As filed with the Securities and Exchange Commission on January 29, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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LOCKHEED MARTIN CORPORATION
(Exact name of registrant as specified in its charter)
Maryland
(State or other jurisdiction of incorporation or organization)
52-1893632
(I.R.S. Employee Identification No.)
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6801 Rockledge Drive
Bethesda, Maryland 20817
(301) 897-6000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
Marian S. Block
Vice President and Associate General Counsel
Lockheed Martin Corporation
6801 Rockledge Drive
Bethesda, Maryland 20817
(301) 897-6000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copies to:
Glenn C. Campbell
Miles & Stockbridge P.C.
10 Light Street
Baltimore, Maryland 21202
(410) 727-6464
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Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please 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, other than securities offered only in connection with dividend or
interest reinvestment plans, please 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, please 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. [X]
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of each class of Amount maximum maximum
securities to be to be offering price aggregate Amount of
registered registered(1)(2) per unit(3) offering price(3) registration fee
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Debt Securities......... $2,500,000,000 100% $2,500,000,000 $695,000
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(1) In United States dollars or the equivalent thereof in other currencies or
composite currencies on the basis of exchange rates in effect on the date
an agreement to sell the applicable Debt Securities is entered into by the
Registrant.
(2) Or, if any Debt Securities are issued at an original issue discount, such
greater amount as may result in an aggregate offering price of
$2,500,000,000.
(3) Estimated solely for purposes of calculating the registration fee.
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The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant
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 of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said section 8(a),
may determine.
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SUBJECT TO COMPLETION, DATED JANUARY 29, 1999
PROSPECTUS
Lockheed Martin Corporation
6801 Rockledge Drive
Bethesda, Maryland 20817
(301) 897-6000
$2,500,000,000 We will provide the specific terms
of each series or issue of Debt
Securities we issue in supplements
to this prospectus. You should read
this prospectus and the supplements
carefully before you invest.
DEBT SECURITIES
We may offer the securities directly or through underwriters, agents or
dealers. The supplements to this prospectus will designate the terms of our
plan of distribution. The discussion under the heading PLAN OF DISTRIBUTION
provides more information on this topic.
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 it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted. We may not
use this prospectus to sell Debt Securities unless we also give prospective
investors a prospectus supplement.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is
a criminal offense.
This Prospectus is dated , 1999.
TABLE OF CONTENTS
Page
----
About This Prospectus...................................................... 2
Where You Can Find More Information........................................ 2
Forward Looking Statements................................................. 3
Lockheed Martin Corporation................................................ 4
Use of Proceeds............................................................ 5
Ratio of Earnings to Fixed Charges......................................... 6
Description of Debt Securities............................................. 6
Plan of Distribution....................................................... 14
Legal Opinions............................................................. 15
Experts.................................................................... 15
You should rely only on the information incorporated by reference or provided
in this prospectus or any applicable prospectus supplement or pricing
supplement. We have not authorized anyone else to provide you with additional
or different information. 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. You should not assume that the information in any document
incorporated by reference is accurate as of any date other than the date of
that document.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission ("SEC") using a "shelf" registration
process. Under this shelf registration process, we may sell any combination of
the Debt Securities described in this prospectus in one or more offerings for
aggregate proceeds to us of up to $2,500,000,000. 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 or a pricing supplement
that will contain specific information about the terms of that offering. The
prospectus supplement or pricing supplement may add, update or change
information contained in this prospectus. It is important for you to consider
the information contained in this prospectus and any applicable prospectus
supplement or pricing supplement together with additional information described
under the next heading, WHERE YOU CAN FIND MORE INFORMATION, in making your
investment decision.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other
information with the SEC. Our SEC filings are available to the public over the
Internet at the SEC's web site at http://www.sec.gov and through our web site
at http://www.lmco.com. You also may read and copy any document we file with
the SEC at the SEC's public reference room at 450 Fifth Street, N.W.,
Washington, D.C., and at the SEC's public reference rooms in New York, New York
and Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference rooms and their copy charges. Because our
Common Stock is listed on the New York Stock Exchange, you also can obtain
information about us from the Exchange at 20 Broad Street, New York, New York
10005.
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
an important part of this prospectus. Information that we file later with the
SEC will automatically update and supersede information pertaining to the same
subject in this prospectus or in earlier filings under the SEC. We incorporate
by reference into this prospectus the documents listed below and any
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future filings made by us with the SEC under Sections 13(a), 13(c), 14, or
15(d) of the Securities Exchange Act of 1934 until we, or our agents, sell all
of the Debt Securities:
. Our Annual Report on Form 10-K for the year ended December 31, 1997;
. Our Quarterly Reports on Form 10-Q for the quarters ended March 31, 1998,
June 30, 1998, and September 30, 1998; and
. Our Current Reports on Form 8-K, filed January 21, 1998, July 17, 1998,
September 21, 1998 (as amended September 25, 1998), October 27, 1998,
November 17, 1998, December 31, 1998, January 19, 1999 and January 28,
1999.
You may request a copy of these filings at no cost, by writing or calling us
at the following address:
Lockheed Martin Corporation
6801 Rockledge Drive
Bethesda, Maryland 20817
(301) 897-6000
Attention: Corporate Secretary
You should rely only on the information incorporated by reference or provided
in this prospectus, any prospectus supplement or any pricing supplement. We
have not authorized anyone else to provide you with additional or different
information. You should not assume that the information in this prospectus, any
prospectus supplement or any pricing supplement is accurate as of any date
other than the date on the front of those documents. You should not assume that
the information in any document incorporated by reference is accurate as of any
date other than the date of that document.
FORWARD LOOKING STATEMENTS
This prospectus and the documents incorporated by reference herein contain
"forward looking" statements, as defined in the Private Securities Litigation
Reform Act of 1995, that are based on current expectations, estimates and
projections. Statements that are not historical facts, including statements
about the beliefs and expectations of Lockheed Martin, are forward looking
statements. Such statements may be preceded by, followed by or include the
words "believes," "expects," "anticipates," "intends," "plans," "estimates" or
similar expressions. These statements involve potential risks and
uncertainties, including but not limited to the effects of government budgets
and requirements, economic conditions, the competitive environment, "Year 2000"
issues and the timing of awards and contracts. With respect to the COMSAT
transaction described under the heading "Proposed COMSAT Transaction," there
also are risks that the conditions to the tender offer and the proposed merger
will not be satisfied. As a result, our actual results may differ materially.
You are cautioned not to place undue reliance on these forward looking
statements, which may be accurate only as of the date on which they were made.
We do not promise to update any forward looking statements, whether as a result
of new information, future events or otherwise.
Important factors that may affect our forward looking statements include, but
are not limited to, the factors described under the "Forward Looking Statement"
headings in the documents that we have filed or will file with the SEC that are
incorporated by reference in this prospectus.
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LOCKHEED MARTIN CORPORATION
Lockheed Martin is a highly diversified global enterprise principally engaged
in the conception, research, design, development, manufacture, integration and
operation of advanced technology products and services.
Lockheed Martin currently conducts its principal businesses through:
. the Space & Strategic Missiles sector;
. the Electronics sector;
. the Information & Services sector;
. the Aeronautics sector; and
. the Energy & Environment sector.
We recently transferred several business units from certain of these sectors
to our newly formed Global Telecommunications subsidiary.
Space & Strategic Missiles
The Space & Strategic Missiles sector is engaged in the design, development,
engineering and production of civil, commercial and military space systems,
including spacecraft, space launch vehicles, manned space systems and their
supporting ground systems and services; telecommunications systems and
services; strategic fleet ballistic missiles; and defensive missiles.
Electronics
The Electronics sector is engaged in the design, development, integration and
production of high performance electronic systems for undersea, shipboard,
land, airborne and space-based applications. Major defense product lines
include surface ship and submarine combat systems; anti-submarine warfare
systems; air defense systems; tactical battlefield missiles; aircraft controls;
electronic-warfare; electro-optic and night-vision; radar; displays; and
systems integration of mission specific combat suites. Major commercial product
lines include satellite electronics and mail handling automation systems.
Information & Services
The Information & Services sector is engaged in the development, integration
and operation of large, complex information systems; engineering, technical,
and management services for federal customers; transaction processing systems
and services for state and local government agencies; commercial information
technology services; real-time 3-D graphics products and enterprise data
management software; and the provision of internal information technology
support to Lockheed Martin.
Aeronautics
The Aeronautics sector is engaged in the following primary lines of business:
tactical aircraft, airlift, surveillance/command,
maintenance/modification/logistics, reconnaissance and advanced development
programs. Major programs include the F-22 air-superiority fighter, Joint Strike
Fighter, F-16 multi-role fighter, C-130J tanker/transport, X-33 reusable launch
vehicle technology demonstrator, DarkStar(TM) reconnaissance vehicle, Airborne
Early Warning & Control systems, contractor logistics support, and various
maintenance and modification programs.
Energy & Environment
The Energy & Environment sector is engaged in environmental management and
remediation and uranium enrichment services. Lockheed Martin is the largest
management and operations contractor within the U.S. Department of Energy's
system of laboratories, managing energy research and defense programs at
various facilities, including the Sandia National Laboratories, the Idaho
National Engineering and Environmental Laboratory and the Oak Ridge National
Laboratory.
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Global Telecommunications
In August 1998, Lockheed Martin announced the formation of a Global
Telecommunications subsidiary that will focus on capturing a greater portion of
the worldwide network services market. The subsidiary is called Lockheed Martin
Global Telecommunications, Inc. The following businesses have been transferred
to Global Telecommunications: Lockheed Martin Intersputnik, Ltd., a strategic
venture with Moscow-based Intersputnik that is scheduled to deploy its first
satellite in 1999; Astrolink(TM) International, a strategic venture that is
intended to provide global interactive multimedia services using next-
generation broadband satellite technology; Communications Systems, which
markets commercial satellite communications systems capabilities; the elements
of Lockheed Martin Management & Data Systems and Lockheed Martin Western
Development Laboratories that provide commercial communications capabilities;
and Satco (Asia), LLC, a joint venture with GE Americom that is scheduled to
launch a satellite next year that will serve broadcasters in the Asia-Pacific
region.
Proposed COMSAT Transaction
In September 1998, we entered into an agreement with COMSAT Corporation to
combine our companies in a two-phase transaction with a total estimated value
of approximately $2.7 billion. In connection with the first phase of this
transaction, we have commenced a cash tender offer to purchase up to 49% of the
outstanding shares of COMSAT common stock on the date of purchase at a price of
$45.50 per share. The second phase of the transaction, which would result in
the acquisition of the balance of the COMSAT shares and completion of the
merger, would involve an exchange of one share of our common stock (on a post
stock split basis) for each share of COMSAT common stock.
The consummation of the COMSAT tender offer is subject to, among other
things, the condition that at least one-third of the outstanding shares of
COMSAT common stock be validly tendered and not withdrawn, the approval of the
merger by the stockholders of COMSAT and certain regulatory approvals. We will
account for our investment in COMSAT as a result of the completion of the first
phase of the transaction under the equity method of accounting. Consummation of
the second phase of the transaction is subject to, among other things, the
enactment of federal legislation necessary to allow us to acquire the remaining
shares of COMSAT common stock and certain additional regulatory approvals. The
merger will be accounted for under the purchase method of accounting. If the
tender offer is consummated but the necessary legislation is not enacted or the
additional regulatory approvals are not obtained, each as required for
consummation of the merger, we will not be able to achieve our objectives with
respect to the COMSAT transaction and will be unable to exercise control over
COMSAT.
If the acquisition of COMSAT is completed, our interest in COMSAT will become
part of our Global Telecommunications subsidiary.
USE OF PROCEEDS
Unless we indicate otherwise in a prospectus supplement, we will use the net
proceeds from the sale of the Debt Securities for general corporate purposes.
These purposes may include repayment of debt, working capital needs, capital
expenditures, acquisitions and any other general corporate purpose.
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RATIO OF EARNINGS TO FIXED CHARGES
Our ratios of earnings to fixed charges (unaudited) are as follows:
Nine months
Ended
September 30, Year Ended December 31,
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1998 1997 1997 1996 1995 1994 1993
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3.0X 3.2X 3.1X 3.5X 4.1X 5.6X 4.8X
These computations include Lockheed Martin, our consolidated subsidiaries and
companies in which we own 50% or less of the equity. "Earnings" are determined
by adding "total fixed charges" (excluding interest capitalized) to earnings
from continuing operations before income taxes, eliminating equity in
undistributed earnings and adding back losses of companies in which we own at
least 20% but less than 50% of the equity. "Total fixed charges" consists of
(1) interest on all indebtedness, (2) amortization of debt discount or premium,
(3) interest capitalized and (4) an interest factor attributable to rents.
DESCRIPTION OF DEBT SECURITIES
General
We may offer unsecured senior debt securities with an aggregate offering
price of up to $2,500,000,000. A prospectus supplement or pricing supplement
will describe the specific amounts, prices and terms of any securities we
offer. Throughout this prospectus, the term "Debt Securities" refers to these
unsecured senior debt securities of Lockheed Martin and the term "prospectus
supplement" refers to any prospectus supplement or applicable pricing
supplement, if any.
The Debt Securities will be our direct, unsecured obligations and will rank
equally with all of our other senior and unsubordinated debt. We will issue
Debt Securities in one or more series under one or more separate indentures
between us and a U.S. banking institution, as Trustee.
We initially will issue Debt Securities under an Indenture between us and
U.S. Bank Trust National Association, as Trustee (the "Indenture"). We have
filed the form of the Indenture as an exhibit to the registration statement
that we filed with the SEC. The discussion below includes a summary of selected
provisions of the Indenture as well as other information about the Debt
Securities that we may issue from time to time. The summary is not complete.
Capitalized terms used in the summary have the meanings specified in the
Indenture. You should read the Indenture for provisions that may be important
to you.
If we use another trustee or another indenture for a series of Debt
Securities, we will provide the details in a prospectus supplement. We will
file the forms of any other indentures with the SEC at the time we use them.
Terms
We will describe specific terms relating to any new series of Debt Securities
in a prospectus supplement or pricing supplement. These terms will include some
or all of the following:
. the title and type of the Debt Securities;
. any limit on the total principal amount of the series of Debt Securities;
. the price or prices at which we will sell the Debt Securities;
. the maturity date or dates of the series of Debt Securities;
. the per annum interest rate or rates, if any, on the series of Debt
Securities and the date or dates from which any such interest will
accrue;
. the dates on which we will pay interest on the series of Debt Securities
and the regular record date for determining who is entitled to the
interest payable on any interest payment date;
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. whether the amount of payments of principal of (and premium, if any) or
interest on the series of Debt Securities will be determined with
reference to any index, formula or other method, such as one or more
currencies, commodities, equity indices or other indices, and the manner
of determining the amount of such payments;
. the place or places where the principal of (and premium, if any) and
interest on the series of Debt Securities will be payable;
. any redemption dates, prices, obligations and restrictions on the series
of Debt Securities;
. any sinking fund or other provisions that would obligate us to repurchase
or otherwise redeem the series of Debt Securities;
. the denominations in which the series of Debt Securities will be issued,
if other than $1,000 and multiples of $1,000;
. the currency, currencies or currency unit or units in which we will pay
the principal of (and premium, if any) or interest, if any, on the series
of Debt Securities, if not United States dollars;
. any provisions granting special rights to holders of the series of Debt
Securities upon the occurrence of specified events;
. any deletions from, modifications of or additions to the Events of
Default or our covenants with respect to the series of Debt Securities,
and whether or not such Events of Default or covenants are consistent
with those contained in the indenture applicable to that series;
. any trustees, authenticating or paying agents, transfer agents or
registrars or other agents with respect to the series of Debt Securities
if other than U.S. Bank Trust National Association;
. any conversion or exchange features of the series of Debt Securities;
. any special tax implications of the series of Debt Securities; and
. any other material terms of the series of Debt Securities.
The Indenture does not limit the amount of Debt Securities that we may issue.
We may issue Debt Securities from time to time under the Indenture up to the
principal amount that we are authorized to issue by our Board of Directors.
We may sell Debt Securities at a discount below their stated principal
amount, bearing no interest or interest at a rate that, at the time of
issuance, is below market rates. We may also sell Debt Securities that are
convertible into or exchangeable for our Common Stock or the debt or equity of
another company. If we issue these kinds of Debt Securities, we will provide
you with additional information in a prospectus supplement or pricing
supplement.
When we refer here and in any prospectus supplement or pricing supplement to
the principal of and premium, if any, and interest, if any, on Debt Securities,
we also mean to include the payment of additional amounts, if any, that we are
required to pay under the Indenture or the Debt Securities in respect of
certain taxes, assessments or other governmental charges imposed on the holders
of such Debt Securities.
Form, Transfer and Exchange
We normally will denominate Debt Securities in U.S. dollars and we normally
will pay principal, interest and any premium in U.S. dollars. If we sell Debt
Securities in foreign currencies or currency units or pay the principal of (and
premium, if any) or any interest on any series of Debt Securities in currencies
or currency units, we will provide you with further information about those
Debt Securities in a prospectus supplement or pricing supplement.
We may issue the Debt Securities in registered form, without coupons, in
increments of $1,000 or in other increments specified in the prospectus
supplement. In some cases, holders will receive certificates representing the
Debt Securities registered in their name. We refer to this form in this
prospectus and in any prospectus supplement as "registered."
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Alternatively, we may issue the Debt Securities in book-entry only form. This
means that one or more permanent global certificates registered in the name of
a depositary, such as The Depository Trust Company, New York, New York ("DTC"),
or a nominee of the depositary, will represent the Debt Securities. We refer to
this form in this prospectus and in any prospectus supplement as "book-entry
only."
You can transfer or exchange Debt Securities in registered form without
charge except for reimbursement of taxes, if any. You can transfer or exchange
Debt Securities in registered form at the corporate trust office of the
appropriate Trustee or at any other office or agency maintained by us for such
purposes that we identify in any prospectus supplement.
Book-Entry Procedures
The following discussion pertains to any Debt Securities that we issue in
book-entry only form where DTC is the depositary. If the Debt Securities of a
series are issued in book-entry only form and the depositary is someone other
than DTC, we will provide you with additional information in a prospectus
supplement or pricing supplement. Beneficial interests in global securities
will be identified on, and transfers of global securities will be made only
through, records maintained by the depositary and its participants. Transfers
of beneficial interests in the global securities will be subject to the
applicable rules and procedures of the depositary.
The descriptions of the operations and procedures of DTC that follow are
provided solely as a matter of convenience. These operations and procedures are
controlled by DTC and are subject to change by DTC from time to time. We take
no responsibility for these operations and procedures and we suggest that you
contact DTC or its participants directly to discuss these matters.
DTC has provided us with the following information: DTC is a limited-purpose
trust company organized under the laws of the State of New York, a member of
the Federal Reserve System, a "clearing corporation" within the meaning of the
Uniform Commercial Code and a "clearing agency" registered pursuant to Section
17A of the Securities Exchange Act of 1934. DTC was created to hold securities
for its participants ("participants") and facilitate the clearance and
settlement of securities transactions between participants through electronic
book-entry changes in accounts of its participants, thereby eliminating the
need for physical transfer and delivery of certificates. Participants include
securities brokers and dealers, banks, trust companies and clearing
corporations and may include certain other organizations. Indirect access to
the DTC system is available to other entities such as banks, brokers, dealers
and trust companies that clear or maintain a custodial relationship with a
participant, either directly or indirectly ("indirect participants").
DTC has advised us that its current practice, upon the issuance of global
securities, is to credit, on its internal system, the respective principal
amount of the individual beneficial interests represented by such global
securities to the accounts with DTC of the participants through which such
interests are to be held. Ownership of beneficial interests in such global
securities will be shown on, and the transfer of that ownership will be
effected only through, records maintained by DTC or its nominees (with respect
to interests of participants) and the records of participants and indirect
participants (with respect to interests of persons other than participants).
As long as DTC, or its nominee, is the registered holder of a global
security, DTC or such nominee, as the case may be, will be considered the sole
owner and holder of the Debt Securities represented by such global security for
all purposes under the Indenture and the Debt Securities. Except in the limited
circumstances described below, owners of beneficial interests in a global
security will not be entitled to have any portion of the global security
registered in their names, will not receive or be entitled to receive physical
delivery of global securities in definitive form and will not be considered the
owners or holders of global securities (or any Security represented thereby)
under the Indenture or the Debt Securities.
You may hold your interests in the global securities directly through DTC, if
you are a participant in DTC, or indirectly through organizations that are
participants in DTC. All interests in global securities will be subject to the
procedures and requirements of DTC.
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The laws of some states require that certain purchasers of securities take
physical delivery of such securities in definitive form. Consequently, the
ability to transfer beneficial interests in a global security to such persons
may be limited. Because DTC can act only on behalf of its participants, which
in turn act on behalf of persons who hold interests through participants, the
ability of a person having a beneficial interest in a global security to pledge
their interest to persons or entities that do not participate in the DTC
system, or to otherwise take actions in respect of their interest, may be
affected by the lack of a physical certificate evidencing their interest.
Payments of the principal of and interest on global securities will be made
to DTC or its nominee as the registered owner thereof. Neither Lockheed Martin
nor the Trustee nor any of their respective agents will have any responsibility
or liability for any aspect of the records relating to or payments made on
account of beneficial ownership interests in the global securities or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
We expect that DTC or its nominee, when it receives any payment of principal
(and premium, if any) or interest, will credit participants' accounts on the
payment date according to their respective holdings of beneficial interests in
the global securities as shown on DTC's records. In addition, it is DTC's
current practice to assign any consenting or voting rights to participants
whose accounts are credited with securities on a record date, by using an
omnibus proxy. Customary practices between the participants and owners of
beneficial interests, as is the case with securities held for the account of
customers registered in "street name," will govern payments by participants to
owners of beneficial interests in the global securities and voting by
participants. However, these payments will be the responsibility of the
participants and not of DTC, the Trustee, or Lockheed Martin.
