As filed with the Securities and Exchange Commission on April 5, 2002
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
RAYTHEON COMPANY Delaware 95-1778500
RC TRUST II Delaware 04-6968193
(Exact name of registrant as (State or other jurisdiction (I.R.S. Employer
specified in its charter) of incorporation or Identification No.)
organization)
141 Spring Street
Lexington, Massachusetts 02421
(781) 862-6600
(Address, including zip code, and telephone number, including
area code, of registrants' principal executive offices)
Neal E. Minahan, Esq. Copy to:
Senior Vice President and General Counsel William J. Curry, Esq.
Raytheon Company Sullivan & Worcester LLP
141 Spring Street One Post Office Square
Lexington, Massachusetts 02421 Boston, Massachusetts 02109
(781) 862-6600 (617) 338-2800
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Approximate date of commencement of proposed sale to the public: From time to
time, after the effective date of this registration statement as determined by
the registrants.
If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, check the following box. |_|
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended, (the "Securities Act") other than securities offered only in
connection with dividend or interest reinvestment plans, check the following
box. |X|
If this form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. |_|
If this form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
CALCULATION OF REGISTRATION FEE
==================================================================================================================
Proposed Maximum Proposed Maximum
Title of Each Class of Amount to be Offering Price Per Aggregate Offering Amount of
Securities to be Registered(1) Registered(2) Unit(2)(3) Price(2)(3)(4) Registration Fee
- ------------------------------------------------------------------------------------------------------------------
Debt Securities of Raytheon
Company(5)(8)
- ------------------------------------------------------------------------------------------------------------------
Common Stock, $0.01 par value
per share, of Raytheon
Company(6)(8)
- ------------------------------------------------------------------------------------------------------------------
Preferred Stock, $0.01 par
value per share, of Raytheon
Company(7)(8)
- ------------------------------------------------------------------------------------------------------------------
Warrants of Raytheon Company(9)
- ------------------------------------------------------------------------------------------------------------------
Stock Purchase Contracts of
Raytheon Company(10)
- ------------------------------------------------------------------------------------------------------------------
Stock Purchase Units of
Raytheon Company(11)
- ------------------------------------------------------------------------------------------------------------------
Trust Preferred Securities of
RC Trust II(12)
- ------------------------------------------------------------------------------------------------------------------
Guarantees of Trust Preferred
Securities of RC Trust II by
Raytheon Company(13)
- ------------------------------------------------------------------------------------------------------------------
Total $3,000,000,000(1) 100% $3,000,000,000(1) $276,000(14)
==================================================================================================================
(1) In no event will the aggregate initial offering price of all securities issued from time to time pursuant to
the prospectus contained in this registration statement exceed $3,000,000,000 or the equivalent thereof in
one or more foreign currencies, foreign currency units or composite currencies. The aggregate amount of
common stock of Raytheon Company registered hereunder is further limited to that which is permissible under
Rule 415(a)(4) under the Securities Act. The securities registered hereunder may be sold separately, together
or as units with other securities registered hereunder. There are also being registered hereunder contracts
that may be issued by the registrants under which the counterparty may be required to purchase or sell the
other securities registered hereunder. These contracts would be issued together with securities registered
hereunder. There are also being registered hereunder an indeterminate principal amount of the securities as
may be issuable upon conversion or exchange of debt securities, preferred stock or warrants or pursuant to
antidilution provisions thereof.
(2) Not required to be included in accordance with General Instruction II.D. of Form S-3 under the Securities
Act.
(3) The proposed maximum offering price per unit and the aggregate offering price per class of security will be
determined from time to time by Raytheon Company in connection with the issuance by the registrants of the
securities registered hereunder.
(4) Estimated solely for purposes of determining the registration fee pursuant to Rule 457(o) under the
Securities Act.
(5) Subject to Note (1) above, there is being registered hereunder an indeterminate amount of debt securities of
Raytheon Company as may be sold, from time to time. If any debt securities are issued at an original issue
discount, then the offering price shall be in such greater principal amount as shall not result in an
aggregate initial offering price exceeding $3,000,000,000 or the equivalent thereof in one or more foreign
currencies, foreign currency units or composite currencies. Debt securities may be issued and sold to RC
Trust II in which event such debt securities may later be distributed to the holders of trust preferred
securities of RC Trust II in certain circumstances including upon a dissolution of RC Trust II and the
distribution of its assets.
(6) Subject to Note (1) above, there is being registered hereunder an indeterminate amount of common stock of
Raytheon Company as may be sold from time to time. Each share of common stock includes one preferred share
purchase right. No separate consideration is payable for the preferred share purchase rights.
(7) Subject to Note (1) above, there is being registered hereunder an indeterminate amount of preferred stock of
Raytheon Company as may be sold from time to time.
(8) Subject to Note (1) above, there is being registered hereunder an indeterminate amount of debt securities,
common stock and preferred stock of Raytheon Company, as shall be issuable upon conversion or redemption of
debt securities, common stock or preferred stock of Raytheon Company, as the case may be, or upon the
exercise of warrants or upon settlement of the stock purchase contracts of Raytheon Company registered
hereunder.
(9) Subject to Note (1) above, there is being registered hereunder an indeterminate amount of warrants of
Raytheon Company, representing rights to purchase certain of the debt securities, common stock or preferred
stock of Raytheon Company registered hereunder.
(10) Subject to Note (1) above, there is being registered hereunder an indeterminate amount of stock purchase
contracts of Raytheon Company as may be sold from time to time.
(11) Subject to Note (1) above, there is being registered hereunder an indeterminate number of stock purchase
units of Raytheon Company as may be sold from time to time. Each stock purchase unit consists of (a) a stock
purchase contract, under which the holder, upon settlement, will purchase an indeterminate number of shares
of common stock of Raytheon Company and (b) a beneficial interest in either trust preferred securities of RC
Trust II or debt obligations of third parties, including U.S. treasury securities. Each beneficial interest
will be pledged to secure the obligation of such holder to purchase such shares of common stock. No separate
consideration will be received for the stock purchase contracts.
(12) Subject to Note (1) above, there is being registered hereunder an indeterminate amount of trust preferred
securities of RC Trust II as may be sold from time to time.
(13) Subject to Note (1) above, there is being registered hereunder all guarantees and other obligations that
Raytheon Company may have with respect to trust preferred securities that may be issued by RC Trust II. No
separate consideration will be received for the guarantees or any other such obligations.
(14) Calculated pursuant to Rule 457(o) of the rules and regulations under the Securities Act at the statutory
rate of $92 per $1,000,000 of securities registered.
The registrants hereby amend this registration statement on such date
or dates as may be necessary to delay its effective date until the registrants
shall file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act, or until this registration statement shall become effective
on such date as the Securities and Exchange Commission, acting pursuant to said
Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and we are not soliciting offers to buy these
securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED APRIL 5, 2002
PROSPECTUS
$3,000,000,000
RAYTHEON COMPANY
DEBT SECURITIES
COMMON STOCK
PREFERRED STOCK
WARRANTS
STOCK PURCHASE CONTRACTS
STOCK PURCHASE UNITS
GUARANTEES
RC TRUST II
TRUST PREFERRED SECURITIES
Fully and Unconditionally Guaranteed,
as described herein, by Raytheon Company
We may, from time to time, offer:
o debt securities;
o shares of our common stock;
o shares of our preferred stock;
o warrants to purchase any of these securities; and
o stock purchase contracts.
The securities we offer will have an aggregate public offering price of up to
$3.0 billion. These securities may be offered and sold separately or together in
units with other securities described in this prospectus. Our debt securities
may be senior or subordinated.
RC Trust II may, from time to time, offer trust preferred securities
which will be fully and unconditionally guaranteed by us. Our guarantees may be
senior or subordinated. The trust preferred securities may be offered and sold
separately or together in units with other securities described in this
prospectus.
We and RC Trust II will indicate the particular securities we offer and
their specific terms in a supplement to this prospectus. In each case we would
describe the type and amount of securities we are offering, the initial public
offering price and the other terms of the offering.
Our common stock is listed on the New York Stock Exchange under the
symbol "RTN." We will make applications to list any shares of common stock sold
pursuant to a supplement to this prospectus on the NYSE. We have not determined
whether we will list any of the other securities we may offer on any exchange or
over-the-counter market. If we decide to seek listing of any securities, the
supplement will disclose the exchange or market.
Risks associated with an investment in the securities will be described
in the applicable prospectus supplement, as described under "Risk Factors" on
page 4.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
Our and RC Trust II's principal place of business is 141 Spring Street,
Lexington, Massachusetts 02421 and our and RC Trust II's telephone number is
(781) 862-6600.
The date of this prospectus is ___________________, 2002.
TABLE OF CONTENTS
Page
ABOUT THIS PROSPECTUS....................................................... 1
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS........................ 2
OUR COMPANY................................................................. 3
RC TRUST.................................................................... 3
RISK FACTORS................................................................ 4
RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS... 4
USE OF PROCEEDS............................................................. 4
DESCRIPTION OF OUR DEBT SECURITIES.......................................... 5
DESCRIPTION OF OUR COMMON STOCK............................................. 12
DESCRIPTION OF OUR PREFERRED STOCK.......................................... 13
DESCRIPTION OF OUR WARRANTS................................................. 14
DESCRIPTION OF THE STOCK PURCHASE CONTRACTS AND THE STOCK PURCHASE UNITS.... 15
DESCRIPTION OF THE TRUST PREFERRED SECURITIES............................... 15
DESCRIPTION OF THE TRUST PREFERRED SECURITIES GUARANTEE..................... 16
RELATIONSHIP AMONG THE DEBT SECURITIES, THE TRUST PREFERRED SECURITIES
AND THE TRUST PREFERRED SECURITIES GUARANTEE........................... 19
DESCRIPTION OF CERTAIN PROVISIONS OF DELAWARE LAW AND OUR CERTIFICATE
OF INCORPORATION AND BY-LAWS.......................................... 21
PLAN OF DISTRIBUTION........................................................ 23
VALIDITY OF THE OFFERED SECURITIES.......................................... 25
EXPERTS..................................................................... 25
WHERE YOU CAN FIND MORE INFORMATION......................................... 25
DOCUMENTS INCORPORATED BY REFERENCE......................................... 25
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement we filed with the
Securities and Exchange Commission, or the SEC, using a "shelf" registration
process. Under this shelf process, we may sell any combination of the securities
described in this prospectus in one or more offerings up to a total dollar
amount of proceeds of $3.0 billion or the equivalent denominated in foreign
currency.
This prospectus provides you with a general description of the
securities we may offer. Each time we sell securities, we will provide a
prospectus supplement containing specific information about the terms of that
offering. The prospectus supplement may also add to, update or change
information contained in this prospectus. You should read both this prospectus
and any prospectus supplement, together with additional information described
under the headings "Where You Can Find More Information" and "Documents
Incorporated By Reference."
We have not included, or incorporated by reference, separate financial
statements of RC Trust II in this prospectus. Neither we nor RC Trust II
consider these financial statements material to holders of the trust preferred
securities because:
o RC Trust II is a special purpose entity;
o RC Trust II does not have any operating history or independent
operations; and
o RC Trust II is not engaged in, nor will it engage in, any
activity other than issuing trust preferred and trust common
securities, investing in and holding our debt securities and
engaging in related activities.
Furthermore, the combination of our obligations under our debt
securities, the associated indentures, RC Trust's declaration of trust and our
related guarantees provide a full and unconditional guarantee of payments of
distributions and other amounts due on the trust preferred securities. In
addition, we do not expect that RC Trust will file reports with the SEC under
the Securities Exchange Act of 1934, as amended.
You should rely only on the information incorporated by reference or
provided in this document and any prospectus supplement. Neither we nor RC Trust
II have authorized anyone else to provide you with different information.
Neither we nor RC Trust II are making an offer of these securities in any
jurisdiction where it is unlawful. If anyone provides you with different or
inconsistent information, you should not rely on it. You should not assume that
the information in this prospectus is accurate as of any date other than the
date on the front of this document.
References in this prospectus to the terms "we," "our" or "us" or other
similar terms mean Raytheon Company, unless we state otherwise or the context
indicates otherwise. References in this prospectus to "RC Trust" mean RC Trust
II.
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CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the information we are incorporating by reference
into it contain "forward-looking statements" within the meaning of the Private
Securities Litigation Reform Act of 1995. All statements, other than statements
of historical facts included in this prospectus and the information incorporated
by reference into this prospectus, that we expect or anticipate will or may
occur in the future, including, without limitation, statements included in this
prospectus under "Our Company" and located elsewhere in this prospectus and the
documents we incorporate by reference regarding our financial position, business
strategy and measures to implement that strategy, including changes to
operations, competitive strengths, goals, expansion and growth of our business
and operations, plans, references to future success and other such matters, are
forward-looking statements. These statements are based on assumptions and
analyses made by us in light of our experience and our perception of historical
trends, current conditions and expected future developments, as well as other
factors we believe are appropriate in the circumstances. However, whether actual
results and developments will conform with our expectations and predictions is
subject to a number of risks and uncertainties, including without limitation the
information discussed under the caption "Risk Factors" in the applicable
prospectus supplement to be provided with this prospectus as well as other
factors which might be described from time to time in our filings with the SEC.
Consequently, all of the forward-looking statements we make in this
prospectus and the information we are incorporating by reference into this
prospectus are qualified by these cautionary statements, and there can be no
assurance that the actual results or developments anticipated by us will be
realized or, even if substantially realized, that they will have the expected
consequences to or effects on us or our businesses or operations. All subsequent
forward-looking statements attributable to us or persons acting on our behalf
are expressly qualified in their entirety by any of those factors described
above and in the documents containing such forward-looking statements. We do not
assume any obligation to release publicly any updates or revisions to any
forward-looking statement.
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OUR COMPANY
We are a global technology leader, with worldwide 2001 sales of $16.9
billion. We provide products and services in defense electronics, including
missiles; radar; sensors and electro-optics; intelligence, surveillance and
reconnaissance; command, control, communication and information systems; naval
systems; air traffic control systems; and technical services. We are one of the
leading providers of business and special-mission aircraft and deliver a broad
line of jet, turboprop and piston-powered airplanes to corporate and government
customers worldwide. We have operations throughout the United States and serve
customers in more than 70 countries around the world. Our principal executive
offices are located at 141 Spring Street, Lexington, Massachusetts 02421. Our
telephone number is (781) 862-6600.
RC TRUST
RC Trust is a subsidiary of ours. RC Trust was created under the
Delaware Business Trust Act and is governed by a declaration of trust, as it may
be amended and restated from time to time, among the trustees of RC Trust and
us.
When RC Trust issues its trust preferred securities, the holders of the
trust preferred securities will own all of the issued and outstanding trust
preferred securities of RC Trust. We will acquire all of the issued and
outstanding trust common securities of RC Trust, representing an undivided
beneficial interest in the assets of RC Trust of at least 3%.
RC Trust will exist primarily for the purposes of:
o issuing its trust preferred and trust common securities;
o investing the proceeds from the sale of its trust preferred
and trust common securities in our debt securities; and
o engaging in other activities only as are necessary or
incidental to issuing its securities and purchasing and
holding our debt securities.
The debt securities RC Trust purchases from us may be subordinated debt
securities or senior debt securities. We will specify the type of debt security
in a prospectus supplement.
RC Trust has three trustees. One of the trustees, referred to as the
regular trustee, is an individual who is an officer and employee of Raytheon.
Additional regular trustees may be appointed in the future. The second trustee
is The Bank of New York, which serves as the property trustee under the
declaration of trust for purposes of the Trust Indenture Act of 1939, as
amended. The third trustee is The Bank of New York (Delaware), which has its
principal place of business in the State of Delaware, and serves as the Delaware
trustee of RC Trust.
The Bank of New York, acting in its capacity as guarantee trustee, will
hold for the benefit of the holders of trust preferred securities a trust
preferred securities guarantee, which will be separately qualified under the
Trust Indenture Act of 1939.
Unless otherwise provided in the applicable prospectus supplement,
because we will own all of the trust common securities of RC Trust, we will have
the exclusive right to appoint, remove or replace trustees and to increase or
decrease the number of trustees. In most cases, there will be at least three
trustees. The term of RC Trust will be described in the applicable prospectus
supplement, but may dissolve earlier, as provided in RC Trust's declaration of
trust, as it may be amended and restated from time to time.
The rights of the holders of the trust preferred securities of RC
Trust, including economic rights, rights to information and voting rights and
the duties and obligations of the trustees of RC Trust, will be contained in and
governed by the declaration of trust of RC Trust, as it may be amended and
restated from time to time, the Delaware Business Trust Act and the Trust
Indenture Act of 1939.
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RISK FACTORS
An investment in our securities or in the trust preferred securities
involves a high degree of risk. In addition to the other information included
in, or incorporated by reference into, this prospectus, you should carefully
consider the risk factors in any applicable prospectus supplement when
determining whether or not to purchase the securities offered under this
prospectus and the prospectus supplement.
RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
The following table sets forth our consolidated ratio of earnings to
combined fixed charges and preferred stock dividends for the periods indicated:
Year Ended December 31,
1997 1998 1999 2000 2001
---- ---- ---- ---- ----
2.8x 3.1x 2.0x 2.0x -- (1)
(1) Historical earnings were insufficient to cover fixed charges by $45 million
for the year ended December 31, 2001. Excluding the $745 million charge
described below, the ratio of earnings to combined fixed charges and
preferred stock dividends would have been 2.0x for the year ended December
31, 2001.
For purposes of computing the ratio of earnings to combined fixed
charges and preferred stock dividends:
o earnings consist of income from continuing operations
before taxes, fixed charges and amortization of capitalized
interest, less capitalized interest; and
o fixed charges consist of the portion of rents representative
of an interest factor and interest expensed, which includes
amortization of debt discount and issuance expense, and
capitalized; and
o equity security distributions are included in combined fixed
charges and preferred stock dividends.
The ratio of earnings to combined fixed charges and preferred stock
dividends declined in 1999 and 2000 primarily due to lower earnings resulting
from a number of factors including certain contract-related operating charges,
competitive pricing pressures, a decline in higher margin foreign direct
programs and lower volume from missile and missile defense systems. The further
decline in the ratio of earnings to combined fixed charges and preferred stock
dividends in 2001 is primarily a result of the $745 million third quarter 2001
charge related to Raytheon Aircraft Company.
USE OF PROCEEDS
Unless otherwise described in a prospectus supplement, we intend to use
the net proceeds from the sale of the offered securities for general corporate
purposes. These purposes may include, but are not limited to:
o working capital;
o repayment or refinancing of debt or other corporate
obligations;
o capital expenditures;
o repurchases and redemptions of securities; and/or
o acquisitions.
Pending any specific application, we may initially invest net proceeds
from the sale of the offered securities in short-term marketable securities or
apply them to the reduction of short-term indebtedness.
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RC Trust will use all net proceeds from the sale of its trust preferred
securities and its trust common securities to purchase our debt securities.
DESCRIPTION OF OUR DEBT SECURITIES
The debt securities will be our unsecured direct obligations, which may
be senior or subordinated indebtedness. The debt securities will be issued under
one or more indentures between us and a trustee. Any indenture will be subject
to, and governed by, the Trust Indenture Act of 1939.
This section describes the general terms and provisions of the debt
securities that we may offer from time to time in the form of one or more
series, including to RC Trust. The applicable prospectus supplement will
describe the specific terms of the debt securities offered through that
prospectus supplement.
Our unsecured senior debt securities will be issued under an Indenture,
dated as of July 3, 1995, between us and The Bank of New York, as trustee, or
another indenture or indentures to be entered into by us and that trustee or
another trustee. The unsecured subordinated debt securities will be issued under
a second Indenture, also dated as of July 3, 1995, and between us and The Bank
of New York, as trustee, or another indenture or indentures to be entered into
by us and that trustee or another trustee. Both indentures are qualified under
the Trust Indenture Act of 1939.
Copies of each of the July 3, 1995 indentures are filed with the SEC as
exhibits to the registration statement of which this prospectus is a part. If we
elect to issue securities under another indenture, we will file a copy of that
indenture with the SEC. You should refer to those indentures for the complete
terms of the debt securities. See "Where You Can Find More Information." In
addition, you should consult the applicable prospectus supplement for particular
terms of our debt securities.
Our existing indentures permit us to issue the debt securities without
limit as to aggregate principal amount, in one or more series. We need not issue
all debt securities of one series at the same time. Unless we otherwise provide,
we may reopen a series, without the consent of the holders of such series, for
issuances of additional securities of that series.
Generally, we will pay the principal of, premium, if any, on, and
interest on our debt securities either at an office or agency that we maintain
for that purpose or, if we elect, we may pay interest by mailing a check to your
address as it appears on our register. We will issue our debt securities only in
fully registered form without coupons, generally in denominations of $1,000 or
integral multiples of $1,000. We will not apply a service charge for a transfer
or exchange of our debt securities, but we may require that you pay the amount
of any applicable tax or other governmental charge.
The applicable prospectus supplement will describe the specific terms
relating to the series of debt securities we will offer including, where
applicable, the following:
o the title and series designation of the debt securities;
o whether they are senior debt securities or subordinated debt
securities;
o the aggregate principal amount of the debt securities;
o the total amount of the debt securities authorized and the
amount outstanding, if any;
o the identity of the person to whom we will pay interest if it
is anybody other than the noteholder;
o the stated maturity date;
o the interest rate, which may be fixed or variable, or its
method of calculation;
o when interest will be payable, as well as the record date for
determining who we will pay interest to;
o where the principal, premium, if any, and interest on the debt
securities will be paid;
o any mandatory or optional sinking funds or similar
arrangements;
o when the debt securities may be redeemed if they are
redeemable, as well as the redemption prices, and a
description of the terms of redemption;
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o whether we have any obligation to redeem or repurchase the
debt securities at your option;
o the denominations of the debt securities, if other than $1,000
or an integral multiple of $1,000;
o the amount that we will pay the holder if the maturity of the
debt securities is accelerated, if other than their principal
amount;
o the currency in which we will make payments to the holder and,
if a foreign currency, the manner of conversion from U.S.
dollars;
o any index we may use to determine the amount of payment of
principal of, premium, if any, on, and interest on the debt
securities;
o if the debt securities will be issued only in the form of a
global note, the name of the depositary or its nominee and the
circumstances under which the global note may be transferred
or exchanged to someone other than the depositary or its
nominee;
o the applicability of the defeasance and covenant defeasance
provisions in the applicable indenture;
o whether the debt securities are convertible into any other
securities and the terms and conditions of convertibility;
o any additions or changes to events of default and, in the case
of subordinated debt securities, any additional events of
default that would result in acceleration of their maturity;
and
o any other terms of the debt securities.
The terms of our debt securities may provide for deferred interest
payments, or for an issue price at a discount from the stated redemption price
at maturity, either of which would constitute original issue discount. Generally
speaking, if our debt securities are issued at an original issue discount and
there is an event of default or acceleration of their maturity, holders will in
some cases receive an amount less than the stated principal amount. Tax and
other special considerations applicable to original issue discount debt will be
described in the prospectus supplement in which we offer those debt securities.
If we were to become insolvent, your claim as a holder of debt
securities will be effectively junior to the claims of holders of any
indebtedness or preferred stock of our subsidiaries.
Subordination of Our Subordinated Debt Securities
Generally, the payment of principal of, or premium, if any, on, and
interest on our unsecured subordinated debt securities will be subordinated in
right of payment to the prior payment in full of our senior indebtedness. If we
distribute our assets to creditors upon liquidation, dissolution,
reorganization, insolvency, bankruptcy or under similar circumstances, holders
of our senior debt will be entitled to be paid in full before any payments will
be made on our subordinated debt securities. In addition, if the maturity of our
subordinated debt securities is accelerated, holders of our senior debt will be
entitled to be paid in full before any payments will be made on our subordinated
debt securities. Moreover, while there is an event of default with respect to
our senior debt that would permit our senior debt to be accelerated, and while
we are in default in our payment obligations to holders of senior debt, we
cannot make payments to our subordinated debt holders.
If we were to become insolvent, holders of our subordinated debt
securities may not be paid with respect to those securities until our senior
debt and third party creditors, as well as holders of any indebtedness or
preferred stock of our subsidiaries, are paid in full.
The indenture for our unsecured subordinated debt securities will not
place any limits on the amount of other indebtedness, including senior debt,
that we may issue.
The indenture for our unsecured subordinated debt securities defines
"senior indebtedness" to include the principal of, premium, if any, on, and
interest on:
o all of our indebtedness for money borrowed, other than our
subordinated debt securities, and any other indebtedness
represented by a note, bond, debenture or other similar
evidence of indebtedness, including indebtedness of others
that we guarantee, in each case whether
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outstanding on the date of execution of the subordinated debt
securities indenture or thereafter created, incurred or
assumed; and
o any amendments, renewals, extensions, modifications and
refundings of any such indebtedness, unless in any case in the
instrument creating or evidencing any such indebtedness or
pursuant to which it is outstanding it is provided that such
indebtedness is not superior in right of payment to our
subordinated debt securities.
In addition, for purposes of the definition of "senior indebtedness,"
"indebtedness for money borrowed" includes:
o any obligation of, or any obligation guaranteed by, us for the
repayment of borrowed money, whether or not evidenced by
bonds, debentures, notes or other written instruments;
o any deferred payment obligation of, or any such obligation
guaranteed by, us for the payment of the purchase price of
property or assets evidenced by a note or similar instrument;
and
o any obligation of, or any such obligation guaranteed by, us
for the payment of rent or other amounts under a lease of
property or assets if such obligation is required to be
classified and accounted for as a capitalized lease on our
balance sheet under generally accepted accounting principles.
Events of Default
Generally speaking, any of the following events will constitute an
event of default under the indentures:
o failure to pay interest on our debt securities for thirty days
past the applicable due date, even if we are prohibited from
paying interest on our debt securities because they are
subordinated;
o failure to pay principal of, or premium, if any, on, our debt
securities when due, even if we are prohibited from making
such payments on our debt securities because they are
subordinated;
o failure to make any sinking fund payment when due, even if we
are prohibited from making such payments on our debt
securities because they are subordinated;
o failure to perform any other covenant or agreement set forth
in the securities of that series or in the applicable
indenture, other than a covenant included in the indenture
solely for the benefit of a different series of our debt
securities, which continues for 60 days after written notice
as provided in the indenture;
o bankruptcy, insolvency or reorganization; and
o any other event of default provided with respect to debt
securities of that series.
A holder will be notified of an event of default with respect to a
series of our debt securities by the trustee.
If there is an event of default with respect to a series of our senior
debt securities, which continues for the requisite amount of time, either the
trustee or holders of at least 25% of the aggregate principal amount of that
series may declare the principal amount of all of the senior debt securities of
that series to be due and payable immediately. If the securities were issued at
an original issue discount, less than the stated principal amount may become
payable.
Payment of the principal of our subordinated debt securities may be
accelerated only in the case of our bankruptcy, insolvency or reorganization.
Neither a holder, RC Trust nor the trustee will be able to accelerate the
payment of interest or principal with respect to our subordinated debt
securities for any other reason.
In some cases, after a declaration of acceleration has been made, but
before a judgment or decree has been obtained, holders of a majority in
aggregate principal amount of the series that is in default may rescind the
acceleration.
The trustee will be required to act with a high standard of care.
However, the trustee will not be obligated to exercise any of its rights or
powers under the indentures at a holder's request unless the holder provides the
trustee reasonable security or indemnity. Generally, but with exceptions,
holders of a majority in aggregate principal
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amount of any series of our outstanding debt securities will have the right to
choose the time, method and place of any proceeding for any remedy available to
the trustee or any exercise of power by the trustee with respect to debt
securities of that series.
A holder may institute a suit against us for enforcement of the
holder's rights to receive payment of the principal of, premium, if any, on, or
interest on our debt securities after the due dates. However, the holder will
not be able to institute any other proceedings under the applicable indenture,
including for any remedy, unless the following conditions are satisfied:
o the holder has previously given the trustee written notice of
a continuing event of default with respect to a series of our
debt securities held by the holder;
o holders of at least 25% of the aggregate principal amount of
that series make a written request, and offer reasonable
indemnity, to the trustee for the trustee to institute the
requested proceeding;
o the trustee does not receive direction contrary to the
holders' written request, within 60 days following receipt of
the holders' written request, from holders of a majority in
aggregate principal amount of that series; and
o the trustee does not institute the proceeding the holders
requested within 60 days following the receipt of the holders'
written request and offer of indemnity.
Every year we are required to deliver to the trustee a statement as to
performance of our obligations under the indentures and as to any defaults.
A default in the payment of any of our debt securities, where the
aggregate principal amount of that series of debt securities exceeds $50
million, or a default with respect to our debt securities that causes them to be
accelerated, will give rise to a cross-default under our senior credit
facilities. In some circumstances, payment defaults on our debt securities may
also give rise to cross-defaults of our guarantees of the indebtedness of our
subsidiaries.
Defeasance and Covenant Defeasance
Any series of our debt securities may be subject to the defeasance and
discharge provisions of the applicable indenture. If those provisions are
applicable, we may elect either:
o defeasance -- which will permit us to defease and be
discharged from, subject to limitations, all of our
obligations with respect to those debt securities; or
o covenant defeasance -- which will permit us to be released
from our obligations to comply with covenants relating to
those debt securities as described in the applicable
prospectus supplement, which may include obligations
concerning subordination of our subordinated debt securities.
To invoke defeasance or covenant defeasance with respect to any series
of our debt securities, we must irrevocably deposit with the trustee, in trust,
an amount in funds or U.S. government obligations which, through the payment of
principal and interest in accordance with their terms, will provide money in an
amount sufficient to pay, when due, the principal of, premium, if any, on, and
interest on those debt securities and any mandatory sinking fund or similar
payments on those debt securities. In addition, we would be required to deliver
a legal opinion to the trustee to the effect that a holder of the applicable
debt securities will not recognize additional income, gain or loss for federal
income tax purposes as a result of the defeasance or covenant defeasance.
We cannot defease our obligations to register the transfer or exchange
of our debt securities; to replace our debt securities that have been stolen,
lost or mutilated; to maintain paying agencies; or to hold funds for payment in
trust. We may not defease our obligations if there is a continuing event of
default on securities issued under the applicable indenture, or if depositing
amounts into trust would cause the trustee to have conflicting interests with
respect to other of our securities.
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If we effect covenant defeasance with respect to any of our debt
securities, and then those debt securities are declared due and payable because
of an event of default, other than an event of default relating to any covenant
from which we have been released through covenant defeasance, the amount of
money or U.S. government obligations on deposit with the trustee may not be
sufficient to pay all amounts due on the debt securities at the time of
acceleration. However, we would remain liable with respect to any shortfall.
Modification and Waiver
Modifications and amendments of our current indentures may be made only
with the consent of holders of at least a majority in aggregate principal amount
of all of our outstanding debt securities affected, voting as a single class.
Generally, the consent of all of the holders of our debt securities that are
affected is required for any of the following:
o to change the stated maturity of the principal, or any
installment of interest or premium, if any;
o to reduce the principal amount, the premium, if any, on, the
interest, or the amount payable upon acceleration or maturity
in the case of debt securities issued at an original issue
discount;
o to change the place of payment, or the currency in which
payments are made;
o to impair your right to institute suit to enforce any payment
at or following stated maturity or following a redemption
date;
o to modify the subordination provisions of our subordinated
debt securities in a manner adverse to holders; and
o to reduce the percentage of the principal amount of our
outstanding debt securities required for modification to or
amendment of either indenture, or for waiver of our compliance
with indenture provisions or defaults.
Holders of a majority in aggregate principal amount of either our
senior debt securities or our subordinated debt securities may waive any past
default under the applicable indenture, except for a default in the payment of
principal, premium, if any, on, or interest on our debt securities and except
for our compliance with specified covenants.
Covenants
Our current indentures contain covenants regarding, among other things:
o a limitation on liens other than specified types of liens;
o a limitation on sale and leaseback transactions, unless the
lien on any property subject to the sale and leaseback
transaction is permitted under the indentures or the proceeds
of the sale and leaseback transaction are used to retire
specified types of debt; and
o restrictions on our ability to engage in consolidations,
mergers or transfers of substantially all of our assets unless
the surviving or acquiring entity is a domestic company and it
expressly assumes our obligations with respect to our debt
securities by executing a supplemental indenture.
You should be aware that we are not prohibited from engaging in highly
leveraged transactions, other than as may conflict with those covenants.
Moreover, any series of our debt securities may provide that these covenants may
be removed with respect to that series.
Conversion or Exchange Rights
If any series of our debt securities are convertible or exchangeable,
the applicable prospectus supplement will specify:
o the type of securities into which it may be converted or
exchanged;
o the conversion price or exchange ratio, or its method of
calculation;
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o whether conversion or exchange is mandatory or at your
election; and
o how the conversion price or exchange ratio may be adjusted if
our debt securities are redeemed.
Our Debt Trustee
The current trustee for our debt securities is The Bank of New York,
which performs services for us in the ordinary course of business. We may engage
additional or substitute trustees with respect to particular series of our debt
securities.
Global Securities
Our debt securities may be issued in the form of one or more global
securities that will be deposited with a depositary or its nominee identified in
the applicable prospectus supplement. If so, each global security will be issued
in the denomination of the aggregate principal amount of securities that it
represents. Unless and until it is exchanged in whole or in part for debt
securities that are in definitive registered form, a global security may not be
transferred or exchanged except as a whole by the depositary to its nominee. The
applicable prospectus supplement will describe this concept more fully.
The specific material terms of the depositary arrangement with respect
to any portion of a series of our debt securities that will be represented by a
global security will be described in the applicable prospectus supplement. We
anticipate that the following provisions will apply to our depositary
arrangements.
Upon the issuance of any global security, and its deposit with or on
behalf of the depositary, the depositary will credit, on its book-entry
registration and transfer system, the principal amounts of our debt securities
represented by the global security to the accounts of participating institutions
that have accounts with the depositary or its nominee. The underwriters or
agents engaging in the distribution of our debt securities, or us if we are
offering and selling our debt securities directly, will designate the accounts
to be credited. Ownership of beneficial interests in a global security will be
limited to participating institutions or their clients. The depositary or its
nominee will keep records of the ownership and transfer of beneficial interests
in a global security by participating institutions. Participating institutions
will keep records of the ownership and transfer of beneficial interests by their
clients. The laws of some jurisdictions may require that purchasers of our
securities receive physical certificates, which may impair a holder's ability to
transfer its beneficial interests in global securities.
While the depositary or its nominee is the registered owner of a global
security the depositary or its nominee will be considered the sole owner of all
of our debt securities represented by the global security for all purposes under
the indentures. Generally, if a holder owns beneficial interests in a global
security, the holder will not be entitled to have our debt securities registered
in the holder's own name, and the holder will not be entitled to receive a
certificate representing its ownership. Accordingly, if a holder owns a
beneficial interest in a global security, the holder must rely on the depositary
and, if applicable, the participating institution of which the holder is a
client to exercise the rights of a holder under the applicable indenture.
The depositary may grant proxies and otherwise authorize participating
institutions to take any action that a holder is entitled to take under the
indentures. We understand that, according to existing industry practices, if we
request any action of holders, or any owner of a beneficial interest in a global
security wishes to give any notice or take any action, the depositary would
authorize the participating institutions to give the notice or take the action,
and the participating institutions would in turn authorize their clients to give
the notice or take the action.
Generally, we will make payments on our debt securities represented by
a global security directly to the depositary. It is our understanding that the
depositary will then credit the accounts of participating institutions, which
will then distribute funds to their clients. We also expect that payments by
participating institutions to their clients will be governed by standing
instructions and customary practices, as is now the case with securities held
for the accounts of clients registered in "street names," and will be the
responsibility of the participating institutions. Neither we nor the trustee,
nor our respective agents, will have any responsibility, or bear any liability,
for any aspects of the records relating to, or payments made on account of,
beneficial interests in a global security, or for maintaining, supervising or
reviewing records relating to beneficial interests.
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Generally, a global security may be exchanged for certificated debt
securities only in the following instances:
o the depositary notifies us that it is unwilling or unable to
continue as depositary, or it ceases to be a registered
clearing agency, if required to be registered by law, and a
successor is not appointed within 90 days; or
o we determine in our sole discretion that we will permit global
securities to be exchanged for certificated debt securities;
or
o there is a continuing event of default under the indenture
governing the debt securities held in global form.
The following is based on information furnished to us:
Unless otherwise specified in the applicable prospectus supplement, The
Depository Trust Company, or DTC, will act as depositary for securities issued
in the form of global securities. Global securities will be issued only as fully
registered securities registered in the name of Cede & Co., which is DTC's
nominee. One or more fully registered global securities will be issued for these
securities representing in the aggregate the total number of these securities,
and will be deposited with or on behalf of DTC.
DTC is a limited-purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of the New York Banking
Law, a member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Securities Exchange
Act of 1934. DTC holds securities that its participants deposit with it. DTC
also facilitates the settlement among its participants of securities
transactions, such as transfers and pledges, in deposited securities through
electronic computerized book-entry changes in participants' accounts, thereby
eliminating the need for physical movement of securities certificates. Direct
participants include securities brokers and dealers, banks, trust companies,
clearing corporations and other organizations. DTC is owned by a number of its
direct participants and by the New York Stock Exchange, the American Stock
Exchange and the National Association of Securities Dealers. Access to the DTC
system is also available to others, known as indirect participants, such as
securities brokers and dealers, banks and trust companies that clear through or
maintain custodial relationships with direct participants, either directly or
indirectly. The rules applicable to DTC and its participants are on file with
the SEC.
Purchases of securities within the DTC system must be made by or
through direct participants, which will receive a credit for the securities on
DTC's records. The ownership interest of each actual purchaser of each security,
commonly referred to as the beneficial owner, is in turn to be recorded on the
direct and indirect participants' records. Beneficial owners will not receive
written confirmation from DTC of their purchases, but beneficial owners are
expected to receive written confirmations providing details of the transactions,
as well as periodic statements of their holdings, from the direct or indirect
participants through which the beneficial owners purchased securities. Transfers
of ownership interests in securities issued in the form of global securities are
accomplished by entries made on the books of participants acting on behalf of
beneficial owners. Beneficial owners will not receive certificates representing
their ownership interests in these securities, except if use of the book-entry
system for such securities is discontinued.
DTC has no knowledge of the actual beneficial owners of the securities
issued in the form of global securities. DTC's records reflect only the identity
of the direct participants to whose accounts such securities are credited, which
may or may not be the beneficial owners. The participants will remain
responsible for keeping account of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to direct
participants, by direct participants to indirect participants, and by direct
participants and indirect participants to beneficial owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
Any redemption notices must be sent to DTC. If less than all of the
securities of a series or class are being redeemed, DTC's practice is to
determine by lot the amount to be redeemed from each participant.
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Although voting with respect to securities issued in the form of global
securities is limited to the holders of record, when a vote is required, neither
DTC nor Cede & Co. will itself consent or vote with respect to such securities.
Under its usual procedures, DTC would mail an omnibus proxy to the issuer of the
securities as soon as possible after the record date. The omnibus proxy assigns
Cede & Co.'s consenting or voting rights to those direct participants to whose
accounts such securities are credited on the record date, identified in a
listing attached to the omnibus proxy.
Payments in respect of securities issued in the form of global
securities will be made by the issuer of such securities to DTC. DTC's practice
is to credit direct participants' accounts on the relevant payment date in
accordance with their respective holdings shown on DTC's records unless DTC has
reason to believe that it will not receive payments on such payment date.
Payments by participants to beneficial owners will be governed by standing
instructions and customary practices and will be the responsibility of such
participant and not of DTC or us, subject to any statutory or regulatory
requirements as may be in effect from time to time. Payments to DTC are the
responsibility of the issuer of the applicable securities, disbursement of such
payments to direct participants is the responsibility of DTC, and disbursements
of such payments to the beneficial owners is the responsibility of direct and
indirect participants.
DTC may discontinue providing its services as depositary with respect
to any securities at any time by giving reasonable notice to the issuer of such
securities. If a successor depositary is not obtained, individual security
certificates representing such securities are required to be printed and
delivered. We, at our option, may decide to discontinue use of the system of
book-entry transfers through DTC or a successor depositary.
The information in this section concerning DTC and DTC's book-entry
system has been obtained from sources that we believe to be accurate, but we
assume no responsibility for its accuracy. We have no responsibility for the
performance by DTC or its participants of their obligations as described in this
prospectus or under the rules and procedures governing their operations.
DESCRIPTION OF OUR COMMON STOCK
We are authorized to issue up to 1,450,000,000 shares of common stock,
$0.01 par value per share.
This section describes the general terms of our common stock that we
may offer from time to time. For more detailed information, a holder of our
common stock should refer to our restated certificate of incorporation and our
amended and restated by-laws, copies of which are filed with the SEC as exhibits
to the registration statement of which this prospectus is a part.
Holders of our common stock are entitled to one vote per share and
shall vote together as a single class on all matters to be voted on by our
stockholders. Pursuant to our restated certificate of incorporation, there are
no cumulative voting rights in the election of directors. The approval of
corporate actions may also require the approval of the holders of any series of
our preferred stock. See "Description of Our Preferred Stock."
Our common stock will be the only type of our capital stock entitled to
vote in the election and removal of directors and other matters presented to our
stockholders from time to time, unless we issue voting preferred stock or our
restated certificate of incorporation or the law requires otherwise.
Our common stockholders will be entitled to receive dividends and
distributions declared by our Board of Directors, to the extent permitted by
outstanding shares of preferred stock and by our restated certificate of
incorporation. If a dividend is declared, it will be distributed pro rata to our
common stockholders on a per share basis.
If we are liquidated or dissolved, our common stockholders will be
entitled to receive our assets and funds available for distribution to common
stockholders in proportion to the number of shares they hold. Our common
stockholders may not receive any assets or funds until our creditors have been
paid in full and the preferential or participating rights of our preferred
stockholders have been satisfied. If we participate in a corporate merger,
consolidation, purchase or acquisition of property or stock, or other
reorganization, any payments or shares of stock
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allocated to our common stockholders will be distributed pro rata to holders of
our common stock on a per share basis. If we redeem, repurchase or otherwise
acquire for payment any shares of our common stock, we will treat each share of
common stock identically.
Holders of our common stock will not have any preemptive, subscription
or conversion rights with respect to shares of our common stock. We may issue
additional shares of our common stock, if authorized by our Board, without the
common stockholders' approval, unless required by Delaware law or a stock
exchange on which our securities are traded. If we receive the appropriate
payment, shares of our common stock that we issue will be fully paid and
nonassessable.
DESCRIPTION OF OUR PREFERRED STOCK
We are authorized to issue up to 200,000,000 shares of preferred stock,
$0.01 par value per share, of which 4,000,000 shares have been designated as
Series A Junior Participating Preferred Stock, $0.01 par value, and 6,000,000
shares have been designated as Series B Junior Participating Preferred Stock,
$0.01 par value.
This section describes the general terms and provisions of our
preferred stock that we may offer from time to time. The applicable prospectus
supplement will describe the specific terms of the shares of preferred stock
offered through that prospectus supplement. We will file a copy of the
certificate of designation that contains the terms of each new series of
preferred stock with the SEC each time we issue a new series of preferred stock,
and these certificates of designation will be incorporated by reference into the
registration statement of which this prospectus is a part. Each certificate of
designation will establish the number of shares included in a designated series
and fix the designation, powers, privileges, preferences and rights of the
shares of each series as well as any applicable qualifications, limitations or
restrictions. A holder of our preferred stock should refer to the applicable
certificate of designation, our restated certificate of incorporation and the
applicable prospectus supplement for more specific information.
Our Board has been authorized, subject to limitations provided in our
restated certificate of incorporation, to provide for the issuance of shares of
our preferred stock in multiple series. No shares of our preferred stock are
currently outstanding.
With respect to each series of our preferred stock, our Board has the
authority to fix the following terms:
o the designation of the series;
o the number of shares within the series;
o whether dividends are cumulative and, if cumulative, the dates
from which dividends are cumulative;
o the rate of any dividends, any conditions upon which dividends
are payable, and the dates of payment of dividends;
o whether the shares are redeemable, the redemption price and
the terms of redemption;
o the amount payable to a holder for each share owned if we are
dissolved or liquidated;
o whether the shares are convertible or exchangeable, the price
or rate of exchange, and the applicable terms and conditions;
o any restrictions on issuance of shares in the same series or
any other series; and
o your voting rights for the shares you own.
Holders of our preferred stock will not have preemptive rights with
respect to shares of our preferred stock. In addition, rights with respect to
shares of our preferred stock will be subordinate to the rights of our general
creditors. If we receive the appropriate payment, shares of our preferred stock
that we issue will be fully paid and nonassessable.
We currently plan to retain American Stock Transfer & Trust Company as
the registrar and transfer agent of any series of our preferred stock.
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DESCRIPTION OF OUR WARRANTS
This section describes the general terms and provisions of our warrants
to acquire our securities that we may issue from time to time. The applicable
prospectus supplement will describe the specific terms of the warrants offered
through that prospectus supplement.
We may issue warrants for the purchase of our debt securities, common
stock or preferred stock. We may issue warrants independently or together with
other securities, and they may be attached to or separate from the other
securities. Each series of warrants will be issued under a separate warrant
agreement that we will enter into with American Stock Transfer & Trust Company,
or another bank or trust company, as warrant agent, as detailed in the
applicable prospectus supplement. The warrant agent will act solely as our agent
in connection with the warrants and will not assume any obligation, or agency or
trust relationship, with you. We will file a copy of the warrant and warrant
agreement with the SEC each time we issue a series of warrants, and these
warrants and warrant agreements will be incorporated by reference into the
registration statement of which this prospectus is a part. A holder of our
warrants should refer to the provisions of the applicable warrant agreement and
prospectus supplement for more specific information.
The prospectus supplement relating to a particular issue of warrants
will describe the terms of those warrants, including, where applicable:
o the offering price;
o the number of warrants offered;
o the securities underlying the warrants;
o the exercise price, the amount of securities you will receive
upon exercise, the procedure for exercise of the warrants and
the circumstances, if any, that will cause the warrants to be
automatically exercised;
o the rights, if any, we have to redeem the warrants;
o the date on which the warrants will expire;
o U.S. federal income tax consequences;
o the name of the warrant agent; and
o any other terms of the warrants.
After your warrants expire they will become void. All warrants will be
issued in registered form. The prospectus supplement may provide for the
adjustment of the exercise price of the warrants.
Warrants may be exercised at the appropriate office of the warrant
agent or any other office indicated in the applicable prospectus supplement.
Before the exercise of warrants, holders will not have any of the rights of
holders of the securities purchasable upon exercise and will not be entitled to
payments made to holders of those securities.
The warrant agreements may be amended or supplemented without the
consent of the holders of the warrants to which it applies to effect changes
that are not inconsistent with the provisions of the warrants and that do not
materially and adversely affect the interests of the holders of the warrants.
However, any amendment that materially and adversely alters the rights of the
holders of warrants will not be effective unless the holders of at least a
majority of the applicable warrants then outstanding approve the amendment.
Every holder of an outstanding warrant at the time any amendment becomes
effective, by continuing to hold the warrant, will be bound by the applicable
warrant agreement as amended. The prospectus supplement applicable to a
particular series of warrants may provide that certain provisions of the
warrants, including the securities for which they may be exercisable, the
exercise price and the expiration date, may not be altered without the consent
of the holder of each warrant.
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DESCRIPTION OF THE STOCK PURCHASE CONTRACTS
AND THE STOCK PURCHASE UNITS
We may issue contracts obligating holders to purchase from us, and us
to sell to the holders, a specified number of shares of common stock at a future
date or dates, which we refer to herein as "stock purchase contracts." The price
per share of common stock and the number of shares of common stock may be fixed
at the time the stock purchase contracts are issued or may be determined by
reference to a specific formula set forth in the stock purchase contracts. The
stock purchase contracts may be issued separately or as part of units consisting
of a stock purchase contract and debt securities, trust preferred securities or
debt obligations of third parties, including U.S. treasury securities, which
secure the holders' obligations to purchase the common stock under the stock
purchase contracts. We refer to these units herein as "stock purchase units."
The stock purchase contracts may require holders to secure their obligations
thereunder in a specified manner. The stock purchase contracts also may require
us to make periodic payments to the holders of the stock purchase units or vice
versa, and such payments may be unsecured or refunded on some basis.
The applicable prospectus supplement will describe the terms of the
stock purchase contracts or stock purchase units. The description in the
applicable prospectus supplement will not necessarily be complete, and reference
will be made to the stock purchase contracts, and, if applicable, collateral or
depositary arrangements, relating to the stock purchase contracts or stock
purchase units. Material U.S. federal income tax considerations applicable to
the stock purchase units and the stock purchase contracts will also be discussed
in the applicable prospectus supplement.
DESCRIPTION OF THE TRUST PREFERRED SECURITIES
If and when RC Trust issues trust preferred securities, its declaration
of trust will be replaced by an amended and restated declaration of trust which
will authorize its trustees to issue one series of trust preferred securities
and one series of trust common securities. The form of amended and restated
declaration of trust is filed with the SEC as an exhibit to the registration
statement of which this prospectus is a part.
The terms of the trust preferred securities will include those stated
in RC Trust's declaration of trust, as it may be amended and restated from time
to time, and those made a part of that declaration by the Trust Indenture Act of
1939. This section describes the general terms and provisions of RC Trust's
amended and restated declaration of trust and the trust securities RC Trust may
offer from time to time. The applicable prospectus supplement will describe the
specific terms of the amended and restated declaration of trust and the trust
preferred securities offered through that prospectus supplement. Any final
amended and restated declaration of trust will be filed with the SEC if RC Trust
issues trust preferred securities. A holder of trust preferred securities should
read the applicable prospectus supplement and the amended and restated
declaration of trust for more specific information.
The prospectus supplement relating to the trust preferred securities
being offered will include specific terms relating to the offering. These terms
will include some or all of the following:
o the designation of the trust preferred securities;
o the number of trust preferred securities to be issued;
o the annual distribution rate and any conditions upon which
distributions are payable, the distribution payment dates, the
record dates for distribution payments and the additional
amounts, if any, that may be payable with respect to the trust
preferred securities;
o whether distributions will be cumulative and compounding and,
if so, the dates from which distributions will be cumulative
or compounded;
o the amounts that will be paid out of the assets of RC Trust,
after the satisfaction of liabilities to creditors of RC
Trust, to the holders of trust preferred securities upon
dissolution, winding up or termination of RC Trust;
o any repurchase, redemption or exchange provisions;
o any preference or subordination rights upon a default or
liquidation of RC Trust;
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o any voting rights of the trust preferred securities in
addition to those required by law, including the number of
votes per trust preferred security and any requirement for the
approval by the holders of trust preferred securities, as a
condition to a specified action or amendments to the
declaration of trust;
o terms for any conversion or exchange of the related series of
our debt securities or the trust preferred securities into
other securities;
o any rights to defer distributions on the trust preferred
securities by extending the interest payment period on the
related series of our debt securities;
o any terms and conditions upon which the related series of our
debt securities may be distributed to holders of trust
preferred securities; and
o any other relevant terms, rights, preferences, privileges,
limitations or restrictions of the trust preferred securities.
The regular trustee, on behalf of RC Trust and pursuant to the
declaration of trust, will issue one class of trust preferred securities and one
class of trust common securities. The trust preferred and trust common
securities will represent undivided beneficial ownership interests in the assets
of RC Trust. Except as described in the applicable prospectus supplement, the
trust preferred securities will rank equally, and payments will be made thereon
proportionately, with the trust common securities. The trust preferred
securities will be issued to the public under the registration statement of
which this prospectus is a part. The trust common securities will be issued
directly or indirectly to us.
The only source of cash to make payments on the trust preferred
securities issuable by RC Trust will be payments on debt securities RC Trust
purchases from us. The property trustee of RC Trust will hold legal title to the
debt securities RC Trust purchases in trust for the benefit of the holders of
its trust preferred securities. If RC Trust is dissolved, after satisfaction of
RC Trust's creditors, the property trustee may distribute the debt securities
held in trust on a proportionate basis to the holders of trust preferred and
trust common securities.
We will execute a guarantee agreement for the benefit of the holders of
the trust preferred securities. The terms of our guarantee will be set forth in
the applicable prospectus supplement and are summarized under the caption
"Description of the Trust Preferred Securities Guarantee" included elsewhere in
this prospectus. The guarantee will not guarantee the payment of distributions,
as defined below, or any amounts payable on redemption or liquidation of the
trust preferred securities when RC Trust does not have funds available to make
these payments. If we were to become insolvent, your claim as a holder of trust
preferred securities, which represents in effect an interest in the related
series of our debt securities, or as a holder of our debt securities as part of
a stock purchase unit, will be effectively junior to the claims of holders of
any indebtedness or preferred stock of our subsidiaries.
In the applicable prospectus supplement we will also describe certain
material U.S. federal income tax consequences and special considerations
applicable to the trust preferred securities.
DESCRIPTION OF THE TRUST PREFERRED SECURITIES GUARANTEE
If and when RC Trust issues trust preferred securities, we will fully
and unconditionally guarantee payments on the trust preferred securities as
described in this section, any applicable prospectus supplement and the
guarantee executed by us in connection with the issuance of the trust preferred
securities. The Bank of New York, as guarantee trustee, will hold the guarantee
for the benefit of the holders of trust preferred securities.
This section describes the general terms and provisions of our trust
preferred securities guarantee. The applicable prospectus supplement will
describe the specific terms of the trust preferred securities guarantee. The
form of trust guarantee is filed with the SEC as an exhibit to the registration
statement of which this prospectus is a part. We will file with the SEC a final
guarantee if RC Trust issues trust preferred securities. A holder of trust
preferred securities should refer to the applicable prospectus supplement and to
the full text of our guarantee and those terms made a part of the guarantee by
the Trust Indenture Act of 1939 for more specific information.
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We will irrevocably and unconditionally agree to pay in full to holders
of trust preferred securities the following amounts to the extent not paid by RC
Trust:
o any accumulated and unpaid distributions and any additional
amounts with respect to the trust preferred securities and any
redemption price for trust preferred securities called for
redemption by RC Trust, if and to the extent that we have made
corresponding payments on the debt securities to the property
trustee of RC Trust; and
o payments upon the dissolution of RC Trust equal to the lesser
of:
(1) the liquidation amount plus all accumulated and
unpaid distributions and additional amounts on the
trust preferred securities to the extent RC Trust has
funds legally available for those payments; and
(2) the amount of assets of RC Trust remaining legally
available for distribution to the holders of trust
preferred securities in liquidation of RC Trust.
We will not be required to make these liquidation payments if:
o RC Trust distributes the debt securities to the holders of
trust preferred securities in exchange for their trust
preferred securities; or
o RC Trust redeems the trust preferred securities in full upon
the maturity or redemption of the debt securities.
We may satisfy our obligation to make a guarantee payment either by
making payment directly to the holders of trust preferred securities or to the
guarantee trustee for remittance to the holders or by causing RC Trust to make
the payment to them.
The guarantee is a guarantee from the time of issuance of the
applicable series of trust preferred securities. THE GUARANTEE ONLY COVERS,
HOWEVER, DISTRIBUTIONS AND OTHER PAYMENTS ON TRUST PREFERRED SECURITIES IF AND
TO THE EXTENT THAT WE HAVE MADE CORRESPONDING PAYMENTS ON THE DEBT SECURITIES TO
THE APPLICABLE PROPERTY TRUSTEE. IF WE DO NOT MAKE THOSE CORRESPONDING PAYMENTS
ON THE DEBT SECURITIES, RC TRUST WILL NOT HAVE FUNDS AVAILABLE FOR PAYMENTS AND
WE WILL HAVE NO OBLIGATION TO MAKE A GUARANTEE PAYMENT.
The obligations under the debt securities, the associated indenture, RC
Trust's declaration of trust and our related guarantee, taken together, will
provide a full and unconditional guarantee of payments of distributions and
other amounts due on the trust preferred securities.
Raytheon Covenants
In the guarantee, we will agree that, as long as any trust preferred
securities issued by RC Trust are outstanding, we will not make the payments and
distributions described below if:
o we are in default on our guarantee payments or other payment
obligations under the related guarantee;
o any trust enforcement event under RC Trust's declaration of
trust has occurred and is continuing; or
o we elect to defer payments of interest on the related debt
securities by extending the interest payment period, and that
deferral period is continuing.
In these circumstances, we will agree that we will not:
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o declare or pay any dividends or distributions on, or redeem,
purchase, acquire, or make a liquidation payment with respect
to, any of our capital stock; or
o make any payment of principal, interest or premium, if any, on
or repay, repurchase or redeem any debt securities that rank
equally with, or junior in interest to, the debt securities we
issue to RC Trust or make any guarantee payments with respect
to any guarantee by us of the debt of any of our subsidiaries
if that guarantee ranks equally with or junior in interest to
the debt securities we issue to RC Trust.
However, even during these circumstances, we may:
o purchase or acquire our capital stock in connection with the
satisfaction of our obligations under any employee benefit
plans or pursuant to any contract or security outstanding on
the first day of any extension period requiring us to purchase
our capital stock (other than a contract or security ranking
expressly by its terms on a parity with or junior to the debt
securities);
o reclassify our capital stock or exchange or convert one class
or series of our capital stock for another class or series of
our capital stock;
o purchase fractional interests in shares of our capital stock
pursuant to the conversion or exchange provisions of our
capital stock or the security being converted or exchanged;
o declare dividends or distributions in our capital stock where
the dividend stock is the same stock as that on which the
dividend is being paid;
o redeem, repurchase or issue any rights pursuant to a rights
agreement; and
o make payments under the guarantee related to the trust
preferred securities.
In addition, as long as trust preferred securities issued by RC Trust
are outstanding, we will agree that we will:
o remain the sole direct or indirect owner of all the
outstanding trust common securities of RC Trust, except as
permitted by its declaration of trust;
o permit the trust common securities of RC Trust to be
transferred only as permitted by its declaration of trust; and
o use reasonable efforts to cause RC Trust to continue to be
treated as a grantor trust for U.S. federal income tax
purposes, except in connection with a distribution of debt
securities to the holders of trust preferred securities as
provided in its declaration of trust, in which case RC Trust
would be dissolved.
Amendments and Assignment
We and the guarantee trustee may amend the guarantee without the
consent of any holder of trust preferred securities if the amendment does not
adversely affect the rights of the holders in any material respect. In all other
cases, we and the guarantee trustee may amend the guarantee only with the prior
approval of the holders of at least a majority of outstanding trust preferred
securities issued by RC Trust.
We may assign our obligations under the guarantee only in connection
with a consolidation, merger or asset sale involving us that is permitted under
the indenture governing the debt securities.
Termination of the Guarantee
Our guarantee will terminate upon:
o full payment of the redemption price of all trust preferred
securities of RC Trust;
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o distribution of the related debt securities, or any securities
into which those debt securities are convertible, to the
holders of the trust preferred and trust common securities of
RC Trust in exchange for all the securities issued by RC
Trust; or
o full payment of the amounts payable upon liquidation of RC
Trust.
The guarantee will, however, continue to be effective, or will be
reinstated, if any holder of trust preferred securities must repay any amounts
paid on those trust preferred securities or under the guarantee.
Status of the Guarantee
Our obligations under the guarantee will be unsecured and effectively
junior to all debt and preferred stock of our subsidiaries. BY ACCEPTANCE OF THE
TRUST PREFERRED SECURITIES, THE HOLDERS OF TRUST PREFERRED SECURITIES AGREE TO
ANY SUBORDINATION PROVISIONS AND OTHER TERMS OF THE RELATED GUARANTEE. We will
specify in the applicable prospectus supplement the ranking of the guarantee
with respect to our capital stock and other liabilities, including other
guarantees.
The guarantee will be deposited with the guarantee trustee to be held
for the benefit of the holders of the trust preferred securities. The guarantee
trustee will have the right to enforce the guarantee on the holders' behalf. In
most cases, the holders of a majority of outstanding trust preferred securities
issued by RC Trust will have the right to direct the time, method and place of:
o conducting any proceeding for any remedy available to the
applicable guarantee trustee; or
o exercising any trust or other power conferred upon that
guarantee trustee under the guarantee.
The guarantee will constitute a guarantee of payment and not merely of
collection. This means that the guarantee trustee may institute a legal
proceeding directly against us to enforce the payment rights under the
guarantee, without first instituting a legal proceeding against RC Trust or any
other person or entity.
If the guarantee trustee fails to enforce the guarantee or we fail to
make a guarantee payment, a holder of the trust preferred securities may
institute a legal proceeding directly against us to enforce the holder's rights
under that guarantee without first instituting a legal proceeding against RC
Trust, the guarantee trustee or any other person or entity.
Periodic Reports Under Guarantee
We will be required to provide annually to the guarantee trustee a
statement as to our performance of our obligations and our compliance with all
conditions under the guarantee.
Duties of Guarantee Trustee
The guarantee trustee normally will perform only those duties
specifically set forth in the guarantee. The guarantee will not contain any
implied covenants. If a default occurs on the guarantee, the guarantee trustee
will be required to use the same degree of care and skill in the exercise of its
powers under the guarantee as a prudent person would exercise or use under the
circumstances in the conduct of his own affairs. The guarantee trustee will
exercise any of its rights or powers under the guarantee at the request or
direction of holders of the trust preferred securities only if the guarantee
trustee is offered security and indemnity satisfactory to it.
RELATIONSHIP AMONG THE DEBT SECURITIES, THE TRUST PREFERRED SECURITIES
AND THE TRUST PREFERRED SECURITIES GUARANTEE
To the extent set forth in the guarantee and to the extent funds are
available, we will irrevocably guarantee the payment of distributions and other
amounts due on the trust preferred securities. If and to the extent we do not
make payments on the debt securities to the property trustee, RC Trust will not
have sufficient funds to pay distributions or other amounts due on the trust
preferred securities. The guarantee does not cover any payment of
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distributions or other amounts due on the trust preferred securities unless RC
Trust has sufficient funds for the payment of such distributions or other
amounts. In such event, a holder of trust preferred securities may institute a
legal proceeding directly against us to enforce payment of such distributions or
other amounts to such holder after the respective due dates. Taken together, our
obligations under the debt securities, the associated indenture, RC Trust's
declaration of trust and our related guarantee will provide a full and
unconditional guarantee of payments of distributions and other amounts due on
the trust preferred securities. No single document standing alone or operating
in conjunction with fewer than all of the other documents constitutes such
guarantee. It is only the combined operation of these documents that provides a
full and unconditional guarantee of RC Trust's payment obligations under the
trust preferred securities.
