REMARKETING AGREEMENT

Exhibit 4.14

 

RAYTHEON COMPANY

 

7.00% Trust Preferred Security of RC Trust I

 

 

REMARKETING AGREEMENT

 

Dated as of February 9, 2004

 

Citigroup Global Markets Inc.

J.P. Morgan Securities Inc.

UBS Securities LLC

Credit Lyonnais Securities (USA) Inc.

Lazard Frères & Co. LLC

The Royal Bank of Scotland plc

 

c/o Citigroup Global Markets Inc.

388 Greenwich Street, 34^th Floor

New York, NY 10013

 

Ladies and Gentlemen:

 

The several remarketing agents named in Schedule I hereto (each, a “Remarketing Agent”, and collectively, the “Remarketing Agents”), for whom Citigroup Global Markets Inc. (the “Representative”), is acting as representative, are undertaking to remarket the 7.00% Trust Preferred Securities, stated liquidation amount $50 per Trust Preferred Security (the “Trust Preferred Securities”), issued by RC Trust I, a statutory trust created under Delaware law (the “Trust”), pursuant to the Purchase Contract Agreement dated as of May 9, 2001 (the “Purchase Contract Agreement”) between Raytheon Company, a Delaware corporation (the “Company”), and The Bank of New York, as purchase contract agent (the “Purchase Contract Agent”) and attorney-in-fact for holders of Units (as defined below).

 

The Trust Preferred Securities have been issued pursuant to and are governed by, the Amended and Restated Declaration of Trust dated as of May 9, 2001 (the “Declaration”), among the Company, as the sponsor, The Bank of New York, as property trustee (the “Property Trustee”), The Bank of New York (Delaware), as the Delaware Trustee (the “Delaware Trustee”), the regular trustees named therein (the “Regular Trustees”), and the holders from time to time of undivided beneficial ownership interests in the assets of the Trust. Each Trust Preferred Security was issued as part of an equity security unit of the Company (the “Unit”) that initially also included a contract (a “Purchase Contract”) under which the holder agreed to purchase from the Company, and

the Company agreed to sell to the holders, on May 15, 2004, a number of shares (the “Issuable Common Stock”) of common stock, par value $0.01 per share, of the Company equal to the Settlement Rate (as defined in the Purchase Contract Agreement) as set forth in the Purchase Contract Agreement.

 

In accordance with the terms of the Purchase Contract Agreement, the Trust Preferred Securities constituting a part of the Units have been pledged by the Purchase Contract Agent to J.P. Morgan Trust Company, N.A. (successor in interest to Bank One Trust Company, N.A.), as collateral agent (the “Collateral Agent”), pursuant to the Pledge Agreement, dated as of May 9, 2001 (the “Pledge Agreement”), among the Company, the Purchase Contract Agent, the Collateral Agent, the Custodial Agent and the Securities Intermediary, to secure the holders’ obligation to purchase Common Stock under the Purchase Contracts. Payments on the Trust Preferred Securities are guaranteed (the “Guarantee”) by the Company on an unsecured and subordinated basis, pursuant to the Guarantee Agreement dated as of May 9, 2001 (the “Guarantee Agreement”) between the Company and The Bank of New York, as guarantee trustee (the “Guarantee Trustee”).

 

The Trust Preferred Securities and the common securities of the Trust (the “Common Securities” and together with the Trust Preferred Securities, the “Trust Securities”) have been issued by the Trust in exchange for the 7.00% Notes due May 15, 2006 of the Company (the “Notes”) issued by the Company pursuant to an Indenture dated as of July 3, 1995 (the “Base Indenture”), as supplemented by the First Supplemental Indenture, dated as of May 2, 2000, and as supplemented by a Second Supplemental Indenture dated as of May 9, 2001 (“Supplemental Indenture No. 1,” and “Supplemental Indenture No. 2,” respectively, and, together with the Base Indenture and all other amendments and supplements thereto in effect on the date hereof, the “Indenture”), in each case, between the Company and The Bank of New York, as indenture trustee (the “Indenture Trustee”).

 

Capitalized terms that are used and not defined in this Agreement shall have the meanings set forth in the Purchase Contract Agreement.

