EXECUTION VERSION
TEMPLE-INLAND INC. REMARKETING AGREEMENT
REMARKETING AGREEMENT, dated as of February 14, 2005
(this "Agreement") by and between
TEMPLE-INLAND INC., a Delaware
corporation (the "Company"), JPMORGAN CHASE
BANK, N.A., not
individually but solely as Purchase
Contract Agent (the "Purchase
Contract Agent") and as attorney-in-fact of
the Holders of
Purchase Contracts (as defined in the
Purchase Contract Agreement
(as defined herein)), and Citigroup Global
Markets Inc. and UBS
Securities LLC, as the Remarketing Agents
(the "Remarketing
Agents").
WITNESSETH:
WHEREAS, the Company issued $345,000,000 aggregate
stated amount of its Upper DECS (the "Upper
DECS") under the
Purchase Contract Agreement, dated as of
May 1, 2002, by and
between the Purchase Contract Agent and the
Company (the
"Purchase Contract Agreement"); and
WHEREAS, the Company issued concurrently in connection
with the issuance of the Upper DECS
$345,000,000 aggregate
principal amount of 6.42% Senior Notes due
2007 (the "Notes") of
the Company; and
WHEREAS, the Notes forming a part of the Upper DECS
have been pledged pursuant to the Pledge
Agreement (the "Pledge
Agreement"), dated as of May 1, 2002, by
and among the Company,
J.P. Morgan Trust Company, National
Association (successor in
interest to Bank One Trust Company, N.A.),
a national banking
association, as collateral agent (the
"Collateral Agent"), and
the Purchase Contract Agent, to secure the
obligations of Holders
of Upper DECS under the related Purchase
Contract on the Stock
Purchase Date; and
WHEREAS, the Remarketing Agents will attempt on
February 14, 2005 (the "Remarketing Date")
to remarket all of
(i) the Notes of Holders of Upper DECS,
other than the Notes of
Holders of Upper DECS who elect not to
participate in the
remarketing, and (ii) the Separate Notes of
Holders who elect to
participate in the remarketing
(collectively, the "Remarketing"),
pursuant respectively to the procedures set
forth in
Section 5.4(b) of the Purchase Contract
Agreement and
Section 4.5(d) of the Pledge Agreement
(each of which Sections is
incorporated herein by reference); and
WHEREAS, in the event the remarketing on the
Remarketing Date is unsuccessful, the
Remarketing Agents will
remarket the Notes to be included in the
remarketing on each of
the two Business Days immediately following
the Remarketing Date,
and, if necessary, will attempt to remarket
such Notes on each of
the three Business Days immediately
preceding April 6, 2005 and,
if necessary, will further attempt to
remarket such Notes on each
of the three Business Days immediately
preceding the Stock
Purchase Date; and
WHEREAS, in the event of a successful remarketing on
the Remarketing Date or any Subsequent
Remarketing Date, as the
case may be, the applicable interest rate
on the Notes will be
reset on such Remarketing Date or on any
Subsequent Remarketing
Date to the Reset Rate to be determined by
the Remarketing Agents
such that the then current aggregate market
value of the Notes
<PAGE>2
will equal at least 100.50% of the
Remarketing Value (as
described in the Purchase Contract
Agreement) as of such
Remarketing Date or Subsequent Remarketing
Date, provided that in
the determination of such Reset Rate, the
Company shall, if
applicable, limit the Reset Rate to the
maximum rate permitted by
applicable law; and
WHEREAS, the Company has requested Citigroup Global
Markets Inc. and UBS Securities LLC to act
as the Remarketing
Agents, and as such to perform the services
described herein; and
WHEREAS, each of Citigroup Global Markets Inc. and UBS
Securities LLC is willing to act as a
Remarketing Agent and as
such to perform such duties on the terms
and conditions expressly
set forth herein;
NOW, THEREFORE, for and in consideration of the
covenants herein made, and subject to the
conditions herein set
forth, the parties hereto agree as
follows:
Section 1. Definitions.
