EXHIBIT 1
Temple-Inland Inc.
$500,000,000
7.875% Notes due ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
May 1, 2002
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
UBS Warburg LLC,
as Representatives of the several Underwriters,
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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,
$500,000,000 aggregate principal amount of its 7.875% Senior Notes due 2012
(the "Securities"), to be issued under an indenture, dated as of September
1, 1986, between the Company and JPMorgan Chase Bank (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, a Preliminary Prospectus or
the 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 such Preliminary Prospectus or
the 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 Prospectus or the Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act
after the Effective Date of the Registration Statement, or the issue date
of any Preliminary Prospectus or the Prospectus, as the case may be, deemed
to be incorporated therein by reference. Certain terms used herein are
defined in Section 17 hereof.
1. Representations and Warranties. The Company represents
and warrants 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 a
registration statement (file number 333-84120) on Form S-3,
including the related Base Prospectus, for registration under the
Act of the offering and sale of the Securities. 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 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 Prospectus. As filed, the Prospectus shall
contain all Rule 430A Information, together with all other such
required information, 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 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 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 Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date (as defined
herein), the 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 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; on the
Effective Date and on the Closing Date the Indenture did or will
comply in all material respects with the applicable requirements
and the rules thereunder; and, on the date of any filing pursuant
to Rule 424(b) and on the Closing Date, the 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 (i) that part of the Registration Statement which
shall constitute any 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
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
Prospectus (or any supplement thereto).
(c) Each of the Company and the subsidiaries listed on
Schedule II attached hereto (each a "Significant Subsidiary" and,
together, 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").
(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 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, except for such security
interests, claims, liens or encumbrances as contemplated by the
Credit Agreement, dated as of March 1, 2002, as amended (the
"March 2002 Credit Agreement"), among the Company, Citibank, N.A.,
as administrative agent and as collateral agent.
(e) The Company's authorized equity capitalization is as
set forth in the Prospectus; the Securities conform in all
material respects to the description thereof contained in the
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.
(f) There is no franchise, contract or other document of
a character required to be described in the Registration Statement
or Prospectus, or to be filed as an exhibit thereto, which is not
described or filed as required.
(g) This 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 will conform in all material
respects to the description thereof in the Prospectus.
(i) 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 Prospectus, will not be an
"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 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 Prospectus.
(k) 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.
(l) No holders of securities of the Company have rights
to the registration of such securities under the Registration
Statement.
(m) The consolidated historical financial statements and
schedules of the Company and its consolidated subsidiaries
included in the 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 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 "Selected Financial Data" in the Prospectus and
Registration Statement fairly present, on the basis stated in the
Prospectus and the Registration Statement, the information
included therein. The unaudited pro forma combined financial
statements included in the Prospectus and the Registration
Statement include assumptions that provide a reasonable basis for
presenting the significant effects directly attributable to the
transactions and events described therein, the related pro forma
adjustments give appropriate effect to those assumptions, and the
pro forma adjustments reflect the proper application of those
adjustments to the historical financial statement amounts in the
unaudited pro forma combined financial statements included in the
Prospectus and the Registration Statement. The unaudited pro forma
combined financial statements included in the Prospectus and the
Registration Statement comply as to form in all material respects
with the applicable accounting requirements of Regulation S-X
under the Act and the pro forma adjustments have been properly
applied to the historical amounts in the compilation of those
statements.
(n) 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 Prospectus
(exclusive of any supplement thereto).
(o) 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.
(p) 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.
(q) 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 included
in the Prospectus, are independent public accountants with respect
to the Company within the meaning of the Act and the applicable
published rules and regulations thereunder.
(r) 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.
(s) 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.
(t) 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 Prospectus.
(u) 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 Prospectus (exclusive of any
supplement thereto).
(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 sale or resale of
the Securities.
(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 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
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.
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 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 of 98.639% of the principal amount thereof, the aggregate
principal amount of the Securities set forth opposite such Underwriter's
name in Schedule I hereto, plus accrued interest, if any, on the Securities
from May 6, 2002, to the Closing Date.
