Exhibit 1.1
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Temple-Inland Inc.
$500,000,000
6.375% Senior Notes due 2016
6.625% Senior Notes due 2018
Underwriting Agreement
New York, New York
December 2, 2005
Citigroup Global Markets Inc.
Goldman, Sachs & Co.,
as Representatives of the several
Underwriters,
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
Temple-Inland Inc., a corporation organized under the laws of
the
State of Delaware (the "Company"), proposes
to sell to the several underwriters
named in Schedule I hereto (the
"Underwriters"), for whom you (the
"Representatives") are acting as
representatives, the principal amount of its
securities identified in Schedule I hereto
(the "Securities"), to be issued
under an indenture, dated as of September
1, 1986, between the Company and
JPMorgan Chase Bank, N.A. (formerly known
as The Chase Manhattan Bank and
Chemical Bank), as Trustee (the "Trustee"),
as amended by the First Supplemental
Indenture, dated as of April 15, 1988, the
Second Supplemental Indenture, dated
as of December 27, 1990, and the Third
Supplemental Indenture, dated as of May
9, 1991 (as so amended, the
"Indenture").
To the extent there are no additional Underwriters listed on
Schedule
I other than you, the term Representatives
as used herein shall mean you, as
Underwriters, and the terms Representatives
and Underwriters shall mean either
the singular or plural as the context
requires. Any reference herein to the
Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus
or the Final Prospectus shall be deemed to
refer to and include the documents
incorporated by reference therein pursuant
to Item 12 of Form S-3 that were
filed under the Exchange Act on or before
the Effective Date of the Registration
Statement or the issue date of the Basic
Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, as the
case may be; and any reference herein
to the terms "amend", "amendment" or
"supplement" with respect to the
Registration Statement, any Preliminary
Final Prospectus or the Final Prospectus
shall be deemed to refer to and include the
filing of any document under the
Exchange Act deemed to be incorporated
therein by reference or any filing of a
Preliminary Final Prospectus or Final
Prospectus, in each case after the
Effective Date of the Registration
Statement, or the issue date of the Basic
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Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, as the
case may be. Certain terms used herein are
defined in Section 19 hereof.
1. Representations and Warranties. The Company represents and
warrants
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to, and agrees with, each Underwriter as
set forth below in this Section 1.
(a) The Company meets the requirements for use of Form S-3
under
the Act and has prepared and filed with the Commission an
automatic
shelf registration statement, as defined in Rule 405 (the file
number
of which is set forth in Schedule I hereto) on Form S-3, including
a
related basic prospectus, for registration under the Act of the
offering and sale of the Securities. Such Registration
Statement,
including any amendments thereto filed prior to the Execution
Time
became effective upon filing. The Company may have filed with
the
Commission, as part of an amendment to the Registration Statement
or
pursuant to Rule 424(b), one or more Preliminary Final
Prospectuses,
each of which has previously been furnished to you. The Company
will
file with the Commission a final prospectus supplement relating to
the
Securities in accordance with Rule 424(b). As filed, such final
prospectus supplement shall contain all information required by
the
Act and the rules thereunder, and, except to the extent the
Representatives shall agree in writing to a modification, shall be
in
all substantive respects in the form furnished to you prior to
the
Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the
Basic
Prospectus and any Preliminary Final 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 Final Prospectus is first filed (if required) in
accordance
with Rule 424(b) and on the Closing Date (as defined herein),
the
Final Prospectus (and any supplement thereto) will, comply in
all
material respects with the applicable requirements of the Act,
the
Exchange Act and the Trust Indenture Act and the respective
rules
thereunder; on the Effective Date and at the Execution Time,
the
Registration Statement did 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 Effective Date and on the Closing Date the
Indenture did or will comply in all material respects with the
applicable requirements of the Trust Indenture Act and the
rules
thereunder; on the date of any filing pursuant to Rule 424(b) and
on
the Closing Date, the Final 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
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no representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification (T-1) under the Trust Indenture Act
or
(ii) the information contained in or omitted from the
Registration
Statement or the Final Prospectus (or any supplement thereto)
in
reliance upon and in conformity with information furnished in
writing
to the Company by or on behalf of any Underwriter through the
Representatives specifically for inclusion in the Registration
Statement or the Final Prospectus (or any supplement thereto),
it
being understood and agreed that the only such information
furnished
by or on behalf of any Underwriters consists of the information
described as such in Section 9 hereof.
