RAYTHEON COMPANY
7.00% Trust Preferred Security of RC Trust I
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[Date]
[NAME OF REMARKETING AGENT]
Ladies and Gentlemen:
[Name of Remarketing Agent], a _________________________________
(the "Remarketing Agent"), is 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 business 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").
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, 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") and 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, (the "Declaration").
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 class B common stock, par value $0.01 per share, of
the Company (as such class may be reclassified, with the class A common stock,
par value $0.01 per share, of the Company into one new class of common stock of
the Company, as set forth in the prospectus contained in the Company's and the
Trust's Registration Statement on Form S-3 filed April 6, 2001 under
"Description of Our Class A and Class B Common Stock - Reverse/Forward Stock
Split" and "--Reclassification of our Existing Two Classes of Common Stock into
a Single New Class of Common Stock" 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, as attorney-in-fact of the holders of the Unit, 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 and Bank One Trust Company, N.A., as custodial agent (the "Custodial
Agent") and Securities Intermediary ("Securities Intermediary"), to secure the
holders' obligation to
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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 Xx. 0," xxx "Xxxxxxxxxxxx Xxxxxxxxx Xx. 0,"
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
have the meanings set forth in the Terms Agreement dated May 3, 2001 between the
Company and the Underwriters named therein, which Terms Agreement incorporates
by reference and amends the Underwriting Agreement of the Company regarding Debt
Securities (collectively, the "Underwriting Agreement"), as the case may be. The
Underwriting Agreement is attached to this Agreement as Annex A.
Section 1. Appointment and Obligations of the Remarketing Agent.
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(a) The Company, the Purchase Contract Agent and the Trust hereby
appoint ____________ as exclusive Remarketing Agent (the "Remarketing Agent")
and ________________ hereby accepts appointment as Remarketing Agent, for the
purpose of (i) the remarketing ("Remarketing") the Trust Preferred Securities
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 other duties as are assigned to the Remarketing Agent in
the Remarketing Procedures and the Declaration, all in accordance with and
pursuant to the Remarketing Procedures and the Declaration.
(b) The Remarketing Agent agrees (i) to use commercially reasonable
best efforts to remarket the Remarketed Trust Preferred Securities (as defined
below) tendered or deemed tendered to the Remarketing Agent in the Remarketing,
(ii) 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 (iii) to establish the Reset Rate and carry out such other
duties as are assigned to the Remarketing Agent 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 Agent shall use its commercially
reasonable best efforts to remarket, at
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a price equal to at least 100.25% of the Remarketing Value, the Remarketed Trust
Preferred Securities tendered or deemed tendered for purchase.
(d) If, as a result of the efforts described in Section 1(b), the
Remarketing Agent determines that it will be able to remarket all Remarketed
Trust Preferred Securities tendered or deemed tendered for purchase at a price
of at least 100.25% of the Remarketing Value prior to 4:00 P.M., New York City
time, on the Remarketing Date, the Remarketing Agent shall (i) determine the
Reset Rate that will enable it to remarket all Remarketed Trust Preferred
Securities tendered or deemed tendered for Remarketing, but in no event will the
Reset Rate be lower than 7.00% (the initial rate), and (ii) commit to purchase,
on a third-day settlement basis, and on the third Business Day following the
Remarketing Date (the "Remarketing Date"), shall purchase, the Agent-purchased
Treasury Consideration (as defined in the Purchase Contract Agreement).
(e) If, notwithstanding the efforts described in Section 1(b), the
Remarketing Agent cannot remarket the Trust Preferred Securities on the
Remarketing Date, the Remarketing Agent will continue to attempt to remarket the
Trust Preferred Securities on one or more occasions until the Purchase Contract
Date (as defined in the Purchase Contract Agreement) in accordance with the
Remarketing Procedures and the Declaration (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 proceeding Failed Remarketing and (ii) 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
Purchase Contract Date (as defined in the Purchase Contract Agreement).
(f) If, by 4:00 P.M., New York City time, on the Remarketing Date
(including a Remarketing Date of any Subsequent Remarketing), the Remarketing
Agent is unable to remarket all the Trust Preferred Securities subject to the
Remarketing as notified to the Remarketing Agent 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") tendered or
deemed tendered for purchase, a failed Remarketing ("Failed Remarketing") shall
be deemed to have occurred, and the Remarketing Agent shall, on such date, so
advise by telephone 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 the Failed Remarketing, the
Remarketing Agent shall 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 Remarketing Agent 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
Preferred Securities sold in the Remarketing of the Reset Rate and the number of
Preferred Securities such purchaser is to purchase and (iii) each purchaser to
give instructions to its Depositary Participant to pay the purchase price on the
Purchase Contract Settlement Date in same day funds against delivery of the
Preferred Securities purchased through the facilities of the Depositary.
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(i) In accordance with the Depositary's normal procedures, on the
Remarketing Date, the transactions described above with respect to each Trust
Preferred Security tendered for purchase and remarketed in the Remarketing 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, the tender and settlement procedures
set in this Section 1, including provisions for payment by purchasers of the
Trust Preferred Securities in the Remarketing, shall 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 the Trust Preferred
Securities in certificated form. In addition, the Remarketing Agent may modify
the settlement procedures set forth herein in order to facilitate the settlement
process.
(k) On the Remarketing Date, the Remarketing Agent shall remit to
the Collateral Agent through the Purchase Contract Agent and the Agent-purchased
Treasury Consideration, as defined in the Purchase Contract Agreement.
