Exhibit 10.3


    
      

      

    

     

    


    


    NOTE
      PURCHASE AGREEMENT

    


    AMONG

    


    BPC
      ACQUISITION CORP.

    


    AND

    


    GOLDMAN,
      SACHS & CO.

    as
      Initial Purchaser

    


    AND

    


    GSMP
      2006 ONSHORE US, LTD.

    


    GSMP
      2006 OFFSHORE US, LTD.

    


    GSMP
      2006 INSTITUTIONAL US, LTD.

    


    GS
      MEZZANINE
      PARTNERS 2006 INSTITUTIONAL, L.P.

    as
      Subsequent Purchasers

    


    


    


    Dated
      as of:

    


    September
      20, 2006

    


    Relating
      to:

    


    $425,000,000

    


    SENIOR
      SUBORDINATED NOTES DUE 2016

    
      ffny03\syselja\660493.15

    

    


     


    
      
        
          


          


        

        
        

      

      
        
        

        
          

        

      

      
        
        

        
        

      

    



    TABLE
      OF CONTENTS

     

     

    

      
        	
                SECTION
                  1.

              	
                DEFINITIONS
                  AND ACCOUNTING TERMS

              	
                2

              
	
                1.1.

              	
                Definitions.

              	
                2

              
	
                1.2.

              	
                Computation
                  of Time Periods.

              	
                10

              
	
                1.3.

              	
                Terms
                  Generally.

              	
                10

              
	
                1.4.

              	
                Accounting
                  Terms.

              	
                10

              
	
                SECTION
                  2.

              	
                AUTHORIZATION
                  AND ISSUANCE OF NOTES

              	
                10

              
	
                2.1.

              	
                Authorization
                  of Issue.

              	
                10

              
	
                2.2.

              	
                Sale
                  and Purchase of the Notes to the Initial Purchaser.

              	
                10

              
	
                2.3.

              	
                Resale
                  of the Notes to the Subsequent Purchasers.

              	
                10

              
	
                2.4.

              	
                Closing.

              	
                11

              
	
                SECTION
                  3.

              	
                CONDITIONS
                  TO CLOSING

              	
                11

              
	
                3.1.

              	
                Conditions
                  to Closing.

              	
                11

              
	
                SECTION
                  4.

              	
                REPRESENTATIONS
                  AND WARRANTIES

              	
                14

              
	
                4.1.

              	
                Due
                  Organization; Power and Authority.

              	
                14

              
	
                4.2.

              	
                Capital
                  Stock and Ownership of HoldCo.

              	
                14

              
	
                4.3.

              	
                Capital
                  Stock and Ownership of Company and Subsidiaries.

              	
                15

              
	
                4.4.

              	
                Due
                  Authorization, Execution and Delivery.

              	
                15

              
	
                4.5.

              	
                Non-Contravention;
                  Authorizations and Approvals.

              	
                16

              
	
                4.6.

              	
                Financial
                  Statements and Projections.

              	
                16

              
	
                4.7.

              	
                No
                  Material Adverse Effect.

              	
                17

              
	
                4.8.

              	
                No
                  Actions or Proceedings.

              	
                17

              
	
                4.9.

              	
                Title
                  to Properties.

              	
                17

              
	
                4.10.

              	
                Intellectual
                  Property Rights.

              	
                18

              
	
                4.11.

              	
                Taxes.

              	
                18

              
	
                4.12.

              	
                Employee
                  Benefit Plans.

              	
                18

              
	
                4.13.

              	
                Private
                  Offering; No Integration or General Solicitation; Rule 144A
                  Eligibility.

              	
                19

              
	
                4.14.

              	
                Status
                  under Certain Statutes.

              	
                20

              
	
                4.15.

              	
                Insurance.

              	
                20

              
	
                4.16.

              	
                Use
                  of Proceeds; Margin Regulations.

              	
                20

              
	
                4.17.

              	
                Compliance
                  with Laws; Permits; Environmental Matters.

              	
                20

              
	
                4.18.

              	
                Solvency.

              	
                21

              
	
                4.19.

              	
                Labor
                  and Employment Matters.

              	
                21

              
	
                4.20.

              	
                Brokerage
                  Fees.

              	
                22

              
	
                4.21.

              	
                Final
                  Memorandum.

              	
                22

              
	
                SECTION
                  5.

              	
                REPRESENTATIONS,
                  WARRANTIES AND COVENANTS OF THE SUBSEQUENT
                  PURCHASERS

              	22
	
                5.1.

              	
                Purchase
                  for Investment.

              	
                22

              
	
                5.2.

              	
                Due
                  Organization; Corporate Power; Authorization;
                  Enforceability.

              	
                23

              
	
                5.3.

              	
                No
                  Actions or Proceedings.

              	
                23

              
	
                5.4.

              	
                Final
                  Memorandum.

              	
                23

              
	
                5.5.

              	
                Investment
                  Decision.

              	
                23

              
	
                SECTION
                  5A.

              	
                OFFERING
                  BY INITIAL PURCHASER

              	
                24

              
	
                5A.1.

              	
                Offering
                  by Initial Purchaser.

              	
                24

              


      

    

     

    
       

    

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    

      
        	
                SECTION
                  6.

              	
                COVENANTS
                  TO PROVIDE INFORMATION

              	
                24

              
	
                6.1.

              	
                Reports
                  to Subsequent Purchasers and GSMP VCOC.

              	
                24

              
	
                SECTION
                  7

              	
                .
                  OTHER AFFIRMATIVE COVENANTS

              	
                25

              
	
                7.1.

              	
                Board
                  Representation.

              	
                25

              
	
                7.2.

              	
                Access.

              	
                26

              
	
                7.3.

              	
                Rule
                  144A.

              	
                26

              
	
                7.4.

              	
                Corporate
                  Existence; Businesses and Properties.

              	
                26

              
	
                7.5.

              	
                Taxes
                  and Other Claims.

              	
                26

              
	
                7.6.

              	
                Books
                  and Records.

              	
                27

              
	
                7.7.

              	
                Insurance.

              	
                27

              
	
                SECTION
                  8.

              	
                PROVISIONS
                  RELATING TO RESALES OF NOTES

              	
                27

              
	
                8.1.

              	
                Private
                  Offerings.

              	
                27

              
	
                8.2.

              	
                Procedures
                  and Management Cooperation in Private Offerings.

              	
                28

              
	
                8.3.

              	
                No
                  Integration.

              	
                28

              
	
                SECTION
                  9.

              	
                EXPENSES,
                  INDEMNIFICATION AND CONTRIBUTION

              	
                28

              
	
                9.1.

              	
                Expenses
                  of Subsequent Purchasers.

              	
                28

              
	
                9.2.

              	
                Indemnification
                  of the Subsequent Purchasers.

              	
                29

              
	
                9.3.

              	
                Waiver
                  of Punitive Damages.

              	
                29

              
	
                9.4.

              	
                Survival.

              	
                30

              
	
                9.5.

              	
                Tax
                  Treatment of Indemnification Payments.

              	
                30

              
	
                9.6.

              	
                Indemnification
                  of the Initial Purchaser.

              	
                30

              
	
                SECTION
                  10.

              	
                MISCELLANEOUS

              	
                30

              
	
                10.1.

              	
                Notices.

              	
                30

              
	
                10.2.

              	
                Benefit
                  of Agreement and Assignments.

              	
                31

              
	
                10.3.

              	
                No
                  Waiver; Remedies Cumulative.

              	
                31

              
	
                10.4.

              	
                Amendments,
                  Waivers and Consents.

              	
                31

              
	
                10.5.

              	
                Counterparts.

              	
                32

              
	
                10.6.

              	
                Reproduction.

              	
                32

              
	
                10.7.

              	
                Headings.

              	
                32

              
	
                10.8.

              	
                Survival
                  of Representations, Warrants, Covenants and Indemnities.

              	
                32

              
	
                10.9.

              	
                Governing
                  Law; Submission to Jurisdiction; Venue.

              	
                32

              
	
                10.10.

              	
                Severability.

              	
                33

              
	
                10.11.

              	
                Entirety.

              	
                33

              
	
                10.12.

              	
                Construction.

              	
                33

              
	
                10.13.

              	
                Incorporation.

              	
                33

              
	
                10.14.

              	
                Confidentiality.

              	
                34

              
	
                10.15.

              	
                No
                  Personal Obligations.

              	
                35

              
	
                10.16.

              	
                Currency.

              	
                35

              
	
                10.17.

              	
                No
                  Fiduciary Duty.

              	
                35

              


      

      


        
          
            
            

          

          
            
            

            
              

            

          

          
            
            

          

        



    

    


    EXHIBITS:

    Exhibit
      A  - Form
      of
      Indenture

    Exhibit
      B  - Form
      of
      Exchange and Registration Rights Agreement

    Exhibit
      C  - Indemnification
      Provisions for the Initial Purchaser

    Exhibit
      3.1(c)(i) - Form
      of
      Secretary’s Certificate

    Exhibit
      3.1(c)(ii) - Form
      of
      Officer’s Certificate

    Exhibit
      3.1(c)(iii) - Form
      of
      Solvency Certificate

    


    SCHEDULES:

    Schedule 2.2 - Information
      relating to the Subsequent Purchasers

    Schedule 4.2 - Capital
      Stock and Ownership

    Schedule 4.3 - Subsidiaries

    Schedule
      4.5 - Governmental
      Approvals

    Schedule
      4.9 - Leased
      Properties

    Schedule
      4.10 - Intellectual
      Property

    Schedule
      4.11 - Taxes

    Schedule
      4.15 - Insurance

    Schedule
      4.17 - Environmental
      Matters

    Schedule
      4.20 - Brokerage
      Fees

    



    
      
        
          


          


        

        
        

      

      
        
        

        
          

        

      

      
        
        

        
        

      

    



    NOTE
      PURCHASE AGREEMENT

    


    NOTE
      PURCHASE AGREEMENT, dated as of September 20, 2006, among BPC
      Acquisition Corp.,
      a
      Delaware corporation (“Merger
      Sub”);
      Goldman,
      Sachs & Co.,
      a New
      York partnership (“Initial
      Purchaser”);
      GSMP
      2006 Onshore US, Ltd.,
      an
      exempted Cayman Islands limited liability company (“GSMP
      Onshore”);
      GSMP
      2006 Offshore US, Ltd.,
      an
      exempted Cayman Islands limited liability company (“GSMP
      Offshore”);
      GSMP
      2006 Institutional US, Ltd.,
      an
      exempted Cayman Islands limited liability company (“GSMP
      Institutional”
and,
      together with GSMP Onshore and GSMP Offshore, the “Subsequent
      Purchasers”,
      and
      together with the Initial Purchaser, the “Purchasers”);
      and
GS
      Mezzanine Partners 2006 Institutional, L.P.,
      an
      exempted Cayman Islands limited partnership (the “GSMP
      VCOC”).

    


    W
      I T
      N E S S E T H:

     

    


    WHEREAS,
      pursuant to that certain Agreement and Plan of Merger, dated as of June 28,
      2006, substantially in the form previously furnished to the Purchasers (the
      “Acquisition
      Agreement”),
      among
      Merger Sub, BPC Holding Corporation, a Delaware corporation (the “Company”
or
      the
“Issuer”)
      and
      BPC Holding Acquisition Corp. (which entity has changed its name to Berry
      Plastics Group, Inc.) (“HoldCo”
or
      “Holdings”),
      Merger Sub will be merged with and into the Company, with the Company as the
      surviving corporation of the merger (the “Acquisition”);

    


    WHEREAS,
      upon consummation of the Acquisition, HoldCo will be a holding company owned,
      directly or indirectly, by affiliates of Apollo Management, L.P. and certain
      other investors (collectively, the “Sponsor”),
      and
      HoldCo will directly own all of the outstanding capital stock of the Company
      as
      the surviving entity of the merger pursuant to which the Acquisition is effected
      and thus HoldCo will have acquired the Company from Goldman Sachs Capital
      Partners and JPMorgan Partners (collectively, the “Sellers”);

    


    WHEREAS,
      in order to finance the Acquisition, refinance certain existing indebtedness
      of
      the Company in connection with the Acquisition, and pay related transaction
      fees
      and expenses (collectively, the “Transactions”),
      the
      Issuer will require funds to be provided from:

     

    (a)  the
      issuance by HoldCo of its common stock (the “HoldCo
      Stock”)
      to the
      Sponsor and certain other equity investors, including the Subsequent Purchasers
      (collectively, the “Equity Investors”) for cash proceeds that, together with the
“rollover” of certain existing equity investments in the Company by certain
      management and employees of the Company, shall represent at least 20% of the
      total debt and equity financing required by the Issuer to complete the
      Acquisition (the “Equity
      Contribution”),
      which
      cash proceeds will be contributed by HoldCo to the common equity of Merger
      Sub;

     

    (b)  the
      borrowing by the Issuer of approximately $675 million aggregate principal amount
      of term loans under a senior secured credit facility (such term loans, together
      with a revolving credit facility of approximately $200 million (a portion of
      which may be outstanding immediately following the consummation of the
      Transactions), the “Senior
      Credit Facilities”),
      pursuant to the Credit Agreement (as defined herein); 

     

    (c)  the
      receipt by the Issuer of $750 million of gross proceeds from the issuance by
      Merger Sub of its second lien senior notes (the “Senior
      Notes”
and
      the
      financing contemplated thereby, the “Senior
      Financing”)
      in a
      public offering or in a Rule 144A or other private placement (less the amount
      of
      the fee for the placement of such notes); and

     

    
      
        
        

      

      
        -1-

        
          

        

      

      
        
        

      

    

    (d)  the
      issuance and sale by the Issuer to the Initial Purchaser of its senior
      subordinated notes (the “Notes”)
      on the
      terms set forth herein in an original principal amount of $425
      million.

     

    WHEREAS,
      on the Closing date, immediately following the Closing of the issuance to the
      Initial Purchaser of the Notes, the Initial Purchaser will resell all of the
      Notes to the Subsequent Purchasers on the terms and conditions set forth
      herein.

     

    WHEREAS,
      in connection with the issuance and the Resale (as defined herein) of the Notes,
      the Company has prepared and delivered to the Initial Purchaser on the date
      hereof a final offering memorandum (including any amendment or supplement
      thereto the “Final
      Memorandum”)
      relating to the Notes.

     

    WHEREAS,
      the Company, by its execution hereof, hereby confirms that it has authorized
      the
      use and delivery of the Final Memorandum by the Initial Purchaser (and only
      by
      the Initial Purchaser) to the Subsequent Purchasers (and only to the Subsequent
      Purchasers) in connection with the Resale of the Notes by the Initial Purchaser
      to the Subsequent Purchasers.

