exv10w1






Exhibit 10.1




Graphic Packaging International, Inc.




Graphic Packaging Holding Company

Graphic Packaging Corporation

and the other Guarantors party hereto




$180,000,000

9.50% Senior Notes due 2017




PURCHASE AGREEMENT




dated August 13, 2009




Banc of America Securities LLC




 









 





PURCHASE AGREEMENT




August 13, 2009




Banc of America Securities LLC

One Bryant Park

New York, New York 10036

Ladies and Gentlemen:




     Introductory. Graphic Packaging International, Inc., a Delaware corporation (the
“Company”) and as an indirect wholly-owned subsidiary of Graphic Packaging Holding Company
(“Parent’), proposes to issue and sell to Banc of America Securities LLC (the “Initial
Purchaser”) $180,000,000 aggregate principal amount of the Company’s 9.50% Senior Notes due
2017 (the “Notes”).



     The Securities (as defined below) will be issued pursuant to an indenture, dated as of June
16, 2009 (the “ Base Indenture”), among the Company, Parent, Graphic Packaging Corporation,
a direct wholly-owned subsidiary of Parent (“GPC” and, together with Parent, the
“Parent Guarantors”), the Subsidiary Guarantors (as defined below) and U.S. Bank National
Association, as trustee (the “Trustee”), as supplemented by a supplemental indenture to be
dated as of August 20, 2009 (the “Supplemental Indenture” and collectively with the Base
Indenture, the “Indenture”), among the Company, the Parent Guarantors, the Subsidiary
Guarantors and the Trustee, relating to the issuance of the Notes. Notes will be initially issued
only in book-entry form in the name of Cede & Co., as nominee of The Depository Trust Company (the
“Depositary”) pursuant to a letter of representations, to be dated on or before the Closing
Date (as defined in Section 2 hereof) (the “DTC Agreement”), among the Company, the
Guarantors, the Trustee and the Depositary.



     The Company has previously issued $245,000,000 in aggregate principal amount of its 9.50%
Senior Notes due 2017 under the Indenture (the “Existing Notes”). The Notes constitute an
additional issuance of notes under the Indenture. Except as otherwise described in the Pricing
Disclosure Package (as defined below), the Notes will have identical terms to the Existing Notes
and will be treated as a single class of notes for all purposes under the Indenture.



     The holders of the Notes will be entitled to the benefits of a registration rights agreement,
to be dated as of August 20, 2009 (the “Registration Rights Agreement”), among the Company,
the Guarantors and the Initial Purchaser, pursuant to which the Company and the Guarantors have
agreed to file with the Commission (as defined below), under the circumstances set forth therein
(i) a registration statement under the Securities Act (as defined below) relating to another series
of debt securities of the Company with terms substantially identical to the Notes (the
“Exchange Notes”) to be offered in exchange for the Notes other than restrictions on
transfer (the “Exchange Offer”) and (ii) a shelf registration statement pursuant to Rule
415 of the Securities Act relating to the resale by certain holders of the Notes, and in each case,
to use its reasonable best efforts to cause such registration statements to be declared effective.



1









 





     The payment of principal, premium and interest will be fully and unconditionally guaranteed on
a senior unsecured basis, jointly and severally by (i) Parent Guarantors, (ii) the Subsidiary
Guarantors listed on Schedule A hereto and (iii) any subsidiary of the Company formed or acquired
after the Closing Date that executes an additional guarantee in accordance with the terms of the
Indenture, and their respective successors and assigns (the entities described in clauses (ii) and
(iii), collectively, the “Subsidiary Guarantors” and, together with Parent Guarantors, the
“Guarantors”), pursuant to their guarantees (collectively the “Guarantees”). The
Notes and the Guarantees attached thereto are herein collectively referred to as the
“Securities”; and the Exchange Notes and the Guarantees, if any, attached thereto are
herein collectively referred to as the “Exchange Securities.”



     The Company understands that the Initial Purchaser proposes to make an offering of the
Securities on the terms and in the manner set forth herein and in the Pricing Disclosure Package
(as defined below) and agrees that the Initial Purchaser may resell, subject to the conditions set
forth herein, all or a portion of the Securities to purchasers (the “Subsequent
Purchasers”) on the terms set forth in the Pricing Disclosure Package (the first time when
sales of the Securities are made is referred to as the “Time of Sale”). The Securities are
to be offered and sold to or through the Initial Purchaser without being registered with the
Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933 (as
amended, the “Securities Act,” which term, as used herein, includes the rules and
regulations of the Commission promulgated thereunder), in reliance upon exemptions therefrom.
Pursuant to the terms of the Securities and the Indenture, investors who acquire Securities shall
be deemed to have agreed that Securities may only be resold or otherwise transferred after the date
hereof if such Securities are registered for sale under the Securities Act or if an exemption from
the registration requirements of the Securities Act is available (including the exemptions afforded
by Rule 144A under the Securities Act (“Rule 144A”) or Regulation S under the Securities
Act (“Regulation S”)).



     The Company has prepared and delivered to the Initial Purchaser copies of a Preliminary
Offering Memorandum, dated August 13, 2009, (the “Preliminary Offering Memorandum”), and
has prepared and delivered to the Initial Purchaser copies of a Pricing Supplement, dated August
13, 2009 (the “Pricing Supplement”), describing the terms of the Securities, each for use
by the Initial Purchaser in connection with its solicitation of offers to purchase the Securities.
The Preliminary Offering Memorandum and the Pricing Supplement and any Company Additional Written
Communications used in accordance with Section 3(a) (other than an “electronic road show”) are
herein referred to as the “Pricing Disclosure Package.” Promptly after this Agreement is
executed and delivered, the Company will prepare and deliver to the Initial Purchaser a final
offering memorandum dated the date hereof (the “Final Offering Memorandum”).



     All references herein to the terms “Pricing Disclosure Package” and “Final Offering
Memorandum” shall be deemed to mean and include all information filed under the Securities Exchange
Act of 1934 (as amended, the “Exchange Act,” which term, as used herein, includes the rules
and regulations of the Commission promulgated thereunder) prior to the Time of Sale and
incorporated by reference in the Pricing Disclosure Package (including the Preliminary Offering
Memorandum) or the Final Offering Memorandum (as the case may be), and all references herein to the
terms “amend,” “amendment” or “supplement” with respect to the Final Offering



2









 







Memorandum shall be
deemed to refer to and include all information filed under the Exchange Act after the Time of Sale and incorporated by reference in the Final Offering
Memorandum.



     The Company hereby confirms its agreements with the Initial Purchaser as follows:



     SECTION 1. Representations and Warranties. Each of the Company and the Guarantors, jointly
and severally, hereby represents, warrants and covenants to the Initial Purchaser that, as of the
date hereof and as of the Closing Date (references in this Section 1 to the “Offering
Memorandum” are to (x) the Pricing Disclosure Package in the case of representations and
warranties made as of the date hereof and (y) the Pricing Disclosure Package and the Final Offering
Memorandum in the case of representations and warranties made as of the Closing Date):



     (a) No Registration Required. Subject to compliance by the Initial Purchaser with the
representations and warranties set forth in Section 2 hereof and with the procedures set forth in
Section 7 hereof, it is not necessary in connection with the offer, sale and delivery of the
Securities to the Initial Purchaser and to each Subsequent Purchaser in the manner contemplated by
this Agreement and the Offering Memorandum to register the Securities under the Securities Act or,
until such time as the Exchange Securities are issued pursuant to an effective registration
statement, to qualify the Indenture under the Trust Indenture Act of 1939 (the “Trust Indenture
Act,” which term, as used herein, includes the rules and regulations of the Commission
promulgated thereunder).



     (b) No Integration of Offerings or General Solicitation. None of the Company, its affiliates
(as such term is defined in Rule 501 under the Securities Act) (each, an “Affiliate”), or
any person acting on its or any of their behalf (other than the Initial Purchaser, as to whom the
Company makes no representation or warranty) has, directly or indirectly, solicited any offer to
buy or offered to sell, or will, directly or indirectly, solicit any offer to buy or offer to sell,
in the United States or to any United States citizen or resident, any security which is or would be
integrated with the sale of the Securities in a manner that would require the Securities to be
registered under the Securities Act. None of the Company, its Affiliates, or any person acting on
its or any of their behalf (other than the Initial Purchaser, as to whom the Company makes no
representation or warranty) has engaged or will engage, in connection with the offering of the
Securities, in any form of general solicitation or general advertising within the meaning of Rule
502 under the Securities Act. With respect to those Securities sold in reliance upon Regulation S,
(i) none of the Company, its Affiliates or any person acting on its or their behalf (other than the
Initial Purchaser, as to whom the Company makes no representation or warranty) has engaged or will
engage in any directed selling efforts within the meaning of Regulation S and (ii) each of the
Company and its Affiliates and any person acting on its or their behalf (other than the Initial
Purchaser, as to whom the Company makes no representation or warranty) has complied and will comply
with the offering restrictions set forth in Regulation S.



     (c) Eligibility for Resale under Rule 144A. The Securities are eligible for resale pursuant
to Rule 144A and will not be, at the Closing Date, of the same class as securities listed on a
national securities exchange registered under Section 6 of the Exchange Act or quoted in a U.S.
automated interdealer quotation system.



3









 





     (d) The Pricing Disclosure Package and Offering Memorandum. Neither the Pricing Disclosure
Package (as amended or supplemented in accordance with Section 3(a), as applicable), as of the Time
of Sale, nor the Final Offering Memorandum, as of its date or (as amended or supplemented in
accordance with Section 3(a), as applicable) as of the Closing Date, contains an untrue statement
of a material fact or omits 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 this representation, warranty and agreement shall not apply to statements in or omissions from
the Pricing Disclosure Package, the Final Offering Memorandum or any amendment or supplement
thereto made or omitted in reliance upon and in conformity with information furnished to the
Company in writing by the Initial Purchaser expressly for use in the Pricing Disclosure Package,
the Final Offering Memorandum or amendment or supplement thereto, as the case may be. The Pricing
Disclosure Package contains, and the Final Offering Memorandum will contain, all the information
specified in, and meeting the requirements of, Rule 144A. The Company has not distributed and will
not distribute, prior to the later of the Closing Date and the completion of the Initial
Purchaser’s distribution of the Securities, any offering material in connection with the offering
and sale of the Securities other than the Pricing Disclosure Package and the Final Offering
Memorandum.