Sufficiency of Payments
As long as payments of interest and other amounts are made when due on
the debt securities, such payments will be sufficient to cover distributions and
payments due on the trust preferred securities because of the following factors:
o the aggregate principal amount of the debt securities will be
equal to the sum of the aggregate stated liquidation amount of
the trust preferred securities;
o the interest rate and the interest and other payment dates on
the debt securities will match the distribution rate and
distribution and other payment dates for the trust preferred
securities;
o we, as issuer of the debt securities, will pay, and RC Trust
will not be obligated to pay, directly or indirectly, any
costs, expenses, debts and obligations of RC Trust, other than
with respect to the trust preferred securities; and
o the declaration of trust will further provide that RC Trust
will not engage in any activity that is not consistent with
the limited purposes of RC Trust.
Notwithstanding anything to the contrary in the indenture, we have the
right to set-off any payment we are otherwise required to make thereunder
against and to the extent we have already made, or are concurrently on the date
of such payment making, a related payment under the guarantee.
Enforcement Rights of Holders of Preferred Securities
The declaration of trust provides that if we fail to make interest or
other payments on the debt securities when due, taking account of any extension
period, the holders of the trust preferred securities may direct the property
trustee to enforce its rights under the applicable indenture. If the property
trustee fails to enforce its rights under the indenture in respect of an event
of default under the indenture, any holder of record of trust preferred
securities may, to the fullest extent permitted by applicable law, institute a
legal proceeding against us to enforce the property trustee's rights under the
indenture without first instituting any legal proceeding against RC Trust, the
property trustee or any other person or entity. Notwithstanding the foregoing,
if a trust enforcement event has occurred and is continuing and such event is
attributable to our failure to pay interest, premium or principal on the debt
securities on the date such interest, premium or principal is otherwise payable,
then a holder of trust preferred securities may institute a direct action
against us for payment of such holder's pro rata share. If a holder brings such
a direct action, we will be entitled to that holder's rights under RC Trust's
declaration of trust to the extent of any payment made by us to that holder.
If we fail to make payments under the guarantee, a holder of trust
preferred securities may institute a proceeding directly against us for
enforcement of the guarantee for such payments.
Limited Purpose of Trust
The trust preferred securities evidence undivided beneficial ownership
interests in the assets of RC Trust, and RC Trust exists for the sole purpose of
issuing and selling the trust preferred and trust common securities and using
the proceeds to purchase our debt securities. A principal difference between the
rights of a holder of trust preferred securities and a holder of our debt
securities is that a holder of our debt securities is entitled to receive
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from us the principal amount of, and interest accrued on, the debt securities
held, while a holder of trust preferred securities is entitled to receive
distributions and other payments from RC Trust, or from us under the guarantee,
only if, and to the extent, RC Trust has funds available for the payment of such
distributions and other payments.
Rights Upon Dissolution
Upon any voluntary or involuntary dissolution of RC Trust involving the
redemption or repayment of the debt securities, the holders of the trust
preferred securities will be entitled to receive, out of assets held by RC
Trust, subject to the rights of creditors of RC Trust, if any, the liquidation
distribution in cash. Because we are the guarantor under the guarantee and, as
issuer of the debt securities, we have agreed to pay for all costs, expenses and
liabilities of RC Trust other than RC Trust's obligations to the holders of the
trust preferred securities, the positions of a holder of trust preferred
securities and a holder of debt securities relative to other creditors and to
our stockholders in the event of liquidation or bankruptcy of us would be
substantially the same.
DESCRIPTION OF CERTAIN PROVISIONS OF DELAWARE LAW
AND OUR CERTIFICATE OF INCORPORATION AND BY-LAWS
We are organized as a Delaware corporation. The following is a summary
of our restated certificate of incorporation and amended and restated by-laws
and certain provisions of Delaware law. Because it is a summary, it does not
contain all the information that may be important to you. If you want more
information, you should read our entire restated certificate of incorporation
and amended and restated by-laws, copies of which are filed with the SEC as
exhibits to the registration statement of which this prospectus is a part, see
"Where You Can Find More Information," or refer to the provisions of Delaware
law.
Advance Notice of Nominations
Our amended and restated by-laws contain provisions requiring that you
deliver advance notice of any business that you intend to raise at an annual
meeting of stockholders and provides for procedures to be followed if you wish
to nominate a person to be elected as a director. To be timely, you must give
written notice to our Secretary within the 30-day period beginning on the 120th
day prior to the first anniversary of the preceding year's annual meeting. If
the date of the next annual meeting is more than 30 days before, or more than 60
days after, the first anniversary of the preceding year's annual meeting, you
must deliver notice to our Secretary within the period beginning on the 120th
day prior to the meeting and ending 30 days later, or, if later, the 10th day
after our public announcement of the meeting date. In addition, if we plan to
increase the size of our Board, and we do not announce all of the nominees for
election, or the fact that the size of our Board will be increased, at least 100
days before the first anniversary of the preceding year's annual meeting, you
will have 10 days following the date of our public announcement to give notice
of your nomination to our Secretary.
The notice must provide information about you and the business to be
brought before the meeting. You should review our amended and restated by-laws
for more information. For our 2002 annual stockholders' meeting, the first
anniversary of the previous year's meeting will be April 25, 2002.
Classification of Directors
Our restated certificate of incorporation provides that, except as
otherwise required by specific provisions of the restated certificate of
incorporation relating to the rights of holders of any class or series of
preferred stock to elect additional directors under specified circumstances, the
number of our directors may be fixed from time to time by a resolution adopted
by a majority of our Board but must not be less than three. Our Board is
classified into three classes, as nearly equal in size as possible. Each class
holds office until the third succeeding anniversary of the annual stockholders'
meeting electing that class. A director may be removed only for cause by the
vote of our common stockholders, subject to the rights of any series of
preferred stock outstanding.
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No Action by Written Consent; Special Meeting
Our restated certificate of incorporation provides that stockholders
may not act by written consent in lieu of an annual or a special meeting. Except
as otherwise required by law and subject to the rights of holders of any class
or series of preferred stock, special meetings of the stockholders may only be
called by our Chairman of the Board or by our Board pursuant to a resolution
that indicates the purpose of the meeting, which is approved by a majority of
our directors, assuming, for this purpose, that there were no vacancies. No
business other than that stated in the notice may be transacted at any special
meeting of stockholders.
According to our amended and restated by-laws, if we call a special
meeting to elect directors to our Board, you may nominate individuals for
election if you deliver notice to our Secretary during the period beginning on
the 120th day before the special meeting and ending 30 days later, or, if later,
the 10th day after our public announcement of the meeting.
Limitation on Directors' Liability
Our restated certificate of incorporation provides, as authorized by
law, that our directors will not be personally liable to us or our stockholders
for monetary damages for breach of fiduciary duty as a director, except to the
extent such exemption from or limitation of liability is not permitted under the
Delaware General Corporation Law. The effect of this provision may be to reduce
the likelihood of derivative litigation against directors for breach of their
duty of care, even though the action, if successful, might otherwise have
benefited us and our stockholders.
Stockholder Rights Plan
We have in place a stockholder rights plan. Each share of common stock
issued hereunder will be issued together with one right under the stockholder
rights plan. You should refer to the rights agreement, dated as of December 15,
1997, by and between us and American Stock Transfer & Trust Company, as rights
agent, as amended, for a more detailed description of the stockholder rights
plan. A copy of the rights agreement, as amended, is filed with the SEC as an
exhibit to the registration statement of which this prospectus is a part. See
"Where You Can Find More Information."
The rights trade automatically with shares of our common stock and
become exercisable only under the circumstances described below. The rights are
designed to protect our interests and the interests of our stockholders against
coercive takeover tactics. The purpose of the rights is to encourage potential
acquirors to negotiate with our Board before attempting a takeover and to
provide our Board with leverage in negotiating the terms of any proposed
takeover on behalf of all stockholders. The rights may have anti-takeover
effects. The rights should not, however, interfere with any merger or other
business combination that our Board approves.
The rights do not become exercisable until triggering events occur.
They expire on December 15, 2007, but we may extend this date or redeem the
rights earlier. Before a right is exercised, the right does not confer any right
to vote or receive dividends. The rights entitle you to purchase from us one
one-hundredth of a share of our Series B Junior Participating preferred stock
for $250, subject to adjustment, upon the earlier of the following occurrences:
o 10 days after the public announcement that an individual or
group-- the "acquiror"-- has acquired 15% or more of our
common stock, or the total voting power in the election of our
directors; or
o 10 business days, or later if our Board elects, after the
commencement or announcement by an individual or group -- the
"acquiror" -- of an intention to make a tender offer or
exchange offer that would result in the acquisition of 15% or
more of our common stock, or the total voting power in the
election of our directors.
Once the acquiror acquires 15% or more of our common stock, each holder
of a right other than the acquiror, whose rights will automatically become void,
will thereafter have the right to purchase, in lieu of purchasing shares of our
Series B Junior Participating preferred stock as explained above, shares of our
common stock at a 50% discount to market price. If we are thereafter acquired in
a merger or other business combination, or
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50% or more of our assets or earning power are sold, each holder of a right will
have the right to purchase shares of common stock of the acquiring company at a
50% discount to market price. Our Board will have the option, however, before
the acquiror obtains 50% or more of our outstanding shares of common stock, to
exchange rights of holders, other than the acquiror, for shares of our Series B
Junior Participating preferred stock, at a rate of 100 rights per share, subject
to adjustment.
We may redeem the rights at any time before they are triggered at a
price of $0.01 per right. Our Board may also designate the effective time of the
redemption as well as the applicable conditions. If we redeem your rights, you
will be entitled to receive $0.01 for each right you hold, but you will not have
any further entitlements with respect to these rights.
Section 203 of The Delaware General Corporation Law
Section 203 of the Delaware General Corporation Law prohibits a defined
set of transactions between a Delaware corporation, such as us, and an
"interested stockholder." An interested stockholder is defined as a person who,
together with any affiliates or associates of such person, beneficially owns,
directly or indirectly, 15% or more of the outstanding voting shares of a
Delaware corporation. This provision may prohibit business combinations between
an interested stockholder and a corporation for a period of three years after
the date the interested stockholder becomes an interested stockholder. The term
"business combination" is broadly defined to include mergers, consolidations,
sales or other dispositions of assets having a total value in excess of 10% of
the consolidated assets of the corporation, and some other transactions that
would increase the interested stockholder's proportionate share ownership in the
corporation.
This prohibition is effective unless:
o the business combination is approved by our Board prior to the
time the interested stockholder becomes an interested
stockholder;
o the interested stockholder acquired at least 85% of our voting
stock, other than stock held by directors who are also
officers or by qualified employee stock plans, in the
transaction in which it becomes an interested stockholder; or
o the business combination is approved by a majority of our
Board and by the affirmative vote of 662/3% of the outstanding
voting stock that is not owned by the interested stockholder.
In general, the prohibitions do not apply to business combinations with
persons who were stockholders prior to the corporation becoming subject to
Section 203.
Stock Exchange Listing
Our common stock is listed on the New York Stock Exchange, the Chicago
Stock Exchange and the Pacific Exchange. The trading symbol for our common stock
on these exchanges is "RTN."
Transfer Agent and Rights Agent
American Stock Transfer & Trust Company is the Transfer Agent for our
common stock and the Rights Agent for the rights.
PLAN OF DISTRIBUTION
We and RC Trust may sell the securities in and outside the United
States (a) through underwriters or dealers, (b) directly to purchasers,
including our affiliates, (c) through agents or (d) through a combination of any
of these methods. The prospectus supplement will include the following
information:
o the terms of the offering;
o the names of any underwriters or agents;
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o the name or names of any managing underwriter or underwriters;
o the purchase price of the securities;
o the net proceeds from the sale of the securities;
o any delayed delivery arrangements;
o any underwriting discounts, commissions and other items
constituting underwriters' compensation;
o any initial public offering price;
o any discounts or concessions allowed or reallowed or paid to
dealers; and
o any commissions paid to agents.
Sale Through Underwriters or Dealers
If underwriters are used in the sale of any of these securities, the
underwriters will acquire the securities for their own account. The underwriters
may resell the securities from time to time in one or more transactions,
including negotiated transactions, at a fixed public offering price or at
varying prices determined at the time of sale. Underwriters may offer securities
to the public either through underwriting syndicates represented by one or more
managing underwriters or directly by one or more firms acting as underwriters.
Unless we inform you otherwise in any prospectus supplement, the obligations of
the underwriters to purchase the securities will be subject to certain
conditions, and the underwriters will be obligated to purchase all the offered
securities if they purchase any of them. The underwriters may change from time
to time any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers.
During and after an offering through underwriters, the underwriters may
purchase and sell the securities in the open market. These transactions may
include overallotment and stabilizing transactions and purchases to cover
syndicate short positions created in connection with the offering. The
underwriters may also impose a penalty bid, which means that selling concessions
allowed to syndicate members or other broker-dealers for the offered securities
sold for their account may be reclaimed by the syndicate if the offered
securities are repurchased by the syndicate in stabilizing or covering
transactions. These activities may stabilize, maintain or otherwise affect the
market price of the offered securities, which may be higher than the price that
might otherwise prevail in the open market. If commenced, the underwriters may
discontinue these activities at any time.
Some or all of the securities that we and RC Trust offer though this
prospectus may be new issues of securities with no established trading market.
Any underwriters to whom we and RC Trust sell these securities for public
offering and sale may make a market in those securities, but they will not be
obligated to and they may discontinue any market making at any time without
notice. Accordingly, neither we nor RC Trust can assure you of the liquidity of,
or continued trading markets for, any securities that we and RC Trust offer.
If dealers are used in the sale of securities, we and RC Trust will
sell the securities to them as principals. They may then resell those securities
to the public at varying prices determined by the dealers at the time of resale.
We will include in the prospectus supplement the names of the dealers and the
terms of the transaction.
Direct Sales and Sales Through Agents
We and RC Trust may sell the securities directly, and not through
underwriters or agents. We and RC Trust may also sell the securities through
agents designated from time to time. In the prospectus supplement, we will name
any agent involved in the offer or sale of the offered securities, and we will
describe any commissions payable to the agent. Unless we inform you otherwise in
the prospectus supplement, any agent will agree to use its reasonable best
efforts to solicit purchases for the period of its appointment.
We and RC Trust may sell the securities directly to institutional
investors or others who may be deemed to be underwriters within the meaning of
the Securities Act of 1933, as amended (the "Securities Act"), with respect to
any sale of those securities. We will describe the terms of any such sales in
the prospectus supplement.
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Delayed Delivery Contracts
If we so indicate in the prospectus supplement, we and RC Trust may
authorize agents, underwriters or dealers to solicit offers from certain types
of institutions to purchase securities from us or RC Trust at the public
offering price under delayed delivery contracts. These contracts would provide
for payment and delivery on a specified date in the future. The contracts would
be subject only to those conditions described in the prospectus supplement. The
prospectus supplement will describe the commission payable for solicitation of
those contracts.
General Information
We may have agreements with the agents, dealers and underwriters to
indemnify them against certain civil liabilities, including liabilities under
the Securities Act, or to contribute with respect to payments that the agents,
dealers or underwriters may be required to make. Agents, dealers and
underwriters may be customers of, engage in transactions with or perform
services for us in the ordinary course of their businesses.
VALIDITY OF THE OFFERED SECURITIES
Neal E. Minahan, Esq., Senior Vice President and General Counsel of
Raytheon, will pass upon the validity of our debt securities, common stock,
preferred stock, warrants, guarantees, stock purchase contracts and stock
purchase units. As of the date of this prospectus, Neal E. Minahan, Esq. holds
13,000 shares of common stock and options to acquire an additional 140,050
shares of common stock.
The validity of the trust preferred securities to be issued by RC
Trust, and the enforceability of its declaration of trust and the creation of RC
Trust, will be passed upon by Richards, Layton and Finger, P.A., Wilmington,
Delaware.
EXPERTS
The financial statements incorporated in this prospectus by reference
to the Annual Report on Form 10-K of Raytheon Company for the year ended
December 31, 2001 have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
that firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy the registration statement
and any other document we file at the SEC's public reference section, 450 Fifth
Street, N.W., Room 1024, Washington, D.C. 20549 and at the worldwide web site
(http://www.sec.gov) maintained by the SEC. Information regarding the operation
of the public reference section can be obtained by calling 1-800-SEC-0330. Our
common stock, $0.01 par value per share, is listed on the New York Stock
Exchange, the Chicago Stock Exchange and the Pacific Exchange, where reports,
proxy statements and other information concerning Raytheon Company can also be
inspected. The offices of the NYSE are located at 20 Broad Street, New York, New
York 10005.
DOCUMENTS INCORPORATED BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus. Statements in this prospectus
regarding the contents of any contract or other document may not be complete.
You should refer to the copy of the contract or other document filed as an
exhibit to the registration statement. Later information filed with the SEC will
update and supersede information we have included or incorporated by reference
in this prospectus.
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We incorporate by reference the following documents filed by us:
o our Annual Report on Form 10-K for the fiscal year ended
December 31, 2001 filed with the SEC on March 19, 2002; and
o our registration statements on Form 8-A/A and Form 8-A filed
with the SEC on December 17, 1997 and May 1, 2001,
respectively.
In addition to the documents listed above, we incorporate by reference
any future filings made by us, including filings made prior to the effectiveness
of this registration statement, with the SEC under Section 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934, as amended, until our offering of
the securities made by this prospectus is completed or terminated.
We will provide without charge to each person, including any beneficial
owner, to whom a prospectus is delivered, on written or oral request of that
person, a copy of any or all of the documents we are incorporating by reference
into this prospectus, excluding exhibits other than those to which we
specifically refer. Such written requests should be addressed to:
Secretary, Raytheon Company
141 Spring Street
Lexington, Massachusetts 02421
You may direct telephone requests to our Secretary at (781) 862-6600.
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PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Set forth below is an estimate (except in the case of the registration
fee) of the amount of fees and expenses to be incurred in connection with the
issuance and distribution of the offered securities registered hereby, other
than underwriting discounts and commission, if any, incurred in connection with
the sale of the offered securities. All such amounts will be borne by Raytheon
Company.
SEC Registration Fee........................................ $ 276,000
Legal Fees and Expenses..................................... $ 100,000
Accounting Fees and Expenses................................ $ 30,000
Trustee's Fees and Expenses (including counsel fees)........ $ 20,000
Rating Agency Fees.......................................... $ 160,000
Blue Sky Fees and Expenses.................................. $ 2,000
Printing and Engraving Expenses............................. $ 90,000
Miscellaneous Fees and Expenses............................. $ 14,000
---------
Total: $ 692,000
=========
All fees and expenses other than the SEC Registration Fee are
estimated. The expenses listed above will be paid by Raytheon Company.
Item 15. Indemnification of Directors and Officers.
Delaware General Corporation Law
Under Section 145 of the Delaware General Corporation Law (the "DGCL"),
Raytheon Company is empowered to indemnify its directors and officers in the
circumstances therein provided. Certain portions of Section 145 are summarized
below:
Section 145(a) of the DGCL provides that a corporation may indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation) by reason of the fact that such person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding if such person acted in good faith and in the
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had not reasonable cause to believe such person's conduct was
unlawful.
Section 145(b) of the DGCL provides that a corporation may indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that he is
or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees) actually and reasonably
incurred by such person in connection with the defense or settlement of such
action or suit if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Delaware Court
of Chancery or the court in which such action or suit was brought shall
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determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Delaware Court of Chancery or
such other court shall deem proper.
Section 145(c) of the DGCL provides that to the extent that a present
or former director or officer of a corporation has been successful on the merits
or otherwise in defense of any action, suit or proceeding referred to in Section
145(a) and (b), or in defense of any claim, issue or matter therein, such person
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection therewith.
Section 145(d) of the DGCL provides that any indemnification under
Section 145(a) and (b) (unless ordered by a court) shall be made by the
corporation only as authorized in the specific case upon a determination that
indemnification of the present or former director, officer, employee or agent is
proper in the circumstances because such person has met the applicable standard
of conduct set forth in Section 145(a) and (b). Such determination shall be
made, with respect to a person who is a director or officer at the time of such
determination, (1) by a majority vote of the directors who were not parties to
such action, suit or proceeding, even though less than a quorum, or (2) by a
committee of such directors designated by majority vote of such directors, even
though less than a quorum, or (3) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion, or (4)
by the stockholders.
Section 145(e) of the DGCL provides that expenses (including attorneys'
fees) incurred by an officer or director in defending any civil, criminal,
administrative or investigative action, suit or proceeding may be paid by the
corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that such
person is not entitled to be indemnified by the corporation as authorized in
Section 145. Such expenses (including attorneys' fees) incurred by former
directors and officers or other employees and agents may be so paid upon such
terms and conditions, if any, as the corporation deems appropriate.
Section 145(f) of the DGCL provides that the indemnification and
advancement of expenses provided by, or granted pursuant to, Section 145 shall
not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any bylaw,
agreement, vote of stockholders or disinterested directors or otherwise, both as
to action in such person's official capacity and as to action in another
capacity while holding such office.
Section 145(g) of the DGCL provides that a corporation shall have the
power to purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against such person and incurred by such person
in any such capacity, or arising out of such person's status as such, whether or
not the corporation would have the power to indemnify such person against such
liability under Section 145.
Restated Certificate of Incorporation
The Restated Certificate of Incorporation of Raytheon Company provides
that no director of Raytheon Company shall be personally liable to Raytheon
Company or its stockholders for monetary damages for breach of fiduciary duty as
a director, except to the extent such exemption or limitation is prohibited
under the DGCL as it currently exists or as it may be amended in the future.
The Restated Certificate of Incorporation also provides that Raytheon
Company shall indemnify each person who was or is made a party or is threatened
to be made a party to or is involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason of the fact that
such person is or was a director or officer of Raytheon Company or is or was
serving at the request of Raytheon Company as a director or officer of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans (whether the basis of
such action, suit or proceeding is alleged action in an official capacity as a
director or officer or in any other capacity while serving as a director or
officer), to the fullest extent authorized by the DGCL as it currently exists or
as it may be amended in the future, against all expense, liability and loss
(including attorneys' fees, judgments, fines, payments in settlement and excise
taxes or penalties arising under
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the Employee Retirement Income Security Act of 1974, as in effect from time to
time) reasonably incurred or suffered by such person. Such indemnification shall
continue as to a person who ceases to be a director or officer of Raytheon
Company and shall inure to the benefit of such person's heirs, executors and
administrators. Raytheon Company shall not be required to indemnify a person in
connection with such action, suit or proceeding initiated by such person if it
was not authorized by the Board of Directors except under limited circumstances.
The Restated Certificate of Incorporation also provides that Raytheon
Company shall pay the expenses of directors and officers incurred in defending
any such action, suit or proceeding in advance of its final disposition;
provided, however, that, if and to the extent that the DGCL requires, the
payment of expenses incurred by a director or officer in advance of the final
disposition of any action, suit or proceeding shall be made only upon receipt of
an undertaking by the director or officer to repay all amounts advanced if it
should be ultimately determined that the director or officer is not entitled to
be indemnified under the Restated Certificate of Incorporation or otherwise. If
a claim for indemnification or advancement of expenses by an officer or director
under the Restated Certificate of Incorporation is not paid in full within 30
calendar days after a written claim therefor has been received by Raytheon
Company, the claimant may file suit to recover the unpaid amount of such claim
and, if successful in whole or in part, shall be entitled also to be paid the
expense of prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses incurred in
defending any action, suit or proceeding in advance of its final disposition
where the required undertaking, if any is required, has been tendered to
Raytheon Company) that the claimant has not met the standard of conduct which
makes it permissible under the DGCL for Raytheon Company to indemnify the
claimant for the amount claimed. Raytheon Company shall have the burden of
providing such defense. Neither the failure of Raytheon Company to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in circumstances because the claimant has met the
applicable standard of conduct set forth in the DGCL, nor an actual
determination by Raytheon Company that the claimant has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption
that the claimant has not met the applicable standard of conduct. The right to
indemnification and the payment of expenses conferred on any person by the
Restated Certificate of Incorporation shall not be exclusive of any other rights
which such person may have or hereafter acquire under any statute, provision of
the Restated Certificate of Incorporation or the Amended and Restated By-Laws of
Raytheon Company, agreement, vote of stockholders or disinterested directors or
otherwise.
Any repeal or modification of the provisions of the Restated
Certificate of Incorporation described herein by the stockholders of Raytheon
Company will not adversely affect any limitation on the personal liability of
directors for, or any rights of directors in respect of, any cause of action,
suit or claim accruing or arising prior to the repeal or modification.
The Restated Certificate of Incorporation also provides that Raytheon
Company may maintain insurance to protect itself and any director, officer,
employee or agent of Raytheon Company or another corporation, partnership, joint
venture, trust or other enterprise against any such expense, liability or loss,
whether or not Raytheon Company would have the power to indemnify such person
against such expense, liability or loss under the DGCL.
Item 16. Exhibits
Exhibit No. Description
----------- -----------
*1.1 Underwriting Agreement, filed as an exhibit to Raytheon
Company's Current Report on Form 8-K filed with the
Securities and Exchange Commission, (the "SEC") on
October 31, 2001, is hereby incorporated by reference.
4.1 Raytheon Company Restated Certificate of Incorporation,
restated as of April 2, 2002.
II-3
Exhibit No. Description
----------- -----------
4.2 Raytheon Company Amended and Restated By-Laws, as
amended through December 19, 2001.
4.3 Raytheon Company Certificate of Designation of
Preferences and Rights of Series B Junior Participating
Preferred Stock.
4.4 Indenture relating to Senior Debt Securities dated as of
July 3, 1995 between Raytheon Company and The Bank of
New York, as Trustee.
4.5 Indenture relating to Subordinated Debt Securities dated
as of July 3, 1995 between Raytheon Company and The Bank
of New York, as Trustee.
*4.6 Supplemental Indenture dated as of December 17, 1997
between Raytheon Company and the Bank of New York, as
Trustee, filed as an exhibit to Raytheon Company's
Annual Report on Form 10-K for the year ended December
31, 1997, is hereby incorporated by reference.
4.7 Form of Senior Debt Securities (included in Exhibit
4.4).
4.8 Form of Subordinated Debt Securities (included in
Exhibit 4.5).
*4.9 Rights Agreement dated as of December 15, 1997 between
Raytheon Company and State Street Bank and Trust
Company, as Rights Agent, filed as an exhibit to
Raytheon Company's Registration Statement on Form 8-A,
File No. 1-13699, is hereby incorporated by reference.
*4.10 Amendment to Rights Agreement dated as of May 15, 2001
between Raytheon Company and State Street Bank and Trust
Company, as Rights Agent, filed as an exhibit to
Raytheon Company's Annual Report on Form 10-K for the
year ended December 31, 2001, is hereby incorporated by
reference.
*4.11 Agreement of Substitution and Amendment of Rights
Agreement dated as of March 5, 2002 between Raytheon
Company and American Stock Transfer & Trust Company, as
Rights Agent, filed as an exhibit to Raytheon Company's
Annual Report on Form 10-K for the year ended December
31, 2001, is hereby incorporated by reference.
4.12 Third Amendment to Rights Agreement dated as of April
5, 2002 between Raytheon Company and American Stock
Transfer & Trust Company, as Rights Agent.
**4.13 Form of stock certificate representing shares of common
stock, $0.01 par value per share, of Raytheon Company.
**4.14 Form of Certificate of Designation for shares of
preferred stock, $0.01 par value per share, of Raytheon
Company.
**4.15 Form of stock certificate representing shares of
preferred stock, $0.01 par value per share, of Raytheon
Company.
**4.16 Form of Warrant Agreement, including form of Warrant.
**4.17 Form of Stock Purchase Contract.
**4.18 Form of Stock Purchase Unit.
*4.19 Declaration of Trust of RC Trust II, dated as of April
4, 2001 among Raytheon Company, The Bank of New York,
The Bank of New York (Delaware) and Richard A. Goglia,
as trustees, filed as an exhibit to Raytheon Company's
Registration Statement on Form S-3, File No. 333-58474,
is hereby incorporated by reference.
4.20 Form of Amended and Restated Declaration of Trust.
II-4
Exhibit No. Description
----------- -----------
*4.21 Certificate of Trust of RC Trust II, filed as an exhibit
to Raytheon Company's Registration Statement on Form
S-3, File No. 333-58474, is hereby incorporated by
reference.
4.22 Form of Trust Preferred Security (included in Exhibit
4.20).
4.23 Form of Raytheon Company Guarantee Agreement.
5.1 Opinion of Neal E. Minahan, Senior Vice President and
General Counsel of Raytheon Company.
5.2 Opinion of Richards, Layton & Finger, P.A. relating to
RC Trust II.
**8.1 Opinion of Sullivan & Worcester LLP regarding tax
matters.
12.1 Statement regarding Computation of Ratio of Earnings to
Combined Fixed Charges and Preferred Stock Dividends.
23.1 Consent of Neal E. Minahan (included in Exhibit 5.1).
23.2 Consent of Richards, Layton & Finger, P.A. (included in
Exhibit 5.2).
23.3 Consent of PricewaterhouseCoopers LLP.
24 Powers of Attorney (included in signature pages).
**25.1 Statement of Eligibility of Trustee on Form T-1 under
the Trust Indenture Act of 1939, as amended, of the
trustee under the Senior Indenture.
**25.2 Statement of Eligibility of Trustee on Form T-1 under
the Trust Indenture Act of 1939, as amended, of the
trustee under the Subordinated Indenture.
**25.3 Statement of Eligibility of Trustee on Form T-1 under
the Trust Indenture Act of 1939, as amended, of the
trustee under the Amended and Restated Declaration of
Trust of RC Trust II.
**25.4 Statement of Eligibility of Trustee on Form T-1 under
the Trust Indenture Act of 1939, as amended, of the
trustee under the Raytheon Company Guarantee Agreement
for RC Trust II.
* Incorporated herein by reference.
** To be filed either by amendment or as an exhibit to a report filed
under the Securities Exchange Act of 1934, as amended (the "Exchange
Act") and incorporated herein by reference in connection with the
offering of offered securities, as appropriate.
Item 17. Undertakings.
(A) The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
II-5
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in this registration statement. Notwithstanding the foregoing,
any increase or decrease in the volume of securities offered (if the
total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the SEC pursuant to Rule 424(b) under the
Securities Act if, in the aggregate, the changes in volume and price
represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table
in the effective registration statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this registration
statement or any material change to such information in this
registration statement;
provided, however, that subparagraphs (A)(1)(i) and (A)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in the periodic reports filed with or furnished to the
SEC by Raytheon Company pursuant to Section 13 or Section 15(d) of the Exchange
Act, that are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(B) The undersigned registrants hereby further undertake that, for the
purposes of determining any liability under the Securities Act, each filing of
Raytheon Company's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(C) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrants pursuant to the provisions described under Item 15 of this
registration statement, or otherwise, the registrants have been advised that in
the opinion of the SEC such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrants of expenses incurred or paid by a director, officer
or controlling person of the registrants in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrants will,
unless in the opinion of their counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
(D) The undersigned registrants hereby undertake that:
(1) For purposes of determining any liability under the
Securities Act, the information omitted from the form of prospectus filed as
part of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by Raytheon Company pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective;
(2) For purposes of determining any liability under the
Securities Act, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-6
(E) The undersigned registrants hereby undertake to file an application
for the purpose of determining the eligibility of each trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act of 1939 in accordance
with the rules and regulations prescribed by the SEC under Section 305(b)(2) of
the Trust Indenture Act of 1939.
II-7
SIGNATURES
Pursuant to the requirements of the Securities Act, Raytheon Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Lexington, Commonwealth of Massachusetts, on the 27th
day of March, 2002.
RAYTHEON COMPANY
By: /s/Neal E. Minahan
Neal E. Minahan
Senior Vice President and General Counsel
We, the undersigned officers and directors of Raytheon Company, hereby
severally constitute and appoint Franklyn A. Caine, Richard A. Goglia and Neal
E. Minahan and each of them singly, our true and lawful attorney and agent with
full power and authority to sign for us and in our names in the capacities
indicated below, the registration statement on Form S-3 of Raytheon Company and
any and all amendments or supplements, whether pre-effective or post-effective,
to said registration statement (including, without limitation, any registration
statement and post-effective amendment thereto filed pursuant to Rule 462(b)
under the Securities Act of 1933, as amended (the "Securities Act")) and
generally to do all such things in our names and on our behalf in our capacities
as officers and directors to enable Raytheon Company to comply with the
provisions of the Securities Act, and all requirements of the Securities and
Exchange Commission, hereby ratifying and confirming our signature as then may
be signed by our said attorneys or any of them, to said registration statement
and any and all amendments thereto.
Pursuant to the requirements of the Securities Act this registration
statement on Form S-3 has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ Daniel P. Burnham Chairman and Chief Executive Officer and March 27, 2002
Daniel P. Burnham Director (Principal Executive Officer)
/s/ Barbara M. Barrett Director March 27, 2002
Barbara M. Barrett
/s/ Ferdinand Colloredo Mansfield Director March 27, 2002
Ferdinand Colloredo-Mansfeld
/s/ John M. Deutch Director March 27, 2002
John M. Deutch
II-8
Signature Title Date
- --------- ----- ----
/s/ Thomas E. Everhart Director March 27, 2002
Thomas E. Everhart
/s/ John R. Galvin Director March 27, 2002
John R. Galvin
/s/ L. Dennis Kozlowski Director March 27, 2002
L. Dennis Kozlowski
_____________________________ Director
Henrique de Campos Meirelles
/s/ Frederic M. Poses Director March 27, 2002
Frederic M. Poses
/s/ Warren B. Rudman Director March 27, 2002
Warren B. Rudman
/s/ Michael E. Ruettgers Director March 27, 2002
Michael C. Ruettgers
/s/ William R. Spivey Director March 27, 2002
William R. Spivey
_____________________________ Director
Alfred M. Zeien
/s/ Franklyn A. Caine Senior Vice President and Chief Financial March 27, 2002
Franklyn A. Caine Officer (Principal Financial Officer)
/s/ Edward S. Pliner Vice President and Corporate Controller March 27, 2002
Edward S. Pliner (Principal Accounting Officer)
II-9
Pursuant to the requirements of the Securities Act, RC Trust II
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Lexington, Commonwealth of Massachusetts, on the 27th
day of March, 2002.
RC TRUST II
By: Raytheon Company, as Sponsor
By: /s/ Neal E. Minahan
Neal E. Minahan
Senior Vice President and General Counsel
II-10
EXHIBIT INDEX
Exhibit No. Description
----------- -----------
*1.1 Underwriting Agreement, filed as an exhibit to Raytheon
Company's Current Report on Form 8-K filed with the SEC
on October 31, 2001, is hereby incorporated by
reference.
4.1 Raytheon Company Restated Certificate of Incorporation,
restated as of April 2, 2002.
4.2 Raytheon Company Amended and Restated By-Laws, as
amended through December 19, 2001.
4.3 Raytheon Company Certificate of Designation of
Preferences and Rights of Series B Junior Participating
Preferred Stock.
4.4 Indenture relating to Senior Debt Securities dated as of
July 3, 1995 between Raytheon Company and The Bank of
New York, as Trustee.
4.5 Indenture relating to Subordinated Debt Securities dated
as of July 3, 1995 between Raytheon Company and The Bank
of New York, as Trustee.
*4.6 Supplemental Indenture dated as of December 17, 1997
between Raytheon Company and the Bank of New York, as
Trustee, filed as an exhibit to Raytheon Company's
Annual Report on Form 10-K for the year ended December
31, 1997, is hereby incorporated by reference.
4.7 Form of Senior Debt Securities (included in Exhibit
4.4).
4.8 Form of Subordinated Debt Securities (included in
Exhibit 4.5).
*4.9 Rights Agreement dated as of December 15, 1997 between
Raytheon Company and State Street Bank and Trust
Company, as Rights Agent, filed as an exhibit to
Raytheon Company's Registration Statement on Form 8-A,
File No. 1-13699, is hereby incorporated by reference.
*4.10 Amendment to Rights Agreement dated as of May 15, 2001
between Raytheon Company and State Street Bank and Trust
Company, as Rights Agent, filed as an exhibit to
Raytheon Company's Annual Report on Form 10-K for the
year ended December 31, 2001, is hereby incorporated by
reference.
*4.11 Agreement of Substitution and Amendment of Rights
Agreement dated as of March 5, 2002 between Raytheon
Company and American Stock Transfer & Trust Company, as
Rights Agent, filed as an exhibit to Raytheon Company's
Annual Report on Form 10-K for the year ended December
31, 2001, is hereby incorporated by reference.
4.12 Third Amendment to Rights Agreement dated as of April,
5, 2002 between Raytheon Company and American Stock
Transfer & Trust Company, as Rights Agent.
**4.13 Form of stock certificate representing shares of common
stock, $0.01 par value per share, of Raytheon Company.
**4.14 Form of Certificate of Designation for shares of
preferred stock, $0.01 par value per share, of Raytheon
Company.
**4.15 Form of stock certificate representing shares of
preferred stock, $0.01 par value per share, of Raytheon
Company.
**4.16 Form of Warrant Agreement, including form of Warrant.
**4.17 Form of Stock Purchase Contract.
Exhibit No. Description
----------- -----------
**4.18 Form of Stock Purchase Unit.
*4.19 Declaration of Trust of RC Trust II, dated as of April
4, 2001 among Raytheon Company, The Bank of New York,
The Bank of New York (Delaware) and Richard A. Goglia,
as trustees, filed as an exhibit to Raytheon Company's
Registration Statement on Form S-3, File No. 333-58474,
is hereby incorporated by reference.
4.20 Form of Amended and Restated Declaration of Trust.
*4.21 Certificate of Trust of RC Trust II, filed as an exhibit
to Raytheon Company's Registration Statement on Form
S-3, File No. 333-58474, is hereby incorporated by
reference.
4.22 Form of Trust Preferred Security (included in Exhibit
4.20).
4.23 Form of Raytheon Company Guarantee Agreement.
5.1 Opinion of Neal E. Minahan, Senior Vice President and
General Counsel of Raytheon Company.
5.2 Opinion of Richards, Layton & Finger, P.A. relating to
RC Trust II.
**8.1 Opinion of Sullivan & Worcester LLP regarding tax
matters.
12.1 Statement regarding Computation of Ratio of Earnings to
Combined Fixed Charges and Preferred Stock Dividends.
23.1 Consent of Neal E. Minahan (included in Exhibit 5.1).
23.2 Consent of Richards, Layton & Finger, P.A. (included in
Exhibit 5.2).
23.3 Consent of PricewaterhouseCoopers LLP.
24 Powers of Attorney (included in signature pages).
**25.1 Statement of Eligibility of Trustee on Form T-1 under
the Trust Indenture Act of 1939, as amended, of the
trustee under the Senior Indenture.
**25.2 Statement of Eligibility of Trustee on Form T-1 under
the Trust Indenture Act of 1939, as amended, of the
trustee under the Subordinated Indenture.
**25.3 Statement of Eligibility of Trustee on Form T-1 under
the Trust Indenture Act of 1939, as amended, of the
trustee under the Amended and Restated Declaration of
Trust of RC Trust II.
**25.4 Statement of Eligibility of Trustee on Form T-1 under
the Trust Indenture Act of 1939, as amended, of the
trustee under the Raytheon Company Guarantee Agreement
for RC Trust II.
* Incorporated herein by reference.
** To be filed either by amendment or as an exhibit to a report filed
under the Exchange Act and incorporated herein by reference in
connection with the offering of offered securities, as appropriate.
Exhibit 4.1
RESTATED CERTIFICATE OF INCORPORATION
OF
RAYTHEON COMPANY
Raytheon Company (the "Corporation"), a corporation organized and
existing under the General Corporation Law of the State of Delaware, does hereby
state as follows:
1. The present name of the Corporation is Raytheon Company. The
Corporation was originally incorporated under the name "Hughes Aircraft Company"
and its original Certificate of Incorporation was filed with the Secretary of
State on December 17, 1953.
2. This Restated Certificate of Incorporation was duly adopted by the
Board of Directors of the Corporation in accordance with the provisions of
Section 245 of the Delaware General Corporation Law.
3. This Restated Certificate of Incorporation only restates and
integrates the provisions of the Corporation's Certificate of Incorporation and
does not further amend the provisions of the Corporation's Certificate of
Incorporation as heretofore amended or supplemented, and there is no discrepancy
between those provisions and the provisions of this Restated Certificate.
Article I.
Name
The name of the corporation (which is hereinafter referred to
as the "Corporation") is: "Raytheon Company"
Article II.
Registered Agent
The address of the Corporation's registered office in the State
of Delaware is The Corporation Trust Center, 1209 Orange Street in the City of
Wilmington, County of New Castle. The name of the Corporation's registered agent
at such address is The Corporation Trust Company.
Article III.
Purpose
The purpose of the Corporation shall be to engage in any lawful
act or activity for which corporations may be organized and incorporated under
the General Corporation Law of the State of Delaware (the "DGCL").
Article IV.
Capital Stock
Section 1. The Corporation is authorized to issue 1,650,000,000
shares of capital stock of which (a) 1,450,000,000 shares shall be shares of
Common Stock $.01 par value per share ("Common Stock"), and (b) 200,000,000
shares shall be shares of Preferred Stock $.0l par value per share ("Preferred
Stock").
Section 2. Common Stock. Except as provided herein, as
otherwise provided by law or by the resolution or resolutions adopted by the
Board designating the rights, powers and preferences of any series of Preferred
Stock, the Common Stock shall have the exclusive right to vote for the election
of directors and for all other purposes, in each case acting by such vote as
required under applicable law (or by such greater vote than would be required
under applicable law as may be set forth herein or in the By-laws of the
Corporation). Each share of Common Stock shall have one vote, and the Common
Stock shall vote together as a single class on all matters to be voted on by the
Corporation's stockholders.
Subject to the rights of the holders of any class or series of
outstanding Preferred Stock and subject to any other provisions hereof and
applicable law, holders of Common Stock will be entitled to dividends and such
other distributions in cash, securities or property of the Corporation as may be
declared thereon by the Corporation's Board of Directors, out of funds legally
available therefor, whether payable in cash, property or securities of the
Corporation.
Section 3. Preferred Stock. The Preferred Stock may be issued
from time to time in one or more series. The Board is hereby authorized to
provide by resolution from time to time for the issuance of shares of Preferred
Stock in series and, by filing a certificate pursuant to the DGCL (hereinafter
referred to as a "Preferred Stock Designation"), to establish from time to time
the number of shares to be included in each such series, and to fix the
designation, powers, privileges, preferences and rights of the shares of each
such series and the qualifications, limitations and restrictions thereof. The
authority of the Board with respect to each series shall include, but not be
limited to, determination of the following:
(a) the designation of the series, which may be by
distinguishing number, letter or title;
(b) the number of shares of the series, which number the Board
may thereafter (except where otherwise provided in the Preferred Stock
Designation) increase or decrease (but not below the number of shares thereof
then outstanding);
(c) whether dividends, if any, shall be cumulative or
noncumulative, and, in the case of shares of any series having cumulative
dividend rights, the date or dates or method of determining the date or dates
from which dividends on the shares of such series shall be cumulative;
(d) the rate of any dividends (or method of determining such
dividends) payable to the holders of the shares of such series, any conditions
upon which such dividends shall be paid and the date or dates or the method of
determining the date or dates upon which such dividends shall be payable;
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(e) the price or prices (or method of determining such price or
prices) at which, the form of payment of such price or prices (which may be
cash, property or rights, including securities of the same or another
corporation or other entity) for which, the period or periods within which and
the terms and conditions upon which the shares of such series may be redeemed,
in whole or in part, at the option of the Corporation or at the option of the
holder or holders thereof or upon the happening of a specified event or events,
if any;
(f) the obligation, if any, of the Corporation to purchase or
redeem shares of such series pursuant to a sinking fund or otherwise and the
price or prices at which, the form of payment of such price or prices (which may
be cash, property or rights, including securities of the same or another
corporation or other entity) for which, the period or periods within which and
the terms and conditions upon which the shares of such series shall be redeemed
or purchased, in whole or in part, pursuant to such obligation;
(g) the amount payable out of the assets of the Corporation to
the holders of shares of the series in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the Corporation;
(h) provisions, if any, for the conversion or exchange of the
shares of such series, at any time or times at the option of the holder or
holders thereof or at the option of the Corporation or upon the happening of a
specified event or events, into shares of any other class or classes or any
other series of the same or any other class or classes of stock, or any other
security, of the Corporation, or any other corporation or other entity, and the
price or prices or rate or rates of conversion or exchange and any adjustments
applicable thereto, and all other terms and conditions upon which such
conversion or exchange may be made;
(i) restrictions on the issuance of shares of the same series
or of any other class or series, if any; and
(j) the voting rights, if any, of the holders of shares of the
series.
Section 4. Series A Junior Participating Preferred Stock. The
Board hereby authorizes the issuance of the Series A Junior Participating
Preferred Stock as follows:
(a) Designation and Amount. The shares of such series shall be
designated as "Series A Junior Participating Preferred Stock" (the "Series A
Preferred Stock") and the number of shares constituting the Series A Preferred
Stock shall be 4,000,000. Such number of shares may be increased or decreased by
resolution of the Board of Directors; provided, that no decrease shall reduce
the number of shares of Series A Preferred Stock to a number less than the
number of shares then outstanding plus the number of shares reserved for
issuance upon the exercise of outstanding options, rights or warrants or upon
the conversion of any outstanding securities issued by the Corporation
convertible into Series A Preferred Stock.
(b) Dividends and Distributions.
(i) Subject to the rights of the holders of any shares of
any series of Preferred Stock (or any similar stock) ranking prior and superior
to the Series A Preferred Stock with respect to dividends, the holders of shares
of Series A Preferred Stock, in preference to the
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holders of shares of Class A Common Stock and Class B Common Stock of the
Corporation, and of any other junior stock shall be entitled to receive, when,
as and if declared by the Board of Directors out of funds legally available for
the purpose, quarterly dividends payable in cash on the first day of March,
June, September and December in each year (each such date being referred to
herein as a "Quarterly Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance of a share or fraction
of a share of Series A Preferred Stock in an amount per share (rounded to the
nearest cent) equal to the greater of (A) $1 or (B) subject to the provision for
adjustment hereinafter set forth, 100 times the aggregate per share amount of
all cash dividends, and 100 times the aggregate per share amount (payable in
kind) of all non-cash dividends or other distributions, other than a dividend
payable in shares of Common Stock or a subdivision of the outstanding shares of
Common Stock (by reclassification or otherwise), declared on the Common Stock
since the immediately preceding Quarterly Dividend Payment Date or, with respect
to the first Quarterly Dividend Payment Date, since the first issuance of any
share or fraction of a share of Series A Preferred Stock. In the event the
Corporation shall at any time declare or pay any dividend on the Common Stock
payable in shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in each such case the
amount to which holders of shares of Series A Preferred Stock were entitled
immediately prior to such event under clause (B) of the preceding sentence shall
be adjusted by multiplying such amount by a fraction, the numerator of which is
the number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(ii) The Corporation shall declare a dividend or
distribution on the Series A Preferred Stock as provided in paragraph (i) of
this subsection immediately after it declares a dividend or distribution on the
Common Stock (other than a dividend payable in shares of Common Stock); provided
that, in the event no dividend or distribution shall have been declared on the
Common Stock during the period between any Quarterly Dividend Payment Date and
the next subsequent Quarterly Dividend Payment Date, a dividend of $1 per share
on the Series A Preferred Stock shall nevertheless be payable on such subsequent
Quarterly Dividend Payment Date.
(iii) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Preferred Stock from the Quarterly Dividend
Payment Date next preceding the date of issue of such shares, unless the date of
issue of such shares is prior to the record date for the first Quarterly
Dividend Payment Date, in which case dividends on such shares shall begin to
accrue from the date of issue of such shares, or unless the date of issue is a
Quarterly Dividend Payment Date or is a date after the record date for the
determination of holders of shares of Series A Preferred Stock entitled to
receive a quarterly dividend and before such Quarterly Dividend Payment Date, in
either of which events such dividends shall begin to accrue and be cumulative
from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall
not bear interest. Dividends paid on the shares of Series A Preferred Stock in
an amount less than the total amount of such dividends at the time accrued and
payable on such shares shall be allocated pro rata on a share-by-share basis
among all such shares at the time outstanding. The Board of Directors may fix a
record date for the determination of holders of shares of Series A Preferred
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Stock entitled to receive payment of a dividend or distribution declared
thereon, which record date shall be not more than 60 days prior to the date
fixed for the payment thereof.
(c) Voting Rights. The holders of shares of Series A Preferred
Stock shall have the following voting rights:
(i) Subject to the provision for adjustment hereinafter
set forth, each share of Series A Preferred Stock shall entitle the holder
thereof to 100 votes on all matters submitted to a vote of the stockholders of
the Corporation. In the event the Corporation shall at any time declare or pay
any dividend on the Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise than by payment of a dividend in shares
of Common Stock) into a greater or lesser number of shares of Common Stock, then
in each such case the number of votes per share to which holders of shares of
Series A Preferred Stock were entitled immediately prior to such event shall be
adjusted by multiplying such number by a fraction, the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(ii) Except as otherwise provided herein, in any other
Certificate of Designations creating a series of Preferred Stock or any similar
stock or by law, the holders of shares of Series A Preferred Stock and the
holders of shares of Class B Common Stock shall vote together as one class on
all matters submitted to a vote of stockholders of the Corporation.
(iii) Except as set forth herein, or as otherwise provided
by law, holders of Series A Preferred Stock shall have no special voting rights
and their consent shall not be required (except to the extent they are entitled
to vote with holders of Common Stock as set forth herein) for taking any
corporate action.
(d) Certain Restrictions.
(i) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Preferred Stock as provided in Section
4(b) are in arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series A Preferred Stock
outstanding shall have been paid in full, the Corporation shall not:
(A) declare or pay dividends, or make any other
distributions, on any shares of stock ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to the Series A Preferred Stock;
(B) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the Series A
Preferred Stock except dividends paid ratably on the Series A Preferred Stock
and all such parity stock on which dividends are payable or in arrears in
proportion to the total amounts to which the holders of all such shares are then
entitled;
(C) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to
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the Series A Preferred Stock provided that the Corporation may at any time
redeem, purchase or otherwise acquire shares of any such junior stock in
exchange for shares of any stock of the Corporation ranking junior (either as to
dividends or upon dissolution, liquidation or winding up) to the Series A
Preferred Stock; or
(D) redeem or purchase or otherwise acquire for
consideration any shares of Series A Preferred Stock or any shares of stock
ranking on a parity with the Series A Preferred Stock except in accordance with
a purchase offer made in writing or by publication (as determined by the Board
of Directors) to all holders of such shares upon such terms as the Board of
Directors, after consideration of the respective annual dividend rates and other
relative rights and preferences of the respective series and classes, shall
determine in good faith will result in fair and equitable treatment among the
respective series or classes.
(ii) The Corporation shall not permit any subsidiary of
the Corporation to purchase or otherwise acquire for consideration any shares of
stock of the Corporation unless the Corporation could, under paragraph (i) of
this Section 4(d), purchase or otherwise acquire such shares at such time and in
such manner.
(e) Reacquired Shares. Any shares of Series A Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and canceled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but unissued shares of
Preferred Stock and may be reissued as part of a new series of Preferred Stock
subject to the conditions and restrictions on issuance set forth herein, in the
Certificate of Incorporation, or in any other Certificate of Designations
creating a series of Preferred Stock or any similar stock or as otherwise
required by law.
(f) Liquidation, Dissolution or Winding Up. Upon any
liquidation, dissolution or winding up of the Corporation, no distribution shall
be made (1) to the holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series A
Preferred Stock unless, prior thereto, the holders of shares of Series A
Preferred Stock shall have received $100 per share, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not declared,
to the date of such payment, provided that the holders of shares of Series A
Preferred Stock shall be entitled to receive an aggregate amount per share,
subject to the provision for adjustment hereinafter set forth, equal to 100
times the aggregate amount to be distributed per share to holders of shares of
Common Stock or (2) to the holders of shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or winding up) with the
Series A Preferred Stock except distributions made ratably on the Series A
Preferred Stock and all such parity stock in proportion to the total amounts to
which the holders of all such shares are entitled upon such liquidation,
dissolution or winding up. In the event the Corporation shall at any time
declare or pay any dividend on the Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock then in each such case the aggregate amount to which
holders of shares of Series A Preferred Stock were entitled immediately prior to
such event under the proviso in clause (1) of the preceding sentence shall be
adjusted by multiplying such amount by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately after such event
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and the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(g) Consolidation, Merger, etc. In case the Corporation shall
enter into any consolidation, merger, other than the merger of Raytheon Company
with and into the Corporation, combination or other transaction in which the
shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case each share of
Series A Preferred Stock shall at the same time be similarly exchanged or
changed into an amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 100 times the aggregate amount of stock
securities, cash and/or any other property (payable in kind), as the case may
be, into which or for which each share of Common Stock is changed or exchanged.
In the event the Corporation shall at any time declare or pay any dividend on
the Common Stock payable in shares of Common Stock or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock then in each
such case the amount set forth in the preceding sentence with respect to the
exchange or change of shares of Series A Preferred Stock shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(h) No Redemption. The shares of Series A Preferred Stock shall
not be redeemable.
(i) Rank. The Series A Preferred Stock shall rank, with respect
to the payment of dividends and the distribution of assets, junior to all series
of any other class of the Corporation's Preferred Stock.
(j) Amendment. The Certificate of Incorporation of the
Corporation shall not be amended in any manner which would materially alter or
change the powers, preferences or special rights of the Series A Preferred Stock
so as to affect them adversely without the affirmative vote of the holders of at
least two-thirds of the outstanding shares of Series A Preferred Stock voting
together as a single class.
Section 5. General. The Common Stock shall be subject to the
express terms of the Preferred Stock and any series thereof. Except as otherwise
provided by law or by the resolution or resolutions adopted by the Board
designating the rights, powers and preferences of any series of Preferred Stock
the Common Stock shall have the exclusive right to vote for the election of
directors and for all other purposes, and holders of Preferred Stock shall not
be entitled to receive notice of any meeting of stockholders at which they are
not entitled to vote. The Corporation shall be entitled to treat the person in
whose name any share of its stock is registered as the owner thereof for all
purposes and shall not be bound to recognize any equitable or other claim to, or
interest in, such share on the part of any other person, whether or not the
Corporation shall have notice thereof, except as expressly provided by
applicable law.
Article V.
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Stockholder Action
Any action required or permitted to be taken by the
stockholders of the Corporation must be effected at a duly called annual or
special meeting of such holders and may not be effected by any consent in
writing by such holders. Except as otherwise required by law and subject to the
rights of the holders of any class or series of stock having a preference over
the Common Stock as to dividends or upon liquidation, special meetings of
stockholders of the Corporation for any purpose or purposes may be called only
by the Board pursuant to a resolution stating the purpose or purposes thereof
approved by a majority of the total number of directors which the Corporation
would have if there were no vacancies (the "Whole Board") or by the Chairman of
the Board and any power of stockholders to call a special meeting is
specifically denied. No business other than that stated in the notice shall be
transacted at any special meeting.
Article VI.
Board of Directors
Section 1. Number, election and terms. The number of directors
of the Corporation shall be, except as otherwise fixed by or pursuant to the
provisions of Article IV relating to the rights of the holders of any class or
series of stock having a preference over the Common Stock as to dividends or
upon liquidation to elect additional directors under specified circumstances,
fixed from time to time exclusively pursuant to a resolution adopted by a
majority of the Whole Board (but shall not be less than three). The directors,
other than those who may be elected by the holders of any class or series of
stock having a preference over the Common Stock as to dividends or upon
liquidation, shall be classified, with respect to the time for which they
severally hold office, into three classes, as nearly equal in number as
possible, one class to be originally elected for a term expiring at the annual
meeting of stockholders to be held in 1998, another class to be originally
elected for a term expiring at the annual meeting of stockholders to be held in
1999, and another class to be originally elected for a term expiring at the
annual meeting of stockholders to be held in 2000, with each director to hold
office until such person's successor is duly elected and qualified. At each
succeeding annual meeting of stockholders, directors elected to succeed those
directors whose terms then expire shall be elected for a term of office to
expire at the third succeeding annual meeting of stockholders after their
election, with each director to hold office until such person's successor shall
have been duly elected and qualified.
Section 2. Stockholder nomination of director candidates;
Stockholder Proposal of Business. Advance notice of stockholder nominations for
the election of directors and of the proposal of business by stockholders shall
be given in the manner provided in the By-Laws of the Corporation, as amended
and in effect from time to time.
Section 3. Vacancies and newly created directorships. Except as
otherwise provided for or fixed by or pursuant to the provisions of Article IV
relating to the rights of the holders of any class or series of stock having a
preference over the Common Stock as to dividends or upon liquidation to elect
directors under specified circumstances, (i) vacancies on the Board resulting
from death, resignation, disqualification, removal or other cause shall be
filled by the affirmative vote of a majority of the remaining directors then in
office, even though
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less than a quorum of the Board, and not by the stockholders and (ii) newly
created directorships resulting from any increase in the number of directors
after the adoption of a resolution by a majority of the Whole Board in
accordance with Section 1 of this Article VI shall be filled by the affirmative
vote of the holders of Common Stock, voting in accordance with the provisions of
Section 2 of Article IV.
Any director appointed in accordance with clause (i) of the
preceding sentence shall hold office until the next annual or special meeting of
stockholders and until such director's successor shall have been duly elected
and qualified. Any director elected in accordance with clause (ii) of the
preceding sentence shall hold office for the remainder of the full term of the
class of director in which the new directorship was created and until such
director's successor shall have been duly elected and qualified. No decrease in
the number of directors constituting the Board shall shorten the term of any
incumbent director.
Section 4. Removal. Subject to the rights of any class or
series of stock having a preference over the Common Stock as to dividends or
upon liquidation to elect directors under specified circumstances, any director
may be removed from office only for cause by the affirmative vote of the holders
of the shares of Common Stock, voting in accordance with the provisions of
Section 2 of Article IV.
Article VII.
By-Laws
The By-Laws may be altered or repealed and new By-Laws may be
adopted (1) at any annual or special meeting of stockholders, by the affirmative
vote of the holders of the shares of Common Stock voting in accordance with
Section 2 of Article IV; provided, however, that in the case of any such
stockholder action at a special meeting of stockholders, notice of the proposed
alteration, repeal or adoption of the new By-Law or By-Laws must be contained in
the notice of such special meeting, or (2) by the affirmative vote of a majority
of the Whole Board.
Article VIII.
Amendment of Certificate of Incorporation
The Corporation reserves the right at any time from time to
time to amend, alter, change or repeal any provision contained in this
Certificate of Incorporation, and any other provisions authorized by the laws of
the State of Delaware at the time in force may be added or inserted, in the
manner now or hereafter prescribed by law; and, except as set forth in Article X
all rights, preferences and privileges of whatsoever nature conferred upon
stockholders, directors or any other persons whomsoever by and pursuant to this
Certificate of Incorporation in its present form or as hereafter amended are
granted subject to the right reserved in this Article.
Article IX.
Corporate Action
In addition to any other considerations which the Board may
lawfully take into account, in determining whether to take or to refrain from
taking corporate action on any matter, including making or declining to make any
recommendation to the stockholders of the Corporation, the Board may in its
discretion consider the long-term as well as short-term best
-9-
interests of the Corporation (including the possibility that these interests may
be best served by the continued independence of the Corporation), taking into
account, and weighing as the directors deem appropriate, the effects of such
action on employees, suppliers and customers of the Corporation and its
subsidiaries and the effect upon communities in which offices or other
facilities of the Corporation are located, and any other factors the directors
consider pertinent.
Article X.
Section 1. Limited Liability; Indemnification
Section 1. Limited Liability of Directors. A director of the
Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except to the extent such exemption from liability or limitation thereof is not
permitted under the DGCL as the same exists or may hereafter be amended. Neither
the amendment nor repeal of Section 1 of this Article X shall eliminate or
reduce the effect of Section 1 of this Article X in respect of any matter
occurring, or any cause of action, suit or claim that, but for Section l of this
Article X would accrue or arise, prior to such amendment or repeal.
Section 2. Indemnification and Insurance.
(a) Right to Indemnification. Each person who was or is made a
party or is threatened to be made a party to or is involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that such person, or a
person of whom such person is the legal representative, is or was a director or
officer of the Corporation or is or was serving at the request of the
Corporation as a director or officer of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to
employee benefit plans, whether the basis of such proceeding is alleged action
in an official capacity as a director or officer or in any other capacity while
serving as a director or officer shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the DGCL, as the same exists or
may hereafter be amended (but, in the case of any such amendment, to the fullest
extent permitted by law, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than said law permitted
the Corporation to provide prior to such amendment), against all expense,
liability and loss (including attorneys' fees, judgment, fines, amounts paid or
to be paid in settlement, and excise taxes or penalties arising under the
Employee Retirement Income Security Act of 1974, as in effect from time to time)
reasonably incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a director or
officer, and shall inure to the benefit of such person's heirs, executors and
administrators; provided, however, that, except as provided in paragraph (b) of
this Section, the Corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person only if such proceeding (or part thereof) was authorized by the
Board. The right to indemnification conferred in this Section shall be a
contract right and shall include the right to have the Corporation pay the
expenses incurred in defending any such proceeding in advance of its final
disposition; any advance payments to be paid by the Corporation within 20
calendar days after the receipt by the Corporation of a statement or
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statements from the claimant requesting such advance or advances from time to
time; provided, however, that, if and to the extent the DGCL requires, the
payment of such expenses incurred by a director or officer in such person's
capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such person while a director or officer,
including, without limitation, service to an employee benefit plan) in advance
of the final disposition of a proceeding, shall be made only upon delivery to
the Corporation of an undertaking, by or on behalf of such director or officer,
to repay all amounts so advanced if it shall ultimately be determined that such
director or officer is not entitled to be indemnified under this Section or
otherwise. The Corporation may, to the extent authorized from time to time by
the Board, grant rights to indemnification, and rights to have the Corporation
pay the expenses incurred in defending any proceeding in advance of its final
disposition, to any employee or agent of the Corporation to the fullest extent
of the provisions of this Article with respect to the indemnification and
advancement of expenses of directors and officers of the Corporation.
(b) Right of Claimant to Bring Suit. If a claim under paragraph
(a) of this Section is not paid in full by the Corporation within 30 calendar
days after a written claim has been received by the Corporation, the claimant
may at any time thereafter bring suit against the Corporation to recover the
unpaid amount of the claim and, if successful in whole or in part, the claimant
shall be entitled to be paid also the expense of prosecuting such claim. It
shall be a defense to any such action (other than an action brought to enforce a
claim for expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standard of
conduct which makes it permissible under the DGCL for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because the claimant has met the applicable standard of conduct set forth in the
DGCL, nor an actual determination by the Corporation (including its Board,
independent legal counsel, or its stockholders) that the claimant has not met
such applicable standard of conduct, shall be a defense to the action or create
a presumption that the claimant has not met the applicable standard of conduct.
