Back to top

SENIOR SECURED BRIDGE LOAN CREDIT AGREEMENT

Bridge Loan Agreement

SENIOR SECURED BRIDGE LOAN CREDIT AGREEMENT | Document Parties: BANC OF AMERICA SECURITIES LLC | BANK OF AMERICA, N.A. | BERRY PLASTICS CORPORATION | Berry Plastics Group, Inc | Captive Holdings, Inc | Captive Holdings, LLC | Covalence Specialty Materials Corp | Covalence Specialty Materials Holding Corp | LEHMAN BROTHERS COMMERCIAL BANK | LEHMAN BROTHERS INC | Lenders, GOLDMAN SACHS CREDIT PARTNERS LP You are currently viewing:
This Bridge Loan Agreement involves

BANC OF AMERICA SECURITIES LLC | BANK OF AMERICA, N.A. | BERRY PLASTICS CORPORATION | Berry Plastics Group, Inc | Captive Holdings, Inc | Captive Holdings, LLC | Covalence Specialty Materials Corp | Covalence Specialty Materials Holding Corp | LEHMAN BROTHERS COMMERCIAL BANK | LEHMAN BROTHERS INC | Lenders, GOLDMAN SACHS CREDIT PARTNERS LP

. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here.
Title: SENIOR SECURED BRIDGE LOAN CREDIT AGREEMENT
Governing Law: New York     Date: 2/11/2008
Law Firm: Venable;Cahill Gordon;Wachtell Lipton;Thompson Hine;Richards Layton;Lowenstein Sandler    

SENIOR SECURED BRIDGE LOAN CREDIT AGREEMENT, Parties: banc of america securities llc , bank of america  n.a. , berry plastics corporation , berry plastics group  inc , captive holdings  inc , captive holdings  llc , covalence specialty materials corp , covalence specialty materials holding corp , lehman brothers commercial bank , lehman brothers inc , lenders  goldman sachs credit partners lp
50 of the Top 250 law firms use our Products every day


EXECUTION VERSION
 
 


$520,000,000

SENIOR SECURED BRIDGE LOAN CREDIT AGREEMENT

Dated as of February 5, 2008,


Among


BERRY PLASTICS CORPORATION
(formerly Berry Plastics Holding Corporation),
as Borrower,

THE LENDERS PARTY HERETO,


BANK OF AMERICA, N.A.,
as Collateral Agent and Administrative Agent


GOLDMAN SACHS CREDIT PARTNERS L.P.,
as Syndication Agent,


LEHMAN BROTHERS INC.,
as Documentation Agent,


BANC OF AMERICA SECURITIES LLC
GOLDMAN SACHS CREDIT PARTNERS L.P.
LEHMAN BROTHERS INC.,
as Joint Bookrunners and
Joint Lead Arrangers
_________________
 
 
 

 


 
 
 
 

 

TABLE OF CONTENTS
 

 
ARTICLE I
  Page
     
 
Definitions
 
     
SECTION 1.01.
Defined Terms
1
SECTION 1.02.
Terms Generally
46
SECTION 1.03.
Effectuation of Transactions
47
SECTION 1.04.
Senior Debt
47
     
 
ARTICLE II
 
     
 
The Credits
 
SECTION 2.01.
Commitment
47
SECTION 2.02.
Loans and Borrowings
49
SECTION 2.03.
Requests for Borrowings
49
SECTION 2.04.
[Reserved]
50
SECTION 2.05.
[Reserved].
50
SECTION 2.06.
Funding of Borrowings
50
SECTION 2.07.
Interest Elections
50
SECTION 2.08.
Termination of Commitment
51
SECTION 2.09.
Repayment of Loans; Evidence of Debt
51
SECTION 2.10.
Prepayments, etc.
52
SECTION 2.11.
Change of Control Prepayment Offer
53
SECTION 2.12.
Fees
54
SECTION 2.13.
Interest
54
SECTION 2.14.
Alternate Rate of Interest
55
SECTION 2.15.
Increased Costs
55
SECTION 2.16.
Break Funding Payments
56
SECTION 2.17.
Taxes
57
SECTION 2.18.
Payments Generally; Pro Rata Treatment; Sharing of Set offs
58
SECTION 2.19.
Mitigation Obligations; Replacement of Lenders
60
SECTION 2.20.
Illegality
61
     
 
ARTICLE III
 
     
 
Representations and Warranties
 
SECTION 3.01.
Organization; Powers
61
SECTION 3.02.
Authorization
61
SECTION 3.03.
Enforceability
62
SECTION 3.04.
Governmental Approvals
62
SECTION 3.05.
Financial Statements
62
SECTION 3.06.
No Material Adverse Effect
63
SECTION 3.07.
Title to Properties; Possession Under Leases
63
     
 
 
 
-i-

 
     
SECTION 3.08.
Subsidiaries
64
SECTION 3.09.
Litigation; Compliance with Laws
64
SECTION 3.10.
Federal Reserve Regulations
64
SECTION 3.11.
Investment Company Act
64
SECTION 3.12.
Use of Proceeds
64
SECTION 3.13.
Tax Returns
65
SECTION 3.14.
No Material Misstatements
65
SECTION 3.15.
Employee Benefit Plans
65
SECTION 3.16.
Environmental Matters
66
SECTION 3.17.
Security Documents
66
SECTION 3.18.
Location of Real Property and Leased Premises
67
SECTION 3.19.
Solvency
68
SECTION 3.20.
Labor Matters
68
SECTION 3.21.
Insurance
68
SECTION 3.22.
No Default
68
SECTION 3.23.
Intellectual Property; Licenses, etc.
68
SECTION 3.24.
Senior Debt
69
     
 
ARTICLE IV
 
     
 
Conditions of Lending
 
     
 
ARTICLE V
 
     
 
Affirmative Covenants
 
SECTION 5.01.
Existence; Businesses and Properties
72
SECTION 5.02.
Insurance
72
SECTION 5.03.
Taxes
73
SECTION 5.04.
Financial Statements, Reports, etc.
73
SECTION 5.05.
Litigation and Other Notices
75
SECTION 5.06.
Compliance with Laws
75
SECTION 5.07.
Maintaining Records; Access to Properties and Inspections
76
SECTION 5.08.
Use of Proceeds
76
SECTION 5.09.
Compliance with Environmental Laws
76
SECTION 5.10.
Further Assurances; Additional Security
76
SECTION 5.11.
[Reserved]
78
SECTION 5.12.
Securities Demand
78
SECTION 5.13.
Exchange Notes
79
     
 
ARTICLE VI
 
     
 
Negative Covenants
 
SECTION 6.01.
Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock
80
SECTION 6.02.
Liens
85
SECTION 6.03.
Asset Sales
85
SECTION 6.04.
Limitation on Restricted Payments
86
SECTION 6.05.
Mergers, Consolidations, Sales of Assets and Acquisitions
90
 
 
-ii-

 
     
SECTION 6.06.
Dividend and Other Payment Restrictions Affecting Subsidiaries
92
SECTION 6.07.
Transactions with Affiliates
94
SECTION 6.08.
Amendment of Security Documents
96
SECTION 6.09.
Termination and Suspension of Certain Covenants
97
     
 
ARTICLE VII
 
     
 
Events of Default
 
SECTION 7.01.
Events of Default
97
SECTION 7.02.
Exclusion of Immaterial Subsidiaries
100
     
 
ARTICLE VIII
 
     
 
The Agents
 
SECTION 8.01.
Appointment
100
SECTION 8.02.
Delegation of Duties
102
SECTION 8.03.
Exculpatory Provisions
102
SECTION 8.04.
Reliance by Administrative Agent
103
SECTION 8.05.
Notice of Default
103
SECTION 8.06.
Non-Reliance on Agents and Other Lenders
103
SECTION 8.07.
Indemnification
104
SECTION 8.08.
Agent in Its Individual Capacity
104
SECTION 8.09.
Successor Administrative Agent
104
SECTION 8.10.
Agents and Arrangers
105
     
 
ARTICLE IX
 
     
 
Miscellaneous
 
SECTION 9.01.
Notices; Communications
105
SECTION 9.02.
Survival of Agreement
106
SECTION 9.03.
Binding Effect
106
SECTION 9.04.
Successors and Assigns
106
SECTION 9.05.
Expenses; Indemnity
109
SECTION 9.06.
Right of Set off
111
SECTION 9.07.
Applicable Law
111
SECTION 9.08.
Waivers; Amendment
111
SECTION 9.09.
Interest Rate Limitation
113
SECTION 9.10.
Entire Agreement
113
SECTION 9.11.
WAIVER OF JURY TRIAL
114
SECTION 9.12.
Severability
114
SECTION 9.13.
Counterparts
114
SECTION 9.14.
Headings
114
SECTION 9.15.
Jurisdiction; Consent to Service of Process
114
SECTION 9.16.
Confidentiality
115
SECTION 9.17.
Platform; Borrower Materials
115
SECTION 9.18.
Release of Liens and Guarantees
116
SECTION 9.19.
PATRIOT Act Notice
116
SECTION 9.20.
Intercreditor Agreements and Collateral Agreement
116
 
 
 
-iii-

 
     
SECTION 9.21.
Conversion of Covenants; Events of Default
116
SECTION 9.22.
No Fiduciary Duty
117
 
 

 
Exhibits and Schedules
 
Exhibit A
Form of Assignment and Acceptance
Exhibit B
Form of Solvency Certificate
Exhibit C
Form of Borrowing Request
Exhibit D
Senior Secured Exchange Notes Indenture
Exhibit E-1
Form of Bridge Note
Exhibit E-2
Form of Rollover Note
Exhibit F
Form of Collateral Agreement
Exhibit G
Form of Registration Rights Agreement
Exhibit H
Form of Exchange Notice
Exhibit I
Form of Closing Certificate
   
Schedule 1.01(a)
Certain U.S. Subsidiaries
Schedule 1.01(d)
Immaterial Subsidiaries
Schedule 2.01
Commitments
Schedule 3.01
Organization and Good Standing
Schedule 3.04
Governmental Approvals
Schedule 3.07(b)
Possession Under Leases
Schedule 3.08(a)
Subsidiaries
Schedule 3.08(b)
Subscriptions
Schedule 3.13
Taxes
Schedule 3.16
Environmental Matters
Schedule 3.21
Insurance
Schedule 3.23
Intellectual Property
Schedule 4.02(d)
Post-Closing Interest Deliveries
Schedule 6.07
Affiliate Transactions
Schedule 9.01
Notice Information


 
 
-iv-

 

This SENIOR SECURED BRIDGE LOAN  CREDIT AGREEMENT is entered into as of February 5, 2008 (this “ Agreement ”), among BERRY PLASTICS CORPORATION (formerly Berry Plastics Holding Corporation), a Delaware corporation (the “ Borrower ”), the LENDERS party hereto from time to time, BANK OF AMERICA, N.A., as administrative agent and collateral agent (in such capacities or its successors in such capacities, the “ Administrative Agent ”) for the Lenders, GOLDMAN SACHS CREDIT PARTNERS L.P., as syndication agent (in such capacity, the “ Syndication Agent ”), and LEHMAN BROTHERS INC. as documentation agent (in such capacity, the “ Documentation Agent ”).
 
WHEREAS, on April 3, 2007, Berry Plastics Group, Inc. (“ Holdings ”) completed a stock-for-stock merger (the “ Berry Covalence Merger ”) with Covalence Specialty Materials Holding Corp. in which the resulting company retained the name Berry Plastics Group, Inc.
 
WHEREAS, immediately following the Berry Covalence Merger, Berry Plastics Holding Corporation and Covalence Specialty Materials Corp. (“ Covalence ”) were combined as a direct subsidiary of Berry Plastics Group, Inc. and the resulting company retained the name Berry Plastics Holding Corporation.
 
WHEREAS, on December 28, 2007, Berry Plastics Holding Corporation was combined together with Berry Plastics Corporation in a merger in which Berry Plastics Holding Corporation survived and was renamed Berry Plastics Corporation.
 
WHEREAS, on December 21, 2007, the Borrower, Captive Holdings, Inc., and Captive Holdings, LLC (“ Captive Holdings ”) entered into a stock purchase agreement, as amended, supplemented or modified from time to time prior to the date hereof in accordance with the terms of this Agreement (the “ Captive Merger Agreement ”);
 
WHEREAS, on the Closing Date, the Borrower will enter into this Agreement, under which the Borrower will obtain $520,000,000 in senior secured interim loans; and
 
WHEREAS, the Borrower desires to obtain Bridge Loans hereunder, the proceeds of which will be used (i) to finance the Captive Acquisition (as defined below) and (ii) to pay costs related to the Transactions.
 
In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
 
ARTICLE I
 

 
Definitions
 
SECTION 1.01.                                 Defined Terms
 
.  As used in this Agreement, the following terms shall have the meanings specified below:
 
ABL Assets ” shall mean any Accounts and Inventory (as such terms are defined in the Revolving Credit Agreement) of the Borrower or any Subsidiary.
 
ABR ” shall mean, for any day, a fluctuating rate per annum equal to the higher of (a) the Federal Funds Effective Rate plus 1/2 of 1% and (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate” at its principal office in New York,
 

 
-1-

 

New York.  Any change in such rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.
 
ABR Borrowing ” shall mean a Borrowing comprised of ABR Loans.
 
ABR Loan ” shall mean any Loan bearing interest at a rate determined by reference to the ABR in accordance with the provisions of Article II.
 
Acquired Indebtedness ” shall mean, with respect to any specified Person:
 
(1)           Indebtedness of any other Person existing at the time such other Person is merged, consolidated or amalgamated with or into or became a Restricted Subsidiary of such specified Person, and
 
(2)           Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.
 
