EXHIBIT 10.1


 


OMX TIMBER FINANCE INVESTMENTS I, LLC

OMX TIMBER FINANCE INVESTMENTS II, LLC


 


$735,000,000 (approximate) Class A-1 Notes due 2019

Secured by $817,500,000 Installment Notes Guaranteed by Wachovia Corporation


 


$735,000,000 (approximate) Class A-2 Notes due 2019

Secured by $817,500,000 Installment Note Guaranteed by Lehman Brothers Holdings
Inc.


 


 


PURCHASE AGREEMENT


 


December
13, 2004


 


 


Wachovia
Capital Markets, LLC (“Wachovia Capital Markets”)


c/o
Wachovia Capital Markets, LLC

One Wachovia Center, Mail Code:  NC0602

301 South College Street

Charlotte, North Carolina 28288–0610


 


Lehman Brothers Inc. (“Lehman Brothers Inc.”,

and together with Wachovia Capital Markets, the “Initial Purchasers”)


c/o
Lehman Brothers Inc.

399 Park Avenue

New York, NY 10022


 


 


Ladies
and Gentlemen:


 


Section 1.                                          Authorization
of Offered Notes.


 


OMX Timber Finance
Investments I, LLC (the “Class A-1 Issuer”) has duly authorized the sale
of the Class A-1 Notes due 2019 (the “Class A-1 Notes”), and OMX Timber
Finance Investments II, LLC (the “Class A-2 Issuer”, and together with
the Class A-1 Issuer, the “Issuers”) has duly authorized the sale of the
Class A-2 Notes due 2019 (the “Class A-2 Notes” and together with the
Class A-1 Notes, the “Offered Notes”). 
Each Issuer was formed pursuant to a Limited Liability Company
Agreement, effective as of November 24, 2004 (each, a “Limited Liability
Company Agreement”) between the applicable Issuer, its respective sole


 





















 


member and its respective managers.  Each of the Issuers is a wholly-owned
indirect subsidiary of OfficeMax Incorporated, a Delaware corporation (“OfficeMax”).


 


The Class A-1 Notes will be
issued by the Class A-1 Issuer in an aggregate principal amount of
approximately $735,000,000, and the Class A-2 Notes will be issued by the Class
A-2 Issuer in an aggregate initial principal amount of approximately
$735,000,000.  The Class A-1 Notes will
be secured by a pledge of certain of the assets of the Class A-1 Issuer, and
the Class A-2 Notes will be secured by a pledge of certain of the assets of the
Class A-2 Issuer.  The Class A-1 Notes
will be issued pursuant to an Indenture, dated as of the date of this Agreement
(the “Class A-1 Indenture”), between the Class A-1 Issuer and Wells
Fargo Bank Northwest, N.A., as the Indenture Trustee (the “Indenture Trustee”).  The Class A-2 Notes will be issued pursuant
to an Indenture, dated as of the date of this Agreement (the “Class A-2
Indenture”, and together with the Class A-1 Indenture, the “Indentures”),
between the Class A-2 Issuer and the Indenture Trustee.


 


The
assets of the Class A-1 Issuer include (i) the Installment Notes (as defined in
the Class A-1 Indenture), (ii) the Guaranty of Wachovia Corporation (“Wachovia”),
and (iii) all monies on deposit in the Class A-1 Notes Account.  The assets of the Class A-2 Issuer include
(i) the Installment Note (as defined in the Class A-2 Indenture),
(ii) the Guaranty of Lehman Brothers Holdings Inc. (“Lehman Brothers”),
and (iii) all monies on deposit in the Class A-2 Notes Account.  Pursuant to the Class A-1 Indenture, as
security for the indebtedness represented by the Class A-1 Notes, the Class A-1
Issuer will pledge and grant to the Indenture Trustee a security interest in
the applicable Indenture Collateral. 
Pursuant to the Class A-2 Indenture, as security for the indebtedness
represented by the Class A-2 Notes, the Class A-2 Issuer will pledge and grant
to the Indenture Trustee a security interest in the applicable Indenture
Collateral.  This Purchase Agreement
(this “Agreement”), the Limited Liability Company Agreements, the
Indentures and any other document defined in an Indenture as a “Transaction
Document” are referred to collectively as the “Transaction Documents.”


 


Capitalized
terms used herein but not otherwise defined shall have the meanings set forth
in the Indentures.


 


The
Offered Notes are to be offered without being registered under the Securities
Act of 1933, as amended (the “Securities Act”) to U.S. Persons who are
either (i) both “qualified institutional buyers” in compliance with the
exemption from registration provided by Rule 144A under the Securities Act (“QIBs”)
and “qualified purchasers” (“Qualified Purchasers”) for purposes of
Section 3(c)(7) under the Investment Company Act of 1940, as amended (the “1940
Act”), or (ii) to institutional “accredited investors” (as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act) (“Institutional
Accredited Investors”) and Qualified Purchasers and that deliver a letter
in the form of Exhibit C-1 to the Indenture. 
For purposes of this Agreement, “U.S. Person” means a Person who
is both (i) a “U.S. person” as defined in Regulation S under the
Securities Act and (ii) a “United States person” under Section 7701(a)(30)
of the Internal Revenue Code of 1986, as amended.


 


In
connection with the sale of the Offered Notes, the Issuers have prepared a
preliminary confidential offering memorandum dated December 8, 2004 (including
any exhibits thereto and all information incorporated therein by reference, the
“Preliminary Memorandum”) and a final


 


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confidential
offering memorandum dated the date hereof (including any exhibits, amendments
or supplements thereto and all information incorporated therein by reference,
the “Final  Memorandum”, and
each of the Preliminary Memorandum and the Final Memorandum, a “Memorandum”)
including a description of the terms of the Offered Notes, the terms of the
offering, and a description of each Issuer, Wachovia and Lehman Brothers.


 


It
is understood and agreed that nothing in this Agreement shall prevent the
Initial Purchasers from entering into any agency agreements, underwriting
agreements or other similar agreements governing the offer and sale of
securities with any issuer or issuers of securities, and nothing contained
herein shall be construed in any way as precluding or restricting the Initial
Purchasers’ right to sell or offer for sale any securities issued by any
person, including securities similar to, or competing with, the Offered Notes.


 


Until
the Scheduled Maturity Date (which is October 31, 2019), the Class A-1 Notes
shall bear interest at a per annum
rate equal to 5.420% per annum,
and the Class A-2 Notes shall bear interest at a per annum rate equal to 5.540% per annum.  If the
maturity of either Class of Offered Notes is extended to the Extended Maturity
Date pursuant to Section 4.04 of the applicable Indenture, then the per annum rate of interest for such Class shall increase in
accordance with Section 4.04(d) of the applicable Indenture.


 


The
Issuers and OfficeMax hereby agree with the Initial Purchasers, as follows:


 


Section 2.                                          Purchase
and Sale of Offered Notes.


