exv10w6






Exhibit 10.6




$375,000,000




Lender Processing Services, Inc.




8.125% Senior Notes due 2016




Purchase Agreement




June 18, 2008          




J.P. Morgan Securities Inc.

Banc of America Securities LLC

Wachovia Capital Markets, LLC



 As
Representatives of the
 several
Initial Purchasers listed
 in
Schedule 2 hereto

c/o J.P. Morgan Securities Inc.

270 Park Avenue

New York, New York 10017




Ladies and Gentlemen:




     Each of the persons listed in Schedule 1 hereto (the “Selling Noteholders”), acting
severally and not jointly, proposes to sell to the several initial purchasers listed in
Schedule 2 hereto (the “Initial Purchasers”), for whom you are acting as representatives
(the “Representatives”), $375,000,000 of principal amount of 8.125% Senior Notes due 2016
(the “Securities”) of Lender Processing Services, Inc., a Delaware corporation (the
“Company”). The Securities will be issued pursuant to an Indenture to be dated as of July
2, 2008 (the “Indenture”) among the Company, the guarantors listed in Schedule 3 hereto
(the “Guarantors”) and U.S. Bank Corporate Trust Company, as trustee (the “Trustee”), and
will be guaranteed on an unsecured senior basis by each of the Guarantors (the
“Guarantees”).



     The Securities will be sold to the Initial Purchasers without being registered under
the Securities Act of 1933, as amended (the “Securities Act”), in reliance upon an
exemption therefrom. The Company has prepared a preliminary offering memorandum dated
June 6, 2008 (the “Preliminary Offering Memorandum”) and will prepare an offering
memorandum dated the date hereof (the “Offering Memorandum”) setting forth information
concerning the Company and the Securities. Copies of the Preliminary Offering Memorandum
have been, and copies of the Offering Memorandum will be, delivered by the Company to the
Initial Purchasers pursuant to the terms of this Agreement. The Company hereby confirms
that it has authorized the use of the Preliminary Offering Memorandum, the other Time of
Sale Information (as defined below) and the Offering Memorandum in connection with the
offering and resale of the Securities by the Initial Purchasers in the manner contemplated
by this Agreement. Capitalized terms used but not defined herein shall have the meanings given to such terms
in the Preliminary Offering Memorandum.



 









 





     At or prior to the time when sales of the Securities were first made (the “Time of
Sale”), the following information shall have been prepared (collectively, the “Time of
Sale Information”): the Preliminary Offering Memorandum, as supplemented and amended by
the written communications listed on Annex A hereto.



     Holders of the Securities (including the Initial Purchasers and their direct and
indirect transferees) will be entitled to the benefits of a Registration Rights Agreement,
to be dated the Closing Date (as defined below) (the “Registration Rights Agreement”),
pursuant to which the Company and the Guarantors will agree to file one or more
registration statements with the Securities and Exchange Commission (the “Commission”)
providing for the registration under the Securities Act of the Securities or the Exchange
Securities referred to (and as defined) in the Registration Rights Agreement.



     It is further understood that, prior to the date hereof, Fidelity National
Information Services, Inc. (the “Parent”) announced its intention to pursue the spin-off
of the majority of the businesses that comprise its lender processing services operations
(the “Spin-Off”) providing for the formation of the Company. In connection with the
Spin-Off, at or before the Closing Date, the Company and the Parent will complete a series
of transactions described in the Preliminary Offering Memorandum and the Offering
Memorandum under the caption “The transactions” (such transactions, the “Transactions”).
As part of the Transactions, (i) the Company will enter into a Senior Credit Agreement
(the “Credit Agreement”) with JPMorgan Chase Bank, N.A., as Administrative Agent and
certain other lenders named therein and other related agreements providing for up to
$1.350 billion in new credit facilities (the “Debt”), (ii) the Parent will contribute to
the Company all of its interest in the assets, liabilities, businesses and employees
related to its lender processing services operations as of the date of the Spin-Off in
exchange for (1) the issuance to the Parent of all of the Company’s common stock and (2)
the distribution by the Company to the Parent of the Securities offered hereby and the
Debt, which the Parent expects to exchange for outstanding Parent debt held by the Selling
Noteholders and certain other holders of Parent debt (the “Debt Exchange”), and (iii) the
Parent will spin-off the Company to the stockholders of the Parent by distributing all of
its shares of the Company’s common stock to the Parent’s stockholders on a pro rata basis.
As used in this Agreement, (1) the term “Spin-Off Agreements” means each agreement
entered or to be entered into by the Company in connection with the Transactions,
including the agreements set forth in Schedule 4 hereto and (2) unless the context
otherwise requires, the term “the Company” includes Lender Processing Services, Inc. and
the businesses that comprise
the Parent’s lender processing services operations, which will become the Company upon
consummation of the Spin-Off.



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     The Company, the Guarantors and the Selling Noteholders hereby confirm their
agreement with the several Initial Purchasers concerning the purchase and resale of the
Securities, as follows:



     1. Purchase and Resale of the Securities. (a) Each of the Selling
Noteholders, severally and not jointly, agrees to sell the Securities to the several
Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis
of the representations, warranties and agreements set forth herein and subject to the
conditions set forth herein, agrees, severally and not jointly, to purchase from each
Selling Noteholder, that proportion of the principal amount of Securities set forth in
Schedule 1 opposite the name of such Selling Noteholder, which the principal amount of the
Securities set forth in Schedule 2 hereto opposite the name of such Initial Purchaser
bears to the aggregate principal amount of the Securities, at a price equal to 100% of the
principal amount thereof plus accrued interest, if any, from July 2, 2008 to the Closing
Date. The Selling Noteholders will not be obligated to deliver any of the Securities
except upon payment for all the Securities to be purchased as provided herein. The
Company will pay the Representatives the fees set forth in the Alternative Securities
Engagement Letter dated December 31, 2007, between the Company and each Representative, as
may be amended. The Company will pay each Initial Purchaser (other than the
Representatives) a fee set forth in a fee letter dated the date hereof between the Company
and such Initial Purchaser.



     (b) The Company and the Selling Noteholders understand that the Initial
Purchasers intend to offer the Securities for resale on the terms set forth in the Time of
Sale Information. Each Initial Purchaser, severally and not jointly, represents, warrants
and agrees that:




     (i) it is a qualified institutional buyer within the meaning of Rule 144A
under the Securities Act (a “QIB”) and an accredited investor within the meaning of
Rule 501(a) under the Securities Act;




     (ii) it has not solicited offers for, or offered or sold, and will not solicit
offers for, or offer or sell, the Securities by means of any form of general
solicitation or general advertising within the meaning of Rule 502(c) of Regulation
D under the Securities Act (“Regulation D”) or in any manner involving a public
offering within the meaning of Section 4(2) of the Securities Act; and




     (iii) it has not solicited offers for, or offered or sold, and will not
solicit offers for, or offer or sell, the Securities as part of their initial
offering except:



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     (A) within the United States to persons whom it reasonably believes to
be QIBs in transactions pursuant to Rule 144A under the Securities Act
(“Rule 144A”) and in connection with each such sale, it has taken or will
take reasonable steps to ensure that the purchaser of the Securities is
aware that such sale is being made in reliance on Rule 144A; or




     (B) in accordance with the restrictions set forth in Annex C hereto.



     (c) Each Initial Purchaser acknowledges and agrees that the Company and the Selling
Noteholders and, for purposes of the opinions to be delivered to the Initial Purchasers
pursuant to Sections 6(g), 6(h) and 6(i), counsel for the Company and counsel for the
Initial Purchasers, respectively, may rely upon the accuracy of the representations and
warranties of the Initial Purchasers, and compliance by the Initial Purchasers with their
agreements, contained in paragraph (b) above (including Annex C hereto), and each Initial
Purchaser hereby consents to such reliance.



     (d) The Company and the Selling Noteholders acknowledge and agree that the Initial
Purchasers may offer and sell Securities to or through any affiliate of an Initial
Purchaser and that any such affiliate may offer and sell Securities purchased by it to or
through any Initial Purchaser.



     (e) The Company, the Guarantors and the Selling Noteholders acknowledge and agree
that the Initial Purchasers are acting solely in the capacity of an arm’s length
contractual counterparty to the Company, the Guarantors and the Selling Noteholders with
respect to the offering of Securities contemplated hereby (including in connection with
determining the terms of the offering) and not as financial advisors or fiduciaries to, or
agents of, the Company, the Guarantors, the Selling Noteholders or any other person.
Additionally, neither the Representatives nor any other Initial Purchaser is advising the
Company, the Guarantors, the Selling Noteholders or any other person as to any legal, tax,
investment, accounting or regulatory matters in any jurisdiction. The Company, the
Guarantors and the Selling Noteholders shall consult with their own advisors concerning
such matters and shall be responsible for making their own independent investigation and
appraisal of the transactions contemplated hereby, and neither the Representatives nor any
other Initial Purchaser shall have any responsibility or liability to the Company, the
Guarantors or the Selling Noteholders with respect thereto. Any review by the
Representatives or any Initial Purchaser of the Company, the Guarantors, the Selling
Noteholders, and the transactions contemplated hereby or other matters relating to such
transactions will be performed solely for the benefit of the
Representatives or such Initial Purchaser, as the case may be, and shall not be on behalf
of the Company, the Guarantors, the Selling Noteholders or any other person.



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     2. Payment and Delivery. (a) Payment for and delivery of the Securities
will be made at the offices of Davis Polk & Wardwell, 450 Lexington Avenue, New York, New
York, 10003 at 10:00 A.M., New York City time, on July 2, 2008, or at such other time or
place on the same or such other date, not later than the fifth business day thereafter, as
the Representatives, the Company and the Selling Noteholders may agree upon in writing.
The time and date of such payment and delivery is referred to herein as the “Closing
Date”.



     (b) Payment for the Securities shall be made by wire transfer in immediately
available funds to the account(s) specified by the Selling Noteholders to the
Representatives against delivery to the nominee of The Depository Trust Company, for the
account of the Initial Purchasers, of one or more global notes representing the Securities
(collectively, the “Global Note”), with any transfer taxes payable in connection with the
sale of the Securities duly paid by the Company. The Global Note will be made available
for inspection by the Representatives not later than 1:00 P.M., New York City time, on the
business day prior to the Closing Date.



     3. (A) Representations and Warranties of the Company and the Guarantors. The
Company and the Guarantors jointly and severally represent and warrant to each Initial
Purchaser that:



     (a) Preliminary Offering Memorandum, Time of Sale Information and Offering
Memorandum. The Preliminary Offering Memorandum, as of its date, did not, the Time of
Sale Information, at the Time of Sale, did not, and at the Closing Date, will not, and the
Offering Memorandum, in the form first used by the Initial Purchasers to confirm sales of
the Securities and as of the Closing Date, will not, contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading;
provided that the Company and the Guarantors make no representation or warranty
with respect to any statements or omissions made in reliance upon and in conformity with
information relating to any Selling Noteholder or any Initial Purchaser furnished to the
Company or any Guarantor in writing by such Selling Noteholder or Initial Purchaser
expressly for use in the Preliminary Offering Memorandum, the Time of Sale Information or
the Offering Memorandum (or any amendment or supplement thereto).