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(c) The Disclosure Package does 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 under which they were made, not misleading. The
preceding sentence does not apply to statements in or omissions
from
the Disclosure Package based upon and in conformity with
written
information furnished to the Company by any Underwriter through
the
Representatives specifically for use therein, it being understood
and
agreed that the only such information furnished by or on behalf of
any
Underwriter consists of the information described as such in
Section 9
hereof.
(d) (i) At the time of filing the Registration Statement, (ii)
at
the time of the most recent amendment thereto for the purposes
of
complying with Section 10(a)(3) of the Act (whether such amendment
was
by post-effective amendment, incorporated report filed pursuant
to
Sections 13 or 15(d) of the Exchange Act or form of prospectus),
(iii)
at the time the Company or any person acting on its behalf (within
the
meaning, for this clause only, of Rule 163(c)) made any offer
relating
to the Securities in reliance on the exemption in Rule 163, and
(iv)
at the Execution Time (with such date being used as the
determination
date for purposes of this clause (iv)), the Company was or is (as
the
case may be) a "well-known seasoned issuer" as defined in Rule
405.
The Company agrees to pay the fees required by the Commission
relating
to the Securities within the time required by Rule 456(b)(1)
without
regard to the proviso therein and otherwise in accordance with
Rules
456(b) and 457(r).
(e) (i) At the earliest time after the filing of the
Registration
Statement that the Company or another offering participant made a
bona
fide offer (within the meaning of Rule 164(h)(2)) of the
Securities
and (ii) as of the Execution Time (with such date being used as
the
determination date for purposes of this clause (ii)), the Company
was
not and is not an Ineligible Issuer (as defined in Rule 405),
without
taking account of any determination by the Commission pursuant to
Rule
405 that it is not necessary that the Company be considered an
Ineligible Issuer.
(f) Each Issuer Free Writing Prospectus does not include any
information that conflicts with the information contained in
the
Registration Statement, including any document incorporated
therein
and any prospectus supplement deemed to be a part thereof that has
not
been superseded or modified. If there occurs an event or
development
as a result of which the Disclosure Package would include an
untrue
statement of a material fact or would omit to state a material
fact
necessary in order to make the statements therein, in the light of
the
circumstances then prevailing, not misleading, the Company will
notify
promptly the Representatives so that any use of the Disclosure
Package
may cease until it is amended or supplemented. The foregoing
two
sentences do not apply to statements in or omissions from the
Disclosure Package based upon and in conformity with written
information furnished to the Company by any Underwriter through
the
Representatives specifically for use therein, it being understood
and
agreed that the only such information furnished by or on behalf of
any
Underwriter consists of the information described as such in
Section 9
hereof.
(g) Each of the Company and the subsidiaries listed on Schedule
III attached hereto (each a "Significant Subsidiary" and,
together,
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the "Significant Subsidiaries") has been duly incorporated and
is
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
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").
(h) 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 Disclosure Package and the Final 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.
(i) The Company's authorized equity capitalization is as set
forth in the Disclosure Package and the Final Prospectus; the
Securities conform in all material respects to the description
thereof
contained in the Final Prospectus; and the Securities have been
duly
and validly authorized, and when duly executed, authenticated
and
delivered, will 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
will
be in the form contemplated by, and will be entitled to the
benefits
of, the Indenture.
(j) There is no franchise, contract or other document of a
character required to be described in the Registration Statement
or
Final Prospectus, or to be filed as an exhibit thereto, which is
not
described or filed as required.
