battleboro, North Carolina


8.         9534 Foley Boulevard, Coon Rapids, Minnesota


9.         9171 Industrial Drive, Covington, Georgia


10.       8235 220th Street West, Lakeville, Minnesota


11.       1401 W. 94th Street, Minneapolis, Minnesota


12.       4613 Central Avenue, Monroe, Louisiana


13.       1 Armin Road and 1 Stretch Film Way, Pryor, Oklahoma


14.       1800 North M Avenue, Sioux Falls, South Dakota


15.       202 S. John Stockbauer Drive, Victoria, Texas


Covalence Specialty Adhesives LLC: 


16.       2320 Bowling Green Road, Franklin, Kentucky


Berry Plastics Design, LLC


17.       1401 Progress Road, Suffolk, Virginia


Pliant, LLC




 









 








 



18.       8039 S. 192nd Street, Kent, WA


 


After-Acquired Properties[1]


Leased Properties


Berry Plastics Corporation or its Subsidiaries: 




	

   Poly-Seal, LLC
	

   5003 Holabird Ave.
	

   Baltimore
	

   MD

	

   Captive Plastics, LLC
	

   251 Circle Dr North
	

   Piscataway
	

   NJ

	

   Captive Plastics, LLC
	

   190 Strykers Rd
	

   Phillipsburg
	

   NJ

	

   Kerr Group, LLC
	

   360 Southwood Crt.
	

   Bowling Green
	

   KY

	

   Kerr Group, LLC
	

   1005 Lower Brownsville Rd.
	

   Jackson
	

   TN

	

   Setco, LLC
	

   4875 East Hunter Avenue
	

   Anaheim
	

   CA

	

   Setco, LLC
	

   34 Englehard Drive
	

   Monroe Township
	

   NJ

	

   Berry Plastics Corporation
	

   Prologis Cranbury Business Park #4
4 Aurora Drive
	

   Cranbury
	

   NJ

	

   Berry Plastics Corporation
	

   44 O'Neill Street
	

   Easthampton
	

   MA

	

   Berry Plastics Corporation
	

   122 Pleasant Street
	

   Easthampton
	

   MA

	

   Captive Plastics, LLC
	

   7447 Candlewood Road
	

   Hanover
	

   MD

	

   Berry Plastics Corporation
	

   1810 Portal Street
	

   Baltimore
	

   MD

	

   Captive Plastics, LLC
	

   3565 Chadwick Drive
	

   Dunkirk
	

   NY

	

   Captive Plastics, LLC
	

   11601 Electron Dr
	

   Louisville
	

   KY

	

   Captive Plastics, LLC
	

   19101 Kapp Drive
	

   Peosta
	

   IA

	

   Captive Plastics, LLC
	

   2732 62nd Street Court
	

   Bettendorf
	

   IA

	

   Berry Plastics Corporation
	

   101 Oakley St.
	

   Evansville
	

   IN

	

   Berry Plastics Corporation
	

   301 N. Kentucky Ave
	

   Evansville
	

   IN

	

   Berry Plastics Corporation
	

   6501 Berry Plastics Boulevard
	

   Evansville
	

   IN

	

   Berry Plastics Corporation
	

   2330 Packer Road
	

   Lawrence
	

   KS

	

   Berry Plastics Corporation
	

   5750 & 5751 West 118th Street
	

   Alsip 
	

   IL

	

   Berry Plastics Corporation
	

   1500 Milton Avenue
	

   Solvay
	

   NY

	

   Berry Plastics Corporation
	

   8400 West Washington St.
	

   Tolleson
	

   AZ

	

   Berry Plastics Corporation
	

   4611 Central Avenue
	

   Monroe
	

   LA

	

   Pliant, LLC
	

   4100 Profile Parkway
	

   Bloomington
	

   IN

	

   Pliant, LLC
	

   1525 Lebanon Road 
	

   Danville
	

   KY

	

   Berry Plastics Corporation
	

   999 Bilter Road
	

   Aurora
	

   IL





 









 
[1]       Valued at approximately $5,000,000 or more.




 









 








 



Owned Properties


 


Berry Plastics Corporation or its Subsidiaries:   


 




	

   
Entity
	

   Mailing
Address
	

   
County
	

   City, State
Zip Code

	

   Berry Iowa, LLC
	

   1036 Industrial Park Road
	

   Hardin
	

   Iowa Falls, IA 50126

	

   Berry Plastics Corporation
	

   630 Commerce Road
	

   Wayne
	

   Richmond, IN 47374

	

   Kerr Group, LLC
	

   228 Johnny Mitchell Road
	

   Hertford
	

   Ahoskie, NC 27910

	

   Berry Plastics Corporation
	

   2415 Locust Creek Drive
	

   Vanderburgh
	

   Evansville, IN 47710

	

   Rollpak Corporation
	

   1413 Eisenhower Drive S 
	

   Elkhart
	

   Goshen, IN 46526

	

   Berry Plastics Corporation
	

   407 Sangamore Road
	

   Haralson
	

   Bremen, GA 30110

	

   Berry Plastics Corporation
	

   9172 Industrial Drive
	

   Newton
	

   Covington, GA 30014

	

   Berry Plastics Corporation
	

   1009 Poly-Pac Drive
	

   Whitfield
	

   Dalton, GA 30720

	

   Covalence Specialty Coatings LLC
	

   700 Centerville Road,
	

   St. Joseph
	

   Constantine, MI 49042

	

   Covalence Specialty Coatings LLC
	

   4058 Highway 79
	

   Claiborne
	

   Homer, LA 71040

	

   Grafco Industries Limited Partnership
	

   3565 Chadwick Drive
	

   Chautauqua
	

   Dunkirk, NY 14048

	

   Pliant, LLC
	

   1360 Lebanon Road
	

   Boyle
	

   Danville, KY 40422

	

   Pliant, LLC
	

   150 – 200 East Main Street
	

   Wayne
	

   Macedon, NY

	

   Pliant, LLC
	

   1 Edison Parkway
	

   Pittsburg
	

   McAlester, OK* 74502

	

   Pliant, LLC
	

   199 Edison Drive
	

    
	

   Washington, GA

	

    
	

   13835 Beaumont Highway
	

   Harris
	

   Houston, TX





 


 




 









 








 



SCHEDULE 1.01(d)


Immaterial Subsidiaries


 


Berry: 


 


Berry Plastics Acquisition Corporation II


Berry Plastics Acquisition Corporation XIV, LLC


Berry Plastics Asia Pte. Ltd.


Berry Plastics de Mexico, S. de R.L. de C.V.


Grupo de Servicios Berpla, S. de R.L. de C.V.


NIM Holdings Limited


Berry Plastics Private Limited (India)


Tyco Acquisition Alpha LLC (NV)


Rafypak S.A. de C.V.


CSM Beta LLC (DE)


Covalence Specialty Materials Mexico, S. de R.L. de C.V.


Jacinto Mexico, S.A. de C.V.


Pliant de Mexico, S.A. de C.V.


 




 









 








 



 


SCHEDULE 1.01(e)


Past Due Accounts


None.


 




 









 








 



Schedule 1.01(f)


Existing Bankers’ Acceptances


 




	

   L/C #
	

   Beneficiary Name
	

   Balance

	

   Covalence
	

    
	

    

	

   1154612
	

   Yixing Wellknit Cont
	

   $ 0.00

	

   1158728
	

   Shankar Packagings L
	

   47,505.00

	

   1158923
	

   Kaps Tex Co. LTD
	

   270,690.00





 




 









 








 



Schedule 1.01(g)


Existing Letters of Credit




	

   L/C #
	

   Beneficiary Name
	

   Balance

	

   Covalence
	

    
	

    

	

   38080362
	

   Arch Insurance
	

   $ 5,953,000.00

	

   38083492
	

   Citibank Baroda
	

   287,500.00

	

   3080361
	

   Tyco International
	

   52,508.86

	

   3080511
	

   ING Bank Belgium SA
	

   2,000,000.00

	

   3080576
	

   Marshall County Gas District 
	

   90,000.00

	

   3086488
	

   BOA-Chennai (Larsen & Toubro Ltd.)
	

   520,991.70

	

   3080572
	

   Alfred Dixon Properties
	

   54,528.00

	

   3080363
	

   FN Family Partnership
	

   91,762.24

	

   3080364
	

   National Bank & Trust Company of Sycamore
	

   102,858.76

	

   1154612
	

   Yixing Wellknit Cont
	

   0.00

	

   1154615
	

   Shanghai Efson
	

   0.00

	

   1158728
	

   Shankar Packagings L
	

   4,750.50

	

   1158727
	

   Srinivasa Textiles
	

   214,192.00

	

   1158923
	

   Kaps Tex Co. LTD
	

   585,200.00

	

    
	

    
	

   Subtotal $9,957,292.06

	

   Berry
	

    
	

    

	

   TS-07003902
	

   Ohio Bureau of Workers Comp; Credit Suisse replaced S-16985
	

   $ 305,000.00

	

   TS-07003889
	

   Federal Insurance Company (Chubb); Credit Suisse replaced S-16986
	

   3,050,000.00

	

   TS-07003887
	

   IL Indust Comm - IL Self Insurers; Credit Suisse replaced S-16983
	

   600,000.00

	

   TS-07003886
	

   State of NY Work Comp Board; Credit Suisse replaced S-16984
	

   2,027,897.00

	

   S-16598
	

   Salt River Project Agricultural - PHX Utility
	

   369,092.00

	

   S-16621
	

   BLT Alameda/Oxnard, LP
	

   300,000.00

	

   S-16620
	

   4875 Hunters Avenue Investment Group, Inc
	

   750,000.00

	

   S-16648
	

   Pension Benefit Gauranty Corporation
	

   3,000,000.00

	

   S-16672
	

   Federal Insurance Company (Chubb)
	

   3,376,000.00

	

   S-16723
	

   C.S. Walden Corporation
	

   500,000.00

	

   TS-07003753
	

   Royal Indemnity Company; Credit Suisse replaced S-16856
	

   417,000.00

	

   S-16992
	

   Florida Power & Light Company
	

   63,230.00

	

    
	

    
	

   Subtotal $ 14,758,219.00

	

    
	

    
	

   Total $ 24,715,511.06







 









 








 



SCHEDULE 1.01(i)


 


Unrestricted Subsidiaries


 


Berry Plastics Escrow Corporation (DE)


Berry Plastics Escrow LLC (DE)


BP Parallel Corporation (DE)


 


 




 









 








 



SCHEDULE 2.01


 


Commitments


 


 




	

   Name of Lender
	

   Revolving Facility Commitment
	

   Revolving Facility Commitment Percentage

	

   Bank of America, N.A
	

   $125,000,000
	

   19.23%

	

   Wells Fargo Capital Finance, LLC
	

   $100,000,000
	

   15.38%

	

   Barclays Bank PLC
	

   $90,000,000
	

   13.85%

	

   Citicorp North America, Inc.
	

   $60,000,000
	

   9.23%

	

   Credit Suisse AG, Cayman Islands Branch
	

   $60,000,000
	

   9.23%

	

   Deutsche Bank Trust Company Americas
	

   $50,000,000
	

   7.69%

	

   U.S. Bank National Association
	

   $50,000,000
	

   7.69%

	

   UBS Loan Finance LLC
	

   $50,000,000
	

   7.69%

	

   Goldman Sachs Bank USA
	

   $40,000,000
	

   6.15%

	

   Siemens Financial Services, Inc.
	

   $25,000,000
	

   3.85%

	

   Total
	

   $650,000,000
	

   100%







 









 








 



SCHEDULE 3.01


Organization and Good Standing


None.


 


 




 









 








 



SCHEDULE 3.04


Governmental Approvals


None.


 




 









 








 



SCHEDULE 3.07(b)


Possession under Leases


None




 









 








 



SCHEDULE 3.08(a)


Subsidiaries




	

   Name
	

   Jurisdiction of Incorporation, Formation or Organization
	

   Interest held by: 

	

   AeroCon, LLC
	

   Delaware
	

   100% of membership interests held by Berry Plastics Corporation

	

   Berry Iowa, LLC
	

   Delaware
	

   100% of membership interests held by Berry Plastics Corporation

	

   Berry Plastics Corporation
	

   Delaware
	

   100% of Common Shares held by Berry Plastics Group, Inc.

	

   Berry Plastics Design, LLC
	

   Delaware
	

   100% of membership interests held by Berry Plastics Corporation

	

   Berry Sterling Corporation
	

   Delaware
	

   100% of Common Shares held by Berry Plastics Corporation

	

   Berry Plastics Technical Services, Inc. (f/k/a Venture Packaging Southeast, Inc.)
	

   Delaware
	

   100% of Common Shares held by Venture Packaging, Inc.

	

   Cardinal Packaging, Inc.
	

   Ohio
	

   100% of Common Shares held by CPI Holding Corporation

	

   CPI Holding Corporation
	

   Delaware
	

   100% of Common Shares held by Berry Plastics Corporation

	

   Knight Plastics, LLC
	

   Delaware
	

   100% of Common Shares held by Berry Plastics SP, Inc.

	

   Packerware, LLC
	

   Delaware
	

   100% of Common Shares held by Berry Plastics SP, Inc.

	

   Pescor, Inc.
	

   Delaware
	

   100% of Common Shares held by Berry Plastics Corporation

	

   Poly-Seal, LLC
	

   Delaware
	

   100% of membership interests held by Berry Plastics Corporation

	

   Venture Packaging, Inc.
	

   Delaware
	

   100% of Common Shares held by Berry Plastics Corporation

	

   Venture Packaging Midwest, Inc.
	

   Delaware
	

   100% of Common Shares held by Venture Packaging, Inc.

	

   Berry Plastics Acquisition Corporation III
	

   Delaware
	

   100% of Common Shares held by Berry Plastics Corporation

	

   Berry Plastics Acquisition Corporation V
	

   Delaware
	

   100% of Common Shares held by Berry Plastics Corporation

	

   Berry Plastics Opco, Inc.
	

   Delaware
	

   100% of Common Shares held by Berry Plastics Corporation

	

   Berry Plastics Acquisition Corporation VIII
	

   Delaware
	

   100% of Common Shares held by Berry Plastics Corporation

	

   Berry Plastics Acquisition Corporation IX
	

   Delaware
	

   100% of Common Shares held by Berry Plastics Corporation

	

   Berry Plastics Acquisition Corporation X
	

   Delaware
	

   100% of Common Shares held by Berry Plastics Corporation

	

   Berry Plastics Acquisition Corporation XI
	

   Delaware
	

   100% of Common Shares held by Berry Plastics Corporation

	

   Berry Plastics Acquisition Corporation XII
	

   Delaware
	

   100% of Common Shares held by Berry Plastics Corporation

	

   Berry Plastics Acquisition Corporation XIII
	

   Delaware
	

   100% of Common Shares held by Berry Plastics Corporation

	

   Berry Plastics Acquisition Corporation II
	

   Delaware
	

   100% of Common Shares held by Berry Plastics Corporation

	

   Berry Plastics Acquisition Corporation XIV, LLC
	

   Delaware
	

   100% of membership interest held by Berry Plastics Corporation

	

   Kerr Group, LLC
	

   Delaware
	

   100% of membership interests held by Berry Plastics Corporation

	

   Saffron Acquisition, LLC
	

   Delaware
	

   100% of membership interests held by Kerr Group, LLC

	

   Sun Coast Industries, LLC
	

   Delaware
	

   100% of membership interests held by Saffron Acquisition, LLC

	

   Berry Plastics Acquisition Corporation XV, LLC
	

   Delaware
	

   100% of membership interest held by Berry Plastics Corporation

	

   Setco, LLC
	

   Delaware
	

   100% of membership interest held by Kerr Group, LLC.

	

   Berry Plastics Asia Pte. Ltd.
	

   Singapore
	

   65% of interest held by Berry Plastics Corporation

	

   Berry Plastics de Mexico, S. de R.L. de C.V.
	

   Mexico
	

   65% of interest held by Berry Plastics Acquisition Corporation V

	

   Grupo de Servicios Berpla, S. de R.L. de C.V.
	

   Mexico
	

   65% of interest held by Berry Plastics Acquisition Corporation V

	

   NIM Holdings Limited
	

   England & Wales
	

   65% of interest held by Berry Plastics Corporation

	

   Berry Plastics Canada, Inc./ Plastiques Berry Canada Inc.
	

   Canada
	

   65% of interest held by Berry Plastics Corporation

	

   Berry Plastics BVBA (Belgium)
	

   Belgium
	

   65% of interest held by Berry Plastics Corporation (99.99%), 65% of interest held by Covalence Specialty Adhesives LLC (0.01%)

	

   Covalence Specialty Adhesives LLC
	

   Delaware
	

   100% of membership interest held by Berry Plastics Corporation

	

   CSM Tijuana LLC
	

   Delaware
	

   100% of membership interest held by Berry Plastics Corporation

	

   CSM Mexico SPV LLC
	

   Delaware
	

   100% of membership interest held by Berry Plastics Corporation

	

   Covalence Specialty Coatings LLC
	

   Delaware
	

   100% of membership interest held by Berry Plastics Corporation

	

   Rollpak Corporation
	

   Indiana
	

   100% of Common Shares held by Berry Plastics Corporation

	

   Captive Plastics Holdings, LLC
	

   Delaware
	

   100% held by Berry Plastics SP, Inc.

	

   Captive Plastics, LLC
	

   Delaware
	

   100% held by Berry Plastics SP, Inc.

	

   Caplas Neptune, LLC
	

   Delaware
	

   100% held by Captive Plastics, LLC

	

   Caplas LLC
	

   Delaware
	

   100% held by Captive Plastics, LLC

	

   Grafco Industries Limited Partnership
	

   Maryland
	

   1% General Partner Interest by Caplas Neptune, LLC

99% Limited Partner Interest by Caplas LLC

	

   Pliant Corporation International (f/k/a Huntsman Container Corporation International)
	

   Utah
	

   100% held by Pliant, LLC

	

   Pliant Corporation Pty. Ltd. (f/k/a Huntsman Film Products Pty Ltd.)
	

   Australia
	

   65% of interest held by Pliant, LLC

	

   Pliant Film Products GmbH
	

   Germany
	

   65% of interest held by Pliant, LLC

	

   Uniplast Holdings, LLC
	

   Delaware
	

   100% held by Pliant, LLC

	

   Aspen Industrial, S.A. de C.V.
	

   Mexico
	

   65% of interest held by Pliant, LLC

	

   Uniplast U.S., Inc.
	

   Delaware
	

   100% held by Uniplast Holdings Inc. (1,000 shares of common) [14]

	

   Pliant, LLC
	

   Delaware
	

   100% held by Berry Plastics Corporation

	

   Berry Plastics SP, Inc.
	

   Virginia
	

   100% held by Berry Plastics Corporation

	

   Berry Plastics Escrow Corporation
	

   Delaware
	

   100% held by Berry Plastics Corporation not pledged

	

   Berry Plastics Escrow LLC
	

   Delaware
	

   100% held by Berry Plastics Corporation not pledged

	

   BP Parallel LLC
	

   Delaware
	

   100% held by Berry Plastics Corporation not pledged

	

   Berry Plastics Private Limited
	

    


   India
	

   100% held by Berry Plastics Corporation not pledged

	

   Tyco Acquisition Alpha LLC
	

   Nevada
	

   100% held by CSM Mexico SPV LLC not pledged

	

   Rafypak S.A. de C.V.


    
	

   Mexico
	

   99% held by Tyco Acquisition Alpha, LLC 1% held by CSM Mexico SPV LLC, not pledged

	

   CSM Beta LLC
	

   Delaware
	

   100% held by CSM Tijuana LLC, not pledged

	

   Covalence Specialty Materials Mexico, S. de R.L. de C.V.
	

   Mexico
	

   99% held by CSM Beta LLC, 1% held by CSM Tijuana LLC, not pledged

	

   Jacinto Mexico, S.A. de C.V.
	