     (b) Additional Written Communications. The Company (including its agents and
representatives, other than the Initial Purchasers in their capacity as such) has not



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prepared, made, used, authorized, approved or referred to and will not prepare, make, use,
authorize, approve or refer to any written communication that constitutes an offer to sell
or solicitation of an offer to buy the Securities (each such communication by the Company
or its agents and representatives (other than a communication referred to in clauses (i),
(ii) and (iii) below) an “Issuer Written Communication”) other than (i) the Preliminary
Offering Memorandum, (ii) the Offering Memorandum, (iii) the documents listed on Annex A
hereto, including a term sheet substantially in the form of Annex B hereto, which
constitute part of the Time of Sale Information, and (iv) any electronic road show or
other written communications, in each case used in accordance with Section 4(c). Each
such Issuer Written Communication, when taken together with the Time of Sale Information,
did not, and at the Closing Date will not, contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided
that the Company makes no representation and warranty with respect to any statements or
omissions made in each such Issuer Written Communication in reliance upon and in
conformity with information relating to any Selling Noteholder or any Initial Purchaser
furnished to the Company in writing by such Selling Noteholder or Initial Purchaser
through the Representatives expressly for use in any Issuer Written Communication.



     (c) Financial Statements. The financial statements and the related notes thereto
included in each of the Time of Sale Information and the Offering Memorandum present
fairly in all material respects the financial position of the Company and its subsidiaries
as of the dates indicated and the results of their operations and the changes in their
cash flows for the periods specified; such financial statements have been prepared in
conformity with generally accepted accounting principles applied on a consistent basis
throughout the periods covered thereby except as may be expressly stated otherwise in the
related notes thereto; the other financial information included in each of the Time of
Sale Information and the Offering Memorandum has been derived from the accounting records
of the Company and its subsidiaries and presents fairly in all material respects the
information shown thereby; and the pro forma financial information and the
related notes thereto included in each of the Time of Sale Information and the Offering
Memorandum has been prepared in accordance with the Commission’s rules and guidance with
respect to pro forma financial information, and the assumptions underlying
such pro forma financial information are reasonable and are set forth in
each of the Time of Sale Information and the Offering Memorandum.



     (d) No Material Adverse Change. Since the date of the most recent financial
statements of the Company included in each of the Time of Sale Information and the
Offering Memorandum (i) there has not been any material change in the capital stock or
long-term debt of the Company or any of its subsidiaries, or any dividend or distribution



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of any kind declared, set aside for payment, paid or made by the Company on any class of
capital stock, or any material adverse change, or any development involving a prospective
material adverse change, in or affecting the business, properties, management, financial
position or results of operations of the Company and its subsidiaries taken as a whole;
(ii) neither the Company nor any of its subsidiaries has entered into any transaction or
agreement that is material to the Company and its subsidiaries taken as a whole or
incurred any liability or obligation, direct or contingent, that is material to the
Company and its subsidiaries taken as a whole; and (iii) neither the Company nor any of
its subsidiaries has sustained any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by insurance, or from any
labor disturbance or dispute or any action, order or decree of any court or arbitrator or
governmental or regulatory authority, except in each case as otherwise disclosed in the
Time of Sale Information.



     (e) Organization and Good Standing. The Company and each of its subsidiaries has
been duly organized and is validly existing and in good standing under the laws of its
respective jurisdictions of organization, are duly qualified to do business and are in
good standing (to the extent such concept is applicable) in each jurisdiction in which
their respective ownership or lease of property or the conduct of their respective
businesses requires such qualification, and have all power and authority necessary to own
or hold their respective properties and to conduct the businesses as described in the
Offering Memorandum, except where the failure to be so qualified, be in good standing or
have such power or authority would not, individually or in the aggregate, have a material
adverse effect on the business, properties, management, financial position, results of
operations or prospects of the Company and its subsidiaries taken as a whole or on the
performance by the Company and the Guarantors of their obligations under the Securities
and the Guarantees (a “Material Adverse Effect”). The Company does not own or control,
directly or indirectly, any corporation, association or other entity other than the
subsidiaries listed in Schedule 5 to this Agreement.



     (f) Capitalization. The Company has an authorized capitalization as set forth in
each of the Time of Sale Information and the Offering Memorandum under the heading
“Capitalization”; and all the outstanding shares of capital stock or other equity
interests of each subsidiary of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and are owned directly or indirectly by the
Company, free and clear of any lien, charge, encumbrance, security interest, restriction
on voting or transfer or any other claim of any third party, except for those securing the
obligations of Parent and its subsidiaries (including, without limitation, the Company and
its subsidiaries) under the existing Parent credit agreement (and related documentation)
and certain other obligations of the Parent and its subsidiaries (which liens will be
released in connection with the spin-off) and liens securing the obligations of the Company and its subsidiaries
under the Company credit agreement related to the Debt.



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     (g) Due Authorization. The Company and each of the Guarantors has full right, power
and authority to execute and deliver this Agreement, the Securities, the Indenture
(including each Guarantee set forth therein), the Exchange Securities, the Registration
Rights Agreement and the Spin-Off Agreements (collectively, the “Transaction Documents”),
as applicable, and to perform its respective obligations hereunder and thereunder, as
applicable; and all action required to be taken for the due and proper authorization,
execution and delivery of each of the Transaction Documents and the consummation of the
transactions contemplated thereby has been duly and validly taken.



     (h) The Indenture. The Indenture has been duly authorized by the Company and each of
the Guarantors and, when duly executed and delivered in accordance with its terms by each
of the parties thereto, will constitute a valid and legally binding agreement of the
Company and each of the Guarantors enforceable against the Company and each of the
Guarantors in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer,
moratorium or other similar laws relating to or affecting the enforcement of creditors’
rights generally or by equitable principles relating to enforceability (collectively, the
“Enforceability Exceptions”); and on the Closing Date, the Indenture will conform in all
material respects to the requirements of the Trust Indenture Act of 1939, as amended (the
“Trust Indenture Act”), and the rules and regulations of the Commission applicable to an
indenture that is qualified thereunder.



     (i) The Securities and the Guarantees. The Securities have been duly authorized by
the Company and, when duly executed, authenticated, issued and delivered as provided in
the Indenture and paid for as provided herein, will be duly and validly issued and
outstanding and will constitute valid and legally binding obligations of the Company
enforceable against the Company in accordance with their terms, subject to the
Enforceability Exceptions, and will be entitled to the benefits of the Indenture; and the
Guarantees have been duly authorized by each of the Guarantors and, when the Securities
have been duly executed, authenticated, issued and delivered as provided in the Indenture
and paid for as provided herein, will be valid and legally binding obligations of each of
the Guarantors, enforceable against each of the Guarantors in accordance with their terms,
subject to the Enforceability Exceptions, and will be entitled to the benefits of the
Indenture.



     (j) The Exchange Securities. On the Closing Date, the Exchange Securities (including
the related guarantees) will have been duly authorized by the Company and each of the
Guarantors and, when duly executed, authenticated, issued and delivered as



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contemplated by the Indenture and the Registration Rights Agreement, will be duly and
validly issued and outstanding and will constitute valid and legally binding obligations
of the Company, as issuer, and each of the Guarantors, as guarantor, enforceable against
the Company and each of the Guarantors in accordance with their terms, subject to the
Enforceability Exceptions, and will be entitled to the benefits of the Indenture.



     (k) Purchase and Registration Rights Agreements. This Agreement has been duly
authorized, executed and delivered by the Company and each of the Guarantors; and the
Registration Rights Agreement has been duly authorized by the Company and each of the
Guarantors and on the Closing Date will be duly executed and delivered by the Company and
each of the Guarantors and, when duly executed and delivered in accordance with its terms
by each of the parties thereto, will constitute a valid and legally binding agreement of
the Company and each of the Guarantors enforceable against the Company and each of the
Guarantors in accordance with its terms, subject to the Enforceability Exceptions, and
except that rights to indemnity and contribution thereunder may be limited by applicable
law and public policy.



     (l) Other Transaction Documents. The Spin-Off Agreements have been duly authorized
by the Company and each of the Guarantors (to which each is a party) and, when duly
executed and delivered in accordance with its terms by each of the parties thereto, will
constitute a valid and legally binding agreement of the Company and each of the Guarantors
(to which each is a party) enforceable against the Company and each of the Guarantors (to
which each is a party) in accordance with its terms, subject to the Enforceability
Exceptions.



     (m) Descriptions of the Transaction Documents. Each Transaction Document conforms in
all material respects to the description thereof contained in each of the Time of Sale
Information and the Offering Memorandum.



     (n) No Violation or Default. Neither the Company nor any of its subsidiaries is (i)
in violation of its charter or by-laws or similar organizational documents; (ii) in
default, and no event has occurred that, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of any term, covenant or
condition contained in any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject; or (iii) in violation of any
applicable law or statute or any judgment, order, rule or regulation of any court or
arbitrator or governmental or regulatory authority, except, in the case of clauses (ii)
and (iii) above, for any such default or violation that would not, individually or in the
aggregate, have a Material Adverse Effect.



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     (o) No Conflicts. The execution, delivery and performance by the Company and each of
the Guarantors of each of the Transaction Documents to which each is a party, the issuance
of the Securities (including the Guarantees) and compliance by the Company and each of the
Guarantors with the terms thereof and the consummation of the transactions contemplated by
the Transaction Documents (including the Spin-Off) will not (i) conflict with or result in
a breach or violation of any of the terms or provisions of, or constitute a default under,
or result in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries pursuant to, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the Company or any of
its subsidiaries is subject, other than liens securing the obligations of Parent and its
subsidiaries (including, without limitation, the Company and its subsidiaries) under the
existing Parent credit agreement (and related documentation) and certain other obligations
of the Parent and its subsidiaries (which liens will be released in connection with the
spin-off) and liens securing the obligations of the Company and its subsidiaries under the
Company credit agreement related to the Debt, (ii) result in any violation of the
provisions of the charter or by-laws or similar organizational documents of the Company or
any of its subsidiaries or (iii) assuming the accuracy of, and the Initial Purchaser’s
compliance with, the representations, warranties and agreements of the Initial Purchaser’s
herein, and the compliance by the holders of the Securities with the offering and transfer
restrictions set forth in the Offering Memorandum, result in the violation of any
applicable law or statute or any judgment, order, rule or regulation of any court or
arbitrator or governmental or regulatory authority, except, in the case of clauses (i) and
(iii) above, for any such conflict, breach, violation or default that would not,
individually or in the aggregate, have a Material Adverse Effect.



     (p) No Consents Required. Assuming the accuracy of, and the Initial Purchaser’s
compliance with, the representations, warranties and agreements of the Initial Purchaser’s
herein, and the compliance of the holders of the Securities with the offering and transfer
restrictions set forth in the Offering Memorandum, no consent, approval, authorization,
order, registration or qualification of or with any court or arbitrator or governmental or
regulatory authority is required for the execution, delivery and performance by the
Company and each of the Guarantors of each of the Transaction Documents to which each is a
party, the issuance of the Securities (including the Guarantees) and compliance by the
Company and each of the Guarantors with the terms thereof and the consummation of the
transactions contemplated by the Transaction Documents, except for such consents,
approvals, authorizations, orders and registrations or qualifications as may be required
(i) under applicable state securities



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laws in connection with the purchase and resale of the Securities by the Initial
Purchasers and (ii) with respect to the Exchange Securities (including the related
guarantees) under the Securities Act, the Trust Indenture Act and applicable state
securities laws as contemplated by the Registration Rights Agreement.