(k) This Agreement has been duly authorized, executed and
delivered by the Company.
(l) 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 will conform in all material respects to the
description
thereof in the Preliminary Final Prospectus and the Final
Prospectus.
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(m) The Company is not and, after giving effect to the offering
and sale of the Securities and the application of the proceeds
thereof
as described in the Final Prospectus, will not be an
"investment
company" as defined in the Investment Company Act of 1940, as
amended.
(n) 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 and the Trust Indenture Act and such as may
be
required under the blue sky laws of any jurisdiction in
connection
with the purchase and distribution of the Securities by the
Underwriters in the manner contemplated herein and in the
Preliminary
Final Prospectus and the Final Prospectus.
(o) Neither the issue and sale of the Securities 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.
(p) No holders of
securities of the Company have rights to the
registration of such securities under the Registration
Statement.
(q) The historical consolidated financial statements of the
Company and its consolidated subsidiaries incorporated by reference
in
the Preliminary Final Prospectus, the Final Prospectus and the
Registration Statement present fairly in all material respects
the
consolidated financial position, results of operations and cash
flows
of the Company and its consolidated subsidiaries as of the dates
and
for the periods indicated, comply as to form with the
applicable
accounting requirements of the Act 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).
(r) 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
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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 Disclosure Package and the Final
Prospectus.
(s) 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.
(t) 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.
(u) Ernst & Young, LLP, who have audited certain historical
consolidated financial statements of the Company and its
consolidated
subsidiaries and delivered their report with respect to the
audited
historical consolidated financial statements incorporated by
reference
in the Disclosure Package and the Final Prospectus, is an
independent
registered public accounting firm as required by the Act and the
rules
and regulations of the Commission thereunder.
(v) There are no 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 issuance by the
Company or sale by the Company of the Securities.
(w) 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 for such problems
or
disputes that could not 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.
(x) 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
Disclosure Package and the Final Prospectus.
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(y) 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
Disclosure
Package and the Final Prospectus.
(z) 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
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 Disclosure Package and the Final Prospectus.
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.
(aa) The Company maintains a system of internal control over
financial reporting (as such term is defined in Rule 13a-15(f) of
the
Exchange Act) that complies with the requirements of the Exchange
Act
and has been designed by the Company's principal executive officer
and
principal financial officer, or under their supervision, to
provide
reasonable assurance regarding the reliability of financial
reporting
and the preparation of financial statements for external purposes
in
accordance with generally accepted accounting principles. The
Company's internal control over financial reporting is effective
and
the Company is not aware of any material weaknesses in its
internal
control over financial reporting.
(bb) 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 sale or resale of the
Securities.
(cc) 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
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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 Disclosure Package
and
the Final Prospectus.
(dd) There is and has been no material failure on the part of
the
Company and any of the Company's directors or officers, in
their
capacities as such, to comply with any provision of the Sarbanes
Oxley
Act of 2002 and the rules and regulations promulgated in
connection
therewith, including Section 402 related to loans and Sections 302
and
906 related to certifications.
(ee) The Significant Subsidiaries are the only significant
subsidiaries of the Company as defined by Rule 1-02(w) of
Regulation
S-X.
(ff) Except as set forth in or contemplated in the Disclosure
Package and the Final Prospectus 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.
Any certificate signed by any officer of the Company and delivered
to
the Representatives or counsel for the
Underwriters in connection with the
offering of the Securities shall be deemed
a representation and warranty by the
Company, as to matters covered thereby, to
each Underwriter.
2. Purchase and Sale. Subject to the terms and conditions and
in
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reliance upon the representations and
warranties herein set forth, the Company
agrees to sell to each Underwriter, and
each Underwriter agrees, severally and
not jointly, to purchase from the Company,
at the purchase price set forth in
Schedule I hereto the principal amount
thereof, the aggregate principal amount
of the Securities set forth opposite such
Underwriter's name in Schedule II
hereto.