     (e) Company Additional Written Communications. The Company has not prepared, made, used,
authorized, approved or distributed and will not prepare, make, use, authorize, approve or
distribute 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) and (ii) below) a “Company Additional
Written Communication”) other than (i) the Pricing Disclosure Package, (ii) the Final Offering
Memorandum., and (iii) any electronic road show or other written communications, in each case used
in accordance with Section 3(a). Each such Company Additional Written Communication, when taken
together with the Pricing Disclosure Package, 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 this representation, warranty and agreement shall not apply to statements
in or omissions from each such Company Additional Written Communication made in reliance upon and
in conformity with information furnished to the Company in writing by the Initial Purchaser
expressly for use in any Company Additional Written Communication.



     (f) Incorporated Documents. The documents incorporated or deemed to be incorporated by
reference in the Offering Memorandum at the time they were or hereafter are filed with the
Commission (collectively, the “Incorporated Documents”) complied and will comply in all
material respects with the requirements of the Exchange Act.



     (g) The Purchase Agreement. This Agreement has been duly authorized, executed and delivered
by, and is a valid and binding agreement of, each of the Company and the Guarantors, enforceable in
accordance with its terms, except as rights to indemnification and contribution hereunder may be
limited by applicable law and public policy considerations and except as the enforcement hereof may
be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to
or affecting the rights and remedies of creditors or by general



4









 







equitable principles and the discretion of the court before which any proceeding therefore may be
brought.



     (h) The Registration Rights Agreement. The Registration Rights Agreement has been duly
authorized and, on the Closing Date, will have been duly executed and delivered by the Company and
the Guarantors (assuming the due authorization, execution and delivery by the Initial Purchaser)
will constitute a valid and binding agreement of, the Company and the Guarantors, enforceable in
accordance with its terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights
and remedies of creditors or by general equitable principles and the discretion of the court before
which any proceeding therefore may be brought and except as rights to indemnification and
contribution under the Registration Rights Agreement may be limited by applicable law and public
policy considerations.



     (i) Authorization of the Notes, the Guarantees and the Exchange Notes. The Notes to be
purchased by the Initial Purchaser from the Company are in the form contemplated by the Indenture,
have been duly authorized for issuance and sale to the Initial Purchaser pursuant to this Agreement
and the Indenture and, at the Closing Date, will have been duly executed by the Company and, when
authenticated by the Trustee in the manner provided for in the Indenture (assuming the due
authorization, execution and delivery of the Supplemental Indenture by the Trustee) and delivered
against payment of the purchase price therefor, will constitute valid and binding agreements of the
Company, enforceable in accordance with their terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or
affecting the rights and remedies of creditors or by general equitable principles and the
discretion of the court before which any proceeding therefor may be brought and will be entitled to
the benefits of the Indenture. The Exchange Notes have been duly and validly authorized for
issuance by the Company, and when issued, authenticated and delivered in accordance with the terms
of the Indenture (assuming the due authorization, execution and delivery of the Supplemental
Indenture by the Trustee), the Registration Rights Agreement and the Exchange Offer, will
constitute valid and binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium, or similar laws relating to or affecting enforcement of the
rights and remedies of creditors or by general principles of equity and the discretion of the court
before which any proceeding therefor may be brought and will be entitled to the benefits of the
Indenture. The Guarantees of the Notes and the Exchange Notes are in the respective forms
contemplated by the Indenture, have been duly authorized for issuance and sale pursuant to this
Agreement and the Indenture and, as related to the Guarantees of the Notes at the Closing Date,
will have been duly executed by each of the Guarantors and, when the Notes and the Exchange Notes
have been authenticated by the Trustee in the manner provided for in the Indenture and delivered
against payment of the purchase price therefor, will constitute valid and binding agreements of the
Guarantors, enforceable in accordance with their terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or
affecting the rights and remedies of creditors or by general equitable principles and the
discretion of the court before which any proceeding therefor may be brought and will be entitled to
the benefits of the Indenture. The Guarantees of the Exchange Notes, when the Exchange Notes are
issued, duly executed by each of the



5









 







Guarantors and authenticated by the Trustee in the manner provided for in the Registration Rights
Agreement and the Exchange Offer, will constitute valid and binding agreements of the Guarantors,
enforceable in accordance with their terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting
the rights and remedies of creditors or by general equitable principles and the discretion of the
court before which any proceeding therefor may be brought and will be entitled to the benefits of
the Indenture.



     (j) Authorization of the Supplemental Indenture. The Supplemental Indenture has been duly
authorized by the Company and the Guarantors and, at the Closing Date, the Indenture as
supplemented by the Supplemental Indenture will have been duly executed by the Company and the
Guarantors (assuming due authorization, execution and delivery by the Trustee) will constitute a
valid and binding agreement of the Company and the Guarantors, enforceable against the Company and
the Guarantors in accordance with its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting
the rights and remedies of creditors or by general equitable principles and the discretion of the
court before which any proceedings therefor may be brought.



     (k) Description of the Securities and the Indenture. The Securities, the Exchange Securities
and the Indenture will conform in all material respects to the respective statements relating
thereto contained in the Offering Memorandum.



     (l) No Material Adverse Change. Except as otherwise disclosed in the Offering Memorandum,
subsequent to the respective dates as of which information is given in the Offering Memorandum:
(i) there has been no material adverse change, or any development that could reasonably be expected
to result in a material adverse change, in the condition, financial or otherwise, or in the
earnings, business, operations or prospects, whether or not arising from transactions in the
ordinary course of business, of the Company and its subsidiaries, considered as one entity (any
such change is called a “Material Adverse Change”); (ii) the Company and its subsidiaries,
considered as one entity, have not incurred any material liability or obligation, indirect, direct
or contingent, not in the ordinary course of business nor entered into any material transaction or
agreement not in the ordinary course of business; and (iii) there has been no dividend or
distribution of any kind declared, paid or made by the Company or, except for dividends paid to the
Company, any of its subsidiaries on any class of capital stock, or repurchase or redemption by the
Company or any of its subsidiaries of any class of capital stock.



     (m) Independent Accountants. Ernst & Young LLP and PricewaterhouseCoopers LLP, which
expressed their opinion with respect to certain financial statements (which term as used in this
Agreement includes the related notes thereto) and supporting schedules filed with the Commission
and incorporated by reference into in the Offering Memorandum are independent public or certified
public accountants within the meaning of Regulation S-X under the Securities Act and the Exchange
Act, and any non-audit services provided by Ernst & Young LLP or PricewaterhouseCoopers LLP to the
Company or any of the Guarantors have been approved by the Audit Committee of the Board of
Directors of Parent.



     (n) Preparation of the Financial Statements; Other Data. The financial statements, together
with the related schedules and notes, incorporated by reference in the Offering



6









 







Memorandum present fairly in all material respects the consolidated financial position of Parent
and its subsidiaries as of and at the dates indicated and the results of their operations, cash
flows and changes in stockholder equity for the periods specified. Such financial statements have
been prepared in conformity with generally accepted accounting principles as applied in the United
States applied on a consistent basis throughout the periods presented, except as may be expressly
stated in the related notes thereto. The financial data set forth in the Offering Memorandum under
the captions “Summary Historical Financial Data” fairly present the information set forth therein
on a basis consistent with that of the audited financial statements incorporated by reference in
the Offering Memorandum. The statistical and market-related data and forward-looking statements
included in the Offering Memorandum are based on or derived from sources that the Company and its
subsidiaries believe to be reliable and accurate in all material respects and represent their good
faith estimates that are made on the basis of data derived from such sources.



     (o) Incorporation and Good Standing of the Company and its Subsidiaries. Each of the Company
and the Guarantors has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation (to the extent the concept of good
standing is applicable in the relevant jurisdiction) and has requisite power and authority to own,
lease and operate its properties and to conduct its business as described in the Offering
Memorandum and, in the case of the Company and the Guarantors, to enter into and perform its
obligations (to the extent it is party thereto) under each of this Agreement, the Registration
Rights Agreement, the DTC Agreement, the Securities, the Exchange Securities and the Supplemental
Indenture. Each of the Company and each subsidiary is duly qualified as a foreign corporation or
partnership to transact business and is in good standing or equivalent status in each jurisdiction
in which such qualification is required, whether by reason of the ownership or leasing of property
or the conduct of business, except for such jurisdictions where the failure to so qualify or to be
in good standing would not, individually or in the aggregate, reasonably be expected to result in a
Material Adverse Change. All of the issued and outstanding capital stock of each subsidiary has
been duly authorized and validly issued, is fully paid and nonassessable and is owned by the
Company, directly or through subsidiaries, free and clear of any material security interest,
mortgage, pledge, lien, encumbrance or claim, except for liens and encumbrances pursuant to the
Credit Agreement (as defined below).



     (p) Capitalization and Other Capital Stock Matters. At June 30, 2009, on a consolidated
basis, after giving pro forma effect to the issuance and sale of the Notes pursuant hereto and the
application of proceeds, Parent and its subsidiaries (on a consolidated basis) would have an
authorized and outstanding capitalization as set forth in the Offering Memorandum under the caption
“Capitalization” (other than for subsequent issuances of capital stock, if any, pursuant to
employee benefit plans described in the Offering Memorandum or upon exercise of outstanding options
described in the Offering Memorandum).