 

Section 1. Appointment and Obligations of the Remarketing Agents. (a) Pursuant to Section 5.2(b)(i) of the Purchase Contract Agreement, the Purchase Contract Agent, in consultation with, and with the approval of, the Company, and as attorney-in-fact for the holders of the Units, hereby appoints the several remarketing agents named in Schedule I hereto as Remarketing Agents and Citigroup Global Markets Inc. as Representative of the Remarketing Agents. The Representative, on behalf of the Remarketing Agents, hereby accepts such appointment for the benefit of holders of the Trust Preferred Securities to be remarketed and for the purpose of (i) the remarketing (“Remarketing”) of the Remarketed Trust Preferred Securities (as defined below) pursuant to the remarketing procedures, as set forth in the Purchase Contract Agreement, the Pledge Agreement and the Declaration, as the case may be (such procedures, the “Remarketing Procedures”), on behalf of the holders thereof and (ii) performing such

 

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other duties as are assigned to the Remarketing Agents in the Remarketing Procedures and the Declaration, all in accordance with and pursuant to the Remarketing Procedures and the Declaration.

 

(b) The Remarketing Agents agree to use commercially reasonable best efforts to remarket the Remarketed Trust Preferred Securities in the Remarketing, and the Representative agrees (i) to notify the Company, the Trust, the Depositary and the Indenture Trustee promptly of the Reset Rate (as defined in the Declaration) in accordance with the Declaration and (ii) to establish the Reset Rate and carry out such other duties as are assigned to the Representative in the Remarketing Procedures, all in accordance with the provisions of the Remarketing Procedures and the Declaration.

 

(c) On the third Business Day immediately preceding February 15, 2004 (the “Remarketing Date”), the Remarketing Agents shall use commercially reasonable best efforts to remarket, at a price equal to at least 100.25% of the Remarketing Value, Trust Preferred Securities subject to the Remarketing as notified to the Representative by the Purchase Contract Agent and the Custodial Agent, on or prior to the first Business Day prior to the Remarketing Date (the “Remarketed Trust Preferred Securities”).

 

(d) If, as a result of the efforts described in Section 1(c), the Representative determines that the Remarketing Agents will be able to remarket all Remarketed Trust Preferred Securities for purchase at a price of 100.25% of the Remarketing Value prior to 4:00 P.M., New York City time, on the Remarketing Date, the Representative shall (i) determine the Reset Rate that will enable the Remarketing Agents to remarket all Remarketed Trust Preferred Securities, but in no event will the Reset Rate be lower than 7.00%, and (ii) purchase, for settlement no later than the third Business Day following the Remarketing Date, the Agent-purchased Treasury Consideration (as defined in the Purchase Contract Agreement).

 

(e) If, notwithstanding the efforts described in Section 1(c), the Representative, in consultation with the Company, determines that the Remarketing Agents cannot remarket the Remarketed Trust Preferred Securities on the Remarketing Date, the Representative will, in consultation with the Company, direct the Remarketing Agents to continue to attempt to remarket the Remarketed Trust Preferred Securities on one or more occasions until the Stock Purchase Date (as defined in the Purchase Contract Agreement) in accordance with the Remarketing Procedures (each such remarketing, the “Subsequent Remarketing”), provided that (i) the notice of any Subsequent Remarketing cannot be given until the Failed Remarketing notice has been published in accordance with the Remarketing Procedures in respect of any immediately preceding Failed Remarketing, (ii) a new notice to holders of Normal Units and holders of Separate Trust Preferred Securities shall have been delivered in accordance with Section 5.2(b)(i) of the Purchase Contract Agreement at least five business days prior to any Subsequent Remarketing and (iii) the Remarketing Date in respect of any Subsequent Remarketing must fall no later than on the Business Day (as defined in the Purchase Contract Agreement) immediately preceding the Stock Purchase Date (as defined in the Purchase Contract Agreement).