     

    NOW,
      THEREFORE, the parties hereto agree as follows:

    


    


    SECTION
      1.  

    DEFINITIONS
      AND ACCOUNTING TERMS

    


    1.1.  Definitions.

    


    Capitalized
      terms that are used herein without definition and are defined in the Indenture
      shall have the respective meanings ascribed to them in the Indenture. As used
      herein the following terms shall have the meanings specified herein (it being
      understood that defined terms shall include in the singular number, the plural,
      and in the plural, the singular):

    


    “Accredited
      Investor”
means
      any Person that is an “accredited investor” within the meaning of Rule
      501.

    


    “Acquisition”
is
      defined in the Recitals.

    


    “Acquisition
      Agreement”
is
      defined in the Recitals.

    


    “Acquisition
      Documents”
means
      the Acquisition Agreement and all Schedules thereto.

    


    “Agreement”
is
      defined in Section 10.4.

    


    “Affiliate”
is
      defined in the Indenture.

    


    “Applicable
      Law”
is
      defined in the Indenture.

    


    “Board”
or
      “Board
      of Directors”
are
      defined in the Indenture.

    


    “Business
      Day”
is
      defined in the Indenture.

    


    “Capital
      Stock”
is
      defined in the Indenture. 

    


    
      
        
        

      

      
        -2-

        
          

        

      

      
        
        

      

    

    “Closing”
is
      defined in Section 2.3(a).

    


    “Closing
      Date”
is
      defined in Section 2.3(a).

    


    “Closing
      Payment”
means,
      with respect to the Initial Purchaser, on the Closing Date, an amount in cash
      equal to 2%
      of the
      aggregate principal amount of Notes purchased by the Initial Purchaser on the
      Closing Date.

    


    “Code”
means
      the Internal Revenue Code of 1986, as amended from time to time, and the rules
      and regulations promulgated thereunder from time to time.

    


    “Commission”
is
      defined in the Indenture.

    


    “Common
      Stock”
means
      common stock, par value, $0.01 per share of HoldCo.

    


    “Company”
means
      Merger Sub, and from and after the merger of Merger Sub with and into the
      Company pursuant to the Acquisition and the execution and delivery by the
      parties thereto of the Assumption Agreement, the Company, as the surviving
      corporation of the Acquisition.

    


    “Consent
      Solicitation”
is
      defined in Section 3.1(b).

    


    “Contractual
      Obligation”
means,
      as applied to any Person, any provision of any security issued by that Person
      or
      of any indenture, mortgage, deed of trust, contract, undertaking, agreement
      or
      other instrument to which that Person is a party or by which it or any of its
      properties is bound or to which it or any of its properties is
      subject.

    


    “Credit
      Agreement”
is
      defined in the Indenture.

    


    “Credit
      Documents”
means
      the Credit Agreement and all certificates, instruments, and other documents
      and
      agreements made or delivered in connection therewith and related
      thereto.

    


    “Debt
      Tender Offer”
is
      defined in Section 3.1(b).

    


    “Default”
is
      defined in the Indenture.

    


    “Discharge”
is
      defined in Section 3.1(b).

    


    “DTC”
is
      defined in Section
      8.2(a).

    


    “EBITDA”
is
      defined in the Indenture.

    


    “Enforceability
      Exceptions”
means,
      with respect to any specified obligation, any limitations on the enforceability
      of such obligation due to (i) the effects of bankruptcy, insolvency, fraudulent
      conveyance, reorganization, moratorium and other similar laws relating to or
      affecting creditors’ rights generally, (ii)
      general equitable principles (whether considered in a proceeding in equity
      or at
      law), (iii) an implied covenant of good faith and fair dealing, and (iv)
      considerations of public policy.

    


    “Entity”
is
      defined in Section 7.1(a).

    


    
      
        
        

      

      
        -3-

        
          

        

      

      
        
        

      

    

    “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).

    


    “Equity
      Contribution”
is
      defined in the Recitals.

    


    “Equity
      Interests”
is
      defined in the Indenture.

    


    “Equity
      Financing”
means
      the purchase by the Equity Investors on the Closing Date of HoldCo’s common
      stock pursuant to the Equity Contribution.

    


    “Equity
      Financing Documents”
means
      collectively the Equity Subscription Agreements, the Stockholders Agreement
      and
      all certificates, instruments, and other documents made or delivered in
      connection with the Equity Financing.

    


    “Equity
      Investors”
is
      defined in the Recitals.

    


    “Equity
      Subscription Agreements”
mean
      those certain Equity Subscription Agreements, dated as of the date hereof,
      between HoldCo and each of the Equity Investors, as amended, supplemented,
      restated or otherwise modified from time to time, and shall include Subsequent
      Purchaser Equity Subscription Agreements.

    


    “ERISA”
means
      the Employee Retirement Income Security Act of 1974 (and any successor
      provision), as amended from time to time. 

    


    “ERISA
      Affiliate”
shall
      mean any trade or business (whether or not incorporated) that, together with
      the
      Company or any of its Subsidiaries, 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) the existence with respect to any Plan of
      an
“accumulated funding deficiency” (as defined in Section 412 of the Code or
      Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section
      412(d) of the Code or Section 303(d) 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 412(m) of the Code with
      respect to any Plan or the failure to make any required contribution to a
      Multiemployer Plan; (d) the incurrence by the Company any of its Subsidiaries
      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 the Company,
      any of its Subsidiaries 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 the Company, any of its Subsidiaries 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 the Company, any of its Subsidiaries
      or
      any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan
      from
      the Company, any of its Subsidiaries 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; (h) the conditions
      for
      imposition of a lien under Section 302(f) of ERISA shall have been met with
      respect to 

     

    
      
        
        

      

      
        -4-

        
          

        

      

      
        
        
any
        Plan;
        or (i) the adoption of an amendment to a Plan requiring the provision of
        security to such Plan pursuant to Section 307 of ERISA.

    

    


    “Event
      of Default”
is
      defined in the Indenture.

    


    “Exchange
      Act”
is
      defined in the Indenture.

    


    “Exchange
      and Registration Rights Agreement”
means
      the Exchange and Registration Rights Agreement among the Company and each
      Subsequent Purchaser, dated as of the date hereof, in the form attached hereto
      as Exhibit
      B,
      as
      amended, supplemented, restated or otherwise modified from time to
      time.

    


    “Existing
      Indebtedness”
is
      defined in the Indenture.

    


    “Existing
      Senior Subordinated Notes”
is
      defined in Section 3.1(b).

    


    “Final
      Memorandum”
is
      defined in the Recitals.

    


    “Financial
      Statements”
is
      defined in Section 4.6.

    


    “Financing
      Documents”
means
      this Agreement, the Indenture, the Notes and the Exchange and Registration
      Rights Agreement.

    


    “GAAP”
means
      those accounting principles in the United States, which are in effect at the
      time of the preparation of financial statements required to be delivered
      hereunder (and delivered together with the reconciliation statements provided
      for in Section
      6.1(d),
      if
      applicable).

    


    “Governmental
      Authority”
is
      defined in the Indenture.

    


    “GSMP
      Institutional”
is
      defined in the Preamble.

    


    “GSMP
      Offshore”
is
      defined in the Preamble.

    


    “GSMP
      Onshore”
is
      defined in the Preamble.

    


    “GSMP
      VCOC”
is
      defined in the Preamble.

    


    “Guarantee”
is
      defined in the Indenture.

    


    “Guarantor”
is
      defined in the Indenture.

    


    “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.

    


    “HoldCo”
is
      defined in the Recitals.

    


    “Holder”
is
      defined in the Indenture.

    


    
      
        
        

      

      
        -5-

        
          

        

      

      
        
        

      

    

    “Holdings”
is
      defined in the Recitals.

    


    “HSR
      Act”
means
      the Hart-Scott-Rodino Antitrust Improvements Act of 1976, (or any successor
      provision), as it may be amended from time to time.

    


    “Indemnitees”
is
      defined in Section 9.2.

    


    “incur”
is
      defined in the Indenture.

    


    “Indebtedness”
is
      defined in the Indenture. 

    


    “Indenture”
means
      the indenture, dated as of the date hereof by and among the Company, the
      Trustee, and the Guarantors, the form of which is attached hereto as
Exhibit
      A,
      as it
      may be amended, supplemented, restated or otherwise modified from time to
      time.

    


    “Information
      Memorandum”
shall
      mean the Confidential Information Memorandum dated August, 2006 relating to
      the
      funding contemplated by the Credit Agreement, as modified or supplemented prior
      to the Closing Date.

    


    “Initial
      Purchaser”
is
      defined in the Preamble.

    


    “Institutional
      Accredited Investors”
is
      defined in Section 8.1(a).

    


    “Investment
      Company Act”
means
      the Investment Company Act of 1940 (or any successor provision), as it may
      be
      amended from time to time.

    


    “Lien”
is
      defined in the Indenture.

    


    “Losses”
is
      defined in paragraph (d) of Exhibit
      C.

    


    “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 Financing Documents or the rights and remedies
      of the Subsequent Purchasers and GSMP VCOC thereunder; provided,
      however,
      that
      solely for purposes of determining whether the condition in Section
      3.1(a)
      has been
      satisfied in connection with the Closing, any reference to “Material Adverse
      Effect” in any of the representations and warranties referred to in Section
      3.1(a)
      shall
      mean, “Company Material Adverse Effect” as defined in the Acquisition
      Agreement.

    


    “Multiemployer
      Plan”
shall
      mean a multiemployer plan as defined in Section 4001(a)(3) of ERISA to which
      the
      Company, any of its Subsidiaries 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.

    


    “Non-Voting
      Observer”
is
      defined in Section 7.1(a).

    


    “Notes”
is
      defined in the Recitals.

    


    
      
        
        

      

      
        -6-

        
          

        

      

      
        
        

      

    

    “Organizational
      Documents”
means
      (i) with respect to any corporation, its certificate or articles of
      incorporation or organization, as amended, and its bylaws, as amended, (ii)
      with
      respect to any limited partnership, its certificate or articles of limited
      partnership, as amended, and its partnership agreement, as amended, (iii) with
      respect to any general partnership, its partnership agreement, as amended,
      and
      (iv) with respect to any limited liability company, its certificate or articles
      of organization or formation, as amended, and its operating agreement, as
      amended. In the event any term or condition of this Agreement or any other
      Financing Document requires any Organizational Document to be certified by
      a
      secretary of state or similar governmental official, the reference to any such
      “Organizational Document” shall only be to a document of a type customarily
      certified by such governmental official.

    


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

    


    “Patriot
      Act”
means
      PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001))
      (or
      any successor provision), as it may be amended or renewed from time to
      time.

    


    “Permitted
      Lien”
is
      defined in the Indenture.

    


    “Person”
is
      defined in the Indenture.

    


    “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, (ii) sponsored or maintained (at the time of determination
      or
      at any time within the five years prior thereto) by the Company, any of its
      Subsidiaries or any ERISA Affiliate, or (iii) in respect of which the Company,
      any of its Subsidiaries 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.

    


    “Private
      Offering”
means
      any offering by the Subsequent Purchasers of some or all of the Notes pursuant
      to an available exception from the Securities Act.

    


    “Projections”
shall
      mean the projections of the Company and any of its 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 a Subsequent Purchaser on behalf of the Company and any
      of
      its Subsidiaries prior to the Closing Date.

    


    “Purchase
      Price”
is
      defined in Section 2.2(ii).

    


    “Purchasers”
is
      defined in the Preamble.

    


    “Qualified
      Institutional Buyer”
means
      a
“qualified institutional buyer” as defined in Rule 144A.

    


    “Real
      Property”
means,
      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 the Company or any of its Subsidiaries, together with, in each case,
      all easements, hereditaments and appurtenances relating thereto, all
      improvements and appurtenant fixtures incidental to the ownership or lease
      thereof.

    


    “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.

    


    “Regulation
      D”
means
      Regulation D under the Securities Act (or any successor provision), as it
      may be amended from time to time.

    


    
      
        
        

      

      
        -7-

        
          

        

      

      
        
        

      

    

    “Regulation
      S”
is
      defined in the Indenture.

    


    “Regulation
      T”
means
      Regulation T of the Board of Governors of the Federal Reserve System (or
      any successor provision), as it may be amended from time to time.

    


    “Regulation
      U”
means
      Regulation U of the Board of Governors of the Federal Reserve System (or
      any successor provision), as it may be amended from time to time.

    


    “Regulation
      X”
means
      Regulation X of the Board of Governors of the Federal Reserve System (or
      any successor provision), as it may be amended from time to time.

    


    “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.

    


    “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
      Holders”
is
      defined in the Indenture as Holders of at least a majority in aggregate
      principal amount of the then outstanding Notes.

    


    “Resale”
is
      defined in Section 2.3(i).

    


    “Responsible
      Officer”
of
      any
      Person means the chairman, the chief executive officer, the president, the
      chief
      operating officer, the chief financial officer or the chief accounting officer
      of such Person.

    


    “Restricted
      Subsidiary”
is
      defined in the Indenture. 

    


    “Rule 144”
is
      defined in the Indenture. 

    


    “Rule 144A”
is
      defined in the Indenture.

    


    “Rule
      501”
means
      Rule 501 under the Securities Act (or any successor provision), as it may be
      amended from time to time. 

    


    “Rule 502”
means
      Rule 502 under the Securities Act (or any successor provision), as it may be
      amended from time to time.

    


    “SEC”
means
      the Securities and Exchange Commission.

    


    “Securities
      Act”
is
      defined in the Indenture.

    


    “Sellers”
is
      defined in the Recitals.

    


    “Senior
      Credit Facilities”
is
      defined in the Recitals.

    


    
      
        
        

      

      
        -8-

        
          

        

      

      
        
        

      

    

    “Senior
      Financing”
is
      defined in the Recitals.

    


    “Senior
      Financing Documents”
means
      all indentures, agreements, certificates, instruments, and other documents
      made
      or delivered in connection with the Senior Financing and related
      thereto.

    


    “Senior
      Notes”
is
      defined in the Recitals.

    


    “Specified
      Representations”
means
      the representations and warranties set forth in the Financing Documents and
      the
      Equity Financing Documents relating to corporate power and authority, the
      execution, delivery, and enforceability of the Financing Documents and the
      Equity Financing Documents, Federal Reserve margin regulations, and the
      Investment Company Act.

    


    “Sponsor”
is
      defined in the Recitals.