 


Subject
to the terms and conditions and in reliance upon the representations and
warranties set forth herein, (i) the Class A-1 Issuer agrees to sell to
Wachovia Capital Markets all of the Class A-1 Notes, and Wachovia Capital
Markets agrees to purchase all of the Class A-1 Notes at a purchase price equal
to 100% of the principal amount of such Class A-1 Notes; and (ii) the Class
A-2 Issuer agrees to sell to Lehman Brothers Inc. all of the Class A-2 Notes,
and Lehman Brothers Inc. agrees to purchase all of the Class A-2 Notes at a
purchase price equal to 100% of the principal amount of such Class A-2 Notes.  It is understood and agreed that each Initial
Purchaser may retain Offered Notes which it purchases, purchase such Offered
Notes for its own account or sell such Offered Notes to its affiliates or to
the other Initial Purchaser.


 


(a)                                  In
addition, whether or not the transactions contemplated hereby shall be
consummated, each Issuer agrees to pay the costs and expenses incident to the
performance by such Issuer of its obligations hereunder and under the documents
to be executed and delivered in connection with the offering, issuance, sale
and delivery of the applicable Class of Offered Notes (the “Documents”),
including, without limitation or duplication, (i) the reasonable fees and
disbursements of counsel to such Issuer; (ii) the fees and expenses of any
trustees or custodian due to such trustees’ or custodian’s initial expenses
incurred in connection with the issuance of the applicable Class of the Offered
Notes and its counsel; (iii) the customary fees and expenses of any bank
establishing and maintaining accounts on behalf of the holders of the
applicable Class of Offered Notes or in connection with the transaction;
(iv) the reasonable fees and expenses of the accountants for such Issuer,
including the fees for the “comfort letters” or “agreed–upon procedures letters”
required by an Initial Purchaser, any rating agency or any purchaser in
connection with the offering, sale, issuance and delivery of such Class of
Offered


 


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Notes; (v) all expenses incurred in connection with the preparation and
distribution of one or more preliminary and the final Memorandum and other
disclosure materials prepared and distributed and all expenses incurred in
connection with the preparation and distribution of the Transaction Documents;
(vi) the fees charged by any securities rating agency for rating the
Offered Notes; (vii) the fees for any securities identification service for any
CUSIP or similar identification number required by the purchasers or requested
by the Initial Purchasers; (viii) the reasonable fees and disbursements of
counsel to the Initial Purchasers; (ix) all expenses in connection with the
qualification of such Class of Offered Notes for offering and sale under state
securities laws, including the fees and disbursements of counsel and, if
requested by the Initial Purchasers, the cost of the preparation and
reproduction of any “blue sky” or legal investment memoranda; (x) any federal,
state or local taxes, registration or filing fees (including Uniform Commercial
Code financing statements) or other similar payments to any federal, state or
local governmental authority in connection with the offering, sale, issuance
and delivery of such Class of Offered Notes; and (xi) the reasonable fees
and expenses of Dechert LLP, Richards Leyton & Finger LLP, or any other
special counsel retained by the Issuers to provide advice, opinions or
assistance in connection with the offering, issuance, sale and delivery of such
Class of Offered Notes.


 


Section 3.                                          Delivery.


 


Delivery
of the Offered Notes shall be made in the form of one or more global
certificates delivered to The Depository Trust Company, except that any Offered
Note to be sold by an Initial Purchaser to a U.S. Person who is both an
Institutional Accredited Investor and a Qualified Purchaser, but that is not a
Qualified Institutional Buyer shall be delivered in fully registered,
certificated form in the minimum denominations set forth in the Memorandum at
the offices of Dechert LLP at 10:00 a.m. Charlotte, North Carolina time,
on December 21, 2004, or such other place, time or date as may be mutually
agreed upon by the Initial Purchasers and the Issuers (the “Closing Date”).  Subject to the foregoing, the Offered Notes
will be registered in such names and such denominations as the Initial Purchasers
shall specify in writing to the Issuers and the Indenture Trustee.


 


Section 4.                                          Representations
and Warranties.


 


(a)                             Each
Issuer and OfficeMax represents and warrants to the Initial Purchasers, as of
the date hereof and as of the Closing Date, that:


 


(i)                                     The
Preliminary Memorandum (except to the extent set forth in the Final Memorandum)
and the Final Memorandum and any amendments thereof or supplement thereto,
delivered by or on behalf of each Issuer to prospective purchasers of the
Offered Notes (collectively, such information and documents, the “Additional
Offering Documents”), did not or will not, each as of their respective
dates or date on which such statement was made and as of the Closing Date,
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements in each, in light of the
circumstances under which they were made, not misleading, except that
representations and warranties with respect to the Preliminary Memorandum and
the Final Memorandum set forth in this subsection 4(a)(i) do not apply
to any statements or omissions in either Memorandum under the captions “Market
Stabilization”, “Available


 


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Information About Wachovia”, “Available Information About Lehman
Brothers” and “Plan of Distribution”.


 


(ii)                                  Each
Issuer is a Delaware limited liability company, duly organized and validly
existing under the laws of the state of Delaware, has all limited liability
company power and authority necessary to own or hold its properties and conduct
its business in which it is engaged as described in each Memorandum and has all
licenses necessary to carry on its business as it is now being conducted and is
licensed and qualified in each jurisdiction in which the conduct of its
business (including without limitation the originating and acquiring of its
assets and performing its obligations hereunder and under the Transaction
Documents) requires such licensing or qualification and in which the failure so
to qualify would have a material adverse effect on the business, properties,
assets, or condition (financial or otherwise) of such Issuer.


 


(iii)                               This
Agreement has been duly authorized, executed and delivered by each Issuer, and,
assuming due authorization, execution and delivery thereof by the other parties
hereto, constitutes a valid and legally binding obligation of such Issuer
enforceable against such Issuer in accordance with its terms, subject, as to
enforcement only, to the effect of bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting creditors’ rights
generally or the application of equitable principles in any proceeding, whether
at law or in equity.


 


(iv)                              Each
Transaction Document to which each Issuer is a party (other than the Offered
Notes) has been duly authorized, executed and delivered by such Issuer and,
assuming due authorization, execution and delivery thereof by the other parties
thereto, constitute valid and binding agreements of such Issuer, enforceable
against such Issuer in accordance with their respective terms, subject, as to
enforcement only, to the effect of bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting creditors’ rights
generally or the application of equitable principles in any proceeding, whether
at law or in equity.


 


(v)                                 Each
Issuer’s Offered Notes have been duly authorized, and when executed and
authenticated in accordance with the Indenture and delivered to and paid for by
the Initial Purchasers in accordance with this Agreement, such Offered Notes
will constitute valid and binding obligations of such Issuer, enforceable
against such Issuer in accordance with their terms, subject, as to enforcement
only, to the effect of bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditors’ rights generally or the
application of equitable principles in any proceeding, whether at law or in
equity, and will be entitled to the benefits of the applicable Indenture.


 


(vi)                              Other
than as set forth in or contemplated by each Memorandum, there are no legal or
governmental proceedings pending to which an Issuer is a party or of which any
property or assets of each Issuer are the subject of which, if determined
adversely to such Issuer, would individually or in the aggregate have a
material adverse effect on the financial position, members’ equity or results
of operations of such Issuer or on the performance by such Issuer of its
obligations hereunder or under the Transaction


 


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Documents; and no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.