 

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(f) If, by 4:00 P.M., New York City time, on the Remarketing Date (including a Remarketing Date of any Subsequent Remarketing), the Representative, in consultation with the Company, determines that the Remarketing Agents are unable to remarket all the Remarketed Trust Preferred Securities, a failed Remarketing (“Failed Remarketing”) shall be deemed to have occurred, and the Representative shall, on such date, so advise by telephone (and promptly confirm in writing) the Purchase Contract Agent, the Indenture Trustee, the Company, the Trust, the Collateral Agent and the Property Trustee.

 

(g) On the third Business Day following any Failed Remarketing, the Representative shall, to the extent it has received any Remarketed Trust Preferred Securities from the Collateral Agent or the Custodial Agent, remit (i) to the Collateral Agent the Remarketed Trust Preferred Securities comprised of the Pledged Trust Preferred Securities, and (ii) to the Custodial Agent the balance of the Remarketed Trust Preferred Securities.

 

(h) By approximately 4:30 P.M., New York City time, on the Remarketing Date (or any Subsequent Remarketing Date), provided that there has not been a Failed Remarketing, the Representative shall advise, by telephone (i) the Company, the Trust, the Purchase Contract Agent, the Depositary and the Indenture Trustee of the Reset Rate determined in the Remarketing and the number of Remarketed Trust Preferred Securities remarketed in the Remarketing, (ii) each purchaser (or the Depositary Participant thereof) purchasing Remarketed Trust Preferred Securities sold in the Remarketing of the Reset Rate and the number of Remarketed Trust Preferred Securities such purchaser is to purchase and (iii) each purchaser to give instructions to its Depositary Participant to pay the purchase price on or prior to the third Business Day after the Remarketing Date in same day funds against delivery of the Remarketed Trust Preferred Securities purchased through the facilities of the Depositary.

 

(i) In accordance with the Depositary’s normal procedures, on the Remarketing Date (or any Subsequent Remarketing Date), the transactions described above with respect to each Remarketed Trust Preferred Security shall be executed through the Depositary, and the accounts of the respective Depositary participants shall be debited and credited, respectively, and such Trust Preferred Securities delivered by book-entry as necessary to effect purchases and remarketings of such Trust Preferred Securities.

 

(j) On the Remarketing Date (or any Subsequent Remarketing Date), the tender and settlement procedures set forth in this Section 1, including provisions for payment by purchasers of the Trust Preferred Securities in the Remarketing, shall, in consultation with the Company, be subject to modification to the extent required by the Depositary or if the book-entry system is no longer available for the Trust Preferred Securities at the time of the Remarketing, to facilitate the tendering and remarketing of

 

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the Trust Preferred Securities in certificated form. In addition, the Representative, in consultation with the Company, may modify the settlement procedures set forth herein in order to facilitate the settlement process.

 

(k) On the Remarketing Closing Date, in the event of a successful Remarketing, the Representative shall remit to the Collateral Agent for deposit to the Collateral Account through the Purchase Contract Agent the Agent-purchased Treasury Consideration.

 

(l) On the Remarketing Closing Date, in the event of a successful Remarketing, the Representative shall retain as a remarketing fee for itself and the other Remarketing Agents an amount not exceeding 25 basis points (0.25%) of the total proceeds from the sale of the Remarketed Trust Preferred Securities and each Remarketing Agent shall be entitled to the portion of the remarketing fees set forth in Schedule I hereto. The Representative shall use the portion of the proceeds attributable to the Trust Preferred Securities that were components of Equity Security Units to purchase (in open market or at treasury auction, in its discretion) the amount and types of U.S. Treasury securities set forth in clauses (A) and (B) of the definition of “Remarketing Value” in the Declaration and shall deliver such securities through the Purchase Contract Agent to the Collateral Agent for deposit to the Collateral Account to secure the obligations under the related purchase contracts of the Holders of Equity Security Units whose Trust Preferred Securities were included in the Remarketing. The Representative shall remit the portion of the proceeds (less the remarketing fees) pro rata to the original amount attributable to the Remarketed Trust Preferred Securities that were not components of Equity Security Units to the holders of such Trust Preferred Securities. No later than the third Business Day following the Remarketing Date, the Representative shall remit the remaining balance of the proceeds, if any, to the Purchase Contract Agent for the benefit of the Holders of Equity Security Units participating in the Remarketing.