     (q) Legal Proceedings. Except as described in each of the Time of Sale Information
and the Offering Memorandum, there are no legal, governmental or regulatory
investigations, actions, suits or proceedings pending to which the Company or any of its
subsidiaries is or may be a party or to which any property of the Company or any of its
subsidiaries is or may be the subject that, individually or in the aggregate, if
determined adversely to the Company or any of its subsidiaries, could reasonably be
expected to have a Material Adverse Effect; and no such investigations, actions, suits or
proceedings are threatened or, to the knowledge of the Company and each of the Guarantors,
contemplated by any governmental or regulatory authority or by others.



     (r) Independent Accountants. KPMG LLP, who have certified certain financial
statements of the Company and its subsidiaries are independent public accountants with
respect to the Company and its subsidiaries within the applicable rules and regulations
adopted by the Commission and the Public Company Accounting Oversight Board (United
States) and as required by the Securities Act.



     (s) Title to Real and Personal Property. The Company and its subsidiaries have good
and marketable title in fee simple to, or have valid rights to lease or otherwise use, all
items of real and personal property that are material to the respective businesses of the
Company and its subsidiaries, in each case free and clear of all liens, encumbrances,
claims and defects and imperfections of title except those that (i) do not materially
interfere with the use made and proposed to be made of such property by the Company and
its subsidiaries or (ii) could not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect.



     (t) Title to Intellectual Property. The Company and its subsidiaries own or possess
or license adequate rights to use all material patents, patent applications, trademarks,
service marks, trade names, trademark registrations, service mark registrations,
copyrights, licenses and know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures) reasonably
necessary for the conduct of their respective businesses as described in the Time of Sale
Information and the Offering Memorandum except where the failure to own or possess such
rights would not, individually or in the aggregate, have a Material Adverse Effect; and
the conduct of their respective businesses will not conflict in any material respect with
any such rights of others; and the Company and its subsidiaries have not received any
notice of any claim of infringement of or conflict with any such rights
of others, which infringement or conflict, if subject of an unfavorable decisions, ruling
or funding, would have a Material Adverse Effect.



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     (u) No Undisclosed Relationships. No relationship, direct or indirect, exists
between or among the Company or any of its subsidiaries, on the one hand, and the
directors, officers, stockholders or other affiliates of the Company or any of its
subsidiaries, on the other, that would be required by the Securities Act to be described
in a registration statement to be filed with the Commission and that is not so described
in each of the Time of Sale Information and the Offering Memorandum.



     (v) Investment Company Act. Neither the Company nor any of its subsidiaries is, and
after giving effect to the Transactions as described in each of the Time of Sale
Information and the Offering Memorandum none of them will be, an “investment company” or
an entity “controlled” by an “investment company” within the meaning of the Investment
Company Act of 1940, as amended, and the rules and regulations of the Commission
thereunder (collectively, the “Investment Company Act”).



     (w) Taxes. Except as would not, individually or in the aggregate, result in a
Material Adverse Effect, the Company and its subsidiaries have paid all federal, state,
local and foreign taxes and filed all tax returns required to be paid or filed through the
date hereof; and except as otherwise disclosed in each of the Time of Sale Information and
the Offering Memorandum, there is no tax deficiency that has been, or could reasonably be
expected to be, asserted against the Company or any of its subsidiaries or any of their
respective properties or assets.



     (x) Licenses and Permits. The Company and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by, and have made all declarations
and filings with, the appropriate federal, state, local or foreign governmental or
regulatory authorities that are reasonably necessary for the ownership or lease of their
respective properties or the conduct of their respective businesses as described in each
of the Time of Sale Information and the Offering Memorandum, except where the failure to
possess or make the same would not, individually or in the aggregate, have a Material
Adverse Effect; and except as described in each of the Time of Sale Information and the
Offering Memorandum or as would not have a Material Adverse Effect, neither the Company
nor any of its subsidiaries has received notice of any revocation or modification of any
such license, certificate, permit or authorization or has any reason to believe that any
such license, certificate, permit or authorization will not be renewed in the ordinary
course.



     (y) No Labor Disputes. No labor disturbance by or dispute with employees of the
Company or any of its subsidiaries exists or, to the knowledge of the Company and



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each of the Guarantors, is contemplated or to the knowledge of the Company is threatened
and neither the Company nor any Guarantor is aware of any existing or imminent labor
disturbance by, or dispute with, the employees of any of the Company’s or any of the
Company’s subsidiaries’ principal suppliers, contractors or customers, except as would not
have a Material Adverse Effect.



     (z) Compliance With Environmental Laws. (i) The Company and its subsidiaries (x)
are, and at all prior times were, in compliance with any and all applicable federal,
state, local and foreign laws, rules, regulations, requirements, decisions and orders
relating to the protection of human health or safety, the environment, natural resources,
hazardous or toxic substances or wastes, pollutants or contaminants (collectively,
“Environmental Laws”), (y) have received and are in compliance with all permits, licenses,
certificates or other authorizations or approvals required of them under applicable
Environmental Laws to conduct their respective businesses, and (z) have not received
notice of any actual or potential liability under or relating to any Environmental Laws,
including for the investigation or remediation of any disposal or release of hazardous or
toxic substances or wastes, pollutants or contaminants, and have no knowledge of any event
or condition that would reasonably be expected to result in any such notice, and (ii)
there are no costs or liabilities associated with Environmental Laws of or relating to the
Company or its subsidiaries, except in the case of each of (i) and (ii) above, for any
such failure to comply, or failure to receive required permits, licenses or approvals, or
cost or liability, as would not, individually or in the aggregate, have a Material Adverse
Effect; and (iii) except as described in each of the Time of Sale Information and the
Offering Memorandum, (x) there are no proceedings that are pending, or that are known to
be contemplated, against the Company or any of its subsidiaries under any Environmental
Laws in which a governmental entity is also a party, other than such proceedings regarding
which it is reasonably believed no monetary sanctions of $100,000 or more will be imposed,
(y) the Company and its subsidiaries are not aware of any issues regarding compliance with
Environmental Laws, or liabilities or other obligations under Environmental Laws or
concerning hazardous or toxic substances or wastes, pollutants or contaminants, that could
reasonably be expected to have a Material Adverse Effect, and (z) none of the Company and
its subsidiaries anticipates material capital expenditures relating to any Environmental
Laws.



     (aa) Compliance With ERISA. (i) Each employee benefit plan, within the meaning of
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”),
for which the Company or any member of its “Controlled Group” (defined as any organization
which is a member of a controlled group of corporations within the meaning of Section 414
of the Internal Revenue Code of 1986, as amended (the “Code”)) would have any liability
(each, a “Plan”) has been maintained in



13









 







compliance in all material respects with its terms and the requirements of any applicable
statutes, orders, rules and regulations, including but not limited to ERISA and the Code;
(ii) no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975
of the Code, has occurred with respect to any Plan excluding transactions effected
pursuant to a statutory or administrative exemption; (iii) for each Plan that is subject
to the funding rules of Section 412 of the Code or Section 302 of ERISA, no “accumulated
funding deficiency” as defined in Section 412 of the Code, whether or not waived, has
occurred or is reasonably expected to occur; (iv) the fair market value of the assets of
each Plan exceeds the present value of all benefits accrued under such Plan (determined
based on those assumptions used to fund such Plan); (v) no “reportable event” (within the
meaning of Section 4043(c) of ERISA) has occurred or is reasonably expected to occur; and
(vi) neither the Company nor any member of the Controlled Group has incurred, nor
reasonably expects to incur, any liability under Title IV of ERISA (other than
contributions to the Plan or premiums to the PBGC, in the ordinary course and without
default) in respect of a Plan (including a “multiemployer plan”, within the meaning of
Section 4001(a)(3) of ERISA).



     (bb) Disclosure Controls. The Company and its subsidiaries, on a consolidated basis,
maintain an effective system of “disclosure controls and procedures” (as defined in Rule
13a-15(e) of the Exchange Act) that is designed to ensure that information required to be
disclosed by the Company in reports that it files or submits under the Exchange Act is
recorded, processed, summarized and reported within the time periods specified in the
Commission’s rules and forms, including controls and procedures designed to ensure that
such information is accumulated and communicated to the Company’s management as
appropriate to allow timely decisions regarding required disclosure. The Company and its
subsidiaries, on a consolidated basis, have carried out evaluations of the effectiveness
of their disclosure controls and procedures as required by Rule 13a-15 of the Exchange
Act.



     (cc) Accounting Controls. The Company and its subsidiaries, on a consolidated basis,
maintain systems of “internal control over financial reporting” (as defined in Rule
13a-15(f) of the Exchange Act) that comply with the requirements of the Exchange Act and
have been designed by, or under the supervision of, their respective principal executive
and principal financial officers, or persons performing similar functions, to provide
reasonable assurance regarding the reliability of financial reporting and the preparation
of financial statements for external purposes in accordance with generally accepted
accounting principles. The Company and its subsidiaries, on a consolidated basis,
maintain internal accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management’s general or specific
authorizations; (ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting principles and to



14









 







maintain asset accountability; (iii) access to assets is permitted only in accordance with
management’s general or specific authorization; and (iv) the recorded accountability for
assets is compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences. Except as disclosed in each of the Time of Sale
Information and the Offering Memorandum, there are no material weaknesses or significant
deficiencies in the Company’s internal controls.



     (dd) Insurance. The Company and its subsidiaries have insurance covering their
respective properties, operations, personnel and businesses, including business
interruption insurance, which insurance is in amounts and insures against such losses and
risks as the Company believes are customary and adequate to protect the Company and its
subsidiaries and their respective businesses; and neither the Company nor any of its
subsidiaries has (i) received notice from any insurer or agent of such insurer that
capital improvements or other expenditures are required or necessary to be made in order
to continue such insurance or (ii) any reason to believe that it will not be able to renew
its existing insurance coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be reasonably necessary to continue its business and
at a cost that could not, individually or in the aggregate, have a Material Adverse
Effect.



     (ee) No Unlawful Payments. Neither the Company nor any of its subsidiaries nor, to
the knowledge of the Company and each of the Guarantors, any director, officer, agent,
employee or other person associated with or acting on behalf of the Company or any of its
subsidiaries has (i) used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political activity; (ii) made any
direct or indirect unlawful payment to any foreign or domestic government official or
employee from corporate funds; (iii) violated or is in violation of any provision of the
Foreign Corrupt Practices Act of 1977; or (iv) made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment.



     (ff) Compliance with Money Laundering Laws. The operations of the Company and its
subsidiaries are and have been conducted at all times in compliance with applicable
financial recordkeeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the money laundering statutes of all
jurisdictions, the rules and regulations thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any governmental agency
(collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before
any court or governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries with respect to the Money Laundering Laws is pending
or, to the knowledge of the Company, threatened.



15









 





     (gg) Compliance with OFAC. None of the Company, any of its subsidiaries or, to the
knowledge of the Company, any director, officer, agent, employee or affiliate of the
Company or any of its subsidiaries is currently subject to any U.S. sanctions administered
by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”).