Certain terms used herein are defined in Section 22
hereof. Capitalized terms used and not
defined in this
Agreement, in the recitals hereto or in the
paragraph preceding
such recitals shall have the meanings
assigned to them in the
Purchase Contract Agreement or, if not
therein defined, the
Pledge Agreement.
Section 2. Appointment and
Obligations of the
Remarketing Agents.
(a) The Company hereby appoints each
of Citigroup Global Markets
Inc. and UBS Securities LLC and each of
Citigroup Global Markets
Inc. and UBS Securities LLC, acting
severally and not jointly,
hereby accepts such appointment, (i) as
exclusive Remarketing
Agents to determine, in consultation with
the Company, in the
manner provided for herein, in the
Indenture (as in effect on the
date of this Remarketing Agreement) with
respect to the Notes,
and in the Purchase Contract Agreement, the
Reset Rate that, in
the opinion of the Remarketing Agents, will
be reasonable and
consistent with market practice at the time
of remarketing, and,
when applied to the Notes (assuming, even
if not true, that all
of the Notes are included in the
remarketing), enable the then
current aggregate market value of the Notes
to have a value equal
to at least 100.50% of the Remarketing
Value as of the
Remarketing Date or as of any Subsequent
Remarketing Date, as the
case may be, provided that the Company, by
notice to the
Remarketing Agents prior to (A) the tenth
Business Day preceding
the Remarketing Date, with respect to any
remarketing to occur on
either the Remarketing Date or the two
Business Days immediately
following such Remarketing Date, (B) the
thirteenth Business Day
preceding April 6, 2005 with respect to any
remarketing to occur
on any of the three Business Days
immediately preceding April 6,
2005, or (C) the thirteenth Business Day
preceding the Stock
Purchase Date with respect to any
remarketing to occur on any of
the three Business Days immediately
preceding such Stock Purchase
Date, shall, if applicable, limit the Reset
Rate so that it does
not exceed the maximum rate permitted by
applicable law, and
(ii) as the exclusive Remarketing Agents
(subject to the right of
such Remarketing Agents to appoint
additional remarketing agents
hereunder as described below) to remarket
the Notes to be
included in the remarketing on the
Remarketing Date or any
Subsequent Remarketing Date, as the case
may be. The
Company
<PAGE>3
agrees that the Remarketing Agents shall
have the right, on
15 Business Days notice to the Company, to
appoint one or more
additional remarketing agents so long as
any such additional
remarketing agents shall be reasonably
acceptable to the Company.
Upon any such appointment, the parties
shall enter into an
appropriate amendment to this Agreement to
reflect the addition
of any such remarketing agent.
(b) Subject to the terms and
conditions set forth herein, the
Remarketing Agents shall use reasonable
efforts to (i) remarket
on the Remarketing Date the Notes that the
Purchase Contract
Agent or the Custodial Agent shall have
notified the Remarketing
Agents are to be remarketed at a Reset Rate
such that the then
current aggregate market value of the Notes
is equal to at least
100.50% of the Remarketing Value, and (ii)
in the event the
Remarketing Agents cannot establish such a
Reset Rate on the
Remarketing Date, attempt to remarket such
Notes on each of the
two Business Days immediately following the
Remarketing Date and,
if necessary, on each of the three Business
Days immediately
preceding April 6, 2005, and, if necessary,
on each of the three
Business Days immediately preceding the
Stock Purchase Date, in
each case at a Reset Rate such that the
then current aggregate
market value of the Notes is equal to at
least 100.50% of the
Remarketing Value, and (iii) in the event
of a Last Failed
Remarketing, promptly return the Separate
Notes, if any, included
in such Last Failed Remarketing to the
Collateral Agent to be
held by the Collateral Agent in accordance
with Section 4.5(b) of
the Pledge Agreement (which Section is
incorporated herein by
reference). After deducting the fee specified
in Section 3
below, the remaining proceeds of any such
remarketing, together
with the Agent-purchased Treasury
Consideration, shall be
delivered to the Purchase Contract Agent in
accordance with
Section 4.5(a) of the Pledge Agreement
(which Section is
incorporated herein by reference) and
Section 5.4(b) of the
Purchase Contract Agreement. The right of each Holder of
Upper
DECS or Separate Notes to have Notes
included in any remarketing
shall be limited to the extent that (i) the
Remarketing Agents
conduct a remarketing on the Remarketing
Date or on any
Subsequent Remarketing Date, as the case
may be, pursuant to the
terms of this Agreement, (ii) the Notes
included in a remarketing
have not been called for redemption
pursuant to the Purchase
Contract Agreement, (iii) the Remarketing
Agents are able to find
a purchaser or purchasers for the Notes
included in a remarketing
at a Reset Rate such that the then current
aggregate market value
of the Notes is equal to at least 100.50%
of the Remarketing
Value, and (iv) such purchaser or
purchasers deliver the purchase
price therefor to the Remarketing Agents as
and when required.