3. Delivery and Payment. Delivery of and payment for the
Securities shall be made at 10:00 AM, New York City time, on May 6, 2002,
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 9 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 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 Underwriters propose to offer the Securities for sale to the public
as set forth in the Prospectus.
5. Agreements. The Company agrees with the several
Underwriters 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 offering of the Securities, the Company will
not file any amendment of the Registration Statement or supplement
to the 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 Prospectus is otherwise
required under Rule 424(b), the Company will cause the 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 Representatives of such timely filing. The
Company will promptly advise the Representatives (1) when the
Registration Statement, if not effective at the Execution Time,
shall have become effective, (2) when the 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 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
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 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.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event
occurs as a result of which the 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 Prospectus to comply with the Act or
the Exchange Act or the respective rules thereunder, 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 which will correct such statement or omission or effect
such compliance and (3) supply any supplemented Prospectus to you
in such quantities as you may reasonably request.
(c) As soon as practicable, the Company will make
generally available to its security holders and to the
Representatives 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 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,
as many copies of each Preliminary Prospectus and the Prospectus
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 will not, without the prior written
consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., 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.
(g) 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.
(h) 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),
each Preliminary Prospectus, the 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, each Preliminary Prospectus, the 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
the Securities; (v) the registration of the Securities under the
Exchange Act; (vi) any registration or qualification of the
Securities for offer and sale under the securities or blue sky
laws of the several states (including filing fees and the
reasonable fees and expenses of counsel for the Underwriters
relating to such registration and qualification); (vii) any
filings required to be made with the National Association of
Securities Dealers, Inc. (including filing fees and the reasonable
fees and expenses of counsel for the Underwriters relating to such
filings); (viii) the transportation and other expenses incurred by
or on behalf of Company representatives in connection with
presentations to prospective purchasers of the Securities; (ix)
the fees and expenses of the Company's accountants and the fees
and expenses of counsel (including local and special counsel) for
the Company; and (x) all other costs and expenses incident to the
performance by the Company of its obligations hereunder.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Securities shall be subject
to the accuracy of the representations and warranties on the part of the
Company contained herein as of the Execution Time and the Closing Date, to
the accuracy of the statements of the Company made in any certificates
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions:
(a) If filing of the Prospectus, or any supplement
thereto, is required pursuant to Rule 424(b), the Prospectus, and
any such supplement, will be filed in the manner and within the
time period required by Rule 424(b); and no stop order suspending
the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) The Company shall have requested and caused Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Company, to have
furnished to the Representatives their opinion, dated the Closing
Date and addressed to the Representatives, to the effect that:
(i) this Agreement has been duly authorized, executed
and delivered by the Company;
(ii) the Indenture has been duly authorized, executed
and delivered by the Company, has been duly qualified
under the Trust Indenture Act, and is a valid and 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, fraudulent conveyance, moratorium or other
laws affecting creditors' rights generally from time to
time in effect and to general principles of equity
(regardless of whether enforcement is sought in equity or
at law);
(iii) no governmental approval that has not been
obtained or taken and is not in full force and effect is
required to be obtained in connection with the execution
and delivery of each of the Transaction Documents by the
Company or the consummation by the Company of the
transactions contemplated thereby;
(iv) the Securities have been duly authorized by the
Company, and, when duly executed, issued and delivered by
the Company against payment therefor in accordance with
this Agreement and the Indenture, will constitute valid
and binding obligations of the Company entitled to the
benefits of the Indenture and enforceable in accordance
with their terms, except as enforceability may be limited
by applicable bankruptcy, reorganization, insolvency,
fraudulent conveyance, moratorium or other laws affecting
creditors' rights generally from time to time in effect
and to general principles of equity (regardless of
whether enforcement is sought in equity or at law); (v)