    


    “Stockholders
      Agreement”
means
      the Stockholders Agreement, dated as of the date hereof, among HoldCo and the
      Equity Investors, in the form previously provided to the Subsequent Purchasers,
      as amended, supplemented, restated or otherwise modified from time to
      time.

    


    “Subsequent
      Purchasers”
is
      defined in the Preamble.

    


    “Subsequent
      Purchaser Equity Subscription Agreements”
means
      the Subscription Agreements, dated as of the date hereof, between HoldCo and
      the
      Subsequent Purchasers, in the form previously provided to the Subsequent
      Purchasers, as amended, supplemented, restated or otherwise modified from time
      to time.

    


    “Subsequent
      Purchaser Stock”
means
      the common stock which the Subsequent Purchasers will subscribe for and purchase
      pursuant to the Subsequent Purchaser Equity Subscription Agreements, at the
      Closing.

    


    “Subsidiary”
is
      defined in the Indenture.

    


    “Taxes”
is
      defined in the Indenture.

    


    “TIA”
is
      defined in the Indenture.

    


    “Transaction
      Documents”
means,
      collectively, the Acquisition Documents, the Equity Financing Documents, the
      Financing Documents, the Senior Financing Documents and the Credit
      Documents.

    


    “Transactions”
means
      the Acquisition and all other transactions provided for in, or contemplated
      by,
      the Transaction Documents as being transactions to be completed on the Closing
      Date or promptly thereafter.

    


    “Trustee”
is
      defined in the Indenture.

    


    “Unfunded
      Pension Liability”
means
      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.

    


    “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.

    


    
      
        
        

      

      
        -9-

        
          

        

      

      
        
        

      

    

    1.2.  Computation
      of Time Periods.

    


    For
      purposes of computation of periods of time hereunder, the word “from” means
“from and including” and the words “to” and “until” each mean “to but
      excluding.”

    


    1.3.  Terms
      Generally.

    


    Unless
      the context requires otherwise (a) any definition of or reference to any
      agreement, instrument or other document herein shall be construed as referring
      to such agreement, instrument or other document as from time to time amended,
      supplemented or otherwise modified (subject to any restrictions on such
      amendments, supplements or modifications set forth herein), (b) any
      reference herein to any Person shall be construed to include such Person’s
      successors and assigns, and (c) the words “including” and “includes” shall
      mean “including without limitation” and “includes without limitation”, as
      applicable.

    


    1.4.  Accounting
      Terms.

    


    Accounting
      terms used but not otherwise defined herein shall have the meanings provided,
      and be construed in accordance with, GAAP.

    


    


    SECTION
      2.  

    AUTHORIZATION
      AND ISSUANCE OF NOTES

    


    2.1.  Authorization
      of Issue.

    


    On
      or
      prior to the execution and delivery of this Agreement, the Company will
      authorize the issue and sale of the Notes. The Notes shall be in the form
      specified in the Indenture.

    


    2.2.  Sale
      and Purchase of the Notes to the Initial Purchaser.

    


    (i)  Subject
      to the terms and conditions of this Agreement (including, without limitation,
      Section
      3.1),
      the
      Company will issue and sell to the Initial Purchaser, and the Initial Purchaser
      will purchase from the Company, at the Closing, the Notes.

     

    (ii)  The
      aggregate cash purchase price (the “Purchase
      Price”)
      for
      the Notes shall be equal to the principal amount of the Notes being so
      purchased, net of the Closing Payment with respect thereto, as specified on
      Schedule
      2.2.

     

    (iii)  The
      parties agree to report the sale and purchase of the Notes for all Tax purposes
      in a manner consistent with the foregoing and agree to take no position
      inconsistent with the foregoing.

     

    (iv)  The
      parties
      agree that the failure of the Initial Purchaser to purchase the Notes at the
      Closing shall not relieve the Subsequent Purchasers of any of their obligations
      under that certain commitment letter, dated August 1, 2006, relating to the
      purchase of the Notes.

     

    


    2.3.  Resale
      of the Notes to the Subsequent Purchasers.

    


    
      
        
        

      

      
        -10-

        
          

        

      

      
        
        

      

    

    (i)  Subject
      to the terms and conditions of this Agreement (including, without limitation,
      Section
      3.1),
      the
      Initial Purchaser will immediately following its purchase of the Notes from
      the
      Company pursuant to Section
      2.2,
      sell
      (the “Resale”)
      to the
      Subsequent Purchasers, and each of the Subsequent Purchasers will purchase
      from
      the Initial Purchaser, at the Closing, the Notes.

     

    (ii)  The
      aggregate cash purchase price for the Resale of the Notes to the Subsequent
      Purchaser shall be equal to the aggregate Purchase Price paid by the Initial
      Purchaser for the Notes.

     

    (iii)  Schedule
      2.2
      hereto
      sets forth, for each Subsequent Purchaser, the aggregate principal amount of
      the
      Notes to be purchased by such Subsequent Purchaser and the portion of the
      Purchaser Price payable by such Subsequent Purchaser therefor. The obligations
      of Subsequent Purchasers to purchase and pay for the Notes hereunder are several
      and not joint and no Subsequent Purchaser shall have any liability to any Person
      for the performance or non-performance by any other Subsequent
      Purchaser.

     

    


    2.4.  Closing.

    


    (a)  The
      sale
      and purchase of the Notes to the Initial Purchaser and the Resale of the Notes
      to the Subsequent Purchasers shall occur at the offices of Wachtell, Lipton,
      Rosen & Katz, 51 West 52nd
      Street,
      New York, New York, 10019 (or at such other place as the Company and the
      Purchasers may agree), at 10:00 a.m. local time, at a closing (the “Closing”)
      on
      September 20, 2006, or on such other Business Day or time thereafter as may
      be
      agreed upon by the Company and the Purchasers (in either case, the date and
      time
      of the Closing is referred to herein as the “Closing
      Date”).
      At
      the Closing (i) the Company will deliver to the Initial Purchaser the Notes
      to
      be purchased by the Initial Purchaser on the Closing Date, in such denominations
      as the Initial Purchaser may request, dated as of the Closing Date against
      payment by the Initial Purchaser to the Company or to its order of immediately
      available funds in the amount of the Purchase Price, by wire transfer of
      immediately available funds to bank account or accounts as the Company may
      request.

    


    (b)  If
      at the
      Closing the Company shall fail to deliver to the Initial Purchaser the Notes
      as
      provided in Section
      2.4(a),
      or any
      of the conditions specified in Section
      3
      shall
      not have been fulfilled or waived as provided herein, then the Initial Purchaser
      shall, at its election, be relieved of all further obligations under this
      Agreement, without thereby waiving any rights the Purchasers may have by reason
      of such failure or such non-fulfillment.

    


    SECTION
      3.  

    CONDITIONS
      TO CLOSING

    


    3.1.  Conditions
      to Closing.

    


    The
      Initial Purchaser’s obligation to purchase and pay for the Notes to be purchased
      by it at the Closing is subject to the satisfaction or express waiver by the
      Purchasers prior to or at the Closing of each of the conditions specified below
      in this Section
      3.1.

     

    (a)  Representations
      and Warranties.

     

    (A)
      Each
      of the representations made by the Company in the Acquisition Agreement as
      are
      material to the interests of the Purchasers, but only to the extent that the
      Company has the right to terminate its obligations under the Acquisition
      Agreement as a result of a breach of such representations in the Acquisition
      Agreement (determined without regard to whether any notice is required to be
      delivered by the Company) and (B) each of the Specified Representations made
      by
      the Company, in each

     

    
      
        
        

      

      
        -11-

        
          

        

      

      
        
        
case,
        that is qualified as to materiality or Material Adverse Effect shall be true
        and
        correct and each of such representations and warranties that is not so qualified
        shall be true and correct in all material respects on or as of the Closing
        Date
        as if made on and as of the Closing Date (unless expressly stated to relate
        to a
        specific earlier date, in which case each of such representations and warranties
        that is qualified as to materiality or Material Adverse Effect shall be true
        and
        correct as of such earlier date, and each of such representations and warranties
        that is not so qualified shall be true and correct, in all material respects
        as
        of such earlier date).

    

    


    (b)  Existing
      Debt.

     

    All
      amounts due or outstanding in respect of the existing credit agreement of the
      Company shall have been (or substantially simultaneously with the closing under
      the Senior Credit Facilities shall be) paid in full, all commitments in respect
      thereof terminated and all guarantees thereof and security therefor discharged
      and released. The Company will either (i) offer to purchase on the Closing
      Date
      (the “Debt
      Tender Offer”)
      all of
      the Company’s outstanding 10.75% senior subordinated notes due 2012 (the
“Existing
      Senior Subordinated Notes”)
      and,
      in connection therewith, amend substantially all of the covenants related
      thereto that can be amended with a majority vote of the holders thereof (the
      “Consent
      Solicitation”)
      on
      terms and conditions customary for such types of tender offers and related
      consent solicitations, or (ii) “discharge,” on the Closing Date the Existing
      Senior Subordinated Notes pursuant to the terms of the indenture governing
      such
      notes (the “Discharge”).
      After
      giving effect to the Transactions, the Company and its subsidiaries shall have
      outstanding no indebtedness or preferred stock other than (a) the loans and
      other extensions of credit under the Senior Credit Facilities, (b) the
      Senior Notes, (c) the Notes, and (d) other limited indebtedness and certain
      capitalized leases in existence as of the Closing Date).

    


    (c)  Compliance
      Certificates.

     

    (i)  Secretary’s
      Certificate.
      The
      Company and each Guarantor shall have delivered to each Purchaser a Secretary’s
      Certificate, dated as of the Closing Date, in the form of Exhibit
      3.1(c)(i) hereto,
      certifying, among other things, as to (i) such entity’s, certificate of
      incorporation (or, if a limited liability company, certificate of formation)
      and
      by-laws (or, if a limited liability company, limited liability company
      agreement), (ii) the incumbency and signatures of certain officers of such
      entity, and (iii) other corporate or limited liability company, as the case
      may
      be, proceedings (including board and/or stockholder or member resolutions)
      of
      such entity relating to the authorization, execution and delivery of the Notes,
      this Agreement and the other Transaction Documents to which such entity is
      a
      party.

     

    (ii)  Officer’s
      Certificate.
      The
      Company and each Guarantor shall have delivered to each Purchaser an Officer’s
      Certificate, dated as of the Closing Date, in the form of Exhibit
      3.1(c)(ii)
      hereto,
      certifying that the conditions specified in this Section 3.1
      have
      been fulfilled or waived.

     

    (iii)  Solvency
      Certification.
      The
      Company shall have delivered to each Purchaser a certificate from the chief
      financial officer or the Vice President and Treasurer of the Company, in the
      form of Exhibit
      3.1(c)(iii),
      certifying on behalf of the Company to the effect that the Company and its
      Subsidiaries, on a consolidated basis, are and immediately after giving effect
      to the Transactions will be, solvent.

     

    (d)  Opinion
      of Counsel.

     

    At
      the
      Closing the Subsequent Purchasers shall have received opinions from O’Melveny
      & Myers LLP and
      any
      local counsel reasonably required by the Subsequent Purchasers in form
      reasonably satisfactory to the Subsequent Purchasers.

    


    
      
        
        

      

      
        -12-

        
          

        

      

      
        
        

      

    

    (e)  Acquisition.

     

    The
      Acquisition shall have been consummated in accordance with the terms of the
      Acquisition Agreement, without giving effect to any amendments, modifications
      or
      waivers by Merger Sub thereto that are materially adverse to the interests
      of
      the Purchasers not approved by the Purchasers (which approval shall not be
      unreasonably withheld or delayed).

    


    (f)  Equity
      Contribution.

     

    The
      Equity Contribution shall have been made in at least the amount set forth in
      the
      Recitals.

    


    (g)  Credit
      Agreement and Senior Financing.

     

    The
      Senior Credit Facilities shall have become effective contemporaneously and
      the
      Issuer shall have borrowed on the Closing Date not more than $675 million in
      term loans under the Senior Credit Facilities and the Issuer shall have borrowed
      on the Closing Date not more than $750 million pursuant to the Senior Financing,
      in each case on terms and conditions consistent with those set forth in that
      certain bank commitment letter, substantially in the form previously furnished
      to the Purchasers or as otherwise agreed among the parties thereto.

    


    (h)  No
      Material Adverse Effect.

     

    There
      shall not have occurred since December 31, 2005 any change or condition that
      would constitute a “Company Material Adverse Effect” as defined in the
      Acquisition Agreement.

    


    (i)  Financial
      Information.

     

    The
      Purchasers shall have received a pro forma consolidated balance sheet and
      related pro forma consolidated statements of income of the Company as of and
      for
      the twelve-month period ending on the last day of the most recently completed
      four-fiscal quarter period ended at least 45 days before the Closing Date,
      prepared after giving effect to the Transactions as if the Transactions had
      occurred as of such date (in the case of such balance sheet) or at the beginning
      of such period (in the case of such other financial statements.

    


    (j)  Other
      Information.

     

    The
      Purchasers shall have received all documentation and other information required
      by regulatory authorities under applicable “know your customer” and anti-money
      laundering rules and regulations, including without limitation the Patriot
      Act.

    


    (k)  Proceedings
      and Documents.

     

    Each
      Purchaser and such Purchaser’s counsel shall have received all counterpart
      originals or certified or other copies of this Agreement and the other
      Transaction Documents.

    


    (l)  Closing
      Payment.

     

    At
      the
      Closing, the Initial Purchaser shall have received the Closing Payment required
      to be paid under Section
      2.2(ii),
      by
      netting such amount from the principal amount of the Notes being purchased
      by
      the Initial Purchaser, as provided in said Section.

    


    
      
        
        

      

      
        -13-

        
          

        

      

      
        
        

      

    

    (m)  Deliverables
      to the Initial Purchaser.

     

    At
      the
      Closing, the Initial Purchaser shall have received opinion or advice “10b-5”
letters with respect to the Final Memorandum from each of O’Melveny & Myers
      LLP, counsel for the Company and Cahill Gordon & Reindel LLP, counsel for
      the Initial Purchaser, in form and substance substantially similar to the
      opinion or advice letters delivered to the initial purchasers in connection
      with
      the Senior Financing.

     

    SECTION
      4.  