   Mexico
	

   100% held by Pliant, LLC, not pledged

	

   Pliant de Mexico, S.A. de C.V.
	

   Mexico
	

   100% held by Pliant, LLC; not pledged












[14] Uniplast Industries Co. owns preferred stock in Uniplast U.S., Inc., which is not pledged because Uniplast Industries Co. is not a Subsidiary Party.





 









 








 



SCHEDULE 3.08(b)


Subscriptions


Berry: 


Berry Plastics Holding Corporation 2006 Equity Incentive Plan




 









 








 



SCHEDULE 3.13


Taxes


None.


 




 









 








 



SCHEDULE 3.16


Environmental Matters


None.


 




 









 








 



SCHEDULE 3.21


Insurance




	

   Coverage
Line
	

   Policy
Number
	

   Carrier
	

   Limits
	

   Deductible

	

    
	

    
	

    
	

    
	

    
	

    
	

    

	

   Auto Liability
	

   73547908 (AOS)
	

   Federal Insurance Company
	

   Liability / UM:
	

   $ 1,000,000
	

   Liability:
	

   $ 100,000

	

   09-01-10 / 11
	

   73547915 (VA)
	

   (Chubb)
	

   PIP:
	

   Statutory
	

   Comprehensive:
	

   $ 2,000

	

    
	

    
	

    
	

   Medical Payments:
	

   $ 5,000
	

   Collision:
	

   $ 2,000

	

    
	

    
	

    
	

    
	

    
	

    
	

    

	

    
	

    
	

    
	

    
	

    
	

    
	

    

	

   Auto Liability
	

   99476158
	

   Federal Insurance Company
	

   Liability / UM:
	

   $ 1,000,000
	

   Liability:
	

   $ 100,000

	

   (Canada)
	

    
	

   (Chubb)
	

   Death / Dismemberments:
	

   $ 10,000
	

   Comprehensive:
	

   $ 2,000

	

   09-01-10 / 11
	

    
	

    
	

   Medical Payments:
	

   $ 10,000
	

   Collision:
	

   $ 2,000

	

    
	

    
	

    
	

    
	

    
	

    
	

    

	

    
	

    
	

    
	

    
	

    
	

    
	

    

	

   General Liability
09-01-10 / 11
	

   35880457
	

   Federal Insurance Company
(Chubb)
	

   General Aggregate
(per loc / max of $10mm):
	

   $ 3,000,000
	

   Each Event:
	

   $ 250,000

	

    
	

    
	

    
	

   Prod/Comp Opps Aggregate:
	

   $ 3,000,000
	

   Employee Benefits Liability:
	

   $ 1,000

	

    
	

    
	

    
	

   Personal/Advertising Injury:
	

   $ 1,000,000
	

    
	

    

	

    
	

    
	

    
	

   Each Occurrence:
	

   $ 1,000,000
	

    
	

    

	

    
	

    
	

    
	

   Damages to Premises Rented 
To You:
	

   $ 1,000,000
	

    
	

    

	

    
	

    
	

    
	

   Medical Expense:
	

   $ 5,000
	

    
	

    

	

    
	

    
	

    
	

   Employee Benefits 
(each claim / aggregate):
	

   $ 1,000,000
	

    
	

    

	

    
	

    
	

    
	

    
	

    
	

    
	

    

	

    
	

    
	

    
	

    
	

    
	

    
	

    

	

   General Liability
	

   35892898
	

   Federal Insurance Company
	

   General Aggregate:
	

   $ 10,000,000
	

   Each Event:
	

   $ 250,000

	

   (Canada)
	

    
	

   (Chubb)
	

   Prod/Comp Opps Aggregate:
	

   $ 3,000,000
	

    
	

    

	

   09-01-10 / 11
	

    
	

    
	

   Personal/Advertising Injury:
	

   $ 1,000,000
	

    
	

    

	

    
	

    
	

    
	

   Each Occurrence:
	

   $ 1,000,000
	

    
	

    

	

    
	

    
	

    
	

    
	

    
	

    
	

    

	

    
	

    
	

    
	

    
	

    
	

    
	

    

	

   Property (domestic)
07-01-10 / 09-01-11
	

   KTJCMB1802B46410
	

   Travelers Property Casualty Company of America
	

   Loss Limit* 
(real property, contents, BI):
	

   $ 300,000,000
	

   Each Occurrence, except:
	

   $ 500,000

	

    
	

    
	

    
	

   Dependant Property:
	

   $ 5,000,000
	

   Time Element (BI, Utility, EE):
	

   48 Hours

	

    
	

    
	

    
	

   Utility Services:
	

   $ 5,000,000
	

   Earthquake (California):
	

   5%/
$ 500,000 min

	

    
	

    
	

    
	

   Newly Acquired / Constructed:
	

   $ 5,000,000
	

   Earthquake (Moderate Hazard):
	

   2%/ 
$ 500,000 min

	

    
	

    
	

    
	

   Earthquake (California):
	

   $ 5,000,000
	

   Earthquake (Other Qualified Counties):
	

   $ 500,000

	

    
	

    
	

    
	

   Earthquake (High Hazard Counties):
	

   Not Covered
	

   Flood (Zone A, Subject to NFIP):
	

   $ 500,000

	

    
	

    
	

    
	

   Earthquake (Moderate Hazard Counties):
	

   $ 25,000,000
	

   Flood (Other Qualified Zones):
	

   $ 500,000

	

    
	

    
	

    
	

   Earthquake (remaining qualified locations):
	

   $ 50,000,000
	

   Windstorm (High Hazard Counties):
	

   5%/
$ 500,000 min

	

    
	

    
	

    
	

   Flood (Zone A, excluding Middlesex):
	

   $ 2,500
	

   Windstorm (all other locations):
	

   $ 500,000

	

    
	

    
	

    
	

   Flood (Zone B or X Shaded):
	

   $ 25,000,000
	

   Boiler and Machinery (BI / EE):
	

   1XADV

	

    
	

    
	

    
	

   Flood (All Other Qualified Zones):
	

   $ 50,000,000
	

   Dependent Properties:
	

   $ 1,000,000

	

    
	

    
	

    
	

   Additional sublimits apply
	

   Additional deductibles apply

	

    
	

    
	

    
	

    
	

    
	

    
	

    

	

    
	

    
	

    
	

    
	

    
	

    
	

    

	

   Property (foreign)
07-01-10 / 09-01-11
	

   KTKCMB1802B47610
	

   Travelers Indemnity Company
	

   Loss Limit* 
(real property, contents, BI):
	

   Per Schedule on File
	

   Each Occurrence, except:
	

   $ 500,000

	

    
	

    
	

    
	

   Boiler and Machinery:
	

   $ 50,000,000
	

   Business Income/Extra Expense:
	

   48 Hours

	

    
	

    
	

    
	

   Utility Services:


	

   $ 5,000,000


	

   Earthquake:


	

   5%/
$ 500,000 min

	

    
	

    
	

    
	

   Newly Acquired / Constructed:
	

   $ 5,000,000
	

   Flood:
	

   $ 500,000

	

    
	

    
	

    
	

   Earthquake (Belgium or Mexico):
	

   $ 5,000,000
	

   Windstorm:
	

   5%/
$ 500,000 min

	

    
	

    
	

    
	

   Flood (Mexico):
	

   $ 5,000,000
	

   Boiler and Machinery (BI / EE):
	

   2XADV

	

    
	

    
	

    
	

   Windstorm 
(per schedule of locations):
	

   $ 10,000,000
	

   Dependent Properties:
	

   $ 1,000,000

	

    
	

    
	

    
	

   Additional sublimits apply
	

   Additional deductibles apply

	

    
	

    
	

    
	

    
	

    
	

    
	

    

	

    
	

    
	

    
	

    
	

    
	

    
	

    

	

   Property (Canada)
07-01-10 / 09-01-11
	

   UXCPC71283
	

   St. Paul Fire and Marine Insurance Company
	

   Loss Limit* 
(real property, contents, BI):
	

   $ 35,000,000
	

   Each Occurrence, except:
	

   $ 500,000

	

    
	

    
	

    
	

   Business Income / Extra Expense:
	

   $ 4,000,000
	

   Business Income/Extra Expense:
	

   48 Hours

	

    
	

    
	

    
	

   Boiler and Machinery:


	

   $ 25,000,000


	

   Earthquake:


	

   5%/
$ 500,000 min

	

    
	

    
	

    
	

   Utility Services:
	

   $ 1,000,000
	

   Flood:
	

   $ 500,000

	

    
	

    
	

    
	

   Newly Acquired / Constructed:
	

   $ 5,000,000
	

   Windstorm:
	

   $ 500,000

	

    
	

    
	

    
	

   Earthquake (Quebec):
	

   $ 2,500,000
	

   Boiler and Machinery (BI / EE):
	

   1XADV

	

    
	

    
	

    
	

   Earthquake (Ontario):
	

   $ 10,000,000
	

   Dependent Properties:
	

   $ 1,000,000

	

    
	

    
	

    
	

   Flood:
	

   $ 10,000,000
	

   Additional deductibles apply

	

    
	

    
	

    
	

   Additional sublimits apply
	

    
	

    

	

    
	

    
	

    
	

    
	

    
	

    
	

    

	

   Work Comp
	

   71718957
	

   Federal Insurance Company
	

   Workers Compensation:
	

   Statutory
	

   Each Occurrence:
	

   $ 250,000

	

   09-01-10 / 11
	

    
	

   (Chubb)
	

   Employers Liability:
	

   $ 1,000,000
	

    
	

    

	

    
	

    
	

    
	

    
	

    
	

    
	

    

	

    
	

    
	

    
	

    
	

    
	

    
	

    

	

   Excess Work Comp
	

   71707628
	

   Federal Insurance Company
	

   Workers Compensation:
	

   Statutory
	

   Each Occurrence:
	

   $ 250,000

	

   09-01-10 / 11
	

    
	

   (Chubb)
	

   Employers Liability:
	

   $ 1,000,000
	

    
	

    

	

    
	

    
	

    
	

    
	

    
	

    
	

    

	

    
	

    
	

    
	

    
	

    
	

    
	

    

	

   Aviation
	

   360AC713541
	

   USAIG
	

   Liability (each occurrence):
	

   $ 50,000,000
	

   Each Occurrence:
	

   Nil

	

   09-01-10 / 11
	

    
	

    
	

   Physical Damage:
	

   $ 1,600,000
	

    
	

    

	

    
	

    
	

    
	

    
	

    
	

    
	

    

	

    
	

    
	

    
	

    
	

    
	

    
	

    

	

   Aviation Products
	

   NAP4008640
	

   Catlin Insurance Company
	

   Each Occurrence / Aggregate:
	

   $ 25,000,000
	

   Each Claim:
	

   Nil

	

   Liability
	

    
	

   (W. Brown & Associates)
	

    
	

    
	

    
	

    

	

   09-01-10 / 11
	

    
	

    
	

    
	

    
	

    
	

    

	

    
	

    
	

    
	

    
	

    
	

    
	

    

	

    
	

    
	

    
	

    
	

    
	

    
	

    

	

   Storage Tank
	

   USC9422927
	

   Zurich American
	

   Each Claim:
	

   $ 1,000,000
	

   Each Claim:
	

   $ 10,000

	

   Liability
	

    
	

   Insurance Company
	

   Total for all Claims:
	

   $ 2,000,000
	

    
	

    

	

   09-01-10 / 11
	

    
	

    
	

    
	

    
	

    
	

    

	

    
	

    
	

    
	

    
	

    
	

    
	

    

	

    
	

    
	

    
	

    
	

    
	

    
	

    

	

   Fiduciary
	

   MCN742409/01/2010
	

   Axis Insurance Company
	

   Fiduciary (each claim / aggregate):
	

   $ 5,000,000
	

   Fiduciary (self insured retention):
	

   $ 15,000

	

   09-01-10 / 11
	

    
	

    
	

    
	

    
	

    
	

    

	

    
	

    
	

    
	

    
	

    
	

    
	

    

	

    
	

    
	

    
	

    
	

    
	

    
	

    

	

   Crime
	

   W15LO0100301
	

   Underwriters at Lloyd's
	

   Employee Dishonesty:
	

   $ 1,000,000
	

   Crime (deductible):
	

   $ 100,000

	

   09-01-10 / 11
	

    
	

   Beazley Syndicates
	

   On Premises:
	

   $ 1,000,000
	

    
	

   $0
Expense Coverage

	

    
	

    
	

    
	

   Forgery or Alteration:
	

   $ 1,000,000
	

    
	

    

	

    
	

    
	

    
	

   Computer / Funds Transfer Fraud:
	

   $ 1,000,000
	

    
	

    

	

    
	

    
	

    
	

   Money Orders and Counterfeit Paper Fraud:
	

   $ 1,000,000
	

    
	

    

	

    
	

    
	

    
	

   Credit Card Fraud:
	

   $ 1,000,000
	

    
	

    

	

    
	

    
	

    
	

   Client Property:
	

   $ 1,000,000
	

    
	

    

	

    
	

    
	

    
	

   In Transit
	

   $ 1,000,000
	

    
	

    

	

    
	

    
	

    
	

   Expense Coverage
	

   $ 25,000
	

    
	

    

	

    
	

    
	

    
	

    
	

    
	

    
	

    

	

    
	

    
	

    
	

    
	

    
	

    
	

    

	

    
	

    
	

    
	

    
	

    
	

    
	

    

	

   Special Crime
	

   8212-1737
	

   Federal Insurance
	

   Limit:
	

   $ 20,000,000
	

   Per Occurrence:
	

   Nil

	

   09-01-09 / 12
	

    
	

   Company (Chubb)
	

   Expense:
	

   $ 20,000,000
	

    
	

    

	

    
	

    
	

    
	

   Additional Sublimits Apply
	

    
	

    

	

    
	

    
	

    
	

    
	

    
	

    
	

    

	

    
	

    
	

    
	

    
	

    
	

    
	

    

	

   Directors & Officers
	

   MCN742406/01/2010
	

   Axis Insurance Company
	

   Each Claim Limit:
	

   $ 10,000,000
	

   Retention (Agreement A):
	

   $ -

	

   09-01-10 / 11
	

    
	

    
	

   Each Policy Period Limit:
	

   $ 10,000,000
	

   Retention 
(Agreement B - non Securities):
	

   $ 150,000

	

    
	

    
	

    
	

   Investigation Costs Sublimit:
	

   $ 250,000
	

   Retention (Agreement B and C):
	

   $ 150,000

	

    
	

    
	

    
	

    
	

    
	

    
	

    

	

    
	

    
	

    
	

    
	

    
	

    
	

    

	

   Excess Directors
	

   V15VJT100301
	

   Beazley Insurance Company
	

   Each Occurrence / Aggregate:
	

   $ 10,000,000
	

   Retention:
	

   Nil

	

   & Officers
	

    
	

    
	

   Excess of Axis $10,000,000
	

    
	

    
	

    

	

   09-01-10 / 11
	

    
	

    
	

    
	

    
	

    
	

    

	

    
	

    
	

    
	

    
	

    
	

    
	

    

	

    
	

    
	

    
	

    
	

    
	

    
	

    

	

   ERISA Bond
	

   37BDDFQ3769
	

   Hartford Fire Insurance Co.
	

   Limit:
	

   $ 1,000,000
	

   Retention:
	

   Nil

	

   1/10/10/13
	

    
	

    
	

    
	

    
	

    
	

    

	

    
	

    
	

    
	

    
	

    
	

    
	

    

	

    
	

    
	

    
	

    
	

    
	

    
	

    

	

   Ocean Cargo
	

   N02189690
	

   Indemnity Insurance
	

   Any One Conveyance:
	

   $ 3,000,000
	

   Each Occurrence:
	

   $ 50,000

	

   09-01-10 / 11
	

    
	

   Company 
of North America
	

   Any One Conveyance 
(Inland Mexico):
	

   $ 500,000
	

    
	

    

	

    
	

    
	

    
	

   Mail, Express Mail, Parcel Post:
	

   $ 5,000
	

    
	

    

	

    
	

    
	

    
	

    
	

    
	

    
	

    

	

    
	

    
	

    
	

    
	

    
	

    
	

    

	

   Flood (Ahoskie, NC)
	

   99044480522009
	

   Hartford Insurance
	

   Building:
	

   $ 468,900
	

   Each Claim:
	

   $ 5,000

	

   06-07-09 / 10
	

    
	

   Company
	

   Contents:
	

   $ 447,600
	

    
	

    

	

    
	

    
	

   of the Midwest
	

    
	

    
	

    
	

    

	

    
	

    
	

    
	

    
	

    
	

    
	

    

	

    
	

    
	

    
	

    
	

    
	

    
	

    

	

   Flood 
(Middlesex, NJ)
	

    


   99044199272011
	

   Hartford Insurance Company
	

   Building:
	

   $ 500,000
	

   Each Claim:
	

   $ 50,000

	

   05-27-10 / 11
	

   99044199262011
	

   of the Midwest
	

   Contents:
	

   $ 500,000
	

    
	

    

	

    
	

    
	

    
	

    
	

    
	

    
	

    

	

    
	

    
	

    
	

    
	

    
	

    
	

    

	

   Foreign Casualty
	

   WR10006332
	

   Chartis
	

   General Liability
	

    
	

   Employee Benefits Liability:
	

   $ 1,000

	

   09-01-10 / 11
	

    
	

    
	

   Master Control Program Aggregate:
	

   $ 4,000,000
	

   Hired Auto:
	

   $ 500

	

    
	

    
	

    
	

   General Aggregate:
	

   $ 2,000,000
	

    
	

    

	

    
	

    
	

    
	

   Products / Completed Operations Aggregate:
	

   $ 2,000,000
	

    
	

    

	

    
	

    
	

    
	

   Personal and Advertising Injury Aggregate:
	

   $ 1,000,000
	

    
	

    

	

    
	

    
	

    
	

   Each Occurrence Limit::
	

   $ 1,000,000
	

    
	

    

	

    
	

    
	

    
	

   Medical Expense Limit (any one person):
	

   $ 10,000
	

    
	

    

	

    
	

    
	

    
	

   Contingent Automobile Liability
	

    
	

    
	

    

	

    
	

    
	

    
	

   Liability Each Accident:
	

   $ 1,000,000
	

    
	

    

	

    
	

    
	

    
	

   Hired Auto Physical Damage (each accident):
	

   $ 25,000
	

    
	

    

	

    
	

    
	

    
	

   Medical Payments (each accident):
	

   $ 25,000
	

    
	

    

	

    
	

    
	

    
	

   Foreign Voluntary WC and EL
	

    
	

    
	

    

	

    
	

    
	

    
	

   Employers Liability:
	

   $ 1,000,000
	

    
	

    

	

    
	

    
	

    
	

   Executive Assistance (including repatriation):
	

   $ 500,000
	

    
	

    

	

    
	

    
	

    
	

    
	

    
	

    
	

    

	

    
	

    
	

    
	

    
	

    
	

    
	

    

	

   Umbrella
	

   15972510
	

   National Union Fire
	

   Each Occurrence:
	

   $ 25,000,000
	

   Each Occurrence:
	

   $ 25,000

	

   09-01-10 / 11
	

    
	

   Insurance Company of
	

   Annual Aggregate:
	

   $ 25,000,000
	

    
	

    

	

    
	

    
	

   Pittsburgh, PA
	

    
	

    
	

    
	

    

	

    
	

    
	

    
	

    
	

    
	

    
	

    

	

    
	

    
	

    
	

    
	

    
	

    
	

    

	

   Excess Umbrella
	

   US00009885LI
	

   XL Insurance America, Inc.
	

   Each Occurrence:
	

   $ 25,000,000
	

   Each Occurrence:
	

   Nil

	

   09-01-10 / 11
	

    
	

    
	

   Annual Aggregate:
	

   $ 25,000,000
	

    
	

    

	

    
	

    
	

    
	

    
	

    
	

    
	

    

	 	 	 	 	 	 	 	 






 









 








 



SCHEDULE 3.23


Intellectual Property


None.