Unless we tell you otherwise in a prospectus supplement or pricing supplement
with respect to a series of Debt Securities, Debt Securities represented by a
global security will be exchangeable for Debt Securities in registered form
with the same terms in authorized denominations only if:
. DTC notifies us that it is unwilling or unable to continue as depository
or if DTC ceases to be a clearing agency registered under applicable law
and we do not appoint a successor depository within 90 days; or
. we instruct the Trustee that the global security is now exchangeable.
DTC has advised us that it will take any action permitted to be taken by a
holder of Debt Securities (including the presentation of Debt Securities for
exchange as described below) only at the direction of one or more participants
to whose account with DTC interests in the global securities of a series are
credited and only in respect of such portion of the aggregate principal amount
of the Debt Securities of that series as to which such participant or
participants has or have given direction. However, if there is an Event of
Default under a series of the Debt Securities, the global securities of that
series will be exchanged for legended Debt Securities of that series in
certificated form and distributed to DTC's participants.
Although DTC has agreed to the foregoing procedures in order to facilitate
transfers of beneficial ownership interests in the global securities among
participants of DTC, they are under no obligation to perform or continue to
perform such procedures, and such procedures may be discontinued at any time.
None of Lockheed Martin, the Trustee or any of their respective agents will
have any responsibility for the performance by DTC, its participants or
indirect participants of their respective obligations under the rules and
procedures governing their operations, including maintaining, supervising or
reviewing the records relating to, or payments made on account of, beneficial
ownership interests in global securities.
We have been informed by DTC that its management is aware that some computer
applications, systems and the like for processing data ("Systems") that are
dependent upon calendar dates, including dates before, on and after January 1,
2000, may encounter "Year 2000 problems." We have also been informed by DTC
that it has informed its participants and other members of the financial
community (the "Industry") that it has developed and is implementing a program
so that its Systems, as they relate to the timely payment of
9
distributions (including principal and income payments) to securityholders,
book-entry deliveries, and settlement of trades within DTC ("DTC Services"),
continue to function appropriately. According to DTC, this program includes a
technical assessment and a remediation plan, each of which is complete.
Additionally, DTC has informed us that its plan includes a testing phase, which
is expected to be completed within appropriate time frames.
However, we have been informed by DTC that its ability to perform properly
its services is also dependent upon other parties, including but not limited to
issuers and their agents, as well as third party vendors from whom DTC licenses
software and hardware, and third party vendors on whom DTC relies for
information or the provision of services, including telecommunications and
electrical utility service providers, among others. DTC has informed us that it
is contacting (and will continue to contact) third party vendors from whom DTC
acquires services to: (i) impress upon them the importance of such services
being Year 2000 compliant; and (ii) determine the extent of their efforts for
Year 2000 remediation (and, as appropriate, testing) of their services. In
addition, DTC has informed us that it is in the process of developing such
contingency plans as it deems appropriate.
The foregoing information with respect to DTC has been provided for
informational purposes only and is not intended to serve as a representation,
warranty or contract modification of any kind.
Payment
We will pay principal, interest and any premium on Debt Securities issued
solely in registered form at the New York, New York corporate trust office of
the appropriate Trustee, or at any other office or agency maintained by us for
such purposes that we identify in any prospectus supplement. With respect to
Debt Securities in registered form, the Debt Securities may provide that we can
pay interest by check mailed to the person in whose name the Debt Securities
are registered on the days specified in the Indenture or any prospectus
supplement.
We will pay principal, interest and any premium on Debt Securities in book-
entry only form as provided under the heading "Book-Entry Procedures" in this
prospectus.
If we authorize any other person to make payments on Debt Securities for us,
we will identify them in any prospectus supplement.
Events of Default
Unless we indicate otherwise in a prospectus supplement, "Event of Default,"
when used in the Indenture, will mean any of the following with respect to a
series of Debt Securities:
. a failure to pay the principal or any premium on any Debt Security of
that series when due;
. a failure for 30 days to pay interest on any Debt Security of that series
when due;
. a failure to perform any other covenant in the Indenture that continues
for 90 days after we have been given written notice of such failure; or
. certain events in bankruptcy, insolvency or reorganization of Lockheed
Martin.
An Event of Default for a particular series of Debt Securities does not
necessarily constitute an Event of Default for any other series of Debt
Securities issued under an Indenture. The Trustee may withhold notice to the
holders of Debt Securities of any default (except in the case of a payment
default) if it considers such action to be in the interests of the holders.
If an Event of Default for any series of Debt Securities occurs and
continues, the Trustee, or the holders of at least 25% in aggregate principal
amount of the Debt Securities of the series, may declare the entire principal
(or, in the case of a Debt Security issued at a discount, the amount provided
for in the Debt Security) of all the Debt Securities of that series to be due
and payable immediately. If this happens, subject to certain conditions, the
holders of a majority of the aggregate principal amount of the Debt Securities
of that series can void the declaration of acceleration.
10
Other than its duties in case of a default, a Trustee has no obligation to
exercise any of its rights or powers under any Indenture at the request, order
or direction of any holders, unless the holders offer the Trustee reasonable
indemnity. If they provide this reasonable indemnification, the holders of a
majority in principal amount of any series of Debt Securities may direct the
time, method and place of conducting any proceeding or any remedy available to
the Trustee, or exercising any power conferred upon the Trustee, for any series
of Debt Securities.
Certain Covenants
Under the Indenture, we will agree to:
. pay the principal, interest and any premium on the Debt Securities when
due;
. maintain a place of payment;
. deliver a report to the Trustee at the end of each fiscal year reviewing
our obligations under the Indenture; and
. deposit sufficient funds with any paying agent on or before the due date
for payment of any principal, interest or any premium.
The Indenture restricts our ability and the abilities of certain of our
subsidiaries to encumber assets. If Lockheed Martin or any Restricted
Subsidiary (as defined below) pledges or mortgages any of its property to
secure any debt, unless an exception applies, then Lockheed Martin or such
Restricted Subsidiary also will pledge or mortgage the same property to the
Trustee to secure the Debt Securities as long as such debt is secured by such
property.
This restriction will not apply in certain situations. Assets may be
encumbered if the encumbrance is a Permitted Lien (as defined below) without
regard to the amount of debt secured by the encumbrance. Assets also may be
encumbered if the sum of:
. the amount of debt secured by such assets, plus
. the total amount of other secured debt not permitted by this restriction
(other than debt that is secured by a Permitted Lien), plus
. the total amount of secured debt existing at the date of the Indenture,
plus
. the total amount of Attributable Debt in respect of certain Sale-
Leaseback Transactions
does not exceed 10% of Lockheed Martin's Consolidated Net Tangible Assets.
"Permitted Liens" mean (1) Liens on property, stock or debt of a corporation
at the time such a corporation becomes a Restricted Subsidiary; (2) Liens on
property at the time Lockheed Martin or a Restricted Subsidiary acquires the
property, provided that no such Lien extends to any other property of Lockheed
Martin or any other Restricted Subsidiary; (3) Liens to secure the payment of
all or any part of the purchase price of such property or to secure any debt
incurred prior to, at the time of or within one year after the acquisition of
such property for the purpose of financing all or any part of the purchase
price of such property; (4) Liens securing debt owing by a Restricted
Subsidiary to Lockheed Martin or another Restricted Subsidiary; (5) Liens on
property of an entity at the time (a) such entity is merged into or
consolidated with Lockheed Martin or a Restricted Subsidiary or (b) Lockheed
Martin or a Restricted Subsidiary acquires all or substantially all of the
assets of such entity; (6) Liens in the favor or any customer (including any
government or governmental authority) to secure partial, progress, advance or
other payments or performance pursuant to any contract or statute or to secure
any related indebtedness or to secure debt guaranteed by a government or
governmental authority; (7) Liens arising pursuant to any order of attachment,
distraint or similar legal process in connection with court proceedings so long
as the execution or other enforcement is effectively stayed and the claims
secured thereby are being contested in good faith by appropriate proceedings;
(8) materialmen's, suppliers', tax or similar Liens arising in the ordinary
course of business for sums not overdue or which are being contested in good
faith by appropriate proceedings; and (9) any renewal, extension or replacement
(in whole or in part) for any Lien permitted pursuant to exceptions (1) through
(8) above or a Lien existing on the date Debt Securities of the applicable
series are first issued, provided that such extension, renewal or replacement
Lien shall be limited to all or any part of the same property subject to the
existing Lien.
11
The Indenture will not otherwise limit our ability to incur additional debt,
unless we tell you this in a prospectus supplement.
The Indenture also restricts our ability and the abilities of certain of our
subsidiaries to enter into Sale-Leaseback Transactions. This restriction does
not apply in certain circumstances set forth in the Indenture.
Below are summaries of definitions for terms that we have just used that
begin with capital letters. For the full definition of such terms, you should
refer to the form of the Indenture filed as an exhibit to the registration
statement.
"Attributable Debt" for a lease means the carrying value of the capitalized
rental obligation determined under generally accepted accounting principles.
"Consolidated Net Tangible Assets" means the total assets of Lockheed Martin
and its Subsidiaries as reflected in Lockheed Martin's most recent balance
sheet, less (1) current liabilities and (2) goodwill, patents and trademarks.
"Lien" means any mortgage, pledge, security interest or lien.
"Principal Property" means, with certain exceptions, any manufacturing
facility located in the United States and owned by Lockheed Martin or by one or
more Restricted Subsidiaries and which has, as of the date the Lien is
incurred, a net book value (after deduction of depreciation and similar
charges) greater than 3% of Consolidated Net Tangible Assets, or any
manufacturing facility or other property declared to be a Principal Property by
the Chief Executive Officer or Chief Financial Officer of Lockheed Martin by
delivery of a certificate to that effect to the Trustee.
"Restricted Subsidiary" means a Subsidiary of Lockheed Martin that has
substantially all of its assets located in, or carries on substantially all of
its business in, the United States and that owns a Principal Property, except
that a subsidiary of Lockheed Martin shall not be a "Restricted Subsidiary" if
its shares are registered or it is otherwise required to file periodic reports
with the SEC.
"Sale-Leaseback Transaction" means, subject to certain exceptions, an
arrangement pursuant to which Lockheed Martin or a Restricted Subsidiary
transfers a Principal Property to a person and contemporaneously leases it back
from that person.
Consolidation, Merger or Sale
We may not consolidate with or merge into another corporation or transfer all
or substantially all of our assets to another corporation unless:
. the successor corporation assumes all of our obligations under the Debt
Securities and the Indenture;
. immediately after giving effect to the transaction, no Event of Default
and no circumstances which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing; and
. we have delivered to the Trustee an Officers' Certificate and an Opinion
of Counsel confirming that we have complied with the Indenture.
Redemption Provisions, Sinking Fund and Defeasance
We may redeem some or all of the Debt Securities at our option subject to the
conditions stated in the prospectus supplement relating to that series of Debt
Securities. If a series of Debt Securities is subject to a sinking fund, the
prospectus supplement will describe those terms.
12
The Indenture permits us to discharge or "defease" certain of our obligations
with respect to any series of Debt Securities at any time. We may defease a
certain series of Debt Securities by depositing with the Trustee sufficient
cash or government securities to pay all sums due on that series of Debt
Securities. Under certain circumstances, if we defease a series of Debt
Securities our legal obligation to pay principal, interest and any premium on
the Debt Securities of that series will be discharged. We can defease one
series of Debt Securities without defeasing any other series.
Under United States Federal income tax law as of the date of this prospectus,
a discharge of our legal obligation to pay principal (and premium, if any) and
interest on the Debt Securities would be treated as an exchange of a new
security (namely, an interest in the trust created by the deposit of cash or
government securities) for the related Debt Securities. Each holder would be
required to recognize gain or loss equal to the difference, if any, between the
holder's cost or other tax basis for the Debt Securities and the value of the
holder's interest in the trust. Holders would not be required to recognize gain
or loss in the event of a defeasance of certain contractual obligations without
a discharge of our legal obligation to pay principal (and premium, if any) and
interest on the Debt Securities. Prospective investors are urged to consult
their own tax advisers as to the consequences of a discharge, including the
applicability and effect of tax laws other than United States Federal income
tax law.
Changes to the Indenture
Holders who own more than 50% in principal amount of the outstanding Debt
Securities of a series can agree with us to change the provisions of the
Indenture relating to that series. However, no change can affect the payment
terms, or the percentage required to change other terms of the Indenture,
without the consent of all holders of Debt Securities of the affected series.
We may enter into supplemental indentures for other specified purposes and to
make changes that would not materially adversely affect your interests,
including the creation of any new series of Debt Securities, without the
consent of any holder of Debt Securities.
Initial Trustee
U.S. Bank Trust National Association will serve as trustee under the
Indenture. It also is trustee under other indentures pursuant to which debt
securities of Lockheed Martin have been issued. If we use a different trustee
for any series of Debt Securities, we will provide the details in a prospectus
supplement.
13
PLAN OF DISTRIBUTION
We may sell any series of Debt Securities:
. through underwriters or dealers;
. through agents; or
. directly to one or more purchasers.
For each series of Debt Securities, the prospectus supplement will include a
description of:
. the initial public offering price;
. the names of any underwriters, dealers or agents, if any;
. the purchase price of the Debt Securities;
. our proceeds from the sale of the Debt Securities;
. any underwriting discounts or agency fees and other underwriters' or
agents' compensation;
. any discounts or concessions allowed or reallowed or paid to dealers; and
. the securities exchanges on which the Debt Securities will be listed, if
any.
If we use underwriters in the sale, they will buy the Debt Securities for
their own account. The underwriters may then resell the Debt Securities in one
or more transactions at a fixed public offering price or at varying prices
determined at the time of sale or thereafter.
The obligations of the underwriters to purchase the Debt Securities will be
subject to certain conditions. The underwriters will be obligated to purchase
all the Debt Securities offered if they purchase any Debt Securities. Any
initial public offering price and any discounts or concessions allowed or re-
allowed or paid to dealers may be changed from time to time.
If we use dealers in the sale, we will sell Debt Securities to such dealers
as principals. The dealers may then resell the Debt Securities to the public at
varying prices to be determined by such dealers at the time of resale.
If we use agents in the sale, they will use their reasonable best efforts to
solicit purchases for the period of their appointment.
If we sell directly, no underwriters or agents would be involved.
We are not making an offer of Debt Securities in any state that does not
permit such an offer.
Underwriters, dealers and agents that participate in the distribution of the
Debt Securities may be "underwriters" as defined in the Securities Act of 1933.
Any discounts or commissions that we pay them and any profit they receive when
they resell the Debt Securities may be treated as underwriting discounts and
commissions under that Act. We may have agreements with underwriters, dealers
and agents to indemnify them against certain civil liabilities, including
certain liabilities under the Securities Act of 1933, or to contribute with
respect to payments that they may be required to make.
We may authorize underwriters, dealers or agents to solicit offers from
certain institutions whereby the institution contractually agrees to purchase
the Debt Securities from Lockheed Martin on a future date at a specified price.
This type of contract may be made only with institutions that we specifically
approve. Such institutions could include banks, insurance companies, pension
funds, investment companies and educational and charitable institutions. The
underwriters, dealers or agents will not be responsible for the validity or
performance of these contracts.
Underwriters, dealers and agents may be our customers or may engage in
transactions with us or perform services for us in the ordinary course of
business.
14
LEGAL OPINIONS
Miles & Stockbridge P.C., Baltimore, Maryland, will issue an opinion about
the legality of the Debt Securities for us. Opinions about certain legal
matters relating to the Debt Securities also may be issued to the underwriters,
dealers or agents by their counsel.
EXPERTS
Ernst & Young LLP, independent auditors, have audited the consolidated
financial statements of Lockheed Martin Corporation included in our Annual
Report (Form 10-K) for the year ended December 31, 1997 as set forth in their
report, which is incorporated in this prospectus by reference. Our consolidated
financial statements are incorporated by reference in reliance upon their
report, given upon their authority as experts in accounting and auditing.
15
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the expenses (other than underwriting
discounts and commissions) expected to be incurred in connection with the
offering or offerings described in this Registration Statement. All amounts are
estimated except the Securities and Exchange Commission registration fee.
Securities and Exchange Commission registration fee........... 695,000
Trustee fees and expenses..................................... 78,000
Legal fees and expenses....................................... 200,000
Accounting fees and expenses.................................. 200,000
Printing and engraving fees and expenses...................... 123,500
Rating agency fees............................................ 150,000
Blue Sky fees and expenses (including legal fees)............. 20,000
Miscellaneous................................................. 13,500
----------
Total..................................................... $1,480,000
==========
Item 15. Indemnification of Directors and Officers.
The Corporation's Bylaws provide that the Corporation shall indemnify and
advance expenses to its currently acting and its former directors to the
fullest extent permitted by the Maryland General Corporation Law, and that the
Corporation may indemnify and advance expenses to its officers to the same
extent as its directors and to such further extent as is consistent with law.
The Maryland General Corporation Law provides that a corporation may indemnify
any director made a party to any proceeding by reason of service in that
capacity unless it is established that: (1) the act or omission of the director
was material to the matter giving rise to the proceeding and (a) was committed
in bad faith or (b) was the result of active and deliberate dishonesty, or (2)
the director actually received an improper personal benefit in money, property
or services, or (3) in the case of any criminal proceeding, the director had
reasonable cause to believe that the act or omission was unlawful. The statute
permits Maryland corporations to indemnify its officers, employees or agents to
the same extent as its directors and to such further extent as is consistent
with law. In addition to indemnification, the officers and directors of the
Corporation are covered by certain insurance policies maintained by the
Corporation.
The Corporation's Charter provides that, to the fullest extent that
limitations on the liability of directors and officers are permitted by the
Maryland General Corporation Law, no director or officer of the Corporation,
shall have any liability to the Corporation or any of its stockholders for
monetary damages. The Maryland General Corporation Law provides that a
corporation's charter may include a provision which restricts or limits the
liability of its directors or officers to the corporation or its stockholders
for money damages except: (1) to the extent that it is proved that the person
actually received an improper benefit or profit in money, property or services,
for the amount of the benefit or profit in money, property or services actually
received, or (2) to the extent that a judgment or other final adjudication
adverse to the person is entered in a proceeding based on a finding in the
proceeding that the person's action, or failure to act, was the result of
active and deliberate dishonesty and was material to the cause of action
adjudicated in the proceeding. In situations to which the Charter provision
applies, the remedies available to the Corporation or a stockholder are limited
to equitable remedies such as injunction or rescission. This provision would
not, in the opinion of the Commission, eliminate or limit the liability of
directors and officers under the federal securities law.
The form of Underwriting Agreement filed as an exhibit to this Registration
Statement provides for indemnification by the Corporation of the underwriters
or controlling persons of the underwriters under certain circumstances.
II-1
Item 16. Exhibits.
1 Form of Underwriting Agreement.
4(a) Form of Indenture.
4(b) Form of U.S. $ Dominated Note/Debenture.
5 Opinion of Miles & Stockbridge P.C.
12 Statement regarding computation of ratios of earnings to
fixed charges.
23(a) Consent of Ernst & Young LLP, Independent Auditors.
23(b) Consent of Miles & Stockbridge P.C., included in Exhibit 5.
24 Powers of Attorney.
25 Form T-1, Statement of Eligibility and Qualification Under
the Trust Indenture Act of 1939.
Item 17. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(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 the registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the Registration Statement;
Provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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 registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
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.
II-2
(h) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
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 registrant will, unless in
the opinion of its 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 Act and
will be governed by the final adjudication of such issue.
(i) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, 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 the registrant 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 the purpose of determining any liability under the Securities Act
of 1933, 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.
(j) The undersigned registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)(2) of
the Trust Indenture Act.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
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 City of Bethesda, State of Maryland, the 29th day of January
1999.
LOCKHEED MARTIN CORPORATION
By: /s/ Marian S.Block
-------------------------------
Marian S. Block
Vice President and
Associate General Counsel
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
Signature Title Date
--------- ----- ----
* Chairman and Chief Executive January 29, 1999
____________________________________ Officer (Principal
Vance D. Coffman Executive Officer)
* Executive Vice President and January 29, 1999
____________________________________ Chief Financial Officer
Marcus C. Bennett (Principal Financial
Officer)
* Vice President and January 29, 1999
____________________________________ Controller (Principal
Todd J. Kallman Accounting Officer)
The registration statement also has been signed on the date indicated by the
following directors, who constitute a majority of the Board of Directors:
Norman R. Augustine* Vincent N. Marafino*
Marcus C. Bennett* Eugene F. Murphy*
Lynne V. Cheney* Allen E. Murray*
Vance D. Coffman* Frank Savage*
Houston I. Flournoy* Peter B. Teets*
James F. Gibbons* Carlisle A.H. Trost*
Edward E. Hood, Jr.* James R. Ukropina*
Caleb B. Hurtt* Douglas C. Yearley*
Gwendolyn S. King*
/s/ Stephen M. Piper
*By: __________________________ January 29, 1999
Stephen M. Piper
(As Attorney-in-fact)
II-4
EXHIBIT 1
LOCKHEED MARTIN CORPORATION
Debt Securities
Underwriting Agreement
----------------------
_________ __, ____
To the several Underwriters
named in the respective Pricing
Agreement hereinafter described
Dear Sirs:
From time to time Lockheed Martin Corporation, a Maryland corporation (the
"Corporation") proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, the Corporation proposes to issue and sell
to the firms named in Schedule I to the applicable Pricing Agreement (such firms
constituting the "Underwriters" with respect to such Pricing Agreement and the
securities specified therein) certain of its debt securities (the "Securities")
specified in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the "Designated Securities").
The terms and rights of any particular issuance of Designated Securities shall
be as specified in the Pricing Agreement relating thereto and in or pursuant to
the indenture (the "Indenture") identified in such Pricing Agreement.