     (hh) Solvency. On and immediately after the Closing Date, the Company (on a
consolidated basis after giving effect to the issuance of the Securities and the other
transactions related thereto as described in each of the Time of Sale Information and the
Offering Memorandum and the Spin-Off) will be Solvent. As used in this paragraph, the
term “Solvent” means, with respect to a particular date, that on such date (i) the present
fair market value (or present fair saleable value) of the assets of the Company is not
less than the total amount required to pay the liabilities of the Company on its total
existing debts and liabilities (including contingent liabilities) as they become absolute
and matured; (ii) the Company is able to realize upon its assets and pay its debts and
other liabilities, contingent obligations and commitments as they mature and become due in
the normal course of business; (iii) assuming consummation of the issuance of the
Securities as contemplated by this Agreement, the Time of Sale Information and the
Offering Memorandum and the Spin-Off, the Company is not incurring debts or liabilities
beyond its ability to pay as such debts and liabilities mature; (iv) the Company is not
engaged in any business or transaction, and does not propose to engage in any business or
transaction, for which its property would constitute unreasonably small capital after
giving due consideration to the prevailing practice in the industry in which the Company
is engaged; and (v) the Company is not a defendant in any civil action that would
reasonably be expected to result in a judgment that the Company is or would become unable
to satisfy.



     (ii) No Restrictions on Subsidiaries. No subsidiary of the Company is currently
prohibited, directly or indirectly, under any agreement or other instrument to which it is
a party or is subject, from paying any dividends to the Company, from making any other
distribution on such subsidiary’s capital stock, from repaying to the Company any loans or
advances to such subsidiary from the Company or from transferring any of such subsidiary’s
properties or assets to the Company or any other subsidiary of the Company.



     (jj) No Broker’s Fees. Neither the Company nor any of its subsidiaries is a party to
any contract, agreement or understanding with any person (other than this Agreement) that
would give rise to a valid claim against any of them or any Initial Purchaser for a
brokerage commission, finder’s fee or like payment in connection with the offering and
sale of the Securities.



16









 





     (kk) Rule 144A Eligibility. On the Closing Date, the Securities will not be of the
same class as securities listed on a national securities exchange registered under Section
6 of the Exchange Act or quoted in an automated inter-dealer quotation system; and each of
the Preliminary Offering Memorandum and the Offering Memorandum, as of its respective
date, contains or will contain all the information that, if requested by a prospective
purchaser of the Securities, would be required to be provided to such prospective
purchaser pursuant to Rule 144A(d)(4) under the Securities Act.



     (ll) No Integration. Neither the Company nor any of its affiliates (as defined in
Rule 501(b) of Regulation D) has, directly or through any agent, sold, offered for sale,
solicited offers to buy or otherwise negotiated in respect of, any security (as defined in
the Securities Act), that is or will be integrated with the sale of the Securities in a
manner that would require registration of the Securities under the Securities Act.



     (mm) No General Solicitation or Directed Selling Efforts. None of the Company nor
any of its affiliates or any other person acting on its or their behalf (other than the
Initial Purchasers, as to which no representation is made by the Company and the
Guarantors) has (i) solicited offers for, or offered or sold, the Securities by means of
any form of general solicitation or general advertising within the meaning of Rule 502(c)
of Regulation D or in any manner involving a public offering within the meaning of Section
4(2) of the Securities Act or (ii) engaged in any directed selling efforts within the
meaning of Regulation S under the Securities Act (“Regulation S”), and all such persons
have complied with the offering restrictions requirement of Regulation S.



     (nn) Securities Law Exemptions. Assuming the accuracy of the representations and
warranties of the Initial Purchasers contained in Section 1(b) (including Annex C hereto)
and their compliance with their agreements set forth therein, and the compliance by the
holders of the Securities with the offering and transfer restrictions set forth in the
Offering Memorandum, it is not necessary, in connection with the issuance and sale of the
Securities to the Initial Purchasers and the offer, resale and delivery of the Securities
by the Initial Purchasers in the manner contemplated by this Agreement, the Time of Sale
Information and the Offering Memorandum, to register the Securities under the Securities
Act or, until such time as the Exchange Securities are issues pursuant to an effected
registration statement, to qualify the Indenture under the Trust Indenture Act.



17









 





     (oo) No Stabilization. Neither the Company nor any of the Guarantors has taken,
directly or indirectly, any action designed to or that could reasonably be expected to
cause or result in any stabilization or manipulation of the price of the Securities.



     (pp) Margin Rules. Neither the issuance, sale and delivery of the Securities nor the
application of the proceeds thereof by the Company as described in each of the Time of
Sale Information and the Offering Memorandum will violate Regulation T, U or X of the
Board of Governors of the Federal Reserve System or any other regulation of such Board of
Governors.



     (qq) Forward-Looking Statements. No forward-looking statement (within the meaning of
Section 27A of the Securities Act and Section 21E of the Exchange Act) contained in any of
the Time of Sale Information or the Offering Memorandum has been made or reaffirmed
without a reasonable basis or has been disclosed other than in good faith.



     (rr) Statistical and Market Data. Nothing has come to the attention of the Company
that has caused the Company to believe that the statistical and market-related data
included in each of the Time of Sale Information and the Offering Memorandum is not based
on or derived from sources that are reliable and accurate in all material respects.



     (ss) Sarbanes-Oxley Act. There is and has been no failure on the part of the Company
or any of the Company’s directors or officers, in their capacities as such, to comply with
any provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated
in connection therewith (the “Sarbanes-Oxley Act”), including Section 402 related to loans
and Sections 302 and 906 related to certifications.



          (B) Representations and Warranties of the Selling Noteholders. Each Selling
Noteholder severally represents and warrants to each Initial Purchaser that:




     (a) Preliminary Offering Memorandum, Time of Sale Information and Offering
Memorandum. The Preliminary Offering Memorandum, as of its date, did not, the Time of
Sale Information, at the Time of Sale, did not, and at the Closing Date, will not, and the
Offering Memorandum, in the form first used by the Initial Purchasers to confirm sales of
the Securities and as of the Closing Date, will not, contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading;
provided that the representations and warranties set forth in this paragraph
3(B)(a) are limited to statements or omissions made in reliance upon information relating
to such Selling Noteholder furnished to the Company in writing by such Selling



18









 







Noteholder expressly for use in the Preliminary Offering Memorandum, the Time of Sale
Information or the Offering Memorandum; it being understood that the only information
furnished in writing by or on behalf of such Selling Noteholder expressly for such use is
the information relating to such Selling Noteholder in the Preliminary Offering
Memorandum, the Time of Sale Information and the Offering Memorandum under the caption
“Selling Securityholders” (the “Selling Noteholder Information”).



     (b) Purchase Agreement. This Agreement has been duly authorized, executed and
delivered by such Selling Noteholder.



     (c) No Conflicts. The execution, delivery and performance by each Selling Noteholder
of this Agreement and sale of the Securities and compliance by each Selling Noteholder
with the terms thereof and the consummation of the transactions contemplated by this
Agreement will not (i) conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which such Selling Noteholder is
a party or by which such Selling Noteholder is bound or to which any of the property or
assets of such Selling Noteholder is subject, (ii) result in any violation of the
provisions of the charter or by-laws or similar organizational documents of such Selling
Noteholder or (iii) result in the violation of any law or statute or any judgment, order,
rule or regulation of any court or arbitrator or governmental or regulatory authority,
except, in the case of clauses (i) and (iii) above, for any such conflict, breach,
violation or default that would not, individually or in the aggregate, have a Material
Adverse Effect.



     (d) Legal Right and Power to Sell Securities. Such Selling Noteholder, at the
Closing Time, will have the legal right and power, and all authorization and approval
required by law, to enter into this Agreement and to sell, transfer and deliver the
Securities to be sold by such Selling Noteholder or a valid security entitlement in
respect of such Securities.



     4. Further Agreements of the Company and the Guarantors. The Company and
each of the Guarantors jointly and severally covenant and agree with each Initial
Purchaser that:



     (a) Delivery of Copies. The Company will deliver, without charge, to the Initial
Purchasers as many copies of the Preliminary Offering Memorandum, any other Time of Sale
Information, any Issuer Written Communication and the Offering Memorandum (including all
amendments and supplements thereto) as the Representatives may reasonably request.



19









 





     (b) Offering Memorandum, Amendments or Supplements. Before finalizing the Offering
Memorandum or making or distributing any amendment or supplement to any of the Time of
Sale Information or the Offering Memorandum, the Company will furnish to the
Representatives and counsel for the Initial Purchasers a copy of the proposed Offering
Memorandum or such amendment or supplement for review, and will not distribute any such
proposed Offering Memorandum, amendment or supplement to which the Representatives
reasonably object.



     (c) Additional Written Communications. Before making, preparing, using, authorizing,
approving or referring to any Issuer Written Communication, the Company will furnish to
the Representatives and counsel for the Initial Purchasers a copy of such written
communication for review and will not make, prepare, use, authorize, approve or refer to
any such written communication to which the Representatives reasonably object.



     (d) Notice to the Representatives. The Company will advise the Representatives
promptly, and confirm such advice in writing, (i) of the issuance by any governmental or
regulatory authority of any order preventing or suspending the use of any of the Time of
Sale Information, any Issuer Written Communication or the Offering Memorandum or the
initiation or threatening of any proceeding for that purpose; (ii) of the occurrence of
any event at any time prior to the completion of the initial offering of the Securities as
a result of which any of the Time of Sale Information, any Issuer Written Communication or
the Offering Memorandum as then amended or supplemented would include any untrue statement
of a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances existing when such Time of Sale
Information, Issuer Written Communication or the Offering Memorandum is delivered to a
purchaser, not misleading; and (iii) of the receipt by the Company of any notice with
respect to any suspension of the qualification of the Securities for offer and sale in any
jurisdiction or the initiation or threatening of any proceeding for such purpose; and the
Company will use its reasonable efforts to prevent the issuance of any such order
preventing or suspending the use of any of the Time of Sale Information, any Issuer
Written Communication or the Offering Memorandum or suspending any such qualification of
the Securities and, if any such order is issued, will obtain as soon as possible the
withdrawal thereof.



     (e) Time of Sale Information. If at any time prior to the Closing Date (i) any event
shall occur or condition shall exist as a result of which any of the Time of Sale
Information as then amended or supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not



20









 







misleading or (ii) it is necessary to amend or supplement any of the Time of Sale
Information to comply with law, the Company will immediately notify the Initial Purchasers
thereof and forthwith prepare and, subject to paragraph (b) above, furnish to the Initial
Purchasers such amendments or supplements to any of the Time of Sale Information as may be
necessary so that the statements in any of the Time of Sale Information as so amended or
supplemented will not, in light of the circumstances under which they were made, be
misleading or so that any of the Time of Sale Information will comply with law.



     (f) Ongoing Compliance of the Offering Memorandum. If at any time prior to the
completion of the initial offering of the Securities (i) any event shall occur or
condition shall exist as a result of which the Offering Memorandum as then amended or
supplemented would include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of the
circumstances existing when the Offering Memorandum is delivered to a purchaser, not
misleading or (ii) it is necessary to amend or supplement the Offering Memorandum to
comply with law, the Company will immediately notify the Initial Purchasers thereof and
forthwith prepare and, subject to paragraph (b) above, furnish to the Initial Purchasers
such amendments or supplements to the Offering Memorandum as may be necessary so that the
statements in the Offering Memorandum as so amended or supplemented will not, in the light
of the circumstances existing when the Offering Memorandum is delivered to a purchaser, be
misleading or so that the Offering Memorandum will comply with law.



