Amended and Restated Intercreditor Agreement


    Exhibit
      10.1(d)

     

    


     

    AMENDED
      AND RESTATED INTERCREDITOR AGREEMENT

     

    THIS
      AMENDED AND RESTATED INTERCREDITOR AGREEMENT is amended and restated as of
      April
      3, 2007, among CREDIT SUISSE, CAYMAN ISLANDS BRANCH (“Credit
      Suisse”)
      and
      BANK OF AMERICA, N.A., each in their capacity as First Lien Agent, WELLS FARGO
      BANK, N.A., as Trustee, BERRY PLASTICS GROUP, INC., a Delaware corporation
      (“Holdings”),
      COVALENCE SPECIALTY MATERIALS CORP., a Delaware corporation, which on the
      Closing Date shall be merged (the “Merger”)
      with
      and into BERRY PLASTICS HOLDING CORPORATION (“Berry”),
      with
      BERRY PLASTICS HOLDING CORPORATION surviving such Merger as a borrower under
      the
      Term Credit Agreement (as defined below), a borrower under the Revolving Credit
      Agreement (as defined below), and the obligor under the Notes (as defined below)
      (the “Company”),
      and
      each Subsidiary of the Company listed on Schedule I hereto or that becomes
      a
      party hereto pursuant to Section 8.21 below.

     

    A.
      WHEREAS, Berry Plastics Group Inc., BPC Acquisition Corp., which was merged
      with
      and into Berry (formerly known as BPC Holding Corporation), the lenders and
      agents named therein, and Credit Suisse, Cayman Islands Branch, as
      administrative agent and collateral agent for such lenders, are parties to
      that
      certain Credit Agreement dated as of September 20, 2006 (as amended, amended
      and
      restated, replaced, refinanced, supplemented or otherwise modified from time
      to
      time, the “Existing
      Credit Agreement”);
      

     

    B.
      WHEREAS, contemporaneously with the execution and delivery of this Amended
      and
      Restated Intercreditor Agreement, the Existing Credit Agreement will be
      refinanced with: i) the Second Amended and Restated Term Loan Credit Agreement
      dated as of April 3, 2007 (as amended, amended and restated, replaced,
      refinanced, supplemented or otherwise modified from time to time, the
“Term Credit
      Agreement”)
      among
      Holdings, the Company, the lenders party thereto from time to time, Credit
      Suisse, Cayman Islands Branch, as administrative agent, Deutsche Bank Securities
      Inc., as syndication agent, and Banc of America, Securities LLC, Citigroup
      Global Markets Inc., Goldman Sachs Credit Partners L.P., J.P. Morgan Securities
      Inc. and Lehman Brothers Inc., as co-documentation agents and ii) the Second
      Amended and Restated Revolving Credit Agreement dated as of April 3, 2007 (as
      amended, amended and restated, replaced, refinanced, supplemented or otherwise
      modified from time to time, the “Revolving Credit
      Agreement”
and
      together with the Term Credit Agreement individually and collectively referred
      to as the “Credit
      Agreement”)
      among
      Holdings, the Company, the lenders party thereto from time to time, Bank of
      America, N.A., as administrative agent, Goldman Sachs Credit Partners L.P,
      as
      syndication agent and Credit Suisse Securities (USA) LLC, Citigroup Global
      Markets Inc., Deutsche Bank AG New York Branch, J.P. Morgan Securities Inc.
      and
      Lehman Brothers Inc., as co-documentation agents;

     

    C.
      WHEREAS, the Company is party to the Indenture dated as of September 20, 2006
      (as amended, amended and restated, replaced, refinanced, supplemented or
      otherwise modified from time to time, the “Second
      Priority Senior Secured Notes Indenture”),
      under

     


    
      
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    which
      the
      Second Lien Fixed Rate Notes and the Second Lien Floating Rate Notes were
      issued, among Berry, as obligor, the note guarantors as set forth therein (the
      “Note
      Guarantors”)
      and
      Wells Fargo Bank, N.A., as Trustee. The Obligations of the Company and the
      Note
      Guarantors under the Second Priority Senior Secured Notes Indenture, the Notes,
      and the other Noteholder Documents constitute Second Priority Claims;
      and

     

    D.
      WHEREAS, it is the intent of the parties hereto that this Agreement not
      constitute a novation of the obligations and liabilities of the parties
      hereunder and that this Agreement be amended and restated in its entirety on
      the
      date hereof.

     

    Accordingly,
      in consideration of the foregoing, the mutual covenants and obligations herein
      set forth and for other good and valuable consideration, the sufficiency and
      receipt of which are hereby acknowledged, the parties hereto, intending to
      be
      legally bound, hereby agree as follows:

     

    Section
      1. Definitions.

     

    1.1.
      Defined
      Terms.
      As used
      in this Agreement, the following terms have the meanings specified
      below:

     

    “Affiliate”
shall
      mean, when used with respect to a specified person, another person that
      directly, or indirectly through one or more intermediaries, Controls or is
      Controlled by or is under common Control with the person specified.

     

    “Agreement”
shall
      mean this Agreement, as amended, renewed, extended, supplemented or otherwise
      modified from time to time in accordance with the terms hereof.

    


    “Bankruptcy
      Law”
shall
      mean Title 11 of the United States Code and any similar Federal, state or
      foreign law for the relief of debtors.

    


    “Closing
      Date”
shall
      have the meaning set forth in the Term Credit Agreement.

     

    “Common
      Collateral”
shall
      mean all of the assets of any Grantor, whether real, personal or mixed,
      constituting both Senior Lender Collateral and Second Priority Collateral,
      including without limitation any assets in which the First Lien Agents are
      automatically deemed to have a Lien pursuant to the provisions of Section
      2.3.

     

    “Company”
shall
      have the meaning set forth in the preamble.

     

    “Comparable
      Second Priority Collateral Document”
shall
      mean, in relation to any Common Collateral subject to any Lien created under
      any
      Senior Collateral Document, those Second Priority Collateral Documents that
      create a Lien on the same Common Collateral, granted by the same
      Grantor.

     

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

     

    “Domestic
      Subsidiary”
shall
      have the meaning set forth in the Term Credit Agreement.

     


    
      
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    “DIP
      Financing”
shall
      have the meaning set forth in Section 6.1.

     

    “Discharge
      of Senior Lender Claims”
shall
      mean, except to the extent otherwise provided in Section 5.7 below, payment
      in
      full in cash (except for contingent indemnities and cost and reimbursement
      obligations to the extent no claim has been made) of (a) all Obligations in
      respect of all outstanding Senior Lender Claims and, with respect to letters
      of
      credit or letter of credit guaranties outstanding thereunder, delivery of cash
      collateral or backstop letters of credit in respect thereof in compliance with
      the Revolving Credit Agreement, in each case after or concurrently with the
      termination of all commitments to extend credit thereunder and (b) any other
      Senior Lender Claims that are due and payable or otherwise accrued and owing
      at
      or prior to the time such principal and interest are paid; provided that the
      Discharge of Senior Lender Claims shall not be deemed to have occurred if such
      payments are made with the proceeds of other Senior Lender Claims that
      constitute an exchange or replacement for or a refinancing of such Obligations
      or Senior Lender Claims. In the event the Senior Lender Claims are modified
      and
      the Obligations are paid over time or otherwise modified pursuant to Section
      1129 of the Bankruptcy Code, the Senior Lender Claims shall be deemed to be
      discharged when the final payment is made, in cash, in respect of such
      indebtedness and any obligations pursuant to such new indebtedness shall have
      been satisfied.

     

    “First
      Lien Agent”
shall
      mean each of Credit Suisse, Cayman Islands Branch, and Bank of America, N.A.
      (or
      either of them as applicable) in their capacities as administrative agents
      and
      collateral agents for the Senior Lenders under the Term Credit Agreement and
      the
      Revolving Credit Agreement, respectively, and the other Senior Lender Documents
      entered into pursuant to the Credit Agreement, together with their respective
      successors and permitted assigns under the respective Credit Agreement
      exercising substantially the same rights and powers.

     

    “Future
      Second Lien Indebtedness”
shall
      mean Indebtedness or Obligations (other than Noteholder Claims) of the Company
      and its Subsidiaries that are to be equally and ratably secured with the
      Noteholder Claims and are so designated by the Company as Future Second Lien
      Indebtedness; provided, however, that such Future Second Lien Indebtedness
      is
      permitted to be so incurred in accordance with any Senior Lender Documents
      and
      any Second Priority Documents, as applicable.

     

    “Grantors”
shall
      mean the Company, Holdings and each of the Company’s Subsidiaries that has
      executed and delivered a Second Priority Collateral Document or a Senior
      Collateral Document.

     

    “Indebtedness”
shall
      mean and include all obligations that constitute “Indebtedness” within the
      meaning of the Second Priority Senior Secured Notes Indenture or the Credit
      Agreement.

     

    “Indenture
      Secured Parties”
shall
      mean the Persons holding Noteholder Claims, including the Trustee.

     

    “Insolvency
      or Liquidation Proceeding”
shall
      mean (a) any voluntary or involuntary case or proceeding under any Bankruptcy
      Law with respect to any Grantor, (b) any other voluntary or involuntary
      insolvency, reorganization or bankruptcy case or proceeding, or

     


    
      
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    any
      receivership, liquidation, reorganization or other similar case or proceeding
      with respect to any Grantor or with respect to any of its assets, (c) any
      liquidation, dissolution, reorganization or winding up of any Grantor whether
      voluntary or involuntary and whether or not involving insolvency or bankruptcy
      or (d) any assignment for the benefit of creditors or any other marshalling
      of
      assets and liabilities of any Grantor.

     

    “Lien”
shall
      mean, with respect to any asset, (a) any mortgage, deed of trust, lien,
      hypothecation, pledge, charge, security interest or similar encumbrance in
      or on
      such asset and (b) the interest of a vendor or a lessor under any conditional
      sale agreement, capital lease or title retention agreement (or an financing
      lease having substantially the same economic effect as any of the foregoing)
      relating to such asset.

    


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

    “Note
      Guarantors”
shall
      have the meaning set forth in the recitals.

     

    “Noteholder
      Claims”
shall
      mean all Obligations in respect of the Notes or arising under the Noteholder
      Documents or any of them, including all fees and expenses of the Trustee
      thereunder.

     

    “Noteholder
      Collateral”
shall
      mean all of the assets of any Grantor, whether real, personal or mixed, with
      respect to which a Lien is granted as security for any Noteholder
      Claim.

     

    “Noteholder
      Collateral Agreement”
shall
      mean the Collateral Agreement dated as of September 20, 2006, among the Company,
      certain other Grantors and the Trustee in respect of the Second Priority Senior
      Secured Notes Indenture.

     

    “Noteholder
      Collateral Documents”
shall
      mean the Noteholder Collateral Agreement and any other document or instrument
      pursuant to which a Lien is granted by any Grantor to secure any Noteholder
      Claims or under which rights or remedies with respect to any such Lien are
      governed.

     

    “Noteholder
      Documents”
shall
      mean (a) the Second Priority Senior Secured Notes Indenture, the Notes, the
      Noteholder Collateral Documents and (b) any other related document or instrument
      executed and delivered pursuant to any Noteholder Document described in clause
      (a) above evidencing or governing any Obligations thereunder.

