EX-10.1






Exhibit 10.1




Graphic Packaging International, Inc.




Graphic Packaging Holding Company

Graphic Packaging Corporation

and the other Guarantors party hereto




$245,000,000

9.50% Senior Notes due 2017




PURCHASE AGREEMENT




dated June 2, 2009




Banc of America Securities LLC

J.P. Morgan Securities Inc.

Goldman, Sachs & Co.




 









 





PURCHASE AGREEMENT




June 2, 2009




Banc of America Securities LLC

J.P. Morgan Securities Inc.

Goldman, Sachs & Co.

As Initial Purchasers

c/o 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 the several Initial Purchasers named in Schedule
A (the “Initial Purchasers”), acting severally and not jointly, the respective amounts set
forth in such Schedule A of an $245,000,000 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, to be dated as of
June 16, 2009 (the “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”). 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 holders of the Notes will be entitled to the benefits of a registration rights agreement,
to be dated as of June 16, 2009 (the “Registration Rights Agreement”), among the Company,
the Guarantors and the Initial Purchasers, pursuant to which the Company and the Guarantors may be
required 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.
All references herein to the Exchange Notes and the Exchange Offer are only applicable if the
Company and the Guarantors are in fact required to consummate the Exchange Offer pursuant to the
terms of the Registration Rights Agreement.



     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 B hereto and (iii) any subsidiary of the Company formed or



1









 







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.”



     In connection with the issuance of the Notes, the Company has commenced a cash tender offer
(the “Tender Offer”) for a portion of the Company’s outstanding 8.50% Senior Notes due 2011
(the “2011 Notes”) upon the terms and subject to the conditions set forth in that certain
Offer to Purchase dated as of June 1, 2009 (the “Offer to Purchase”). The net proceeds
from the sale of the Securities will be used to fund the purchase of the 2011 Notes pursuant to the
Tender Offer or otherwise and pay related fees and expenses.



     The Company understands that the Initial Purchasers propose 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 Purchasers 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 Purchasers 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 each Initial Purchaser copies of a Preliminary
Offering Memorandum, dated June 1, 2009, (the “Preliminary Offering Memorandum”), and has
prepared and delivered to each Initial Purchaser copies of a Pricing Supplement, dated June 2, 2009
(the “Pricing Supplement”), describing the terms of the Securities, each for use by such
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 Section3(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 each 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



2









 







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
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 Purchasers as follows:



     SECTION 1. Representations and Warranties. Each of the Company and the Guarantors, jointly
and severally, hereby represents, warrants and covenants to each 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 Purchasers 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 Purchasers 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 Purchasers, 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 Purchasers, 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 Purchasers, 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
Purchasers, 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



3









 







national securities exchange registered under Section 6 of the Exchange Act or quoted in a
U.S. automated interdealer quotation system.



     (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 any Initial Purchaser through Banc of America Securities LLC 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 Purchasers’ 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 any Initial Purchaser through
Banc of America Securities LLC 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 contribu-



4









 







tion 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
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 Purchasers)
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 Purchasers from the Company are in the form contemplated by the Indenture,
have been duly authorized for issuance and sale to the Initial Purchasers 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 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 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



5









 







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 Guarantors and
authenticated by the Trustee in the manner provided for in the Registration Rights Agreement, the
Exchange Offer and the Indebtor, 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 Indenture. The Indenture has been duly authorized by the Company and
the Guarantors and, at the Closing Date, 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.



6









 





     (n) Preparation of the Financial Statements; Other Data. The financial statements, together
with the related schedules and notes, incorporated by reference in the Offering 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 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 March 31, 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



7









 







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
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
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 Purchasers 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



8









 







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 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)



9









 







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.



     (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 any
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



10









 







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 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



11









 







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, 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



12









 







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 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,
author-



13









 







ity 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 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 Purchasers, 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.



14









 





     (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 Purchasers are
required to obtain, verify and record information that identifies their respective clients,
including the Company, which information may include the name and address of their respective
clients, as well as other information that will allow the underwriters to properly identify their
respective clients.