1. Particular sales of Designated Securities may be made from time to time to
the Underwriters of such Designated Securities, for whom the firms designated as
representatives of the Underwriters of such Designated Securities in the Pricing
Agreement relating thereto will act as representatives (the "Representatives").
The term "Representatives" also refers to a single firm acting as sole
representative of the Underwriters and to Underwriters who act without any firm
being designated as their representative. The obligation of the Corporation to
issue and sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be further evidenced by the
Pricing Agreement with respect to the Designated Securities specified therein.
Each Pricing Agreement shall specify the aggregate principal amount of such
Designated Securities, the initial public offering price of such Designated
Securities, the purchase price to the Underwriters of such Designated
Securities, the names of the Underwriters of such Designated Securities, the
names of the Representatives of such Underwriters and the principal amount of
such Designated Securities to be purchased by each Underwriter and shall set
forth the date, time and manner of delivery of such
Designated Securities and payment therefor. The Pricing Agreement shall also
specify (to the extent not set forth in the Indenture and the registration
statement and prospectus with respect thereto) the terms of such Designated
Securities. A Pricing Agreement shall be in the form of an executed writing
(which may be in counterparts), and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device designed to
produce a written record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be several
and not joint.
2. The Corporation represents and warrants to, and agrees with, each
Underwriter that:
(a) The Corporation meets the requirements for the use of Form S-3 under
the Securities Act of 1933, as amended, and the rules and regulations adopted
thereunder (respectively, the "Securities Act" and the "Rules"). The Corporation
has filed with the Securities and Exchange Commission (the "Commission") a
registration statement or registration statements on Form S-3 (the file number
or numbers of which is or are set forth in Schedule II to the Pricing Agreement
relating to the applicable Designated Securities), which has become effective,
for the registration under the Securities Act of the Securities. Such
registration statement or registration statements, as amended at the date of
this Agreement, meet or meets, as the case may be, the requirements set forth in
Rule 415(a)(1)(x) under the Securities Act and complies in all other material
respects with such Rule. The Corporation proposes to file with the Commission
pursuant to Rule 424 under the Securities Act ("Rule 424") a supplement to the
form of prospectus included in such registration statement relating to such
Designated Securities and the plan of distribution thereof. The registration
statement as amended at the date of this Agreement, including the exhibits
thereto and all documents incorporated therein by reference pursuant to Item 12
of Form S-3 (the "Incorporated Documents"), is hereinafter referred to as the
"Registration Statement," and the prospectus as then amended in relation to the
applicable Designated Securities, including the Incorporated Documents, is
hereinafter referred to as the "Basic Prospectus"; and such supplemented form of
prospectus, in the form in which it shall be filed with the Commission pursuant
to Rule 424 (including the Basic Prospectus as so supplemented) is hereinafter
called the "Final Prospectus." Any preliminary form of the Final Prospectus
which has heretofore been filed pursuant to Rule 424 or included in the
Registration Statement is hereinafter called an "Interim Prospectus." If the
-2-
Corporation has filed an abbreviated registration statement to register
additional Designated Securities pursuant to Rule 462(b) under the Securities
Act (the "Rule 462 Registration Statement"), then any reference hereunder to the
term "Registration Statement" also shall be deemed to include such Rule 462
Registration Statement. Any reference herein to the Registration Statement, the
Basic Prospectus, any Interim Prospectus or the Final Prospectus shall be deemed
to refer to and include the Incorporated Documents which were filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), on or before
the date of this Agreement, the date of the Pricing Agreement relating to such
Designated Securities or the issue date of the Basic Prospectus, any Interim
Prospectus or the Final Prospectus, as the case may be; and any reference herein
to the terms "amend," "amendment," or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any Interim Prospectus or the
Final Prospectus shall be deemed to refer to and include the filing of any
Incorporated Documents under the Exchange Act after the date of this Agreement,
the date of the Pricing Agreement relating to such Designated Securities or the
issue date of the Basic Prospectus, any Interim Prospectus or the Final
Prospectus, as the case may be.
(b) The Commission has not issued an order preventing or suspending the
use of the Basic Prospectus or any Interim Prospectus.
(c) The Basic Prospectus and any Interim Prospectus have complied in all
material respects with the requirements of the Securities Act and of the Rules
and, as of their respective dates, did not include any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein not misleading.
(d) As of the date hereof, when the Final Prospectus is first filed with
the Commission pursuant to Rule 424, when, before the Time of Delivery (as
hereinafter defined) for any Designated Securities, any amendment to the
Registration Statement becomes effective, when, before such Time of Delivery,
any document incorporated by reference in the Registration Statement is filed
with the Commission, when any supplement to the Final Prospectus is filed with
the Commission and at such Time of Delivery, the Registration Statement, the
Final Prospectus and any such amendment or supplement will comply in all
material respects with the requirements of the Securities Act and the Rules, the
Incorporated Documents will comply in all material respects with the
requirements of the Securities Act or the Exchange Act, as the case may be, and
the rules and regulations adopted by the Commission thereunder, and no part of
the Registration Statement, the Final Prospectus or any such amendment or
supplement will include an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make
-3-
the statements therein not misleading; except that this representation and
warranty does not apply to (i) statements or omissions in the Registration
Statement or Final Prospectus (or in amendments or supplements thereto) made in
reliance upon information furnished in writing to the Corporation by the
Representatives on behalf of any Underwriter of such Designated Securities
expressly for use therein or (ii) that part of the Registration Statement which
shall constitute the Statement of Eligibility and Qualification of the Trustee
under the Trust Indenture Act of 1939 on Form T-1, except statements or
omissions in such statement made in reliance upon information furnished in
writing to the Trustee by or on behalf of the Corporation for use therein.
(e) The certificates delivered pursuant to paragraph (e) of Section 5
hereof and all other documents delivered by the Corporation or any of their
representatives in connection with the issuance and sale of the applicable
Designated Securities were on the dates on which they were delivered, or will be
on the dates on which they are delivered, in all material respects true and
complete.
(f) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by the Corporation
of the transactions contemplated by this Agreement or the Pricing Agreement
relating to the applicable Designated Securities, except those which have been
obtained or which may be required under the Securities Act and such
qualifications as may be required under state laws in connection with the
purchase and distribution of such Designated Securities by the Underwriters, and
consummation of such transactions will not result in the material breach of any
terms of, or constitute a material default under, any other material agreement
or undertaking of the Corporation.
3. Upon the execution of the Pricing Agreement applicable to any Designated
Securities and authorization by the Representatives of the release of such
Designated Securities, the several Underwriters propose to offer such Designated
Securities for sale upon the terms and conditions set forth in the Final
Prospectus as amended or supplemented. The Corporation hereby confirms that the
Underwriters of any Designated Securities have been authorized to distribute any
Interim Prospectus and are authorized to distribute the Final Prospectus, each
in such form as shall be provided to the Underwriters by the Corporation (as
they may be amended or supplemented from time to time if the Corporation
furnishes amendments or supplements thereto to such Underwriters).
4. Designated Securities to be purchased by each Underwriter pursuant to the
Pricing Agreement relating thereto, in definitive form to the extent
practicable, and in such authorized
-4-
denominations and registered in such names as the Representatives may request
upon at least forty-eight hours' prior notice to the Corporation, shall be
delivered by or on behalf of the Corporation to the Representatives for the
account of such Underwriter, against payment by such Underwriter or on its
behalf of the purchase price therefor by certified or official bank check or
checks or wire transfer payable in immediately available, same-day funds or any
other method specified in the Pricing Agreement, payable to the order of the
Corporation in the funds specified in such Pricing Agreement, all at the place
and time and date specified in such Pricing Agreement or at such other place and
time and date as the Representatives and the Corporation may agree upon in
writing, such time and date being herein called the "Time of Delivery" for such
Securities.
5. The obligations of the Underwriters of any Designated Securities under the
Pricing Agreement relating to such Designated Securities shall be subject, in
the discretion of the Representatives, to the condition that all representations
and warranties and statements of officers of the Corporation made pursuant to
the provisions hereof are, at and as of the Time of Delivery for such Designated
Securities, true and correct, the condition that the Corporation shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Final Prospectus shall have been filed or mailed for filing with
the Commission in accordance with Rule 424(b).
(b) No order suspending the effectiveness of the Registration Statement,
as amended from time to time, shall be in effect and no proceedings for such
purpose shall be pending before or threatened by the Commission and any requests
for additional information on the part of the Commission (to be included in the
Registration Statement or the Final Prospectus) shall have been complied with to
the reasonable satisfaction of the Representatives.
(c) Since the respective dates as of which information is given in the
Registration Statement and the Final Prospectus, other than in connection with
the transactions contemplated by or discussed under the heading "Recent
Developments" in the Final Prospectus, or in connection with the adoption of new
accounting standards, (i) there shall not have been any material adverse change
in the capital stock or long-term debt of the Corporation and its subsidiaries
taken as a whole, (ii) there shall not have been any material adverse change in
the general affairs, management, financial position or results of operations of
the Corporation and its subsidiaries taken as a whole, whether or not arising
from transactions in the ordinary course of business, in
-5-
each case other than as included or incorporated in or contemplated by the Final
Prospectus and (iii) the Corporation and its subsidiaries taken as a whole shall
not have sustained any material loss or interference with their business taken
as a whole from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or any court or legislative or other
governmental action, order or decree that is not set forth in the Final
Prospectus if, in the judgment of the Representatives, any such development
referred to in clauses (i), (ii) or (iii) makes it impracticable or inadvisable
to proceed with the offering and delivery of such Designated Securities as
contemplated by the Registration Statement and the Final Prospectus.
(d) The representations and warranties of the Corporation contained
herein shall be true and correct as of the date hereof, on and as of the date of
the Pricing Agreement for such Designated Securities, as of the date of the
effectiveness of any amendment to the Registration Statement filed before the
Time of Delivery for such Designated Securities, as of the date of the filing of
any document incorporated by reference therein before the Time of Delivery for
such Designated Securities and at and as of the Time of Delivery for such
Designated Securities and the Corporation shall have performed all covenants and
agreements herein contained to be performed on its part at or prior to the Time
of Delivery for such Designated Securities.
(e) The Representatives shall have received at the Time of Delivery for
such Designated Securities certificates, dated the date of the Time of Delivery
for such Designated Securities, of the chief executive officer or a vice
president and the principal financial or accounting officer or the treasurer of
the Corporation, each of which shall certify that (i) no order suspending the
effectiveness of the Registration Statement or prohibiting the sale of such
Designated Securities has been issued and no proceedings for such purpose are
pending before or, to the knowledge of such officers, threatened by the
Commission and (ii) the representations and warranties of the Corporation
contained herein are true and correct at and as of such Time of Delivery and the
Corporation has performed all covenants and agreements herein contained to be
performed on its part at or prior to such Time of Delivery.
(f) On the date of the Pricing Agreement for such Designated Securities
and at the Time of Delivery for such Designated Securities, the independent
accountants of the Corporation shall have furnished to the Representatives a
letter dated the date of the Pricing Agreement and a letter dated such Time of
Delivery, respectively, as to such matters as the Representatives may reasonably
request and in form and substance satisfactory to the Representatives.
-6-
(g) Counsel for the Corporation reasonably satisfactory to the
Representatives shall have furnished to the Representatives their written
opinion, dated the Time of Delivery for such Designated Securities, as to such
matters as the Representatives may reasonably request and in form and in
substance satisfactory to the Representatives.
(h) Counsel for the Underwriters shall have furnished to the
Representatives such opinion or opinions, dated the Time of Delivery for such
Designated Securities, with respect to the validity of the Indenture, such
Designated Securities, the Registration Statement, the Prospectus as amended or
supplemented and other related matters as the Representatives may reasonably
request, and such counsel shall have been given access to such papers and
information as they may reasonably request to enable them to pass upon such
matters.
(i) Subsequent to the date of the Pricing Agreement related to such
Designated Securities, no downgrading by Moody's Investors Service, Inc.,
Standard & Poor's Corporation or Duff & Phelps shall have occurred in the rating
accorded to the debt securities of the Corporation.
(j) Subsequent to the execution of the Pricing Agreement relating to
such Designated Securities, the Corporation shall not have filed an Incorporated
Document under the Exchange Act unless a copy thereof shall have first been
submitted to the Representatives within a reasonable period of time prior to the
filing thereof and the Representatives shall not have promptly and reasonably
objected thereto in writing.
6. The Corporation agrees with each of the Underwriters of any Designated
Securities:
(a) To make no further amendment or any supplement to the Registration
Statement or the Basic Prospectus as amended or supplemented after the date of
the Pricing Agreement relating to such Designated Securities and prior to the
Time of Delivery for such Designated Securities which shall be reasonably
disapproved in writing by the Representatives for such Designated Securities
promptly after reasonable notice thereof; to file promptly all reports and any
definitive proxy or information statements required to be filed by the
Corporation with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act; and to advise the Representatives promptly of any such
amendment or supplement after such Time of Delivery and furnish the
Representatives with copies thereof for so long as the delivery of a prospectus
is required in connection with the offering or sale of such Designated
Securities, and during such same period to advise the Representatives, promptly
after it receives notice thereof, of
-7-
the time when any amendment to the Registration Statement has been filed or
become effective or any supplement to the Basic Prospectus has been filed, or
mailed for filing, of the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any prospectus relating to the
Securities, of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the Commission for the
amendment or supplementing of the Registration Statement or the Basic Prospectus
or for additional information; and, in the event of the issuance of any such
stop order or of any such order preventing or suspending the use of any
prospectus relating to the Securities or suspending any such qualification, to
promptly use all reasonable efforts to obtain its withdrawal. The Corporation
promptly will cause the Final Prospectus to be filed or mailed for filing with
the Commission in accordance with Rule 424(b).
(b) As soon as the Corporation is advised thereof, to advise the
Representatives (i) when the Final Prospectus shall have been filed with or
mailed to the Commission for filing in accordance with Rule 424(b), (ii) when
any amendment to the Registration Statement relating to the Designated
Securities shall have become effective, (iii) of the initiation or threatening
by the Commission of any proceedings for the issuance of any order suspending
the effectiveness of the Registration Statement or the qualification of the
Indenture, (iv) of receipt by the Corporation or any representative of or
attorney for the Corporation of any other communication from the Commission
relating to the Corporation, the Registration Statement, the Basic Prospectus,
any Interim Prospectus or the Final Prospectus and (v) of the receipt by the
Corporation or any representative of or attorney for the Corporation of any
notification with respect to the suspension of the qualification of such
Designated Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Corporation will make every
reasonable effort to prevent the issuance of an order suspending the
effectiveness of the Registration Statement or the qualification of the
Indenture and if any such order is issued to obtain as soon as possible the
lifting thereof.
(c) To deliver to the Representatives, without charge, (i) a signed copy
of the Registration Statement and of any amendments thereto (including conformed
copies of all exhibits filed with, or incorporated by reference in, any such
document), and (ii) as many conformed copies of the Registration Statement and
of any amendments thereto which shall become effective on or before the Time of
Delivery for such Designated Securities (excluding exhibits) as the
Representatives may reasonably request.
-8-
(d) During such period as a prospectus is required by law to be
delivered by an Underwriter or dealer, to deliver, without charge to the
Representatives and to Underwriters and dealers, at such office or offices as
the Representatives may designate, as many copies of any Interim Prospectus and
the Final Prospectus as the Representatives may reasonably request.
(e) During the period in which copies of the Final Prospectus are to be
delivered as provided in paragraph (d) above, if any event occurs as a result of
which it shall be necessary to amend or supplement the Final Prospectus in order
to ensure that no part of the Final Prospectus contains an untrue statement of a
material fact or omits to state a material fact necessary to make the statements
therein, in light of the circumstances existing when the Final Prospectus is to
be delivered to a purchaser, not misleading, forthwith to prepare, deliver to
the Representatives, file with the Commission and deliver without charge, to the
Underwriters and to dealers (to the extent requested and at the addresses
furnished by the Representatives to the Corporation) to whom such Designated
Securities may have been sold by the Underwriters, and to other dealers upon
request, either amendments or supplements to the Final Prospectus so that the
statements in the Final Prospectus, as so amended or supplemented, will comply
with the standards set forth in this paragraph (e). Delivery by Underwriters of
any such amendments or supplements to the Final Prospectus shall not constitute
a waiver of any of the conditions set forth in Section 5 hereof.
(f) To make generally available to its security holders as soon as
practicable an earnings statement of the Corporation and its subsidiaries (which
need not be audited) complying with Section 11(a) of the Securities Act and the
Rules thereunder (including, at the option of the Corporation, Rule 158).
(g) Promptly from time to time to take such action as the
Representatives may request in order to qualify such Designated Securities for
offer and sale under the securities or "blue sky" laws of such jurisdictions as
the Representatives may reasonably request; provided that in no event shall the
Corporation be obligated to subject itself to taxation or to qualify to do
business in any jurisdiction where it is not now so qualified or to take any
action that would subject it to service of process in suits, other than those
arising out of the offering or sale of such Designated Securities, in any
jurisdiction where it is not now so subject.
(h) For a period of five years following the date of issuance of such
Designated Securities, to supply to the Representatives and to each other
Underwriter who may so request in writing copies of such financial statements
and other periodic
-9-
and special reports as the Corporation may from time to time distribute
generally to the holders of any class of its capital stock and to furnish to the
Representatives copies of each annual or other report it shall be required to
file with the Commission. The Corporation shall be deemed to have satisfied the
obligations under this Section 6(h) if such documents are available through the
Commission's EDGAR system.
(i) During the period beginning from the date of the Pricing Agreement
for such Designated Securities and continuing to and including the earlier of
(i) the termination of trading restrictions for such Designated Securities, as
notified to the Corporation by the Representatives, or (ii) the Time of Delivery
for such Designated Securities, not to offer, sell, contract to sell or
otherwise dispose of any debt securities of the Corporation that mature more
than one year after such Time of Delivery and that are substantially similar to
such Designated Securities, without the prior written consent of the
Representatives.
(j) If the Final Prospectus states that such Designated Securities will
be listed on a stock exchange, to use its best efforts to cause such Designated
Securities to be listed on such stock exchange.
7. The Corporation covenants and agrees with each Underwriter that the
Corporation will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of their counsel and accountants in connection with
the registration of the Securities under the Securities Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, the Basic Prospectus, any Interim Prospectus and the
Final Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the cost of
printing or producing any Agreement among Underwriters, this Agreement, any
Pricing Agreement, any Indenture, any Blue Sky and Legal Investment Memoranda
and any other documents in connection with the offering, purchase, sale and
delivery of the Securities; (iii) all expenses in connection with the
qualification of the Securities for offering and sale under state securities
laws as provided in Section 6(g) hereof, including the reasonable fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky and legal investment surveys;
(iv) any fees charged by securities rating services for rating the Securities;
(v) any filing fees incident to any required review by the National Association
of Securities Dealers, Inc. of the terms of the sale of the Securities; (vi) the
cost of preparing the Securities; (vii) the fees and expenses of any Trustee in
connection with any Indenture and the Securities; (viii) the fee, if any, for
listing the Securities on any national
-10-
securities exchange; and (ix) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that, except as
provided in this Section, Section 8 and Section 12 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of their counsel,
transfer taxes on resale of any of the Securities by them, and any advertising
expenses connected with any offers they may make.
8. (a) The Corporation agrees to indemnify and hold harmless each
Underwriter against any and all losses, claims, damages and liabilities, joint
or several (including any reasonable investigation, legal and other expenses
incurred in connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claim asserted, provided that legal expenses relate to
counsel acceptable to the Corporation), to which they, or any of them, may
become subject under the Securities Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities arise solely out of or are based solely
upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Basic Prospectus, any Interim
Prospectus or the Final Prospectus, or any amendment or supplement thereto, or
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as any such untrue statement or omission or alleged untrue
statement or omission was made in (i) the Registration Statement, the Basic
Prospectus, any Interim Prospectus or the Final Prospectus, or such amendment or
supplement, in reliance upon and in conformity with information furnished in
writing to the Corporation by the Representatives on behalf of any Underwriter
of Designated Securities expressly for use in the Registration Statement, the
Basic Prospectus, the Interim Prospectus or the Final Prospectus as amended or
supplemented relating to such Designated Securities or (ii) that part of the
Registration Statement which shall constitute the Statement of Eligibility and
Qualification on Form T-1 of any Trustee under the Trust Indenture Act, except
statements or omissions in such Statement made in reliance upon information
furnished in writing to such Trustee by or on behalf of the Corporation for use
therein; provided, however, that such indemnity with respect to the Basic
Prospectus or any Interim Prospectus shall not inure to the benefit of any
Underwriter of Designated Securities (or any person controlling such
Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased Designated Securities that are the subject thereof if such
person did not receive a copy of the Final Prospectus (not including the
Incorporated Documents) at or prior to the confirmation of the sale of such
Designated Securities to such person in any case where such delivery is required
by the
-11-
Securities Act and the untrue statement or omission of a material fact contained
in the Basic Prospectus or any Interim Prospectus was corrected in the Final
Prospectus, unless such failure to deliver the Final Prospectus was a result of
noncompliance by the Corporation with Section 6(d) hereof.
(b) Each Underwriter of Designated Securities agrees to indemnify and
hold harmless the Corporation to the same extent as the foregoing indemnity from
the Corporation to each Underwriter, but only insofar as such losses, claims,
damages or liabilities arise solely out of or are based upon any untrue
statement or omission or alleged untrue statement or omission that was made in
the Registration Statement, the Basic Prospectus, any Interim Prospectus or the
Final Prospectus, or any amendment or supplement thereto, in reliance upon and
in conformity with information furnished in writing to the Corporation by the
Representatives on behalf of such Underwriter expressly for use in the
Registration Statement, the Basic Prospectus, any Interim Prospectus or the
Final Prospectus as amended or supplemented relating to such Designated
Securities; provided, however, that the obligation of each such Underwriter to
indemnify the Corporation hereunder shall be limited to the total price at which
the Designated Securities purchased by such Underwriter hereunder were offered
to the public.