     (g) Blue Sky Compliance. The Company will qualify the Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the Representatives shall
reasonably request and will continue such qualifications in effect so long as required for
the offering and resale of the Securities; provided that neither the Company nor
any of the Guarantors shall be required to (i) qualify as a foreign corporation or other
entity or as a dealer in securities in any such jurisdiction where it would not otherwise
be required to so qualify, (ii) file any general consent to service of process in any such
jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not
otherwise so subject.



     (h) Clear Market. During the period from the date hereof through and including the
date that is 90 days after the date hereof, the Company and each of the Guarantors will
not, without the prior written consent of J.P. Morgan Securities Inc., offer, sell,
contract to sell or otherwise dispose of any debt securities issued or guaranteed by the
Company or any of the Guarantors and having a tenor of more than one year.



21









 





     (i) Supplying Information. While the Securities remain outstanding and are
“restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, the
Company and each of the Guarantors will, during any period in which the Company is not
subject to and in compliance with Section 13 or 15(d) of the Exchange Act, furnish to
holders of the Securities and prospective purchasers of the Securities designated by such
holders, upon the request of such holders or such prospective purchasers, the information
required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.



     (j) PORTAL and DTC. The Company will assist the Initial Purchasers in arranging for
the Securities to be designated Private Offerings, Resales and Trading through Automated
Linkages (“PORTAL”) Market securities in accordance with the rules and regulations adopted
by the National Association of Securities Dealers, Inc. (the “NASD”) relating to trading
in the PORTAL Market and for the Securities to be eligible for clearance and settlement
through The Depository Trust Company (“DTC”).



     (k) No Resales by the Company. The Company will not, and will not permit any of its
affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the
Securities that have been acquired by any of them, except for Securities purchased by the
Company or any of its affiliates and resold in a transaction registered under the
Securities Act.



     (l) No Integration. Neither the Company nor any of its affiliates (as defined in
Rule 501(b) of Regulation D) will, directly or through any agent, sell, offer for sale,
solicit offers to buy or otherwise negotiate in respect of, any security (as defined in
the Securities Act), that is or will be integrated with the sale of the Securities in a
manner that would require registration of the Securities under the Securities Act.



     (m) No General Solicitation or Directed Selling Efforts. None of the Company or any
of its affiliates or any other person acting on its or their behalf (other than the
Initial Purchasers, as to which no covenant is given) will (i) solicit offers for, or
offer or sell, the Securities by means of any form of general solicitation or general
advertising within the meaning of Rule 502(c) of Regulation D or in any manner involving a
public offering within the meaning of Section 4(2) of the Securities Act or (ii) engage in
any directed selling efforts within the meaning of Regulation S, and all such persons will
comply with the offering restrictions requirement of Regulation S.



     (n) No Stabilization. Neither the Company nor any of the Guarantors will take,
directly or indirectly, any action designed to or that could reasonably be expected to
cause or result in any stabilization or manipulation of the price of the Securities.



22









 





     5. Certain Agreements of the Initial Purchasers. Each Initial Purchaser
hereby represents and agrees that it has not and will not use, authorize use of, refer to,
or participate in the planning for use of, any written communication that constitutes an
offer to sell or the solicitation of an offer to buy the Securities other than (i) the
Preliminary Offering Memorandum and the Offering Memorandum, (ii) a written communication
that contains no “issuer information” (as defined in Rule 433(h)(2) under the Securities
Act) that was not included (including through incorporation by reference) in the
Preliminary Offering Memorandum or the Offering Memorandum, (iii) any written
communication listed on Annex A or prepared pursuant to Section 4(c) above (including any
electronic road show), (iv) any written communication prepared by such Initial Purchaser
and approved by the Company in advance in writing or (v) any written communication
relating to or that contains the terms of the Securities and/or other information that was
included (including through incorporation by reference) in the Preliminary Offering
Memorandum or the Offering Memorandum.



     6. Conditions of Initial Purchasers’ Obligations. The obligation of each
Initial Purchaser to purchase Securities on the Closing Date as provided herein is subject
to the performance by the Company, each of the Guarantors and each of the Selling
Noteholders of their respective covenants and other obligations hereunder and to the
following additional conditions:



     (a) Representations and Warranties. The representations and warranties of the
Company, the Guarantors and the Selling Noteholders contained herein shall be true and
correct on the date hereof and on and as of the Closing Date; and the statements of the
Company, the Guarantors and their respective officers made in any certificates delivered
pursuant to this Agreement shall be true and correct on and as of the Closing Date.



     (b) No Downgrade. Subsequent to the earlier of (A) the Time of Sale and (B) the
execution and delivery of this Agreement, (i) no downgrading shall have occurred in the
rating accorded the Securities or any other debt securities or preferred stock issued or
guaranteed by the Company or any of its subsidiaries by any “nationally recognized
statistical rating organization”, as such term is defined by the Commission for purposes
of Rule 436(g)(2) under the Securities Act; and (ii) no such organization shall have
publicly announced that it has under surveillance or review, or has changed its outlook
with respect to, its rating of the Securities or of any other debt securities or preferred
stock issued or guaranteed by the Company or any of its subsidiaries (other than an
announcement with positive implications of a possible upgrading).



     (c) No Material Adverse Change. No event or condition of a type described in Section
3(d) hereof shall have occurred or shall exist, which event or condition is not



23









 







described in each of the Time of Sale Information (excluding any amendment or supplement
thereto) and the Offering Memorandum (excluding any amendment or supplement thereto) the
effect of which in the judgment of the Representatives makes it impracticable or
inadvisable to proceed with the offering, sale or delivery of the Securities on the terms
and in the manner contemplated by this Agreement, the Time of Sale Information and the
Offering Memorandum.



     (d) Officer’s Certificate. The Representatives shall have received on and as of the
Closing Date a certificate of an executive officer of the Company who has specific
knowledge of the Company’s financial matters and is satisfactory to the Representatives
(i) confirming that such officer has reviewed the Time of Sale Information and the
Offering Memorandum and, to the knowledge of such officer, the representations set forth
in Sections 3(a) and 3(b) hereof are true and correct, (ii) confirming that the other
representations and warranties of the Company and the Guarantors in this Agreement are
true and correct and that the Company and the Guarantors have complied with all agreements
and satisfied all conditions on their part to be performed or satisfied hereunder at or
prior to the Closing Date and (iii) to the effect set forth in paragraphs (b) and (c)
above.



     (e) Comfort Letters. On the date of this Agreement and on the Closing Date, KPMG LLP
shall have furnished to the Representatives, at the request of the Company, letters, dated
the respective dates of delivery thereof and addressed to the Initial Purchasers, in form
and substance reasonably satisfactory to the Representatives, containing statements and
information of the type customarily included in accountants’ “comfort letters” to
underwriters with respect to the financial statements and certain financial information
contained in each of the Time of Sale Information and the Offering Memorandum;
provided that the letter delivered on the Closing Date shall use a “cut-off” date
no more than three business days prior to the Closing Date.



     (f) Opinion and 10b-5 Statement of Counsel for the Company. Dewey & LeBoeuf LLP,
counsel for the Company, shall have furnished to the Representatives, at the request of
the Company, their written opinion and 10b-5 statement, dated the Closing Date and
addressed to the Initial Purchasers, in form and substance reasonably satisfactory to the
Representatives, to the effect set forth in Annex D hereto.



     (g) Opinion and 10b-5 Statement of the General Counsel of the Company. Todd Johnson,
general counsel of the Company, shall have furnished to the Representatives, at the
request of the Company, their written opinion and 10b-5 statement, dated the Closing Date
and addressed to the Initial Purchasers, in form and substance reasonably satisfactory to
the Representatives, to the effect set forth in Annex E hereto.



24









 





     (h) Opinion and 10b-5 Statement of Counsel for the Initial Purchasers. The
Representatives shall have received on and as of the Closing Date an opinion and 10b-5
statement of Davis Polk & Wardwell, counsel for the Initial Purchasers, with respect to
such matters as the Representatives may reasonably request, and such counsel shall have
received such documents and information as they may reasonably request to enable them to
pass upon such matters.



     (i) No Legal Impediment to Issuance. No action shall have been taken and no statute,
rule, regulation or order shall have been enacted, adopted or issued by any federal, state
or foreign governmental or regulatory authority that would, as of the Closing Date,
prevent the issuance or sale of the Securities or the issuance of the Guarantees; and no
injunction or order of any federal, state or foreign court shall have been issued that
would, as of the Closing Date, prevent the issuance or sale of the Securities or the
issuance of the Guarantees.



     (j) Good Standing. The Representatives shall have received on and as of the Closing
Date satisfactory evidence of the good standing of the Company and the Guarantors in their
respective jurisdictions of organization and their good standing in such other
jurisdictions as the Representatives may reasonably request, in each case in writing or
any standard form of telecommunication, from the appropriate governmental authorities of
such jurisdictions.



     (k) Registration Rights Agreement. The Initial Purchasers shall have received a
counterpart of the Registration Rights Agreement that shall have been executed and
delivered by a duly authorized officer of the Company and each of the Guarantors.



     (l) PORTAL and DTC. The Securities shall have been approved by the NASD for trading
in the PORTAL Market and shall be eligible for clearance and settlement through DTC.



     (m) Spin-Off. On (but not prior to, unless otherwise agreed by the Representatives)
the Closing Date, the Spin-Off, including the Debt Exchange, shall have been consummated
in the manner set forth in the Time of Sale Information and the Offering Memorandum,
without any material waiver, and shall be in full force and effect prior to or
contemporaneously with the issuance and sale of the Securities.



     (n) Additional Documents. On or prior to the Closing Date, the Company, the
Guarantors and the Selling Noteholders shall have furnished to the Representatives such
further certificates and documents as the Representatives may reasonably request.



25









 





     All opinions, letters, certificates and evidence mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are
in form and substance reasonably satisfactory to counsel for the Initial Purchasers.



     7. Indemnification and Contribution.



     (a) Indemnification of the Initial Purchasers by the Company and the Guarantors. The
Company and each of the Guarantors jointly and severally agree to indemnify and hold
harmless each Initial Purchaser, its affiliates, directors and officers and each person,
if any, who controls such Initial Purchaser within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all losses,
claims, damages and liabilities (including, without limitation, legal fees and other
expenses incurred in connection with any suit, action or proceeding or any claim asserted,
as such fees and expenses are reasonably incurred and properly documented), joint or
several, that arise out of, or are based upon, any untrue statement or alleged untrue
statement of a material fact contained in the Preliminary Offering Memorandum, the Time of
Sale Information, any Issuer Written Communication, when taken together with the Time of
Sale Information, or the Offering Memorandum (or any amendment or supplement thereto) or
any omission or alleged omission to state therein a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made,
not misleading, in each case except insofar as such losses, claims, damages or liabilities
arise out of, or are based upon, any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with any information
relating to any Initial Purchaser or Selling Noteholder furnished to the Company in
writing by such Initial Purchaser or Selling Noteholder expressly for use therein.