3. Delivery and Payment. Delivery of and payment for the
Securities
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shall be made on the date and at the time
specified in Schedule I hereto or at
such time on such later date not more than
three Business Days after the
foregoing date as the Representatives shall
designate, which date and time may
be postponed by agreement between the
Representatives and the Company or as
provided in Section 10 hereof (such date
and time of delivery and payment for
the Securities being herein called the
"Closing Date"). Delivery of the
Securities shall be made to the
Representatives for the respective accounts of
the several Underwriters against payment by
the several Underwriters through the
Representatives of the purchase price
thereof to or upon the order of the
Company by wire transfer payable in
same-day funds to an account specified by
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the Company. Delivery of the Securities
shall be made through the facilities of
The Depository Trust Company unless the
Representatives shall otherwise
instruct.
4. Offering by Underwriters. It is understood that the several
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Underwriters propose to offer the
Securities for sale to the public as set forth
in the Final Prospectus.
5. Agreements. The Company agrees with the several Underwriters
that:
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(a) Prior to the termination of the offering of the Securities,
the
Company will not
file any amendment of the Registration Statement or
supplement
(including the Final Prospectus or any Preliminary Final
Prospectus) to
the Basic Prospectus 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. The Company will
cause a final
term sheet to be filed in a form approved by the
Representatives
with the Commission pursuant to Rule 433(d) within the time
period
prescribed and will provide evidence satisfactory to the
Representatives
of such timely filing. The Company will cause the Final
Prospectus,
properly completed, and any supplement thereto to be filed in a
form approved by
the Representatives with the Commission pursuant to the
applicable
paragraph of Rule 424(b) within the time period prescribed and
will provide
evidence satisfactory to the Representatives of such timely
filing. The
Company will promptly advise the Representatives (1) when the
final term sheet
shall have been filed with the Commission pursuant to Rule
433(d), (2) when
the Final Prospectus, and any supplement thereto, shall
have been filed
(if required) with the Commission pursuant to Rule 424(b),
(3) when, prior
to termination of the offering of the Securities, 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 Final 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 of any
notice that
would prevent its use 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
Securities for
sale 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, including, if necessary, by filing an amendment to the
Registration
Statement or a new registration statement and using its best
efforts to have
such amendment or new registration statement declared
effective.
(b) If, at any time when a prospectus relating to the Securities
is
required to be
delivered under the Act (including in circumstances where
such requirement
may be satisfied pursuant to Rule 172), any event occurs
as a result of
which the Final 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
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necessary to
amend the Registration Statement, file a new registration
statement or
supplement the Final Prospectus to comply with the Act or the
Exchange Act or
the respective rules thereunder, including in connection
with use or
delivery of the Final Prospectus, the Company promptly will (1)
notify the
Representatives 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 or new registration statement which will
correct such
statement or omission or effect such compliance, (3) use its
best efforts to
have any amendment to the Registration Statement or new
registration
statement declared effective as soon as practicable in order
to avoid any
disruption in use of the Final Prospectus and (4) supply any
supplemented
Final Prospectus to you in such quantities as you may
reasonably
request.
(c) As soon as practicable, but in any event not later than 16
months
after the date
hereof, the Company will make generally available to its
securityholders
and the Representatives an earnings statement of the
Company covering
a period of at least 12 months beginning after the date
hereof and
otherwise satisfying Section 11(a) of the Act.
(d) The Company will furnish to the Representatives and counsel
for
the
Underwriters, without charge, signed (but not original) copies of
the
Registration
Statement (including exhibits thereto) and to each other
Underwriter a
copy of the Registration Statement (without exhibits thereto)
and, so long as delivery of a
prospectus by an Underwriter or dealer may be
required by the
Act (including in circumstances where such requirement may
be satisfied
pursuant to Rule 172), as many copies of each Preliminary
Final
Prospectus, the Final Prospectus and each Issuer Free Writing
Prospectuses and
any supplement thereto as the Representatives may
reasonably
request. The Company will pay the expenses of printing or other
production of
all documents relating to the offering.