Acquisition Documents ” shall mean the Captive Merger Agreement and any other document entered into in connection therewith, in each case as amended, supplemented or modified from time to time prior to the Closing Date or thereafter (so long as any amendment, supplement or modification after the Closing Date, together with all other amendments, supplements and modifications after the Closing Date, taken as a whole, is not more disadvantageous to the Lenders in any material respect than the Acquisition Documents as in effect on the Closing Date).
 
Act ” shall have the meaning assigned to such term in Section 9.19.
 
Additional Mortgage ” shall have the meaning assigned to such term in Section 5.10(c).
 
Adjusted LIBO Rate ” shall mean, with respect to any Eurocurrency Borrowing for any Interest Period, an interest rate per annum equal to (a) the LIBO Rate in effect for such Interest Period divided by (b) one minus the Statutory Reserves applicable to such Eurocurrency Borrowing, if any.
 
Administrative Agent ” shall have the meaning assigned to such term in the introductory paragraph of this Agreement.
 
Administrative Questionnaire ” shall mean an Administrative Questionnaire in a form supplied by the Administrative Agent.
 
Affiliate ” of any specified Person shall mean any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person.  For purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.
 
Affiliate Transaction ” shall have the meaning assigned to such term in Section 6.07(a).
 
Agents ” shall mean the Administrative Agent and the Collateral Agent.
 
Agreement ” shall have the meaning assigned to such term in the introductory paragraph of this Agreement.
 

--
 
-2-

 

Applicable Margin ” shall mean initially (i) 4.00% in the case of any Eurocurrency Loan and (ii) 3.00% in the case of any ABR Loan. The Applicable Margin will increase by 0.50% per annum on August 5, 2008 and shall increase by an additional 0.50% per annum at the end of each three-month period thereafter until the Rollover Loan Maturity Date. Notwithstanding the foregoing, the Applicable Margin shall be adjusted such that the applicable interest rate on the Loans shall not exceed the Rate Cap.
 
Approved Fund ” shall have the meaning assigned to such term in Section 9.04(b).
 
Asset Sale ” shall mean:
 
(1)           the sale, conveyance, transfer or other disposition (whether in a single transaction or a series of related transactions) of property or assets (including by way of a Sale/Leaseback Transaction) outside the ordinary course of business of the Borrower or any Restricted Subsidiary of the Borrower (each referred to in this definition as a “disposition”) or
 
(2)           the issuance or sale of Equity Interests (other than directors’ qualifying shares and shares issued to foreign nationals or other third parties to the extent required by applicable law) of any Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary of the Borrower) (whether in a single transaction or a series of related transactions),
 
in each case other than:
 
(a)           a disposition of Cash Equivalents or Investment Grade Securities or obsolete or worn out property or equipment in the ordinary course of business;
 
(b)           the disposition of all or substantially all of the assets of the Borrower in a manner permitted pursuant to Section 6.05 or any disposition that constitutes a Change of Control;
 
(c)           any Restricted Payment or Permitted Investment that is permitted to be made, and is made, under Section 6.04;
 
(d)           any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary, which assets or Equity Interests so disposed or issued have an aggregate Fair Market Value of less than $7.5 million;
 
(e)           any disposition of property or assets, or the issuance of securities, by a Restricted Subsidiary of the Borrower to the Borrower or by the Borrower or a Restricted Subsidiary of the Borrower to a Restricted Subsidiary of the Borrower;
 
(f)           any exchange of assets (including a combination of assets and Cash Equivalents) for assets related to a Similar Business of comparable or greater market value or usefulness to the business of the Borrower and its Restricted Subsidiaries as a whole, as determined in good faith by the Borrower;
 
(g)           foreclosure on assets of the Borrower or any of its Restricted Subsidiaries;
 
(h)           any sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
 
(i)           the lease, assignment or sublease of any real or personal property in the ordinary course of business;
 

--
 
-3-

 

(j)           any sale of inventory or other assets in the ordinary course of business;
 
(k)           any grant in the ordinary course of business of any license of patents, trademarks, know-how or any other intellectual property;
 
(l)           a transfer of accounts receivable and related assets of the type specified in the definition of “Receivables Financing” (or a fractional undivided interest therein) by a Receivables Subsidiary in a Qualified Receivables Financing; and
 
(m)           the sale of any property in a Sale/Leaseback Transaction within six months of the acquisition of such property.
 
Assignee ” shall have the meaning assigned to such term in Section 9.04(b).
 
Assignment and Acceptance ” shall mean an assignment and acceptance entered into by a Lender and an Assignee, and accepted by the Administrative Agent and the Borrower (if required by such assignment and acceptance), in the form of Exhibit A or such other form as shall be approved by the Administrative Agent and reasonably satisfactory to the Borrower.
 
Bank Agreement Security Documents ” shall mean the Existing Senior Security Agreement, the Second Amended and Restated First Lien Intellectual Property Security Agreement dated as of April 3, 2007, among Berry Plastics Group, Inc., the Borrower, the subsidiaries of the Borrower party thereto, the Term Loan Collateral Agent and the Revolving Facility Collateral Agent, as amended, supplemented, restated, renewed, refunded, replaced, restructured, repaid, refinanced or otherwise modified from time to time, all “Mortgages” as defined in the Revolving Credit Agreement and/or the Term Loan Credit Agreement, and any other documents now existing or entered into after the Closing Date that create Liens on any assets or properties of the Borrower or any Subsidiary Loan Party to secure any Term Loan Obligations or Revolving Facility Obligations.
 
Bank Indebtedness ” shall mean any and all amounts payable under or in respect of any Credit Agreement and any other Credit Agreement Documents as amended, restated, supplemented, waived, replaced, restructured, repaid, refunded, refinanced or otherwise modified from time to time (including after termination of any Credit Agreement), including principal, premium (if any), interest (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the Borrower whether or not a claim for post-filing interest is allowed in such proceedings), fees, charges, expenses, reimbursement obligations, guarantees and all other amounts payable thereunder or in respect thereof.
 
Bank of America ” shall mean Bank of America, N.A., and its successors.
 
Berry Covalence Merger ” shall have the meaning assigned to it in the recitals to this Agreement.
 
Board ” shall mean the Board of Governors of the Federal Reserve System of the United States of America.
 
Board of Directors ” shall mean, as to any Person, the board of directors or managers, as applicable, of such Person (or, if such Person is a partnership, the board of directors or other governing body of the general partner of such Person) or any duly authorized committee thereof.
 

--
 
-4-

 

Borrower ” shall have the meaning assigned to such term in the introductory paragraph of this Agreement.
 
Borrower Materials ” shall have the meaning assigned to such term in Section 9.17.
 
Borrowing ” shall mean a group of Loans of a single Type and made on a single date and, in the case of Eurocurrency Loans, as to which a single Interest Period is in effect.
 
Borrowing Minimum ” shall mean $5.0 million.
 
Borrowing Multiple ” shall mean $1.0 million.
 
Borrowing Request ” shall mean a request by the Borrower in accordance with the terms of Section 2.03 and substantially in the form of Exhibit C .
 
Bridge Loan ” shall mean each of the interim bridge loans made to the Borrower pursuant to Section 2.01(a).
 
Bridge Loan Borrowing ” shall mean a borrowing of Bridge Loans.
 
Bridge Loan Maturity Date ” shall mean February 5, 2009.
 
Bridge Note ” shall have the meaning set forth in Section 2.09(e).
 
Budget ” shall have the meaning assigned to such term in Section 5.04(e).
 
Business Day ” shall mean any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed; provided , that when used in connection with a Eurocurrency Loan, the term “Business Day” shall also exclude any day on which banks are not open for dealings in deposits in the applicable currency in the London interbank market.
 
Capital Stock ” shall mean:
 
(a)           in the case of a corporation, corporate stock or shares;
 
(b)           in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;
 
(c)           in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and
 
(d)           any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.
 
Capitalized Lease Obligation ” shall mean, at the time any determination thereof is to be made, the amount of the liability in respect of a capital lease that would at such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) in accordance with GAAP.
 

--
 
-5-

 

Captive Acquisition ” shall mean the acquisition by the Borrower of substantially all of the outstanding shares of Capital Stock of Captive Holdings, Inc. pursuant to the Captive Merger Agreement.
 
Captive Credit Agreement ” shall mean that certain credit agreement, dated August 18, 2005 by and among Captive Holdings, Inc., Captive Plastics, Inc., the guarantors party thereto, Credit Suisse, as administrative agent and collateral agent, and the lenders from time to time party thereto, as amended, modified or supplemented from time to time.
 
Captive Holdings ” shall have the meaning assigned to it in the recitals to this Agreement.
 
Captive Merger Agreement ” shall have the meaning assigned to it in the recitals to this Agreement.
 
Captive Merger Documents ” shall mean the collective reference to the Captive Merger Agreement, all material exhibits and schedules thereto and all agreements expressly contemplated thereby.
 
Captive Note ” shall mean that certain $10,000,000 subordinated note, dated July 21, 2004 by and among Captive Holdings, Inc. and the John W. Raymonds Lifetime Trust.
 
Captive Second Lien Credit Agreement ”  shall mean that certain second lien credit agreement, dated December 23, 2005 by and among Captive Holdings, Inc., Captive Plastics, Inc., the guarantors party thereto and Credit Suisse, as administrative agent and collateral agent, and the lenders from time to time party thereto, as amended, modified or supplemented from time to time.
 
Cash Contribution Amount ” shall mean the aggregate amount of cash contributions made to the capital of the Borrower described in the definition of “Contribution Indebtedness.”
 
Cash Equivalents ” shall mean:
 
(a)           Dollars, pounds sterling, euros, the national currency of any member state in the European Union or, in the case of any Foreign Subsidiary that is a Restricted Subsidiary, such local currencies held by it from time to time in the ordinary course of business;
 
(b)           securities issued or directly and fully guaranteed or insured by the U.S. government or any country that is a member of the European Union or any agency or instrumentality thereof in each case maturing not more than two years from the date of acquisition;
 
(c)           certificates of deposit, time deposits and eurodollar time deposits with maturities of one year or less from the date of acquisition, bankers’ acceptances, in each case with maturities not exceeding one year, and overnight bank deposits, in each case with any commercial bank having capital and surplus in excess of $250 million and whose long-term debt is rated “A” or the equivalent thereof by Moody’s or S&P (or reasonably equivalent ratings of another internationally recognized ratings agency);
 
(d)           repurchase obligations for underlying securities of the types described in clauses (b) and (c) above entered into with any financial institution meeting the qualifications specified in clause (c) above;
 

--
 
-6-

 

(e)           commercial paper issued by a corporation (other than an Affiliate of the Borrower) rated at least “A-1” or the equivalent thereof by Moody’s or S&P (or reasonably equivalent ratings of another internationally recognized ratings agency) and in each case maturing within one year after the date of acquisition;
 
(f)           readily marketable direct obligations issued by any state of the United States of America or any political subdivision thereof having one of the two highest rating categories obtainable from either Moody’s or S&P (or reasonably equivalent ratings of another internationally recognized ratings agency) in each case with maturities not exceeding two years from the date of acquisition;
 
(g)           Indebtedness issued by Persons (other than the Funds or any of the Fund Affiliates) with a rating of “A” or higher from S&P or “A-2” or higher from Moody’s in each case with maturities not exceeding two years from the date of acquisition; and
 
(h)           investment funds investing at least 95% of their assets in securities of the types described in clauses (a) through (g) above.
 
Change in Law ” shall mean (a) the adoption of any law, rule or regulation after the Closing Date, (b) any change in law, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the Closing Date or (c) compliance by any Lender (or, for purposes of Section 2.15(b), by any Lending Office of such Lender or by such Lender’s holding company, if any) with any written request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the Closing Date.
 
Change of Control ” shall mean the occurrence of any of the following events:
 
(a)           the sale, lease or transfer, in one or a series of related transactions, of all or substantially all the assets of the Borrower and its Subsidiaries, taken as a whole, to a Person other than any of the Permitted Holders; or
 
(b)           the Borrower becomes aware (by way of a report or any other filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) of the acquisition by any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor provision), including any group acting for the purpose of acquiring, holding or disposing of securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act), other than any of the Permitted Holders, in a single transaction or in a related series of transactions, by way of merger, consolidation or other business combination or purchase of beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act, or any successor provision), of more than 50% of the total voting power of the voting stock of the Borrower or any direct or indirect parent of the Borrower.
 
Change of Control Offer ” shall have the meaning assigned to such term in Section 2.11.
 
Change of Control Payment ” shall have the meaning assigned to such term in Section 2.11.
 
Change of Control Payment Date ” shall have the meaning assigned to such term in Section 2.11.
 
Charges ” shall have the meaning assigned to such term in Section 9.09.
 

--
 
-7-

 

Closing Date ” shall mean February 5, 2008.
 
Code ” shall mean the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder.
 
Collateral ” shall mean all the “Collateral” as defined in any Security Document and shall also include the Mortgaged Properties and all other property that is subject to any Lien in favor of the Collateral Agent or any Subagent for the benefit of the Lenders pursuant to any Security Documents.
 
Collateral Agent ” shall mean the party acting as collateral agent for the Secured Parties under the Security Documents.  On the Closing Date, the Collateral Agent is the same Person as the Administrative Agent.  Unless the context otherwise requires, the term “Administrative Agent” as used herein shall, unless the context otherwise requires, include the Collateral Agent, notwithstanding various specific references to the Collateral Agent herein.
 
Collateral Agreement ” shall mean the Bridge Loan Guarantee and Collateral Agreement, dated as of the Closing Date, as amended, supplemented or otherwise modified from time to time, in the form of Exhibit E , among the Borrower, each Subsidiary Loan Party and the Collateral Agent.
 