     

    “Notes”
shall
      mean (a) (i) the initial $525,000,000 in aggregate principal amount of 87⁄8%
      second priority senior secured fixed rate notes due 2014 and (ii) the initial
      $225,000,000 in aggregate principal amount of second priority senior secured
      floating rate notes due 2014, each issued by the Company pursuant to the Second
      Priority Senior Secured Notes Indenture, (b) the exchange notes issued in
      exchange therefor as contemplated by the Registration Rights Agreement dated
      as
      of September 20, 2006, among the Company, certain of the Company's Subsidiaries
      and the initial purchasers party thereto and (c) any additional notes issued
      under the Second Priority Senior Secured Notes Indenture by the Company, to
      the
      extent permitted by the Second Priority Senior Secured Notes Indenture, the
      Credit Agreement, any other Senior Lender Documents and any Second Priority
      Document, as applicable.

     


    
      
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    “Obligations”
shall
      mean, with respect to any Person, any payment, performance or other obligations
      of such Person of any kind, including, without limitation, any liability of
      such
      Person on any claim, whether or not the right of any creditor to payment in
      respect of such claim is reduced to judgment, liquidated, unliquidated, fixed,
      contingent, matured, disputed, undisputed, legal, equitable, secured or
      unsecured, and whether or not such claim is discharged, stayed or otherwise
      affected by any Insolvency or Liquidation Proceeding. Without limiting the
      generality of the foregoing, the Obligations of any Grantor under any Senior
      Lender Document or Second Priority Document include the obligations to pay
      principal, interest (including interest accrued on or accruing after the
      commencement of any Insolvency or Liquidation Proceeding, whether or not a
      claim
      for post-filing interest is allowed in such proceeding) or premium on any
      Indebtedness, letter of credit commissions (if applicable), charges, expenses,
      fees, attorneys’ fees and disbursements, indemnities and other amounts payable
      by such Grantor to reimburse any amount in respect of any of the foregoing
      that
      any Senior Lender or Second Priority Secured Party, in its sole discretion,
      many
      elect to pay or advance on behalf of such Grantor.

     

    “Officers’
      Certificate”
shall
      have the meaning set forth in the Second Priority Senior Secured Notes
      Indenture.

     

    “Person”
shall
      mean an individual, partnership, corporation (including a business trust),
      limited liability company, joint stock company, trust, unincorporated
      association, joint venture or other entity, or a government or any political
      subdivision or agency thereof.

     

    “Pledged
      Collateral”
shall
      mean the Common Collateral in the possession of any First Lien Agent (or its
      agents or bailees), to the extent that possession thereof perfects a Lien
      thereon under the Uniform Commercial Code.

     

    “Recovery”
shall
      have the meaning set forth in Section 6.4.

     

    “Required
      Lenders”
shall
      mean, with respect to any Credit Agreement, those Senior Lenders the approval
      of
      which is required to approve an amendment or modification of, termination or
      waiver of any provision of or consent to any departure from such Credit
      Agreement (or would be required to effect such consent under this Agreement
      if
      such consent were treated as an amendment of the Credit Agreement). Unless
      the
      context otherwise requires, the term “Required Lenders” when used herein shall
      mean the Required Lenders with respect to each of the Credit
      Agreements.

     

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

     

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

     


    
      
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    “Second
      Priority Agents”
shall
      mean (a) the Trustee as agent for the Indenture Secured Parties and (b) the
      collateral agent for any Future Second Lien Indebtedness (including the
      Trustee).

     

    “Second
      Priority Claims”
shall
      mean the Noteholder Claims and all other Obligations in respect of, or arising
      under, the Second Priority Documents, including all fees and expenses of the
      collateral agent for any Future Second Lien Indebtedness.

     

    “Second
      Priority Collateral”
shall
      mean the Noteholder Collateral and all of the assets of any Grantor, whether
      real, personal or mixed, with respect to which a Lien is granted as security
      for
      any Future Second Lien Indebtedness.

     

    “Second
      Priority Collateral Agreements”
shall
      mean the Noteholder Collateral Agreement and any comparable agreement with
      respect to any Future Second Lien Indebtedness.

     

    “Second
      Priority Collateral Documents”
shall
      mean the Noteholder Collateral Documents and any other agreement, document
      or
      instrument pursuant to which a Lien is now or hereafter granted securing any
      Second Priority Claims or under which rights or remedies with respect to such
      Liens are at any time governed.

     

    “Second
      Priority Designated Agent”
shall
      mean such agent or trustee as is designated “Second Priority Designated Agent”
by Second Priority Secured Parties holding a majority in principal amount of
      the
      Second Priority Claims then outstanding; it being understood that as of the
      date
      of this Agreement and for so long as any Obligations under the Second Priority
      Secured Notes Indenture remain outstanding, the Trustee shall be so designated
      Second Priority Designated Agent.

     

    “Second
      Priority Documents”
shall
      mean the Noteholder Documents and any other document or instrument evidencing
      or
      governing any Future Second Lien Indebtedness.

     

    “Second
      Priority Lien”
shall
      mean any Lien on any assets of the Company or any other Grantor securing any
      Second Priority Claims.

     

    “Second
      Priority Secured Parties”
shall
      mean the Indenture Secured Parties and all other Persons holding any Second
      Priority Claims, including the collateral agent for any Future Second Lien
      Indebtedness.

     

    “Second
      Priority Senior Secured Notes Indenture”
shall
      have the meaning set forth in the recitals.

     

    “Secured
      Hedge Agreements”
shall
      mean each Swap Agreement that (i) is in effect on the Closing Date with a
      counterparty that is a Senior Lender or an Affiliate of a Senior Lender as
      of
      the Closing Date or (ii) is entered into after the Closing Date with any
      counterparty that is a Senior Lender or an Affiliate of a Senior Lender at
      the
      time such Swap Agreement is entered into.

     

    “Securities
      Account”
shall
      have the meaning set forth in the Uniform Commercial Code.

     


    
      
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    “Senior
      Collateral Agreement”
shall
      mean the Guarantee and Collateral Agreement dated as of April 3, 2007, among
      the
      Company, the other Grantors, Holdings and Credit Suisse, Cayman Islands Branch,
      and Bank of America, N.A. as collateral agents for the secured parties referred
      to therein.

     

    “Senior
      Collateral Documents”
shall
      mean the Senior Collateral Agreement and any security agreement, mortgage or
      other agreement, document or instrument pursuant to which a Lien is now or
      hereafter granted securing any Senior Lender Claims or under which rights or
      remedies with respect to such Lien are at any time governed.

     

    “Senior
      Intercreditor Agreement”
shall
      mean the Amended and Restated Senior Lender Priority and Intercreditor Agreement
      dated as of April 3, 2007 among Credit Suisse, Cayman Islands Branch, Bank
      of
      America, N.A., Holdings and the Company.

     

    “Senior
      Lender Cash Management Obligations”
shall
      mean, with respect to any Grantor, the due and punctual payment and performance
      of all obligations of such Grantor in respect of overdrafts and related
      liabilities owed to a Senior Lender under the Revolving Credit Agreement or
      any
      of its Affiliates (or any other Person designated by the Company as a provider
      of cash management services and entitled to the benefit of the Senior Collateral
      Agreement) and arising from cash management services (including treasury,
      depository, overdraft, credit or debit card, electronic funds transfer,
      Automated Clearing House services and other cash management
      arrangements).

     

    “Senior
      Lender Claims”
shall
      mean all Obligations arising under the Credit Agreement or any other Senior
      Lender Document, whether or not such Obligations constitute Indebtedness,
      including, without limitation, (a) Obligations arising under Secured Hedge
      Agreements, (b) Senior Lender Cash Management Obligations and (c) Obligations
      under any credit agreement that is an exchange or replacement for or an
      extension, increase or refinancing of any other Senior Lender Claims. Senior
      Lender Claims shall include all interest and expenses accrued or accruing (or
      that would, absent the commencement of an Insolvency or Liquidation Proceeding,
      accrue) after the commencement of an Insolvency or Liquidation Proceeding in
      accordance with and at the rate specified in the relevant Senior Lender
      Documents whether or not the claim for such interest or expenses is allowed
      or
      allowable as a claim in such Insolvency or Liquidation Proceeding.

     

    “Senior
      Lender Collateral”
shall
      mean all of the assets of any Grantor, whether real, personal or mixed, with
      respect to which a Lien is granted as security for any Senior Lender
      Claim.

     

    “Senior
      Lender Documents”
shall
      mean the Credit Agreement, the Senior Collateral Documents, the Senior
      Intercreditor Agreement and each of the other agreements, documents and
      instruments (including each agreement, document or instrument providing for
      or
      evidencing a Senior Lender Hedging Obligation or Senior Lender Cash Management
      Obligation) providing for, evidencing or securing any Senior Lender Claim,
      including, without limitation, any Obligation under the Credit Agreement and
      any
      other related document or instrument executed or delivered pursuant to any
      such
      document at any time or otherwise evidencing or securing any Indebtedness
      arising under any such document.

     


    
      
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    “Senior
      Lender Hedging Obligations”
shall
      mean any Obligations under Secured Hedge Agreements.

     

    “Senior
      Lenders”
shall
      mean the Persons holding Senior Lender Claims, including the First Lien
      Agents.

     

    “Subsidiary”
shall
      mean any “Subsidiary” of the Company as defined in the Credit Agreement.


     

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

     

    “Trustee”
shall
      mean Wells Fargo Bank, N.A., in its capacity as trustee under the Second
      Priority Senior Secured Notes Indenture and as collateral agent under the
      Noteholder Collateral Documents, and its permitted successors.

     

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

     

    “Uniform
      Commercial Code”
or
      “UCC”
shall
      mean the Uniform Commercial Code as from time to time in effect in the State
      of
      New York.

     

    1.2.
      Terms
      Generally.
      The
      definitions of terms herein shall apply equally to the singular and plural
      forms
      of the terms defined. Whenever the context may require, any pronoun shall
      include the corresponding masculine, feminine and neuter forms. The words
“include,” “includes” and “including” shall be deemed to be followed by the
      phrase “without limitation”. The word “will” shall be construed to have the same
      meaning and effect as the word “shall”. 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
      in accordance with this Agreement, (b) any reference herein to any Person shall
      be construed to include such Person’s successors and assigns, (c) the words
“herein,” “hereof” and “hereunder,” and words of similar import, shall be
      construed to refer to this Agreement in its entirety and not to any particular
      provision hereof, (d) all references herein to Sections shall be construed
      to
      refer to Sections of this Agreement and (e) the words “asset” and “property”
shall be construed to have the same meaning and effect and to refer to any
      and
      all tangible and intangible assets and properties, including cash, securities,
      accounts and contract rights.

     

    Section
      2. Lien Priorities.