(e) The Company will arrange, if necessary, for the qualification
of
the Securities
for sale under the laws of such jurisdictions as the
Representatives
may designate, will maintain such qualifications in effect
so long as
required for the distribution of the Securities and will pay
any
fee of the
National Association of Securities Dealers, Inc., in connection
with its review
of the offering; provided that in no event shall the
Company be
obligated to qualify to do business in any jurisdiction where
it
is not now so
qualified or to take any action that would subject it to
service of
process in suits, other than those arising out of the offering
or sale of the
Securities, in any jurisdiction where it is not now so
subject.
(f) The Company agrees that, unless it obtains the prior
written
consent of the
Representatives, and each Underwriter, severally and not
jointly, agrees
with the Company that, unless it has obtained or will
obtain, as the
case may be, the prior written consent of the Company, it
has not made and
will not make any offer relating to the Securities that
would constitute
an Issuer Free Writing Prospectus or that would otherwise
constitute a
"free writing prospectus" (as defined in Rule 405) required to
be filed by the
Company with the Commission or retained by the Company
under Rule 433;
provided that the prior written consent of the parties
hereto shall be
deemed to have been given in respect of the Free Writing
Prospectuses
included in Schedule IV hereto. Any such free writing
prospectus
consented to by the Representatives or the Company is
10
<PAGE>
hereinafter
referred to as a "Permitted Free Writing Prospectus." The
Company agrees
that (x) it has treated and will treat, as the case may be,
each Permitted
Free Writing Prospectus as an Issuer Free Writing Prospectus
and (y) it has
complied and will comply, as the case may be, with the
requirements of
Rules 164 and 433 applicable to any Permitted Free Writing
Prospectus,
including in respect of timely filing with the Commission,
legending and
record keeping.
(g) The Company will not, without the prior written consent of
Citigroup Global
Markets Inc. and Goldman, Sachs & Co., offer, sell,
contract to
sell, pledge, or otherwise dispose of, (or enter into any
transaction
which is designed to, or might reasonably be expected to,
result in the
disposition (whether by actual disposition or effective
economic
disposition due to cash settlement or otherwise) by the Company
or
any affiliate of
the Company or any person in privity with the Company or
any affiliate of
the Company) directly or indirectly, including the filing
(or
participation in the filing) of a registration statement with
the
Commission in
respect of, or establish or increase a put equivalent
position or
liquidate or decrease a call equivalent position within the
meaning of
Section 16 of the Exchange Act, any debt securities issued or
guaranteed by
the Company (other than the Securities) or publicly announce
an intention to
effect any such transaction, for a period from the
Execution Time
through the Closing Date, inclusive.
(h) The Company will not take, directly or indirectly, any
action
designed to or
which has constituted or which might reasonably be expected
to cause or
result, under the Exchange Act or otherwise, in stabilization
or manipulation
of the price of any security of the Company to facilitate
the sale or
resale of the Securities.
(i) The Company agrees to pay the costs and expenses relating to
the
following
matters: (i) the preparation, printing or reproduction and
filing
with the
Commission of the Registration Statement (including financial
statements and
exhibits thereto), any Preliminary Final Prospectus, the
Final Prospectus
and each amendment or supplement to any of them; (ii) the
printing (or
reproduction) and delivery (including postage, air freight
charges and
charges for counting and packaging) of such copies of the
Registration
Statement, any Preliminary Final Prospectus, the Final
Prospectus and
all amendments or supplements to any of them, as may, in
each case, be
reasonably requested for use in connection with the offering
and sale of the
Securities; (iii) the preparation, printing,
authentication,
issuance and delivery of certificates for the Securities,
including any
stamp or transfer taxes in connection with the original
issuance and
sale of the Securities; (iv) the printing (or reproduction)
and delivery of
this Agreement, any blue sky memorandum and all other
agreements or
documents printed (or reproduced) and delivered in connection
with the
offering of th