(c) Non-Exclusivity of Rights. The right to indemnification and
the payment of expenses incurred in defending a proceeding in advance of its
final disposition conferred in this Section shall not be exclusive of any other
right which any person (including, without limitation, any person other than an
officer or director of the Corporation) may have or hereafter acquire under any
statute, provision of the Certificate of Incorporation, By-Laws, agreement, vote
of stockholders or disinterested directors or otherwise. No repeal or
modification of this Article shall in any way diminish or adversely affect the
rights of any director or officer of the Corporation hereunder in respect of any
occurrence or matter arising prior to any such repeal or modification.
(d) Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any such expense, liability or loss,
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whether or not the Corporation would have the power to indemnify such person
against such expense, liability or loss under the DGCL.
(e) Severability. If any provision or provisions of this
Article X shall be held to be invalid, illegal or unenforceable for any reason
whatsoever: (1) the validity, legality and enforceability of the remaining
provisions of this Article X (including, without limitation, each portion of any
paragraph of this Article X containing any such provision held to be invalid,
illegal or unenforceable, that is not itself held to be invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby, and (2) to
the fullest extent possible, the provisions of this Article X (including,
without limitation, each such portion of any paragraph of this Article X
containing any such provision held to be invalid, illegal or unenforceable)
shall be construed so as to give effect to the intent manifested by the
provision held invalid, illegal or unenforceable.
IN WITNESS WHEREOF, the Corporation has caused this Restated
Certificate of Incorporation to be duly executed this 2nd day of April, 2002.
RAYTHEON COMPANY
By: /s/ John W. Kapples
John W. Kapples
Vice President and Secretary
Exhibit 4.2
AMENDED AND RESTATED
BY-LAWS
OF
RAYTHEON COMPANY
(As of December 19, 2001)
Incorporated under the Laws of the State of
Delaware
ARTICLE I
Offices and Records
Section 1.1. Delaware Office. The principal office of the
Corporation in the State of Delaware shall be located in the City of Wilmington,
County of New Castle, and the name and address of its registered agent is The
Corporation Trust Company, 1209 Orange Street in the City of Wilmington, County
of New Castle.
Section 1.2. Other Offices. The Corporation may have such
other offices, either within or outside the State of Delaware, as the Board of
Directors of the Corporation (the "Board") may designate or as the business of
the Corporation may from time to time require.
Section 1.3. Books and Records. The books and records of the
Corporation may be kept outside the State of Delaware at such place or places as
may from time to time be designated by the Board.
ARTICLE II
Stockholders
Section 2.1. Annual Meeting. The annual meeting of the
stockholders of the Corporation shall be held on such date and at such time as
may be fixed by resolution of the Board.
Section 2.2. Special Meeting. Except as otherwise required by
law and subject to the rights of the holders of any class or series of stock
having a preference over the Common Stock as to dividends or upon liquidation,
special meetings of stockholders of the Corporation for any purpose or purposes
may be called only by (i) the Board pursuant to a resolution stating the purpose
or purposes thereof approved by a majority of the total number of directors
which the Corporation would have if there were no vacancies (the "Whole Board")
or (ii) by the Chairman of the Board. No business other than that stated in the
notice shall be transacted at any special meeting.
Section 2.3. Place of Meeting. The Board or the Chairman of
the Board, as the case may be, may designate the place of meeting for any annual
meeting or for any special meeting of the stockholders. If no designation is so
made, the place of meeting shall be the principal office of the Corporation.
Section 2.4. Notice of Meeting. Written or printed notice
stating (i) the place, day and hour of the meeting, and (ii) the purpose or
purposes for which the meeting is called, shall be delivered by the Corporation
not less than 10 calendar days nor more than 60 calendar days before the date of
the meeting, either personally or by mail, to each stockholder of record
entitled to vote at such meeting. If mailed, such notice shall be deemed to be
delivered when deposited in the United States mail with postage thereon prepaid,
addressed to the stockholder at such person's address as it appears on the stock
transfer books of the Corporation. Such further notice shall be given as may be
required by law. Only such business shall be conducted at a special meeting of
stockholders as shall have been brought before the meeting pursuant to the
Corporation's notice of meeting. Meetings may be held without notice if all
stockholders entitled to vote are present, or if notice is waived by those not
present in accordance with Section 6.4 of these By-Laws. Any previously
scheduled meeting of the stockholders may be postponed, and any special meeting
of the stockholders may be canceled, by resolution of the Board upon public
notice given prior to the date previously scheduled for such meeting of
stockholders.
Section 2.5. Quorum and Adjournment; Voting. Except as
otherwise provided by law or by the Restated Certificate of Incorporation of the
Corporation (as amended and in effect from time to time, the "Certificate of
Incorporation"), the holders of a majority of the voting power of all
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors (the "Voting Stock"), represented in
person or by proxy, shall constitute a quorum at a meeting of stockholders,
except that when specified business is to be voted on by a class or series of
stock voting as a class, the holders of a majority of the shares of each such
class or series shall constitute a quorum of such class or series for the
transaction of such business and a quorum of each such class or series entitled
to vote thereon shall be required to act. To the extent that a quorum is present
with respect to consideration of and action on a particular matter or matters
but a quorum is not present as to another matter or matters, consideration of
and action on the matter or matters for which a quorum is present may occur,
and, after such consideration and action, the meeting may be adjourned for
purposes of the consideration of and action on the matter or matters for which a
quorum is not present. The Chairman of the meeting may adjourn the meeting from
time to time, whether or not there is such a quorum. No notice of the time and
place of adjourned meetings need be given except as required by law. The
stockholders present at a duly called meeting at which a quorum is present may
continue to transact business until adjournment, notwithstanding the withdrawal
of enough stockholders to leave less than a quorum.
Section 2.6. Proxies. At all meetings of stockholders, a
stockholder may vote by proxy executed in writing (or in such manner prescribed
by the General Corporation Law of the State of Delaware (the "DGCL")) by the
stockholder, or by such person's duly authorized attorney in fact.
Section 2.7. Notice of Stockholder Business and Nominations.
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(A) Annual Meetings of Stockholders.
(1) Nominations of persons for election to the Board and the
proposal of business to be considered by the stockholders may be made at an
annual meeting of stockholders (a) pursuant to the Corporation's notice of
meeting pursuant to Section 2.4 of these By-Laws, (b) by or at the direction of
the Board, or (c) by any stockholder of the Corporation who was a stockholder of
record at the time of giving of notice provided for in this By-Law, who is
entitled to vote at the meeting and who complies with the notice procedures set
forth in this By-Law.
(2) For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to clause (c) of paragraph
(A)(l) of this By-Law, the stockholder must have given timely notice thereof in
writing to the Secretary of the Corporation and such other business must
otherwise be a proper matter for stockholder action. To be timely, a
stockholder's notice shall be delivered to the Secretary at the principal
executive offices of the Corporation not later than the close of business on the
90th calendar day nor earlier than the close of business on the 120th calendar
day prior to the first anniversary of the preceding year's annual meeting;
provided, however, that in the event that the date of the annual meeting is more
than 30 calendar days before or more than 60 calendar days after such
anniversary date, notice by the stockholder to be timely must be so delivered
not earlier than the close of business on the 120th calendar day prior to such
annual meeting and not later than the close of business on the later of the 90th
calendar day prior to such annual meeting or the 10th calendar day following the
calendar day on which public announcement of the date of such meeting is first
made by the Corporation. In no event shall the public announcement of an
adjournment of an annual meeting commence a new time period for the giving of a
stockholder's notice as described above. Such stockholder's notice shall set
forth (a) as to each person whom the stockholder proposes to nominate for
election or re-election as a director all information relating to such person
that is required to be disclosed in solicitations of proxies for election of
directors in an election contest, or is otherwise required, in each case
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and Rule 14a-11 thereunder (including such person's
written consent to being named in the proxy statement as a nominee and to
serving as a director if elected); (b) as to any other business that the
stockholder proposes to bring before the meeting, a brief description of the
business desired to be brought before the meeting, the reasons for conducting
such business at the meeting and any financial interest in such business of such
stockholder and the beneficial owner, if any, on whose behalf the proposal is
made; and (c) as to the stockholder giving the notice and the beneficial owner,
if any, on whose behalf the nomination or proposal is made (i) the name and
address of such stockholder, as they appear on the Corporation's books, and of
such beneficial owner and (ii) the class and number of shares of the Corporation
which are owned beneficially and of record by such stockholder and such
beneficial owner.
(3) Notwithstanding anything in the second sentence of
paragraph (A)(2) of this By-Law to the contrary, in the event that the number of
directors to be elected to the Board is increased and there is no public
announcement by the Corporation naming all of the nominees for director or
specifying the size of the increased Board at least 100 calendar days prior to
the first anniversary of the preceding year's annual meeting, a stockholder's
notice required by this By-Law shall also be considered timely, but only with
respect to nominees for any new positions created by such increase, if it shall
be delivered to the Secretary at the principal executive offices
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of the Corporation not later than the close of business on the 10th calendar day
following the day on which such public announcement is first made by the
Corporation.
(B) Special Meetings of Stockholders.
Only such business shall be conducted at a special meeting of
stockholders as shall have been brought before the meeting pursuant to the
Corporation's notice of meeting under Section 2.4 of these By-Laws. Nominations
of persons for election to the Board may be made at a special meeting of
stockholders at which directors are to be elected pursuant to the Corporation's
notice of meeting (a) by or at the direction of the Board, or (b) provided that
the Board has determined that directors shall be elected at such meeting, by any
stockholder of the Corporation who is a stockholder of record at the time of
giving of notice provided for in this By-Law, who shall be entitled to vote at
the meeting and who complies with the notice procedures set forth in this
By-Law. In the event the Corporation calls a special meeting of stockholders for
the purpose of electing one or more directors to the Board, any stockholder may
nominate a person or persons (as the case may be), for election to such
position(s) as specified in the Corporation's notice of meeting pursuant to such
clause (b), if the stockholder's notice required by paragraph (A)(2) of this
By-Law shall be delivered to the Secretary at the principal executive offices of
the Corporation not earlier than the close of business on the 120th calendar day
prior to such special meeting and not later than the close of business on the
later of the 90th calendar day prior to such special meeting or the 10th
calendar day following the day on which public announcement is first made of the
date of the special meeting and of the nominees proposed by the Board to be
elected at such meeting. In no event shall the public announcement of an
adjournment of a special meeting commence a new time period for the giving of a
stockholder's notice as described above.
(C) General.
(1) Only such persons who are nominated in accordance with the
procedures set forth in this By-Law shall be eligible to serve as directors and
only such business shall be conducted at a meeting of stockholders as shall have
been brought before the meeting in accordance with the procedures set forth in
this By-Law. Except as otherwise provided by law, the Certificate of
Incorporation or these By-Laws, the Chairman of the meeting shall have the power
and duty to determine whether a nomination or any business proposed to be
brought before the meeting was made or proposed, as the case may be, in
accordance with the procedures set forth in this By-Law and, if any proposed
nomination or business is not in compliance with this By-Law, to declare that
such defective proposal or nomination shall be disregarded.
(2) For purposes of this By-Law, "public announcement" shall
mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document publicly
filed by the Corporation with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this By-Law, a
stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this By-Law. Nothing in this By-Law shall be deemed to affect any
rights (i) of stockholders to request inclusion of proposals in the
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Corporation's proxy statement pursuant to Rule 14-8 under the Exchange Act or
(ii) of the holders of any series of Preferred Stock to elect directors under an
applicable Preferred Stock Designation (as defined in the Certificate of
Incorporation).
Section 2.8. Procedure for Election of Directors; Required
Vote. Election of directors at all meetings of the stockholders at which
directors are to be elected shall be by ballot, and, subject to the rights of
the holders of any series of Preferred Stock to elect directors under an
applicable Preferred Stock Designation, a plurality of the votes cast thereat
shall elect directors. Except as otherwise provided by law, the Certificate of
Incorporation, Preferred Stock Designation, or these By-Laws, in all matters
other than the election of directors, the affirmative vote of a majority of the
voting power of the shares present in person or represented by proxy at the
meeting and entitled to vote on the matter shall be the act of the stockholders.
Section 2.9. Inspectors of Elections; Opening and Closing the
Polls. The Board by resolution shall appoint, or shall authorize an officer of
the Corporation to appoint, one or more inspectors, which inspector or
inspectors may include individuals who serve the Corporation in other
capacities, including, without limitation, as officers, employees, agents or
representatives, to act at the meetings of stockholders and make a written
report thereof. One or more persons may be designated as alternate inspectors to
replace any inspector who fails to act. If no inspector or alternate has been
appointed to act or is able to act at a meeting of stockholders, the Chairman of
the meeting shall appoint one or more inspectors to act at the meeting. Each
inspector, before discharging such person's duties, shall take and sign an oath
to execute faithfully the duties of inspector with strict impartiality and
according to the best of such person's ability. The inspector(s) shall have the
duties prescribed by law. The Chairman of the meeting shall fix and announce at
the meeting the date and time of the opening and the closing of the polls for
each matter upon which the stockholders will vote at a meeting.
Section 2.10. No Stockholder Action by Written Consent. Any
action required or permitted to be taken by the stockholders of the Corporation
must be effected at a duly called annual or special meeting of such holders and
may not be effected by any consent in writing by such holders.
ARTICLE III
Board of Directors
Section 3.1. General Powers. The business and affairs of the
Corporation shall be managed under the direction of the Board. In addition to
the powers and authorities by these By-Laws expressly conferred upon them, the
Board may exercise all such powers of the Corporation and do all such lawful
acts and things as are not by statute or by the Certificate of Incorporation or
by these By-Laws required to be exercised or done by the stockholders.
Section 3.2. Number and Tenure. Except as otherwise fixed by
or pursuant to the provisions of Article IV of the Certificate of Incorporation
relating to the rights of the holders of any class or series of stock having a
preference over the Common Stock as to dividends or upon liquidation to elect
additional directors under specified circumstances, the number of the directors
of the Corporation shall be as set forth in, and fixed from time to time
exclusively in the manner set forth in, Article VI of the Certificate of
Incorporation.
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Section 3.3. Regular Meetings. A regular meeting of the Board
shall be held without other notice than this By-Law immediately after, and at
the same place as, the annual meeting of stockholders. The Board may, by
resolution, provide the time and place for the holding of additional regular
meetings without other notice than such resolution.
Section 3.4. Special Meetings. Special meetings of the Board
shall be called at the request of the Chairman of the Board, the President or a
majority of the Board then in office. The person or persons authorized to call
special meetings of the Board may fix the place and time of the meetings.
Section 3.5. Notice. Notice of any special meeting of
directors shall be given to each director at such person's business or residence
in writing by hand delivery, first-class or overnight mail, courier service or
facsimile transmission, or orally by telephone. If mailed by first-class mail,
such notice shall be deemed adequately delivered when deposited in the United
States mails so addressed, with postage thereon prepaid, at least 5 calendar
days before such meeting. If by overnight mail or courier service, such notice
shall be deemed adequately delivered when the notice is delivered to the
overnight mail or courier service company at least 24 hours before such meeting.
If by facsimile transmission, such notice shall be deemed adequately delivered
when the notice is transmitted at least 12 hours before such meeting. If by
telephone or by hand delivery, the notice shall be given at least 12 hours prior
to the time set for the meeting. Neither the business to be transacted at, nor
the purpose of, any regular or special meeting of the Board need be specified in
the notice of such meeting, except for amendments to these By-Laws, as provided
under Section 8.1. A meeting may be held at any time without notice if all the
directors are present or if those not present waive notice of the meeting either
before or after such meeting.
Section 3.6. Action by Consent of Board of Directors. Any
action required or permitted to be taken at any meeting of the Board or of any
committee thereof may be taken without a meeting if all members of the Board or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board or committee.
Section 3.7. Conference Telephone Meetings. Members of the
Board or any committee thereof may participate in a meeting of the Board or such
committee by means of conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other,
and such participation in a meeting shall constitute presence in person at such
meeting.
Section 3.8. Quorum. Subject to Section 3.9, a whole number of
directors equal to at least a majority of the Whole Board shall constitute a
quorum for the transaction of business, but if at any meeting of the Board there
shall be less than a quorum present, a majority of the directors present may
adjourn the meeting from time to time without further notice. The act of the
majority of the directors present at a meeting at which a quorum is present
shall be the act of the Board. The directors present at a duly organized meeting
may continue to transact business until adjournment, notwithstanding the
withdrawal of enough directors to leave less than a quorum.
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Section 3.9. Vacancies. Except as otherwise provided for or
fixed by or pursuant to the provisions of Article IV of the Certificate of
Incorporation relating to the rights of the holders of any class or series of
stock having a preference over the Common Stock as to dividends or upon
liquidation to elect directors under specified circumstances, newly created
directorships resulting from any increase in the number of Directors and any
vacancies on the Board resulting from death, resignation, disqualification,
removal or other cause shall be filled in accordance with, and any director
elected to such newly created directorships shall hold office in accordance
with, Article VI of the Certificate of Incorporation. No decrease in the number
of directors constituting the Board shall shorten the term of any incumbent
director.
Section 3.10. Committees. (a) The Board, by resolution adopted
by a majority of the Whole Board, may designate one or more committees which, to
the extent permitted by law, may exercise such powers and have such
responsibilities as shall be specified in the designating resolution. Each
committee shall consist of two or more directors of the Corporation. The Board
may designate one or more directors as alternate members of any committee, who
may replace any absent or disqualified member at any meeting of the committee.
In the absence or disqualification of any member of such committee or
committees, the member or members thereof present at any meeting and not
disqualified from voting, whether or not constituting a quorum, may unanimously
appoint another member of the Board to act at the meeting in the place of any
such absent or disqualified member. Each committee shall keep written minutes of
its proceedings and shall report such proceedings to the Board when required.
(b) A majority of any committee may determine its action and
fix the time and place of its meetings, unless the Board shall otherwise
provide. Notice of such meetings shall be given to each member of the committee
in the manner provided for in Section 3.5 of these By-Laws. The Board shall have
power at any time to fill vacancies in, to change the membership of, or to
dissolve any such committee. Nothing herein shall be deemed to prevent the Board
from appointing one or more committees consisting in whole or in part of persons
who are not directors of the Corporation; provided, however, that no such
committee shall have or may exercise any authority of the Board.
Section 3.11. Removal. Any director may be removed from office
only in accordance with Article VI of the Certificate of Incorporation.
Section 3.12. Records. The Board shall cause to be kept a
record containing the minutes of the proceedings of the meetings of the Board
and of the stockholders, appropriate stock books and registers and such books of
records and accounts as may be necessary for the proper conduct of the business
of the Corporation.
ARTICLE IV
Officers
Section 4.1. Elected Officers. The elected officers of the
Corporation shall be a Chairman of the Board, a Chief Financial Officer, a
Secretary, a Treasurer, and such other officers (including, without limitation,
a President, Senior Vice Presidents and Executive Vice Presidents and Vice
Presidents) as the Board from time to time may deem proper. The Chairman of the
Board shall be chosen from among the directors. All officers elected by the
Board shall
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each have such powers and duties as generally pertain to their respective
offices, subject to the specific provisions of this Article IV. Such officers
shall also have such powers and duties as from time to time may be conferred by
the Board or by any committee thereof. The Board or any committee thereof may
from time to time elect, or the Chairman of the Board or President may appoint,
such other officers (including one or more Vice Presidents, Controllers,
Assistant Secretaries and Assistant Treasurers), as may be necessary or
desirable for the conduct of the business of the Corporation. Such other
officers and agents shall have such duties and shall hold their offices for such
terms as shall be provided in these By-Laws or as may be prescribed by the Board
or such committee or by the Chairman of the Board or President, as the case may
be.
Section 4.2. Election and Term of Office. The elected officers
of the Corporation shall be elected annually by the Board at the regular meeting
of the Board held after the annual meeting of the stockholders. If the election
of officers shall not be held at such meeting, such election shall be held as
soon thereafter as convenient. Each officer shall hold office until such
person's successor shall have been duly elected and shall have qualified or
until such person's death or until such person shall resign or be removed
pursuant to Section 4.9.
Section 4.3. Chairman of the Board; Chief Executive Officer.
The Chairman of the Board shall preside at all meetings of the stockholders and
of the Board and shall be the Chief Executive Officer of the Corporation. The
Chairman of the Board shall be responsible for the general management of the
affairs of the Corporation and shall perform all duties incidental to such
person's office which may be required by law and all such other duties as are
properly required of such person by the Board. The Chairman of the Board shall
make reports to the Board and the stockholders, and shall see that all orders
and resolutions of the Board and of any committee thereof are carried into
effect. The Chairman of the Board may also serve as President, if so elected by
the Board. The directors also may elect a Vice-Chairman to act in the place of
the Chairman upon his or her absence or inability to act.
Section 4.4. Chief Financial Officer. The Chief Financial
Officer shall be the principal financial officer of the Corporation and shall
have such powers and shall perform such duties as shall be assigned to such
person by the Board.
Section 4.5. President. The President, if any, shall act in a
general executive capacity and shall assist the Chairman of the Board in the
administration and operation of the Corporation's business and general
supervision of its policies and affairs. The President, if he or she is also a
director, shall, in the absence of or because of the inability to act of the
Chairman of the Board, perform all duties of the Chairman of the Board and
preside at all meetings of stockholders and of the Board.
Section 4.6. Vice Presidents. Each Senior Vice President and
Executive Vice President and any Vice President shall have such powers and shall
perform such duties as shall be assigned to such person by the Board.
Section 4.7. Treasurer. The Treasurer shall exercise general
supervision over the receipt, custody and disbursement of corporate funds. The
Treasurer shall cause the funds of the Corporation to be deposited in such banks
as may be authorized by the Board, or in such banks as may be designated as
depositories in the manner provided by resolution of the Board.
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The Treasurer shall have such further powers and duties and shall be subject to
such directions as may be granted or imposed from time to time by the Board, the
Chairman of the Board, the President, if any, or the Chief Financial Officer.
Section 4.8. Secretary. (a) The Secretary shall keep or cause
to be kept in one or more books provided for that purpose, the minutes of all
meetings of the Board, the committees of the Board and the stockholders; the
Secretary shall see that all notices are duly given in accordance with the
provisions of these By-Laws and as required by law; shall be custodian of the
records and the seal of the Corporation and affix and attest the seal to all
stock certificates of the Corporation (unless the seal of the Corporation on
such certificates shall be a facsimile, as hereinafter provided) and affix and
attest the seal to all other documents to be executed on behalf of the
Corporation under its seal; and shall see that the books, reports, statements,
certificates and other documents and records required by law to be kept and
filed are properly kept and filed; and in general, shall perform all the duties
incident to the office of Secretary and such other duties as from time to time
may be assigned to the Secretary by the Board, the Chairman of the Board or the
President.
(b) Assistant Secretaries shall have such of the authority and
perform such of the duties of the Secretary as may be provided in these By-Laws
or assigned to them by the Board or the Chairman of the Board or by the
Secretary. During the Secretary's absence or inability, the Secretary's
authority and duties shall be possessed by such Assistant Secretary or Assistant
Secretaries as the Board, the Chairman of the Board, the President or a Vice
Chairman of the Board may designate.
Section 4.9. Removal. Any officer elected, or agent appointed,
by the Board may be removed by the affirmative vote of a majority of the Whole
Board whenever, in their judgment, the best interests of the Corporation would
be served thereby. Any officer or agent appointed by the Chairman of the Board
or the President may be removed by such person whenever, in such person's
judgment, the best interests of the Corporation would be served thereby. No
elected officer shall have any contractual rights against the Corporation for
compensation by virtue of such election beyond the date of the election of such
person's successor, such person's death, such person's resignation or such
person's removal, whichever event shall first occur, except as otherwise
provided in an employment contract or under an employee deferred compensation
plan.
Section 4.10. Vacancies. A newly created elected office and a
vacancy in any elected office because of death, resignation, or removal may be
filled by the Board for the unexpired portion of the term at any meeting of the
Board. Any vacancy in an office appointed by the Chairman of the Board or the
President because of death, resignation, or removal may be filled by the
Chairman of the Board or the President.
ARTICLE V
Stock Certificates and Transfers
Section 5.1. Stock Certificates and Transfers. (a) The
interest of each stockholder of the Corporation shall be evidenced by
certificates for shares of stock in such form as the appropriate officers of the
Corporation may from time to time prescribe unless the board
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of directors shall by resolution provide that some or all or any class or series
of stock shall be uncertificated shares. Any such resolution shall not apply to
shares represented by a certificate until the certificate is surrendered to the
Corporation. Notwithstanding the adoption of any resolution providing for
uncertificated shares, every holder of stock represented by certificates and
upon request every holder of uncertificated shares shall be entitled to have a
certificate signed by, or in the name of the Corporation by, the Chairman or
Vice-Chairman, if any, of the Board, or the President or any Vice President, and
by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant
Secretary, representing the number of shares registered in certificated form.
(b) The shares of the stock of the Corporation shall be
transferred on the books of the Corporation by the holder thereof in person or
by such person's attorney, upon surrender for cancellation of certificates for
at least the same number of shares, with an assignment and power of transfer
endorsed thereon or attached thereto, duly executed, with such proof of the
authenticity of the signature as the Corporation or its agents may reasonably
require. The certificates of stock shall be signed, countersigned and registered
in such manner as the Board may by resolution prescribe, which resolution may
permit all or any of the signatures on such certificates to be in facsimile. In
case any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate has ceased to be such officer,
transfer agent or registrar before such certificate is issued, it may be issued
by the Corporation with the same effect as if he were such officer, transfer
agent or registrar at the date of issue.
Section 5.2. Lost, Stolen or Destroyed Certificates. No
certificate for shares of stock in the Corporation shall be issued in place of
any certificate alleged to have been lost, destroyed or stolen, except on
production of such evidence of such loss, destruction or theft and on delivery
to the Corporation of a bond of indemnity in such amount, upon such terms and
secured by such surety, as the Board or any financial officer may in its or such
person's discretion require.
ARTICLE VI
Miscellaneous Provisions
Section 6.1. Fiscal Year. The fiscal year of the Corporation
shall begin on the first day of January and end on the thirty-first day of
December of each year.
Section 6.2. Dividends. The Board may from time to time
declare, and the Corporation may pay, dividends on its outstanding shares in the
manner and upon the terms and conditions provided by law and the Certificate of
Incorporation.
Section 6.3. Seal. The corporate seal shall have inscribed
thereon the words "Corporate Seal," the year of incorporation and around the
margin thereof the words "Delaware."
Section 6.4. Waiver of Notice. Whenever any notice is required
to be given to any stockholder or director of the Corporation under the
provisions of the DGCL or these By-Laws, a waiver thereof in writing, signed by
the person or persons entitled to such notice, whether before or after the time
stated therein, shall be deemed equivalent to the giving of such
-10-
notice. Neither the business to be transacted at, nor the purpose of, any annual
or special meeting of the stockholders or the Board or committee thereof need be
specified in any waiver of notice of such meeting.
Section 6.5. Audits. The accounts, books and records of the
Corporation shall be audited upon the conclusion of each fiscal year by an
independent certified public accountant selected by the Board, and it shall be
the duty of the Board to cause such audit to be done annually.
Section 6.6. Resignations. Any director or any officer,
whether elected or appointed, may resign at any time by giving written notice of
such resignation to the Chairman of the Board, the President, or the Secretary,
and such resignation shall be deemed to be effective as of the close of business
on the date said notice is received by the Chairman of the Board, the President,
or the Secretary, or at such later time as is specified therein. No formal
action shall be required of the Board or the stockholders to make any such
resignation effective.
ARTICLE VII
Contracts, Proxies, Etc.
Section 7.1. Contracts. Except as otherwise required by law,
the Certificate of Incorporation, a Preferred Stock Designation, or these
By-Laws, any contracts or other instruments may be executed and delivered in the
name and on the behalf of the Corporation by such officer or officers of the
Corporation as the Board may from time to time direct. Such authority may be
general or confined to specific instances as the Board may determine. The
Chairman of the Board, the President or any Senior Vice President, Executive
Vice President or Vice President may execute bonds, contracts, deeds, leases and
other instruments to be made or executed for or on behalf of the Corporation.
Subject to any restrictions imposed by the Board or the Chairman of the Board,
the President or any Senior Vice President, Executive Vice President or Vice
President of the Corporation may delegate contractual powers to others under
such person's jurisdiction, it being understood, however, that any such
delegation of power shall not relieve such officer of responsibility with
respect to the exercise of such delegated power.
Section 7.2. Proxies. Unless otherwise provided by resolution
adopted by the Board, the Chairman of the Board, the President, the Chief
Financial Officer or any Senior Vice President, Executive Vice President or Vice
President may from time to time appoint an attorney or attorneys or agent or
agents of the Corporation, in the name and on behalf of the Corporation, to cast
the votes which the Corporation may be entitled to cast as the holder of stock
or other securities in any other corporation, any of whose stock or other
securities may be held by the Corporation, at meetings of the holders of the
stock or other securities of such other corporation, or to consent in writing,
in the name of the Corporation as such holder, to any action by such other
corporation, and may instruct the person or persons so appointed as to the
manner of casting such votes or giving such consent, and may execute or cause to
be executed in the name and on behalf of the Corporation and under its corporate
seal or otherwise, all such written proxies or other instruments as he may deem
necessary or proper in the premises.
ARTICLE VIII
-11-
Amendments
Section 8.1. Amendments. The By-Laws may be altered or
repealed and new By-Laws may be adopted (1) at any annual or special meeting of
stockholders by the affirmative vote of the holders of shares of Common Stock in
accordance with Articles IV and VII of the Certificate of Incorporation;
provided, however, that, in the case of any such stockholder action at a special
meeting of stockholders, notice of the proposed alteration, repeal or adoption
of the new By-Law or By-Laws must be contained in the notice of such special
meeting, or (2) by the affirmative vote of a majority of the Whole Board.
-12-
EXHIBIT 4.3
CERTIFICATE OF DESIGNATION OF
PREFERENCES AND RIGHTS OF
RAYTHEON COMPANY
SERIES B JUNIOR PARTICIPATING
PREFERRED STOCK
Raytheon Company, a Delaware corporation (hereinafter called, the
"Corporation"), pursuant to Section 151 of the General Corporation Law of the
State of Delaware, does hereby make this Certificate of Designation and does
hereby state and certify that pursuant to the authority expressly vested in the
Board of Directors of the Corporation by the Restated Certificate of
Incorporation of the Corporation (the "Restated Certificate"), the Board of
Directors of the Corporation duly adopted the following resolutions:
RESOLVED, that pursuant to Article IV of the Restated Certificate
(which authorizes 200,000,000 shares of preferred stock, $.01 par value), the
Board of Directors of the Corporation hereby fixes the voting powers,
designations and preferences and the relative, participating, optional and other
special rights, and the qualifications, limitations and restrictions thereof, of
the Series B Junior Participating Preferred Stock.
RESOLVED, that each share of the Series B Junior Participating
Preferred Stock shall rank equally in all respects and shall be subject to the
following provisions:
SECTION 1. Designation and Amount. The shares of such series shall be
designated as "Series B Junior Participating Preferred Stock" (the "Series B
Preferred Stock") and the number of shares constituting the Series B Preferred
Stock shall be 6,000,000. Such number of shares may be increased or decreased by
resolution of the Board of Directors; provided, that no decrease shall reduce
the number of shares of Series B Preferred Stock to a number less than the
number of shares then outstanding plus the number of shares reserved for
issuance upon the exercise of outstanding options, rights or warrants or upon
the conversion of any outstanding securities issued by the Corporation
convertible into Series B Preferred Stock.
SECTION 2. Dividends and Distributions.
(a) Subject to the rights of the holders of any shares of any
series of Preferred Stock (or any similar stock) ranking prior and superior to
the Series B Preferred Stock with respect to dividends, the holders of shares of
Series B Preferred Stock, in preference to the holders of shares of common
stock, $0.01 par value, of the Corporation ("Common Stock"), and of any other
junior stock shall be entitled to receive, when, as and if declared by the Board
of Directors out of funds legally available for the purpose, quarterly dividends
payable in cash on the first day of March, June, September and December in each
year (each such date being referred to herein as a "Quarterly Dividend Payment
Date"), commencing on the first Quarterly
Dividend Payment Date after the first issuance of a share or fraction of a share
of Series B Preferred Stock in an amount per share (rounded to the nearest cent)
equal to the greater of (A) $1 or (B) subject to the provision for adjustment
hereinafter set forth, 100 times the aggregate per share amount of all cash
dividends, and 100 times the aggregate per share amount (payable in kind) of all
non-cash dividends or other distributions, other than a dividend payable in
shares of Common Stock or a subdivision of the outstanding shares of Common
Stock (by reclassification or otherwise), declared on the Common Stock since the
immediately preceding Quarterly Dividend Payment Date or, with respect to the
first Quarterly Dividend Payment Date, since the first issuance of any share or
fraction of a share of Series B Preferred Stock. In the event the Corporation
shall at any time declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision or combination or consolidation
of the outstanding shares of Common Stock (by reclassification or otherwise than
by payment of a dividend in shares of Common Stock) into a greater or lesser
number of shares of Common Stock, then in each such case the amount to which
holders of shares of Series B Preferred Stock were entitled immediately prior to
such event under clause (B) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(b) The Corporation shall declare a dividend or distribution on
the Series B Preferred Stock as provided in paragraph (a) of this section
immediately after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock); provided that, in the
event no dividend or distribution shall have been declared on the Common Stock
during the period between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a dividend of $1 per share on the
Series B Preferred Stock shall nevertheless be payable on such subsequent
Quarterly Dividend Payment Date.
(c) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series B Preferred Stock from the Quarterly Dividend
Payment Date next preceding the date of issue of such shares, unless the date of
issue of such shares is prior to the record date for the first Quarterly
Dividend Payment Date, in which case dividends on such shares shall begin to
accrue from the date of issue of such shares, or unless the date of issue is a
Quarterly Dividend Payment Date or is a date after the record date for the
determination of holders of shares of Series B Preferred Stock entitled to
receive a quarterly dividend and before such Quarterly Dividend Payment Date, in
either of which events such dividends shall begin to accrue and be cumulative
from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall
not bear interest. Dividends paid on the shares of Series B Preferred Stock in
an amount less than the total amount of such dividends at the time accrued and
payable on such shares shall be allocated pro rata on a share-by-share basis
among all such shares at the time outstanding. The Board of Directors may fix a
record date for the determination of holders of shares of Series B Preferred
Stock entitled to receive payment of a dividend or distribution declared
thereon, which record date shall be not more than 60 days prior to the date
fixed for the payment thereof.
SECTION 3. Voting Rights. The holders of shares of Series B Preferred
Stock shall have the following voting rights:
2
(a) Subject to the provision for adjustment hereinafter set forth,
each share of Series B Preferred Stock shall entitle the holder thereof to 100
votes on all matters submitted to a vote of the stockholders of the Corporation.
In the event the Corporation shall at any time declare or pay any dividend on
the Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the number of votes per share to which holders of shares of Series B
Preferred Stock were entitled immediately prior to such event shall be adjusted
by multiplying such number by a fraction, the numerator of which is the number
of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(b) Except as otherwise provided herein, in any other Certificate
of Designations creating a series of Preferred Stock or any similar stock or by
law, the holders of shares of Series B Preferred Stock and the holders of shares
of Common Stock shall vote together as one class on all matters submitted to a
vote of stockholders of the Corporation.
(c) Except as set forth herein, or as otherwise provided by law,
holders of Series B Preferred Stock shall have no special voting rights and
their consent shall not be required (except to the extent they are entitled to
vote with holders of Common Stock as set forth herein) for taking any corporate
action.
SECTION 4. Certain Restrictions.
(a) Whenever quarterly dividends or other dividends or
distributions payable on the Series B Preferred Stock as provided in Section 2
are in arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series B Preferred Stock
outstanding shall have been paid in full, the Corporation shall not:
(i) declare or pay dividends, or make any other distributions,
on any shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series B Preferred Stock;
(ii) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the Series B
Preferred Stock except dividends paid ratably on the Series B Preferred Stock
and all such parity stock on which dividends are payable or in arrears in
proportion to the total amounts to which the holders of all such shares are then
entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series B Preferred Stock provided
that the Corporation may at any time redeem, purchase or otherwise acquire
shares of any such junior stock in exchange for shares of any stock of the
Corporation ranking junior (either as to dividends or upon dissolution,
liquidation or winding up) to the Series B Preferred Stock; or
3
(iv) redeem or purchase or otherwise acquire for consideration
any shares of Series B Preferred Stock or any shares of stock ranking on a
parity with the Series B Preferred Stock except in accordance with a purchase
offer made in writing or by publication (as determined by the Board of
Directors) to all holders of such shares upon such terms as the Board of
Directors, after consideration of the respective annual dividend rates and other
relative rights and preferences of the respective series and classes, shall
determine in good faith will result in fair and equitable treatment among the
respective series or classes.
(b) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares of
stock of the Corporation unless the Corporation could, under paragraph (a) of
this Section 4, purchase or otherwise acquire such shares at such time and in
such manner.
SECTION 5. Reacquired Shares. Any shares of Series B Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and canceled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but unissued shares of
Preferred Stock and may be reissued as part of a new series of Preferred Stock
subject to the conditions and restrictions on issuance set forth herein, in the
Certificate of Incorporation, or in any other Certificate of Designations
creating a series of Preferred Stock or any similar stock or as otherwise
required by law.
SECTION 6. Liquidation, Dissolution or Winding Up. Upon any
liquidation, dissolution or winding up of the Corporation, no distribution shall
be made (1) to the holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series B
Preferred Stock unless, prior thereto, the holders of shares of Series B
Preferred Stock shall have received $100 per share, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not declared,
to the date of such payment, provided that the holders of shares of Series B
Preferred Stock shall be entitled to receive an aggregate amount per share,
subject to the provision for adjustment hereinafter set forth, equal to 100
times the aggregate amount to be distributed per share to holders of shares of
Common Stock or (2) to the holders of shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or winding up) with the
Series B Preferred Stock except distributions made ratably on the Series B
Preferred Stock and all such parity stock in proportion to the total amounts to
which the holders of all such shares are entitled upon such liquidation,
dissolution or winding up. In the event the Corporation shall at any time
declare or pay any dividend on the Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock then in each such case the aggregate amount to which
holders of shares of Series B Preferred Stock were entitled immediately prior to
such event under the proviso in clause (1) of the preceding sentence shall be
adjusted by multiplying such amount by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
SECTION 7. Consolidation, Merger, etc. In case the Corporation shall
enter into any consolidation, merger, combination or other transaction in which
the shares of Common
4
Stock are exchanged for or changed into other stock or securities, cash and/or
any other property, then in any such case each share of Series B Preferred Stock
shall at the same time be similarly exchanged or changed into an amount per
share, subject to the provision for adjustment hereinafter set forth, equal to
100 times the aggregate amount of stock securities, cash and/or any other
property (payable in kind), as the case may be, into which or for which each
share of Common Stock is changed or exchanged. In the event the Corporation
shall at any time declare or pay any dividend on the Common Stock payable in
shares of Common Stock or effect a subdivision or combination or consolidation
of the outstanding shares of Common Stock (by reclassification or otherwise than
by payment of a dividend in shares of Common Stock) into a greater or lesser
number of shares of Common Stock then in each such case the amount set forth in
the preceding sentence with respect to the exchange or change of shares of
Series B Preferred Stock shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
SECTION 8. No Redemption. The shares of Series B Preferred Stock shall
not be redeemable.
SECTION 9. Rank. The Series B Preferred Stock shall rank, with respect
to the payment of dividends and the distribution of assets, junior to all series
of any other class of the Corporation's Preferred Stock.
SECTION 10. Amendment. The Certificate of Incorporation of the
Corporation shall not be amended in any manner which would materially alter or
change the powers, preferences or special rights of the Series B Preferred Stock
so as to affect them adversely without the affirmative vote of the holders of at
least two-thirds of the outstanding shares of Series B Preferred Stock voting
together as a single class.
[Remainder of Page Intentionally Left Blank]
5
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Designation to be duly executed by its duly authorized officer and attested by
its secretary this 2nd day of April, 2002.
RAYTHEON COMPANY
By: /s/ Neal E. Minahan
Name: Neal E. Minahan
Title: Senior Vice President
and General Counsel
ATTEST:
/s/ John W. Kapples
Name: John W. Kapples
Title: Secretary
EXHIBIT 4.4
RAYTHEON COMPANY
TO
THE BANK OF NEW YORK,
Trustee
-------------------
SENIOR DEBT SECURITIES
-------------------
INDENTURE
Dated as of July 3, 1995
-------------------
Raytheon Company
Certain Sections of this Indenture relating to
Sections 310 through 318, inclusive, of the
Trust Indenture Act of 1939:
Trust Indenture Indenture
Act Section Section
- --------------- ---------
Section 310 (a)(1)............................................ 609
(a)(2)............................................ 609
(a)(3)............................................ Not Applicable
(a)(4)............................................ Not Applicable
(a)(5)............................................ 609
(b)............................................... 608, 610
(c)............................................... Not Applicable
Section 311 (a)............................................... 613
(b)............................................... 613
Section 312 (a)............................................... 701, 702(a)
(b)............................................... 702(b)
(c)............................................... 702(c)
Section 313 (a)............................................... 703(a)
(b)............................................... 703(a)
(c)............................................... 703(a)
(d)............................................... 703(b)
Section 314 (a)(1)............................................ 704
(a)(2)............................................ 704
(a)(3)............................................ 704
(a)(4)............................................ 1007, 102
(b)............................................... Not Applicable
(c)(1)............................................ 102
(c)(2)............................................ 102
(c)(3)............................................ Not Applicable
(d)............................................... Not Applicable
(e)............................................... 102
Section 315 (a)............................................... 601
(b)............................................... 602
(c)............................................... 601
(d)............................................... 601, 603
(e)............................................... 514
Section 316 (a)............................................... 101
(a)(1)(A)......................................... 512
(a)(1)(B)......................................... 512
(a)(2)(B)......................................... 513
(a)(2)............................................ Not Applicable
(b)............................................... 508
(c)............................................... 104(c)
Section 317 (a)(1)............................................ 503
(a)(2)............................................ 504
(b)............................................... 1004
Section 318 (a)............................................... 107
TABLE OF CONTENTS
Page
PARTIES ............................................. 1
RECITALS OF THE COMPANY ............................. 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions ............................ 1
Act .................................... 2
Affiliate; control ..................... 2
Authenticating Agent ................... 2
Board of Directors ..................... 2
Board Resolution ....................... 2
Business Day ........................... 2
Commission ............................. 2
Company ............................... 3
Company Request; Company Order ......... 3
Company Sale ........................... 3
Corporate Trust Office ................. 3
Corporation ........................... 3
Defaulted Interest ..................... 3
Defeasable Covenant .................... 3
Depositary ............................. 3
Event of Default ....................... 3
Exchange Act ........................... 3
Funded Debt ............................ 3
GAAP ................................... 4
Global Security ........................ 4
Holder ................................. 4
Indebtedness ........................... 4
Indenture .............................. 4
Interest ............................... 4
Interest Payment Date .................. 4
Lien ................................... 4
Maturity ............................... 4
Officers' Certificate .................. 5
Opinion of Counsel ..................... 5
Original Issue Discount Security ....... 5
Outstanding ............................ 5
- ---------------
NOTE: This table of contents shall not, for any purpose, be deemed to
be a part of the Indenture.
-ii-
Page
----
Paying Agent ..................................... 6
Person ........................................... 6
Permitted Receivables Program .................... 6
Place of Payment ................................. 6
Predecessor Security ............................. 6
Principal property ............................... 6
Redemption Date .................................. 7
Redemption Price ................................. 7
Regular Record Date .............................. 7
Responsible Officer .............................. 7
Securities ....................................... 7
Security Register; Security Registrar ............ 7
Significant Subsidiary ........................... 7
Special Record Date .............................. 7
Stated Maturity .................................. 7
Stockholders' Equity ............................. 7
Subsidiary ....................................... 7
Successor Company ................................ 7
Trustee .......................................... 8
Trust Indenture Act .............................. 8
Vice President ................................... 8
Yield to Maturity ................................ 8
Section 102. Compliance Certificates and Opinions ............. 8
Section 103. Form of Documents Delivered to Trustee ........... 9
Section 104. Acts of Holders; Record Dates .................... 9
Section 105. Notices, Etc., to Trustee and Company ............ 11
Section 106. Notice to Holders; Waiver ........................ 11
Section 107. Conflict with Trust Indenture Act ................ 11
Section 108. Effect of Headings and Table of Contents ......... 12
Section 109. Successors and Assigns ........................... 12
Section 110. Separability Clause .............................. 12
Section 111. Benefits of Indenture ............................ 12
Section 112. Governing Law .................................... 12
Section 113. Legal Holidays ................................... 12
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally .................................. 13
Section 202. Form of Face of Security ......................... 13
Section 203. Form of Reverse of Security ...................... 16
Section 204. Form of Legend for Global Securities ............. 19
Section 205. Form of Trustee's Certificate of Authentication .. 20
- ---------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
-iii-
Page
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.................. 20
Section 302. Denominations......................................... 23
Section 303. Execution, Authentication, Delivery and Dating........ 23
Section 304. Temporary Securities.................................. 24
Section 305. Registration, Registration of Transfer and Exchange... 25
Section 306. Mutilated, Destroyed, Lost and Stolen Securities...... 27
Section 307. Payment of Interest; Interest Rights Preserved........ 27
Section 308. Persons Deemed Owners................................. 29
Section 309. Cancellation.......................................... 29
Section 310. Computation of Interest............................... 29
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture............... 29
Section 402. Application of Trust Money............................ 30
ARTICLE FIVE
REMEDIES
Section 501. Events of Default..................................... 31
Section 502. Acceleration of Maturity; Rescission and Annulment.... 32
Section 503. Collection of Indebtedness and Suits for Enforcement
by Trustee............................................ 33
Section 504. Trustee May File Proofs of Claim...................... 34
Section 505. Trustee May Enforce Claims
Without Possession of Securities...................... 34
Section 506. Application of Money Collected........................ 34
Section 507. Limitation on Suits................................... 35
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.................................. 35
Section 509. Restoration of Rights and Remedies.................... 36
Section 510. Rights and Remedies Cumulative........................ 36
Section 511. Delay or Omission Not Waiver.......................... 36
Section 512. Control by Holders.................................... 36
Section 513. Waiver of Past Defaults............................... 37
Section 514. Undertaking for Costs................................. 37
Section 515. Waiver of Stay or Extension Laws...................... 37
- ---------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
-iv-
Page
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities.................. 38
Section 602. Notice of Defaults................................... 38
Section 603. Certain Rights of Trustee............................ 38
Section 604. Not Responsible for Recitals or
Issuance of Securities............................... 39
Section 605. May Hold Securities.................................. 39
Section 606. Money Held in Trust.................................. 40
Section 607. Compensation and Reimbursement....................... 40
Section 608. Disqualification; Conflicting Interests.............. 40
Section 609. Corporate Trustee Required; Eligibility.............. 40
Section 610. Resignation and Removal; Appointment of Successor.... 41
Section 611. Acceptance of Appointment by Successor............... 42
Section 612. Merger, Conversion, Consolidation
or Succession to Business............................ 43
Section 613. Preferential Collection of Claims Against Company.... 44
Section 614. Appointment of Authenticating Agent.................. 44
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names
and Addresses of Holders............................. 45
Section 702. Preservation of Information;
Communications to Holders............................ 46
Section 703. Reports by Trustee................................... 46
Section 704. Reports by Company................................... 47
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company May Consolidate, Etc.,
Only on Certain Terms................................ 47
Section 802. Successor Corporation to be Substituted.............. 47
Section 803. Opinion of Counsel to Be Given Trustee............... 48
- ---------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
-v-
Page
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.... 48
Section 902. Supplemental Indentures with Consent of Holders....... 49
Section 903. Execution of Supplemental Indentures.................. 50
Section 904. Effect of Supplemental Indentures..................... 51
Section 905. Conformity with Trust Indenture Act................... 51
Section 906. Reference in Securities to Supplemental Indentures.... 51
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest............ 51
Section 1002. Maintenance of Office or Agency....................... 52
Section 1003. Vacancy in the Office of Trustee...................... 52
Section 1004. Money for Securities Payments to Be Held in Trust..... 52
Section 1005. Liens................................................. 53
Section 1006. Limitation on Sale and Leaseback Transactions......... 55
Section 1007. Statement by Officers as to Default................... 56
Section 1008. Existence............................................. 56
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.............................. 57
Section 1102. Election to Redeem; Notice to Trustee................. 57
Section 1103. Selection by Trustee of Securities to Be Redeemed..... 57
Section 1104. Notice of Redemption.................................. 58
Section 1105. Deposit of Redemption Price........................... 58
Section 1106. Securities Payable on Redemption Date................. 58
Section 1107. Securities Redeemed in Part........................... 59
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NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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Page
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article................................ 59
Section 1202. Satisfaction of Sinking Fund Payments with Securities... 60
Section 1203. Redemption of Securities for Sinking Fund............... 60
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 1301. Applicability of Article; Company's Option to
Effect Defeasance or Covenant Defeasance................ 60
Section 1302. Defeasance and Discharge................................ 61
Section 1303. Covenant Defeasance..................................... 61
Section 1304. Conditions to Defeasance or Covenant Defeasance......... 62
Section 1305. Deposited Money and U.S. Government Obligations
to be Held in Trust..................................... 64
Section 1306. Reinstatement........................................... 64
TESTIMONIUM.............................................................. 65
SIGNATURES AND SEALS..................................................... 65
ACKNOWLEDGMENTS.......................................................... 66
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NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
INDENTURE, dated as of July 3, 1995, between Raytheon Company, a corporation
duly organized and existing under the laws of the State of Delaware (herein
called the "Company"), having its principal offices at 141 Spring Street,
Lexington, Massachusetts 02173, and The Bank of New York, a bank duly organized
and existing under the laws of the State of New York, as Trustee (herein called
the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this Indenture
to provide for the issuance from time to time of its unsecured senior
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSTH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually agreed, for the equal and proportionate
benefit of all Holders of the Securities or of series thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
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(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as are
generally accepted at the date of such computation; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies or such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the term "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 614 to act on behalf of the Trustee to authenticate Securities of one
or more series.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board or any directors or officers of the
Company to whom such board of directors shall have delegated its authority to
act hereunder.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
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"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" or "Company Order" means a written request or order signed
in the name of the Company by its Chairman of the Board, its President or a Vice
President, and by its Treasurer, an Assistant Treasurer, its Secretary or an
Assistant Secretary, and delivered to the Trustee.
"Company Sale" has the meaning specified in Section 801.
"Corporate Trust Office" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered.
"corporation" means a corporation, association, company, joint-stock company
or business trust.
"Defaulted Interest" has the meaning specified in Section 307. "Defeasable
Covenant" has the meaning specified in Section 1303.
"Depositary" means, with respect to the Securities of any series issuable or
issued in whole or in part in the form of one or more Global Securities, the
Person designated as Depositary for such series by the Company pursuant to
Section 301, which Person shall be a clearing agency registered under the
Exchange Act; and if at any time there is more than one such Person,
"Depositary", as used with respect to the Securities of any series, shall mean
the Depositary with respect to the Securities of such series.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 as it may be
amended and any successor act thereto.
"Funded Debt" of any Person means all Indebtedness of such Person that will
mature, pursuant to a mandatory sinking fund or prepayment provision or
otherwise, and all installments of Indebtedness that will fall due, more than
one year from the date of determination. In calculating the maturity of any
Indebtedness, there shall be included the
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term of any unexercised right of the debtor to renew or extend such Indebtedness
existing at the time of determination.
"GAAP" means generally accepted accounting principles applied on a
consistent basis.
"Global Security" means a Security bearing the legend prescribed in Section
204 (or such legend as may be specified as contemplated by Section 301 for such
Securities) evidencing all or part of a series of Securities, authenticated and
delivered to the Depositary for such series or its nominee, and registered in
the name of such Depositary or nominee.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indebtedness" of any Person shall mean, as at any date of determination,
all indebtedness (including capitalized lease obligations) of such Person and
its consolidated subsidiaries at such date that would be required to be included
as a liability on a consolidated balance sheet (excluding the footnotes thereto)
of such Person prepared in accordance with GAAP.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including, for
all purposes of this instrument, and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively. The term
"Indenture" shall also include the terms of particular series of Securities
established as contemplated by Section 301.
"interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Lien" means, with respect to any asset of any Person, (i) any mortgage,
deed of trust, lien, pledge, encumbrance, charge or security interest in or on
such asset, (ii) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement (or any financing lease
having substantially the same economic effect as any of the foregoing) relating
to such asset and (iii) in the case of securities that constitute assets of such
Person, any purchase option, call or similar right of a third party with respect
to such securities.
"Maturity", when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein
-5-
or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President or a Vice President, Chief Financial Officer or Controller
and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Company, and delivered to the Trustee. One of the officers
signing an Officers' Certificate given pursuant to Section 1005 shall be the
principal executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;
(iii) Securities as to which defeasance has been effected pursuant to
Section 1302; and
(iv) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser in
whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (i) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof
-6-
that would be due and payable as of the date of such determination upon
acceleration of the Maturity thereof pursuant to Section 502, (ii) the principal
amount of a Security denominated in one or more foreign currencies or currency
units shall be the U.S. dollar equivalent, determined in the manner provided as
contemplated by Section 301 on the date of original issuance of such Security,
of the principal amount (or, in the case of an Original Issue Discount Security,
the U.S. dollar equivalent on the date of original issuance of such security of
the amount determined as provided in (i) above) of such Security, and (iii)
Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee knows to
be so owned shall be so disregarded. Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Permitted Receivables Program" means any receivables securitization program
pursuant to which the Company or any of the Subsidiaries sells accounts
receivable to any non-Affiliate in a "true sale" transaction; provided, however,
that any related indebtedness incurred to finance the purchase of such accounts
receivable is not includible on the balance sheet (excluding the footnotes
thereto) of the Company or any Subsidiary in accordance with GAAP and applicable
regulations of the Securities and Exchange Commission.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any series,
means the place or places where the principal of and any premium and interest on
the Securities of that series are payable as specified as contemplated by
Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Property" means, (i) the Company's principal office building and
(ii) any manufacturing plant or principal research facility of the Company or
any Significant Subsidiary which is located within the United States of America
or Canada, except any such principal office building, plant or facility which
the Board of Directors by resolution declares
-7-
is not of material importance to the total business conducted by the Company and
its Subsidiaries as an entirety.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Securities of any series means the date specified for that purpose as
contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means any
officer in the Corporate Trust Office of the Trustee or any other officer of the
Trustee customarily performing functions similar to those performed by any of
the above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Significant Subsidiary" means, at any time, any Subsidiary that would be a
"Significant Subsidiary" at such time, as such term is defined in Regulation S-X
promulgated by the Securities and Exchange Commission as in effect on May 15,
1995.
"Special Record Date" for the payment of any Defaulted Interest means a date
fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any installment
of principal thereof or interest thereon, means the date specified in such
Security as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.
"Stockholders' Equity" means, at any date of determination, the
stockholders' equity at such date of the Company and its Subsidiaries, as
determined in accordance with GAAP.
"Subsidiary" means a Person (other than an individual or a government or any
agency or political subdivision thereof) more than 50% of the outstanding voting
interest of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
"Successor Company" has the meaning specified in Section 801.
-8-
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this Instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president (but shall not include any assistant vice president),
whether or not designated by a number or a word or words added before or after
the title "vice president".
"Yield to Maturity", when used with respect to any Original Issue Discount
Security shall mean the yield to maturity, if any, set forth in the prospectus
supplement relating thereto, which shall be equal to the yield to maturity, if
any, set forth on the face of such Security.
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or opinion has
read such covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made
such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
complied with; and
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(4) a statement as to whether, in the opinion of each such individual, such
condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by agent duly appointed in
writing; and, except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments are delivered to
the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Indenture and (subject to Section 601) conclusive in
favor of the Trustee and the Company, if made in the manner provided in this
Section.
Without limiting the generality of the foregoing, a Holder,
including a Depositary that is a Holder of a Global Security, may make, give
or take, by a proxy,
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or proxies, duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other Act provided or permitted in
this Indenture to be made, given or taken by Holders, and a Depositary that
is a Holder of a Global Security may provide its proxy or proxies to the
beneficial owners of interest in any such Global Security.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or
by a certificate of a notary public or other officer authorized by law to
take acknowledgments of deeds, certifying that the individual signing such
instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient
proof of his authority. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same,
may also be proved in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust Indenture
Act, fix any day as the record date for the purpose of determining the
Holders of Securities of any series entitled to give or take any request,
demand, authorization, direction, notice, consent, waiver or other Act, or
to vote on any action authorized or permitted to be given or taken by
Holders of Securities of such series. If not set by the Company prior to the
first solicitation of a Holder of Securities of such series made by any
Person in respect of any such action, or, in the case of any such vote,
prior to such vote, the record date for any such action or vote shall be the
30th day (or, if later, the date of the most recent list of Holders required
to be provided pursuant to Section 701) prior to such first solicitation or
vote, as the case may be. With regard to any record date for action to be
taken by the Holders of one or more series of Securities, only the Holders
of Securities of such series on such date (or their duly designated proxies)
shall be entitled to give or take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the Security Register.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of
the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee
or the Company in reliance thereon, whether or not notation of such action
is made upon such Security.
(f) Without limiting the foregoing, a Holder entitled hereunder to give or
take any action hereunder with regard to any particular Security may do so
with regard to all or any part of the principal amount of such Security or
by one or more
-11-
duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any different part of such principal amount.
Section 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed to
it at the address of its principal office specified in the first paragraph
of this instrument, marked "Attention: General Counsel", or at any other
address previously furnished in writing to the Trustee by the Company.
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for any notice to Holders, such notice shall
be sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each Holder entitled to receive such
notice, at his address as it appears in the Security Register, not later than
the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act that is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any
-12-
provision of the Trust Indenture Act that may be so modified or excluded, the
latter provision shall be deemed to apply to this Indenture as so modified or to
be excluded, as the case may be.
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind its
successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors hereunder
and the Holders, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
Section 112. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York.
Section 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
(other than a provision of the Securities of any series which specifically
states that such provision shall apply in lieu of this Section)) payment of
interest or principal (and premium, if any) need not be made at such Place of
Payment on such date, but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as if made on the Interest
Payment Date or Redemption Date, or at the Stated Maturity, provided that no
interest shall accrue for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be.
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ARTICLE TWO
Security Forms
Section 201. Forms Generally.
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities. If the form of Securities of any series is established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
Section 202. Form of Face of Security.
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
RAYTHEON COMPANY
--------------------------------------
No._________ $__________
Raytheon Company, a corporation duly organized and existing under the
laws of the State of Delaware (herein called the "Company", which term includes
any successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to , or registered assigns, the principal sum
of __________________ [Dollars] on _____________, ______ [if the Security is to
bear interest prior to Maturity, insert -- , and to pay interest thereon from or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, semi-annually on __________ and ___________ in each year,
commencing _________, at the rate of ___% per
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annum, until the principal hereof is paid or made available for payment [if
applicable, insert -- , and (to the extent that the payment of such interest
shall be legally enforceable) at the rate of __% per annum on any overdue
principal and premium and on any overdue installment of interest]. The interest
so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in such Indenture, be paid to the Person in whose name
this Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest, which shall be the
______ or ______ (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of this series
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert --
The principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of ___% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
default in payment to the date payment of such principal has been made or duly
provided for. Interest on any overdue principal shall be payable on demand. Any
such interest on any overdue principal that is not so paid on demand shall bear
interest at the rate of ____% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
demand for payment to the date payment of such interest has been made or duly
provided for, and such interest shall also be payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable,
insert -- any such] interest on this Security will be made at the office or
agency of the Company maintained for that purpose [in ____________] in such coin
or currency of [the United States of America] [insert other currency, if
applicable] as at the time of payment is legal tender for payment of public and
private debts [if applicable, insert -- ; provided, however, that at the option
of the Company payment of interest may be made by check mailed to the address of
the Person entitled thereto as such address shall appear in the Security
Register].
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
-15-
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
-16-
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
RAYTHEON COMPANY
By:_____________________________
Attest:
- ---------------------
Section 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of July 3, 1995 (herein called the
"Indenture"), between the Company and The Bank of New York, as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and the Holders of
the Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof[, limited in aggregate principal amount to $ ________].
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable, insert --
(1) on ___________ in any year commencing with the year ____ and ending with the
year ____ through operation of the sinking fund for this series at a Redemption
Price equal to 100% of the principal amount, and (2)] at any time on or after
_________, 19__], as a whole or in part, at the election of the Company, at the
following Redemption Prices (expressed as percentages of the principal amount):
If redeemed [on or before ___________, __%, and if redeemed] during the 12-month
period beginning _________ of the years indicated,
Redemption Redemption
Year Price Year Price
---- ---------- ---- ----------
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and thereafter at a Redemption Price equal to ___% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert -- The Securities of this series are subject
to redemption upon not less than 30 days' notice by mail, (1) on _______ in any
year commencing with the year ____ and ending with the year ____ through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [on or
after ____________], as a whole or in part, at the election of the Company, at
the Redemption Prices for redemption otherwise than through operation of the
sinking fund (expressed as percentages of the principal amount) set forth in the
table below: If redeemed during the 12-month period beginning ___________ of the
years indicated,
Redemption Price Redemption Price For
For Redemption Redemption Otherwise
Through Operation Than Through Operation
Year of the Sinking Fund of the Sinking Fund
---- ------------------- ----------------------
and thereafter at a Redemption Price equal to ___% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Date referred to on the face hereof, all as provided in the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to________
redeem any Securities of this series as contemplated by [Clause (2) of] the
preceding paragraph as a part of, or in anticipation of, any refunding operation
by the application, directly or indirectly, of moneys borrowed having an
interest cost to the Company (calculated in accordance with generally accepted
financial practice) of less than ___% per annum.]
[The sinking fund for this series provides for the redemption on
________ in each year beginning with the year ____ and ending with the year
of____ [not less than $_________ ("mandatory sinking fund") and not more than]
$________ aggregate principal
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amount of Securities of this series. Securities of this series acquired or
redeemed by the Company otherwise than through [mandatory] sinking fund payments
may be credited against subsequent [mandatory] sinking fund payments otherwise
required to be made [if applicable, insert -- in the inverse order in which they
become due].]
[If the Security is subject to redemption. insert -- In the event of
redemption of this Security in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert -- This Security is not subject to redemption
prior to maturity.]
[If applicable, insert -- The Indenture contains provisions for
defeasance at any time of [(a)] (the entire indebtedness evidenced by this
Security] [and (b)] [certain restrictive covenants,] [in each case] upon
compliance by the Company with certain conditions set forth therein, which
provisions apply to this Security.]