     


    
      
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    2.1.
      Subordination
      of Liens.
      Notwithstanding (i) the date, time, method, manner or order of filing or
      recordation of any document or instrument or grant, attachment or perfection
      (including any defect or deficiency or alleged defect or deficiency in any
      of
      the foregoing) of any Liens granted to the Second Priority Secured Parties
      on
      the Common Collateral or of any Liens granted to any First Lien Agent or Senior
      Lenders on the Common Collateral, (ii) any provision of the UCC, the Bankruptcy
      Code, or any applicable law or the Second Priority Documents or the Senior
      Lender Documents, (iii) whether any First Lien Agent, either directly or through
      agents, holds possession of, or has control over, all or any part of the Common
      Collateral, (iv) the fact that any such Liens may be subordinated, voided,
      avoided, invalidated or lapsed or (v) any other circumstance of any kind or
      nature whatsoever, each Second Priority Agent, on behalf of itself and each
      applicable Second Priority Secured Party, hereby agrees that: (a) any Lien
      on
      the Common Collateral securing any Senior Lender Claims now or hereafter held
      by
      or on behalf of any First Lien Agent or any Senior Lenders or any agent or
      trustee therefor regardless of how acquired, whether by grant, statute,
      operation of law, subrogation or otherwise, shall have priority over and be
      senior in all respects and prior to any Lien on the Common Collateral securing
      any Second Priority Claims and (b) any Lien on the Common Collateral securing
      any Second Priority Claims now or hereafter held by or on behalf of the Trustee
      or any Second Priority Secured Parties or any agent or trustee therefor
      regardless of how acquired, whether by grant, statute, operation of law,
      subrogation or otherwise, shall be junior and subordinate in all respects to
      all
      Liens on the Common Collateral securing any Senior Lender Claims. All Liens
      on
      the Common Collateral securing any Senior Lender Claims shall be and remain
      senior in all respects and prior to all Liens on the Common Collateral securing
      any Second Priority Claims for all purposes, whether or not such Liens securing
      any Senior Lender Claims are subordinated to any Lien securing any other
      obligation of the Company, any other Grantor or any other Person.

     

    


    2.2.
      Prohibition
      on Contesting Liens.
      Each
      Second Priority Agent, for itself and on behalf of each applicable Second
      Priority Secured Party, and each First Lien Agent, for itself and on behalf
      of
      each Senior Lender, agrees that it shall not (and hereby waives any right to)
      take any action to challenge, contest or support any other Person in contesting
      or challenging, directly or indirectly, in any proceeding (including any
      Insolvency or Liquidation Proceeding), the validity, perfection, priority or
      enforceability of (a) a Lien securing any Senior Lender Claims held (or
      purported to be held) by or on behalf of any First Lien Agent or any of the
      Senior Lenders or any agent or trustee therefor in any Senior Lender Collateral
      or (b) a Lien securing any Second Priority Claims held (or purported to be
      held)
      by or on behalf of any Second Priority Secured Party in the Common Collateral,
      as the case may be; provided, however, that nothing in this Agreement shall
      be
      construed to prevent or impair the rights of any First Lien Agent or any Senior
      Lender to enforce this Agreement (including the priority of the Liens securing
      the Senior Lender Claims as provided in Section 2.1) or any of the Senior Lender
      Documents.

     

    2.3.
      No
      New
      Liens.
      So long
      as the Discharge of Senior Lender Claims has not occurred, each Second Priority
      Agent agrees, for itself and on behalf of each applicable Second Priority
      Secured Party, whether or not any Insolvency or Liquidation Proceeding has
      been
      commenced by or against the Company or any other Grantor, that it shall not
      acquire or hold any Lien on any assets of the Company or any other Grantor
      securing any Second Priority Claims that are not also subject to the
      first-priority Lien in respect of the Senior Lender Claims under
      the

     


    
      
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    Senior
      Lender Documents. If any Second Priority Agent or any Second Priority Secured
      Party shall (nonetheless and in breach hereof) acquire or hold any Lien on
      any
      collateral that is not also subject to the first-priority Lien in respect of
      the
      Senior Lender Claims under the Senior Lender Documents, then such Second
      Priority Agent shall, without the need for any further consent of any party
      and
      notwithstanding anything to the contrary in any other document, be deemed to
      also hold and have held such lien for the benefit of the First Lien Agents
      as
      security for the Senior Lender Claims (subject to the lien priority and other
      terms hereof) and shall promptly notify each First Lien Agent in writing of
      the
      existence of such Lien and in any event take such actions as may be requested
      by
      any First Lien Agent to assign or release such Liens to the First Lien Agents
      (and/or each of its designee) as security for the applicable Senior Lender
      Claims.

     

    2.4.
      Perfection
      of Liens.
      Neither
      the First Lien Agents nor the Senior Lenders shall be responsible for perfecting
      and maintaining the perfection of Liens with respect to the Common Collateral
      for the benefit of the Second Priority Agents and the Second Priority Secured
      Parties. The provisions of this Agreement are intended solely to govern the
      respective Lien priorities as between the Senior Lenders and the Second Priority
      Secured Parties and shall not impose on the First Lien Agents, the Second
      Priority Agents, the Second Priority Secured Parties or the Senior Lenders
      or
      any agent or trustee therefor any obligations in respect of the disposition
      of
      proceeds of any Common Collateral which would conflict with prior perfected
      claims therein in favor of any other Person or any order or decree of any court
      or governmental authority or any applicable law.

     

    2.5.
      Waiver
      of Marshalling.
      Until
      the Discharge of the Senior Lender Claims, the Second Priority Agent, on behalf
      of itself and the Second Priority Secured Parties, agrees not to assert and
      hereby waives, to the fullest extent permitted by law, any right to demand,
      request, plead or otherwise assert or otherwise claim the benefit of, any
      marshalling, appraisal, valuation or other similar right that may otherwise
      be
      available under applicable law with respect to the Common Collateral or any
      other similar rights a junior secured creditor may have under applicable
      law.

     

    Section
      3. Enforcement.

     

    3.1.
      Exercise
      of Remedies.

     

    (a)
      So
      long as the Discharge of Senior Lender Claims has not occurred, whether or
      not
      any Insolvency or Liquidation Proceeding has been commenced by or against the
      Company or any other Grantor, (i) no Second Priority Agent or any Second
      Priority Secured Party will (x) exercise or seek to exercise any rights or
      remedies (including setoff or recoupment) with respect to any Common Collateral
      or any other security in respect of any applicable Second Priority Claims,
      or
      exercise any right under any lockbox agreement, control agreement, landlord
      waiver or bailee’s letter or similar agreement or arrangement, or institute any
      action or proceeding with respect to such rights or remedies (including any
      action of foreclosure), (y) contest, protest or object to any foreclosure
      proceeding or action brought with respect to the Common Collateral or any other
      collateral by any First Lien Agent or any Senior Lender in respect of the Senior
      Lender Claims, the exercise of any right by any First Lien Agent or any Senior
      Lender (or any agent or sub-agent on their behalf) in respect of the Senior
      Lender Claims


    
      
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    under
      any
      lockbox agreement, control agreement, landlord waiver or bailee’s letter or
      similar agreement or arrangement to which any Second Priority Agent or any
      Second Priority Secured Party either is a party or may have rights as a third
      party beneficiary, or any other exercise by any such party, of any rights and
      remedies relating to the Common Collateral or any other collateral under the
      Senior Lender Documents or otherwise in respect of Senior Lender Claims, or
      (z)
      object to the forbearance by the Senior Lenders from bringing or pursuing any
      foreclosure proceeding or action or any other exercise of any rights or remedies
      relating to the Common Collateral or any other collateral in respect of Senior
      Lender Claims and (ii) except as otherwise provided herein, each First Lien
      Agent and the Senior Lenders shall have the exclusive right to enforce rights,
      exercise remedies (including setoff and the right to credit bid their debt)
      and
      make determinations regarding the release, disposition or restrictions with
      respect to the Common Collateral without any consultation with or the consent
      of
      any Second Priority Agent or any Second Priority Secured Party; provided,
      however, that (A) in any Insolvency or Liquidation Proceeding commenced by
      or
      against the Company or any other Grantor, each Second Priority Agent may file
      a
      proof of claim or statement of interest with respect to the applicable Second
      Priority Claims and (B) each Second Priority Agent may take any action (not
      adverse to the prior Liens on the Common Collateral securing the Senior Lender
      Claims, or the rights of either First Lien Agent or the Senior Lenders to
      exercise remedies in respect thereof) in order to create, prove, perfect,
      preserve or protect (but not enforce) its rights in, and perfection and priority
      of its Lien on, the Common Collateral. In exercising rights and remedies with
      respect to the Senior Lender Collateral, each First Lien Agent and the Senior
      Lenders may enforce the provisions of the Senior Lender Documents and exercise
      remedies thereunder, all in such order and in such manner as they may determine
      in the exercise of their sole discretion. Such exercise and enforcement shall
      include the rights of an agent appointed by them to sell or otherwise dispose
      of
      Common Collateral or other collateral upon foreclosure, to incur expenses in
      connection with such sale or disposition, and to exercise all the rights and
      remedies of a secured lender under the uniform commercial code of any applicable
      jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable
      jurisdiction.

    


    (b)
      So
      long as the Discharge of Senior Lender Claims has not occurred, each Second
      Priority Agent, on behalf of itself and each applicable Second Priority Secured
      Party, agrees that it will not take or receive any Common Collateral or other
      collateral or any proceeds of Common Collateral or other collateral in
      connection with the exercise of any right or remedy (including setoff or
      recoupment) with respect to any Common Collateral or other collateral in respect
      of the applicable Second Priority Claims. Without limiting the generality of
      the
      foregoing, unless and until the Discharge of Senior Lender Claims has occurred,
      except as expressly provided in the proviso in clause (ii) of Section 3.1(a),
      the sole right of the Second Priority Agents and the Second Priority Secured
      Parties with respect to the Common Collateral or any other collateral is to
      hold
      a Lien on the Common Collateral or such other collateral in respect of the
      applicable Second Priority Claims pursuant to the Second Priority Documents,
      as
      applicable, for the period and to the extent granted therein and to receive
      a
      share of the proceeds thereof, if any, after the Discharge of Senior Lender
      Claims has occurred.

    


    (c)
      Subject to the proviso in clause (ii) of Section 3.1(a) above, (i) each Second
      Priority Agent, for itself and on behalf of each applicable Second Priority
      Secured Party, agrees that no Second Priority Agent or any Second Priority
      Secured Party will take any action that would


    
      
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    hinder
      any exercise of remedies undertaken by any First Lien Agent or the Senior
      Lenders with respect to the Common Collateral or any other collateral under
      the
      Senior Loan Documents, including any sale, lease, exchange, transfer or other
      disposition of the Common Collateral or such other collateral, whether by
      foreclosure or otherwise, and (ii) each Second Priority Agent, for itself and
      on
      behalf of each applicable Second Priority Secured Party, hereby waives any
      and
      all rights it or any Second Priority Secured Party may have as a junior lien
      creditor or otherwise to object to the manner in which any First Lien Agent
      or
      the Senior Lenders seek to enforce or collect the Senior Lender Claims or the
      Liens granted in any of the Senior Lender Collateral, regardless of whether
      any
      action or failure to act by or on behalf of any First Lien Agent or Senior
      Lenders is adverse to the interests of the Second Priority Secured
      Parties.

    


    (d)
      Each
      Second Priority Agent hereby acknowledges and agrees that no covenant, agreement
      or restriction contained in any applicable Second Priority Document shall be
      deemed to restrict in any way the rights and remedies of any First Lien Agent
      or
      the Senior Lenders with respect to the Senior Lender Collateral as set forth
      in
      this Agreement and the Senior Lender Documents.

     

    3.2.
      Cooperation.
      Subject
      to the proviso in clause (ii) of Section 3.1(a), each Second Priority Agent,
      on
      behalf of itself and each applicable Second Priority Secured Party, agrees
      that,
      unless and until the Discharge of Senior Lender Claims has occurred, it will
      not
      commence, or join with any Person (other than the Senior Lenders and any First
      Lien Agent upon the request thereof) in commencing, any enforcement, collection,
      execution, levy or foreclosure action or proceeding with respect to any Lien
      held by it in the Common Collateral or any other collateral under any of the
      applicable Second Priority Documents or otherwise in respect of the applicable
      Second Priority Claims relating to the Common Collateral.