     (b) Indemnification of the Initial Purchasers by the Selling Noteholders. Each
Selling Noteholder severally in proportion to the aggregate principal amount of the
Securities to be sold by such Selling Noteholder hereunder agrees to indemnify and hold
harmless each Initial Purchaser, its affiliates, directors and officers and each person,
if any, who controls such Initial Purchaser within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set
forth in paragraph (a) above, but only with respect to any losses, claims, damages or
liabilities that arise out of, or are based upon, any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity with the
Selling Noteholder Information relating to such Selling Noteholder.



     (c) Indemnification of the Company, the Guarantors and the Selling Noteholders by the
Initial Purchasers. Each Initial Purchaser agrees, severally and not jointly, to
indemnify and hold harmless the Company, each of the Guarantors, each of



26









 







the Selling Noteholders and each of their respective directors and officers and each
person, if any, who controls the Company, any of the Guarantors or any of the Selling
Noteholders within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the indemnity set forth in paragraph (a) above, but
only with respect to any losses, claims, damages or liabilities that arise out of, or are
based upon, any untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with any information relating to such Initial Purchaser
furnished to the Company in writing by such Initial Purchaser through the Representatives
expressly for use in the Preliminary Offering Memorandum, any of the other Time of Sale
Information, any Issuer Written Communication or the Offering Memorandum (or any amendment
or supplement thereto), it being understood and agreed that the only such information
consists of the following: the third, eighth and tenth paragraphs under the caption “Plan
of distribution”.



     (d) Indemnification of the Company and the Guarantors by the Selling Noteholders. Each
Selling Noteholder severally agrees to indemnify and hold harmless the Company and each of the
Guarantors and each of their respective directors and officers and each person, if any, who
controls the Company or any of the Guarantors within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in paragraph
(a) above, but only with respect to any losses, claims, damages or liabilities that arise out of,
or are based upon, any untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with the Selling Noteholder Information relating to such Selling
Noteholder.



     (e) Indemnification of the Selling Noteholders by the Company and the Guarantors. The Company
and each of the Guarantors jointly and severally agree to indemnify and hold harmless each Selling
Noteholder and each of their respective directors and officers and each person, if any, who
controls any of the Selling Noteholdes within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the indemnity set forth in paragraph (a)
above, in each case except insofar as such losses, claims, damages or liabilities arise out of, or
are based upon, any untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with the Selling Noteholder Information relating to such Selling
Noteholder and any matter for which the Selling Noteholders are entitled to indemnification from
the Initial Purchasers pursuant to Section 7(c) above.



     (f) Notice and Procedures. If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be brought or asserted
against any person in respect of which indemnification may be sought pursuant to either
paragraph (a), (b), (c), (d) or (e) above, such person (the “Indemnified Person”) shall
promptly notify the person against whom such indemnification may be sought (the
“Indemnifying Person”) in writing; provided that the failure to notify the
Indemnifying



27









 







Person shall not relieve it from any liability that it may have under paragraph (a), (b),
(c), (d) or (e) above except to the extent that it has been materially prejudiced (through
the forfeiture of substantive rights or defenses) by such failure; and provided,
further, that the failure to notify the Indemnifying Person shall not relieve it
from any liability that it may have to an Indemnified Person otherwise than under
paragraph (a), (b), (c), (d) or (e) above. If any such proceeding shall be brought or
asserted against an Indemnified Person and it shall have notified the Indemnifying Person
thereof, the Indemnifying Person shall retain one counsel (in addition to one local
counsel in each jurisdiction) reasonably satisfactory to the Indemnified Person (who shall
not, without the consent of the Indemnified Person, be counsel to the Indemnifying Person)
to represent the Indemnified Person and any others entitled to indemnification pursuant to
this Section 7 that the Indemnifying Person may designate in such proceeding and shall pay
the fees and expenses of such proceeding and shall pay the fees and expenses of such
counsel related to such proceeding, as incurred. In any such proceeding, any Indemnified
Person shall have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying
Person and the Indemnified Person shall have mutually agreed to the contrary; (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel reasonably
satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have reasonably
concluded that there may be legal defenses available to it that are different from or in
addition to those available to the Indemnifying Person; or (iv) the named parties in any
such proceeding (including any impleaded parties) include both the Indemnifying Person and
the Indemnified Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood and agreed that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel) for all
Indemnified Persons, and that all such fees and expenses shall be reimbursed as they are
reasonably incurred. Any such separate firm for any Initial Purchaser, its affiliates,
directors and officers and any control persons of such Initial Purchaser shall be
designated in writing by the Representatives, any such separate firm for the Company, the
Guarantors, their respective directors and officers and any control persons of the Company
and the Guarantors shall be designated in writing by the Company and any such separate
firm for the Selling Noteholders shall be jointly selected by the Selling Noteholders.
The Indemnifying Person shall not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified
Person from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have
requested that an Indemnifying Person reimburse the Indemnified Person for fees and
expenses of counsel as contemplated by this



28









 







paragraph, the Indemnifying Person shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered into more than 45
days after receipt by the Indemnifying Person of such request, (ii) the Indemnifying
Person shall not have reimbursed the Indemnified Person in accordance with such request
prior to the date of such settlement and (iii) the Indemnified Person shall have given at
least 30 days prior written notice of its intention to settle. No Indemnifying Person
shall, without the written consent of the Indemnified Person, effect any settlement of any
pending or threatened proceeding in respect of which any Indemnified Person is or could
have been a party and indemnification could have been sought hereunder by such Indemnified
Person, unless such settlement (x) includes an unconditional release of such Indemnified
Person, in form and substance reasonably satisfactory to such Indemnified Person, from all
liability on claims that are the subject matter of such proceeding and (y) does not
include any statement as to or any admission of fault, culpability or a failure to act by
or on behalf of any Indemnified Person.



     (g) Contribution. If the indemnification provided for in paragraphs (a), (b), (c), (d) or (e)
above is unavailable to an Indemnified Person or insufficient in respect of any losses, claims,
damages or liabilities referred to therein, then each Indemnifying Person under such paragraph, in
lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or
payable by such Indemnified Person as a result of such losses, claims, damages or liabilities (i)
as between the Company, the Guarantors and the Selling Noteholders on the one hand and the Initial
Purchasers on the other hand, (x) in such proportion as is appropriate to reflect the relative
benefits received by the Company, the Guarantors and the Selling Noteholders on the one hand and
the Initial Purchasers on the other from the offering of the Securities or (y) if the allocation
provided by clause (x) is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (x) but also the relative fault of the
Company, the Guarantors and the Selling Noteholders on the one hand and the Initial Purchasers on
the other in connection with the statements or omissions that resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable considerations (provided
that in the case of this clause (i), the amount to be contributed by the Company and the Guarantors
on the one hand and the Selling Noteholders on the other hand shall be determined in accordance
with clause (ii) below); and (ii) as between the Company and the Guarantors on the one hand and the
Selling Noteholders on the other hand in such proportion as is appropriate to reflect the relative
fault of the Company and the Guarantors on the one hand and the Selling Noteholders on the other
hand in connection with the statements or omissions which resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations.



29









 





     As between the Company, the Guarantors and the Selling Noteholders on the one hand and the
Initial Purchasers on the other hand, (i) the relative benefits received by the Company,
the Guarantors and the Selling Noteholders on the one hand and the Initial Purchasers on the other
shall be deemed to be in the same respective proportions as the net proceeds (before deducting
expenses) received by the Company, the Guarantors and the Selling Noteholders from the sale of the
Securities and the total discounts and commissions received by the Initial Purchasers in connection
therewith, in each case as provided in this Agreement, bear to the aggregate offering price of the
Securities, and (ii) the relative fault of the Company, the Guarantors and the Selling Noteholders,
as the case may be, on the one hand and the Initial Purchasers on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to information supplied by the
Company, the Guarantors or the Selling Noteholders, or by the Initial Purchasers and the parties’
relative intent, knowledge, access to information and opportunity to correct or prevent such
statement or omission.



     As between the Company and the Guarantors on the one hand and the Selling Noteholders
on the other hand, the relative fault of the Company and the Guarantors on the one hand
and the Selling Noteholders on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to information supplied by the
Company and the Guarantors or by the Selling Noteholders and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or
omission.



     (h) Limitation on Liability. The Company, the Guarantors, the Selling Noteholders
and the Initial Purchasers agree that it would not be just and equitable if contribution
pursuant to this Section 7 were determined by pro rata allocation (even if
the Initial Purchasers were treated as one entity for such purpose) or by any other method
of allocation that does not take account of the equitable considerations referred to in
paragraph (g) above. The amount paid or payable by an Indemnified Person as a result of
the losses, claims, damages and liabilities referred to in paragraph (g) above shall be
deemed to include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such Indemnified Person in connection with any such action or
claim. Notwithstanding the provisions of this Section 7, in no event shall an Initial
Purchaser be required to contribute any amount in excess of the amount by which the total
discounts and commissions received by such Initial Purchaser with respect to the offering
of the Securities exceeds the amount of any damages that such Initial Purchaser has
otherwise been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The Initial
Purchasers’ obligations to contribute pursuant to this Section 7 are several in proportion
to their respective purchase obligations hereunder
and not joint. The Selling Noteholders’ obligations to contribute pursuant to this
Section 7 are several in proportion to the principal amount of Securities set forth
opposite their respective names in Schedule 1 hereto and not joint.



30









 





     (i) Non-Exclusive Remedies. The remedies provided for in this Section 7 are not
exclusive and shall not limit any rights or remedies that may otherwise be available to
any Indemnified Person at law or in equity.



     8. Termination. This Agreement may be terminated in the absolute discretion
of the Representatives, by notice to the Company and the Selling Noteholders, if after the
execution and delivery of this Agreement and on or prior to the Closing Date (i) trading
generally shall have been suspended or materially limited on the New York Stock Exchange
or the over-the-counter market; (ii) trading of any securities issued or guaranteed by the
Company or any of the Guarantors shall have been suspended on any exchange or in any
over-the-counter market; (iii) a general moratorium on commercial banking activities shall
have been declared by federal or New York State authorities; or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in financial markets or
any calamity or crisis, either within or outside the United States, that, in the judgment
of the Representatives, is material and adverse and makes it impracticable or inadvisable
to proceed with the offering, sale or delivery, of the Securities on the terms and in the
manner contemplated by this Agreement, the Time of Sale Information and the Offering
Memorandum.



     9. Defaulting Initial Purchaser. (a) If, on the Closing Date, any Initial
Purchaser defaults on its obligation to purchase the Securities that it has agreed to
purchase hereunder, the non-defaulting Initial Purchasers may in their discretion arrange
for the purchase of such Securities by other persons satisfactory to the Selling
Noteholders on the terms contained in this Agreement. If, within 36 hours after any such
default by any Initial Purchaser, the non-defaulting Initial Purchasers do not arrange for
the purchase of such Securities, then the Selling Noteholders shall be entitled to a
further period of 36 hours within which to procure other persons satisfactory to the
non-defaulting Initial Purchasers to purchase such Securities on such terms. If other
persons become obligated or agree to purchase the Securities of a defaulting Initial
Purchaser, either the non-defaulting Initial Purchasers, the Company or the Selling
Noteholders may postpone the Closing Date for up to five full business days in order to
effect any changes that in the opinion of counsel for the Company or counsel for the
Initial Purchasers may be necessary in the Time of Sale Information, the Offering
Memorandum or in any other document or arrangement, and the Company agrees to promptly
prepare any amendment or supplement to the Time of Sale Information or the Offering
Memorandum that effects any such changes. As used in this Agreement, the term “Initial
Purchaser” includes, for all purposes of this Agreement unless the context otherwise
requires, any person not listed in
Schedule 1 hereto that, pursuant to this Section 9, purchases Securities that a defaulting
Initial Purchaser agreed but failed to purchase.