(c) Any party that proposes to assert the right to be indemnified under
this Section 8 will, promptly after receipt of notice of commencement of any
action, suit or proceeding against any such party in respect of which a claim is
to be made against an indemnifying party under this Section 8, notify each such
indemnifying party of the commencement of such action, suit or proceeding,
enclosing a copy of all papers served, but the omission so to notify such
indemnifying party of any such action, suit or proceeding shall not relieve it
from any liability that it may have to any indemnified party otherwise than
under this Section 8 (it being understood that the omission so to notify such
indemnifying party shall relieve it from any liability it may have to any
indemnified party under this Section 8; provided, however, that timely notice
hereunder to the Representatives made pursuant to Section 13 hereof shall be
deemed timely notice to any Underwriter that is an indemnifying party). In case
any such action, suit or proceeding shall be brought against any indemnified
party and it shall notify the indemnifying party of the commencement thereof,
such indemnifying party or parties shall be entitled to participate in, and, to
the extent that it or they shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party, and after notice from the indemnifying party or parties
to such indemnified party of its or their election so to assume the defense
thereof, the indemnifying party
-12-
or parties shall not be liable to such indemnified party for any legal or other
expenses, other than reasonable costs of investigation subsequently incurred by
such indemnified party in connection with the defense thereof. The indemnified
party shall have the right to employ its counsel in any such action, but the
fees and expenses of such counsel shall be at the expense of such indemnified
party unless (i) the employment of counsel by such indemnified party has been
authorized by the indemnifying party or parties, (ii) the indemnified party
shall have reasonably concluded that there may be a conflict of interest between
the indemnifying party or parties and the indemnified party in the conduct of
the defense of such action (in which case the indemnifying party or parties
shall not have the right to direct the defense of such action on behalf of the
indemnified party), or (iii) the indemnifying party or parties shall not in fact
have employed counsel to assume the defense of such action, in each of which
cases the fees and expenses of counsel shall be at the expense of the
indemnifying party or parties. In the event that the indemnified party retains
separate counsel pursuant to clauses (i), (ii), or (iii) of the previous
sentence, such counsel shall be reasonably acceptable to the indemnifying party.
Any indemnifying party shall not be liable for any settlement of any action or
claim effected without its written consent.
(d) If the indemnification provided for in this Section 8 is unavailable
to hold harmless an indemnified party under subsection (a) or (b) above in
respect of any losses, claims, damages or liabilities (or actions in respect
thereof) referred to therein (other than because such indemnification, by its
terms, does not apply), then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the
Corporation on the one hand and the Underwriters of the Designated Securities on
the other from the offering of the Designated Securities to which such loss,
claim, damage or liability (or actions in respect thereof) relates. If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Corporation on the one hand and the Underwriters of the Designated
Securities on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Corporation on the one hand and such Underwriters on
the other shall be deemed to be in the same proportion as the total
-13-
net proceeds from such offering (before deducting expenses) received by the
Corporation bear to the total underwriting discounts and commissions received by
such Underwriters. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Corporation on the one hand or such Underwriters on
the other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Corporation
and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the applicable Designated Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Underwriters of Designated Securities
in this subsection (d) to contribute are several in proportion to their
respective underwriting obligations with respect to such Designated Securities
and not joint.
(e) The obligations of the Corporation under this Section 8 shall be in
addition to any liability which the Corporation may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Securities Act; and the obligations of
the Underwriters under this Section 8 shall be in addition to any liability
which the respective Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each officer and director of the Corporation and
to each person, if any, who controls the Corporation within the meaning of the
Securities Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Designated Securities which it has agreed to
-14-
purchase under the Pricing Agreement relating to such Designated Securities, the
Representatives may in their discretion arrange for themselves or another party
or other parties to purchase such Designated Securities on the terms contained
herein and in the Pricing Agreement. If within thirty-six hours after such
default by any Underwriter the Representatives do not arrange for the purchase
of such Designated Securities, then the Corporation shall be entitled to a
further period of thirty-six hours within which to procure another party or
other parties satisfactory to the Representatives to purchase such Designated
Securities on such terms. In the event that, within the respective prescribed
period, the Representatives notify the Corporation that they have so arranged
for the purchase of such Designated Securities, or the Corporation notifies the
Representatives that it has so arranged for the purchase of such Designated
Securities, the Representatives or the Corporation shall have the right to
postpone the Time of Delivery for such Designated Securities for a period of not
more than seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Final Prospectus as amended or
supplemented, or in any other documents or arrangements, and the Corporation
agrees to file promptly any amendments or supplements to the Registration
Statement or the Final Prospectus which in the opinion of the Representatives
may thereby be made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this Section 9 with like effect as if
such person had originally been a party to the Pricing Agreement with respect to
such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Corporation as provided in subsection (a) above, the
aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-tenth of the aggregate principal amount of the
Designated Securities, then the Corporation shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Designated
Securities which such Underwriter agreed to purchase under the Pricing Agreement
relating to such Designated Securities and, in addition, to require each non-
defaulting Underwriter to purchase its pro rata share (based on the principal
amount of Designated Securities which such Underwriter agreed to purchase under
such Pricing Agreement) of the Designated Securities of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Corporation
-15-
as provided in subsection (a) above, the aggregate principal amount of
Designated Securities which remains unpurchased exceeds one-tenth of the
aggregate principal amount of the Designated Securities, as referred to in
subsection (b) above, or if the Corporation shall not exercise the right
described in subsection (b) above to require non-defaulting Underwriters to
purchase Designated Securities of a defaulting Underwriter or Underwriters, then
the Pricing Agreement relating to such Designated Securities shall thereupon
terminate, without liability on the part of any non-defaulting Underwriter or
the Corporation, except for the expenses to be borne by the Corporation and the
Underwriters as provided in Section 7 hereof and the indemnity and contribution
agreements in Section 8 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
10. Any Pricing Agreement may be terminated by the Representatives or by
Underwriters who have agreed to purchase in the aggregate at least 50% of the
principal amount of the applicable Designated Securities by notifying the
Corporation at any time,
(a) prior to the earliest of (i) 11:00 a.m., New York time, on the day
following the date of the applicable Pricing Agreement, (ii) the time of
release by the Representatives for publication of the first newspaper
advertisement that is subsequently published with respect to such Designated
Securities or (iii) the time when such Designated Securities are first
generally offered by the Representatives to dealers by letter or telegram;
(b) at or prior to the Time of Delivery for such Designated Securities
if, in the judgment of the Representatives or in the judgment of such
Underwriters, as the case may be, payment for and delivery of such Designated
Securities is rendered impracticable or inadvisable because (i) additional
material governmental restrictions, not in force and effect on the date hereof
or on the date of such Pricing Agreement, shall have been imposed upon trading
in securities generally or minimum or maximum prices shall have been generally
established on the New York Stock Exchange, or trading in securities generally
shall have been suspended on such Exchange or a general banking moratorium
shall have been established by Federal or New York authorities, (ii) any event
shall have occurred or shall exist which makes untrue or incorrect in any
material respect any material statement or information contained in the
Registration Statement or the Final Prospectus or which is not reflected in
the Registration Statement or the Final Prospectus but should be reflected
therein in order to make the statements or information contained therein not
misleading in any material respect or (iii) hostilities involving the United
States or other national calamity shall have occurred or shall have
-16-
accelerated to such an extent as, in the judgment of the Representatives, to
affect adversely the marketability of such Designated Securities; or
(c) at or prior to the Time of Delivery for such Designated Securities,
if any of the conditions specified in Section 5 hereof shall not have been
fulfilled when and as required by this Agreement.
If this Agreement is terminated pursuant to any of the provisions hereof, the
Corporation shall not be under any liability (except as otherwise provided
herein) to any Underwriter and no Underwriter shall be under any liability to
the Corporation, except that (a) if this Agreement is terminated by the
Representatives or the Underwriters because of any failure or refusal on the
part of the Corporation to comply with the terms or to fulfill any of the
conditions of this Agreement, the Corporation will reimburse the Underwriters
for all reasonable out-of-pocket expenses (including the fees and disbursements
of their counsel) incurred by them and (b) no Underwriter who shall have failed
or refused to purchase Designated Securities agreed to be purchased by it
hereunder, without some reason sufficient hereunder to justify its cancellation
or termination of its obligations hereunder, shall be relieved of liability to
the Corporation or to the other Underwriters for damages occasioned by its
default.
11. The respective indemnities, agreements, representations, warranties and
other statements of the Corporation and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
termination of this Agreement, any investigation (or any statement as to the
results thereof) made by or on behalf of any Underwriter or any controlling
person of any Underwriter, or the Corporation, or any officer or director or
controlling person of the Corporation, and shall survive delivery of and payment
for the Securities.
12. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof, the Corporation shall not then be under any liability to any Underwriter
with respect to the Designated Securities covered by such Pricing Agreement
except as provided in Section 7 and Section 8 hereof; but, if for any other
reason Designated Securities are not delivered by or on behalf of the
Corporation as provided herein, the Corporation will reimburse the Underwriters
through the Representatives for all out-of-pocket expenses approved in writing
by the Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Corporation shall then be under
no further liability to any Underwriter with respect
-17-
to such Designated Securities except as provided in Section 7 and Section 8
hereof.
13. In all dealings hereunder, the Representatives of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All notices and other communications provided for or permitted hereunder
shall be in writing by hand delivery, first-class mail, facsimile transmission,
or air courier which guarantees overnight delivery: (a) if to the Underwriters
shall be sufficient in all respects if delivered or sent to the address of the
Representatives as set forth in the Pricing Agreement; and (b) if to the
Corporation shall be sufficient in all respects if delivered or sent to the
address of the Corporation set forth in the Registration Statement; Attention:
Vice President and General Counsel; provided, however, that any notice to an
Underwriter pursuant to Section 8(c) hereof shall be delivered or sent to such
Underwriter at its address set forth in its Underwriters' Questionnaire, which
address will be supplied to the Corporation by the Representatives upon request.
All such notices and communications shall be deemed to have been duly given: at
the time delivered by hand, if personally delivered; three business days after
being deposited in the mail, postage prepaid, if mailed; when receipt is
acknowledged by recipient's facsimile machine operator, if sent by facsimile
transmission; and on the day delivered, if sent by overnight air courier
guaranteeing next day delivery.
14. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Corporation and, to the
extent provided in Section 8 and Section 11 hereof, the officers and directors
of the Corporation and each person who controls the Corporation or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement or any such Pricing Agreement. No purchaser of any of
the Securities from any Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
15. Time shall be of the essence of each Pricing Agreement.
16. This Agreement and each Pricing Agreement shall be construed in
accordance with the laws of the State of New York.
-18-
17. This Agreement and each Pricing Agreement may be executed by any one or
more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign and
return counterparts hereof.
Very truly yours,
LOCKHEED MARTIN CORPORATION
By: ___________________________
Accepted as of the date hereof:
______________________________
______________________________
______________________________
______________________________
On behalf of itself and each of the
Underwriters
_________________________
By: ___________________________
-19-
LOCKHEED MARTIN CORPORATION
Pricing Agreement
-----------------
_________________________
_________________________
_________________________
c/o _____________________
_____________________
_____________________
________ __, _____
Dear Sirs:
Lockheed Martin Corporation, a Maryland corporation (the "Corporation"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement dated ________ __, ______ (the "Underwriting Agreement"),
to issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the Securities specified in Schedule II hereto (the "Designated
Securities"). Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement. Each reference to the Representatives herein and in the provisions
of the Underwriting Agreement so incorporated by reference shall be deemed to
refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined. The Representatives
designated to act on behalf of the Representatives and on behalf of each of the
Underwriters of the Designated Securities pursuant to Section 13 of the
Underwriting Agreement and the address of the Representatives referred to in
such Section 13 are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the Final
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed, or, in the case of
a supplement, proposed to be filed or mailed for filing, with the Commission.
Subject to the terms and conditions set forth herein and in the Underwriting
Agreement incorporated herein by reference, the
Corporation agrees to issue and sell to each of the Underwriters, and each of
the Underwriters agrees, severally and not jointly, to purchase from the
Corporation, at the time and place and at the purchase price to the Underwriters
set forth in Schedule II hereto, the principal amount of Designated Securities
set forth opposite the name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign and
return to us counterparts hereof, and upon acceptance hereof by you, on behalf
of each of the Underwriters, this letter and such acceptance hereof, including
the provisions of the Underwriting Agreement incorporated herein by reference,
shall constitute a binding agreement between each of the Underwriters and the
Corporation. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is or will be pursuant to the authority set forth in a
form of Agreement among Underwriters, the form of which shall be submitted to
the Corporation for examination, upon request.
Very truly yours,
LOCKHEED MARTIN CORPORATION
By:__________________________
Accepted as of the date hereof:
_________________________
_________________________
_________________________
On behalf of itself and each of the
Underwriters
_________________________
By:___________________________________
-2-
SCHEDULE I
Principal Amount of Designated Securities
Underwriter to be Purchased
- ----------- ------------------------------------------
SCHEDULE II
Registration Statement No.:
- --------------------------
Title of Designated Securities:
- ------------------------------
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due
Aggregate principal amount:
- --------------------------
$
Price to Public:
- ---------------
% of the principal amount of the Designated Securities, plus accrued
interest from to [and accrued amortization, if any,
from to ]
Purchase Price by Underwriters:
- ------------------------------
% of the principal amount of the Designated Securities, plus accrued
interest from to [and accrued amortization, if any,
from to ]
Specified funds for payment of purchase price:
- ---------------------------------------------
[New York] Clearing House [Immediately available] funds
Indenture:
- ---------
Indenture, dated __________ __, ______ between the
Corporation and U.S. Bank Trust National Association,
as Trustee
Maturity:
- --------
Interest Rate:
- -------------
[ %] [Zero Coupon] [See Floating Rate Provisions]
Interest Payment Dates:
- ----------------------
[months and dates, commencing , 19 ]
Redemption Provisions:
- ---------------------
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the Corporation, in the
amount of $ or an integral multiple thereof,
[on or after , at the following redemption prices
(expressed in percentages of principal amount). If [redeemed on or before
, % and if] redeemed during the 12-month period beginning
,
Redemption
Year Price
---- ----------
and thereafter at 100% of their principal amount, together in each case with
accrued interest to the redemption date.]
[on any interest payment date falling on or after ,
, at the election of the Corporation, at a redemption price equal
to the principal amount thereof, plus accrued interest to the date of
redemption.]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
Sinking Fund Provisions:
- -----------------------
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking fund to
retire $ principal amount of Designated Securities on
in each of the years through at 100% of their principal
amount plus
II-2
accrued interest] [, together with [cumulative] [noncumulative]
redemptions at the option of the Corporation to retire an additional $
principal amount of Designated Securities in the years through
at 100% of their principal amount plus accrued interest. Any sinking fund
requirement shall be reduced by the aggregate principal amount of Debt
Securities delivered to the Trustee by the Corporation at least days
prior to the date on which payments are to be made under the sinking fund
and designated for that purpose.]
[If Securities are extendable debt Securities, insert--
------------------------------------------------------
Extendable provisions:
Securities are repayable on , [insert date and
years], at the option of the holders, at their principal amount with accrued
interest. Initial annual interest rate will be %, and thereafter annual
interest rate will be adjusted on , , and to a
rate not less than % of the effective annual interest rate on U.S.
Treasury obligations with -year maturities as of the [insert date
15 days prior to maturity date] prior to such [insert maturity date].]
[If Securities are Floating Rate debt Securities, insert--
---------------------------------------------------------
Floating rate provisions:
Initial annual interest rate will be % through [and
thereafter will be adjusted [monthly] [on each , ,
and ] [to an annual rate of % above the
average rate for -year [month] [securities] [certificates of
deposit] by and [insert names of banks].] [and the
annual interest rate [thereafter] [from through ] will
be the interest yield equivalent of the weekly average per annum
market discount rate for -month Treasury bills plus
% of Interest Differential (the excess, if any, of (i) then current weekly
average per annum secondary market yield for -month certificates of deposit
over (ii) then current interest yield equivalent of the weekly average per
annum market discount rate for -month Treasury bills); [from and thereafter
the rate will be the then current interest yield equivalent plus % of
Interest Differential].]
II-3
Time of Delivery:
- ----------------
Closing Location:
- ----------------
Names and addresses of Representatives:
- --------------------------------------
Designated Representatives:
Address for Notice, etc.:
[Other Terms]*:
__________________
* A description of particular tax, accounting or other unusual features of
the Securities should be set forth, or referenced to an attached and
accompanying description, if necessary to the issuer's understanding of the
transaction contemplated. Such a description might appropriately be in the
form in which such features will be described in the Prospectus Supplement
for the offering.
II-4
EXHIBIT 4(a)
================================================================================
LOCKHEED MARTIN CORPORATION
AS ISSUER
AND
U.S. BANK TRUST
NATIONAL ASSOCIATION
AS TRUSTEE
____________________
INDENTURE
DATED AS OF _________ __, ____
================================================================================
TABLE OF CONTENTS
__________
Page
----
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions................................................. 1
SECTION 1.02. Other Definitions........................................... 4
SECTION 1.03. Incorporation by Reference of TIA........................... 5
SECTION 1.04. Rules of Construction....................................... 5
ARTICLE 2
THE SECURITIES
SECTION 2.01. Form and Dating............................................. 6
SECTION 2.02. Execution and Authentication................................ 7
SECTION 2.03. Title, Amount and Terms of Securities....................... 9
SECTION 2.04. Registrar and Paying Agent.................................. 12
SECTION 2.05. Paying Agent to Hold Money in Trust......................... 12
SECTION 2.06. Securityholder Lists........................................ 12
SECTION 2.07. Transfer and Exchange....................................... 12
SECTION 2.08. Replacement Securities...................................... 14
SECTION 2.09. Outstanding Securities...................................... 15
SECTION 2.10. Temporary Securities........................................ 15
SECTION 2.11. Cancellation................................................ 16
SECTION 2.12. Defaulted Interest.......................................... 16
SECTION 2.13. Currency and Manner of Payments in Respect of Securities.... 16
SECTION 2.14. Appointment and Resignation of Currency Determination
Agent....................................................... 20
ARTICLE 3
REDEMPTION
SECTION 3.01. Applicability of this Article............................... 20
SECTION 3.02. Notices to Trustee.......................................... 20
SECTION 3.03. Selection of Securities to be Redeemed...................... 21
SECTION 3.04. Notice of Redemption........................................ 21
SECTION 3.05. Effect of Notice of Redemption.............................. 22
-i-
SECTION 3.06. Deposit of Redemption Price................................. 22
SECTION 3.07. Securities Redeemed in Part................................. 22
ARTICLE 4
COVENANTS
SECTION 4.01. Certain Definitions......................................... 22
SECTION 4.02. Payment of Securities....................................... 24
SECTION 4.03. Limitation on Liens......................................... 24
SECTION 4.04. Limitation on Sale-Leaseback Transactions................... 26
SECTION 4.05. No Lien Created, etc........................................ 27
SECTION 4.06. Compliance Certificate...................................... 27
SECTION 4.07. SEC Reports................................................. 27
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01. When the Corporation May Merge, etc. ....................... 27
SECTION 5.02. When Securities Must be Secured............................. 27
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default........................................... 28
SECTION 6.02. Acceleration................................................ 29
SECTION 6.03. Other Remedies.............................................. 30
SECTION 6.04. Waiver of Past Defaults..................................... 30
SECTION 6.05. Control by Majority......................................... 30
SECTION 6.06. Limitation on Suits......................................... 30
SECTION 6.07. Rights of Holders to Receive Payment........................ 31
SECTION 6.08. Collection Suit by Trustee.................................. 31
SECTION 6.09. Trustee May File Proofs of Claim............................ 31
SECTION 6.10. Priorities.................................................. 31
SECTION 6.11. Undertaking for Costs....................................... 32
ARTICLE 7
TRUSTEE
SECTION 7.01. Duties of Trustee........................................... 32
SECTION 7.02. Rights of Trustee........................................... 33
-ii-
SECTION 7.03. Individual Rights of Trustee, etc........................... 33
SECTION 7.04. Trustee's Disclaimer........................................ 33
SECTION 7.05. Notice of Defaults.......................................... 33
SECTION 7.06. Reports by Trustee to Holders............................... 34
SECTION 7.07. Compensation and Indemnity.................................. 34
SECTION 7.08. Replacement of Trustee...................................... 34
SECTION 7.09. Successor Trustee by Merger, etc............................ 35
SECTION 7.10. Eligibility; Disqualification............................... 36
SECTION 7.11. Preferential Collection of Claims Against Corporation...... 36
ARTICLE 8
SATISFACTION, DISCHARGE AND DEFEASANCE
SECTION 8.01. Satisfaction and Discharge Under Limited Circumstances..... 36
SECTION 8.02. Satisfaction and Discharge of Indenture..................... 37
SECTION 8.03. Defeasance of Certain Obligations........................... 38
SECTION 8.04. Application of Trust Money.................................. 39
SECTION 8.05. Repayment to Corporation.................................... 40
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.................................. 40
SECTION 9.02. With Consent of Holders..................................... 41
SECTION 9.03. Compliance with Trust Indenture Act of 1939................. 41
SECTION 9.04. Revocation and Effect of Consents........................... 41
SECTION 9.05. Notation on or Exchange of Securities....................... 42
SECTION 9.06. Trustee to Sign Amendments, etc............................. 42
ARTICLE 10
MISCELLANEOUS
SECTION 10.01. TIA Controls................................................ 42
SECTION 10.02. Notices..................................................... 42
SECTION 10.03. Communication by Holders with Other Holders................. 43
SECTION 10.04. Certificate and Opinion as to Conditions Precedent.......... 43
SECTION 10.05. Statements Required in Certificate or Opinion............... 43
SECTION 10.06. When Treasury Securities Disregarded........................ 44
SECTION 10.07. Rules by Trustee, Paying Agent, Registrar................... 44
SECTION 10.08. Legal Holidays.............................................. 44
SECTION 10.09. Governing Law............................................... 44
-iii-
SECTION 10.10. No Adverse Interpretation of Other Agreements............... 44
SECTION 10.11. No Recourse Against Others.................................. 45
SECTION 10.12. Securities in a Foreign Currency............................ 45
SECTION 10.13. Judgment Currency........................................... 45
SECTION 10.14. Successors.................................................. 46
SECTION 10.15. Duplicate Originals......................................... 46
SECTION 10.16. Acts of Holders; Record Dates............................... 46
_______________
NOTE: This Table of Contents shall not, for any purpose, be deemed to be a part
of the Indenture.