 




 









 








 



SCHEDULE 4.02


Borrowing Base Calculation on Closing Date


 


[See Attached]


 




 









 








 



 




	

   BANK OF AMERICA BUSINESS CAPITAL

	

   Borrowing Certificate
	

   

   Customer Name: Berry Plastics Holding Corporation


	

   In $ millions
	

   

   Assignment #: 1


	

    
	

   

   Reporting Date:


	

    
	

    
	

    

	

   ACCOUNTS RECEIVABLE


   Dates Covered


   Collateral
	

   Loan #
	

   FG INVENTORY


   Dates Covered


   Collateral
	

   Loan #

	

   1. Beginning Balance**
	

    
	

   1. Current Balance
	

   184.7

	

   2. Sales (+)**
	

    
	

   2. Ineligibles
	

   17.3

	

   3. Credit Memos (-)**
	

    
	

   3. Eligible Collateral (2-3)
	

   167.4

	

   4. Adjustments (+)**
	

    
	

   4. Eligible Inventory @ various %
	

   105.9

	

   5. Adjustments (-)**
	

    
	

   5. Less Reserve
	

    

	

   6. Net Collections – Includes Non A/R Cash (-)**
	

    
	

   6. Qualified Inventory
	

   105.9

	

   7. Discounts (-)**
	

    
	

   7. Availability
	

   105.9

	

   8. Non A/R Cash (+)**
	

    
	

    
	

    

	

   9. Unapplied Cash (-)**
	

    
	

    
	

    

	

   10. Ending Balance
	

   359.4
	

    
	

    

	

   11. Ineligible
	

   57.1
	

    
	

    

	

   12. Eligible Collateral (10-11)
	

   302.3
	

    


   WIP INVENTORY


   Dates Covered


   Collateral
	

   Loan #

	

   13. Eligible A/R @ 85%
	

   257.0

	

   14. Less Reserve
	

    

	

   15. Qualified Collateral
	

   257.0

	

    
	

    
	

   1. Current Balance
	

   10.8

	

    
	

    
	

   2. Ineligibles
	

   1.3

	

    
	

    
	

   3. Eligible Collateral (2-3)
	

   9.5

	

    
	

    
	

   4. Eligible Inventory @ various %
	

   1.6

	

    
	

    
	

   5. Less Reserve
	

    

	

    
	

    
	

   6. Qualified Inventory
	

   1.6

	

    
	

    
	

   7. Availability
	

   1.6

	

    
	

    
	

    
	

    

	

    
	

    
	

    


   RM INVENTORY


   Dates Covered


   Collateral
	

   Loan #

	

   Total Availability (#15 + #7)
	

   428.4

	

   Loan 
	

    

	

   17. Beginning Balance
	

   0.0

	

   18. Cash (Checks/ACH) (-)
	

    
	

   1. Current Balance
	

   143.5

	

   19. Cash (Wire) (-)
	

    
	

   2. Ineligibles
	

   17.0

	

   20. Adjustments (-/+) (circle one)
	

    
	

   3. Eligible Collateral (2-3)
	

   126.5

	

   21. Advance (+)
	

    
	

   4. Eligible Inventory @ various %
	

   63.9

	

   22. Current Revolving Loan Balance @
	

   0.0
	

   5. Less Reserve
	

    

	

    
	

    
	

   6. Qualified Inventory
	

   63.9

	

    
	

    
	

   7. Availability
	

   63.9

	

    
	

    
	

    
	

    

	

   Total Availability (#15 + #7)
	

   428.4
	

    
	

    

	

   Due diligence reserve
	

   35.2
	

    
	

    

	

   Net Availability
	

   393.1
	

    
	

    

	

    
	

    
	

    
	

    

	

   Total Credit Line
	

   400.0
	

    
	

    

	

   Qualified Availability
	

   393.1
	

    
	

    

	

   Less Total Revolving Loan Balance
	

    
	

    
	

    

	

   Less Letters of Credit
	

   25.1
	

    
	

    

	

   Remaining Availability
	

   368.0
	

    
	

    

	

    
	

    
	

    
	

    

	

   Explanation:
	

    
	

    
	

    

	

    
	

    
	

    
	

    

	

   The foregoing information is delivered to Bank of America Business Capital in accordance with a Loan and Security Agreement between BANK OFAMERICA, N.A. and Berry Plastics Corporation


   Dated 


   I hereby certify that the information contained herein is true and correct as of the dates shown herein. Nothing contained herein shall constitute a waiver, modification, or limitation of any of the terms or conditions set forth in the referenced Loan and Security Agreement.


    


   Brackets are not necessary for negative numbers


   Unless what you want is different than what field indicates. 
	

    
	

    
	

   Prepared by Diana Wood 


    


   Title: Asst. _________ 4-2-07 


    


   Approved by: 


    


   Title: EVP, CFO Date 4-3-07 

	 	 	 	 	 






 









 








 



SCHEDULE 4.02(c)


 


Borrowing Base Calculations on Amendment Effective Date


 


 


[See Attached]


 


 


 




 









 








 



 




	

   BANK OF AMERICA, N.A.
	

   Exhibit E 6/23/2011 13:37

	

   Borrowing Certificate
	

   

   Customer Name: Berry Plastics Holding Corporation


	

   In $ millions
	

   

   Assignment #: 1


	

    
	

   

   Reporting Date: 06/04/11 May-11


	

    
	

    
	

    

	

   ACCOUNTS RECEIVABLE


   Dates Covered


   Collateral
	

   Loan #
	

   FG INVENTORY


   Dates Covered


   Collateral
	

   Loan #

	

   1. Beginning Balance**
	

    
	

   1. Current Balance
	

   285.2

	

   2. Sales (+)**
	

    
	

   2. Ineligibles
	

   11.6

	

   3. Credit Memos (-)**
	

    
	

   3. Eligible Collateral (2-3)
	

   273.6

	

   4. Adjustments (+)**
	

    
	

   4. Eligible Inventory @ various %
	

   211.8

	

   5. Adjustments (-)**
	

    
	

   5. Less Reserve
	

   0.7

	

   6. Net Collections – Includes Non A/R Cash (-)**
	

    
	

   6. Qualified Inventory
	

   211.1

	

   7. Discounts (-)**
	

    
	

   7. Availability
	

   179.4

	

   8. Non A/R Cash (+)**
	

    
	

    
	

    

	

   9. Unapplied Cash (-)**
	

    
	

    
	

    

	

   10. Ending Balance
	

   506.5
	

    
	

    

	

   11. Ineligible
	

   120.3
	

    
	

    

	

   12. Eligible Collateral (10-11)
	

   386.2
	

    


   WIP INVENTORY


   Dates Covered


   Collateral
	

   Loan #

	

   13. Eligible A/R @ 85%
	

   328.3

	

   14. Less Reserve
	

   0.0

	

   15. Qualified Collateral
	

   328.3

	

    
	

    
	

   1. Current Balance
	

   12.3

	

    
	

    
	

   2. Ineligibles
	

   2.3

	

    
	

    
	

   3. Eligible Collateral (2-3)
	

   10.0

	

    
	

    
	

   4. Eligible Inventory @ various %
	

   0.0

	

    
	

    
	

   5. Less Reserve
	

    

	

    
	

    
	

   6. Qualified Inventory
	

   0.0

	

    
	

    
	

   7. Availability
	

   0.0

	

    
	

    
	

    
	

    

	

    
	

    
	

    


   RM INVENTORY


   Dates Covered


   Collateral
	

   Loan #

	

   Total Availability (#15 + #7)
	

   613.9

	

   Loan
	

    

	

   17. Beginning Balance
	

   0.0

	

   18. Cash (Checks/ACH) (-)
	

    
	

   1. Current Balance
	

   216.6

	

   19. Cash (Wire) (-)
	

    
	

   2. Ineligibles
	

   21.1

	

   20. Adjustments (-/+) (circle one)
	

    
	

   3. Eligible Collateral (2-3)
	

   195.5

	

   21. Advance (+)
	

    
	

   4. Eligible Inventory @ various %
	

   124.9

	

   22. Current Revolving Loan Balance @
	

   0.0
	

   5. Less Reserve
	

    

	

    
	

    
	

   6. Qualified Inventory
	

   124.9

	

    
	

    
	

   7. Availability
	

   106.2

	

   Total Availability (#15 + #7)
	

   613.9
	

    
	

    

	

    
	

    
	

    
	

    

	

   Total Credit Line
	

   500.0
	

    
	

    

	

   Qualified Availability
	

   500.0
	

    
	

    

	

   Less Total Revolving Loan Balance
	

   0.0
	

    
	

    

	

   Less Letters of Credit
	

   37.0
	

   See LC Tab
	

    

	

   Remaining Availability
	

   463.0
	

    
	

    

	

    
	

    
	

    
	

    

	

   Explanation:
	

    
	

    
	

    

	

    
	

    
	

    
	

    

	

   The foregoing information is delivered to Bank of America, N.A. in accordance with a the Amended and Restated Revolving Credit Agreement between BANK OFAMERICA, N.A. and Berry Plastics Corporation dated as of April 3, 2007, as amended, supplemented or otherwise modified from time to time.


   I hereby certify that the information contained herein is true and correct as of the dates shown herein. Nothing contained herein shall constitute a waiver, modification, or limitation of any of the terms or conditions set forth in the referenced Credit Agreement.


    


   Brackets are not necessary for negative numbers


   Unless what you want is different than what field indicates. 
	

    
	

    
	

   Prepared by Shay Helfrich 


    


   Title: Corporate Accuntant 


    


   Approved by and date: 


    


   Title: EVP 

	

   ** Items 1 through 9 to be completed when availability falls below $ 75 million. Ineligible detail at the division level will be supplied when availability falls below $75 million.

	 	 	 	 	 






 









 









 








SCHEDULE 4.02(d)


Post-closing
Security Interest Deliveries


 


            All intercompany
indebtedness required to be pledged pursuant to the definition of the
"Collateral and Guarantee Requirement" shall be pledged within 30
days of the Closing Date.


 












 










 








 








 


SCHEDULE
6.01


Indebtedness


1.         Guaranty by Berry
Plastics Corporation in connection with certain real estate leases by certain
subsidiaries.


2.         Capital Leases
(including any and all guarantees given in connection therewith) under various
vehicle leases.


3.         Capital Leases
(including any and all guaranties given in connection therewith):


	
  Lessor

  	
   Balance 

  
	
  Fifth Third

  	
             28,343 

  
	
  GE

  	
       4,179,135 

  
	
  GE

  	
       2,045,535 

  
	
  Fifth Third

  	
       5,715,275 

  
	
  Fifth Third

  	
       3,487,319 

  
	
  Fifth Third

  	
       1,265,405 

  
	
  United

  	
       3,312,734 

  
	
  United

  	
       4,251,997 

  
	
  United 

  	
       3,697,804 

  
	
  GE

  	
     10,142,497 

  
	
  GE-ext

  	
       4,636,537 

  
	
  GE-ext

  	
       1,735,489 

  
	
  ONB

  	
       4,722,411 

  
	
  Capital Source

  	
     11,681,713 

  
	
  Allegany Co.

  	
           977,391 

  
	
  Capital Source

  	
       9,828,595 

  
	
  GE Credit of TN

  	
           913,602 

  
	
  ONB

  	
       1,658,789 

  
	
  GE Capital

  	
             78,107 

  
	
  GE Capital

  	
             10,594 

  
	
  GE Capital

  	
             62,499 

  
	
  GE Capital

  	
           134,044 

  
	
  GE Capital

  	
             78,058 

  
	
  WOW Logistics

  	
       1,993,905 

  
	
  GE Capital

  	
           149,541 

  
	
  GE Capital

  	
       2,355,050 

  
	
  Icon

  	
       5,869,327 

  
	
  Sumerset Capital

  	
       2,421,572 

  
	
  Lorenso Corona

  	
       3,622,381 

  
	
   

  	
   

  
	
  Audit Adj

  	
     (3,032,228)

  
	
   

  	
     88,023,420 

  











 










 








 








1.         Note
in the initial principal amount of approximately CD17,500,000 dated July 1,
2006, by Covalence Specialty Materials Canada Limited to Covalence Specialty
Materials Corp. (now Berry Plastics Holding Corporation).


2.         Note in the initial
principal amount of approximately $623,000 dated May 24, 2006, by CSM India SPV
LLC to Covalence Specialty Materials Corp. (now Berry Plastics Holding Corporation).


3.         Note in the initial
principal amount of approximately €12,000,000 dated February 16, 2006, by
Covalence Specialty Materials (Belgium) BVBA to Covalence Specialty Materials
Corp. (now Berry Plastics Holding Corporation).


4.         Tyco Adhesives India
Private Ltd. line of credit from Citibank of up to $672,000.


5.         Covalence Specialty
Materials (Belgium) line of credit from ING of up to $1.0 million.


 


 
















 










 








 








SCHEDULE 6.02(a)


Liens


Liens on
property leased under capital leases securing Capital Lease Obligations described
in Schedule 6.01


Berry: 


	
   Debtor

   	
   State

   	
   Jurisdiction

   	
   Secured Party

   	
   Collateral

   	
   filing info

   
	
  Aerocon, LLC

  	
  DE

  	
  Secretary of State

  	
  Wells Fargo Bank, N.A., as Collateral Agent

  	
  All assets

  	
  9/21/2006

  #63278454

  
	
  Aerocon, LLC

  	
  DE

  	
  Secretary of State

  	
  Bank of America, N.A., as ABL Collateral Agent

  Credit Suisse, as Term Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2007 1241453

  4/3/07

  
	
  Aerocon, LLC

  	
  DE

  	
  Secretary of State

  	
  Wells Fargo Bank, National Association, as Collateral
  Agent

  	
  All Assets

  	
  UCC-1

  #2008 1384690

  4/21/08

  
	
  Aerocon, LLC

  	
  DE

  	
  Secretary of State

  	
  Bank of America, N.A., as ABL Collateral Agent

  Credit Suisse, as Term Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2008 1644010

  5/12/08

  
	
  Aerocon, LLC

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2009 3886618

  12/4/09

  
	
  Berry Iowa LLC

  	
  DE

  	
  Secretary of State

  	
  Greater Bay Bank N.A.

   

   

  	
  Leased equipment

  	
  1/4/2005

  #50025917

  
	
  Berry Iowa LLC

  	
  DE

  	
  Secretary of State

  	
  Greater Bay Bank N.A.

   

   

  	
  Leased equipment

  	
  6/1/2006

  #61856889

  
	
  Berry Iowa LLC

  	
  DE

  	
  Secretary of State

  	
   

  Well Fargo Bank, N.A., as Collateral Agent

   

   

  	
  All assets

  	
  9/21/2006

  #63278538

  
	
  Berry Iowa LLC

  	
  IA

  	
  Hardin County

  	
  Wells Fargo Bank, N.A, as Collateral Agent

   

   

  	
  Fixture filing

  	
  9/28/2006

  #yr: 2006 No: 3641

  
	
  Berry Iowa LLC

  	
  DE

  	
  Secretary of State

  	
  Bank of America, N.A., as ABL Collateral Agent

  Credit Suisse, as Term Collateral Agent All Assets

  	
  All assets

  	
  UCC-1

  #2007 1241982

  4/3/07

  
	
  Berry Iowa LLC

  	
  DE

  	
  Secretary of State

  	
  Wells Fargo Bank, National Association, as Collateral
  Agent

  	
  All Assets

  	
  UCC-1

  #2008 1384724

  4/21/08

  
	
  Berry Iowa LLC

  	
  DE

  	
  Secretary of State

  	
  Bank of America, N.A., as ABL Collateral Agent

  Credit Suisse, as Term Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2008 1644077

  5/12/08

  
	
  Berry Iowa LLC

  	
  DE

  	
  Secretary of State

  	
  Wells Fargo Bank, N.A.

   

  	
  Equipment Lease

  	
  UCC-1

  #2008 2698726

  8/6/08

  
	
  Berry Iowa LLC

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2009 3886659

  12/4/09

  
	
  Berry Plastics Acquisition Corporation IX

  	
  DE

  	
  Secretary of State

  	
  Wells Fargo Bank, N.A., as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #6327867 8

  9/21/06

  
	
  Berry Plastics Acquisition Corporation IX

  	
  DE

  	
  Secretary of State

  	
  Bank of America, N.A., as ABL Collateral Agent

  Credit Suisse, as Term Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2007 1241776

  4/3/07

  
	
  Berry Plastics
  Acquisition Corporation IX

  	
  DE

  	
  Secretary of State

  	
  Wells Fargo Bank, N.A., as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2007 3710653

  10/1/07

  
	
  Berry Plastics Acquisition Corporation IX

  	
  DE

  	
  Secretary of State

  	
  Wells Fargo Bank, National Association, as Collateral
  Agent

  	
  All Assets

  	
  UCC-1

  #2008 1384765

  4/21/08

  
	
  Berry Plastics Acquisition Corporation IX

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2009 3886808

  12/4/09

  
	
  Berry Plastics Acquisition  Corporation VIII

  	
  DE

  	
  Secretary of State

  	
   

  Well Fargo Bank, N.A., as Collateral Agent

   

   

  	
  All assets

  	
  9/21/2006

  #63279130

  
	
  Berry Plastics Acquisition  Corporation VIII

  	
  DE

  	
  Secretary of State

  	
  Bank of America, N.A., as ABL Collateral Agent

  Credit Suisse, as Term Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2007 1241743

  4/3/07

  
	
  Berry Plastics Acquisition  Corporation VIII

  	
  DE

  	
  Secretary of State

  	
  Wells Fargo Bank, National Association, as Collateral
  Agent

  	
  All Assets

  	
  UCC-1

  #2008 1384799

  4/21/08

  
	
  Berry Plastics Acquisition  Corporation VIII

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2009 3886915

  12/4/09

  
	
  Berry Plastics Acquisition Corporation III

  	
  DE

  	
  Secretary of State

  	
   

  Well Fargo Bank, N.A., as Collateral Agent

   

   

  	
  All assets

  	
  9/21/2006

  #63278629

  
	
  Berry Plastics Acquisition Corporation III

  	
  DE

  	
  Secretary of State

  	
  Bank of America, N.A., as ABL Collateral Agent

  Credit Suisse, as Term Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2007 1241651

  4/3/07

  
	
  Berry Plastics
  Acquisition Corporation III

  	
  DE

  	
  Secretary of State

  	
  Wells Fargo Bank, National Association, as Collateral
  Agent

  	
  All Assets

  	
  UCC-1

  #2008 1384732

  4/21/08

  
	
  Berry Plastics Acquisition Corporation III

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2009 3886758

  12/4/09

  
	
  Berry Plastics Acquisition Corporation V

  	
  DE

  	
  Secretary of State

  	
   

  Wells Fargo Bank, N.A., as Collateral Agent

   

   

  	
  All assets

  	
  9/21/2006

  #63278991

  
	
  Berry Plastics Acquisition Corporation V

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2009 3886840

  12/4/09

  
	
  Berry Plastics Acquisition Corporation V

  	
  DE

  	
  Secretary of State

  	
  Bank of America, N.A., as ABL Collateral Agent

  Credit Suisse, as Term Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2007 1241685

  4/3/07

  
	
  Berry Plastics Acquisition Corporation V

  	
  DE

  	
  Secretary of State

  	
  Wells Fargo Bank, National Association, as Collateral
  Agent

  	
  All Assets

  	
  UCC-1

  #2008 1384773

  4/21/08

  
	
  Berry Plastics Opco, Inc. (f/k/a Berry Plastics
  Acquisition  Corporation VII)

  	
  DE

  	
  Secretary of State

  	
   

  Well Fargo Bank, N.A., as Collateral Agent

   

   

  	
  All assets

  	
  9/21/2006

  #63279064

  
	
  Berry Plastics Opco, Inc. (f/k/a Berry Plastics
  Acquisition  Corporation VII)

  	
  DE

  	
  Secretary of State

  	
  Bank of America, N.A., as ABL Collateral Agent

  Credit Suisse, as Term Collateral Agent

  	
  All Assets

   