(l) On the Remarketing Date, the Remarketing Agent shall retain as a
remarketing fee for itself an amount not exceeding 25 basis points (0.25%) of
the total proceeds from the sale of the Remarketed Capital Securities. The
Remarketing Agent shall (i) use the portion of the proceeds attributable to the
Preferred Securities that were components of Equity Securities 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 Section 7.13(o)
of the Declaration of the definition of "Remarketing Value" (as defined in the
Declaration) and shall deliver such securities through the Purchase Contract
Agent to the Collateral Agent to secure the obligations under the related
purchase contracts of the Holders of Equity Security Units whose Preferred
Securities were included in the Remarketing. The Remarketing Agent shall remit
the portion of the proceeds attributable to the Preferred Securities that were
not components of Equity Security Units to the holders of such Preferred
Securities. The Remarketing Agent shall remit any 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) The Remarketing of the Trust Preferred Securities is also
provided for in the Purchase Contract Agreement, the Pledge Agreement and the
Declaration.
Section 2. Representations, Warranties and Agreements of the Company
and the Trust. The Company and the Trust, jointly and severally, hereby
represent, warrant and agree as to itself and as to the Trust that, (i) on and
as of the date hereof, (ii) on and as of the date the Prospectus or other
Remarketing Materials (each as defined below) are first distributed in
connection with the Remarketing (the "Commencement Date"), and (iii) on and as
of the Remarketing Date, as follows:
[(a) IN THE EVENT THAT A REGISTRATION STATEMENT IS NOT REQUIRED
INSERT THE FOLLOWING: The Company has provided to the Remarketing Agent, for use
in connection with remarketing of the Trust Preferred Securities, a preliminary
remarketing memorandum and remarketing memorandum [AND, DESCRIBE OTHER MATERIALS
IF ANY]. Such remarketing memorandum (including the documents incorporated or
deemed incorporated by reference therein, [AND DESCRIBE OTHER MATERIALS] are
hereafter called, collectively, the "Prospectus," and such preliminary marketing
memorandum (including the documents incorporated or deemed incorporated by
reference therein) is hereafter called a "Preliminary Prospectus"). The Company
hereby consents to the use of the Prospectus and the Preliminary Prospectus in
connection with the Remarketing.]
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[IN THE EVENT THAT A REGISTRATION STATEMENT IS REQUIRED INSERT THE
FOLLOWING: A registration statement (File No. 333-_________) of the Company and
the Trust (the "Registration Statement"), including a 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 which
forms a part of the Registration Statement as first filed pursuant to Rule
424)(b) of the Securities Act and any related Remarketing Materials (as defined
below) is referred to herein as the "Preliminary Prospectus," and the final
preliminary prospectus which forms a part of the Registration Statement as first
filed pursuant to Rule 424)(b) of the Securities Act and any Remarketing
Materials is referred to herein as the "Prospectus". 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 made the statements
therein not misleading; and on the date hereof, the Registration Statement, any
Preliminary Prospectus (including any Remarketing Materials) and the Prospectus
(including any Remarketing Materials) will conform in all material respects to
the requirements of the Securities Act and the Trust Indenture Act, and neither
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 Remarketing Agent, 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 any Preliminary Prospectus, the Prospectus
or any other information furnished by the Company to the Remarketing Agent 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 or the Prospectus, 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, the Prospectus 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 date of such Preliminary
Prospectus or the Prospectus 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-
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effective amendment, is 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 Preliminary Prospectus or the Prospectus has been issued by the Commission.
(d) The Trust has been duly created and is validly existing as a
statutory business trust in good standing under the Business 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 Prospectus; 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 Prospectus; 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 and the Indenture (the "Transaction Agreements") has been duly
authorized by the Company and the Trust, as the case may be, and conforms or
will conform, as the case may be, to the description thereof contained in the
Prospectus.
(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 Units and the Purchase Contracts have been duly executed and
delivered by the Company and have been duly and validly issued and outstanding,
and constitute valid and binding obligations of the Company entitled to the
benefits of the Purchase Contract Agreement and 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 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 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'
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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 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.
(j) The Trust Securities have been validly issued, are fully paid
and, in the case of the Trust Preferred Securities, non-assessable, and will
conform to the descriptions contained in the Prospectus.
(k) The unissued shares of Common Stock to be issued and sold by the
Company upon settlement of the Purchase Contracts have been reserved for
issuance and, when issued and delivered in accordance with the provisions of the
Purchase Contracts, will be duly and validly issued, fully paid and
non-assessable.
(l) 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.
(m) The Securities and the Transaction Agreements will conform to
the descriptions thereof contained in the Prospectus.
(n) The Remarketing, the execution, delivery and performance of the
Transaction Agreements, 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 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
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with, any such court or governmental agency or body for the consummation of the
Transaction Agreements 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 3. Fees and Expenses. The Company and the Trust, jointly and
severally, covenant and agree with the Remarketing Agent that the Company will
pay or cause to be paid the following: (i) the costs incident to the preparation
and printing of the Registration Statement, the Preliminary Prospectus, the
Prospectus and any Remarketing Materials and any amendments or supplements
thereto; (ii) the costs of distributing the Registration Statement, the
Preliminary Prospectus, the Prospectus and any Remarketing Materials and any
amendments or supplements thereto; (iii) any fees and expenses of qualifying the
Remarketed Trust Preferred Securities under the Securities laws of the several
jurisdictions as provided in Section 4(g) and of preparing, printing and
distributing a Blue Sky memorandum (including related fees and expenses of
counsel to the Remarketing Agent); and (iv) all other costs and expenses
incident to the performance of the obligations of the Company and the Trust
hereunder.