31









 





     (b) If, after giving effect to any arrangements for the purchase of the Securities of
a defaulting Initial Purchaser or Initial Purchasers by the non-defaulting Initial
Purchasers and the Selling Noteholders as provided in paragraph (a) above, the aggregate
principal amount of such Securities that remains unpurchased does not exceed one-eleventh
of the aggregate principal amount of all the Securities, then the Selling Noteholders
shall have the right to require each non-defaulting Initial Purchaser to purchase the
principal amount of Securities that such Initial Purchaser agreed to purchase hereunder
plus such Initial Purchaser’s pro rata share (based on the principal
amount of Securities that such Initial Purchaser agreed to purchase hereunder) of the
Securities of such defaulting Initial Purchaser or Initial Purchasers for which such
arrangements have not been made.



     (c) If, after giving effect to any arrangements for the purchase of the Securities of
a defaulting Initial Purchaser or Initial Purchasers by the non-defaulting Initial
Purchasers and the Selling Noteholders as provided in paragraph (a) above, the aggregate
principal amount of such Securities that remains unpurchased exceeds one-eleventh of the
aggregate principal amount of all the Securities, or if the Selling Noteholders shall not
exercise the right described in paragraph (b) above, then this Agreement shall terminate
without liability on the part of the non-defaulting Initial Purchasers. Any termination
of this Agreement pursuant to this Section 9 shall be without liability on the part of the
Company, the Guarantors or the Selling Noteholders, except that the Company and each of
the Guarantors will continue to be liable for the payment of expenses as set forth in
Section 10 hereof and except that the provisions of Section 7 hereof shall not terminate
and shall remain in effect.



     (d) Nothing contained herein shall relieve a defaulting Initial Purchaser of any
liability it may have to the Company, the Guarantors, the Selling Noteholders or any
non-defaulting Initial Purchaser for damages caused by its default.



     10. Payment of Expenses. (a) Whether or not the transactions contemplated
by this Agreement are consummated or this Agreement is terminated, the Company and each of
the Guarantors jointly and severally agree to pay or cause to be paid all costs and
expenses incident to the performance of their respective obligations hereunder, including
without limitation, (i) the costs incident to the authorization, issuance, sale,
preparation and delivery of the Securities and any taxes payable in that connection; (ii)
the costs incident to the preparation and printing of the Preliminary Offering Memorandum,
any other Time of Sale Information, any Issuer Written Communication and the Offering
Memorandum (including any amendment or supplement thereto) and the distribution



32









 







thereof; (iii) the costs of reproducing and distributing each of the Transaction
Documents; (iv) the fees and expenses of the Company’s and the Guarantors’ counsel and
independent accountants; (v) the fees and expenses incurred in connection with the
registration or qualification and determination of eligibility for investment of the
Securities under the laws of such jurisdictions as the Representatives may designate and
the preparation, printing and distribution of a Blue Sky Memorandum (including the related
fees and expenses of counsel for the Initial Purchasers); (vi) any fees charged by rating
agencies for rating the Securities; (vii) the fees and expenses of the Trustee and any
paying agent (including related fees and expenses of any counsel to such parties); (viii)
all expenses and application fees incurred in connection with the application for the
inclusion of the Securities on the PORTAL Market and the approval of the Securities for
book-entry transfer by DTC; and (ix) all expenses incurred by the Company in connection
with any “road show” presentation to potential investors.



     (b) If (i) this Agreement is terminated pursuant to Section 8, (ii) the Selling
Noteholders for any reason fail to tender the Securities for delivery to the Initial
Purchasers or (iii) the Initial Purchasers decline to purchase the Securities for any
reason permitted under this Agreement, the Company and each of the Guarantors jointly and
severally agrees to reimburse the Initial Purchasers for all out-of-pocket costs and
expenses (including the fees and expenses of their counsel) reasonably incurred and
properly documented by the Initial Purchasers in connection with this Agreement and the
offering contemplated hereby.



     11. Persons Entitled to Benefit of Agreement. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective successors and
any controlling persons referred to herein, and the affiliates, officers and directors of
each Initial Purchaser referred to in Section 7 hereof. Nothing in this Agreement is
intended or shall be construed to give any other person any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision contained herein.
No purchaser of Securities from any Initial Purchaser shall be deemed to be a successor
merely by reason of such purchase.



     12. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Company, the Guarantors, the Selling
Noteholders and the Initial Purchasers contained in this Agreement or made by or on behalf
of the Company, the Guarantors, the Selling Noteholders or the Initial Purchasers pursuant
to this Agreement or any certificate delivered pursuant hereto shall survive the delivery
of and payment for the Securities and shall remain in full force and effect, regardless of
any termination of this Agreement or any investigation made by or on behalf of the
Company, the Guarantors, the Selling Noteholders or the Initial Purchasers.




33












 





     13. Certain Defined Terms. For purposes of this Agreement, (a) except where
otherwise expressly provided, the term “affiliate” has the meaning set forth in Rule 405
under the Securities Act; (b) the term “business day” means any day other than a day on
which banks are permitted or required to be closed in New York City; (c) the term
“Exchange Act” means the Securities Exchange Act of 1934, as amended; (d) the term
“subsidiary” has the meaning set forth in Rule 405 under the Securities Act; and (e) the
term “written communication” has the meaning set forth in Rule 405 under the Securities
Act.



     14. Miscellaneous. (a) Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if mailed or
transmitted and confirmed by any standard form of telecommunication. Notices to the
Initial Purchasers shall be given to the Representatives c/o J.P. Morgan Securities Inc.,
270 Park Avenue, New York, New York 10017 (fax: (212) 270-5707); Attention: Laura D.
Yachimski. Notices to the Selling Noteholders shall be given to them c/o J.P. Morgan
Securities Inc., 270 Park Avenue, New York, New York 10017 (fax: (212) 270-1063);
Attention: Benjamin Ben-Attar. Notices to the Company shall be given to 601 Riverside
Avenue Jacksonville, FL 32204, (fax: (904) 357-1036); Attention: General Counsel. Notices
to the Guarantors shall be given to c/o Lender Processing Services, Inc., 601 Riverside
Avenue Jacksonville, FL 32204, (fax: (904) 357-1036); Attention: General Counsel.



     (c) Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.



     (d) Counterparts. This Agreement may be signed in counterparts (which may include
counterparts delivered by any standard form of telecommunication), each of which shall be
an original and all of which together shall constitute one and the same instrument.



     (e) Amendments or Waivers. No amendment or waiver of any provision of this
Agreement, nor any consent or approval to any departure therefrom, shall in any event be
effective unless the same shall be in writing and signed by the parties hereto.



     (f) Headings. The headings herein are included for convenience of reference only and
are not intended to be part of, or to affect the meaning or interpretation of, this
Agreement.



34









 





     If the foregoing is in accordance with your understanding, please indicate your
acceptance of this Agreement by signing in the space provided below.



	 	 	 	 	 
	 	Very truly yours,



LENDER PROCESSING SERVICES, INC.

 	 
	 	By:  	/s/ Brent Bickett
 	 
	 	 	Title: Executive Vice President 	 
	 	 	 	 
	 




35









 





Guarantors:



A.S.A.P. Legal Publication Services, Inc.

Aptitude Solutions, Inc.

Arizona Sales and Posting, Inc.

Chase Vehicle Exchange, Inc.

DOCX, LLC

Espiel, Inc.

Fidelity National Loan Portfolio Services, Inc.

Fidelity National Agency Sales and Posting

Fidelity National Loan Portfolio Solutions, LLC

Financial Systems Integrators, Inc.

FIS Asset Management Solutions, Inc.

FIS Capital Markets, LLC

FIS Data Services, Inc.

FIS Field Services, Inc.

FIS Flood Services, L.P.

FIS Foreclosure Solutions, Inc.

FIS Tax Services, Inc. f/k/a Fidelity National Tax

Services, Inc.

FIS Valuation Solutions, LLC f/k/a Hansen Quality, LLC

FNIS Flood Group, LLC

FNIS Flood of California, LLC

FNIS Intellectual Property Holdings, Inc.

FNIS Services, Inc.

Geotrac, Inc.

Indiana Residential Nominee Services, LLC

Investment Property Exchange Services, Inc.

Lender’s Service Title Agency, Inc.

LPS IP Holding Company, LLC

LPS Management, LLC

LRT Record Services, Inc.

LSI Alabama, LLC

LSI Appraisal, LLC

LSI Maryland, Inc.

LSI Title Agency, Inc.

LSI Title Company

LSI Title Company of Oregon, LLC

LSI Title Insurance Agency of Utah, Inc.

Maine Residential Nominee Services, LLC




36









 





Massachusetts Residential Nominee Services, LLC

McDash Analytics LLC

National Residential Nominee Services Inc.

National Safe Harbor Exchanges

NewInvoice, L.L.C.

OnePointCity, L.L.C.

Residential Lending Services, Inc.

SoftPro, LLC

Strategic Property Investments, Inc.

Vermont Residential Nominee Services, LLC




	 	 	 	 	 
	 	 	 
	 	By:  	     /s/ Todd Johnson
 	 
	 	 	Title: Senior Vice President and Secretary 	 
	 	 	 	 
	 




37









 





	 	 	 	 	 
	 	Selling Noteholders:



J.P. MORGAN SECURITIES INC.

 	 
	 	By:  	/s/ Stathis Karanikolaidis
 	 
	 	 	Title: Vice President 	 
	 	 	 	 
	 
	 	BANC OF AMERICA SECURITIES LLC

 	 
	 	By:  	/s/ John Rote _
 	 
	 	 	Title: Managing Director 	 
	 	 	 	 
	 
	 	WACHOVIA CAPITAL MARKETS, LLC

 	 
	 	By:  	/s/ Rit Amin
 	 
	 	 	Title: Director 	 
	 	 	 	 
	 




38









 





Accepted: June 18, 2008




J.P. MORGAN SECURITIES INC.




For itself and on behalf of the

several Initial Purchasers listed

in Schedule 2 hereto.




By J.P. MORGAN SECURITIES INC.





			
	By:	 	/s/ Stathis Karanikolaidis          

     Authorized Signatory





39









 





Schedule 1




	 	 	 	 	 
	Selling Noteholders	 	Principal Amount	 
	J.P. Morgan Securities Inc.
	 	$	150,000,000	 
	Banc of America Securities LLC
	 	$	150,000,000	 
	Wachovia Capital Markets, LLC
	 	$	75,000,000	 
	 
	 	 	 	 
	 
	 	 	 
	Total
	 	$	375,000,000	 






40









 





Schedule 2




	 	 	 	 	 
	Initial Purchaser	 	Principal Amount	 
	J.P. Morgan Securities Inc.
	 	$	146,250,000	 
	Banc of America Securities LLC
	 	$	146,250,000	 
	Wachovia Capital Markets, LLC
	 	$	75,000,000	 
	ING Financial Markets LLC
	 	$	3,750,000	 
	Wells Fargo Securities, LLC
	 	$	3,750,000	 
	 
	 	 	 	 
	 
	 	 	 
	Total
	 	$	375,000,000	 






41









 





Schedule 3




Guarantors




A.S.A.P. Legal Publication Services, Inc.