-iv-
INDENTURE dated as of ______ __, ____, between Lockheed Martin Corporation, a
Maryland corporation (the "Corporation"), and U.S. Bank Trust National
Association, a national banking association (the "Trustee").
Each party agrees as follows for the benefit of the other party and, as to
each series of Securities, for the equal and ratable benefit of the Holders of
that series of the Corporation's Securities issued pursuant to this Indenture:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Board of Directors" means the Board of Directors, or any duly appointed
committee of the Board of Directors, of the Corporation.
"Board Resolution" means a resolution of the Board of Directors or of a
committee or person to which or to whom the Board of Directors has properly
delegated the appropriate authority, a copy of which has been certified by the
Secretary or an Assistant Secretary of the Corporation to have been duly adopted
by the Board of Directors or such committee or person 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 particular 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 to close, and shall otherwise mean each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions, at the
place where any specified act pursuant to this Indenture is to occur, are
authorized or obligated by law to close.
"Conversion Event" means, in the good faith judgment of the Corporation, the
unavailability of any Foreign Currency or currency unit, due to the imposition
of exchange controls or other circumstances beyond the control of the
Corporation.
"Corporation" means the party named as such in this Indenture until a
successor replaces it and thereafter means the successor.
"Currency Determination Agent," with respect to Securities of any series,
means a New York Clearing House bank designated pursuant to Section 2.03 or
Section 2.14.
"Default" means any event which is, or after notice or passage of time or both
would be, an Event of Default.
"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
party designated as Depositary by the Corporation pursuant to Section 2.03 until
a successor Depositary shall have become such pursuant to the applicable
provisions hereof, and thereafter "Depositary" shall mean or include each party
who is then a Depositary hereunder, and if at any time there is more than one
such party, "Depositary" as used with respect to the Securities on any such
series shall mean the Depositary with respect to the Securities of that series.
"Discounted Security" means any Security which provides for an amount
(excluding any amounts attributable to accrued but unpaid interest) less than
its principal amount to be due and payable upon a declaration of acceleration of
the maturity of the Security pursuant to Section 6.02.
"Dollars" and the sign "$" mean the currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
"Exchange Act" means the Securities Exchange Act of 1934, as it may be amended
from time to time.
"Exchange Rate Officers' Certificate" means a certificate or facsimile thereof
setting forth (i) the applicable Market Exchange Rate and (ii) the Dollar,
Foreign Currency or currency unit amounts of principal and interest, if any (on
an aggregate basis and on the basis of a Security having the denomination
principal amount determined in accordance with Section 2.03 in the relevant
currency or currency unit), payable with respect to a Security of any series on
the basis of such Market Exchange Rate, signed by any Officer of the
Corporation.
"Foreign Currency" means a currency issued by the government of any country
other than the United States of America or a currency established by a group of
countries as a common legal currency such as the "Euro".
"Global Security" means a Security evidencing all or a part of a series of
Securities, issued to the Depositary for such series in accordance with Section
2.01, and bearing the legend prescribed in Section 2.01.
"Holder" or "Securityholder" means the person in whose name a Security is
registered on the Registrar's books.
"Indenture" means this Indenture as amended or supplemented from time to time.
"Market Exchange Rate" means (i) for any conversion involving a currency unit
on the one hand and Dollars or any Foreign Currency on the other, the exchange
rate between the
-2-
relevant currency unit and Dollars or such Foreign Currency calculated by the
method specified pursuant to Section 2.03 for the Securities of the relevant
series, (ii) for any conversion of Dollars into any Foreign Currency, the noon
(New York City time) buying rate for such Foreign Currency for cable transfers
quoted in New York City as certified for customs purposes by the Federal Reserve
Bank of New York, (iii) for any conversion of one Foreign Currency into Dollars
or another Foreign Currency, the spot rate at noon local time in the relevant
market at which, in accordance with normal banking procedures, the Dollars or
Foreign Currency into which conversion is being made could be purchased with the
Foreign Currency from which conversion is being made from major banks located in
either New York City, London or any other principal market for Dollars or such
purchased Foreign Currency, in each case determined by the applicable Currency
Determination Agent in its sole discretion and without liability on its part. In
the event of the unavailability of any of the exchange rates provided for in the
foregoing clauses (i), (ii) and (iii) the Currency Determination Agent shall
use, in its sole discretion and without liability on its part, such quotation of
the Federal Reserve Bank of New York as of the most recent available date, or
quotations from one or more major banks in New York City, London or any other
principal market for such currency or currency unit in question, or such other
quotations as the Currency Determination Agent shall deem appropriate. Unless
otherwise specified by the Currency Determination Agent, if there is more than
one market for dealing in any currency or currency unit by reason of foreign
exchange regulations or otherwise, the market to be used with respect to such
currency or currency unit shall be that upon which a nonresident issuer of
securities designated in such currency or currency unit would purchase such
currency or currency unit in order to make payments with respect to such
securities. For purposes of this definition, a "nonresident issuer" shall mean
an issuer that is not a resident of the country or countries that issue such
currency or whose currencies are included in such currency unit.
"Officer" means the Chairman of the Board, the Chief Executive Officer, the
President, the Chief Operating Officer, any Executive Vice President, Senior
Vice President or Vice President, the Treasurer or the Secretary of the
Corporation.
"Officers' Certificate" means a certificate signed by two Officers or by an
Officer and an Assistant Treasurer or Assistant Secretary of the Corporation.
"Opinion of Counsel" means a written opinion from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Corporation or the Trustee.
"Place of Payment" means, when used with respect to the Securities of any
particular series, the place or places where the principal of and interest, if
any, on the Securities of that series are payable, as contemplated by Section
2.03.
"principal" of a Security means the principal of the Security plus, when
appropriate, the premium, if any, on the Security.
"SEC" means the Securities and Exchange Commission.
-3-
"Securities" means the securities issued pursuant to this Indenture from time
to time, as such securities may be amended or supplemented from time to time.
"series" when used with respect to the Securities means all Securities bearing
the same title and initially authorized by the same Board Resolution.
"TIA" means the Trust Indenture Act of 1939, as in effect (unless otherwise
stated herein) on the date of this Indenture.
"Trustee" means the party named as such in this Indenture until a successor
replaces it and thereafter means the successor. The term "Trustee" includes any
additional Trustee appointed pursuant to Section 2.03 or Section 7.08 but, if at
any time there is more than one Trustee, the term "Trustee" as used with respect
to Securities of any series shall mean the Trustee with respect to Securities of
that series.
"Trust Officer" means a Vice President or any other officer, assistant officer
or employee of the Trustee assigned by the Trustee to administer its corporate
trust matters.
"Uniform Commercial Code" means the Maryland Uniform Commercial Code.
SECTION 1.02. Other Definitions.
Defined in
Term Section
- ---- ----------
"Attributable Debt".......................... 4.01
"Bankruptcy Law"............................. 6.01
"Component Currency"......................... 2.13
"Consolidated Net Tangible Assets"........... 4.01
"Conversion Date"............................ 2.13
"Custodian".................................. 6.01
"Debt"....................................... 4.01
"Dollar Equivalent of the Currency Unit"..... 2.13
"Dollar Equivalent of the Foreign Currency".. 2.13
"Election Date".............................. 2.13
"Event of Default"........................... 6.01
"Judgment Date".............................. 10.13
"Legal Holiday".............................. 10.08
"Lien"....................................... 4.01
"Long-Term Debt"............................. 4.01
"Paying Agent"............................... 2.04
"Principal Property"......................... 4.01
"Registrar".................................. 2.04
-4-
"Restricted Property"........................ 4.01
"Restricted Subsidiary"...................... 4.01
"Sale-Leaseback Transaction"................. 4.01
"Specified Amount"........................... 2.13
"Subsidiary"................................. 4.01
"Substitute Date"............................ 10.13
"United States".............................. 4.01
"U.S. Government Obligations"................ 8.02
"Valuation Date"............................. 2.13
"Voting Stock"............................... 4.01
SECTION 1.03. Incorporation by Reference of TIA. Whenever this Indenture
refers to a provision of the TIA, the provision is incorporated by reference in
and made a part of this Indenture. The following TIA terms used in this
Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Corporation.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them.
SECTION 1.04. Rules of Construction. Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to
it in accordance with generally accepted accounting principles;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural include
the singular;
(5) any gender used in this Indenture shall be deemed to include the
neuter, masculine or feminine gender; and
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(6) provisions apply to successive events and transactions.
ARTICLE 2
THE SECURITIES
SECTION 2.01. Form and Dating. The Securities shall be issued substantially in
the form or forms (including global form) as shall be established by or pursuant
to a Board Resolution or Resolutions or any supplemental indenture, in each case
with such appropriate insertions, omissions, substitutions or other variations
as are required or permitted by this Indenture. The Securities may have
notations, legends or endorsements required by law, stock exchange rule or
usage. Each Security shall be dated the date of its authentication.
Notwithstanding the foregoing, if any Security of a series is issuable in the
form of a Global Security or Securities, each such Global Security may provide
that it shall represent the aggregate amount of Securities outstanding under the
series from time to time endorsed thereon and also may provide that the
aggregate amount of Securities outstanding under the series represented thereby
may from time to time be reduced to reflect exchanges. Any endorsement of a
Global Security to reflect the amount of Securities outstanding under the series
represented thereby shall be made by the Trustee in accordance with the
instructions of the Corporation and in such manner as shall be specified on such
Global Security. Any instructions by the Corporation with respect to a Global
Security, after its initial issuance, shall be in writing but need not comply
with Section 10.04.
Before the first delivery of a Security of any series to the Trustee for
authentication, the Corporation shall deliver to the Trustee the following:
(1) the Board Resolution or Resolutions by or pursuant to which the
forms and terms of the Security have been approved;
(2) an Officers' Certificate of the Corporation dated the date of
delivery stating that all conditions precedent provided for in this
Indenture relating to the authentication and delivery of Securities in that
series have been complied with and directing the Trustee to authenticate
and deliver the Securities to or upon written order of the Corporation; and
(3) Opinions of Counsel stating that all conditions precedent provided
for in this Indenture relating to the authentication and delivery of
Securities of that series have been complied with, the form and terms of
the series have been established by or pursuant to a Board Resolution or
Resolutions in conformity with this Indenture, and that
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Securities in such form when completed by appropriate insertions and
executed by the Corporation and delivered by the Corporation to the Trustee
for authentication in accordance with this Indenture, authenticated and
delivered by the Trustee in accordance with this Indenture within the
authorization as to aggregate principal amount established from time to
time by the Board of Directors and sold in the manner specified in such
Opinions of Counsel will be the legal, valid and binding obligations of the
Corporation, entitled to the benefits of this Indenture, subject to
applicable bankruptcy, reorganization, insolvency and other similar laws
generally affecting creditors' rights and to general equity principles, and
to such other qualifications as such counsel shall conclude do not
materially affect the rights of Holders of Securities of that series or
that are customarily included in similar opinions by lawyers experienced in
such matters.
Notwithstanding the foregoing, if the Corporation shall establish pursuant to
Section 2.03 that the Securities of a series are to be issued in whole or in
part in the form of one or more Global Securities, then the Corporation shall
execute and the Trustee shall, in accordance with this Section, Section 2.02 and
the authentication order of the Corporation with respect to such series,
authenticate and deliver one or more Global Securities in temporary or permanent
form that shall (a) represent and be denominated in an aggregate amount equal to
the aggregate principal amount of the Securities of such series to be
represented by one or more Global Securities, (b) be registered in the name of
the Depositary for such Global Security or Securities or the nominee of such
Depositary, (c) be delivered by the Trustee to such Depositary or pursuant to
such Depositary's instruction; and (d) bear a legend substantially to the
following effect: "Unless and until it is exchanged in whole or in part for
Securities in definitive form, this Security may not be transferred except 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 or by the
Depositary or any nominee to a successor Depositary or a nominee of any
successor Depositary."
SECTION 2.02. Execution and Authentication. Two Officers shall sign the
Securities for the Corporation by manual or facsimile signature. The
Corporation's seal shall be impressed, affixed, imprinted or reproduced on the
Securities.
If an Officer whose signature is on a Security no longer holds that office at
the time the Trustee authenticates the Security, the Security shall be valid
nevertheless.
A Security shall not be valid until the Trustee manually signs the certificate
of authentication on the Security. The signature shall be conclusive evidence
that the Security has been authenticated under this Indenture.
Notwithstanding the provisions of Section 2.03 and of the preceding
paragraphs, if all Securities of a series are not to be originally issued at one
time (including, for example, a series constituting a medium-term note program),
it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 2.01 or the Opinions of Counsel otherwise
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required pursuant to such preceding paragraphs at or prior to the time of
authentication of each Security of such series if such documents are delivered
at or prior to the time of authentication upon original issuance of the first
Security of such series. In such case the Trustee may conclusively rely on the
foregoing documents and opinions delivered pursuant to Section 2.01 and Section
2.03, and this Section, as applicable (unless revoked by superseding comparable
documents or opinions), as to the matters set forth therein.
Notwithstanding the foregoing, if any Security shall have been duly
authenticated and delivered hereunder but never issued and sold by the
Corporation, and the Corporation shall deliver such Security to the Trustee for
cancellation as provided in Section 2.11 together with a written statement
(which need not comply with Section 2.01 and need not be accompanied by an
Opinion of Counsel) stating that such Security has never been issued and sold by
the Corporation, 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.
If any Security of a series shall be represented by a Global Security, then,
for purposes of this Section and Section 2.10, the notation of the record
owners' interest therein upon original issuance of such Security shall be deemed
to be delivered in connection with the original issuance of each beneficial
owner's interest in such Global Security.
The Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
Date: [Name of Trustee], as Trustee
By___________________________
The Trustee may appoint an authenticating agent acceptable to the Corporation
to authenticate Securities. An authenticating agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the
Corporation.
If at any time there shall be an authenticating agent appointed with respect
to any series of Securities, then the Trustee's certificate of authentication to
be borne by the Securities of each such series shall be substantially as
follows:
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
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Date: [Name of Trustee], as Trustee
By:___________________________
as Authenticating Agent
By:___________________________
Authorized Officer
SECTION 2.03. Title, Amount and Terms of Securities. The principal amount of
Securities that may be authenticated and delivered and outstanding under this
Indenture is not limited. The Securities may be issued in a total principal
amount up to that authorized from time to time by or pursuant to relevant Board
Resolutions.
The Securities may be issued in one or more series, each of which shall be
issued pursuant to a Board Resolution or Resolutions of the Corporation, which
shall specify:
(1) the title of the Securities of that series (which shall distinguish
the Securities of that series from Securities of all other series);
(2) any limit on the aggregate principal amount of the Securities of
that series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration or
transfer of, in exchange for or in lieu of other Securities of that series
pursuant to Sections 2.07, 2.08 or 3.07);
(3) the date or dates (or the manner of determining the same) on which
the principal of the Securities of that series is payable (which, if so
provided in the Board Resolution or Resolutions, may be determined by the
Corporation from time to time and set forth in the Securities of that
series issued from time to time);
(4) the rate or rates, or the method to be used in ascertaining the rate
or rates, at which the Securities of that series shall bear interest, if
any, the basis upon which interest shall be calculated if other than that
of a 360-day year of 12 30-day months, the date or dates from which such
interest shall accrue (which, in either case or both, if so provided in the
Board Resolution or Resolutions, may be determined by the Corporation from
time to time and set forth in the Securities of that series issued from
time to time), the interest payment dates on which such interest shall be
payable (or the manner of determining the same) and the record date for the
interest payable on any interest payment date;
(5) if the trustee of that series is other than the Trustee initially
named in this
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Indenture or any successor thereto, the trustee of that series;
(6) the place or places where the principal of and interest, if any, on
Securities of that series shall be payable;
(7) the period or periods within which, the price or prices at which,
the currency or currency unit in which, and the terms and conditions on
which Securities of that series may be redeemed or converted into another
Security, in whole or in part, at the option of the Corporation;
(8) the obligation, if any, of the Corporation to redeem or purchase
Securities of that series pursuant to any sinking fund or analogous
provisions or at the option of Holders of Securities of that series (or to
convert such Securities into other Securities at the option of the Holder),
and the period or periods within which, the price or prices at which, the
currency or currency unit in which, and the terms and conditions upon which
Securities of that series shall be redeemed or purchased, in whole or in
part, pursuant to such obligation;
(9) if denominated in Dollars and in denominations other than
denominations of $1,000 and any multiple of $1,000, the denominations in
which Securities of that series shall be issuable;
(10) if denominated in other than Dollars, the currency or currencies,
including composite currencies, in which the Securities of that series are
denominated and the denominations in which Securities of that series shall
be issuable;
(11) if the principal of and interest, if any, on the Securities of that
series are to be payable, at the election of the Corporation or a Holder
thereof, in a currency or currency unit other than that in which the
Securities are denominated or stated to be payable, in accordance with
provisions in addition to or in lieu of or in accordance with the
provisions of Section 2.13, the period or periods within which (including
the Election Date), and the terms and conditions upon which, such election
may be made, and the time and manner of determining the exchange rate
between the currency or currency unit in which the Securities are
denominated or stated to be payable and the currency or currency unit in
which the Securities are to be so payable;
(12) the index, if any, used to determine the amount of payments of
principal of or interest, if any, on the Securities of that series;
(13) if the amount of payments of the principal of and interest, if any,
on the Securities of that series may be determined with reference to an
index based on a currency or currencies other than that in which the
Securities of that series are denominated, the manner in which such amounts
shall be determined;
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(14) if other than the full principal amount, the portion of the
principal amount of Securities of that series which shall be payable upon a
declaration of acceleration of the maturity pursuant to Section 6.02;
(15) if convertible into or exchangeable for Securities of another
series or other securities of the Corporation or another issuer, the terms
upon which the Securities of that series will be convertible into or
exchangeable for such securities;
(16) the right, if any, of the Corporation to redeem all or any part of
the Securities of that series before maturity and the period or periods
within which, the price or prices at which and the terms and conditions
upon which Securities of that series may be redeemed;
(17) the provisions, if any, restricting defeasance of the Securities of
that series;
(18) if other than or in addition to the events specified in Section
6.01, events of default with respect to the Securities of that series;
(19) if the Securities of that series are to be issued in whole or in
part in the form of one or more Global Securities, the Depositary for such
Global Security or Securities and whether beneficial owners of interests in
any such Global Securities may exchange such interests for other Securities
of such series in the manner provided in Section 2.07, and the manner and
the circumstances under which and the place or places where any such
exchanges may occur if other than in the manner provided in Section 2.07,
and any other terms of the series relating to the global nature of the
Securities of such series and the exchange, registration or transfer
thereof and the payment of any principal thereof or interest, if any,
thereon;
(20) the designation of the original Currency Determination Agent, if
any, with respect to the Securities of that series; and
(21) any other terms of or relating to the Securities of that series
(which terms shall not be inconsistent with the provisions of this
Indenture).
All Securities of any particular series shall be identical as to currency of
denomination and otherwise shall be substantially identical except as to
denomination and except as may otherwise be provided in or pursuant to the
relevant Board Resolution or Resolutions.
The Trustee need not authenticate the Securities in any series if their terms
impose on the Trustee duties in addition to those imposed on the Trustee by this
Indenture. If the Trustee does authenticate any such Securities, the
authentication will evidence the Trustee's agreement to comply with any such
additional duties.
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Each Depositary designated pursuant to this Section 2.03 for a Global Security
in registered form shall, if required, at the time of its designation and at all
times while it serves as a Depositary, be a clearing agency registered under the
Exchange Act and any other applicable statute or regulation.
SECTION 2.04. Registrar and Paying Agent. The Corporation shall maintain an
office or agency where Securities may be presented for registration of transfer
or for exchange ("Registrar") and an office or agency where Securities may be
presented for payment ("Paying Agent"). The Registrar shall keep a register of
the Securities and of their transfer and exchange. The Corporation may have one
or more co-registrars and one or more additional paying agents. The term "Paying
Agent" includes any additional paying agent. There may be separate Registrars
and Paying Agents for different series of Securities.
The Corporation shall enter into an appropriate agency agreement with any
Registrar, Paying Agent or co-registrar not a party to this Indenture. The
agreement shall implement the provisions of this Indenture that relate to such
Agent. The Corporation shall notify the Trustee of the name and address of any
such Agent. If the Corporation fails to maintain a Registrar or Paying Agent,
the Trustee shall act as such.
The Corporation initially appoints the Trustee as Registrar and Paying Agent.
SECTION 2.05. Paying Agent to Hold Money in Trust. Each Paying Agent for any
series of Securities shall hold in trust for the benefit of Holders of
Securities of the same series or the Trustee all money held by the Paying Agent
for the payment of principal of or interest, if any, on such Securities and
shall notify the Trustee of any default by the Corporation in making such
payment. If the Corporation or a Subsidiary acts as Paying Agent with respect to
a series of Securities, it shall segregate the money for that series and hold it
as a separate trust fund. The Corporation at any time may require a Paying Agent
to pay all money held by it to the Trustee. Upon doing so the Paying Agent shall
have no further liability for the money.