Section 4. Further Agreements of the Company. The Company and the
Trust agree, jointly and severally agree to use their reasonable best efforts:
(a) To prepare the Registration Statement, the Preliminary
Prospectus or the Prospectus, or if none is required, a remarketing memorandum,
including any preliminary remarketing memorandum, in each case, in a form
approved by the Remarketing Agent, in connection with the Remarketing, and to
file any such Prospectus pursuant to the Securities Act within the period
required by the Securities Act; to make no further amendment or any supplement
to the Registration Statement, the Preliminary Prospectus, Prospectus or the
Remarketing Materials which shall be reasonably disapproved by the Remarketing
Agent promptly after reasonably notice thereof; to advise the Remarketing Agent,
promptly after either of them 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 or the Prospectus or any amended
Prospectus has been filed and to furnish the Remarketing Agent with copies
thereof; to file promptly all reports and any definitive proxy or information
statements required to be 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 Prospectus 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 Remarketing Agent, 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 Prospectus 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, the Prospectus 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 or any Prospectus
or the Remarketing Materials or suspending any such qualification, to use
promptly its best efforts to obtain the withdrawal of such order.
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(b) To furnish promptly to the Remarketing Agent and to counsel for
the Remarketing Agent 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 Remarketing
Agent in New York City such number of the following documents as the Remarketing
Agent shall request: (i) conformed copies of the Registration Statement as
originally filed with the Commission and each amendment thereto (in each case
excluding exhibits other than this Agreement, the Declaration, the Purchase
Contract Agreement and the Indenture, (ii) the Preliminary Prospectus, the
Prospectus and any amended or supplemented Preliminary Prospectus or Prospectus,
(iii) any document incorporated by reference in the Preliminary Prospectus,
Prospectus and the Remarketing Materials (excluding exhibits thereto) and (iv)
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 or Prospectus 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 Prospectus 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 or Prospectus and the Remarketing Materials or to file under the
Exchange Act any document incorporated by reference in the Prospectus in order
to comply with the Securities Act or the Exchange Act, to notify the Remarketing
Agent and, upon its request, to file such document and to prepare and furnish
without charge to the Remarketing Agent and to any dealer in Securities as many
copies as the Remarketing Agent may from time to time request of an amended or
supplemented Prospectus which will correct such statement or omission or effect
such compliance.
(d) To file promptly with the Commission any amendment to the
Registration Statement, the Preliminary Prospectus, or the Prospectus or any
supplement to the Preliminary Prospectus or Prospectus that may, in the judgment
of the Company or the Remarketing Agent, 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 or Prospectus
or any document incorporated by reference in the Prospectus or (ii) any
Preliminary Prospectus or Prospectus pursuant to Rule 424 of the Securities Act,
to furnish a copy thereof to the Remarketing Agent and counsel for the
Remarketing Agent; and not to file any such amendment or supplement which shall
be disapproved by the Remarketing Agent promptly by reasonable notice.
(f) To make generally available to securityholders of the Company
and of the Trust and to deliver to the Remarketing Agent, as soon as
practicable, but in any event not later than eighteen months after the effective
date of the Registration Statement (as defined in Rule 158(c) under the
Securities Act), 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
10
option of the Company, Rule 158 under the Securities Act); as soon as
practicable after the Effective Date of the Registration Statement to make
generally available to the Company's securityholders and to deliver to the
Remarketing Agent 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).
(g) Promptly from time to time to take such action as the
Remarketing Agent 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 Remarketing Agent 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 5. Conditions to the Remarketing Agent's Obligations. The
obligations of the Remarketing Agent hereunder are subject to the accuracy, on
and as of the date when made, of the representations and warranties of the
Company and the Trust, jointly and severally, contained herein, to the
performance by the Company and the Trust, jointly and severally, of their
obligations hereunder and to each of the following additional conditions. The
Remarketing Agent may in its sole discretion waive on their behalf compliance
with any conditions to its obligations hereunder.
(a) On the Remarketing Date at 9:30 a.m., New York City time,
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 Agent a letter or letters, dated the respective dates of delivery
thereof, in form and substance reasonably satisfactory to the Remarketing Agent,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" with respect to certain financial information
contained in the Prospectus 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 execution of this Agreement (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 Remarketing Agent,
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,
11
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 Remarketing Agent, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical to proceed with
completion of the Remarketing.
(d) The Trust Preferred Securities shall have been duly listed, on
the New York Stock Exchange.
(e) The Company and the Trust shall have complied with the
provisions of Section 4(c) hereof with respect to the furnishing of a Prospectus
on the New York Business Day next succeeding the date of this Agreement.
(f) The Remarketing Agent shall have received a certificate, dated
the Remarketing Date, of any vice-president and a principal financial or
accounting 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 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 Prospectus, 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 Prospectus or as described in such certificate.
(g) Xxxxxx X. Xxxx, Senior Vice President and General Counsel of the
Company, shall have furnished to the Remarketing Agent his written opinion,
dated the Remarketing Date, in form and substance reasonably satisfactory to the
Remarketing Agent, 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 Prospectus; 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.
(ii) The Notes have been duly authorized, executed and
delivered by the Company and (assuming due authentication by the Indenture
Trustee) constitute valid and binding obligations of the Company entitled
to the benefits of the Indenture and are enforceable against the Company
in accordance with their terms, subject to the effects of
12
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.