[If the Security is not an Original Issue Discount Security, insert --
If an Event of Default with respect to Securities of this series shall occur and
be continuing, the principal of the Securities of this series may be declared
due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If
an Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to [-- insert formula for determining the
amount]. Upon payment [if applicable, insert -- (i)] of the amount of principal
so declared due and payable [if applicable, insert -- and (ii) of interest on
any overdue principal and overdue interest (in each case to the extent that the
payment of such interest shall be legally enforceable)], all of the Company's
obligations in respect of the payment of the principal of and interest, if any,
on the Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of all series to be affected (voting as a single class).
The Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of
-19-
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registerable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $ ______ and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
Section 204. Form of Legend for Global Security.
Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, any Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
-20-
"This Security is a Global Security within the meaning of the
indenture hereinafter referred to and is registered in the name of a
Depositary or a nominee thereof. This Security may not be transferred
to, or registered or exchanged for Securities registered in the name
of, any Person other than the Depositary or a nominee thereof and no
such transfer may be registered, except in the limited circumstances
described in the Indenture. Every Security authenticated and delivered
upon registration of transfer of, or in exchange for or in lieu of,
this Security shall be a Global Security subject to the foregoing,
except in such limited circumstances."
Section 205. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
THE BANK OF NEW YORK
-----------------------------
As Trustee
By:
--------------------------
Authorized Officer
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other
series);
30
-21-
(2) any limit upon the aggregate principal amount of the
Securities which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906 or 1107
and except for any Securities which, pursuant to Section 303, are
deemed never to have been authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the
series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest;
(4) the date or dates on which the principal of the Securities
of the series is payable;
(5) the rate or rates at which the Securities of the series
shall bear interest, if any, the date or dates from which such interest
shall accrue, the Interest Payment Dates on which any such interest
shall be payable and the Regular Record Date for any interest payable
on any Interest Payment Date;
(6) the place or places where the principal of and any premium
and interest on Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the series
may be redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices at which and the
terms and conditions upon which Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(10) the currency, currencies or currency units in which
payment of the principal of and any premium and interest on any
Securities of the series shall be payable if other than the currency of
the United States of America and the manner of determining the
equivalent thereof in the currency of the United States of America for
purposes of the definition of "Outstanding" in Section 101;
-22-
(11) if the amount of payments of principal of or any premium
or interest on any Securities of the series may be determined by
reference to an index or formula, the manner in which such amounts
shall be determined;
(12) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the
Company or a Holder thereof, in one or more currencies or currency
units other than that or those in which the Securities are stated to be
payable, the currency, currencies or currency units in which payment of
the principal of and any premium and interest on Securities of such
series as to which such election is made shall be payable, and the
periods within which and the terms and conditions upon which such
election is to be made;
(13) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502;
(14) the application, if any, of either or both of Section
1302 and Section 1303 to the Securities of the series;
(15) whether the Securities of the series shall be issuable in
whole or in part in the form of one or more Global Securities and, in
such case, the Depositary or Depositaries for such Global Security or
Global Securities and any circumstances other than those set forth in
Section 305 in which any such Global Security may be transferred to,
and registered and exchanged for Securities registered in the name of,
a Person other than the Depositary for such Global Security or a
nominee thereof and in which any such transfer may be registered;
(16) if other than as specified in Section 501, the events of
default applicable with respect to the Securities of the series;
(17) if other than as specified in Section 502, the events of
default the occurrence of which would permit the declaration of the
acceleration of maturity pursuant to Section 502;
(18) any other covenant or warranty included for the benefit
of Securities of the series in addition to (and not inconsistent with)
those included in this Indenture for the benefit of Securities of all
series, or any other covenant or warranty included for the benefit of
Securities of the series in lieu of any covenant or warranty included
in this Indenture for the benefit of Securities of all series, or any
provision that any covenant or warranty included in this Indenture for
the benefit of Securities of all series shall not be for the benefit of
Securities of such series, or any combination of such covenants,
warranties or provisions; and
(19) any other term of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted
by Section 901(5)).
-23-
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to the Board Resolution referred to above and (subject to Section 303) set
forth, or determined in the manner provided, in the Officers' Certificate
referred to above or in any such indenture supplemental hereto.
If any of the terms of a series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of such series.
Section 302. Denominations.
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 301. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President or one of its Vice Presidents, under its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. If the
form or terms of the Securities of the series have been established in or
pursuant to one or more Board Resolutions as permitted by Sections 201 and 301,
in authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully protected in
relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 201, that such
form has been established in conformity with the provisions of this
Indenture;
-24-
(b) if the terms of such Securities have been established by
or pursuant to Board Resolution as permitted by Section 301, that such
terms have been established in conformity with the provisions of this
Indenture; and
(c) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature of an Authorized Officer, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 309, for all purposes of this Indenture such Security shall
be deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise
-25-
produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their execution of such
Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and of
a like aggregate principal amount and tenor. Until so exchanged the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series and tenor.
Section 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office a
register (the register maintained in such office and in any other office or
agency of the Company in a Place of Payment being herein sometimes collectively
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Securities and of transfers of Securities. The Trustee is hereby appointed
"Security Registrar" for the purpose of registering Securities and transfers of
Securities as herein provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount and tenor.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations and of
a like aggregate principal amount and tenor, upon surrender of the securities to
be exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
-26-
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to a Holder for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 1103 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
Notwithstanding the foregoing and except as otherwise specified or
contemplated by Section 301, no Global Security shall be exchangeable pursuant
to this Section 305 or Sections 304, 906 and 1107 for Securities registered in
the name of, and no transfer of a Global Security of any series may be
registered to, any Person other than the Depositary for such Security or its
nominee, unless (1) such Depositary (A) notifies the Company that it is
unwilling or unable to continue as Depositary for such Global Security or (B)
ceases to be a clearing agency registered under the Exchange Act, (2) the
Company executes and delivers to the Trustee a Company Order that such Global
Security shall be so exchangeable and the transfer thereof so registerable, or
(3) there shall have occurred and be continuing an Event of Default, or an event
which with notice or lapse of time or both would become an Event of Default,
with respect to the Securities evidenced by such Global Security. Upon the
occurrence in respect of any Global Security of any series of any one or more of
the conditions specified in clause (1), (2) or (3) of the preceding sentence or
such other conditions as may be specified as contemplated by Section 301 for
such series, such Global Security may be exchanged for Securities registered in
the names of, and the transfer of such Global Security may be registered to,
such Persons (including Persons other than the Depositary with respect to such
series and its nominees) as such Depositary shall direct. Notwithstanding any
other provision of this Indenture, any Security authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, any Global
Security shall also be a Global Security and shall bear the legend specified in
Section 204 except for any Security authenticated and delivered in exchange for,
or upon registration of transfer of, a Global Security pursuant to the preceding
sentence.
-27-
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted
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Interest") shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such series and the
date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of Securities of such series at his address as it
appears in the Security Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
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Section 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and any premium
and (subject to Section 307) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Section 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all securities so
delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of as directed by a Company
Order.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
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(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 306 and
(ii) Securities for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 1004) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited
or caused to be deposited with the Trustee as trust funds in trust for
the purpose an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal and any premium and interest to
the date of such deposit (in the case of Securities which have become
due and payable) or to the Stated Maturity or Redemption Date, as the
case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614, and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1004, shall survive.
Section 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1004, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in
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accordance with the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal and any premium and interest for whose
payment such money has been deposited with the Trustee.
ARTICLE FIVE
Remedies
Section 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any particular series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) default in the due and punctual payment of any installment
of interest upon any of the Securities of that series as and when the
same shall become due and payable and continuance of such default for a
period of 30 days; or
(b) default in the due and punctual payment of the principal
of (or premium, if any, on) any of the Securities of that series as and
when the same shall become due and payable either at Maturity, by
declaration as authorized by this Indenture, or otherwise; or
(c) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series; or
(d) failure on the part of the Company duly to observe or
perform any other of the covenants or agreements on the part of the
Company set forth in the Securities of that series or in this Indenture
(other than those set forth exclusively in the terms of Securities of
any series other than that series, or those which have been included in
this Indenture for the benefit of Securities of any series other than
that series) continued for a period of 60 days after there has been
given, by registered or certified mail, to the Company by the Trustee,
or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Securities of that series at the time
Outstanding, a written notice specifying such failure and requiring the
same to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(e) the entry of a decree or order by a court having
jurisdiction in the premises granting relief in respect of the Company
in an involuntary case under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law adjudging
the Company as being bankrupt or insolvent, or approving as properly
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filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under any applicable
Federal or State law, or appointing a receiver, liquidator, custodian,
assignee, trustee, sequestrator (or other similar official) of the
Company, or of any substantial part of its properties, or ordering the
winding up or liquidation of the affairs of the Company, and the
continuance of any such decree or order unstayed and in effect for a
period of 60 consecutive days; or
(f) the institution by the Company of proceedings to be
adjudicated as being bankrupt or insolvent, or the consent by the
Company to the institution of bankruptcy or insolvency proceedings
against it, or the filing by the Company of a petition or answer or
consent seeking reorganization or relief under any applicable Federal
or State bankruptcy, insolvency, reorganization or other similar law,
or the consent by the Company to the filing of any such petition or to
the appointment of a receiver, liquidator, custodian, assignee,
trustee, sequestrator (or other similar official) of the Company, or of
any substantial part of its properties, or the making by the Company of
an assignment for the benefit of creditors, or the admission by the
Company in writing of its inability to pay its debts generally as they
become due, or the taking of corporate action by the Company in
furtherance of any such action; or
(g) any other Event of Default provided with respect to
Securities of that series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
In case one or more of the Events of Default specified in Section 501
shall have occurred and be continuing with respect to any particular series of
Securities, then and in each and every such case, unless the principal of all of
the Securities of that series shall have already become due and payable, either
the Trustee or the Holders of not less than 25% in aggregate principal amount of
the Securities of that series then Outstanding hereunder, by notice in writing
to the Company (and to the Trustee if given by Holders), may declare the
principal or, in the case of Original Issue Discount Securities, such amount of
principal as may be provided for in such Securities, of all the Securities of
that series to be due and payable immediately, and upon any such declaration the
same shall become and shall be immediately due and payable, anything in this
Indenture or in the Securities of that series contained to the contrary
notwithstanding. This provision, however, is subject to the condition that if,
at any time after such principal or such amount of principal, as the case may
be, shall have been so declared due and payable, and before any judgment or
decree for the payment of the moneys due shall have been obtained or entered as
hereinafter provided, the Company shall pay or shall deposit with the Trustee a
sum sufficient to pay all matured installments of interest upon all Securities
of that series and the principal of (and premium, if any, on) any and all
Securities of that series which shall have become due otherwise than by
acceleration (with interest on overdue installments of interest (to the extent
that payment of such interest is enforceable under applicable law) and on such
principal (and premium, if any) at the rate of interest prescribed therefor by
such Securities, to the date of such payment or deposit) and the expenses of the
Trustee, including the reasonable fees of its counsel, and
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any and all defaults under this Indenture with respect to the Securities of the
series, other than the nonpayment of principal of (and premium, if any) and
accrued interest on the Securities of that series which shall have become due by
acceleration shall have been remedied -- then and in every such case the Holders
of a majority in aggregate principal amount of the Securities of that series
then Outstanding, by written notice to the Company and to the Trustee, may waive
all defaults and rescind and annul such declaration and its consequences; but no
such waiver or rescission and annulment shall extend to or shall affect any
subsequent default, or shall impair any right consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon written demand of the Trustee, pay to it, for the benefit
of the Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
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Section 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; provided,
however, the Trustee may vote on behalf of the Holders for the election of a
trustee in bankruptcy or similar official and may be a member of a creditors' or
other similar committee.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607; and
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SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in respect
of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal and any
premium and interest, respectively.
Section 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to Section 307)
any interest on such Security on the Stated Maturity or Maturities expressed in
such Security (or, in the case of redemption,
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on the Redemption Date) and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of such
Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
Section 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
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Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences except a default
(1) in the payment of the principal of or any premium or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company.
Section 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
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ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
Section 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series,
the Trustee shall give the Holders of Securities of such series notice of such
default as and to the extent provided by the Trust Indenture Act; provided,
however, that in the case of any default of the character specified in Section
501(d) with respect to Securities of such series, no such notice to Holders
shall be given until at least 30 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default with respect
to Securities of such series.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate, except that in the case of any such Officers' Certificate
which by
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any provision hereof is specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not it conforms to the requirements of this
Indenture;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon, except that in the case of any such Opinion of Counsel which
by any provision hereof is specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not it conforms to the requirements of this
Indenture;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. The Trustee
or any Authenticating Agent shall not be accountable for the use or application
by the Company of Securities or the proceeds thereof.
Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may
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become the owner or pledgee of Securities and, subject to Sections 608 and 613,
may otherwise deal with the Company with the same rights it would have if it
were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such
other agent.
Section 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
Section 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
Section 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000 and its Corporate Trust
Office in the United States or any State or Territory thereof or the District of
Columbia and subject to supervision or
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examination by Federal or State authority. If such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
Section 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged as being bankrupt or insolvent or a receiver of the Trustee or
of its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
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(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
611, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 611, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series to all
Holders of Securities of such series in the manner provided in Section 106. Each
notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one of more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute
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and deliver an indenture supplemental hereto wherein each successor Trustee
shall accept such appointment and which (1) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
Section 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
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Section 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
Section 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series issued upon original
issue and upon exchange, registration of transfer or partial redemption thereof
or pursuant to Section 306, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a
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termination, or in case at any time such Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be acceptable to the
Company and shall mail written notice of such appointment by first-class mail,
postage prepaid, to all Holders of Securities of the series with respect to
which such Authenticating Agent will serve, as their names and addresses appear
in the Security Register. Any successor Authenticating Agent upon acceptance of
its appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
THE BANK OF NEW YORK
-------------------------------,
As Trustee
By:
----------------------------
As Authenticating Agent
By:
----------------------------
Authorized Officer
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
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(a) semi-annually, not later then June 30 and December 31 in
each year, a list for each series of Securities, in such form as the
Trustee may reasonably require, of the names and addresses of the
Holders of Securities of such series as of the preceding June 15 or
December 15, and
(b) at such other times as the Trustee may request in writing,
within 15 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 10 days
prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar, if it is acting as such.
Section 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar, if it is acting as such. The Trustee may destroy any list furnished
to it as provided in Section 701 upon receipt of a new list so furnished.
(b) The rights of the Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
Section 703. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto. To
the extent that any such report is required by the Trust Indenture Act with
respect to any 12-month period, such report shall cover the 12-month period
ending May 15 and shall be transmitted by the next succeeding July 15.
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
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Section 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company may Consolidate, Etc., Only on Certain Terms.
Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of the Company with or into any other
Person, or successive consolidations or mergers in which the Company or its
successor or successors shall be a party or parties, or shall prevent any
conveyance, transfer or lease of the properties and assets of the Company
substantially as an entirety to any other Person authorized to acquire and
operate the same (with each of the foregoing transactions referred to as a
"Company Sale"); provided, however, (i) that the Person formed by such
consolidation or into which the Company is merged or the Person which acquires
by conveyance or transfer, or which leases, the properties and assets of the
Company substantially as an entirety (the "Successor Company") shall be a
corporation, shall be organized and validly existing under the laws of the
United States of America, any State thereof or the District of Columbia, (ii)
the Company hereby covenants and agrees that, as a condition precedent to any
such consolidation, merger, sale or conveyance, the due and punctual payment of
the principal of (and premium, if any) and interest, if any, on all of the
Securities, according to their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to be
performed by the Company shall be expressly assumed by supplemental indenture
satisfactory in form to the Trustee, executed and delivered to the Trustee, by
the Seccessor Company and (iii) the Company shall not be permitted to effect any
Company Sale if the completion of such Company Sale would create an Event of
Default or an event under this Indenture which, with the passage of time or the
giving of notice or both, would become an Event of Default.
Section 802. Successor Corporation to Be Substituted.
In case of any such Company Sale, such Successor Company shall succeed
to and be substituted for the Company, with the same effect as if it had been
named herein as the Company. Such Successor Company thereupon may cause to be
signed, and may issue either in its own name or in the name of Raytheon Company
or in the name of any corporation which previously shall have become the Company
in accordance with the
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provisions of this Article any or all of the Securities issuable hereunder,
which theretofore shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of such Successor Company instead of the Company
and subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver, any Securities
which previously shall have been signed and delivered by the officers of the
Company to the Trustee for authentication, and any Securities which such
Successor Company thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All of the Securities of a particular series so issued
shall in all respects have the same legal rank and benefit under this Indenture
as the Securities of such series theretofore or thereafter issued in accordance
with the terms of this Indenture as though all of such Securities had been
issued at the date or the execution hereof.
Nothing contained in this Indenture or in any of the Securities shall
prevent the Company from merging into itself any other Person or acquiring by
purchase or otherwise all or any part of the property of any other Person.
Section 803. Opinion of Counsel to Be Given Trustee.
The Trustee, subject to Sections 601 and 603, may receive an Opinion of
Counsel as conclusive evidence that any such consolidation, merger, sale or
conveyance and any such assumption complies with the provisions of this Article.
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(3) to add any additional Events of Default; or
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(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate
the issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons, or
to permit or facilitate the issuance of Securities in uncertificated
form; or
(5) to add to, change or eliminate any of the provisions of
this Indenture in respect of one or more series of Securities, provided
that any such addition, change or elimination (i) shall neither (A)
apply to any Security of any series created prior to the execution of
such supplemental indenture and entitled to the benefit of such
provision nor (B) modify the rights of the Holder of any such Security
with respect to such provision or (ii) shall become effective only when
there is no such Security Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series
as permitted by Sections 201 and 301; or
(8) to establish the terms upon which the Securities of one or
more series may be convertible into, or exchangeable for, shares of
common stock or preferred stock or other securities of the Company; or
(9) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611(b); or
(10) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action
pursuant to this clause (10) shall not adversely affect the interests
of the Holders of Securities of any series in any material respect.
Section 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of all series affected by such
supplemental indenture (voting as a single class), by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of each such
series under this Indenture; provided, however that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby,
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(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, or change any Place of Payment where, or the
coin or currency in which, any Security or any premium or interest
thereon is payable or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section or Section
513, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each Outstanding Security affected
thereby, provided, however, that this Clause shall not be deemed to
require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section, or
the deletion of this proviso, in accordance with the requirements of
Sections 611(b) and 901(9).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
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Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
Section 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for outstanding Securities of such series.
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay or cause to be paid the
principal of and any premium and interest on the Securities of that series in
accordance with the terms of the Securities and this Indenture. Interest on
Securities shall be payable without presentment of such Securities, and only to
the registered Holders thereof determined as provided in Section 307. The
Company shall have the right to require a Holder, in connection with the payment
of the principal of and any premium and interest on a Security, to present at
the office or agency of the Company at which such payment is made a certificate,
in such form as the Company may from time to time prescribe, to enable the
Company to determine its duties and liabilities with respect to any taxes,
assessments or governmental charges which it may be required to deduct or
withhold therefrom under any present or future law of the United States of
America or of any State, County, municipality or taxing or withholding authority
therein, and the Company shall be entitled to determine its duties and
liabilities with respect to such deduction or withholding on the basis of
information contained in such certificate or, if no such certificate shall be so
presented, on the basis of any presumption created by any such law, and shall be
entitled to act in accordance with such determination.
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Section 1002. Maintenance of Office or Agency.
So long as any Securities remain outstanding, the Company will maintain
in each Place of Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
Section 1003. Vacancy in the Office of Trustee.
The Company, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Article Six, a
Trustee, so that there shall at all times be a Trustee hereunder.
Section 1004. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of or any
premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
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The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will (i) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (ii) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, The City of New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
Section 1005. Liens.
Except as hereinafter provided in this Section 1005, so long as the
Securities of any series are Outstanding, the Company will not, and will not
permit any Significant Subsidiary to, create, incur, assume or permit to exist
any Lien on any property or assets (including stock or other securities of any
person, including any Significant Subsidiary) now owned or hereafter acquired by
it or on any income or revenues or rights in respect of any thereof, without
making effective provision, and the Company convenants that in any such case it
will make, or cause the applicable Significant Subsidiary to make, effective
provision, whereby the Securities of any series then or thereafter Outstanding
shall be secured by such
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Lien equally and ratably with any and all other obligations and indebtedness
thereby secured, so long as any such other obligations and indebtedness shall be
so secured.
Nothing in this Section 1005 shall be construed to prevent the Company
or any Significant Subsidiary from creating, incurring, assuming or permitting
to exist any Lien of the following character, to all of which the provisions of
the first paragraph of this Section 1005 shall not be applicable:
(a) Liens on property or assets of the Company and its Subsidiaries
existing on the date hereof, provided that such Liens shall secure only those
obligations which they secure as of the date hereof;
(b) any Lien existing on any property or asset prior to the acquisition
thereof by the Company or any Subsidiary, provided that (i) such Lien is not
created in contemplation of or in connection with such acquisition and (ii) such
Lien does not apply to any other property or assets of the Company or any
Subsidiary;
(c) Liens for taxes not yet due or which are being contested in good
faith by appropriate proceedings and with respect to which adequate reserves, to
the extent required by GAAP, have been set aside;
(d) carriers', warehousemen's, mechanics', materialsmen's, repairmen's
or other like Liens arising in the ordinary course of business and securing
obligations that are not due and payable or which are being contested in good
faith by appropriate proceedings and with respect to which adequate reserves, to
the extent required by GAAP, have been set aside;
(e) pledges and deposits made in the ordinary course of business in
compliance with workmen's compensation, unemployment insurance and other social
security laws or regulations;
(f) deposits to secure the performance of bids, trade contracts (other
than for Indebtedness), leases (other than capital leases), statutory
obligations, surety and appeal bonds, advance payment bonds, performance bonds
and other obligations of a like nature incurred in the ordinary course of
business;
(g) zoning restrictions, easements, rights-of-way, restrictions on use
of real property and other similar encumbrances incurred in the ordinary course
of business which, in the aggregate, are not substantial in amount and do not
materially detract from the value of the property subject thereto or interfere
with the ordinary conduct of the business of the Company or any of its
Subsidiaries;
(h) Liens upon any property acquired, constructed or improved by the
Company or any Subsidiary which are created or incurred within 360 days of such
acquisition, construction or improvement to secure or provide for the payment of
any part of the purchase price of such property or the cost of such construction
or improvement, including
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carrying costs (but no other amounts), provided that any such Lien shall not
apply to any other property of the Company or any Subsidiary;
(i) Liens on the property or assets of any Subsidiary in favor of the
Company;
(j) extensions, renewals and replacements of Liens referred to in
paragraphs (a) through (i) of this Section 1005, provided that any such
extension, renewal or replacement Lien shall be limited to the property or
assets covered by the Lien extended, renewed or replaced and that the
obligations secured by any such extension, renewal or replacement Lien shall be
in an amount not greater than the amount of the obligations secured by the Lien
extended, renewed or replaced;
(k) any Lien, of the type described in clause (iii) of the definition
of the term "Lien", on securities imposed pursuant to an agreement entered into
for the sale or disposition of such securities pending the closing of such sale
or disposition; provided such sale or disposition is otherwise permitted under
this Indenture;
(l) Liens arising in connection with any Permitted Receivables Program
(to the extent the sale by the Company or the applicable Subsidiary of its
accounts receivable is deemed to give rise to a Lien in favor of the purchaser
thereof in such accounts receivable or the proceeds thereof);
(m) Liens on the capital stock or assets of any Subsidiary that is not
a Significant Subsidiary; and
(n) Liens to secure Indebtedness if, immediately after the grant
thereof, the aggregate amount of all Indebtedness secured by Liens that would
not be permitted but for this clause (n) does not exceed 15% of the
Stockholders' Equity as shown on the most recent consolidated balance sheet of
the Company and the Subsidiaries filed with the Securities and Exchange
Commission pursuant to the Exchange Act.
Section 1006. Limitation on Sale and Leaseback Transactions.
So long as the Securities of any Series are Outstanding, the Company
will not, and will not permit any Significant Subsidiary to, enter into any
arrangement, directly or indirectly, with any Person whereby it shall sell or
transfer any Principal Property, whether now owned or hereafter acquired, and
thereafter rent back or lease such Principal Property; provided, however, that
this Section 1006 shall not prevent the Company or any Significant Subsidiary
from;
(a) entering into any transaction not involving a lease with a term of
more than three (3) years;
(b) entering into any transaction to the extent the Lien on any such
property subject to such sale and leaseback would be permitted under Section
1005;
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(c) entering into any transaction for the sale and leaseback of any
property if such lease is entered into within 180 days after the later of the
acquisition, completion of construction or commencement of operation of such
property; and
(d) entering into any sale and leaseback transaction if the Company or
such Significant Subsidiary within 120 days after the effective date of the
lease, applies an amount equal to the greater of (i) the net proceeds of the
sale of the property leased in such sale and leaseback transaction or (ii) the
fair market value (as determined in good faith by the Board of Directors) of
such property on any date within 90 days prior to the effective date of the
lease, to the retirement of Funded Debt of the Company or any Significant
Subsidiary; provided, however, that the amount to be applied to the retirement
of Funded Debt of the Company or a Significant Subsidiary shall be reduced by:
(1) the principal amount of any Securities surrendered to the
Trustee by the Company for cancellation within 120 days after the
effective date of the lease, and
(2) the principal amount of Funded Debt other than Securities
voluntarily retired by the Company within 120 days after the effective
date of the lease; and
provided further that no retirement referred to in this clause (d) may be
effected by payment on the final maturity date or pursuant to any mandatory
sinking fund or prepayment provision.
Section 1007. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
Section 1008. Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises to carry on its business;
provided, however, that nothing in this Section 1008 shall prevent (i) any
consolidation or merger of the Company, or any conveyance, transfer or lease of
its property and assets substantially as an entirety, permitted by Article
Eight, or (ii) the liquidation or dissolution of the Company after such
conveyance, transfer or lease of its property and assets substantially as an
entirety permitted by Article Eight.
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ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by a Board Resolution. In case of any redemption at the election of the Company
of less than all the Securities of any series, the Company shall, at least 60
days prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date, of the principal amount of Securities of such series to be redeemed and,
if applicable, of the tenor of the Securities to be redeemed. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed in
accordance with this Article (unless all of the Securities of such series and of
a specified tenor are to be redeemed), the particular Securities to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the
Trustee, from the Outstanding Securities of such series not previously called
for redemption, by such method as the Trustee shall deem fair and appropriate
and which may provide for the selection for redemption of portions (equal to the
minimum authorized denomination for Securities of that series or any integral
multiple thereof) of the principal amount of Securities of such series of a
denomination larger than the minimum authorized denomination for Securities of
that series. If less than all of the Securities of such series and of a
specified tenor are to be redeemed, the particular Securities to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the
Trustee from the Outstanding Securities of such series and specified tenor not
previously called for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities
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redeemed or to be redeemed only in part, to the portion of the principal amount
of such Securities which has been or is to be redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and accrued interest, if any,
(3) if less than all the Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption of any Securities, the principal amounts) of the particular
securities to be redeemed,
(4) that on the Redemption Date the Redemption Price and
accrued interest, if any, will become due and payable upon each such
Security to be redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price and accrued interest,
if any, and
(6) that the redemption is for a sinking fund, if such is the
case.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
Section 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1004) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the
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payment of the Redemption Price and accrued interest) such Securities shall
cease to bear interest. Upon surrender of any such Security for redemption in
accordance with said notice, such Security shall be paid by the Company at the
Redemption Price, together with accrued interest to the Redemption Date;
provided, however, that, unless otherwise specified as contemplated by Section
301, installments of interest whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, required as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
Section 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Security Registrar
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder thereof or his attorney duly authorized in writing), and the Company
shall execute, and the Security Registrar shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities of
the same series and of like tenor, of any authorized denomination as requested
by such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
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Section 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 90 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 and will also deliver to the Security Registrar any
Securities to be so delivered. Not less than 60 days before each such sinking
fund payment date the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 1103 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 1104. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 1105, 1106 and 1107.
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Applicability of Article; Company's Option to
Effect Defeasance or Covenant Defeasance.
If pursuant to Section 301 provision is made for either or both of (a)
defeasance of the Securities of a series under Section 1302 or (b) covenant
defeasance of the Securities of a series under Section 1303, then the provisions
of such Section or Sections, as the case may be, together with the other
provisions of this Article Thirteen, shall be applicable to the Securities of
such series, and the Company may at its option by Board Resolution, at any time,
with respect to the Securities of such series, elect to have either Section 1302
(if applicable) or Section 1303 (if applicable) be applied to the Outstanding
Securities of such series upon compliance with the conditions set forth below in
this Article Thirteen.
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Section 1302. Defeasance and Discharge.
Upon the Company's exercise of the above option applicable to this
Section, the Company shall be deemed to have been discharged from its
obligations with respect to the Outstanding Securities of such series on and
after the date the conditions precedent set forth below are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Company shall be deemed to have paid and discharged the entire indebtedness
represented by the Outstanding Securities of such series and to have satisfied
all its other obligations under such Securities and this Indenture insofar as
such Securities are concerned (and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of outstanding Securities of such series to
receive, solely from the trust fund described in Section 1305 as more fully set
forth in such Section, payments of the principal of (and premium, if any) and
interest on such Securities when such payments are due, (B) the Company's
obligations with respect to such Securities under Sections 304, 305, 306, 1002
and 1004 and such obligations as shall be ancillary thereto, (C) the rights,
powers, trusts, duties, immunities and other provisions in respect of the
Trustee hereunder and (D) this Article Thirteen. Subject to compliance with this
Article Thirteen, the Company may exercise its option under this Section 1302
notwithstanding the prior exercise of its option under Section 1303 with respect
to the Securities of such series. Following a defeasance, payment of the
Securities of such series may not be accelerated because of an Event of Default.
Section 1303. Covenant Defeasance.
Upon the Company's exercise of the above option applicable to this
Section and after the date the conditions set forth below are satisfied, the
Company shall be released from its obligations under Section 1005 and Section
1006 and under any additional or substitute covenant established with respect to
the Securities of any series pursuant to Section 301(18) if the Securities of
such series have been determined pursuant to Section 301 to be subject to this
provision (with Section 1005, Section 1006 and any such additional or substitute
covenant referred to herein as a "Defeasable Covenant"), and the occurrence of
an event specified in Section 501(d) with respect to such Defeasable Covenant
shall not be deemed to be an Event of Default with respect to the Outstanding
Securities of such series (hereinafter, "covenant defeasance"). For this
purpose, such covenant defeasance means that, with respect to the outstanding
Securities of such series, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
Defeasable Covenant whether directly or indirectly by reason of any reference
elsewhere herein to any such Defeasable Covenant or by reason of any reference
in any such Defeasable Covenant to any other provision herein or in any other
document, but the remainder of this Indenture and such Securities shall be
unaffected thereby. Following a covenant defeasance, payment of the Securities
of such series may not be accelerated because of an Event of Default specified
in Section 501(e) or Section 501(f) or by reference to Section 501(d) and such
Defeasable Covenant.
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Section 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions precedent to application of
either Section 1302 or Section 1303 to the outstanding Securities of such
series:
(1) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 609 who shall agree to comply with the
provisions of this Article Thirteen applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to the benefit of the
Holders of such Securities, (A) money in an amount, or (B) U.S.
Government Obligations which through the scheduled payment of principal
and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment,
money in an amount, or (C) a combination thereof, sufficient, without
reinvestment, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or other qualifying trustee) to pay and
discharge, the principal of (and premium, if any) and interest on the
outstanding Securities of such series on the Maturity of such
principal, premium, if any, or interest and any mandatory sinking fund
payments or analogous payments applicable to the Outstanding Securities
of such series on the due dates thereof. Before such a deposit the
Company may make arrangements satisfactory to the Trustee for the
redemption of Securities at a future date or dates in accordance with
Article Eleven, which shall be given effect in applying the foregoing.
For this purpose, "U.S. Government Obligations" means securities that
are (x) direct obligations of the United States of America for the
payment of which its full faith and credit is pledged or (y)
obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America the payment
of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act of 1933, as amended) as custodian
with respect to any such U.S. Government Obligation or a specific
payment of principal of or interest on any such U.S. Government
Obligation held by such custodian for the account of the holder of such
depository receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount
received by the custodian in respect of the U.S. Government Obligation
or the specific payment of principal of or interest on the U.S.
Government Obligation evidenced by such depository receipt.
(2) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to the
Securities of such series shall have occurred and be continuing (A) on
the date of such deposit or (B) insofar as subsections 501(e) and (f)
are concerned, at any time during the period ending on the 91st day
after the date of such deposit or, if longer, ending on the day
following the
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expiration of the longest preference period applicable to the Company
in respect of such deposit (it being understood that the condition in
this Clause (B) shall not be deemed satisfied until the expiration of
such period).
(3) Such defeasance or covenant defeasance shall not (A) cause
the Trustee for the Securities of such series to have a conflicting
interest as defined in Section 608 or for purposes of the Trust
Indenture Act with respect to any securities of the Company or (B)
result in the trust arising from such deposit to constitute, unless it
is qualified as, a regulated investment company under the Investment
Company Act of 1940, as amended.
(4) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, this Indenture
or any other agreement or instrument to which the Company is a party or
by which it is bound.
(5) Such defeasance or covenant defeasance shall not cause any
Securities of such series then listed on any registered national
securities exchange under the Exchange Act to be delisted.
(6) In the case of an election under Section 1302, the Company
shall have delivered to the Trustee an opinion of Counsel stating that
(x) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (y) since the date of this
Indenture there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of the outstanding Securities of such
series will not recognize income, gain or loss for Federal income tax
purposes as a result of such defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such defeasance had not occurred.
(7) In the case of an election under Section 1303, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the Outstanding Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a
result of such covenant defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not
occurred.
(8) Such defeasance or covenant defeasance shall be effected
in compliance with any additional terms, conditions or limitations
which may be imposed on the Company in connection therewith pursuant to
Section 301.
(9) The Company shall have paid, or provided for the payment
of, the fees and expenses of the Trustee payable pursuant to Section
607.
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(10) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance
under Section 1302 or the covenant defeasance under Section 1303 (as
the case may be) have been complied with.
Section 1305. Deposited Money and U.S. Government
Obligations to Be Held in Trust;
Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1004, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee -- collectively, for purposes of
this Section 1305, the "Trustee") pursuant to Section 1304 in respect of the
Outstanding Securities of such series shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any Paying Agent (but not
including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal (and premium, if any) and interest, but such
money need not be segregated from other funds except to the extent required by
law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the money or U.S. Government
Obligations deposited pursuant to Section 1304 or the principal and interest
received in respect thereof.
Anything herein to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon Company Request any money
or U.S. Government Obligations held by it as provided in Section 1304 which, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect an equivalent defeasance or covenant defeasance.
Section 1306. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 1305 by reason of any order or judgment or any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under the Securities of such series
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article Thirteen until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 1305; provided,
however, that if the Company makes any payment of principal of (and premium, if
any) or interest on any such Security following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money held by the Trustee or
the Paying Agent.
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This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
RAYTHEON COMPANY
By:
-------------------------
Name:
Title:
Attest:
- --------------------
THE BANK OF NEW YORK
By:
-------------------------
Name:
Title:
Attest:
- --------------------
COMMONWEALTH OF MASSACHUSETTS )
) ss.:
Lexington COUNTY OF MIDDLESEX )
-66-
On the _______day of July, 1995, before me personally came
______________, to me known, who, being by as duly sworn, did depose and say
that he is ______________ of Raytheon Company, one of the corporations described
in and which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
-----------------------
STATE OF NEW YORK )
) ss.:
COUNTY OF _______ )
On the _________ day of July, 1995, before me personally came
_____________, to me known, who, being by me duly sworn, did depose and say that
he is a ______________________ of The Bank of New York, a bank described in and
which executed the foregoing instrument; that he knows the seal of said
association; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
association, and that he signed his name thereto by like authority.
-----------------------
Exhibit 4.5
RAYTHEON COMPANY
TO
THE BANK OF NEW YORK,
Trustee
-----------------------
SUBORDINATED DEBT SECURITIES
-----------------------
INDENTURE
Dated as of July 3, 1995
-----------------------
Raytheon Company
Certain Sections of this Indenture relating to
Sections 310 through 318, inclusive, of the
Trust Indenture Act of 1939:
Trust Indenture Indenture
Act Section Section
- --------------- ---------
Section 310 (a)(1)............................................ 609
(a)(2)............................................ 609
(a)(3)............................................ Not Applicable
(a)(4)............................................ Not Applicable
(a)(5)............................................ 609
(b)............................................... 608, 610
(c)............................................... Not Applicable
Section 311 (a)............................................... 613
(b)............................................... 613
Section 312 (a)............................................... 701, 702(a)
(b)............................................... 702(b)
(c)............................................... 702(c)
Section 313 (a)............................................... 703(a)
(b)............................................... 703(a)
(c)............................................... 703(a)
(d)............................................... 703(b)
Section 314 (a)(1)............................................ 704
(a)(2)............................................ 704
(a)(3)............................................ 704
(a)(4)............................................ 1007, 102
(b)............................................... Not Applicable
(c)(1)............................................ 102
(c)(2)............................................ 102
(c)(3)............................................ Not Applicable
(d)............................................... Not Applicable
(e)............................................... 102
Section 315 (a)............................................... 601
(b)............................................... 602
(c)............................................... 601
(d)............................................... 601, 603
(e)............................................... 514
Section 316 (a)............................................... 101
(a)(1)(A)......................................... 512
(a)(1)(B)......................................... 512
(a)(2)(B)......................................... 513
(a)(2)............................................ Not Applicable
(b)............................................... 508
(c)............................................... 104(c)
Section 317 (a)(1)............................................ 503
(a)(2)............................................ 504
(b)............................................... 1004
Section 318 (a)............................................... 107
TABLE OF CONTENTS
Page
PARTIES 1
RECITALS OF THE COMPANY 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions
Act. . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . 2
Affiliate; control. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent. . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Commission. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Request; Company Order. . . . . . . . . . . . . . . . . . . . . 3
Company Sale. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Corporate Trust Office. . . . . . . . . . . . . . . . . . . . . . . . . 3
Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Defaulted Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Defeasable Covenant . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Depositary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Event of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Exchange Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Funded Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
GAAP. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Global Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Holder. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . 5
Lien. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Maturity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . 5
Opinion of Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Original Issue Discount Security. . . . . . . . . . . . . . . . . . . . 5
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Paying Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
- -------------
NOTE: This table of contents shall not, for any purpose, be deemed to be part
of the Indenture.
-ii-
Page
Permitted Receivables Program . . . . . . . . . . . . . . . . 6
Person. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Place of Payment. . . . . . . . . . . . . . . . . . . . . . . 7
Predecessor Security. . . . . . . . . . . . . . . . . . . . . 7
Principal Property. . . . . . . . . . . . . . . . . . . . . . 7
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . 7
Redemption Price. . . . . . . . . . . . . . . . . . . . . . . 7
Regular Record Date . . . . . . . . . . . . . . . . . . . . . 7
Responsible Officer . . . . . . . . . . . . . . . . . . . . . 7
Securities. . . . . . . . . . . . . . . . . . . . . . . . . . 8
Security Register; Security . . . . . . . . . . . . . . . . . 8
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . 8
Significant Subsidiary. . . . . . . . . . . . . . . . . . . . 8
Special Record Date . . . . . . . . . . . . . . . . . . . . . 8
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . 8
Stockholders' Equity. . . . . . . . . . . . . . . . . . . . . 8
Subsidiary. . . . . . . . . . . . . . . . . . . . . . . . . . 9
Successor Company . . . . . . . . . . . . . . . . . . . . . . 9
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . 9
Vice President. . . . . . . . . . . . . . . . . . . . . . . . 9
Yield to Maturity . . . . . . . . . . . . . . . . . . . . . . 9
Section 102. Compliance Certificates and Opinions. . . . . . . . . . . . . 9
Section 103. Form of Documents Delivered to Trustee. . . . . . . . . . . . 10
Section 104. Acts of Holders; Record Dates . . . . . . . . . . . . . . . . 10
Section 105. Notices, Etc., to Trustee and Company . . . . . . . . . . . . 12
Section 106. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . 12
Section 107. Conflict with Trust Indenture Act . . . . . . . . . . . . . . 13
Section 108. Effect of Headings and table of Contents. . . . . . . . . . . 13
Section 109. Successors and Assigns. . . . . . . . . . . . . . . . . . . . 13
Section 110. Separability Clause . . . . . . . . . . . . . . . . . . . . . 13
Section 111. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . 13
Section 112. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 113. Legal Holidays. . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . 14
Section 202. Form of Face of Security. . . . . . . . . . . . . . . . . . . 15
Section 203. Form of Reverse of Security of Authentication . . . . . . . . 17
- ---------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
-iii-
Page
Section 204. Form of Legend for Global Securities. . . . . . . . . . . . . 21
Section 205. Form of Trustee's Certificate . . . . . . . . . . . . . . . . 21
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series. . . . . . . . . . . . . 22
Section 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 303. Execution, Authentication, Delivery and Dating. . . . . . . . 25
Section 304. Temporary Securities. . . . . . . . . . . . . . . . . . . . . 26
Section 305. Registration, Registration of Transfer and Exchange . . . . . 27
Section 306. Mutilated, Destroyed, Lost and Stolen Securities. . . . . . . 29
Section 307. Payment of Interest; Interest Rights Preserved. . . . . . . . 29
Section 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . 31
Section 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 310. Computation of Interest . . . . . . . . . . . . . . . . . . . 31
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture . . . . . . . . . . . 31
Section 402. Application of Trust Money. . . . . . . . . . . . . . . . . . 33
ARTICLE FIVE
REMEDIES
Section 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . 33
Section 502. Acceleration of Maturity; Rescission and Annulment. . . . . . 34
Section 503. Collection of Indebtedness and
Suits for Enforcement by Trustee. . . . . . . . . . . . . . . 35
Section 504. Trustee May File Proofs of Claim. . . . . . . . . . . . . . . 36
Section 505. Trustee May Enforce Claims
Without Possession of Securities. . . . . . . . . . . . . . . 36
Section 506. Application of Money Collected. . . . . . . . . . . . . . . . 37
Section 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . 37
Section 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest . . . . . . . . . . . . . . . 38
Section 509. Restoration of Rights and Remedies. . . . . . . . . . . . . . 38
- ---------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
-iv-
Page
----
Section 510. Rights and Remedies Cumulative.............................. 38
Section 511. Delay or Omission Not Waiver................................ 39
Section 512. Control by Holders.......................................... 39
Section 513. Waiver of Past Defaults..................................... 39
Section 514. Undertaking for Costs....................................... 40
Section 515. Waiver of Stay or Extension Laws............................ 40
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities......................... 40
Section 602. Notice of Defaults.......................................... 40
Section 603. Certain Rights of Trustee................................... 41
Section 604. Not Responsible for Recitals or Issuance of Securities...... 42
Section 605. May Hold Securities......................................... 42
Section 606. Money Held in Trust......................................... 42
Section 607. Compensation and Reimbursement.............................. 43
Section 608. Disqualification; Conflicting Interests..................... 43
Section 609. Corporate Trustee Required; Eligibility..................... 43
Section 610. Resignation and Removal; Appointment of Successor........... 44
Section 611. Acceptance of Appointment by Successor...................... 45
Section 612. Merger, Conversion, Consolidation or
Succession to Business...................................... 46
Section 613. Preferential Collection of Claims Against Company........... 47
Section 614. Appointment of Authenticating Agent......................... 47
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names
and Addresses of Holders.................................... 49
Section 702. Preservation of Information; Communications to Holders...... 49
Section 703. Reports by Trustee.......................................... 49
Section 704. Reports by Company.......................................... 50
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
- ---------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
-v-
Page
----
Section 801. Company May Consolidate, Etc.,
Only on Certain Terms..................................... 50
Section 802. Successor Corporation to be Substituted................... 51
Section 803. Opinion of Counsel to Be Given Trustee.................... 51
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without
Consent of Holders........................................ 52
Section 902. Supplemental Indentures with Consent of Holders........... 53
Section 903. Execution of Supplemental Indentures...................... 54
Section 904. Effect of Supplemental Indentures......................... 54
Section 905. Conformity with Trust Indenture Act....................... 55
Section 906. Reference in Securities to Supplemental Indentures........ 55
Section 907. Subordination Unimpaired.................................. 55
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest................ 55
Section 1002. Maintenance of Office or Agency........................... 56
Section 1003. Vacancy in the Office of Trustee.......................... 56
Section 1004. Money for Securities Payments to Be Held in Trust......... 56
Section 1005. Liens..................................................... 58
Section 1006 Limitation on Sale and Leaseback Transactions............. 60
Section 1007. Statement by Officers as to Default....................... 61
Section 1008. Existence................................................. 61
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.................................. 61
Section 1102. Election to Redeem; Notice to Trustee..................... 61
Section 1103. Selection by Trustee of Securities to Be Redeemed......... 62
Section 1104. Notice of Redemption...................................... 62
Section 1105. Deposit of Redemption Price............................... 63
Section 1106. Securities Payable on Redemption Date..................... 63
- ---------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
-vi-
Page
----
Section 1107. Securities Redeemed in Part.............................. 64
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article................................. 64
Section 1202. Satisfaction of Sinking Fund
Payments with Securities................................. 64
Section 1203. Redemption of Securities for Sinking Fund................ 65
ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES
Section 1301. Securities Subordinate to Senior Indebtedness............ 65
Section 1302. Payment Over of Proceeds Upon Dissolution, Etc........... 65
Section 1303. Prior Payment to Senior Indebtedness Upon
Acceleration of Securities............................... 66
Section 1304. No Payment When Senior Indebtedness In Default........... 67
Section 1304. Payment Permitted if No Default.......................... 68
Section 1306. Subrogation to Rights of Holders of Senior
Indebtedness............................................. 68
Section 1307. Provisions Solely to Define Relative Rights.............. 69
Section 1308. Trustee to Effectuate Subordination...................... 69
Section 1309. No Waiver of Subordination Provisions.................... 69
Section 1310. Notice to Trustee........................................ 70
Section 1311. Reliance on Judicial Order or Certificate
of Liquidating Agent..................................... 71
Section 1312. Trustee Not Fiduciary for Holders of
Senior Indebtedness...................................... 71
Section 1313. Rights of Trustee as Holder of Senior
Indebtedness; Preservation of Trustee's Rights........... 71
Section 1314. Article Applicable to Paying Agents...................... 71
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 1401. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance........................ 72
- ---------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
-vii-
Page
----
Section 1402. Defeasance and Discharge................................. 72
Section 1403. Covenant Defeasance...................................... 73
Section 1404. Conditions to Defeasance or Covenant Defeasance.......... 73
Section 1405. Deposited Money and U.S. Government Obligations
to be Held in Trust;..................................... 76
Section 1406. Reinstatement............................................ 76
TESTIMONIUM............................................................... 77
SIGNATURES AND SEALS...................................................... 77
ACKNOWLEDGMENTS........................................................... 78
- ---------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
INDENTURE, dated as of July 3, 1995, between Raytheon Company, a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), having its principal offices at 141 Spring
Street, Lexington, Massachusetts 02173, and The Bank of New York, a bank duly
organized and existing under the laws of the State of New York, as Trustee
(herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
subordinated debentures, notes or other evidences of indebtedness (herein called
the "Securities"), to be issued in one or more series as in this Indenture
provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSTH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
-2-
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted at the date of
such computation; and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies or such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the term "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that board or any directors or officers of
the Company to whom such board of directors shall have delegated its authority
to act hereunder.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
-3-
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or, if at any time after
the execution of this instrument such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President or
a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary, and delivered to the Trustee.
"Company Sale" has the meaning specified in Section 801.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered.
"corporation" means a corporation, association, company, joint-stock
company or business trust.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasable Covenant" has the meaning specified in Section 1403.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, the Person designated as Depositary for such series by the Company
pursuant to Section 301, which Person shall be a clearing agency registered
under the Exchange Act; and if at any time there is more than one such Person,
"Depositary", as used with respect to the Securities of any series, shall mean
the Depositary with respect to the Securities of such series.
-4-
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 as it may be
amended and any successor act thereto.
"Funded Debt" of any Person means all Indebtedness of such Person that
will mature, pursuant to a mandatory sinking fund or prepayment provision or
otherwise, and all installments of Indebtedness that will fall due, more than
one year from the date of determination. In calculating the maturity of any
Indebtedness, there shall be included the term of any unexercised right of the
debtor to renew or extend such Indebtedness existing at the time of
determination.
"GAAP" means generally accepted accounting principles applied on a
consistent basis.
"Global Security" means a Security bearing the legend prescribed in
Section 204 (or such legend as may be specified as contemplated by Section 301
for such Securities) evidencing all or part of a series of Securities,
authenticated and delivered to the Depositary for such series or its nominee,
and registered in the name of such Depositary or nominee.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indebtedness" of any Person shall mean, as at any date of
determination, all indebtedness (including capitalized lease obligations) of
such Person and its consolidated subsidiaries at such date that would be
required to be included as a liability on a consolidated balance sheet
(excluding the footnotes thereto) of such Person prepared in accordance with
GAAP.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument, and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 301.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
-5-
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Lien" means, with respect to any asset of any Person, (i) any
mortgage, deed of trust, lien, pledge, encumbrance, charge or security interest
in or on such asset, (ii) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (iii) in the case of securities that
constitute assets of such Person, any purchase option, call or similar right of
a third party with respect to such securities.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or a Vice President, Chief Financial Officer or
Controller and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Company, and delivered to the Trustee. One of the
officers signing an Officers' Certificate given pursuant to Section 1005 shall
be the principal executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided that, if
such Securities are to be redeemed, notice of such redemption has
-6-
been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(iii) Securities as to which defeasance has been effected
pursuant to Section 1402; and
(iv) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (i) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity
thereof pursuant to Section 502, (ii) the principal amount of a Security
denominated in one or more foreign currencies or currency units shall be the
U.S. dollar equivalent, determined in the manner provided as contemplated by
Section 301 on the date of original issuance of such Security, of the principal
amount (or, in the case of an Original Issue Discount Security, the U.S. dollar
equivalent on the date of original issuance of such security of the amount
determined as provided in (i) above) of such Security, and (iii) Securities
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor shall be disregarded and deemed not to
be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities which the Trustee knows to be so
owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Permitted Receivables Program" means any receivables securitization
program pursuant to which the Company or any of the Subsidiaries sells accounts
receivable to any non-Affiliate in a "true sale" transaction; provided, however,
that any related indebtedness incurred to finance the purchase of such accounts
receivable is not includible
-7-
on the balance sheet (excluding the footnotes thereto) of the Company or any
Subsidiary in accordance with GAAP and applicable regulations of the Securities
and Exchange Commission.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of and any premium and
interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Property" means, (i) the Company's principal office building
and (ii) any manufacturing plant or principal research facility of the Company
or any Significant Subsidiary which is located within the United States of
America or Canada, except any such principal office building, plant or facility
which the Board of Directors by resolution declares is not of material
importance to the total business conducted by the Company and its Subsidiaries
as an entirety.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means any
officer in the Corporate Trust Office of the Trustee or any other officer of the
Trustee customarily performing functions similar to those performed by any of
the above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
-8-
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" means the principal of (and premium, if any) and
interest on (a) all indebtedness of the Company for money borrowed other than
the Securities, and any other indebtedness of the Company represented by a note,
bond, debenture or other similar evidence of indebtedness (including
indebtedness of others guaranteed by the Company), in each case whether
outstanding on the date of this Indenture or thereafter created, incurred or
assumed and (b) amendments, renewals, extensions, modifications and refundings
of any such indebtedness, unless in any case in the instrument creating or
evidencing any such indebtedness or pursuant to which the same is outstanding it
is provided that such indebtedness is not superior in right of payment to the
Securities. For the purposes of this definition, "indebtedness for money
borrowed" when used with respect to the Company means (i) any obligation of, or
any obligation guaranteed by, the Company for the repayment of borrowed money,
whether or not evidenced by bonds, debentures, notes or other written
instruments, (ii) any deferred payment obligation of, or any such obligation
guaranteed by, the Company for the payment of the purchase price of property or
assets evidenced by a note or similar instrument, and (iii) any obligation of,
or any such obligation guaranteed by, the Company for the payment of rent or
other amounts under a lease of property or assets which obligation is required
to be classified and accounted for as a capitalized lease on the balance sheet
of the Company under generally accepted accounting principles.
"Significant Subsidiary" means, at any time, any Subsidiary that would
be a "Significant Subsidiary" at such time, as such term is defined in
Regulation S-X promulgated by the Securities and Exchange Commission as in
effect on May 15, 1995.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Stockholders' Equity" means, at any date of determination, the
stockholders' equity at such date of the Company and its Subsidiaries, as
determined in accordance with GAAP.
"Subsidiary" means a Person (other than an individual or a government
or any agency or political subdivision thereof) more than 50% of the outstanding
voting interest of which is owned, directly or indirectly, by the Company or by
one or more other Subsidiaries, or by the Company and one or more other
Subsidiaries.
-9-
"Successor Company" has the meaning specified in Section 801.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president (but shall not include any assistant vice president),
whether or not designated by a number or a word or words added before or after
the title "vice president".
"Yield to Maturity", when used with respect to any Original Issue
Discount Security shall mean the yield to maturity, if any, set forth in the
prospectus supplement relating thereto, which shall be equal to the yield to
maturity, if any, set forth on the face of such Security.
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
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(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise
-11-
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 601)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
Without limiting the generality of the foregoing, a Holder, including a
Depositary that is a Holder of a Global Security, may make, give or take, by a
proxy, or proxies, duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other Act provided or
permitted in this Indenture to be made, given or taken by Holders, and a
Depositary that is a Holder of a Global Security may provide its proxy or
proxies to the beneficial owners of interest in any such Global Security.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders of Securities of any series entitled to give or take any request,
demand, authorization, direction, notice, consent, waiver or other Act, or to
vote on any action authorized or permitted to be given or taken by Holders of
Securities of such series. If not set by the Company prior to the first
solicitation of a Holder of Securities of such series made by any Person in
respect of any such action, or, in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 30th day (or, if
later, the date of the most recent list of Holders required to be provided
pursuant to Section 701) prior to such first solicitation or vote, as the case
may be. With regard to any record date for action to be taken by the Holders of
one or more series of Securities, only the Holders of Securities of such series
on such date (or their duly designated proxies) shall be entitled to give or
take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the Security
Register.
-12-
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
(f) Without limiting the foregoing, a Holder entitled hereunder to give
or take any action hereunder with regard to any particular Security may do so
with regard to all or any part of the principal amount of such Security or by
one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any different part of such principal amount.
Section 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument, marked
"Attention: General Counsel", or at any other address previously
furnished in writing to the Trustee by the Company.
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for any notice to Holders, such notice
shall be sufficiently given (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to each Holder entitled to
receive such notice, at his address as it appears in the Security Register, not
later than the latest date (if any), and not earlier than the earliest date (if
any), prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders
-13-
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act that is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
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Section 112. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York.
Section 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
(other than a provision of the Securities of any series which specifically
states that such provision shall apply in lieu of this Section)) payment of
interest or principal (and premium, if any) need not be made at such Place of
Payment on such date, but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as if made on the Interest
Payment Date or Redemption Date, or at the Stated Maturity, provided that no
interest shall accrue for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be.
ARTICLE TWO
Security Forms
Section 201. Forms Generally.
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities. If the form of Securities of any series is established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
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Section 202. Form of Face of Security.
[Insert any legend required by the Internal Revenue Code and the regulations
thereunder.]
RAYTHEON COMPANY
-----------------------------------------
No.______________
$--------
Raytheon Company, a corporation duly organized and existing under the
laws of the State of Delaware (herein called the "Company", which term includes
any successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to __________________________ , or registered
assigns, the principal sum of _______________________________ [Dollars] on
__________________________________________________ [the Security is to bear
interest prior to Maturity, insert -- , and to pay interest thereon from
______________ or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, semi-annually on ______________ and
______________ in each year, commencing ____________, at the rate of _____% per
annum, until the principal hereof is paid or made available for payment [if
applicable, insert -- , and (to the extent that the payment of such interest
shall be legally enforceable) at the rate of _____% per annum on any overdue
principal and premium and on any overdue installment of interest]. The interest
so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in such Indenture, be paid to the Person in whose name
this Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest, which shall be the
_________ or ________ (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of this series
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert --
The principal of this Security shall not bear interest except in the case of a
default in payment of principal
-16-
upon acceleration, upon redemption or at Stated Maturity and in such case the
overdue principal of this Security shall bear interest at the rate of ___ % per
annum (to the extent that the payment of such interest shall be legally
enforceable), which shall accrue from the date of such default in payment to the
date payment of such principal has been made or duly provided for. Interest on
any overdue principal shall be payable on demand. Any such interest on any
overdue principal that is not so paid on demand shall bear interest at the rate
of ___ % per annum (to the extent that the payment of such interest shall be
legally enforceable), which shall accrue from the date of such demand for
payment to the date payment of such interest has been made or duly provided for,
and such interest shall also be payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable,
insert --any such] interest on this Security will be made at the office or
agency of the Company maintained for that purpose [in ___________ ] in such coin
or currency of [the United States of America] [insert other currency, if
applicable] as at the time of payment is legal tender for payment of public and
private debts [if applicable, insert -- ; provided, however, that at the option
of the Company payment of interest may be made by check mailed to the address of
the Person entitled thereto as such address shall appear in the Security
Register].
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
RAYTHEON COMPANY
By:________________________
Attest:
- ------------------------
-17-
Section 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of July 3, 1995 (herein called the
"Indenture"), between the Company and The Bank of New York, as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee, the holders of
Senior Indebtedness and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof[, limited in
aggregate principal amount to $________].
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable, insert --
(1) on____________ in any year commencing with the year ______ and ending with
the year through operation of the sinking fund for this series at a Redemption
Price equal to 100% of the principal amount, and (2)] at any time on or after
____________, 19__], as a whole or in part, at the election of the Company, at
the following Redemption Prices (expressed as percentages of the principal
amount): If redeemed [on or before ____________, ___%, and if redeemed] during
the 12- month period beginning ___________of the years indicated,
Redemption Redemption
Year Price Year Price
and thereafter at a Redemption Price equal to ___% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on _______ in any
year commencing with the
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year ____ and ending with the year ____ through operation of the sinking fund
for this series at the Redemption Prices for redemption through operation of the
sinking fund (expressed as percentages of the principal amount) set forth in the
table below, and (2) at any time [on or after ____________], as a whole or in
part, at the election of the Company, at the Redemption Prices for redemption
otherwise than through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below: If redeemed during the
12-month period beginning ____________ of the years indicated,
Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
and thereafter at a Redemption Price equal to % of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Date referred to on the face hereof, all as provided in the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to ________
redeem any Securities of this series as contemplated by [Clause (2) of] the
preceding paragraph as a part of, or in anticipation of, any refunding operation
by the application, directly or indirectly, of moneys borrowed having an
interest cost to the Company (calculated in accordance with generally accepted
financial practice) of less than ___% per annum.]
[The sinking fund for this series provides for the redemption
on__________ in each year beginning with the year and ending with the year of
[not less than $__________ ("mandatory sinking fund") and not more than]
$_________ aggregate principal amount of Securities of this series. Securities
of this series acquired or redeemed by the Company otherwise than through
[mandatory] sinking fund payments may be credited against subsequent [mandatory]
sinking fund payments otherwise required to be made [if applicable, insert -- in
the inverse order in which they become due].]
-19-
[If the Security is subject to redemption. insert -- In the event of
redemption of this Security in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert -- This Security is not subject to redemption
prior to maturity.]
[If applicable, insert -- The Indenture contains provisions for
defeasance at any time of [(a)] (the entire indebtedness evidenced by this
Security] [and (b)] [certain restrictive covenants,] [in each case] upon
compliance by the Company with certain conditions set forth therein, which
provisions apply to this Security.]
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and subject in right of payment to the prior
payment in full of all Senior Indebtedness, and this Security is issued subject
to the provisions of the Indenture with respect thereto. Each Holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for any and all such
purposes.
[If the Security is not an Original Issue Discount Security, insert --
The principal of this Security may not be declared due and payable upon the
occurrence of an Event of Default, except an Event of Default relating to
certain events involving the bankruptcy, insolvency or reorganization of the
Company. If an Event of Default with respect to Securities of this series
relating to certain events involving the bankruptcy, insolvency or
reorganization of the Company shall occur and be continuing, the principal of
the Securities of this series may be declared due and payable in the manner and
with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- The
principal of this Security may not be declared due and payable upon the
occurrence of an Event of Default, except an Event of Default relating to
certain events involving the bankruptcy, insolvency or reorganization of the
Company. If an Event of Default with respect to Securities of this series
relating to certain events involving the bankruptcy, insolvency or
reorganization of the Company shall occur and be continuing, an amount of
principal of the Securities of this series may be declared due and payable in
the manner and with the effect provided in the Indenture. Such amount shall be
equal to [-- insert formula for determining the amount]. Upon payment [if
applicable, insert - - (i)] of the amount of principal so declared due and
payable [if applicable, insert -- and (ii) of interest on any overdue principal
and overdue interest (in each case to the extent that the payment of such
interest shall be
-20-
legally enforceable)], all of the Company's obligations in respect of the
payment of the principal of and interest, if any, on the Securities of this
series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of all series to be affected (voting as a single class).
The Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registerable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $_______ and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
-21-
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
Section 204. Form of Legend for Global Security.
Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, any Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
"This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Depositary or a nominee thereof. This Security may not be transferred
to, or registered or exchanged for Securities registered in the name
of, any Person other than the Depositary or a nominee thereof and no
such transfer may be registered, except in the limited circumstances
described in the Indenture. Every Security authenticated and delivered
upon registration of transfer of, or in exchange for or in lieu of,
this Security shall be a Global Security subject to the foregoing,
except in such limited circumstances."