     (q) Non-Contravention of Existing Instruments; No Further Authorizations or Approvals
Required. Neither the Company nor any of its subsidiaries is in violation of its charter or bylaws
or is in default (or, with the giving of notice or lapse of time, would be in default)
(“Default”) under any indenture, mortgage, loan or credit agreement, note, contract,
franchise, lease or other instrument to which the Company or any of its subsidiaries is a party or
by which it or any of them may be bound (including, without limitation, the Indenture, the
Company’s Senior



7









 







Secured Credit Agreement dated as of May 16, 2007, as amended (the “Credit
Agreement”), the indenture dated as of August 8, 2003 governing the Company’s 9.50% senior
subordinated notes due 2013 (the “Senior Subordinated Indenture”) and the indenture dated
as of August 8, 2003 governing the 2011 Notes (the “Senior Notes Indenture”), or to which
any of the property or assets of the Company or any of its subsidiaries is subject (each, an
“Existing Instrument”), except for such Defaults as would not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Change. The Company’s execution,
delivery and performance of this Agreement, the Registration Rights Agreement, the DTC Agreement
and the Supplemental Indenture, and the issuance and delivery of the Securities or the Exchange
Securities, and consummation of the transactions contemplated hereby and thereby and by the
Offering Memorandum (i) will have been duly authorized by all necessary corporate action and will
not result in any violation of the provisions of the charter or bylaws of the Company or any
subsidiary, (ii) will not conflict with or constitute a breach of, or Default or a Debt Repayment
Triggering Event (as defined below) 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, or require the consent of any other party to, any Existing Instrument, except for such
conflicts, breaches, Defaults, liens, charges or encumbrances as would not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Change and (iii) will not result
in any violation of any law, administrative regulation or administrative or court decree applicable
to the Company or any subsidiary, with respect to clauses (ii) and (iii) only, except as would not,
individually or in the aggregate, reasonably be expected to result in a Material Adverse Change.
Assuming the accuracy of the representations and warranties of the Initial Purchaser set forth in
Section 3(d), no consent, approval, authorization or other order of, or registration or filing
with, any court or other governmental or regulatory authority or agency, is required for the
Company’s execution, delivery and performance of this Agreement, the Registration Rights Agreement,
the DTC Agreement or the Indenture, or the issuance and delivery of the Securities or the Exchange
Securities, or consummation of the transactions contemplated hereby and thereby and by the Offering
Memorandum, except such as have been obtained or made by the Company and are in full force and
effect under the Securities Act, applicable securities laws of the several states of the United
States or provinces of Canada and except such as may be required by the Securities Act, the
securities laws of the several states of the United States or provinces of Canada with respect to
the Company’s obligations under the Registration Rights Agreement. As used herein, a “Debt
Repayment Triggering Event” means any event or condition which gives, or with the giving of
notice or lapse of time would give, the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by the Company or any of its
subsidiaries.



     (r) No Material Actions or Proceedings. Except as otherwise disclosed in the Offering
Memorandum, there are no legal or governmental actions, suits or proceedings pending or, to the
Company’s knowledge, threatened (i) against or affecting the Company or any of its subsidiaries or
(ii) which has as the subject thereof any property owned or leased by, the Company or any of its
subsidiaries and in each case, any such action, suit or proceeding, if determined adversely to the
Company or such subsidiary, would reasonably be expected to result in a Material Adverse Change or
adversely affect the consummation of the transactions contemplated by this Agreement. No material
labor dispute with the employees of the Company or any of its



8









 







subsidiaries, or, to the knowledge of the Company, with the employees of any principal supplier of
the Company, exists or, to the Company’s knowledge, is threatened or imminent, except as would not
reasonably be expected to result in a Material Adverse Change.



     (s) Intellectual Property Rights. The Company and its subsidiaries own or possess sufficient
trademarks, trade names, patent rights, copyrights, licenses, approvals, trade secrets and other
similar rights (collectively, “Intellectual Property Rights”) reasonably necessary to
conduct their businesses in the manner described in the Offering Memorandum, except where the
failure to own, or possess adequate licenses or other Intellectual Property Rights, individually or
in the aggregate, would not reasonably be expected to result in a Material Adverse Change; and the
expected expiration of any of such Intellectual Property Rights would not reasonably be expected to
result in a Material Adverse Change. Neither the Company nor any of its subsidiaries has received
any notice of infringement or conflict with asserted Intellectual Property Rights of others, which
infringement or conflict, if the subject of an unfavorable decision, would reasonably be expected
to result in a Material Adverse Change.



     (t) All Necessary Permits, etc. The Company and each subsidiary possess such valid and current
certificates, authorizations or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct their respective businesses in the manner
described in the Offering Memorandum, except where the failure to possess such certificates,
authorizations or permits would not, individually or in the aggregate, reasonably be expected to
result in a Material Adverse Change, and neither the Company nor any subsidiary has received any
notice of proceedings relating to the revocation or modification of, or non-compliance with, any
such certificate, authorization or permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would reasonably be expected to have a Material Adverse
Change.



     (u) Title to Properties. The Company and each of its subsidiaries have good title in fee
simple to, or have valid right to lease or otherwise use, all items of real and personal property
which are material to their respective businesses, in each case free and clear of any security
interests, mortgages, liens, encumbrances, equities, claims and other title defects, except such as
do not materially and adversely affect the value of such property and do not materially interfere
with the use made or proposed to be made of such property by the Company or such subsidiary or
those created pursuant to the Credit Agreement.



     (v) Tax Law Compliance. The Company and its subsidiaries have filed all necessary federal,
state and foreign income and franchise tax returns or have properly requested extensions thereof
and have paid all taxes required to be paid by any of them and, if due and payable, any related or
similar assessment, fine or penalty levied against any of them other than those taxes and other
charges with respect to which the failure to pay, in the aggregate, would not reasonably be
expected to have a Material Adverse Change and except for those being contested in good faith and
by appropriate proceedings diligently conducted. The Company has made adequate charges, accruals
and reserves in the applicable financial statements referred to in Section 1(n) hereof in respect
of all federal, state and foreign income and franchise taxes for all periods as to which the tax
liability of the Company or any of its subsidiaries has not been finally determined.



9









 





     (w) Company Not an “Investment Company”. The Company has been advised of the rules and
requirements under the Investment Company Act of 1940, as amended (the “Investment Company Act,”
which term, as used herein, includes the rules and regulations of the Commission promulgated
thereunder). Neither the Company nor any of the Guarantors is, and after receipt of payment for
the Securities will be, an “investment company” within the meaning of Investment Company Act.



     (x) Insurance. Each of the Company and its subsidiaries are insured by recognized
institutions with policies in such amounts and with such deductibles and covering such risks as in
their reasonable determination is adequate and customary for their businesses including, without
limitation, policies covering real and personal property owned or leased by the Company and its
subsidiaries against theft, damage, destruction, acts of vandalism and earthquakes, except where
the failure to carry such insurance would not reasonably be expected to have a Material Adverse
Change. The Company has no reason to believe that it or any subsidiary will not be able (i) to
renew its existing insurance coverage as and when such policies expire or (ii) to obtain comparable
coverage from similar institutions as may be necessary or appropriate to conduct its business as
now conducted and at a cost that would not result in a Material Adverse Change. Neither of the
Company nor any subsidiary has been denied any insurance coverage which it has sought or for which
it has applied.



     (y) No Price Stabilization or Manipulation. None of the Company or any of the Guarantors has
taken or will take, directly or through any person acting on its or their behalf (other than the
Initial Purchaser, as to which no representation is made), any action designed to or that might be
reasonably expected to cause or result in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Securities.



     (z) Solvency. Each of the Company and the Guarantors is, and immediately after the Closing
Date will be, Solvent. As used herein, the term “Solvent” means, with respect to any
person on a particular date, that on such date (i) the fair market value of the assets of such
person is greater than the total amount of liabilities (including contingent liabilities) of such
person, (ii) the present fair salable value of the assets of such person is greater than the amount
that will be required to pay the probable liabilities of such person on its debts as they become
absolute and matured, (iii) such person is able to realize upon its assets and pay its debts and
other liabilities, including contingent obligations, as they mature and (iv) such person does not
have unreasonably small capital.



     (aa) Compliance with Sarbanes-Oxley. Parent and its subsidiaries and their respective
officers and directors are in compliance with the applicable provisions of the Sarbanes-Oxley Act
of 2002 (the “Sarbanes-Oxley Act,” which term, as used herein, includes the rules and
regulations of the Commission promulgated thereunder).



     (bb) Company’s Accounting System. Parent and its subsidiaries maintain a system of accounting
controls that is sufficient to provide reasonable assurances that: (i) transactions are executed in
accordance with management’s general or specific authorization; (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity with generally accepted
accounting principles as applied in the United States and to maintain accountability for assets;
(iii) access to assets is permitted only in accordance with management’s general or



10









 







specific authorization; and (iv) the recorded accountability for assets is compared with existing
assets at reasonable intervals and appropriate action is taken with respect to any differences.



     (cc) Disclosure Controls and Procedures. Parent has established and maintains disclosure
controls and procedures (as such term is defined in Rules 13a-15 and 15d-14 under the Exchange
Act); such disclosure controls and procedures are designed to ensure that material information
relating to Parent and its subsidiaries is made known to the chief executive officer and chief
financial officer of Parent by others within Parent or any of its subsidiaries, and such disclosure
controls and procedures are reasonably effective to perform the functions for which they were
established subject to the limitations of any such control system; Parent’s auditors and the Audit
Committee of the Board of Directors of Parent have been advised of: (i) any significant
deficiencies or material weaknesses in the design or operation of internal control over financial
reporting which could adversely affect Parent’s ability to record, process, summarize, and report
financial data; and (ii) any fraud, whether or not material, that involves management or other
employees who have a role in Parent’s internal control over financial reporting; and since the date
of the most recent evaluation of such disclosure controls and procedures, there have been no
significant changes in internal control over financial reporting or in other factors that could
significantly affect internal control over financial reporting, including any corrective actions
with regard to significant deficiencies and material weaknesses.



     (dd) Regulations T, U, X. Neither the Company nor any Guarantor nor any of their respective
subsidiaries nor any agent thereof acting on their behalf has taken, and none of them will take,
any action that might cause this Agreement or the issuance or sale of the Securities to violate
Regulation T, Regulation U or Regulation X of the Board of Governors of the Federal Reserve System.