 


(vii)                           The
execution, delivery and performance of this Agreement and the other Transaction
Documents to which it is a party and the consummation by each Issuer of the
transactions contemplated herein and therein and in all documents relating to
its Offered Notes will not result in any breach or violation of, or constitute
a default under, any agreement or instrument to which such Issuer is a party or
to which any of its properties or assets are subject, except for such of the
foregoing as to which relevant waivers or amendments have been obtained and are
in full force and effect, nor will any such action result in a violation of the
certificate of formation or limited liability company agreement of such Issuer
or any law or any order, decree, rule or regulation of any court or
governmental agency having jurisdiction over such Issuer or its properties.


 


(viii)                        Neither
such Issuer nor any of its assets after giving effect to the transactions
contemplated by the Transaction Documents will be required to be registered as
an “investment company” under the 1940 Act.


 


(ix)                                Assuming
(i) the Initial Purchasers’ representations are true and accurate and
(ii) the accuracy of the representations and warranties deemed to be made
pursuant to the Memorandum by each of the purchasers to whom the Initial
Purchasers initially resell the Offered Notes, it is not necessary in
connection with the offer, sale and delivery of such Issuer’s Offered Notes in
the manner contemplated by this Agreement and each Memorandum to register the
initial sales of such Issuer’s Offered Notes under the Securities Act or to
qualify the applicable Indenture under the Trust Indenture Act of 1939, as
amended.


 


(x)                                   Such
Issuer’s Offered Notes satisfy the requirements set forth in Rule 144A(d)(3)
under the Securities Act.


 


(xi)                                At
the time of execution and delivery of the Indentures, each Issuer will own its
respective assets free and clear of all liens, encumbrances, adverse claims or
security interests (“Liens”), and such Issuer shall have the power and
authority to pledge the assets to the Indenture Trustee pursuant to the
applicable Indenture.


 


(xii)                             Upon
the execution and delivery of the Transaction Documents, payment by the Initial
Purchasers for the Offered Notes and delivery to the Initial Purchasers of the
Offered Notes, the Initial Purchasers will acquire title to the Offered Notes
free of Liens except such Liens as may be created or granted by the Initial
Purchasers.


 


(xiii)                          Except
as otherwise provided in clause (ix) above, no consent, authorization or order
of, or filing or registration with, any court or governmental agency is
required for the issuance and sale of such Issuer’s Offered Notes or the
execution, delivery and performance by such Issuer of this Agreement or the
other Transaction Documents to which it is a party, except UCC-1 financing
statements and such consents, approvals, authorizations, registrations or
qualifications as have been obtained or as may


 


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be required under state securities or “blue sky” laws in connection
with the sale and delivery of such Issuer’s Offered Notes in the manner
contemplated herein.


 


(xiv)                         The
description of the assets of such Issuer, individually and in the aggregate,
contained in the Final Memorandum is accurate in all material respects.


 


(xv)                            Each
of the representations and warranties of such Issuer set forth in each of the
other Transaction Documents is true and correct in all material respects.


 


(xvi)                         Any
taxes, fees and other governmental charges payable in connection with the
execution, delivery and issuance of this Agreement and the other Transaction
Documents and such Issuer’s Offered Notes have been or will be paid by such
Issuer prior to the Closing Date.


 


(xvii)                      Neither
such Issuer nor any affiliate (as defined in Rule 501(b) of Regulation D under
the Securities Act (“Regulation D”)) of such Issuer nor anyone acting on
their behalf has, directly or indirectly (except to or through the Initial
Purchasers), sold or offered, or attempted to offer or sell, or solicited any
offers to buy, or otherwise approached or negotiated in respect of, any of such
Issuer’s Offered Notes and neither such Issuer nor any of its affiliates will
do any of the foregoing.  As used herein,
the terms “offer” and “sale” have the meanings specified in Section 2(3) of the
Securities Act.


 


(xviii)                   Neither
such Issuer nor any affiliate (as defined in Rule 501(b) of Regulation D) of
such Issuer 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) which is or will be integrated with the sale of
such Issuer’s Offered Notes in a manner that would require the registration
under the Securities Act of the offerings contemplated by each Memorandum or
engaged in any form of general solicitation or general advertising in
connection with the offerings of such Issuer’s Offered Notes.


 


(xix)                           Each
Indenture creates a valid, continuing and enforceable security interest (as
defined in the applicable UCC) in the applicable Indenture Collateral in favor
of the Indenture Trustee, which security interest is prior to all other Liens
(except for Permitted Liens), and is enforceable as such against creditors of
and purchasers from the applicable Issuer.


 


(xx)                              Each
Installment Note constitutes an “instrument” and each Guaranty constitutes a “supporting
obligation” within the meaning of the applicable UCC.


 


(xxi)                           Each
Issuer has caused or will have caused, within ten (10) days, the filing of all
appropriate financing statements in the proper filing office in the appropriate
jurisdictions under Requirements of Law in order to perfect the security
interest in such Indenture Collateral granted to the Indenture Trustee under the
applicable Indenture.


 


(xxii)                        Other
than the security interest granted by each Issuer pursuant to its applicable
Indenture, no Issuer has pledged, assigned, sold, granted a security interest
in


 


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or otherwise conveyed any of its applicable Indenture Collateral.  No Issuer has authorized the filing of and is
not aware of any financing statements against the Issuer that include a
description of collateral covering its applicable Indenture Collateral other
than any financing statement relating to the security interest granted by such
Issuer under such Indenture.  No Issuer
is aware of the filing of any judgment or tax Lien filings against such Issuer.


 


(xxiii)                     All
original executed copies of each underlying document that constitute or
evidence Indenture Collateral have been delivered to and, to the knowledge of
the applicable Issuer, are in the possession of the Indenture Trustee;


 


(xxiv)                    Each
Issuer has received a written acknowledgment from the Indenture Trustee that
the Indenture Trustee is holding the underlying documents that constitute or
evidence the applicable Indenture Collateral solely on behalf of and for the
benefit of the Holders of the applicable Class of Offered Notes.


 


(xxv)                       None
of the underlying documents that constitute or evidence the Indenture
Collateral has any marks or notations indicating that they have been pledged,
assigned or otherwise conveyed to any Person other than the applicable Issuer,
its Member and the Indenture Trustee.


 


(b)                                 OfficeMax
represents to the Initial Purchasers, as of the date hereof and as of the Closing
Date, that


 


(i)                                     OfficeMax
is a corporation validly existing under the laws of the Delaware and possesses
all requisite authority, power, licenses, permits and franchises to carry on
its business as currently conducted by it and to execute, deliver and comply
with its obligations under the terms of this Agreement.


 


(ii)                                  This
Agreement has been duly and validly authorized, executed and delivered by
OfficeMax and, assuming due authorization, execution and delivery hereof by the
Issuers, Wachovia Capital Markets and Lehman Brothers Inc., constitutes a
legal, valid and binding obligation of OfficeMax, enforceable against OfficeMax
in accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors’ rights in general, and by general equity principles
(regardless of whether such enforcement is considered in a proceeding in equity
or at law), and by public policy considerations underlying the securities laws,
to the extent that such public policy considerations limit the enforceability
of the provisions of this Agreement which purport to provide indemnification
from liabilities under applicable securities laws.