(c) The Company and the Remarketing
Agents agree that any
successful Remarketing of the Notes will
settle no later than
10:00AM, New York City time on the third
Business Day following
the Remarketing Date, or Subsequent
Remarketing Date, as
applicable, which time may be postponed by
agreement between the
Remarketing Agents and the Company (such
date and time of
settlement for the Notes being herein
called, the "Closing
Date").
(d) It is understood and agreed that
the Remarketing Agents
shall not have any obligation whatsoever to
purchase any Notes,
whether in a remarketing held on the
Remarketing Date or on any
Subsequent Remarketing Date or otherwise,
and shall in no way be
obligated to provide funds to make payment
upon tender of Notes
for remarketing or to otherwise expend or
risk their own funds or
incur or be exposed to financial liability
in the performance of
their respective duties under this
Agreement. The Company
shall
not be obligated in any case to provide
funds to make payment
upon delivery of Notes for remarketing.
<PAGE>4
Section 3.
Fees.
In the event of a successful remarketing, the
Remarketing Agents shall retain as a
remarketing fee (the
"Remarketing Fee") an amount not exceeding
25 basis points
(0.25%) of the total proceeds received in
connection with any
such remarketing in accordance with Section
5.4(b)(ii) of the
Purchase Contract Agreement.
Section 4.
Representations and Warranties. The Company
represents and warrants to, and agrees
with, each Remarketing
Agent (i) on and as of the date hereof,
(ii) on and as of the
date any Remarketing Prospectus is first
distributed in
connection with the Remarketing and (iii)
on and as of the
Closing Date, that:
(a) The Company meets the requirements
for use of Form S-3 under
the Act and has prepared and filed with the
Commission a
registration statement (file number
333-84120) on Form S-3,
including the related Base Prospectus, for
registration under the
Securities Act of the Remarketing of the
Notes. The Company
may
have filed one or more amendments thereto,
including the related
Base Prospectus, each of which has
previously been furnished to
you. The Company will next file with
the Commission the
Remarketing Prospectus in accordance with
Rules 430A and 424(b).
The Company has included in such
registration statement, as
amended at the Effective Date, all
information (other than
Rule 430A Information) required by the Act
and the rules
thereunder to be included in such
registration statement and the
Remarketing Prospectus. As filed, the Remarketing
Prospectus
shall contain all Rule 430A Information,
together with all other
such required information, and, except to
the extent the
Remarketing Agents shall agree in writing
to a modification,
shall be in all substantive respects in the
form furnished to you
prior to the Execution Time or, to the
extent not completed at
the Execution Time, shall contain only such
specific additional
information and other changes (beyond that
contained in the
latest Preliminary Remarketing Prospectus)
as the Company has
advised you, prior to the Execution Time,
will be included or
made therein.
(b) On the Effective Date, the
Registration Statement did, and
when the Remarketing Prospectus is first
filed (if required) in
accordance with Rule 424(b), and on the
Closing Date, the
Remarketing Prospectus (and any supplement
thereto) will, comply
in all material respects with the
applicable requirements of the
Act and the Exchange Act and the respective
rules thereunder; on
the Effective Date and at the Execution
Time, the Registration
Statement did not or will not contain any
untrue statement of a
material fact or omit to state any material
fact required to be
stated therein or necessary in order to
make the statements
therein not misleading; and, on the date of
any filing pursuant
to Rule 424(b) and on the Closing Date and
any settlement date,
the Remarketing Prospectus (together with
any supplement thereto)
will not include any untrue statement of a
material fact or omit
to state a material fact necessary in order
to make the
statements therein, in the light of the
circumstances under which
they were made, not misleading; provided,
however, that the
Company makes no representations or
warranties as to the
information contained in or omitted from
the Registration
Statement or the Remarketing Prospectus (or
any supplement
thereto) in reliance upon and in conformity
with information
furnished in writing to the Company by or
on behalf of the
Remarketing Agents.