(iii) The Trust Preferred Securities have been duly
authorized, executed and delivered by the Company and (assuming due
authentication by the Property Trustee) constitute valid and binding
obligations of the Company entitled to the benefits of the Declaration and
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.
(iv) The Guarantee Agreement has been duly authorized,
executed and delivered by the Company and (assuming due authentication by
the Guarantee Trustee) constitutes valid and binding obligations of the
Company and 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.
(v) The execution, delivery and performance of the
Transaction Agreements and the and the issuance and
sale of the Securities and compliance with the terms and provisions
thereof did not and will not, as the case may be, result in a breach or
violation of any of the terms and provisions of or constitute a default
under (a) any order known to such counsel of any governmental agency
having jurisdiction over the Company or any of its properties or any
agreement or instrument known to such counsel to which the Company is a
party or by which the Company is bound or to which any of the properties
of the Company is subject, which would cause a material adverse change in
the financial position, shareholders' equity or results of operations of
the Company or affect the validity of the Securities or the legal
authority of the Company to comply with the terms of the Securities or the
Transaction Agreements or (B) the Certificate of Incorporation or by-laws
of the Company, and the Company has full power and authority to authorize
and cause the Preferred Securities to be Remarketed as contemplated by
this Agreement.
(vi) The unissued shares of Common Stock to be issued and
sold by the Company pursuant to the Purchase Contracts have been duly and
validly authorized and reserved for issuance and when issued and delivered
in accordance with the provisions of the Purchase Contracts, will be duly
and validly issued, fully paid and non-assessable.
(vii) Each of the Transaction Agreements has been duly
authorized, executed 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 or other
similar laws now or hereafter in effect relating to creditors' rights
generally,
13
general equitable principles (whether considered in a proceeding in equity
or at law) and an implied covenant of good faith and fair dealing.
(viii)The has been duly authorized,
executed and delivered by the Company.
(ix) No authorization, approval or consent of any governmental
authority or agency is necessary in connection with the transactions
contemplated by the , except such as may be required
under the Securities Act and state securities or Blue Sky laws.
(x) There are no preemptive or other rights to subscribe
for or to purchase, nor any restriction upon the voting or transfer of,
any Securities issuable pursuant to the Company's Certificate of
Incorporation or by-laws or any agreement or other instrument known to
such counsel, 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
of Trust.
In addition, Xx. Xxxx shall state that he or others working under
his supervision have participated in conferences with officers and other
representatives of the Company, outside counsel for the Company, representatives
of the independent public accountants for the Company, and the Remarketing
Agent, at which the contents of the Registration Statement and Prospectus and
related matters were discussed and, although he is not passing upon, and does
not assume any responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement and Prospectus, on the basis
of the foregoing and on his ongoing representation of the Company, no facts have
come to his attention that lead him to believe that (i) such registration
statement, at the time such registration statement became effective, or the
Registration Statement, as of the date of this Agreement, or any amendment or
supplement to the Registration Statement or the Prospectus, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
(ii) that the Prospectus, as of its date and the Remarketing Date, contained an
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, except that he need express no opinion
with respect to the financial statements, schedules and other financial and
statistical data included or incorporated by reference in the Registration
Statement or Prospectus or with respect to the Form T-1.
Notwithstanding of any of the forgoing, if the securities subject to
the Remarketing are the Notes, such counsel shall have furnished to the
Remarketing Agent his written opinion, dated the Remarketing Date, in form and
substance reasonably satisfactory to the Remarketing Agent, to the effect set
forth above, with such modifications as the Remarketing Agent deems appropriate
to reflect the fact that such opinion is given in connection with the
Remarketing of the Notes.
(h) Wachtell, Lipton, Xxxxx & Xxxx, special counsel the Company, who
may rely as to the approval or consent of non-Federal governmental authorities
upon the opinion of Xxxxxx X. Xxxx, Esq. referred to above, shall have furnished
to the Remarketing Agent their
14
written opinion, dated the Remarketing Date, in form and substance reasonably
satisfactory to Remarketing Agent, to the effect that:
(i) The Securities and the Transaction Agreements conform
or will conform in all material respects to the descriptions thereof
contained in the Prospectus.
(ii) [IF A TAX SECTION IS IN THE PROSPECTUS, INCLUDE THIS
PARAGRAPH AND MODIFY AS APPROPRIATE. Based upon current law, the
assumptions and facts stated or referred to in the Final Prospectus
Supplement (including under the caption "U.S. Federal Income Tax
Consequences") and certain representations the Remarketing Agent and
Raytheon Company have provided to us and subject to the qualifications and
limitations set forth in the Final Prospectus Supplement (including under
the caption "U.S. Federal Income Tax Consequences"), the statements set
forth in the Final Prospectus Supplement under the caption "U.S. Federal
Income Tax Consequences," insofar as they purport to constitute summaries
of United States federal income tax laws and regulations or legal
conclusions with respect thereto (but not insofar as they relate to
expectations, intentions or determinations), constitute accurate summaries
of the matters described under such caption in all material respects.]
(iii) The Second Supplemental Indenture, the Declaration
and the Guarantee Agreement have been duly qualified under the Trust
Indenture Act.
(iv) The Registration Statement has become effective
under the Securities Act, and, to the best of such counsel's knowledge, no
stop order suspending the effectiveness of the Registration Statement or
any part thereof has been issued and no proceedings for that purpose have
been instituted or are pending or contemplated.