     (ee) Compliance with Environmental Laws. Except as otherwise disclosed in the Offering
Memorandum or as would not, individually or in the aggregate, reasonably be expected to result in a
Material Adverse Change: (i) neither the Company nor any of its subsidiaries is in violation of
any federal, state, local or foreign law or regulation relating to pollution or protection of human
health or the environment (including, without limitation, ambient air, surface water, groundwater,
land surface or subsurface strata) or wildlife, including, without limitation, laws and regulations
relating to emissions, discharges, releases or threatened releases of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum and petroleum products
(collectively, “Materials of Environmental Concern”), or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of
Materials of Environmental Concern (collectively, “Environmental Laws”), which violation
includes, without limitation, noncompliance with any permits or other governmental authorizations
required for the operation of the business of the Company or its subsidiaries under applicable
Environmental Laws, or noncompliance with the terms and conditions thereof, nor has the Company or
any of its subsidiaries received any written communication, whether from a governmental authority,
citizens group, employee or otherwise, that alleges that the Company or any of its subsidiaries is
in violation of any Environmental Law; (ii) there is no claim, action or cause of action filed with
a court or governmental authority, no investigation with respect to which the Company has received
written notice, and no written notice by any person or entity alleging potential liability for
investigatory costs, cleanup costs, governmental responses costs,



11









 







natural resources damages, property damages, personal injuries, attorneys’ fees or penalties
arising out of, based on or resulting from the presence, or release into the environment, of any
Material of Environmental Concern at any location owned, leased or operated by the Company or any
of its subsidiaries, now or in the past (collectively, “Environmental Claims”), pending or,
to the Company’s knowledge, threatened against the Company or any of its subsidiaries or any person
or entity whose liability for any Environmental Claim the Company or any of its subsidiaries has
retained or assumed either contractually or by operation of law; and (iii) to the Company’s
knowledge, there are no past or present actions, activities, circumstances, conditions, events or
incidents, including, without limitation, the release, emission, discharge, presence or disposal of
any Material of Environmental Concern, that would result in a violation of any Environmental Law or
form the basis of a potential Environmental Claim against the Company or any of its subsidiaries or
against any person or entity whose liability for any Environmental Claim the Company or any of its
subsidiaries has retained or assumed either contractually or by operation of law.



     (ff) Periodic Review of Costs of Environmental Compliance. In the ordinary course of its
business, the Company conducts a periodic review of the effect of Environmental Laws on the
business, operations and properties of the Company and its subsidiaries, in the course of which it
identifies and evaluates associated costs and liabilities (including, without limitation, any
capital or operating expenditures required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related constraints on operating
activities and any potential liabilities to third parties). On the basis of such review and the
amount of its established reserves, the Company has reasonably concluded that such associated costs
and liabilities would not, individually or in the aggregate, result in a Material Adverse Change.



     (gg) ERISA Compliance. Except as otherwise disclosed in the Offering Memorandum, the Company
and its subsidiaries and any “employee benefit plan” (as defined under the Employee Retirement
Income Security Act of 1974 (as amended, “ERISA,” which term, as used herein, includes the
regulations and published interpretations thereunder)) established or maintained by the Company,
its subsidiaries or their “ERISA Affiliates” (as defined below) are in compliance in all
material respects with applicable provisions of ERISA, except where the failure to so comply would
not, individually or in the aggregate, reasonably be expected to result in a Material Adverse
Change. “ERISA Affiliate” means, with respect to the Company or a subsidiary, any member of any
group of organizations described in Section 414 of the Internal Revenue Code of 1986 (as amended,
the “Code,” which term, as used herein, includes the regulations and published interpretations
thereunder) of which the Company or such subsidiary is a member. No “reportable event” (as defined
under ERISA) has occurred or is reasonably expected to occur with respect to any “employee benefit
plan” established or maintained by the Company, its subsidiaries or any of their ERISA Affiliates.
No “employee benefit plan” established or maintained by the Company, its subsidiaries or any of
their ERISA Affiliates, if such “employee benefit plan” were terminated, would have any “amount of
unfunded benefit liabilities” (as defined under ERISA). Neither the Company, its subsidiaries nor
any of their ERISA Affiliates has incurred or reasonably expects to incur any liability under (i)
Title IV of ERISA with respect to termination of, or withdrawal from, any “employee benefit plan”
or (ii) Sections 412, 4971, 4975 or 4980B of the Code, which would individually or in the
aggregate, reasonably be expected to result in a Material Adverse Change. Each “employee benefit plan” established
or maintained by



12









 







the Company, its subsidiaries or any of their ERISA Affiliates that is intended to
be qualified under Section 401 of the Code is so qualified and nothing has occurred, whether by
action or failure to act, which would cause the loss of such qualification.



     (hh) Compliance with Labor Laws. Except as would not, individually or in the aggregate,
result in a Material Adverse Change, (i) there is (A) no unfair labor practice complaint pending
or, to the Company’s knowledge, threatened against the Company or any of its subsidiaries before
the National Labor Relations Board, and no grievance or arbitration proceeding arising out of or
under collective bargaining agreements pending, or to the Company’s knowledge, threatened, against
the Company or any of its subsidiaries, (B) no strike, labor dispute, slowdown or stoppage pending
or, to the Company’s knowledge, threatened against the Company or any of its subsidiaries and (C)
no union representation question existing with respect to the employees of the Company or any of
its subsidiaries and, to the Company’s knowledge, no union organizing activities taking place and
(ii) there has been no violation of any federal, state or local law relating to discrimination in
hiring, promotion or pay of employees or of any applicable wage or hour laws.



     (ii) Related Party Transactions. To the Company’s knowledge, no relationship, direct or
indirect, exists between or among any of the Company or any affiliate of the Company, on the one
hand, and any director, officer, member, stockholder, customer or supplier of the Company or any
affiliate of the Company, on the other hand, which is required by the Securities Act to be
disclosed in Parent’s Annual Report on Form 10-K which is not so disclosed in the Offering
Memorandum. Except as set forth or incorporated by reference in the Offering Memorandum, there are
no outstanding loans, advances (except advances for business expenses in the ordinary course of
business) or guarantees of indebtedness by the Company or any affiliate of the Company to or for
the benefit of any of the officers or directors of the Company or any affiliate of the Company or
any of their respective family members.



     (jj) No Unlawful Contributions or Other Payments. Neither the Company nor any of its
subsidiaries nor, to the best of the Company’s knowledge, any employee or agent of the Company or
any subsidiary, has made any contribution or other payment to any official of, or candidate for,
any federal, state or foreign office in violation of any law or of the character necessary to be
disclosed in the Offering Memorandum in order to make the statements therein not misleading.



     (kk) No Conflict 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 applicable 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.



     (ll) No Conflict with OFAC Laws. Neither the Company nor any of its subsidiaries nor, to the
knowledge of the



13









 







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. Treasury Department (“OFAC”); and the Company will not
directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make
available such proceeds to any subsidiary, joint venture partner or other person or entity, for the
purpose of financing the activities of any person currently subject to any U.S. sanctions
administered by OFAC.



     (mm) Stock Options. With respect to the stock options (the “Stock Options”) granted
pursuant to the stock-based compensation plans of Parent (the “Parent Stock Plans”), (i)
each Stock Option intended to qualify as an “incentive stock option” under Section 422 of the Code
so qualifies, (ii) each grant of a Stock Option was duly authorized no later than the date on which
the grant of such Stock Option was by its terms to be effective (the “Grant Date”) by all
necessary corporate action, including, as applicable, approval by the board of directors of Parent
(or a duly constituted and authorized committee thereof) and any required stockholder approval by
the necessary number of votes or written consents, and the award agreement governing such grant (if
any) was duly executed and delivered by each party thereto, (iii) each such grant was made in
accordance with the terms of Parent Stock Plans, the Exchange Act and all other applicable laws and
regulatory rules or requirements, including the rules of any securities exchange on which Parent
securities are traded, (iv) the per share exercise price of each Stock Option was equal to the fair
market value of a share of common stock on the applicable Grant Date and (v) each such grant was
properly accounted for in accordance with GAAP in the financial statements (including the related
notes) of the Company and disclosed in Parent’s filings with the Commission in accordance with the
Exchange Act and all other applicable laws. Parent has not knowingly granted, and there is no and
has been no policy or practice of the Company of granting, Stock Options prior to, or otherwise
coordinate the grant of Stock Options with, the release or other public announcement of material
information regarding Parent or its subsidiaries or their results of operations or prospects.



     (nn) Regulation S. The Company, the Guarantors and their respective affiliates and all
persons acting on their behalf (other than the Initial Purchaser, as to whom the Company and the
Guarantors make no representation) have complied with and will comply with the offering
restrictions requirements of Regulation S in connection with the offering of the Securities outside
the United States and, in connection therewith, the Offering Memorandum will contain the disclosure
required by Rule 902. The Securities sold in reliance on Regulation S will be represented upon
issuance by a temporary global security that may not be exchanged for definitive securities until
the expiration of the 40-day restricted period referred to in Rule 903 of the Securities Act and
only upon certification of beneficial ownership of such Securities by non-U.S. persons or U.S.
persons who purchased such Securities in transactions that were exempt from the registration
requirements of the Securities Act.



     (oo) Patriot Act Acknowledgement. In accordance with the requirements of the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Initial Purchaser is required
to obtain, verify and record information that identifies its clients, including the Company, which information may include the name and address of its clients, as well as other
information that will allow the Initial Purchaser to properly identify its clients.



14









 





     Any certificate signed by an officer of the Company or any Guarantor and delivered to the
Initial Purchaser or to counsel for the Initial Purchaser shall be deemed to be a representation
and warranty by the Company or such Guarantor to the Initial Purchaser as to the matters set forth
therein.



     SECTION 2. Purchase, Sale and Delivery of the Securities.