  	
  UCC-1

  #2007 1241719

  4/3/07

  
	
  Berry Plastics Opco, Inc. (f/k/a Berry Plastics
  Acquisition  Corporation VII)

  	
  DE

  	
  Secretary of State

  	
  Wells Fargo Bank, National Association, as Collateral
  Agent

  	
  All Assets

  	
  UCC-1

  #2008 1385416

  4/21/08

  
	
  Berry Plastics Opco,
  Inc. (f/k/a Berry Plastics Acquisition  Corporation VII)

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2009 3887293

  12/4/09

  
	
  Berry Plastics Acquisition Corporation X

  	
  DE

  	
  Secretary of State

  	
   

  Wells Fargo Bank, N.A., as Collateral Agent

   

   

  	
  All assets

  	
  9/21/2006

  #63279239

  
	
  Berry Plastics Acquisition Corporation X

  	
  DE

  	
  Secretary of State

  	
  Bank of America, N.A., as ABL Collateral Agent

  Credit Suisse, as Term Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2007 1241818

  4/3/07

  
	
  Berry Plastics Acquisition Corporation X

  	
  DE

  	
  Secretary of State

  	
  Wells Fargo Bank, National Association, as Collateral
  Agent

  	
  All Assets

  	
  UCC-1

  #2008 1384807

  4/21/08

  
	
  Berry Plastics Acquisition Corporation X

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2009 3887012

  12/4/09

  
	
  Berry Plastics Acquisition Corporation XI

  	
  DE

  	
  Secretary of State

  	
   

  Wells Fargo Bank, N.A., as Collateral Agent

   

   

  	
  All assets

  	
  9/21/2006

  #63279320

  
	
  Berry Plastics Acquisition Corporation XI

  	
  DE

  	
  Secretary of State

  	
  Bank of America, N.A., as ABL Collateral Agent

  Credit Suisse, as Term Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2007 1241875

  4/3/07

  
	
  Berry Plastics Acquisition Corporation XI

  	
  DE

  	
  Secretary of State

  	
  Wells Fargo Bank, National Association, as Collateral
  Agent

  	
  All Assets

  	
  UCC-1

  #2008 1399334

  4/21/08

  
	
  Berry Plastics Acquisition Corporation XI

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2009 3887061

  12/4/09

  
	
  Berry Plastics
  Acquisition Corporation XII

  	
  DE

  	
  Secretary of State

  	
   

  Wells Fargo Bank, N.A., as Collateral Agent

   

   

  	
  All assets

  	
  9/21/2006

  #63279460

  
	
  Berry Plastics Acquisition Corporation XII

  	
  DE

  	
  Secretary of State

  	
  Bank of America, N.A., as ABL Collateral Agent

  Credit Suisse, as Term Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2007 1241891

  4/3/07

  
	
  Berry Plastics Acquisition Corporation XII

  	
  DE

  	
  Secretary of State

  	
  Wells Fargo Bank, National Association, as Collateral
  Agent

  	
  All Assets

  	
  UCC-1

  #2008 1385317

  4/21/08

  
	
  Berry Plastics Acquisition Corporation XII

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2009 3887095

  12/4/09

  
	
  Berry Plastics Acquisition Corporation XIII

  	
  DE

  	
  Secretary of State

  	
  Wells Fargo Bank, N.A., as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #6327958 5

  9/21/06

  
	
  Berry Plastics Acquisition Corporation XIII

  	
  DE

  	
  Secretary of State

  	
  Bank of America, N.A., as ABL Collateral Agent

  Credit Suisse, as Term Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2007 1241933

  4/3/07

  
	
  Berry Plastics Acquisition Corporation XIII

  	
  DE

  	
  Secretary of State

  	
  Wells Fargo Bank, N.A., as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2007 3710752

  10/1/07

  
	
  Berry Plastics Acquisition Corporation XIII

  	
  DE

  	
  Secretary of State

  	
  Wells Fargo Bank, National Association, as Collateral
  Agent

  	
  All Assets

  	
  UCC-1

  #2008 1385374

  4/21/08

  
	
  Berry Plastics Acquisition Corporation XIII

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2009 3887103

  12/4/09

  
	
  Berry Plastics
  Acquisition Corporation XV, LLC

  	
  DE

  	
  Secretary of State

  	
   

  Wells Fargo Bank, N.A., as Collateral Agent

   

   

  	
  All assets

  	
  9/21/2006

  #63279544

  
	
  Berry Plastics Acquisition Corporation XV, LLC

  	
  DE

  	
  Secretary of State

  	
  Bank of America, N.A., as ABL Collateral Agent

  Credit Suisse, as Term Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2007 1241958

  4/3/07

  
	
  Berry Plastics Acquisition Corporation XV, LLC

  	
  DE

  	
  Secretary of State

  	
  Wells Fargo Bank, National Association, as Collateral
  Agent

  	
  All Assets

  	
  UCC-1

  #2008 1385382

  4/21/08

  
	
  Berry Plastics Acquisition Corporation XV, LLC

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2008 3887178

  12/4/09

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  General Electric Capital Corporation

   

   

  	
  Leased equipment

  	
  10/22/01

  #11281554

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  General Electric Capital Corporation

   

   

  	
  In-Lieu of DE filing

  Leased equipment

  	
  3/28/02

  #20951198

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  IBM Credit Corporation

   

   

  	
  Leased equipment

  	
  5/10/02

  #21377369

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  American Packaging Capital, Inc.

   

   

  	
  Leased equipment

  	
  5/20/02

  #21473515

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  United Leasing Inc.

  Additional Secured Party: Fifth Third Bank As Agent

   

   

  	
  In-Lieu of KS filing.  No collateral description
  attached.

  	
  6/19/02

  #21501497

  
	
  Berry Plastics
  Corporation

  	
  DE

  	
  Secretary of State

  	
  Toyota Motor Credit Corporation

   

   

  	
  Toyota equipment

  	
  6/7/02

  #21677933

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Old National Bank

   

   

  	
  Specific equipment

  	
  9/9/02

  #22306342

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  United Leasing Inc.

  Additional Secured Party: Fifth Third Bank As Agent

   

   

  	
  Leased equipment

  	
  11/25/02

  #22953556

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  United Leasing Inc.

  Additional Secured Party: Fifth Third Bank As Agent

   

   

  	
  Leased equipment

  	
  12/10/02

  #23083544

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Fifth Third Bank, Indiana (Southern)

   

   

  	
  Specific equipment

  	
  12/16/02

  #30019185

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Fifth Third Bank, Indiana (Southern)

   

   

  	
  Specific equipment

  	
  12/16/02

  #30020274

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Fifth Third Bank, Indiana (Southern)

   

   

  	
  Specific equipment

  	
  12/16/02

  #30020399

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Fifth Third Bank, Indiana (Southern)

   

   

  	
  Specific equipment

  	
  12/18/02

  #30042021

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Fifth Third Bank, Preparation Indiana

  Additional Secured Party:  Fifth Third Bank, Indiana

   

   

  	
  Leased equipment

  	
  3/19/03

  #30778798

  
	
  Berry Plastics
  Corporation

  	
  DE

  	
  Secretary of State

  	
  Emigrant Business Credit Corp.

   

   

  	
  In-Lieu of IN SoS filings.

  Specific equipment

  	
  5/8/03

  #31193260

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Ameritech Credit Corporation

  Additional Secured Party: SBC Capital Services

   

   

  	
  Leased equipment

  	
  6/12/03

  #31827826

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  The Fifth Third Leasing Company

  	
  Equipment Lease

  	
  UCC-1

  #4175223 8

  6/24/04

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  US Bancorp

   

   

  	
  Leased equipment

  	
  6/25/03

  #31609695

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  General Electric Capital Corporation

   

   

  	
  Leased equipment

  	
  7/22/03

  #31875890

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Old National Bank

   

   

  	
  Specific equipment

  	
  8/19/03

  #32321712

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  General Electric Capital Corporation

   

   

  	
  Leased equipment

  	
  9/3/03

  #32275678

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Old National

   

   

  	
  Leased equipment

  	
  9/29/03

  #32613969

  
	
  Berry Plastics
  Corporation

  	
  DE

  	
  Secretary of State

  	
  General Electric Capital Corporation

   

   

  	
  In-Lieu of NC SoS filing.

  Leased equipment

  	
  11/10/03

  #32939661

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  General Electric Capital Corporation

   

   

  	
  In-Lieu of IN SoS filing.

  Leased equipment

  	
  11/12/03

  #32969833

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  General Electric Capital Corporation

   

   

  	
  In-Lieu of OH Huron County, In SoS filings.

  Leased equipment

  	
  1/15/04

  #40113805

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  General Electric Capital Corporation

   

   

  	
  In-Lieu of, In SoS filing.

  Leased equipment

  	
  2/23/04

  #40494015

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Xpedx, An International Paper Company

   

   

  	
  Specific equipment

  	
  2/27/04

  #40610354

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Fifth Third Bank

   

   

  	
  Leased equipment

  	
  4/23/04

  #41145723

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  United Leasing Inc.

  Additional Secured Party: Fifth Third Bank As Agent

   

   

  	
  Leased equipment

  	
  4/29/04

  #41201831

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Old National

   

   

  	
  Leased equipment

  	
  4/28/04

  #41358292

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Old National

   

   

  	
  Leased equipment

  	
  4/28/04

  #41359993

  
	
  Berry Plastics
  Corporation

  	
  DE

  	
  Secretary of State

  	
  Old National

   

   

  	
  Leased equipment

  	
  4/28/04

  #41360009

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  The Fifth Third Leasing Company Additional Secured
  Party: Universal Equipment Leasing Co. LLC

   

   

  	
  Leased equipment

  	
  6/24/04

  #41752338

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Fleet National Bank c/o Fleet Capital Corporation

   

   

  	
  Specific equipment

  	
  6/25/04

  #41847294

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  General Electric Capital Corporation

   

   

  	
  In-Lieu of IN SoS and NC SoS filing.

  Leased equipment

  	
  6/28/04

  #41848581

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  General Electric Capital Corporation

   

   

  	
  In-Lieu of OH SoS filing.

  Leased equipment

  	
  6/28/04

  #41849522

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Fleet National Bank c/o Fleet Capital Corporation

   

   

  	
  Leased equipment

  	
  7/1/04

  #41887381

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Fleet National Bank c/o Fleet Capital Corporation

  	
  Equipment Lease

  	
  UCC-1

  #4193298 9

  7/07/04

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Universal Equipment Leasing Co. LLC

   

   

  	
  Leased equipment

  	
  9/7/04

  #42506311

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  General Electric Capital Corporation

   

   

  	
  In-Lieu of IN SoS filing.

  Leased equipment

  	
  10/4/04

  #42773523

  
	
  Berry Plastics
  Corporation

  	
  DE

  	
  Secretary of State

  	
  GreatAmerica Leasing Corporation

   

   

  	
  Leased equipment

  	
  11/5/04

  #43123264

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Universal Equipment Leasing Co. LLC

   

   

  	
  Leased equipment

  	
  11/30/04

  #43344795

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  SACMI - Cooperativa Meccanici Imola Societa
  Cooperativa A R.L.

   

   

  	
  Specific equipment

  	
  12/13/04

  #43564483

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Universal Equipment Leasing Co. LLC

  Additional Secured Party: HSBC Bank USA, National
  Association

   

   

  	
  Leased equipment

  	
  12/30/04

  #43685494

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  General Electric Capital Corporation

   

   

  	
  In-Lieu of IN and IL filing

  Leased equipment

  	
  3/3/05

  #50689696

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  General Electric Capital Corporation

   

   

  	
  Leased equipment

  	
  3/4/05

  #50707696

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  General Electric Capital Corporation

   

   

  	
  Specific equipment

  	
  3/4/05

  #50707779

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  General Electric Capital Corporation

   

   

  	
  Leased equipment

  	
  3/7/05

  #50715699

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  General Electric Capital Corporation

   

   

  	
  Leased equipment

  	
  3/7/05

  #50777673

  
	
  Berry Plastics
  Corporation

  	
  DE

  	
  Secretary of State

  	
  The Fifth Third Leasing Company

   

   

  	
  Leased equipment

  	
  4/7/05

  #51063263

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  GE Commercial Finance Business Property Corporation

   

   

  	
  Fixture filing

  	
  5/2/05

  #51341404

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Toyota Motor Credit Corporation

   

   

  	
  Toyota equipment

  	
  5/27/05

  #51641092

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  AVN Air LLC

   

   

  	
  Specific equipment

  	
  10/4/05

  #53070910

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  General Electric Capital Corporation

   

   

  	
  Leased equipment

  	
  10/18/05

  #53317048

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Old National Bank

   

   

  	
  Leased equipment

  	
  12/14/05

  #53955409

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  General Electric Capital Corporation

   

   

  	
  Leased equipment

  	
  01/04/06

  #60104026

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  RBS Asset Finance, Inc.

   

   

  	
  Leased equipment

  	
  1/13/06

  #60145250

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  De Lage Landen Financial Services, Inc.

   

   

  	
  Leased equipment

  	
  3/31/06

  #61215672

  
	
  Berry Plastics
  Corporation

  	
  DE

  	
  Secretary of State

  	
  NMHG Financial Services Inc.

   

   

  	
  Leased equipment

  	
  5/11/06

  #61597962

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  The Fifth Third Leasing Company

   

   

  	
  Leased equipment

  	
  6/20/06

  #62108116

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  General Electric Capital Corporation

   

   

  	
  Leased equipment

  	
  7/3/06

  #62297794

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Old National Bank

   

   

  	
  Leased equipment

  	
  7/3/06

  #62339265

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
   

  Wells Fargo Bank, N.A., as Collateral Agent

   

   

  	
  All assets

  	
  9/21/2006

  #63279569

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  International Financial Services Corporation

  	
  Leased equipment

  	
  10/02/2006

  #63404787

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
   

  Van Dam Machine Corp.

   

   

  	
  Leased equipment

  	
  10/5/2006

  #63465465

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
   

  Van Dam Machine Corp.

   

   

  	
  Leased equipment

  	
  10/5/2006

  #63465481

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
   

  General Electric Capital Corporation

   

   

  	
  Leased printing system

  	
  1/2/2007

  #20070008002

  
	
  Berry Plastics
  Corporation

  	
  DE

  	
  Secretary of State

  	
   

  Fifth Third Bank

   

   

  	
  Leased equipment

  	
  3/15/2007

  #20070981505

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Fifth Third Bank

  	
  Equipment Lease

  	
  UCC-1

  #2007 1215994

  4/2/07

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Fifth Third Bank

  	
  Equipment Lease

  	
  UCC-1

  #2007 1216646

  4/2/07

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Bank of America, N.A., as ABL Collateral Agent

  Credit Suisse, as Term Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2007 1241297

  4/3/07

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Bank of America, N.A., as ABL Collateral Agent

  Credit Suisse, as Term Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2007 1241412

  4/3/07

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  The Fifth Third Leasing Company

  	
  Equipment Lease

  	
  UCC-1

  #2007 1865558

  5/17/07

  
	
  Berry Plastics
  Corporation

  	
  DE

  	
  Secretary of State

  	
  Toyota Motor Credit Corporation

  	
  Equipment Lease

  	
  UCC-1

  #2007 2323300

  6/19/07

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Citicorp Leasing, Inc.

  	
  Equipment Lease

  	
  UCC-1

  #2007 2389046

  6/25/07

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Handschy Industries, LLC

  	
  Goods on Consignment

  	
  UCC-1

  #2007 2394251

  6/22/07

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Old National Bank

  	
  Equipment Lease

  	
  UCC-1

  #2007 3058905

  7/3/07

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Citicorp Leasing, Inc.

  	
  Equipment Lease

  	
  UCC-1

  #2007 3122255

  8/16/07

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Toyota Motor Credit Corporation

  	
  Equipment Lease

  	
  UCC-1

  #2007 3393450

  9/6/07

  
	
  Berry Plastics
  Corporation

  	
  DE

  	
  Secretary of State

  	
  Toyota Motor Credit Corporation

  	
  Equipment Lease

  	
  UCC-1

  #2007 3393674

  9/6/07

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Toyota Motor Credit Corporation

  	
  Equipment Lease

  	
  UCC-1

  #2007 3394060

  9/6/07

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Toyota Motor Credit Corporation

  	
  Equipment Lease

  	
  UCC-1

  #2007 3394219

  9/6/07

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Bank of America Leasing & Capital LLC

  	
  Equipment Lease

  	
  UCC-1

  #2007 3686166

  10/1/07

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Toyota Motor Credit Corporation

  Southern Material Handling

  	
  Equipment Lease

  	
  UCC-1

  #2007 4174784

  11/2/07

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  NMHG Financial Services, Inc.

  	
  Equipment Lease

  	
  UCC-1

  #2008 0768018

  3/4/08

  
	
  Berry Plastics
  Corporation

  	
  DE

  	
  Secretary of State

  	
  The Fifth Third Leasing Company

  	
  Equipment Lease

  	
  UCC-1

  #2008 0810679

  3/6/08

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Wells Fargo Bank, National Association, as Collateral
  Agent

  	
  All Assets

  	
  UCC-1

  #2008 12385390

  4/21/08

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Industrial Leasing LLC

  	
  Equipment Lease

  	
  UCC-1

  #2008 1635315

  5/12/08

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Harold M. Pitman Company

  	
  Goods on Consignment

  	
  UCC-1

  #3008 1702222

  5/16/08

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  NMHG Financial Services, Inc.

  	
  Equipment Lease

  	
  UCC-1

  #2008 1839982

  5/29/08

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  NMHG Financial Services, Inc.

  	
  Equipment Lease

  	
  UCC-1

  #2008 2207742

  6/27/08

  
	
  Berry Plastics
  Corporation

  	
  DE

  	
  Secretary of State

  	
  Fifth Third Bank

  	
  Equipment Lease

  	
  UCC-1

  #2008 26617908

  8/4/08

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Toyota Motor Credit Corporation

  	
  Equipment Lease

  	
  UCC-1

  #2008 2669180

  8/5/08

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Toyota Motor Credit Corporation

  Southeast Industrial Equipment, Inc.

  	
  Equipment Lease

  	
  UCC-1

  #2008 2932398

  8/28/08

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Toyota Motor Credit Corporation

  	
  Equipment Lease

  	
  UCC-1

  #2008 3016787

  9/8/08

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Fifth Third Bank as Agent

  United Leasing, Inc

  	
  Equipment Lease

  	
  UCC-1

  #2008 3276811

  9/26/08

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Old National Bank

  	
  Equipment Lease

  	
  UCC-1

  #2008 3529771

  10/20/08

  
	
  Berry Plastics
  Corporation

  	
  DE

  	
  Secretary of State

  	
  Cisco Systems Capital Corporation

  	
  Equipment Lease

  	
  UCC-1

  #2008 3793179

  11/12/08

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Coactiv Capital Partners, Inc.

  	
  Equipment Lease

  	
  UCC-1

  #2009 0209582

  1/21/09

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Norandal USA Inc.

  	
  Goods on Consignment

  	
  UCC-1

  #2009 0400330

  2/5/09

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Toyota Motor Credit Corporation

  	
  Equipment Lease

  	
  UCC-1

  #2009 0523859

  2/18/09

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Crown Credit Company

  	
  Equipment Lease

  	
  UCC-1

  #2009 0638889

  2/27/09

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Wells Fargo Bank, N.A.

  	
  Equipment Lease

  	
  UCC-1

  #2009 0718194

  3/6/09

  
	
  Berry Plastics
  Corporation

  	
  DE

  	
  Secretary of State

  	
  HAVI  Global Solutions LLC

  	
  Purchase Money Security Interest

  	
  UCC-1

  #2009 0841764

  3/17/09

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Crown Credit Company

  	
  Equipment Lease

  	
  UCC-1

  #2009 0989522

  3/28/09

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Breyer GMBH Machienenfabrik

  	
  Equipment Lease

  	
  UCC-1

  #2009 1084059

  4/6/09

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Raymond Leasing Corporation

  	
  Equipment Lease

  	
  UCC-1

  #2009 1350781

  4/29/09

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Mac Equipment Inc.