    REPRESENTATIONS
      AND WARRANTIES

    


    The
      Company represents and warrants to the Purchasers on and as of the date hereof
      (after giving pro
      forma
      effect
      to the consummation on the Closing Date of the transactions contemplated by
      this
      Agreement and the other Transaction Documents, the Acquisition and the issuance
      of the Notes to be issued on the date hereof and the application of the proceeds
      thereof) as follows (provided, however, that the representations set forth
      in
Section
      4.21
      shall be
      made solely to the Initial Purchaser and the Company shall have no liability
      to
      the Subsequent Purchasers as a result of any breach thereof):

    


    4.1.  Due
      Organization; Power and Authority.

    


    The
      Company and each of its 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 the
      Financing Documents and each other agreement or instrument contemplated thereby
      to which it is or will be a party and, in the case of the Company, to issue
      and
      sell the Notes as contemplated hereunder.

    


    4.2.  Capital
      Stock and Ownership of HoldCo.

    


    At
      the
      Closing, after giving effect to the consummation of the Transactions, (i) the
      authorized number of shares of Capital Stock of HoldCo will consist only of
      200,000,000 shares
      of
      Common Stock, par value $0.01 per share, of
      which
      4,835,191 shares
      of
      Common Stock have been issued and are outstanding and
      (ii)
      no shares of any class of the Capital Stock of HoldCo will be held in HoldCo’s
      treasury or by any of its Subsidiaries. As of the Closing Date, except for
      options to acquire 488,184 shares
      of
      Common Stock issued under HoldCo’s employee stock option plans or pursuant to
      the Stockholders Agreement, there are no outstanding securities of HoldCo or
      any
      of its Subsidiaries that will be convertible into or exchangeable for shares
      of
      Capital Stock of HoldCo or any of its Subsidiaries, and no outstanding options,
      warrants, calls, subscriptions, convertible securities, or other rights,
      agreements or commitments which will obligate HoldCo or any of its Subsidiaries
      to issue, transfer or sell any shares of Capital Stock of HoldCo or any of
      its
      Subsidiaries. Schedule 4.2 hereto sets forth the ownership of all outstanding
      shares of Common Stock and options as of the Closing Date. Except as disclosed
      on Schedule 4.2 or as set forth in the Stockholders Agreement, as of the Closing
      Date, there are no outstanding obligations of HoldCo or any of its Subsidiaries
      to repurchase, redeem or otherwise acquire any shares of Capital Stock of HoldCo
      or any of its Subsidiaries and there are no voting trusts or other agreements
      or
      understandings to which HoldCo or any of its Subsidiaries is a party with
      respect to the holding, voting or disposing of Capital Stock of HoldCo or any
      of
      its Subsidiaries. As of the Closing 

     

    
      
        
        

      

      
        -14-

        
          

        

      

      
        
        
Date,
        neither HoldCo nor any of its Subsidiaries has any outstanding bonds,
        debentures, notes or other obligations or other securities that entitle the
        holders thereof to vote with the shareholders of HoldCo or any of its
        Subsidiaries on any matter or which are convertible into or exercisable for
        securities having such a right to vote. As of the Closing, and after giving
        effect to the sale of the Purchaser Stock to the Purchasers, all of the
        outstanding shares of capital stock of HoldCo will have been duly and validly
        authorized and issued and will be fully paid and non-assessable, and all
        shares
        of capital stock of HoldCo and all options to acquire such shares will have
        been
        offered, issued, sold and delivered in compliance with applicable federal
        and
        state securities laws.

    

    


    4.3.  Capital
      Stock and Ownership of Company and Subsidiaries.

    


    (a) Schedule
      4.3 sets forth as of the Closing Date the name and jurisdiction of
      incorporation, formation or organization of each direct and indirect subsidiary
      of HoldCo, as to each such subsidiary, the percentage of each class of Equity
      Interests owned by HoldCo or by any such subsidiary.

    


    (b) As
      of the
      Closing Date, there are no outstanding subscriptions, options, warrants, calls,
      rights or other agreements or commitments (other than stock options granted
      to
      employees or directors and directors’ qualifying shares) of any nature relating
      to any Equity Interests of the Company or any of its Subsidiaries.

    


    4.4.  Due
      Authorization, Execution and Delivery.

    


    (a)  Agreement.
      This
      Agreement has been duly authorized, executed and delivered by the Company and,
      when duly executed and delivered by the Purchasers and GSMP VCOC in accordance
      with its terms, will constitute valid and legally binding obligations of the
      Company, enforceable against the Company in accordance with its terms, subject
      to the Enforceability Exceptions.

    


    (b)  Indenture.
      The
      Indenture has been duly authorized, executed and delivered by, the Company
      and,
      immediately following the Acquisition, each Guarantor and, when duly executed
      and delivered by the Trustee in accordance with its terms, will constitute
      valid
      and legally binding obligations of the Company and each Guarantor enforceable
      against the Company and each Guarantor in accordance with its terms, subject
      to
      the Enforceability Exceptions. 

    


    (c)  Notes.
      The
      Notes are in the form contemplated by the Indenture, have been duly authorized
      for issuance and sale pursuant to this Agreement and the Indenture and, when
      issued and delivered by the Company on the Closing Date as provided herein
      and
      therein and authenticated by the Trustee as provided in the Indenture, will
      have
      been duly executed, issued and delivered by the Company, and upon payment and
      delivery in accordance with this Agreement will constitute valid and legally
      binding obligations of the Company, enforceable against it in accordance with
      their terms subject to the Enforceability Exceptions.

    


    (d)  Exchange
      and Registration Rights Agreement.
      The
      Exchange and Registration Rights Agreement has been duly authorized, executed
      and delivered by the Company and, when duly executed and delivered by the
      Purchasers parties thereto, will constitute valid and legally binding
      obligations of the Company, enforceable against the Company in accordance with
      its terms, subject to the Enforceability Exceptions.

    


    (e)  Equity
      Financing Documents.
      Each of
      the Purchaser Equity Subscription Agreements and the Stockholders Agreement
      has
      been duly authorized, executed and delivered by HoldCo, and, when duly executed
      and delivered by the Purchasers party thereto, will constitute valid and legally
      binding

     

    
      
        
        

      

      
        -15-

        
          

        

      

      
        
        
 obligations
        of HoldCo, enforceable against HoldCo in accordance with its terms, subject
        to
        the Enforceability Exceptions.

    

    


    (f)  Other
      Transaction Documents.
      Each
      Transaction Document to which the Company or any of its Subsidiaries is a
      party has been duly authorized, executed and delivered by such party a
      party thereto and constitutes a valid and legally binding obligation of such
      party, enforceable against such party in accordance with its terms, subject
      to
      the Enforceability Exceptions.

    


    4.5.  Non-Contravention;
      Authorizations and Approvals.

    


    (a) The
      execution, delivery and performance by the Company and each of the Guarantors
      of
      each of the Financing Documents to which it is a party, and the issue and sale
      of Notes hereunder and the transactions forming a part of the Transactions
      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 the Company or any such Guarantor, (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 the Company or any such Guarantor 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
      4.5(a),
      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
      the
      Company or any such Guarantor, other than the Liens created by the Transaction
      Documents and Permitted Liens.

    


    (b) No
      action, consent or approval of, registration or filing with or any other action
      by any Governmental Authority or third party is or will be required in
      connection with the Transactions or the exercise by a Purchaser or GSMP VCOC
      of
      its rights under the Financing Documents, except for (a) 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 (b) filings or other actions
      listed on Schedule 4.5.

    


    4.6.  Financial
      Statements and Projections.

    


    (a) The
      unaudited pro forma consolidated balance sheet and related consolidated
      statements of income and cash flows of the Company, together with its
      consolidated Subsidiaries (including the notes thereto) (the “Pro Forma
      Financial Statements”) and pro forma adjusted EBITDA (the “Pro Forma Adjusted
      EBITDA”), for twelve months ended July 1, 2006, copies of which have heretofore
      been furnished to a Purchaser (via inclusion in 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 Company 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 Company and its
      consolidated Subsidiaries as at July 1, 2006, assuming that the Transactions
      had
      actually occurred at such date, and the results of operations of the Company
      and
      its consolidated subsidiaries for the twelve-month period ended July 1, 2006,
      assuming that the Transactions had actually occurred on the first day of such
      twelve-month period.

    


    
      
        
        

      

      
        -16-

        
          

        

      

      
        
        

      

    

    (b) The
      audited combined balance sheets of the Company as at the end of the 2003, 2004
      and 2005 fiscal years (which fiscal years ended, in each case, on the Saturday
      nearest the end of such calendar year), 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 Ernst & Young, copies
      of which have heretofore been furnished to the Purchasers, present fairly in
      all
      material respects the combined financial position of the Company as at such
      date
      and the combined results of operations, stockholders’ equity, and cash flows of
      the Company for the years then ended.

    


    (c) All
      written information (other than the Projections, estimates and information
      of a
      general economic nature or general industry nature) (the “Information”)
      concerning the Company or any of its 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 a Purchaser 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 a
      Purchaser 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.

    


    (d) The
      Projections and estimates and information of a general economic nature prepared
      by or on behalf of the Company or any of its representatives and that have
      been
      made available to a Purchaser in connection with the Transactions or the other
      transactions contemplated hereby (i) have been prepared in good faith based
      upon
      assumptions believed by the Company 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 a Purchaser
      and
      as of the Closing Date, and (ii) as of the Closing Date, have not been modified
      in any material respect by the Company.

    


    4.7.  No
      Material Adverse Effect.

    


    Since
      December 31, 2005, there has been no event, development or circumstance that
      has
      or would reasonably be expected to have a Material Adverse Effect.

    


    4.8.  No
      Actions or Proceedings.

    


    There
      are
      no actions, suits or proceedings at law or in equity or, to the knowledge of
      the
      Company, investigations by or on behalf of any Governmental Authority or in
      arbitration now pending, or, to the knowledge of the Company, threatened in
      writing against or affecting the Company or any of its 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.

    


    4.9.  Title
      to Properties.

    


    (a)
      Each
      the Company and any of its Subsidiaries has valid fee simple title to, or valid
      leasehold interests in, or easements or other limited property interests in,
      all
      its Real 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.

    


    
      
        
        

      

      
        -17-

        
          

        

      

      
        
        

      

    

    (b) Each
      of
      the Company and any of its 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
      4.9,
      the
      Company and any of its 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.

    


    4.10.  Intellectual
      Property Rights.

    


    Except
      as
      would not reasonably be expected to have a Material Adverse Effect and as set
      forth in Schedule 4.10, (a) the Company and each of its Subsidiaries owns,
      or
      possesses the right to use, all of the patents, patent rights, trademarks,
      service marks, trade names, copyrights, mask works, domain names, 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 Company, neither the Company nor its
      Subsidiaries nor any 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 Company or
      any
      of its Subsidiaries, is interfering with, infringing upon, misappropriating
      or
      otherwise violating any intellectual property rights of any person, and (c)
      no
      claim or litigation regarding any of the foregoing is pending or, to the best
      knowledge of the Company, threatened.

    


    4.11.  Taxes.

    


    Except
      as
      set forth on Schedule 4.11: 

    


    (a) Except
      as
      would not, individually or in the aggregate, reasonably be expected to have
      a
      Material Adverse Effect, (i) each of the Company and any of its 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
      the Company and any of its 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 Closing Date (except Taxes
      or assessments that are being contested in good faith by appropriate proceedings
      and for which the Company 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

    


    (c) Other
      than as would not be, individually or in the aggregate, reasonably expected
      to
      have a Material Adverse Effect: as of the Closing Date, with respect to each
      the
      Company and its Subsidiaries, (i) there are no claims being asserted in writing
      with respect to any Taxes, (ii) no presently effective waivers or extensions
      of
      statutes of limitation with respect to Taxes have been given or requested and
      (iii) no Tax returns are being examined by, and no written notification of
      intention to examine has been received from, the Internal Revenue Service or
      any
      other Taxing authority.

    


    4.12.  Employee
      Benefit Plans.

    


    
      
        
        

      

      
        -18-

        
          

        

      

      
        
        

      

    

    (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 Company any of its
      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 $20.0 million; (iv) no ERISA Event has occurred or is
      reasonably expected to occur; (v) none of the Company and any of its
      Subsidiaries has engaged in a “prohibited transaction” (as defined in Section
      406 of ERISA and Code Section 4975) in connection with any employee pension
      benefit plan (as defined in Section 3(2) of ERISA) that would subject the
      Company or any of its Subsidiaries to tax; and (vi) none of the Company, any
      of
      its 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
      the Company and any of its 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.

    


    (c) Except
      as
      would not reasonably be expected to result in a Material Adverse Effect, there
      are no pending, or to the knowledge of the Company, threatened claims (other
      than claims for benefits in the normal course), sanctions, actions or lawsuits,
      asserted or instituted against any Plan or any person as fiduciary or sponsor
      of
      any Plan that could result in liability to the Company, any of its Subsidiaries
      or the ERISA Affiliates.

    


    (d) Within
      the last five years, no Plan of the Company, any of its Subsidiaries or the
      ERISA Affiliates has been terminated, whether or not in a “standard termination”
as that term is used in Section 404(b)(1) of ERISA, that would reasonably be
      expected to result in liability to the Company, any of its Subsidiaries or
      the
      ERISA Affiliates in excess of $20.0 million, nor has any Plan of the Company,
      any of its Subsidiaries or the ERISA Affiliates (determined at any time within
      the past five years) with Unfunded Pension Liabilities been transferred outside
      of the “controlled group” (with the meaning of Section 4001(a)(14) of ERISA of
      the Company, any of its Subsidiaries or the ERISA Affiliates that has or would
      reasonably be expected to result in a Material Adverse Effect.

    


    4.13.  Private
      Offering; No Integration or General Solicitation; Rule 144A
      Eligibility.

    


    (a)  Subject
      to compliance by the Purchasers with the representations and warranties set
      forth in Section
      5
      and with
      the procedures set forth in Section
      8,
      it is
      not necessary in connection with the offer, issue, sale and delivery of the
      Notes to the Purchasers on the Closing Date, in the manner contemplated by
      this
      Agreement and the other Financing Documents to register the Notes or the
      Purchaser Stock under the Securities Act or to qualify the Indenture under
      the
      TIA.

    


    (b)  None
      of
      the Company or its Subsidiaries and any person acting on any of their behalf
      (other than the Purchasers and their Affiliates, as to whom the Company makes
      no
      any representation or warranty) has, directly or indirectly, offered, issued,
      sold or solicited any offer to buy any security of a type which would be
      integrated with the sale of the Notes in any manner that would require the
      Notes
      to be registered under the Securities Act. None of the Company or its
      Subsidiaries and any person acting on any of their behalf (other than the
      Purchasers and their Affiliates, as to whom the Company makes no any


     

    
      
        
        

      

      
        -19-

        
          

        

      

      
        
        
representation
        or warranty) has engaged in any form of general solicitation or general
        advertising within the meaning of Rule 502 in connection with the offering
        of the Notes.