     (a) The Securities. Each of the Company and the Guarantors agrees to issue and sell to the
Initial Purchaser all of the Securities, and the Initial Purchaser agrees to purchase from the
Company and the Guarantors $180,000,000 aggregate principal amount of Securities at a purchase
price of 101.455% of the principal amount thereof, plus accrued interest from June 16, 2009,
payable on the Closing Date, on the basis of the representations, warranties and agreements herein
contained, and upon the terms, subject to the conditions thereto, herein set forth.



     (b) The Closing Date. Delivery of certificates for the Securities in definitive form to be
purchased by the Initial Purchaser and payment therefor shall be made at the offices of Cahill
Gordon & Reindel LLP, 80 Pine Street, New York, New York 10005 (or such other place as may be
agreed to by the Company and the Initial Purchaser) at 9:00 a.m. New York City time, on August 20,
2009 or such other time and date as the Initial Purchaser shall designate by notice to the Company
(the time and date of such closing are called the “Closing Date”). The Company hereby acknowledges
that circumstances under which the Initial Purchaser may provide notice to postpone the Closing
Date as originally scheduled include, but are in no way limited to, any determination by the
Company or the Initial Purchaser to recirculate to investors copies of an amended or supplemented
Offering Memorandum or a delay as contemplated by the provisions of Section 17 hereof.



     (c) Delivery of the Securities. The Company shall deliver, or cause to be delivered, to the
Initial Purchaser certificates for the Notes at the Closing Date against the irrevocable release of
a wire transfer of immediately available funds for the amount of the purchase price therefor. The
certificates for the Notes shall be in such denominations and registered in the name of Cede & Co.,
as nominee of the Depositary, pursuant to the DTC Agreement, and shall be made available for
inspection on the business day preceding the Closing Date at a location in New York City, as the
Initial Purchaser may designate. Time shall be of the essence, and delivery at the time and place
specified in this Agreement is a further condition to the obligations of the Initial Purchaser.



     (d) Initial Purchaser as Qualified Institutional Buyers. Banc of America Securities
represents and warrants to, and agrees with, the Company that it is a “qualified institutional
buyer” within the meaning of Rule 144A (a “Qualified Institutional Buyer”).



     SECTION 3. Additional Covenants. Each of the Company and the Guarantors further covenants and
agrees with the Initial Purchaser as follows:



     (a) Preparation of Final Offering Memorandum; the Initial Purchaser’s Review of Proposed
Amendments and Supplements and Company Additional Written Communications. As promptly as
practicable following the Time of Sale and in any event not later than the second business day
following the date hereof, the Company will prepare and deliver to the Initial



15









 







Purchaser the Final
Offering Memorandum, which shall consist of the Preliminary Offering Memorandum as modified only by
the information contained in the Pricing Supplement. The Company will not amend or supplement the
Preliminary Offering Memorandum or the Pricing Supplement. The Company will not amend or
supplement the Final Offering Memorandum prior to the Closing Date unless the Initial Purchaser
shall previously have been furnished a copy of the proposed amendment or supplement at least two
business days prior to the proposed use, and shall not have objected to such amendment or
supplement. Before making, preparing, using, authorizing, approving or distributing any Company
Additional Written Communication, the Company will furnish to the Initial Purchaser a copy of such
written communication for review and will not make, prepare, use, authorize, approve or distribute
any such written communication to which the Initial Purchaser reasonably objects.



     (b) Amendments and Supplements to the Final Offering Memorandum and Other Securities Act
Matters. If, prior to the later of (x) the Closing Date and (y) the completion of the placement of
the Securities by the Initial Purchaser with the Subsequent Purchasers, any event shall occur or
condition exist as a result of which it is necessary to amend or supplement the Final Offering
Memorandum, as then amended or supplemented, in order to make the statements therein, in the light
of the circumstances when the Final Offering Memorandum is delivered to a Subsequent Purchaser, not
misleading, or if in the judgment of the Initial Purchaser or counsel for the Initial Purchaser it
is otherwise necessary to amend or supplement the Final Offering Memorandum to comply with law, the
Company agrees to promptly prepare (subject to Section 3 hereof), and furnish at its own expense to
the Initial Purchaser, amendments or supplements to the Final Offering Memorandum so that the
statements in the Final Offering Memorandum as so amended or supplemented will not, in the light of
the circumstances at the Closing Date and at the time of sale of Securities, be misleading or so
that the Final Offering Memorandum, as amended or supplemented, will comply with all applicable
law. If at any time prior to the Closing Date, any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the Pricing Disclosure Package as then
amended or supplemented, in order to make the statements therein, in the light of the circumstances
under which they are made, not misleading, or if in the reasonable judgment of the Representatives
or counsel for the Initial Purchaser it is otherwise necessary to amend or supplement the Pricing
Disclosure Package to comply with law, the Company agrees to promptly prepare (subject to Section 3
hereof) and furnish at its own expense to the Initial Purchaser, amendments or supplements to the
Pricing Disclosure Package so that the statements in the Pricing Disclosure Package as so amended
or supplemented will not, in the light of the circumstances under which they were made, be
misleading or so that the Pricing Disclosure Package, as amended or supplemented, will comply with
all applicable law.



     Following the consummation of the Exchange Offer or the effectiveness of an applicable shelf
registration statement and for so long as the Securities are outstanding if, in the judgment of the
Initial Purchaser or any of its affiliates (as such term is defined in the Securities Act) are
required to deliver a prospectus in connection with sales of, or market-making activities with
respect to, the Securities, to periodically amend the applicable registration statement so that the
information contained therein complies with the requirements of Section 10 of the Securities
Act, to amend the applicable registration statement or supplement the related prospectus or the
documents incorporated therein when necessary to reflect any material changes in the information
provided therein so that the registration statement and the prospectus will not contain any untrue



16









 







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 as of the date the prospectus is so
delivered, not misleading and to provide the Initial Purchaser with copies of each amendment or
supplement filed and such other documents as the Initial Purchaser may reasonably request.



     The Company hereby expressly acknowledges that the indemnification and contribution provisions
of Sections 8 and 9 hereof are specifically applicable and relate to each offering memorandum,
registration statement, prospectus, amendment or supplement referred to in this Section 3.



     (c) Copies of the Offering Memorandum. The Company agrees to furnish the Initial Purchaser,
without charge, as many copies of the Pricing Disclosure Package and the Final Offering Memorandum
and any amendments and supplements thereto as it shall reasonably request.



     (d) Blue Sky Compliance. Each of the Company and the Guarantors shall reasonably cooperate
with the Initial Purchaser and counsel for the Initial Purchaser to qualify or register (or to
obtain exemptions from qualifying or registering) all or any part of the Securities for offer and
sale under the securities laws of the several states of the United States, the provinces of Canada
or any other jurisdictions designated by the Initial Purchaser, shall comply with such laws and
shall continue such qualifications, registrations and exemptions in effect so long as required for
the distribution of the Securities. None of the Company or any of the Guarantors shall be required
to qualify as a foreign corporation or to take any action that would subject it to general service
of process in any such jurisdiction where it is not presently qualified or where it would be
subject to taxation as a foreign corporation. The Company will advise the Initial Purchaser
promptly of the suspension of the qualification or registration of (or any such exemption relating
to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of
any proceeding for any such purpose, and in the event of the issuance of any order suspending such
qualification, registration or exemption, each of the Company and the Guarantors shall use its best
efforts to obtain the withdrawal thereof at the earliest possible moment.



     (e) Use of Proceeds. The Company shall apply the net proceeds from the sale of the Securities
sold by it in the manner described under the caption “Use of Proceeds” in the Pricing Disclosure
Package.



     (f) The Depositary. The Company will cooperate with the Initial Purchaser and use its
reasonable best efforts to permit the Securities to be eligible for clearance and settlement
through the facilities of the Depositary.



     (g) Additional Issuer Information. Prior to the completion of the placement of the Securities
by the Initial Purchaser with the Subsequent Purchasers, the Company shall file, on a timely basis,
with the Commission all reports and documents required to be filed under Section 13 or 15 of the
Exchange Act. Additionally, at any time when the Company is not subject to Section 13 or 15 of the
Exchange Act, for the benefit of holders and beneficial owners from time to time of the Securities, the Company shall furnish, at its expense, upon request, to holders
and beneficial owners of Securities and prospective purchasers of Securities information
(“Additional Issuer Information”) satisfying the requirements of Rule 144A(d).



17









 





     (h) Agreement Not To Offer or Sell Additional Securities. During the period of 30 days
following the date hereof, the Company will not, without the prior written consent of the Initial
Purchaser (which consent may be withheld at the sole discretion of the Initial Purchaser), directly
or indirectly, sell, offer, contract or grant any option to sell, pledge, transfer or establish an
open “put equivalent position” within the meaning of Rule 16a-1 under the Exchange Act, or
otherwise dispose of or transfer, or announce the offering of, or file any registration statement
under the Securities Act in respect of, any debt securities of the Company or securities
exchangeable for or convertible into debt securities of the Company (other than as contemplated by
this Agreement and to register the Exchange Securities).



     (i) Future Reports to the Initial Purchaser. At any time when the Company is not subject to
Section 13 or 15 of the Exchange Act and any Securities or Exchange Securities remain outstanding,
the Company will furnish to the Initial Purchaser: (i) as soon as practicable after the end of
each fiscal year, copies of the Annual Report of the Company containing the balance sheet of the
Company as of the close of such fiscal year and statements of income, stockholders’ equity and cash
flows for the year then ended and the opinion thereon of the Company’s independent public or
certified public accountants and (ii) as soon as available, copies of any report or communication
of the Company mailed generally to holders of its capital stock or debt securities (including the
holders of the Securities).



     (j) No Integration. The Company agrees that it will not and will cause its Affiliates not to
make any offer or sale of securities of the Company of any class if, as a result of the doctrine of
“integration” referred to in Rule 502 under the Securities Act, such offer or sale would render
invalid (for the purpose of (i) the sale of the Securities by the Company to the Initial Purchaser,
(ii) the resale of the Securities by the Initial Purchaser to Subsequent Purchasers or (iii) the
resale of the Securities by such Subsequent Purchasers to others the exemption from the
registration requirements of the Securities Act provided by Section 4(2) thereof or by Rule 144A or
by Regulation S thereunder or otherwise.