  	
  Equipment Lease

  	
  UCC-1

  #2009 1402624

  4/27/09

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  NMHG Financial Services, Inc.

  	
  Equipment Lease

  	
  UCC-1

  #2009 1711008

  6/1/09

  
	
  Berry Plastics
  Corporation

  	
  DE

  	
  Secretary of State

  	
  Wells Fargo Bank, N.A.

  	
  Equipment Lease

  	
  UCC-1

  #2009 2107461

  7/1/09

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Crown Credit Company

  	
  Equipment Lease

  	
  UCC-1

  #2009 2421995

  7/29/09

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Toyota Motor Credit Corporation

  	
  Equipment Lease

  	
  UCC-1

  #2009 2494265

  8/4/09

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Toyota Motor Credit Corporation

  	
  Equipment Lease

  	
  UCC-1

  #2009 2494703

  8/4/09

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Toyota Motor Credit Corporation

  	
  Equipment Lease

  	
  UCC-1

  #2009 2494711

  8/4/09

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  VA&F Financial

  	
  Equipment Lease

  	
  UCC-1

  #2009 2512454

  8/5/09

  
	
  Berry Plastics
  Corporation

  	
  DE

  	
  Secretary of State

  	
  VA&F Financial

  	
  Equipment Lease

  	
  UCC-1

  #2009 2512652

  8/5/09

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  VA&F Financial

  	
  Equipment Lease

  	
  UCC-1

  #2009 2512819

  8/5/09

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  VA&F Financial

  	
  Equipment Lease

  	
  UCC-1

  #2009 2512934

  8/5/09

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  VA&F Financial

  	
  Equipment Lease

  	
  UCC-1

  #2009 2513064

  8/5/09

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  VA&F Financial

  	
  Equipment Lease

  	
  UCC-1

  #2009 2513221

  8/5/09

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  VA&F Financial

  	
  Equipment Lease

  	
  UCC-1

  #2009 2513320

  8/5/09

  
	
  Berry Plastics
  Corporation

  	
  DE

  	
  Secretary of State

  	
  VA&F Financial

  	
  Equipment Lease

  	
  UCC-1

  #2009 2529565

  8/6/09

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  VA&F Financial

  	
  Equipment Lease

  	
  UCC-1

  #2009 2530084

  8/6/09

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Farm Credit Leasing Services Corporation

  	
  Equipment Lease

  	
  UCC-1

  #2009 2530159

  8/6/09

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  VA&F Financial

  	
  Equipment Lease

  	
  UCC-1

  #2009 2530340

  8/6/09

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  VA&F Financial

  	
  Equipment Lease

  	
  UCC-1

  #2009 2530696

  8/6/09

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  VA&F Financial

  	
  Equipment Lease

  	
  UCC-1

  #2009 2865126

  9/4/09

  
	
  Berry Plastics
  Corporation

  	
  DE

  	
  Secretary of State

  	
  Raymond Leasing Corporation

  	
  Equipment Lease

  	
  UCC-1

  #2009 3115810

  9/29/09

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Key Equipment Finance Inc.

  	
  Equipment Lease

  	
  UCC-1

  #2009 3318703

  10/15/09

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  General Electric Capital Corporation

  	
  Equipment Lease

  	
  UCC-1

  #2009 3367882

  10/20/09

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  General Electric Capital Corporation

  	
  Equipment Lease

  	
  UCC-1

  #2009 3368260

  10/20/09

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  VA&F Financial

  	
  Equipment Lease

  	
  UCC-1

  #2009 3398309

  10/22/09

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  VA&F Financial

  	
  Equipment Lease

  	
  UCC-1

  #2009 3572838

  11/6/09

  
	
  Berry Plastics
  Corporation

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  Equipment Lease

  	
  UCC-1

  #2009 3887202

  12/4/09

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  VA&F Financial

  	
  Equipment Lease

  	
  UCC-1

  #2009 3937502

  12/9/09

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Black Equipment Co Inc

  	
  Equipment Lease

  	
  UCC-1

  #2009 3980312

  12/11/09

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  VA&F Financial

  	
  Equipment Lease

  	
  UCC-1

  #2010 0050090

  1/7/10

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  VA&F Financial

  	
  Equipment Lease

  	
  UCC-1

  #2010 0384689

  2/3/10

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Fifth Third Bank as Agent

  United Leasing

  	
  Equipment Lease

  	
  UCC-1

  #2010 0494033

  2/15/10

  
	
  Berry Plastics
  Corporation

  	
  DE

  	
  Secretary of State

  	
  VA&F Financial

  	
  Equipment Lease

  	
  UCC-1

  #2010 0726533

  3/4/10

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Makino Inc.

  	
  Equipment Lease

  	
  UCC-1

  #2010 0811541

  3/10/10

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  NMHG Financial Services, Inc.

  	
  Equipment Lease

  	
  UCC-1

  #2010 1330723

  4/16/10

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Greatamerica Leasing Corporation

  	
  Equipment Lease

  	
  UCC-1

  #2010 1048713

  3/26/10

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  VA&F Financial

  	
  Equipment Lease

  	
  UCC-1

  #2010 1176308

  4/6/10

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  VA&F Financial

  	
  Equipment Lease

  	
  UCC-1

  #2010 1817471

  5/24/10

  
	
  Berry Plastics
  Corporation

  	
  DE

  	
  Secretary of State

  	
  Packaging Corporation of America

  	
  Equipment Lease

  	
  UCC-1

  #2010 1943624

  6/3/10

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  VA&F Financial

  	
  Equipment Lease

  	
  UCC-1

  #2010 1959174

  6/4/10

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  General Electric Capital Corporation

  	
  Equipment Lease

  	
  UCC-1

  #2010 2228598

  6/25/10

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Old National Leasing Corporation

  	
  Equipment Lease

  	
  UCC-1

  #2010 2330334

  7/2/10

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  VA&F Financial

  	
  Equipment Lease

  	
  UCC-1

  #2010 2621666

  7/28/10

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Toyota Motor Credit Corporation

  	
  Equipment Lease

  	
  UCC-1

  #2010 3095233

  9/3/10

  
	
  Berry Plastics
  Corporation

  	
  DE

  	
  Secretary of State

  	
  VA&F Financial

  	
  Equipment Lease

  	
  UCC-1

  #2010 3122755

  9/8/10

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  De Lage Landen Financial Services, Inc.

  	
  Equipment Lease

  	
  UCC-1

  #2010 3344664

  9/24/10

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  NMHG Financial Services, Inc.

  	
  Equipment Lease

  	
  UCC-1

  #2010 3346743

  9/24/10

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  NMHG Financial Services, Inc.

  	
  Equipment Lease

  	
  UCC-1

  #2010 3377490

  9/28/10

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Toyota Motor Credit Corporation

  	
  Equipment Lease

  	
  UCC-1

  #2010 3434952

  10/1/10

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  CapitalSource Bank

  	
  Equipment Lease

  	
  UCC-1

  #2010 3435173

  10/1/10

  
	
  Berry Plastics
  Corporation

  	
  DE

  	
  Secretary of State

  	
  VA&F

   Financial 

  	
  Equipment Lease

  	
  UCC-1

  #2010 3483058

  10/6/10

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Huskey Injection Molding System

  	
  Equipment Lease

  	
  UCC-1

  #2010 3558537

  10/12/10

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Citibank, N.A.

  	
  Accounts Receivable under a Supplier Agreement

  	
  UCC-1

  #2010 3628322

  10/18/10

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Kaman Industrial Technologies Corporation

  	
  Consigned Goods

  	
  UCC-1

  #2010 4233734

  12/2/10

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  VA&F

   Financial 

  	
  Equipment Lease

  	
  UCC-1

  #2010 4269209

  12/6/10

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Toyota Motor Credit Corporation

  	
  Equipment Lease

  	
  UCC-1

  #2010 4355008

  12/9/10

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  PackSys Global (Switzerland) Limited

  	
  Equipment Lease

  	
  UCC-1

  #2010 453148

  12/21/10

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  VA&F

   Financial 

  	
  Equipment Lease

  	
  UCC-1

  #2011 0053135

  1/6/11

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  VA&F

   Financial 

  	
  Equipment Lease

  	
  UCC-1

  #2011 0172406

  1/17/11

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Toyota Motor Credit Corporation

  	
  Equipment Lease

  	
  UCC-1

  #2011 0232549

  1/21/11

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Toyota Motor Credit Corporation

  	
  Equipment Lease

  	
  UCC-1

  #2011 0233992

  1/21/11

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Toyota Motor Credit Corporation

  	
  Equipment Lease

  	
  UCC-1

  #2011 0263080

  1/24/11

  
	
  Berry Plastics
  Corporation

  	
  DE

  	
  Secretary of State

  	
  Toyota Motor Credit Corporation

  	
  Equipment Lease

  	
  UCC-1

  #2011 0263700

  1/24/11

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Toyota Motor Credit Corporation

  	
  Equipment Lease

  	
  UCC-1

  #2011 0264187

  1/24/11

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Toyota Motor Credit Corporation

  	
  Equipment Lease

  	
  UCC-1

  #2011 0254716

  1/24/11

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  E.I. DuPont De Nemours and Company

  	
  Equipment Lease

  	
  UCC-1

  #2011 0344583

  1/5/11

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Toyota Motor Credit Corporation

  	
  Equipment Lease

  	
  UCC-1

  #2011 0372709

  2/1/11

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Toyota Motor Credit Corporation

  	
  Equipment Lease

  	
  UCC-1

  #2011 0372725

  2/1/11

  
	
  Berry Plastics
  Corporation

  	
  DE

  	
  Secretary of State

  	
  Toyota Motor Credit Corporation

  	
  Equipment Lease

  	
  UCC-1

  #2011 0372733

  2/1/11

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  VA&F

   Financial 

  	
  Equipment Lease

  	
  UCC-1

  #2011 0428782

  2/4/11

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Milacron Marketing Company LLC

  	
  Equipment Lease

  	
  UCC-1

  #2011 0436454

  1/18/11

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  CapitalSource Bank

  	
  Equipment Lease

  	
  UCC-1

  #2011 0982358

  3/16/11

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Toyota Motor Credit Corporation

  	
  Equipment Lease

  	
  UCC-1

  #2011 1104846

  3/25/11

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Toyota Motor Credit Corporation

  	
  Equipment Lease

  	
  UCC-1

  #2011 1274961

  4/6/11

  
	
  Berry Plastics
  Corporation

  	
  DE

  	
  Secretary of State

  	
  Toyota Motor Credit Corporation

  	
  Equipment Lease

  	
  UCC-1

  #2011 1509515

  4/21/11

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  AGFA II Acquisition Corporation

  	
  Equipment Lease

  	
  UCC-1

  #2011 1544157

  4/26/11

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  United Leasing, Inc.

  Fifth Third Bank, as Agent

  	
  Equipment Lease

  	
  UCC-1

  #2011 1613358

  4/29/11

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  United Leasing, Inc.

  Fifth Third Bank, as Agent

  	
  Equipment Lease

  	
  UCC-1

  #2011 1613648

  4/29/11

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Komatsu Financial Limited Partnership

  	
  Equipment Lease

  	
  UCC-1

  #2011 1903395

  5/19/11

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Komatsu Financial Limited Partnership

  	
  Equipment Lease

  	
  UCC-1

  #2011 1903460

  5/19/11

  
	
  Berry Plastics
  Corporation

  	
  DE

  	
  Secretary of State

  	
  Komatsu Financial Limited Partnership

  	
  Equipment Lease

  	
  UCC-1

  #2011 1903569

  5/19/11

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Komatsu Financial Limited Partnership

  	
  Equipment Lease

  	
  UCC-1

  #2011 1903627

  5/19/11

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Komatsu Financial Limited Partnership

  	
  Equipment Lease

  	
  UCC-1

  #2011 1903692

  5/19/11

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Citibank Canada

  	
  Accounts Receivable under Supplier Agreement

  	
  UCC-1

  #2011 1904690

  5/19/11

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Nissan Motor Acceptance Corporation

  	
  Equipment Lease

  	
  UCC-1

  #2011 1986648

  5/25/11

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  AGFA II Acquisition Corp.

  	
  Equipment Lease

  	
  UCC-1

  #2011 2009978

  5/26/11

  
	
  Berry Plastics
  Corporation

  	
  IN

  	
  Vanderburgh County

  	
  Wells Fargo Bank, N.A., as Collateral Agent

  	
  Fixture filing

  	
  9/28/2006

  #2006U00000339

  
	
  Berry Plastics Corporation

  	
  NV

  	
  Clark County

  	
  Wells Fargo Bank, N.A., as Collateral Agent

  	
  Fixture filing

  	
  9/22/2006

  #20060922-0003839

  
	
  Berry Plastics Corporation

  	
  DE

  	
  Secretary of State

  	
  Wells Fargo Bank, N.A., as Collateral Agent

  	
  All Assets

  	
  9/21/2006

  #63279817

  
	
  Berry Plastics Holding Corporation (now Berry
  Plastisc Corporation)

  	
  DE

  	
  Secretary of State

  	
  Citicapital Commercial Leasing Corporation

  	
  Equipment Lease

  	
  UCC-1

  #2007 3509352

  9/17/07

  
	
  Berry Plastics Holding Corporation (now Berry
  Plastisc Corporation)

  	
  DE

  	
  Secretary of State

  	
  NMHG Financial Services, Inc.

  	
  Equipment Lease

  	
  UCC-1

  #2007 4898218

  12/28/07

  
	
  Berry Plastics Holding Corporation (now Berry
  Plastisc Corporation)

  	
  DE

  	
  Secretary of State

  	
  Equipment Leasing Services, LLC

  	
  Equipment Lease

  	
  UCC-1

  #2008 0199628

  1/16/08

   

  
	
  Berry Plastics Holding Corporation (now Berry
  Plastisc Corporation)

  	
  DE

  	
  Secretary of State

  	
  Crown Credit Company

  	
  Equipment Lease

  	
  UCC-1

  #2008 0858298

  3/11/08

   

  
	
  Berry Plastics Holding Corporation (now Berry
  Plastisc Corporation)

  	
  DE

  	
  Secretary of State

  	
  Equipment Leasing Services, LLC

  	
  Equipment Lease

  	
  UCC-1

  #2008 0938348

  3/17/08

   

  
	
  Berry Plastics Holding
  Corporation (now Berry Plastisc Corporation)

  	
  DE

  	
  Secretary of State

  	
  Equipment Leasing Services, LLC

  	
  Equipment Lease

  	
  UCC-1

  #2008 1581204

  5/7/08

  
	
  Berry Plastics Design, LLC

  	
  DE

  	
  Secretary of State

  	
   

  Wells Fargo Bank, N.A., as Collateral Agent

   

   

  	
  All assets

  	
  9/21/2006

  #63279619

  
	
  Berry Plastics Design, LLC 

  	
  VA

  	
  Suffolk City

  	
   

  Wells Fargo Bank, N.A., as Collateral Agent

   

   

  	
  Fixture filing

  	
  9/28/2006

  #20060925200353530

  
	
  Berry Plastics Design, LLC

  	
  DE

  	
  Secretary of State

  	
  Credit Suisse, Cayman Islands Branch, as Term
  Collateral Agent

  Bank of America, N.A., as ABL Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2007 1242279

  4/3/07

  
	
  Berry Plastics Design, LLC

  	
  DE

  	
  Secretary of State

  	
   

  Wells Fargo Bank, N.A., as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2008 1385408

  4/21/08

  
	
  Berry Plastics Design, LLC

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2009 3887228

  12/4/09

  
	
  Berry Plastics Design, LLC

  	
  DE

  	
  Secretary of State

  	
  Bank of America, N.A., as ABL Collateral Agent

  Credit Suisse, as Term Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2008 1644242

  5/12/08

  
	
  Berry Plastics Group, Inc.

  	
  DE

  	
  Secretary of State

  	
  Bank of America, N.A., as ABL Collateral Agent

  Credit Suisse, as Term Collateral Agent

  	
  All Assets

   

  	
  UCC-1

  #2007 124

  4/3/07

  
	
  Berry Plastics Group, Inc.

  	
  DE

  	
  Secretary of State

  	
  Toyota Motor Credit Corporation

  	
  Equipment Lease

  	
  UCC-1

  #2010 3095233

  9/3/10

  
	
  Berry Plastics Group, Inc.

  	
  DE

  	
  Secretary of State

  	
   Nissan Motor Acceptance Corporation

  	
  Equipment Lease

  	
  UCC-1

  #2010 4568667

  12/23/10

  
	
  Berry Plastics Group, Inc.

  	
  DE

  	
  Secretary of State

  	
   Nissan Motor Acceptance Corporation

  	
  Equipment Lease

  	
  UCC-1

  #2011 170053

  1/14/11

  
	
  Berry Plastics SP, Inc.

  	
  VA

  	
  Secretary of State

  	
  Bank of America, N.A., as ABL Collateral Agent

  Credit Suisse, as Term Collateral Agent

  	
  All Assets

  	
  UCC-1

  #100104 7983-2

  1/4/10

  
	
  Berry Plastics SP, Inc.

  	
  VA

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  2009 First Lien Notice

  	
  UCC-1

  100104 7580 6

  1/4/10

  
	
  Berry Plastics SP, Inc.

  	
  VA

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  2008 First Lien Notice

  	
  UCC-1

  100104 7581 8

  1/4/10

  
	
  Berry Plastics SP, Inc.

  	
  VA

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  Second Lien Notes

  	
  UCC-1

  100104 7582 0

  1/4/10

  
	
  Berry Plastics Technical Services, Inc.

  	
  DE

  	
  Secretary of State

  	
   

  Wells Fargo Bank, N.A., as Collateral Agent

   

   

  	
  All assets

  	
  9/21/2006

  #63279726

  
	
  Berry Plastics Technical Services, Inc.

  	
  DE

  	
  Secretary of State

  	
  Credit Suisse, Cayman Islands Branch, as Term
  Collateral Agent

  Bank of America, as ABL Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2007 1242311

  4/3/07

  
	
  Berry Plastics Technical Services, Inc.

  	
  DE

  	
  Secretary of State

  	
  Wells Fargo Bank, National Association, as Collateral
  Agent

  	
  All Assets

  	
  UCC-1

  #2008 1385424

  4/21/08

  
	
  Berry Plastics Technical
  Services, Inc.