(c) Each of the Company and the
subsidiaries listed on Schedule
I attached hereto (each a "Significant
Subsidiary" and, together,
the "Significant Subsidiaries") has been
duly incorporated and is
<PAGE>5
validly existing as a corporation in good
standing under the laws
of the jurisdiction in which it is
chartered or organized with
full corporate power and authority to own
or lease, as the case
may be, and to operate its properties and
conduct its business as
described in the Remarketing Prospectus,
and is duly qualified to
do business as a foreign corporation and is
in good standing
under the laws of each jurisdiction which
requires such
qualification, except where the failure to
so qualify or be in
good standing could not be reasonably
expected to have a material
adverse effect on the condition (financial
or otherwise),
prospects, earnings, business or properties
of the Company and
its subsidiaries, taken as a whole, whether
or not arising from
transactions in the ordinary course of
business (a "Material
Adverse Effect").
(d) All the outstanding shares of
capital stock of each
Significant Subsidiary have been duly and
validly authorized and
issued and are fully paid and
nonassessable, and, except as
otherwise set forth in the Remarketing
Prospectus, all
outstanding shares of capital stock of the
Significant
Subsidiaries are owned by the Company
either directly or through
wholly owned subsidiaries free and clear of
any perfected
security interest or any other security
interests, claims, liens
or encumbrances.
(e) The Company's authorized equity
capitalization is as set
forth in the Remarketing Prospectus; the
capital stock of the
Company conforms in all material respects
to the description
thereof contained in the Remarketing
Prospectus; the Notes have
been duly and validly authorized, and
constitute valid and
legally binding obligations of the Company,
enforceable against
the Company in accordance with their terms,
except as
enforceability may be limited by applicable
bankruptcy,
reorganization, insolvency, moratorium,
fraudulent conveyance or
other laws affecting creditors' rights
generally from time to
time in effect and to general principles of
equity (regardless of
whether enforceability is considered at law
or in equity), and
entitled to the benefits of, the Indenture;
and, except as set
forth in the Remarketing Prospectus
(exclusive of any supplement
thereto), the Notes will be delivered free
and clear of all
liens, encumbrances, equities and claims on
the Closing Date; and
the Notes conform in all material respects
to the description
thereof contained in the Remarketing
Prospectus.
(f) There is no franchise, contract or
other document of a
character required to be described in the
Registration Statement
or Remarketing Prospectus, or to be filed
as an exhibit thereto,
which is not described or filed as
required.
(g) This Remarketing Agreement has
been duly authorized,
executed and delivered by the Company.
(h) The Indenture has been duly
authorized, executed and
delivered by the Company and is a valid and
legally binding
agreement of the Company, enforceable
against the Company in
accordance with its terms, except as
enforceability may be
limited by applicable bankruptcy,
reorganization, insolvency,
moratorium, fraudulent conveyance or other
laws affecting
creditors' rights generally from time to
time in effect and to
general principles of equity (regardless of
whether
enforceability is considered in a
proceeding at law or in
equity), and conforms in all material
respects to the description
thereof in the Remarketing Prospectus.
(i) The Company is not and, after
giving effect to the
Remarketing of the Notes and the
consummation of the transactions
contemplated by the Remarketing Prospectus,
will not be an
<PAGE>6
"investment company" as defined in the
Investment Company Act of
1940, as amended.
(j) No consent, approval,
authorization, filing with or order of
any court or governmental agency or body is
required in
connection with the transactions
contemplated herein, except such
as have been obtained under the Act, the
Exchange Act and the
Trust Indenture Act and such as may be
required under the blue
sky laws of any jurisdiction in connection
with the Remarketing
of the Notes by the Remarketing Agents in
the manner contemplated
herein and in the Remarketing
Prospectus.