     (k) No Restricted Resales. During the period of one year after the Closing Date, 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 Notes which constitute “restricted securities” under Rule 144 that have
been reacquired by any of them.



     (l) 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 Purchaser, as
to which no covenant is given) will (i) solicit offers for, or offer or sell, the Notes 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.



     (m) Legended Securities. Each certificate for a Note will bear the legend contained in
“Notice to Investors” in the Preliminary Offering Memorandum for the time period and upon the other
terms stated in the Preliminary Offering Memorandum.



18









 





     The Initial Purchaser may, in its sole discretion, waive in writing the performance by the
Company or any Guarantor of any one or more of the foregoing covenants or extend the time for their
performance.



     SECTION 4. Payment of Expenses. Each of the Company and the Guarantors agrees to pay all
costs, fees and expenses incurred in connection with the performance of its obligations hereunder
and in connection with the transactions contemplated hereby, including, without limitation, (i) all
expenses incident to the issuance and delivery of the Securities (including all printing and
engraving costs), (ii) all necessary issue, transfer and other stamp taxes in connection with the
issuance and sale of the Securities to the Initial Purchaser, (iii) all fees and expenses of the
Company’s and the Guarantors’ counsel, independent public or certified public accountants and other
advisors, (iv) all costs and expenses incurred in connection with the preparation, printing,
shipping and distribution of the Pricing Disclosure Package and the Final Offering Memorandum
(including financial statements and exhibits), and all amendments and supplements thereto, this
Agreement, the Registration Rights Agreement, the Indenture, the DTC Agreement and the Notes and
Guarantees, (v) all reasonable filing fees, attorneys’ fees and expenses incurred by the Company,
the Guarantors or the Initial Purchaser in connection with qualifying or registering (or obtaining
exemptions from the qualification or registration of) all or any part of the Securities for offer
and sale under the securities laws of the several states of the United States, the provinces of
Canada or other jurisdictions designated by the Initial Purchaser (including, without limitation,
the cost of preparing, printing and mailing preliminary and final blue sky or legal investment
memoranda and any related supplements to the Pricing Disclosure Package or the Final Offering
Memorandum), (vi) the fees and expenses of the Trustee, including the fees and disbursements of
counsel for the Trustee in connection with the Indenture, the Securities and the Exchange
Securities, (vii) any fees payable in connection with the rating of the Securities or the Exchange
Securities with the ratings agencies, (viii) any filing fees incident to, and any reasonable fees
and disbursements of counsel to the Initial Purchaser in connection with the review by FINRA, if
any, of the terms of the sale of the Securities or the Exchange Securities, (ix) all fees and
expenses (including reasonable fees and expenses of counsel) of the Company and the Guarantors in
connection with approval of the Securities by the Depositary for “book-entry” transfer, and the
performance by the Company and the Guarantors of its their respective other obligations under this
Agreement and (x) all expenses incident to the “road show” for the offering of the Securities,
including the cost of any chartered airplane or other transportation. Except as provided in this
Section 4 and Sections 6, 8 and 9 hereof, the Initial Purchaser shall pay its own expenses,
including the fees and disbursements of its counsel.



     SECTION 5. Conditions of the Obligations of the Initial Purchaser. The obligation of the
Initial Purchaser to purchase and pay for the Securities as provided herein on the Closing Date
shall be subject to the accuracy of the representations and warranties on the part of the Company
and the Guarantors set forth in Section 1 hereof as of the date hereof and as of the Closing Date
as though then made and to the timely performance by the Company of its covenants and other
obligations hereunder, and to each of the following additional conditions:



     (a) Accountants’ Comfort Letter. On the date hereof, the Initial Purchaser shall have
received from Ernst & Young LLP, the independent registered public accounting firm for the
Company, a “comfort letter” dated the date hereof addressed to the Initial Purchaser, in
form and



19









 







substance reasonably satisfactory to the Initial Purchaser, covering the financial
information in the Preliminary Offering Memorandum and the Pricing Supplement and other customary
matters. In addition, on the Closing Date, the Initial Purchaser shall have received from such
accountants, a “bring-down comfort letter” dated the Closing Date addressed to the Initial
Purchaser, in form and substance reasonably satisfactory to the Initial Purchaser, in the form of
the “comfort letter” delivered on the date hereof, except that (i) it shall cover the financial
information in the Final Offering Memorandum and any amendment or supplement thereto and (ii)
procedures shall be brought down to a date no more than 5 days prior to the Closing Date.



     (b) No Material Adverse Change or Ratings Agency Change. For the period from and after the
date of this Agreement and prior to the Closing Date:




     (i) in the reasonable judgment of the Initial Purchaser there shall not have occurred
any Material Adverse Change; and




     (ii) there shall not have occurred any downgrading, nor shall any notice have been
given of any intended or potential downgrading or of any review for a possible change that
does not indicate the direction of the possible change, in the rating accorded the Company
or any of its subsidiaries or any of their securities or indebtedness by any “nationally
recognized statistical rating organization” as such term is defined for purposes of Rule 436
under the Securities Act.



     (c) Opinion of Counsel for the Company.




     (i) On the Closing Date the Initial Purchaser shall have received the favorable opinion
of Alston & Bird LLP, counsel for the Company, dated as of such Closing Date, the form of
which is attached as Exhibit A-1.




     (ii) On the Closing Date the Initial Purchaser shall have received the favorable
opinion of Stephen A. Hellrung, Senior Vice President, General Counsel and Secretary for the
Company, dated as of such Closing Date, the form of which is attached as Exhibit A-2.



     (d) Opinion of Counsel for the Initial Purchaser. On the Closing Date the Initial Purchaser
shall have received the favorable opinion of Cahill Gordon & Reindel LLP, counsel for the Initial
Purchaser, dated as of such Closing Date, with respect to such matters as may be reasonably
requested by the Initial Purchaser.



     (e) Officers’ Certificate. On the Closing Date the Initial Purchaser shall have received a
written certificate executed by the Chairman of the Board, Chief Executive Officer or President of
the Company and each Guarantor and the Chief Financial Officer or Chief Accounting Officer of the
Company and each Guarantor, dated as of the Closing Date, to the effect set forth in
Section 5(b)(ii) hereof, and further to the effect that:




     (i) for the period from and after the date of this Agreement and prior to the Closing
Date there has not occurred any Material Adverse Change;



20









 






     (ii) the representations and warranties of the Company set forth in Section 1 hereof
were true and correct as of the date hereof and are true and correct as of the Closing Date
with the same force and effect as though expressly made on and as of the Closing Date; and




     (iii) the Company has complied with all covenants and agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the Closing Date.



     (f) Registration Rights Agreement. The Company shall have entered into the Registration
Rights Agreement and the Initial Purchaser shall have received executed counterparts thereof.



     (g) DTC. The Securities shall be eligible for clearance and settlement through DTC.



     (h) Additional Documents. On or before the Closing Date, the Initial Purchaser and counsel
for the Initial Purchaser shall have received such information, documents and opinions as they may
reasonably require for the purposes of enabling them to pass upon the issuance and sale of the
Securities as contemplated herein, or in order to evidence the accuracy of any of the
representations and warranties, or the satisfaction of any of the conditions or agreements, herein
contained.



     If any condition specified in this Section 5 is not satisfied when and as required to be
satisfied, this Agreement may be terminated by the Initial Purchaser by notice to the Company at
any time on or prior to the Closing Date, which termination shall be without liability on the part
of any party to any other party, except that Sections 4, 6, 8 and 9 hereof shall at all times be
effective and shall survive such termination.



     SECTION 6. Reimbursement of Initial Purchaser’s Expenses. If this Agreement is terminated by
the Initial Purchaser pursuant to Section 5 or 10 hereof, including if the sale to the Initial
Purchaser of the Securities on the Closing Date is not consummated because of any refusal,
inability or failure on the part of the Company to perform any agreement herein or to comply with
any provision hereof, the Company agrees to reimburse the Initial Purchaser, upon demand, for all
reasonable out-of-pocket expenses that shall have been incurred by the Initial Purchaser in
connection with the proposed purchase and the offering and sale of the Securities, including,
without limitation, reasonable fees and disbursements of counsel, printing expenses, travel
expenses, postage, facsimile and telephone charges.



     SECTION 7. Offer, Sale and Resale Procedures. The Initial Purchaser, on the one hand, and the
Company and each of the Guarantors, on the other hand, hereby agree to observe the following
procedures in connection with the offer and sale of the Securities:




     (A) Offers and sales of the Securities will be made only by the Initial Purchaser or
its Affiliates qualified to do so in the jurisdictions in which such offers or sales
are made. Each such offer or sale shall only be made to persons whom the offeror or
seller reasonably believes to be Qualified Institutional Buyers or non-U.S. persons outside
the United States to whom the offeror or seller reasonably believes offers and sales of the



21









 






Securities may be made in reliance upon Regulation S upon the terms and conditions set forth
in Annex I hereto, which Annex I is hereby expressly made a part hereof.




     (B) The Securities will be offered by approaching prospective Subsequent Purchasers on
an individual basis. No general solicitation or general advertising (within the meaning of
Rule 502 under the Securities Act) or any manner of public offering (within the meaning of
Section 4(2) under the Securities Act) will be used in the United States in connection with
the offering of the Securities.




     (C) Upon original issuance by the Company, and until such time as the same is no longer
required under the applicable requirements of the Securities Act, the Notes (and all
securities issued in exchange therefor or in substitution thereof, other than the Exchange
Notes) shall bear the following legend:




“THE NOTES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS NOTE NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF,
THE HOLDER (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”)), OR (B) IT IS NOT A U.S. PERSON AND IS
ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION, (2) AGREES TO OFFER, SELL, PLEDGE OR
OTHERWISE TRANSFER SUCH NOTE PRIOR TO THE DATE WHICH IS ONE YEAR AFTER THE DATE OF ORIGINAL
ISSUE HEREOF ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A TO A PERSON IT REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) OUTSIDE THE UNITED STATES PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS IN
AN OFFSHORE TRANSACTION PURSUANT TO REGULATION S UNDER THE SECURITIES ACT IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO
CLAUSE (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM.”