the Company is not and, solely after giving effect to the
offering and sale of the Securities and the application
of the proceeds thereof as described in the Prospectus,
will not be an "investment company" as defined in the
Investment Company Act of 1940, as amended;
(vi) Temple-Inland Financial Services, Inc. is an
exempt savings and loan holding company under the Home
Owners' Loan Act of 1933, as amended (the "Home Owners'
Loan Act"), and Guaranty Bank is a federally chartered
savings bank under the Home Owners' Loan Act;
(vii) the Indenture has been qualified under the
Trust Indenture Act and such counsel has been orally
advised by the Commission that the Registration Statement
has become effective under the Act; to the knowledge of
such counsel, no stop order suspending the effectiveness
of the Registration Statement has been issued, and, to
the best knowledge of such counsel, no proceedings for
that purpose have been instituted or are pending or
threatened; the Registration Statement and the Prospectus
(other than the financial statements and other financial
information contained therein, as to which such counsel
need express no opinion) appeared on their face to be
appropriately responsive in all material respects to the
applicable requirements of the Act and the Exchange Act
and the respective rules thereunder; and such counsel has
no reason to believe that on the Effective Date or the
date the Registration Statement was last deemed amended
the Registration Statement contained any untrue statement
of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus
as of its date and on the Closing Date included or
includes any untrue statement of a material fact or
omitted or omits to state a material fact necessary to
make the statements therein, in the light of the
circumstances under which they were made, not misleading
(in each case, other than the financial statements and
other financial information contained therein, as to
which such counsel need express no opinion);
(viii) each of the Company and the Significant
Subsidiaries have 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
(other than Guaranty Residential Lending, Inc. for which
no such opinion is required);
(ix) the Company has the corporate power and the
corporate authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereby;
(x) the Company has an authorized capitalization as
set forth in the Prospectus; and
(xi) the execution and delivery by the Company of
this Agreement and the consummation of the transactions
contemplated herein and therein, including the issuance
and sale of the Securities will not violate or conflict
with, or result in any contravention of, any applicable
law.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than
the State of New York, the State of Delaware or the Federal laws
of the United States, to the extent they deem proper and specified
in such opinion, upon the opinion of other counsel of good
standing whom they believe to be reliable and who are satisfactory
to counsel for the Underwriters and (B) as to matters of fact, to
the extent they deem proper, on certificates of responsible
officers of the Company and public officials. References to the
Prospectus in this paragraph (b) include any supplements thereto
at the Closing Date.
(c) The Company shall have requested and caused M.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Vice President and General Counsel for the
Company, to have furnished to the Representatives his opinion,
dated the Closing Date and addressed to the Representatives, to
the effect that:
(i) each of the Company and each of 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 other jurisdiction that requires such
qualification, except where the failure to so qualify or
be in good standing could not reasonably be expected to
result in a Material Adverse Effect;
(ii) 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
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 and, to the
knowledge of such counsel, after due inquiry, any other
security interest, claim, lien or encumbrance, except for
security interests, claims, liens or encumbrances
contemplated by the March 2002 Credit Agreement;
(iii) to the knowledge of such counsel, there is no
pending or threatened 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 of a character
required to be disclosed in the Registration Statement or
the Prospectus which is not adequately described as
required, and there is no franchise, contract or other
document of a character required to be described in the
Registration Statement or Prospectus, or to be filed as
an exhibit thereto, which is not described or filed as
required;
(iv) the issue and sale of the Securities, the
execution, delivery and performance of this Agreement and
the Indenture, the consummation of the transactions
contemplated therein, and the fulfillment of the terms or
provisions thereof will not conflict with, result in a
breach or violation of or imposition of any lien, charge
or encumbrance upon any property or assets of the Company
or its Significant Subsidiaries pursuant to, (i) the
charter or by-laws of the Company or its Significant
Subsidiaries or (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 its or their property is
subject, or (iii) any statute, law, rule, regulation,
judgment, order or decree applicable to the Company or
the Significant Subsidiaries or any court, regulatory
body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over
the Company or the Significant Subsidiaries or any of its
or their properties, except, in the case of clauses (ii)
or (iii) above, for such conflicts, breaches, defaults,
liens, charges, encumbrances or violations that could not
reasonably be expected to result in a Material Adverse
Effect; and
(v) no holders of securities of the Company have
rights to the registration of such securities under the
Registration Statement.