Section 205. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
THE BANK OF NEW YORK
-----------------------------
As Trustee
-22-
By:
------------------------
Authorized Officer
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other
series);
(2) any limit upon the aggregate principal amount of the
Securities which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906 or 1107
and except for any Securities which, pursuant to Section 303, are
deemed never to have been authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the
series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest;
(4) the date or dates on which the principal of the Securities
of the series is payable;
(5) the rate or rates at which the Securities of the series
shall bear interest, if any, the date or dates from which such interest
shall accrue, the Interest Payment Dates on which any such interest
shall be payable and the Regular Record Date for any interest payable
on any Interest Payment Date;
-23-
(6) the place or places where the principal of and any premium
and interest on Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the series
may be redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices at which and the
terms and conditions upon which Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(10) the currency, currencies or currency units in which
payment of the principal of and any premium and interest on any
Securities of the series shall be payable if other than the currency of
the United States of America and the manner of determining the
equivalent thereof in the currency of the United States of America for
purposes of the definition of "Outstanding" in Section 101;
(11) if the amount of payments of principal of or any premium
or interest on any Securities of the series may be determined by
reference to an index or formula, the manner in which such amounts
shall be determined;
(12) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the
Company or a Holder thereof, in one or more currencies or currency
units other than that or those in which the Securities are stated to be
payable, the currency, currencies or currency units in which payment of
the principal of and any premium and interest on Securities of such
series as to which such election is made shall be payable, and the
periods within which and the terms and conditions upon which such
election is to be made;
(13) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502;
(14) the application, if any, of either or both of Section
1402 and Section 1403 to the Securities of the series;
-24-
(15) whether the Securities of the series shall be issuable in
whole or in part in the form of one or more Global Securities and, in
such case, the Depositary or Depositaries for such Global Security or
Global Securities and any circumstances other than those set forth in
Section 305 in which any such Global Security may be transferred to,
and registered and exchanged for Securities registered in the name of,
a Person other than the Depositary for such Global Security or a
nominee thereof and in which any such transfer may be registered;
(16) if other than as specified in Section 501, the events of
default applicable with respect to the Securities of the series;
(17) if other than as specified in Section 502, the events of
default the occurrence of which would permit the declaration of the
acceleration of maturity pursuant to Section 502;
(18) any other covenant or warranty included for the benefit
of Securities of the series in addition to (and not inconsistent with)
those included in this Indenture for the benefit of Securities of all
series, or any other covenant or warranty included for the benefit of
Securities of the series in lieu of any covenant or warranty included
in this Indenture for the benefit of Securities of all series, or any
provision that any covenant or warranty included in this Indenture for
the benefit of Securities of all series shall not be for the benefit of
Securities of such series, or any combination of such covenants,
warranties or provisions;
(19) if other than as specified in Article Thirteen, the
subordination provisions applicable with respect to the Securities of
the series; and
(20) any other term of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted
by Section 901(5)).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to the Board Resolution referred to above and (subject to Section 303) set
forth, or determined in the manner provided, in the Officers' Certificate
referred to above or in any such indenture supplemental hereto.
If any of the terms of a series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of such series.
-25-
Section 302. Denominations.
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 301. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President or one of its Vice Presidents, under its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. If the
form or terms of the Securities of the series have been established in or
pursuant to one or more Board Resolutions as permitted by Sections 201 and 301,
in authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully protected in
relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 201, that such
form has been established in conformity with the provisions of this
Indenture;
(b) if the terms of such Securities have been established by
or pursuant to Board Resolution as permitted by Section 301, that such
terms have been established in conformity with the provisions of this
Indenture; and
(c) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the
-26-
Company enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature of an Authorized Officer, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 309, for all purposes of this Indenture such Security shall
be deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
-27-
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and of
a like aggregate principal amount and tenor. Until so exchanged the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series and tenor.
Section 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office a
register (the register maintained in such office and in any other office or
agency of the Company in a Place of Payment being herein sometimes collectively
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Securities and of transfers of Securities. The Trustee is hereby appointed
"Security Registrar" for the purpose of registering Securities and transfers of
Securities as herein provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount and tenor.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations and of
a like aggregate principal amount and tenor, upon surrender of the securities to
be exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
-28-
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to a Holder for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 1103 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
Notwithstanding the foregoing and except as otherwise specified or
contemplated by Section 301, no Global Security shall be exchangeable pursuant
to this Section 305 or Sections 304, 906 and 1107 for Securities registered in
the name of, and no transfer of a Global Security of any series may be
registered to, any Person other than the Depositary for such Security or its
nominee, unless (1) such Depositary (A) notifies the Company that it is
unwilling or unable to continue as Depositary for such Global Security or (B)
ceases to be a clearing agency registered under the Exchange Act, (2) the
Company executes and delivers to the Trustee a Company Order that such Global
Security shall be so exchangeable and the transfer thereof so registerable, or
(3) there shall have occurred and be continuing an Event of Default, or an event
which with notice or lapse of time or both would become an Event of Default,
with respect to the Securities evidenced by such Global Security. Upon the
occurrence in respect of any Global Security of any series of any one or more of
the conditions specified in clause (1), (2) or (3) of the preceding sentence or
such other conditions as may be specified as contemplated by Section 301 for
such series, such Global Security may be exchanged for Securities registered in
the names of, and the transfer of such Global Security may be registered to,
such Persons (including Persons other than the Depositary with respect to such
series and its nominees) as such Depositary shall direct. Notwithstanding any
other provision of this Indenture, any Security authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, any Global
Security shall also be a Global Security and shall bear the legend specified in
Section 204 except for any Security authenticated and delivered in exchange for,
or upon registration of transfer of, a Global Security pursuant to the preceding
sentence.
-29-
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name
-30-
that Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such series and the
date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of Securities of such series at his address as it
appears in the Security Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
-31-
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and any premium
and (subject to Section 307) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Section 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all securities so
delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of as directed by a Company
Order.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture.
-32-
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 306 and
(ii) Securities for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 1004) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited
or caused to be deposited with the Trustee as trust funds in trust for
the purpose an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal and any premium and interest to
the date of such deposit (in the case of Securities which have become
due and payable) or to the Stated Maturity or Redemption Date, as the
case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
-33-
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1004, shall survive.
Section 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1004, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee. Money
deposited pursuant to this Section not in violation of this Indenture shall not
be subject to claims of the holders of Senior Indebtedness under Article
Thirteen.
ARTICLE FIVE
Remedies
Section 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any particular series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be occasioned by the
provisions of Article Thirteen or be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(a) default in the due and punctual payment of any installment
of interest upon any of the Securities of that series as and when the
same shall become due and payable and continuance of such default for a
period of 30 days; or
(b) default in the due and punctual payment of the principal
of (or premium, if any, on) any of the Securities of that series as and
when the same shall become due and payable either at Maturity, by
declaration as authorized by this Indenture, or otherwise; or
(c) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series; or
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(d) failure on the part of the Company duly to observe or
perform any other of the covenants or agreements on the part of the
Company set forth in the Securities of that series or in this Indenture
(other than those set forth exclusively in the terms of Securities of
any series other than that series, or those which have been included in
this Indenture for the benefit of Securities of any series other than
that series) continued for a period of 60 days after there has been
given, by registered or certified mail, to the Company by the Trustee,
or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Securities of that series at the time
Outstanding, a written notice specifying such failure and requiring the
same to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(e) the entry of a decree or order by a court having
jurisdiction in the premises granting relief in respect of the Company
in an involuntary case under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law adjudging
the Company as being bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under any applicable
Federal or State law, or appointing a receiver, liquidator, custodian,
assignee, trustee, sequestrator (or other similar official) of the
Company, or of any substantial part of its properties, or ordering the
winding up or liquidation of the affairs of the Company, and the
continuance of any such decree or order unstayed and in effect for a
period of 60 consecutive days; or
(f) the institution by the Company of proceedings to be
adjudicated as being bankrupt or insolvent, or the consent by the
Company to the institution of bankruptcy or insolvency proceedings
against it, or the filing by the Company of a petition or answer or
consent seeking reorganization or relief under any applicable Federal
or State bankruptcy, insolvency, reorganization or other similar law,
or the consent by the Company to the filing of any such petition or to
the appointment of a receiver, liquidator, custodian, assignee,
trustee, sequestrator (or other similar official) of the Company, or of
any substantial part of its properties, or the making by the Company of
an assignment for the benefit of creditors, or the admission by the
Company in writing of its inability to pay its debts generally as they
become due, or the taking of corporate action by the Company in
furtherance of any such action; or
(g) any other Event of Default provided with respect to
Securities of that series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
In case one or more of the Events of Default specified in Section
501(e) or 501(f) shall have occurred and be continuing with respect to any
particular series of
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Securities, then and in each and every such case, unless the principal of all of
the Securities of that series shall have already become due and payable, either
the Trustee or the Holders of not less than 25% in aggregate principal amount of
the Securities of that series then Outstanding hereunder, by notice in writing
to the Company (and to the Trustee if given by Holders), may declare the
principal or, in the case of Original Issue Discount Securities, such amount of
principal as may be provided for in such Securities, of all the Securities of
that series to be due and payable immediately, and upon any such declaration the
same shall become and shall be immediately due and payable, anything in this
Indenture or in the Securities of that series contained to the contrary
notwithstanding. This provision, however, is subject to the condition that if,
at any time after such principal or such amount of principal, as the case may
be, shall have been so declared due and payable, and before any judgment or
decree for the payment of the moneys due shall have been obtained or entered as
hereinafter provided, the Company shall pay or shall deposit with the Trustee a
sum sufficient to pay all matured installments of interest upon all Securities
of that series and the principal of (and premium, if any, on) any and all
Securities of that series which shall have become due otherwise than by
acceleration (with interest on overdue installments of interest (to the extent
that payment of such interest is enforceable under applicable law) and on such
principal (and premium, if any) at the rate of interest prescribed therefor by
such Securities, to the date of such payment or deposit) and the expenses of the
Trustee, including the reasonable fees of its counsel, and any and all defaults
under this Indenture with respect to the Securities of the series, other than
the nonpayment of principal of (and premium, if any) and accrued interest on the
Securities of that series which shall have become due by acceleration shall have
been remedied -- then and in every such case the Holders of a majority in
aggregate principal amount of the Securities of that series then Outstanding, by
written notice to the Company and to the Trustee, may waive all defaults and
rescind and annul such declaration and its consequences; but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent default,
or shall impair any right consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon written demand of the Trustee, pay to it, for the benefit
of the Holders of such Securities, the whole amount then due and payable on such
Securities for
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principal and any premium and interest and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal and
premium and on any overdue interest, at the rate or rates prescribed therefor in
such Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; provided,
however, the Trustee may vote on behalf of the Holders for the election of a
trustee in bankruptcy or similar official and may be a member of a creditors' or
other similar committee.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by
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the Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
Section 506. Application of Money Collected.
Subject to Article Thirteen, money collected by the Trustee pursuant to
this Article shall be applied in the following order, at the date or dates fixed
by the Trustee and, in case of the distribution of such money on account of
principal or any premium or interest, upon presentation of the Securities and
the notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in respect
of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal and any
premium and interest, respectively.
Section 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
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(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to Section 307)
any interest on such Security on the Stated Maturity or Maturities expressed in
such Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
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Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
Section 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule
of law or with this Indenture, and
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such
direction.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences except a default
(1) in the payment of the principal of or any premium or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which
under Article Nine cannot be modified or amended with
out the consent of the Holder of each Outstanding
security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
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Section 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company.
Section 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
Section 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series,
the Trustee shall give the Holders of Securities of such series notice of such
default as and to the extent provided by the Trust Indenture Act; provided,
however, that in the case of any
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default of the character specified in Section 501(d) with respect to Securities
of such series, no such notice to Holders shall be given until at least 30 days
after the occurrence thereof. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to Securities of such series.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate, except that in the case of any such Officers' Certificate
which by any provision hereof is specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not it conforms to the requirements of this
Indenture;
(d) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon,
except that in the case of any such Opinion of Counsel which by any
provision hereof is specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not it conforms to the requirements of this
Indenture;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
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(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. The Trustee
or any Authenticating Agent shall not be accountable for the use or application
by the Company of Securities or the proceeds thereof.
Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
Section 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
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Section 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
Section 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000 and its Corporate Trust
Office in the United States or any State or Territory thereof or the District of
Columbia and subject to supervision or examination by Federal or State
authority. If such Person publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
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Section 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged as being bankrupt or insolvent or a receiver of the Trustee or
of its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly
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appoint a successor Trustee or Trustees with respect to the Securities of that
or those series (it being understood that any such successor Trustee may be
appointed with respect to the Securities of one or more or all of such series
and that at any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 611, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the Holders and accepted appointment in the manner required by Section 611, any
Holder who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series to all
Holders of Securities of such series in the manner provided in Section 106. Each
notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one of more (but not all) series, the Company, the
retiring Trustee
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and each successor Trustee with respect to the Securities of one or more series
shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
Section 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered
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by the Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
Section 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
Section 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series issued upon original
issue and upon exchange, registration of transfer or partial redemption thereof
or pursuant to Section 306, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such
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corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first- class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK
-----------------------------,
As Trustee
By:
--------------------------
As Authenticating Agent
By:
--------------------------
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Authorized Officer
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later then June 30 and December 31 in
each year, a list for each series of Securities, in such form as the
Trustee may reasonably require, of the names and addresses of the
Holders of Securities of such series as of the preceding June 15 or
December 15, and
(b) at such other times as the Trustee may request in writing,
within 15 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 10 days
prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar, if it is acting as such.
Section 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar, if it is acting as such. The Trustee may destroy any list furnished
to it as provided in Section 701 upon receipt of a new list so furnished.
(b) The rights of the Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
Section 703. Reports by Trustee.
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(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto. To
the extent that any such report is required by the Trust Indenture Act with
respect to any 12-month period, such report shall cover the 12-month period
ending May 15 and shall be transmitted by the next succeeding July 15.
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
Section 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company may Consolidate, Etc., Only on Certain Terms.
Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of the Company with or into any other
Person, or successive consolidations or mergers in which the Company or its
successor or successors shall be a party or parties, or shall prevent any
conveyance, transfer or lease of the properties and assets of the Company
substantially as an entirety to any other Person authorized to acquire and
operate the same (with each of the foregoing transactions referred to as a
"Company Sale") provided, however, (i) that the Person formed by such
consolidation or into which the Company is merged or the Person which acquires
by conveyance or transfer, or which leases, the properties and assets of the
Company substantially as an entirety (the "Successor Company") shall be a
corporation, shall be organized and validly existing under the laws of the
United States of America, any State thereof or the District of Columbia, (ii),
the Company hereby covenants and agrees that, as a condition precedent to any
such consolidation, merger, sale or conveyance, the due and punctual payment of
the principal of
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(and premium, if any) and interest, if any, on all of the Securities, according
to their tenor, and the due and punctual performance and observance of all of
the covenants and conditions of this Indenture to be performed by the Company
shall be expressly assumed by supplemental indenture satisfactory in form to the
Trustee, executed and delivered to the Trustee, by the Successor Company and
(iii) the Company shall not be permitted to effect any Company Sale if the
completion of such Company Sale would create an Event of Default or an event
under this Indenture which, with the passage of time or the giving of notice or
both, would become an Event of Default.
Section 802. Successor Corporation to Be Substituted.
In case of any such Company Sale, such Successor Company shall succeed
to and be substituted for the Company, with the same effect as if it had been
named herein as the Company. Such Successor Company thereupon may cause to be
signed, and may issue either in its own name or in the name of Raytheon Company
or in the name of any corporation which previously shall have become the Company
in accordance with the provisions of this Article any or all of the Securities
issuable hereunder, which theretofore shall not have been signed by the Company
and delivered to the Trustee; and, upon the order of such Successor Company
instead of the Company and subject to all the terms, conditions and limitations
in this Indenture prescribed, the Trustee shall authenticate and shall deliver,
any Securities which previously shall have been signed and delivered by the
officers of the Company to the Trustee for authentication, and any Securities
which such Successor Company thereafter shall cause to be signed and delivered
to the Trustee for that purpose. All of the Securities of a particular series so
issued shall in all respects have the same legal rank and benefit under this
Indenture as the Securities of such series theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of such Securities had
been issued at the date or the execution hereof.
Nothing contained in this Indenture or in any of the Securities shall
prevent the Company from merging into itself any other Person or acquiring by
purchase or otherwise all or any part of the property of any other Person.
Section 803. Opinion of Counsel to Be Given Trustee.
The Trustee, subject to Sections 601 and 603, may receive an Opinion of
Counsel as conclusive evidence that any such consolidation, merger, sale or
conveyance and any such assumption complies with the provisions of this Article.
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ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate
the issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons, or
to permit or facilitate the issuance of Securities in uncertificated
form; or
(5) to add to, change or eliminate any of the provisions of
this Indenture in respect of one or more series of Securities, provided
that any such addition, change or elimination (i) shall neither (A)
apply to any Security of any series created prior to the execution of
such supplemental indenture and entitled to the benefit of such
provision nor (B) modify the rights of the Holder of any such Security
with respect to such provision or (ii) shall become effective only when
there is no such Security Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series
as permitted by Sections 201 and 301; or
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(8) to establish the terms upon which the Securities of one or
more series may be convertible into, or exchangeable for, shares of
common stock or preferred stock or other securities of the Company; or
(9) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611(b); or
(10) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action
pursuant to this clause (10) shall not adversely affect the interests
of the Holders of Securities of any series in any material respect.
Section 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of all series affected by such
supplemental indenture (voting as a single class), by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of each such
series under this Indenture; provided, however that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, or change any Place of Payment where, or the
coin or currency in which, any Security or any premium or interest
thereon is payable or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date) or
modify the provisions of this Indenture with respect to the
subordination of the Securities of any series in a manner adverse to
the Holders, or
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(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section or Section
513, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each Outstanding Security affected
thereby, provided, however, that this Clause shall not be deemed to
require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section, or
the deletion of this proviso, in accordance with the requirements of
Sections 611(b) and 901(9).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
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Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
Section 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for outstanding Securities of such series.
Section 907. Subordination Unimpaired.
No provision in any supplemental indenture that affects the superior
position of the holders of Senior Indebtedness shall be effective against
holders of Senior Indebtedness.
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay or cause to be paid the
principal of and any premium and interest on the Securities of that series in
accordance with the terms of the Securities and this Indenture. Interest on
Securities shall be payable without presentment of such Securities, and only to
the registered Holders thereof determined as provided in Section 307. The
Company shall have the right to require a Holder, in connection with the payment
of the principal of and any premium and interest on a Security, to present at
the office or agency of the Company at which such payment is made a certificate,
in such form as the Company may from time to time prescribe, to enable the
Company to determine its duties and liabilities with respect to any taxes,
assessments or governmental charges which it may be required to deduct or
withhold therefrom under any present or future law of the United States of
America or of any State, County, municipality or taxing or withholding authority
therein, and the Company shall be entitled to determine its duties and
liabilities with respect to such deduction or withholding on the basis of
information contained in such certificate or,
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if no such certificate shall be so presented, on the basis of any presumption
created by any such law, and shall be entitled to act in accordance with such
determination.
Section 1002. Maintenance of Office or Agency.
So long as any Securities remain outstanding, the Company will maintain
in each Place of Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
Section 1003. Vacancy in the Office of Trustee.
The Company, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Article Six, a
Trustee, so that there shall at all times be a Trustee hereunder.
Section 1004. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
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Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of or any
premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will (i) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (ii) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, The City of New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
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Section 1005. Liens.
Except as hereinafter provided in this Section 1005, so long as the
Securities of any series are Outstanding, the Company will not, and will not
permit any Significant Subsidiary to, create, incur, assume or permit to exist
any Lien on any property or assets (including stock or other securities of any
person, including any Significant Subsidiary) now owned or hereafter acquired by
it or on any income or revenues or rights in respect of any thereof, without
making effective provision, and the Company convenants that in any such case it
will make, or cause the applicable Significant Subsidiary to make, effective
provision, whereby the Securities of any series then or thereafter Outstanding
shall be secured by such Lien equally and ratably with any and all other
obligations and indebtedness thereby secured, so long as any such other
obligations and indebtedness shall be so secured.
Nothing in this Section 1005 shall be construed to prevent the Company
or any Significant Subsidiary from creating, incurring, assuming or permitting
to exist any Lien of the following character, to all of which the provisions of
the first paragraph of this Section 1005 shall not be applicable:
(a) Liens on property or assets of the Company and its Subsidiaries
existing on the date hereof, provided that such Liens shall secure only those
obligations which they secure as of the date hereof;
(b) any Lien existing on any property or asset prior to the acquisition
thereof by the Company or any Subsidiary, provided that (i) such Lien is not
created in contemplation of or in connection with such acquisition and (ii) such
Lien does not apply to any other property or assets of the Company or any
Subsidiary;
(c) Liens for taxes not yet due or which are being contested in good
faith by appropriate proceedings and with respect to which adequate reserves, to
the extent required by GAAP, have been set aside;
(d) carriers', warehousemen's, mechanics', materialsmen's, repairmen's
or other like Liens arising in the ordinary course of business and securing
obligations that are not due and payable or which are being contested in good
faith by appropriate proceedings and with respect to which adequate reserves, to
the extent required by GAAP, have been set aside;
(e) pledges and deposits made in the ordinary course of business in
compliance with workmen's compensation, unemployment insurance and other social
security laws or regulations;
(f) deposits to secure the performance of bids, trade contracts (other
than for Indebtedness), leases (other than capital leases), statutory
obligations, surety and appeal
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bonds, advance payment bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business;
(g) zoning restrictions, easements, rights-of-way, restrictions on use
of real property and other similar encumbrances incurred in the ordinary course
of business which, in the aggregate, are not substantial in amount and do not
materially detract from the value of the property subject thereto or interfere
with the ordinary conduct of the business of the Company or any of its
Subsidiaries;
(h) Liens upon any property acquired, constructed or improved by the
Company or any Subsidiary which are created or incurred within 360 days of such
acquisition, construction or improvement to secure or provide for the payment of
any part of the purchase price of such property or the cost of such construction
or improvement, including carrying costs (but no other amounts), provided that
any such Lien shall not apply to any other property of the Company or any
Subsidiary;
(i) Liens on the property or assets of any Subsidiary in favor of the
Company;
(j) extensions, renewals and replacements of Liens referred to in
paragraphs (a) through (i) of this Section 1005, provided that any such
extension, renewal or replacement Lien shall be limited to the property or
assets covered by the Lien extended, renewed or replaced and that the
obligations secured by any such extension, renewal or replacement Lien shall be
in an amount not greater than the amount of the obligations secured by the Lien
extended, renewed or replaced;
(k) any Lien, of the type described in clause (iii) of the definition
of the term "Lien", on securities imposed pursuant to an agreement entered into
for the sale or disposition of such securities pending the closing of such sale
or disposition; provided such sale or disposition is otherwise permitted under
this Indenture;
(l) Liens arising in connection with any Permitted Receivables Program
(to the extent the sale by the Company or the applicable Subsidiary of its
accounts receivable is deemed to give rise to a Lien in favor of the purchaser
thereof in such accounts receivable or the proceeds thereof);
(m) Liens on the capital stock or assets of any Subsidiary that is not
a Significant Subsidiary; and
(n) Liens to secure Indebtedness if, immediately after the grant
thereof, the aggregate amount of all Indebtedness secured by Liens that would
not be permitted but for this clause (n) does not exceed 15% of the
Stockholders' Equity as shown on
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the most recent consolidated balance sheet of the Company and the Subsidiaries
filed with the Securities and Exchange Commission pursuant to the Exchange Act.
Section 1006. Limitation on Sale and Leaseback Transactions.
So long as the Securities of any Series are Outstanding, the Company
will not, and will not permit any Significant Subsidiary to, enter into any
arrangement, directly or indirectly, with any Person whereby it shall sell or
transfer any Principal Property, whether now owned or hereafter acquired, and
thereafter rent back or lease such Principal Property; provided, however, that
this Section 1006 shall not prevent the Company or any Significant Subsidiary
from;
(a) entering into any transaction not involving a lease with a term of
more than three (3) years;
(b) entering into any transaction to the extent the Lien on any such
property subject to such sale and leaseback would be permitted under Section
1005;
(c) entering into any transaction for the sale and leaseback of any
property if such lease is entered into within 180 days after the later of the
acquisition, completion of construction or commencement of operation of such
property; and
(d) entering into any sale and leaseback transaction if the Company or
such Significant Subsidiary within 120 days after the effective date of the
lease, applies an amount equal to the greater of (i) the net proceeds of the
sale of the property leased in such sale and leaseback transaction or (ii) the
fair market value (as determined in good faith by the Board of Directors) of
such property on any date within 90 days prior to the effective date of the
lease, to the retirement of Funded Debt of the Company or any Significant
Subsidiary; provided, however, that the amount to be applied to the retirement
of Funded Debt of the Company or a Significant Subsidiary shall be reduced by:
(1) the principal amount of any Securities surrendered to
the Trustee by the Company for cancellation within 120 days after the
effective date of the lease, and
(2) the principal amount of Funded Debt other than Securities
voluntarily retired by the Company within 120 days after the effective
date of the lease; and
provided further that no retirement referred to in this clause (d) may be
effected by payment on the final maturity date or pursuant to any mandatory
sinking fund or prepayment provision.
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Section 1007. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
Section 1008. Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises to carry on its business;
provided, however, that nothing in this Section 1008 shall prevent (i) any
consolidation or merger of the Company, or any conveyance, transfer or lease of
its property and assets substantially as an entirety, permitted by Article
Eight, or (ii) the liquidation or dissolution of the Company after such
conveyance, transfer or lease of its property and assets substantially as an
entirety permitted by Article Eight.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by a Board Resolution. In case of any redemption at the election of the Company
of less than all the Securities of any series, the Company shall, at least 60
days prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date, of the principal amount of Securities of such series to be redeemed and,
if applicable, of the tenor of the Securities to be redeemed. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the
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Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed in
accordance with this Article (unless all of the Securities of such series and of
a specified tenor are to be redeemed), the particular Securities to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the
Trustee, from the Outstanding Securities of such series not previously called
for redemption, by such method as the Trustee shall deem fair and appropriate
and which may provide for the selection for redemption of portions (equal to the
minimum authorized denomination for Securities of that series or any integral
multiple thereof) of the principal amount of Securities of such series of a
denomination larger than the minimum authorized denomination for Securities of
that series. If less than all of the Securities of such series and of a
specified tenor are to be redeemed, the particular Securities to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the
Trustee from the Outstanding Securities of such series and specified tenor not
previously called for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and accrued interest, if any,
(3) if less than all the Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption of any
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Securities, the principal amounts) of the particular securities to be
redeemed,
(4) that on the Redemption Date the Redemption Price and
accrued interest, if any, will become due and payable upon each such
Security to be redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price and accrued interest,
if any, and
(6) that the redemption is for a sinking fund, if such is the
case.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
Section 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1004) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, installments of interest whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, required as such at the close
of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
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Section 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Security Registrar
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder thereof or his attorney duly authorized in writing), and the Company
shall execute, and the Security Registrar shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities of
the same series and of like tenor, of any authorized denomination as requested
by such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such
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Securities for redemption through operation of the sinking fund and the amount
of such sinking fund payment shall be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 90 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 and will also deliver to the Security Registrar any
Securities to be so delivered. Not less than 60 days before each such sinking
fund payment date the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 1103 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 1104. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 1105, 1106 and 1107.
ARTICLE THIRTEEN
Subordination of Securities
Section 1301. Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a Security of any
series, by his acceptance thereof, likewise covenants and agrees, that, to the
extent and in the manner hereinafter set forth in this Article, the indebtedness
represented by the Securities of such series and the payment of the principal of
(and premium, if any) and interest on each of the Securities of such series are
hereby expressly made subordinate and subject in right of payment to the prior
payment in full of all Senior Indebtedness.
Section 1302. Payment Over of Proceeds Upon Dissolution, Etc.
In the event of (a) any insolvency or bankruptcy case or proceeding, or
any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its creditors,
as such, or to its assets, or (b) any liquidation, dissolution or other winding
up of the Company, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or
any other marshalling of assets and liabilities of the Company, then and in any
such event the holders of Senior Indebtedness shall be entitled to receive
payment in full of all amounts due or to become due on or in respect of all
Senior Indebtedness, or provision shall be made for such payment in money or
money's worth,
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before the Holders of the Securities of any series are entitled to receive any
payment on account of principal of (or premium, if any) or interest on the
Securities of such series, and to that end the holders of Senior Indebtedness
shall be entitled to receive, for application to the payment thereof, any
payment or distribution of any kind or character, whether in cash, property or
securities, which may be payable or deliverable in respect of the Securities of
any series in any such case, proceeding, dissolution, liquidation or other
winding up or event.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the holder of any Security of any series shall have
received any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, before all Senior
Indebtedness is paid in full or payment thereof provided for, and if such fact
shall, at or prior to the time of such payment or distribution, have been made
known to the Trustee or, as the case may be, such Holder, then and in such event
such payment or distribution shall be paid over or delivered forthwith to the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent
or other Person making payment or distribution of assets of the Company for
application to the payment of all Senior Indebtedness remaining unpaid, to the
extent necessary to pay all Senior Indebtedness in full, after giving effect to
any concurrent payment or distribution to or for the holders of Senior
Indebtedness.
For purposes of this Article only, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment which are subordinated
in right of payment to all Senior Indebtedness which may at the time be
outstanding to the same extent as, or to a greater extent than, the Securities
are so subordinated as provided in this Article. The consolidation of the
Company with, or the merger of the Company into, another Person or the
liquidation or dissolution of the Company following the sale, conveyance,
transfer or lease of its properties and assets substantially as an entirety to
another Person upon the terms and conditions set forth in Article Eight shall
not be deemed a dissolution, winding up, liquidation, reorganization, assignment
for the benefit of creditors or marshalling of assets and liabilities of the
Company for the purposes of this Section if the Person formed by such
consolidation or into which the Company is merged or the Person which acquires
by sale, conveyance, transfer or lease such properties and assets substantially
as an entirety, as the case may be, shall, as a part of such consolidation,
merger, sale, conveyance, transfer or lease, comply with the conditions set
forth in Article Eight.
Section 1303. Prior Payment to Senior Indebtedness Upon Acceleration of
Securities.
In the event that any Securities of any series are declared due and
payable before their Stated Maturity, then and in such event the holders of
Senior Indebtedness shall
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be entitled to receive payment in full of all amounts due or to become due on or
in respect of all Senior Indebtedness, or provision shall be made for such
payment in cash, before the Holders of the Securities of such series are
entitled to receive any payment of the principal of, premium, if any, or
interest on the Securities of such series or on account of the purchase or other
acquisition of Securities of such series; provided, however, that, if as
specified as contemplated by Section 301, Article Twelve is applicable to any
series of Securities, nothing in this Section shall prevent the satisfaction of
any sinking fund payment in accordance with Article Twelve by delivering and
crediting pursuant to Section 1202 Securities of such series which have been
acquired (upon redemption or otherwise) prior to such declaration of
acceleration.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Security of any series
prohibited by the foregoing provisions of this Section, and if such fact shall,
at or prior to the time of such payment, have been made known to the Trustee or,
as the case may be, such Holder, then and in such event such payment shall be
paid over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 1302 would be applicable.
Section 1304. No Payment When Senior Indebtedness in Default.
(a) In the event and during the continuation of any default in the
payment of principal of (or premium, if any) or interest on any Senior
Indebtedness beyond any applicable grace period with respect thereto, or in the
event that any event of default with respect to any Senior Indebtedness shall
have occurred and be continuing permitting the holders of such Senior
Indebtedness (or a trustee on behalf of the holders thereof) to declare such
Senior Indebtedness due and payable prior to the date on which it would
otherwise have become due and payable, unless and until such event of default
shall have been cured or waived or shall have ceased to exist and such
acceleration shall have been rescinded or annulled, or (b) in the event any
judicial proceeding shall be pending with respect to any such default in
payment, or event of default, then no payment shall be made by the Company on
account of principal of (or premium, if any) or interest on the Securities of
any series or on account of the purchase or other acquisition of Securities of
any series; provided, however, that, if as specified as contemplated by Section
301 Article Twelve is applicable to any series of Securities, nothing in this
Section shall prevent the satisfaction of any sinking fund payment in accordance
with Article Twelve by delivering and crediting pursuant to Section 1202
Securities of such series which have been acquired (upon redemption or
otherwise) prior to such default in payment or event of default.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Security of any series
prohibited by the
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foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known to the Trustee or, as the case may
be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 1302 would be applicable.
Section 1305. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Securities of any series shall prevent (a) the Company, at any time
except during the pendency of any case, proceeding, dissolution, liquidation or
other winding up, assignment for the benefit of creditors or other marshalling
of assets and liabilities of the Company referred to in Section 1302 or under
the conditions described in Section 1303 or 1304, from making payments at any
time of principal of (and premium, if any) or interest on the Securities of any
series, or (b) the application by the Trustee of any money deposited with it
hereunder to the payment of or on account of the principal of (and premium, if
any) or interest on the Securities of any series or the retention of such
payment by the Holder, if, subject to Section 1310, at the time of such
application by the Trustee, it did not have knowledge that such payment would
have been prohibited by the provisions of this Article.
Section 1306. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the Holders
of the Securities of a series shall be subrogated (equally and ratably with the
holders of all indebtedness of the Company which by its express terms is
subordinated to indebtedness of the Company to substantially the same extent as
the Securities are subordinated and is entitled to like rights of subrogation)
to the extent of the payments or distributions made to the holders of such
Senior Indebtedness pursuant to the provisions of this Article to the rights of
the holders of such Senior Indebtedness to receive payments and distributions of
cash, property and securities applicable to the Senior Indebtedness until the
principal of (and premium, if any) and interest on the Securities of such series
shall be paid in full. For purposes of such subrogation, no payments or
distributions to the holders of the Senior Indebtedness of any cash, property or
securities to which the Holders of the Securities of a series or the Trustee
would be entitled except for the provisions of this Article, and no payments
over pursuant to the provisions of this Article to the holders of Senior
Indebtedness by Holders of the Securities of a series or the Trustee, shall, as
among the Company, its creditors other than holders of Senior Indebtedness and
the Holders of the Securities of such series, be deemed to be a payment or
distribution by the Company to or on account of the Senior Indebtedness.
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Section 1307. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities of a
series on the one hand and the holders of Senior Indebtedness on the other hand.
Nothing contained in this Article or elsewhere in this Indenture or in the
Securities of any series is intended to or shall (a) impair, as among the
Company, its creditors other than holders of Senior Indebtedness and the Holders
of the Securities of any series, the obligation of the Company, which is
absolute and unconditional, to pay to the Holders of the Securities of a series
the principal of (and premium, if any) and interest on the Securities of such
series as and when the same shall become due and payable in accordance with
their terms; or (b) affect the relative rights against the Company of the
Holders of the Securities of a series and creditors of the Company other than
the holders of Senior Indebtedness; or (c) prevent the Trustee or the Holder of
any Security of any series from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if any,
under this Article of the holders of Senior Indebtedness to receive cash,
property and securities otherwise payable or deliverable to the Trustee or such
Holder.
Section 1308. Trustee to Effectuate Subordination.
Each holder of a Security of any series by his acceptance thereof
authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article and appoints the Trustee his attorney-in-fact for any and all such
purposes.
Section 1309. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any failure to act, in good faith, by any such holder, or by any
non-compliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the Securities
of any series, without incurring responsibility to the Holders of the Securities
of any series and without impairing or releasing the subordination provided in
this Article or the obligations hereunder of the Holders of the Securities to
the holders of Senior Indebtedness, do any one or more of the following: (i)
change the manner, place or terms of payment or extend the time of payment of,
or renew or alter, Senior Indebtedness, or otherwise amend or supplement in any
manner
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Senior Indebtedness or any instrument evidencing the same or any agreement under
which Senior Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (iii) release any Person liable in any manner for the collection
of Senior Indebtedness; and (iv) exercise or refrain from exercising any rights
against the Company and any other Person.
Section 1310. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by the
Trustee in respect of the Securities of any series. Notwithstanding the
provisions of this Article or any other provision of this Indenture, the Trustee
shall not be charged with knowledge of the existence of any facts which would
prohibit the making of any payment to or by the Trustee in respect of the
Securities of a series, unless and until the Trustee shall have received written
notice thereof from the Company or a holder of Senior Indebtedness or from any
trustee therefor or representative thereof; and, prior to the receipt of any
such written notice, the Trustee, subject to the provisions of Section 601,
shall be entitled in all respects to assume that no such facts exist; provided,
however, that if the Trustee shall not have received the notice provided for in
this Section at least two Business Days prior to the date upon which by the
terms hereof any money may become payable for any purpose (including, without
limitation, the payment of the principal (and premium, if any) or interest on
any Security), then, anything herein contained to the contrary notwithstanding,
the Trustee shall have full power and authority to receive such money and to
apply the same to the purpose for which such money was received and shall not be
affected by any notice to the contrary which may be received by it within two
Business Days prior to such date.
Subject to the provisions of Section 601, the Trustee shall be entitled
to rely on the delivery to it of a written notice by a Person representing
himself to be a holder of Senior Indebtedness (or a trustee therefor or
representative thereof) to establish that such notice has been given by a holder
of Senior Indebtedness (or a trustee therefor or representative thereof). In the
event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article, and if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
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Section 1311. Reliance on Judicial Order or Certificate of Liquidation
Agent.
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee, subject to the provisions of Section 601, and the
Holders of the Securities of any series shall be entitled to rely upon any order
or decree entered by any court of competent jurisdiction in which such
insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution,
winding up or similar case or proceeding is pending, or a certificate of the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for
the benefit of creditors, agent or other Person making such payment or
distribution, delivered to the Trustee or to the Holders of Securities of such
series, for the purpose of ascertaining the Persons entitled to participate in
such payment or distribution, the holders of the Senior Indebtedness and other
indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article.
Section 1312. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders if it
shall in good faith mistakenly pay over or distribute to Holders of Securities
of any series or to the Company or to any other Person cash, property or
securities to which any holders of Senior Indebtedness shall be entitled by
virtue of this Article or otherwise.
Section 1313. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Indebtedness which
may at any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 607.
Section 1314. Article Applicable to Paying Agents.
In case at any time any Payment Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee;
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provided, however, that Section 1313 shall not apply to the Company or any
Affiliate of the Company if it or such Affiliate acts as Payment Agent.
ARTICLE FOURTEEN
Defeasance and Covenant Defeasance
Section 1401. Applicability of Article; Company's Option to
Effect Defeasance or Covenant Defeasance.
If pursuant to Section 301 provision is made for either or both of (a)
defeasance of the Securities of a series under Section 1402 or (b) covenant
defeasance of the Securities of a series under Section 1403, then the provisions
of such Section or Sections, as the case may be, together with the other
provisions of this Article Thirteen, shall be applicable to the Securities of
such series, and the Company may at its option by Board Resolution, at any time,
with respect to the Securities of such series, elect to have either Section 1402
(if applicable) or Section 1403 (if applicable) be applied to the Outstanding
Securities of such series upon compliance with the conditions set forth below in
this Article Fourteen.
Section 1402. Defeasance and Discharge.
Upon the Company's exercise of the above option applicable to this
Section, the Company shall be deemed to have been discharged from its
obligations with respect to the Outstanding Securities of such series on and
after the date the conditions precedent set forth below are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Company shall be deemed to have paid and discharged the entire indebtedness
represented by the outstanding Securities of such series and to have satisfied
all its other obligations under such Securities and this Indenture, including
the provisions of Article Thirteen hereof, insofar as such Securities are
concerned (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of Outstanding Securities of such series to receive, solely from the
trust fund described in Section 1405 as more fully set forth in such Section,
payments of the principal of (and premium, if any) and interest on such
Securities when such payments are due, (B) the Company's obligations with
respect to such Securities under Sections 304, 305, 306, 1002 and 1004 and such
obligations as shall be ancillary thereto, (C) the rights, powers, trusts,
duties, immunities and other provisions in respect of the Trustee hereunder and
(D) this Article Fourteen. Subject to compliance with this Article Fourteen, the
Company may exercise its option under this Section 1402 notwithstanding the
prior exercise of its option under Section 1403 with respect to the Securities
of such series. Following a defeasance,
-73-
payment of the Securities of such series may not be accelerated because of an
Event of Default.
Section 1403. Covenant Defeasance.
Upon the Company's exercise of the above option applicable to this
Section and after the date the conditions set forth below are satisfied, the
Company shall be released from its obligations under Section 1005 and Section
1006 and under any additional or substitute covenant established with respect to
the Securities of any series pursuant to Section 301(18) if the Securities of
such series have been determined pursuant to Section 301 to be subject to this
provision (with Section 1005, Section 1006 and any such additional or substitute
covenant referred to herein as a "Defeasable Covenant"), and the occurrence of
an event specified in Section 501(d) with respect to such Defeasable Covenant
shall not be deemed to be an Event of Default with respect to the Outstanding
Securities of such series (hereinafter, "covenant defeasance"). For this
purpose, such covenant defeasance means that, with respect to the outstanding
Securities of such series, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
Defeasable Covenant whether directly or indirectly by reason of any reference
elsewhere herein to any such Defeasable Covenant or by reason of any reference
in any such Defeasable Covenant to any other provision herein or in any other
document, but the remainder of this Indenture and such Securities shall be
unaffected thereby. Following a covenant defeasance, payment of the Securities
of such series may not be accelerated because of an Event of Default specified
in Section 501(e) or Section 501(f) or by reference to Section 501(d) and such
Defeasable Covenant.
Section 1404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions precedent to application of
either Section 1402 or Section 1403 to the outstanding Securities of such
series:
(1) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 609 who shall agree to comply with the
provisions of this Article Fourteen applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to the benefit of the
Holders of such Securities, (A) money in an amount, or (B) U.S.
Government Obligations which through the scheduled payment of principal
and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment,
money in an amount, or (C) a combination thereof, sufficient, without
reinvestment, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or other qualifying trustee) to pay and
discharge, the principal of (and premium, if any) and
-74-
interest on the outstanding Securities of such series on the Maturity
of such principal, premium, if any, or interest and any mandatory
sinking fund payments or analogous payments applicable to the
Outstanding Securities of such series on the due dates thereof. Before
such a deposit the Company may make arrangements satisfactory to the
Trustee for the redemption of Securities at a future date or dates in
accordance with Article Eleven, which shall be given effect in applying
the foregoing. For this purpose, "U.S. Government Obligations" means
securities that are (x) direct obligations of the United States of
America for the payment of which its full faith and credit is pledged
or (y) obligations of a Person controlled or supervised by and acting
as an agency or instrumentality of the United States of America the
payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either
case, are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank
(as defined in Section 3(a)(2) of the Securities Act of 1933, as
amended) as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any
such U.S. Government Obligation held by such custodian for the account
of the holder of such depository receipt, provided that (except as
required by law) such custodian is not authorized to make any deduction
from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal of or interest on the
U.S. Government Obligation evidenced by such depository receipt.
(2) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to the
Securities of such series shall have occurred and be continuing (A) on
the date of such deposit or (B) insofar as subsections 501(e) and (f)
are concerned, at any time during the period ending on the 91st day
after the date of such deposit or, if longer, ending on the day
following the expiration of the longest preference period applicable to
the Company in respect of such deposit (it being understood that the
condition in this Clause (B) shall not be deemed satisfied until the
expiration of such period).
(3) Such defeasance or covenant defeasance shall not (A) cause
the Trustee for the Securities of such series to have a conflicting
interest as defined in Section 608 or for purposes of the Trust
Indenture Act with respect to any securities of the Company or (B)
result in the trust arising from such deposit to constitute, unless it
is qualified as, a regulated investment company under the Investment
Company Act of 1940, as amended.
(4) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, this Indenture
or any other agreement or instrument to which the Company is a party or
by which it is bound.
-75-
(5) Such defeasance or covenant defeasance shall not cause any
Securities of such series then listed on any registered national
securities exchange under the Exchange Act to be delisted.
(6) In the case of an election under Section 1402, the Company
shall have delivered to the Trustee an opinion of Counsel stating that
(x) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (y) since the date of this
Indenture there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of the outstanding Securities of such
series will not recognize income, gain or loss for Federal income tax
purposes as a result of such defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such defeasance had not occurred.
(7) In the case of an election under Section 1403, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the Outstanding Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a
result of such covenant defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not
occurred.
(8) Such defeasance or covenant defeasance shall be effected in
compliance with any additional terms, conditions or limitations which
may be imposed on the Company in connection therewith pursuant to
Section 301.
(9) At the time of such deposit: (A) no default in the payment
of all or a portion of principal of (or premium, if any) or interest on
any Senior Indebtedness shall have occurred and be continuing, and no
event of default with respect to any Senior Indebtedness shall have
occurred and be continuing and shall have resulted in such Senior
Indebtedness becoming or being declared due and payable prior to the
date on which it would otherwise have become due and payable and (B) no
other event of default with respect to any Senior Indebtedness shall
have occurred and be continuing permitting (after notice or the lapse
of time, or both) the holders of such Senior Indebtedness (or a trustee
on behalf of the holders thereof) to declare such Senior Indebtedness
due and payable prior to the date on which it would otherwise have
become due and payable, or, in the case of either Clause (A) or Clause
(B) above, each such default or Event of Default shall have been cured
or waived or shall have ceased to exist.
-76-
(10) The Company shall have paid, or provided for the payment
of, the fees and expenses of the Trustee payable pursuant to Section
607.
(11) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance
under Section 1402 or the covenant defeasance under Section 1403 (as
the case may be) have been complied with.
Section 1405. Deposited Money and U.S. Government
Obligations to Be Held in Trust;
Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1004, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee -- collectively, for purposes of
this Section 1405, the "Trustee") pursuant to Section 1404 in respect of the
Outstanding Securities of such series shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any Paying Agent (but not
including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal (and premium, if any) and interest, but such
money need not be segregated from other funds except to the extent required by
law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the money or U.S. Government
Obligations deposited pursuant to Section 1404 or the principal and interest
received in respect thereof.
Anything herein to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon Company Request any money
or U.S. Government Obligations held by it as provided in Section 1404 which, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect an equivalent defeasance or covenant defeasance.
Section 1406. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 1405 by reason of any order or judgment or any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under the Securities of such series
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article Fourteen until such time as the
-77-
Trustee or Paying Agent is permitted to apply all such money in accordance with
Section 1405; provided, however, that if the Company makes any payment of
principal of (and premium, if any) or interest on any such Security following
the reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such Securities to receive such payment from the money
held by the Trustee or the Paying Agent.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
RAYTHEON COMPANY
By:
--------------------------
Name:
Title:
Attest:
- -----------------------------
THE BANK OF NEW YORK
By:
--------------------------
Name:
Title:
Attest:
- -----------------------------
-78-
COMMONWEALTH OF MASSACHUSETTS )
) ss.: Lexington
COUNTY OF MIDDLESEX )
On the________ day of July, 1995, before me personally came
_________________, to me known, who, being by as duly sworn, did depose and say
that he is ____________________ of Raytheon Company, one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
-----------------------------
STATE OF NEW YORK )
) ss.:
COUNTY OF ____________ )
On the ______ day of July, 1995, before me personally came
____________, to me known, who, being by me duly sworn, did depose and say that
he is a _____________________ of The Bank of New York, a bank described in and
which executed the foregoing instrument; that he knows the seal of said
association; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
association, and that he signed his name thereto by like authority.
----------------------------
Exhibit 4.12
THIRD AMENDMENT TO RIGHTS AGREEMENT
This THIRD AMENDMENT TO RIGHTS AGREEMENT, dated as of April 5, 2002
(the "Amendment"), amends the Rights Agreement dated as of December 15, 1997,
which was previously amended on May 15, 2001 (the "Rights Agreement") and is
between Raytheon Company, a Delaware corporation (the "Company"), and American
Stock Transfer & Trust Company, as Rights Agent (the "Rights Agent").
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company
and the Rights Agent may from time to time supplement or amend the Rights
Agreement in accordance with the provisions thereof;
WHEREAS, the Company has determined that it is in the best interest of
the Company and its stockholders to amend the Rights Agreement as set forth
herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements set forth herein, and intending to be legally bound, the parties
hereto agree as follows:
1. Section 1 of the Rights Agreement is hereby modified and amended as
follows:
The definition of Preferred Shares is deleted and replaced with the
following:
"Preferred Shares" shall mean shares of Series B Junior
Participating Preferred Stock, $.01 par value per share, of
the Company having the rights and preferences set forth in the
Certificate of Designation of the Series B Junior
Participating Preferred Stock.
2. Exhibit A of the Rights Agreement is hereby modified and amended as
follows:
The reference in the first sentence of the Form of Right
Certificate to "Series A Junior Participating Preferred Stock,
$.01 par value per share" is deleted and replaced with "Series
B Junior Participating Preferred Stock, $.01 par value per
share".
3. This Amendment shall be deemed to be a contract made under the laws
of the State of Delaware and for all purposes shall be governed by and construed
in accordance with the laws of such State applicable to contracts to be made and
performed entirely within such State.
4. All acts and things necessary to make this Amendment a valid
agreement, enforceable according to its terms, have been done and performed, and
the execution and delivery of this Amendment by the Company and the Rights Agent
have been in all respects duly authorized by the Company and the Rights Agent.
5. This Amendment may be executed in any number of counterparts, each
of which shall be an original, but such counterparts shall together constitute
one and the same instrument. Terms not defined herein shall, unless the context
otherwise requires, have the meanings assigned to such terms in the Rights
Agreement.
6. In all respects not inconsistent with the terms and provisions of
this Amendment, the Rights Agreement is hereby ratified, adopted, approved and
confirmed. In executing and delivering this Amendment, the Rights Agent shall be
entitled to all the privileges and immunities afforded to the Rights Agent under
the terms and conditions of the Rights Agreement.
7. If any term, provision, covenant or restriction of this Amendment is
held by a court of competent jurisdiction or other authority to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Amendment, and of the Rights Agreement, shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
[Remainder of Page Intentionally Left Blank]
-2-
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and attested, as of the date first set forth
above.
Attest: RAYTHEON COMPANY
By: /s/ John W. Kapples By: /s/ Neal E. Minahan
John W. Kapples Neal E. Minahan
Vice President and Secretary Senior Vice President and
General Counsel
Attest: AMERICAN STOCK TRANSFER
& TRUST COMPANY
By: /s/Susan Silber By: /s/ Herbert J. Lemmer
Susan Silber Herbert J. Lemmer
Assistant Secretary General Counsel
EXHIBIT 4.20
================================================================================
FORM OF
AMENDED AND RESTATED
DECLARATION OF TRUST
OF RC TRUST II
DATED AS OF [ , ]
================================================================================
Certain Sections of this Declaration relating to Sections 310 through 318,
inclusive, of the Trust Indenture Act of 1939:
Trust Indenture Declaration
Act Section Section
ss.310 (a)(1)...........................................................6.2, 6.3
(a)(2)................................................................6.3
(a)(3).....................................................Not Applicable
(a)(4) ....................................................Not Applicable
(a)(5)................................................................6.3
(b)...................................................................6.3
(c)........................................................Not Applicable
ss.311 (a)...................................................................2.2
(b)...................................................................2.2
(c)........................................................Not Applicable
ss.312.......................................................................2.2
ss.313 (a)...................................................................2.3
(b)...................................................................2.3
(c)...................................................................2.3
(d)...................................................................2.3
ss.314 (a)...................................................................2.4
(b)...................................................................2.4
(c)...................................................................2.4
(d)...................................................................2.4
(e)...................................................................1.1
ss.315 (a)...................................................................9.2
(b)...................................................................2.7
(c)...................................................................3.9
(d)...................................................................3.9
(e)........................................................Not Applicable
ss.316 (a)..............................................................2.6, 7.5
(b)..................................................................11.1
(c)..................................................................11.2
ss.317 (a).............................................................3.8, 3.16
(b)...................................................................3.7
ss.318 (a)...................................................................2.1
- ----------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Declaration.
Table of Contents
Page
ARTICLE 1 INTERPRETATION AND DEFINITIONS..................................................................1
Section 1.1 Interpretation and Definitions.........................................................1
ARTICLE 2 TRUST INDENTURE ACT.............................................................................9
Section 2.1 Trust Indenture Act; Application.......................................................9
Section 2.2 Lists of Holders of the Securities....................................................10
Section 2.3 Reports by the Property Trustee.......................................................10
Section 2.4 Periodic Reports to the Property Trustee..............................................10
Section 2.5 Evidence of Compliance with Conditions Precedent......................................10
Section 2.6 Trust Enforcement Events; Waiver......................................................10
Section 2.7 Trust Enforcement Event; Notice.......................................................12
ARTICLE 3 ORGANIZATION...................................................................................12
Section 3.1 Name and Organization.................................................................12
Section 3.2 Office................................................................................12
Section 3.3 Purpose...............................................................................12
Section 3.4 Authority.............................................................................13
Section 3.5 Title to Property of the Trust........................................................13
Section 3.6 Powers and Duties of the Regular Trustees.............................................13
Section 3.7 Prohibition of Actions by the Trust and the Trustees..................................17
Section 3.8 Powers and Duties of the Property Trustee.............................................18
Section 3.9 Certain Duties and Responsibilities of the Property Trustee...........................20
Section 3.10 Certain Rights of Property Trustee....................................................21
Section 3.11 Delaware Trustee......................................................................23
Section 3.12 Execution of Documents................................................................23
Section 3.13 Not Responsible for Recitals or Issuance of Securities................................23
Section 3.14 Duration of Trust.....................................................................24
Section 3.15 Mergers...............................................................................24
Section 3.16 Property Trustee May File Proofs of Claim.............................................25
ARTICLE 4 THE SPONSOR....................................................................................26
Section 4.1 Responsibilities of the Sponsor.......................................................26
Section 4.2 Indemnification and Expenses of the Trustees..........................................27
Section 4.3 Guarantee of Payment of Trust Obligations.............................................27
ARTICLE 5 THE HOLDER OF THE COMMON SECURITIES............................................................28
Section 5.1 Notes Issuer's Acquisition of the Common Securities...................................28
Section 5.2 Covenants of the Notes Issuer.........................................................28
Section 5.3 Holder of the Common Securities.......................................................28
i
Table of Contents
(Continued)
Page
ARTICLE 6 THE TRUSTEES...................................................................................29
Section 6.1 Number of Trustees....................................................................29
Section 6.2 Delaware Trustee; Eligibility.........................................................29
Section 6.3 Property Trustee; Eligibility.........................................................29
Section 6.4 Qualifications of the Regular Trustees Generally......................................30
Section 6.5 Initial Trustees......................................................................30
Section 6.6 Appointment, Removal and Resignation of the Trustees..................................31
Section 6.7 Vacancies among Trustees..............................................................32
Section 6.8 Effect of Vacancies...................................................................32
Section 6.9 Meetings..............................................................................32
Section 6.10 Delegation of Power by the Regular Trustees...........................................33
Section 6.11 Merger, Consolidation, Conversion or Succession to Business...........................33
ARTICLE 7 TERMS OF THE SECURITIES........................................................................33
Section 7.1 General Provisions Regarding the Securities...........................................33
Section 7.2 Distributions.........................................................................36
Section 7.3 Redemption of Securities..............................................................38
Section 7.4 Redemption Procedures.................................................................38
Section 7.5 Voting Rights of the Preferred Securities.............................................39
Section 7.6 Voting Rights of the Common Securities................................................41
Section 7.7 Paying Agent..........................................................................42
Section 7.8 Listing...............................................................................43
Section 7.9 Transfer of the Securities............................................................43
Section 7.10 Mutilated, Destroyed, Lost or Stolen Certificates.....................................44
Section 7.11 Deemed Holders........................................................................44
Section 7.12 Global Securities.....................................................................44
Section 7.13 Authorized Denominations..............................................................46
Section 7.14 [RESERVED]............................................................................46
ARTICLE 8 DISSOLUTION AND TERMINATION OF THE TRUST.......................................................46
Section 8.1 Dissolution and Termination of the Trust..............................................46
Section 8.2 Liquidation Distribution upon Dissolution of the Trust................................47
ARTICLE 9 LIMITATION OF LIABILITY OF HOLDERS OF THE SECURITIES, THE DELAWARE TRUSTEE AND OTHERS..........49
Section 9.1 Liability.............................................................................49
Section 9.2 Exculpation...........................................................................49
Section 9.3 Fiduciary Duty........................................................................49
Section 9.4 Indemnification.......................................................................50
Section 9.5 Outside Businesses....................................................................51
ii
Table of Contents
(Continued)
Page
ARTICLE 10 ACCOUNTING.....................................................................................52
Section 10.1 Fiscal Year...........................................................................52
Section 10.2 Certain Accounting Matters............................................................52
Section 10.3 Banking...............................................................................52
Section 10.4 Withholding...........................................................................52
ARTICLE 11 AMENDMENTS AND MEETINGS........................................................................53
Section 11.1 Amendments............................................................................53
Section 11.2 Meetings of the Holders of the Securities; Action by Written Consent..................55
ARTICLE 12 REPRESENTATIONS OF THE PROPERTY TRUSTEE AND THE DELAWARE TRUSTEE...............................56
Section 12.1 Representations and Warranties of the Property Trustee................................56
Section 12.2 Representations and Warranties of the Delaware Trustee................................57
ARTICLE 13 MISCELLANEOUS..................................................................................58
Section 13.1 Notices...............................................................................58
Section 13.2 Governing Law.........................................................................59
Section 13.3 Intention of the Parties..............................................................59
Section 13.4 Headings..............................................................................59
Section 13.5 Successors and Assigns................................................................59
Section 13.6 Partial Enforceability................................................................59
Section 13.7 Counterparts..........................................................................59
Exhibit A. Form of Preferred Securities Certificate
Exhibit B. Form of Common Securities Certificate
iii
FORM OF AMENDED AND RESTATED DECLARATION OF TRUST1
This Amended and Restated Declaration of Trust of RC Trust II
("Declaration"), dated as of [ , ], by and among Raytheon Company, a
Delaware corporation, as Sponsor, [Richard A. Goglia][, and ], as
the initial Regular Trustees, [The Bank of New York], as the initial Property
Trustee, [The Bank of New York (Delaware)], as the initial Delaware Trustee, as
Trustees, and the Holders, from time to time, of the Securities representing
undivided beneficial ownership interests in the assets of RC Trust II to be
issued pursuant to this Declaration.
WHEREAS, certain of the Trustees and the Sponsor established RC Trust
II (the "Trust"), a business trust under the Business Trust Act, pursuant to a
Declaration of Trust dated as of April 4, 2001 (the "Original Declaration"), and
a Certificate of Trust (the "Certificate of Trust") filed with the Secretary of
State of the State of Delaware on April 4, 2001; and
WHEREAS, the exclusive purposes and functions of the Trust shall be to
issue the Securities (as defined herein) in exchange for the Notes issued by the
Notes Issuer (each as defined herein) and except as otherwise limited herein, to
engage in only those other activities necessary or incidental thereto; and
WHEREAS, the parties hereto, by this Declaration, amend and restate
each and every term and provision of the Original Declaration.
NOW, THEREFORE, it being the intention of the parties hereto to
continue the Trust as a business trust under the Business Trust Act and that
this Declaration constitute the governing instrument of such business trust, the
Trustees hereby declare that all assets contributed to the Trust be held in
trust for the benefit of the Holders, from time to time, of the Securities
representing undivided beneficial ownership interests in the assets of the Trust
issued hereunder, subject to the provisions of this Declaration.
ARTICLE 1
INTERPRETATION AND DEFINITIONS
Section 1.1 Interpretation and Definitions. Unless the context
otherwise requires:
(a) capitalized terms used in this Declaration but not defined
in the preamble above shall have the meanings assigned to them in this Section
1.1;
- --------
1 Certain additional provisions and defined terms to be added
if the Trust were to issue equity units comprised of (A) a purchase contract
under which (i) the holder of the unit agrees to purchase from Raytheon Company
and Raytheon Company agrees to sell to the holder a certain number of shares of
its common stock pursuant to a purchase contract agreement and (ii) Raytheon
Company agrees to pay such holder contract adjustment payments and (B) either
beneficial ownership of (i) a Preferred Security or Note, or in certain
circumstances following the occurrence of a Tax Event, the appropriate
applicable ownership interest of the treasury portfolio or (ii) following any
remarketing of the Preferred Securities pursuant to a purchase contract
agreement and a remarketing agreement, the appropriate Treasury Consideration
(as defined in the purchase contract agreement).
(b) a term defined anywhere in this Declaration shall have the
same meaning throughout;
(c) all references to "the Declaration" or "this Declaration"
shall be to this Declaration as modified, supplemented or amended from time to
time;
(d) all references in this Declaration to Articles, Sections,
Recitals and Exhibits shall be to Articles and Sections of, or Recitals and
Exhibits to, this Declaration unless otherwise specified;
(e) unless otherwise defined in this Declaration, a term
defined in the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), shall have the same meaning when used in this Declaration;
(f) a reference to the singular shall include the plural and
vice versa, and a reference to any masculine form of a term shall include the
feminine or neuter form of a term, as applicable; and
(g) the following terms shall have the following meanings:
"Affiliate" of any specified Person shall mean any other
Person directly or indirectly controlling or controlled by, or under direct or
indirect common control with, such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person shall mean
the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" shall have meanings
correlative to the foregoing.
"Authorized Officer" of a Person shall mean any Person that is
authorized to bind such Person.
"Beneficial Owner" shall mean, with respect to a Global
Security, a Person who is the beneficial owner of such book-entry interest as
reflected on the books of the Depositary or on the books of a Person maintaining
an account with such Depositary (directly as a Depositary Participant or as an
indirect participant, in each case in accordance with the rules of such
Depositary).
"Beneficiaries" shall have the meaning set forth in Section
4.3.
"Business Day" shall mean any day other than a Saturday,
Sunday or any other day on which banking institutions in the Commonwealth of
Massachusetts are authorized or obligated by law or executive order to be
closed.
"Business Trust Act" shall mean Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from time
to time, or any successor legislation.
-2-
"Certificate" shall mean a Common Security Certificate or a
Preferred Security Certificate.
"Clearing Agency" shall mean an organization registered as a
"Clearing Agency" pursuant to Section 17A of the Exchange Act that is acting as
depository for the Preferred Securities and in whose name or in the name of a
nominee of that organization shall be registered a Global Certificate and which
shall undertake to effect book entry transfers and pledges of the Preferred
Securities.
"Closing Date" shall mean the date on which the Preferred
Securities are issued and sold.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, or any successor legislation. A reference to a
specific section of the Code refers not only to such specific section but also
to any corresponding provision of any federal tax statute enacted after the date
of this Declaration, as such specific section or corresponding provision is in
effect on the date of application of the provisions of this Declaration
containing such reference.
"Commission" shall mean the United States Securities and
Exchange Commission.
"Common Securities" shall have the meaning specified in
Section 7.1(a).
"Common Security Certificate" shall mean a definitive
certificate in fully registered form representing a Common Security,
substantially in the form of Exhibit B hereto.
"Common Stock" shall mean the Common Stock, par value $.01, of
the Company.
"Company" shall mean Raytheon Company, a Delaware corporation,
the Sponsor, Notes Issuer, and the parent of the Trust.
"Compounded Distributions" shall have the meaning specified in
Section 7.2(b).
"Corporate Trust Office" shall mean the principal office of
the Property Trustee at which, at any particular time, its corporate trust
business shall be administered, which office at the date hereof is located at [
], Attn: [ ] or such other address as the Property Trustee may designate.
"Covered Person" shall mean (A) any officer, director,
shareholder, partner, member, representative, employee or agent of (i) the
Sponsor, (ii) the Sponsor's Affiliates, (iii) the Trust or (iv) the Trust's
Affiliates and (B) any Holder.