(k) Neither the Remarketing of the
Notes nor the consummation of
any other of the transactions herein
contemplated nor the
fulfillment of the terms hereof will
conflict with, result in a
breach or violation or imposition of any
lien, charge or
encumbrance upon any property or assets of
the Company or any of
the Significant Subsidiaries pursuant to,
(i) the charter or by-
laws of the Company or any of the
Significant Subsidiaries,
(ii) the terms of any indenture, contract,
lease, mortgage, deed
of trust, note agreement, loan agreement or
other agreement,
obligation, condition, covenant or
instrument to which the
Company or any of the Significant
Subsidiaries is a party or
bound or to which its or their property is
subject, or (iii) any
statute, law, rule, regulation, judgment,
order or decree
applicable to the Company or any of the
Significant Subsidiaries
of any court, regulatory body,
administrative agency,
governmental body, arbitrator or other
authority having
jurisdiction over the Company or any of the
Significant
Subsidiaries or any of its or their
properties, except, with
respect to clauses (ii) or (iii) above, for
such conflicts,
breaches, defaults, liens, charges,
encumbrances or violations
that could not be reasonably be expected to
result in a Material
Adverse Effect or to materially adversely
affect the performance
of this Agreement or the consummation of
the transactions
contemplated hereby.
(l) The consolidated historical
financial statements of the
Company and its consolidated subsidiaries
incorporated by
reference in the Remarketing Prospectus and
the Registration
Statement present fairly in all material
respects the financial
condition, results of operations and cash
flows of the Company as
of the dates and for the periods indicated,
comply as to form
with the applicable accounting requirements
of the Act (other
than such changes to the form of
presentation as may result from
the letters received by the Company from
the SEC, dated January
27, 2005 and February 10, 2005, and related
discussions) and have
been prepared in conformity with generally
accepted accounting
principles applied on a consistent basis
throughout the periods
involved (except as otherwise noted
therein). The
selected
financial data set forth under the caption
"Capitalization" in
the Remarketing Prospectus fairly present,
on the basis stated in
the Remarketing Prospectus, the information
included therein.
(m) No action, suit or proceeding by
or before any court or
governmental agency, authority or body or
any arbitrator
involving the Company or any of its
subsidiaries or its or their
property is pending or, to the best
knowledge of the Company,
threatened that (i) could reasonably be
expected to have a
material adverse effect on the performance
of this Agreement or
the consummation of any of the transactions
contemplated hereby
or (ii) could reasonably be expected to
have a Material Adverse
Effect, except as set forth in or
contemplated in the Remarketing
Prospectus (exclusive of any supplement
thereto).
<PAGE>7
(n) Each of the Company and each of
the Significant Subsidiaries
owns or leases all such properties as are
necessary to the
conduct of its operations as presently
conducted.
(o) Neither the Company nor any
Significant Subsidiary is in
violation or default of (i) any provision
of its charter or
bylaws, (ii) the terms of any indenture,
contract, lease,
mortgage, deed of trust, note agreement,
loan agreement or other
agreement, obligation, condition, covenant
or instrument to which
it is a party or bound or to which its
property is subject, or
(iii) any statute, law, rule, regulation,
judgment, order or
decree of any court, regulatory body,
administrative agency,
governmental body, arbitrator or other
authority having
jurisdiction over the Company or such
Significant Subsidiary or
any of its properties, as applicable,
except, with respect to
clauses (ii) and (iii) above, for such
violations or defaults
that could not reasonably be expected to
have a Material Adverse
Effect.
(p) Ernst & Young, LLP, who have
audited certain financial
statements of the Company and its
consolidated subsidiaries and
delivered their report with respect to the
audited consolidated
financial statements and schedules
incorporated by reference in
the Remarketing Prospectus, is an
independent registered public
accounting firm as required by the Act and
the rules and
regulations of the Commission
thereunder.
(q) There are no material transfer
taxes or other similar fees
or charges under Federal law or the laws of
any state, or any
political subdivision thereof, required to
be paid in connection
with the execution and delivery of this
Agreement or the
Remarketing of the Notes.