(d) The Company shall have requested and caused Cravath,
Swaine & ▇▇▇▇▇, counsel for the Trustee, to have furnished to the
Representatives their opinion, dated the Closing Date and
addressed to the Representatives, to the effect that:
(i) the Trustee has been duly incorporated and is
validly existing as a banking corporation in good
standing under the laws of the State of New York;
(ii) the Trustee has the corporate trust power and
authority to execute, deliver and perform its duties
under the Indenture, has duly executed and delivered the
Indenture, and, insofar as the laws governing the trust
powers of the trustee are concerned and assuming due
authorization, execution and delivery thereof by the
Company, the Indenture constitutes a legal, valid and
binding agreement of the Trustee, enforceable against the
Trustee in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy,
reorganization, insolvency, fraudulent conveyance,
moratorium or other laws affecting creditors' rights
generally from time to time in effect and to general
principles of equity;
(iii) no approval, authorization or other action by,
or filing with, any governmental authority of the United
States of America or the State of New York having
jurisdiction over the trust powers of the Trustee is
required in connection with the execution and delivery by
the Trustee of the Indenture or the performance by the
Trustee of its duties thereunder, except such as have
been obtained, taken or made; and
(iv) the Securities issued on the date hereof have
been duly authenticated by the Trustee.
(e) The Representatives shall have received from Cleary,
Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, such
opinion or opinions, dated the Closing Date and addressed to the
Representatives, with respect to the issuance and sale of the
Securities, the Indenture, the Registration Statement, the
Prospectus (together with any supplement thereto) and other
related matters as the Representatives may reasonably require, and
the Company shall have furnished to such counsel such documents as
they request for the purpose of enabling them to pass upon such
matters.
(f) The Company shall have furnished to the
Representatives a certificate of the Company, signed by the
Chairman of the Board or the Chief Administrative Officer and the
principal financial or accounting officer of the Company, dated
the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement,
the Prospectus, any supplements to the Prospectus and this
Agreement and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct on and as of the
Closing Date with the same effect as if made on the
Closing Date and the Company has complied with all the
agreements and satisfied all the conditions on its part
to be performed or satisfied at or prior to the Closing
Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no
proceedings for that purpose have been instituted or, to
the Company's knowledge, threatened; and
(iii) since the date of the most recent financial
statements included or incorporated by reference in the
Prospectus (exclusive of any supplement thereto), there
has been no 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, except as set forth in
or contemplated in the Prospectus (exclusive of any
supplement thereto).
(g) The Company shall have requested and caused Ernst &
Young LLP to have furnished to the Representatives, at the
Execution Time and at the Closing Date, letters, dated
respectively as of the Execution Time and as of the Closing Date,
in form and substance satisfactory to the Representatives,
confirming that they are independent accountants within the
meaning of the Act and the Exchange Act and the respective
applicable rules and regulations adopted by the Commission
thereunder and stating in effect that:
(i) in their opinion the audited financial statements
and financial statement schedules included or
incorporated by reference in the Registration Statement
and the Prospectus and reported on by them comply as to
form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act
and the related rules and regulations adopted by the
Commission;
(ii) on the basis of a reading of the latest
unaudited financial statements made available by the
Company and its subsidiaries; carrying out certain
specified procedures (but not an examination in
accordance with generally accepted auditing standards)
which would not necessarily reveal matters of
significance with respect to the comments set forth in
such letter; a reading of the minutes of the meetings of
the stockholders and directors of the Company and the
Significant Subsidiaries; and inquiries of certain
officials of the Company who have responsibility for
financial and accounting matters of the Company and its
subsidiaries as to transactions and events subsequent to