"Delaware Trustee" shall mean the Trustee meeting the
eligibility requirements set forth in Section 6.2.
"Depositary" shall mean, with respect to Securities issuable
in whole or in part in the form of one or more Global Securities, a clearing
agency registered under the Exchange Act
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that is designated to act as depositary for such Securities, and initially shall
be The Depository Trust Company.
"Depositary Agreement" shall mean the agreement among the
Trust, the Property Trustee and the Depositary dated as of the Closing Date, as
the same may be amended or supplemented from time to time.
"Depositary Participant" shall mean a member of, or
participant in, the Depositary.
"Direct Action" shall have the meaning specified in Section
3.8(e).
"Distribution" shall mean a distribution payable to the
Holders in accordance with Section 7.2.
"Exchange Act" shall mean the Securities Exchange Act of 1934
and any statute successor thereto, in each case as amended from time to time,
and the rules and regulations of the Commission promulgated thereunder.
"First Delivery Date" shall have the meaning specified in the
Underwriting Agreement.
"Fiscal Year" shall have the meaning specified in Section
10.1.
"Foreign Person" shall mean any Person that is not a United
States Person.
"Global Certificate" shall have the meaning specified in
Section 7.1(h).
"Global Security" shall mean a global Preferred Security
Certificate registered in the name of a Depositary or its nominee.
"Guarantee" shall mean the guarantee of the Company for the
benefit of the beneficial holders of the Preferred Securities issued pursuant to
the Guarantee Agreement, dated as of [ , ], of the Sponsor, as may be amended
from time to time, in respect of the Securities.
"Holder" shall mean any holder of Preferred Securities or
Common Securities, as registered on the books and records of the Trust, such
holder being a beneficial owner within the meaning of the Business Trust Act,
provided that in determining whether the Holders of the requisite liquidation
amount of Preferred Securities have voted on any matter provided for in this
Declaration, then for the purpose of such determination only (and not for any
other purpose hereunder), if the Preferred Securities remain in the form of one
or more Global Securities and if the Depositary that is the holder of such
Global Securities has sent an omnibus proxy to the Depositary Participants to
whose accounts the Preferred Securities are credited on the record date, the
term "Holders" shall mean such Depositary Participants acting at the direction
of the Beneficial Owners.
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"Indemnified Person" shall mean any Trustee, any Affiliate of
any Trustee, any Paying Agent, any officers, directors, shareholders, members,
partners, employees, representatives or agents of any Trustee, Affiliate of a
Trustee or Paying Agent, or any officer, employee or agent of the Trust or any
of its Affiliates.
"Indenture" shall mean the indenture dated as of July 3, 1995,
as supplemented by a supplemental indenture relating to the Notes, dated as of [
, ], between the Notes Issuer and the Indenture Trustee (including the
provisions of the Trust Indenture Act that are deemed incorporated therein),
pursuant to which the Notes are to be issued.
"Indenture Event of Default" shall have the meaning given to
the term "Event of Default" in the Indenture.
"Indenture Trustee" shall mean The Bank of New York, a New
York banking corporation, in its capacity as trustee under the Indenture, or any
successor thereto.
"Investment Company" shall mean an investment company as
defined in the Investment Company Act.
"Investment Company Act" shall mean the Investment Company Act
of 1940, as amended from time to time, or any successor legislation and the
rules and regulations of the Commission promulgated thereunder.
"Legal Action" shall have the meaning specified in Section
3.6(g).
"List of Holders" shall have the meaning specified in Section
2.2(a).
"Majority in Liquidation Amount" shall mean, except as
provided by the Trust Indenture Act, Holders of outstanding Securities, voting
together as a single class, or, as the context may require, Holders of
outstanding Preferred Securities or Holders of the outstanding Common
Securities, voting separately as a class, who are the record owners of more than
50% of the aggregate liquidation amount (including the stated amount that would
be paid on redemption, liquidation or otherwise, plus accumulated and unpaid
Distributions to the date upon which the voting percentages are determined) of
all outstanding Securities, Preferred Securities or Common Securities, as the
case may be.
"New York Stock Exchange" shall mean the New York Stock
Exchange, Inc. or any successor thereto. "Notes" shall mean the series of [name
of series of Notes issued pursuant to Indenture], due [ ] to be issued by the
Notes Issuer under the Indenture and exchanged for the Securities pursuant to
Section 3.6 and held by the Property Trustee.
"Notes Issuer" shall mean the Company or any successor entity
in a merger, consolidation, conversion, amalgamation or replacement by or
conveyance, transfer or lease of its properties substantially as an entirety, in
its capacity as issuer of the Notes under the Indenture.
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"Obligations" shall have the meaning set forth in Section 4.3.
"Officers' Certificate" shall mean, when delivered by the
Trust, a certificate signed by a majority of the Regular Trustees of the Trust
and, when delivered by the Sponsor, a certificate signed by (A) the Chairman of
the Board, President or a Vice President of the Sponsor and (B) the Treasurer,
Assistant Treasurer or Secretary of the Sponsor. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Declaration shall include, where applicable:
(i) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
(ii) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering
the Officers' Certificate;
(iii) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Original Declaration" shall have the meaning specified in the
Recitals.
"Over-allotment Option" shall mean the over-allotment option
contained in the Underwriting Agreement.
"Paying Agent" shall have the meaning specified in Section
3.8(h).
"Payment Date" shall mean [ ], of each year,
commencing [ ].
"Payment Amount" shall have the meaning specified in Section
7.2(c).
"Person" shall mean a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Securities" shall have the meaning specified in
Section 7.1(a).
"Preferred Security Certificate" shall mean a definitive
certificate in fully registered form representing a Preferred Security,
substantially in the form of Exhibit A.
"Primary Treasury Dealer" shall mean a primary U.S. government
securities dealer in New York City.
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"Property Account" shall mean a segregated non-interest
bearing trust account maintained with a banking institution, the rating on whose
long-term unsecured indebtedness is at least equal to the rating assigned to the
Preferred Securities by a "nationally recognized statistical rating
organization" within the meaning of Rule 436(g)(2) under the Securities Act.
"Property Trustee" shall mean the Trustee meeting the
eligibility requirements set forth in Section 6.3.
"Pro Rata" shall mean pro rata to each Holder according to the
aggregate liquidation amount of the Securities held by such Holder in relation
to the aggregate liquidation amount of all Securities outstanding.
"Quorum" shall mean a majority of the Regular Trustees or, if
there are only two Regular Trustees, both of them.
"Quotation Agent" shall mean any Primary Treasury Dealer
selected by the Sponsor to act as the quotation agent in connection with a Tax
Event Redemption.
"Redemption/Distribution Notice" shall have the meaning
specified in Section 7.4(a).
"Redemption Price" shall mean the amount for which the
Securities will be redeemed pursuant to the Indenture, which amount will equal
the lesser of (i) the redemption price paid by the Notes Issuer to repay or
redeem, in whole but not in part, the Notes held by the Trust plus an amount
equal to accumulated and unpaid Distributions on such Securities through the
date of their redemption or the Tax Event Redemption Date in the case of a Tax
Event Redemption or (ii) the amount received by the Trust in respect of the
Notes so repaid or redeemed.
"Regular Trustee" shall mean any trustee of the Trust other
than the Property Trustee and the Delaware Trustee.
"Responsible Officer" shall mean, with respect to the Property
Trustee, any officer within the corporate trust department of the Property
Trustee, including any vice president, assistant vice president, assistant
treasurer, trust officer or any other officer of the Property Trustee who
customarily performs functions similar to those performed by persons who at the
time shall be officers, or who shall have direct responsibility for the
administration of this Declaration and also shall mean, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred due to that officer's knowledge of and familiarity with the particular
subject.
"Rule 3a-5" shall mean Rule 3a-5 under the Investment Company
Act or any successor rule thereunder.
"Second Delivery Date" shall have the meaning specified in the
Underwriting Agreement.
"Securities" shall mean the Common Securities and the
Preferred Securities.
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"Securities Act" shall mean the Securities Act of 1933, as
amended from time to time, or any successor legislation and the rules and
regulations of the Commission promulgated thereunder.
"Security Registrar" shall have the meaning specified in
Section 7.9(a)(iii).
"Sponsor" shall mean the Company or any successor entity in a
merger, consolidation, conversion, amalgamation or replacement by or conveyance,
transfer or lease of its properties substantially as an entirety, in its
capacity as sponsor of the Trust.
"Successor Delaware Trustee" shall have the meaning specified
in Section 6.6(b).
"Successor Entity" shall have the meaning specified in Section
3.15(b)(i).
"Successor Property Trustee" shall have the meaning specified
in Section 6.6(b).
"Successor Security" shall have the meaning specified in
Section 3.15(b)(i)(B).
"Supermajority" shall have the meaning specified in Section
2.6(b)(ii).
"Tax Event" shall mean the receipt by the Sponsor and the
Trust of an opinion of counsel, rendered by a law firm having a recognized
national tax practice, to the effect that, as a result of any amendment to,
change in or announced proposed change in the laws (or any regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein, or as a result of any official administrative
decision, pronouncement, judicial decision or action interpreting or applying
such laws or regulations, which amendment or change is effective or which
proposed change, pronouncement, action or decision is announced on or after the
Closing Date, there is more than an insubstantial increase in the risk that (i)
the Trust is, or within 90 days of the date of such opinion will be, subject to
United States federal income tax with respect to income received or accrued on
the Notes, (ii) interest (or original issue discount) payable by the Notes
Issuer on the Notes is not, or within 90 days of the date of such opinion will
not be, deductible by the Notes Issuer, in whole or in part, for United States
federal income tax purposes, or (iii) the Trust is, or within 90 days of the
date of such opinion will be, subject to more than a de minimis amount of other
taxes, duties or other governmental charges.
"Tax Event Redemption" shall mean that a Tax Event has
occurred and is continuing and the Notes have been called for redemption
pursuant to the Indenture.
"Tax Event Redemption Date" shall mean the date specified by
the Notes Issuer on which the Notes are redeemed pursuant to a Tax Event
Redemption pursuant to the Indenture.
"10% in Liquidation Amount" shall mean, except as provided by
the Trust Indenture Act, Holder(s) of outstanding Securities, voting together as
a single class, or, as the context may require, Holders of outstanding Preferred
Securities or Holders of outstanding Common Securities, voting separately as a
class, who are the record owners of 10% or more of the aggregate liquidation
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accumulated and unpaid Distributions to the date
upon which the voting percentages are determined) of all outstanding Securities
of the relevant class.
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"Treasury Regulations" shall mean the income tax regulations,
including temporary and proposed regulations, promulgated under the Code by the
United States Department of the Treasury, as such regulations may be amended
from time to time (including corresponding provisions of succeeding
regulations).
"Trust" shall have the meaning specified in the Recitals
hereto.
"Trust Enforcement Event" in respect of the Securities shall
mean that an Indenture Event of Default has occurred and is continuing in
respect of the Notes.
"Trust Indenture Act" shall mean the Trust Indenture Act of
1939, as amended from time to time, or any successor legislation and the rules
and regulations of the Commission promulgated thereunder.
"Trustee" or "Trustees" shall mean each Person that has signed
this Declaration as a trustee, so long as such Person continues in office in
accordance with the terms hereof, and all other Persons that from time to time
may be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
"United States Person" shall mean a United States person for
United States federal income tax purposes.
"Underwriters" shall have the meaning set forth in the
Underwriting Agreement.
"Underwriting Agreement" means the Terms Agreement dated as of
[ , ] between the Company and the Underwriters named therein, which amends and
incorporates by reference the Company's form of Underwriting Agreement.
ARTICLE 2
TRUST INDENTURE ACT
Section 2.1 Trust Indenture Act; Application.
(a) This Declaration is subject to the provisions of the Trust
Indenture Act that are required to be part of this Declaration and, to the
extent applicable, shall be governed by such provisions.
(b) The Property Trustee shall be the only Trustee that is a
trustee for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this
Declaration conflicts with the duties imposed by Sections 310 to 317, inclusive,
of the Trust Indenture Act, such imposed duties of the Trust Indenture Act shall
control.
(d) The application of the Trust Indenture Act to this
Declaration shall not affect the Trust's classification as a grantor trust for
United States federal income tax purposes
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and shall not affect the nature of the Securities as equity securities
representing undivided beneficial ownership interests in the assets of the
Trust.
Section 2.2 Lists of Holders of the Securities.
(a) Each of the Sponsor and the Regular Trustees on behalf of
the Trust shall provide the Property Trustee with a list of the names and
addresses of the Holders of the Securities in such form as the Property Trustee
may reasonably require ("List of Holders") (i) as of the record date relating to
the payment of any Distribution, at least [one] Business Day prior to the date
for payment of such Distribution, except while the Preferred Securities are
represented by one or more Global Securities, and (ii) at any other time, within
30 days of receipt by the Trust of a written request from the Property Trustee
for a List of Holders as of a date no more than 15 days before such List of
Holders is provided to the Property Trustee. If at any time the List of Holders
does not differ from the most recent List of Holders provided to the Property
Trustee by the Sponsor and the Regular Trustees on behalf of the Trust, then
neither the Sponsor nor the Regular Trustees shall be obligated to deliver such
List of Holders. The Property Trustee shall preserve, in as current a form as is
reasonably practicable, all information contained in Lists of Holders provided
to it or that it receives in its capacity as Paying Agent (if acting in such
capacity); provided that the Property Trustee may destroy any List of Holders
previously provided to it on receipt of a new List of Holders.
(b) The Property Trustee shall comply with its obligations
under, and shall be entitled to the benefits of, Sections 311(a), 311(b) and 312
of the Trust Indenture Act.
Section 2.3 Reports by the Property Trustee. Within 60 days after [ ]
of each year (commencing with the year of the first anniversary of the issuance
of the Preferred Securities), the Property Trustee shall provide to the Holders
of the Preferred Securities such reports as are required by Section 313 of the
Trust Indenture Act, if any, in the form and in the manner provided by Section
313 of the Trust Indenture Act. The Property Trustee also shall comply with the
requirements of Section 313(d) of the Trust Indenture Act.
Section 2.4 Periodic Reports to the Property Trustee. Each of the
Sponsor and the Regular Trustees on behalf of the Trust shall provide to the
Property Trustee such documents, reports and information as required by Section
314 of the Trust Indenture Act (if any) and the compliance certificate required
by Section 314 of the Trust Indenture Act in the form, in the manner and at the
times required by Section 314 of the Trust Indenture Act.
Section 2.5 Evidence of Compliance with Conditions Precedent. Each of
the Sponsor and the Regular Trustees on behalf of the Trust shall provide to the
Property Trustee such evidence of compliance with any conditions precedent, if
any, provided for in this Declaration that relate to any of the matters set
forth in Section 314(c) of the Trust Indenture Act. Any certificate or opinion
required to be given by an officer pursuant to Section 314(c)(1) may be given in
the form of an Officers' Certificate.
Section 2.6 Trust Enforcement Events; Waiver.
(a) An Indenture Event of Default constitutes an event of
default under this Declaration with respect to the Securities.
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(b) The Holders of a Majority in Liquidation Amount of the
Preferred Securities may waive, by vote or written consent, on behalf of the
Holders of all of the Preferred Securities, any past Trust Enforcement Event in
respect of the Preferred Securities and its consequences, provided that if the
underlying Indenture Event of Default:
(i) is not waivable under the Indenture, then the Trust
Enforcement Event under this Declaration also shall not be waivable;
and
(ii) requires the vote or consent of the holders of greater
than a majority in principal amount of the Notes (a "Supermajority") to
be waived under the Indenture, the related Trust Enforcement Event
under this Declaration only may be waived by the vote or written
consent of the Holders of at least the same Supermajority in aggregate
stated liquidation amount of the Preferred Securities outstanding.
The foregoing provisions of this Section 2.6(b) shall be in lieu of
Section 316(a)(1)(B) of the Trust Indenture Act, and Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act. Upon such waiver, any such
Trust Enforcement Event in respect of the Preferred Securities shall be deemed
to have been cured for every purpose of this Declaration and the Preferred
Securities, but no such waiver shall extend to any subsequent or other Trust
Enforcement Event with respect to the Preferred Securities or impair any right
consequent thereon. Any waiver by the Holders of the Preferred Securities of a
Trust Enforcement Event with respect to the Preferred Securities also shall be
deemed to constitute a waiver by the Holders of the Common Securities of any
such Trust Enforcement Event with respect to the Common Securities for all
purposes of this Declaration without any further act, vote or consent of the
Holders of the Common Securities.
(c) The Holders of a Majority in Liquidation Amount of the
Common Securities may waive, by vote or written consent, any past Trust
Enforcement Event in respect of the Common Securities and its consequences,
provided that if the underlying Indenture Event of Default is not waivable under
the Indenture, then, except where the Holders of the Common Securities are
deemed to have waived such Trust Enforcement as provided below in this Section
2.6(c), the related Trust Enforcement Event under this Declaration also shall
not be waivable. The Holders of the Common Securities shall be deemed to have
waived any and all Trust Enforcement Events in respect of the Common Securities
and the consequences thereof until all Trust Enforcement Events in respect of
the Preferred Securities shall have been cured, waived or otherwise eliminated.
Until all Trust Enforcement Events in respect of the Preferred Securities shall
have been so cured, waived or otherwise eliminated, the Property Trustee shall
be deemed to be acting solely on behalf of the Holders of the Preferred
Securities, and only the Holders of the Preferred Securities shall have the
right to direct the Property Trustee. The foregoing provisions of this Section
2.6(c) shall be in lieu of Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust
Indenture Act, and Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture
Act are hereby expressly excluded from this Declaration and the Securities, as
permitted by the Trust Indenture Act. Subject to the foregoing provisions of
this Section 2.6(c), upon such cure, waiver or other elimination, any Trust
Enforcement Event in respect of the Common Securities shall be deemed to have
been cured for every purpose of this Declaration and the Common Securities, but
no such waiver shall extend to any subsequent or other Trust Enforcement Event
with respect to the Common Securities or impair any right consequent thereon.
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(d) A waiver of an Indenture Event of Default under the
Indenture by the Property Trustee at the direction of the Holders of the
Preferred Securities shall constitute a waiver of the corresponding Trust
Enforcement Event under this Declaration. Any such waiver by the Holders of the
Preferred Securities also shall be deemed to constitute a waiver by the Holders
of the Common Securities of any such Trust Enforcement Event with respect to the
Common Securities for all purposes of this Declaration without any further act,
vote or consent of the Holders of the Common Securities. The foregoing
provisions of this Section 2.6(d) shall be in lieu of Section 316(a)(1)(B) of
the Trust Indenture Act, and Section 316(a)(1)(B) of the Trust Indenture Act is
hereby expressly excluded from this Declaration and the Securities, as permitted
by the Trust Indenture Act.
Section 2.7 Trust Enforcement Event; Notice.
(a) Within 90 days after the occurrence of a Trust Enforcement
Event actually known to a Responsible Officer of the Property Trustee, the
Property Trustee shall transmit by mail, first class postage prepaid, to the
Holders of the Securities, notice of such Trust Enforcement Event, unless such
Trust Enforcement Event has been cured before the giving of such notice, which
notice shall specify the Indenture Event of Default giving rise to the Trust
Enforcement Event and that the Indenture Event of Default also constitutes an
event of default under this Declaration; provided that, except for a default in
the payment of principal of (or premium, if any) or interest on any of the
Notes, the Property Trustee shall be protected in withholding such notice if and
so long as a Responsible Officer of the Property Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders of the Securities.
(b) The Property Trustee shall not be deemed to have knowledge
of any Trust Enforcement Event except for any default as to which the Property
Trustee shall have received written notice or of which a Responsible Officer of
the Property Trustee charged with the administration of this Declaration shall
have actual knowledge.
ARTICLE 3
ORGANIZATION
Section 3.1 Name and Organization. The Trust hereby continued is named
"RC Trust II," as such name may be modified from time to time by the Regular
Trustees following written notice to the Holders of the Securities. The Trust's
activities may be conducted under the name of the Trust or any other name deemed
advisable by the Regular Trustees.
Section 3.2 Office. The address of the principal office of the Trust is
141 Spring Street, Lexington, Massachusetts 02421. On ten Business Days' written
notice to the Holders of the Securities, the Regular Trustees may designate
another principal office.
Section 3.3 Purpose. The exclusive purposes and functions of the Trust
are (a) to acquire the Notes with the proceeds of the sale of the Securities and
(b) except as otherwise limited herein, to engage in only those other activities
necessary or incidental thereto. The Trust shall not borrow money, issue debt,
reinvest proceeds derived from investments, pledge any of
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its assets or otherwise undertake (or permit to be undertaken) any activity that
would cause the Trust not to be classified as a grantor trust for United States
federal income tax purposes.
By the acceptance of this Trust, none of the Trustees, the Sponsor, the
Holders of the Preferred Securities or the Common Securities or the Beneficial
Owners of the Preferred Securities will take any position that is contrary to
the classification of the Trust as a grantor trust for United States federal
income tax purposes.
Section 3.4 Authority.
(a) Subject to the limitations provided in this Declaration
and to the specific duties of the Property Trustee, the Regular Trustees shall
have exclusive authority to carry out the purposes of the Trust. Any action
taken by the Regular Trustees in accordance with their powers shall constitute
the act of and shall serve to bind the Trust, and any action taken by the
Property Trustee in accordance with its powers shall constitute the act of and
shall serve to bind the Trust. In dealing with the Trustees acting on behalf of
the Trust, no Person shall be required to inquire into the authority of the
Trustees to bind the Trust. Persons dealing with the Trust are entitled to rely
conclusively on the power and authority of the Trustees as set forth in this
Declaration.
(b) Except as expressly set forth in this Declaration and
except if a meeting of the Regular Trustees is called with respect to any matter
over which the Regular Trustees have power to act, any power of the Regular
Trustees may be exercised by or with the consent of any one such Regular
Trustee.
(c) Except as otherwise required by applicable law, any
Regular Trustee may delegate to any other natural person over the age of 21 that
is a United States Person, by power of attorney consistent with applicable law,
his or her power for the purposes of signing any documents that the Regular
Trustees have power and authority to cause the Trust to execute pursuant to
Section 3.6.
Section 3.5 Title to Property of the Trust. Except as provided in
Section 3.8 with respect to the Notes and the Property Account or as otherwise
provided in this Declaration, legal title to all assets of the Trust shall be
vested in the Trust. The Holders of the Securities shall not have legal title to
any part of the assets of the Trust but shall have undivided beneficial
ownership interests in the assets of the Trust.
Section 3.6 Powers and Duties of the Regular Trustees. The Regular
Trustees shall have the exclusive power, duty and authority to cause the Trust
to engage in the following activities:
(a) to acquire the Notes with the proceeds of the sale of the
Securities in accordance with this Declaration (including, without limitation,
to execute, deliver and perform the Purchase and Subscription Agreement, to be
dated as of [ , ], between the Sponsor and the Trust); provided that:
(i) the Trust may issue no more than one series of Preferred
Securities and no more than one series of Common Securities;
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(ii) there shall be no interests in the Trust other than the
Securities; and
(iii) the issuance of the Securities shall be limited to a
one-time, simultaneous issuance of both Preferred Securities and Common
Securities on the Closing Date, subject to the issuance of additional
Securities pursuant to the exercise of any Over-allotment Option;
(b) in connection with the issue and sale of the Preferred
Securities, to:
(i) assist in the preparation of a prospectus in preliminary
and final form prepared by the Sponsor in relation to the offering and
sale of Preferred Securities and to assist in the preparation and
filing with the Commission, on behalf of the Trust, of a registration
statement on Form S-3, or on another appropriate form, including
without limitation any registration statement under Rule 462(b) of the
Securities Act, in relation to the Preferred Securities and the
Guarantee, including any pre-effective or post-effective amendments
thereto and including any supplements or amendments to the form of
prospectus included therein, as permitted by the rules and regulations
of the Commission;
(ii) execute and file, on behalf of the Trust, any documents
prepared by the Sponsor, or take any acts as determined by the Sponsor
to be necessary, in order to qualify or register all or part of the
Preferred Securities in any state in which the Sponsor has determined
to qualify or register such Preferred Securities for sale;
(iii) at the direction of the Sponsor, execute and file, on
behalf of the Trust, any application, statement, certificate, agreement
or other instrument, prepared by the Sponsor, to the New York Stock
Exchange, or any other national securities exchange or the Nasdaq
National Market for listing or quotation of the Preferred Securities;
(iv) to execute and deliver letters, documents, or instruments
with any Clearing Agencies relating to the Preferred Securities;
(v) if required, execute and file with the Commission, on
behalf of the Trust, a registration statement on Form 8-A, including
any pre-effective or post-effective amendments thereto, prepared by the
Sponsor, relating to the registration of the Preferred Securities under
Section 12(b) or 12(g) of the Exchange Act; and
(vi) to cause the Trust to enter into such agreements and
arrangements as may be necessary or desirable in connection with the
sale of Preferred Securities to the underwriters thereof and the
consummation thereof, and to take all action as may be necessary or
desirable in connection with the consummation thereof;
(c) to acquire the Notes with the proceeds of the sale of the
Securities; provided, however, that the Regular Trustees shall cause legal title
to the Notes to be held of record in the name of the Property Trustee for the
benefit of the Holders of the Securities;
(d) to give the Sponsor and the Property Trustee prompt
written notice of the occurrence of a Tax Event; provided that the Regular
Trustees shall consult with the Sponsor and
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the Property Trustee before taking or refraining from taking any action in
relation to any such Tax Event;
(e) to establish a record date with respect to all actions to
be taken hereunder that require a record date to be established, including and
with respect to, for the purposes of Section 316(c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and exchanges, and to issue relevant
notices to the Holders of the Securities as to such actions and applicable
record dates;
(f) to take all actions and perform such duties as may be
required of the Regular Trustees pursuant to the terms of this Declaration and
the Securities;
(g) to bring or defend, pay, collect, compromise, arbitrate,
resort to legal action or otherwise adjust claims or demands of or against the
Trust ("Legal Action"), unless pursuant to Section 3.8(e), the Property Trustee
has the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who
may be designated as officers with titles) and managers, contractors, advisors
and consultants to conduct only those services that the Regular Trustees have
authority to conduct directly, and to pay reasonable compensation for such
services, provided that any Person so employed or engaged is a United States
Person;
(i) to cause the Trust to comply with the Trust's obligations
under the Trust Indenture Act;
(j) to give to the Property Trustee the certificate required
by Section 314(a)(4) of the Trust Indenture Act, which certificate may be
executed by any Regular Trustee;
(k) to incur expenses that are necessary or incidental to
carry out any of the purposes of the Trust;
(l) to act as, or appoint another Person to act as, registrar
and transfer agent for the Securities or to appoint a Paying Agent for the
Securities as provided in Section 3.8 except for such time as such power to
appoint a Paying Agent is vested in the Property Trustee;
(m) if applicable, to give prompt written notice to the
Property Trustee and to the Holders of any notice received from the Note Issuer
of its election to defer payments of interest on the Notes by extending the
interest payment period under the Indenture;
(n) to take all action that may be necessary or appropriate
for the preservation and continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of the
State of Delaware and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders of the Securities or
to enable the Trust to effect the purposes for which it was created;
(o) to take any action not inconsistent with applicable law,
this Declaration, the Certificate of Trust or the amended and restated
certificate of incorporation of the Company,
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as in effect from time to time, that the Regular Trustees determine in their
discretion to be necessary or desirable in carrying out the purposes and
functions of the Trust as set forth in Section 3.3 or the activities of the
Trust as set forth in this Section 3.6, including:
(i) causing the Trust not to be deemed to be an Investment
Company required to be registered under the Investment Company Act;
(ii) causing the Trust to be classified as a grantor trust for
United States federal income tax purposes; and
(iii) cooperating with the Notes Issuer to ensure that the
Notes will be treated as indebtedness of the Notes Issuer for United
States federal income tax purposes;
(p) to take all action necessary to cause all applicable tax
returns and tax information reports that are required to be filed with respect
to the Trust to be duly prepared and filed;
(q) to prepare, execute and file a certificate of cancellation
of the Trust's Certificate of Trust, if at all, pursuant to Section 8.1(b);
(r) in connection with the issuance of the Preferred
Securities, to execute, deliver and perform the Depositary Agreement on behalf
of the Trust;
(s) if and to the extent that the Sponsor on behalf of the
Trust has not already done so, to cause the Trust to enter into such other
agreements and arrangements as may be necessary or desirable in connection with
the sale of the Preferred Securities to the Underwriters and the consummation
thereof, and to take all action, and exercise all discretion, as may be
necessary or desirable in connection with the consummation thereof; and
(t) to execute all documents or instruments, perform all
duties and powers, and do all things for and on behalf of the Trust in all
matters necessary or incidental to the foregoing.
The Regular Trustees shall exercise the powers set forth in this
Section 3.6 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Regular Trustees shall have no power
to, and shall not, take any action that is inconsistent with the purposes and
functions of the Trust set forth in Section 3.3.
Except as expressly set forth in this Declaration and except if a
meeting of the Regular Trustees is called with respect to any matter over which
the Regular Trustees have power to act, any power of the Regular Trustees may be
exercised by, or with the consent of, any one such Regular Trustee.
Subject to this Section 3.6, the Regular Trustees shall have none of
the powers or the authority of the Property Trustee set forth in Section 3.8.
Any expenses incurred by the Regular Trustees pursuant to this Section 3.6 shall
be reimbursed by the Notes Issuer.
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Section 3.7 Prohibition of Actions by the Trust and the Trustees.
(a) The Trust shall not, and the Trustees (including the
Property Trustee) shall cause the Trust not to, engage in any activity other
than as required or authorized by this Declaration. In particular, the Trust
shall not and the Trustees (including the Property Trustee) shall cause the
Trust not to:
(i) invest any proceeds received by the Trust in connection
with its ownership of the Notes, but shall cause the Trust to
distribute all such proceeds to the Holders of the Securities pursuant
to the terms of this Declaration and of the Securities;
(ii) acquire any assets other than as expressly provided
herein;
(iii) possess property for any purpose other than a Trust
purpose;
(iv) make any loans or incur any indebtedness;
(v) possess any power or otherwise act in such a way as to
vary the Trust's assets;
(vi) possess any power or otherwise act in such a way as to
vary the terms of the Securities in any way whatsoever (except to the
extent expressly authorized in this Declaration or by the terms of the
Securities);
(vii) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than the
Securities;
(viii) other than as provided in this Declaration or by the
terms of the Securities, (A) direct the time, method and place of
exercising any trust or power conferred upon the Indenture Trustee with
respect to the Notes, (B) waive any past default that is waivable under
the Indenture, (C) exercise any right to rescind or annul any
declaration that the principal of all the Notes shall be due and
payable or (D) consent to any amendment, modification or termination of
the Indenture or the Notes where such consent is required, unless the
Trust has received an opinion of counsel to the effect that such
modification will not cause more than an insubstantial risk that the
Trust will not be classified as a grantor trust for United States
federal income tax purposes;
(ix) take any action inconsistent with the status of the Trust
as grantor trust for United States federal income tax purposes;
(x) revoke any action previously authorized or approved by
vote of the Holders of the Preferred Securities; or
(xi) after the date hereof, enter into any contract or
agreement (other than any depositary agreement or any agreement with
any securities exchange or automated quotation system) that does not
expressly provide that the Holders of Preferred Securities, in their
capacities as such, have limited liability (in accordance with the
provisions of the
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Business Trust Act) for the liabilities and obligations of the Trust,
which express provision shall be in substantially the following form:
The Holders of the Preferred Securities, in their capacities
as such, shall not be personally liable for any liabilities or
obligations of the Trust arising out of this Agreement, and
the parties hereto hereby agree that the Holders of the
Preferred Securities, in their capacities as such, shall 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.
The failure to include such language shall not cause any such contract
or agreement to be ultra vires.
Section 3.8 Powers and Duties of the Property Trustee.
(a) The legal title to the Notes shall be owned by and held of
record in the name of the Property Trustee in trust for the benefit of the Trust
and the Holders of the Securities. The right, title and interest of the Property
Trustee to the Notes shall vest automatically in each Person that hereafter may
be appointed as Property Trustee in accordance with Section 6.6. To the fullest
extent permitted by law, such vesting and cessation of title shall be effective
whether or not conveyancing documents with regard to the Notes have been
executed and delivered.
(b) The Property Trustee shall not transfer its right, title
and interest in the Notes to the Regular Trustees nor to the Delaware Trustee
(if the Property Trustee does not also act as Delaware Trustee).
(c) The Property Trustee shall:
(i) establish and maintain the Property Account in the name of
and under the exclusive control of the Property Trustee on behalf of
the Holders of the Securities and, upon the receipt of payments of
funds made in respect of the Notes, deposit such funds into the
Property Account and make payments to the Holders of the Securities
from the Property Account in accordance with Section 7.2 (funds in the
Property Account to be held uninvested until disbursed in accordance
with this Declaration);
(ii) engage in such ministerial activities as shall be
necessary or appropriate to effect the redemption of the Securities to
the extent the Notes are redeemed or mature; and
(iii) upon written direction by the Sponsor to dissolve the
Trust, to engage in such ministerial activities as shall be necessary
or appropriate to effect the distribution of the Notes to the Holders
of the Securities in exchange for the Securities.
(d) The Property Trustee shall take all actions and perform
such duties as may be specifically required of the Property Trustee pursuant to
the terms of this Declaration and the Securities.
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(e) The Property Trustee shall take any Legal Action that
arises out of or in connection with (i) a Trust Enforcement Event of which a
Responsible Officer of the Property Trustee has actual knowledge or (ii) the
Property Trustee's duties and obligations under this Declaration or the Trust
Indenture Act; provided that if a Trust Enforcement Event has occurred and is
continuing and such event is attributable to the failure of the Notes Issuer to
pay interest or principal on the Notes on the date such interest or principal is
otherwise payable, then a Holder of Preferred Securities may institute a
proceeding directly against the Notes Issuer to enforce payment to such Holder
of the principal or interest on Notes having an aggregate principal amount equal
to the aggregate liquidation amount of the Preferred Securities of such Holder
(a "Direct Action"); provided, further, if the Property Trustee fails to enforce
its rights under the Notes in respect of an Indenture Event of Default after a
Holder of Preferred Securities has made a written request that the Property
Trustee so enforce its rights, such Holder of Preferred Securities may, to the
fullest extent permitted by applicable law, institute a legal proceeding
directly against the Notes Issuer to enforce the rights of the Property Trustee
under the Indenture without first proceeding against the Property Trustee or any
other Person.
(f) The Property Trustee shall continue to serve as a Trustee
until either:
(i) the Trust has been completely liquidated and the proceeds
of the liquidation have been distributed to the Holders of the
Securities pursuant to the terms of the Securities; or
(ii) a Successor Property Trustee has been appointed and has
accepted that appointment in accordance with Section 6.6.
(g) The Property Trustee shall have the legal power to
exercise all of the rights, powers and privileges of a holder of Notes under the
Indenture (including, without limitation, the right, as sole holder of the
Notes, to declare the principal of and interest on the Notes, to be immediately
due and payable, pursuant to the terms of the Indenture) and if a Trust
Enforcement Event actually known to a Responsible Officer of the Property
Trustee occurs and is continuing, the Property Trustee shall enforce, for the
benefit of Holders of the Securities, its rights as holder of the Notes subject
to the rights of the Holders of the Securities pursuant to the terms of the
Securities.
(h) The Property Trustee may authorize one or more Persons
(each, a "Paying Agent") to pay Distributions, redemption payments or
liquidation payments on behalf of the Trust with respect to all Securities, and
any such Paying Agent shall comply with Section 317(b) of the Trust Indenture
Act. Any Paying Agent may be removed by the Property Trustee at any time, and a
successor Paying Agent or additional Paying Agents may be appointed at any time
by the Property Trustee.
(i) Subject to this Section 3.8, the Property Trustee shall
have none of the duties, liabilities, powers or the authority of the Regular
Trustees set forth in Section 3.6.
The Property Trustee shall exercise the powers set forth in this
Section 3.8 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the
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Property Trustee shall have no power to, and shall not, take any action that is
inconsistent with the purposes and functions of the Trust set out in Section
3.3.
Section 3.9 Certain Duties and Responsibilities of the
Property Trustee.
(a) The Property Trustee, before the occurrence of any Trust
Enforcement Event and after the cure or waiver of all Trust Enforcement Events
that may have occurred, shall undertake to perform only such duties as are
specifically set forth in this Declaration, and no implied covenants shall be
read into this Declaration against the Property Trustee. If a Trust Enforcement
Event has occurred (that has not been cured or waived pursuant to Section 2.6)
of which a Responsible Officer of the Property Trustee has actual knowledge, the
Property Trustee shall exercise such of the rights and powers vested in it by
this Declaration and shall use the same degree of care and skill in its exercise
as a prudent person would exercise or use under the circumstances in the conduct
of his or her own affairs.
(b) No provision of this Declaration shall be construed to
relieve the Property Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of a Trust Enforcement Event and
after the cure or waiver of all such Trust Enforcement Events that may
have occurred:
(A) the duties and obligations of the Property
Trust shall be determined solely by the
express provisions of this Declaration, and
the Property Trustee shall not be liable
except for the performance of such duties
and obligations as are specifically set
forth in this Declaration, and no implied
covenants or obligations shall be read into
this Declaration against the Property
Trustee; and
(B) in the absence of bad faith on the part of
the Property Trustee, the Property Trustee
may conclusively rely, as to the truth of
the statements and the correctness of the
opinions expressed therein, upon any
certificates or opinions furnished to the
Property Trustee and conforming to the
requirements of this Declaration; but in the
case of any such certificates or opinions
that by any provision hereof are
specifically required to be furnished to the
Property Trustee, the Property Trustee shall
be under a duty to examine such certificates
or opinions to determine whether or not they
conform to the requirements of this
Declaration;
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Property
Trustee, unless it has been proven that the Property Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable with respect to
any action taken or omitted to be taken by it without negligence, in
good faith in accordance with the
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direction of the Holders of not less than a Majority in Liquidation
Amount of the Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Property
Trustee, or exercising any trust or power conferred upon the Property
Trustee under this Declaration;
(iv) no provision of this Declaration shall require the
Property Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or
in the exercise of any of its rights or powers, if it has reasonable
grounds for believing that the repayment of such funds or liability is
not reasonably assured to it under the terms of this Declaration or
indemnity reasonably satisfactory to the Property Trustee against such
risk or liability is not reasonably assured to it;
(v) the Property Trustee's sole duty with respect to the
custody, safe-keeping and physical preservation of the Notes and the
Property Account shall be to deal with such property in a similar
manner as the Property Trustee deals with similar property for its own
account, subject to the protections and limitations on liability
afforded to the Property Trustee under this Declaration and the Trust
Indenture Act;
(vi) the Property Trustee shall have no duty or liability for
or with respect to the value, genuineness, existence or sufficiency of
the Notes or the payment of any taxes or assessments levied thereon or
in connection therewith;
(vii) the Property Trustee shall not be liable for any
interest on any money received by it except as it otherwise may agree
with the Sponsor, and money held by the Property Trustee need not be
segregated from other funds held by it except in relation to the
Property Account maintained by the Property Trustee pursuant to Section
3.8(c)(i) and except to the extent otherwise required by law; and
(viii) the Property Trustee shall not be responsible for
monitoring the compliance by the Regular Trustees or the Sponsor with
their respective duties under this Declaration, nor shall the Property
Trustee be liable for any default or misconduct of the Regular Trustees
or the Sponsor.
Section 3.10 Certain Rights of Property Trustee.
(a) Subject to the provisions of Section 3.9:
(i) The Property Trustee may conclusively rely, and shall be
fully protected in acting or refraining from acting, upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by
it to be genuine and to have been signed, sent or presented by the
proper party or parties.
(ii) Any direction or act of the Sponsor contemplated by this
Declaration shall be sufficiently evidenced by an Officers'
Certificate.
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(iii) Whenever in the administration of this Declaration, the
Property Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder,
the Property Trustee (unless other evidence is herein specifically
prescribed) may request, in the absence of bad faith on its part, and
conclusively rely upon, an Officers' Certificate which, upon receipt of
such request, shall be promptly delivered by the Sponsor.
(iv) The Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or
securities laws) or any re-recording, refiling or registration thereof.
(v) The Property Trustee may consult with counsel of its
choice or other experts, and the advice or opinion of such counsel and
experts with respect to legal matters or advice within the scope of
such experts' area of expertise shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in accordance with such
advice or opinion. Such counsel may be counsel to the Sponsor or any of
its Affiliates and may include any of its employees. The Property
Trustee shall have the right at any time to seek instructions
concerning the administration of this Declaration from any court of
competent jurisdiction.
(vi) The Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Declaration
at the request or direction of any Holder of Securities, unless such
Holder of Securities has provided to the Property Trustee security and
indemnity, reasonably satisfactory to the Property Trustee, against the
costs, expenses (including attorneys' fees and expenses and the
expenses of the Property Trustee's agents, nominees or custodians) and
liabilities that might be incurred by it in complying with such request
or direction, including such reasonable advances as may be requested by
the Property Trustee; provided that nothing contained in this Section
3.10(a) shall be taken to relieve the Property Trustee, upon the
occurrence of an Indenture Event of Default, of its obligation to
exercise the rights and powers vested in it by this Declaration.
(vii) The Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Property Trustee, in
its discretion, may make such further inquiry or investigation into
such facts or matters as it sees fit.
(viii) The Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through agents, custodians, nominees or attorneys, provided that any
such action (other than ministerial action) executed or performed by
such agent or attorney is executed or performed by an agent or an
attorney that is a United States Person, and the Property Trustee shall
not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
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(ix) Any action taken by the Property Trustee or its agents
hereunder shall bind the Trust and the Holders of the Securities, and
the signature of the Property Trustee or its agents alone shall be
sufficient and effective to perform any such action, and no third party
shall be required to inquire as to the authority of the Property
Trustee to so act or as to its compliance with any of the terms and
provisions of this Declaration, both of which shall be evidenced
conclusively by the Property Trustee's or its agent's taking such
action.
(x) Whenever in the administration of this Declaration the
Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Property Trustee (A) may request instructions from the
Holders of the Securities, which instructions may only be given by the
Holders of the same proportion in liquidation amount of the Securities
as would be entitled to direct the Property Trustee under this
Declaration in respect of such remedy, right or action, (B) may refrain
from enforcing such remedy or right or taking such other action until
such instructions are received and (C) shall be protected in
conclusively relying on or acting in accordance with such instructions.
(xi) Except as otherwise expressly provided by this
Declaration, the Property Trustee shall not be under any obligation to
take any action that is discretionary under the provisions of this
Declaration.
(xii) The Property Trustee shall not be liable for any action
taken, suffered or omitted to be taken by it without negligence, in
good faith and reasonably believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Declaration.
(b) No provision of this Declaration shall be deemed to impose
any duty or obligation on the Property Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Property Trustee
shall be construed to be a duty.
Section 3.11 Delaware Trustee. Notwithstanding any other provision of
this Declaration other than Section 6.2, the Delaware Trustee shall not be
entitled to exercise any powers of, nor shall the Delaware Trustee have any of
the duties and responsibilities of, the Regular Trustees or the Property Trustee
described in this Declaration. Except as set forth in Section 6.2, the Delaware
Trustee shall be a Trustee for the sole and limited purpose of fulfilling the
requirements of Section 3807 of the Business Trust Act and shall be a United
States Person.
Section 3.12 Execution of Documents. Except as otherwise required by
applicable law, any Regular Trustee is authorized to execute on behalf of the
Trust any documents that the Regular Trustees have the power and authority to
execute pursuant to Section 3.6.
Section 3.13 Not Responsible for Recitals or Issuance of Securities.
The recitals contained in this Declaration and the Securities shall be taken as
the statements of the Sponsor,
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and the Trustees do not assume any responsibility for their correctness. The
Trustees make no representations as to the value or condition of the property of
the Trust or any part thereof. The Trustees make no representations as to the
validity or sufficiency of this Declaration, the Securities, the Notes or the
Indenture.
Section 3.14 Duration of Trust. The Trust shall exist until dissolved
pursuant to the provisions of Article 8 hereof.
Section 3.15 Mergers.
(a) The Trust may not consolidate with, amalgamate or merge
with or into, be replaced by or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, except as described in
Section 3.15(b) and (c) or Article 8.
(b) At the request of the Sponsor and with the consent of the
Regular Trustees or, if there are more than two, a majority of the Regular
Trustees and without the consent of the Holders of the Preferred Securities, the
Delaware Trustee or the Property Trustee, the Trust may consolidate with,
amalgamate or merge with or into, be replaced by or convey, transfer or lease
its properties substantially as an entirety to a trust organized as such under
the laws of any state; provided that:
(i) if the Trust is not the successor entity, such successor
entity (the "Successor Entity") either:
(A) expressly assumes all of the obligations of
the Trust with respect to the Securities; or
(B) substitutes for the Securities other
securities having substantially the same
terms as the Securities (the "Successor
Securities"), so long as such Successor
Securities rank the same as the Securities
with respect to Distributions and payments
upon liquidation, redemption and otherwise;
(ii) the Notes Issuer expressly appoints a trustee of such
Successor Entity that possesses the same powers and duties as the
Property Trustee as the holder of the Notes;
(iii) the Preferred Securities or any Successor Securities are
or, upon notification of issuance will be, listed on any national
securities exchange or with any other organization on which the
Preferred Securities are then listed or quoted;
(iv) such consolidation, amalgamation, merger, replacement,
conveyance, transfer or lease does not cause the Preferred Securities
(including any Successor Securities) to be downgraded by any nationally
recognized statistical rating organization;
(v) such consolidation, amalgamation, merger, replacement,
conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the
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Holders of the Preferred Securities (including any Successor
Securities) in any material respect other than with respect to any
dilution of the Holders' interest in the new entity;
(vi) such Successor Entity has a purpose substantially
identical to that of the Trust;
(vii) prior to such consolidation, amalgamation, merger,
replacement, conveyance, transfer or lease, the Sponsor has received an
opinion of nationally recognized independent counsel to the Trust
experienced in such matters to the effect that:
(A) such consolidation, amalgamation, merger,
replacement, conveyance, transfer or lease
does not adversely affect the rights,
preferences and privileges of the Holders of
the Securities (including any Successor
Securities) in any material respect other
than with respect to any dilution of the
Holders' interest in the new entity;
(B) following such consolidation, amalgamation,
merger, replacement, conveyance, transfer or
lease, neither the Trust nor such Successor
Entity will be required to register as an
Investment Company under the Investment
Company Act; and
(C) following such consolidation, amalgamation,
merger, replacement, conveyance, transfer or
lease, the Trust (or such Successor Entity)
will continue to be classified as a grantor
trust for United States federal income tax
purposes;
(viii) the Sponsor or any permitted successor or assignee owns
all of the common securities of such Successor Entity and guarantees
the obligations of such Successor Entity under the Successor
Securities, at least to the extent provided by the Guarantee; and
(ix) such Successor Entity expressly assumes all of the
obligations of the Trust.
(c) Notwithstanding Section 3.15(b), the Trust shall not,
except with the consent of Holders of 100% in aggregate liquidation amount of
the Securities, consolidate with, amalgamate or merge with or into, be replaced
by or convey, transfer or lease its properties and assets substantially as an
entirety to, any other entity or permit any other entity to consolidate with,
amalgamate, merge with or into, or replace it, if such consolidation,
amalgamation, merger, replacement, conveyance, transfer or lease would cause the
Trust or any Successor Entity to be classified as other than a grantor trust for
United States federal income tax purposes or would cause any Holder of
Securities not to be treated as owning an undivided beneficial ownership
interest in the Notes.
Section 3.16 Property Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment,
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composition or other similar judicial proceeding relative to the Trust or any
other obligor upon the Securities or the property of the Trust or of such other
obligor or their creditors, the Property Trustee (irrespective of whether any
Distributions on the Securities are then due and payable as therein expressed or
by declaration or otherwise and irrespective of whether the Property Trustee has
made any demand on the Trust for the payment of any past due Distributions)
shall be entitled and empowered, to the fullest extent permitted by law, by
intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the Securities (or, if the
Securities are original issue discount securities, such portion of the
liquidation amount as may be specified in the terms of such securities) and to
file such other papers or documents as may be necessary or advisable in order to
have the claims of the Property Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel) and of the Holders of the Securities allowed in such
judicial proceeding; and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder of Securities to make such payments to the Property Trustee and, in the
event the Property Trustee consents to the making of such payments directly to
the Holders, to pay to the Property Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property
Trustee to authorize or consent to or accept or adopt, on behalf of any Holder
of Securities, any plan of reorganization, arrangement, adjustment or
compensation affecting the Securities or the rights of any Holder thereof or to
authorize the Property Trustee to vote in respect of the claim of any Holder of
Securities in any such proceeding.
ARTICLE 4
THE SPONSOR
Section 4.1 Responsibilities of the Sponsor. In connection with the
sale and issuance of the Preferred Securities, the Sponsor is hereby appointed
an agent of the Trust pursuant to Section 3806(b)(7) of the Business Trust Act
and in such capacity shall have the exclusive right and responsibility to engage
in the following activities:
(a) to prepare, execute and file with the Commission, on
behalf of the Trust, a registration statement on Form S-3 in relation to the
Preferred Securities, including any amendments or supplements thereto, and to
take any other action relating to the registration and sale of the Preferred
Securities under federal and state securities laws;
(b) if necessary, to determine the states in which to take
appropriate action to qualify or register for sale all or part of the Preferred
Securities and to do any and all such acts,
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other than actions that must be taken by the Trust, and advise the Trust of
actions it must take; to prepare, execute and file, on behalf of the Trust, any
documents it deems necessary or advisable in order to comply with the applicable
laws of any such states; and to prepare, execute and file, on behalf of the
Trust, any such documents or take any acts determined by it to be necessary in
order to qualify or register all or part of the Preferred Securities in any
state in which it has determined to qualify or register such Preferred
Securities for sale;
(c) if necessary, to prepare, execute and file on behalf of
the Trust, an application to the New York Stock Exchange or any other national
securities exchange or the Nasdaq National Market for listing upon notice of
issuance of any Preferred Securities;
(d) if necessary, to prepare, execute and file with the
Commission, on behalf of the Trust, a registration statement on Form 8-A
relating to the registration of the Preferred Securities under Section 12(b) of
the Exchange Act, including any amendments thereto;
(e) to negotiate the terms of, and execute and enter into, an
Underwriting Agreement providing for the sale of the Preferred Securities; and
(f) to execute and deliver letters, documents or instruments
on behalf of the Trust with any Clearing Agency.
Section 4.2 Indemnification and Expenses of the Trustees. To the
fullest extent permitted by law, the Notes Issuer agrees to indemnify the
Regular Trustees, the Property Trustee and the Delaware Trustee for, and to hold
each of them harmless against, any loss, liability or expense incurred without
negligence or bad faith on the part of the Regular Trustees, the Property
Trustee or the Delaware Trustee, as the case may be, arising out of or in
connection with the acceptance or administration of the Trust hereunder,
including the costs and expenses of defending such Trustee or the Trust against
any claim or liability in connection with the exercise or performance of any of
their respective powers or duties hereunder. The provisions of this Section 4.2
shall survive the resignation or removal of the Regular Trustees, the Delaware
Trustee or the Property Trustee and the termination of this Declaration.
Section 4.3 Guarantee of Payment of Trust Obligations.
(a) Subject to the terms and conditions of this Section 4.3,
the Sponsor hereby irrevocably and unconditionally guarantees to each Person to
whom the Trust is now or hereafter becomes indebted or liable (the
"Beneficiaries") the full payment, when and as due, of any and all costs,
expenses or liabilities of the Trust (other than obligations of the Trust to
make payments to Holders of the Securities pursuant to the terms thereof)
("Obligations") to such Beneficiaries.
(b) The agreement of the Sponsor in Section 4.3(a) is intended
to be for the benefit of, and to be enforceable by, all such Beneficiaries,
whether or not such Beneficiaries have received notice hereof.
(c) The agreement of the Sponsor set forth in Section 4.3(a)
shall terminate and be of no further force and effect upon the later of (a) the
date on which full payment has been made of all amounts payable to all Holders
of all the Preferred Securities (whether upon
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redemption, liquidation, exchange or otherwise) and (b) the date on which there
are no Beneficiaries remaining; provided, however, that such agreement shall
continue to be effective or shall be reinstated, as the case may be, if at any
time any Holder of Preferred Securities or any of the Beneficiaries must restore
payment of any sums paid under the Preferred Securities, under any Obligation,
under the Guarantee or under this Declaration for any reason whatsoever. Such
agreement is continuing, irrevocable, unconditional and absolute.
ARTICLE 5
THE HOLDER OF THE COMMON SECURITIES
Section 5.1 Notes Issuer's Acquisition of the Common Securities. On the
First Delivery Date, the Notes Issuer shall acquire all of the Common Securities
issued by the Trust, in an aggregate liquidation amount equal to at least three
percent of the total capital of the Trust, at such time as the Preferred
Securities are sold and issued. If any additional Preferred Securities are
issued pursuant to the exercise of any Over-allotment Option, then the Notes
Issuer shall purchase, on the Second Delivery Date, an amount of additional
Common Securities such that the aggregate liquidation amount of the Common
Securities held by the Notes Issuer, upon such purchase, will equal at least
three percent of the total capital of the Trust.
The aggregate stated liquidation amount of the Common Securities
outstanding at any time shall not be less than three percent of the total
capital of the Trust.
Section 5.2 Covenants of the Notes Issuer. For so long as the Preferred
Securities remain outstanding, the Notes Issuer shall covenant:
(i) to maintain, directly or indirectly, 100% ownership of the
Common Securities;
(ii) to cause the Trust to remain a Delaware statutory
business trust and not to voluntarily dissolve, wind up, liquidate or
be terminated, except as permitted by this Declaration;
(iii) to use its commercially reasonable efforts to ensure
that the Trust will not be an Investment Company required to be
registered under the Investment Company Act; and
(iv) not to take any action that would be reasonably likely to
cause the Trust to be classified as an association or a publicly traded
partnership taxable as a corporation for United States federal income
tax purposes.
Section 5.3 Holder of the Common Securities. Each Holder of the Common
Securities shall at all times hold the Common Securities in its individual
capacity on its own behalf and shall not, in its capacity as a Holder of the
Common Securities, be under (or subject to) the control or direction of any
Foreign Person (pursuant to a contractual arrangement or otherwise) other than
by virtue of such Foreign Person's direct or indirect stock ownership, if any,
of the Holder of Common Securities. Notwithstanding anything in this Declaration
to the contrary, each Holder of the Common Securities shall at all times be a
United States Person and shall be
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authorized to give any direction hereunder with respect to the Trust as shall be
necessary for the Trust not to be considered a foreign trust for United States
Federal income tax purposes.
ARTICLE 6
THE TRUSTEES
Section 6.1 Number of Trustees. The number of Trustees initially shall
be five (three regular trustees, one property trustee and one Delaware trustee),
and:
(a) at any time before the issuance of any Securities, the
Sponsor may increase or decrease the number of Trustees by written instrument;
and
(b) after the issuance of any Securities, the number of
Trustees may be increased or decreased by vote of the Holders of a Majority in
Liquidation Amount of the Common Securities at a meeting of the Holders of the
Common Securities or by written consent without prior notice in lieu of such
meeting; provided that the number of Trustees shall be at least three; and
provided, further, that: (i) the Delaware Trustee, in the case of a natural
person, shall be a person who is a resident of the State of Delaware or, if not
a natural person, shall be an entity that has its principal place of business in
the State of Delaware and otherwise meets the requirements of applicable law;
(ii) at least a majority of the Regular Trustees shall be employees or officers
of, or are Affiliates of, the Sponsor; (iii) one Trustee shall be the Property
Trustee, which, for so long as this Declaration is required to qualify as an
indenture under the Trust Indenture Act, shall meet the requirements of
applicable law, provided that such Property Trustee also may serve as Delaware
Trustee if it meets the applicable requirements; (iv) each Trustee shall be a
United States Person; and (v) each Trustee, or any delegee of any Trustee, shall
at all times act as Trustee in its individual capacity on its own behalf and
will not, at any time, in its capacity as Trustee, be under (or subject to) the
control or direction of any Foreign Person (pursuant to a contractual
arrangement or otherwise).
Section 6.2 Delaware Trustee; Eligibility. If required by the Business
Trust Act, one Trustee (which may be the Property Trustee) (the "Delaware
Trustee") shall be:
(a) a natural person who is a resident of the State of
Delaware; or
(b) if not a natural person, an entity that has its principal
place of business in the State of Delaware and otherwise meets the requirements
of applicable law, provided that if the Property Trustee has its principal place
of business in the State of Delaware and otherwise meets the requirements of
applicable law, then the Property Trustee also shall be the Delaware Trustee and
Section 3.11 shall have no application.
Section 6.3 Property Trustee; Eligibility.
(a) There shall be at all times one Trustee (which may be the
Delaware Trustee) that shall act as Property Trustee. Such Property Trustee
shall:
(i) not be an Affiliate of the Sponsor; and
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(ii) be a corporation that is a United States Person organized
and doing business under the laws of the United States of America or
any state or territory thereof or of the District of Columbia, or a
corporation or other Person that is a United States Person permitted by
the Commission to act as an institutional trustee under the Trust
Indenture Act, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least fifty million
U.S. dollars ($50,000,000) and subject to supervision or examination by
federal, state, territorial or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the supervising or examining authority
referred to above, then for the purpose of this Section 6.3(a)(ii), the
combined capital and surplus of such corporation shall be deemed to be
its combined capital and surplus as set forth in its most recent report
of condition so published.
(iii) if the Trust is excluded from the definition of an
Investment Company solely by means of Rule 3a-7 and to the extent Rule
3a-7 requires a trustee having certain qualifications to hold title to
the "eligible assets" of the Trust, the Property Trustee shall possess
those qualifications.
(b) If at any time the Property Trustee shall cease to be
eligible to so act under Section 6.3(a), the Property Trustee immediately shall
resign in the manner and with the effect set forth in Section 6.6(c).
(c) If the Property Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Property Trustee and the Holders of the Common Securities (as
if it were the obligor referred to in Section 310(b) of the Trust Indenture Act)
shall comply in all respects with the provisions of Section 310(b) of the Trust
Indenture Act.
(d) The Guarantee shall be deemed to be specifically described
in this Declaration for purposes of clause (i) of the first proviso contained in
Section 310(b) of the Trust Indenture Act.
Section 6.4 Qualifications of the Regular Trustees Generally. Each
Regular Trustee shall be either a natural person who is at least 21 years of age
or a legal entity that shall act through one or more Authorized Officers.
Section 6.5 Initial Trustees.
(a) The initial Regular Trustees shall be [Richard A.
Goglia][, and ], the business address of
all of whom is in care of Raytheon Company, 141 Spring Street, Lexington,
Massachusetts 02421.
(b) The initial Property Trustee shall be:
The Bank of New York
[ ]
[ ]
Attention: [ ].
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(c) The initial Delaware Trustee shall be:
The Bank of New York (Delaware)
[ ]
[ ]
Attention: [ ].
Section 6.6 Appointment, Removal and Resignation of the Trustees.
(a) Subject to Sections 6.6(b) and 7.5(k), the Trustees may be
appointed or removed without cause at any time:
(i) until the issuance of any Securities, by written
instrument executed by the Sponsor; and
(ii) after the issuance of any Securities, by a vote of the
Holders of a Majority in Liquidation Amount of the Common Securities at
a meeting of the Holders of the Common Securities or by written consent
without prior notice in lieu of such meeting.
(b) The Property Trustee shall not be removed in accordance
with Section 6.6(a) or Section 7.5(k) until a successor Trustee possessing the
qualifications to act as Property Trustee under Section 6.3(a) (a "Successor
Property Trustee") has been appointed and has accepted such appointment by
written instrument executed by such Successor Property Trustee and delivered to
the Regular Trustees and the Sponsor. The Delaware Trustee shall not be removed
in accordance with Section 6.6(a) or Section 7.5(k) until a successor Trustee
possessing the qualifications to act as Delaware Trustee under Sections 6.2 and
6.4 (a "Successor Delaware Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor Delaware Trustee
and delivered to the Regular Trustees and the Sponsor.
(c) A Trustee appointed to office shall hold office until a
successor has been appointed, until death or dissolution or until removal or
resignation. Any Trustee may resign from office (without need for prior or
subsequent accounting) by written instrument executed by such Trustee and
delivered to the Sponsor and the other Trustees, which resignation shall take
effect upon such delivery or upon such later date as is specified therein;
provided that:
(i) no such resignation of the Property Trustee shall be
effective:
(A) until a Successor Property Trustee has been
appointed and has accepted such appointment
by written instrument executed by such
Successor Property Trustee and delivered to
the Regular Trustees, the Sponsor and the
resigning Property Trustee; or
(B) until the assets of the Trust have been
completely liquidated and the proceeds
thereof distributed to the Holders of the
Securities; and
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(ii) no such resignation of the Delaware Trustee shall be
effective until a Successor Delaware Trustee has been appointed and has
accepted such appointment by written instrument executed by such
Successor Delaware Trustee and delivered to the Regular Trustees, the
Sponsor and the resigning Delaware Trustee.
(d) The Holders of the Common Securities shall use their best
efforts to promptly appoint a Successor Property Trustee or Successor Delaware
Trustee, as the case may be, if the Property Trustee or the Delaware Trustee
delivers an instrument of resignation in accordance with this Section 6.6.
(e) If no Successor Property Trustee or Successor Delaware
Trustee, as the case may be, has been appointed and accepted appointment as
provided in this Section 6.6 within 60 days after delivery of an instrument of
resignation or removal, the resigning or removed Property Trustee or Delaware
Trustee, as applicable, may petition any court of competent jurisdiction at the
expense of the Sponsor for appointment of a Successor Property Trustee or
Successor Delaware Trustee, as applicable. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a Successor
Property Trustee or Successor Delaware Trustee, as the case may be.
(f) No Property Trustee or Delaware Trustee shall be liable
for the acts or omissions to act of any Successor Property Trustee or Successor
Delaware Trustee, as the case may be.
Section 6.7 Vacancies among Trustees. If a Trustee ceases to hold
office for any reason and the number of Trustees is not reduced pursuant to
Section 6.1, or if the number of Trustees is increased pursuant to Section 6.1,
a vacancy shall occur. A resolution certifying the existence of such vacancy by
the Regular Trustees, or, if there are more than two, a majority of the Regular
Trustees, shall be conclusive evidence of the existence of such vacancy. The
vacancy shall be filled with a Trustee appointed in accordance with Section 6.6.