 

(m) Terms of the Remarketing of the Trust Preferred Securities are also set forth in the Purchase Contract Agreement, the Pledge Agreement and the Declaration.

 

Section 2. Delivery and Payment. In the event of a successful Remarketing, delivery and payment for the Remarketed Trust Preferred Securities, and purchase and delivery of the Agent-purchased Consideration will occur no later than the third Business Day following the Remarketing Date (such date, the “Remarketing Closing Date”).

 

Section 3. Representations, Warranties and Agreements of the Company. The Company hereby represents, warrants and agrees as to itself and as to the Trust that on and as of the Remarketing Date as follows:

 

(a) A registration statement (File Nos. 333-82529 and 333-58474), as amended by Post-Effective Amendment No. 3, Post-Effective Amendment No. 2 and Post-Effective Amendment No. 1 to registration statement No. 333-82529 and Post-Effective Amendment No. 2 and Post-Effective Amendment No. 1 to registration

 

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statement No. 333-58474, of the Company and the Trust (collectively, the “Registration Statement”), including a prospectus (the “Base Prospectus”), relating to the Remarketing and the Remarketed Trust Preferred Securities, the Notes and the Guarantee (collectively, the “Securities”) has been filed under the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (the “Securities Act”) with the Securities and Exchange Commission (the “Commission”) and has become effective. The preliminary prospectus supplement, dated as of February 5, 2004, which forms a part of the Registration Statement as first filed pursuant to Rule 424(b) of the Securities Act is referred to herein as the “Preliminary Prospectus Supplement,” and the final prospectus supplement, dated as of February 11, 2004, which forms a part of the Registration Statement as first filed pursuant to Rule 424(b) of the Securities Act is referred to herein as the “Final Prospectus Supplement”. Unless the context otherwise requires, following a voluntary or involuntary dissolution, all references herein to the Trust Preferred Securities, shall be deemed to refer to the Notes.

 

(b) On the effective date of the Registration Statement, the Registration Statement, including documents incorporated by reference therein at such time, if applicable, conformed in all material respects to the requirements of the Securities Act, the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (“Trust Indenture Act”), and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and on the date hereof, the Registration Statement, any Preliminary Prospectus Supplement (including any Remarketing Materials) and the Final Prospectus Supplement (including any Remarketing Materials) will conform in all material respects to the requirements of the Securities Act and the Trust Indenture Act, and none of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, except that the foregoing does not apply to (i) statements in or omissions from any of such documents based upon written information furnished to the Company by the Representative, on behalf of the Remarketing Agents, if any, specifically for use therein or (ii) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act.

 

Reference made herein to the Base Prospectus, any Preliminary Prospectus Supplement, the Final Prospectus Supplement or any other information furnished by the Company to the Remarketing Agents for distribution to investors in connection with the Remarketing (the “Remarketing Materials”) shall be deemed to refer to and include any documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act as of the date of such Preliminary Prospectus Supplement or the Final Prospectus Supplement, as the case may be, or, in the case of Remarketing Materials, referred to as incorporated by reference therein, and any reference to any amendment or supplement to any Preliminary Prospectus Supplement, the Final Prospectus Supplement or the Remarketing Materials shall be deemed to refer to and include any document filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), after the

 

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date of such Preliminary Prospectus Supplement or the Final Prospectus Supplement incorporated by reference therein pursuant to Item 12 of Form S-3 or, if so incorporated, the Remarketing Materials, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to include any annual report of the Company or the Trust filed with the Commission pursuant to Section 13(a) or 15(d) of the Exchange Act after the date and time that the Registration Statement, or any post-effective amendment, declared effective by the Commission, that is incorporated by reference in the Registration Statement.

 

(c) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued and no proceeding for that purpose has been initiated or, to the Company’s knowledge, threatened by the Commission; and no order preventing or suspending the use of the Base Prospectus, the Preliminary Prospectus Supplement or the Final Prospectus Supplement has been issued by the Commission.