 


(iii)                               The
execution and delivery of this Agreement by OfficeMax and OfficeMax’s
performance and compliance with the terms of this Agreement will not
(A) violate OfficeMax’s articles of incorporation or by-laws, (B) violate
any law or regulation or any administrative decree or order to which it is
subject or (C) constitute a default (or an event which, with notice or lapse of
time, or both, would constitute a


 


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default) under, or result in the breach of, any contract, agreement or
other instrument to which OfficeMax is a party or by which OfficeMax is bound.


 


(iv)                              OfficeMax
is not in default with respect to any order or decree of any court or any
order, regulation or demand of any federal, state, municipal or other
governmental agency or body, which default might have consequences that would
materially and adversely affect the condition (financial or other) or
operations of OfficeMax or its properties or have consequences that would
materially and adversely affect its performance hereunder.


 


(v)                                 OfficeMax
is not a party to or bound by any agreement or instrument or subject to any
articles of association, bylaws or any other corporate restriction or any
judgment, order, writ, injunction, decree, law or regulation that would
materially and adversely affect the ability of OfficeMax to perform its
obligations under this Agreement or that requires the consent of any third
person to the execution of this Agreement or the performance by OfficeMax of
its obligations under this Agreement (except to the extent such consent has
been obtained).


 


(vi)                              No
consent, approval, authorization or order of any court or governmental agency
or body is required for the execution, delivery and performance by OfficeMax of
or compliance by OfficeMax with this Agreement or the consummation of the
transactions contemplated by this Agreement except as have previously been
obtained.


 


(vii)                           No
litigation is pending or, to the best of OfficeMax’s knowledge, threatened
against OfficeMax that would assert the invalidity of this Agreement, prohibit
its entering into this Agreement or materially and adversely affect the
performance by OfficeMax of its obligations under this Agreement.


 


(viii)                        Each
representation and warranty of the Issuers set forth in Section 4(a) hereof is
true and correct as of the date of this Agreement or as of the date specified
in such representation and warranty.


 


Section 5.                                          Sale
of Offered Notes to the Initial Purchasers.


 


The
sale of the Offered Notes to the Initial Purchasers will be made without
registration of the Offered Notes under the Securities Act, in reliance upon
the exemption therefrom provided by Section 4(2) of the Securities Act.


 


(a)                                  The
Issuers and the Initial Purchasers hereby agree that the Offered Notes will be
offered and sold only in transactions exempt from registration under the
Securities Act.  The Issuers and the
Initial Purchasers will each reasonably believe at the time of any sale of the
Offered Notes by the Issuers through the Initial Purchasers (i) that each
purchaser of the Offered Notes is an institutional investor that is (1) a QIB
who is a Qualified Purchaser in transactions meeting the requirements of Rule
144A, or (2) an Institutional Accredited Investor who is a Qualified Purchaser
who purchases for its own account or for any discretionary account for which it
is acquiring the Offered Notes and provides the applicable Initial Purchaser
with a written certification in substantially the form of Exhibit C-2 to the
Indenture, and (ii) that the offering of the Offered Notes will be made in
a manner it reasonably believes will enable the


 


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offer and sale of the Offered Notes to be exempt from registration
under state securities or “blue sky” laws; and each such party understands that
no action has been taken to permit a public offering in any jurisdiction where
action would be required for such purpose. 
The Issuers and the Initial Purchasers each further agree not to (i)
engage in any activity that would constitute a public offering of the Offered
Notes within the meaning of Section 4(2) of the Securities Act or
(ii) offer or sell the Offered Notes by any form of general solicitation
or general advertising (as those terms are used in Regulation D), including the
methods described in Rule 502(c) of Regulation D, in connection with any offer
or sale of the Offered Notes.


 


(b)                                 Each
Initial Purchaser hereby represents and warrants to and agrees with the
Issuers, that (i) it is a QIB and a Qualified Purchaser, (ii) it will offer the
Offered Notes only (A) to persons who it reasonably believes are both QIBs and
Qualified Purchasers in transactions meeting the requirements of Rule 144A or
(B) to institutional investors who it reasonably believes are Institutional
Accredited Investors who are Qualified Purchasers and have delivered a written
certification substantially in the form of Exhibit C-2 to the applicable
Indenture.  Each Initial Purchaser
further agrees that it will (i) deliver to each purchaser of the Offered
Notes, at or prior to the confirmation of sale, a copy of the Final Memorandum,
as then amended or supplemented, which Final Memorandum will include a Notice
to Investors in the form attached hereto as Exhibit A, and
(ii) prior to any sale of the Offered Notes to an Institutional Accredited
Investor that it does not reasonably believe is a QIB, it will receive from
such Institutional Accredited Investor a written certification in substantially
the form attached as Exhibit C-1 to the Indenture.


 


(c)                                  Each
Initial Purchaser hereby represents that it is duly authorized and possesses
the requisite corporate power to enter into this Agreement.


 


(d)                                 Each
Initial Purchaser hereby represents there is no action, suit or proceeding
pending against or, to the knowledge of such Initial Purchaser, threatened
against or affecting, such Initial Purchaser before any court or arbitrator or
any government body, agency, or official which could materially adversely
affect the ability of such Initial Purchaser to perform its obligations under
this Agreement.


 


Section 6.                                          Certain
Agreements of the Issuers.


 


Each
Issuer covenants and agrees with the Initial Purchasers as follows:


 


(a)                                  If,
at any time prior to the 90th day following the Closing Date, any event
involving such Issuer shall occur as a result of which the Final Memorandum (as
then amended or supplemented) would include an untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, such Issuer will immediately notify the Initial Purchasers and
prepare and furnish to the Initial Purchasers an amendment or supplement to the
Final Memorandum that will correct such statement or omission.  Such Issuer will not at any time amend or
supplement the Final Memorandum (i) prior to having furnished the Initial
Purchasers with a copy of the proposed form of the amendment or supplement and
giving the Initial Purchasers a reasonable opportunity to review the same or
(ii) in a manner to which the Initial Purchasers or their counsel shall object.


 


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(b)                                 During
the period referred to in Section 6(a), such Issuer will furnish to the
Initial Purchasers, without charge, copies of the Final Memorandum (including
all exhibits and documents incorporated by reference therein), the Transaction
Documents, and all amendments or supplements to such documents, in each case as
soon as reasonably available and in such quantities as the Initial Purchasers
may from time to time reasonably request.


 


(c)                                  At
all times during the course of the private placement contemplated hereby and
prior to the Closing Date, (i) such Issuer will make available to each offeree
the Additional Offering Documents and information concerning any other relevant
matters, as they or any of their affiliates possess or can acquire without
unreasonable effort or expense, as determined in good faith by them, (ii) such
Issuer will provide each offeree the opportunity to ask questions of, and
receive answers from, them concerning the terms and conditions of the offering
and to obtain any additional information, to the extent they or any of their
affiliates possess such information or can acquire it without unreasonable
effort or expense such information is not of a commercially sensitive nature,
and to the extent the provision thereof is not prohibited by applicable law (as
determined in good faith by them), necessary to verify the accuracy of the
information furnished to the offeree, (iii) such Issuer will not publish
or disseminate any material in connection with the offering of such Issuer’s
Offered Notes except as contemplated herein or as consented to by the Initial
Purchasers, (iv) such Issuer will advise the Initial Purchasers promptly of the
receipt by such Issuer of any communication from the SEC or any state
securities authority concerning the offering or sale of such Issuer’s Offered
Notes, (v) such Issuer will advise the Initial Purchasers promptly of the
commencement of any lawsuit or proceeding to which such Issuer is a party
relating to the offering or sale of such Issuer’s Offered Notes, and
(vi) such Issuer will advise the Initial Purchasers of the suspension of
the qualification of such Issuer’s Offered Notes for offering or sale in any
jurisdiction, or the initiation or threat of any procedure for any such
purpose.