December 29, 2001, nothing came to their attention which
caused them to believe that:
(1) any unaudited financial statements included
or incorporated by reference in the Registration
Statement and the Prospectus do not comply as to form
in all material respects with applicable accounting
requirements of the Act and with the related rules
and regulations adopted by the Commission with
respect to financial statements included or
incorporated by reference in quarterly reports on
Form 10-Q under the Exchange Act; and said unaudited
financial statements are not in conformity with
generally accepted accounting principles applied on a
basis substantially consistent with that of the
audited financial statements included or incorporated
by reference in the Registration Statement and the
Prospectus;
(2) with respect to the period subsequent to
December 29, 2001, there were any changes, at a
specified date not more than five days prior to the
date of the letter, in the long-term debt of the
Company and its subsidiaries or capital stock of the
Company or decreases in the net current assets or
shareholders' equity of the Company as compared with
the amounts shown on the December 29, 2001
consolidated balance sheet included or incorporated
by reference in the Registration Statement and the
Prospectus, or for the period from December 30, 2001
to such specified date there were any decreases, as
compared with the corresponding period in the
preceding year in consolidated net revenues or in the
total or per-share amounts of consolidated income
before extraordinary items or of consolidated net
income of the Company and its subsidiaries, except in
all instances for changes or decreases set forth in
such letter, in which case the letter shall be
accompanied by an explanation by the Company as to
the significance thereof unless said explanation is
not deemed necessary by the Representatives;
(3) the information included or incorporated by
reference in the Registration Statement and
Prospectus in response to Regulation S-K, Item 301
(Selected Financial Data), Item 302 (Supplementary
Financial Information), Item 402 (Executive
Compensation) and Item 503(d) (Ratio of Earnings to
Fixed Charges) is not in conformity with the
applicable disclosure requirements of Regulation S-K;
and
(iii) they have performed certain other specified
procedures as a result of which they determined that
certain information of an accounting, financial or
statistical nature (which is limited to accounting,
financial or statistical information derived from the
general accounting records of the Company and its
subsidiaries) set forth in the Registration Statement and
the Prospectus and in Exhibit 12 to the Registration
Statement, including the information set forth under the
captions "Selected Financial Data" and "Management's
Discussion and Analysis of Financial Condition and
Results of Operations" in the Prospectus, the information
included or incorporated by reference in Item 11 of the
Company's Annual Report on Form 10-K, incorporated by
reference in the Registration Statement and the
Prospectus, agrees with the accounting records of the
Company and its subsidiaries, excluding any questions of
legal interpretation; and
(iv) on the basis of a reading of the unaudited pro
forma financial statements included or incorporated by
reference in the Registration Statement and the
Prospectus (the "pro forma financial statements");
carrying out certain specified procedures; inquiries of
certain officials of the Company who have responsibility
for financial and accounting matters; and proving the
arithmetic accuracy of the application of the pro forma
adjustments to the historical amounts in the pro forma
financial statements, nothing came to their attention
which caused them to believe that the pro forma financial
statements do not comply as to form in all material
respects with the applicable accounting requirements of
Rule 11-02 of Regulation S-X or that the pro forma
adjustments have not been properly applied to the
historical amounts in the compilation of such statements.
References to the Prospectus in this paragraph (i)
include any supplement thereto at the date of the letter.
(h) The Company shall have requested and caused Deloitte
& Touche LLP to have furnished to the Representatives, at the
Execution Time and at the Closing Date, letters, dated
respectively as of the Execution Time and as of the Closing Date,
in form and substance satisfactory to the Representatives,
confirming that they are independent accountants within the
meaning of the Act and the Exchange Act and the respective
applicable rules and regulations adopted by the Commission
thereunder and that they have performed a review of the unaudited
interim financial information of ▇▇▇▇▇▇▇ Container Corp.