(v) The Registration Statements, relating to the Securities,
as of its effective date, the Registration Statement and the Prospectus,
as of the date of this Agreement, and each amendment or supplement
thereto, as of their respective effective or mailing dates (but excluding
the financial statements and schedules and other financial and statistical
data and the Form T-1 included or incorporated by reference therein, as to
which such counsel need express no opinion) complied as to form in all
material respects with the Securities Act, the Trust Indenture Act and the
Exchange Act, as applicable.
(vi) Such counsel do not know of any legal or governmental
proceedings required to be described in the Prospectus which are not
described as required, nor of any contracts or documents of a character
required to be described in the Registration Statement or Prospectus or to
be filed as exhibits to the Registration Statement which are not described
and filed as required.
(vii) No authorization, approval or consent of any
governmental authority or agency is necessary in connection with the
transactions contemplated by the , except such as may
be required under the Securities Act and state securities Blue Sky Laws.
(viii) The provisions of the Pledge Agreement created in
favor of the Collateral Agent for the benefit of the Company, a valid
security interest under the
15
Uniform Commercial Code as in effect on the date of such opinion in
the State of New York (the "New York UCC") in the Pledged Preferred
Securities, Pledged Subordinated Note, Applicable Ownership Interests (as
specified in clause (A) of the definition thereof in the Declaration) of
the Treasury Portfolio and Pledged Treasury Securities, as defined in
Declaration, from time to time credited to the Collateral Account in
accordance with the Pledge Agreement. For purposes of such counsel's
opinion, capitalized terms used in this paragraph shall have the meanings
ascribed to such terms in the Pledge Agreement.
(i) Xxxxxxxx, Xxxxxx & Finger, P.A. shall have furnished to the
Remarketing Agent its written opinion, as special Delaware counsel to the
Company and the Trust, addressed to the Remarketing Agent and dated such
Remarketing Date, in form and substance satisfactory to the Remarketing Agent,
to the effect that:
(i) The Trust has been duly created and is validly existing
in good standing as a business trust under the Delaware Trust Act. Under
the Delaware Business Trust Act and the Declaration, the Trust has the
trust power and authority to own property and to conduct its business as
described in the Prospectus and to enter into and perform its obligations
under this Agreement and the Trust Securities.
(ii) The Common Securities have been duly authorized by the
Declaration and are fully paid undivided beneficial interests in the
assets of the Trust (such counsel may note that the holders of Common
Securities will be subject to the withholding provisions of the
Declaration, will be required to make payment or provide indemnity or
security as set forth in the Declaration and will be liable for the debts
and obligations of the Trust to the extent provided in the Declaration);
under the Delaware Business Trust Act and the Declaration, the issuance of
the Common Securities is not subject to preemptive rights.
(iii) The Trust Preferred Securities have been duly
authorized by the Declaration and have been validly issued and (subject to
the terms in this paragraph) are fully paid and are non-assessable
undivided beneficial interests in the assets of the Trust, the holders of
the Trust Preferred Securities are entitled to the benefits of the
Declaration (subject to the limitations set forth in clause (v) below) and
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware (such counsel may note
that the holders of Trust Preferred Securities will be subject to the
withholding provisions of the Declaration and will be required to make
payment or provide indemnity or security as set forth in the Declaration);
under the Delaware Business Trust Act and the Declaration, the issuance of
the Trust Preferred Securities is not subject to preemptive rights.
(iv) Assuming the Declaration has been duly authorized by
the Company and has been duly executed and delivered by the Company and
the Regular Trustees, and assuming due authorization, execution and
delivery of the Declaration by the Property Trustee and the Delaware
Trustee, the Declaration constitutes a valid and binding obligation of the
Company and the Regular Trustees, and is enforceable against the
16
Company and the Regular Trustees, in accordance with its terms, except to
the extent that enforcement thereof may be limited by bankruptcy,
insolvency, moratorium, receivership, reorganization, liquidation,
fraudulent conveyance or transfer and other similar laws relating to or
affecting the rights and remedies of creditors generally, principles of
equity, including applicable law relating to fiduciary duties (regardless
of whether considered and applied in a proceeding in equity or at law),
and (iii) the effect of applicable public policy on the enforceability of
provisions relating to indemnification or contribution.
(v) The issuance by the Trust of the Trust Securities in
exchange for the Notes and the consummation by the Trust of the
transactions contemplated by the do not violate any
of the provisions of the Certificate of Trust or the Declaration or any
applicable Delaware law or administrative regulation.
(vi) Assuming that the Trust derives no income from or
connected with sources within the State of Delaware and has no assets,
activities (other than having a Delaware Trustee as required by the
Delaware Business Trust Act and the filing of documents with the Secretary
of State of Delaware) or employees in the state of Delaware, no filing
with, or authorization, approval consent, license, order, registration,
qualification or decree of, or with any Delaware court or Delaware
governmental authority or agency (other than as may be required under the
securities or blue sky laws of the state of Delaware, as to which such
counsel need express no opinion) is necessary or required to be obtained
by the Trust solely in connection with the due authorization, execution
and delivery by the Trust of the or the offering,
issuance, exchange or delivery of the Trust Preferred Securities.
(j) Xxxxx Xxxxxx & Xxxxxx shall have furnished to the Remarketing
Agent its written opinion, as counsel to The Bank of New York, as Property
Trustee, Guarantee Trustee and Indenture Trustee, addressed to the Remarketing
Agent and dated the Remarketing Date, in form and substance satisfactory to the
Remarketing Agent, to the effect that:
(i) Each of the Property Trustee, the Guarantee Trustee and
the Indenture Trustee, is duly incorporated as a New York banking
corporation with all necessary power and authority to execute and deliver
and perform their respective obligations under the terms of the
Declaration and the Guarantee Agreement.