     

    3.3
      Actions
      Upon Breach.
      If any
      Second Priority Secured Party, in contravention of the terms of this Agreement,
      in any way take, attempt to or threaten to take any action with respect to
      the
      Common Collateral (including, without limitation, any attempt to realize upon
      or
      enforce any remedy with respect to this Agreement), this Agreement shall create
      an irrebutable presumption and admission by such Second Party Secured Party
      that
      relief against such Second Priority Secured Party by injunction, specific
      performance and/or other appropriate equitable relief is necessary to prevent
      irreparable harm to the Senior Lenders, it being understood and agreed by the
      Trustee on behalf of each Second Priority Secured Party that (i) the Senior
      Lenders’ damages from its actions may at that time be difficult to ascertain and
      may be irreparable, and (ii) each Second Priority Secured Party waives any
      defense that the Grantors and/or the Senior Lenders cannot demonstrate damage
      and/or be made whole by the awarding of damages.

     

    Section
      4. Payments.

     

    4.1.
      Application
      of Proceeds.
      So long
      as the Discharge of Senior Lender Claims has not occurred, the Common Collateral
      and any other collateral in respect of the Second Priority Claims or proceeds
      thereof received in connection with the sale or other disposition of, or
      collection on, such Common Collateral or other collateral upon the exercise
      of
      remedies as a secured party, shall be applied by the First Lien Agents to the
      Senior Lender Claims in such order as specified in the relevant Senior Lender
      Documents until the Discharge of Senior Lender


    
      
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    Claims
      has occurred. Upon the Discharge of Senior Lender Claims, subject to Section
      5.7
      hereof, each of the First Lien Agents shall deliver promptly to the Second
      Priority Designated Agent any Common Collateral or proceeds thereof held by
      it
      in the same form as received, with any necessary endorsements or as a court
      of
      competent jurisdiction may otherwise direct to be applied by the Second Priority
      Designated Agent ratably to the Second Priority Claims in such order as
      specified in the Second Priority Documents.

    


    4.2.
      Payments
      Over.
      Any
      Common Collateral or other collateral in respect of the Second Priority Claims
      or proceeds thereof received by any Second Priority Agent or any Second Priority
      Secured Party in connection with the exercise of any right or remedy (including
      setoff or recoupment) relating to the Common Collateral or such other collateral
      prior to the Discharge of Senior Lender Claims shall be segregated and held
      in
      trust for the benefit of and forthwith paid over to any First Lien Agent (and/or
      its designees) for the benefit of the Senior Lenders in the same form as
      received, with any necessary endorsements or as a court of competent
      jurisdiction may otherwise direct. The First Lien Agents are each hereby
      individually authorized to make any such endorsements as agent for any Second
      Priority Agent or any such Second Priority Secured Party. This authorization
      is
      coupled with an interest and is irrevocable.

     

    Section
      5. Other Agreements.

     

    5.1.
      Releases.

     

    (a)
      If,
      at any time any Grantor or the holder of any Senior Lender Claim delivers notice
      to each Second Priority Agent that any specified Common Collateral (including
      all or substantially all of the equity interests of a Grantor or any of its
      Subsidiaries) (including for such purpose, in the case of the sale of equity
      interests in any Subsidiary, any Common Collateral held by such Subsidiary
      or
      any direct or indirect Subsidiary thereof) is (A) sold, transferred or otherwise
      disposed of:

     

    (i)
      by
      the owner of such Common Collateral in a transaction permitted under each Credit
      Agreement, the Second Priority Senior Secured Notes Indenture and each other
      Second Priority Document (if any); or

    


    (ii)
      during the existence of any Event of Default under (and as defined in) any
      Credit Agreement to the extent that either of the First Lien Agents has
      consented to such sale, transfer or disposition; or 

    


    (B)
      is
      otherwise released as permitted by each Credit Agreement,

     

    then
      (whether or not any Insolvency or Liquidation Proceeding is pending at the
      time)
      the Liens in favor of the Second Priority Secured Parties upon such Collateral
      will automatically be released and discharged as and when, but only to the
      extent, such Liens on such Collateral securing Senior Lender Claims are released
      and discharged. Upon delivery to each Second Priority Agent of a notice from
      any
      First Lien Agent stating that any release of Liens securing or supporting the
      Senior Lender Claims has become effective (or shall become effective upon each
      Second Priority Agent’s release) (whether in connection with a sale of such
      assets by the relevant Grantor pursuant to the preceding sentence or otherwise),
      each Second Priority Agent will

     


    
      
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    promptly
      execute and deliver such instruments, releases, termination statements or other
      documents confirming such release on customary terms at the expense of the
      Company. In the case of the sale of all or substantially all of the capital
      stock of a Grantor or any of its Subsidiaries, the guarantee in favor of the
      Second Priority Secured Parties, if any, made by such Grantor or Subsidiary
      will
      automatically be released and discharged as and when, but only to the extent,
      the guarantee by such Grantor or Subsidiary of Senior Lender Claims is released
      and discharged.

     

    (b)
      Each
      Second Priority Agent, for itself and on behalf of each applicable Second
      Priority Secured Party, hereby irrevocably constitutes and appoints each First
      Lien Agent and any officer or agent of such First Lien Agent, with full power
      of
      substitution, as its true and lawful attorney-in-fact with full irrevocable
      power and authority in the place and stead of each Second Priority Agent or
      such
      holder or in such First Lien Agent’s own name, from time to time in such First
      Lien Agent’s discretion, for the purpose of carrying out the terms of this
      Section 5.1, to take any and all appropriate action and to execute any and
      all
      documents and instruments that may be necessary or desirable to accomplish
      the
      purposes of this Section 5.1, including any termination statements, endorsements
      or other instruments of transfer or release.

    


    (c)
      Unless and until the Discharge of Senior Lender Claims has occurred, each Second
      Priority Agent, for itself and on behalf of each applicable Second Priority
      Secured Party, hereby consents to the application, whether prior to or after
      a
      default, of proceeds of Common Collateral or other collateral to the repayment
      of Senior Lender Claims pursuant to the Credit Agreement; provided that nothing
      in this Section 5.1(c) shall be construed to prevent or impair the rights of
      the
      Second Priority Agents or the Second Priority Secured Parties to receive
      proceeds in connection with the Second Priority Claims not otherwise in
      contravention of this Agreement.

     

    5.2.
      Insurance.
      Unless
      and until the Discharge of Senior Lender Claims has occurred, each First Lien
      Agent and the Senior Lenders shall have the sole and exclusive right, subject
      to
      the rights of the Grantors under the Senior Lender Documents, to adjust
      settlement for any insurance policy covering the Common Collateral or any other
      collateral in respect of the Second Priority Claims in the event of any loss
      thereunder and to approve any award granted in any condemnation or similar
      proceeding affecting the Common Collateral or such other collateral. Unless
      and
      until the Discharge of Senior Lender Claims has occurred, all proceeds of any
      such policy and any such award if in respect of the Common Collateral or such
      other collateral shall be paid (a) first, prior to the occurrence of the
      Discharge of Senior Lender Claims, to the First Lien Agents for the benefit
      of
      Senior Lenders pursuant to the terms of the Senior Lender Documents and the
      Senior Intercreditor Agreement, (b) second, after the occurrence of the
      Discharge of Senior Lender Claims, to the Second Priority Agents for the benefit
      of the Second Priority Secured Parties pursuant to the terms of the applicable
      Second Priority Documents and (c) third, if no Second Priority Obligations
      are
      outstanding, to the owner of the subject property, such other person as may
      be
      entitled thereto or as a court of competent jurisdiction may otherwise direct.
      If any Second Priority Agent or any Second Priority Secured Party shall, at
      any
      time, receive any proceeds of any such insurance policy or any such award in
      contravention of this Agreement, it shall pay such proceeds over to any First
      Lien Agent in accordance with the terms of Section 4.2.

     

    5.3.
      Amendments
      to Second Priority Collateral Documents.

     


    
      
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    (a)
      So
      long as the Discharge of Senior Lender Claims has not occurred, without the
      prior written consent of the First Lien Agents and the Required Lenders, no
      Second Priority Collateral Document may be amended, supplemented or otherwise
      modified or entered into to the extent such amendment, supplement or
      modification, or the terms of any new Second Priority Collateral Document,
      would
      be prohibited by or inconsistent with any of the terms of this Agreement. Each
      Second Priority Agent agrees that each applicable Second Priority Collateral
      Document shall include the following language (or language to similar effect
      approved by the First Lien Agents):

     

    


    “Notwithstanding
      anything herein to the contrary, (i) the liens and security interests granted
      to
      the [applicable Second Priority Agent] pursuant to this agreement are expressly
      subject and subordinate to the liens and security interests granted to Bank
      of
      America, N.A. and Credit Suisse, Cayman Islands Branch, as collateral agents
      (and their respective permitted successors), for the benefit of the lenders
      referred to below, pursuant to the Guarantee and Collateral Agreement dated
      as
      of April 3, 2007 (as amended, amended and restated, supplemented or otherwise
      modified from time to time), from the Company and the other “Pledgors” referred
      to therein, in favor of Bank of America, N.A. and Credit Suisse, Cayman Islands
      Branch, as collateral agents, and (ii) the exercise of any right or remedy
      by
      the [applicable Second Priority Agent] hereunder is subject to the limitations
      and provisions of the Intercreditor Agreement dated as of April 3, 2007 (as
      amended, restated, supplemented or otherwise modified from time to time, the
      “Intercreditor Agreement”), by and among Credit Suisse, Cayman Islands Branch,
      and Bank of America, N.A., in their capacities as First Lien Agents, Holdings,
      the Company and the subsidiaries party thereto. In the event of any conflict
      between the terms of the Intercreditor Agreement and the terms of this
      agreement, the terms of the Intercreditor Agreement shall govern.”

    


    (b)
      In
      the event that the First Lien Agents or the Senior Lenders under the Credit
      Agreement or, if there is no Credit Agreement, any other Senior Lenders, enter
      into any amendment, waiver or consent in respect of or replace any of the Senior
      Collateral Document for the purpose of adding to, or deleting from, or waiving
      or consenting to any departures from any provisions of, any Senior Collateral
      Document or changing in any manner the rights of the First Lien Agents, the
      Senior Lenders, the Company or any other Grantor thereunder (including the
      release of any Liens in Senior Lender Collateral), then such amendment, waiver
      or consent shall apply automatically to any comparable provision of each
      Comparable Second Priority Collateral Document without the consent of any Second
      Priority Agent or any Second Priority Secured Party and without any action
      by
      any Second Priority Agent, the Company or any other Grantor; provided, that
      such
      amendment, waiver or consent does not materially adversely affect the rights
      of
      the Second Priority Secured Parties or the interests of the Second Priority
      Secured Parties in the Second Priority Collateral and not the other creditors
      of
      the Company or such Grantor, as the case may be, that have a security interest
      in the affected collateral in a like or similar manner (without regard to the
      fact that the Lien of such Senior Collateral Document is senior to the Lien
      of
      the Comparable Second Priority Collateral Document). Either First Lien Agent
      may
      give written notice of such amendment, waiver or consent to each Second Priority
      Agent; provided that the failure to give such notice shall not affect the
      effectiveness of such amendment, waiver or consent with respect to the
      provisions of any Second Priority Collateral Document as set forth in this
      Section 5.3(b).