    

    


    (c)  Subject
      to compliance by the Purchasers with the representations and warranties set
      forth in Section
      5
      and with
      the procedures set forth in Section
      8,
      the
      Notes are eligible for resale pursuant to Rule 144A and will not, at the
      Closing Date, be of the same class as securities listed on a national securities
      exchange registered under Section 6 of the Exchange Act or quoted on a U.S.
      automated inter-dealer quotation system.

    


    4.14.  Status
      under Certain Statutes.

    


    The
      Company or any of its Subsidiaries is not an “investment company” as defined in,
      or subject to regulation under, the Investment Company Act of 1940, as
      amended.

    


    4.15.  Insurance.

    


    Schedule
      4.15
      sets
      forth a true, complete and correct description of all material insurance
      maintained by or on behalf of the Company or any of its Subsidiaries as of
      the
      Closing Date. As of such date, such insurance is in full force and
      effect.

    


    4.16.  Use
      of
      Proceeds; Margin Regulations.

    


    (a) The
      Company will use the proceeds of the Notes (a) to fund a portion of the merger
      consideration for the Acquisition, (b) to refinance certain existing
      indebtedness of the Company in connection with the Acquisition, and (c) to
      pay
      related transaction fees and expenses.

    


    (b) The
      Company or any of its Subsidiaries is not engaged principally, or as one of
      its
      important activities, in the business of extending credit for the purpose of
      purchasing or carrying Margin Stock.

    


    (c) No
      part
      of the proceeds of any Note 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.

    


    4.17.  Compliance
      with Laws; Permits; Environmental Matters.

    


    (a) None
      of
      the Company, any of its 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
      4.17(b)),
      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.

    


    (b) Except
      as
      set forth in Schedule
      4.17
      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 Company
      or
      any of its Subsidiaries, and there are no judicial, administrative or other
      actions, suits or proceedings pending or, to the Company’s knowledge, threatened
      which allege a violation of or liability under any Environmental 

     

    
      
        
        

      

      
        -20-

        
          

        

      

      
        
        
Laws,
        in
        each case relating to the Company or any of its Subsidiaries, (ii) each of
        the
        Company and its 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
        Company’s knowledge, no Hazardous Material is located at, on or under any
        property currently owned, operated or leased by the Company or any of its
        Subsidiaries that would reasonably be expected to give rise to any cost,
        liability or obligation of the Company or any of its Subsidiaries under any
        Environmental Laws, and no Hazardous Material has been generated, owned,
        treated, stored, handled or controlled by the Company or any of its 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 Company
        or
        any of its Subsidiaries under any Environmental Laws and (iv) there are no
        agreements in which the Company or any of its Subsidiaries has 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 Purchasers prior
        to
        the date hereof.

    

    


    4.18.  Solvency.

    


    (a) Immediately
      after giving effect to the Transactions on the Closing Date, (i) the fair value
      of the assets of the Company (individually) and the Company and its Subsidiaries
      on a consolidated basis, at a fair valuation, will exceed the debts and
      liabilities, direct, subordinated, unmatured, unliquidated, contingent or
      otherwise, of the Company (individually) and the Company and its Subsidiaries
      on
      a consolidated basis, respectively; (ii) the present fair saleable value of
      the
      property of the Company (individually) and 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 the Company and its
      Subsidiaries on a consolidated basis, respectively, on their debts and other
      liabilities, direct, subordinated, unmatured, unliquidated, contingent or
      otherwise, as such debts and other liabilities become absolute and matured;
      (iii) the Company (individually) and 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 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.

    


    (b) On
      the
      Closing Date, the Company does not intend to, and the Company does not believe
      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.

    


    4.19.  Labor
      and Employment 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 the Company or any of the Subsidiaries; (b) the
      hours worked and payments made to employees of the Company or any of its
      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
      the Company or any of its Subsidiaries or for which any claim may be made
      against the Company or any of its 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 the Company or any of its Subsidiaries to the extent
      required by GAAP. Except as, individually or in the aggregate, would not
      reasonably be expected to have a Material 

     

    
      
        
        

      

      
        -21-

        
          

        

      

      
        
        
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 the Company or any of its
        Subsidiaries (or any predecessor) is a party or by which the Company or any
        of
        its Subsidiaries (or any predecessor) is bound.

    

    


    4.20.  Brokerage
      Fees.

    


    Except
      as
      set forth on Schedule
      4.20,
      none of
      the Company and their Subsidiaries has paid, or is obligated to pay, to any
      Person any brokerage or finder’s fees in connection with the transactions
      contemplated hereby or by any other Transaction Document.

    


    4.21.  Final
      Memorandum.

    


    The
      Final
      Memorandum at the Closing Date does not contain any untrue statement of a
      material fact or omit to state a material fact necessary in order to make the
      statements therein, in the light of the circumstances under which they were
      made, not misleading; provided, however, that the Company makes no
      representation or warranty as to the information contained in or omitted from
      the Final Memorandum in reliance upon and in conformity with information
      furnished in writing to the Company by or on behalf of the Initial Purchaser
      specifically for inclusion therein.

    


    


    SECTION
      5.  

    REPRESENTATIONS,
      WARRANTIES AND COVENANTS OF THE SUBSEQUENT PURCHASERS

    


    Each
      Subsequent Purchaser, severally and not jointly, represents and warrants to
      the
      Company as of the date hereof as follows:

    


    5.1.  Purchase
      for Investment.

    


    (a)  Such
      Subsequent Purchaser is acquiring the Notes for its own account, for investment
      purposes only and not with a view to any distribution thereof within the meaning
      of the Securities Act.

    


    (b)  Such
      Subsequent Purchaser has received such information as it deems necessary in
      order to make an investment decision with respect to the Notes and has had
      the
      opportunity to ask questions of and receive answers from the Company and its
      Subsidiaries and their respective officers and directors and to obtain such
      additional information which the Company or its Subsidiaries possess or could
      acquire without unreasonable effort or expense as such Purchaser deems necessary
      to verify the accuracy of the information furnished to such Purchaser and has
      asked such questions, received such answers and obtained such information as
      it
      deems necessary to verify the accuracy of the information furnished to such
      Purchaser.

    


    (c)  Such
      Subsequent Purchaser is an Accredited Investor.

    


    (d)  Such
      Subsequent Purchaser understands that the Notes have not been and, except as
      provided in the Exchange and Registration Rights Agreement, will not be
      registered under the Securities Act or any state or other securities law, that
      the Notes are being issued by the Company in transactions exempt from the
      registration requirements of the Securities Act and that the Notes may be resold
      only if registered pursuant to the provisions of the Securities Act or if an
      exemption from registration under the Securities Act is available.

    


    
      
        
        

      

      
        -22-

        
          

        

      

      
        
        

      

    

    (e)  Such
      Purchaser further understands that the exemption from registration afforded
      by
      Rule 144 depends on the satisfaction of various conditions, and that, if
      applicable, Rule 144 may afford the basis for sales only in limited
      amounts.

    


    (f)  Except
      as
      otherwise disclosed, such Subsequent Purchaser did not employ any broker or
      finder in connection with the transactions contemplated in this Agreement and
      no
      fees or commissions are payable to the Subsequent Purchasers except as otherwise
      provided for in this Agreement.

    


    (g)  The
      source of funds to be used by such Subsequent Purchaser to pay the portion
      of
      the Purchase Price paid by such Subsequent Purchaser does not include assets
      of
      any employee benefit plan (other than a plan exempt from the coverage of ERISA)
      or plan or any other entity the assets of which consist of “plan assets” of
      employee benefit plans or plans as defined in Department of Labor regulation
      Section 2510.3-101. As used in this Section 5.1(g),
      the
      term “employee benefit plan” shall have the meaning assigned to such term in
      Section 3 of ERISA, and the term “plan” shall have the meaning assigned
      thereto in Section 4975(e)(1) of the Code.

    


    5.2.  Due
      Organization; Corporate Power; Authorization; Enforceability.

    


    It
      is
      duly organized, validly existing and in good standing under the laws of its
      jurisdiction of organization. The execution, delivery and performance of this
      Agreement and the Exchange and Registration Rights Agreement are within its
      corporate, limited liability company or limited partnership, as the case may
      be,
      power and authority and have been duly authorized by all necessary action of
      such Subsequent Purchaser, do not conflict with or result in a breach of or
      violate any of such Subsequent Purchaser’s governing documents or any contract
      to which such Subsequent Purchaser is a party or by which its assets are bound
      or any Applicable Laws and constitute legal, valid and binding agreements of
      such Subsequent Purchaser enforceable against it in accordance with their
      respective terms, subject to the Enforceability Exceptions.

    


    5.3.  No
      Actions or Proceedings.

    


    There
      are
      no legal or governmental actions, suits or proceedings pending or, to any
      Subsequent Purchaser’s knowledge, threatened against or affecting such
      Subsequent Purchaser, or any of its properties or assets which, if adversely
      determined, in the aggregate, would reasonably be expected to materially and
      adversely affect the ability of such Subsequent Purchaser to consummate any
      of
      the transactions contemplated by this Agreement or the Exchange and Registration
      Rights Agreement.

    


    5.4.  Final
      Memorandum

    


    The
      Subsequent Purchasers agree and acknowledge that (a) they received the Final
      Memorandum in connection with their purchase of the Notes only by reason of
      their purchase of the Notes from the Initial Purchaser and (b) they did not
      rely
      on the Final Memorandum in making their investment decision, and that the
      Company will have no liability under this Agreement or otherwise to the
      Subsequent Purchasers on account of any statements therein; provided that the
      foregoing shall not affect the rights and obligations of the parties under
      this
      Agreement or otherwise as if the Final Memorandum had not been delivered to
      the
      Initial Purchaser.

    


    5.5.  Investment
      Decision

    


    The
      Subsequent Purchasers agree and acknowledge that (i) they did not rely on any
      investigation that the Initial Purchaser or any person acting on its behalf
      may
      have conducted with respect to the Notes

     

    
      
        
        

      

      
        -23-

        
          

        

      

      
        
        
or
        the
        Company, and (ii) they made their own investment decision regarding the Notes
        based on their own investigation of the Company and the
        Notes.

    

     

    
       

    

    SECTION
      5A.

    OFFERING
      BY INITIAL PURCHASER

    


    5A.1. Offering
      by Initial Purchaser.

    


    (a) The
      Initial Purchaser acknowledges that the Notes have not been and will not be
      registered under the Securities Act and may not be offered or sold within the
      United States or to, or for the account or benefit of, U.S. persons, except
      pursuant to an exemption from, or in a transaction not subject to, the
      registration requirements of the Securities Act.

    


    (b) The
      Initial Purchaser represents and warrants to and agrees with the Company
      that:

    


    (i)  it
      has
      not offered or sold, and will not offer or sell, any Notes within the United
      States or to, or for the account or benefit of, U.S. persons (x) as part of
      their distribution at any time or (y) otherwise until 40 days after the later
      of
      the commencement of the offering and the date of closing of the offering except
      to those persons whom it reasonably believes to be “qualified institutional
      buyers” (as defined in Rule 144A under the Securities Act) or if any such person
      is buying for one or more institutional accounts for which such person is acting
      as a fiduciary or agent, only when such person has represented to it that each
      such account is a qualified institutional buyer to whom notice has been given
      that such sale or delivery is being made in reliance on Rule 144A and, in each
      case, in transactions in accordance with Rule 144A;

     

    (ii)  neither
      it nor any person acting on its behalf has made or will make offers or sales
      of
      the Notes in the United States by means of any form of general solicitation
      or
      general advertising (within the meaning of Regulation D) in the United States
      or
      in any manner involving a public offering within the meaning of Section 4(2)
      of
      the Act;

     

    (iii)  in
      connection with each sale pursuant to Section
      5A(b)(i),
      it has
      taken or will take reasonable steps to ensure that the purchaser of such Notes
      is aware that such sale is being made in reliance on Rule 144A;

     

    (iv)  it
      is an
      institutional “accredited investor” (as defined in 501(a) of Regulation
      D).

     

    (c) The
      Initial Purchaser represents and warrants that, (i) on and prior to the Closing
      Date, it has made offers and sales of the Notes, and has delivered the Final
      Memorandum, only to the Subsequent Purchasers and (ii) it will not deliver
      the
      Final Memorandum in connection with any subsequent offers or sales of the
      Notes.

    


    


    SECTION
      6.  

    COVENANTS
      TO PROVIDE INFORMATION

    


    6.1.  Reports
      to Subsequent Purchasers and GSMP VCOC.

    


    The
      Company covenants and agrees (subject to the provisions of Section
      10.14)
      with
      each Subsequent Purchaser, any Affiliate thereof and GSMP VCOC, that so long
      as
      the Subsequent Purchasers and their Affiliates constitute the Required Holders,
      the
      Company and its Subsidiaries shall
      deliver (i) to 

     

    
      
        
        

      

      
        -24-

        
          

        

      

      
        
        
each
        of
        the Subsequent Purchasers, any Affiliate thereof that is a Holder and the
        GSMP
        VCOC as
        soon
        as available, but in any event within 30 days after the end of each of the
        first
        two months of each fiscal quarter, consolidated balance sheets of the Company
        and its consolidated Subsidiaries as at the end of such month and related
        consolidated company-prepared statements of income and shareholders’ equity and
        of cash flows for the Company and its consolidated Subsidiaries for such
        monthly
        period and for the portion of the fiscal year ending with such month, in
        each
        case setting forth in comparative form consolidated figures for the
        corresponding period or periods of the preceding fiscal year and (ii) to
        GSMP
        VCOC copies of all financial statements, reports and certificates that are
        provided to Holders under the Indenture concurrently with the delivery thereof
        under the Indenture.

    

    


    


    SECTION
      7.  

    OTHER
      AFFIRMATIVE COVENANTS

    


    The
      Company further covenants and agrees (subject to the provisions of Section
      10.14)
      with
      the Subsequent Purchasers, until the principal amount of (and premium, if any,
      on) all the Notes, and all interest, and other obligations hereunder in respect
      thereof (other than indemnification obligations that have not become due and
      payable), shall have been paid in full, as follows:

    


    7.1.  Board
      Representation.

    


    (a)  So
      long
      as the Subsequent Purchasers and their Affiliates constitute the Required
      Holders, GSMP VCOC shall have the right to designate an employee of The Goldman
      Sachs Group, Inc. or its Affiliates as a non-voting observer (a “Non-Voting
      Observer”)
      to the
      Board of Directors of each of the Company and HoldCo (each, an “Entity”).
      Neither Entity shall establish or employ committees of the Board of Directors
      for the purpose of circumventing the rights of the GSMP VCOC to have a
      Non-Voting Observer on the Board of Directors. Each Non-Voting Observer
      shall be entitled to reimbursement from each Entity for his or her reasonable
      travel or other out-of-pocket expenses related to the performance of their
      respective duties.