(r) No labor problem or dispute with
the employees of the
Company or any of its Significant
Subsidiaries exists or, to the
knowledge of the Company, is threatened or
imminent, except those
that could not be reasonably expected to
result in a Material
Adverse Effect or to materially adversely
affect the performance
of this Remarketing Agreement or the
consummation of the
transactions contemplated hereby.
(s) No Significant Subsidiary of the
Company is currently
prohibited, directly or indirectly, from
paying any dividends to
the Company, from making any other
distribution on such
subsidiary's capital stock, from repaying
to the Company any
loans or advances to such subsidiary from
the Company or from
transferring any of such subsidiary's
property or assets to the
Company or any other subsidiary of the
Company, except as
described in or contemplated by the
Remarketing Prospectus.
(t) The Company and its consolidated
subsidiaries possess all
licenses, certificates, permits and other
authorizations issued
by the appropriate federal, state or
foreign regulatory
authorities necessary to conduct their
respective businesses, and
neither the Company nor any such subsidiary
has received any
notice of proceedings relating to the
revocation or modification
of any such certificate, authorization or
permit which, singly or
in the aggregate, if the subject of an
unfavorable decision,
ruling or finding, would have a Material
Adverse Effect, except
as set forth in or contemplated in the
Remarketing Prospectus
(exclusive of any supplement thereto).
(u) The Company and each of its
subsidiaries are in compliance
in all material respects with all
applicable laws and regulations
administered by the Office of Thrift
Supervision (the "OTS") and
<PAGE>8
any other federal or state financial
institution regulatory
authority with jurisdiction over the
Company or any of its
subsidiaries (collectively with the OTS,
"Bank Regulatory
Authorities"), other than where such
failures to comply would not
have a Material Adverse Effect, except as
described in the
Prospectus or any filing under the Exchange
Act incorporated by
reference therein. Neither the Company nor any of
its
subsidiaries is a party to any written
agreement or memorandum of
understanding with, or a party to any
commitment letter or
similar undertaking to, or is subject to
any order or directive
by, or is a recipient of any extraordinary
supervisory letter, or
has adopted any board resolutions at the
request of, any Bank
Regulatory Authority which restricts
materially the conduct of
its business, or in any manner relates to
its capital adequacy,
credit policies, regulatory compliance,
anti-money laundering
efforts or management, nor have any of them
been advised by any
Bank Regulatory Authority that it is
contemplating issuing or
requesting (or is considering the
appropriateness of issuing or
requesting) any such order, decree,
agreement, memorandum of
understanding, extraordinary supervisory
letter, commitment
letter or similar submission, except for
the Consent Order
entered into with the OTS as described in
the Company's Form 8-K
dated as of December 22, 2004 filed with
the Commission and
submissions made to the OTS thereunder.
(v) The Company has not taken,
directly or indirectly, any
action that has constituted or that was
designed to or might
reasonably be expected to cause or result
in, under the Exchange
Act or otherwise, the stabilization or
manipulation of the price
of any security of the Company to
facilitate the Remarketing of
the Notes.
(w) The Company and its Significant
Subsidiaries (i) are in
compliance with any and all applicable
foreign, federal, state
and local laws and regulations relating to
the protection of
human health and safety, the environment or
hazardous or toxic
substances or wastes, pollutants or
contaminants ("Environmental
Laws"), (ii) have received and are in
compliance with all
permits, licenses or other approvals
required of them under
applicable Environmental Laws to conduct
their respective
businesses and (iii) have not received
notice of any actual or
potential liability for the investigation
or remediation of any
disposal or release of hazardous or toxic
substances or wastes,
pollutants or contaminants, except where
such non-compliance with
Environmental Laws, failure to receive
required permits, licenses
or other approvals, or liability would not,
individually or in
the aggregate, have a Material Adverse
Effect, except as set
forth in or contemplated in the Remarketing
Prospectus (exclusive
of any supplement thereto).
(x) The Significant Subsidiaries are
the only significant
subsidiaries of the Company as defined by
Rule 1-02(w) of
Regulation S-X.