    
      
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    (c)
      Anything contained herein to the contrary notwithstanding, until the Discharge
      of Senior Lender Claims has occurred, no Second Priority Collateral Document
      may
      be amended, supplemented or otherwise modified or entered into without the
      prior
      written consent of the First Lien Agents and, without limitation on the
      foregoing, no Second Priority Collateral Document shall be entered into unless
      the collateral covered thereby is also subject to a perfected first-priority
      interest in favor of the First Lien Agents for the benefit of the Senior Lenders
      pursuant to the Senior Collateral Documents.

     

    5.4.
      Rights
      As Unsecured Creditors.
      Notwithstanding anything to the contrary in this Agreement, the Second Priority
      Agents and the Second Priority Secured Parties may exercise rights and remedies
      as an unsecured creditor against the Company or any Subsidiary that has
      guaranteed the Second Priority Claims in accordance with the terms of the
      applicable Second Priority Documents and applicable law, in each case to the
      extent not inconsistent with the provisions of this Agreement. Nothing in this
      Agreement shall prohibit the receipt by any Second Priority Agent or any Second
      Priority Secured Party of the required payments of interest and principal so
      long as such receipt is not the direct or indirect result of (a) the exercise
      by
      any Second Priority Agent or any Second Priority Secured Party of rights or
      remedies as a secured creditor in respect of Common Collateral or other
      collateral or (b) enforcement in contravention of this Agreement of any Lien
      in
      respect of Second Priority Claims held by any of them. In the event any Second
      Priority Agent or any Second Priority Secured Party becomes a judgment lien
      creditor or other secured creditor in respect of Common Collateral or other
      collateral as a result of its enforcement of its rights as an unsecured creditor
      in respect of Second Priority Claims or otherwise, such judgment or other lien
      shall be subordinated to the Liens securing Senior Lender Claims on the same
      basis as the other Liens securing the Second Priority Claims are so subordinated
      to such Liens securing Senior Lender Claims under this Agreement. Nothing in
      this Agreement impairs or otherwise adversely affects any rights or remedies
      the
      First Lien Agents or the Senior Lenders may have with respect to the Senior
      Lender Collateral.

     

    5.5.
      First
      Lien Agents as Gratuitous Bailees for Perfection.

     

    (a)
      Each
      First Lien Agent agree to hold the Pledged Collateral that is part of the Common
      Collateral that is in its possession or control (or in the possession or control
      of its agents or bailees) as gratuitous bailee for each Second Priority Agent
      and any assignee solely for the purpose of perfecting the security interest
      granted in such Pledged Collateral pursuant to the Second Priority Collateral
      Agreements, subject to the terms and conditions of this Section 5.5 (such
      bailment being intended, among other things, to satisfy the requirements of
      Sections 8-106(d)(3), 8-301(a)(2) and 9-313(c) of the UCC).

    


    (b)
      In
      the event that any First Lien Agent (or its agent or bailees) has Lien filings
      against Intellectual Property that is part of the Common Collateral that are
      necessary for the perfection of Liens in such Common Collateral, such First
      Lien
      Agent agrees to hold such Liens as gratuitous bailee for each Second Priority
      Agent and any assignee solely for the purpose of perfecting the security
      interest granted in such Liens pursuant to the Second Priority Collateral
      Agreements, subject to the terms and conditions of this Section
      5.5.


    
      
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    (c)
      Except as otherwise specifically provided herein (including Sections 3.1 and
      4.1), until the Discharge of Senior Lender Claims has occurred, any First Lien
      Agent shall be entitled to deal with the Pledged Collateral in accordance with
      the terms of the Senior Lender Documents as if the Liens under the Second
      Priority Collateral Documents did not exist. The rights of the Second Priority
      Agents and the Second Priority Secured Parties with respect to such Pledged
      Collateral shall at all times be subject to the terms of this
      Agreement.

    


    (d)
      The
      First Lien Agents shall have no obligation whatsoever to any Second Priority
      Agent or any Second Priority Secured Party to assure that the Pledged Collateral
      is genuine or owned by the Grantors or to protect or preserve rights or benefits
      of any Person or any rights pertaining to the Common Collateral except as
      expressly set forth in this Section 5.5. The duties or responsibilities of
      the
      First Lien Agents under this Section 5.5 shall be limited solely to holding
      the
      Pledged Collateral as gratuitous bailee for each Second Priority Agent for
      purposes of perfecting the Lien held by the Second Priority Secured
      Parties.

    


    (e)
      The
      First Lien Agents shall not have by reason of the Second Priority Collateral
      Documents or this Agreement or any other document a fiduciary relationship
      in
      respect of any Second Priority Agent or any Second Priority Secured Party and
      the Second Priority Agents and the Second Priority Secured Parties hereby waive
      and release the First Lien Agents from all claims and liabilities arising
      pursuant to the First Lien Agents’ role under this Section 5.5, as agent and
      gratuitous bailee with respect to the Common Collateral.

    


    (f)
      Upon
      the Discharge of Senior Lender Claims, the First Lien Agents shall deliver
      to
      the Second Priority Designated Agent, to the extent that it is legally permitted
      to do so, the remaining Pledged Collateral (if any) together with any necessary
      endorsements (or otherwise allow the Second Priority Designated Agent to obtain
      control of such Pledged Collateral) or as a court of competent jurisdiction
      may
      otherwise direct. The Company shall take such further action as is required
      to
      effectuate the transfer contemplated hereby and shall indemnify the First Lien
      Agents for loss or damage suffered by any First Lien Agent as a result of such
      transfer except for loss or damage suffered by any First Lien Agent as a result
      of its own willful misconduct, gross negligence or bad faith. The First Lien
      Agents have no obligation to follow instructions from any Second Priority Agent
      in contravention of this Agreement.

    


    (g)
      Neither the First Lien Agents nor the Senior Lenders shall be required to
      marshal any present or future collateral security for the Company’s or its
      Subsidiaries’ obligations to the First Lien Agents or the Senior Lenders under
      the Credit Agreement, the Senior Collateral Documents or the Senior
      Intercreditor Agreement or any assurance of payment in respect thereof or to
      resort to such collateral security or other assurances of payment in any
      particular order, and all of their rights in respect of such collateral security
      or any assurance of payment in respect thereof shall be cumulative and in
      addition to all other rights, however existing or arising.

    


    5.6.
      Second
      Priority Designated Agent as Gratuitous Bailee for Perfection.

    


    (a)
      Upon
      the Discharge of Senior Lender Claims, the Second Priority Designated Agent
      agrees to hold the Pledged Collateral that is part of the Common Collateral
      in
      its possession or control (or in the possession or control of its agents or
      bailees) as gratuitous bailee for the other


    
      
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    Second
      Priority Agents and any assignee solely for the purpose of perfecting the
      security interest granted in such Pledged Collateral pursuant to the applicable
      Second Priority Collateral Agreement, subject to the terms and conditions of
      this Section 5.6.

    


    (b)
      In
      the event that the Second Priority Designated Agent (or its agent or bailees)
      has Lien filings against Intellectual Property that is part of the Common
      Collateral that are necessary for the perfection of Liens in such Common
      Collateral, upon the Discharge of Senior Lender Claims, the Second Priority
      Designated Agent agrees to hold such Liens as gratuitous bailee for the other
      Second Priority Agents and any assignee solely for the purpose of perfecting
      the
      security interest granted in such Liens pursuant to the applicable Second
      Priority Collateral Agreement, subject to the terms and conditions of this
      Section 5.6.

    


    (c)
      The
      Second Priority Designated Agent, in its capacity as gratuitous bailee, shall
      have no obligation whatsoever to the other Second Priority Agents to assure
      that
      the Pledged Collateral is genuine or owned by the Grantors or to protect or
      preserve rights or benefits of any Person or any rights pertaining to the Common
      Collateral except as expressly set forth in this Section 5.6. The duties or
      responsibilities of the Second Priority Designated Agent under this Section
      5.6
      upon the Discharge of Senior Lender Claims shall be limited solely to holding
      the Pledged Collateral as gratuitous bailee for the other Second Priority Agents
      for purposes of perfecting the Lien held by the applicable Second Priority
      Secured Parties.

    


    (d)
      The
      Second Priority Designated Agent shall not have by reason of the Second Priority
      Collateral Documents or this Agreement or any other document a fiduciary
      relationship in respect of the other Second Priority Agents (or the Second
      Priority Secured Parties for which such other Second Priority Agents are agents)
      and the other Second Priority Agents hereby waive and release the Second
      Priority Designated Agent from all claims and liabilities arising pursuant
      to
      the Second Priority Designated Agent’s role under this Section 5.6, as agent and
      gratuitous bailee with respect to the Common Collateral.

    


    (e)
      In
      the event that the Second Priority Designated Agent shall cease to be so
      designated the Second Priority Designated Agent pursuant to the definition
      of
      such term, the then Second Priority Designated Agent shall deliver to the
      successor Second Priority Designated Agent, to the extent that it is legally
      permitted to do so, the remaining Pledged Collateral (if any), together with
      any
      necessary endorsements (or otherwise allow the successor Second Priority
      Designated Agent to obtain control of such Pledged Collateral) or as a court
      of
      competent jurisdiction may otherwise direct, and such successor Second Priority
      Designated Agent shall perform all duties of the Second Priority Designated
      Agent as set forth herein. The Company shall take such further action as is
      required to effectuate the transfer contemplated hereto and shall indemnify
      the
      Second Priority Designated Agent for loss or damage suffered by the Second
      Priority Designated Agent as a result of such transfer except for loss or damage
      suffered by the Second Priority Designated Agent as a result of its own willful
      misconduct, gross negligence or bad faith. The Second Priority Designated Agent
      has no obligation to follow instructions from the successor Second Priority
      Designated Agent in contravention of this Agreement.

     

    5.7.
      Release
      Upon Discharge of Senior Lender Claims; No Release If Event of Default;
      Reinstatement.


    
      
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    (a) Except
      as
      otherwise provided in clause (b) of this Section 5.7, upon the Discharge of
      Senior Lender Claims and the concurrent release of the Liens securing Senior
      Lender Claims, the Liens in favor of the Second Priority Secured Parties shall
      automatically be released and discharged.

    


    (b)
       Notwithstanding
      any other provisions contained in this Agreement, if an Event of Default (as
      defined in the Second Priority Senior Secured Notes Indenture or any other
      Second Priority Document, as applicable) exists on the date of Discharge of
      Senior Lender Claims, the Second Priority Liens on the Second Priority
      Collateral securing the Second Priority Claims relating to such Event of Default
      will not be released, except to the extent such Second Priority Collateral
      or
      any portion thereof was disposed of in order to repay Senior Lender Claims
      secured by such Second Priority Collateral, and thereafter the applicable Second
      Priority Agent will have the right to foreclose upon such Second Priority
      Collateral (but in such event, the Liens on such Second Priority Collateral
      securing the applicable Second Priority Claims will be released when such Event
      of Default and all other Events of Default under the Second Priority Senior
      Secured Notes Indenture or any other Second Priority Document, as applicable,
      cease to exist).