Collateral and Guarantee Requirement ” shall mean the requirement that:
 
(a)           on the Closing Date, the Collateral Agent shall have received from the Borrower and each Subsidiary Loan Party, a counterpart of the Collateral Agreement duly executed and delivered on behalf of such Person;
 
(b)           on or before the Closing Date, (i) the Collateral Agent shall have received (A) a pledge of all the issued and outstanding Equity Interests of each Domestic Subsidiary (other than Subsidiaries listed on Schedule 1.01(a) ) owned on the Closing Date directly by or on behalf of the Borrower or any Subsidiary Loan Party and (B) a pledge of 65% of the outstanding Equity Interests of (1) each “first tier” Foreign Subsidiary directly owned by any Loan Party (except for NIM Holdings Limited, Berry Plastics Asia Pte. Ltd., and Ociesse s.r.l., Berry Plastics Acquisition Corporation II, and Berry Plastics Acquisition Corporation XIV, LLC), and (2) each “first tier” Qualified CFC Holding Company directly owned by any Loan Party and (ii) subject to the terms of the Intercreditor Agreements, the Collateral Agent shall have received all certificates or other instruments (if any) representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto endorsed in blank;
 
(c)           (i) all Indebtedness of the Borrower and each Subsidiary having, in the case of each instance of Indebtedness, an aggregate principal amount in excess of $5.0 million (other than (A) intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of the Borrower and its Subsidiaries or (B) to the extent that a pledge of such promissory note or instrument would violate applicable law) that is owing to any Loan Party shall be evidenced by a promissory note or an instrument and shall have been pledged pursuant to the Collateral Agreement (or other applicable Security Document as reasonably required by the Administrative Agent) (which pledge, in the case of any intercompany note evidencing debt owed by a Foreign Subsidiary to a Loan Party, shall be limited to 65% of the amount outstanding thereunder), and (ii) the Possessory Collateral Agent shall have received all such promissory notes or instruments, together with note powers or other instruments of transfer with respect thereto endorsed in blank;
 

--
 
-8-

 

(d)           in the case of any Person that becomes a Subsidiary Loan Party after the Closing Date, the Collateral Agent shall have received a supplement to each of the Collateral Agreement, the Senior Lender Intercreditor Agreement, the Second Priority Intercreditor Agreement and the Senior Fixed Lender Intercreditor Agreement, in the form specified therein, duly executed and delivered on behalf of such Subsidiary Loan Party (it being understood that each Domestic Subsidiary that is acquired or formed after the Closing Date (including any Unrestricted Subsidiary that is redesignated) is a Subsidiary Loan Party and is required to become a party to the Collateral Agreement and the Intercreditor Agreements);
 
(e)           in the case of any Person that becomes a “first tier” Foreign Subsidiary directly owned by the Borrower or a Subsidiary Loan Party after the Closing Date, the Collateral Agent shall have received, as promptly as reasonably practicable following a request by the Collateral Agent, a Foreign Pledge Agreement, duly executed and delivered on behalf of such Foreign Subsidiary and the direct parent company of such Foreign Subsidiary;
 
(f)           after the Closing Date, (i) all the outstanding Equity Interests of (A) any Person that becomes a Subsidiary Loan Party after the Closing Date and (B) subject to Section 5.10(g), all the Equity Interests that are acquired by a Loan Party after the Closing Date (including, without limitation, the Equity Interests of any Receivables Subsidiary established after the Closing Date), shall have been pledged pursuant to the Collateral Agreement; provided that in no event shall more than 65% of the issued and outstanding Equity Interests of any “first tier” Foreign Subsidiary or any “first tier” Qualified CFC Holding Company directly owned by such Loan Party be pledged to secure Obligations, and in no event shall any of the issued and outstanding Equity Interests of any Foreign Subsidiary that is not a “first tier” Foreign Subsidiary of a Loan Party or any Qualified CFC Holding Company that is not a “first tier” Subsidiary of a Loan Party be pledged to secure Obligations, and (ii) subject to the terms of the Intercreditor Agreements, the Collateral Agent shall have received all certificates or other instruments (if any) representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto endorsed in blank;
 
(g)           except as otherwise contemplated by any Security Document or the Intercreditor Agreements, all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent to be filed, registered or recorded to create the Liens intended to be created by the Security Documents (in each case, including any supplements thereto) and perfect such Liens to the extent required by, and with the priority required by, the Security Documents, shall have been filed, registered or recorded or delivered to the Collateral Agent for filing, registration or the recording concurrently with, or promptly following, the execution and delivery of each such Security Document;
 
(h)           [Reserved];
 
(i)           [Reserved];
 
(j)           [Reserved];
 
(k)           except as otherwise contemplated by any Security Document, each Loan Party shall have obtained all consents and approvals required to be obtained by it in connection with (i) the execution and delivery of all Security Documents (or supplements thereto) to which it is a party and the granting by it of the Liens thereunder and (ii) the performance of its obligations thereunder; and
 

--
 
-9-

 

(l)           after the Closing Date, the Administrative Agent shall have received (i) such other Security Documents as may be required to be delivered pursuant to Section 5.10, and (ii) upon reasonable request by the Administrative Agent, evidence of compliance with any other requirements of Section 5.10.
 
Commitment ” shall mean, with respect to any Lender, such Lender’s commitment to make Bridge Loans under Section 2.01(a) in the amount set forth opposite such Lender’s name on Schedule 2.01 or in the Assignment and Acceptance pursuant to which such Lender shall have assumed its Commitment, as applicable.  The aggregate amount of Commitments of all Lenders on the Closing Date is $520,000,000.
 
Commitment Banks ” shall mean Banc of America Bridge LLC, Goldman Sachs Credit Partners L.P., Lehman Commercial Paper Inc. and Lehman Brothers Commercial Bank.
 
Commitment Letter ” shall mean that certain Commitment Letter dated December 21, 2007 by and among the Borrower, Banc of America Bridge LLC, Banc of America Securities LLC, Goldman Sachs Credit Partners L.P., Lehman Commercial Paper Inc., Lehman Brothers Commercial Bank and Lehman Brothers Inc.
 
Conduit Lender ” shall mean any special purpose corporation organized and administered by any Lender for the purpose of making Loans otherwise required to be made by such Lender and designated by such Lender in a written instrument; provided that the designation by any Lender of a Conduit Lender shall not relieve the designating Lender of any of its obligations to fund a Loan under this Agreement if, for any reason, its Conduit Lender fails to fund any such Loan, and the designating Lender (and not the Conduit Lender) shall have the sole right and responsibility to deliver all consents and waivers required or requested under this Agreement with respect to its Conduit Lender; provided , further , that no Conduit Lender shall (a) be entitled to receive any greater amount pursuant to Section 2.15, 2.16, 2.17 or 9.05 than the designating Lender would have been entitled to receive in respect of the extensions of credit made by such Conduit Lender or (b) be deemed to have any Commitment.
 
consolidated ” shall mean, with respect to any Person, such Person consolidated with its Restricted Subsidiaries, and shall not include any Unrestricted Subsidiary, but the interest of such Person in an Unrestricted Subsidiary shall be accounted for as an Investment.
 
Consolidated Interest Expense ” shall mean, with respect to any Person for any period, the sum, without duplication, of:
 
(1)           consolidated interest expense of such Person and its Restricted Subsidiaries for such period, to the extent such expense was deducted in computing Consolidated Net Income (including amortization of original issue discount, the interest component of Capitalized Lease Obligations, and net payments and receipts (if any) pursuant to interest rate Hedging Obligations and excluding amortization of deferred financing fees and expensing of any bridge or other financing fees); plus
 
(2)           consolidated capitalized interest of such Person and its Restricted Subsidiaries for such period, whether paid or accrued; plus
 
(3)           commissions, discounts, yield and other fees and charges Incurred in connection with any Receivables Financing which are payable to Persons other than the Borrower and its Restricted Subsidiaries; minus
 

--
 
-10-

 

(4)           interest income for such period.
 
Consolidated Net Income ” shall mean, with respect to any Person for any period, the aggregate of the Net Income of such Person and its Restricted Subsidiaries for such period, on a consolidated basis; provided , however , that:
 
(a)           any net after-tax extraordinary, nonrecurring or unusual gains or losses or income, expenses or charges (less all fees and expenses relating thereto), including, without limitation, any severance expenses, any expenses related to any reconstruction, recommissioning or reconfiguration of fixed assets for alternate uses, and fees, expenses or charges relating to new product lines, plant shutdown costs, acquisition integration costs, expenses or charges related to any Equity Offering, Permitted Investment, acquisition or Indebtedness permitted to be Incurred by this Agreement (in each case, whether or not successful), including any such fees, expenses, charges or change in control payments made under the Acquisition Documents or otherwise related to the Transactions, in each case, shall be excluded;
 
(b)           any increase in amortization or depreciation or any one-time non-cash charges increases or reductions in Net Income, in each case resulting from purchase accounting in connection with the Transactions or any acquisition that is consummated after the Closing Date shall be excluded;
 
(c)           the Net Income for such period shall not include the cumulative effect of a change in accounting principles during such period;
 
(d)           any net after-tax income or loss from discontinued operations and any net after-tax gains or losses on disposal of discontinued operations shall be excluded;
 
(e)           any net after-tax gains or losses (less all fees and expenses or charges relating thereto) attributable to business dispositions or asset dispositions other than in the ordinary course of business (as determined in good faith by the Board of Directors of the Borrower) shall be excluded;
 
(f)           any net after-tax gains or losses (less all fees and expenses or charges relating thereto) attributable to the early extinguishment of indebtedness shall be excluded;
 
(g)           the Net Income for such period of any Person that is not a Subsidiary of such Person, or is an Unrestricted Subsidiary, or that is accounted for by the equity method of accounting, shall be included only to the extent of the amount of dividends or distributions or other payments paid in cash (or to the extent converted into cash) to the referent Person or a Restricted Subsidiary thereof in respect of such period;
 
(h)           solely for the purpose of determining the amount available for Restricted Payments under clause (a) of the definition of Cumulative Credit, the Net Income for such period of any Restricted Subsidiary (other than any Subsidiary Loan Party) shall be excluded to the extent that the declaration or payment of dividends or similar distributions by such Restricted Subsidiary of its Net Income is not at the date of determination permitted without any prior governmental approval (which has not been obtained) or, directly or indirectly, by the operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders, unless such restrictions with respect to the payment of dividends or similar distributions have been legally waived; provided that the Consolidated Net Income of such Person shall be increased by the amount of div
 

--
 
-11-

 

dends or other distributions or other payments actually paid in cash (or converted into cash) by any such Restricted Subsidiary to such Person, to the extent not already included therein;
 
(i)           an amount equal to the amount of Tax Distributions actually made to any parent of such Person in respect of such period in accordance with Section 6.04(b)(xii) shall be included as though such amounts had been paid as income taxes directly by such Person for such period;
 
(j)           any non-cash impairment charges resulting from the application of Statement of Financial Accounting Standards (“ SFAS ”) Nos. 142 and 144 and the amortization of intangibles arising pursuant to SFAS No. 141 shall be excluded;
 
(k)           any non-cash expense realized or resulting from stock option plans, employee benefit plans or post-employment benefit plans, grants of stock appreciation or similar rights, stock options or other rights to officers, directors and employees of such Person or any of its Restricted Subsidiaries shall be excluded;
 
(l)           any (a) severance or relocation costs or expenses, (b) one-time non-cash compensation charges, (c) the costs and expenses after the Closing Date related to employment of terminated employees, (d) costs or expenses realized in connection with, resulting from or in anticipation of the Transactions or (e) costs or expenses realized in connection with or resulting from stock appreciation or similar rights, stock options or other rights existing on the Closing Date of officers, directors and employees, in each case of such Person or any of its Restricted Subsidiaries, shall be excluded;
 
(m)           accruals and reserves that are established within 12 months after the Closing Date and that are so required to be established in accordance with GAAP shall be excluded;
 
(n)           solely for purposes of calculating EBITDA, (a) the Net Income of any Person and its Restricted Subsidiaries shall be calculated without deducting the income attributable to, or adding the losses attributable to, the minority equity interests of third parties in any non-wholly-owned Restricted Subsidiary except to the extent of dividends declared or paid in respect of such period or any prior period on the shares of Capital Stock of such Restricted Subsidiary held by such third parties and (b) any ordinary course dividend, distribution or other payment paid in cash and received from any Person in excess of amounts included in clause (7) above shall be included;
 
(o)           (a)(i) the non-cash portion of “straight-line” rent expense shall be excluded and (ii) the cash portion of “straight-line” rent expense which exceeds the amount expensed in respect of such rent expense shall be included and (b) non-cash gains, losses, income and expenses resulting from fair value accounting required by Statement of Financial Accounting Standards No. 133 shall be excluded;
 
(p)           unrealized gains and losses relating to hedging transactions and mark-to-market of Indebtedness denominated in foreign currencies resulting from the applications of Financial Accounting Standards 52 shall be excluded; and
 
(q)           solely for the purpose of calculating Restricted Payments, the difference, if positive, of the Consolidated Taxes of the Borrower calculated in accordance with GAAP and the actual Consolidated Taxes paid in cash by the Borrower during any Reference Period shall be included.
 

--
 
-12-

 

Notwithstanding the foregoing, for the purpose of Section 6.04 only, there shall be excluded from Consolidated Net Income any dividends, repayments of loans or advances or other transfers of assets from Unrestricted Subsidiaries of the Borrower or a Restricted Subsidiary of the Borrower to the extent such dividends, repayments or transfers increase the amount of Restricted Payments permitted under clauses (E) and (F) of the definition of “Cumulative Credit.”
 
Consolidated Non-cash Charges ” shall mean, with respect to any Person for any period, the aggregate depreciation, amortization and other non-cash expenses of such Person and its Restricted Subsidiaries reducing Consolidated Net Income of such Person for such period on a consolidated basis and otherwise determined in accordance with GAAP, but excluding any such charge which consists of or requires an accrual of, or cash reserve for, anticipated cash charges for any future period.
 