Section 6.8 Effect of Vacancies. The death, resignation, retirement,
removal, bankruptcy, dissolution, liquidation, incompetence or incapacity to
perform the duties of a Trustee shall not operate to annul, dissolve or
terminate the Trust nor to terminate this Declaration. Whenever a vacancy in the
number of Regular Trustees shall occur until such vacancy is filled by the
appointment of a Regular Trustee in accordance with Section 6.6, the Regular
Trustees in office, regardless of their number, shall have all the powers
granted to the Regular Trustees and shall discharge all the duties imposed upon
the Regular Trustees by this Declaration.
Section 6.9 Meetings. If there is more than one Regular Trustee,
meetings of the Regular Trustees shall be held from time to time upon the call
of any Regular Trustee. Regular meetings of the Regular Trustees may be held at
a time and place fixed by resolution of the Regular Trustees. Notice of any
in-person meetings of the Regular Trustees shall be hand delivered or otherwise
delivered in writing (including by facsimile, with a hard copy by overnight
courier) not less than 48 hours before such meeting. Notice of any telephonic
meetings of the Regular Trustees shall be hand delivered or otherwise delivered
in writing (including by facsimile, with a hard copy by overnight courier) not
less than 24 hours before a meeting.
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Notices shall contain a brief statement of the time, place and anticipated
purposes of the meeting. The presence (whether in person or by telephone) of a
Regular Trustee at a meeting shall constitute a waiver of notice of such meeting
except where a Regular Trustee attends a meeting for the express purpose of
objecting to the transaction of any activity on the ground that the meeting has
not been lawfully called or convened. Unless provided otherwise in this
Declaration, any action of the Regular Trustees may be taken at a meeting by
vote of a majority of the Regular Trustees present (whether in person or by
telephone) and eligible to vote with respect to such matter, provided a Quorum
is present, or without a meeting and without prior notice by the unanimous
written consent of the Regular Trustees. In the event there is only one Regular
Trustee, any and all action of such Regular Trustee shall be evidenced by a
written consent of such Regular Trustee.
Section 6.10 Delegation of Power by the Regular Trustees.
(a) Except as otherwise required by applicable law, any
Regular Trustee may delegate to any other natural person over the age of 21 that
is a United States Person, by power of attorney consistent with applicable law,
his or her power for the purposes of signing any documents that the Regular
Trustees have power and authority to cause the Trust to execute pursuant to
Section 3.6.
(b) The Regular Trustees shall have the power to delegate from
time to time to such of their number or to officers of the Trust or any other
Person the doing of such things and the execution of such instruments either in
the name of the Trust or the names of the Regular Trustees or otherwise as the
Regular Trustees may deem expedient, to the extent such delegation is not
prohibited by applicable law or contrary to the provisions of the Trust, as set
forth herein.
Section 6.11 Merger, Consolidation, Conversion or Succession to
Business. Any entity into which the Property Trustee, the Delaware Trustee or
any Regular Trustee that is not a natural person may be merged or converted or
with which such Trustee may be consolidated, or any entity resulting from any
merger, conversion or consolidation to which such Trustee is a party, or any
entity succeeding to all or substantially all the corporate trust business of
such Trustee, shall be the successor of such Trustee hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, provided that such entity otherwise is qualified and eligible
under this Article.
ARTICLE 7
TERMS OF THE SECURITIES
Section 7.1 General Provisions Regarding the Securities.
(a) The Regular Trustees shall issue, on behalf of the Trust,
one class of preferred securities representing undivided beneficial ownership
interests in the assets of the Trust (the "Preferred Securities") and one class
of common securities representing undivided beneficial ownership interests in
the assets of the Trust (the "Common Securities"). The Trust shall not issue any
securities other than the Preferred Securities and the Common Securities.
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(i) Preferred Securities. There shall be [ ] million
([ ]) Preferred Securities and they shall have an aggregate
stated liquidation amount with respect to the assets of the Trust of
[ dollars ($ )]
(subject to increase to not more than
[ dollars ($ )] in the
event of the exercise of any Over-allotment Option) and a stated
liquidation amount with respect to the assets of the Trust of $[ ]
per Preferred Security. The Preferred Securities are hereby designated
for identification purposes only as the Preferred Securities. The
Preferred Security Certificates shall be substantially in the form of
Exhibit A hereto, with such changes and additions thereto or deletions
therefrom as may be required by ordinary usage, custom or practice or
to conform to the rules of any exchange on which the Preferred
Securities are listed.
(ii) Common Securities. There shall be [ ] million
([ ]) Common Securities and they shall have an aggregate
liquidation amount with respect to the assets of the Trust of
[ dollars ($ )]
(subject to increase to not more than
[ dollars ($ )] in the
event of the exercise of any Over-allotment Option) and a liquidation
amount with respect to the assets of the Trust of $[ ] per Common
Security. The Common Securities are hereby designated for
identification purposes only as the Common Securities. The Common
Security Certificates shall be substantially in the form of Exhibit B
hereto, with such changes and additions thereto or deletions therefrom
as may be required by ordinary usage, custom or practice.
(b) Payment of Distributions on, and any payment of the
Redemption Price upon a redemption of, the Preferred Securities and the Common
Securities, as applicable, shall be made Pro Rata based on the liquidation
amount of such Preferred Securities and Common Securities; provided that if, on
any date on which payment of a Distribution or the Redemption Price is to be
made, an Indenture Event of Default has occurred and is continuing, then such
payments shall not be made on any of the Common Securities, and no other payment
on account of the redemption, liquidation or other acquisition of such Common
Securities shall be made, until all accumulated and unpaid Distributions, or
payments of the Redemption Price, as the case may be, on all of the outstanding
Preferred Securities for which Distributions are to be paid or that have been
called for redemption, as the case may be, are fully paid. All funds available
to the Property Trustee shall first be applied to the payment in full in cash of
all Distributions on, or the Redemption Price of, the Preferred Securities then
due and payable.
(c) The consideration received by the Trust for the issuance
of the Securities shall constitute a contribution to the capital of the Trust
and shall not constitute a loan to the Trust.
(d) Upon issuance of the Securities as provided in this
Declaration, the Securities so issued shall be validly issued, fully paid and
non-assessable undivided beneficial ownership interests in the assets of the
Trust.
(e) Every Person, by virtue of having become a Holder of
Securities or a Beneficial Owner of Preferred Securities in accordance with the
terms of this Declaration, shall
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be deemed to have expressly assented and agreed to the terms of, and shall be
bound by, this Declaration, the Guarantee, the Indenture, and the Notes.
(f) The Holders of the Securities shall not have any
preemptive or similar rights.
(g) The Certificates shall be signed on behalf of the Trust by
a Regular Trustee. Such signature shall be the manual or facsimile signature of
any Regular Trustee. If a Regular Trustee of the Trust who has signed any of the
Certificates ceases to be a Regular Trustee before such signed Certificates have
been delivered by the Trust, such Certificates nevertheless may be delivered as
though the Person who signed such Certificates had not ceased to be a Regular
Trustee. Any Certificate may be signed on behalf of the Trust by such Persons
who, at the actual date of execution of such Certificate, shall be the Regular
Trustees of the Trust, although at the date of the execution and delivery of
this Declaration any such Person was not such a Regular Trustee. Certificates
shall be printed, lithographed or engraved or may be produced in any other
manner as is reasonably acceptable to the Regular Trustees, as evidenced by
their execution thereof, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements as the Regular
Trustees may deem appropriate, or as may be required to comply with any law or
with any rule or regulation of any stock exchange on which the Securities may be
listed, or to conform to usage.
A Preferred Security Certificate shall not be valid until authenticated
by the manual signature of an authorized signatory of the Property Trustee. Such
signature shall be conclusive evidence that such Preferred Security Certificate
has been authenticated under this Declaration.
Upon a written order of the Trust signed by one Regular Trustee, the
Property Trustee shall authenticate the Preferred Security Certificates for
original issue.
The Property Trustee may appoint an authenticating agent acceptable to
the Trust, as determined by the Regular Trustees on behalf of the Trust, to
authenticate Certificates. An authenticating agent may authenticate Certificates
whenever the Property Trustee may do so. Each reference in this Declaration to
authentication by the Property Trustee shall include authentication by such
agent. An authenticating agent shall have the same rights as the Property
Trustee to deal with the Sponsor or an Affiliate of the Sponsor.
(h) The Preferred Security Certificates, upon original
issuance (including Preferred Securities, if any, issued pursuant to the
exercise of any Over-allotment Option), shall be issued as Global Securities in
the form of one or more fully registered global Preferred Security Certificates
(each a "Global Certificate"), to be delivered to The Depository Trust Company,
the initial Depositary, by or on behalf of the Trust. Such Global Certificates
initially shall be registered on the books and records of the Trust in the name
of "Cede & Co.," the nominee of the initial Depositary. No Beneficial Owner of
Preferred Securities shall receive a definitive Preferred Security Certificate
representing such Beneficial Owner's interest in such Global Certificates,
except as provided in Section 7.12. Unless and until definitive, fully
registered Preferred Security Certificates have been issued to the Beneficial
Owners of Preferred Securities pursuant to Section 7.12:
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(i) the provisions of this Section 7.1(h) shall be in full
force and effect;
(ii) the Trust and the Trustees shall be entitled to deal with
the Depositary for all purposes of this Declaration (including the
payment of Distributions on the Global Certificates and receiving
approvals, votes or consents thereunder) as the Holder of the Preferred
Securities and the sole of holder of the Global Certificates and,
except as set forth herein or in Rule 3a-7 (if the Trust is excluded
from the definition of an Investment Company solely by reason of Rule
3a-7) with respect to the Property Trustee, shall have no obligation to
the Beneficial Owners of the Preferred Securities;
(iii) to the extent that the provisions of this Section 7.1(h)
conflict with any other provisions of this Declaration, the provisions
of this Section 7.1(h) shall control; and
(iv) the rights of the Beneficial Owners of the Preferred
Securities shall be exercised only through the Depositary and shall be
limited to those established by law and agreements between such
Beneficial Owners and the Depositary and/or the Depositary
Participants. The Depositary shall make book-entry transfers among
Depositary Participants and receive and transmit Distributions on the
Global Certificates to such Depositary Participants; provided that
solely for the purposes of determining whether the Holders of the
requisite amount of Preferred Securities have voted on any matter
provided for in this Declaration, so long as definitive Preferred
Security Certificates have not been issued, the Trustees may rely
conclusively on, and shall be protected in relying on, any written
instrument (including a proxy) delivered to the Trustees by the
Depositary setting forth the votes of the Beneficial Owners of the
Preferred Securities or assigning the right to vote on any matter to
any other Persons either in whole or in part.
Whenever a notice or other communication to the Holder of the Preferred
Securities is required to be given under this Declaration, unless and until
definitive Preferred Security Certificates have been issued pursuant to Section
7.1(g), the Trustees shall deliver all such notices and communications specified
herein to be given to the Holders of the Preferred Securities to the Depositary,
and, with respect to any Preferred Security Certificate registered in the name
of a Depositary or the nominee of a Depositary, the Trustees may conclusively
rely on, and shall be protected in relying on, any written instrument (including
a proxy) delivered to the Trustees by the Depositary setting forth the votes of
the Beneficial Owners of the Preferred Securities or assigning the right to vote
on any matter or any other Persons either in whole or in part.
Section 7.2 Distributions.
(a) Holders of the Securities shall be entitled to receive
Distributions that shall accumulate and be payable at the rate per annum of
[ ]% of the stated liquidation amount of $[ ] per Security through
(and including) [ , ]. The amount of Distributions payable for any
period shall be computed (i) for any full quarterly distribution period, on the
basis of a 360-day year of twelve 30-day months and (ii) for any period shorter
than a full quarterly distribution period, on the basis of a 30-day month and,
for any period of less than one
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month, on the basis of the actual number of days elapsed per 30-day month.
Subject to Section 7.1(b), Distributions shall be made on the Securities on a
Pro Rata basis. Distributions on the Securities shall accumulate from [ , ],
shall be cumulative and shall be payable quarterly, in arrears, on each Payment
Date, when, as and if available for payment, by the Property Trustee, except as
otherwise described below. Distributions shall be payable only to the extent
that payments are made to the Trust in respect of the Notes held by the Property
Trustee and to the extent that the Trust has funds available for the payment of
such Distributions in the Property Account.
(b) Distributions not paid on the scheduled Payment Date shall
accumulate and, to the extent permitted by applicable law, compound quarterly at
the rate of [ ]% per annum through (and including) [ , ]
("Compounded Distributions"). "Distributions" shall mean ordinary cumulative
distributions together with any Compounded Distributions.
(c) If and to the extent that the Notes Issuer makes a payment
of principal of and any premium or interest on the Notes held by the Property
Trustee (the amount of any such payment being a "Payment Amount"), the Property
Trustee shall and is directed, to the extent funds are available for that
purpose, to make a Pro Rata distribution of the Payment Amount to Holders,
subject to Section 7.1(b).
(d) Distributions on the Securities shall be payable to the
Holders thereof as they appear on the register of the Trust as of the close of
business on the relevant record dates. If the Preferred Securities are
represented by one or more Global Securities, the relevant record dates shall be
the close of business on the Business Day preceding such Distribution's Payment
Date, unless a different regular record date is established or provided for the
corresponding interest payment date on the Notes. The relevant record dates for
the Common Securities shall be the same as for the Preferred Securities. If the
Preferred Securities are not represented by one or more Global Securities, the
relevant record dates for the Preferred Securities shall conform to the rules of
any securities exchange on which the Preferred Securities are listed, and if
none, shall be selected by the Regular Trustees, provided that such date shall
be at least one (1) Business Day but less than sixty (60) Business Days prior to
the relevant Distribution's Payment Dates. At all times, the Distribution's
Payment Dates shall correspond to the interest payment dates on the Notes.
Distributions payable on any Securities that are not punctually paid on any
Payment Date, as a result of the Notes Issuer having failed to make a payment
under the Notes, shall cease to be payable to the Person in whose name such
Securities are registered on the relevant record date, and such defaulted
Distribution instead shall be payable to the Person in whose name such
Securities are registered on the special record date or other specified date
determined in accordance with the Indenture for payment of the corresponding
defaulted interest on the Notes. If any date on which a Distribution is payable
on the Securities is not a Business Day, then payment of the Distribution
payable on such date shall be made on the next day that is a Business Day (and
without any interest or other payment in respect of any such delay), except that
if such Business Day is in the next calendar year, such payment shall be made on
the preceding Business Day, with the same force and effect as if made on such
Payment Date.
(e) In the event that there is any money or other property
held by or for the Trust that is not accounted for hereunder, such property
shall be distributed Pro Rata among the Holders of the Securities, subject to
Section 7.1(b).
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Section 7.3 Redemption of Securities.
(a) Upon the repayment or redemption pursuant to the
Indenture, in whole but not in part, of the outstanding Notes held by the Trust,
whether at the stated maturity of the Notes or upon earlier redemption as
provided in the Indenture, the proceeds from such repayment or redemption shall
be simultaneously applied Pro Rata (subject to Section 7.1(b)) to redeem, at the
Redemption Price, Securities having an aggregate liquidation amount equal to the
aggregate principal amount of the Notes so repaid or redeemed at the Redemption
Price. Holders of the Securities shall be given not less than 30 nor more than
60 days notice of such redemption in accordance with Section 7.4.
(b) If the Notes Issuer redeems the Notes upon the occurrence
and continuance of a Tax Event, the proceeds from such redemption shall be
applied by the Property Trustee to redeem the Securities, in whole but not in
part, at the Redemption Price on a Pro Rata basis. If, following the occurrence
of a Tax Event, the Notes Issuer exercises its option to redeem the Notes, the
Notes Issuer shall appoint the Quotation Agent.
Section 7.4 Redemption Procedures.
(a) Notice of any redemption of, or notice of distribution of
Notes in exchange for, the Securities (a "Redemption/Distribution Notice"),
which notice shall be irrevocable, shall be given by the Trust by mail to each
Holder of Securities to be redeemed or exchanged at least 30 but no more than 60
days before the date fixed for redemption or exchange thereof which, in the case
of a redemption, shall be the date fixed for redemption of the Notes. For
purposes of the calculation of the date of redemption or exchange and the dates
on which notices are given pursuant to this Section 7.4(a), a
Redemption/Distribution Notice shall be deemed to be given on the day such
notice is first mailed by first-class mail, postage prepaid, to the Holders of
the Securities. Each Redemption/Distribution Notice shall be addressed to the
Holders of the Securities at the address of each such Holder appearing in the
register of the Trust. No defect in the Redemption/Distribution Notice or in the
mailing of either thereof with respect to any Holder shall affect the validity
of the redemption or exchange proceedings with respect to any other Holder.
(b) Subject to the Trust's fulfillment of the notice
requirements set forth in Section 7.4(a), if Securities are to be redeemed, then
(provided that the Notes Issuer has paid the Property Trustee a sufficient
amount of cash in connection with the related redemption or maturity of the
Notes) (i) with respect to the Preferred Securities represented by one or more
Global Securities, by 12:00 noon, New York City time, on the redemption date,
the Property Trustee will deposit irrevocably with the Depositary or its nominee
funds sufficient to pay the applicable Redemption Price, and the Property
Trustee shall give the Depositary irrevocable instructions and authority to pay
the Redemption Price to the Beneficial Owners of the Preferred Securities, and
(ii) with respect to Securities not represented by one or more Global
Securities, the Property Trustee shall pay the applicable Redemption Price to
the Holders of such Securities by check mailed to the address of each Holder
appearing on the register of the Trust on the redemption date. If any date fixed
for redemption of Securities is not a Business Day, then
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payment of the Redemption Price payable on such date shall be made on the next
Business Day (without any interest thereon), except that if such Business Day
falls in the next calendar year, such payment shall be made on the preceding
Business Day, in each case with the same force and effect as if made on such
date fixed for redemption. If payment of the Redemption Price in respect of any
Securities is improperly withheld or refused and not paid either by the Trust or
by the Sponsor as guarantor pursuant to the Guarantee, then Distributions on
such Securities shall continue to accumulate at the then applicable rate, from
the original redemption date to the actual date of payment, in which case the
actual Payment Date shall be the date fixed for redemption for purposes of
calculating the Redemption Price. For these purposes, the applicable Redemption
Price shall not include Distributions that are being paid to Holders of
Securities who were not Holders of Securities on a relevant record date. If a
Redemption/Distribution Notice has been given and funds have been deposited or
paid as required, then immediately prior to the close of business on the date of
such deposit or payment, Distributions will cease to accumulate on the
Securities called for redemption, and all rights of Holders of such Securities
so called for redemption shall cease, except the right of the Holders of such
Securities to receive the Redemption Price, but without interest on such
Redemption Price, and from and after the date fixed for redemption, such
Securities will cease to be outstanding.
(c) Neither the Regular Trustees nor the Trust shall be
required to register or cause to be registered the transfer of any Securities
that have been called for redemption.
(d) Subject to the foregoing and applicable law (including,
without limitation, United States federal securities laws), the Notes Issuer or
its Affiliates may purchase, at any time and from time to time, outstanding
Preferred Securities by tender, in the open market, by private agreement or
otherwise.
Section 7.5 Voting Rights of the Preferred Securities.
(a) Except as provided under this Section 7.5 and Section 11.1
and as otherwise required by the Business Trust Act, the Trust Indenture Act and
other applicable law, the Holders of the Preferred Securities shall have no
voting rights.
(b) Subject to the requirement of the Property Trustee
obtaining a tax opinion in certain circumstances set forth in Section 7.5(d),
the Holders of a Majority in Liquidation Amount of the Preferred Securities,
voting separately as a class, shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Property
Trustee, or to direct the exercise of any trust or power conferred upon the
Property Trustee under this Declaration, including the right to direct the
Property Trustee, as Holder of the Notes, to (i) exercise the remedies available
to it under the Indenture with respect to the Notes, (ii) waive any past default
and its consequences that are waivable under the Indenture, (iii) exercise any
right to rescind or annul any declaration that the principal of all the Notes
shall be due and payable, or (iv) consent to any amendment, termination or
modification of the Indenture or the Notes where such consent is required;
provided that if an Indenture Event of Default has occurred and is continuing,
then the Holders of [25]% of the aggregate stated liquidation amount of the
Preferred Securities may direct the Property Trustee to declare the principal of
and interest on the Notes due and payable; and provided, further, that where a
consent or action under the Indenture would require the consent or act of the
Holders of more than a majority of the aggregate principal
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amount of Notes affected thereby, the Property Trustee only may give such
consent or take such action at the direction of the Holders of at least the same
proportion in aggregate stated liquidation amount of the Preferred Securities.
(c) If the Property Trustee fails to enforce its rights under
the Notes after a Holder of Preferred Securities has made a written request,
such Holder of Preferred Securities may institute, to the fullest extent
permitted by law, a legal proceeding directly against the Notes Issuer to
enforce the Property Trustee's rights under the Indenture without first
instituting any legal proceeding against the Property Trustee or any other
Person. In addition, if a Trust Enforcement Event has occurred and is continuing
and such event is attributable to the failure of the Notes Issuer to make any
interest, principal or other required payments when due under the Indenture,
then a Holder of Preferred Securities may institute a Direct Action against the
Notes Issuer on or after the respective due date specified in the Notes.
(d) The Property Trustee shall notify all Holders of the
Preferred Securities of any notice of any Indenture Event of Default received
from the Notes Issuer with respect to the Notes. Such notice shall state that
such Indenture Event of Default also constitutes a Trust Enforcement Event.
Except with respect to directing the time, method, and place of conducting a
proceeding for a remedy, the Property Trustee shall be under no obligation to
take any of the actions described in clauses (i), (ii) and (iii) of Section
7.5(b) above, unless the Property Trustee has obtained an opinion of independent
tax counsel experienced in those matters to the effect that the Trust will not
fail to be classified as a grantor trust for United States federal income tax
purposes as a result of such action, and that each Holder of Preferred
Securities shall be treated as owning an undivided beneficial ownership interest
in the Notes.
(e) If the consent of the Property Trustee, as the holder of
the Notes, is required under the Indenture with respect to any amendment,
termination or modification of the Indenture or the Notes, the Property Trustee
shall request the direction of the Holders of the Securities with respect to
such amendment or modification and shall vote with respect to such amendment,
termination or modification as directed by a Majority in Liquidation Amount of
the Securities voting together as a single class; provided that where a consent
under the Indenture would require the consent of the holders of more than a
majority of the aggregate principal amount of the Notes, the Property Trustee
only may give such consent at the direction of the Holders of at least the same
proportion in aggregate stated liquidation amount of the Securities. The
Property Trustee shall not take any such action in accordance with the
directions of the Holders of the Securities unless the Property Trustee has
obtained an opinion of independent tax counsel experienced in those matters to
the effect that the Trust will not be classified as other than a grantor trust
for United States federal income tax purposes as a result of such action, and
that each holder will be treated as owning an undivided beneficial ownership
interest in the Notes.
(f) A waiver of an Indenture Event of Default with respect to
the Notes shall constitute a waiver of the corresponding Trust Enforcement
Event.
(g) Any required approval or direction of the Holders of the
Preferred Securities may be given at a separate meeting of the Holders of the
Preferred Securities convened for such purpose, at a meeting of all of the
Holders of the Securities or pursuant to
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written consent without a meeting. The Regular Trustees shall cause a notice of
any meeting at which Holders of the Preferred Securities are entitled to vote to
be mailed to each Holder of record of Preferred Securities. Each such notice
shall include a statement setting forth: (i) the date of such meeting; (ii) a
description of any resolution proposed for adoption at such meeting on which
such Holders are entitled to vote; and (iii) instructions for the delivery of
proxies.
(h) No vote or consent of the Holders of the Preferred
Securities shall be required for the Trust to redeem and cancel the Preferred
Securities or distribute the Notes in accordance with this Declaration and the
terms of the Securities.
(i) Notwithstanding that the Holders of the Preferred
Securities are entitled to vote or consent under any of the circumstances
described above, any of the Preferred Securities that are owned at such time by
the Notes Issuer, the Trustees or any entity directly or indirectly controlled
by, or under direct or indirect common control with, the Notes Issuer or any
Trustee shall not be entitled to vote or consent and shall be treated, for
purposes of such vote or consent, as if such Preferred Securities were not
outstanding.
(j) Except as provided under Section 7.5(k), the Holders of
the Preferred Securities shall have no rights to appoint or remove the Trustees,
who, subject to Section 6.6, may be appointed, removed or replaced by the
Holders of the Common Securities.
(k) If an Indenture Event of Default has occurred and is
continuing, the Property Trustee and the Delaware Trustee may be removed and
replaced, subject to Section 6.6(b), at such time by a Majority in Liquidation
Amount of the Preferred Securities.
Section 7.6 Voting Rights of the Common Securities.
(a) Except as provided in Section 6.1(b), this Section 7.6 and
Section 11.1 and as otherwise required by the Business Trust Act, the Trust
Indenture Act or other applicable law, the Holders of the Common Securities
shall have no voting rights.
(b) Subject to Section 7.5(k), the Holders of the Common
Securities shall be entitled to vote to appoint, remove or replace any Trustee
or to increase or decrease the number of Trustees in accordance with Article 6.
(c) Subject to Section 2.6 and only after all Trust
Enforcement Events with respect to the Preferred Securities have been cured,
waived, or otherwise eliminated and subject to the requirement of the Property
Trustee obtaining a tax opinion in certain circumstances set forth in this
paragraph (c), the Holders of the Common Securities shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Property Trustee, or to direct the exercise of any trust or
power conferred upon the Property Trustee under this Declaration, including the
right to direct the Property Trustee, as Holder of the Notes, to (i) exercise
the remedies available to it under the Indenture, (ii) waive any past default
and its consequences that are waivable under the Indenture, (iii) exercise any
right to rescind or annul any declaration that the principal of all the Notes
shall be due and payable, or (iv) consent to any amendment, termination or
modification of the Indenture or the Notes where such consent is required;
provided that where a consent or action under the Indenture would require the
consent or act of the holders of more than a majority of the aggregate principal
amount of Notes
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affected thereby, only the holders of at least the same proportion of the
aggregate stated liquidation amount of the Common Securities may direct the
Property Trustee to give such consent or take such action. Except with respect
to directing the time, method, and place of conducting a proceeding for a
remedy, the Property Trustee shall be under no obligation to take any of the
actions described in clause 7.6(c)(i), (ii) and (iii) above unless the Property
Trustee has obtained an opinion of independent tax counsel to the effect that,
as a result of such action, for United States federal income tax purposes the
Trust will not fail to be classified as a grantor trust and each Holder will be
treated as owning an undivided beneficial ownership interest in the Notes.
(d) If the Property Trustee fails to enforce its rights under
the Notes after the Holders of the Common Securities have made a written
request, the Holders of the Common Securities may institute, to the fullest
extent permitted by law, a legal proceeding directly against the Notes Issuer to
enforce the Property Trustee's rights under the Notes without first instituting
any legal proceeding against the Property Trustee or any other Person. In
addition, if a Trust Enforcement Event has occurred and is continuing and such
event is attributable to the failure of the Notes Issuer to make any interest,
principal or other required payments when due under the Indenture, then a Holder
of Common Securities may institute a Direct Action against the Notes Issuer on
or after the respective due date specified in the Notes.
(e) A waiver of an Indenture Event of Default with respect to
the Notes shall constitute a waiver of the corresponding Trust Enforcement
Event.
(f) Any required approval or direction of the Holders of the
Common Securities may be given at a separate meeting of the Holders of the
Common Securities convened for such purpose, at a meeting of all of the Holders
of the Securities or pursuant to written consent. The Regular Trustees shall
cause a notice of any meeting at which the Holders of the Common Securities are
entitled to vote to be mailed to the Holders of the Common Securities. Such
notice shall include a statement setting forth: (i) the date of such meeting;
(ii) a description of any resolution proposed for adoption at such meeting on
which the Holders of the Common Securities are entitled to vote; and (iii)
instructions for the delivery of proxies.
(g) No vote or consent of the Holders of the Common Securities
shall be required for the Trust to redeem and cancel the Common Securities or to
distribute Notes in accordance with this Declaration and the terms of the
Securities.
Section 7.7 Paying Agent. If any Preferred Securities are not
represented by one or more Global Securities, the Trust shall maintain in the
Borough of Manhattan, New York City, State of New York, an office or agency
where the Preferred Securities may be presented for payment ("Paying Agent").
The Regular Trustees shall appoint the paying agent (which shall be a bank or
trust company acceptable to the Notes Issuer) and may appoint one or more
additional paying agents in such other locations as they shall determine. The
term "Paying Agent" includes any additional paying agent. The Regular Trustees
may change any Paying Agent without prior notice to the Holders of the
Securities. The Regular Trustees shall notify the Property Trustee of the name
and address of any Paying Agent not a party to this Declaration. If the Regular
Trustees, on behalf of the Trust, fail to appoint or maintain another entity as
Paying Agent, the
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Property Trustee shall act as such. The Paying Agent shall be permitted to
resign as Paying Agent upon 30 days' written notice to the Property Trustee and
the Notes Issuer.
Section 7.8 Listing. The Sponsor shall use its best efforts to cause
the Preferred Securities to be listed for quotation on the New York Stock
Exchange.
Section 7.9 Transfer of the Securities.
(a) (i) The Preferred Securities may be transferred, in whole
or in part, only in accordance with the terms and conditions set forth in this
Declaration. To the fullest extent permitted by law, any transfer or purported
transfer of any Preferred Security not made in accordance with this Declaration
shall be null and void.
(ii) Subject to this Section 7.9 and Section 7.12, the
Preferred Securities shall be freely transferable.
(iii) The Trust shall cause to be kept at the Corporate Trust
Office a register in which, subject to such reasonable regulations as
it may prescribe, the Trust shall provide for the registration of
Preferred Securities and of transfers of Preferred Securities. The
Property Trustee is hereby appointed "Security Registrar" for the
purpose of registering Preferred Securities and transfers of Preferred
Securities as herein provided.
(iv) Upon surrender for registration of transfer of any
Preferred Securities at an office or agency of the Trust designated for
such purpose, a Regular Trustee shall execute, and the Property Trustee
shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Preferred Securities of any
authorized denominations and of a like aggregate principal amount.
(v) At the option of the Holder, Securities may be exchanged
for other Preferred Securities of any authorized denominations and of a
like aggregate principal amount, upon surrender of the Preferred
Securities to be exchanged at such office or agency. Whenever any
Preferred Securities are so surrendered for exchange, a Regular Trustee
shall execute, and the Property Trustee shall authenticate and deliver,
the Preferred Securities that the Holder making the exchange is
entitled to receive.
(vi) If so required by the Trust or the Property Trustee,
every Preferred Security presented or surrendered for registration of
transfer or for exchange shall be duly endorsed, or accompanied by a
duly executed written instrument of transfer in form satisfactory to
the Trust and the Security Registrar, by the Holder thereof or his
attorney duly authorized in writing.
(vii) No service charge shall be made for any registration of
transfer or exchange of Preferred Securities, but the Trust may require
payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of
transfer or exchange of Preferred Securities.
(b) The Notes Issuer may not transfer the Common Securities
except in connection with the transactions permitted under Section 801 of the
Indenture; provided that
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each Holder of the Common Securities shall at all times be a United States
Person. To the fullest extent permitted by law, any attempted transfer of the
Common Securities other than as set forth in this Section 7.9(b) shall be null
and void.
Section 7.10 Mutilated, Destroyed, Lost or Stolen Certificates. If:
(a) any mutilated Certificates are surrendered to the Regular
Trustees, or if the Regular Trustees receive evidence to their satisfaction of
the destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Regular Trustees such
security or indemnity as may be required by them to keep each of the Sponsor and
the Trust harmless,
then, in the absence of notice that such Certificate has been acquired by a bona
fide purchaser, any Regular Trustee shall execute and deliver, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like denomination. In connection with the issuance of any new
Certificate under this Section 7.10, the Regular Trustees may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith. Any duplicate Certificate issued
pursuant to this Section 7.10 shall constitute conclusive evidence of an
ownership interest in the relevant Securities, as if originally issued, whether
or not the lost, stolen or destroyed Certificate is found at any time.
Section 7.11 Deemed Holders. The Trustees may treat the Person in whose
name any Securities are registered on the register of the Trust as the sole
holder of such Securities for purposes of receiving Distributions and for all
other purposes whatsoever. Accordingly, the Trustees shall not be bound to
recognize any equitable or other claim to or interest in such Certificate or in
the Securities represented by such Certificate on the part of any Person,
whether or not the Trust has actual or other notice thereof.
Section 7.12 Global Securities.
(a) The Preferred Securities initially shall be issued in the
form of one or more Global Securities. A Regular Trustee shall execute, and the
Property Trustee shall authenticate and deliver, one or more Global Securities
that (i) shall represent and be denominated in an amount equal to the aggregate
stated liquidation amount of all of the Preferred Securities to be issued in the
form of Global Securities and not yet canceled, (ii) shall be registered in the
name of the Depositary for the Preferred Securities or the nominee of such
Depositary and (iii) shall be delivered by the Property Trustee to such
Depositary or pursuant to such Depositary's instructions. Global Securities
shall bear a legend substantially to the following effect:
"This Preferred Security is a Global Security within the meaning of the
Declaration and is registered in the name of The Depository Trust
Company, a New York corporation (the "Depositary"), or a nominee of
the Depositary. This Preferred Security is exchangeable for Preferred
Securities registered in the name of a person other than the
Depositary or its nominee only in the limited circumstances described
in the Declaration, and no transfer of this Preferred Security (other
than a transfer of this Preferred Security as a
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whole by the Depositary to a nominee of the Depositary or by a nominee
of the Depositary to the Depositary or another nominee of the
Depositary) may be reregistered except in limited circumstances.
Unless this certificate is presented by an authorized representative
of the Depositary to RC Trust II or its agent for registration of
transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or such other name as requested
by an authorized representative of the Depositary (and any payment
hereon is made to Cede & Co. or to such other entity as is requested
by an authorized representative of the Depositary), and except as
otherwise provided in the Amended and Restated Declaration of Trust of
RC Trust II dated as of [ , ], as amended from time to time, ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL since the registered owner hereof, Cede & Co.,
has an interest herein."
(b) Preferred Securities not represented by a Global Security
issued in exchange for all or a part of a Global Security pursuant to this
Section 7.12 shall be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Property Trustee. Upon
execution and authentication, the Property Trustee shall deliver any Preferred
Securities not represented by a Global Security to the Persons in whose names
such definitive Preferred Securities are so registered.
(c) At such time as all interests in Global Securities have
been redeemed, repurchased or canceled, such Global Securities shall be
canceled, upon receipt thereof, by the Property Trustee in accordance with
standing procedures of the Depositary. At any time prior to such cancellation,
if any interest in a Global Security is exchanged for Preferred Securities not
represented by a Global Security, redeemed, canceled or transferred to a
transferee who receives Preferred Securities not represented by a Global
Security, or if any Preferred Security not represented by a Global Security is
exchanged or transferred for part of a Global Security, then, in accordance with
the standing procedures of the Depositary, the liquidation amount of such Global
Security shall be reduced or increased, as the case may be, and an endorsement
shall be made on such Global Security by the Property Trustee to reflect such
reduction or increase.
(d) The Trust and the Property Trustee, as the authorized
representative of the Holders of the Preferred Securities, may deal with the
Depositary for all purposes of this Declaration, including the making of
payments due on the Preferred Securities and exercising the rights of Holders of
the Preferred Securities hereunder. The rights of any Beneficial Owners shall be
limited to those established by law and agreements between such owners and
Depository Participants; provided that no such agreement shall give to any
Person any rights against the Trust or the Property Trustee without the written
consent of the parties so affected. Multiple requests and directions from and
votes of the Depositary as the Holder of the Preferred Securities represented by
Global Securities with respect to any particular matter shall not be deemed
inconsistent to the extent they do not represent an amount of Preferred
Securities in excess of those held in the name of the Depositary or its nominee.
(e) If at any time the Depositary notifies the Trust that it
is unwilling or unable to continue as Depositary for the Preferred Securities or
if at any time the Depositary no longer is eligible under this Section 7.12 to
serve as Depositary, the Regular Trustees shall
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appoint a successor Depositary with respect to the Preferred Securities. If a
successor Depositary is not appointed by the Trust within 90 days after the
Trust receives such notice or becomes aware of such ineligibility, the Trust's
election that the Preferred Securities be represented by one or more Global
Securities shall no longer be effective, and a Regular Trustee shall execute,
and the Property Trustee will authenticate and deliver, Preferred Securities in
definitive registered form, in any authorized denominations, in an aggregate
stated liquidation amount equal to the aggregate stated liquidation amount of
the Global Securities representing the Preferred Securities in exchange for such
Global Securities.
(f) The Regular Trustees on behalf of the Trust at any time
and in their sole discretion may determine that the Preferred Securities issued
in the form of one or more Global Securities shall no longer be represented by
Global Securities. In such event a Regular Trustee on behalf of the Trust shall
execute, and the Property Trustee shall authenticate and deliver, Preferred
Securities in definitive registered form, in any authorized denominations, in an
aggregate stated liquidation amount equal to the aggregate stated liquidation
amount of the Global Securities representing the Preferred Securities, in
exchange for such Global Securities.
(g) Notwithstanding any other provisions of this Declaration
(other than the provisions set forth in Section 7.9), Global Securities may not
be transferred as a whole except by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
(h) Interests of Beneficial Owners may be transferred or
exchanged for Preferred Securities not represented by a Global Security, and
Preferred Securities not represented by a Global Security may be transferred or
exchanged for a Global Security or Securities, in accordance with rules of the
Depositary and the provisions of Section 7.9.
Section 7.13 Authorized Denominations. The Preferred Securities are
issuable only in denominations of $[ ] and any integral multiple
thereof.
Section 7.14 [RESERVED].
ARTICLE 8
DISSOLUTION AND TERMINATION OF THE TRUST
Section 8.1 Dissolution and Termination of the Trust.
(a) The Trust shall dissolve upon the earliest of:
(i) the bankruptcy of the Notes Issuer or of any other holder
of the Common Securities;
(ii) the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor or the revocation of the
Sponsor's certificate of incorporation and the expiration of 90 days
after the date of revocation without a reinstatement thereof;
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(iii) the entry of a decree of judicial dissolution of the
Holder of the Common Securities, the Sponsor or the Trust;
(iv) the time when all of the Securities shall have been
called for redemption and the amounts then due shall have been paid to
the Holders of the Securities;
(v) the time when the Notes Issuer shall have redeemed the
Notes upon the occurrence and continuation of a Tax Event and the
proceeds from such redemption have been applied to redeem the
Securities pursuant to Section 7.3(b);
(vi) upon the direction of the Sponsor, in its sole
discretion, by notice and direction to the Property Trustee to dissolve
the Trust and to distribute, after the satisfaction of liabilities to
creditors of the Trust, if any, the Notes to the Holders of the
Securities in exchange for all of the Securities; provided that the
Sponsor has provided to the Property Trustee an opinion of counsel that
the distribution of the Notes will not be taxable to the holders of the
Preferred Securities for United States federal income tax purposes; or
(vii) [ , ].
(b) As soon as is practicable after the occurrence of an event
referred to in Section 8.1(a) and upon completion of the winding up and
liquidation of the Trust, the Regular Trustees shall terminate the Trust by
executing and filing a certificate of cancellation with the Secretary of State
of the State of Delaware.
(c) The provisions of Section 4.2 and Article 9 shall survive
the termination of the Trust.
Section 8.2 Liquidation Distribution upon Dissolution of the Trust.
(a) In the event of any voluntary or involuntary liquidation,
dissolution, or winding-up of the Trust (each a "Liquidation") based on the
occurrence of an event specified in Section 8.1(a) (other than clauses (iv) or
(v)), the Holders of the Securities on the date of the Liquidation shall be
entitled to receive on a Pro Rata basis, after satisfaction of the Trust's
liabilities to creditors, Notes in an aggregate principal amount equal to the
aggregate stated liquidation amount of, with an interest rate identical to the
distribution rate of, and accrued and unpaid interest equal to accumulated and
unpaid Distributions on, such Securities in exchange for such Securities.
(b) Notice of Liquidation shall be given by the Property
Trustee by first-class mail, postage prepaid mailed not later than 30 nor more
than 60 days prior to the date of the Liquidation to each Holder of Securities
at such Holder's address appearing in the Securities register. All notices of
Liquidation shall:
(i) state the date of the Liquidation;
(ii) state that from and after the date of the Liquidation
(other than a Liquidation as a result of clauses (iv) and (v) of
Section 8.1(a)), the Securities will no
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longer be deemed to be outstanding and any Certificates not surrendered
for exchange will be deemed to represent the Notes in a principal
amount equal to the stated liquidation amount of the Securities,
bearing accrued and unpaid interest in an amount equal to the
accumulated and unpaid Distribution on the Securities; and
(iii) provide such information with respect to the mechanics
by which Holders may exchange Certificates for Note, or if Section
8.2(d) applies receive a distribution, as the Property Trustee shall
deem appropriate.
(c) Except where Section 8.1(a)(iv) or (v) or Section 8.2(d)
applies, in order to affect the liquidation of the Trust and distribution of the
Notes to Holders, the Property Trustee shall establish a record date for such
distribution (which shall be not more than 45 days prior to the date of the
Liquidation) and, either itself acting as exchange agent or through the
appointment of a separate exchange agent, shall establish such procedures as it
shall deem appropriate to effect the distribution of Notes in exchange for the
outstanding Certificates.
(d) In the event that, notwithstanding the other provisions of
this Section 8.2, whether because of an order for dissolution entered by a court
of competent jurisdiction or otherwise, distribution of the Notes in the manner
provided herein is determined by the Property Trustee not to be practical, the
property of the Trust shall be liquidated, and the Trust shall be wound-up and
terminated, by the Property Trustee in such manner as the Property Trustee
determines. In such event, the Holders of the Securities on the date of the
Liquidation shall be entitled to receive, out of the assets of the Trust
available for distribution to the Holders of the Securities after satisfaction
of the Trust's liabilities to creditors, if any, cash or other immediately
available funds in an amount equal to the aggregate of the stated liquidation
amount of $[ ] per Security plus accumulated and unpaid Distributions thereon to
the date of payment (such amount being the "Liquidation Distribution"). If, upon
any such Liquidation, the Liquidation Distribution can be paid only in part
because the Trust has insufficient assets available to pay the aggregate
Liquidation Distribution in full, then the amounts payable directly by the Trust
on the Securities shall be paid on a Pro Rata basis. The Holders of the Common
Securities shall be entitled to receive the Liquidation Distribution Pro Rata
with the Holders of the Preferred Securities, except that if an Indenture Event
of Default has occurred and is continuing, then the Preferred Securities shall
have a preference over the Common Securities with regard to the Liquidation
Distribution.
(e) After the date fixed for any distribution of Notes upon
dissolution of the Trust, (i) the Securities no longer shall be deemed to be
outstanding and (ii) the Certificates shall be deemed to represent the Notes in
a principal amount equal to the stated liquidation amount of the Securities,
bearing accrued and unpaid interest in an amount equal to the accumulated and
unpaid Distributions on the Securities, until such Certificates are presented to
the Regular Trustees or agent for transfer or reissuance.
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ARTICLE 9
LIMITATION OF LIABILITY OF HOLDERS OF THE SECURITIES, THE DELAWARE
TRUSTEE AND OTHERS
Section 9.1 Liability.
(a) Except as expressly set forth in this Declaration, the
Guarantee and the terms of the Securities, the Sponsor:
(i) shall not be personally liable for the return of any
portion of the capital contributions (or any return thereon) of the
Holders of the Securities that will be made solely from assets of the
Trust; and
(ii) shall not be required to pay to the Trust or to any
Holder of the Securities any deficit, upon dissolution of the Trust or
otherwise.
(b) Pursuant to Section 3803(a) of the Business Trust Act,
Holders of the Securities shall 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.
Section 9.2 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or to any Covered Person for
any loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in a
manner that such Indemnified Person reasonably believed to be within the scope
of the authority conferred on such Indemnified Person by this Declaration or by
law, except that an Indemnified Person shall be liable for any such loss, damage
or claim incurred by reason of such Indemnified Person's gross negligence (or,
in the case of the Property Trustee, negligence) or willful misconduct with
respect to such acts or omissions.
(b) Each Indemnified Person shall be fully protected in
relying in good faith upon the records of the Trust and upon such information,
opinions, reports or statements presented to the Trust by any Person as to
matters such Indemnified Person reasonably believes to be within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Trust, including information, opinions,
reports or statements as to the value and amount of the assets, liabilities,
profits, losses or any other facts pertinent to the existence and amount of
assets from which distributions to Holders of the Securities might properly be
paid.
Section 9.3 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified
Person has duties (including fiduciary duties) and liabilities relating thereto
to the Trust or to any other Covered Person, an Indemnified Person acting under
this Declaration shall not be liable to the Trust or to
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any other Covered Person for its good faith reliance on the provisions of this
Declaration. The provisions of this Declaration, to the extent that they
restrict the duties and liabilities of an Indemnified Person otherwise existing
at law or in equity (other than the duties imposed on the Property Trustee under
the Trust Indenture Act), are agreed by the parties hereto to replace such other
duties and liabilities of such Indemnified Person.
(b) Unless otherwise expressly provided herein whenever:
(i) a conflict of interest exists or arises between a Covered
Person and an Indemnified Person; or
(ii) this Declaration or any other agreement contemplated
herein or therein provides that an Indemnified Person shall act in a
manner that is, or provides terms that are, fair and reasonable to the
Trust or any Holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is
permitted or required to make a decision:
(i) in its "discretion" or under a grant of similar authority,
the Indemnified Person shall be entitled to consider such interests and
factors as it desires, including its own interests, and shall have no
duty or obligation to give any consideration to any interest of or
factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard,
the Indemnified Person shall act under such express standard and shall
not be subject to any other or different standard imposed by this
Declaration or by applicable law.
Section 9.4 Indemnification.
(a) To the fullest extent permitted by applicable law, the
Sponsor, in its capacity as Notes Issuer, shall indemnify and hold harmless each
Indemnified Person from and against any loss, damage or claim incurred by such
Indemnified Person by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of authority
conferred on such Indemnified Person by this Declaration, except that no
Indemnified Person shall be entitled to be indemnified in respect of any loss,
damage or claim incurred by such Indemnified Person by reason of gross
negligence (or, in the case of the Property Trustee, negligence) or willful
misconduct with respect to such acts or omissions.
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(b) The provisions of this Section 9.4 shall survive the
termination of this Declaration or the resignation or removal of any Trustee.
(c) The Sponsor or the Trust may purchase and maintain
insurance on behalf of any Person who is or was an Indemnified Person against
any liability asserted against him or her and incurred by him or her in any such
capacity, or arising out of his or her status as such, whether or not the
Sponsor would have the power to indemnify him or her against such liability
under the provisions of this Section 9.4.
(d) For purposes of this Section 9.4, references to "the
Trust" shall include, in addition to the resulting or surviving entity, any
constituent entity (including any constituent of a constituent) absorbed in a
consolidation or merger, so that any Person who is or was a director, trustee,
officer or employee of such constituent entity, or is or was serving at the
request of such constituent entity as a director, trustee, officer, employee or
agent of another entity, shall stand in the same position under the provisions
of this Section 9.4 with respect to the resulting or surviving entity as he or
she would have had with respect to such constituent entity if its separate
existence had continued.
(e) The indemnification provided by, or granted pursuant to,
this Section 9.4 shall continue, unless otherwise provided when authorized or
ratified, as to a Person who has ceased to be an Indemnified Person and shall
inure to the benefit of the heirs, executors and administrators of such a
Person. The obligation to indemnify as set forth in this Section 9.4 shall
survive the resignation or removal of the Delaware Trustee or the Property
Trustee or the termination of this Declaration.
Section 9.5 Outside Businesses. Any Covered Person, the Sponsor, the
Delaware Trustee and the Property Trustee (subject to Section 6.3(c)) may engage
in or possess an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar to the
activities of the Trust, and the Trust and the Holders of the Securities shall
have no rights by virtue of this Declaration in and to such independent ventures
or the income or profits derived therefrom, and the pursuit of any such venture,
even if competitive with the activities of the Trust, shall not be deemed
wrongful or improper. Each Covered Person, the Sponsor, the Delaware Trustee and
the Property Trustee shall not be obligated to present any particular investment
or other opportunity to the Trust even if such opportunity is of a character
that, if presented to the Trust, could be taken by the Trust, and any Covered
Person, the Sponsor, the Delaware Trustee and the Property Trustee shall have
the right to take for its own account (individually or as a partner or
fiduciary) or to recommend to others any such particular investment or other
opportunity. Any Covered Person, the Delaware Trustee and the Property Trustee
may engage or be interested in any financial or other transaction with the
Sponsor or any Affiliate of the Sponsor, or may act as depositary for, trustee
or agent for, or act on any committee or body of holders of, securities or other
obligations of the Sponsor or its Affiliates.
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ARTICLE 10
ACCOUNTING
Section 10.1 Fiscal Year. The fiscal year ("Fiscal Year") of the Trust
shall be the calendar year, or such other year as is required by the Code.
Section 10.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust, the
Regular Trustees shall keep, or shall cause to be kept, full books of account,
records and supporting documents, which shall reflect in reasonable detail each
transaction of the Trust. The books of account shall be maintained on the
accrual method of accounting, in accordance with generally accepted accounting
principles, consistently applied. The Trust shall use the accrual method of
accounting for United States federal income tax purposes. The books of account
and the records of the Trust shall be examined by and reported upon as of the
end of each Fiscal Year of the Trust by a firm of independent certified public
accountants selected by the Regular Trustees.
(b) The Regular Trustees shall cause to be prepared and
delivered to each Holder of Securities, within 90 days after the end of each
Fiscal Year of the Trust, annual financial statements of the Trust, including a
balance sheet of the Trust as of the end of such Fiscal Year, and the related
statements of income or loss.
(c) The Regular Trustees shall cause to be duly prepared and
delivered to each Holder of Securities an annual United States federal income
tax information statement, required by the Code, containing such information
with regard to the Securities held by each Holder as is required by the Code and
the Treasury Regulations. Notwithstanding any right under the Code to deliver
any such statement at a later date, the Regular Trustees shall endeavor to
deliver all such statements within 30 days after the end of each Fiscal Year of
the Trust.
(d) The Regular Trustees shall cause to be duly prepared and
filed with the appropriate taxing authority an annual United States federal
income tax return, on Form 1041 or such other form required by United States
federal income tax law, and any other annual income tax returns required to be
filed on behalf of the Trust with any state or local taxing authority.
Section 10.3 Banking. The Trust shall maintain one or more bank
accounts in the name and for the sole benefit of the Trust; provided that all
payments of funds in respect of the Notes held by the Property Trustee shall be
made directly to the Property Account and no other funds of the Trust shall be
deposited in the Property Account. The sole signatories for such accounts shall
be designated by the Regular Trustees; provided that the Property Trustee shall
designate the signatories for the Property Account.
Section 10.4 Withholding. The Trust and the Regular Trustees shall
comply with all withholding requirements under United States federal, state and
local law. The Regular Trustees shall request, and the Holders of the Securities
shall provide to the Trust, such forms or certificates as are necessary to
establish an exemption from withholding with respect to each Holder of
Securities and any representations and forms as shall reasonably be requested by
the Regular Trustees to assist them in determining the extent of, and in
fulfilling, the Trust's
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withholding obligations. The Regular Trustees shall file the required forms with
applicable jurisdictions and, unless an exemption from withholding is properly
established by a Holder of Securities, shall remit amounts withheld with respect
to such Holder to applicable jurisdictions. To the extent that the Trust is
required to withhold and pay over any amounts to any authority with respect to
distributions or allocations to any Holder of Securities, the amount withheld
shall be deemed to be a distribution in the amount of the withholding to such
Holder. In the event of any claimed over withholding, a Holder shall be limited
to an action against the applicable jurisdiction. If the amount required to be
withheld was not withheld from actual Distributions made, the Trust may reduce
subsequent Distributions by the amount of such withholding.
ARTICLE 11
AMENDMENTS AND MEETINGS
Section 11.1 Amendments.
(a) Except as otherwise provided in this Declaration or by any
applicable terms of the Securities, this Declaration may be amended only by a
written instrument approved and executed by:
(i) the Sponsor;
(ii) the Regular Trustees (or, if there are more than two
Regular Trustees, a majority of the Regular Trustees);
(iii) the Property Trustee (if the amendment affects the
rights, powers, duties, obligations or immunities of the Property
Trustee); and
(iv) the Delaware Trustee (if the amendment affects the
rights, powers, duties, obligations or immunities of the Delaware
Trustee).
(b) No amendment shall be made, and any such purported
amendment shall be void and ineffective:
(i) unless, in the case of any proposed amendment, the
Property Trustee first has received an Officers' Certificate from each
of the Trust and the Sponsor that such amendment is permitted by, and
conforms to, the terms of this Declaration (including the terms of the
Securities);
(ii) unless, in the case of any proposed amendment that
affects the rights, powers, duties, obligations or immunities of the
Property Trustee, the Property Trustee first has received:
(A) an Officers' Certificate from each of the
Trust and the Sponsor that such amendment is
permitted by, and conforms to, the terms of
this Declaration (including the terms of the
Securities); and
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(B) an opinion of counsel (which may be counsel
to the Sponsor or the Trust) that such
amendment is permitted by, and conforms to,
the terms of this Declaration (including the
terms of the Securities); and
(iii) to the extent the result of such amendment would be to:
(A) cause the Trust to be classified other than
as a grantor trust for United States federal
income tax purposes;
(B) reduce or otherwise adversely affect the
powers of the Property Trustee in
contravention of the Trust Indenture Act; or
(C) cause the Trust to be deemed to be an
Investment Company required to be registered
under the Investment Company Act.
(c) At such time after the Trust has issued any Securities
that remain outstanding, (i) any amendment that would (A) materially adversely
affect the powers, preferences or special rights of the Securities, whether by
way of amendment to this Declaration or otherwise or (B) result in the
dissolution, winding-up or termination of the Trust other than pursuant to the
terms of this Declaration shall not be effective except with the approval of the
Holders of at least a Majority in Liquidation Amount of the Securities, voting
together as a single class; provided that if any amendment or proposal referred
to in clause (A) above would materially adversely affect only the Preferred
Securities or the Common Securities, then only the affected class will be
entitled to vote on such amendment or proposal, and such amendment or proposal
shall not be effective except with the approval of a Majority in Liquidation
Amount of the class of Securities affected thereby; and (ii) any amendment that
would (A) change the amount or timing of any Distribution of the Securities or
otherwise adversely affect the amount of any Distribution require to be made in
respect of the Securities as of a specified date or (B) restrict the right of a
Holder of Securities to institute suit for the enforcement of an such payment on
or after such date shall not be effective except with the approval of each
Holder of Securities affected thereby.
(d) This Section 11.1 shall not be amended without the consent
of all of the Holders of the Securities.
(e) Article 4 shall not be amended without the consent of the
Holders of the Common Securities.
(f) The rights of the Holders of the Common Securities under
Articles 6 and 7 to increase or decrease the number of, and appoint and remove,
Trustees shall not be amended without the consent of the Holders of the Common
Securities.
(g) Notwithstanding Section 11.1(c), this Declaration may be
amended by the Sponsor and the Regular Trustees without the consent of the
Holders of the Securities, provided that such amendment does not have a material
adverse effect on the rights, preferences or privileges of the Holders of the
Securities:
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(i) to cure any ambiguity;
(ii) to correct or supplement any provision in this
Declaration that may be defective or inconsistent with any other
provision of this Declaration;
(iii) to add to the covenants, restrictions or obligations of
the Sponsor;
(iv) to conform to any change in Rule 3a-5 or written change
in interpretation or application of Rule 3a-5 by any legislative body,
court, government agency or regulatory authority; or
(v) to modify, eliminate and add to any provision of this
Declaration to ensure that the Trust will be classified as a grantor
trust for United States federal income tax purposes at all times that
any Securities are outstanding or to ensure that the Trust will not be
required to register as an Investment Company under the Investment
Company Act; provided that such modification, elimination or addition
would not adversely affect in any material respect the rights,
privileges or preferences of any Holder of Securities.
Section 11.2 Meetings of the Holders of the Securities; Action by
Written Consent.
(a) Meetings of the Holders of any class of Securities may be
called at any time by the Regular Trustees (or as provided in the terms of the
Securities) to consider and act on any matter on which Holders of such class of
Securities are entitled to act under the terms of this Declaration, the terms of
the Securities or the rules of any stock exchange on which the Preferred
Securities are listed or admitted for trading. The Regular Trustees shall call a
meeting of the Holders of such class if directed to do so by the Holders of at
least 10% in Liquidation Amount of such class of Securities. Such direction
shall be given by delivering to the Regular Trustees a writing stating that the
signing Holders of the Securities wish to call a meeting and indicating the
general or specific purpose for which the meeting is to be called. The Holder or
Holders of the Securities calling a meeting shall specify in writing the
Securities held by such Holder or Holders, and only those Securities specified
shall be counted for purposes of determining whether the required percentage set
forth in the second sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of
the Securities, the following provisions shall apply to meetings of the Holders
of the Securities:
(i) Notice of any such meeting shall be given to all the
Holders of the Securities having a right to vote thereat at least seven
days and not more than 60 days before the date of such meeting.
Whenever a vote, consent or approval of the Holders of the Securities
is permitted or required under this Declaration or the rules of any
stock exchange on which the Preferred Securities are listed or admitted
for trading, such vote, consent or approval may be given at a meeting
of the Holders of the Securities. Any action that may be taken at a
meeting of the Holders of the Securities may be taken without a meeting
and without prior notice if a consent in writing setting forth the
action so taken is signed by the Holders of the Securities owning not
less than the minimum amount of Securities in liquidation amount that
would be necessary to authorize or take such action at a meeting at
which all Holders of the Securities having a right to vote thereon were
present and voting. Prompt notice of the taking of action without a
meeting
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shall be given to the Holders of the Securities entitled to vote who
have not consented in writing. The Regular Trustees may specify that
any written ballot submitted to the Holders of the Securities for the
purpose of taking any action without a meeting shall be returned to the
Trust within the time specified by the Regular Trustees.
(ii) Each Holder of the Securities may authorize any Person to
act for it by proxy on any or all matters in which such Holder is
entitled to participate, including waiving notice of any meeting, or
voting or participating at a meeting. No proxy shall be valid after the
expiration of 11 months from the date thereof unless otherwise provided
in the proxy. Every proxy shall be revocable at the pleasure of the
Holder of Securities executing such proxy. Except as otherwise provided
herein, all matters relating to the giving, voting or validity of
proxies shall be governed by the General Corporation Law of the State
of Delaware relating to proxies, and judicial interpretations
thereunder, as if the Trust were a Delaware corporation and the Holders
of the Securities were stockholders of a Delaware corporation.
(iii) Each meeting of the Holders of the Securities shall be
conducted by the Regular Trustees or by such other Person that the
Regular Trustees may designate.
(iv) Unless the Business Trust Act, this Declaration, the
terms of the Securities, the Trust Indenture Act or the listing rules
of any stock exchange on which the Preferred Securities are then listed
for trading otherwise provides, the Regular Trustees, in their sole
discretion, shall establish all other provisions relating to meetings
of Holders of the Securities, including notice of the time, place or
purpose of any meeting at which any matter is to be voted on by any
Holders of the Securities, waiver of any such notice, action by consent
without a meeting without prior notice, the establishment of a record
date, quorum requirements, voting in person or by proxy or any other
matter with respect to the exercise of any such right to vote.
ARTICLE 12
REPRESENTATIONS OF THE PROPERTY TRUSTEE
AND THE DELAWARE TRUSTEE
Section 12.1 Representations and Warranties of the Property Trustee.
The initial Property Trustee represents and warrants to the Trust and to the
Sponsor at the date of this Declaration, and each Successor Property Trustee
represents and warrants to the Trust and the Sponsor at the time of such
Successor Property Trustee's acceptance of its appointment as Property Trustee,
that:
(a) the Property Trustee is a corporation or national banking
association duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation or organization, with trust power and
authority to execute and deliver, and to carry out and perform its obligations
under the terms of, this Declaration;
(b) the Property Trustee satisfies the requirements set forth
in Section 6.3(a);
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(c) the execution, delivery and performance by the Property
Trustee of this Declaration have been duly authorized by all necessary corporate
action on the part of the Property Trustee; this Declaration has been duly
executed and delivered by the Property Trustee, and it constitutes a legal,
valid and binding obligation of the Property Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency and other similar laws affecting creditors' rights
generally and to general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is considered in a
proceeding in equity or at law);
(d) the execution, delivery and performance of this
Declaration by the Property Trustee do not conflict with, nor constitute a
breach of, the articles of association or incorporation, as the case may be, or
the by-laws (or other similar organizational documents) of the Property Trustee;
and
(e) no consent, approval or authorization of, or registration
with or notice to, any state or federal banking authority is required for the
execution delivery or performance by the Property Trustee of this Declaration.
Section 12.2 Representations and Warranties of the Delaware Trustee.
The initial Delaware Trustee represents and warrants to the Trust and to the
Sponsor at the date of this Declaration, and each Successor Delaware Trustee
represents and warrants to the Trust and the Sponsor at the time of such
Successor Delaware Trustee's acceptance of its appointment as Delaware Trustee,
that:
(a) the Delaware Trustee satisfies the requirements set forth
in Section 6.2 and has the power and authority to execute and deliver, and to
carry out and perform its obligations under the terms of, this Declaration and,
if it is not a natural person, is a corporation duly organized, validly existing
and in good standing under the laws of its jurisdiction of incorporation or
organization;
(b) the Delaware Trustee has been authorized to perform its
obligations under the Certificate of Trust and this Declaration; and this
Declaration constitutes a legal, valid and binding obligation of the Delaware
Trustee under Delaware law, enforceable against it in accordance with its terms
subject to applicable bankruptcy, reorganization, moratorium, insolvency and
other similar laws affecting creditors' rights generally and to general
principles of equity and the discretion of the court (regardless of whether the
enforcement of such remedies is considered in a proceeding in equity or at law);
and
(c) no consent, approval or authorization of, or registration
with or notice to, any state or federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee of this Declaration.
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ARTICLE 13
MISCELLANEOUS
Section 13.1 Notices. All notices provided for in this Declaration
shall be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by registered or certified mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees at
the Trust's mailing address set forth below (or such other address as the Trust
may give notice of to the Property Trustee, the Delaware Trustee and the Holders
of the Securities):
RC Trust II
141 Spring Street
Lexington, Massachusetts 02421
Attention: [Richard A. Goglia]
Telephone No: (781) 862-6600
Fax No: (781) 860-2341
(b) if given to the Delaware Trustee, at the mailing address
set forth below (or such other address as the Delaware Trustee may give notice
of to the Regular Trustees, the Property Trustee and the Holders of the
Securities):
[The Bank of New York (Delaware)]
[ ]
[ ]
[ ]
Attention: [ ]
Telephone No: [( ) ]
Fax No: [( ) ]
(c) if given to the Property Trustee, at its Corporate Trust
Office (telephone no. [( ) ] and fax no. [( ) ]
(or such other address as the Property Trustee may give notice of to the Regular
Trustees, the Delaware Trustee and the Holders of the Securities);
(d) if given to the Holders of the Common Securities, at the
mailing address of the Sponsor set forth below (or such other address as the
Holders of the Common Securities may give notice of to the Property Trustee, the
Delaware Trustee and the Trust):
Raytheon Company
141 Spring Street
Lexington, Massachusetts 02421
Attention: Corporate Secretary
Telephone No: (781) 862-6600
Fax No: (781) 860-3899
(e) if given to any Holder of Preferred Securities, at such
Holder's address as set forth in the register of the Trust.