    


    (c) If,
      at
      any time after the Discharge of Senior Lender Claims has occurred, the Company
      incurs and designates any Senior Lender Claims, then such Discharge of Senior
      Lender Claims shall automatically be deemed not to have occurred for all
      purposes of this Agreement (other than with respect to any actions taken prior
      to the date of such designation as a result of the occurrence of such first
      Discharge of Senior Lender Claims), and the applicable agreement governing
      such
      Senior Lender Claims shall automatically be treated as the Credit Agreement
      for
      all purposes of this Agreement, including for purposes of the Lien priorities
      and rights in respect of Common Collateral set forth herein and the granting
      by
      the First Lien Agents of amendments, waivers and consents hereunder. Upon
      receipt of notice of such designation (including the identity of any new First
      Lien Agent), each Second Priority Agent shall promptly (i) enter into such
      documents and agreements (at the expense of the Company), including amendments
      or supplements to this Agreement, as the Company or such new First Lien Agent
      shall reasonably request in writing in order to provide the new First Lien
      Agent
      the rights of the First Lien Agents contemplated hereby and (ii) to the extent
      then held by any Second Priority Agent, deliver to either First Lien Agent
      the
      Pledged Collateral that is Common Collateral together with any necessary
      endorsements (or otherwise allow such First Lien Agent to obtain possession
      or
      control of such Pledged Collateral).

     

    Section
      6. Insolvency or Liquidation Proceedings.

     

    6.1.
      Financing
      Issues.
      If the
      Company or any other Grantor shall be subject to any Insolvency or Liquidation
      Proceeding and any First Lien Agent shall desire to permit the use of cash
      collateral or to permit the Company or any other Grantor to obtain financing
      under Section 363 or Section 364 of Title 11 of the United States Code or any
      similar provision in any Bankruptcy Law (“DIP
      Financing”),
      then
      each Second Priority Agent, on behalf of itself and each applicable Second
      Priority Secured Party, agrees that it will raise no objection to, and will
      not
      support any objection to, and will not otherwise contest (a) such use of cash
      collateral or DIP Financing and will not request adequate protection or any
      other relief in connection therewith (except to the extent permitted by Section
      6.3) and, to the extent the Liens securing the Senior Lender Claims under the
      Credit Agreement or, if no Credit Agreement exists, under the
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    Senior
      Lender Documents are subordinated or pari passu with such DIP Financing, will
      subordinate its Liens in the Common Collateral and any other collateral to
      such
      DIP Financing (and all Obligations relating thereto) on the same basis as the
      other Liens securing the Second Priority Claims are so subordinated to Liens
      securing Senior Lender Claims under this Agreement, (b) any motion for relief
      from the automatic stay or from any injunction against foreclosure or
      enforcement in respect of Senior Lender Claims made by any First Lien Agent
      or
      any holder of Senior Lender Claims, (c) any lawful exercise by any holder of
      Senior Lender Claims of the right to credit bid Senior Lender Claims at any
      sale
      in foreclosure of Senior Lender Collateral, (d) any other request for judicial
      relief made in any court by any holder of Senior Lender Claims relating to
      the
      lawful enforcement of any Lien on Senior Lender Collateral or (e) any order
      relating to a sale of assets of any Grantor for which any First Lien Agent
      has
      consented that provides, to the extent the sale is to be free and clear of
      Liens, that the Liens securing the Senior Lender Claims and the Second Priority
      Claims will attach to the proceeds of the sale on the same basis of priority
      as
      the Liens securing the Senior Lender Collateral do to the Liens securing the
      Second Priority Collateral in accordance with this Agreement.

    


    6.2.
      Relief
      from the Automatic Stay.
      Until
      the Discharge of Senior Lender Claims has occurred, each Second Priority Agent,
      on behalf of itself and each applicable Second Priority Secured Party, agrees
      that none of them shall seek relief from the automatic stay or any other stay
      in
      any Insolvency or Liquidation Proceeding in respect of the Common Collateral
      or
      any other collateral, without the prior written consent of the First Lien Agents
      and the Required Lenders.

     

    6.3.
      Adequate
      Protection.
      Each
      Second Priority Agent, on behalf of itself and each applicable Second Priority
      Secured Party, agrees that none of them shall contest (or support any other
      Person contesting) (a) any request by any First Lien Agent or the Senior Lenders
      for adequate protection or (b) any objection by any First Lien Agent or the
      Senior Lenders to any motion, relief, action or proceeding based on such First
      Lien Agent’s or the Senior Lenders’ claiming a lack of adequate protection.
      Notwithstanding the foregoing, in any Insolvency or Liquidation Proceeding,
      (i)
      if the Senior Lenders (or any subset thereof) are granted adequate protection
      in
      the form of additional collateral in connection with any DIP Financing or use
      of
      cash collateral under Section 363 or Section 364 of Title 11 of the United
      States Code or any similar Bankruptcy Law, then each Second Priority Agent,
      on
      behalf of itself and any applicable Second Priority Secured Party, (A) may
      seek
      or request adequate protection in the form of a replacement Lien on such
      additional collateral, which Lien is subordinated to the Liens securing the
      Senior Lender Claims and such DIP Financing (and all Obligations relating
      thereto) on the same basis as the other Liens securing the Second Priority
      Claims are so subordinated to the Liens securing Senior Lender Claims under
      this
      Agreement and (B) agrees that it will not seek or request, and will not accept,
      adequate protection in any other form, and (ii) in the event any Second Priority
      Agent, on behalf of itself or any applicable Second Priority Secured Party,
      seeks or requests adequate protection and such adequate protection is granted
      in
      the form of additional collateral, then such Second Priority Agent, on behalf
      of
      itself or each such Second Priority Secured Party, agrees that the First Lien
      Agents shall also be granted a senior Lien on such additional collateral as
      security for the applicable Senior Lender Claims and any such DIP Financing
      and
      that any Lien on such additional collateral securing the Second Priority Claims
      shall be subordinated to the Liens on such collateral securing the Senior Lender
      Claims and any such DIP Financing (and all Obligations relating thereto) and
      any
      other Liens granted to the

     


    
      
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    Senior
      Lenders as adequate protection on the same basis as the other Liens securing
      the
      Second Priority Claims are so subordinated to such Liens securing Senior Lender
      Claims under this Agreement.

     

    6.4.
      Avoidance
      Issues.
      If any
      Senior Lender is required in any Insolvency or Liquidation Proceeding or
      otherwise to turn over or otherwise pay to the estate of the Company or any
      other Grantor (or any trustee, receiver or similar person therefor), because
      the
      payment of such amount was declared to be fraudulent or preferential in any
      respect or for any other reason, any amount (a “Recovery”),
      whether received as proceeds of security, enforcement of any right of setoff
      or
      otherwise, then as among the parties hereto the Senior Lender Claims shall
      be
      deemed to be reinstated to the extent of such Recovery and to be outstanding
      as
      if such payment had not occurred and the Senior Lenders shall be entitled to
      a
      Discharge of Senior Lender Claims with respect to all such recovered amounts
      and
      shall have all rights hereunder until such time. If this Agreement shall have
      been terminated prior to such Recovery, this Agreement shall be reinstated
      in
      full force and effect, and such prior termination shall not diminish, release,
      discharge, impair or otherwise affect the obligations of the parties
      hereto.

     

    6.5.
      Application.
      This
      Agreement shall be applicable prior to and after the commencement of any
      Insolvency or Liquidation Proceeding. All references herein to any Grantor
      shall
      apply to any trustee for such Person and such Person as debtor in possession.
      The relative rights as to the Common Collateral and other collateral and
      proceeds thereof shall continue after the filing thereof on the same basis
      as
      prior to the date of the petition, subject to any court order approving the
      financing of, or use of cash collateral by, any Grantor.

     

    6.6.
      Waivers.
      Until
      the Discharge of Senior Lender Claims has occurred, each Second Priority Agent,
      on behalf of itself and each applicable Second Priority Secured Party,
      (a) will not assert or enforce any claim under Section 506(c) of the United
      States Bankruptcy Code senior to or on a parity with the Liens securing the
      Senior Lender Claims for costs or expenses of preserving or disposing of any
      Common Collateral or other collateral, and (b) waives any claim it may now
      or hereafter have arising out of the election by any Senior Lender of the
      application of Section 1111(b)(2) of the Bankruptcy Code.

     

    Section
      7. Reliance; Waivers; etc.

     

    7.1.
      Reliance.
      The
      consent by the Senior Lenders to the execution and delivery of the Second
      Priority Documents to which the Senior Lenders have consented and all loans
      and
      other extensions of credit made or deemed made on and after the date hereof
      by
      the Senior Lenders to the Company or any Subsidiary shall be deemed to have
      been
      given and made in reliance upon this Agreement. Each Second Priority Agent,
      on
      behalf of itself and each applicable Second Priority Secured Party, acknowledges
      that it and the applicable Second Priority Secured Parties is not entitled
      to
      rely on any credit decision or other decisions made by the First Lien Agents
      or
      any Senior Lender in taking or not taking any action under the applicable Second
      Priority Document or this Agreement.

    


    7.2.
      No
      Warranties or Liability.
      Neither
      the First Lien Agents nor any Senior Lender shall have been deemed to have
      made
      any express or implied representation or warranty upon which the Second Priority
      Agent or the Second Priority Secured Parties may rely,
      including


    
      
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    with
      respect to the execution, validity, legality, completeness, collectibility
      or
      enforceability of any of the Senior Lender Documents, the ownership of any
      Common Collateral or the perfection or priority of any Liens thereon. The Senior
      Lenders will be entitled to manage and supervise their respective loans and
      extensions of credit under the Senior Lender Documents in accordance with law
      and as they may otherwise, in their sole discretion, deem appropriate, and
      the
      Senior Lenders may manage their loans and extensions of credit without regard
      to
      any rights or interests that any Second Priority Agent or any of the Second
      Priority Secured Parties have in the Common Collateral or otherwise, except
      as
      otherwise provided in this Agreement. Neither the First Lien Agents nor any
      Senior Lender shall have any duty to any Second Priority Agent or any Second
      Priority Secured Party to act or refrain from acting in a manner that allows,
      or
      results in, the occurrence or continuance of an event of default or default
      under any agreements with the Company or any Subsidiary thereof (including
      the
      Second Priority Documents), regardless of any knowledge thereof that they may
      have or be charged with. Except as expressly set forth in this Agreement, the
      First Lien Agents, the Senior Lenders, the Second Priority Agents and the Second
      Priority Secured Parties have not otherwise made to each other, nor do they
      hereby make to each other, any warranties, express or implied, nor do they
      assume any liability to each other with respect to (a) the enforceability,
      validity, value or collectibility of any of the Second Priority Claims, the
      Senior Lender Claims or any guarantee or security which may have been granted
      to
      any of them in connection therewith, (b) the Company’s title to or right to
      transfer any of the Common Collateral or (c) any other matter except as
      expressly set forth in this Agreement.

    


    7.3.
      Obligations
      Unconditional.
      All
      rights, interests, agreements and obligations of the First Lien Agents and
      the
      Senior Lenders, and the Second Priority Agents and the Second Priority Secured
      Parties, respectively, hereunder shall remain in full force and effect
      irrespective of:

     

    (a)
       any
      lack
      of validity or enforceability of any Senior Lender Documents or any Second
      Priority Documents;

    


    (b)
       any
      change in the time, manner or place of payment of, or in any other terms of,
      all
      or any of the Senior Lender Claims or Second Priority Claims, or any amendment
      or waiver or other modification, including any increase in the amount thereof,
      whether by course of conduct or otherwise, of the terms of the Credit Agreement
      or any other Senior Lender Document or of the terms of the Second Priority
      Senior Secured Notes Indenture or any other Second Priority
      Document;

    


    (c)
       any
      exchange of any security interest in any Common Collateral or any other
      collateral, or any amendment, waiver or other modification, whether in writing
      or by course of conduct or otherwise, of all or any of the Senior Lender Claims
      or Second Priority Claims or any guarantee thereof;

    


    (d)
       the
      commencement of any Insolvency or Liquidation Proceeding in respect of the
      Company or any other Grantor; or

    


    (e)
       any
      other
      circumstances that otherwise might constitute a defense available to, or a
      discharge of, the Company or any other Grantor in respect of the Senior Lender
      Claims, or of any Second Priority Agent or any Second Priority Secured Party
      in
      respect of this Agreement.