SECTION 2.06. Securityholder Lists. For each series of Securities, the Trustee
shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of Holders of Securities of that
series. If the Trustee is not the Registrar, the Corporation shall furnish or
cause to be furnished to the Trustee on or before each interest payment date for
each series of Securities and at such other times as the Trustee may request in
writing a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of Holders of Securities of that series.
SECTION 2.07. Transfer and Exchange. Where a Security (other than a Global
Security except as set forth herein) is presented to the Registrar or a co-
registrar with a request to register a transfer, the Registrar shall register
the transfer as requested if the requirements of Section 8-401(1) of the Uniform
Commercial Code (or any successor provision) are met. Where
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Securities (other than a Global Security except as set forth herein) of any
series are presented to the Registrar or a co-registrar with a request to
exchange them for an equal principal amount of Securities of other denominations
of the same series with identical terms as the Securities exchanged, the
Registrar shall make the exchange as requested if the same requirements are met.
To permit transfers and exchanges, the Trustee shall authenticate Securities at
the Registrar's request. The Corporation may charge a reasonable fee for any
transfer or exchange, but not for any exchange pursuant to Section 2.10, 3.07 or
9.05. The Corporation shall not be required to make transfers or exchanges of
Securities of any series for a period of 15 days before a selection of
Securities of the same series to be redeemed or before an interest payment.
Notwithstanding any other provision of this Section, unless and until it is
exchanged in whole or in part for Securities in definitive form, a Global
Security representing all or a portion of the Securities of a series may not be
transferred except as a whole by the Depositary for such series to a nominee of
such Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor Depositary for such series or a nominee of such successor Depositary.
None of the Corporation, the Trustee, the Paying Agent, the Registrar or any
co-registrar shall have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
If at any time the Depositary for the Securities of a series notifies the
Corporation that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for the Securities of
such series shall no longer be eligible under Section 2.03, the Corporation
shall appoint a successor Depositary with respect to the Securities of such
series. If a successor Depositary for the Securities of such series is not
appointed by the Corporation within 90 days after the Corporation receives such
notice or becomes aware of such ineligibility, the Corporation's election
pursuant to Section 2.03(19) shall no longer be effective with respect to the
Securities of such series and the Corporation will execute, and the Trustee,
upon receipt of an order of the Corporation for the authentication and delivery
of definitive Securities of such series, will authenticate and deliver
Securities of such series in definitive form in an aggregate principal amount
equal to the principal amount of the Global Security or Securities representing
such series in exchange for such Global Security or Securities.
The Corporation may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by such Global Security or Securities. In such
event the Corporation will execute, and the Trustee, upon receipt of an order of
the Corporation for the authentication and delivery of definitive Securities of
such series, will authenticate and deliver Securities of such series in
definitive form in an aggregate principal amount equal to the principal amount
of the Global Security or Securities representing such series in exchange for
such Global Security or Securities.
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If specified by the Corporation pursuant to Section 2.03 with respect to a
series of Securities, the Depositary for such series of Securities may surrender
a Global Security for such series of Securities in exchange in whole or in part
for the Securities of such series in definitive form on such terms as are
acceptable to the Corporation and such Depositary. Thereupon, the Corporation
shall execute, and the Trustee shall authenticate and deliver:
(1) to each party specified by such Depositary a new Security or
Securities of the same series, of any authorized denomination as requested
by such party in aggregate principal amount equal to and in exchange for
such party's beneficial interest in the Global Security; and
(2) to such Depositary a new Global Security in a denomination equal to
the difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of Securities delivered
to Holders thereof.
Upon the exchange of the Global Security for Securities in definitive form,
such Global Security shall be canceled by the Trustee. Securities issued in
exchange for a Global Security pursuant to this Section 2.07 shall be registered
in such names and in such authorized denominations as the Depositary for such
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Securities to the parties in whose names such Securities are so
registered.
SECTION 2.08. Replacement Securities. If the Holder of a Security claims that
the Security has been mutilated, destroyed, lost or stolen, the Corporation may
issue and the Trustee shall authenticate a replacement Security of the same
series with identical terms as the Securities exchanged if the requirements of
Section 8-405 of the Uniform Commercial Code (or any successor provision) are
met. Such Holder shall furnish an indemnity bond sufficient in the judgment of
the Corporation and the Trustee to protect the Corporation, the Trustee, the
Paying Agent, the Registrar and any co-registrar from any loss which any of them
may suffer if a Security is replaced. The Corporation and the Trustee may charge
for their expenses in replacing a Security.
In case any such mutilated, destroyed, lost or stolen Security has become due
and payable, the Corporation in its discretion may, instead of issuing a new
Security, pay such Security (without surrender thereof except in the case of a
mutilated Security) if the applicant for such payment shall furnish to the
Corporation, the Trustee, the Paying Agent, the Registrar and any co-registrar
for such Security such security or indemnity as may be required by them to hold
each of them harmless, and in case of destruction, loss or theft, evidence
satisfactory to the Corporation, the Trustee, the Paying Agent, the Registrar
and any co-registrar, and any agent of any of them, of the destruction, loss or
theft of such Security and the ownership thereof.
Upon the issuance of any new Security under this Section 2.08, the Corporation
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may
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be imposed in relation thereto and any other expenses (including all fees and
expenses of the Trustee, the Paying Agent, the Registrar and any co-registrar
for such Security) connected therewith.
Every new Security of any series issued pursuant to this Section 2.08 in lieu
of any destroyed, lost or stolen Security or in exchange for any mutilated
Security, shall constitute an original additional obligation of the Corporation,
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 the
same series.
The provisions of this Section 2.08 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 2.09. Outstanding Securities. Securities outstanding at any time are
all Securities authenticated by the Trustee (and, in the case of Global
Securities, endorsed by the Trustee) except for those canceled by it, those
delivered to it for cancellation and those described in this Section as not
outstanding. A Security does not cease to be outstanding because the
Corporation, or an affiliate of the Corporation holds the Security.
If a Security is replaced pursuant to Section 2.08, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent holds on a redemption date or maturity date money
sufficient to pay Securities payable on that date, then on and after that date
such Securities cease to be outstanding and interest on them ceases to accrue.
If a Security is called for redemption, the Corporation and the Trustee need
not treat the Security as outstanding in determining whether Holders of the
required principal amount of Securities have concurred in any direction, waiver
or consent.
SECTION 2.10. Temporary Securities. Until definitive Securities of any series
are ready for delivery or a permanent Global Security or Securities are
prepared, as the case may be, the Corporation may prepare and the Trustee shall
authenticate temporary Securities or one or more temporary Global Securities, as
the case may be, of the same series. Temporary Securities of any series shall be
substantially in the form of definitive Securities or permanent Global
Securities, as the case may be, of the same series, but may have variations that
the Corporation considers appropriate for temporary Securities. Without
unreasonable delay, the Corporation shall prepare and the Trustee shall
authenticate definitive Securities or a permanent Global Security or Securities,
as the case may be, of the same series in exchange for temporary Securities.
Until so exchanged, the temporary Securities of any series shall be entitled to
the same benefits under this Indenture as definitive Securities or permanent
Global Securities of such series.
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SECTION 2.11. Cancellation. The Corporation at any time may deliver Securities
to the Trustee for cancellation. The Registrar and the Paying Agent shall
forward to the Trustee any Securities surrendered to them for transfer, exchange
or payment. The Trustee and no one else shall cancel or destroy all Securities
surrendered for transfer, exchange, payment or cancellation, and shall so
certify to the Corporation. The Corporation may not issue new Securities to
replace Securities it has paid or it has delivered to the Trustee for
cancellation.
SECTION 2.12. Defaulted Interest. If the Corporation defaults in a payment of
interest on any Securities of any series, it shall pay the defaulted interest to
the persons who are Holders of those Securities on a subsequent special record
date. The Corporation shall fix the special record date and the payment date in
respect thereof. At least 15 days before the special record date, the
Corporation shall mail to each Holder of Securities of that series a notice that
states the special record date, the payment date and the amount of defaulted
interest to be paid. The Corporation may pay defaulted interest in any other
lawful manner.
SECTION 2.13. Currency and Manner of Payments in Respect of Securities. (a)
With respect to Securities of any series not permitting the election provided
for in paragraph (b) below or the Holders of which have not made the election
provided for in paragraph (b) below, except as provided in paragraph (d) below,
payment of the principal of and interest, if any, on any Security of such series
will be made in the currency or currency unit in which such Security is payable.
(b) It may be provided pursuant to Section 2.03 with respect to Securities of
any series that Holders shall have the option, subject to paragraphs (d) and (e)
below, to receive payments of principal of or interest, if any, on such
Securities in any of the currencies or currency units which may be designated
for such election by delivering to the Trustee for such series of Securities a
written election with signature guarantees and in form and substance
satisfactory to such Trustee, not later than the close of business on the
Election Date immediately preceding the applicable payment date. If a Holder so
elects to receive such payments in any such currency or currency unit, such
election will remain in effect for such Holder until changed by such Holder by
written notice to the Trustee for such series of Securities (but any such change
must be made not later than the close of business on the Election Date
immediately preceding the next payment date to be effective for the payment to
be made on such payment date and no such change of election may be made with
respect to payments to be made on any Security of such series with respect to
which an Event of Default has occurred or notice of redemption has been given by
the Corporation pursuant to Article 3). In the event any Holder makes any such
election pursuant to the preceding sentence, such election will not be effective
on any transferee of such Holder and such transferee shall be paid in the
currency or currency unit indicated pursuant to paragraph (a) above unless such
transferee makes an election pursuant to the preceding sentence; provided,
however, that such election, if in effect while funds are on deposit with
respect to the Securities of such series as described in Section 8.01, 8.02 or
8.03, will be effective on any
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transferee of such Holder unless otherwise specified pursuant to Section 2.03
for the Securities of such series. Any Holder of any such Security who shall not
have delivered any such election to the Trustee of such series of Securities not
later than the close of business on the applicable Election Date will be paid
the amount due on the applicable payment date in the relevant currency or
currency unit as provided in paragraph (a) of this Section. In no case may a
Holder of Securities of any series elect to receive payments in any currency or
currency unit as described in this Section 2.13(b) following a deposit of funds
with respect to the Securities of such series as described in Section 8.01, 8.02
or 8.03.
(c) If the election referred to in paragraph (b) above has been provided for
pursuant to Section 2.03, then not later than the fourth Business Day after the
Election Date for each payment date for Securities of any series, the Currency
Determination Agent for that series will deliver to the Corporation a written
notice specifying, in the currency or currency unit in which Securities of such
series are payable, the respective aggregate amounts of principal of and
interest, if any, on the Securities to be made on such payment date, and
specifying the amounts in such currency or currency unit so payable with respect
to the Securities of such series as to which the Holders thereof shall have
elected to be paid in a currency or currency unit other than that in which such
series is denominated as provided in paragraph (b) above. If the election
referred to in paragraph (b) above has been provided for pursuant to Section
2.03 and if at least one Holder has made such election, then, on the second
Business Day preceding such payment date the Corporation will deliver to the
Trustee for such series of Securities an Exchange Rate Officers' Certificate
with respect to the Dollar, Foreign Currency or currency unit payments to be
made on such payment date. The Dollar, Foreign Currency or currency unit amount
receivable by Holders of Securities who have elected payment in a currency or
currency unit as provided in paragraph (b) above shall, unless otherwise
provided pursuant to Section 2.03, be determined by the Corporation on the basis
of the applicable Market Exchange Rate in effect on the third Business Day (the
"Valuation Date") immediately preceding each payment date.
(d) If a Conversion Event occurs with respect to a Foreign Currency or any
currency unit in which any of the Securities are denominated or payable other
than pursuant to an election provided for pursuant to paragraph (b) above, then
with respect to each date for the payment of principal of and interest, if any,
on the applicable Securities denominated or payable in such Foreign Currency or
such currency unit occurring after the last date on which such Foreign Currency
or such currency unit was available (the "Conversion Date"), the Dollar shall be
the currency of payment for use on each such payment date. The Dollar amount to
be paid by the Corporation to the Trustee of each such series of Securities and
by such Trustee or any Paying Agent to the Holders of such Securities with
respect to such payment date shall be the amount that would have been payable in
Foreign Currency or currency units but expressed in Dollars according to the
Dollar Equivalent of the Foreign Currency or, in the case of a currency unit,
the Dollar Equivalent of the Currency Unit, in each case as determined by the
Currency Determination Agent in the manner provided in paragraph (f) or (g)
below.
(e) If the Holder of a Security denominated in any currency or currency unit
shall
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have elected to be paid in another currency or currency unit as provided in
paragraph (b) above, and a Conversion Event occurs with respect to such elected
currency or currency unit, such Holder shall receive payment in the currency or
currency unit in which payment would have been made in the absence of such
election. If a Conversion Event occurs with respect to the currency or currency
unit in which payment would have been made in the absence of such election, such
Holder shall receive payment in Dollars as provided in paragraph (d) above.
(f) The "Dollar Equivalent of the Foreign Currency" shall be determined by the
Currency Determination Agent and shall be obtained for each subsequent payment
after the Conversion Date by converting the specified Foreign Currency into
Dollars at the Market Exchange Rate on the Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be determined by the
Currency Determination Agent and subject to the provisions of paragraph (h)
below shall be the sum of each amount obtained by converting the Specified
Amount of each Component Currency into Dollars at the Market Exchange Rate for
such Component Currency on the Valuation Date with respect to each payment.
(h) For purposes of this Section 2.13 the following terms shall have the
following meanings:
A "Component Currency" shall mean any currency which, on the Conversion Date,
was a component currency of the relevant currency unit.
A "Specified Amount" of a Component Currency shall mean the number of units of
such Component Currency or fractions thereof which were represented in the
relevant currency unit on the Conversion Date. If after the Conversion Date the
official unit of any Component Currency is altered by way of combination or
subdivision, the Specified Amount of such Component Currency shall be divided or
multiplied in the same proportion. If after the Conversion Date two or more
Component Currencies are consolidated into a single currency, the respective
Specified Amounts of such Component Currencies shall be replaced by an amount in
such single currency equal to the sum of the respective Specified Amounts of
such consolidated Component Currencies expressed in such single currency, and
such amount shall thereafter be a Specified Amount and such single currency
shall thereafter be a Component Currency. If after the Conversion Date any
Component Currency shall be divided into two or more currencies, the Specified
Amount of such Component Currency shall be replaced by amounts of such two or
more currencies, each of whose Dollar Equivalent at the Market Exchange Rate on
the date of such replacement shall be equal to the Dollar Equivalent of the
Specified Amount of such former Component Currency at the Market Exchange Rate
on such date divided by the number of currencies into which such Component
Currency was divided, and such amounts shall thereafter be Specified Amounts and
such currencies shall thereafter be Component Currencies. If, after the
Conversion Date of the relevant currency unit a Conversion Event (other than any
event referred to above in this definition of "Specified Amount") occurs with
respect to any
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Component Currency of such currency unit and is continuing on the applicable
Valuation Date, the Specified Amount of such Component Currency shall, for
purposes of calculating the Dollar Equivalent of the Currency Unit, be converted
into Dollars at the Market Exchange Rate in effect on the Conversion Date of
such Component Currency.
"Election Date" shall mean any date for any series of Securities as specified
pursuant to Section 2.03(11) by which the written election referred to in
Section 2.13(b) may be made, such date to be not later than the regular record
date for the earliest payment for which such election may be effective.
All decisions and determinations of the Currency Determination Agent regarding
the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the
Currency Unit, the Market Exchange Rate and changes in the Specified Amounts as
specified above shall be in its sole discretion and shall, in the absence of
manifest error, be conclusive for all purposes and irrevocably binding upon the
Corporation, the Trustee for the appropriate series of Securities and all
Holders of such Securities denominated or payable in the relevant currency or
currency units. The Currency Determination Agent shall promptly give written
notice to the Corporation and the Trustee for the appropriate series of
Securities of any such decision or determination.
In the event of a Conversion Event with respect to a Foreign Currency, the
Corporation, after learning thereof, will immediately give written notice
thereof to the Trustee of the appropriate series of Securities and the Currency
Determination Agent with respect to such series (and such Trustee will promptly
thereafter give notice to the Holders) specifying the Conversion Date. In the
event of a Conversion Event with respect to any currency unit in which
Securities are denominated or payable, the Corporation, after learning thereof,
will immediately give written notice thereof to the Trustee of the appropriate
series of Securities and the Currency Determination Agent with respect to such
series (and such Trustee will promptly thereafter give notice to the Holders)
specifying the Conversion Date and the Specified Amount of each Component
Currency on the Conversion Date. In the event of any subsequent change in any
Component Currency as set forth in the definition of Specified Amount above, the
Corporation, after learning thereof, will similarly give written notice to the
Trustee of the appropriate series of Securities and the Currency Determination
Agent.
The Trustee of the appropriate series of Securities shall be fully justified
and protected in relying and acting upon information received by it from the
Corporation and the Currency Determination Agent and shall not otherwise have
any duty or obligation to determine such information independently.
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SECTION 2.14. Appointment and Resignation of Currency Determination Agent. (a)
If and so long as the Securities of any series (i) are denominated in a currency
unit or a currency other than Dollars or (ii) may be payable in a currency unit
or a currency other than Dollars, or so long as it is required under any other
provision of this Indenture, then the Corporation will maintain with respect to
each such series of Securities, or as so required, a Currency Determination
Agent. The Corporation will cause the Currency Determination Agent to make the
necessary foreign exchange determinations at the time and in the manner
specified pursuant to Section 2.03 for the purpose of determining the applicable
rate of exchange and for the purpose of converting the issued currency or
currency unit into the applicable payment currency or currency unit for the
payment of principal and interest, if any, pursuant to Section 2.13.
(b) No resignation of the Currency Determination Agent and no appointment of a
successor Currency Determination Agent pursuant to this Section shall become
effective until the acceptance of appointment by the successor Currency
Determination Agent as evidenced by a written instrument delivered to the
Corporation and the Trustee of the appropriate series of Securities accepting
such appointment executed by the successor Currency Determination Agent.
(c) If the Currency Determination Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the Currency
Determination Agent for any cause, with respect to the Securities of one or more
series, the Corporation, by a Board Resolution, shall promptly appoint a
successor Currency Determination Agent or Currency Determination Agents with
respect to the Securities of that or those series (it being understood that any
such successor Currency Determination Agent may be appointed with respect to the
Securities of one or more or all of such series and that at any time there shall
only be one Currency Determination Agent with respect to the Securities of any
particular series).
ARTICLE 3
REDEMPTION
SECTION 3.01. Applicability of this Article. Securities of any series that are
redeemable at the option of the Corporation prior to their maturity shall be
redeemable in accordance with their terms (except as otherwise specified in this
Indenture for Securities of any series) and in accordance with this Article 3.
SECTION 3.02. Notices to Trustee. If the Corporation wants to redeem any
Securities, it shall notify the Trustee of the redemption date and the principal
amount of Securities to be redeemed in accordance with the terms of the
Securities. If the redemption is of less than all the outstanding Securities of
a series, the Corporation shall furnish to the Trustee a written statement
signed by an Officer of the Corporation stating that with respect to that series
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there exists no Event of Default and no circumstance which, after notice or the
passage of time or both, would constitute an Event of Default. The Corporation
shall give the notice provided for in this Section at least 50 days before the
redemption date.
SECTION 3.03. Selection of Securities to be Redeemed. If, at the option of the
Corporation, less than all the Securities of a series are to be redeemed, the
Trustee shall select the Securities to be redeemed by a method the Trustee
considers fair and appropriate, subject to any applicable stock exchange
requirements. The Trustee shall make the selection from outstanding Securities
not previously called for redemption. The Trustee may select for redemption
portions of the principal of Securities that have a denomination larger than
$1,000 (or the applicable minimum denomination for such Securities in the event
the Securities are payable in a Foreign Currency or Currencies). Securities and
portions of them it selects shall be in amounts of $1,000 (or the applicable
minimum denomination for such Securities in the event the Securities are payable
in a Foreign Currency or Currencies) or a multiple of $1,000 (or the applicable
minimum denomination for such Securities in the event the Securities are payable
in a Foreign Currency or Currencies). Provisions of this Indenture that apply to
Securities called for redemption also apply to portions of Securities called for
redemption.
The Trustee for the Securities of any series to be redeemed shall promptly
notify the Corporation in writing of the Securities of such series 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 Security 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 3.04. Notice of Redemption. At least 20 days but not more than 60 days
before a date of redemption of Securities at the option of the Corporation, the
Corporation shall mail a notice of redemption by first-class mail to each Holder
of Securities to be redeemed.
The notice shall identify the Securities to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price; and
(5) that interest, if any, on Securities called for redemption ceases to
accrue on and after the redemption date.
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At the Corporation's request, the Trustee shall give the notice of redemption
in the Corporation's name and at its expense. In such event the Corporation
will provide the Trustee with the information required by clauses (1) through
(5) above.
SECTION 3.05. Effect of Notice of Redemption. Once notice of redemption is
mailed, Securities called for redemption become due and payable on the
redemption date and at the redemption price stated in the notice. Upon surrender
to the Paying Agent, such Securities shall be paid at the redemption price
stated in the notice, plus accrued interest, if any, to the redemption date;
provided, however, that any regular payment of interest becoming due on the
redemption date shall be payable to the Holder of any such Security being
redeemed as provided in the Security.
SECTION 3.06. Deposit of Redemption Price. By the opening of business on the
redemption date, the Corporation shall deposit with the Paying Agent money
sufficient to pay the redemption price of and accrued interest, if any, on all
Securities to be redeemed at the option of the Corporation on that date.
SECTION 3.07. Securities Redeemed in Part. Upon surrender of a Security that
is redeemed in part, the Trustee shall authenticate for the Holder a new
Security equal in principal amount to the unredeemed portion of the Security
surrendered.