22









 





     Following the sale of the Securities by the Initial Purchaser to Subsequent Purchasers
pursuant to the terms hereof, the Initial Purchaser shall not be liable or responsible to the
Company for any losses, damages or liabilities suffered or incurred by the Company, including any
losses, damages or liabilities under the Securities Act, arising from or relating to any resale or
transfer of any Security.



     SECTION 8. Indemnification.



     (a) Indemnification of the Initial Purchaser. Each of the Company and the Guarantors, jointly
and severally, agrees to indemnify and hold harmless the Initial Purchaser, its directors, officers
and employees, and each person, if any, who controls the Initial Purchaser within the meaning of
the Securities Act and the Exchange Act against any loss, claim, damage, liability or expense, as
incurred, to which the Initial Purchaser and each such director, officer, employee or controlling
person may become subject, under the Securities Act, the Exchange Act or other federal or state
statutory law or regulation, or at common law or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of the Company or effected
without the written consent of the Company in accordance with Section 8(d)), insofar as such loss,
claim, damage, liability or expense (or actions in respect thereof as contemplated below) arises
out of or is based: upon any untrue statement or alleged untrue statement of a material fact
contained in the Preliminary Offering Memorandum, the Pricing Supplement, any Company Additional
Written Information or the Final Offering Memorandum (or any amendment or supplement thereto), or
the omission or alleged omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading;
and to reimburse the Initial Purchaser and each such director, officer, employee or controlling
person for any and all expenses (including the fees and disbursements of counsel chosen by the
Initial Purchaser) as such expenses are reasonably incurred by the Initial Purchaser or such
director, officer, employee or controlling person in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage, liability, expense or action;
provided, however, that the foregoing indemnity agreement shall not apply to any loss, claim,
damage, liability or expense to the extent, but only to the extent, arising out of or based upon
any untrue statement or alleged untrue statement or omission or alleged omission made in reliance
upon and in conformity with written information furnished to the Company by the Initial Purchaser
expressly for use in the Preliminary Offering Memorandum, the Pricing Supplement, any Company
Additional Written Information or the Final Offering Memorandum (or any amendment or supplement
thereto). The indemnity agreement set forth in this Section 8(a) shall be in addition to any
liabilities that the Company may otherwise have.



     (b) Indemnification of the Company and the Guarantors. The Initial Purchaser agrees to
indemnify and hold harmless the Company, each Guarantor, each of their respective directors and
each person, if any, who controls the Company or any Guarantor within the meaning of the Securities
Act or the Exchange Act, against any loss, claim, damage, liability or expense, as incurred, to
which the Company, any Guarantor or any such director or controlling person may become subject,
under the Securities Act, the Exchange Act, or other federal or state statutory law
or regulation, or at common law or otherwise (including in settlement of any litigation, if
such settlement is effected with the written consent of the Initial Purchaser or effected without
the written consent of the Company in accordance with Section 8(d)), insofar as such loss, claim,



23









 







damage, liability or expense (or actions in respect thereof as contemplated below) arises out of or
is based upon any untrue statement or alleged untrue statement of a material fact contained in the
Preliminary Offering Memorandum, the Pricing Supplement, any Company Additional Written Information
or the Final Offering Memorandum (or any amendment or supplement thereto), or the omission or
alleged omission therefrom of 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 to the
extent, but only to the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in the Preliminary Offering Memorandum, the Pricing Supplement, any
Company Additional Written Information or the Final Offering Memorandum (or any amendment or
supplement thereto), in reliance upon and in conformity with written information furnished to the
Company by the Initial Purchaser expressly for use therein; and to reimburse the Company, any
Guarantor and each such director or controlling person for any and all expenses (including the fees
and disbursements of counsel) as such expenses are reasonably incurred by the Company, any
Guarantor or such director or controlling person in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage, liability, expense or action. Each
of the Company and the Guarantors hereby acknowledges that the only information that the Initial
Purchaser has furnished to the Company expressly for use in the Preliminary Offering Memorandum,
the Pricing Supplement, any Company Additional Written Information or the Final Offering Memorandum
(or any amendment or supplement thereto) are the statements set forth in the third, sixth (second
and third sentences) and ninth paragraphs under the caption “Plan of Distribution” in the
Preliminary Offering Memorandum and the Final Offering Memorandum. The indemnity agreement set
forth in this Section 8(b) shall be in addition to any liabilities that the Initial Purchaser may
otherwise have.



     (c) Notifications and Other Indemnification Procedures. Promptly after receipt by an
indemnified party under this Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against an indemnifying party
under this Section 8, notify the indemnifying party in writing of the commencement thereof, but the
omission so to notify the indemnifying party will not relieve it from any liability which it may
have to any indemnified party for contribution or otherwise than under the indemnity agreement
contained in this Section 8 or to the extent it is not materially prejudiced as a proximate result
of such failure. In case any such action is brought against any indemnified party and such
indemnified party seeks or intends to seek indemnity from an indemnifying party, the indemnifying
party will be entitled to participate in and, to the extent that it shall elect, jointly with all
other indemnifying parties similarly notified, by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified party, to assume the defense
thereof with counsel reasonably satisfactory to such indemnified party; provided, however, if the
defendants in any such action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that a conflict may arise between the positions
of the indemnifying party and the indemnified party in conducting the defense of any such action or
that there may be legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, the indemnified party or
parties shall have the right to select separate counsel to assume such legal defenses and to otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying party to such
indemnified party of such indemnifying party’s election so to assume the defense of such action and
approval



24









 







by the indemnified party of counsel, the indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof unless (i) the indemnified party
shall have employed separate counsel in accordance with the proviso to the next preceding sentence
(it being understood, however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel (together with local counsel), approved by the indemnifying party
(the Initial Purchaser in the case of Sections 8(b) and 9 hereof), representing the indemnified
parties who are parties to such action) or (ii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified party within a
reasonable time after notice of commencement of the action, in each of which cases the fees and
expenses of counsel shall be at the expense of the indemnifying party.



     (d) Settlements. The indemnifying party under this Section 8 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 party agrees to indemnify the
indemnified party against any loss, claim, damage, liability or expense by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel as contemplated by this Section 8, the indemnifying party agrees that it shall
be liable for any settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party
in accordance with such request or disputed in good faith the indemnified party’s entitlement to
such reimbursement prior to the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement, compromise or consent to the
entry of judgment in any pending or threatened action, suit or proceeding in respect of which any
indemnified party is or could have been a party and indemnity was or could have been sought
hereunder by such indemnified party, unless such settlement, compromise or consent (i) includes an
unconditional release of such indemnified party from all liability on claims that are the subject
matter of such action, suit or proceeding and (ii) does not include any statements as to or any
findings of fault, culpability or failure to act by or on behalf of any indemnified party.



     SECTION 9. Contribution. If the indemnification provided for in Section 8 hereof is for any
reason held to be unavailable to or otherwise insufficient to hold harmless an indemnified party in
respect of any losses, claims, damages, liabilities or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount paid or payable by such indemnified
party, as incurred, as a result of any losses, claims, damages, liabilities or expenses referred to
therein (i) in such proportion as is appropriate to reflect the relative benefits received by the
Company and the Guarantors, on the one hand, and the Initial Purchaser, on the other hand, from the
offering of the Securities pursuant to this Agreement 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
Company and the Guarantors, on the one hand, and the Initial Purchaser, on the other hand,
in connection with the statements or omissions or inaccuracies in the representations and
warranties herein which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative benefits received by the Company and
the



25









 







Guarantors, on the one hand, and the Initial Purchaser, on the other hand, in connection with
the offering of the Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the Securities pursuant to
this Agreement (before deducting expenses) received by the Company, and the total discount received
by the Initial Purchaser bear to the aggregate initial offering price of the Securities. The
relative fault of the Company and the Guarantors, on the one hand, and the Initial Purchaser, on
the other hand, shall be determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to state a material
fact or any such inaccurate or alleged inaccurate representation or warranty relates to information
supplied by the Company and the Guarantors, on the one hand, or the Initial Purchaser, on the other
hand, and the parties’ relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission or inaccuracy.



     The amount paid or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include, subject to the limitations set forth in
Section 8 hereof, any legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action or claim. The provisions set forth in
Section 8 hereof with respect to notice of commencement of any action shall apply if a claim for
contribution is to be made under this Section 9; provided, however, that no additional notice shall
be required with respect to any action for which notice has been given under Section 8 hereof for
purposes of indemnification.



     The Company, the Guarantors and the Initial Purchaser agree that it would not be just and
equitable if contribution pursuant to this Section 9 were determined by pro rata allocation or by
any other method of allocation which does not take account of the equitable considerations referred
to in this Section 9.



     Notwithstanding the provisions of this Section 9, the Initial Purchaser shall not be required
to contribute any amount in excess of the discount it received in connection with the Securities
distributed by it. No person guilty of fraudulent misrepresentation (within the meaning of Section
11 of the Securities Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section 9, each director, officer and
employee of the Initial Purchaser and each person, if any, who controls the Initial Purchaser
within the meaning of the Securities Act and the Exchange Act shall have the same rights to
contribution as the Initial Purchaser, and each director of the Company or any Guarantor, and each
person, if any, who controls the Company or any Guarantor with the meaning of the Securities Act
and the Exchange Act shall have the same rights to contribution as the Company and the Guarantors.