    
      
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    Section
      8. Miscellaneous.

    8.1.
      Conflicts.
      Subject
      to Section 8.19, in the event of any conflict between the provisions of this
      Agreement and the provisions of any Senior Lender Document or any Second
      Priority Document, the provisions of this Agreement shall govern.

     

    8.2.
      Continuing
      Nature of this Agreement; Severability.
      Subject
      to Section 6.4, this Agreement shall continue to be effective until the
      Discharge of Senior Lender Claims shall have occurred or such later time as
      all
      the Obligations in respect of the Second Priority Claims shall have been paid
      in
      full. This is a continuing agreement of lien subordination and the Senior
      Lenders may continue, at any time and without notice to each Second Priority
      Agent or any Second Priority Secured Party, to extend credit and other financial
      accommodations and lend monies to or for the benefit of the Company or any
      other
      Grantor constituting Senior Lender Claims in reliance hereon. The terms of
      this
      Agreement shall survive, and shall continue in full force and effect, in any
      Insolvency or Liquidation Proceeding. Any provision of this Agreement that
      is
      prohibited or unenforceable in any jurisdiction shall not invalidate the
      remaining provisions hereof, and any such prohibition or unenforceability in
      any
      jurisdiction shall not invalidate or render unenforceable such provision in
      any
      other jurisdiction.

     

    8.3.
      Amendments;
      Waivers.
      No
      amendment, modification or waiver of any of the provisions of this Agreement
      by
      any Second Priority Agent or any First Lien Agent shall be deemed to be made
      unless the same shall be in writing signed on behalf of the party making the
      same or its authorized agent and each waiver, if any, shall be a waiver only
      with respect to the specific instance involved and shall in no way impair the
      rights of the parties making such waiver or the obligations of the other parties
      to such party in any other respect or at any other time. The Company and the
      other Grantors shall not have any right to consent to or approve any amendment,
      modification or waiver of any provision of this Agreement except to the extent
      their rights are affected. Notwithstanding anything in this Section 8.3 to
      the
      contrary, this Agreement may be amended from time to time at the request of
      the
      Company, at the Company’s expense, and without the consent of any Second
      Priority Agent, the First Lien Agents, any Senior Lender or any Second Priority
      Secured Party to (i) add other parties holding Future Second Lien Indebtedness
      (or any agent or trustee therefor) to the extent such Indebtedness is not
      prohibited by the Credit Agreement, the Second Priority Senior Secured Notes
      Indenture or any other Second Priority Document governing Future Second Lien
      Indebtedness and (ii) in the case of Future Second Lien Indebtedness, (a)
      establish that the Lien on the Common Collateral securing such Future Second
      Lien Indebtedness shall be junior and subordinate in all respects to all Liens
      on the Common Collateral securing any Senior Lender Claims and shall share
      in
      the benefits of the Common Collateral equally and ratably with all Liens on
      the
      Common Collateral securing any Second Priority Claims, and (b) provide to the
      holders of such Future Second Lien Indebtedness (or any agent or trustee
      thereof) the comparable rights and benefits (including any improved rights
      and
      benefits that have been consented to by the First Lien Agents) as are provided
      to the holders of Second Priority Claims under this Agreement. Any such
      additional party and each Second Priority Agent shall be entitled to rely on
      the
      determination of officers of the Company that such modifications do not violate
      the Credit Agreement, the Second Priority Senior Secured Notes Indenture or
      any
      other Second Priority Document governing Future Second Lien Indebtedness if
      such
      determination is set forth in an Officers’ Certificate delivered to such party,
      the First Lien Agents and each Second Priority Agent; provided, however, that
      such determination will not affect whether or not the Company has complied
      with
      its

     


    
      
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    undertakings
      in the Credit Agreement, the Senior Collateral Documents, the Second Priority
      Senior Secured Notes Indenture, any other Second Priority Document governing
      Future Second Lien Indebtedness, the Second Priority Collateral Documents or
      this Agreement.

     

    8.4.
      Information
      Concerning Financial Condition of the Company and the
      Subsidiaries.
      Neither
      the First Lien Agents nor any Senior Lender shall have any obligation to
      the Second Priority Agent or any Second Priority Secured Party to keep the
      Second Priority Agent or any Second Priority Secured Party informed of, and
      the
      Second Priority Agent and the Second Priority Secured Parties shall not be
      entitled to rely on the First Lien Agents or the Senior Lenders with respect
      to,
      (a) the financial condition of the Company and the Subsidiaries and all
      endorsers and/or guarantors of the Second Priority Claims or the Senior Lender
      Claims and (b) all other circumstances bearing upon the risk of nonpayment
      of
      the Second Priority Claims or the Senior Lender Claims. The First Lien Agents,
      the Senior Lenders, each Second Priority Agent and the Second Priority Secured
      Parties shall have no duty to advise any other party hereunder of information
      known to it or them regarding such condition or any such circumstances or
      otherwise. In the event that any First Lien Agent, any Senior Lender, any Second
      Priority Agent or any Second Priority Secured Party, in its or their sole
      discretion, undertakes at any time or from time to time to provide any such
      information to any other party, it or they shall be under no obligation (w)
      to
      make, and the First Lien Agents, the Senior Lenders, the Second Priority Agents
      and the Second Priority Secured Parties shall not make, any express or implied
      representation or warranty, including with respect to the accuracy,
      completeness, truthfulness or validity of any such information so provided,
      (x)
      to provide any additional information or to provide any such information on
      any
      subsequent occasion, (y) to undertake any investigation or (z) to disclose
      any
      information that, pursuant to accepted or reasonable commercial finance
      practices, such party wishes to maintain confidential or is otherwise required
      to maintain confidential.

     

    8.5.
      Subrogation.
      Each
      Second Priority Agent, on behalf of itself and each applicable Second Priority
      Secured Party, hereby waives any rights of subrogation it may acquire as a
      result of any payment hereunder until the Discharge of Senior Lender Claims
      has
      occurred.

     

    8.6.
      Application
      of Payments.
      Except
      as otherwise provided herein, all payments received by the Senior Lenders may
      be
      applied, reversed and reapplied, in whole or in part, to such part of the Senior
      Lender Claims as the Senior Lenders, in their sole discretion, deem appropriate,
      consistent with the terms of the Senior Lender Documents. Except as otherwise
      provided herein, each Second Priority Agent, on behalf of itself and each
      applicable Second Priority Secured Party, assents to any such extension or
      postponement of the time of payment of the Senior Lender Claims or any part
      thereof and to any other indulgence with respect thereto, to any substitution,
      exchange or release of any security that may at any time secure any part of
      the
      Senior Lender Claims and to the addition or release of any other Person
      primarily or secondarily liable therefor.

    


    8.7.
      Consent
      to Jurisdiction; Waivers.
      The
      parties hereto consent to the nonexclusive jurisdiction of any state or federal
      court located in New York, New York (the “New
      York Courts”),
      and
      consent that all service of process may be made by registered mail directed
      to
      such party as provided in Section 8.8 for such party. Service so made shall
      be
      deemed to be completed 

     

     

    
      
         

      

      
        -24-

        
          

        

      

      
         

      

    

     

    three
      days after the same shall be posted as aforesaid. The parties hereto waive
      any
      objection to any action instituted hereunder in any such court based on forum
      non conveniens, and any objection to the venue of any action instituted
      hereunder in any such court. Each of the parties hereto waives any right it
      may
      have to trial by jury in respect of any litigation based on, or arising out
      of,
      under or in connection with this Agreement, or any course of conduct, course
      of
      dealing, verbal or written statement or action of any party hereto in connection
      with the subject matter hereof. Nothing in this Agreement shall affect any
      right
      that any party may otherwise have to bring any action or proceeding relating
      to
      this Agreement in the courts of any jurisdiction, except that each Loan Party,
      each Second Priority Secured Party and each Second Priority Agent agrees that
      (a) it will not bring any such action or proceeding in any court other than
      New
      York Courts (it being acknowledged and agreed by the parties hereto that any
      other forum would be inconvenient and inappropriate in view of the fact that
      more of the holders of Senior Lender Claims and Second Priority Claims who
      would
      be affected by any such action or proceeding have contacts with the State of
      New
      York than any other jurisdiction), and (b) in any such action or proceeding
      brought against any Second Priority Agent or any Loan Party or any Second
      Priority Secured Party in any other court, it will not assert any cross-claim,
      counterclaim or setoff, or seek any other affirmative relief, except to the
      extent that the failure to assert the same will preclude such Loan Party or
      such
      Second Priority Secured Party from asserting or seeking the same in the New
      York
      Courts.

     

    8.8.
      Notices.
      All
      notices to the Second Priority Secured Parties and the Senior Lenders permitted
      or required under this Agreement may be sent to the Trustee, the First Lien
      Agents or any Second Priority Agent as provided in the Second Priority Senior
      Secured Notes Indenture, the Credit Agreement, the other relevant Senior Lender
      Documents or the other relevant Second Priority Documents, as applicable. Unless
      otherwise specifically provided herein, any notice or other communication herein
      required or permitted to be given shall be in writing and may be personally
      served, telecopied, electronically mailed or sent by courier service or U.S.
      mail and shall be deemed to have been given when delivered in person or by
      courier service, upon receipt of a telecopy or electronic mail or upon receipt
      via U.S. mail (registered or certified, with postage prepaid and properly
      addressed). For the purposes hereof, the addresses of the parties hereto shall
      be as set forth below each party’s name on the signature pages hereto, or, as to
      each party, at such other address as may be designated by such party in a
      written notice to all of the other parties. The First Lien Agents hereby agree
      to promptly notify each Second Priority Agent upon payment in full in cash
      of
      all Indebtedness under the applicable Senior Lender Documents (except for
      contingent indemnities and cost and reimbursement obligations to the extent
      no
      claim therefor has been made).

     

    8.9.
      Further
      Assurances.
      Each of
      the Second Priority Agents, on behalf of itself and each applicable Second
      Priority Secured Party, and each applicable First Lien Agent, on behalf of
      itself and each Senior Lender, agrees that each of them shall take such further
      action and shall execute and deliver to each other First Lien Agent and the
      Senior Lenders such additional documents and instruments (in recordable form,
      if
      requested) as each other First Lien Agent or the Senior Lenders may reasonably
      request, at the expense of the Company, to effectuate the terms of and the
      lien
      priorities contemplated by this Agreement.

    


    8.10.
      Governing
      Law.
      This
      Agreement has been delivered and accepted in and shall be deemed to have been
      made in New York, New York and shall be interpreted, and the rights and
      liabilities of the parties bound hereby determined, in accordance with the
      laws
      of the State of New York.

     

     

    
      
         

      

      
        -25-

        
          

        

      

      
         

      

    

     

    8.11.
      Binding
      on Successors and Assigns.
      This
      Agreement shall be binding upon the First Lien Agents, the Senior Lenders,
      the
      Second Priority Agents, the Second Priority Secured Parties, Holdings, the
      Company, the Company’s Subsidiaries party hereto and their respective permitted
      successors and assigns.

     

    8.12.
      Specific
      Performance.
      Each
      First Lien Agent may demand specific performance of this Agreement. Each Second
      Priority Agent, on behalf of itself and each applicable Second Priority Secured
      Party, hereby irrevocably waives any defense based on the adequacy of a remedy
      at law and any other defense that might be asserted to bar the remedy of
      specific performance in any action that may be brought by either First Lien
      Agent.