 


(d)                                 Such
Issuer will furnish, upon the written request of any Holder or of any owner of
a beneficial interest therein, such information as is specified in paragraph
(d)(4) of Rule 144A under the Securities Act (i) to such Holder or beneficial
owner, (ii) to a prospective purchaser of such Offered Note or interest therein
who is a QIB designated by such Holder or beneficial owner, or (iii) to the
Indenture Trustee for deliver to such Holder, beneficial owner or prospective
purchaser, in order to permit compliance by such Holder or beneficial owner
with Rule 144A in connection with the resale of such Offered Note or beneficial
interest therein by such holder or beneficial owner in reliance on Rule 144A
unless, at the time of such request, (x) the Issuer is subject to the
reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of
1934 or (y) none of the Offered Notes remain outstanding or (z) the Offered
Notes are no longer “restricted securities” within the meaning of Rule
144(a)(3) under the Securities Act.


 


(e)                                  Except
as otherwise provided in the Indenture, each of such Issuer’s Offered Notes
will contain a legend to the effect set forth in the form of Notice to Investors
attached as Exhibit A hereto.


 


11





















 


Section 7.                                          Conditions
of the Initial Purchasers’ Obligations.


 


The obligations of each
Initial Purchaser to purchase Offered Notes on the Closing Date will be subject
to the accuracy, in all material respects, of the representations and
warranties of the applicable Issuer herein and of OfficeMax herein, to the
performance, in all material respects, by such Issuer of its obligations
hereunder and to the following additional conditions precedent:


 


(a)                                  Such
Issuer’s Offered Notes shall have been duly authorized, executed,
authenticated, delivered and issued, the Transaction Documents shall have been
duly authorized, executed and delivered by the respective parties thereto and
shall be in full force and effect, and the Indenture Collateral of such Issuer
shall have been pledged to the Indenture Trustee pursuant to the terms of the
applicable Indenture.


 


(b)                                 The
Initial Purchasers shall have received a certificate, dated as of the Closing
Date, of a Regular Manager of each Issuer to the effect that such Regular
Manager has carefully examined this Agreement, each Memorandum and the
Transaction Documents to which such Issuer is a party and that, to the best of
such officer’s knowledge (i) since the date information is given in each
Memorandum, there has not been any material adverse change in the condition,
financial or otherwise, or in the earnings, results of operations, business
affairs or business prospects of such Issuer, whether or not arising in the
ordinary course of business, or the ability of such Issuer to perform its
obligations hereunder or under the Transaction Documents except as contemplated
by each Memorandum, (ii) the representations and warranties of such Issuer set
forth herein are true and correct in all material respects as of the Closing
Date, as though such representations and warranties had been made on and as of
such date, (iii) such Issuer has complied in all material respects with
all agreements and satisfied all conditions on its part to be performed or
satisfied hereunder and under the Transaction Documents to which it is a party,
at or prior to the Closing Date, (iv) the representations and warranties
of such Issuer in the Transaction Documents to which it is a party are true and
correct in all material respects, as of the Closing Date, as though such
representations and warranties had been made on and as of such date, and (v)
nothing has come to the attention of such officer that would lead such officer
to believe that the Final Memorandum, and any amendment thereof or supplement
thereto, as of its date and as of the Closing Date, or any Additional Offering
Document contains an untrue statement of a material fact or omits to state any
material fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.


 


(c)                                  The
Class A-1 Notes shall each have been rated no less than “Aa3” by Moody’s and “A”
by S&P, the Class A-2 Notes shall each have been rated no less than “A1” by
Moody’s and “A” by S&P, such ratings shall not have been rescinded, and no
public announcement shall have been made by any rating agency that its rating
of such Class of Offered Notes have been placed under review.


 


(d)                                 The
Initial Purchasers shall have received an opinion, dated the Closing Date, of
in-house counsel to the Indenture Trustee, in form and substance satisfactory
to the Initial Purchasers.


 


(e)                                  The
Initial Purchasers shall have received legal opinions, in form and substance
satisfactory to the Initial Purchasers, (i) of King & Spalding LLP, counsel
to the Issuers and


 


12





















 


OfficeMax, with respect to the certain federal tax, ERISA, securities
law matters and with respect to the Final Memorandum (excluding the sections
entitled “Available Information About Wachovia” and “Available Information
About Lehman Brothers”), (ii) from Dechert LLP, counsel to the Initial
Purchasers, with respect to corporate, securities law, investment company
matters and with respect to the Final Memorandum (excluding the sections
entitled “Available Information About Wachovia” and “Available Information
About Lehman Brothers”), (iii) of Dechert LLP with respect to certain “true
contribution” and “non–consolidation” issues in form and substance satisfactory
to the Initial Purchasers; and (iv) of Richards Leyton & Finger LLP
with respect to certain matters under Delaware law.


 


(f)                                    The
Initial Purchasers shall have received an opinion of Dechert LLP with respect
to certain “perfection issues” in form and substance satisfactory to the
Initial Purchasers.


 


(g)                                 The
Initial Purchasers shall have received from the Indenture Trustee a certificate
signed by one or more duly authorized officers of the Indenture Trustee, dated
the Closing Date, in customary form.


 


(h)                                 Each
Issuer and OfficeMax shall have furnished to the Initial Purchasers and its
counsel such further information, certificates and documents as the Initial
Purchasers and its counsel may reasonably have requested, and all proceedings
in connection with the transactions contemplated by this Agreement and all
documents incident hereto shall be in all material respects reasonably
satisfactory in form and substance to the Initial Purchasers and its counsel.


 


(i)                                     Each
Issuer and OfficeMax shall have furnished to the Initial Purchasers such
further information, certificates, opinions or documents reasonably requested
by the Initial Purchasers, including any material delivered to the Rating
Agencies.


 


(j)                                     All
documents incident hereto and to the Transaction Documents shall be reasonably
satisfactory in form and substance to the Initial Purchasers and its counsel,
and the Initial Purchasers and its counsel shall have received such
information, certificates and documents as they may reasonably request.


 


If any of the conditions
specified in this Section 7 shall not have been fulfilled in all
material respects or waived by the Initial Purchasers when and as provided in
this Agreement, or if any of the opinions and certificates mentioned above
shall not be in all material respects reasonably satisfactory in form and
substance to the Initial Purchasers, this Agreement and all of the Initial
Purchasers’ obligations hereunder may be canceled by the Initial Purchasers at
or prior to delivery of and payment for the Offered Notes.  Notice of such cancellation shall be given to
the Issuers in writing, or by telephone or facsimile confirmed in writing.


 


Section 8.                                          Indemnification
and Contribution.