Consolidated Taxes ” shall mean provision for taxes based on income, profits or capital, including, without limitation, state, franchise and similar taxes and any Tax Distributions taken into account in calculating Consolidated Net Income.
 
Contingent Obligations ” shall mean, with respect to any Person, any obligation of such Person guaranteeing any leases, dividends or other obligations that do not constitute Indebtedness (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent:
 
(a)           to purchase any such primary obligation or any property constituting direct or indirect security therefor,
 
(b)           to advance or supply funds:
 
                (i) for the purchase or payment of any such primary obligation; or
 
                (ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor; or
 
                (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation against loss in respect thereof.
 
Contribution Indebtedness ” shall mean Indebtedness of the Borrower or any Subsidiary Loan Party in an aggregate principal amount not greater than twice the aggregate amount of cash contributions (other than Excluded Contributions) made to the capital of the Borrower or any such Subsidiary Loan Party after the Closing Date; provided that:
 
(1)           such cash contributions have not been used to make a Restricted Payment,
 
(2)           if the aggregate principal amount of such Contribution Indebtedness is greater than the aggregate amount of such cash contributions to the capital of the Borrower or any such Subsidiary Loan Party, as the case may be, the amount in excess shall be Indebtedness (other than Secured Indebtedness) with a Stated Maturity later than the Stated Maturity of the Loans, and
 
(3)           such Contribution Indebtedness (a) is Incurred within 180 days after the making of such cash contributions and (b) is so designated as Contribution Indebtedness pursuant to an Officers’ Certificate on the Incurrence date thereof.
 

--
 
-13-

 

Covalence ” shall have the meaning assigned to it in the recitals to this Agreement.
 
Covenant Suspension Event ” shall have the meaning assigned to such term in Section 6.09(b).
 
 “ Credit Agreement Documents ” shall mean the collective reference to Credit Agreements, any notes issued pursuant thereto and the guarantees thereof, and the collateral documents relating thereto, as amended, supplemented, restated, renewed, refunded, replaced, restructured, repaid, refinanced or otherwise modified from time to time.
 
Credit Agreements ” shall mean (i)(A) the Term Loan Credit Agreement and (B) the Revolving Credit Agreement, and (ii) whether or not the credit agreements referred to in clause (i) remains outstanding, if designated by the Borrower to be included in the definition of “Credit Agreement,” one or more (A) debt facilities or commercial paper facilities, providing for revolving credit loans, term loans, receivables financing (including through the sale of receivables to lenders or to special purpose entities formed to borrow from lenders against such receivables) or letters of credit, (B) debt securities, indentures or other forms of debt financing (including convertible or exchangeable debt instruments or bank guarantees or bankers’ acceptances), or (C) instruments or agreements evidencing any other Indebtedness, in each case, with the same or different borrowers or issuers and, in each case, as amended, supplemented, modified, extended, restructured, renewed, refinanced, restated, replaced or refunded in whole or in part from time to time.
 
Cumulative Credit ” shall mean the sum of (without duplication):
 
(A)           50% of the Consolidated Net Income of the Borrower for the period (taken as one accounting period, the “ Reference Period ”) from April 1, 2008 to the end of the Borrower’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, in the case such Consolidated Net Income for such period is a deficit, minus 100% of such deficit), plus
 
(B)           100% of the aggregate net proceeds, including cash and the Fair Market Value (as determined in good faith by Borrower) of property other than cash, received by the Borrower after the Closing Date from the issue or sale of Equity Interests of the Borrower (excluding Refunding Capital Stock, Designated Preferred Stock, Excluded Contributions, Disqualified Stock and the Cash Contribution Amount), including Equity Interests issued upon conversion of Indebtedness or Disqualified Stock or upon exercise of warrants or options (other than an issuance or sale to a Restricted Subsidiary of the Borrower or an employee stock ownership plan or trust established by the Borrower or any of its Subsidiaries), plus
 
(C)           100% of the aggregate amount of contributions to the capital of the Borrower received in cash and the Fair Market Value (as determined in good faith by the Borrower) of property other than cash after the Closing Date (other than Excluded Contributions, Refunding Capital Stock, Designated Preferred Stock, Disqualified Stock and the Cash Contribution Amount), plus
 
(D)           the principal amount of any Indebtedness, or the liquidation preference or maximum fixed repurchase price, as the case may be, of any Disqualified Stock of the Borrower or any Restricted Subsidiary thereof issued after the Closing Date (other than Indebtedness or Disqualified Stock issued to a Restricted Subsidiary) which has been converted into or exchanged for Equity Interests in the Borrower (other than Disqualified Stock) or any direct or indirect parent of the Borrower (provided in the case of any parent, such Indebtedness or Disqualified Stock is retired or extinguished), plus
 

--
 
-14-

 

(E)           100% of the aggregate amount received by the Borrower or any Restricted Subsidiary in cash and the Fair Market Value (as determined in good faith by the Borrower) of property other than cash received by the Borrower or any Restricted Subsidiary after the Closing Date from:
 
                (I) the sale or other disposition (other than to the Borrower or a Restricted Subsidiary of the Borrower) of Restricted Investments made by the Borrower and its Restricted Subsidiaries and from repurchases and redemptions of such Restricted Investments from the Borrower and its Restricted Subsidiaries by any Person (other than the Borrower or any of its Restricted Subsidiaries) and from repayments of loans or advances which constituted Restricted Investments (other than in each case to the extent that the Restricted Investment was made pursuant to clause (vii) or (x) of Section 6.04(b)),
 
                (II) the sale (other than to the Borrower or a Restricted Subsidiary of the Borrower) of the Capital Stock of an Unrestricted Subsidiary, or
 
                (III) a distribution or dividend from an Unrestricted Subsidiary, plus
 
(F)           in the event any Unrestricted Subsidiary of the Borrower has been redesignated as a Restricted Subsidiary or has been merged, consolidated or amalgamated with or into, or transfers or conveys its assets to, or is liquidated into, the Borrower or a Restricted Subsidiary, in each case after the Closing Date, the Fair Market Value (as determined in good faith by the Borrower or, if such Fair Market Value may exceed $25.0 million, in writing by an Independent Financial Advisor) of the Investment of the Borrower in such Unrestricted Subsidiary at the time of such redesignation, combination or transfer (or of the assets transferred or conveyed, as applicable), after taking into account any Indebtedness associated with the Unrestricted Subsidiary so designated or combined or any Indebtedness associated with the assets so transferred or conveyed (other than in each case to the extent that the designation of such Subsidiary as an Unrestricted Subsidiary was made pursuant to clause (vii) or (x) of Section 6.04(b) or constituted a Permitted Investment).
 
Default ” shall mean any event or condition that upon notice, lapse of time or both would constitute an Event of Default.
 
Defaulting Lender ” shall mean any Lender with respect to which a Lender Default is in effect.
 
 “ Designated Non-cash Consideration ” shall mean the Fair Market Value of non-cash consideration received by the Borrower or one of its Restricted Subsidiaries in connection with an Asset Sale that is so designated as Designated Non-cash Consideration pursuant to an Officers’ Certificate, setting forth the basis of such valuation, less the amount of Cash Equivalents received in connection with a subsequent sale of such Designated Non-cash Consideration.
 
Designated Preferred Stock ” shall mean Preferred Stock of the Borrower or any direct or indirect parent of the Borrower, as applicable (other than Disqualified Stock), that is issued for cash (other than to the Borrower or any of its Subsidiaries or an employee stock ownership plan or trust established by the Borrower or any of its Subsidiaries) and is so designated as Designated Preferred Stock, pursuant to an Officers’ Certificate, on the issuance date thereof.
 

--
 
-15-

 

Disqualified Stock ” shall mean, with respect to any Person, any Capital Stock of such Person which, by its terms (or by the terms of any security into which it is convertible or for which it is redeemable or exchangeable), or upon the happening of any event:
 
(a)           matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise (other than as a result of a change of control or asset sale; provided that the relevant asset sale or change of control provisions, taken as a whole, are no more favorable in any material respect to holders of such Capital Stock than the asset sale and change of control provisions applicable to the Loans and any purchase requirement triggered thereby may not become operative until compliance with the asset sale and change of control provisions applicable to the Loans (including the purchase of any Loans tendered pursuant thereto)),
 
(b)           is convertible or exchangeable for Indebtedness or Disqualified Stock of such Person, or
 
(c)           is redeemable at the option of the holder thereof, in whole or in part,
 
in each case prior to 91 days after the Rollover Loan Maturity Date; provided , however , that only the portion of Capital Stock which so matures or is mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof prior to such date shall be deemed to be Disqualified Stock; provided , further , however , that if such Capital Stock is issued to any employee or to any plan for the benefit of employees of the Borrower or its Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute Disqualified Stock solely because it may be required to be repurchased by the Borrower in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability; provided , further , that any class of Capital Stock of such Person that by its terms authorizes such Person to satisfy its obligations thereunder by delivery of Capital Stock that is not Disqualified Stock shall not be deemed to be Disqualified Stock.
 
Documentation Agent ” shall have the meaning assigned to such term in the introductory paragraph of this Agreement.
 
Dollars ” or “ $ ” shall mean the lawful currency of the United States of America.
 
Domestic Subsidiary ” shall mean any Subsidiary that is not a Foreign Subsidiary, a Qualified CFC Holding Company or a subsidiary listed on Schedule 1.01(a).
 
EBITDA ” shall mean, with respect to any Person for any period, the Consolidated Net Income of such Person for such period plus, without duplication, to the extent the same was deducted in calculating Consolidated Net Income:
 
(a)           Consolidated Taxes; plus
 
(b)           Consolidated Interest Expense; plus
 
(c)           Consolidated Non-cash Charges; plus
 
(d)           business optimization expenses and other restructuring charges or expenses (which, for the avoidance of doubt, shall include, without limitation, the effect of inventory optimization programs, plant closures, retention, systems establishment costs and excess pension charges); provided that with respect to each business optimization expense or other restructuring charge, the Borrower shall have delivered to the Administrative Agent an Officers’ Certificate
 

--
 
-16-

 

specifying and quantifying such expense or charge and stating that such expense or charge is a business optimization expense or other restructuring charge, as the case may be; plus
 
(e)           the amount of management, monitoring, consulting and advisory fees and related expenses paid to the Funds or any Fund Affiliates (or any accruals relating to such fees and related expenses) during such period pursuant to the terms of the agreements between the Fund Affiliates and the Borrower and its Subsidiaries;
 

 
less , without duplication,
 
(f)           non-cash items increasing Consolidated Net Income for such period (excluding the recognition of deferred revenue or any items which represent the reversal of any accrual of, or cash reserve for, anticipated cash charges in any prior period and any items for which cash was received in a prior period).
 
environment ” shall mean ambient and indoor air, surface water and groundwater (including potable water, navigable water and wetlands), the land surface or subsurface strata, natural resources such as flora and fauna, the workplace or as otherwise defined in any Environmental Law.
 
Environmental Laws ” shall mean all applicable laws (including common law), rules, regulations, codes, ordinances, orders, decrees or judgments, promulgated or entered into by any Governmental Authority, relating in any way to the environment, preservation or reclamation of natural resources, the generation, management, Release or threatened Release of, or exposure to, any Hazardous Material or to occupational health and safety matters (to the extent relating to the environment or Hazardous Materials).
 
Equity Interests ” shall mean Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).
 
Equity Issuance ” shall mean, without duplication, any issuance or sale by the Borrower after the Closing Date of any Equity Interests in the Borrower or any direct or indirect parent of the Borrower (including any Equity Interests issued upon exercise of any warrant or option) or any warrants or options to purchase Equity Interests; provided , however , that an Equity Issuance shall not include (y) any sale or issuance by the Borrower or any direct or indirect parent of the Borrower of any Equity Interests (including its Equity Interests issued upon exercise of any warrant or option or warrants or options to purchase its Equity Interests but excluding Disqualified Stock), in each case, to directors, officers or employees of the Borrower or any direct or indirect parent of the Borrower, or any of their Subsidiaries in connection with any employee stock option plan and (z) any sale or issuance by the Borrower or any direct or indirect parent of the Borrower of any Equity Interests (including its Equity Interests issued upon exercise of any warrant or option or warrants or options to purchase its Equity Interests but excluding Disqualified Stock), to Holdings, or any Permitted Holder identified in clause (i) of the definition thereto.
 
Equity Offering ” shall mean any public or private sale after the Closing Date of common stock or Preferred Stock of the Borrower or any direct or indirect parent of the Borrower, as applicable (other than Disqualified Stock), other than:
 
(1)           public offerings with respect to the Borrower’s or such direct or indirect parent’s common stock registered on Form S-8; and
 
(2)           any such public or private sale that constitutes an Excluded Contribution.
 

--
 
-17-

 

ERISA ” shall mean the Employee Retirement Income Security Act of 1974, as the same may be amended from time to time and any final regulations promulgated and the rulings issued thereunder.
 
ERISA Affiliate ” shall mean any trade or business (whether or not incorporated) that, together with the Borrower or a Subsidiary, is treated as a single employer under Section 414(b) or (c) of the Code, or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.
 
ERISA Event ” shall mean (a) any Reportable Event or the requirements of Section 4043(b) of ERISA apply with respect to a Plan ; (b) the existence with respect to any Plan of an “accumulated funding deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan, the failure to make by its due date a required installment under Section 412(m) of the Code with respect to any Plan or the failure to make any required contribution to a Multiemployer Plan; (d) the incurrence by the Borrower, a Subsidiary or any ERISA Affiliate of any liability under Title IV of ERISA with respect to the termination of any Plan or Multiemployer Plan; (e) the receipt by the Borrower, a Subsidiary or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or to appoint a trustee to administer any Plan under Section 4042 of ERISA; (f) the incurrence by the Borrower, a Subsidiary or any ERISA Affiliate of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; (g) the receipt by the Borrower, a Subsidiary or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower, a Subsidiary or any ERISA Affiliate of any notice, concerning the impending imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA; (h) the conditions for imposition of a lien under Section 302(f) of ERISA shall have been met with respect to any Plan; or (i) the adoption of an amendment to a Plan requiring the provision of security to such Plan pursuant to Section 307 of ERISA .
 