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2009 3887350

  12/4/09

  
	
  Berry Sterling Corporation

  	
  DE

  	
  Secretary of State

  	
   

  Wells Fargo Bank, N.A., as Collateral Agent

   

   

  	
  All assets

  	
  9/21/2006

  #63279775

  
	
  Berry Sterling Corporation

  	
  DE

  	
  Secretary of State

  	
  Bank of America, N.A., as ABL Collateral Agent

  Credit Suisse, as Term Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2007 1241495

  4/3/07

  
	
  Berry Sterling Corporation

  	
  DE

  	
  Secretary of State

  	
  Wells Fargo Bank,  National Association, as
  Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2008 1385432

  4/21/08

  
	
  Berry Sterling Corporation

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All assets

  	
  UCC-1

  #2009 3887384

  12/4/09

  
	
  Caplas LLC

  	
  DE

  	
  Secretary of State

  	
  Bank of America, N.A., as ABL Collateral Agent

  Credit Suisse, as Term Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2008 0440576

  2/5/08

  
	
  Caplas LLC

  	
  DE

  	
  Secretary of State

  	
  Wells Fargo Bank, National Association, as Collateral
  Agent

  	
  All Assets

  	
  UCC-1

  #2008 1384393

  4/21/08

  
	
  Caplas LLC

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2009 3887434

  12/4/09

  
	
  Caplas LLC

  	
  DE

  	
  Secretary of State

  	
  Wells Fargo Bank, N.A., as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2008 0457844

  2/6/08

  
	
  Caplas Neptune, LLC

  	
  DE

  	
  Secretary of State

  	
  Bank of America, N.A., as ABL Collateral Agent

  Credit Suisse, as Term Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2008 0440659

  2/5/08

  
	
  Caplas Neptune, LLC

  	
  DE

  	
  Secretary of State

  	
  Wells Fargo Bank, N.A., as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2008 0457836

  2/6/08

  
	
  Caplas Neptune, LLC

  	
  DE

  	
  Secretary of State

  	
  Wells Fargo Bank, National Association, as Collateral
  Agent

  	
  All Assets

  	
  UCC-1

  #2008 1384427

  4/21/08

  
	
  Caplas Neptune, LLC

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2009 3887491

  12/4/09

  
	
  Captive Plastics Holdings, LLC

  	
  DE

  	
  Secretary of State

  	
  Bank of America, N.A., as ABL Collateral Agent

  Credit Suisse, as Term Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2008 0440733

  2/5/08

  
	
  Captive Plastics Holdings, LLC

  	
  DE

  	
  Secretary of State

  	
  Wells Fargo Bank, N.A., as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2008 0457828

  2/6/08

  
	
  Captive Plastics Holdings, LLC

  	
  DE

  	
  Secretary of State

  	
  Wells Fargo Bank, National Association, as Collateral
  Agent

  	
  All Assets

  	
  UCC-1

  #2008 1384435

  4/21/08

  
	
  Captive Plastics Holdings, LLC

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2009 3887541

  12/4/09

  
	
  Captive Plastics Holdings, LLC

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2010 2645608

  7/29/10

  
	
  Captive Plastics
  Holdings, LLC

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2010 2645848

  7/29/10

  
	
  Captive Plastics Holdings, LLC

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2010 2646143

  7/29/10

  
	
  Captive Plastics Holdings, LLC

  	
  DE

  	
  Secretary of State

  	
  Bank of America, N.A., as ABL Collateral Agent

  Credit Suisse, as Term Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2010 2646440

  7/29/10

  
	
  Catpive Holdings, Inc.

  	
  DE

  	
  Secretary of State

  	
  Bank of America, N.A., as ABL Collateral Agent

  Credit Suisse, as Term Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2008 0440733

  2/5/08

  
	
  Catpive Holdings, Inc.

  	
  DE

  	
  Secretary of State

  	
  Wells Fargo Bank, N.A., as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2008 0457828

  2/6/08

  
	
  Catpive Holdings, Inc.

  	
  DE

  	
  Secretary of State

  	
  Wells Fargo Bank, National Association, as Collateral
  Agent

  	
  All Assets

  	
  UCC-1

  #2008 1384435

  4/21/08

  
	
  Catpive Holdings, Inc.

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2009 3887541

  12/4/09

  
	
  Captive Plastics, LLC

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  (2008 First Lien Notes)

  	
  UCC-1

  #2010 2645657

  7/29/10

  
	
  Captive Plastics, LLC

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  (2009 First Lien Notes)

  	
  UCC-1

  #2010 2645897

  7/29/10

  
	
  Captive Plastics, LLC

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  (Second Lien Notes)

  	
  UCC-1

  #2010 2646168

  7/29/10

  
	
  Captive Plastics, LLC

  	
  DE

  	
  Secretary of State

  	
  Bank of America, N.A., as ABL Collateral Agent

  Credit Suisse, as Term Collateral Agent

  	
  All assets

  	
  UCC-1

  #2010 2646457

  7/29/10

  
	
  BPC Holding Corporation

  	
  DE

  	
  Secretary of State

  	
   

  Wells Fargo Bank, N.A., as Collateral Agent

   

   

  	
  All assets

  	
  9/21/2006

  #63279817

  
	
  Cardinal Packaging, Inc.

  	
  CA

  	
  San Bernardino County

  	
  State of California, Employment Development
  Department

   

   

  	
  STL: 1,138.51

  	
  8/15/2003

  #2003-0613144

  
	
  Cardinal Packaging, Inc.

  	
  OH

  	
  Secretary of State

  	
   

  Wells Fargo Bank, N.A., as Collateral Agent

   

   

  	
  All assets

  	
  9/25/2006

  #OH00106917040

  
	
  Cardinal Packaging, Inc.

  	
  OH

  	
  Portage County

  	
   

  Wells Fargo Bank, N.A., as Collateral Agent

   

   

  	
  Fixture filing

  	
  9/25/2006

  #140772

  
	
  Cardinal Packaging, Inc.

  	
  OH

  	
  Secretary of State

  	
  General Electric Capital Corporation

   

   

  	
  Leased equipment

  	
  12/2/1998

  #AP0102022

  
	
  Cardinal Packaging, Inc.

  	
  OH

  	
  Secretary of State

  	
  General Electric Capital Corporation

   

   

  	
  In Lieu of OH Portage County filing.  No collateral
  description included.

  	
  5/20/2003

  #OH00063973753

  
	
  Cardinal Packaging, Inc.

  	
  OH

  	
  Secretary of State

  	
  Credit Suisse, Cayman Islands Branch, as Term
  Collateral Agent

  Bank of America, as ABL Collateral Agent

  	
  All Assets

  	
  UCC-1

  OH00113709907

  4/5/7

  
	
  Cardinal Packaging, Inc.

  	
  OH

  	
  Secretary of State

  	
  Greater Bay Bank N.A.

  	
  Equipment Lease

  	
  UCC-1

  #OH00119165141

  9/17/07

  
	
  Cardinal Packaging, Inc.

  	
  OH

  	
  Secretary of State

  	
  Wells Fargo Bank, National Association, as Collateral
  Agent

  	
  All Assets

  	
  UCC-1

  #OH125986129

  4/22/08

  
	
  Cardinal Packaging, Inc.

  	
  OH

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #OH138827219

  12/4/09

  
	
  CPI Holding Corporation

  	
  DE

  	
  Secretary of State

  	
   

  Wells Fargo Bank, N.A., as Collateral Agent

   

   

  	
  All assets

  	
  9/21/2006

  #63279825

  
	
  CPI Holding Corporation

  	
  DE

  	
  Secretary of State

  	
  Bank of America, N.A., as ABL Collateral Agent

  Credit Suisse, as Term Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2007 1241560

  4/3/07

  
	
  CPI Holding Corporation

  	
  DE

  	
  Secretary of State

  	
  Wells Fargo Bank, National Association, as Collateral
  Agent

  	
  All Assets

  	
  UCC-1

  #2008 1384468

  4/21/08

  
	
  CPI Holding Corporation

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2009 3887673

  12/4/09

  
	
  Grafco Industries Limited Partnership

  	
  MD

  	
  Secretary of State

  	
  NMHG Financial Services, Inc.

  	
  Equipment Lease

  	
  UCC-1

  #181130329

  9/11/02

  
	
  Grafco Industries Limited Partnership

  	
  MD

  	
  Secretary of State

  	
  SunTrust Leasing Corporation

  	
  Equipment Lease

  	
  UCC-1

  #181134582

  10/29/02

  
	
  Grafco Industries
  Limited Partnership

  	
  MD

  	
  Secretary of State

  	
  SunTrust Leasing Corporation

  	
  Equipment Lease

  	
  UCC-1

  #181176955

  1/2/04

  
	
  Grafco Industries Limited Partnership

  	
  MD

  	
  Secretary of State

  	
  SunTrust Leasing Corporation

  	
  Equipment Lease

  	
  UCC-1

  #181207695

  10/13/04

  
	
  Grafco Industries Limited Partnership

  	
  MD

  	
  Secretary of State

  	
  SunTrust Leasing Corporation

  	
  Equipment Lease

  	
  UCC-1

  #181216151

  10/13/04

  
	
  Grafco Industries Limited Partnership

  	
  MD

  	
  Secretary of State

  	
  Inter-Tel Leasing Inc.

  	
  Equipment Lease

  	
  UCC-1

  #181237148

  7/1/8/05

  
	
  Grafco Industries Limited Partnership

  	
  MD

  	
  Secretary of State

  	
  SunTrust Leasing Corporation

  	
  Equipment Lease

  	
  UCC-1

  #181244901

  10/3/05

  
	
  Grafco Industries Limited Partnership

  	
  MD

  	
  Secretary of State

  	
  Credit Suisse, Cayman Islands Branch, as Term
  Collateral Agent

  Bank of America, as ABL Collateral Agent

  	
  All Assets

  	
  UCC-1

  #181332949

  2/6/08

  
	
  Grafco Industries Limited Partnership

  	
  MD

  	
  Secretary of State

  	
  Wells Fargo Bank, N.A., as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #181332986

  2/6/08

  
	
  Grafco Industries Limited Partnership

  	
  MD

  	
  Secretary of State

  	
  Wells Fargo Bank, National Association, as Collateral
  Agent

  	
  All Assets

  	
  UCC-1

  #181339624

  4/22/08

  
	
  Grafco Industries Limited Partnership

  	
  MD

  	
  Secretary of State

  	
  U.S. Bank, National Association, as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #181384213

  12/4/09

  
	
  Kerr Group, LLC

  	
  DE

  	
  Secretary of State

  	
  SACMI- Cooperativa Meccanici Imola Societa
  Cooperativa A R.L.

   

   

  	
  Specific equipment

  	
  6/3/2003

  #31761066

  
	
  Kerr Group, LLC

  	
  DE

  	
  Secretary of State

  	
  SACMI- Cooperativa Meccanici Imola Societa
  Cooperativa A R.L.

   

   

  	
  Specific equipment

  	
  7/1/2003

  #31926750

  
	
  Kerr Group, LLC

  	
  DE

  	
  Secretary of State

  	
  IOS Capital

   

   

  	
  Leased equipment

  	
  2/18/2004

  #40560799

  
	
  Kerr Group, LLC

  	
  DE

  	
  Secretary of State

  	
  IOS Capital

   

   

  	
  Leased equipment

  	
  2/18/2004

  #40560807

  
	
  Kerr Group, LLC

  	
  DE

  	
  Secretary of State

  	
  Crown Credit Company

   

   

  	
  Specific equipment

  	
  1/3/2005

  #50002866

  
	
  Kerr Group, LLC

  	
  DE

  	
  Secretary of State

  	
  SACMI- Cooperativa Meccanici Imola Societa
  Cooperativa A R.L.

   

   

  	
  Specific equipment

  	
  2/14/2005

  #50620048

  
	
  Kerr Group, LLC

  	
  DE

  	
  Secretary of State

  	
  Crown Credit Company

   

   

  	
  Specific equipment

  	
  3/23/2005

  #50904350

  
	
  Kerr Group, LLC

  	
  DE

  	
  Secretary of State

  	
  Crown Credit Company

   

   

  	
  Specific equipment

  	
  3/23/2005

  #50904426

  
	
  Kerr Group, LLC

  	
  DE

  	
  Secretary of State

  	
  SACMI- Cooperativa Meccanici Imola Societa
  Cooperativa A R.L.

   

   

  	
  Specific equipment

  	
  7/26/2005

  #52300136

  
	
  Kerr Group, LLC

  	
  DE

  	
  Secretary of State

  	
   

  Wells Fargo Bank, N.A., as Collateral Agent

   

   

  	
  All assets

  	
  9/21/2006

  #63279841

  
	
  Kerr Group, LLC

  	
  NC

  	
  Hertford County

  	
   

  Wells Fargo Bank, N.A., as Collateral Agent

   

   

  	
  Fixture filing

  	
  9/25/2006

  Book 672 Page 399

  
	
  Kerr Group, LLC

  	
  DE

  	
  Secretary of State

  	
  Credit Suisse, Cayman Islands Branch, as Term
  Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2007 1242063

  4/3/07

  
	
  Kerr Group, LLC

  	
  DE

  	
  Secretary of State

  	
  Husky Injection Molding Systems, Inc.

  	
  Equipment Lease

  	
  UCC-1

  #2007 2193539

  6/11/07

  
	
  Kerr Group, LLC

  	
  DE

  	
  Secretary of State

  	
  Wells Fargo Bank, National Association, as Collateral
  Agent

  	
  All Assets

  	
  UCC-1

  #2008 1384484

  4/21/08

  
	
  Kerr Group, LLC

  	
  DE

  	
  Secretary of State

  	
  Credit Suisse, Cayman Islands Branch, as Term
  Collateral Agent

  Bank of America, N.A., as ABL Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2008 1644499

  5/12/08

  
	
  Kerr Group, LLC

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2009 3887715

  12/4/09

  
	
  Knight Plastics, LLC

  	
  DE

  	
  Secretary of State

  	
   

  Wells Fargo Bank, N.A., as Collateral Agent

   

   

  	
  All Assets

  	
  9/21/2006

  #63279866

  
	
  Knight Plastics, LLC

  	
  IL

  	
  McHenry County

  	
   

  Wells Fargo Bank, N.A., as Collateral Agent

   

   

  	
  Fixture filing

  	
  9/26/2006

  #2006U0000227

  
	
  Knight Plastics, LLC

  	
  DE

  	
  Secretary of State

  	
  Credit Suisse, Cayman Islands Branch, as Term
  Collateral Agent

  Bank of America, as ABL Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2007 1242634

  4/3/07

  
	
  Knight Plastics, LLC

  	
  DE

  	
  Secretary of State

  	
  Wells Fargo Bank, National Association, as Collateral
  Agent

  	
  All Assets

  	
  UCC-1

  #2008 1384559

  4/21/08

  
	
  Knight Plastics, LLC

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2009 3887749

  12/4/09

  
	
  Knight Plastics, LLC

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2010 2645715

  7/29/10

  
	
  Knight Plastics, LLC

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2010 2645954

  7/29/10

  
	
  Knight Plastics, LLC

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2010 2646184

  7/29/10

  
	
  Knight Plastics, LLC

  	
  DE

  	
  Secretary of State

  	
  Credit Suisse AG, Cayman Islands Branch, as Term
  Collateral Agent

  Bank of America, as ABL Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2010 2646473

  7/29/10

  
	
  Landis Plastics

  	
  IL

  	
  Secretary of State

  	
  Sun Chemical Corporation

   

   

  	
  Leased equipment

  	
  3/29/2005

  #9673660

  
	
  Landis Plastics, Inc.

  	
  AZ

  	
  Secretary of State

  	
  Naumann Hobbs Material Handling Inc.

   

   

  	
  Specific equipment

  	
  12/6/2005

  #200513915038

  
	
  Landis Plastics, Inc.

  	
  AZ

  	
  Secretary of State

  	
  Naumann Hobbs Material Handling Inc.

   

   

  	
  Specific equipment

  	
  12/27/2005

  #200513954159

  
	
  Landis Plastics, Inc.

  	
  IL

  	
  Secretary of State

  	
  Sun Chemical Corporation

   

   

  	
  Leased equipment

  	
  8/2/2002

  #5653371

  
	
  Landis Plastics, Inc.

  	
  IL

  	
  Secretary of State

  	
  Toyota Motor Credit Corporation

   

   

  	
  Leased equipment

  	
  9/16/2002

  #5845297

  
	
  Landis Plastics, Inc.

  	
  IL

  	
  Secretary of State

  	
  NMHG Financial Services Inc.

   

   

  	
  Leased equipment

  	
  1/13/2003

  #6393470

  
	
  Landis Plastics, Inc.

  	
  IN

  	
  Wayne County

  	
  Fleet National Bank, as Collateral Agent

   

   

  	
  Fixture filing

  	
  11/26/2003

  #030395

  
	
  Landis Plastics, Inc.

  	
  IL

  	
  Secretary of State

  	
   

  Wells Fargo Bank, N.A., As Collateral Agent

   

   

  	
  All assets

  	
  9/22/2006

  #11367062

  
	
  Landis Plastics, Inc.

  	
  NC

  	
  Union County

  	
   

  Wells Fargo Bank, N.A., As Collateral Agent

   

   

  	
  Fixture Filing

  	
  9/22/2006

  Book 4312 Page 0450

  
	
  Packerware, LLC

  	
  DE

  	
  Secretary of State

  	
  General Electric Capital Corporation

   

   

  	
  Leased equipment

  	
  10/22/2001

  #11281497

  
	
  Packerware, LLC

  	
  DE

  	
  Secretary of State

  	
   

  Wells Fargo Bank, N.A., as Collateral Agent

   

   

  	
  All assets

  	
  9/21/2006

  #63279908

  
	
  Packerware, LLC

  	
  KS

  	
  Douglas County

  	
   

  Wells Fargo Bank, N.A., As Collateral Agent

   

   

  	
  Fixture Filing

  	
  9/22/2006

  #9020435

  
	
  Packerware, LLC

  	
  KS

  	
  Douglas County

  	
  Old National Bank

   

   

  	
  Specific equipment

  	
  1/12/1998

  #9014632

  
	
  Packerware, LLC

  	
  KS

  	
  Douglas County

  	
  Fleet National Bank, as Collateral Agent

   

   

  	
  Fixture filing

  	
  7/29/2002

  #9018530

  
	
  Packerware, LLC

  	
  DE

  	
  Secretary of State

  	
  Credit Suisse, Cayman Islands Branch, as Term
  Collateral Agent

  Bank of America, as ABL Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2007 1242576

  4/3/07

  
	
  Packerware, LLC

  	
  DE

  	
  Secretary of State

  	
  Wells Fargo Bank, National Association, as Collateral
  Agent

  	
  All Assets

  	
  UCC-1

  #2008 1384575

  4/21/08

  
	
  Packerware, LLC

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2009 3887814

  12/4/09

  
	
  Packerware, LLC

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2010 2645749

  7/29/10

  
	
  Packerware, LLC

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2010 2646002

  7/29/10

  
	
  Packerware, LLC

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2010 2646200

  7/29/10

  
	
  Packerware, LLC

  	
  DE

  	
  Secretary of State

  	
  Credit Suisse AG, Cayman Islands Branch, as Term
  Collateral Agent

  Bank of America, as ABL Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2010 2646499

  7/29/10

  
	
  Pescor, Inc.

  	
  DE

  	
  Secretary of State

  	
   

  Wells Fargo Bank, N.A., as Collateral Agent

   

   

  	
  All assets

  	
  9/21/2006

  #63279858

  
	
  Pescor, Inc.

  	
  DE

  	
  Secretary of State

  	
  Bank of America, as ABL Collateral Agent

  Credit Suisse, Cayman Islands Branch, as Term
  Collateral Agent

   

  	
  All Assets

  	
  UCC-1

  #2007 1241628

  4/3/07

  
	
  Pescor, Inc.

  	
  DE

  	
  Secretary of State

  	
  Wells Fargo Bank, National Association, as Collateral
  Agent

  	
  All Assets

  	
  UCC-1

  #2008 1384591

  4/21/08

  
	
  Pescor, Inc.

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2009 3887848

  12/4/09

  
	
  Pliant Corporation International

  	
  UT

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #37248200955

  12/7/09

  
	
  Pliant Corporation International

  	
  UT

  	
  Secretary of State

  	
  Bank of America, as ABL Collateral Agent

  Credit Suisse, Cayman Islands Branch, as Term
  Collateral Agent

   

  	
  All Assets

  	
  UCC-1

  #372885200950

  12.3.09

  
	
  Pliant Corporation International

  	
  UT

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #37249200956

  12/7/09

  
	
  Pliant Corporation International

  	
  UT

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #373032200940

  12/8/09

  
	
  Pliant, LLC

  	
  DE

  	
  Secretary of State

  	
  General Electric Capital Corporation

  	
  Equipment Lease

  	
  UCC-1

  #6343922 1

  10/4/06

  
	
  Pliant, LLC

  	
  DE

  	
  Secretary of State

  	
  ICON Pliant, LLC

  	
  Equipment Lease

  	
  UCC-1

  #2008 2239992

  6/30/08

  
	
  Pliant, LLC

  	
  DE

  	
  Secretary of State

  	
  Safeco Credit Co. Inc.

  	
  Equipment Lease

  	
  UCC-1

  #6351484 1

  10/1106

  
	
  Pliant, LLC

  	
  DE

  	
  Secretary of State

  	
  Safeco Credit Co. Inc.