    


    (b)  So
      long
      as GSMP VCOC shall be entitled to exercise its rights pursuant to this
Section 7.1,
      each
      Entity shall hold regular meetings of its Board of Directors periodically at
      such times as its Board of Directors may in good faith determine. Within a
      reasonable time after each such meeting, either telephonically or in person, of
      a Board of Directors of an Entity, such Entity shall cause minutes of such
      meeting to be delivered to the Non-Voting Observer.

    


    (c)  The
      Non-Voting Observer shall be entitled to be present at all meetings of the
      Board
      of Directors of each Entity and shall be notified of any such meeting by
      reasonable prior notice, including such meeting’s time and place, in the same
      manner as directors of such Entity and shall receive monthly financial
      statements of the type described in Section
      6.1(a)
      above
      and copies of all written materials distributed to directors of such Entity
      for
      purposes of such Board of Directors meetings at the same time as directors
      of
      such Entity and shall be entitled to participate in discussions and consult
      with, and make proposals and furnish advice to, such Board of Directors without
      voting; provided, however,
      that
      such Non-Voting Observer shall not have voting rights with respect to actions
      taken or elected not to be taken by the Board of Directors and shall be subject
      to all rules governing such Board of Directors and committee, it being
      understood that no Board of Directors of any Entity shall be under any
      obligation to take any action with respect to any proposals made or advice
      furnished by the Non-Voting Observer, and nothing herein shall prevent the
      Board
      of Directors of any Entity from acting by written instrument to the extent
      permitted by Applicable Law. The Non-Voting Observer shall have a duty of
      confidentiality to such Entity, including a duty not to disclose and/or use
      confidential information, comparable to such duties of a director of such
      Entity.

    


    
      
        
        

      

      
        -25-

        
          

        

      

      
        
        

      

    

    (d)  If
      an
      issue is to be discussed or otherwise arises at a meeting of the Board of
      Directors which, in the reasonable judgment of the Board of Directors, cannot
      be
      discussed in the presence of the Non-Voting Observer in order to avoid a
      conflict of interest on the part of the Non-Voting Observer or to preserve
      an
      attorney-client or accountant-client or any other available privilege, then
      such
      issue may be discussed without the Non-Voting Observer being present and may
      be
      deleted from any materials being distributed in connection with any meeting
      at
      which such issues are to be discussed, so long as the Non-Voting Observer is
      given notice of the occurrence of such meeting and the deletion of such
      materials.

    


    7.2.  Access.

    


    (a)  The
      Company will, and will cause its Subsidiaries to, upon reasonable notice at
      reasonable times from time to time and without causing undue disruption, (i)
      provide GSMP VCOC and its authorized representatives reasonable opportunities
      to
      routinely consult with and advise the management of the Company and its
      Subsidiaries, on all matters relating to the operation of the Company and each
      Subsidiary (ii) provide GSMP VCOC and its authorized representatives, subject
      to
      compliance with Applicable Laws, confidentiality obligations to third parties
      and attorney-client privilege, reasonable access during normal business hours
      to
      all books and records, facilities and properties of the Company and its
      Subsidiaries (including copies of such documents as the Company reasonably
      approves), and (ii) permit GSMP VCOC and its authorized representatives to
      make
      such inspections thereof as may be reasonably requested and discuss the affairs,
      finances and accounts with the officers thereof.

    7.3.  Rule
      144A.

    


    For
      so
      long as any of the Notes remain outstanding and constitute “restricted
      securities” within the meaning of the Securities Act, the Company will make
      available at its expense, upon request, to any holder of such Notes, and any
      prospective purchasers thereof, the information specified in Rule 144A(d)(4)
      under the Securities Act, unless the Company is then subject to Section 13
      or
      15(d) of the Exchange Act. 

    


    7.4.  Corporate
      Existence; Businesses and Properties.

    


    (a) The
      Company will 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.

    


    (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, (ii) comply in all material respects with all
      applicable laws, rules, regulations (including any zoning, building ordinance,
      code or approval or any building permits or any restrictions of record) and
      judgments, writs, injunctions, decrees and orders of any Governmental Authority,
      whether now in effect or hereafter enacted, and (iii) 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).

    


    7.5.  Taxes
      and Other Claims.

    


    
      
        
        

      

      
        -26-

        
          

        

      

      
        
        

      

    

    The
      Company will 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 the Company or its
      affected Subsidiary, as applicable, shall have set aside on its books reserves
      in accordance with GAAP with respect thereto.

    


    7.6.  Books
      and Records.

    


    The
      Company will maintain all financial records in accordance with
      GAAP.

    


    7.7.  Insurance.

    


    The
      Company will 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 Purchasers to be listed
      as a co loss payee on property and casualty policies and as an additional
      insured on liability policies.

    


    SECTION
      8.  

    PROVISIONS
      RELATING TO RESALES OF NOTES

    


    8.1.  Private
      Offerings.

    


    Following
      the consummation of the Resale, and prior to the effectiveness of any
      registration statement of the Notes pursuant to the Exchange and Registration
      Rights Agreement, the Subsequent Purchasers confirm and agree that they may
      resell, pledge or otherwise transfer the Notes only pursuant to Private
      Offerings or pursuant to the provisions of Rule 144(k) adopted under the
      Securities Act, and only in accordance with the following:

    


    (a)  Offers
      and Sales only to Institutional Accredited Investors or Qualified Institutional
      Buyers.
      Offers
      and sales of the Notes will be made only by the Subsequent Purchasers or
      Affiliates thereof who are qualified to do so in the jurisdictions in which
      such
      offers or sales are made. Each such offer or sale shall be made in accordance
      with the Indenture only (i) to persons who are Qualified Institutional
      Buyers, (ii) to institutional Accredited Investors that the offeror or seller
      reasonably believes to be and, with respect to sales and deliveries, are
      Accredited Investors who are not Qualified Institutional Buyers (“Institutional
      Accredited Investors”)
      who
      make the representations and warranties set forth in Section
      5
      hereof
      or (iii) to non-U.S. persons outside the United States (as such terms are
      defined in Regulation S) to whom offers and sales of the Notes may be made
      in
      reliance upon Regulation S and in accordance with applicable foreign
      securities laws and subject to delivery of a legal opinion reasonably acceptable
      to the Company to the effect that such sale can be made without registration
      under the Securities Act.

    


    (b)  No
      General Solicitation.
      The
      Notes will be offered by approaching prospective subsequent Purchasers on an
      individual basis. No general solicitation or general advertising (within the
      meaning of Rule 502) and no directed selling efforts (as defined in
      Regulation S) will be made in connection with the offering of the
      Notes.

    


    
      
        
        

      

      
        -27-

        
          

        

      

      
        
        

      

    

    (c)  Purchases
      by Fiduciaries.
      In the
      case of a Subsequent Purchaser acting as a fiduciary for one or more third
      parties, in connection with an offer and sale to such purchaser pursuant to
      this
Section 8.1,
      such
      fiduciary and such third parties shall meet the requirements of Section
      8.1(a)
      hereof.

    


    (d)  Restrictive
      Legend.
      Upon
      original issuance by the Company, and until such time as specified in the
      Indenture, the Notes shall bear such legends as are required under the
      Indenture.

    


    8.2.  Procedures
      and Management Cooperation in Private Offerings.

    


    (a)  The
      Company and the Subsequent Purchasers agree that, at the request of the Required
      Holders, the Company will cooperate with the Required Holders and use
      commercially reasonable efforts to cause the Notes, if then eligible for the
      following treatment, to (i) be registered in the name of Cede & Co., as
      nominee of The Depository Trust Company (“DTC”)
      and
      settle through the book-entry system of the DTC and (ii) be eligible for the
      National Association of Securities Dealers, Inc. PORTAL market.

    


    (b)  If
      requested by the Required Holders, the Company and its Subsidiaries will assist
      the Subsequent Purchasers in completing any sale process undertaken in
      connection with the private resale of the Notes or any portion thereof
      (including any such re-sales of the Notes pursuant to any Private Offering),
      to
      any number of prospective Holders, subject to Section
      10.14
      hereof,
      by (i) providing direct contact between senior management and advisors and
      prospective purchasers; (ii) responding to inquiries of, and providing answers
      to, prospective purchasers; (iii) providing assistance in completion of the
      prospective purchasers’ due diligence review; and (iv) hosting one or more
      meetings of prospective purchasers; provided
      that
      such assistance shall not be required more than two times per year or more
      than
      five times during the term of the Notes (and it being understood that such
      assistance will not include a preparation of an offering memorandum or a similar
      document and that the Subsequent Purchasers may not use the Final Memorandum
      and
      that such assistance will otherwise be limited to assistance set forth under
      items (i) through (iv) above).

    


    8.3.  No
      Integration.

    


    None
      of
      Holdings, the Company and their Affiliates shall make any offer or sale of
      securities of any class that is or will be integrated with the sale of the
      Notes
      by the Company to the Purchasers in a manner that would require registration
      of
      the Notes under the Securities Act.

    


    


    SECTION
      9.  

    EXPENSES,
      INDEMNIFICATION AND CONTRIBUTION

    


    9.1.  Expenses
      of Subsequent Purchasers.

    


    The
      Company will reimburse the Subsequent Purchasers for all reasonable and
      documented expenses, including consultant, advisor and counsel fees and
      disbursements, incurred by the Subsequent Purchasers in connection with (a)
      any
      amendment, waiver or consent under or in respect of this Agreement or the other
      Financing Documents (whether or not such amendment, waiver or consent becomes
      effective) and (b) enforcing, defending or declaring (or determining whether
      or
      how to enforce, defend or declare) any rights or remedies under this Agreement
      or the other Financing Documents or in responding to any subpoena or other
      legal
      process or informal investigative demand issued in connection with this
      Agreement, or the other Financing Documents, including in connection with any
      insolvency or bankruptcy of Holdings, the Company or any of their Subsidiaries
      or in connection with any work-out or restructuring of the transactions
      contemplated hereby, by the Financing Documents or by the Notes. The Company
      will pay, and will save the Subsequent Purchasers harmless from, all claims
      in
      respect of any 

     

    
      
        
        

      

      
        -28-

        
          

        

      

      
        
        
fees,
        costs or expenses if any, of brokers and finders in relation to the Transactions
        engaged by any of the Company or its Subsidiaries.

    

    


    9.2.  Indemnification
      of the Subsequent Purchasers.

    


    The
      Company agrees to indemnify each Subsequent Purchaser, GSMP VCOC, 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 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 the Transaction Documents 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
      Notes 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 any of the foregoing is raised or initiated by a third
      party or the Company or any of its Subsidiaries; 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 Subsequent Purchaser and GSMP VCOC 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 Company agrees
      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 the Company or
      any
      of its 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 Company
      or
      any of its 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 Notes or the Transactions. The
      provisions of this Section
      9.2
      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 all amounts owing to a Purchaser or GSMP VCOC pursuant
      to the terms of a Transaction Document, the invalidity or unenforceability
      of
      any term or provision of a Transaction Document, or any investigation made
      by or
      on behalf of a Purchaser. All amounts due under this Section
      9.2
      shall be
      payable on written demand therefor accompanied by reasonable documentation
      with
      respect to any reimbursement, indemnification or other amount
      requested.

    


    9.3.  Waiver
      of Punitive Damages.

    


    To
      the
      extent permitted by applicable law, none of the parties hereto shall assert,
      and
      each hereby waives, any claim against the other parties (including their
      respective Affiliates, partners, stockholders, members, directors, officers,
      agents, employees and controlling persons), on any theory of liability for
      special, indirect, consequential or punitive damages (as opposed to direct
      or
      actual damages) arising out 

     

    
      
        
        

      

      
        -29-

        
          

        

      

      
        
        
of,
        in
        connection with, or as a result of, this Agreement or any agreement or
        instrument contemplated hereby, the Transactions, any Financing Document,
        the
        Notes or the use of the proceeds thereof.

    

    


    9.4.  Survival.

    


    The
      obligations of the Company under this Section 9
      will
      survive the payment or transfer of any Note, the enforcement, amendment or
      waiver of any provision of this Agreement and the termination of this
      Agreement.

    


    9.5.  Tax
      Treatment of Indemnification Payments.

    


    Any
      indemnification payment pursuant to this Agreement shall be treated for all
      Tax
      purposes as an adjustment to the Purchase Price.

    


    9.6.  Indemnification
      of the Initial Purchaser.

    


    The
      Company and the Initial Purchaser agree to the indemnification and contribution
      provisions set for in Exhibit
      C
      hereto.

    


    


    SECTION
      10.  

    MISCELLANEOUS

    


    10.1.  Notices.

    


    Except
      as
      otherwise expressly provided herein, all notices and other communications shall
      have been duly given and shall be effective (a) when delivered (except that
      if the day of delivery is not a Business Day, then the next Business Day),
      (b) when transmitted via telecopy (or other facsimile device) on a Business
      Day during normal business hours to the number set out below if the sender
      on
      the same day sends a confirming copy of such notice by a recognized overnight
      delivery service (charges prepaid), (c) the day following the day (except
      that if such day is not a Business Day, then the next Business Day) on which
      the
      same has been delivered prepaid to a reputable national overnight air courier
      service or (d) the third Business Day following the day on which the same
      is sent by certified or registered mail, postage prepaid, in each case to the
      respective parties at the address set forth below, or at such other address
      as
      such party may specify by written notice to the other party hereto:

    


    (a)  if
      to a
      Purchaser or its nominee, or to the GSMP VCOC or its nominee, to such Purchaser,
      GSMP VCOC, or nominee at the address specified in Schedule 2.2, with a copy
      (which copy shall not constitute notice) as specified in Schedule 2.2, or at
      such other address as the Purchaser or its nominee, or the GSMP VCOC or its
      nominee, shall have specified to the Company in writing; 

    


    (b)  if
      to any
      Holder, to such Holder at the address as such Holder shall have specified to
      the
      Company in writing; 

    


    (c)  if
      to the
      Company, to: Berry Plastics Holding Corporation (f/k/a BPC
      Holding Corporation), 101 Oakley Street, Evansville, Indiana 47710, fax
      812-429-9534,
      Attention: General
      Counsel,
      with a
      copy (which copy shall not constitute notice) to: O’Melveny
      & Myers LLP, Times Square Tower, 7 Times Square,
      New
      York, NY 10036, fax 212-326-2061, Attention: Gregory Ezring, Esq.