(ii) The execution, delivery and performance by the Property
Trustee of the Declaration, the execution, delivery and performance by the
Guarantee Trustee of the Guarantee Agreement and the execution, delivery
and performance by the Indenture Trustee of the Indenture have been duly
authorized by all necessary corporate action on the part of the Property
Trustee, the Guarantee Trustee and the Indenture Trustee, respectively.
The Declaration has been duly executed and delivered by the Property
Trustee, the Guarantee Agreement has been duly executed and delivered by
the Guarantee Trustee and the Indenture has been duly executed and
delivered by the Indenture Trustee, and each constitutes the valid and
binding agreement of the Property Trustee, the Guarantee Trustee and the
Indenture Trustee,
17
respectively, enforceable against the Property Trustee, the Guarantee
Trustee and the Indenture Trustee, respectively, 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.
(iii) The execution, delivery and performance of the
Declaration, the Guarantee Agreement and the Indenture by the Property
Trustee, the Guarantee Trustee and the Indenture Trustee, respectively, do
not conflict with or constitute a breach of the charter or by-laws of the
Property Trustee, the Guarantee Trustee and the Indenture Trustee,
respectively.
(iv) No consent, approval or authorization of, or
registration with or notice to, any New York or federal banking authority
is required for the execution, delivery or performance by the Property
Trustee, the Guarantee Trustee and the Indenture Trustee of the
Declaration and the Guarantee Agreement, respectively.
(k) Xxxxxxxx, Xxxxxx & Finger, P.A. shall have furnished to the
Remarketing Agent its written opinion, with respect to The Bank of New York
(Delaware), as Delaware Trustee, addressed to the Remarketing Agent and dated
such Remarketing Date, in form and substance satisfactory to the Remarketing
Agent, to the effect that:
(i) The Delaware Trustee has been duly incorporated and is
validly existing as a banking corporation in good standing under the laws
of the State of Delaware with all necessary corporate power and authority
to execute and deliver, and to carry out and perform its obligations
under, the terms of the Declaration.
(ii) The execution, delivery and performance by the
Delaware Trustee of the Declaration have been duly authorized by all
necessary corporate action on the part of the Delaware Trustee. The
Declaration constitutes the valid and binding agreement of the Delaware
Trustee, and is enforceable against the Delaware Trustee, in accordance
with its terms, subject to bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent conveyance or
transfer and other similar laws relating to or affecting the rights and
remedies of creditors generally, principles of equity, including
applicable law relating to fiduciary duties (regardless of whether
considered and applied in a proceeding in equity or at law), and the
effect of applicable public policy on the enforceability of provisions
relating to indemnification or contribution.
(iii) The execution, delivery and performance of the
Declaration by the Delaware Trustee do not conflict with or constitute a
breach of the charter or by-laws of the Delaware Trustee.
(iv) No consent, approval or authorization of, or
registration with or notice to, any Delaware or federal banking authority
is required for the execution, delivery or performance by the Delaware
Trustee of the Declaration.
(l) Xxxxx Xxxxxx & Xxxxxx shall have furnished to the Remarketing
Agent its written opinion, as counsel to The Bank of New York, as Purchase
Contract Agent, addressed to
18
the Remarketing Agent and dated such Remarketing Date, in form and substance
satisfactory to the Remarketing Agent, to the effect that:
(i) The Purchase Contract Agent is duly incorporated as a
New York banking corporation with all necessary power and authority to
execute, deliver and perform its obligations under the Purchase Contract
Agreement and the Pledge Agreement.
(ii) The execution, delivery and performance by the
Purchase Contract Agent of the Purchase Contract Agreement and the Pledge
Agreement, and the authentication and delivery of the Units have been duly
authorized by all necessary corporate action on the part of the Purchase
Contract Agent. The Purchase Contract Agreement and the Pledge Agreement
have been duly executed and delivered by the Purchase Contract Agent, and
constitute the valid and binding agreements of the Purchase Contract
Agent, enforceable against the Purchase Contract Agent 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.
(iii) The execution, delivery and performance of the
Purchase Contract Agreement and the Pledge Agreement by the Purchase
Contract Agent does not conflict with or constitute a breach of the
charter or by-laws of the Purchase Contract Agent.
(iv) No consent, approval or authorization of, or
registration with or notice to, any state or federal governmental
authority or agency is required for the execution, delivery or performance
by the Purchase Contract Agent of the Purchase Contract Agreement and the
Pledge Agreement.
Notwithstanding of any of the foregoing, if the Securities subject
to the Remarketing are the Notes, such counsel shall have furnished to the
Remarketing Agent their written opinion, dated the Remarketing Date, in form and
substance reasonably satisfactory to the Remarketing Agent, to the effect set
forth above, with such modifications as the Remarketing Agent deems appropriate
to reflect the fact that such opinion is given in connection with the
Remarketing of the Notes.
(m) The Law Department of Bank One Corporation shall have furnished
to the Remarketing Agent its written opinion, as counsel to Bank One Trust
Company, N.A., as Collateral Agent, Custodial Agent and Securities Intermediary,
addressed to the Remarketing Agent and dated such Remarketing Date, in form and
substance satisfactory to the Remarketing Agent, to the effect that:
(i) Each of the Collateral Agent, Custodial Agent and
Securities Intermediary is duly incorporated as a New York banking
corporation with all necessary power and authority to execute, deliver and
perform its obligations under the Pledge Agreement.