ARTICLE 4
COVENANTS
SECTION 4.01. Certain Definitions. "Attributable Debt" for a lease means the
carrying value of the capitalized rental obligation determined under generally
accepted accounting principles. The carrying value may be reduced by the
capitalized value of the rental obligations, calculated on the same basis, that
any sublessee has for all or part of the same property. This term does not
include any obligation to make payments arising from the transfer of tax
benefits under the Economic Recovery Tax Act of 1981 (as it may from time to
time be amended, or any successor statute) to the extent such obligation is
offset by or conditioned upon receipt of payments from another person. A lease
obligation shall be counted only once even if the Corporation and one or more of
its Subsidiaries may be responsible for the obligation.
"Consolidated Net Tangible Assets" means total assets less (1) total current
liabilities (excluding any Debt which, at the option of the borrower, is
renewable or extendable to a term exceeding 12 months and which is included in
current liabilities and further excluding any deferred income taxes which are
included in current liabilities) and (2) goodwill, patents and trademarks, all
as reflected in the Corporation's most recent consolidated balance sheet
preceding the date of a determination under Section 4.03(11).
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"Debt" means all indebtedness for borrowed money reported as debt in the
consolidated financial statements or any guarantee of such a debt and includes
purchase money obligations. This term does not include any obligation to make
payments arising from the transfer of tax benefits under the Economic Recovery
Tax Act of 1981 (as it may from time to time be amended, or any successor
statute) to the extent such obligation is offset by or conditioned upon receipt
of payments from another person. A Debt shall be counted only once even if the
Corporation and one or more of its Subsidiaries may be responsible for the
obligation.
"Lien" means any mortgage, pledge, security interest or lien. This term does
not include any obligation arising from the transfer of tax benefits under the
Economic Recovery Tax Act of 1981 (as it may from time to time be amended, or
any successor statute) to the extent such obligation is offset by or conditioned
upon receipt of payments from another person.
"Long-Term Debt" means Debt that by its terms matures on a date more than 12
months after the date it was created or Debt that the obligor may extend or
renew without the obligee's consent to a date more than 12 months after the Debt
was created.
"Principal Property" means, as to any particular series of Securities, any
manufacturing facility located in the United States and owned by the Corporation
or by one or more Restricted Subsidiaries from the date Securities of that
series are first issued and which has, as of the date the Lien is incurred, a
net book value (after deduction of depreciation and other similar charges)
greater than 3% of Consolidated Net Tangible Assets, except (1) any such
facility or property which is financed by obligations of any State, political
subdivision of any State or the District of Columbia under terms which permit
the interest payable to the holders of the obligations to be excluded from gross
income as a result of the plant, facility or property satisfying the conditions
of Section 103(b)(4)(C), (D), (E), (F) or (H) of the Internal Revenue Code of
1954, as amended, Section 103(b)(6) of the Internal Revenue Code of 1954, as
amended, Section 142(a) or Section 144(a) of the Internal Revenue Code of 1986,
or of any successors to such provisions, or (2) any such facility or property
which, in the opinion of the Board of Directors of the Corporation, is not of
material importance to the total business conducted by the Corporation and its
Subsidiaries taken as a whole. However, the Chief Executive Officer or Chief
Financial Officer of the Corporation may at any time declare any manufacturing
facility or other property to be a Principal Property by delivering a
certificate to that effect to the Trustee.
"Restricted Property" means, as to any particular series of Securities, any
Principal Property, any Debt of a Restricted Subsidiary owned by the Corporation
or a Restricted Subsidiary on the date Securities of that series are first
issued or secured by a Principal Property (including any property received upon
a conversion or exchange of such Debt), or any shares of stock of the
Corporation or a Restricted Subsidiary owned by the Corporation or a Restricted
Subsidiary (including any property or shares received upon a conversion, stock
split or other distribution with respect to the ownership of such stock).
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"Restricted Subsidiary" means a Subsidiary that has substantially all its
assets located in, or carries on substantially all its business in, the United
States and that owns a Principal Property. Notwithstanding the preceding
sentence, a Subsidiary shall not be a Restricted Subsidiary during such period
of time as it (or any corporation (other than the Corporation) or other entity
that, directly or indirectly, beneficially owns a majority of the Voting Stock
of the Subsidiary) has shares of capital stock registered under the Exchange Act
or it files reports and other information with the SEC pursuant to Section 13 or
15(d) of the Exchange Act.
"Sale-Leaseback Transaction" means an arrangement whereby the Corporation or a
Restricted Subsidiary now owns or hereafter acquires a Principal Property,
transfers it to a person and contemporaneously leases it back from the person.
This term does not include any transaction arising from the transfer of tax
benefits under the Economic Recovery Tax Act of 1981 (as it may from time to
time be amended, or any successor statute) to the extent the obligation to make
rental payments is offset or conditioned upon receipt of payments from another
person.
"Subsidiary" means a corporation a majority of the Voting Stock of which is
owned by the Corporation, the Corporation and one or more Subsidiaries, or one
or more Subsidiaries.
"United States" means the United States of America. The Commonwealth of
Puerto Rico, the Virgin Islands and other territories and possessions are not
part of the United States.
"Voting Stock" means capital stock having voting power under ordinary
circumstances to elect directors.
SECTION 4.02. Payment of Securities. The Corporation shall promptly pay the
principal of and interest, if any, on the Securities on the dates and in the
manner provided in the Securities.
To the extent lawful, the Corporation shall pay interest, if any, on overdue
principal at the rate borne by the Securities and shall pay interest, if any, on
overdue installments of interest at the same rate.
SECTION 4.03. Limitation on Liens. The Corporation shall not, and shall not
permit any Restricted Subsidiary to, incur a Lien on Restricted Property to
secure a Debt unless:
(1) the Lien equally and ratably secures the Securities and the Debt.
The Lien may equally and ratably secure the Securities and any other
obligation of the Corporation or a Subsidiary. The Lien may not secure an
obligation of the Corporation that is subordinated to any Securities; or
(2) the Lien is on property, Debt or shares of stock of a corporation at
the time such corporation becomes a Restricted Subsidiary; or
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(3) the Lien is on property at the time the Corporation or a Restricted
Subsidiary acquires the property. However, the Lien may not extend to any
other Restricted Property owned by the Corporation or a Restricted Subsidiary
at the time the property is acquired; or
(4) the Lien secures the payment of all or any part of the purchase
price of property upon the acquisition of such property by the Corporation or
a Restricted Subsidiary or secures any Debt incurred or guaranteed by the
Corporation or a Restricted Subsidiary prior to, at the time of, or within one
year after the later of the acquisition, completion of construction (including
any improvements on an existing property) or commencement of full operation of
such property, which Debt is incurred or guaranteed for the purpose of
financing all or any part of the purchase price thereof or construction or
improvements thereon, and which Debt may be in the form of obligations
incurred in connection with industrial revenue bonds or similar financings and
letters of credit issued in connection therewith; provided, however, that in
the case of any such acquisition, construction or improvement the Lien shall
not apply to any property theretofore owned by the Corporation or a Restricted
Subsidiary, other than, in the case of any such construction or improvement,
any theretofore unimproved real property on which the property so constructed
or the improvement made is located; or
(5) the Lien secures Debt of a Restricted Subsidiary owed to the
Corporation or another Restricted Subsidiary; or
(6) the Lien is on property of a corporation or other entity at the time
such corporation or other entity merges into, or consolidates or enters into a
share exchange with, the Corporation or a Restricted Subsidiary; or
(7) the Lien is on property of a person at the time the person transfers
or leases all or substantially all its assets to the Corporation or a
Restricted Subsidiary; or
(8) the Lien is in favor of any customer (including any government or
governmental authority) to secure partial, progress, advance or other payments
or performance pursuant to any contract or statute or to secure any related
indebtedness or to secure Debt guaranteed by a government or governmental
authority; or
(9) the Lien arises pursuant to any order of attachment, distraint or
similar legal process arising in connection with court proceedings so long as
the execution or other enforcement thereof is effectively stayed and the
claims secured thereby are being contested in good faith by appropriate
proceedings or the Lien is a materialmen's, suppliers', tax or other similar
Lien arising in the ordinary course of business securing obligations which are
not overdue or are being contested in good faith by appropriate proceedings;
or
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(10) as to any particular series of Securities, the Lien extends, renews
or replaces in whole or in part a Lien ("existing Lien") permitted by any of
the clauses (1) through (9) or a Lien existing on the date that Securities of
such series are first issued. The Lien may not extend beyond the property
subject to the existing Lien. The Debt secured by the Lien may not exceed the
Debt secured at the time by the existing Lien unless the existing Lien or a
predecessor Lien was incurred under clause (1) or (5); or
(11) the Debt secured by the Lien plus all other Debt secured by Liens
on Restricted Property, excluding Debt secured by a Lien permitted by any of
the clauses (1) through (10) and any Debt secured by a Lien existing at the
date of this Indenture, at the time does not exceed 10% of Consolidated Net
Tangible Assets. Attributable Debt for any lease entered into under clause (4)
of Section 4.04 shall be included in the determination and treated as Debt
secured by a Lien on Restricted Property not otherwise permitted by any of the
clauses (1) through (10).
SECTION 4.04. Limitation on Sale-Leaseback Transactions. The Corporation shall
not, and shall not permit any Restricted Subsidiary to, enter into a Sale-
Leaseback Transaction unless:
(1) the lease has a term of three years or less; or
(2) the lease is between the Corporation and a Restricted Subsidiary or
between Restricted Subsidiaries; or
(3) the Corporation or a Restricted Subsidiary under clauses (2) through
(10) of Section 4.03 could create a Lien on the property to secure Debt at
least equal in amount to the Attributable Debt for the lease; or
(4) the Corporation or a Restricted Subsidiary under clause (11) of
Section 4.03 could create a Lien on the property to secure Debt at least equal
in amount to the Attributable Debt for the lease; or
(5) the Corporation or a Subsidiary owns or acquires other property
which will be made a Principal Property and is determined by the Board of
Directors of the Corporation to have a fair value equal to or greater than the
Attributable Debt incurred; or
(6) (A) the Corporation or a Restricted Subsidiary makes an optional
prepayment in cash of its Debt at least equal in amount to the Attributable
Debt for the lease,
(B) the prepayment is made within 120 days of the effective date of
the lease,
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(C) the Debt prepaid is not owned by the Corporation or a Restricted
Subsidiary, and
(D) the Debt prepaid was Long-Term Debt at the time it was created.
SECTION 4.05. No Lien Created, etc. This Indenture and the Securities do not
create a Lien, charge or encumbrance on any property of the Corporation or any
Subsidiary.
SECTION 4.06. Compliance Certificate. The Corporation shall deliver to the
Trustee within 120 days after the end of each fiscal year of the Corporation an
Officers' Certificate stating whether or not the signers know of any default by
the Corporation in performing their covenants in Section 4.03 or 4.04. If they
do know of such a default, the certificate shall describe the default. The
certificate need not comply with Section 10.05.
SECTION 4.07. SEC Reports. The Corporation shall file with the Trustee within
15 days after it files them with the SEC copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the SEC may by rules and regulations prescribe) which the
Corporation is required to file with the SEC pursuant to Section 13 or Section
15(d) of the Exchange Act. The Corporation also shall comply with the other
provisions of TIA Section 314(a).
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01. When the Corporation May Merge, etc. The Corporation shall not
consolidate with or merge into, or transfer all or substantially all its assets
to another corporation, unless (1) the resulting, surviving or transferee
corporation assumes by supplemental indenture all the obligations of the
Corporation under the Securities and this Indenture, (2) immediately after
giving effect to such transaction no Event of Default and no circumstances
which, after notice or lapse of time or both, would become an Event of Default,
shall have happened and be continuing, and (3) the Corporation shall have
delivered to the Trustee an Officers' Certificate and an Opinion of Counsel,
each stating that such consolidation, merger or transfer and such supplemental
indenture comply with this Indenture, and thereafter all such obligations of the
Corporation shall terminate.
SECTION 5.02. When Securities Must be Secured. If upon any such consolidation,
merger or transfer a Restricted Property would become subject to an attaching
Lien that secures Debt, then, before the consolidation, merger or transfer
occurs, the Corporation by supplemental
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indenture shall secure the Securities by a direct lien on the Restricted
Property. The direct Lien shall have priority over all Liens on the Restricted
Property except those already on it. The direct Lien may equally and ratably
secure the Securities and any other obligation of the Corporation or a
Subsidiary. However, the Corporation need not comply with this Section if:
(1) upon the consolidation, merger or transfer the attaching Lien will
secure the Securities equally and ratably with or prior to Debt secured by
the attaching Lien; or
(2) the Corporation or a Restricted Subsidiary under any of the clauses
(2) through (11) of Section 4.03 could create a Lien on the Restricted
Property to secure Debt at least equal in amount to that secured by the
attaching Lien.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default. An "Event of Default" occurs with respect to
a series of Securities if:
(1) the Corporation defaults in the payment of interest on any Security
of that series when the same becomes due and payable and the default continues
for a period of 30 days;
(2) the Corporation defaults in the payment of the principal of any
Security of that series when the same becomes due and payable at maturity,
upon redemption or otherwise;
(3) the Corporation fails to comply with any of its other agreements in
the Securities of that series or this Indenture for the benefit of that series
and the default continues for the period and after the notice specified in
this Section;
(4) the Corporation pursuant to or within the meaning of any Bankruptcy
Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in an
involuntary case,
(C) consents to the appointment of a Custodian of it or for all or
substantially all of its property, or
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(D) makes a general assignment for the benefit of its creditors;
(5) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Corporation in an involuntary case,
(B) appoints a Custodian of the Corporation or for all or
substantially all of the property of the Corporation, or
(C) orders the winding up or liquidation of the Corporation,
and the order or decree remains unstayed and in effect for 90 days; or
(6) there occurs any other event specifically described as an Event of
Default by the Securities of that series.
The term "Bankruptcy Law" means Title 11, United States Code, or any similar
Federal or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator, custodian or similar official under any
Bankruptcy Law.
A default under clause (3) is not an Event of Default with respect to a series
of Securities until the Trustee or the Holders of at least 25% in principal
amount of the Securities of that series notify the Corporation of the default
and the Corporation does not cure the default within 90 days after receipt of
the notice. The notice must specify the default, demand that it be remedied and
state that the notice is a "Notice of Default." Subject to Sections 7.01 and
7.02 the Trustee shall not be charged with knowledge of any default unless
written notice thereof shall have been given to the Trustee by the Corporation,
the Paying Agent, the Holder of a Security or an agent of such Holder.
SECTION 6.02. Acceleration. If an Event of Default with respect to a series of
Securities occurs and is continuing, the Trustee, by notice to the Corporation
or the Holders of at least 25% in principal amount of the Securities of that
series by notice to the Corporation and the Trustee, may declare the principal
(or, in the case of Discounted Securities, such amount of principal as may be
provided for in such Securities) of and accrued interest, if any, on all the
Securities of that series to be due and payable immediately. Upon such a
declaration such principal and interest, if any, shall be due and payable
immediately. The Holders of a majority in principal amount of the Securities of
any series by notice to the Trustee may rescind an acceleration (and upon such
rescission any Event of Default caused by such acceleration shall be deemed
cured) with respect to that series and its consequences if all existing Events
of Default with respect to the series have been cured or waived, if the
rescission would not conflict with any judgment or decree, and if all payments
due to the Trustee and any predecessor Trustee under Section 7.07 have been
made.
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SECTION 6.03. Other Remedies. If an Event of Default with respect to a series
of Securities occurs and is continuing, the Trustee may pursue any available
remedy by proceeding at law or in equity to collect the payment of principal of
(or, in the case of Discounted Securities, such amount of principal as may be
provided for in such Securities) or interest, if any, on the Securities of that
series or to enforce the performance of any provision of such Securities or this
Indenture.
The Trustee may maintain a proceeding even if it does not possess any of the
Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
SECTION 6.04. Waiver of Past Defaults. Subject to Section 9.02 the Holders of
a majority in principal amount of the Securities of a series by notice to the
Trustee may waive an existing Default or Event of Default with respect to that
series and its consequences. When a Default or Event of Default is waived, it is
cured and stops continuing, but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereto.
SECTION 6.05. Control by Majority. The Holders of a majority in principal
amount of the Securities of a series may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on it with respect to that series.
However, the Trustee may refuse to follow any direction that conflicts with law
or this Indenture, or, subject to Section 7.01, that the Trustee determines is
unduly prejudicial to the rights of other Holders of Securities of the same
series or would involve the Trustee in personal liability.
SECTION 6.06. Limitation on Suits. No Holder of a Security of any series may
pursue any remedy with respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice stating that an Event
of Default with respect to the Securities of the series is continuing;
(2) the Holders of at least 25% in principal amount of the Securities of
that series make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity satisfactory
to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
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(5) during such 60-day period the Holders of a majority in principal
amount of the Securities of that series do not give the Trustee a direction
inconsistent with the request.
A Securityholder may not use this Indenture to prejudice the rights of another
Securityholder or to obtain a preference or priority over any other
Securityholder.
SECTION 6.07. Rights of Holders to Receive Payment. Notwithstanding any other
provision of this Indenture, the right of any Holder to receive payment of
principal of and interest, if any, on the Security on or after the respective
due dates expressed in the Security, or to bring suit for the enforcement of any
such payment on or after such respective date, shall not be impaired or affected
without the consent of the Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of Default in payment of
interest or principal specified in Section 6.01(1) or (2) occurs and is
continuing, subject to Sections 6.02 and 6.04 the Trustee may recover judgment
in its own name and as trustee of an express trust against the Corporation for
the whole amount of principal and interest, if any, remaining unpaid.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may file such
proofs of claim and other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee and the Securityholders allowed in
any judicial proceedings relative to the Corporation, or any of its creditors or
property, and unless prohibited by law or applicable regulations, may vote on
behalf of the Holders in any election of a trustee in bankruptcy or other person
performing similar functions.
SECTION 6.10. Priorities. If the Trustee collects any money pursuant to this
Article with respect to the Securities of any series, it shall pay out the money
in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Holders of Securities of that series for amounts due and
unpaid on such Securities for principal and interest, if any, ratably, without
preference or priority of any kind, according to the amounts due and payable
on such Securities for principal and interest, if any, respectively; and
Third: to the Corporation.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section.
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SECTION 6.11. 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 or omitted by it as Trustee, a court in its discretion may require
the filing by any party litigant in the suit other than the Trustee of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in the suit including the Trustee, having due regard to the merits and
good faith of the claims or defenses made by the party litigant. This Section
does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section
6.07 or a suit by Holders of more than 10% in principal amount of the Securities
of any series.
ARTICLE 7
TRUSTEE
SECTION 7.01. Duties of Trustee. (a) If an Event of Default has occurred and
is continuing, the Trustee shall with respect to Securities exercise its rights
and powers and use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that are specifically set
forth in this Indenture and no others; and
(2) in the absence of bad faith on its part, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates, notices or opinions furnished to the
Trustee and conforming to the requirements of this Indenture. However, the
Trustee shall examine the certificates, notices and opinions to determine
whether or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct, except
that:
(1) this paragraph does not limit the effect of paragraph (b) of this
Section;
(2) the Trustee shall not be liable for any error of judgment made in good
faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it takes or
omits to
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take in good faith in accordance with a direction received by it pursuant
to Section 6.05.
(d) Every provision of this Indenture that in any way relates to the Trustee
is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee may refuse to perform any duty or exercise any right or power
unless it receives indemnity satisfactory to it against any loss, liability or
expense.
(f) The Trustee shall not be liable for interest on any money received by it
except as the Trustee may agree with the Corporation.
SECTION 7.02. Rights of Trustee. (a) Subject to Section 7.01 the Trustee may
rely on any document believed by it to be genuine and to have been signed or
presented by the proper person. The Trustee need not investigate any fact or
matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on the
Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take
in good faith which it believes to be authorized or within its rights or powers.
SECTION 7.03. Individual Rights of Trustee, etc. The Trustee in its individual
or any other capacity may become the owner or pledgee of Securities and may
otherwise deal with the Corporation or any of its affiliates with the same
rights it would have if it were not Trustee. Any Agent may do the same with like
rights. However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer. The Trustee makes no representations as to
the validity or adequacy of this Indenture or the Securities, it shall not be
accountable for the Corporation's use of the proceeds from the Securities, and
it shall not be responsible for any statement in the Securities other than its
certificate of authentication.
SECTION 7.05. Notice of Defaults. If a Default occurs with respect to a series
of Securities and is continuing and if it is known to the Trustee, the Trustee
shall mail to each Holder of Securities of that series notice of the Default
within 90 days after it occurs. Except in the case of a default in payment on
any Security, the Trustee may withhold the notice if and so long as a committee
of its Trust Officers in good faith determines that withholding the notice is in
the interests of such Holders.
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SECTION 7.06. Reports by Trustee to Holders. If required pursuant to TIA
Section 313(a), the Trustee, within 60 days after each May 15, shall mail to
each Securityholder a brief report dated as of May 15 that complies with TIA
Section 313(a). The Trustee also shall comply with the reporting obligations of
TIA Section 313(b).
A copy of each report at the time of its mailing to Securityholders shall be
filed with the SEC and each stock exchange on which the Securities are listed.
The Corporation agrees to notify the Trustee whenever the Securities become
listed on any stock exchange.
SECTION 7.07. Compensation and Indemnity. The Corporation shall pay to the
Trustee from time to time reasonable compensation for its services. The
Corporation shall reimburse the Trustee upon request for all reasonable out-of-
pocket expenses incurred by it. Such expenses shall include the reasonable
compensation and expenses of the Trustee's agents and counsel. The Corporation
shall indemnify the Trustee against any loss or liability incurred by it in
connection with the administration of this trust and its duties hereunder. The
Trustee shall notify the Corporation promptly of any claim for which it may seek
indemnity. The Corporation need not pay for any settlement made without its
consent. The Corporation need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee through negligence or bad faith.
To secure the Corporation's payment obligations in this Section, the Trustee
shall have a senior claim to which the Securities are hereby made subordinate on
all money or property held or collected by the Trustee, except that held in
trust to pay principal of and interest, if any, on particular Securities.