Aptitude Solutions, Inc.

Arizona Sales and Posting, Inc.

Chase Vehicle Exchange, Inc.

DOCX, LLC

Espiel, Inc.

Fidelity National Loan Portfolio Services, Inc.

Fidelity National Agency Sales and Posting

Fidelity National Loan Portfolio Solutions, LLC

Financial Systems Integrators, Inc.

FIS Asset Management Solutions, Inc.

FIS Capital Markets, LLC

FIS Data Services, Inc.

FIS Field Services, Inc.

FIS Flood Services, L.P.

FIS Foreclosure Solutions, Inc.

FIS Tax Services, Inc. f/k/a Fidelity National Tax Services, Inc.

FIS Valuation Solutions, LLC f/k/a Hansen Quality, LLC

FNIS Flood Group, LLC

FNIS Flood of California, LLC

FNIS Intellectual Property Holdings, Inc.

FNIS Services, Inc.

Geotrac, Inc.

Indiana Residential Nominee Services, LLC

Investment Property Exchange Services, Inc.

Lender’s Service Title Agency, Inc.

LPS IP Holding Company, LLC

LPS Management, LLC

LRT Record Services, Inc.

LSI Alabama, LLC

LSI Appraisal, LLC

LSI Maryland, Inc.

LSI Title Agency, Inc.

LSI Title Company

LSI Title Company of Oregon, LLC

LSI Title Insurance Agency of Utah, Inc.

Maine Residential Nominee Services, LLC




42









 





Massachusetts Residential Nominee Services, LLC

McDash Analytics LLC

National Residential Nominee Services Inc.

National Safe Harbor Exchanges

NewInvoice, L.L.C.

OnePointCity, L.L.C.

Residential Lending Services, Inc.

SoftPro, LLC

Strategic Property Investments, Inc.

Vermont Residential Nominee Services, LLC




43









 





Schedule 4




Spin-Off Agreements



1. Form of Contribution and Distribution Agreement between Lender Processing Services,
Inc. and Fidelity National Information Services, Inc.



2. Form of Tax Disaffiliation Agreement between Lender Processing Services, Inc. and
Fidelity National Information Services, Inc.



3. Form of Employee Matters Agreement



4. Form of Corporate and Transitional Services Agreement between Lender Processing
Services, Inc. and Fidelity National Information Services, Inc.




44









 





Schedule 5




Subsidiaries




A.S.A.P. Legal Publication Services, Inc. (100%)

APTitude Solutions, Inc. (100%)

Arizona Sales and Posting, Inc. (100%)

Chase Vehicle Exchange, Inc. (100%)

DOCX, LLC (100%)

Espiel, Inc. (100%)

Fidelity National Agency Sales and Posting (100%)

Fidelity National Loan Portfolio Services, Inc. (100%)

Fidelity National Loan Portfolio Solutions, LLC (100%)

Financial Systems Integrators, Inc. (100%)

FIS Asset Management Solutions, Inc. (100%)

FIS Capital Markets, LLC (100%)

FIS Data Services, Inc. (100%)

FIS Field Services, Inc. (100%)

FIS Flood Services, LP (100%)

FIS Foreclosure Solutions Inc. (100%)

FIS Tax Services, Inc. (100%)

FIS Valuation Solutions, LLC (100%)

FNIS Flood Group, LLC (100%)

FNIS Flood of California, LLC (100%)

FNIS Intellectual Property Holdings, Inc. (100%)

FNIS Services, Inc. (100%)

FNRES Holdings, Inc. (39%)

     DPN, LLC (39% through the 100% ownership by FNRES Holdings, Inc.)

     Fidelity National Real Estate Solutions, LLC (39% through the 100% ownership by FNRES Holdings, Inc.)

     FNRES Insurance Services, LLC (39% through the 100% ownership by FNRES Holdings, Inc.)

     FNRES License Holdings, Inc. (39% through the 100% ownership by FNRES Holdings, Inc.)

     Go Apply LLC (39% through the 100% ownership by FNRES Holdings, Inc.)

     Go Holdings, Inc. (39% through the 100% ownership by FNRES Holdings, Inc.)

Geotrac, Inc. (100%)

Indiana Residential Nominee Services, LLC (100%)

I-Net Reinsurance, Ltd. (100%)

Investment Property Exchange Services, Inc. (100%)

Lender’s Service Title Agency, Inc. (100%)




45









 





LPS IP Holding Company, LLC (100%)

LPS Management, LLC (100%)

LRT Record Services, Inc. (100%)

LSI Alabama, LLC (100%)

LSI Appraisal, LLC (100%)

LSI Maryland, Inc. (100%)

LSI Title Agency Inc. (100%)

LSI Title Company (100%)

LSI Title Company of Oregon, LLC (100%)

LSI Title Insurance Agency of Utah, Inc. (100%)

Maine Residential Nominee Services, LLC (100%)

Massachusetts Residential Nominee Services, LLC (100%)

McDash Analytics LLC (100%)

National Residential Nominee Services, Inc. (100%)

National Safe Harbor Exchanges (100%)

National Title Insurance of New York, Inc. (100%)

New Invoice, LLC (100%)

One Point City, LLC (100%)

Real EC Data Exchange, LLC (100%)

RealEC Technologies, Inc. (56%)

Real Info, LLC (50%)

Residential Lending Services, Inc. (100%)

Softpro, LLC (100%)

Strategic Property Investments, Inc. (100%)

Vermont Residential Nominee Services, LLC (100%)




46









 





ANNEX A




a. Additional Time of Sale Information



1. Term sheet containing the terms of the securities, substantially in the form of Annex B.




47









 





ANNEX B




Lender Processing Services, Inc.




Pricing Term Sheet




	 	 	 	 	 	 	 
	Issuer:

	 	 	 	Lender Processing Services, Inc.	 	 
	Security Description:

	 	 	 	Senior Unsecured Notes	 	 
	Distribution:

	 	 	 	144A/RegS w/ Registration Rights	 	 
	Face:

	 	 	 	$375,000,000 	 	 
	Gross Proceeds:

	 	 	 	$375,000,000 	 	 
	Coupon:

	 	 	 	8.125% 	 	 
	Maturity:

	 	 	 	July 1, 2016	 	 
	Offering Price:

	 	 	 	100.000% 	 	 
	Yield to Maturity:

	 	 	 	8.125% 	 	 
	Spread to Treasury:

	 	 	 	+417 basis points	 	 
	Benchmark:

	 	 	 	UST 5.125% due 5/15/2016	 	 
	Ratings:

	 	 	 	Ba2/BB+	 	 
	Interest Pay Dates:

	 	 	 	July 1 and January 1	 	 
	Beginning:

	 	 	 	January 1, 2009	 	 
	Equity Clawback:

	 	 	 	Up to 35% at 108.125%	 	 
	Until:

	 	 	 	July 1, 2011	 	 
	Optional redemption:

	 	 	 	Makewhole call @ T+50bps prior to July 1, 2011 then:	 	 
	 

	 	 	 	On or after:
	 	Price:
	 	 	 	 	 
	 

	 	 	 	July 1, 2011
	 	106.094% 
	 

	 	 	 	July 1, 2012
	 	104.063% 
	 

	 	 	 	July 1, 2013
	 	102.031% 
	 

	 	 	 	July 1, 2014 and thereafter
	 	100.000% 
	Change of control:

	 	 	 	Put @ 101% of principal plus accrued interest	 	 
	Trade Date:

	 	 	 	June 18, 2008	 	 
	Settlement Date:

	 	(T+10)
	 	July 2, 2008	 	 
	CUSIP:

	 	 	 	144A: 52602EAA0	 	 
	 

	 	 	 	Reg S: U52534AA9	 	 
	ISIN:

	 	 	 	USU52534AA98	 	 
	Denominations:

	 	 	 	2,000x1,000	 	 
	Bookrunners:

	 	 	 	JPMorgan
	 	39.00% 
	 

	 	 	 	Banc of America Securities LLC
	 	39.00% 
	 

	 	 	 	Wachovia
	 	20.00% 
	Co-Managers:

	 	 	 	ING Financial Markets LLC
	 	1.00% 
	 

	 	 	 	Wells Fargo Securities, LLC
	 	1.00% 






48









 





ANNEX C




Restrictions on Offers and Sales Outside the United States




     In connection with offers and sales of Securities outside the United States:



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



     (b) Each Initial Purchaser, severally and not jointly, represents, warrants and
agrees that:




     (i) Such Initial Purchaser has offered and sold the Securities, and will offer
and sell the Securities, (A) as part of their distribution at any time and (B)
otherwise until 40 days after the later of the commencement of the offering of the
Securities and the Closing Date, only in accordance with Regulation S under the
Securities Act (“Regulation S”) or Rule 144A or any other available exemption from
registration under the Securities Act.




     (ii) None of such Initial Purchaser or any of its affiliates or any other
person acting on its or their behalf has engaged or will engage in any directed
selling efforts with respect to the Securities, and all such persons have complied
and will comply with the offering restrictions requirement of Regulation S.




     (iii) At or prior to the confirmation of sale of any Securities sold in
reliance on Regulation S, such Initial Purchaser will have sent to each
distributor, dealer or other person receiving a selling concession, fee or other
remuneration that purchase Securities from it during the distribution compliance
period a confirmation or notice to substantially the following effect:




“The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933, as amended (the “Securities Act”), and may not be
offered or sold within the United States or to, or for the account or
benefit of, U.S. persons (i) as part of their distribution at any time or
(ii) otherwise until 40 days after the later of the commencement of the
offering of the Securities and the date of original issuance of the
Securities, except in accordance with Regulation S or Rule 144A or any other
available exemption from registration under the Securities Act. Terms used above have
the meanings given to them by Regulation S.”



49









 






     (iv) Such Initial Purchaser has not and will not enter into any contractual
arrangement with any distributor with respect to the distribution of the
Securities, except with its affiliates or with the prior written consent of the
Company.


Terms used in paragraph (a) and this paragraph (b) and not otherwise defined in this
Agreement have the meanings given to them by Regulation S.




     (c) Each Initial Purchaser, severally and not jointly, represents, warrants and
agrees that:




     (i) it has only communicated or caused to be communicated and will only
communicate or cause to be communicated any invitation or inducement to engage in
investment activity (within the meaning of Section 21 of the United Kingdom
Financial Services and Markets Act 2000 (the “FSMA”)) received by it in connection
with the issue or sale of any Securities in circumstances in which Section 21(1) of
the FSMA does not apply to the Company or the Guarantors; and




     (ii) it has complied and will comply with all applicable provisions of the
FSMA with respect to anything done by it in relation to the Securities in, from or
otherwise involving the United Kingdom.



     (d) Each Initial Purchaser acknowledges that no action has been or will be taken by
the Company that would permit a public offering of the Securities, or possession or
distribution of any of the Time of Sale Information, the Offering Memorandum, any Issuer
Written Communication or any other offering or publicity material relating to the
Securities, in any country or jurisdiction where action for that purpose is required.



50









 





ANNEX D




[Form of Opinion of Counsel for the Company and the Guarantors]




51









 





ANNEX E




[Form of Opinion of General Counsel for the Company and the Guarantors]





52