  	
  Equipment Lease

  	
  UCC-1

  #6351896 6

  10/1106

  
	
  Pliant, LLC

  	
  DE

  	
  Secretary of State

  	
  Safeco Credit Co. Inc.

  	
  Equipment Lease

  	
  UCC-1

  #6351959 2

  10/1106

  
	
  Pliant, LLC

  	
  DE

  	
  Secretary of State

  	
  Safeco Credit Co. Inc.

  	
  Equipment Lease

  	
  UCC-1

  #6352186 1

  10/1106

  
	
  Pliant, LLC

  	
  DE

  	
  Secretary of State

  	
  General Electric Capital Corporation

  	
  Equipment Lease

  	
  UCC-1

  #6371352 6

  10/5/06

  
	
  Pliant, LLC

  	
  DE

  	
  Secretary of State

  	
  General Electric Capital Corporation

  	
  Equipment Lease

  	
  UCC-1

  #6371354 2

  10/5/06

  
	
  Pliant, LLC

  	
  DE

  	
  Secretary of State

  	
  General Electric Capital Corporation

  	
  Equipment Lease

  	
  UCC-1

  #6371380 7

  10/5/06

  
	
  Pliant, LLC

  	
  DE

  	
  Secretary of State

  	
  General Electric Capital Corporation

  	
  Equipment Lease

  	
  UCC-1

  #6400786 0

  10/30/06

  
	
  Pliant, LLC

  	
  DE

  	
  Secretary of State

  	
  IOS Capital

  	
  Equipment Lease

  	
  UCC-1

  #2007 0130681

  1/11/07

  
	
  Pliant, LLC

  	
  DE

  	
  Secretary of State

  	
  IOS Capital

  	
  Equipment Lease

  	
  UCC-1

  #2007 0148824

  1/11/07

  
	
  Pliant, LLC

  	
  DE

  	
  Secretary of State

  	
  IOS Capital

  	
  Equipment Lease

  	
  UCC-1

  #2007 0148865

  1/11/07

  
	
  Pliant, LLC

  	
  DE

  	
  Secretary of State

  	
  Donlen Fleet Leasing Ltd./Location de Flottes Ltee.

  	
  Motor Vehicle Lease

  	
  UCC-1

  #2007 0638600

  2/15/07

  
	
  Pliant, LLC

  	
  DE

  	
  Secretary of State

  	
  IOS Capital

  	
  Equipment Lease

  	
  UCC-1

  #2007 2638657

  1/11/07

  
	
  Pliant, LLC

  	
  DE

  	
  Secretary of State

  	
  Velocity Financial Group, Inc.

  	
  Equipment Lease

  	
  UCC-1

  #2008 1614716

  5/9/08

  
	
  Pliant, LLC

  	
  DE

  	
  Secretary of State

  	
  Nova Chemicals Inc.

  	
  Products on Consignment

  	
  UCC-1

  #2009 0240413

  1/23/09

  
	
  Pliant, LLC

  	
  DE

  	
  Secretary of State

  	
  Northfield Corporation

  	
  Equipment Lease

  	
  UCC-1

  #2009 1201406

  4/15/09

  
	
  Pliant, LLC

  	
  DE

  	
  Secretary of State

  	
  Bank of America, N.A., as ABL Collateral Agent

  Credit Suisse, as Term Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2009 3869499

  12/3/09

  
	
  Pliant, LLC

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  (Indenture 4/21/08 – First Lien)

  	
  UCC-1

  #2009 3886311

  12/4/09

  
	
  Pliant, LLC

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  (2009 First Lien All Assets)

  	
  UCC-1

  #2009 3887855

  12/4/09

  
	
  Pliant, LLC

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  (Second Lien)

  	
  UCC-1

  #2009 3891089

  12/4/09

  
	
  Pliant, LLC

  	
  DE

  	
  Secretary of State

  	
  NMHG Financial Services, Inc.

  	
  Equipment Lease

  	
  UCC-1

  #2010 1334907

  4/19/10

  
	
  Pliant, LLC

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  (2008 First Lien Notes)

  	
  UCC-1

  #2010 2645764

  7/29/10

  
	
  Pliant, LLC

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  (2009 First Lien Notes)

  	
  UCC-1

  #2010 2646069

  7/29/10

  
	
  Pliant, LLC

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  (Second Lien Notes)

  	
  UCC-1

  #2010 2646242

  7/29/10

  
	
  Pliant, LLC

  	
  DE

  	
  Secretary of State

  	
  Bank of America, N.A., as ABL Collateral Agent

  Credit Suisse, as Term Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2010 2646549

  7/29/10

  
	
  Pliant, LLC

  	
  DE

  	
  Secretary of State

  	
  Windmoeller & Hoelscher Corporation

  	
  Equipment Lease

  	
  UCC-1

  #2011 0795180

  3/3/11

  
	
  Pliant, LLC

  	
  DE

  	
  Secretary of State

  	
  Windmoeller & Hoelscher Corporation

  	
  Equipment Lease

  	
  UCC-1

  #2011 1381923

  4/13/11

  
	
  Poly-Seal LLC

  	
  DE

  	
  Secretary of State

  	
  Citicorp Del Lease, Inc.

   

   

  	
  Specific equipment

  	
  7/2/2003

  #31929226

  
	
  Poly-Seal LLC

  	
  DE

  	
  Secretary of State

  	
   

  Wells Fargo Bank, N.A., as Collateral Agent

   

   

  	
  All assets

  	
  9/21/2006

  #63279940

  
	
  Poly-Seal LLC

  	
  DE

  	
  Secretary of State

  	
  Credit Suisse, Cayman Islands Branch, as Term
  Collateral Agent

  Bank of America, as ABL Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2007 1242527

  4/3/07

  
	
  Poly-Seal LLC

  	
  DE

  	
  Secretary of State

  	
  Wells Fargo Bank, National Association, as Collateral
  Agent

  	
  All Assets

  	
  UCC-1

  #2008 1384617

  4/21/08

  
	
  Poly-Seal LLC

  	
  DE

  	
  Secretary of State

  	
  Credit Suisse, Cayman Islands Branch, as Term
  Collateral Agent

  Bank of America, as ABL Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2008 1644440

  5/12/08

  
	
  Poly-Seal LLC

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2009 3887913

  12/4/09

  
	
  Poly-Seal LLC

  	
  MD

  	
  Baltimore County

  	
   

  Wells Fargo Bank, N.A., as Collateral Agent

   

   

  	
  Fixture Filing

  	
  11/15/2006

  Book 08452 Page 0117

  
	
  Poly-Seal LLC

  	
  MD

  	
  Baltimore City

  	
  Fleet National Bank, as Collateral Agent

   

   

  	
  Fixture filing

  	
  7/30/2002

  #Liber: 2726 PG: 374

  
	
  Rollpak Corporation

  	
  IN

  	
  Secretary of State

  	
  Wells Fargo Bank, N.A.

  	
  All Assets

  	
  UCC-1

  #200700004460598

  5/7/07

  
	
  Rollpak Corporation

  	
  IN

  	
  Secretary of State

  	
  Credit Suisse, Cayman Islands Branch, as Term
  Collateral Agent

  Bank of America, as ABL Collateral Agent

  	
  All Assets

  	
  UCC-1

  #200700004581229

  5/10/07

  
	
  Rollpak Corporation

  	
  IN

  	
  Secretary of State

  	
  Wells Fargo Bank, National Association, as Collateral
  Agent

  	
  All Assets

  	
  UCC-1

  #200800003768741

  4/22/08

  
	
  Rollpak Corporation

  	
  IN

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #200900009778284

  12/4/09

  
	
  Saffron Acquisition LLC

  	
  DE

  	
  Secretary of State

  	
   

  Wells Fargo Bank, N.A., as Collateral Agent

   

   

  	
  All assets

  	
  9/21/2006

  #63279932

  
	
  Saffron Acquisition LLC

  	
  DE

  	
  Secretary of State

  	
  Credit Suisse, Cayman Islands Branch, as Term
  Collateral Agent

  Bank of America, as ABL Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2007 1242105

  4/3/07

  
	
  Saffron Acquisition LLC

  	
  DE

  	
  Secretary of State

  	
  Wells Fargo Bank, National Association, as Collateral
  Agent

  	
  All Assets

  	
  UCC-1

  #2008 1384633

  4/21/08

  
	
  Saffron Acquisition LLC

  	
  DE

  	
  Secretary of State

  	
  Credit Suisse, Cayman Islands Branch, as Term
  Collateral Agent

  Bank of America, as ABL Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2008 1644424

  5/12/08

  
	
  Saffron Acquisition LLC

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2009 3888093

  12/4/09

  
	
  Setco, LLC

  	
  CA

  	
  Secretary of State

  	
   

  Wells Fargo Bank, N.A., as Collateral Agent

   

   

  	
  All assets

  	
  9/21/2006

  #63280005

  
	
  Setco, LLC

  	
  DE

  	
  Secretary of State

  	
  Credit Suisse, Cayman Islands Branch, as Term
  Collateral Agent

  Bank of America, as ABL Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2007 1242170

  4/3/07

  
	
  Setco, LLC

  	
  DE

  	
  Secretary of State

  	
  Bank of America, N.A., as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2008 0442374

  2/5/08

  
	
  Setco, LLC

  	
  DE

  	
  Secretary of State

  	
  Wells Fargo Bank, National Association, as Collateral
  Agent

  	
  All Assets

  	
  UCC-1

  #2008 1384641

  4/21/08

  
	
  Setco, LLC

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2009 3888127

  12/4/09

  
	
  SETCO

  	
  CA

  	
  Secretary of State

  	
  Nutrilite Division of Amway Corporation

   

   

  	
  Specific equipment

  	
  7/2/1999

  #9919460907

  
	
  Setco, Inc.

  	
  CA

  	
  Secretary of State

  	
  S. M. Graphics Manufacturing, Inc.

   

   

  	
  Specific equipment

  	
  9/7/2004

  #04-1004799498

  
	
  Setco, Inc.

  	
  CA

  	
  Secretary of State

  	
  Nutrilite Division of Access Business Group LLC

   

   

  	
  Specific equipment

  	
  3/3/2005

  #05-7017876869

  
	
  Setco, Inc.

  	
  CA

  	
  Secretary of State

  	
  Nutrilite Division of Access Business Group LLC

   

   

  	
  Specific equipment

  	
  3/3/2005

  #05-7017877012

  
	
  Setco, Inc.

  	
  CA

  	
  Secretary of State

  	
  Nutrilite Division of Access Business Group LLC

   

   

  	
  Specific equipment

  	
  3/18/2005

  #05-7019889976

  
	
  Setco, Inc.

  	
  CA

  	
  Secretary of State

  	
  Nutrilite Division of Access Business Group LLC

   

   

  	
  Specific equipment

  	
  3/18/2005

  #05-7019891272

  
	
  Sun Coast Industries, LLC

  	
  DE

  	
  Secretary of State

  	
   

  Wells Fargo Bank, N.A., as Collateral Agent

   

   

  	
  All assets

  	
  9/21/2006

  #63279965

  
	
  Sun Coast Industries, LLC

  	
  DE

  	
  Secretary of State

  	
  Credit Suisse, Cayman Islands Branch, as Term
  Collateral Agent

  Bank of America, as ABL Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2007 1242238

  4/3/07

  
	
  Sun Coast Industries, LLC

  	
  DE

  	
  Secretary of State

  	
  Wells Fargo Bank, National Association, as Collateral
  Agent

  	
  All Assets

  	
  UCC-1

  #2008 1384666

  4/21/08

  
	
  Sun Coast Industries, LLC

  	
  DE

  	
  Secretary of State

  	
  Credit Suisse, Cayman Islands Branch, as Term
  Collateral Agent

  Bank of America, as ABL Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2008 1644408

  5/12/08

  
	
  Sun Coast Industries, LLC

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2009 3888408

  12/4/09

  
	
  Uniplast Holdings, LLC

  	
  DE

  	
  Secretary of State

  	
  Great Atlantic Capital Corporation

  	
  Equipment Lease

  	
  UCC-1

  #1041657 3

  5/7/01

  
	
  Uniplast Holdings, LLC

  	
  DE

  	
  Secretary of State

  	
  Bank of America, N.A., as ABL Collateral Agent

  Credit Suisse, as Term Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2009 38669655

  12/3/09

  
	
  Uniplast Holdings, LLC

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2009 3886485

  12/4/09

  
	
  Uniplast Holdings, LLC

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2009 3888499

  12/4/09

  
	
  Uniplast Holdings, LLC

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2009 3891113

  12/4/09

  
	
  Uniplast Holdings, LLC

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  (2008 First Lien Notes)

  	
  UCC-1

  #2010 2645780

  7/29/10

  
	
  Uniplast Holdings, LLC

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  (2009 First Lien Notes)

  	
  UCC-1

  #2010 2646093

  7/29/10

  
	
  Uniplast Holdings, LLC

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  (Second Lien Notes)

  	
  UCC-1

  #2010 2646275

  7/29/10

  
	
  Uniplast Holdings, LLC

  	
  DE

  	
  Secretary of State

  	
  Bank of America, N.A., as ABL Collateral Agent

  Credit Suisse, as Term Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2010 2646556

  7/29/10

  
	
  Uniplast U.S., Inc.

  	
  DE

  	
  Secretary of State

  	
  Great Atlantic Capital Corporation

  	
  Equipment Lease

  	
  UCC-1

  #1041651 6

  5/7/01

  
	
  Uniplast U.S., Inc.

  	
  DE

  	
  Secretary of State

  	
  Bank of America, N.A., as ABL Collateral Agent

  Credit Suisse, as Term Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2009 38669838

  12/3/09

  
	
  Uniplast U.S., Inc.

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2009 3886519

  12/4/09

  
	
  Uniplast U.S., Inc.

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2009 3888549

  12/4/09

  
	
  Uniplast U.S., Inc.

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2009 3891154

  12/4/09

  
	
  Venture Packaging Midwest, Inc.

  	
  DE

  	
  Secretary of State

  	
  General Electric Capital Corporation

   

   

  	
  In-Lieu of OH Huron County filing. 

  Leased equipment

  	
  1/15/2004

  #40113888

  
	
  Venture Packaging Midwest, Inc.

  	
  DE

  	
  Secretary of State

  	
   

  Wells Fargo Bank, N.A., as Collateral Agent

   

   

  	
  All assets

  	
  9/21/2006

  #63280211

  
	
  Venture Packaging Midwest, Inc.

  	
  OH

  	
  Huron County

  	
   

  Wells Fargo Bank, N.A., as Collateral Agent

   

   

  	
  Fixture filing

  	
  10/3/2006

  #000084946

  
	
  Venture Packaging Midwest, Inc.

  	
  OH

  	
  Huron County

  	
  NationsBank, N.A., as Agent for itself and other
  Lenders

   

   

  	
  Fixture filing

  	
  9/16/1997

  #77897

  
	
  Venture Packaging Midwest, Inc.

  	
  OH

  	
  Huron County

  	
  Fleet National Bank, as Collateral Agent

   

   

  	
  Fixture filing

  	
  7/29/2002

  #000084562

  
	
  Venture Packaging
  Midwest, Inc.

  	
  DE

  	
  Secretary of State

  	
  Credit Suisse, Cayman Islands Branch, as Term
  Collateral Agent

  Bank of America, as ABL Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2007 1242352

  4/3/07

  
	
  Venture Packaging Midwest, Inc.

  	
  DE

  	
  Secretary of State

  	
  Wells Fargo Bank, National Association, as Collateral
  Agent

  	
  All Assets

  	
  UCC-1

  #2008 1384708

  4/21/08

  
	
  Venture Packaging Midwest, Inc.

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2009 3888689

  12/4/09

  
	
  Venture Packaging, Inc.

  	
  DE

  	
  Secretary of State

  	
   

  Wells Fargo Bank, N.A., as Collateral Agent

   

   

  	
  All assets

  	
  9/21/2006

  #63280187

  
	
  Venture Packaging, Inc.

  	
  DE

  	
  Secretary of State

  	
  Credit Suisse, Cayman Islands Branch, as Term
  Collateral Agent

  Bank of America, as ABL Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2007 1242469

  4/3/07

  
	
  Venture Packaging, Inc.

  	
  DE

  	
  Secretary of State

  	
  Wells Fargo Bank, National Association, as Collateral
  Agent

  	
  All Assets

  	
  UCC-1

  #2008 1384716

  4/21/08

  
	
  Venture Packaging, Inc.

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2009 3888739

  12/4/09

  











 










 








 








 


 


Covalence: 


	
   Debtor

   	
   State

   	
   Jurisdiction

   	
   Secured Party

   	
   Collateral

   	
   filing info

   
	
  Covalence Specialty Adhesives, LLC

  	
  DE

  	
  Secretary of State

  	
  CIT Technologies Corporation

   

  	
  Leased equipment

  	
  7/24/2006

  #62551281 

  
	
  Covalence Specialty Adhesives, LLC

  	
  DE

  	
  Secretary of State

  	
  CIT Technologies Corporation

   

  	
  Leased equipment

  	
  3/12/2007

  #20070925940 

  
	
  Covalence Specialty Coatings LLC

  	
  DE

  	
  Secretary of State

  	
  Georgia-Pacific Containerboard LLC

   

  	
  Consigned
  unbleached kraft linerboard inventory

  	
  9/15/2006

  #63190022 

  
	
  Covalence Specialty Adhesives LLC

  	
  DE

  	
  Secretary of State

  	
  Credit Suisse, Cayman Islands Branch, as Term
  Collateral  Agent

  Bank of America, as ABL Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2007 1242030

  4/3/07

  
	
  Covalence Specialty Adhesives LLC

  	
  DE

  	
  Secretary of State

  	
  Wells Fargo Bank, N.A., as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2007 1250140

  4/3/07

  
	
  Covalence Specialty Adhesves LLC

  	
  DE

  	
  Secretary of State

  	
  Wells Fargo Bank, National Association, as
  Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2008 1384781

  4/21/08

  
	
  Covalence Specialty Adhesives LLC

  	
  DE

  	
  Secretary of State

  	
  Wells Fargo Bank, N.A.

  	
  Equipment Lease

  	
  UCC-1

  #2008 3993704

  12/2/08

  
	
  Covalence Specialty Adhesives LLC

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2009 3887566

  12/4/09

  
	
  Covalence Specialty
  Adhesives LLC

  	
  DE

  	
  Secretary of State

  	
  ExxonMobil Chemical Company

  	
  Products on Consignment

  (Add’l Debtor: Southern Logistics & Warehousing
  LLC)

  	
  UCC-1

  #2008 2123378

  6/20/08

  
	
  Covalence Specialty Materials Corp

  	
  DE

  	
  Secretary of State

  	
  Raymond Leasing Corporation

   

  	
  Specific equipment

  	
  5/4/2006

  #61506161 

  
	
  Covalence Specialty Materials Corp

  	
  DE

  	
  Secretary of State

  	
  Raymond Leasing Corporation

   

  	
  Specific equipment

  	
  5/4/2006

  #61506179 

  
	
  Covalence Specialty Materials Corp.

  	
  DE

  	
  Secretary of State

  	
  Crown Credit Company

   

  	
  Specific equipment

  	
  7/26/2006

  #62580918 

  
	
  Covalence Specialty Materials Corp.

  	
  DE

  	
  Secretary of State

  	
  Crown Credit Company

   

  	
  Specific equipment

  	
  8/28/2006

  #62981686 

  
	
  Covalence Specialty Materials Corp.

  	
  DE

  	
  Secretary of State

  	
  Crown Credit Company

   

  	
  Specific equipment

  	
  8/28/2006

  #62981728 

  
	
  Covalence Specialty Materials Corp.

  	
  DE

  	
  Secretary of State

  	
  Crown Credit Company

   

  	
  Specific equipment

  	
  10/2/2006

  #63403516 

  
	
  Covalence Specialty Materials Corp.