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All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed or mailed by first class mail, postage
prepaid, except that if a notice or other document is refused delivery or cannot
be delivered because of a changed address of which no notice was given, such
notice or other document shall be deemed to have been delivered on the date of
such refusal or inability to deliver.
Section 13.2 Governing Law. This Declaration and the rights of the
parties hereunder shall be governed by and interpreted in accordance with the
laws of the State of Delaware, without regard to principles of conflicts of
laws.
Section 13.3 Intention of the Parties. It is the intention of the
parties hereto that the Trust be classified for United States federal income tax
purposes as a grantor trust. The provisions of this Declaration shall be
interpreted in a manner consistent with such classification.
Section 13.4 Headings. The headings contained in this Declaration are
inserted for convenience of reference only and do not affect the interpretation
of this Declaration or any provision hereof.
Section 13.5 Successors and Assigns. Whenever in this Declaration any
of the parties hereto is named or referred to, the successors and assigns of
such party shall be deemed to be included, and all covenants and agreements in
this Declaration by the Sponsor and the Trustee shall bind and inure to the
benefit of their respective successors and assigns, whether so expressed.
Section 13.6 Partial Enforceability. If any provision of this
Declaration or the application of such provision to any Person or circumstance
is held invalid, the remainder of this Declaration, or the application of such
provision to persons or circumstances other than those to which it is held
invalid, shall not be affected thereby.
Section 13.7 Counterparts. This Declaration may contain more than one
counterpart of the signature page, and this Declaration may be executed by the
affixing of the signature of each of the Trustees to one of such counterpart
signature pages. All such counterpart signature pages shall be read as though
one, and they shall have the same force and effect as though all of the signers
had signed a single signature page.
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IN WITNESS WHEREOF, the undersigned have caused these presents to be
executed as of the day and year first above written.
RAYTHEON COMPANY,
as Sponsor and Notes Issuer
By:
Name: [Richard A. Goglia]
Title: [Vice President and Treasurer]
[THE BANK OF NEW YORK],
as Property Trustee
By:
Name:
Title:
[THE BANK OF NEW YORK (DELAWARE)],
as Delaware Trustee
By:
Name:
Title:
[Richard A. Goglia], as Regular Trustee
[ ], as Regular Trustee
[ ], as Regular Trustee
[Signature page for Amended and Restated Declaration of Trust of RC Trust II]
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EXHIBIT A
FORM OF PREFERRED SECURITIES CERTIFICATE
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL SECURITY, INSERT
A LEGEND SUBSTANTIALLY TO THE FOLLOWING EFFECT: This Preferred Security is a
Global Security within the meaning of the Amended and Restated Declaration of
Trust of RC TRUST II hereinafter referred to and is registered in the name of
The Depository Trust Company, a New York corporation (the "Depositary"), or a
nominee of the Depositary. This Preferred Security is exchangeable for Preferred
Securities registered in the name of a person other than the Depositary or its
nominee only in the limited circumstances described in the Amended and Restated
Declaration of Trust of RC Trust II, and no transfer of this Preferred Security
(other than a transfer of this Preferred Security as a whole by the Depositary
to a nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary) may be registered, except in
limited circumstances.
Unless this Preferred Security Certificate is presented by an
authorized representative of the Depositary to the issuer or its agent for
registration of transfer, exchange or payment, and any Preferred Security
Certificate issued is registered in the name of Cede & Co. or such other name as
registered by an authorized representative of the Depositary (and any payment
hereon is made to Cede & Co. or to such other entity as is requested by an
authorized representative of the Depositary), and except as otherwise provided
in the Amended and Restated Declaration of Trust of RC Trust II dated as of [ ,
], ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL, since the registered owner hereof, Cede & Co., has an
interest herein.]
Certificate No. __________ Number of Preferred Securities: ___________
CUSIP No. ________________ Aggregate Liquidation Amount: $____________
Certificate Evidencing Preferred Securities
of
RC Trust II
Preferred Securities
(liquidation amount $[ ] per Preferred Security)
RC Trust II, a statutory business trust created under the laws
of the State of Delaware (the "Trust"), hereby certifies that [__________] (the
"Holder") is the registered owner of ____ preferred securities of the Trust
representing undivided beneficial interests in the assets of the Trust
designated the Preferred Securities (liquidation amount $[ ] per Preferred
Security) (the "Preferred Securities"). The Preferred Securities are
transferable on the register of the Trust,
A-1
in person or by a duly authorized attorney, upon surrender of this certificate
duly endorsed and in proper form for transfer as provided in the Declaration (as
defined below). The designation rights, privileges, restrictions, preferences
and other terms and provisions of the Preferred Securities represented hereby
are issued and shall in all respect be subject to the provisions of the Amended
and Restated Declaration of Trust of the Trust, dated as of [ , ] (as the same
may be amended from time to time (the "Declaration")), among Raytheon Company,
as Sponsor, [Richard A. Goglia][, and ], as Regular Trustees, [The Bank of New
York], as Property Trustee, [The Bank of New York (Delaware)], as Delaware
Trustee, and the holders from time to time, of undivided beneficial ownership
interests in the assets of the Trust. Capitalized terms used herein but not
defined shall have the meaning given them in the Declaration. The Holder is
entitled to the benefits of the Guarantee Agreement, dated as of [ , ], as the
same may be amended from time to time, of Raytheon Company, in respect of the
Preferred Securities. The Sponsor will provide a copy of the Declaration, the
Guarantee and the Indenture to a Holder without charge upon written request to
the Sponsor at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
terms of the Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States
federal income tax purposes, the Notes as indebtedness of the Sponsor and the
Preferred Securities as evidence of undivided beneficial ownership interests in
the Notes.
IN WITNESS WHEREOF, the Trust has executed this certificate
this [ ] day of [ , ].
RC TRUST II
By:________________________________________
[Richard A. Goglia], as Regular Trustee
This is one of the Securities referred to in the within-mentioned
Declaration.
[THE BANK OF NEW YORK], as
Property Trustee
By:________________________________________
Title:_____________________________________
A-2
EXHIBIT B
FORM OF COMMON SECURITIES CERTIFICATE
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT AS PROVIDED IN THE
DECLARATION (AS DEFINED BELOW)
Certificate No.______ Number of Common Securities: _______
Aggregate Liquidation Amount: $______
Certificate Evidencing Common Securities
of
RC Trust II
Common Securities
(liquidation amount $[ ] per Common Security)
RC Trust II, a statutory business trust created under the laws
of the State of Delaware (the "Trust"), hereby certifies that
_________________________ (the "Holder") is the registered owner of
_________________ common securities of the Trust representing an undivided
beneficial interest in the assets of the Trust designated the Common Securities
(liquidation amount $[ ] per Common Security) (the "Common Securities"). Except
as provided in the Declaration (as defined below), the Common Securities are not
transferable, and any attempted transfer thereof shall be void. The designation,
rights, privileges, restrictions, preferences and other terms and provisions of
the Common Securities represented hereby are issued and shall in all respects be
subject to the provisions of the Amended and Restated Declaration of Trust of
the Trust, dated as of [ , ], (as the same may be amended from time to time, the
"Declaration")), among Raytheon Company, as Sponsor, [Richard A. Goglia][, and
], as Regular Trustees, [The Bank of New York], as Property
Trustee, [The Bank of New York (Delaware)], as Delaware Trustee, and the
holders, from time to time, of undivided beneficial ownership interests in the
assets of the Trust. The Sponsor will provide a copy of the Declaration and the
Indenture to the Holder without charge upon written request to the Sponsor at
its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
terms of the Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States
federal income tax purposes, the Notes as indebtedness of the Sponsor and the
Common Securities as evidence of an undivided beneficial ownership interest in
the Notes.
B-1
IN WITNESS WHEREOF, the Trust has executed this certificate
this [ ] day of [ , ].
RC TRUST II
By:_____________________________________
[Richard A. Goglia], as Regular Trustee
B-2
Exhibit 4.23
FORM OF
RAYTHEON COMPANY
GUARANTEE AGREEMENT
----------------------------
Dated as of _____ ___, ____
Certain Sections of this Trust Agreement relating to Sections 310 through 318,
inclusive, of the Trust Indenture Act of 1939:
Trust Indenture Trust
Act Section Agreement Section
ss.310 (a)(1)...............................................................4.01
(a)(2)...............................................................4.01
(a)(3).....................................................Not Applicable
(a)(4).....................................................Not Applicable
(a)(5)...............................................................4.01
(b)..................................................................2.08
(c)........................................................Not Applicable
ss.311 (a)...............................................................2.08(b)
(b)...............................................................2.08(b)
(c)........................................................Not Applicable
ss.312................................................................2.02, 2.07
ss.313 (a)..................................................................2.03
(b)..................................................................2.03
(c)..................................................................2.03
(d)..................................................................2.03
ss.314 (a)..................................................................2.04
(b)........................................................Not Applicable
(c)..................................................................2.05
(d)........................................................Not Applicable
(e)..................................................................1.01
ss.315 (a)..................................................................3.02
(b)..................................................................3.01
(c)..................................................................3.02
(d)..................................................................3.02
(e)........................................................Not Applicable
ss.316 (a)............................................................5.04, 2.06
(b)..................................................................5.03
(c)........................................................Not Applicable
ss.317......................................................................2.01
ss.318(a)...................................................................2.01
- ----------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Trust Agreement.
Table of Contents
Page
ARTICLE I DEFINITIONS.............................................................................................1
Section 1.01 Definitions.................................................................................1
ARTICLE II TRUST INDENTURE ACT....................................................................................4
Section 2.01 Trust Indenture Act; Application............................................................4
Section 2.02 Lists of Holders of Preferred Securities....................................................5
Section 2.03 Reports by the Guarantee Trustee............................................................5
Section 2.04 Periodic Reports to the Guarantee Trustee...................................................5
Section 2.05 Evidence of Compliance with Conditions Precedent............................................5
Section 2.06 Events of Default; Waiver...................................................................6
Section 2.07 Disclosure of Information...................................................................6
Section 2.08 Conflicting Interest........................................................................6
ARTICLE III POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE....................................................6
Section 3.01 Powers and Duties of the Guarantee Trustee..................................................6
Section 3.02 Certain Rights and Duties of the Guarantee Trustee..........................................7
Section 3.03 Not Responsible for Recitals or Issuance of Guarantee.......................................9
Section 3.04 The Guarantee Trustee May Own Preferred Securities..........................................9
Section 3.05 Moneys Received by the Guarantee Trustee to Be Held in Trust Without Interest...............9
Section 3.06 Compensation and Expenses of Guarantee Trustee..............................................9
ARTICLE IV GUARANTEE TRUSTEE.....................................................................................10
Section 4.01 Qualifications.............................................................................10
Section 4.02 Appointment, Removal and Resignation of the Guarantee Trustee..............................11
ARTICLE V GUARANTEE..............................................................................................11
Section 5.01 Guarantee..................................................................................11
Section 5.02 Waiver of Notice...........................................................................11
Section 5.03 Obligations Not Affected...................................................................12
Section 5.04 Enforcement of Guarantee...................................................................13
Section 5.05 Guarantee of Payment.......................................................................13
Section 5.06 Subrogation................................................................................13
Section 5.07 Independent Obligations....................................................................13
ARTICLE VI LIMITATION OF TRANSACTIONS; [SUBORDINATION]...........................................................14
Section 6.01 Limitation of Transactions.................................................................14
Section 6.02 [Subordination.............................................................................15
ARTICLE VII TERMINATION..........................................................................................15
Section 7.01 Termination................................................................................15
ARTICLE VIII LIMITATION OF LIABILITY; INDEMNIFICATION............................................................15
Section 8.01 Exculpation................................................................................15
Section 8.02 Indemnification............................................................................16
Section 8.03 Survive Termination........................................................................16
ARTICLE IX MISCELLANEOUS.........................................................................................16
Section 9.01 Successors and Assigns.....................................................................16
Section 9.02 Amendments.................................................................................16
Section 9.03 Notices....................................................................................17
i
Table of Contents
(continued)
Page
Section 9.04 Genders....................................................................................17
Section 9.05 Benefit....................................................................................17
Section 9.06 Governing Law..............................................................................17
Section 9.07 Counterparts...............................................................................18
Section 9.08 [Exercise of Overallotment Option..........................................................18
Section 9.09 Limited Liability..........................................................................18
ii
This GUARANTEE AGREEMENT, dated as of __________, ____, is executed and
delivered by RAYTHEON COMPANY, a Delaware corporation (the "Guarantor"), and The
Bank of New York, a New York banking corporation, as the initial Guarantee
Trustee (as defined herein) for the benefit of the Holders (as defined herein)
from time to time of the Preferred Securities (as defined herein) of RC Trust
II, a Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of ______________, ____, among the trustees of the
Issuer named therein, Raytheon Company, as Sponsor, and the Holders from time to
time of preferred undivided beneficial interests in the assets of the Issuer,
the Issuer may issue up to $_____________ aggregate liquidation amount of its
_____% [Convertible] Trust Preferred Securities (the "Preferred Securities")
representing preferred undivided beneficial interests in its assets and having
the terms set forth in the Declaration [, of which $_____________ liquidation
amount of Preferred Securities is being issued as of the date hereof. Up to the
remaining $______________ liquidation amount of Preferred Securities may be
issued by the Issuer if and to the extent that the over-allotment option granted
by the Guarantor and the Issuer pursuant to the Underwriting Agreement (as may
be defined in the Declaration) is exercised by the Underwriters named in the
Underwriting Agreement]; and
WHEREAS, as incentive for the Holders to purchase Preferred Securities,
the Guarantor desires to irrevocably and unconditionally agree, to the extent
set forth herein, to pay to the Holders the Guarantee Payments (as defined
herein) and to make certain other payments on the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of the purchase by each Holder of
Preferred Securities, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Guarantee Agreement for
the benefit of the Holders from time to time.
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.
(a) Capitalized terms used in this Guarantee Agreement but not defined
in the preamble or recitals above have the respective meanings assigned to them
in this Section 1.01.
(b) A term defined anywhere in this Guarantee Agreement has the same
meaning throughout.
(c) All references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented or amended
from time to time.
(d) All references in this Guarantee Agreement to Articles and Sections
are to Articles and Sections of this Guarantee Agreement unless otherwise
specified.
(e) A term defined in the Trust Indenture Act has the same meaning when
used in this Guarantee Agreement unless otherwise defined in this Guarantee
Agreement or unless the context otherwise requires.
(f) A reference to the singular includes the plural and vice versa.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by, or under direct or indirect common
control with, such specified Person. For purposes of this definition, "control"
of a Person shall mean the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" shall have meanings correlative to the foregoing.
"Business Day" has the meaning set forth in the Declaration.
"Commission" means the United States Securities and Exchange
Commission.
"Declaration" has the meaning set forth in the recitals above.
"Distributions" means the periodic distributions and other payments
payable to Holders in accordance with the terms of the Preferred Securities (as
set forth in the Declaration).
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Guarantee Agreement; provided, however,
that, except with respect to a default in payment of any Guarantee Payment, any
such default shall constitute an Event of Default only if the Guarantor shall
have received notice of such default and shall not have cured such default
within 60 days after receipt of such notice.
["Extension Period" has the meaning set forth in the Indenture.]
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Preferred Securities, to the extent not
paid or made by or on behalf of the Issuer: (i) any accumulated and unpaid
Distributions and the Redemption Price, including all accumulated and unpaid
Distributions to the date of redemption, with respect to any Preferred
Securities called for redemption by the Issuer but only if and to the extent
that in each case the Issuer has fund legally available therefor and (ii) upon a
voluntary or involuntary dissolution, winding up or termination of the Issuer
(other than in connection with the distribution of Notes to Holders in exchange
for Preferred Securities or the redemption of the Preferred Securities in full
upon the maturity or redemption of all of the Notes as provided in the
Declaration), the lesser of (a) the aggregate of the liquidation amount and all
accumulated and unpaid Distributions on the Preferred Securities to the date of
payment, to the extent the Issuer has funds legally available therefor, and (b)
the amount of assets of the Issuer remaining legally available for distribution
to Holders upon liquidation of the Issuer.
"Guarantee Trustee" means The Bank of New York, a New York banking
corporation, in its capacity as guarantee trustee hereunder, until a Successor
Guarantee Trustee has been appointed and has accepted such appointment pursuant
to the terms of this Guarantee
-2-
Agreement, and thereafter means each such Successor Guarantee Trustee, in its
capacity as guarantee trustee hereunder.
"Holder" means any holder, as registered on the books and records of
the Issuer, of any Preferred Securities; provided, however, that in determining
whether the Holders of the requisite percentage of Preferred Securities have
given any request, notice, consent or waiver hereunder, "Holder" shall not
include the Guarantor or any Affiliate of the Guarantor.
"Indemnified Person" means the Guarantee Trustee, any Affiliate of the
Guarantee Trustee, and any officers, directors, shareholders, members, partners,
employees, representatives or agents of the Guarantee Trustee.
"Indenture" means the Indenture dated as of July 3, 1995 between
Raytheon Company and The Bank of New York, as trustee, as supplemented by the
________ Supplemental Indenture thereto dated as of _______ __, ____ (the
"Supplemental Indenture"), pursuant to which the Notes are to be issued.
"Majority of Outstanding Preferred Securities" means Holder(s) of
outstanding Preferred Securities, voting together as a single class, who are the
record owners of more than 50% of the outstanding Preferred Securities.
"Notes" means the [name of series of Notes issued pursuant to the
Indenture] issued to the [Property Trustee/Issuer] by Raytheon Company under the
Indenture.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chairman of the Board, the President, any Vice
Chairman of the Board, any Vice President, the Chief Financial Officer, the
Treasurer, any Assistant Treasurer, the Controller, the Secretary or any
Assistant Secretary of such Person, and delivered to the Guarantee Trustee. One
of the officers signing an Officers' Certificate given pursuant to Section 2.04
shall be the principal executive, financial or accounting officer of the
Guarantor. Any Officers' Certificate delivered with respect to compliance with a
condition or covenant provided for in this Guarantee Agreement shall include,
where applicable:
(i) a statement that the person making such certificate has
read such covenant or condition;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate are based;
(iii) a statement that, in the opinion of such person, he or
she has made such examination or investigation as is necessary to enable him or
her to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(iv) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, limited liability company, joint venture, incorporated or
unincorporated association, joint stock
-3-
company, trust, unincorporated organization or government or other agency or
political subdivision thereof, or other entity of any kind.
"Preferred Securities" has the meaning set forth in the recitals above.
"Property Trustee" means The Bank of New York, as Property Trustee
under the Declaration, or any successor trustee that is a financial institution
unaffiliated with the Issuer acting as Property Trustee under the Declaration.
"Redemption Price" means the amount payable on redemption of the
Preferred Securities in accordance with the terms of the Preferred Securities.
"Responsible Officer" means, when used with respect to the Guarantee
Trustee, any officer within the corporate trust department of the Guarantee
Trustee, including any vice president, assistant vice president, assistant
secretary, assistant treasurer, trust officer or any other officer of the
Guarantee Trustee who customarily performs functions similar to those performed
by the Persons who at the time shall be such officers, respectively, or to whom
any corporate trust matter is referred because of such Person's knowledge of and
familiarity with the particular subject and, in either case, who shall have
direct responsibility for the administration of this Guarantee Agreement.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as a Guarantee Trustee under Section 4.01.
"Supplemental Indenture" has the meaning specified in the definition of
Indenture.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
from time to time, or any successor legislation and the rules and regulations of
the Commission promulgated thereunder.
ARTICLE II
TRUST INDENTURE ACT
Section 2.01 Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Guarantee Agreement and
shall, to the extent applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Guarantee Agreement
limits, qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
(c) The application of the Trust Indenture Act to this Guarantee
Agreement shall not affect the nature of the Preferred Securities as equity
securities representing preferred undivided beneficial interests in the assets
of the Issuer.
-4-
Section 2.02 Lists of Holders of Preferred Securities.
(a) The Guarantor shall provide the Guarantee Trustee (unless the
Guarantee Trustee is the registrar of the Preferred Securities) with a list, in
such form as the Guarantee Trustee may reasonably require, of the names and
addresses of the Holders ("List of Holders") (i) as of the record date relating
to the payment of any Distribution, at least [one] Business Day prior to the
date for payment of such Distribution, except while the Preferred Securities are
represented by one or more Global Securities, and (ii) at any other time, within
30 days of receipt by the Guarantor of a written request from the Guarantee
Trustee for a List of Holders as of a date no more than 15 days before such List
of Holders is given to the Guarantee Trustee; provided that in each case the
Guarantor shall not be obligated to provide such List of Holders at any time
that the List of Holders does not differ from the most recent List of Holders
given to the Guarantee Trustee by the Guarantor. The Guarantee Trustee shall
preserve, in as current a form as is reasonably practicable, all information
contained in the Lists of Holders given to it; provided that the Guarantee
Trustee may destroy any List of Holders previously given to it on receipt of a
new List of Holders.
(b) The Guarantee Trustee shall comply with its obligations under
Section 312(b) of the Trust Indenture Act.
Section 2.03 Reports by the Guarantee Trustee.
Within 60 days after ______ of each year, commencing ______, 200_, the
Guarantee Trustee shall deliver to the Holders such reports as are required by
Section 313 of the Trust Indenture Act, if any, in the form, in the manner and
at the times provided by Section 313 of the Trust Indenture Act. The Guarantee
Trustee shall also comply with the other requirements of Section 313 of the
Trust Indenture Act. A copy of each such report shall, at the time of such
transmission to the Holders, be filed by the Guarantee Trustee with the
Guarantor, with each stock exchange or quotation system upon which any Preferred
Securities are listed or traded (if so listed or traded) and also with the
Commission. The Guarantor agrees to notify the Guarantee Trustee when any
Preferred Securities become listed on any stock exchange or quotation system and
of any delisting thereof.
Section 2.04 Periodic Reports to the Guarantee Trustee.
The Guarantor shall provide to the Guarantee Trustee such documents,
reports and information (if any) as required by Section 314(a)(1)-(3) of the
Trust Indenture Act and the compliance certificates required by Section
314(a)(4) and (c) of the Trust Indenture Act, any such certificates to be
provided in the form, in the manner and at the times required by Section
314(a)(4) and (c) of the Trust Indenture Act.
Section 2.05 Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with any conditions precedent, if any, provided for in this Guarantee
Agreement which relate to any of the matters set forth in Section 314(c) of the
Trust Indenture Act. Any certificate or opinion required to be given by an
officer pursuant to Section 314(c) may be given in the form of an Officers'
Certificate.
-5-
Section 2.06 Events of Default; Waiver.
(a) The Holders of a Majority of Outstanding Preferred Securities may,
by vote, on behalf of the Holders, waive any past Event of Default and its
consequences. Upon such waiver, any such Event of Default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Guarantee Agreement, but no such waiver shall extend
to any subsequent or other default or Event of Default, or impair any right
consequent thereon.
(b) Notwithstanding Section 2.06(a), the right of any Holder to receive
payment of the Guarantee Payments in accordance with this Guarantee Agreement,
or to institute suit for the enforcement of any such payment, shall not be
impaired without the consent of each such Holder.
Section 2.07 Disclosure of Information.
The disclosure of information as to the names and addresses of the
Holders in accordance with Section 312 of the Trust Indenture Act, regardless of
the source from which such information was derived, shall not be deemed to be a
violation of any existing law, or any law hereafter enacted which does not
specifically refer to Section 312 of the Trust Indenture Act, nor shall the
Guarantee Trustee be held accountable by reason of mailing any material pursuant
to a request made under Section 312(b) of the Trust Indenture Act.
Section 2.08 Conflicting Interest.
(a) The Declaration shall be deemed to be specifically described in
this Guarantee Agreement for the purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act.
(b) The Guarantee Trustee shall comply with its obligations under
Sections 310(b) and 311 of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS
OF THE GUARANTEE TRUSTEE
Section 3.01 Powers and Duties of the Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the Guarantee Trustee in
trust for the benefit of the Holders. The Guarantee Trustee shall not transfer
its right, title and interest in this Guarantee Agreement to any Person except a
Successor Guarantee Trustee on acceptance by such Successor Guarantee Trustee of
its appointment to act as Guarantee Trustee or to a Holder exercising his or her
rights pursuant to Section 5.04(iv). The right, title and interest of the
Guarantee Trustee to this Guarantee Agreement shall vest automatically in each
Person who may hereafter be appointed as Guarantee Trustee in accordance with
Article IV. Such vesting and cessation of title shall be effective whether or
not conveyancing documents have been executed and delivered.
-6-
(b) If an Event of Default has occurred and is continuing, the
Guarantee Trustee shall enforce this Guarantee Agreement for the benefit of the
Holders.
(c) This Guarantee Agreement and all moneys received by the Guarantee
Trustee in respect of the Guarantee Payments will not be subject to any right,
charge, security interest, lien or claim of any kind in favor of, or for the
benefit of, the Guarantee Trustee or its agents or their creditors.
(d) The Guarantee Trustee shall, within 90 days after the occurrence of
an Event of Default actually known to a Responsible Officer of the Guarantee
Trustee, transmit by mail, first class postage prepaid, to the Holders, as their
names and addresses appear upon the List of Holders, notice of all such Events
of Default, unless such defaults shall have been cured before the giving of such
notice; provided that the Guarantee Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive committee or
a trust committee of directors and/or Responsible Officers of the Guarantee
Trustee in good faith determines that the withholding of such notice is in the
interests of the Holders. The Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default except any Event of Default as to which the
Guarantee Trustee shall have received written notice or a Responsible Officer
charged with the administration of this Guarantee Agreement shall have obtained
written notice of such Event of Default.
(e) The Guarantee Trustee shall continue to serve as a trustee until a
Successor Guarantee Trustee has been appointed and accepted that appointment in
accordance with Article IV.
Section 3.02 Certain Rights and Duties of the Guarantee Trustee.
(a) The Guarantee Trustee, before the occurrence of an Event of Default
and after the curing or waiving of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Guarantee Agreement, and no implied covenants shall be read into this
Guarantee Agreement against the Guarantee Trustee. In case an Event of Default
has occurred (that has not been cured or waived pursuant to Section 2.06), the
Guarantee Trustee shall exercise such of the rights and powers vested in it by
this Guarantee Agreement, and use the same degree of care and skill in its
exercise thereof, as a prudent person would exercise or use under the
circumstances in the conduct of his own affairs.
(b) No provision of this Guarantee Agreement shall be construed to
relieve the Guarantee Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and after
the curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Guarantee
Trustee shall be determined solely by the express provisions of this Guarantee
Agreement, and the Guarantee Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set forth in this
Guarantee Agreement, and no implied covenants or obligations shall be read into
this Guarantee Agreement against the Guarantee Trustee; and
-7-
(B) in the absence of bad faith on the part of the
Guarantee Trustee, the Guarantee Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed therein, upon
any certificates or opinions furnished to the Guarantee Trustee and conforming
to the requirements of this Guarantee Agreement; provided, however, that in the
case of any such certificates or opinions that by any provision hereof or the
Trust Indenture Act are specifically required to be furnished to the Guarantee
Trustee, the Guarantee Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this Guarantee
Agreement or the Trust Indenture Act, as the case may be;
(ii) the Guarantee Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer of the Guarantee
Trustee, unless it shall be proved that the Guarantee Trustee was negligent in
ascertaining the pertinent facts upon which such judgment was made;
(iii) the Guarantee Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of a Majority of Outstanding Preferred
Securities relating to the time, method and place of conducting any proceeding
for any remedy available to the Guarantee Trustee, or exercising any trust or
power conferred upon the Guarantee Trustee under this Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement shall require
the Guarantee Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if it shall have reasonable grounds for
believing that the repayment of such funds or liability is not reasonably
assured to it under the terms of this Guarantee Agreement or adequate indemnity
against such risk or liability is not reasonably assured to it.
(c) Subject to the provisions of Section 3.02(a) and (b):
(i) whenever in the administration of this Guarantee
Agreement, the Guarantee Trustee shall deem it desirable that a matter be proved
or established prior to taking, suffering or omitting any action hereunder, the
Guarantee Trustee (unless other evidence is herein specifically prescribed) may,
in the absence of bad faith on its part, request and rely upon an Officers'
Certificate, which, upon receipt of such request, shall be promptly delivered by
the Guarantor;
(ii) the Guarantee Trustee (A) may consult with counsel (which
may be counsel to the Guarantor or any of its Affiliates and may include any of
its employees) selected by it in good faith and with due care and the written
advice or opinion of such counsel with respect to legal matters shall be full
and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon and in
accordance with such advice and opinion, and (B) shall have the right at any
time to seek instructions concerning the administration of this Guarantee
Agreement from any court of competent jurisdiction;
(iii) the Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys, and the
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Guarantee Trustee shall not be responsible for any misconduct or negligence on
the part of any agent or attorney appointed by it in good faith and with due
care;
(iv) the Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Guarantee Agreement at
the request or direction of any Holder, unless such Holder shall have offered to
the Guarantee Trustee security and indemnity satisfactory to the Guarantee
Trustee against the costs, expenses (including attorneys' fees and expenses) and
liabilities that might be incurred by it in complying with such request or
direction; provided that nothing contained in this clause (iv) shall relieve the
Guarantee Trustee of the obligation, upon the occurrence of an Event of Default
(which has not been cured or waived) to exercise such of the rights and powers
vested in it by this Guarantee Agreement, and to use the same degree of care and
skill in this exercise as a prudent person would exercise or use under the
circumstances in the conduct of his own affairs; and
(v) any action taken by the Guarantee Trustee or its agents
hereunder shall bind the Holders, and the signature of the Guarantee Trustee or
its agents alone shall be sufficient and effective to perform any such action;
and no third party shall be required to inquire as to the authority of the
Guarantee Trustee to so act, or as to its compliance with any of the terms and
provisions of this Guarantee Agreement, both of which shall be conclusively
evidenced by the Guarantee Trustee's or its agent's taking such action.
Section 3.03 Not Responsible for Recitals or Issuance of Guarantee
The recitals contained in this Guarantee Agreement shall be taken as
the statements of the Guarantor, and the Guarantee Trustee does not assume any
responsibility for their correctness. The Guarantee Trustee makes no
representations as to the validity or sufficiency of this Guarantee Agreement.
Section 3.04 The Guarantee Trustee May Own Preferred Securities.
The Guarantee Trustee, in its individual or any other capacity, may
become the owner or pledgee of Preferred Securities and may otherwise deal with
the Guarantor with the same rights it would have if it were not the Guarantee
Trustee.
Section 3.05 Moneys Received by the Guarantee Trustee to Be Held in Trust
Without Interest.
All moneys received by the Guarantee Trustee in respect of Guarantee
Payments shall, until used or applied as herein provided, be held in trust for
the purposes for which they were received, but need not be segregated from other
funds except to the extent required by law. The Guarantee Trustee shall be under
no liability for interest on any moneys received by it hereunder except such as
it may agree in writing to pay thereon.
Section 3.06 Compensation and Expenses of Guarantee Trustee.
The Guarantor covenants and agrees to pay to the Guarantee Trustee from
time to time, and the Guarantee Trustee shall be entitled to, such compensation
as the Guarantor and the Guarantee Trustee shall from time to time agree in
writing (which shall not be limited by any provision of law in regard to the
compensation of a Guarantee Trustee of an express trust) for all
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services rendered by it in the exercise and performance of any of the powers and
duties hereunder of the Guarantee Trustee, and the Guarantor will pay or
reimburse the Guarantee Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Guarantee Trustee in
accordance with any of the provisions of this Guarantee Agreement (including the
reasonable compensation and the reasonable expenses and disbursements of its
counsel and of all persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or bad faith. The
Guarantor also covenants to indemnify each of the Guarantee Trustee or any
predecessor Guarantee Trustee and their officers, agents, directors and
employees for, and to hold them harmless against, any and all loss, liability,
damage, claim or expense including taxes (other than taxes based upon, measured
by, or determined by, the income, profit, franchise or doing business of the
Guarantee Trustee) incurred without negligence or bad faith on the part of the
Guarantee Trustee and arising out of or in connection with services rendered in
accordance with this Guarantee Agreement, including the reasonable costs and
expenses of defending itself against any claim (whether asserted by the
Guarantor, any Holder or any other Person) of liability in the premises. The
provisions of this Section 3.06 shall survive the termination of this Guarantee
Agreement and resignation or removal of the Guarantee Trustee.
ARTICLE IV
GUARANTEE TRUSTEE
Section 4.01 Qualifications.
There shall at all times be a Guarantee Trustee that shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a national banking association or corporation
organized and doing business under the laws of the United States of America or
any State or Territory thereof or of the District of Columbia, or a corporation
or Person permitted by the Commission to act as an institutional trustee under
the Trust Indenture Act, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000, and
subject to supervision or examination by Federal, State, Territorial or District
of Columbia authority. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of the supervising or
examining authority referred to above, then for the purposes of this clause
(ii), the combined capital and surplus of such corporation shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Guarantee Trustee shall cease to
satisfy the requirements of clauses (i) and (ii) above, the Guarantee Trustee
shall immediately resign in the manner and with the effect set out in Section
4.02. If the Guarantee Trustee has or shall acquire any "conflicting interest"
within the meaning of Section 310(b) of the Trust Indenture Act, the Guarantee
Trustee and the Guarantor shall in all respects comply with the provisions of
Section 310(b) of the Trust Indenture Act.
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Section 4.02 Appointment, Removal and Resignation of the Guarantee Trustee.
(a) Subject to Section 4.02(b), the Guarantee Trustee may be appointed
or removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed in accordance with
Section 4.02(a) until a Successor Guarantee Trustee possessing the
qualifications to act as Guarantee Trustee under Section 4.01 has been appointed
and has accepted such appointment by written instrument executed by such
Successor Guarantee Trustee and delivered to the Guarantor and the Guarantee
Trustee being removed.
(c) The Guarantee Trustee appointed to office shall hold office until
its successor shall have been appointed or until its removal or resignation.
(d) The Guarantee Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument (a "Resignation Request") in
writing signed by the Guarantee Trustee and delivered to the Guarantor, which
resignation shall take effect upon such delivery or upon such later date as is
specified therein; provided, however, that no such resignation of the Guarantee
Trustee shall be effective until a Successor Guarantee Trustee possessing the
qualifications to act as Guarantee Trustee under Section 4.01 has been appointed
and has accepted such appointment by instrument executed by such Successor
Guarantee Trustee and delivered to the Guarantor and the resigning Guarantee
Trustee.
(e) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.02 within 60 days after
delivery to the Guarantor of a Resignation Request, the resigning Guarantee
Trustee may petition any court of competent jurisdiction for appointment of a
Successor Guarantee Trustee. Such court may thereupon after such notice, if any,
as it may deem proper, appoint a Successor Guarantee Trustee.
ARTICLE V
GUARANTEE
Section 5.01 Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders the Guarantee Payments (without duplication of amounts theretofore
paid by the Issuer), as and when due, regardless of any defense, right of
set-off or counterclaim which the Issuer may have or assert. The Guarantor's
obligation to make a Guarantee Payment may be satisfied by direct payment of the
required amounts by the Guarantor to the Holders or to the Guarantee Trustee for
remittance to the Holders or by causing the Issuer to pay such amounts to the
Holders.
Section 5.02 Waiver of Notice.
The Guarantor hereby waives notice of acceptance of this Guarantee
Agreement and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the Issuer
or any other Person before proceeding against the Guarantor, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other
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notices and demands. Notwithstanding anything to the contrary herein, the
Guarantor retains all of its rights under the Indenture to extend the interest
payment period on the Notes and the Guarantor shall not be obligated hereunder
to make any Guarantee Payment during any [Extension Period] (as defined in the
Supplemental Indenture) with respect to the Distributions on the Preferred
Securities.
Section 5.03 Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor
under this Guarantee Agreement shall in no way be affected or impaired by reason
of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Preferred Securities to be performed
or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions (other than an extension of time for payment of
Distributions that result from any [Extension Period]), Redemption Price,
Liquidation Distribution (as may be defined in the Declaration) or any other
sums payable under the terms of the Preferred Securities or the extension of
time for the performance of any other obligation under, arising out of, or in
connection with, the Preferred Securities (other than an extension of time for
payment of Distributions that result from any [Extension Period]);
(c) any failure, omission, delay or lack of diligence on the part of
the Guarantee Trustee or the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Guarantee Trustee or the Holders
pursuant to the terms hereof or of the Preferred Securities, respectively, or
any action on the part of the Issuer granting indulgence or extension of any
kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer or any of the assets of the
Issuer;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 5.03 that the obligations of the Guarantor with respect to the
Guarantee Payments shall be absolute and unconditional under any and all
circumstances.
There shall be no obligation of the Guarantee Trustee or the Holders to
give notice to, or obtain consent of, the Guarantor with respect to the
happening of any of the foregoing.
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Section 5.04 Enforcement of Guarantee.
The Guarantor and the Guarantee Trustee expressly acknowledge and agree
that (i) this Guarantee Agreement will be deposited with the Guarantee Trustee
to be held for the benefit of the Holders; (ii) the Guarantee Trustee has the
right to enforce this Guarantee Agreement on behalf of the Holders; (iii)
Holders representing not less than a Majority of Outstanding Preferred
Securities have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Guarantee Trustee in respect of this
Guarantee Agreement or exercising any trust or other power conferred upon the
Guarantee Trustee under this Guarantee Agreement; and (iv) if the Guarantee
Trustee fails to enforce this Guarantee Agreement as provided in clauses (ii)
and (iii) above, any Holder may institute a legal proceeding directly against
the Guarantor to enforce its rights under this Guarantee Agreement, without
first instituting a legal proceeding against the Issuer, the Guarantee Trustee
or any other Person. Notwithstanding the foregoing, if the Guarantor has failed
to make a Guarantee Payment, a Holder may directly institute a proceeding
against the Guarantor for enforcement of this Guarantee Agreement for such
payment without first instituting a legal proceeding against the Issuer, the
Guarantee Trustee or any other Person.
Section 5.05 Guarantee of Payment.
This Guarantee Agreement creates a guarantee of payment and not merely
of collection. This Guarantee Agreement will not be discharged except by payment
of the Guarantee Payments in full (without duplication of amounts theretofore
paid by the Issuer) or upon the distribution of the Notes to the Holders as
provided in the Declaration.
Section 5.06 Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the Holders
against the Issuer in respect of any amounts paid to the Holders by the
Guarantor under this Guarantee Agreement; provided, however, that the Guarantor
shall not (except to the extent required by mandatory provisions of law) be
entitled to enforce or exercise any rights which it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in all cases as
a result of payment under this Guarantee Agreement, if, at the time of any such
payment, any amounts are due and unpaid under this Guarantee Agreement. If any
amount shall be paid to the Guarantor in violation of the preceding sentence,
the Guarantor agrees to hold such amount in trust for the Holders and to pay
over such amount to the Holders or to the Guarantee Trustee for remittance to
the Holders.
Section 5.07 Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Preferred
Securities and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Guarantee
Agreement notwithstanding the occurrence of any event referred to in subsections
(a) through (g), inclusive, of Section 5.03 hereof.
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ARTICLE VI
LIMITATION OF TRANSACTIONS; [SUBORDINATION]
Section 6.01 Limitation of Transactions.
So long as any Preferred Securities remain outstanding, and if at such
time (i) the Guarantor shall be in default with respect to its Guarantee
Payments or other payment obligations hereunder, (ii) there shall have occurred
and be continuing any Trust Enforcement Event under the Declaration or (iii) the
Guarantor shall have given notice of its election of an [Extension Period] and
such period, or any extension thereof, is continuing, the Guarantor shall not
(1) make any payment of principal, interest or premium, if any, on or repay,
repurchase or redeem any debt securities that rank equally with, or junior in
interest to, the Notes in the right of payment issued by the Guarantor, [except,
in the case of an [Extension Period], payments as contemplated under the
Indenture], or make any guarantee payments with respect to any guarantee by the
Guarantor of any debt of any of its subsidiaries if such guarantee ranks equally
with or junior to the Notes in right of payment, [except, in the case of an
[Extension Period], payments as contemplated under the Indenture,] or (2)
declare or pay any dividends or distributions on, or redeem, purchase, acquire
or make a liquidation payment with respect to, any of the Guarantor's capital
stock, except, in each of cases (1) and (2), nothing contained herein shall
prevent the Guarantor from (a) purchasing or acquiring its capital stock in
satisfaction of its obligations under any benefit plans for the Guarantor and
the Guarantor's subsidiaries' directors, officers or employees or under any
dividend reinvestment plans, or pursuant to any contract or security outstanding
[on the first day of any [Extension Period] requiring us to purchase our capital
stock] (other than a contract or security ranking expressly by its terms on a
parity with or junior to the Notes), (b) effecting the reclassification of the
Guarantor's capital stock, or any exchange or conversion of one class or series
of the Guarantor's capital stock for another class or series of the Guarantor's
capital stock, (c) purchasing of fractional interests in shares of the
Guarantor's capital stock pursuant to the conversion or exchange provisions of
such capital stock or the security being converted or exchanged, (d) declaring
dividends or distributions in the Guarantor's capital stock where the dividend
stock is the same stock as that on which the dividend is being paid; (e) making
any declaration of a dividend in connection with the implementation of a
shareholder's rights plan, or the issuance of shares under any such plan in the
future, or the redemption or repurchase of any such rights pursuant thereto; and
(f) making any payments under this Guarantee. In addition, so long as any
Preferred Securities remain outstanding, the Guarantor (i) will remain the sole
direct or indirect owner of all of the outstanding Common Securities and shall
not cause or permit the Common Securities to be transferred except to the extent
such transfer is permitted under Section 7.9 of the Declaration; provided that
any permitted successor of the Guarantor under the Indenture may succeed to the
Guarantor's direct or indirect ownership of the Common Securities and (ii) will
use reasonable efforts to cause the Issuer to continue to be treated as a
grantor trust for United States federal income tax purposes, except in
connection with a distribution of Notes as provided in the Declaration.
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Section 6.02 [Subordination. If applicable:
This Guarantee Agreement will constitute an unsecured obligation of the
Guarantor and will rank (i) subordinate and junior in right of payment to all
other liabilities of the Guarantor and any guarantees of the Guarantor relating
to such liabilities, except in each case those made pari passu or subordinate by
their terms, and (ii) senior to all capital stock (other than the most senior
preferred stock issued from time to time, if any, by the Guarantor, which
preferred stock will rank pari passu with this Guarantee Agreement) and to any
guarantee now or hereafter entered into by the Guarantor in respect of any of
its capital stock (other than the most senior preferred stock issued by the
guarantor) now or hereafter issued by the Guarantor. The Guarantor's obligations
under this Guarantee Agreement will rank pari passu with respect to obligations
under other securities (other than capital stock) the Guarantor may issue from
time to time and other guarantee agreements which it may enter into from time to
time to the extent that (i) such agreements shall provide for comparable
guarantees by the Guarantor of payment on preferred securities issued by other
trusts, partnerships or other entities affiliated with the Guarantor that are
financing vehicles of the Guarantor and (ii) the notes or other evidences of
indebtedness of the Guarantor relating to such preferred securities are
subordinated, unsecured indebtedness of the Guarantor.]
ARTICLE VII
TERMINATION
Section 7.01 Termination.
This Guarantee Agreement shall terminate and be of no further force and
effect (i) upon full payment of the Redemption Price of all Preferred
Securities, (ii) upon the distribution of the Notes [, or any securities in to
which such Notes are convertible,] to Holders and holders of Common Securities
in exchange for all of the Preferred Securities and Common Securities or (iii)
upon full payment of the amounts payable in accordance with the Declaration upon
liquidation of the Issuer. Notwithstanding the foregoing, this Guarantee
Agreement will continue to be effective or will be reinstated, as the case may
be, if at any time any Holder must restore payment of any sums paid with respect
to the Preferred Securities or under this Guarantee Agreement.
ARTICLE VIII
LIMITATION OF LIABILITY; INDEMNIFICATION
Section 8.01 Exculpation.
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Guarantor or any Holder for any loss, damage or
claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith in accordance with this Guarantee Agreement and
in a manner such Indemnified Person reasonably believed to be within the scope
of the authority conferred on such Indemnified Person by this Guarantee
Agreement or by law, except that an Indemnified Person shall be liable for any
such
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loss, damage or claim incurred by reason of such Indemnified Person's negligence
or willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Guarantor and upon such information, opinions,
reports or statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Guarantor, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders might properly be paid.
Section 8.02 Indemnification.
To the fullest extent permitted by applicable law, the Guarantor shall
indemnify and hold harmless each Indemnified Person from and against any loss,
damage or claim incurred by such Indemnified Person by reason of any act or
omission performed or omitted by such Indemnified Person in good faith in
accordance with this Guarantee Agreement and in a manner such Indemnified Person
reasonably believed to be within the scope of authority conferred on such
Indemnified Person by this Guarantee Agreement, except that no Indemnified
Person shall be entitled to be indemnified in respect of any loss, damage or
claim incurred by such Indemnified Person by reason of negligence or willful
misconduct with respect to such acts or omissions.
Section 8.03 Survive Termination.
The provisions of Sections 8.01 and 8.02 shall survive the termination
of this Guarantee Agreement or the resignation or removal of the Guarantee
Trustee.
ARTICLE IX
MISCELLANEOUS
Section 9.01 Successors and Assigns.
All guarantees and agreements contained in this Guarantee Agreement
shall bind the successors, assignees, receivers, trustees and representatives of
the Guarantor and shall inure to the benefit of the Guarantee Trustee and the
Holders then outstanding. Except in connection with a consolidation, merger or
sale involving the Guarantor that is permitted under Article X of the Indenture,
the Guarantor shall not assign its obligations hereunder.
Section 9.02 Amendments.
Except with respect to any changes which do not adversely affect the
rights of Holders in any material respect (in which case no consent of Holders
will be required), this Guarantee Agreement may only be amended with the prior
approval of the Guarantor, the Guarantee Trustee and the Holders of not less
than a Majority of Outstanding Preferred Securities. The provisions of Section
[] of the Declaration concerning meetings, and actions by written consent
without a meeting, of Holders shall apply to the giving of such approval.
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Section 9.03 Notices.
Any notice, request or other communication required or permitted to be
given hereunder shall be in writing, in English, duly signed by the party giving
such notice, and delivered, telecopied or mailed by first class mail as follows:
(a) if given to the Guarantor, to the address set forth below or such
other address as the Guarantor may give notice of to the Holders:
Raytheon Company
141 Spring Street
Lexington, Massachusetts 02421
Attention: General Counsel
(b) if given to the Guarantee Trustee, to the address set forth below
or such other address as the Guarantee Trustee may give notice of to the
Holders:
The Bank of New York
101 Barclay Street
Floor 21 West
New York, New York 10286
Attention: Corporate Trust Administration
(c) if given to any Holder, at the address set forth on the books and
records of the Issuer.
All notices hereunder shall be deemed to have been given when (i)
received in person, (ii) telecopied with receipt confirmed, or (iii) mailed by
first class mail, postage prepaid, when received, except that if a notice or
other document is refused delivery or cannot be delivered because of a changed
address of which no notice was given, such notice or other document shall be
deemed to have been delivered on the date of such refusal or inability to
deliver.
Section 9.04 Genders.
The masculine, feminine and neuter genders used herein shall include
the masculine, feminine and neuter genders.
Section 9.05 Benefit.
This Guarantee Agreement is solely for the benefit of the Guarantee
Trustee and the Holders and, subject to Section 3.01(a), is not separately
transferable from the Preferred Securities.
Section 9.06 Governing Law.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
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(WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS).
Section 9.07 Counterparts.
This Guarantee Agreement may be executed in counterparts, each of which
shall be an original; but such counterparts shall together constitute one and
the same instrument.
Section 9.08 [Exercise of Overallotment Option.
If and to the extent that Preferred Securities are issued by the Issuer
upon exercise of the overallotment option referred to in the first WHEREAS
clause, the Guarantor agrees to give prompt notice thereof to the Guarantee
Trustee but the failure to give such notice shall not relieve the Guarantor of
any of its obligations hereunder.]
Section 9.09 Limited Liability.
Neither the Guarantee Trustee nor the Holders, in their capacities as
such, shall be personally liable for any liabilities or obligations of the
Guarantor arising out of this Guarantee Agreement. The parties further hereby
agree that the Holders, in their capacities as such, shall be entitled to the
same limitation of personal liability extended to the stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware.
[Remainder of Page Intentionally Left Blank]
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THIS GUARANTEE AGREEMENT is executed as of the day and year first above
written.
RAYTHEON COMPANY
By:____________________________________
Name:
Title:
THE BANK OF NEW YORK
as Guarantee Trustee
By:____________________________________
Name:
Title:
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Exhibit 5.1
April 5, 2002
Raytheon Company
141 Spring Street
Lexington, MA 02421
Ladies and Gentlemen:
I am Senior Vice President and General Counsel of Raytheon Company, a
Delaware Corporation (the "Company"), and am rendering this opinion in
connection with a registration statement on Form S-3 (the "Registration
Statement") to be filed on or about the date hereof by the Company and by RC
Trust II, a statutory business trust formed under the laws of the State of
Delaware (the "Trust"), with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act"). The Registration Statement relates to the proposed issuance and sale from
time to time pursuant to Rule 415 under the Securities Act of the following
securities of the Company (the "Registered Securities"): (i) unsecured senior
debt securities (the "Senior Debt Securities"), (ii) unsecured subordinated debt
securities (the "Subordinated Debt Securities" and collectively with the Senior
Debt Securities, the "Debt Securities"), (iii) shares of preferred stock, $0.01
par value per share (the "Preferred Stock"), (iv) shares of common stock, $0.01
par value per share (the "Common Stock"), (v) warrants to purchase any of the
securities described in clauses (i) to (iv) (collectively, the "Warrants"), (vi)
preferred securities of the Trust (the "Trust Preferred Securities"), (viii) the
Company's guarantees with respect to the Trust Preferred Securities (each, a
"Guarantee" and, collectively, the "Guarantees"), (ix) the Company's stock
purchase contracts (the "Stock Purchase Contracts") and (x) the Company's stock
purchase units (the "Stock Purchase Units"), consisting of Stock Purchase
Contracts and Trust Preferred Securities. The following opinion is furnished to
the Company to be filed with the Commission as Exhibit 5.1 to the Registration
Statement under the Securities Act.
Each series of the Senior Debt Securities will be issued pursuant to an
indenture relating to Senior Debt Securities dated as of July 3, 1995 between
the Company and The Bank of New York, as Trustee (the "Senior Indenture") and
each series of the Subordinated Debt Securities will be issued pursuant to an
indenture relating to Subordinated Debt Securities dated as of July 3, 1995
between the Company and The Bank of New York, as Trustee (the "Subordinated
Indenture"), as each such indenture may be supplemented, in connection with the
issuance of each such series, by a supplemental indenture or other appropriate
action of the Company creating such series (each, a "Supplemental Indenture").
Each Guarantee will be issued pursuant to a guarantee agreement to be entered
into between the Company and The Bank of New York, as guarantee trustee
thereunder (each, a "Guarantee Agreement" and, collectively, the "Guarantee
Agreements"). Each Stock Purchase Contract will be issued pursuant to a purchase
contract agreement between the Company and The Bank of New York, as purchase
contract agent (the "Purchase Agreement").
Raytheon Company
April 5, 2002
Page 2
As Senior Vice President and General Counsel of the Company, I have
examined and am familiar with the Restated Certificate of Incorporation of the
Company, as amended to date. I am also familiar with the corporate proceedings
taken by the Board of Directors of the Company to authorize the filing of the
Registration Statement and the issuance of the Registered Securities.
In connection with this opinion, I have examined originals, or copies
certified or otherwise identified to my satisfaction, of such documents,
corporate records and other instruments as I have deemed necessary or
appropriate for the purpose of this opinion.
In connection with the foregoing, I have assumed and have not
independently verified: (i) the genuineness of all signatures on all documents
examined by me, (ii) the legal capacity of natural persons, (iii) the
authenticity of all documents submitted to me as originals and the conformity to
the originals of all documents submitted to me as copies, (iv) the Registration
Statement, and any amendments thereto (including post-effective amendments),
will have become effective under the Securities Act; (v) a prospectus supplement
will have been filed with the Securities and Exchange Commission describing the
Securities offered thereby; (vi) all Securities will be issued and sold in
compliance with applicable federal and state securities laws and in the manner
stated in the Registration Statement and the applicable prospectus supplement;
(vii) a definitive purchase, underwriting or similar agreement with respect to
any Securities offered will have been duly authorized and validly executed and
delivered by the Company and the other parties thereto; (viii) any securities
issuable upon conversion, exchange, redemption or exercise of any Securities
being offered will be duly authorized, created and, if appropriate, reserved for
issuance upon such conversion, exchange, redemption or exercise and (ix) with
respect to shares of Common Stock or Preferred Stock offered, there will be
sufficient shares of Common Stock or Preferred Stock authorized under the
Company's Charter Documents and not otherwise reserved for issuance.
Based upon the foregoing, and subject to the assumptions, limitations
and qualifications set forth herein, I am of the opinion that:
1. The Company is a corporation duly organized and validly existing in
good standing under the laws of the State of Delaware.
2. The Debt Securities registered under the Registration Statement,
when duly authorized, executed, authenticated and delivered against payment
therefor or upon the exercise of Debt Warrants, and (in the case of Debt
Securities acquired upon the exercise of Debt Warrants) when the Company shall
have received any additional consideration which is payable upon such exercise,
will be validly issued and will constitute binding obligations of the Company in
accordance with their terms, subject to applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or other laws affecting
creditors' rights generally from time to time in effect and to general
principles of equity.
3. The shares of Preferred Stock registered under the Registration
Statement, when duly authorized and issued against payment therefor, or upon
exercise of Preferred Stock Warrants, and (in the case of Preferred Stock
acquired on the exercise of Preferred Stock Warrants) when the Company shall
have received any additional consideration which is payable upon such exercise,
will be validly issued, fully paid and nonassessable.
-2-
Raytheon Company
April 5, 2002
Page 3
4. The shares of Common Stock registered under the Registration
Statement, when duly authorized and issued for consideration having a value not
less than the par value thereof, or upon the exercise of Warrants, and when (in
the case of Common Stock issued upon the exercise of Warrants) the Company shall
have received any additional consideration which is payable upon such exercise,
will be validly issued, fully paid and nonassessable.
5. The Warrants registered under the Registration Statement, when duly
executed and delivered against payment therefor, pursuant to a warrant agreement
or agreements duly authorized, executed and delivered by the Company and a
warrant agent, will be legally issued, and will be legal and binding obligations
of the Company in accordance with their respective terms, subject to applicable
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other
laws affecting creditors' rights generally from time to time in effect and to
general principles of equity.
6. The Guarantee Agreements, when duly authorized, validly executed and
delivered by each of the parties thereto in connection with the issuance and
sale of Trust Preferred Securities, when the Company has received the purchase
price for the Senior Debt Securities or the Subordinated Debt Securities to
which such Guarantee Agreement relates and when such Guarantee Agreement has
been duly qualified under the Trust Indenture Act, will constitute the legal,
valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms, subject to applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or other laws affecting
creditors' rights generally from time to time in effect and to general
principles of equity.
7. Stock Purchase Contracts registered under the Registration
Statement, when (i) the Purchase Agreement has been duly authorized and validly
executed and delivered by the parties thereto; (ii) the Board has taken all
necessary corporate action to approve and establish the terms of such Stock
Purchase Contracts and to authorize and approve the issuance thereof, the terms
of the offering thereof and related matters; and (iii) when the Stock Purchase
Contracts have been duly executed and delivered in accordance with the Purchase
Agreement and the applicable definitive purchase, underwriting or similar
agreement approved by or on behalf of the Board upon payment of the
consideration therefor provided for therein, will constitute legal, valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, subject to applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or other laws affecting
creditors' rights generally from time to time in effect and to general
principles of equity.
-3-
Raytheon Company
April 5, 2002
Page 4
I express no opinion herein as to the laws of any jurisdiction other
than the laws of the Commonwealth of Massachusetts, the General Corporation Law
of the State of Delaware and the federal laws of the United States of America,
and I express no opinion as to state securities or blue sky laws.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to me under the heading "Legal
Matters" in the Prospectuses constituting a part of the Registration Statement.
In giving such consent, I do not thereby concede that I am within the category
of persons whose consent is required under Section 7 of the Securities Act or
the rules and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ Neal E. Minahan
Neal E. Minahan
-4-
Exhibit 5.2
[LETTERHEAD OF RICHARDS, LAYTON & FINGER, P.A.]
April 4, 2002
RC Trust II
c/o Raytheon Company
141 Spring Street
Lexington, Massachusetts 02421
Re: RC Trust II
Ladies and Gentlemen:
We have acted as special Delaware counsel for Raytheon
Company, a Delaware corporation (the "Company"), and RC Trust II, a Delaware
business trust (the "Trust"), in connection with the matters set forth herein.
At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of April
4, 2001 (the "Certificate"), as filed in the office of the Secretary of State of
the State of Delaware (the "Secretary of State") on April 4, 2001;
(b) The Declaration of Trust of the Trust, dated as of April
4, 2001, between the Company, as sponsor, and the trustees of the Trust named
therein;
(c) A form of Amended and Restated Declaration of Trust of the
Trust (including Exhibits A and B thereto) (the "Declaration"), to be entered
into among the Company, as sponsor, the trustees of the Trust named therein, and
the holders, from time to time, of undivided beneficial interests in the assets
of the Trust, attached as an exhibit to the Registration Statement (as defined
below);
RC Trust II
April 4, 2002
Page 2
(d) The Registration Statement on Form S-3 (the "Registration
Statement"), including a prospectus (the "Prospectus"), relating to the trust
preferred securities of the Trust representing undivided beneficial interests in
the assets of the Trust (each, a "Preferred Security" and collectively, the
"Preferred Securities"), as proposed to be filed by the Company and the Trust
with the Securities and Exchange Commission (the "SEC") on or about April 5,
2002; and
(e) A Certificate of Good Standing for the Trust, dated April
3, 2002, obtained from the Secretary of State.
Capitalized terms used herein and not otherwise defined are
used as defined in the Declaration.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (e) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (e) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Declaration and the Certificate are in full force and effect and have not been
amended, (ii) except to the extent provided in paragraph 1 below, that each of
the parties to the documents examined by us has been duly created, organized or
formed, as the case may be, and is validly existing in good standing under the
laws of the jurisdiction governing its creation, organization or formation,
(iii) the legal capacity of natural persons who are parties to the documents
examined by us, (iv) that each of the parties to the documents examined by us
has the power and authority to execute and deliver, and to perform its
obligations under, such documents, (v) that each of the parties to the documents
examined by us has duly authorized, executed and delivered such documents, (vi)
the receipt by each Person to whom
RC Trust II
April 4, 2002
Page 3
a Preferred Security is to be issued by the Trust (collectively, the "Preferred
Security Holders") of a Preferred Security Certificate for such Preferred
Security and the payment for the Preferred Security acquired by it, in
accordance with the Declaration and the Registration Statement, and (vii) that
the Preferred Securities are issued and sold to the Preferred Security Holders
in accordance with the Declaration and the Registration Statement. We have not
participated in the preparation of the Registration Statement and assume no
responsibility for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act (12 Del.
C.ss.3801, et seq.).
2. The Preferred Securities will represent valid and, subject
to the qualifications set forth in paragraph 3 below, fully paid and
nonassessable undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the
Trust, 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. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Declaration.
We consent to the filing of this opinion with the SEC as an
exhibit to the Registration Statement. In addition, we hereby consent to the use
of our name under the heading "Validity of Offered Securities" in the
Prospectus. In giving the foregoing consents, we do not thereby admit that we
come within the category of Persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the SEC
thereunder. Except as stated above, without our prior written
RC Trust II
April 4, 2002
Page 4
consent, this opinion may not be furnished or quoted to, or relied upon by, any
other Person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger, P.A.
Richards, Layton & Finger, P.A.
BJK/ENF
EXHIBIT 12.1
RAYTHEON COMPANY
STATEMENT REGARDING COMPUTATION OF
RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
(dollar amounts in millions except for ratio)
(excludes RE&C for all years except for interest, which includes RE&C)
FISCAL YEAR ENDED
1997 1998 1999 2000 2001
------ ------ ------ ------ ------
Income from continuing operations before taxes per statements of income $ 760 $1,707 $ 898 $ 877 $ 117
Add:
Fixed charges 429 815 861 878 810
Amortization of capitalized interest 2 2 2 2 2
Less:
Capitalized interest 4 2 2 2 1
------ ------ ------ ------ ------
Income as adjusted $1,187 $2,522 $1,759 $1,755 $ 928
====== ====== ====== ====== ======
Fixed charges:
Portion of rents representative of interest factor $ 28 $ 74 $ 119 $ 97 $ 95
Interest costs 397 739 740 779 714
Capitalized interest 4 2 2 2 1
------ ------ ------ ------ ------
Fixed Charges 429 815 861 878 810
------ ------ ------ ------ ------
Equity security distributions -- -- -- -- 163
------ ------ ------ ------ ------
Combined fixed charges and preferred stock dividends $ 429 $ 815 $ 861 $ 878 $ 973
====== ====== ====== ====== ======
Ratio of earnings to combined fixed charges and preferred stock dividends 2.8 3.1 2.0 2.0 --(1)
====== ====== ====== ====== ======
(1) Historical earnings were insufficient to cover fixed charges by $45 million for the year ended December 31, 2001. Because the
Company's effective tax rate for the year ended December 31, 2001 was 95.7 percent, earnings of $163 million were required
to cover $7 million of equity security distributions.
EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated January 24, 2002, except as to the
second, sixth and ninth paragraphs of Note B, the fourth paragraph of Note C,
the sixth paragraph of Note P and the information in Note T, as to which the
date is March 12, 2002, relating to the consolidated financial statements, which
appears in the 2001 Annual Report to Stockholders, which is included in Exhibit
13 on Form 10-K for the year ended December 31, 2001. We also consent to the
incorporation by reference of our report dated January 24, 2002 relating to the
financial statement schedule, which appears in such Annual Report on Form 10-K.
We also consent to the reference to us under the heading "Experts" in such
Registration Statement.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Boston, MA
April 5, 2002