     

    8.13.
      Section
      Titles.
      The
      section titles contained in this Agreement are and shall be without substantive
      meaning or content of any kind whatsoever and are not a part of this
      Agreement.

     

    8.14.
      Counterparts.
      This
      Agreement may be executed in one or more counterparts, including by means of
      facsimile, each of which shall be an original and all of which shall together
      constitute one and the same document.

     

    8.15.
      Authorization.
      By its
      signature, each Person executing this Agreement on behalf of a party hereto
      represents and warrants to the other parties hereto that it is duly authorized
      to execute this Agreement. The First Lien Agents represent and warrant that
      this
      Agreement is binding upon the Senior Lenders. The Trustee represents and
      warrants that this Agreement is binding upon the Indenture Secured
      Parties.

     

    8.16.
      No
      Third Party Beneficiaries; Successors and Assigns.
      This
      Agreement and the rights and benefits hereof shall inure to the benefit of,
      and
      be binding upon, each of the parties hereto and their respective successors
      and
      assigns and shall inure to the benefit of each of, and be binding upon, the
      holders of Senior Lender Claims and Second Priority Claims. No other Person
      shall have or be entitled to assert rights or benefits hereunder.

     

    8.17.
      Effectiveness.
      This
      Agreement shall become effective when executed and delivered by the parties
      hereto. This Agreement shall be effective both before and after the commencement
      of any Insolvency or Liquidation Proceeding. All references to the Company
      or
      any other Grantor shall include the Company or any other Grantor as debtor
      and
      debtor-in-possession and any receiver or trustee for the Company or any other
      Grantor (as the case may be) in any Insolvency or Liquidation
      Proceeding.

     

    8.18.
      First
      Lien Agents and Second Priority Agents.
      It is
      understood and agreed that (a) Credit Suisse, Cayman Islands Branch, is entering
      into this Agreement in its capacity as administrative agent under the Term
      Credit Agreement and the provisions of Article VIII of the Term Credit Agreement
      applicable to Credit Suisse, Cayman Islands Branch, as administrative agent
      thereunder shall also apply to Credit Suisse, Cayman Islands Branch, as First
      Lien Agent hereunder, (b) Bank of America, N.A. is 

     

     

    
      
         

      

      
        -26-

        
          

        

      

      
         

      

    

     

    entering
      into this Agreement in its capacity as administrative agent under the Revolving
      Credit Agreement and the provisions of Article VIII of the Revolving Credit
      Agreement applicable to Bank of America, N.A. as administrative agent thereunder
      shall also apply to Bank of America, N.A. as First Lien Agent hereunder and
      (c)
      Wells Fargo is entering in this Agreement in its capacity as Trustee, and the
      provisions of Article 7 of the Second Priority Senior Secured Notes Indenture
      applicable to the Trustee thereunder shall also apply to the Trustee hereunder.
      

     

    8.19.
      Relative
      Rights.
      Notwithstanding anything in this Agreement to the contrary (except to the extent
      contemplated by Section 5.3(b)), nothing in this Agreement is intended to or
      will (a) amend, waive or otherwise modify the provisions of the Credit
      Agreement, the Second Priority Senior Secured Notes Indenture or any other
      Senior Lender Documents or Second Priority Documents entered into in connection
      with the Credit Agreement, the Second Priority Senior Secured Notes Indenture
      or
      any other Senior Lender Document or Second Priority Document or permit Holdings,
      the Company or any Subsidiary to take any action, or fail to take any action,
      to
      the extent such action or failure would otherwise constitute a breach of, or
      default under, the Credit Agreement or any other Senior Lender Documents entered
      into in connection with the Credit Agreement, the Second Priority Senior Secured
      Notes Indenture or any other Second Priority Documents, (b) change the relative
      priorities of the Senior Lender Claims or the Liens granted under the Senior
      Lender Documents on the Common Collateral (or any other assets) as among the
      Senior Lenders, (c) otherwise change the relative rights of the Senior Lenders
      in respect of the Common Collateral as among such Senior Lenders or (d) obligate
      Holdings, the Company or any Subsidiary to take any action, or fail to take
      any
      action, that would otherwise constitute a breach of, or default under, the
      Credit Agreement or any other Senior Lender Document entered into in connection
      with the Credit Agreement, the Second Priority Senior Secured Notes Indenture
      or
      any other Second Priority Documents. As among the respective First Lien Agents,
      nothing in this Agreement shall alter the respective rights and obligations
      of
      the First Lien Agents under the Senior Intercreditor Agreement.

    


    8.20.
      References.
      Notwithstanding anything to the contrary in this Agreement, any references
      contained herein to any Section, clause, paragraph, definition or other
      provision of the Second Priority Senior Secured Notes Indenture (including
      any
      definition contained therein) shall be deemed to be a reference to such Section,
      clause, paragraph, definition or other provision as in effect on the date of
      this Agreement; provided that any reference to any such Section, clause,
      paragraph or other provision shall refer to such Section, clause, paragraph
      or
      other provision of the Second Priority Senior Secured Notes Indenture, as
      applicable (including any definition contained therein), as amended or modified
      from time to time if such amendment or modification has been (1) made in
      accordance with the Second Priority Senior Secured Notes Indenture, and (2)
      approved in writing by, or on behalf of, the requisite Senior Lenders as are
      needed under the terms of the Credit Agreement to approve such amendment or
      modification.

     

    8.21.
      Supplements.
      Upon
      the execution by any Subsidiary of the Company of a supplement hereto in form
      and substance satisfactory to the First Lien Agent, such Subsidiary shall be
      a
      party to this Agreement and shall be bound by the provisions hereof to the
      same
      extent as the Company and each other Grantor are so bound.

     

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      of page intentionally left blank]


    
      
        
          


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        -27-

        
          

        

      

      
        
        

        
          


        

      

    



    IN
      WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
      date
      first written above.

    


    


    CREDIT
      SUISSE, CAYMAN ISLANDS BRANCH,

    as
      First
      Lien Agent

    


    By:
      __________________________________

    Name:

    Title:

    


    By:
      __________________________________

    Name:

    Title:

    Address:
      Eleven Madison Avenue, New York, NY 10010, Attention: Agency Group

    Telecopier:
      (212) 325-8304

    


    


    



    
      
        


        Intercreditor
          Agreement Signature Page

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    BANK
      OF AMERICA, N.A.

    as
      First
      Lien Agent

    


    By:
      __________________________________

    Name:

    Title:

    


    By:
      __________________________________

    Name:

    Title:

    


    Address:
      

    Attention:
      

    Telecopier:
      

    



    
      
        


        Intercreditor
          Agreement Signature Page

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    WELLS
      FARGO BANK, N.A.,

    as
      Trustee

    


    By:
      __________________________________

    Name:

    Title:

    Address:
      Corporate Trust Services, 213 Court Street, Suite 703, Middletown, CT
      06457

    Attention:
      Joseph P. O'Donnell

    Telecopier:
      860-704-6219 

    


    



    
      
        
          Intercreditor
            Agreement Signature Page

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    BERRY
      PLASTICS GROUP, INC.

     

    By:     

    Name:

    Title:

    Address:
      

    Attention:
      

    Telecopier:
      

    


    


    


    


    


    


    


    


    


    


    



    
      
        
          Intercreditor
            Agreement Signature Page

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              Berry
                Plastics Holding Corporation

            
	
              Berry
                Plastics Corporation

            
	
              AeroCon,
                Inc.

            
	
              Berry
                Iowa Corporation

            
	
              Berry
                Plastics Design Corporation

            
	
              Berry
                Sterling Corporation

            
	
              Berry
                Plastics Technical Services, Inc.

            
	
              Cardinal
                Packaging, Inc.

            
	
              CPI
                Holding Corporation

            
	
              Knight
                Plastics, Inc.

            
	
              Landis
                Plastics, Inc.

            
	
              Packerware
                Corporation

            
	
              Pescor,
                Inc.

            
	
              Poly-Seal
                Corporation

            
	
              Venture
                Packaging, Inc.

            
	
              Venture
                Packaging Midwest, Inc.

            
	
              Berry
                Plastics Acquisition Corporation III

            
	
              Berry
                Plastics Acquisition Corporation V

            
	
              Berry
                Plastics Acquisition Corporation VII

            
	
              Berry
                Plastics Acquisition Corporation VIII

            
	
              Berry
                Plastics Acquisition Corporation IX

            
	
              Berry
                Plastics Acquisition Corporation X

            
	
              Berry
                Plastics Acquisition Corporation XI

            
	
              Berry
                Plastics Acquisition Corporation XII

            
	
              Berry
                Plastics Acquisition Corporation XIII

            
	
              Kerr
                Group, Inc.

            
	
              Saffron
                Acquisition Corp.

            
	
              Sun
                Coast Industries, Inc.

            
	
              Berry
                Plastics Acquisition Corporation XV, LLC

            
	
              Setco,
                LLC

            
	
              Tubed
                Products, LLC

            


    

    


    By:
      __________________________________

    Name:

    Title:

    Address:
      101 Oakley St., Evansville, IN 47710, Attention: James M.
      Kratochvil

    Telecopier:
      (812) 424-0128


    
      
        44

        


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              Upon
                consummation of the Merger:

               

              Covalence
                Specialty Coatings LLC

            
	
              Covalence
                Specialty Adhesives LLC

            


    

    


    


    By: BERRY
      PLASTICS HOLDING CORPORATION, its sole member and manager

    


    


    By
      _____________________________

    Name:

    Title:

    



    
      
        44

        


        |
          NY\1256666.8|||
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    SCHEDULE
      I

    


    
      	
              Berry
                Plastics Holding Corporation

            
	
              Berry
                Plastics Corporation

            
	
              AeroCon,
                Inc.

            
	
              Berry
                Iowa Corporation

            
	
              Berry
                Plastics Design Corporation

            
	
              Berry
                Sterling Corporation

            
	
              Berry
                Plastics Technical Services, Inc.

            
	
              Cardinal
                Packaging, Inc.

            
	
              CPI
                Holding Corporation

            
	
              Knight
                Plastics, Inc.

            
	
              Landis
                Plastics, Inc.

            
	
              Packerware
                Corporation

            
	
              Pescor,
                Inc.

            
	
              Poly-Seal
                Corporation

            
	
              Venture
                Packaging, Inc.

            
	
              Venture
                Packaging Midwest, Inc.

            
	
              Berry
                Plastics Acquisition Corporation III

            
	
              Berry
                Plastics Acquisition Corporation V

            
	
              Berry
                Plastics Acquisition Corporation VII

            
	
              Berry
                Plastics Acquisition Corporation VIII

            
	
              Berry
                Plastics Acquisition Corporation IX

            
	
              Berry
                Plastics Acquisition Corporation X

            
	
              Berry
                Plastics Acquisition Corporation XI

            
	
              Berry
                Plastics Acquisition Corporation XII

            
	
              Berry
                Plastics Acquisition Corporation XIII

            
	
              Kerr
                Group, Inc.

            
	
              Saffron
                Acquisition Corp.

            
	
              Sun
                Coast Industries, Inc.

            
	
              Berry
                Plastics Acquisition Corporation XV, LLC

            
	
              Setco,
                LLC

            
	
              Tubed
                Products, LLC

            
	
              Covalence
                Specialty Coatings LLC

            
	
              Covalence
                Specialty Adhesives LLC