Eurocurrency Borrowing ” shall mean a Borrowing comprised of Eurocurrency Loans.
 
Eurocurrency Loan ” shall mean any Bridge Loan bearing interest at a rate determined by reference to the Adjusted LIBO Rate in accordance with the provisions of Article II.
 
Event of Default ” shall have the meaning assigned to such term in Section 7.01.
 
Exchange Act ” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder.
 
Exchange Date ” shall have the meaning assigned to such term in Section 2.01(d)(ii).
 
Exchange Notes ” shall have the meaning assigned to such term in Section 2.01(d)(i).
 
Exchange Notes Indenture ” shall mean the indenture to be entered into relating to the Exchange Notes substantially in the form of Exhibit D (with such changes to cure any ambiguity, omission, defect or inconsistency, in each case, as the Joint Lead Arrangers and the Borrower shall agree), as the same may be amended, modified or supplemented from time to time in accordance with the terms thereof.
 
Exchange Notice ” shall have the meaning assigned to such term in Section 2.01(d)(i).
 

--
 
-18-

 

Exchange Trigger Event ” shall mean on and after the Rollover Date, (a) with respect to the initial Exchange Trigger Event, the receipt by the Administrative Agent of one or more Exchange Notices which, individually or together, represent at least $100 million aggregate principal amount of Rollover Loans that have not been exchanged for Exchange Notes and (b) thereafter (i) the receipt by the Administrative Agent of one or more Exchange Notices which, individually or together, represent at least $25 million aggregate principal amount of Rollover Loans that have not been exchanged for Exchange Notes and (ii) if less than $25 million aggregate principal amount of Rollover Loans are outstanding at such time, the remainder of the then outstanding Rollover Loans..
 
Excluded Contributions ” shall mean the Cash Equivalents or other assets (valued at their Fair Market Value as determined in good faith by senior management or the Board of Directors of the Borrower) received by the Borrower after the Closing Date from:
 
(a)           contributions to its common equity capital, and
 
(b)           the sale (other than to a Subsidiary of the Borrower or to any Subsidiary management equity plan or stock option plan or any other management or employee benefit plan or agreement) of Capital Stock (other than Disqualified Stock and Designated Preferred Stock) of the Borrower,
 
in each case designated as Excluded Contributions pursuant to an Officers’ Certificate executed by an officer of the Borrower on or promptly after the date such capital contributions are made or the date such Capital Stock is sold, as the case may be.
 
Excluded Indebtedness ” shall mean all Indebtedness permitted to be incurred under Section 6.01 (other than Section 6.01(b)(xvi) and any Permanent Financing).
 
Excluded Taxes ” shall mean, with respect to the Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder, (a) any income taxes imposed on (or measured by) its net income (or franchise taxes imposed in lieu of net income taxes) by the United States of America (or any state or locality thereof) or the jurisdiction under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable Lending Office is located or any other jurisdiction as a result of such recipient engaging in a trade or business in such jurisdiction for tax purposes, (b) any branch profits tax or any similar tax that is imposed by any jurisdiction described in clause (a) above, (c) in the case of a Lender making a Loan to the Borrower, any tax (including any backup withholding tax) imposed by the United States (or the jurisdiction under the laws of which such Lender is organized or in which its principal office is located or in which its applicable Lending Office is located or any other jurisdiction as a result of such Lender engaging in a trade or business or having a taxable presence in such jurisdiction for tax purposes) that (x) is in effect and would apply to amounts payable hereunder to such Lender at the time such Lender becomes a party to such Loan to the Borrower (or designates a new Lending Office) except to the extent that the assignor to such Lender in the case of an assignment or the Lender in the case of a designation of a new Lending Office (for the absence of doubt, other than the Lending Office at the time such Lender becomes a party to such Loan) was entitled, at the time of such assignment or designation of a new Lending Office, respectively, to receive additional amounts from a Loan Party with respect to any withholding tax pursuant to Section 2.17(a) or Section 2.17(c) or (y) is attributable to such Lender’s failure to comply with Section 2.17(e) or (f) with respect to such Loan and (d) any taxes that are imposed as a result of any event occurring after the Lender becomes a Lender (other than a Change in Law) in the case of clause (a), (b), (c) and (d), together with any and all interest and penalties related thereto.
 

--
 
-19-

 

Existing Senior Security Agreement ” shall mean the Second Amended and Restated First Lien Guarantee and Collateral Agreement dated as of April 3, 2007 among the Borrower, Holdings, and the Subsidiaries of the Borrower identified therein, the Revolving Facility Collateral Agent and the Term Loan Collateral Agent as the same may be amended, amended and restated or otherwise modified from time to time.
 
Facility ” shall mean the respective facility and commitments utilized in making Loans and credit extensions hereunder, i.e. , the Bridge Loans and the Rollover Loans.
 
Fair Market Value ” shall mean, with respect to any asset or property, the price which could be negotiated in an arm’s-length, free market transaction, for cash, between a willing seller and a willing and able buyer, neither of whom is under undue pressure or compulsion to complete the transaction.
 
Federal Funds Effective Rate ” shall mean, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Effective Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Effective Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as determined by the Administrative Agent.
 
Fee Letter ” shall mean that certain Fee Letter dated December 21, 2007 by and among the Borrower, Banc of America Bridge LLC, Banc of America Securities LLC, Goldman Sachs Credit Partners L.P., Lehman Commercial Paper Inc., Lehman Brothers Commercial Bank and Lehman Brothers Inc.
 
Fees ” shall have the meaning assigned to such term in Section 2.12(a).
 
Financial Officer ” of any Person shall mean the Chief Financial Officer, principal accounting officer, Treasurer, Assistant Treasurer or Controller of such Person.
 
First Priority Lien Obligations ” shall mean (i) all Secured Bank Indebtedness, (ii) all other Obligations (not constituting Indebtedness) of the Borrower and its Restricted Subsidiaries under the agreements governing Secured Bank Indebtedness, (iii) Obligations and (iv) all other obligations of the Borrower or any of its Restricted Subsidiaries in respect of Hedging Obligations or Obligations in respect of cash management services, in each case owing to a Person that is a holder of Indebtedness described in clause (i) or Obligations described in clause (ii) or an Affiliate of such holder at the time of entry into such Hedging Obligations or Obligations in respect of cash management services.
 
Fixed Charge Coverage Ratio ” shall mean, with respect to any Person for any period, the ratio of EBITDA of such Person for such period to the Fixed Charges of such Person for such period.  In the event that the Borrower or any of its Restricted Subsidiaries Incurs, repays, repurchases or redeems any Indebtedness (other than in the case of revolving credit borrowings or revolving advances under any Qualified Receivables Financing, in which case interest expense shall be computed based upon the average daily balance of such Indebtedness during the applicable period) or issues, repurchases or redeems Disqualified Stock or Preferred Stock subsequent to the commencement of the period for which the Fixed Charge Coverage Ratio is being calculated but prior to the event for which the calculation of the Fixed Charge Coverage Ratio is made (the “ Calculation Date ”), then the Fixed Charge Coverage Ratio shall be
 

--
 
-20-

 

calculated giving pro forma effect to such Incurrence, repayment, repurchase or redemption of Indebtedness, or such issuance, repurchase or redemption of Disqualified Stock or Preferred Stock, as if the same had occurred at the beginning of the applicable four-quarter period.
 
For purposes of making the computation referred to above, Investments, acquisitions, dispositions, mergers, consolidations and discontinued operations (as determined in accordance with GAAP), in each case with respect to an operating unit of a business, and any operational changes that the Borrower or any of its Restricted Subsidiaries has determined to make and/or made after the Closing Date and during the four-quarter reference period or subsequent to such reference period and on or prior to or simultaneously with the Calculation Date (each, for purposes of this definition, a “pro forma event”) shall be calculated on a pro forma basis assuming that all such Investments, acquisitions, dispositions, mergers, consolidations (including the Transactions) discontinued operations and operational changes (and the change of any associated fixed charge obligations and the change in EBITDA resulting therefrom) had occurred on the first day of the four-quarter reference period.  If since the beginning of such period any Person that subsequently became a Restricted Subsidiary or was merged with or into the Borrower or any Restricted Subsidiary since the beginning of such period shall have made any Investment, acquisition, disposition, merger, consolidation, discontinued operation or operational change, in each case with respect to an operating unit of a business, that would have required adjustment pursuant to this definition, then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect thereto for such period as if such Investment, acquisition, disposition, discontinued operation, merger, consolidation or operational change had occurred at the beginning of the applicable four-quarter period.
 
For purposes of this definition, whenever pro forma effect is to be given to any pro forma event, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Borrower.  Any such pro forma calculation may include adjustments appropriate, in the reasonable good faith determination of the Borrower as set forth in an Officers’ Certificate, to reflect (1) operating expense reductions and other operating improvements or synergies reasonably expected to result from the applicable pro forma event (including, to the extent applicable, from the Transactions), and (2) all pro forma adjustments of the nature used in similar calculations in the Second Priority Notes Indenture (as in effect on the date hereof), including, without limitation, as applied to the Transactions.
 
If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the Calculation Date had been the applicable rate for the entire period (taking into account any Hedging Obligations applicable to such Indebtedness if such Hedging Obligation has a remaining term in excess of 12 months).  Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP.  For purposes of making the computation referred to above, interest on any Indebtedness under a revolving credit facility computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period.  Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower may designate.
 
Fixed Charges ” shall mean, with respect to any Person for any period, the sum, without duplication, of:
 
(1)           Consolidated Interest Expense of such Person for such period, and
 

--
 
-21-

 

(2)           all cash dividend payments (excluding items eliminated in consolidation) on any series of Preferred Stock or Disqualified Stock of such Person and its Restricted Subsidiaries.
 
Foreign Pledge Agreement ” shall mean a pledge agreement with respect to the Pledged Collateral that constitutes Equity Interests of a “first tier” Foreign Subsidiary, in form and substance reasonably satisfactory to the Collateral Agent; provided that in no event shall more than 65% of the issued and outstanding Equity Interests of such Foreign Subsidiary be pledged to secure Obligations of the Borrower.
 
Foreign Subsidiary ” shall mean any Restricted Subsidiary not organized or existing under the laws of the United States of America or any state or territory thereof or the District of Columbia and any direct or indirect subsidiary of such Restricted Subsidiary.
 
Fund Affiliates ” shall mean (i) each Affiliate of any Funds, (ii) any individual who is a partner or employee of Apollo Management, L.P., Apollo Management IV, L.P. or Apollo Management V, L.P., Apollo Management VI, L.P., and (iii) Graham BPC Investment Holdings, LP.
 
Fund I ” shall mean Apollo Management V, L.P. and other affiliated co-investment partnerships.
 
Fund II ” shall mean Apollo Management VI, L.P. and other affiliated co-investment partnerships and Graham Partners Inc.
 
Funds ” shall mean Fund I and Fund II, collectively.
 
GAAP ” shall mean generally accepted accounting principles in effect from time to time in the United States, applied on a consistent basis, subject to the provisions of Section 1.02; provided that any reference to the application of GAAP in Sections 3.13(b), 3.20, 5.03 and 5.07 to a Foreign Subsidiary (and not as a consolidated Subsidiary of the Borrower) shall mean generally accepted accounting principles in effect from time to time in the jurisdiction of organization of such Foreign Subsidiary.
 
Governmental Authority ” shall mean any federal, state, local or foreign court or governmental agency, authority, instrumentality or regulatory or legislative body.
 
guarantee ” shall mean a guarantee (other than by endorsement of negotiable instruments for collection in the ordinary course of business), direct or indirect, in any manner (including, without limitation, letters of credit and reimbursement agreements in respect thereof), of all or any part of any Indebtedness or other obligations.
 
Guarantee ” shall mean any guarantee of the obligations of the Borrower under this Agreement by any Person, pursuant to the Collateral Agreement.
 
Hazardous Materials ” shall mean all pollutants, contaminants, wastes, chemicals, materials, substances and constituents, including, without limitation, explosive or radioactive substances or petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls or radon gas, of any nature subject to regulation or which can give rise to liability under any Environmental Law.
 
Hedging Obligations ” shall mean, with respect to any Person, the obligations of such Person under (i) currency exchange, interest rate or commodity swap agreements, currency exchange, interest rate or commodity cap agreements and currency exchange, interest rate or commodity collar
 

--
 
-22-

 

agreements, and (ii) other agreements or arrangements designed to protect such Person against fluctuations in currency exchange, interest rates or commodity prices.
 
Holdings ” shall have the meaning assigned to it in the recitals to this Agreement.
 
Immaterial Subsidiary ” shall mean any Subsidiary that, as of the last day of the fiscal quarter of the Borrower most recently ended, (a) did not have assets with a value in excess of 5.0% of the Total Assets or revenues representing in excess of 5.0% of total revenues of the Borrower and the Subsidiaries on a consolidated basis as of such date and (b) when taken together with all other Immaterial Subsidiaries as of such date, did not have assets with a value in excess of 10.0% of the Total Assets or revenues representing in excess of 10.0% of total revenues of the Borrower and the Subsidiaries on a consolidated basis as of such date.  Each Immaterial Subsidiary as of the Closing Date shall be set forth in Schedule 1.01(d).
 