 


(a)                                  Each
Issuer and OfficeMax, jointly and severally, agrees to indemnify and hold
harmless each Initial Purchaser, their officers, directors, employees, agents
and each person, if any, who controls an Initial Purchaser within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act
and affiliates of an Initial Purchaser from and against any loss, claim, damage
or liability, joint or several, and any action in respect thereof, to which the
Initial Purchasers or such controlling person may become subject, under the
Securities Act or


 


13





















 


Exchange Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement of a material fact contained in any Memorandum, any
Additional Offering Document delivered by or on behalf of either of the Issuers
and OfficeMax to any prospective purchaser of the Offered Notes or arises out
of, or is based upon, the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and shall reimburse the Initial Purchasers and such
controlling person for any legal and other expenses reasonably incurred by the
Initial Purchasers or such controlling person in investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action; provided, however,
that the indemnity provided by this Section 8(a) shall not apply to any loss,
liability, claim, damage or expense to the extent any such untrue statement or
alleged untrue statement or omission or alleged omission arises out of or is
based upon information incorporated by reference in such Memorandum under the
headings “Market Stabilization”, “Plan of Distribution”, “Available Information
About Wachovia” and “Available Information About Lehman Brothers”; provided, further,
that, neither the Issuers nor
OfficeMax shall be liable to the Initial Purchasers in any such case to the extent
that any such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in the Preliminary Memorandum or the Final Memorandum in
reliance upon and in conformity with written information furnished to the
Issuers and/or OfficeMax by the Initial Purchasers specifically for inclusion
therein; provided, further,
that, the foregoing indemnity shall
not inure to the benefit of the Initial Purchasers or any person that controls
an Initial Purchaser from whom the person asserting any such loss, claim,
damage or liability purchased such Issuer’s Offered Notes which are the subject
thereof if such Issuer or OfficeMax shall sustain the burden of proving that
the Initial Purchasers sold such Issuer’s Offered Notes to the person alleging
such loss, claim, damage or liability without sending or giving a copy of the
Final Memorandum (including any amendments or supplements) at or prior to the
confirmation of the sale of the Offered Notes, if such Issuer or OfficeMax
shall have previously furnished copies thereof to such Initial Purchaser and
the loss, claim, damage or liability of such person results from an untrue
statement or omission of a material fact contained in any Preliminary
Memorandum or the Final Memorandum which was corrected in the Final Memorandum
or the Final Memorandum as amended or supplemented.  The foregoing indemnity is in addition to any
liability that the Issuers or OfficeMax may otherwise have to the Initial
Purchasers or any person or entity controlling the Initial Purchasers.  Each Issuer and Office Max acknowledges that
the statements set forth in the Final Memorandum under the captions “Market
Stabilization” and “Plan of Distribution” constitute the only written
information furnished to the Issuers and OfficeMax by the Initial Purchasers or
on behalf of the Initial Purchasers specifically for inclusion in the Final
Memorandum (or any amendment or supplement thereto).


 


(b)                                 Each
Initial Purchaser, severally and not jointly, agrees to indemnify and hold
harmless, the Issuers, OfficeMax, their directors and officers, and each
person, if any, who controls an Issuer or OfficeMax within the meaning of
either the Securities Act or the Exchange Act from and against, any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Preliminary Memorandum or the Final Memorandum (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Issuers by or on behalf of such


 


14





















 


Initial Purchaser specifically for inclusion in the Preliminary
Memorandum or the Final Memorandum (or any amendment or supplement thereto).  Each Issuer and Office Max acknowledges that
the statements set forth in the Final Memorandum under the captions “Market
Stabilization” and “Plan of Distribution” constitute the only written
information furnished to the Issuers and OfficeMax by the Initial Purchasers or
on behalf of the Initial Purchasers specifically for inclusion in the Final
Memorandum (or any amendment or supplement thereto).


 


(c)                                  Promptly
after receipt by an indemnified party under this Section 8 of notice of
any claim or the commencement of any action, the indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party under
this Section 8, notify the indemnifying party in writing of the claim or
commencement of that action, provided, however, that the failure to notify
the indemnifying party shall not relieve the indemnifying party from any
liability that it may have to an indemnified party under this Section 8,
except to the extent that the indemnifying party has been materially prejudiced
by such failure and, provided, further, that the failure to notify
the indemnifying party shall not relieve the indemnifying party from any
liability that it may have to an indemnified party otherwise than under this Section
8.  If any such claim or action shall
be brought against an indemnified party, and it shall notify the indemnifying
party thereof, the indemnifying party shall be entitled to participate therein
and, to the extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. 
After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the indemnifying party
shall not be liable to the indemnified party under this Section 8 for
any legal or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof; provided that the Initial Purchasers shall
have the right to employ, at the expense of the indemnifying party, counsel to
represent the Initial Purchasers and the controlling persons who may be subject
to liability arising out of any claim or action in respect of which indemnity
may be sought by the Initial Purchasers against the applicable Issuer or
OfficeMax under this Section 8, if (i) in the reasonable judgment of an
Initial Purchaser, there may be legal defenses available to such Initial
Purchaser, and those controlling persons, different from or in addition to
those available to the Issuers or OfficeMax, or there is a conflict of interest
between an Initial Purchaser and the controlling persons, on one hand, and the
Issuers or OfficeMax, on the other, or (ii) the Issuers or OfficeMax shall
fail to select counsel reasonably satisfactory to the indemnified party or
parties, and in such event the fees and expenses of such separate counsel shall
be paid by the Issuers or OfficeMax.  In
no event shall the Issuers or OfficeMax be liable for the fees and expenses of
more than one separate firm of attorneys for each of the Initial Purchasers and
their controlling persons in connection with any other action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances.  No
indemnifying party shall, without the prior written consent of the indemnified party,
effect any settlement of any pending or threatened proceeding in respect of
which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
(i) does not include a statement as to or admission of, fault, culpability or a
failure to act by or on behalf of any such indemnified party, and (ii) includes
an unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.


 


(d)                                 If
the indemnification provided for in Section 8 shall for any reason be
unavailable to an indemnified party under subsection 8(a) hereof in
respect of any loss, claim,


 


15





















 


damage or liability, or any action in respect thereof, referred to
therein, then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in
respect thereof, (i) in such proportion as shall be appropriate to reflect the
relative benefits received by the Issuers and Office Max on the one hand and
the Initial Purchasers on the other from the offering of the Offered Notes or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative
fault of the Issuers and OfficeMax on the one hand and the Initial Purchasers
on the other with respect to the statements or omissions that resulted in such
loss, claim, damage or liability, or action in respect thereof, as well as any
other relevant equitable considerations. 
The relative benefits received by the Issuers and OfficeMax on the one
hand and the Initial Purchasers on the other with respect to such offering
shall be deemed to be in the same proportion as the total net proceeds from the
offering of the Offered Notes (before deducting expenses) received by the
Issuers and OfficeMax bear to the total fees actually received by the Initial
Purchasers with respect to such offering pursuant to Section 2 of this
Agreement.  The relative fault shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Issuers, OfficeMax or the Initial Purchasers,
the intent of the parties and their relative knowledge, access to information
and opportunity to correct or prevent such statement or omission.  The Issuers, OfficeMax and the Initial
Purchasers agree that it would not be just and equitable if contributions
pursuant to this subsection 8(c) were to be determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to herein.  The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this subsection 8(c) shall be deemed to
include, for purposes of this subsection 8(c), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim.  Notwithstanding the provisions of this subsection
8(c), no Initial Purchaser shall be required to contribute any amount in
excess of the aggregate fee actually paid to such Initial Purchaser pursuant to
Section 2 of this Agreement.  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.