    


    
      
        
        

      

      
        -30-

        
          

        

      

      
        
        

      

    

    10.2.  Benefit
      of Agreement and Assignments.

    


    (a)  Except
      as
      otherwise expressly provided herein, all covenants, agreements and other
      provisions contained in this Agreement by or on behalf of any of the parties
      hereto shall bind, inure to the benefit of and be enforceable by their
      respective successors and permitted assigns; provided,
      however,
      that
      none of the Company may assign or transfer any of its rights or obligations
      without the prior written consent of the other parties hereto.

    


    (b)  Nothing
      in this Agreement or in any other Financing Document, express or implied, shall
      give to any Person other than the parties hereto or thereto and their permitted
      successors and assigns any benefit or any legal or equitable right, remedy
      or
      claim under this Agreement.

    


    (c)  Notwithstanding
      anything to the contrary contained herein, the Purchasers may (i) subject to
      the
      consent of the Company, not to be unreasonably withheld, assign the rights
      to
      purchase all or any portion of the Notes allocated to such Purchaser pursuant
      to
      Schedule 2.2 to any Affiliate or direct or indirect limited partner of such
      Purchaser or (ii) transfer its Notes (together with its rights hereunder) to
      any
      Person in compliance with the provisions of this Agreement, subject, in each
      case, to such Person becoming a party hereto and the ability of such Person
      to
      make the representations and warranties set forth in Section
      5,
      and
      each such Person that is an Affiliate of a Purchaser shall be entitled to the
      full benefit and be subject to the obligations of this Agreement as if such
      Person were a Purchaser hereunder (it being understood that each such Person
      that is not an Affiliate of a Purchaser shall only be entitled to the rights
      of
      a Holder and not to any additional rights that a Purchaser may have under this
      Agreement).

    


    10.3.  No
      Waiver; Remedies Cumulative.

    


    No
      failure or delay on the part of any party hereto in exercising any right, power
      or privilege hereunder or under the Notes and no course of dealing between
      T the
      Company and any other party shall operate as a waiver thereof; nor shall any
      single or partial exercise of any right, power or privilege hereunder or under
      the Notes preclude any other or further exercise thereof or the exercise of
      any
      other right, power or privilege hereunder or thereunder. The rights and remedies
      provided herein and in the Notes are cumulative and not exclusive of any rights
      or remedies that the parties would otherwise have. No notice to or demand on
      the
      Company in any case shall entitle the Company to any other or further notice
      or
      demand in similar or other circumstances or constitute a waiver of the rights
      of
      the other parties hereto to any other or further action in any circumstances
      without notice or demand.

    


    10.4.  Amendments,
      Waivers and Consents.

    


    This
      Agreement may be amended, and the observance of any term hereof may be waived
      (either retroactively or prospectively), with the written consent of the Company
      and the Required Holders; provided,
      however,
      that no
      such amendment or waiver may, (a) without the prior written consent of GSMP
      VCOC, amend or waive the provisions of which GSMP VCOC is expressly a
      beneficiary, or (b) impose on any Purchaser any additional financial commitment
      or obligation to buy additional Notes that it is not otherwise obligated to
      buy
      hereunder, without the prior written consent of such Purchaser.
      No
      amendment or waiver of this Agreement will extend to or affect any obligation,
      covenant or agreement not expressly amended or waived or thereby impair any
      right consequent thereon. As used herein, the term this “Agreement”
and
      references thereto shall mean this Agreement as it may from time to time be
      amended, supplemented or modified.

    


    
      
        
        

      

      
        -31-

        
          

        

      

      
        
        

      

    

    10.5.  Counterparts.

    


    This
      Agreement may be executed in any number of counterparts, each of which when
      so
      executed and delivered shall be deemed an original, but all of which shall
      constitute one and the same instrument. It shall not be necessary in making
      proof of this Agreement to produce or account for more than one such
      counterpart. Each counterpart may consist of a number of copies hereof, each
      signed by less than all, but together signed by all, of the parties
      hereto.

    


    10.6.  Reproduction.

    


    This
      Agreement, the other Transaction Documents and all documents relating hereto
      and
      thereto, including: (a) consents, waivers and modifications that may hereafter
      be executed, (b) documents received by the Purchasers at the Closing (except
      the
      Notes themselves), and (c) financial statements, certificates and other
      information previously or hereafter furnished in connection herewith, may be
      reproduced by any photographic, photostatic, microfilm, microcard, miniature
      photographic or other similar process and any original document so reproduced
      may be destroyed. The Company and each Purchaser agree and stipulate that,
      to
      the extent permitted by Applicable Law, any such reproduction shall be
      admissible in evidence as the original itself in any judicial or administrative
      proceeding (whether or not the original is in existence and whether or not
      such
      reproduction was made in the regular course of business) and any enlargement,
      facsimile or further reproduction of such reproduction shall likewise be
      admissible in evidence. This Section
      10.6
      shall
      not prohibit any party hereto or any holder of the Notes from contesting any
      such reproduction to the same extent that it could contest the original or
      from
      introducing evidence to demonstrate the inaccuracy of any such
      reproduction.

    


    10.7.  Headings.

    


    The
      headings of the sections and subsections hereof are provided for convenience
      only and shall not in any way affect the meaning or construction of any
      provision of this Agreement.

    


    10.8.  Survival
      of Representations, Warrants, Covenants and Indemnities.

    


    All
      representations, warranties, covenants and indemnities set forth herein shall
      survive the execution and delivery of this Agreement, the issuance of the Notes,
      and, except as otherwise expressly provided herein with respect to covenants,
      the payment of principal of the Notes and any other obligations
      hereunder.

    


    10.9.  Governing
      Law; Submission to Jurisdiction; Venue.

    


    (a)  THIS
      AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS
      OF
      THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK, EXCLUDING
      CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD REQUIRE THE
      APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.

    


    (b)  If
      any
      action, proceeding or litigation shall be brought in order to enforce any right
      or remedy under this Agreement or any of the Notes, each party hereto hereby
      consents and will submit, and will cause each of their respective Subsidiaries
      to submit, to the jurisdiction of any state or federal court of competent
      jurisdiction sitting within the area comprising the Southern District of New
      York on the date of this Agreement. Each party hereto hereby irrevocably waives,
      and will cause each of their respective Subsidiaries to waive, any objection,
      including, but not limited to, any objection to the laying of venue or based
      on
      the grounds of forum
      non conveniens,
      which
      they may now or hereafter have to the bringing of

     

    
      
        
        

      

      
        -32-

        
          

        

      

      
        
        
any
        such
        action, proceeding or litigation in such jurisdiction. The Company further
        agrees that it shall not bring any action, proceeding or litigation arising
        out
        of this Agreement, the Notes in any state or federal court other than any
        state
        or federal court of competent jurisdiction sitting within the area comprising
        the Southern District of New York on the date of this
        Agreement.

    

    


    (c)  Each
      party hereto irrevocably consents, and will cause each of their respective
      Subsidiaries to consent, to the service of process of any of the applicable
      aforementioned courts in any such action, proceeding or litigation by the
      mailing of copies thereof by registered or certified mail, postage prepaid,
      to
      the address set forth in Section 10.1,
      such
      service to become effective thirty (30) days after such mailing.

    


    (d)  Nothing
      herein shall affect the right of (i) any party hereto to serve process in any
      other manner permitted by law or (ii) the Purchasers to
      commence legal proceedings or otherwise proceed against the Company or any
      of
      its Subsidiaries in any other jurisdiction.
      If
      service of process is made on a designated agent it should be made by either
      (i) personal delivery or (ii) mailing a copy of summons and complaint to
      the agent via registered or certified mail, return receipt
      requested.

    


    (e)  EACH
      PARTY HERETO HEREBY WAIVES, AND
      WILL
      CAUSE EACH OF THEIR RESPECTIVE SUBSIDIARIES TO WAIVE,
      ANY AND
      ALL RIGHTS ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION,
      PROCEEDING OR LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN
      CONNECTION WITH, THIS AGREEMENT.

    


    10.10.  Severability.

    


    If
      any
      provision of this Agreement is determined to be illegal, invalid or
      unenforceable, such provision shall be fully severable to the extent of such
      illegality, invalidity or unenforceability and the remaining provisions shall
      remain in full force and effect and shall be construed without giving effect
      to
      the illegal, invalid or unenforceable provisions.

    


    10.11.  Entirety.

    


    This
      Agreement together with the other Financing Documents represents the entire
      agreement of the parties hereto and thereto, and supersedes all prior agreements
      and understandings, oral or written, if any, relating to the Financing Documents
      or the transactions contemplated herein or therein.

    


    10.12.  Construction.

    


    Each
      covenant contained herein shall be construed (absent express provision to the
      contrary) as being independent of each other covenant contained herein, so
      that
      compliance with any one covenant shall not (absent such an express contrary
      provision) be deemed to excuse compliance with any other covenant. Where any
      provision herein refers to action to be taken by any Person, or which such
      Person is prohibited from taking, such provision shall be applicable whether
      such action is taken directly or indirectly by such Person, whether or not
      expressly specified in such provision.

    


    10.13.  Incorporation.

    


    All
      Schedules attached hereto are incorporated as part of this Agreement as if
      fully
      set forth herein.

    


    
      
        
        

      

      
        -33-

        
          

        

      

      
        
        

      

    

    10.14.  Confidentiality.

    


    (a)  Subject
      to the provisions of clauses (b) and (e) of this Section 10.14,
      each of
      the Purchasers and GSMP VCOC agrees that it will not disclose without the prior
      written (including e-mail) consent of Holdings or the Company (other than to
      its
      employees, auditors, investors, partners, creditors, advisors, counsel or any
      rating agencies that are reviewing securities or loans issued by such Purchaser
      or GSMP VCOC, in each case, to the extent such disclosure reasonably relates
      to
      the administration of the investment represented by its Notes and who are
      informed that such information is subject to the provisions of this Section
      10.14
      and who
      enter into confidentiality arrangements with such Purchaser or GSMP VCOC in
      form
      and substance consistent with the provisions of this Section
      10.14
      applicable to Purchasers reasonably satisfactory to such Purchaser or GSMP
      VCOC
      forms of which will be provided to the Company prior to their use) any
      information which has been furnished to such Purchaser or GSMP VCOC in
      connection with its evaluation of an investment in the Notes and of the other
      transactions referred to herein or is now or in the future furnished pursuant
      to
      this Agreement (including Sections
      6.1, 7.1 or 7.2
      hereof)
      or any other Transaction Document; provided
      that any
      Purchaser or GSMP VCOC may disclose any such information (i) as was or has
      become generally available to the public other than by virtue of a breach of
      this Section 10.14(a)
      or any
      other confidentiality obligation by such Purchaser or GSMP VCOC or any
      other Person to whom such Purchaser or GSMP VCOC has provided such information
      as permitted by this Section 10.14,
      provided
      that
      this clause (i) shall not permit any Purchaser to deliver the Final Memorandum
      to any third party, (ii) as may be required in any report, statement or
      testimony required to be submitted to any municipal, state or Federal regulatory
      body having or claiming to have jurisdiction over such Purchaser or GSMP VCOC
      or
      to the Commission or similar organizations (whether in the United States of
      America or elsewhere) or their successors, (iii) as may be required or in the
      opinion of counsel appropriate in respect of any summons or subpoena or in
      connection with any litigation, (iv) as may be required or in the opinion of
      counsel appropriate in order to comply with any law, order, regulation or ruling
      applicable to such Purchaser or GSMP VCOC and (v) other than the Final
      Memorandum, to any prospective or actual subsequent Purchaser, in connection
      with any contemplated transfer of any of the Notes by such Purchaser;
provided
      that
      prior to or concurrently with any disclosure of information to any Person
      pursuant to this clause (v) any such prospective or actual subsequent Purchaser
      expressly agrees in writing to be bound by the confidentiality provisions
      contained in this Section 10.14
      pursuant
      to a confidentiality agreement with Holdings or the Company embodying the
      provisions of this Section 10.14.
      Each of
      the Purchasers and GSMP VCOC agrees that in the event it intends to disclose
      confidential information in accordance with clauses (ii), (iii) or (iv) above,
      it shall, to the extent reasonably practicable, provide Holdings and the Company
      notice of such requirement prior to making any disclosure so that Holdings
      or
      the Company may seek an appropriate protective order or confidential treatment
      of the information being disclosed.

    


    (b)  The
      Company hereby acknowledges and agrees that each Purchaser and GSMP VCOC may
      share with any of its Affiliates, and such Affiliates may share with such
      Purchaser and GSMP VCOC, any information related to the Company or any of its
      Subsidiaries (including any nonpublic information regarding the creditworthiness
      of, the Company or any of its Subsidiaries) to the extent such sharing
      reasonably relates to the administration of the investment represented by its
      Notes and such Affiliates are informed that such information is subject to
      the
      provisions of this Section
      10.14;
      provided
      such
      Persons shall be subject to the provisions of this Section 10.14
      to the
      same extent as such Purchaser and GSMP VCOC.

    


    (c)  Without
      limiting the obligations of the Company to provide information to the Purchasers
      under this Agreement, each Purchaser and GSMP VCOC understands that it may
      receive material non-public information relating to the Company pursuant to
      this
      Agreement, or upon exercise of its rights hereunder (including pursuant to
      Section
      7.1
      or
7.2)
      and
      acknowledge that the Company shall not have

     

    
      
        
        

      

      
        -34-

        
          

        

      

      
        
        
 any
        duty to disclose any information publicly or privately to any other Person
        in
        connection with any actual or proposed transfer of the Notes or any interest
        therein.

    

    


    (d)  Notwithstanding
      anything to the contrary set forth herein, each party (and each of their
      respective Affiliates, partners, shareholders, directors, officers, employees,
      representatives or other agents) may disclose to any and all Persons, without
      limitations of any kind, the tax treatment and tax structure of the Transactions
      and all materials of any kind (including opinions and other tax analyses) that
      are provided to any such party relating to such tax treatment and tax structure.
      However, any information relating to the tax treatment or tax structure shall
      remain subject to the confidentiality provisions hereof (and the foregoing
      sentence shall not apply) to the extent reasonably necessary to enable the
      parties hereto, their respective Affiliates, and their respective Affiliates’
partners, shareholders, directors, officers and employees to comply with
      applicable securities laws. For this purpose, “tax structure” means any facts
      relevant to the federal income tax treatment of the Transactions but does not
      include information relating to the identity of any of the parties hereto or
      any
      of their respective Affiliates.