     Any certificate signed by an officer of the Company or any Guarantor and delivered to the
Initial Purchasers or to counsel for the Initial Purchasers shall be deemed to be a representation
and warranty by the Company or such Guarantor to each 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 Purchasers, severally and not jointly, all of the Securities, and the Initial Purchasers
agree, severally and not jointly, to purchase from the Company and the Guarantors the aggregate
principal amount of Securities set forth opposite their names on Schedule A, at a purchase price of
95.103% of the principal amount thereof payable on the Closing Date, in each case, 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 Purchasers 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 Banc of America Securities LLC) at 9:00 a.m. New York City time, on
June 16, 2009 or such other time and date as Banc of America Securities LLC 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 Banc of America Securities LLC 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 Purchasers 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 Banc
of America Securities LLC for the accounts of the several Initial Purchasers 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 Banc of America
Securities LLC 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 Purchasers.



     (d) Initial Purchasers as Qualified Institutional Buyers. Each Initial Purchaser severally
and not jointly 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”).



15









 





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



     (a) Preparation of Final Offering Memorandum; Initial Purchasers’ 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
Purchasers 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 Purchasers 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
Purchasers 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 Purchasers
reasonably object.



     (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 Purchasers 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 Purchasers or counsel for the Initial Purchasers
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 Purchasers, 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 Purchasers 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 Purchasers, 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



16









 







the
Initial Purchasers or any of their 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
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 Purchasers with copies of each amendment or
supplement filed and such other documents as the Initial Purchasers 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 Purchasers,
without charge, as many copies of the Pricing Disclosure Package and the Final Offering Memorandum
and any amendments and supplements thereto as they shall reasonably request.



     (d) Blue Sky Compliance. Each of the Company and the Guarantors shall reasonably cooperate
with the Initial Purchasers and counsel for the Initial Purchasers 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 Purchasers, 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 Purchasers
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 Purchasers and use its
reasonable best efforts to permit the Securities to be eligible for clearance and settlement
through the facilities of the Depositary.



17









 





     (g) Additional Issuer Information. Prior to the completion of the placement of the Securities
by the Initial Purchasers 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).



     (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 Banc of
America Securities LLC (which consent may be withheld at the sole discretion of Banc of America
Securities LLC), 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 Purchasers. 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 Banc of America Securities LLC and, upon request, to each of the other
Initial Purchasers: (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
Purchasers, (ii) the resale of the Securities by the Initial Purchasers 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 Purchasers, as
to which no covenant is given) will (i) solicit offers for, or offer or sell, the Notes by means of



18









 







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.



     Banc of America Securities LLC on behalf of the several Initial Purchasers, 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 Purchasers, (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 Purchasers 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 Purchasers (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 Purchasers 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 Purchasers shall pay their own expenses,
including the fees and disbursements of their counsel.




19











 





     SECTION 5. Conditions of the Obligations of the Initial Purchasers. The obligations of the
several Initial Purchasers 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 Purchasers 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 Purchasers,
in form and substance reasonably satisfactory to the Initial Purchasers, 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 Purchasers shall have received from such
accountants, a “bring-down comfort letter” dated the Closing Date addressed to the Initial
Purchasers, in form and substance reasonably satisfactory to the Initial Purchasers, 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 Purchasers 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 Purchasers 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 Purchasers 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 Purchasers. On the Closing Date the Initial Purchasers
shall have received the favorable opinion of Cahill Gordon & Reindel LLP, counsel for the Initial
Purchasers, dated as of such Closing Date, with respect to such matters as may be reasonably
requested by the Initial Purchasers.



20









 





     (e) Officers’ Certificate. On the Closing Date the Initial Purchasers 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;




     (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 Purchasers shall have received executed counterparts thereof.



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



     (h) Transactions. All of the conditions to closing set forth in the documents relating to the
Tender Offer shall have been satisfied in all material respects other than the consummation of the
offer and sale of the Notes hereunder. On the Closing Date, the Company shall have given
irrevocable notice to the trustee under the Senior Notes Indenture of the Company’s election to use
any proceeds remaining from this offering after the Tender Offer is consumated and any related fees
and expenses are paid to redeem 2011 Notes outstanding following the consummation of the Tender
Offer and Consent Solicitation pro rata (which notice may be delivered to holders of the 2011 Notes
following consummation of the Tender Offer).