Incur ” shall mean issue, assume, guarantee, incur or otherwise become liable for; provided , however , that any Indebtedness or Capital Stock of a Person existing at the time such Person becomes a Subsidiary (whether by merger, amalgamation, consolidation, acquisition or otherwise) shall be deemed to be Incurred by such Person at the time it becomes a Subsidiary.
 
Indebtedness ” shall mean, with respect to any Person:
 
(a)           the principal and premium (if any) of any indebtedness of such Person, whether or not contingent, (i) in respect of borrowed money, (ii) evidenced by bonds, notes, debentures or similar instruments or letters of credit or bankers’ acceptances (or, without duplication, reimbursement agreements in respect thereof), (iii) representing the deferred and unpaid purchase price of any property, except any such balance that constitutes a trade payable or similar obligation to a trade creditor due within six months from the date on which it is Incurred, in each case Incurred in the ordinary course of business, which purchase price is due more than six months after the date of placing the property in service or taking delivery and title thereto, (iv) in respect of Capitalized Lease Obligations, or (v) representing any Hedging Obligations, if and to the extent that any of the foregoing indebtedness (other than letters of credit and Hedging Obligations) would appear as a liability on a balance sheet (excluding the footnotes thereto) of such Person prepared in accordance with GAAP;
 
(b)           to the extent not otherwise included, any obligation of such Person to be liable for, or to pay, as obligor, guarantor or otherwise, on the Indebtedness of another Person (other than by endorsement of negotiable instruments for collection in the ordinary course of business);
 
(c)           to the extent not otherwise included, Indebtedness of another Person secured by a Lien on any asset owned by such Person (whether or not such Indebtedness is assumed by such Person); provided , however , that the amount of such Indebtedness will be the lesser of: (i) the Fair Market Value of such asset at such date of determination, and (ii) the amount of such Indebtedness of such other Person; and
 
(d)           to the extent not otherwise included, with respect to the Borrower and its Restricted Subsidiaries, the amount then outstanding ( i.e ., advanced, and received by, and available for use by, the Borrower or any of its Restricted Subsidiaries) under any Receivables Financing (as set forth in the books and records of the Borrower or any Restricted Subsidiary and confirmed by the agent, trustee or other representative of the institution or group providing such Receivables Financing);
 

--
 
-23-

 

provided , however , that notwithstanding the foregoing, Indebtedness shall be deemed not to include (1) Contingent Obligations incurred in the ordinary course of business and not in respect of borrowed money; (2) deferred or prepaid revenues; (3) purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy warranty or other unperformed obligations of the respective seller; (4) Obligations under or in respect of Qualified Receivables Financing or (5) obligations under the Acquisition Documents.
 
Notwithstanding anything in this Agreement to the contrary, Indebtedness shall not include, and shall be calculated without giving effect to, the effects of Statement of Financial Accounting Standards No. 133 and related interpretations to the extent such effects would otherwise increase or decrease an amount of Indebtedness for any purpose under this Agreement as a result of accounting for any embedded derivatives created by the terms of such Indebtedness; and any such amounts that would have constituted Indebtedness under this Agreement but for the application of this sentence shall not be deemed an Incurrence of Indebtedness under this Agreement.
 
Indemnified Taxes ” shall mean all Taxes other than Excluded Taxes.
 
Indemnitee ” shall have the meaning assigned to such term in Section 9.05(b).
 
Independent Financial Advisor ” shall mean an accounting, appraisal or investment banking firm or consultant, in each case of nationally recognized standing, that is, in the good faith determination of the Borrower, qualified to perform the task for which it has been engaged.
 
Ineligible Institution ” shall mean the Persons identified in writing to the Administrative Agent by the Borrower on the Closing Date, and as may be identified in writing to the Administrative Agent by the Borrower from time to time thereafter with the consent of the Administrative Agent (not to be unreasonably withheld or delayed), by delivery of a notice thereof to the Administrative Agent setting forth such Person or Persons (or the Person or Persons previously identified to the Administrative Agent that are to be no longer considered “Ineligible Institutions”).
 
Information ” shall have the meaning assigned to such term in Section 3.14(a).
 
Intellectual Property Rights ” shall have the meaning assigned to such term in Section 3.23.
 
Intercreditor Agreements ” shall mean the Senior Lender Intercreditor Agreement, the Second Priority Intercreditor Agreement and the Senior Fixed Lender Intercreditor Agreement.
 
Interest Election Request ” shall mean a request by the Borrower to convert or continue a Borrowing in accordance with Section 2.07.
 

 
Interest Expense ” shall mean, with respect to any Person for any period, the sum of (a) gross interest expense of such Person for such period on a consolidated basis, including (i) the amortization of debt discounts, (ii) the amortization of all fees (including fees with respect to Swap Agreements) payable in connection with the incurrence of Indebtedness to the extent included in interest expense, (iii) the portion of any payments or accruals with respect to Capitalized Lease Obligations allocable to interest expense, and (iv) net payments and receipts (if any) pursuant to interest rate Hedging Obligations, (b) capitalized interest of such Person, and (c) commissions, discounts, yield and other fees and charges incurred in connection with any Qualified Receivables Financing which are payable to any Person other
 

--
 
-24-

 

than the Borrower or a Subsidiary Loan Party.  For purposes of the foregoing, gross interest expense shall be determined after giving effect to any net payments made or received and costs incurred by the Borrower and the Subsidiaries with respect to Swap Agreements.
 
Interest Payment Date ” shall mean, (a) with respect to any Eurocurrency Loan, the last day of each Interest Period applicable to the Borrowing of which such Loan is a part and, in addition, the date of any refinancing or conversion of such Borrowing with or to a Borrowing of a different Type, and (b) with respect to any ABR Loan, the last Business Day of each calendar quarter and, in addition, the date of any conversion of such Borrowing with or to a Borrowing of a different Type in accordance with Article II.
 
Interest Period ” shall mean, as to any Eurocurrency Borrowing, the period commencing on the date of such Borrowing or on the last day of the immediately preceding Interest Period applicable to such Borrowing, as applicable, and ending on the numerically corresponding day (or, if there is no numerically corresponding day, on the last day) in the calendar month that is 1, 2 or 3 months thereafter, or the date any Eurocurrency Borrowing is converted to an ABR Borrowing in accordance with Section 2.07, 2.14 or 2.20 or repaid or prepaid in accordance with Section 2.10 or 2.11; provided , however , that if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day.  Interest shall accrue from and including the first day of an Interest Period to but excluding the last day of such Interest Period.
 
Investment Bank ” shall mean one or more investment banks engaged to publicly sell or privately place the Permanent Financing reasonably acceptable to the Joint Lead Arrangers.
 
 “ Investment Grade Rating ” shall mean a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P, or an equivalent rating by any other Rating Agency.
 
Investment Grade Securities ” shall mean:
 
(a)           securities issued or directly and fully guaranteed or insured by the U.S. government or any agency or instrumentality thereof (other than Cash Equivalents),
 
(b)           securities that have a rating equal to or higher than Baa3 (or equivalent) by Moody’s or BBB- (or equivalent) by S&P, or an equivalent rating by any other Rating Agency, but excluding any debt securities or loans or advances between and among the Borrower and its Subsidiaries;
 
(c)           investments in any fund that invests exclusively in investments of the type described in clauses (a) and (b) which fund may also hold immaterial amounts of cash pending investment and/or distribution, and
 
(d)           corresponding instruments in countries other than the United States customarily utilized for high quality investments and in each case with maturities not exceeding two years from the date of acquisition.
 
Investments ” shall mean, with respect to any Person, all investments by such Person in other Persons (including Affiliates) in the form of loans (including guarantees), advances or capital contributions (excluding accounts receivable, trade credit and advances to customers and commission, travel
 

--
 
-25-

 

and similar advances to officers, employees and consultants made in the ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities issued by any other Person and investments that are required by GAAP to be classified on the balance sheet of the Borrower in the same manner as the other investments included in this definition to the extent such transactions involve the transfer of cash or other property.  For purposes of the definition of “Unrestricted Subsidiary” and Section 6.04:
 
(a)           “Investments” shall include the portion (proportionate to the Borrower’s equity interest in such Subsidiary) of the Fair Market Value of the net assets of a Subsidiary of the Borrower at the time that such Subsidiary is designated an Unrestricted Subsidiary; provided , however , that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Borrower shall be deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary equal to an amount (if positive) equal to:
 
                (i) the Borrower’s “Investment” in such Subsidiary at the time of such redesignation less
 
                (ii) the portion (proportionate to the Borrower’s equity interest in such Subsidiary) of the Fair Market Value of the net assets of such Subsidiary at the time of such redesignation; and
 
(b)           any property transferred to or from an Unrestricted Subsidiary shall be valued at its Fair Market Value at the time of such transfer, in each case as determined in good faith by the Board of Directors of the Borrower.
 
Joint Lead Arrangers ” shall mean Banc of America Securities LLC and Goldman Sachs Credit Partners L.P., in their capacities as joint lead arrangers.
 
Lender ” shall mean each financial institution listed on Schedule 2.01 , as well as any Person that becomes a “Lender” hereunder pursuant to Section 9.04.
 
Lender Default ” shall mean (i) the refusal (which has not been retracted) of a Lender to make available its portion of any Borrowing, or (ii) a Lender having notified the Borrower and/or the Administrative Agent that it does not intend to comply with its obligations under Section 2.06.
 
Lending Office ” shall mean, as to any Lender, the applicable branch, office or Affiliate of such Lender designated by such Lender to make Loans.
 
Letter of Credit ” shall mean any letter of credit issued pursuant to the Revolving Credit Agreement.
 
LIBOR Rate ” shall mean, with respect to any Eurocurrency Borrowing for any Interest Period, the rate per annum equal to the British Bankers Association LIBOR Rate (“ BBA LIBOR ”), as published by Reuters (or other commercially available source providing quotations of BBA LIBOR as designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period; provided , that if such rate is not available at such time for any reason, then the “LIBO Rate” for such Interest Period shall be the rate per annum determined by the Administrative Agent to be the rate at which deposits in Dollars for delivery on the first day of such Interest Period in same day funds in the approximate amount of the Eurocurrency Loan being made, continued or converted by Bank of America and with a term equivalent
 

--
 
-26-

 

to such Interest Period would be offered by Bank of America’s London Branch to major banks in the London interbank eurocurrency market at their request at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such Interest Period.
 
Lien ” shall mean, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law (including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction); provided that in no event shall an operating lease be deemed to constitute a Lien.
 
Loan Documents ” shall mean this Agreement, the Security Documents, the Senior Lender Intercreditor Agreement, the Second Priority Intercreditor Agreement, the Senior Fixed Lender Intercreditor Agreement and any Note issued under Section 2.09(e), each other agreement or instrument delivered pursuant to Section 5.10 hereof and, solely for the purposes of Article IV and Section 7.01 hereof, the Fee Letter.
 
Loan Parties ” shall mean the Borrower and the Subsidiary Loan Parties.
 
Loans ” shall mean the Bridge Loans and the Rollover Loans.
 
Local Time ” shall mean New York City time.
 
Management Group ” shall mean the group consisting of the directors, executive officers and other management personnel of the Borrower or any direct or indirect parent of the Borrower, as the case may be, on the Closing Date together with (1) any new directors whose election by such boards of directors or whose nomination for election by the shareholders of the Borrower or any direct or indirect parent of the Borrower, as applicable, was approved by a vote of a majority of the directors of the Borrower or any direct or indirect parent of the Borrower, as applicable, then still in office who were either directors on the Closing Date or whose election or nomination was previously so approved and (2) executive officers and other management personnel of the Borrower or any direct or indirect parent of the Borrower, as applicable, hired at a time when the directors on the Closing Date together with the directors so approved constituted a majority of the directors of the Borrower or any direct or indirect parent of the Borrower, as applicable.
 
Margin Stock ” shall have the meaning assigned to such term in Regulation U.
 
Material Adverse Effect ” shall mean a material adverse effect on the business, property, operations or condition of the Borrower and its Subsidiaries, taken as a whole, or the validity or enforceability of any of the material Loan Documents or the rights and remedies of the Administrative Agent and the Lenders thereunder.
 
Material Indebtedness ” shall mean Indebtedness (other than Loans) of any one or more of the Borrower or any Subsidiary in an aggregate principal amount exceeding $35 million.
 
Material Subsidiary ” shall mean any Subsidiary other than an Immaterial Subsidiary.
 
Maximum Rate ” shall have the meaning assigned to such term in Section 9.09.
 

--
 
-27-

 

Moody’s ” shall mean Moody’s Investors Service, Inc. or any successor to the rating agency business thereof.
 
Mortgaged Properties ” shall mean the Real Properties owned in fee by the Loan Parties required to be encumbered by a Mortgage pursuant to Section 5.01 of the Collateral Agreement and each additional Real Property encumbered by a Mortgage pursuant to Section 5.10.
 
Mortgages ” shall mean the mortgages, trust deeds, deeds of trust, deeds to secure debt, assignments of leases and rents, and other security documents delivered with respect to Mortgaged Properties, each in form and substance reasonably satisfactory to the Administrative Agent and the Borrower, as amended, supplemented or otherwise modified from time to time.  For the avoidance of doubt, Mortgages may include mortgages delivered under the Term Loan Credit Agreement to the extent amended to be in a form otherwise satisfactory to the Administrative Agent.
 
Multiemployer Plan ” shall mean a multiemployer plan as defined in Section 4001(a)(3) of ERISA to which the Borrower or any Subsidiary or any ERISA Affiliate (other than one considered an ERISA Affiliate only pursuant to subsection (m) or (o) of Code Section 414) is making or accruing an obligation to make contributions, or has within any of the preceding six plan years made or accrued an obligation to make contributions.
 
Net Income ” shall mean, with respect to any Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of Preferred Stock dividends.
 
