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
7
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
8
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
9
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
10
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