     SECTION 10. Termination of this Agreement. Prior to the Closing Date, this Agreement may be
terminated by the Initial Purchaser by notice given to the Company if at any time: (i) trading or
quotation in any of the Company’s securities shall have been suspended or limited by the Commission
or by the New York Stock Exchange (the “NYSE”), or trading in securities
generally on either the Nasdaq Stock Market or the NYSE shall have been suspended or limited,
or minimum or maximum prices shall have been generally established on any of such quotation system
or stock exchange by the Commission or FINRA; (ii) a general banking moratorium shall



26









 







have been
declared by any of federal, New York or Delaware authorities; (iii) there shall have occurred any
outbreak or escalation of national or international hostilities or any crisis or calamity, or any
change in the United States or international financial markets, or any substantial change or
development involving a prospective substantial change in United States’ or international
political, financial or economic conditions, as in the judgment of the Initial Purchaser is
material and adverse and makes it impracticable or inadvisable to proceed with the offering sale or
delivery of the Securities in the manner and on the terms described in the Pricing Disclosure
Package or to enforce contracts for the sale of securities; (iv) in the judgment of the Initial
Purchaser there shall have occurred any Material Adverse Change; or (v) the Company shall have
sustained a loss by strike, fire, flood, earthquake, accident or other calamity of such character
as in the judgment of the Initial Purchaser may interfere materially with the conduct of the
business and operations of the Company regardless of whether or not such loss shall have been
insured. Any termination pursuant to this Section 10 shall be without liability on the part of (i)
the Company or any Guarantor to the Initial Purchaser, except that the Company and the Guarantors
shall be obligated to reimburse the expenses of the Initial Purchaser pursuant to Sections 4 and 6
hereof, (ii) the Initial Purchaser to the Company or any Guarantor, or (iii) any party hereto to
any other party except that the provisions of Sections 8 and 9 hereof shall at all times be
effective and shall survive such termination.



     SECTION 11. Representations and Indemnities to Survive Delivery. The respective indemnities,
agreements, representations, warranties and other statements of the Company, the Guarantors, their
respective officers and the Initial Purchaser 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 Purchaser, the Company, any Guarantor or any of their partners, officers or directors or
any controlling person, as the case may be, and will survive delivery of and payment for the
Securities sold hereunder and any termination of this Agreement.



     SECTION 12. Notices. All communications hereunder shall be in writing and shall be mailed,
hand delivered, couriered or facsimiled and confirmed to the parties hereto as follows:



     If to the Initial Purchaser:




Banc of America Securities LLC

One Bryant Park

New York, New York 10013

Facsimile: (212)-901-7897

Attention: Legal Department



     with a copy to:




Cahill Gordon & Reindel LLP

80 Pine Street

New York, New York 10022

Facsimile: (212) 701-3849

Attention: James J. Clark, Esq.



27









 





     If to the Company or the Guarantors:




Graphic Packaging International, Inc.

814 Livingston Court

Marietta, GA 30067

Facsimile: (770) 644-2923

Attention: W. Scott Wenhold



     with a copy to:




Alston & Bird LLP

One Atlantic Center

1201 West Peachtree Street

Atlanta, GA 30309

Facsimile: (404) 881-7777

Attention: William Scott Ortwein, Esq.
                  Justin R. Howard, Esq.



     Any party hereto may change the address or facsimile number for receipt of communications by
giving written notice to the others.



     SECTION 13. Successors. This Agreement will inure to the benefit of and be binding upon the
parties hereto, and to the benefit of the indemnified parties referred to in Sections 8 and 9
hereof, and in each case their respective successors, and no other person will have any right or
obligation hereunder. The term “successors” shall not include any Subsequent Purchaser of other
purchaser of the Securities as such from the Initial Purchaser merely by reason of such purchase.



     SECTION 14. Partial Unenforceability. The invalidity or unenforceability of any section,
paragraph or provision of this Agreement shall not affect the validity or enforceability of any
other section, paragraph or provision hereof. If any section, paragraph or provision of this
Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be
made such minor changes (and only such minor changes) as are necessary to make it valid and
enforceable.



     SECTION 15. Governing Law Provisions. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED IN SUCH STATE WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF.



     Consent to Jurisdiction. Any legal suit, action or proceeding arising out of or based upon
this Agreement or the transactions contemplated hereby (“Related Proceedings”) may be
instituted in the federal courts of the United States of America located in the City and County of
New York or the courts of the State of New York in each case located in the City and County of



28









 







New York (collectively, the “Specified Courts”), and each party irrevocably submits to the
exclusive jurisdiction (except for suits, actions, or proceedings instituted in regard to the
enforcement of a judgment of any Specified Court in a Related Proceeding a “Related
Judgment”, as to which such jurisdiction is non-exclusive) of the Specified Courts in any
Related Proceeding. Service of any process, summons, notice or document by mail to such party’s
address set forth above shall be effective service of process for any Related Proceeding brought in
any Specified Court. The parties irrevocably and unconditionally waive any objection to the laying
of venue of any Specified Proceeding in the Specified Courts and irrevocably and unconditionally
waive and agree not to plead or claim in any Specified Court that any Related Proceeding brought in
any Specified Court has been brought in an inconvenient forum. Each party not located in the
United States irrevocably appoints CT Corporation System, as its agent to receive service of
process or other legal summons for purposes of any Related Proceeding that may be instituted in any
Specified Court.



     SECTION 16. No Advisory or Fiduciary Responsibility. Each of the Company and the Guarantors
acknowledges and agrees that: (i) the purchase and sale of the Securities pursuant to this
Agreement, including the determination of the offering price of the Securities and any related
discounts and commissions, is an arm’s-length commercial transaction between the Company and the
Guarantors, on the one hand, and the Initial Purchaser, on the other hand, and the Company and the
Guarantors are capable of evaluating and understanding and understand and accept the terms, risks
and conditions of the transactions contemplated by this Agreement; (ii) in connection with each
transaction contemplated hereby and the process leading to such transaction the Initial Purchaser
is and has been acting solely as a principal and is not the agent or fiduciary of the Company,
Guarantors or their respective affiliates, stockholders, creditors or employees or any other party;
(iii the Initial Purchaser has not assumed or will not assume an advisory or fiduciary
responsibility in favor of the Company or the Guarantors with respect to any of the transactions
contemplated hereby or the process leading thereto (irrespective of whether the Initial Purchaser
has advised or is currently advising the Company or the Guarantors on other matters) or any other
obligation to the Company and the Guarantors except the obligations expressly set forth in this
Agreement; (iv) the Initial Purchaser and its affiliates may be engaged in a broad range of
transactions that involve interests that differ from those of the Company and the Guarantors and
that the Initial Purchaser has no obligation to disclose any of such interests by virtue of any
fiduciary or advisory relationship; and (v) the Initial Purchaser has not provided any legal,
accounting, regulatory or tax advice with respect to the offering contemplated hereby and the
Company and the Guarantors have consulted their own legal, accounting, regulatory and tax advisors
to the extent they deemed appropriate.



     This Agreement supersedes all prior agreements and understandings (whether written or oral)
between the Company, the Guarantors and the Initial Purchaser, or any of them, with respect to the
subject matter hereof. The Company and the Guarantors hereby waive and release, to the fullest
extent permitted by law, any claims that the Company and the Guarantors may have against the
Initial Purchaser with respect to any breach or alleged breach of fiduciary duty.



     SECTION 17. General Provisions. This Agreement constitutes the entire agreement of the
parties to this Agreement and supersedes all prior written or oral and all contemporaneous oral
agreements, understandings and negotiations with respect to the subject matter hereof. This



29









 







Agreement may be executed in two or more counterparts, each one of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same instrument. This
Agreement may not be amended or modified unless in writing by all of the parties hereto, and no
condition herein (express or implied) may be waived unless waived in writing by each party whom the
condition is meant to benefit. The section headings herein are for the convenience of the parties
only and shall not affect the construction or interpretation of this Agreement.



30









 





     If the foregoing is in accordance with your understanding of our agreement, kindly sign and
return to the Company the enclosed copies hereof, whereupon this instrument, along with all
counterparts hereof, shall become a binding agreement in accordance with its terms.



	 	 	 	 	 	 	 
	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 
	 	 	GRAPHIC PACKAGING INTERNATIONAL, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Daniel J. Blount
 

Name: Daniel J. Blount
	 	 
	 

	 	 	 	Title: Senior Vice President and
Chief Financial Officer	 	 
	 
	 	 	 	 	 	 
	 	 	GRAPHIC PACKAGING CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Daniel J. Blount
 

Name: Daniel J. Blount
	 	 
	 

	 	 	 	Title: Senior Vice President and
Chief Financial Officer	 	 
	 
	 	 	 	 	 	 
	 	 	GRAPHIC PACKAGING HOLDING COMPANY	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Daniel J. Blount
 

Name: Daniel J. Blount
	 	 
	 

	 	 	 	Title: Senior Vice President and
Chief Financial Officer	 	 






31









 





	 	 	 	 	 	 	 
	 	 	BLUEGRASS CONTAINER CANADA HOLDINGS, LLC	 	 
	 	 	BLUEGRASS FLEXIBLE PACKAGING COMPANY, LLC	 	 
	 	 	BLUEGRASS LABELS COMPANY, LLC	 	 
	 	 	BLUEGRASS MULTIWALL BAG COMPANY, LLC	 	 
	 	 	FIELD CONTAINER QUERETARO (USA), L.L.C.	 	 
	 	 	HANDSCHY HOLDINGS, LLC	 	 
	 	 	HANDSCHY INDUSTRIES, LLC	 	 
	 	 	RIVERDALE INDUSTRIES, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Daniel J. Blount
 

Name: Daniel J. Blount
	 	 
	 

	 	 	 	Title: Senior Vice President and Chief Financial Officer	 	 






1









 





     The foregoing Purchase Agreement is hereby confirmed and accepted by the Initial Purchaser as
of the date first above written.



Banc of America Securities LLC




	 	 	 	 	 	 	 
	 

	 	By:
	 	William H. Pegler, Jr.
 

Name: William H. Pegler, Jr.
	 	 
	 

	 	 	 	Title: Principal	 	 






1









 






SCHEDULE A




SUBSIDIARY GUARANTORS




Bluegrass Container Canada Holdings, LLC

Bluegrass Flexible Packaging Company, LLC

Bluegrass Labels Company, LLC

Bluegrass Multiwall Bag Company, LLC

Field Container Queretaro (USA), LLC

Handschy Holdings, LLC

Handschy Industries, LLC

Riverdale Industries, LLC