19
(ii) The execution, delivery and performance by the
Purchase Contract Agent of the Purchase Contract Agreement and the Pledge
Agreement, and the authentication and delivery of the Units have been duly
authorized by all necessary corporate action on the part of the Purchase
Contract Agent. The Purchase Contract Agreement and the Pledge Agreement
have been duly executed and delivered by the Purchase Contract Agent, and
constitute the valid and binding agreements of the Purchase Contract
Agent, enforceable against the Purchase Contract Agent 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.
(iii) The execution, delivery and performance of the Purchase
Contract Agreement and the Pledge Agreement by the Purchase Contract Agent
does not conflict with or constitute a breach of the charter or by-laws of
the Purchase Contract Agent.
(iv) No consent, approval or authorization of, or
registration with or notice to, any state or federal governmental
authority or agency is required for the execution, delivery or performance
by the Purchase Contract Agent of the Purchase Contract Agreement and the
Pledge Agreement.
Notwithstanding of any of the foregoing, if the Securities subject
to the Remarketing are the Notes, such counsel shall have furnished to the
Remarketing Agent their written opinion, dated the Remarketing Date, in form and
substance reasonably satisfactory to the Remarketing Agent, to the effect set
forth above, with such modifications as the Remarketing Agent deems appropriate
to reflect the fact that such opinion is given in connection with the
Remarketing of the Notes.
(n) The Trust and the Company will furnish the Remarketing Agent
with such conformed copies of such opinions, certificates, letters and documents
as the Remarketing Agent may reasonably request.
(o) Xxxxxxx Xxxxxxx & Xxxxxxxx counsel for the Remarketing Agent,
shall have furnished to the Remarketing Agent such written opinion or opinions
dated the Remarketing Date, with respect to the validity of the Securities, the
Registration Statement, the Prospectus and other related matters as the
Remarketing Agent may reasonably request, and such counsel shall have received
such papers and information as they may reasonably request to enable them to
pass upon such matters.
(p) The Remarketing Agent shall have received a certificate, dated
the Remarketing Date, of any vice-president and a principal financial or
accounting 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
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
20
Commission and that, subsequent to the date of the most recent financial
statements in the Prospectus, 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 Prospectus or as
described in such certificate.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to the Remarketing Agent.
Section 6. Indemnification and Contribution. Section 6 of the
Underwriting Agreement is hereby incorporated by reference into this Agreement
and is hereby amended as follows:
(a) The phrase "The Company" in the first clause of the first
sentence of Section 6(a) is replaced by the phrase "The Company and the Trust,
jointly and severally"; and the phrase "the Company" in the three places it
appears in the proviso of Section 6(a) and in Sections 6(b), (d) and (e) is
replaced by the phrase "the Company and the Trust."
(b) The phrase "each Underwriter", "such Underwriter", "any
Underwriter", "any Underwriter through the Representatives", "the
Representatives" or any phrases with correlative meaning are replaced by the
phrase "the Remarketing Agent."
(c) For purposes of this Section, the phrase "the Prospectus" is
replaced with the phrase "the Prospectus and the Remarketing Materials, as the
case may be".
(d) The second sentence of paragraph (d) of Section 6 is replaced by
the following sentence: "The relative benefits received by the Company on the
one hand and the Remarketing Agent on the other shall be deemed to be in the
same proportion as the aggregate stated liquidation amount (if the remarketed
securities are the Trust Preferred Securities) or the aggregate principal amount
(if the remarketed securities are the Notes) of the remarketed Securities bear
to the remarketing fees received by the Remarketing Agent from the Company under
this Agreement."
(e) The fourth sentence of paragraph (d) of Section 6 is replaced by
the following sentence: "Notwithstanding the provisions of this subsection (d),
the Remarketing Agent shall not be required to contribute any amount in excess
of the amount by which the aggregate stated liquidation amount (if the
remarketed securities are the Trust Preferred Securities) or aggregate principal
amount if the remarketed securities are the Notes) of the remarketed securities
exceeds the amount of any damages which the Remarketing Agent has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission."
Section 7. Resignation and Removal of the Remarketing Agent. The
Remarketing Agent may resign and be discharged from its duties and obligations
hereunder by giving 60 days' prior written notice to the Company, the Depositary
and the Indenture Trustee. The Company may remove the Remarketing Agent by
giving 60 days' prior written notice to the removed Remarketing Agent, the
Depositary and the Indenture Trustee upon any of (i) the Remarketing Agent
becomes involved as a debtor in a bankruptcy, insolvency or similar
21
proceeding; (ii) the Remarketing Agent shall be subject to one or more legal
restrictions preventing the performance of its obligations hereunder; or (iv)
the Remarketing Agent shall determine that (A) there has been an occurrence of a
material adverse change of the kind described under Section 5(b) or (B) using
its commercially reasonable efforts, the Remarketing Agent would be unable to
consummate the Remarketing on the terms and in the manner contemplated in the
Prospectus and the Remarketing Materials.
Notwithstanding any other provision in this Section 7, no such
resignation nor any such removal shall become effective until the Company shall
have appointed at least one nationally recognized broker-dealer as successor
Remarketing Agent and such successor Remarketing Agent shall have entered into a
with the Company, in which it shall have agreed to conduct
the Remarketing in accordance with the Remarketing Procedures. The provisions of
Sections 3, 6, and 7 shall survive the resignation or removal of any Remarketing
Agent pursuant to this Agreement.