 

(d) The Trust has been duly created and is validly existing as a statutory trust in good standing under the Statutory Trust Act of the State of Delaware (the “Delaware Trust Act”) with the trust power and authority to own property and conduct its business as described in the Base Prospectus and the Final Prospectus Supplement; the Trust is not a party to or bound by any agreement or instrument and is not be a party to or bound by any agreement or instrument other than the Purchase Contract Agreement, the Declaration, the Pledge Agreement and this Agreement (the “Trust Agreements”) and the other agreements entered into in connection with the transactions contemplated hereby; the Trust has no liabilities or obligations other than those arising out of the transactions contemplated by this Agreement and the Declaration as described in the Final Prospectus Supplement; and the Trust is not a party to or subject to any action, suit or proceeding of any nature.

 

(e) Each of the Securities and the Trust Agreements, the Guarantee Agreement, the Indenture (the “Transaction Agreements”) and the Remarketing Agreement has been duly authorized by the Company and the Trust, as the case may be, and conforms to the description thereof contained in the Base Prospectus and the Final Prospectus Supplement.

 

(f) There are no preemptive or other rights to subscribe for or to purchase, nor is there any restriction on the voting or transfer of, any of the Securities pursuant to the Company’s Certificate of Incorporation or by-laws, the Declaration or any agreement or instrument, except as such preemptive or other rights and/or restrictions are expected with respect to the transactions contemplated by the Purchase Contract Agreement, the Pledge Agreement and the Declaration.

 

(g) The Notes have been duly executed, authenticated, issued and delivered as contemplated by the Indenture against payment of the agreed consideration therefor, have been duly and validly issued and outstanding, and constitute valid and binding obligations of the Company entitled to the benefits of the Indenture, and

 

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enforceable against the Company in accordance with their terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing.

 

(h) The Guarantee Agreement has been duly executed, authenticated, issued and delivered and constitutes a valid and binding obligation of the Company and is enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing.

 

(i) The Trust Securities have been validly issued, are fully paid and, in the case of the Trust Preferred Securities, non-assessable, and conform to the descriptions contained in the Base Prospectus and the Final Prospectus Supplement.

 

(j) Each of the Transaction Agreements has been duly authorized by the Company and has been duly executed by the proper officers of the Company and delivered by the Company, and constitutes a valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing.

 

(k) The Remarketing Agreement has been duly authorized by the Company and has been duly executed by the proper officers of the Company and delivered by the Company.

 

(l) The Remarketing, the execution, delivery and performance of the Transaction Agreements and the Remarketing Agreement, the issuance and sale or exchange, as the case may be, of the Securities and the consummation by the Company and the Trust, as the case may be, of the transactions contemplated hereby and thereby (collectively, the “Transactions”) has not or will not, as the case may be, (1) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company, any of its subsidiaries or the Trust is a party or by which the Company, any of its subsidiaries or the Trust is bound or to which any of the properties or assets of the Company, any of its subsidiaries or the Trust is subject, which would cause a material adverse change in the financial position, shareholders’ equity or results of operations of the Company, (2) result in any violation of the provisions of the charter or by-laws (or equivalent organizational documents) of the Company, any of its subsidiaries or the Trust or (3) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the

 

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Company, any of its subsidiaries, the Trust or any of their respective properties or assets, which would cause a material adverse change in the financial position, shareholders’ equity or results of operations of the Company, and (4) require any material consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body for the consummation of the Transaction Agreements, the Remarketing Agreement or the issuance and sale or exchange of the Securities, as the case may be, except for (a) the registration under the Securities Act of the Securities, (b) the qualification of the Indenture, the Guarantee Agreement and the Declaration under the Trust Indenture Act, and (c) such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the Remarketing.

 

Section 4. Fees and Expenses. The Company covenants and agrees with the Remarketing Agents that the Company will pay or cause to be paid the following: (i) the reasonable costs incident to the preparation of the Registration Statement and the Preliminary Prospectus Supplement, and the preparation and printing of the Final Prospectus Supplement and any Remarketing Materials and any amendments or supplements thereto; (ii) the reasonable costs of distributing the Registration Statement, the Preliminary Prospectus Supplement, the Final Prospectus Supplement and any Remarketing Materials and any amendments or supplements thereto; (iii) any reasonable fees and expenses of qualifying the Remarketed Trust Preferred Securities under the securities laws of the several jurisdictions as provided in Section 5(h) and of preparing, printing and distributing a Blue Sky memorandum (including related reasonable fees and expenses of counsel to the Remarketing Agents); (iv) the reasonable fees and expenses of counsel to the Remarketing Agents that shall have been incurred by them in connection with the Remarketing; and (v) all other reasonable costs and expenses incident to the performance of the obligations of the Company and the Trust hereunder.