     (i) Additional Documents. On or before the Closing Date, the Initial Purchasers and counsel
for the Initial Purchasers 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 Purchasers 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.



21









 





     SECTION 6. Reimbursement of Initial Purchasers’ Expenses. If this Agreement is terminated by
the Initial Purchasers pursuant to Section 5 or 10 hereof, including if the sale to the Initial
Purchasers 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 Purchasers, severally, upon
demand for all reasonable out-of-pocket expenses that shall have been incurred by the Initial
Purchasers 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. Each of the Initial Purchasers, 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 Purchasers or
Affiliates thereof 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
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 SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN
A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THE SECURITY
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE
SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF
THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE
SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A)
SUCH SECURITY MAY BE RESOLD,



22









 







PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a) INSIDE THE UNITED STATES TO A
PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A UNDER THE SECURITIES ACT,
(b) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT, (c) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF APPLICABLE) OR (d) IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY IF THE COMPANY SO REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH
ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY
OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THE SECURITY EVIDENCED HEREBY
OF THE RESALE RESTRICTIONS SET FORTH IN CLAUSE (A) ABOVE. NO REPRESENTATION
CAN BE MADE AS TO THE AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144 FOR
RESALE OF THE SECURITY EVIDENCED HEREBY.”



     Following the sale of the Securities by the Initial Purchasers to Subsequent Purchasers
pursuant to the terms hereof, the Initial Purchasers 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 Purchasers. Each of the Company and the Guarantors,
jointly and severally, agrees to indemnify and hold harmless each Initial Purchaser, its directors,
officers and employees, and each person, if any, who controls any 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 such Initial Purchaser, 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



23









 







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 each 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 Banc of America Securities LLC) as such expenses are reasonably incurred by such 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
Purchasers 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. Each Initial Purchaser agrees,
severally and not jointly 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 such Initial Purchaser 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, 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 Purchasers 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 Pur-



24









 







chasers through the Initial Purchasers have 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), ninth and tenth 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 each 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 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 (Banc of America Securities LLC 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



25









 







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 Purchasers, 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 Purchasers, 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 Guarantors, on the one hand, and the Initial Purchasers, 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 Purchasers 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 Purchasers, 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 Purchasers, 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 con-



26









 







nection 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 Purchasers agree that it would not be just and
equitable if contribution pursuant to this Section 9 were determined by pro rata allocation (even
if the Initial Purchasers were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred to in this Section
9.



     Notwithstanding the provisions of this Section 9, no Initial Purchaser shall be required to
contribute any amount in excess of the discount received by such Initial Purchaser 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. The Initial Purchasers’ obligations to
contribute pursuant to this Section 9 are several, and not joint, in proportion to their respective
commitments as set forth opposite their names in Schedule A. For purposes of this Section 9, each
director, officer and employee of an Initial Purchaser and each person, if any, who controls an
Initial Purchaser within the meaning of the Securities Act and the Exchange Act shall have the same
rights to contribution as such 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 Purchasers 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 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 Purchasers 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 Purchasers 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 Purchasers 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



27









 







Company or any Guarantor to any the Initial Purchaser, except that the Company and the
Guarantors shall be obligated to reimburse the expenses of the Initial Purchasers pursuant to
Sections 4 and 6 hereof, (ii) any 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 several Initial Purchasers set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation made by or on
behalf of any 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 Purchasers:


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.




     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




28









 







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 any of the Initial Purchasers merely by reason of such
purchase.



     SECTION 14. Authority of the Representative. Any action by the Initial Purchasers hereunder
may be taken by Banc of America Securities LLC on behalf of the Initial Purchasers, and any such
action taken by Banc of America Securities LLC shall be binding upon the Initial Purchasers.