Net Proceeds ” shall mean:
 
(a)           100% of the cash proceeds actually received by the Borrower or any Subsidiary Loan Party (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise and including casualty insurance settlements and condemnation awards, but only as and when received) from any Asset Sale (other than, for the avoidance of doubt, any Asset Sale pursuant to Section 6.05(a), (b), (c) and (d) of the Term Loan Credit Agreement as in effect on the date hereof, except as contemplated by Section 6.03(b)(ii), (e), (f), (h), (i) or (j) of the Term Loan Credit Agreement as in effect on the date hereof), net of (i) attorneys’ fees, accountants’ fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, required debt payments and required payments of other obligations relating to the applicable asset to the extent such debt or obligations are secured by a Lien permitted hereunder (other than pursuant to the Loan Documents or the Revolving Loan Documents) on such asset, other customary expenses and brokerage, consultant and other customary fees actually incurred in connection therewith, (ii) Taxes paid or payable as a result thereof, and (iii) the amount of any reasonable reserve established in accordance with GAAP against any adjustment to the sale price or any liabilities (other than any taxes deducted pursuant to clause (i) above) (x) related to any of the applicable assets and (y) retained by the Borrower or any of the Subsidiaries including, without limitation, pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations (however, the amount of any subsequent reduction of such reserve (other than in connection with a payment in respect of any such liability) shall be deemed to be Net Proceeds of such Asset Sale occurring on the date of such reduction); provided that, if no Event of Default exists and the Borrower shall deliver a certificate of a Responsible Officer of the Borrower to the Administrative Agent promptly following receipt of any such proceeds setting forth the Borrower’s intention to use any portion of such proceeds, to acquire, maintain, develop,
 

--
 
-28-

 
 
construct, improve, upgrade or repair assets useful in the business of the Borrower and the Subsidiaries or to make Investments in Permitted Business Acquisitions (as defined in the Term Loan Credit Agreement as in effect on the date hereof) , in each case within 15 months of such receipt, such portion of such proceeds shall not constitute Net Proceeds except to the extent not, within 15 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds are not so used within such 15-month period but within such 15-month period are contractually committed to be used, then, upon the termination of such contract, such remaining portion shall constitute Net Proceeds as of the date of such termination or expiry without giving effect to this proviso); provided , further , that (A) no proceeds realized in a single transaction or series of related transactions shall constitute Net Proceeds unless such proceeds shall exceed $5.0 million, (B) no proceeds shall constitute Net Proceeds in any fiscal year until the aggregate amount of all such proceeds in such fiscal year shall exceed $10.0   million, (C) at any time during the 15-month period contemplated by the immediately preceding proviso above, if, on a Pro Forma Basis (as defined in the Term Loan Credit Agreement as in effect on the date hereof) after giving effect to the Asset Sale and the application of the proceeds thereof, the Total Net First Lien Leverage Ratio (as defined in the Term Loan Credit Agreement as in effect on the date hereof) is less than or equal to 2.00 to 1.00, up to $75 million of such proceeds shall not constitute Net Proceeds, (D) proceeds from any Asset Sale shall not constitute Net Proceeds to the extent that the Term Loan Credit Agreement requires that such proceeds be applied in payment of any obligations thereunder (and such requirement is not waived by the Lenders thereunder), and (E) proceeds from the sale or other disposition of any ABL Assets (including any indirect sale or other disposition occurring by reason of the indirect sale or other disposition of the Person that holds such ABL Assets) shall not constitute Net Proceeds to the extent that the Revolving Credit Agreement requires that such proceeds be applied in payment of any obligations thereunder (and such requirement is not waived by the Lenders thereunder);
 
(b)           100% of the cash proceeds from the incurrence, issuance or sale by the Borrower or any Subsidiary Loan Party of any Indebtedness (other than Excluded Indebtedness), net of all taxes and fees (including investment banking fees), commissions, costs and other expenses, in each case incurred in connection with such issuance or sale; and
 
(c)           100% of the cash proceeds from the incurrence, issuance or sale by the Borrower of any Equity Issuance, net of all taxes and fees (including investment banking fees), commissions, costs and other expenses, in each case incurred in connection with such issuance or sale.
 
For purposes of calculating the amount of Net Proceeds, fees, commissions and other costs and expenses payable to the Borrower or any Affiliate of the Borrower shall be disregarded, except for financial advisory fees customary in type and amount paid to Affiliates of the Funds and otherwise not prohibited from being paid hereunder.
 
New York Courts ” shall have the meaning assigned to such term in Section 9.15.
 
Non-Consenting Lender ” shall have the meaning assigned to such term in Section 2.19(c).
 
Notes ” shall mean, collectively, Bridge Notes and Rollover Notes.
 
Obligations ” shall mean all amounts owing to the Administrative Agent or any Lender pursuant to the terms of this Agreement or any other Loan Document.
 

--
 
-29-

 

Offering Document ” shall have the meaning assigned to such term in Section 5.12(d).
 
Officer ” shall mean the Chairman of the Board of Directors, Chief Executive Officer, Chief Financial Officer, President, any Executive Vice President, Senior Vice President or Vice President, the Treasurer or the Secretary of the Borrower.
 
Officers’ Certificate ” shall mean a certificate signed on behalf of the Borrower by two Officers of the Borrower, one of whom must be the principal executive officer, the principal financial officer, the treasurer or the principal accounting officer of the Borrower that meets the requirements set forth in this Agreement.
 
OID ” shall have the meaning assigned to such term in Section 5.12(b).
 
Opinion of Counsel ” shall mean a written opinion from legal counsel who is acceptable to the Administrative Agent.  The counsel may be an employee of or counsel to the Borrower or the Administrative Agent.
 
Other Taxes ” shall mean any and all present or future stamp or documentary taxes or any other excise, transfer, sales, property, intangible, mortgage recording, or similar taxes, charges or levies arising from any payment made hereunder or from the execution, delivery or enforcement of, or otherwise with respect to, the Loan Documents, and any and all interest and penalties related thereto (but not Excluded Taxes).
 
Parent Entity ” shall mean any direct or indirect parent of Holdings.
 
Participant ” shall have the meaning assigned to such term in Section 9.04(c).
 
PBGC ” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA.
 
Perfection Certificate ” shall mean the Perfection Certificate with respect to the Borrower and the other Loan Parties in a form reasonably satisfactory to the Administrative Agent.
 
Permanent Financing ” shall mean first priority senior secured debt of the Borrower issued pursuant to Section 5.12 hereof and guaranteed by the Subsidiary Loan Parties, which may take the form of loans or debt securities or a combination thereof, that will provide proceeds in an amount sufficient to repay all or any portion then outstanding of the principal and other amounts under the Bridge Loans; provided, that there shall be no more than two series (plus any exchange securities) of any such Permanent Financing.
 
 “ Permanent Financing Offering ” shall have the meaning assigned to such term in Section 5.12(a).
 
Permitted Holders ” shall mean, at any time, each of (i) the Funds and the Fund Affiliates and (ii) the Management Group.  Any Person or group whose acquisition of beneficial ownership constitutes a Change of Control in respect of which a Change of Control Offer is made in accordance with the requirements of this Agreement will thereafter, together with its Affiliates, constitute an additional Permitted Holder.
 

--
 
-30-

 

Permitted Investments ” shall mean:
 
(a)           any Investment in the Borrower or any Restricted Subsidiary;
 
(b)           any Investment in Cash Equivalents or Investment Grade Securities;
 
(c)           any Investment by the Borrower or any Restricted Subsidiary of the Borrower in a Person if as a result of such Investment (i) such Person becomes a Restricted Subsidiary of the Borrower, or (ii) such Person, in one transaction or a series of related transactions, is merged, consolidated or amalgamated with or into, or transfers or conveys all or substantially all of its assets to, or is liquidated into, the Borrower or a Restricted Subsidiary of the Borrower;
 
(d)           any Investment in securities or other assets not constituting Cash Equivalents and received in connection with an Asset Sale made pursuant to the provisions of Section 6.03 or any other disposition of assets not constituting an Asset Sale;
 
(e)           any Investment existing on, or made pursuant to binding commitments existing on, the Closing Date;
 
(f)           advances to employees, taken together with all other advances made pursuant to this clause (f), not to exceed $15.0 million at any one time outstanding;
 
(g)           any Investment acquired by the Borrower or any of its Restricted Subsidiaries (i) in exchange for any other Investment or accounts receivable held by the Borrower or any such Restricted Subsidiary in connection with or as a result of a bankruptcy, workout, reorganization or recapitalization of the issuer of such other Investment or accounts receivable, or (ii) as a result of a foreclosure by the Borrower or any of its Restricted Subsidiaries with respect to any secured Investment or other transfer of title with respect to any secured Investment in default;
 
(h)           Hedging Obligations permitted under Section 6.01(b)(x);
 
(i)           any Investment by the Borrower or any of its Restricted Subsidiaries in a Similar Business having an aggregate Fair Market Value, taken together with all other Investments made pursuant to this clause (i) that are at that time outstanding, not to exceed the greater of (x) $100.0 million and (y) 4.5% of Total Assets at the time of such Investment (with the Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value); provided , however , that if any Investment pursuant to this clause (i) is made in any Person that is not a Restricted Subsidiary of the Borrower at the date of the making of such Investment and such Person becomes a Restricted Subsidiary of the Borrower after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (a) above and shall cease to have been made pursuant to this clause (i) for so long as such Person continues to be a Restricted Subsidiary;
 
(j)           additional Investments by the Borrower or any of its Restricted Subsidiaries having an aggregate Fair Market Value, taken together with all other Investments made pursuant to this clause (j) that are at that time outstanding, not to exceed the greater of (x) $100.0 million and (y) 4.5% of Total Assets at the time of such Investment (with the Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value);
 

--
 
-31-

 

(k)           loans and advances to officers, directors and employees for business-related travel expenses, moving expenses and other similar expenses, in each case Incurred in the ordinary course of business;
 
(l)           Investments the payment for which consists of Equity Interests of the Borrower (other than Disqualified Stock) or any direct or indirect parent of the Borrower, as applicable; provided , however , that such Equity Interests will not increase the amount available for Restricted Payments under clause (C) of the definition of “Cumulative Credit”;
 
(m)           any transaction to the extent it constitutes an Investment that is permitted by and made in accordance with the provisions of Section 6.07(b) (except transactions described in clauses (ii), (vi), (vii) and (xi)(B) of such Section);
 
(n)           Investments consisting of the licensing or contribution of intellectual property pursuant to joint marketing arrangements with other Persons;
 
(o)           guarantees issued in accordance with Section 6.01;
 
(p)           Investments consisting of or to finance purchases and acquisitions of inventory, supplies, materials, services or equipment or purchases of contract rights or licenses or leases of intellectual property, in each case in the ordinary course of business;
 
(q)           any Investment in a Receivables Subsidiary or any Investment by a Receivables Subsidiary in any other Person in connection with a Qualified Receivables Financing, including Investments of funds held in accounts permitted or required by the arrangements governing such Qualified Receivables Financing or any related Indebtedness; provided , however , that any Investment in a Receivables Subsidiary is in the form of a Purchase Money Note, contribution of additional receivables or an equity interest;
 
(r)           additional Investments in joint ventures of the Borrower or any of its Restricted Subsidiaries existing on the Closing Date not to exceed at any one time in the aggregate outstanding, $15.0 million; and
 
(s)           Investments of a Restricted Subsidiary of the Borrower acquired after the Closing Date or of an entity merged into, amalgamated with, or consolidated with the Borrower or a Restricted Subsidiary of the Borrower in a transaction that is not prohibited by Section 6.05 after the Closing Date to the extent that such Investments were not made in contemplation of such acquisition, merger, amalgamation or consolidation and were in existence on the date of such acquisition, merger, amalgamation or consolidation.
 