 


(e)                                  The
indemnity agreements contained in this Section 8 shall survive the
delivery of the Offered Notes, and the provisions of this Section 8
shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on behalf of any
indemnified party.


 


Section 9.                                          Termination.


 


This Agreement shall be
subject to termination in the absolute discretion of the Initial Purchasers, by
notice given to the Issuers and OfficeMax prior to delivery of and payment for
the Offered Notes, if prior to such time (i) trading in securities generally on
the New York Stock Exchange shall have been suspended or materially limited or
any setting of minimum prices for trading on such exchange has occurred, (ii) a
material disruption in securities settlement, payment or clearance services in
the United States has occurred; (iii) a banking moratorium has been declared by
Federal or state authorities; (iv) there has been, since the respective dates
as of


 


16





















 


which information is given in the Preliminary
Memorandum or the Final Memorandum, any material adverse change in the
condition, financial or otherwise, or in the assets of an Issuer; (v) a
general moratorium on commercial banking activities in New York shall have been
declared by either U.S. federal or New York State authorities, or (vi) there
shall have occurred any attack on, outbreak or escalation of hostilities or act
of terrorism involving the United States, any declaration of war by Congress or
any other national or international calamity, crisis or emergency if, in the
judgment of the Initial Purchasers, the effect of any such attack, outbreak,
escalation, act, declaration, calamity, crisis or emergency makes it
impractical or inadvisable to proceed with completion of the offering or sale
of and payment for the Offered Notes; or (vii) there shall have occurred any
other calamity, crisis (including without limitation as a result of terrorist
activities), or material adverse change in general economic, political or
financial conditions (or the effect of international conditions on the
financial markets in the United States shall be such) as to make it, in the
judgment of the Initial Purchasers, impracticable or inadvisable to proceed
with offering or delivery of the Offered Notes being delivered on the Closing
Date or that, in the judgment of the Initial Purchasers, would materially and
adversely affect the financial markets or the markets for the Offered Notes and
other debt securities.


 


Section
10.                                   Severability
Clause.


 


Any part, provision,
representation, or warranty of this Agreement which is prohibited or is held to
be void or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof.


 


Section
11.                                   Notices.


 


All demands, notices and
communications hereunder shall be in writing and shall be deemed to have been
duly given if personally delivered at or mailed by overnight mail, certified
mail or registered mail, postage prepaid and effective only upon receipt and if
sent to the Initial Purchasers, will be delivered to Wachovia Capital Markets,
LLC, One Wachovia Center, Mail Code: NC 0600, 301 South College Street,
Charlotte, North Carolina 28288–0610, One Wachovia Center, Attention:  Syndicate Desk, with a copy to Wachovia
Corporation Legal Division, Mail Code: NC 0630, 301 South College Street,
Charlotte, North Carolina 28288-0630, and to Lehman Brothers Inc., 399
Park Avenue, New York, NY 10022, Attention: Syndicate Registration Department,
with a copy to the same address, Attention: 
General Counsel; or if sent to an Issuer or to OfficeMax will be
delivered to such party at 150
Pierce Road, Itasca, IL 60143, Attention: Executive Vice-President and Chief
Financial Officer, with a copy to OfficeMax Incorporated, 150 Pierce Road,
Itasca, IL 60143, Attention: Executive Vice-President and General Counsel.


 


Section
12.                                   Representations
and Indemnities to Survive.


 


The
respective agreements, representations, warranties, indemnities and other
statements of each Issuer and its officers, and of the Initial Purchasers set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of the Initial
Purchasers, the Issuers or any of the controlling persons referred to in Section
8 of this Agreement, and will survive delivery of and payment for the
Offered Notes.


 


17





















 


Section
13.                                   Successors.


 


This
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors and the officers, directors and controlling
persons referred to in Section 8 of this Agreement and their respective
successors and assigns, and, except as specifically set forth herein, no other
person will have any right or obligation hereunder.


 


Section
14.                                   Applicable
Law.


 


(a)                                  THIS
AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK, BUT OTHERWISE WITHOUT REGARD TO
CONFLICTS OF LAW PRINCIPLES).


 


(b)                                 EACH
PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY REQUIREMENTS OF
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT.  EACH PARTY HERETO (I)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (II) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 14(b).


 


(c)                                  ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE
COURTS OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY HERETO CONSENTS, FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON–EXCLUSIVE JURISDICTION OF
THOSE COURTS.  EACH SUCH PARTY
IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF
VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION
IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO.


 


Section
15.                                   Counterparts,
Etc.


 


This Agreement supersedes
all prior or contemporaneous agreements and understandings relating to the
subject matter hereof.  Neither this
Agreement nor any term hereof may be changed, waived, discharged or terminated
except by a writing signed by the party against whom enforcement of such
change, waiver, discharge or termination is sought.  This Agreement may be signed in any number of
counterparts each of which shall be deemed an original, which taken together
shall constitute one and the same instrument.


 


18





















 


Section
16.                                   No
Petition.


 


The Initial Purchasers
covenant and agree that, prior to the date that is one (1) year and one (1) day
after the payment in full of each Class of Notes rated by any Rating Agency,
they will not institute against an Issuer or join any other Person in
instituting against such Issuer any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other similar proceedings under the
laws of the United States or any state of the United States.  This Section 16 will survive the
termination of this Agreement.


 


 


[REST OF PAGE INTENTIONALLY LEFT BLANK]


 


19





















 


If the foregoing is in
accordance with your understanding of our agreement, please sign and return to
the undersigned a counterpart hereof, whereupon this letter and your acceptance
shall represent a binding agreement among the Issuers and the Initial
Purchasers.


 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
  OMX
  TIMBER FINANCE INVESTMENTS I,

  LLC, a Delaware
  limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Ted Crumley

  	
   

  
	
   

  	
   

  	
  Ted
  Crumley, Regular Manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  OMX
  TIMBER FINANCE INVESTMENTS II,

  LLC, a Delaware
  limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Ted Crumley

  	
   

  
	
   

  	
   

  	
  Ted
  Crumley, Regular Manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  OFFICEMAX
  INCORPORATED

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Ted Crumley

  	
   

  
	
   

  	
  Name:

  	
    Ted
  Crumley

  	
   

  
	
   

  	
  Title:

  	
     Senior
  Vice President

  	
   

  
							



 





















 


The
foregoing Agreement is hereby confirmed and

accepted as of the date first above written.


 


	
  WACHOVIA CAPITAL MARKETS, LLC

  
	
   

  
	
  By:

  	
    /s/
  Kenneth A. Carpenter, Jr.

  	
   

  
	
  Name:

  	
    Kenneth
  A. Carpenter, Jr.

  	
   

  
	
  Title:

  	
     Director

  	
   

  
					



 


 


	
  LEHMAN BROTHERS INC.