(y) Except as set forth in or
contemplated in the Remarketing
Prospectus (exclusive of any supplement
thereto) or publicly
announced, no "nationally recognized
statistical rating
organization" (as defined for purposes of
Rule 436(g) under the
Act) has (A) taken any action to, or to the
Company's knowledge,
threatened to decrease the rating of any
debt securities of the
Company or any of its subsidiaries or (B)
given any notice of any
intended or potential decrease in any such
rating or of a
possible change in any such rating that
does not indicate the
direction of the possible change.
<PAGE>9
Any certificate
signed by any officer of the Company and
delivered to the Remarketing Agents or
counsel for the
Remarketing Agents in connection with the
Remarketing of the
Notes shall be deemed a representation and
warranty by the
Company, as to matters covered thereby, to
each Remarketing
Agent.
Section 5.
Agreements. The
Company agrees with the several
Remarketing Agents that:
(a) The Company will
use its best efforts to cause the
Registration Statement, if not effective at
the Execution Time,
and any amendment thereof, to become
effective. Prior to
the
termination of the Remarketing of the
Notes, the Company will not
file any amendment of the Registration
Statement or supplement to
the Remarketing Prospectus or any Rule
462(b) Registration
Statement unless the Company has furnished
you a copy for your
review prior to filing and will not file
any such proposed
amendment or supplement to which you
reasonably object.
Subject
to the foregoing sentence, if the
Registration Statement has
become or becomes effective pursuant to
Rule 430A, or filing of
the Remarketing Prospectus is otherwise
required under
Rule 424(b), the Company will cause the
Remarketing Prospectus,
properly completed, and any supplement
thereto to be filed with
the Commission pursuant to the applicable
paragraph of
Rule 424(b) within the time period
prescribed and will provide
evidence satisfactory to the Remarketing
Agents of such timely
filing. The Company will promptly advise
the Remarketing Agents
(1) when the Registration Statement, if not
effective at the
Execution Time, shall have become
effective, (2) when the
Remarketing Prospectus, and any supplement
thereto, shall have
been filed (if required) with the
Commission pursuant to Rule
424(b) or when any Rule 462(b) Registration
Statement shall have
been filed with the Commission, (3) when,
prior to termination of
the Remarketing of the Notes, any amendment
to the Registration
Statement shall have been filed or become
effective, (4) of any
request by the Commission or its staff for
any amendment of the
Registration Statement, or any Rule 462(b)
Registration
Statement, or for any supplement to the
Remarketing Prospectus or
for any additional information, (5) of the
issuance by the
Commission of any stop order suspending the
effectiveness of the
Registration Statement or the institution
or threatening of any
proceeding for that purpose and (6) of the
receipt by the Company
of any notification with respect to the
suspension of the
qualification of the Notes for Remarketing
in any jurisdiction or
the institution or threatening of any
proceeding for such
purpose. The Company will use its best
efforts to prevent the
issuance of any such stop order or the
suspension of any such
qualification and, if issued, to obtain as
soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus
relating to the Notes is
required to be delivered under the Act, any
event occurs as a
result of which the Remarketing Prospectus
as then supplemented
would include any untrue statement of a
material fact or omit to
state any material fact necessary to make
the statements therein
in the light of the circumstances under
which they were made not
misleading, or if it shall be necessary to
amend the Registration
Statement or supplement the Remarketing
Prospectus to comply with
the Act or the Exchange Act or the
respective rules thereunder,
the Company promptly will (1) notify the
Remarketing Agents of
such event, (2) prepare and file with the
Commission, subject to
the second sentence of paragraph (a) of
this Section 5, an
amendment or supplement which will correct
such statement or
omission or effect such compliance and (3)
supply any
supplemented Remarketing Prospectus to you
in such quantities as
you may reasonably request.
<PAGE>10
(c) As soon as practicable, the
Company will make generally
available to its security holders and to
the Remarketing Agents
an earnings statement or statements of the
Company and its
subsidiaries that will satisfy the
provisions of Section 11(a) of
the Act and Rule 158 under the Act.
(d) The Company will furnish