     SECTION 15. 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 16. 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 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



29









 







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 17. Default of One or More of the Several Initial Purchasers. If any one or more of
the several Initial Purchasers shall fail or refuse to purchase Securities that it or they have
agreed to purchase hereunder on the Closing Date, and the aggregate number of Securities which such
defaulting Initial Purchaser or Initial Purchasers agreed but failed or refused to purchase does
not exceed 10% of the aggregate number of the Securities to be purchased on such date, the other
Initial Purchasers shall be obligated, severally, in the proportions that the number of Securities
set forth opposite their respective names on Schedule A bears to the aggregate number of Securities
set forth opposite the names of all such non-defaulting Initial Purchasers, or in such other
proportions as may be specified by the Initial Purchasers with the consent of the non-defaulting
Initial Purchasers, to purchase the Securities which such defaulting Initial Purchaser or Initial
Purchasers agreed but failed or refused to purchase on the Closing Date. If any one or more of the
Initial Purchasers shall fail or refuse to purchase Securities and the aggregate number of
Securities with respect to which such default occurs exceeds 10% of the aggregate number of
Securities to be purchased on the Closing Date, and arrangements satisfactory to the Initial
Purchasers and the Company for the purchase of such Securities are not made within 48 hours after
such default, this Agreement shall terminate without liability of any party to any other party
except that the provisions of Sections 4, 6, 8 and 9 hereof shall at all times be effective and
shall survive such termination. In any such case either the Initial Purchasers or the Company
shall have the right to postpone the Closing Date, as the case may be, but in no event for longer
than seven days in order that the required changes, if any, to the Final Offering Memorandum or any
other documents or arrangements may be effected.



     As used in this Agreement, the term “Initial Purchaser” shall be deemed to include any person
substituted for a defaulting Initial Purchaser under this Section 17. Any action taken under this
Section 17 shall not relieve any defaulting Initial Purchaser from liability in respect of any
default of such Initial Purchaser under this Agreement.



     SECTION 18. 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 several Initial Purchasers, 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 each 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) no Initial Purchaser has assumed or will 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 such Initial Purchaser
has advised or is currently advising the Company or the Guarantors on



30









 







other matters) or any other obligation to the Company and the Guarantors except the
obligations expressly set forth in this Agreement; (iv) the several Initial Purchasers and their
respective 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 several Initial Purchasers have no
obligation to disclose any of such interests by virtue of any fiduciary or advisory relationship;
and (v) the Initial Purchasers have 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 several Initial Purchasers, 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 several Initial Purchasers with respect to any breach or alleged breach of fiduciary
duty.



     SECTION 19. 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
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.



31









 





     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/ W. Scott Wenhold
 	 
	 	 	Name:  	W. Scott Wenhold 	 
	 	 	Title:  	Vice President and Treasurer 	 
	 
	 	GRAPHIC PACKAGING CORPORATION

 	 
	 	By:  	/s/ W. Scott Wenhold
 	 
	 	 	Name:  	W. Scott Wenhold 	 
	 	 	Title:  	Vice President and Treasurer 	 
	 
	 	GRAPHIC PACKAGING HOLDING COMPANY

 	 
	 	By:  	/s/ W. Scott Wenhold
 	 
	 	 	Name:  	W. Scott Wenhold 	 
	 	 	Title:  	Vice President and Treasurer 	 



32









 






	 	 	 	 	 



	 	 	 	 	 
	 	GRAPHIC PACKAGING CORPORATION

GRAPHIC PACKAGING HOLDING COMPANY

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/ W. Scott Wenhold
 	 
	 	 	Name:  	W. Scott Wenhold 	 
	 	 	Title:  	Vice President and Treasurer 	 



1









 






	 	 	 	 	 




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



Banc of America Securities LLC

J.P. Morgan Securities Inc.

Goldman, Sachs & Co.




	 	 	 	 	 
	By:  	Banc of America Securities LLC
 	 	 
	 	 	 
	By:  	/s/ William H. Pegler, Jr.
 	 	 
	 	Name:  	William H. Pegler, Jr. 	 	 
	 	Title:  	Principal 	 	 



1









 








SCHEDULE A




	 	 	 	 	 
	 	 	Aggregate	 
	 	 	Principal	 
	 	 	Amount of	 
	 	 	Notes to	 
	Initial Purchasers	 	be Purchased	 
	Banc of America Securities LLC
	 	$	98,000,000	 
	J.P. Morgan Securities Inc.
	 	 	98,000,000	 
	Goldman, Sachs & Co.
	 	 	49,000,000	 
	 
	 	 	 	 
	Total
	 	$	245,000,000	 
	 
	 	 	 






 









 






SCHEDULE B




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