Section 8. Dealing in the Remarketed Trust Preferred Securities. The
Remarketing Agent, when acting as a Remarketing Agent or in its individual or
any other capacity, may, to the extent permitted by law, buy, sell, hold and
deal in any of the Remarketed Trust Preferred Securities. The Remarketing Agent
may exercise any vote or join in any action which any beneficial owner of
Remarketed Trust Preferred Securities may be entitled to exercise or take
pursuant to the Purchase Contract Agreement, the Declaration or the Indenture
with like effect as if it did not act in any capacity hereunder. The Remarketing
Agent, in its individual capacity, either as principal or agent, may also engage
in or have an interest in any financial or other transaction with the Company or
the Trust as freely as if it did not act in any capacity hereunder.
Section 9. Remarketing Agent's Performance; Duty of Care;
Supervising Obligations. The duties and obligations of the Remarketing Agent
shall be determined solely by the express provisions of this Agreement, the
Purchase Contract Agreement and the Declaration. No implied covenants or
obligations of or against the Remarketing Agent shall be read into this
Agreement, the Purchase Contract Agreement or the Declaration. In the absence of
bad faith on the part of the Remarketing Agent, the Remarketing Agent may
conclusively rely upon any document furnished to it, which purports to conform
to the requirements of this Agreement, the Purchase Contract Agreement or the
Declaration as to the truth of the statements expressed in any of such
documents. The Remarketing Agent shall be protected in acting upon any document
or communication reasonably believed by it to have been signed, presented or
made by the proper party or parties. The Remarketing Agent, acting under this
Agreement, shall incur no liability to the Company or to any holder of
Remarketed Trust Preferred Securities in its individual capacity or as
Remarketing Agent for any action or failure to act, on its part in connection
with a Remarketing or otherwise, except if such liability is judicially
determined to have resulted from the bad faith or willful misconduct on its
part. The Remarketing Agent may, but shall not be obligated to purchase
Remarketed Trust Preferred Securities for its own account. If at any time during
the term of this Agreement, any Event of Default under the Indenture or the
Declaration, or any event that with the passage of time or the giving of notice
or both would become on Event of Default under the Indenture or the Declaration,
has occurred and is continuing under the Indenture or the Declaration, then the
obligations and duties of the Remarketing Agent under this Agreement shall be
suspended until such default or event has been
22
cured. The Company will cause the Indenture Trustee, the Purchase Contract Agent
and the Regular Trustees to give the Remarketing Agent notice of all such
defaults and events of which such trustee, agent or administrator is aware.
Section 10. Termination. This Agreement shall terminate as to the
Remarketing Agent on the effective date of the resignation or removal of the
Remarketing Agent pursuant to Section 7. In addition, the obligations of the
Remarketing Agent hereunder may be terminated by it by notice given to the
Company prior to 10:00 a.m., New York City time, on the Remarketing Date if,
prior to that time, any of the events described in Sections [5(m), (n) and (__)]
shall have occurred.
Section 11. Notices. Except as otherwise stated herein, all
statements, requests, notices and agreements hereunder shall be in writing, as
follows:
(a) if to the Remarketing Agent shall be delivered or sent by mail
or facsimile transmission to ___________;
(b) if to the Company shall be delivered or sent by mail or
facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Secretary;
(c) if to the Trust shall be delivered or sent by mail or facsimile
transmission to: _________;
(d) if the Property Trustee shall be delivered or sent by mail; or
facsimile transmission to __________;
(e) if to the Indenture Trustee shall be delivered or sent by mail
or facsimile transmission to __________; and
(f) if to the Collateral Agent or the Custodial Agent shall be
delivered or sent by mail or facsimile transmission to . ------------------
Any such statements, requests, notices or agreements shall take
effect at the time of receipt thereof.
Section 12. Benefit of Agreement. This Agreement shall be binding
upon, and inure solely to the benefit of, the Remarketing Agent, the Company to
the extent provided in Sections 6 hereof, the officers and directors of the
Company and each person who controls the Company, or the Remarketing Agent, and
their respective heirs, executors, administrators, successors and assigns, and
no other person shall acquire or have any right under or by virtue of this
Agreement. No purchaser or any of the Trust Preferred Securities from the
Remarketing Agent shall be deemed a successor or assign by reason merely of such
purchase.
Section 13. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF NEW YORK.
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Section 14. Jurisdiction. The Company hereby submits to the
nonexclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
Section 15. Counterparts. This Agreement may be executed in one or
more counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
Section 16. Headings. The headings herein are inserted for
convenience of reference only and are not intended to be part of, or to affect
the meaning or interpretation of, this Agreement.
Section 17. Entire Agreement. This Agreement, the Purchase Contract
Agreement, the Pledge Agreement and the Declaration constitute the only
agreements relating to the matters stated herein and therein with respect to
Remarketing.
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If the foregoing correctly sets forth the agreement among the
Company, the Purchase Contract Agent and the Remarketing Agent, please indicate
your acceptance in the space provided for that purpose below.
Very truly yours,
RAYTHEON COMPANY
By:________________________________
Name:
Title:
THE BANK OF NEW YORK
as Purchase Contract Agent
By:________________________________
Name:
Title:
Accepted:
[NAME OF REMARKETING AGENT]
By:______________________________
Authorized Representative
ANNEX A
Underwriting Agreement
[attached]