    


    10.15.  No
      Personal Obligations.

    


    Notwithstanding
      anything to the contrary contained herein or in any Financing Document, it
      is
      expressly understood and the Purchasers expressly agree that nothing contained
      herein or in any other Financing Document or in any other document contemplated
      hereby or thereby (whether from a covenant, representation, warranty or other
      provision herein or therein) shall create, or be construed as creating, any
      personal liability of any stockholder, director, officer, member, partner,
      manager or employee of the Company and its Subsidiaries (excluding any such
      Person which is a Guarantor or other express obligor on the Notes) in such
      Person’s capacity as such, with respect to (a) any payment obligation of
      the Company or any of their Subsidiaries, (b) any obligation of the Company
      or any of its Subsidiaries to perform any covenant, undertaking, indemnification
      or agreement, either express or implied, contained herein or in any other
      Financing Document, (c) any representation or warranty contained herein or
      any
      other Financing Document, (d) any other claim or liability to the
      Purchasers under or arising under this Agreement or any other Financing Document
      or in any other document contemplated hereby or thereby, or (e) any credit
      extended or loan made; provided that
      nothing herein shall be deemed to be a waiver of claims arising from
      fraud.

    


    10.16.  Currency.

    


    Unless
      otherwise specified, all dollar amounts referred to in this Agreement are in
      lawful money of the United States.

    


    10.17.  No
      Fiduciary Duty.

    


    The
      Company acknowledges and agrees that (i) the purchase and sale of the Notes
      pursuant to this Agreement is an arm's-length commercial transaction between
      the
      Company, on the one hand, and the several Purchasers, on the other, (ii) in
      connection therewith and with the process leading to such transaction each
      Purchaser is acting solely as a principal and not the agent or fiduciary of
      the
      Company, (iii) no Purchaser has assumed an advisory or fiduciary responsibility
      in favor of the Company with respect to the transactions contemplated hereby
      or
      the process leading thereto (irrespective of whether such Purchaser has advised
      or is currently advising the Company on other matters) or any other obligation
      to the Company except the obligations expressly set forth in this Agreement
      and
      (iv) the Company has consulted its own legal and financial advisors to the
      extent it deemed appropriate. The Company agrees that it will not claim that
      the
      Purchasers, or any of them, has rendered advisory services of any nature or
      respect, or owes a fiduciary or similar duty to the Company, in connection
      with
      such transactions or the process leading thereto.

     

    
 

    
      
        
        

      

      
        -35-

        
          

        

      

      
        
        

      

    

    [SIGNATURE
      PAGES FOLLOW]

    



    
      
        
          


        

        
        

      

      
        -36-

        
          

        

      

      
        
        

        
          


        

      

    



    IN
      WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this
      Agreement to be duly executed and delivered as of the date first above
      written.

    
      	 	
              BPC
                ACQUISITION CORP.

               

               

              By: _________________________

              Name: 

              Title: 

            


    

    


    



    
      
        
          [Note
            Purchase Agreement]

          


        

        
        

      

      
        
        

        
          

        

      

      
        
        

        
          


        

      

    



    IN
      WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this
      Agreement to be duly executed and delivered as of the date first above
      written.

    


    
      	 	
              GOLDMAN,
                SACHS & CO.

               

               

              By: _________________________

              Name: 

              Title: 

            


    

    


    


    



    
      
        
          [Note
            Purchase Agreement]

          


        

        
        

      

      
        
        

        
          

        

      

      
        
        

        
          


        

      

    



    IN
      WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this
      Agreement to be duly executed and delivered as of the date first above
      written.

    


    
      	 	
              GSMP
                2006 ONSHORE US, LTD.

               

               

              By: _________________________

              Name: 

              Title: 

            
	 	 
	 	
              GSMP
                2006 OFFSHORE US, LTD.

               

               

              By: _________________________

              Name: 

              Title: 

            
	 	 
	 	
              GSMP
                2006 INSTITUTIONAL US, LTD.

               

               

              By: _________________________

              Name: 

              Title: 

            
	 	 
	 	
              GS
                MEZZANINE
                PARTNERS 2006 INSTITUTIONAL, L.P.

               

              By: GS
                Mezzanine Advisors 2006, L.L.C

              its
                General Partner

               

               

              By: _________________________

              Name: 

              Title: 

            


    

    


    


    



    
      
        
          [Note
            Purchase Agreement]

          


        

        
        

      

      
        
        

        
          

        

      

      
        
        

        
          


        

      

    



    EXHIBIT
      C

    


    Indemnification
      and Contribution In Favor of the Initial Purchaser

    


    (a) The
      Company agrees to indemnify and hold harmless the Initial Purchaser, the
      directors, officers and Affiliates of the Initial Purchaser and each person
      who
      controls the Initial Purchaser within the meaning of either the Securities
      Act
      or the Exchange Act against any and all losses, claims, damages or liabilities,
      joint or several, to which they or any of them may become subject under the
      Securities Act, the Exchange Act or other U.S. federal or state statutory law
      or
      regulation, at common law or otherwise, insofar as such losses, claims, damages
      or liabilities (or actions in respect thereof) arise out of or are based upon
      any untrue statement or alleged untrue statement of a material fact contained
      in
      the Final Memorandum or in any amendment or supplement thereto or arise out
      of
      or are based upon the omission or alleged omission to state therein a material
      fact required to be stated therein or necessary to make the statements therein,
      in the light of the circumstances under which they were made, not misleading,
      and agree (subject to the limitations set forth in the provisos to this
      sentence) to reimburse each such indemnified party, as incurred, for any legal
      or other expenses reasonably incurred by it in connection with investigating
      or
      defending any such loss, claim, damage, liability or action; provided, however,
      that the Company will not be liable in any such case to the extent that any
      such
      loss, claim, damage or liability arises out of or is based upon any such untrue
      statement or alleged untrue statement or omission or alleged omission made
      in
      the Final Memorandum, or in any amendment thereof or supplement thereto, in
      reliance upon and in conformity with written information furnished to the
      Company by or on behalf of the Initial Purchaser specifically for inclusion
      therein. This indemnity agreement will be in addition to any liability that
      the
      Company may otherwise have. The Company shall not be liable under this Exhibit
      C
      to any indemnified party regarding any settlement or compromise or consent
      to
      the entry of any judgment with respect to any pending or threatened claim,
      action, suit or proceeding in respect of which indemnification or contribution
      may be sought hereunder (whether or not the indemnified parties are actual
      or
      potential parties to such claim or action) unless such settlement, compromise
      or
      consent is consented to by the Company which consent shall not be unreasonably
      withheld.

    


    (b) The
      Initial Purchaser agrees to indemnify and hold harmless (i) as of the date
      hereof, the Company, (ii) each person, if any, who controls (within the meaning
      of either the Act or the Exchange Act) as of the date hereof, the Company,
      and
      (iii) as of the date hereof, the directors and officers of the Company, to
      the
      same extent as the foregoing indemnity from the Company, but only with reference
      to written information relating to the Initial Purchaser furnished to the
      Company by or on behalf of the Initial Purchaser specifically for inclusion
      in
      the Final Memorandum (or in any amendment or supplement thereto). This indemnity
      agreement will be in addition to any liability that the Initial Purchaser may
      otherwise have. The Company acknowledges that the first paragraph under the
      heading “Plan of Distribution” in the Final Memorandum constitutes the only
      information furnished in writing by or on behalf of the Initial Purchaser for
      inclusion in the Final Memorandum.

    


    (c) Promptly
      after receipt by an indemnified party under this Exhibit C of notice of the
      commencement of any action, such indemnified party will, if a claim in respect
      thereof is to be made against the indemnifying party under this Exhibit C,
      notify the indemnifying party in writing of the commencement thereof; but the
      failure so to notify the indemnifying party (i) will not relieve it from
      liability under paragraph (a) or (b) above unless and to the extent it did
      not
      otherwise learn of such action and such failure results in the forfeiture by
      the
      indemnifying party of substantial rights or defenses and (ii) will not, in
      any
      event, relieve the indemnifying party from any obligations to any indemnified
      party other than the indemnification obligation provided in paragraph (a) or
      (b)
      above, except as provided in paragraph (d) below. The indemnifying party shall
      be entitled to appoint counsel (including local counsel) of the indemnifying
      party’s choice at the indemnifying party’s expense to represent the indemnified
      party in any action for which indemnification is sought (in which case the
      indemnifying party

     

    
      
        
        

      

      
        C-1

        
          

        

      

      
        
        
shall
        not
        thereafter be responsible for the fees and expenses of any separate counsel,
        other than local counsel if not appointed by the indemnifying party, retained
        by
        the indemnified party or parties except as set forth below); provided, however,
        that such counsel shall be reasonably satisfactory to the indemnified party.
        Notwithstanding the indemnifying party’s election to appoint counsel (including
        local counsel) to represent the indemnified party in an action, the indemnified
        party shall have the right to employ separate counsel (including local counsel),
        and the indemnifying party shall bear the reasonable fees, costs and expenses
        of
        such separate counsel if (i) the use of counsel chosen by the indemnifying
        party
        to represent the indemnified party would present such counsel with a conflict
        of
        interest (based on the advice of counsel to the indemnified person); (ii)
        such
        action includes both the indemnified party and the indemnifying party and
        the
        indemnified party shall have reasonably concluded (based on the advice of
        counsel to the indemnified person) that there may be legal defenses available
        to
        it and/or other indemnified parties that are different from or additional
        to
        those available to the indemnifying party; (iii) the indemnifying party shall
        not have employed counsel reasonably satisfactory to the indemnified party
        to
        represent the indemnified party within a reasonable time after notice of
        the
        institution of such action; or (iv) the indemnifying party shall authorize
        the
        indemnified party to employ separate counsel at the expense of the indemnifying
        party. It is understood and agreed that the indemnifying person shall not,
        in
        connection with any proceeding or related proceeding in the same jurisdiction,
        be liable for the reasonable fees and expenses of more than one separate
        firm
        (in addition to any local counsel) for all indemnified persons. Any such
        separate firm for any Initial Purchaser, its Affiliates, directors and officers
        and any control persons of such Initial Purchaser shall be designated in
        writing
        by the Initial Purchaser, and any such separate firm for the Company and
        any
        control persons of the Company and any officers or directors of the Company
        shall be designated in writing by the Company. An indemnifying party will
        not,
        without the prior written consent of the indemnified parties, settle or
        compromise or consent to the entry of any judgment with respect to any pending
        or threatened claim, action, suit or proceeding in respect of which
        indemnification or contribution may be sought hereunder (whether or not the
        indemnified parties are actual or potential parties to such claim, action,
        suit
        or proceeding) unless such settlement, compromise or consent includes an
        unconditional release of each indemnified party from all liability arising
        out
        of such claim, action, suit or proceeding and does not include any statement
        as
        to, or any admission of, fault, culpability or failure to act by or on behalf
        of
        any indemnified party.

    

    


    (d) In
      the
      event that the indemnity provided in paragraph (a) or (b) of this Exhibit C
      is
      unavailable to or insufficient to hold harmless an indemnified party for any
      reason (other than by virtue of the failure of an indemnified party to notify
      the indemnifying party of its right to indemnification pursuant to subsection
      (a) or (b) above, where such failure materially prejudices the indemnifying
      party (through the forfeiture of substantial rights or defenses)), the Company,
      on the one hand, and the Initial Purchaser, on the other hand, severally agree
      to contribute to the aggregate losses, claims, damages and liabilities
      (including legal or other expenses reasonably incurred in connection with
      investigating or defending any loss, claim, damage, liability or action)
      (collectively “Losses”) to which the Company and the Initial Purchaser may be
      subject in such proportion as is appropriate to reflect the relative benefits
      received by the Company, on the one hand, and by the Initial Purchaser, on
      the
      other hand, from the offering of the Notes; provided, however, that in no case
      shall the Initial Purchaser be responsible for any amount in excess of the
      purchase discount or commission applicable to the Notes related to the Losses
      purchased by the Initial Purchaser hereunder. If the allocation provided by
      the
      immediately preceding sentence is unavailable for any reason or not permitted
      by
      applicable law, the Company, on the one hand, and the Initial Purchaser, on
      the
      other hand, severally shall contribute in such proportion as is appropriate
      to
      reflect not only such relative benefits but also the relative fault of the
      Company, on the one hand, and the Initial Purchaser, on the other hand, in
      connection with the statements or omissions that resulted in such Losses, as
      well as any other relevant equitable considerations. Benefits received by the
      Company shall be deemed to be equal to the total net proceeds from the offering
      (before deducting expenses) received by them, and benefits received by the
      Initial Purchaser shall be deemed to be equal to the total purchase discounts
      and commissions received by them. Relative fault shall be determined by
      reference to, among 

     

    
      
        
        

      

      
        C-2

        
          

        

      

      
        
        
other
        things, whether any untrue or alleged untrue statement of a material fact
        or the
        omission or alleged omission to state a material fact relates to information
        provided by the Company, on the one hand, or the Initial Purchaser, on the
        other
        hand, the intent of the parties and their relative knowledge, access to
        information and opportunity to correct or prevent such untrue statement or
        omission and any other equitable considerations appropriate in the
        circumstances. The Company and the Initial Purchaser agree that it would
        not be
        just and equitable if the amount of such contribution were determined by
        pro
        rata allocation or any other method of allocation that does not take account
        of
        the equitable considerations referred to above. Notwithstanding the provisions
        of this paragraph (d), no person guilty of fraudulent misrepresentation (within
        the meaning of Section 11(f) of the Securities Act) shall be entitled to
        contribution from any person who was not guilty of such fraudulent
        misrepresentation. The Initial Purchaser’s obligations to contribute pursuant to
        this Exhibit C are several in proportion to their respective purchase
        obligations hereunder and not joint. For purposes of this Exhibit C, each
        person, if any, who controls the Initial Purchaser within the meaning of
        either
        the Act or the Exchange Act and each director, officer, employee, Affiliate
        and
        agent of the Initial Purchaser shall have the same rights to contribution
        as the
        Initial Purchaser, and each person who controls the Company within the meaning
        of either the Act or the Exchange Act and the respective officers and directors
        of the Company shall have the same rights to contribution as the Company,
        subject in each case to the applicable terms and conditions of this paragraph
        (d).

    

    


    
      
        
        

      

      
        C-3