("▇▇▇▇▇▇▇") for the three-month period ended December 31, 2001,
and as at December 31, 2001, in accordance with Statement on
Auditing Standards No. 71, and stating in effect that:
(i) in their opinion the audited financial statements
and financial statement schedules of ▇▇▇▇▇▇▇ included or
incorporated by reference in the Registration Statement
and the Prospectus and reported on by them comply as to
form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act
and the related rules and regulations adopted by the
Commission; and
(ii) on the basis of their limited review, in
accordance with standards established under Statement on
Auditing Standards No. 71, of the unaudited interim
financial information of ▇▇▇▇▇▇▇ for the three-month
period ended December 31, 2001, and as at December 31,
2001, as indicated in their report dated February 14,
2002, incorporated by reference in the Registration
Statement and the Prospectus, nothing came to their
attention which caused them to believe that any unaudited
financial statements of Gaylord included or incorporated
by reference in the Registration Statement and the
Prospectus do not comply as to form in all material
respects with applicable accounting requirements of the
Act and with the related rules and regulations adopted by
the Commission with respect to financial statements
included or incorporated by reference in quarterly
reports on Form 10-Q under the Exchange Act; and said
unaudited financial statements are not in conformity with
generally accepted accounting principles applied on a
basis substantially consistent with that of the audited
financial statements included or incorporated by
reference in the Registration Statement and the
Prospectus.
References to the Prospectus in this paragraph (j)
include any supplement thereto at the date of the letter.
(i) Subsequent to the Execution Time or, if earlier, the
dates as of which information is given in the Registration
Statement (exclusive of any amendment thereof) and the Prospectus
(exclusive of any supplement thereto), there shall not have been
(i) any change or decrease specified in the letter or letters
referred to in paragraph (i) or (j) of this Section 6 or (ii) any
change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), 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, except as set forth in or
contemplated in the Prospectus (exclusive of any supplement
thereto) the effect of which, in any case referred to in clause
(i) or (ii) above, is, in the sole judgment of the
Representatives, so material and adverse as to make it impractical
or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Registration Statement
(exclusive of any amendment thereof) and the Prospectus (exclusive
of any supplement thereto).
(j) Subsequent to the Execution Time, there shall not
have been any decrease in the rating of any of the Company's debt
securities by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the
Act) or any notice given 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.
(k) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably
request.
If any of the conditions specified in this Section 6
shall not have been fulfilled when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be reasonably satisfactory in form and substance to the
Representatives and counsel for the Underwriters, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any
time prior to, the Closing Date by the Representatives. Notice of such
cancelation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
The documents required to be delivered by this Section 6
shall be delivered at the office of Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
counsel for the Underwriters, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇ on
the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale
of the Securities provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth in Section 6
hereof is not satisfied, because of any termination pursuant to Section 10
hereof or because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any provision hereof
other than by reason of a default by any of the Underwriters, the Company
will reimburse the Underwriters severally through ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney on
demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter within the
meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Act, the Exchange
Act or other Federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the
registration of the Securities as originally filed or in any
amendment thereof, or in any Preliminary Prospectus or the
Prospectus, or in any amendment thereof or supplement thereto, or
arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees
to reimburse each such indemnified party, as incurred, for any legal
or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability
or action; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement
or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter through
the Representatives specifically for inclusion therein. This
indemnity agreement will be in addition to any liability which the
Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Company, each of its directors, each
of its officers who signs the Registration Statement, and each
person who controls the Company within the meaning of either the Act
or the Exchange Act, to the same extent as the foregoing indemnity
from the Company to each Underwriter, but only with reference to
written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the
Representatives specifically for inclusion in the documents referred
to in the foregoing indemnity. This indemnity agreement will be in
addition to any liability which any Underwriter may otherwise have.
The Company acknowledges that the statements set forth in the last
paragraph of the cover page regarding delivery of the Securities
and, under the heading "Underwriting," (i) the list of Underwriters
and their respective participation in the sale of the Securities,
(ii) the sentences related to concessions and reallowances and (iii)
the paragraph related to stabilization, syndicate covering
transactions and penalty bids in any Preliminary Prospectus and the
Prospectus constitute the only information furnished in writing by
or on behalf of the several Underwriters for inclusion in any
Preliminary Prospectus or the Prospectus.