  	
  DE

  	
  Secretary of State

  	
  Crown Credit Company

  	
  Specific equipment

  	
  10/30/2006

  #63771722 

  
	
  Covalence Specialty Materials

  	
  DE

  	
  Secretary of State

  	
  IOS Capital

   

  	
  Leased equipment

  	
  11/13/2006

  #63945698 

  
	
  Covalence Specialty
  Materials

  	
  DE

  	
  Secretary of State

  	
  IOS Capital

   

  	
  Leased equipment

  	
  11/13/2006

  #63945748 

  
	
  Covalence Specialty Materials

  	
  DE

  	
  Secretary of State

  	
  IOS Capital

   

  	
  Leased equipment

  	
  11/13/2006

  #63945763 

  
	
  Covalence Specialty Materials

  	
  DE

  	
  Secretary of State

  	
  IOS Capital

   

  	
  Leased equipment

  	
  11/13/2006

  #63945771 

  
	
  Covalence Specialty Materials

  	
  DE

  	
  Secretary of State

  	
  IOS Capital

   

  	
  Leased equipment

  	
  11/28/2006

  #64117677 

  
	
  Covalence Specialty Materials

  	
  DE

  	
  Secretary of State

  	
  IOS Capital

   

  	
  Leased equipment

  	
  3/2/2007

  #20070786052 

  
	
  Covalence Specialty Materials Corp.

  	
  DE

  	
  Secretary of State

  	
  NMHG Financial Services, Inc.

   

  	
  Leased equipment

  	
  1/11/2007

  #20070138759 

  
	
  Covalence Specialty Materials Corp

  	
  DE

  	
  Secretary of State

  	
  Greater Bay Bank N.A.

   

  	
  Specific equipment

  	
  2/16/2007

  #20070626563 

  
	
  Covalence Specialty Materials Corp

  	
  DE

  	
  Secretary of State

  	
  Greater Bay Bank N.A.

   

  	
  Specific equipment

  	
  2/20/2007

  #20070653484 

  
	
  Covalence Specialty Materials Corp.

  	
  DE

  	
  Secretary of State

  	
  Crown Credit Company

   

  	
  Specific equipment

  	
  3/30/2007

  #20071199743 

  
	
  Southern Logistics &
  Warehousing, LLC

  Additional debtor: Tyco Adhesives GP Holdings, Inc.

  	
  KY

  	
  Simpson County

  	
  Norandal USA, Inc.

  	
  Fixture filing

  	
  12/10/2003

   Fixture filing 7, page 209

  
	
  Poly-Tech, Inc.

  	
  NC

  	
  Edgecombe County

  	
  Irving Trust Company

  	
  Deed of Trust

   $4,500,000

  	
  8/10/1988

  Book 1016, Page 524

  
	
  Berry Plastics Holding Corporation

  	
  DE

  	
  Secretary of State

  	
  Bank of America, as ABL Collateral Agent

  Credit Suisse, Cayman Islands Branch, as Term
  Collateral Agent

   

  	
  All Assets

  	
  UCC-1

  #2007 1241297

  4/3/07

  
	
  Covalence Specialty Materials Corp. (now Berry
  Plastics Holding Corporation)

  	
  DE

  	
  Secretary of State

  	
  Crown Credit Company

  	
   

  	
  10/13/2005

  #53164622

   

  
	
  Covalence Specialty Materials Corp. (now Berry
  Plastics Holding Corporation)

  	
  DE

  	
  Secretary of State

  	
  Crown Credit Company

  	
   

  	
  11/22/2005

  #53622496

  
	
  Covalence Specialty Materials Corp. (now Berry
  Plastics Holding Corporation)

  	
  DE

  	
  Secretary of State

  	
  Irwin Commerical Finance Corporation, Equipment
  Finance

  	
   

  	
  10/14/2005

  #53187599

  
	
  Covalence Specialty Materials Corp. (now Berry
  Plastics Holding Corporation)

  	
  DE

  	
  Secretary of State

  	
  Irwin Commerical Finance Corporation, Equipment
  Finance

  	
   

  	
  11/3/2005

  #53434199

  
	
  Covalence Specialty Materials Corp. (now Berry
  Plastics Holding Corporation)

  	
  DE

  	
  Secretary of State

  	
  Toyota Motor Credit Corporation

  	
   

  	
  1/28/2003

  #30235625

  
	
  Covalence Specialty Materials Corp. (now Berry
  Plastics Holding Corporation)

  	
  DE

  	
  Secretary of State

  	
  IOS Capital, LLC

  	
   

  	
  4/11/2003

  #30947351

  
	
  Covalence Specialty
  Materials Corp. (now Berry Plastics Holding Corporation)

  	
  DE

  	
  Secretary of State

  	
  IOS Capital, LLC

  	
   

  	
  3/10/2004

  #40715484

  
	
  Covalence Specialty Materials Corp. (now Berry
  Plastics Holding Corporation)

  	
  DE

  	
  Secretary of State

  	
  IOS Capital, LLC

  	
   

  	
  3/4/2005

  #50774118

  
	
  Covalence Specialty Materials Corp. (now Berry
  Plastics Holding Corporation)

  	
  OH

  	
  Secretary of State

  	
  MT Business Leasing, Inc.

  	
   

  	
  1/30/2004

  #OH00073407453

  
	
  Covalence Specialty Materials Corp. (now Berry
  Plastics Holding Corporation)

  	
  MN

  	
  Secretary of State

  	
  General Electric Capital Corporation

  	
   

  	
  5/20/2003

  #20037518481

  
	
  Covalence Specialty Materials Corp. (now Berry
  Plastics Holding Corporation)

  	
  MN

  	
  Secretary of State

  	
  Toyota Financial Services

  	
   

  	
  2/17/2004

  #200410618315

  
	
  Covalence Specialty Materials Corp. (now Berry
  Plastics Holding Corporation)

  	
  MN

  	
  Secretary of State

  	
  Toyota Financial Services

  	
   

  	
  2/17/2004

  #200410618341

  
	
  Covalence Specialty Materials Corp. (now Berry
  Plastics Holding Corporation)

  	
  MN

  	
  Secretary of State

  	
  Toyota Financial Services

  	
   

  	
  2/17/2004

  #200410618365

  
	
  Covalence Specialty Materials Corp. (now Berry
  Plastics Holding Corporation)

  	
  MN

  	
  Secretary of State

  	
  Toyota Financial Services

  	
   

  	
  11/16/2004

  #200414005055

  
	
  Covalence Specialty Coatings LLC

  	
  DE

  	
  Secretary of State

  	
  Citicorp Leasing, Inc.

  	
   

  	
  3/3/2004

  #40612228

  
	
  Covalence Specialty
  Coatings LLC

  	
  DE

  	
  Secretary of State

  	
  HERC Exchange, LLC

  	
   

  	
  3/2/2005

  #50671322

  
	
  Covalence Specialty Coatings LLC

  	
  MA

  	
  Secretary of State

  	
  Citicorp Del Lease, Inc.

  	
   

  	
  5/11/2001

  #200102204850

  
	
  Covalence Specialty Coatings LLC

  	
  MA

  	
  Secretary of State

  	
  Citicorp Del Lease, Inc.

  	
   

  	
  6/6/2001

  #200102966190

  
	
  Covalence Specialty Coatings LLC

  	
  MA

  	
  Secretary of State

  	
  Raymond Leasing Corporation

  	
   

  	
  7/26/2001

  #200104137570

  
	
  Covalence Specialty Coatings LLC

  	
  MA

  	
  Secretary of State

  	
  Raymond Leasing Corporation

  	
   

  	
  9/21/2001

  #200105539760

  
	
  Covalence Specialty Coatings LLC

  	
  MA

  	
  Secretary of State

  	
  Citicorp Del Lease, Inc.

  	
   

  	
  9/6/2001

  #2000105206770

  
	
  Covalence Specialty Coatings LLC

  	
  MA

  	
  Secretary of State

  	
  Citicorp Del Lease, Inc.

  	
   

  	
  9/17/2001

  #200105389590

  
	
  Covalence Specialty Coatings LLC

  	
  MA

  	
  Secretary of State

  	
  Fleet Business Credit, LLC

  	
   

  	
  1/22/2002

  #200208483050

  
	
  Covalence Specialty Coatings LLC

  	
  MA

  	
  Secretary of State

  	
  Fleet Business Credit, LLC

  	
   

  	
  4/18/2002

  #200210890150

  
	
  Covalence Specialty
  Coatings LLC

  	
  NH

  	
  Secretary of State

  	
  Citicorp Del Lease, Inc.

  	
   

  	
  4/19/2001

  #578866

  
	
  Covalence Specialty Coatings LLC

  	
  NH

  	
  Secretary of State

  	
  Citicorp Del Lease, Inc.

  	
   

  	
  6/5/2001

  #581500

  
	
  Covalence Specialty Coatings LLC

  	
  NH

  	
  Secretary of State

  	
  Citicorp Del Lease, Inc.

  	
   

  	
  6/28/2001

  #581500-01

  
	
  Covalence Specialty Coatings LLC

  	
  MA

  	
   

  	
  State of Massachusetts

  	
  Tax lien

  	
  5/2/2002

  #044010011028

  
	
  Covalence Specialty Coatings LLC

  	
  DE

  	
  Secretary of State

  	
  Bank of America, N.A., as ABL Collateral Agent

  Credit Suisse, as Term Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2007 1242006

  4/3/07

  
	
  Covalence Specialty Coatings LLC

  	
  DE

  	
  Secretary of State

  	
  Wells Fargo, N.A., as Collateral Agent

  	
  All Assets

  	
  UCC-1

  2007 1250199

  4/3/07

  
	
  Covalence Specialty Coatings LLC

  	
  DE

  	
  Secretary of State

  	
  NMHG Financial Services, Inc.

  	
  Leased Equipment

  	
  UCC-1

  #2007 4645171

  12/10/07

  
	
  Covalence Specialty Coatings LLC

  	
  DE

  	
  Secretary of State

  	
  NMHG Financial Sefvices, Inc.

  	
  Leased Equipment

  	
  UCC-1

  #2008 0006427

  1/2/08

  
	
  Covalence Specialty Coatings LLC

  	
  DE

  	
  Secretary of State

  	
  Bank of America, N.A., as Collateral Agent

  	
  Leased Equipment

  	
  UCC-1

  #2008 0272870

  1/23/08

  
	
  Covalence Specialty
  Coatings LLC

  	
  DE

  	
  Secretary of State

  	
  Wells Fargo, N.A., as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2008 1384450

  4/21/08

  
	
  Covalence Specialty Coatings LLC

  	
  DE

  	
  Secretary of State

  	
  U.S. Bank National Association, as Collateral Agent

  	
  All Assets

  	
  UCC-1

  #2009 3887632

  12/4/09

  
	
  Covalence Specialty Adhesives LLC

  	
  DE

  	
  Secretary of State

  	
  JPS Industries, Inc.

  	
   

  	
  4/1/2005

  #51077842

  
	
  Covalence Specialty Adhesives LLC

  	
  DE

  	
  Secretary of State

  	
  IBM Credit LLC

  	
   

  	
  9/27/2005

  #52982990

  
	
  Covalence Specialty Adhesives LLC

  	
  MA

  	
  Secretary of State

  	
  Newcourt Technologies Corporation

  	
   

  	
  2/10/2000

  #694626

  
	
  Covalence Specialty Adhesives LLC

  	
  MA

  	
  Secretary of State

  	
  Steelcase Financial Services, Inc.

  	
   

  	
  12/5/2000

  #760770

  
	
  Covalence Specialty Adhesives LLC

  	
  MA

  	
  Secretary of State

  	
  Pitney Bowes Credit Corporation

  	
   

  	
  1/9/2002

  #200208181910

  
	
  Covalence Specialty Adhesives LLC

  	
  MA

  	
  Secretary of State

  	
  HB Fuller

  	
   

  	
  2/6/2006

  #200645469510

  











 










 








 








 


Security Agreement Supplement dated as of April 16, 1991, by
the Kendall Company in favor of Manufacturers Hanover Trust Company.




















 










 








 








SCHEDULE 6.04


Investments


Berry: 


	
  Obligor

  	
  Balance

  	
  Obligee

  
	
  AeroCon, LLC

  	
  
  946,299 

  	
  Berry Plastics Corporation

  
	
  Berry Iowa, LLC

  	
  
  (47,112,919)

  	
  Berry Plastics Corporation

  
	
  Berry Plastics Asia Pte. Ltd

  	
  
      1,190,699 

  	
  Berry Plastics Corporation

  
	
  Berry Plastics BVBA

  	
  
  (7,274,947)

  	
  Berry Plastics Corporation

  
	
  Berry Plastics Canada, Inc.

  	
  
  (82,726,411)

  	
  Berry Plastics Corporation

  
	
  Berry Plastics Corporation

  	
  
  3,214,165,146 

  	
  Various Subsidiaries

  
	
  Berry Plastics de Mexico / Gripo dre Servicos Berpla

  	
  
  (17,508,261) 

  	
  Berry Plastics Corporation

  
	
  Berry Plastics Design, LLC

  	
  
          (29,613,224)

  	
  Berry Plastics Corporation

  
	
  Berry Plastics Group, Inc.

  	
  
  626,294,578 

  	
  Berry Plastics Corporation

  
	
  Berry Plastics Opco, Inc

  	
  
  (45,550,982)

  	
  Berry Plastics Corporation

  
	
  Berry Plastics SP, Inc.  ( F/K/A Superfos Packaging, Inc.)

  	
  
  (72,265,509)

  	
  Berry Plastics Corporation

  
	
  Berry Plastics Technical Services, Inc.

  	
  
  (3,179,070)

  	
  Berry Plastics Corporation

  
	
  Berry Sterling Corporation

  	
  
  2,464,633 

  	
  Berry Plastics Corporation

  
	
  BP Parallel, LLC

  	
  
  (277,153,003)

  	
  Berry Plastics Corporation

  
	
  Captive Plastics, LLC

  	
  
  (622,182,184)

  	
  Berry Plastics Corporation

  
	
  Cardinal Packaging, Inc.

  	
  
  (71,048,724)

  	
  Berry Plastics Corporation

  
	
  Covalence Speciality Adhesives, LLC

  	
  
  (152,322,742)

  	
  Berry Plastics Corporation

  
	
  Covalence Speciality Coatings, LLC

  	
  
  (159,656,894)

  	
  Berry Plastics Corporation

  
	
  Kerr Group, LLC

  	
  
  (553,960,708)

  	
  Berry Plastics Corporation

  
	
  Knight Plastics, LLC

  	
  
  (93,111,597)

  	
  Berry Plastics Corporation

  
	
  Packerware, LLC

  	
  
  (301,286,969)

  	
  Berry Plastics Corporation

  
	
  Pliant Corporation Pty LTD

  	
  
  (106,706)

  	
  Berry Plastics Corporation

  
	
  Pliant de Mexico SA de CV

  	
  
  (16,082,039) 

  	
  Berry Plastics Corporation

  
	
  Pliant Film Products Gmbh

  	
  
  886,511 

  	
  Berry Plastics Corporation

  
	
  Pliant, LLC

  	
  
  (750,450,001)

  	
  Berry Plastics Corporation

  
	
  Poly-Seal, LLC

  	
                                (153,281,544)

  	
  Berry Plastics Corporation

  
	
  Rafypak S.A. de CV

  	
  
  (2,248,208) 

  	
  Berry Plastics Corporation

  
	
  Rollpak Corporation

  	
  
  (32,878,931)

  	
  Berry Plastics Corporation

  
	
  Setco, LLC

  	
                                (124,552,351)

  	
  Berry Plastics Corporation

  
	
  Sun Coast Industries, LLC

  	
  
  (38,484,378)

  	
  Berry Plastics Corporation

  
	
  Venture Packaging Midwest, Inc.

  	
  
  (159,686,850)

  	
  Berry Plastics Corporation

  
	
  M/S/ Berry Plastics PVT LTD (CSM India SPV LLC)

  	
  
  (2,170,110)

  	
  Berry Plastics Corporation

  
	
  Pliant Corporation International

  	
  13,000,000

  	
  Berry Plastics Corporation

  
	
  Uniplast Holdings Inc

  	
  18,000,000
                                               

  	
  Berry Plastics Corporation

  
	
  Uniplast Industries Company

  	
  
  (30,052,605)

  	
  Berry Plastics Corporation

  
	
  Uniplast U.S., Inc.

  	
  8,700,000

  	
  Berry Plastics Corporation

  











 










 








 








SCHEDULE 6.05


Mergers,
Consolidations, Sale of Assets and Acquisitions


Sale of Berry Plastics UK
Limited.












 










 








 








SCHEDULE 6.07


Transactions
with Affiliates


 


            Management Agreement, dated as of September 20,
2006 among Berry Plastics Corporation, Berry Plastics Group, Inc. and Apollo Management VI, L.P.


 












 










 








 








SCHEDULE 9.01


Notice
Information


HOLDINGS:


 


BERRY PLASTICS GROUP, INC.


            101 Oakley St.


            Evansville, IN 47710


            Attention: James M. Kratochvil


            Telecopier:  (812) 424-0128


            jimkratochvil@berryplastics.com


 


 


THE COMPANY:


 


BERRY PLASTICS CORPORATION


            101 Oakley St.


            Evansville, IN 47710


            Attention:  James M. Kratochvil


            Telecopier:  (812) 424-0128


            jimkratochvil@berryplastics.com        


 


 


DOMESTIC SUBSIDIARIES:


C/O BERRY PLASTICS CORPORATION


            101 Oakley St.


            Evansville, IN 47710


            Attention:  James M. Kratochvil


            Telecopier:  (812) 424-0128


            jimkratochvil@berryplastics.com

ADMINISTRATIVE AGENT:


Administrative Agent’s
Office


 


For Payments and Request for Credit Extensions and
Swingline Lender:


 


Bank of America, N.A.


20975 Swenson Drive, Suite 200


Waukesha, WI  53186


Attn:   Debra Martell


Tel:  262-207-3301


Fax:  312-453-3748


E:mail:  operations_waukesha@bankofamerica.com 


 









 










 








 








Secondary Contact:


Attn: Kathie Theisen


Tel:  262-207-3309


Fax:  312-453-5933


 


Financial Statements,
Other Information for Distribution to Lenders and Other Notices as
Administrative Agent:


Bank of America, N.A.


335 Madison Avenue, 6th Floor


New York, N.Y.  10017


Mail Stop:  NY1-503-06-16


Attn:   Robert Anchundia


VP, Sr. Portfolio Specialist


Tel:  646-556-0483


Fax:  312-453-2487


E:mail:  Robert.anchundia@baml.com     


 


LC ISSUER:


Bank of America, N.A.


20975 Swenson Drive, Suite 200


Waukesha, WI  53186


Attn:   Debra Martell


Tel:  262-207-3301


Fax:  312-453-3748


E:mail:  operations_waukesha@bankofamerica.com 


 
















 










 








 








Schedule 1 to Amendment No. 3


Loan and Commitment Amounts of Designated Lenders


	
   

  	
  Lender

  	
  Loan and Commitment Amounts

  
	
  1.

  	
  Bank of America,
  N.A

  	
  $92,628,205

  
	
  2.

  	
  Wells Fargo Capital Finance, LLC

  	
  $74,102,564

  
	
  3.

  	
  Barclays Bank PLC

  	
  $66,692,308

  
	
  4.

  	
  Citicorp North America, Inc.

  	
  $44,461,538

  
	
  5.

  	
  Credit Suisse AG, Cayman Islands Branch

  	
  $44,461,538

  
	
  6.

  	
  Deutsche Bank Trust Company Americas

  	
  $37,051,282

  
	
  7.

  	
  U.S. Bank National Association

  	
  $37,051,282

  
	
  8.

  	
  UBS Loan Finance LLC

  	
  $37,051,282

  
	
  9.

  	
  Goldman Sachs Bank USA

  	
  $29,641,026

  
	
  10.

  	
  Siemens Financial Services, Inc.

  	
  $18,525,641

  
	
  Total

  	
  $481,666,667