 

Section 5. Further Agreements of the Company. The Company agrees to use its reasonable best efforts:

 

(a) To prepare the Registration Statement (including the Base Prospectus), the Preliminary Prospectus Supplement or the Final Prospectus Supplement, in a form reasonably approved by the Representative, in connection with the Remarketing, and to file any such Final Prospectus Supplement pursuant to the Securities Act within the period required by the Securities Act; prior to the termination of the Remarketing, to make no further amendment or any supplement to the Registration Statement, the Preliminary Prospectus Supplement, Final Prospectus Supplement or the Remarketing Materials which shall be reasonably disapproved by the Representative promptly after reasonable notice thereof; to advise the Representative, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Preliminary Prospectus Supplement or the Final Prospectus Supplement or any amended Final Prospectus Supplement has been filed and to furnish the Representative with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be

 

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filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Final Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the offering or sale of Remarketed Trust Preferred Securities; to advise the Representative, on behalf of the Remarketing Agents, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Final Prospectus Supplement or the Remarketing Materials, of the suspension of the qualification of the Remarketed Trust Preferred Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement, the Preliminary Prospectus Supplement, the Final Prospectus Supplement or the Remarketing Materials or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus Supplement, any Final Prospectus Supplement or the Remarketing Materials or suspending any such qualification, to use promptly its best efforts to obtain the withdrawal of such order.

 

(b) To furnish promptly to the Representative and to counsel for the Remarketing Agents a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith.

 

(c) Prior to 10:00 a.m. New York City time, on the New York Business Day (as defined in the Purchase Contract Agreement) next succeeding the date of this Agreement and from time to time, to deliver promptly to the Representative in New York City such number of the following documents as the Representative shall request: (i) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits), (ii) the Preliminary Prospectus Supplement, the Final Prospectus Supplement and any amended or supplemented Preliminary Prospectus Supplement or Final Prospectus Supplement and (iii) any Remarketing Materials; and, if the delivery of a prospectus is required at any time in connection with the Remarketing and if at such time any event shall have occurred as a result of which the Preliminary Prospectus Supplement or Final Prospectus Supplement or the Remarketing Materials as then amended or supplemented would include 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 when such Final Prospectus Supplement or the Remarketing Materials, as applicable, is delivered, not misleading, or if for any other reason it shall be necessary during such same period to amend or supplement the Preliminary Prospectus Supplement or Final Prospectus Supplement and the Remarketing Materials or to file under the Exchange Act any document incorporated by reference in the Final Prospectus Supplement in order to comply with the Securities Act or the Exchange Act, to notify the Representative, on behalf of the Remarketing Agents, and, upon its request, to file such document and to prepare and furnish without charge to the Remarketing Agents and to any dealer in Securities as many copies as the Representative, on behalf of the

 

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Remarketing Agents, may from time to time request of an amended or supplemented Final Prospectus Supplement which will correct such statement or omission or effect such compliance.

 

(d) For so long as the delivery of a prospectus is required in connection with the offering or sale of Remarketed Trust Preferred Securities, prior to the resignation or removal of the Representative pursuant to Section 8 herein, to file promptly with the Commission any amendment to the Registration Statement, the Preliminary Prospectus Supplement, or the Final Prospectus Supplement or any supplement to the Preliminary Prospectus Supplement or Final Prospectus Supplement that may, in the judgment of the Company or the Representative, be required by the Securities Act or requested by the Commission.

 

(e) Prior to filing with the Commission (i) any amendment to the Registration Statement or supplement to the Preliminary Prospectus Supplement or Final Prospectus Supplement or any document incorporated by reference in the Final Prospectus Supplement or (ii) any Preliminary Prospectus Supplement or Final Prospectus Supplement pursuant to Rule 424 of the Securities Act, to furnish a copy thereof to the Representative, on behalf of the Remarketing Agents, and counsel for the Remarketing Agents; and not to file any such amendment or supplement which shall be reasonably disapproved by the Representative promptly by reasonable notice.