(c) 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 the indemnifying party under this Section 8, notify the
indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve it
from liability under paragraph (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraph (a)
or (b) above. The indemnifying party shall be entitled to appoint
counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for
which indemnification is sought (in which case the indemnifying
party shall not thereafter be responsible for the fees and expenses
of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel
shall be satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the
right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and
expenses of such separate counsel if (i) the use of counsel chosen
by the indemnifying party to represent the indemnified party would
present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both
the indemnified party and the indemnifying party and the indemnified
party shall have reasonably concluded 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, (iii) 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 the institution of
such action or (iv) the indemnifying party shall authorize the
indemnified party to employ separate counsel at the expense of the
indemnifying party. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to
any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim,
action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph
(a) or (b) of this Section 8 is unavailable to or insufficient to
hold harmless an indemnified party for any reason, the Company and
the Underwriters severally agree to contribute to the aggregate
losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Company and one
or more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company
on the one hand and by the Underwriters on the other from the
offering of the Securities; provided, however, that in no case shall
any Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount or
commission applicable to the Securities purchased by such
Underwriter hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and
the Underwriters severally shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of the Company on the one hand and of the
Underwriters on the other in connection with the statements or
omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company
shall be deemed to be equal to the total net proceeds from the
offering (before deducting expenses) received by it, and benefits
received by the Underwriters shall be deemed to be equal to the
total underwriting discounts and commissions, in each case as set
forth on the cover page of the Prospectus. Relative fault shall be
determined by reference to, among other things, whether any untrue
or any alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to information
provided by the Company on the one hand or the Underwriters on the
other, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such
untrue statement or omission. The Company and the Underwriters agree
that it would not be just and equitable if contribution were
determined by pro rata allocation or any other method of allocation
which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), no
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 8, each person who controls an Underwriter
within the meaning of either the Act or the Exchange Act and each
director, officer, employee and agent of an Underwriter shall have
the same rights to contribution as such Underwriter, and each person
who controls the Company within the meaning of either the Act or the
Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case
to the applicable terms and conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the Securities
agreed to be purchased by such Underwriter or Underwriters hereunder and
such failure to purchase shall constitute a default in the performance of
its or their obligations under this Agreement, the remaining Underwriters
shall be obligated severally to take up and pay for (in the respective
proportions which the amount of Securities set forth opposite their names
in Schedule I hereto bears to the aggregate amount of Securities set forth
opposite the names of all the remaining Underwriters) the Securities which
the defaulting Underwriter or Underwriters agreed but failed to purchase;
provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate amount of Securities
set forth in Schedule I hereto, the remaining Underwriters shall have the
right to purchase all, but shall not be under any obligation to purchase
any, of the Securities, and if such nondefaulting Underwriters do not
purchase all the Securities, this Agreement will terminate without
liability to any nondefaulting Underwriter or the Company. In the event of
a default by any Underwriter as set forth in this Section 9, the Closing
Date shall be postponed for such period, not exceeding five Business Days,
as the Representatives shall determine in order that the required changes
in the Registration Statement and the Prospectus or in any other documents
or arrangements may be effected. Nothing contained in this Agreement shall
relieve any defaulting Underwriter of its liability, if any, to the Company
and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice
given to the Company prior to delivery of and payment for the Securities,
if at any time prior to such time (i) trading in the Company's Common Stock
shall have been suspended by the Commission, the New York Stock Exchange or
the Pacific Exchange or trading in securities generally on the New York
Stock Exchange or the Pacific Exchange shall have been suspended or limited
or minimum prices shall have been established on either of such exchanges,
(ii) a banking moratorium shall have been declared either by Federal or New
York State authorities or (iii) there shall have occurred any outbreak or
escalation of hostilities, declaration by the United States of a national
emergency or war, or other calamity or crisis the effect of which on
financial markets is such as to make it, in the sole judgment of the
Representatives, impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Prospectus (exclusive of
any supplement thereto).
11. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Underwriters 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 Underwriter or
the Company or any of the officers, directors, employees, agents or
controlling persons referred to in Section 8 hereof, and will survive
delivery of and payment for the Securities. The provisions of Sections 7
and 8 hereof shall survive the termination or cancelation of this
Agreement.
12. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to the Representatives,
will be mailed, delivered or telefaxed to the ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
General Counsel (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to the General
Counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇▇▇, Attention: General Counsel; or, if sent to the Company, will
be mailed, delivered or telefaxed to Temple-Inland Inc., General Counsel
(Fax no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to it at Temple-Inland Inc.,
General Counsel, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
13. Successors. This Agreement will inure to the benefit
of and be binding upon the parties hereto and their respective successors
and the officers, directors, employees, agents and controlling persons
referred to in Section 8 hereof, and no other person will have any right or
obligation hereunder.
14. Applicable Law. This Agreement will be governed by
and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed within the State of New
York.
15. Counterparts. This Agreement may be signed in one or
more counterparts, each of which shall constitute an original and all of
which together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in
this Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated
thereunder.
"Base Prospectus" shall mean the prospectus contained in
the Registration Statement at the Effective Date.
"Business Day" shall mean any day other than a Saturday,
a Sunday or a legal holiday or a day on which banking institutions
or trust companies are authorized or obligated by law to close in
New York City.
"Commission" shall mean the Securities and Exchange
Commission.
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or
become effective.
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission
promulgated thereunder.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"Preliminary Prospectus" shall mean any preliminary
prospectus referred to in paragraph 1(a) above that omits Rule
430A Information and which describes the Securities and the
offering thereof and is used prior to filing of the Prospectus,
together with the Base Prospectus.
"Prospectus" shall mean the prospectus supplement
relating to the Securities that was first filed pursuant to Rule
424(b) after the Execution Time, together with the Base
Prospectus.
"Registration Statement" shall mean the registration
statement referred to in paragraph 1(a) above, including exhibits
and financial statements, as amended at the Execution Time (or, if
not effective at the Execution Time, in the form in which it shall
become effective) and, in the event any post-effective amendment
thereto or any Rule 462(b) Registration Statement becomes
effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b)
Registration Statement, as the case may be. Such term shall
include any Rule 430A Information deemed to be included therein at
the Effective Date as provided by Rule 430A.
"Rule 424", "Rule 430A" and "Rule 462" refer to such
rules under the Act.
"Rule 430A Information" shall mean information with
respect to the Securities and the offering thereof permitted to be
omitted from the Registration Statement when it becomes effective
pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a
registration statement and any amendments thereto filed pursuant
to Rule 462(b) relating to the offering covered by the
registration statement referred to in Section 1(a) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act
of 1939, as amended, and the rules and regulations of the
Commission promulgated thereunder.
If the foregoing is in accordance with your understanding
of our agreement, please sign and return to us the enclosed duplicate
hereof, whereupon this letter and your acceptance shall represent a binding
agreement among the Company and the several Underwriters.
Very truly yours,
Temple-Inland Inc.
By: /s/ M. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Name: M. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President and Chief
Administrative Officer
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
UBS Warburg LLC
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
For themselves and the other
several Underwriters
named in Schedule I to
the foregoing Agreement.
SCHEDULE I
Aggregate Principal
Amount of Securities
Underwriters to be Purchased
$282,711,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
75,000,000
UBS Warburg LLC
29,893,000
Banc of America Securities LLC
29,893,000
TD Securities (USA) Inc.
29,893,000
Banc One Capital Markets, Inc.
20,920,000
ABN Amro Rothschild LLC
9,565,000
Scotia Capital (USA) Inc.
9,565,000
Credit Lyonnais Securities (USA) Inc.
5,979,000
McDonald Investments Inc., a Key Corp. Company
5,979,000
---------------------
KBC Financial Products USA Inc.
$500,000,000
Total ................................................. =====================
SCHEDULE II
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Subsidiaries of Temple-Inland Inc.
Inland Container Corporation I
Inland Paperboard and Packaging, Inc.
▇▇▇▇▇▇▇ Container Corporation
Temple-Inland Forest Products Corporation
Temple-Inland Financial Services, Inc.
Guaranty Bank
Guaranty Residential Lending, Inc.