  
	
   

  
	
  By:

  	
    /s/
  Erin Callan

  	
   

  
	
  Name:

  	
    Erin
  Callan

  	
   

  
	
  Title:

  	
    Managing
  Director

  	
   

  
					



 





















 


EXHIBIT A


 


FORM OF NOTICE TO INVESTORS


 


 


Because of the following
restrictions, investors are advised to consult legal counsel prior to making
any offer, resale, pledge or other transfer of the Offered Notes.


 


Each purchaser of the
Offered Notes offered hereby will be deemed to have represented and/or agreed
as follows (terms used in this “Notice to Investors” section that are defined
in Rule 144A under the Securities Act (“Rule 144A”) or in
Regulation D under the Securities Act (“Regulation D”) are used herein
as defined therein):


 


(1)                                  The
purchaser is both a “U.S. person” (as defined in Regulation S under the
Securities Act) and a “United States person” as defined in Section 7701(a)(30)
of the Code (A)) who (A) is both a “qualified institutional buyer” within the
meaning of Rule 144A (a “QIB”) and a “qualified purchaser” (a “Qualified
Purchaser”) for purposes of Section 3(c)(7) under the Investment Company
Act of 1940, as amended (the “1940 Act”) or both an institutional “Accredited
Investor” (within the meaning of Rule 501(a)(1)–(3) or (7) under the Securities
Act) (an “Institutional Accredited Investor”) and a Qualified Purchaser,
(B) is acquiring the Offered Notes for its own account or for the account of
such a QIB who is a Qualified Purchaser or an Institutional Accredited Investor
who is a Qualified Purchaser purchasing for investment and not for distribution
in violation of the Securities Act, (C) if such person is such a QIB and
Qualified Purchaser, is aware that the sale of the Offered Notes to it is being
made in reliance on Rule 144A or (D) if such person is such an Institutional
Accredited Investor and Qualified Purchaser, will deliver a certificate in the
form attached to the Indenture prior to receipt of Offered Notes.


 


(2)                                  The
Offered Notes have not been and will not be registered under the Securities
Act, any state securities or “blue sky” law, and may not be reoffered, resold,
pledged or otherwise transferred except (A)(i) to a person whom the seller
reasonably believes is a both a QIB and a Qualified Purchaser that purchases
for its own account or the account of another QIB and Qualified Purchaser to
whom notice is given that the resale, pledge or transfer is being made in
reliance on Rule 144A, (ii) in certificated form to an Institutional Accredited
Investor that is also a Qualified Purchaser pursuant to any other exemption
from the registration requirements of the Securities Act, subject to (a) the
receipt by the Indenture Trustee of a letter in the form attached to the
Indenture and (b) the receipt by the Indenture Trustee of such other evidence
acceptable to the Indenture Trustee that such reoffer, resale, pledge or
transfer is in compliance with the Securities Act and other applicable laws or
(iii) pursuant to another exemption available under the Securities Act and (B)
in accordance with all applicable securities and “blue sky” laws of any States
of the United States or any other applicable jurisdictions.


 


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(3)                                  The
Offered Notes will bear a legend to the following effect, unless the Issuer and
the Indenture Trustee determine otherwise in accordance with applicable law:


 


“THIS
NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE “SECURITIES ACT”), OR UNDER ANY STATE SECURITIES OR BLUE
SKY LAW OF ANY STATE.  THE HOLDER HEREOF,
BY PURCHASING THIS NOTE, AGREES THAT THIS NOTE MAY BE REOFFERED, RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND
OTHER REQUIREMENTS OF LAWS AND ONLY (1) PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT (“RULE 144A”) TO A U.S. PERSON THAT THE HOLDER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A (A “QIB”)
AND WHO IS A QUALIFIED PURCHASER WITHIN THE MEANING OF SECTION 3(c)(7) UNDER
THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED (A “QUALIFIED PURCHASER”),
PURCHASING FOR ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT OF A QIB WHO
IS ALSO A QUALIFIED PURCHASER, WHOM THE HOLDER HAS INFORMED THAT THE REOFFER,
RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) IN
CERTIFICATED FORM TO A U.S. PERSON WHO IS AN INSTITUTIONAL “ACCREDITED INVESTOR”
(WITHIN THE MEANING OF RULE 501 (a)(1)–(3) OR (7) UNDER THE SECURITIES ACT) AND
WHO IS ALSO A QUALIFIED PURCHASER, PURCHASING FOR INVESTMENT AND NOT FOR
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, IN EACH CASE, SUBJECT TO (A)
THE RECEIPT BY THE INDENTURE TRUSTEE OF A LETTER SUBSTANTIALLY IN THE FORM
PROVIDED IN THE INDENTURE AND (B) THE RECEIPT BY THE INDENTURE TRUSTEE OF SUCH
OTHER EVIDENCE ACCEPTABLE TO THE INDENTURE TRUSTEE THAT SUCH REOFFER, RESALE,
PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER
REQUIREMENTS OF LAWS OR IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE UNITED STATES AND SECURITIES AND BLUE SKY LAWS OF ANY
STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION, OR (3) TO A
U.S. PERSON PURSUANT TO ANOTHER EXEMPTION AVAILABLE UNDER THE SECURITIES ACT
AND IN ACCORDANCE WITH ANY APPLICABLE STATE SECURITIES LAWS.  THE PURCHASE OF THIS NOTE WILL BE DEEMED A
REPRESENTATION BY THE ACQUIRER THAT EITHER: (I) IT IS NOT, AND IS NOT ACQUIRING
OR HOLDING THIS NOTE, DIRECTLY OR INDIRECTLY, ON BEHALF OF OR WITH ANY ASSETS
OF, AN “EMPLOYEE BENEFIT PLAN” WITHIN THE MEANING OF SECTION 3(3) OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”),
THAT IS SUBJECT TO TITLE I OF ERISA, A “PLAN” WITHIN THE MEANING OF AND SUBJECT
TO SECTION 4975 OF


 


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THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”); AN ENTITY THE
UNDERLYING ASSETS OF WHICH ARE DEEMED TO INCLUDE ASSETS OF ANY SUCH PLAN, OR A
PLAN THAT IS SUBJECT TO ANY FEDERAL, STATE, LOCAL OR NON-U.S. LAW (“SIMILAR
LAW”) THAT IS SUBSTANTIVELY SIMILAR TO THE PROVISIONS OF SECTION 406 OF
ERISA OR SECTION 4975 OF THE CODE, OR (B) ITS ACQUISITION AND HOLDING OF THIS NOTE
WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER
SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A VIOLATION OF SIMILAR
LAW.”


 


(4)                                  The
Offered Notes will initially be represented by beneficial interests in a single
Global Note or certificated Individual Notes as the case may be.  Before any interest in a Global Note may be
offered, sold, pledged or otherwise transferred to a person who takes delivery
other than through a beneficial interest in that Global Note, the transferor
will be required to provide the Indenture Trustee with a written certification,
in the form provided in the Indenture, as to compliance with the applicable
transfer restrictions.


 


(5)                                  If
it is acquiring any Offered Notes as a fiduciary or agent for one or more
investor accounts, it has sole investment discretion with respect to each such
account and that it has full power to make the acknowledgments, representations
and agreements contained herein on behalf of such account.


 


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