 

(f) To make generally available to securityholders of the Company and of the Trust and to deliver to the Representative, on behalf of the Remarketing Agents, as soon as practicable, but in any event not later than eighteen months after the effective date of the post-effective amendment to the Registration Statement (as defined in Rule 158(c) under the Securities Act) dated January 23, 2004, an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act (including, at the option of the Company, Rule 158 under the Securities Act).

 

(g) Promptly from time to time to take such action as the Representative, on behalf of the Remarketing Agents, may reasonably request to qualify the Remarketed Trust Preferred Securities and the obligations of the Company under the Notes and the Guarantee for offering and sale under the securities laws of such jurisdictions as the Representative may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Trust Preferred Securities; provided that in connection therewith, neither the Company nor the Trust shall be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction.

 

Section 6. Conditions to the Remarketing Agents’ Obligations. The obligations of the Remarketing Agents hereunder are subject to the accuracy of the representations and warranties of the Company contained herein, to the performance by the Company of its obligations hereunder and to each of the following additional conditions. The following conditions shall be satisfied by either 9:00 a.m., New York

 

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City Time, on the Remarketing Date or by 9:00 a.m., New York City Time, on the Remarketing Closing Date, as the case may be. The Representative may in its sole discretion waive on behalf of the Remarketing Agents compliance with any conditions to their obligations hereunder. Any documents to be delivered to the Remarketing Agents pursuant to this Section 6 shall be delivered to the offices of Cravath, Swaine & Moore LLP, 825 Eighth Avenue, New York, New York 10019.

 

(a) PricewaterhouseCoopers LLP, the independent auditors, or another independent accounting firm with nationally recognized reputation, that have audited the consolidated financial statements of the Company, shall have furnished to the Remarketing Agents a letter or letters on the Remarketing Date and on the Remarketing Closing Date, dated the respective dates of delivery thereof and addressed to the Remarketing Agents, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” with respect to certain financial information contained in the Final Prospectus Supplement and in the Remarketing Materials.

 

(b) No stop order suspending the effectiveness of the Registration Statement or of any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or the trustees of the Trust, shall be contemplated by the Commission.

 

(c) Subsequent to the Remarketing Date, (i) there shall not have occurred any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Company, the Trust or its subsidiaries which, in the judgment of the Representative, materially impairs the investment quality of the Trust Securities, the Notes or the Guarantee; (ii) trading generally shall not have been suspended or materially limited on or by, as the case may be, any of the New York Stock Exchange, the American Stock Exchange, the National Association of Securities Dealers, Inc., the Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade; (iii) trading of any securities of the Company or the Trust shall not have been suspended on any exchange or in any over-the-counter market; (iv) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; (v) no banking moratorium shall have been declared by Federal or New York authorities; and (vi) there shall not have occurred any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of the Representative, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical to proceed with completion of the Remarketing.

 

(d) The Remarketing Agents shall have received a certificate, dated the Remarketing Closing Date, of any vice-president and a principal financial or accounting

 

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officer of the Company in which such officers, to the best of their knowledge after reasonable investigation, shall state that the representations and warranties of the Company in this Agreement are true and correct, that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Remarketing Closing Date, that no stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission and that, subsequent to the date of the most recent financial statements in the Final Prospectus Supplement, there has been no material adverse change in the business, financial position or results of operations of the Company and its subsidiaries except as set forth or contemplated by the Final Prospectus Supplement or as described in such certificate.

 

(e) Jay B. Stephens, Senior Vice President and General Counsel of the Company, shall have furnished to the Remarketing Agents his written opinion, dated the Remarketing Closing Date and addressed to the Remarketing Agents, in form and substance reasonably satisfactory to the Representative, to the effect that:

 

(i) The Company is duly incorporated, validly existing and in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and conduct its business as described in the Base Prospectus and the Final Prospectus Supplement; and the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which it owns or leases substantial properties or in which the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company.