Permitted Liens ” shall mean, with respect to any Person:
 
(a)           pledges or deposits by such Person under workmen’s compensation laws, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which such Person is a party, or deposits to secure public or statutory obligations of such Person or deposits of cash or U.S. government bonds to secure surety or appeal bonds to which such Person is a party, or deposits as security for contested taxes or import duties or for the payment of rent, in each case Incurred in the ordinary course of business;
 

--
 
-32-

 

(b)           Liens imposed by law, such as carriers’, warehousemen’s and mechanics’ Liens, in each case for sums not yet due or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards against such Person with respect to which such Person shall then be proceeding with an appeal or other proceedings for review;
 
(c)           Liens for taxes, assessments or other governmental charges not yet due or payable or subject to penalties for nonpayment or which are being contested in good faith by appropriate proceedings;
 
(d)           Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or letters of credit issued pursuant to the request of and for the account of such Person in the ordinary course of its business;
 
(e)           minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real properties or Liens incidental to the conduct of the business of such Person or to the ownership of its properties which were not Incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of such Person;
 
(f)           (A) Liens on assets of a Restricted Subsidiary that is not a Loan Party securing Indebtedness of such Restricted Subsidiary, permitted to be Incurred pursuant to Section 6.01, (B) Liens securing an aggregate principal amount of First Priority Lien Obligations not to exceed the greater of (x) the aggregate amount of Indebtedness permitted to be incurred pursuant to clause (i) of Section 6.01(b) and (y) the maximum principal amount of Indebtedness that, as of the date such Indebtedness was Incurred, and after giving effect to the Incurrence of such Indebtedness and the application of proceeds therefrom on such date, would not cause the Secured Indebtedness Leverage Ratio of the Borrower to exceed 4.00 to 1.00, and (C) Liens securing Indebtedness permitted to be Incurred pursuant to clause (iv), (xii) or (xx) of Section 6.01(b) ( provided that in the case of clause (xx), such Lien does not extend to the property or assets of any Subsidiary of the Borrower other than a Foreign Subsidiary);
 
(g)           Liens existing on the Closing Date (including after giving effect to the Transactions);
 
(h)           Liens on assets, property or shares of stock of a Person at the time such Person becomes a Subsidiary; provided , however , that such Liens are not created or Incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary; provided , further , however , that such Liens may not extend to any other property owned by the Borrower or any Restricted Subsidiary of the Borrower);
 
(i)           Liens on assets or property at the time the Borrower or a Restricted Subsidiary of the Borrower acquired the assets or property, including any acquisition by means of a merger, amalgamation or consolidation with or into the Borrower or any Restricted Subsidiary of the Borrower; provided , however , that such Liens are not created or Incurred in connection with, or in contemplation of, such acquisition; provided , further , however , that the Liens may not extend to any other property owned by the Borrower or any Restricted Subsidiary of the Borrower;
 

--
 
-33-

 

(j)           Liens securing Indebtedness or other obligations of a Restricted Subsidiary owing to the Borrower or another Restricted Subsidiary of the Borrower permitted to be Incurred in accordance with Section 6.01;
 
(k)           Liens securing Hedging Obligations not incurred in violation of this Agreement; provided that with respect to Hedging Obligations relating to Indebtedness, such Lien extends only to the property securing such Indebtedness;
 
(l)           Liens on specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;
 
(m)           leases and subleases of real property which do not materially interfere with the ordinary conduct of the business of the Borrower or any of its Restricted Subsidiaries;
 
(n)           Liens arising from Uniform Commercial Code financing statement filings regarding operating leases entered into by the Borrower and its Restricted Subsidiaries in the ordinary course of business;
 
(o)           Liens in favor of the Borrower or any Subsidiary Loan Party;
 
(p)           Liens on accounts receivable and related assets of the type specified in the definition of “Receivables Financing” Incurred in connection with a Qualified Receivables Financing;
 
(q)           deposits made in the ordinary course of business to secure liability to insurance carriers;
 
(x)           Liens on the Equity Interests of Unrestricted Subsidiaries;
 
(y)           grants of software and other technology licenses in the ordinary course of business;
 
(z)           Liens to secure any refinancing, refunding, extension, renewal or replacement (or successive refinancings, refundings, extensions, renewals or replacements) as a whole, or in part, of any Indebtedness secured by any Lien referred to in the foregoing clauses (f)(B), (g), (h), (i), (j), (k) and (o); provided , however , that (x) such new Lien shall be limited to all or part of the same property that secured the original Lien (plus improvements on such property), and (y) the Indebtedness secured by such Lien at such time is not increased to any amount greater than the sum of (A) the outstanding principal amount or, if greater, committed amount of the Indebtedness described under clauses (f)(B), (g), (h), (i), (j), (k) and (o) at the time the original Lien became a Permitted Lien under this Agreement, and (B) an amount necessary to pay any fees and expenses, including premiums, related to such refinancing, refunding, extension, renewal or replacement; provided further , however , that in the case of any Liens to secure any refinancing, refunding, extension or renewal of Indebtedness secured by a Lien referred to in clause (f)(B), the principal amount of any Indebtedness Incurred for such refinancing, refunding, extension or renewal shall be deemed secured by a Lien under clause (f)(B) and not this clause (z) for purposes of determining the principal amount of Indebtedness outstanding under clause (f)(B), for purposes of the definition of Secured Bank Indebtedness;

 
(aa)           Liens on equipment of the Borrower or any Restricted Subsidiary granted in the ordinary course of business to the Borrower’s or such Restricted Subsidiary’s client at which such equipment is located;
 
(bb)           judgment and attachment Liens not giving rise to an Event of Default and notices of lis pendens and associated rights related to litigation being contested in good faith by appropriate proceedings and for which adequate reserves have been made;
 
 
-34-

 
(cc)           Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into in the ordinary course of business;
 
(dd)           Liens incurred to secure cash management services in the ordinary course of business;
 
(ee)           other Liens securing obligations incurred in the ordinary course of business which obligations do not exceed $20.0 million at any one time outstanding;
 
(ff)           Liens securing Indebtedness or other obligations permitted to be Incurred in accordance with Section 6.01(b)(ii); and
 
(gg)           Liens on the Collateral in favor of any collateral agent relating to such collateral agent’s administrative expenses with respect to the Collateral.
 
Person ” shall mean any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.
 
Plan ” shall mean any employee pension benefit plan, as such term is defined in Section 3(2) of ERISA, (other than a Multiemployer Plan), (i) subject to the provisions of Title IV of ERISA, (ii) sponsored or maintained (at the time of determination or at any time within the five years prior thereto) by the Borrower or any ERISA Affiliate, or (iii) in respect of which the Borrower, any Subsidiary or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
 
Platform ” shall have the meaning assigned to such term in Section 9.17.
 
Pledged Collateral ” shall have the meaning assigned to such term in the Collateral Agreement.
 
Possessory Collateral Agent ” shall have the meaning assigned to such term in the Senior Lender Collateral Agreement.
 
Preferred Stock ” shall mean any Equity Interest with preferential right of payment of dividends or upon liquidation, dissolution, or winding up.
 
Pro Forma Adjusted EBITDA ” shall have the meaning assigned to such term in Section 3.05(a).
 
Pro Forma Financial Statements ” shall have the meaning assigned to such term in Section 3.05(a).
 
Projections ” shall mean the projections of the Borrower and the Subsidiaries and any other projections and any forward-looking statements (including statements with respect to booked business) of such entities furnished to the Lenders or the Administrative Agent by or on behalf of the Borrower or any of the Subsidiaries prior to the Closing Date.
 
Public Lender ” shall have the meaning assigned to such term in Section 9.17.
 
 
-35-

 
Purchase Money Note ” shall mean a promissory note of a Receivables Subsidiary evidencing a line of credit, which may be irrevocable, from the Borrower or any Subsidiary of the Borrower to a Receivables Subsidiary in connection with a Qualified Receivables Financing, which note is intended to finance that portion of the purchase price that is not paid by cash or a contribution of equity.
 
Qualified CFC Holding Company ” shall mean a Wholly Owned Subsidiary of the Borrower that is a limited liability company, the primary asset of which consists of Equity Interests in either (i) a Foreign Subsidiary or (ii) a limited liability company the primary asset of which consists of Equity Interests in a Foreign Subsidiary.
 
Qualified Receivables Financing ” shall mean any Receivables Financing of a Receivables Subsidiary that meets the following conditions:
 
(a)           the Board of Directors of the Borrower shall have determined in good faith that such Qualified Receivables Financing (including financing terms, covenants, termination events and other provisions) is in the aggregate economically fair and reasonable to the Borrower and the Receivables Subsidiary;
 
(b)           all sales of accounts receivable and related assets to the Receivables Subsidiary are made at Fair Market Value (as determined in good faith by the Borrower); and
 
(c)           the financing terms, covenants, termination events and other provisions thereof shall be market terms (as determined in good faith by the Borrower) and may include Standard Securitization Undertakings.
 
The grant of a security interest in any accounts receivable of the Borrower or any of its Restricted Subsidiaries (other than a Receivables Subsidiary) to secure Bank Indebtedness, Indebtedness in respect of the Loans or any Refinancing Indebtedness with respect to the Loans shall not be deemed a Qualified Receivables Financing.
 
Rate Cap ” shall mean, with respect to Eurocurrency Loans, the Adjusted LIBO Rate in effect from time to time plus 5.25% per annum, and with respect to Base Rate Loans, ABR as in effect from time to time plus 4.25% per annum.
 
Rating Agency ” shall mean (1) each of Moody’s and S&P and (2) if Moody’s or S&P ceases to rate the Loans for reasons outside of the Borrower’s control, a “nationally recognized statistical rating organization” within the meaning of Rule 15cs-1(c)(2)(vi)(F) under the Exchange Act selected by the Borrower or any direct or indirect parent of the Borrower as a replacement agency for Moody’s or S&P, as the case may be.
 
Real Property ” shall mean, collectively, all right, title and interest (including any leasehold estate) in and to any and all parcels of or interests in real property owned in fee or leased by any Loan Party, together with, in each case, all easements, hereditaments and appurtenances relating thereto, all improvements and appurtenant fixtures incidental to the ownership or lease thereof.

 
Receivables Fees ” shall mean distributions or payments made directly or by means of discounts with respect to any participation interests issued or sold in connection with, and all other fees paid to a Person that is not a Restricted Subsidiary in connection with, any Receivables Financing.
 
Receivables Financing ” shall mean any transaction or series of transactions that may be entered into by the Borrower or any of its Subsidiaries pursuant to which the Borrower or any of its Subsidiaries may sell, convey or otherwise transfer to (a) a Receivables Subsidiary (in the case of a transfer by the Borrower or any of its Subsidiaries); and (b) any other Person (in the case of a transfer by a Receivables Subsidiary), or may grant a security interest in, any accounts receivable (whether now existing or arising in the future) of the Borrower or any of its Subsidiaries, and any assets related thereto including, without limitation, all collateral securing such accounts receivable, all contracts and all guarantees or other obligations in respect of such accounts receivable, proceeds of such accounts receivable and other assets which are customarily transferred or in respect of which security interests are customarily granted in connection with asset securitization transactions involving accounts receivable and any Hedging Obligations entered into by the Borrower or any such Subsidiary in connection with such accounts receivable.
 
 
-36-

 
Receivables Repurchase Obligation ” shall mean any obligation of a seller of receivables in a Qualified Receivables Financing to repurchase receivables arising as a result of a breach of a representation, warranty or covenant or otherwise, including as a result of a receivable or portion thereof becoming subject to any asserted defense, dispute, off-set or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event relating to the seller.
 
Receivables Subsidiary ” shall mean a Wholly Owned Restricted Subsidiary of the Borrower (or another Person formed for the purposes of engaging in Qualified Receivables Financing with the Borrower in which the Borrower or any Subsidiary of the Borrower makes an Investment and to which the Borrower or any Subsidiary of the Borrower transfers accounts receivable and related assets) which engages in no activities other than in connection with the financing of accounts receivable of the Borrower and its Subsidiaries, all proceeds thereof and all rights (contractual or other), collateral and other assets relating thereto, and any business or activities incidental or related to such business, and which is designated by the Board of Directors of the Borrower (as provided below) as a Receivables Subsidiary and:
 
(a)           no portion of the Indebtedness or any other obligations (contingent or otherwise) of which (i) is guaranteed by the Borrower or any other Subsidiary of the Borrower (excluding guarantees of obligations (other than the principal of and interest on, Indebtedness) pursuant to Standard Securitization Undertakings), (ii) is recourse to or obligates the Borrower or any other Subsidiary of the Borrower in any way other than pursuant to Standard Securitization Undertakings, or (iii) subjects any property or asset of the Borrower or any other Subsidiary of the Borrower, directly or indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant to Standard Securitization Undertakings;
 
(b)           with which neither the Borrower nor any other Subsidiary of the Borrower has any material contract, agreement, arrangement or understanding other than on terms which the Borrower reasonably believes to be no less favorable to the Borrower or such Subsidiary than those that might be obtained at the time from Persons that are not Affiliates of the Borrower; and
 
(c)           to which neither the Borrower nor any other Subsidiary of the Borrower has any obligation to maintain or preserve such entity’s financial condition or cause such entity to achieve certain levels of operating results.

 
Any such designation by the Board of Directors of the Borrower shall be evidenced to the Administrative Agent by filing with the Administrative Agent a certified copy of the resolution of the Board of Directors of the Borrower giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the foregoing conditions.
 
Reference Period ” shall have the meaning assigned to such term in the definition of “Cumulative Credit” contained in Section 1.01.
 
 
-37-

 
Refinancing Indebtedness ” shall have the meaning assigned to such term in Section 6.01(b)(xiv).
 
Refunding Capital Stock ” shall have the meaning assigned to such term in Section 6.04(b)(ii).
 
Register ” shall have the meaning assigned to such term in Section 9.04(b)(iv).
 
Registration Rights Agreement ” shall mean the Registration Rights Agreements substantially in the form of Exhibit G (with such changes to cure ambiguity, omission, defect or inconsistency as the Joint Lead Arrangers and the Borrower shall approve), as may be amended, modified or supplemented in accordance with the terms thereof.
 
Registration Statement ” shall have the meaning assigned to such term in Section 5.12(c).
 
Regulation U ” shall mean Regulation U of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.
 
Regulation X ” shall mean Regulation X of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.
 
Related Fund ” shall mean, with respect to any Lender that is a fund that invests in bank or commercial loans and similar extensions of credit, any other fund that invests in bank or commercial loans and similar extensions of credit and is advised or managed by (a) such Lender, (b) an Affiliate of such Lender or (c) an entity (or an Affiliate of such entity) that administers, advises or manages such Lender.
 
Related Parties ” shall mean, with respect to any specified Person, such Person’s Affiliates and the respective directors, trustees, officers, employees, agents and advisors of such Person and such Person’s Affiliates.
 
Release ” shall mean any spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing, depositing, emanating or migrating in, into, onto or through the environment.
 
Reportable Event ” shall mean any reportable event as defined in Section 4043(c) of ERISA or the regulations issued thereunder, other than those events as to which the 30-day notice period referred to in Section 4043(c) of ERISA has been waived, with respect to a Plan (other than a Plan maintained by an ERISA Affiliate that is considered an ERISA Affiliate only pursuant to subsection (m) or (o) of Section 414 of the Code).
 

Required Lenders ” shall mean, at any time, Lenders having Loans outstanding that represent more than 50% of all Loans outstanding.  The Loans of any Defaulting Lender shall be disregarded in determining Required Lenders at any time.
 
Responsible Officer ” of any Person shall mean any executive officer or Financial Officer of such Person and any other officer or similar official thereof responsible for the administration of the obligations of such Person in respect of this Agreement.
 
&ldq