When the Trustee incurs expenses or renders services after an Event of Default
specified in Section 6.01(4) or (5) occurs, the expenses and the compensation
for the services are intended to constitute expenses of administration under any
Bankruptcy Law.
SECTION 7.08. Replacement of Trustee. The Trustee may resign with respect to
the Securities of one or more series by so notifying the Corporation. The
Holders of a majority in principal amount of the Securities of any series may
remove the Trustee with respect to that series by so notifying the removed
Trustee and may appoint a successor Trustee with the Corporation's consent. The
Corporation may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee otherwise becomes incapable of acting.
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If the Trustee resigns or is removed or if a vacancy exists in the office of
trustee for any reason, the Corporation shall promptly appoint a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to
the retiring Trustee and to the Corporation. Immediately after that, the
retiring Trustee shall transfer all property held by it as Trustee for the
benefit of the series with respect to which it is retiring to the successor
Trustee, the resignation or removal of the retiring Trustee shall then become
effective, and the successor Trustee shall have all the rights, powers and
duties of the Trustee under this Indenture with respect to that series. A
successor Trustee shall mail notice of its succession to each Holder of the
Securities of the series affected.
If pursuant to Section 2.03(5) a trustee, other than the Trustee initially
named in this Indenture (or any successor thereto), is appointed with respect to
one or more series of Securities, the Corporation, the Trustee initially named
in this Indenture (or any successor thereto) and such newly appointed trustee
shall execute and deliver a supplement to this Indenture which shall contain
such provisions as shall be necessary or desirable to confirm that all the
rights, powers, trusts and duties of the Trustee initially named in this
Indenture (or any successor thereto) with respect to the Securities of any
series as to which the Trustee is continuing as trustee hereunder shall continue
to be vested in the Trustee initially named in this Indenture (or any successor
thereto), and shall add to, supplement or change any of the provisions of this
Indenture as shall be necessary or desirable 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 relating to the separate series of
Securities as if it were acting under a separate indenture.
If a successor Trustee with respect to a series of Securities does not take
office within 60 days after the retiring Trustee resigns or is removed, the
retiring Trustee, the Corporation or the Holders of a majority in principal
amount of the Securities of that series may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee with respect to a series of Securities fails to comply with
Section 7.10, any Holder of Securities of that series may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee.
If there are two or more Trustees at any time under this Indenture, each will
be the Trustee of a separate trust held under this Indenture for the benefit of
the series of Securities for which it is acting as Trustee and the rights and
obligations of each Trustee will be determined as if it were acting under a
separate indenture.
SECTION 7.09. Successor Trustee by Merger, etc. If the Trustee consolidates
with, merges or converts into or transfers all or substantially all its
corporate trust assets to another
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corporation, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
SECTION 7.10. Eligibility; Disqualification. This Indenture shall always have
a Trustee that satisfies the requirements of TIA Section 310(a). The Trustee
shall have a combined capital and surplus of at least $5,000,000 as set forth in
its most recent published annual report of condition. The Trustee shall comply
with TIA Section 310(b), provided that the question whether the Trustee has a
conflicting interest shall be determined as if each series of Securities were
separate issues of securities issued under separate indentures. U.S. Bank Trust
National Association also is the trustee under (i) an indenture dated March 15,
1981, under which the Corporation (as successor by merger to Martin Marietta
Corporation) has issued $175,000,000 aggregate principal amount of its 7%
Debentures due 2011, (ii) an indenture dated March 17, 1988, under which the
Corporation (as successor by merger to Martin Marietta Corporation) has issued
$100,000,000 aggregate principal amount of its 9% Notes due 2003, (iii) an
indenture dated April 15, 1993, under which the Corporation (as successor by
merger to Martin Marietta Corporation) has issued $400,000,000 aggregate
principal amount of its 6 1/2% Notes due 2003, $150,000,000 aggregate principal
amount of its 7 3/8% Debentures due 2013 and $150,000,000 aggregate principal
amount of its 7 3/4% Debentures due 2023, (iv) an indenture dated January 15,
1992, under which the Corporation (as successor to Loral Corporation) has issued
$100,000,000 aggregate principal amount of its 9.125% Debentures due 2022, (v)
an indenture dated September 1, 1993, under which the Corporation (as successor
to Loral Corporation) has issued $250,000,000 aggregate principal amount of its
7.625% Notes due 2004, $400,000,000 aggregate principal amount of its 8.375%
Debentures due 2024 and $150,000,000 aggregate principal amount of its 7.625%
Debentures due 2025 and (vi) an indenture dated May 15, 1996, under which the
Corporation has issued $500,000,000 aggregate principal amount of its 6.55%
Notes due 1999, $750,000,000 aggregate principal amount of its 6.85% Notes due
2001, $750,000,000 aggregate principal amount of its 7.25% Notes due 2006,
$600,000,000 aggregate principal amount of its 7.65% Debentures due 2016,
$600,000,000 aggregate principal amount of its 7.75% Debentures due 2026,
$300,000,000 aggregate principal amount of its 7.20% Debentures due 2036,
$550,000,000 aggregate principal amount of its 7.45% Notes due 2004 and
$450,000,000 aggregate principal amount of its 7.70% Notes due 2008.
SECTION 7.11. Preferential Collection of Claims Against Corporation. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE 8
SATISFACTION, DISCHARGE AND DEFEASANCE
SECTION 8.01. Satisfaction and Discharge Under Limited Circumstances. If at
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any time (a) all Securities of a series previously authenticated (other than any
Securities destroyed, lost or stolen and replaced or paid as provided in Section
2.08) shall have been delivered to the Trustee for cancellation, or (b) all the
Securities of a series not previously delivered to the Trustee for cancellation
shall have become due and payable, the Corporation has deposited or caused to be
deposited with the Trustee as trust funds the entire amount (other than moneys
paid to the Corporation in accordance with Section 8.05) sufficient to pay at
maturity or upon redemption all Securities of that series not previously
delivered to the Trustee for cancellation, including principal and interest, if
any, due, and if, in either case, the Corporation shall also pay all other sums
then payable under this Indenture by the Corporation, then this Indenture shall
cease to be of further effect with respect to Securities of that series, and the
Trustee, on demand of and at the cost and expense of the Corporation, shall
execute proper instruments acknowledging satisfaction of and discharging this
Indenture with respect to Securities of that series. The Corporation will
reimburse the Trustee for any subsequent costs or expenses reasonably and
properly incurred by the Trustee in connection with this Indenture or the
Securities.
SECTION 8.02. Satisfaction and Discharge of Indenture. The Corporation may
take any action provided for in this Section unless the Securities of the
affected series specifically provide that this Section shall not apply to the
series. The Corporation at any time at its option may terminate all of its
obligations under the Securities of a series previously authenticated and its
obligations under this Indenture with respect to such series (except as provided
below), and the Trustee, at the expense of the Corporation, shall, upon the
request of the Corporation, execute proper instruments acknowledging
satisfaction of and discharging this Indenture with respect to Securities of
that series, effective on the date the following conditions are satisfied:
(1) with reference to this Section, the Corporation has deposited or
caused to be deposited with the Trustee, as trust funds in trust,
specifically pledged as security for and dedicated solely to the benefit of
the Holders of the Securities of that series, (a) lawful money, in the
currency or currencies in which Securities of that series are payable, in
an amount, or (b) if the Securities of that series are payable in Dollars,
U.S. Government Obligations which through the payment of interest and
principal in respect thereof in accordance with their terms (and, as to
callable U.S. Government Obligations, regardless of when they are called)
will provide not later than the opening of business on the due dates of any
payment of the principal of and any interest on the Securities of that
series lawful money of the United States in an amount, or (c) Securities of
that series, or (d) a combination thereof, sufficient to pay and discharge
the principal of and interest, if any, on the Securities of that series on
the date on which such payments are due and payable in accordance with the
terms of this Indenture and of the Securities of that series and 91 days
have passed during which no Event of Default under Section 6.01(4) or
6.01(5) has occurred;
(2) if the Securities of that series are then listed on any national
securities
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exchange, the Corporation shall have delivered to the Trustee an Opinion of
Counsel to the effect that such deposit, defeasance and discharge will not
cause such Securities to be delisted; and
(3) the Corporation has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, complying with Section 10.04
relating to the Corporation's exercise of such option.
The trust established pursuant to subsection (1) above shall be irrevocable
and shall be made under the terms of an escrow trust agreement in form and
substance satisfactory to the Trustee. The escrow trust agreement may, at the
Corporation's election, grant the Corporation the right to substitute U.S.
Government Obligations or Securities of the same series from time to time for
any or all of the U.S. Government Obligations deposited with the Trustee
pursuant to this Section and the escrow trust agreement; provided, that the
condition specified in subsection (1) above is satisfied immediately following
any such substitution or substitutions. If any Securities of a series are to be
redeemed prior to their stated maturity pursuant to optional redemption
provisions the applicable escrow trust agreement shall provide therefor and the
Corporation shall make such arrangements as are satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in the name, and at the
expense, of the Corporation.
Upon the satisfaction of the conditions set forth in this Section with respect
to the Securities, the terms and conditions of the Securities, including the
terms and conditions with respect thereto set forth in this Indenture, shall no
longer be binding upon, or applicable to, the Corporation.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Corporation under Sections 2.04, 2.05, 2.06, 2.07, 2.08,
2.10, 7.07 and 7.08 with respect to the Securities of that series shall survive
until the Securities of that series are no longer outstanding. Thereafter, the
Corporation's obligations in Section 7.07 shall survive.
"U.S. Government Obligations" means the following obligations:
(1) direct obligations of the United States for the payment of which its
full faith and credit is pledged; or
(2) obligations of a person controlled or supervised by and acting as an
agency or instrumentality of the United States the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the
United States.
SECTION 8.03. Defeasance of Certain Obligations. The Corporation may take any
action provided for in this Section unless the Securities of the affected series
specifically provide that this Section shall not apply to the series. The
Corporation at any time at their option may cease to be under any obligation to
comply with Sections 4.03, 4.04, 4.06, 5.01 and 5.02 with
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respect to Securities of a series effective on the date the following conditions
are satisfied:
(1) with reference to this Section, the Corporation has deposited or
caused to be deposited with the Trustee irrevocably, as trust funds in
trust, specifically pledged as security for and dedicated solely to the
benefit of the Holders of the Securities of that series, (a) lawful money,
in the currency or currencies in which Securities of that series are
payable, in an amount, or (b) if the Securities of that series are payable
in Dollars, U.S. Government Obligations which through the payment of
interest and principal in respect thereof in accordance with their terms
(and, as to callable U.S. Government Obligations, regardless of when they
are called) will provide not later than the opening of business on the due
dates of any payment of principal of and interest on the Securities of that
series lawful money of the United States in an amount, or (c) Securities of
that issue, or (d) a combination thereof, sufficient to pay and discharge
the principal of and interest on the Securities of that series on the day
on which such payments are due and payable in accordance with the terms of
this Indenture and of the Securities of that series; and
(2) the Corporation has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel complying with Section 10.04 relating
to the Corporation's exercise of such option.
The trust established pursuant to subsection (1) above shall be irrevocable
and shall be made under the terms of an escrow trust agreement in form and
substance satisfactory to the Trustee. The escrow trust agreement may, at the
Corporation's election, grant the Corporation the right to substitute U.S.
Government Obligations or Securities of the same series from time to time for
any or all of the U.S. Government Obligations deposited with the Trustee
pursuant to this Section and the escrow trust agreement; provided, that the
condition specified in subsection (1) above is satisfied immediately following
any such substitution or substitutions. If any Securities of a series are to be
redeemed prior to their stated maturity pursuant to optional redemption
provisions the applicable escrow trust agreement shall provide therefor and the
Corporation shall make such arrangements as are satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in the name, and at the
expense, of the Corporation.
The Corporation's exercise of its option under this Section shall not preclude
the Corporation from subsequently exercising its option under Section 8.02
hereof and the Corporation may so exercise that option by providing the Trustee
with written notice to such effect.
SECTION 8.04. Application of Trust Money. The Trustee shall hold in trust
money, U.S. Government Obligations, and Securities of that series deposited with
it pursuant to Sections 8.01, 8.02 or 8.03. It shall apply the deposited money
and U.S. Government Obligations through the Paying Agent and in accordance with
this Indenture, to the payment of principal and interest, if any, on the
Securities of the series for the payment of which such money and U.S. Government
Obligations has been deposited. The Holder of any Security replaced
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pursuant to Section 2.08 shall not be entitled to any such payment and shall
look only to the Corporation for any payment which such Holder may be entitled
to collect. In connection with the satisfaction and discharge of this Indenture
or the defeasance of certain obligations under this Indenture with respect to
Securities of a series pursuant to Section 8.02 or Section 8.03 hereof,
respectively, the escrow trust agreement may, at the Corporation's election, (1)
enable the Corporation to direct the Trustee to invest any money received by the
Trustee on the U.S. Government Obligations deposited in trust thereunder in
additional U.S. Government Obligations and (2) enable the Corporation to
withdraw monies or U.S. Government Obligations from the trust from time to time;
provided, that the condition specified in Section 8.02(1) or 8.03(1) is
satisfied immediately following any investment of such money by the Trustee or
the withdrawal of monies or U.S. Government Obligations from the trust by the
Corporation as the case may be.
SECTION 8.05. Repayment to Corporation. The Trustee and the Paying Agent shall
promptly pay to the Corporation upon request any excess money or securities held
by them at any time. The Trustee and the Paying Agent shall pay, unless
otherwise prohibited by mandatory provisions of applicable escheat or abandoned
or unclaimed property law, to the Corporation upon request any money held by
them for the payment of principal or interest, if any, that remains unclaimed
for two years.
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders. The Corporation may amend or
supplement this Indenture or the Securities of any series without notice to or
consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article 5;
(3) to provide for uncertificated Securities in addition to or in place
of certificated Securities;
(4) to effectuate or comply with the provisions of Section 2.03(5) or
7.08;
(5) to change or eliminate any of the provisions of this Indenture;
provided, however, that any such change or elimination shall become
effective only when there is no outstanding Security of any series created
prior to the execution of such amendment or supplement that is entitled to
the benefit of such provision;
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(6) to make any change that does not materially adversely affect the
rights of any Holder of any Security of that series; or
(7) to add or change or eliminate any provisions of this Indenture as
shall be necessary or desirable in accordance with any amendments to the
TIA.
The Trustee may waive compliance by the Corporation with any provision of this
Indenture or the Securities of any series without notice to or consent of any
Securityholder if the waiver does not materially adversely affect the rights of
any Holder of any Securities of that series.
SECTION 9.02. With Consent of Holders. The Corporation may amend or supplement
this Indenture or the Securities without notice to any Securityholder but with
the written consent of the Holders of not less than a majority in principal
amount of the Securities of each series affected and the Trustee shall execute
any such amendment or supplement at the direction of the Corporation. The
Holders of a majority in principal amount of the Securities of each series
affected may waive compliance by the Corporation with any provision of this
Indenture or the Securities of each such series without notice to any
Securityholder. However, without the consent of each Securityholder affected, an
amendment, supplement or waiver, including a waiver pursuant to Section 6.04,
may not:
(1) reduce the amount of Securities of any series whose Holders must
consent to an amendment, supplement or waiver;
(2) reduce the rate of or extend the time for payment of interest on any
Security;
(3) reduce the principal of or extend the fixed maturity of any
Security;
(4) reduce the portion of the principal amount of a Discounted Security
payable upon acceleration of its maturity; or
(5) make any Security payable in a currency or currency unit other than
that stated in the Security.
It shall not be necessary for any Act of Holders under this Section to approve
the particular form of any proposed supplement or amendment, but it shall be
sufficient if such Act shall approve the substance thereof.
SECTION 9.03. Compliance with Trust Indenture Act of 1939. Every amendment to
or supplement of this Indenture or the Securities shall comply with the TIA as
then in effect.
SECTION 9.04. Revocation and Effect of Consents. A consent to an amendment,
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supplement or waiver by a Holder of a Security shall bind the Holder and every
subsequent Holder of that Security or portion of the Security that evidences the
same debt as the consenting Holder's Security, even if notation of the consent
is not made on the Security. However, any such Holder or subsequent Holder may
revoke the consent as to his Security or portion of the Security. The Trustee
must receive the notice of revocation before the date the amendment, supplement
or waiver becomes effective.
After an amendment, supplement or waiver becomes effective, it shall bind
every Securityholder unless it makes a change described in clauses (2), (3), (4)
or (5) of Section 9.02. In that case the amendment, supplement or waiver shall
bind each Holder of a Security who has consented to it and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder's Security.
SECTION 9.05. Notation on or Exchange of Securities. If an amendment,
supplement or waiver changes the terms of a Security, the Trustee may require
the Holder of the Security to deliver it to the Trustee. The Trustee may place
an appropriate notation on the Security about the changed terms and return it to
the Holder. Alternatively, if the Corporation or the Trustee so determine, the
Corporation in exchange for the Security shall issue and the Trustee shall
authenticate a new Security that reflects the changed terms.
SECTION 9.06. Trustee to Sign Amendments, etc. The Trustee shall sign any
amendment, supplement or waiver authorized pursuant to this Article if the
amendment, supplement or waiver does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If it does, the Trustee may but need
not sign it. In signing such amendment, supplement or waiver the Trustee shall
be entitled to receive, and (subject to Section 7.01) shall be fully protected
in relying upon, an Opinion of Counsel stating that such amendment, supplement
or waiver is authorized or permitted by this Indenture. The Corporation may not
sign an amendment or supplement unless authorized by an appropriate Board
Resolution.
ARTICLE 10
MISCELLANEOUS
SECTION 10.01. TIA Controls. If any provision of this Indenture limits,
qualifies or conflicts with another provision which is required to be included
in this Indenture by the TIA, the required provision shall control.
SECTION 10.02 Notices. Any notice or communication shall be sufficiently given
if in writing and delivered in person or mailed by first-class mail addressed as
follows:
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if to the Corporation:
Lockheed Martin Corporation
Attention: Treasurer
6801 Rockledge Drive
Bethesda, Maryland 20817
if to the Trustee:
U.S. Bank Trust National Association
111 East Wacker Drive, Suite 3000
Chicago, Illinois 60611
The Corporation or the Trustee by notice to the other may designate additional
or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Securityholder shall be mailed to the
Securityholder at the Securityholder's address as it appears on the registration
books of the Registrar and shall be sufficiently given if so mailed within the
time prescribed.
Failure to mail a notice of communication to a Securityholder or any defect in
it shall not affect its sufficiency with respect to other Securityholders. If a
notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
SECTION 10.03. Communication by Holders with Other Holders. Securityholders
may communicate pursuant to TIA Section 312(b) with other Securityholders with
respect to their rights under this Indenture or the Securities. The Corporation,
the Trustee, the Registrar and anyone else shall have the protection of TIA
Section 312(c).
SECTION 10.04. Certificate and Opinion as to Conditions Precedent. Upon any
request or application by the Corporation to the Trustee to take any action
under this Indenture, the Corporation shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
SECTION 10.05. Statements Required in Certificate or Opinion. Each certificate
or opinion with respect to compliance with a condition or covenant provided for
in this Indenture shall include:
-43-
(1) a statement that the person making such certificate or opinion has
read such covenant or condition;
(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 such person, the person has made
such examination or investigation as is necessary to enable the person to
express an informed opinion as to whether such covenant or condition has
been complied with;
(4) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with.
SECTION 10.06. When Treasury Securities Disregarded. In determining whether
the Holders of the required principal amount of Securities have concurred in any
direction, waiver or consent, Securities owned by the Corporation or by any
person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Corporation, shall be disregarded, except that
for the purpose of determining whether the Trustee shall be protected in relying
on any such direction, waiver or consent, only Securities which the Trustee
knows are so owned shall be so disregarded. Also, subject to the foregoing, only
Securities outstanding at the time shall be considered in any such
determination.
SECTION 10.07. Rules by Trustee, Paying Agent, Registrar. The Trustee may make
reasonable rules for action by or a meeting of Securityholders. The Paying Agent
or Registrar may make reasonable rules for its functions.
SECTION 10.08. Legal Holidays. A "Legal Holiday" is a Saturday, a Sunday, a
legal holiday or a day on which banking institutions are not required to be
open. If a payment date is a Legal Holiday at a place of payment, payment shall
be made at that place on the next succeeding day that is not a Legal Holiday,
and no interest shall accrue for the intervening period. If a regular record
date is a Legal Holiday in the state or other jurisdiction in which the Trustee
maintains its principal place of business, then the record date shall be the
next succeeding day that is not a Legal Holiday in such state or other
jurisdiction.
SECTION 10.09. Governing Law. The laws of the State of Maryland shall govern
this Indenture and the Securities.
SECTION 10.10. No Adverse Interpretation of Other Agreements. This Indenture
may not be used to interpret another indenture, loan or debt agreement of the
Corporation or any Subsidiary of the Corporation. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
-44-
SECTION 10.11. No Recourse Against Others. A director, officer, employee or
stockholder (other than the Corporation as issuer of the Debt Securities), as
such, of the Corporation shall not have any liability for any obligation of the
Corporation under the Securities or the Indenture or for any claim based on,
with respect to or by reason of such obligations or their creation. All such
liability is waived and released as a condition of, and as partial consideration
for, the execution of this Indenture and the issue of the Securities.
SECTION 10.12. Securities in a Foreign Currency. Unless otherwise specified in
an Officers' Certificate delivered pursuant to Section 2.01 of this Indenture
with respect to a particular series of Securities, whenever for purposes of this
Indenture any action may be taken by the holders of a specified percentage in
aggregate principal amount of Securities of all series at the time outstanding
and, at such time, there are outstanding Securities of any series which are
denominated in a Foreign Currency, then the principal amount of Securities of
such series which shall be deemed to be outstanding for the purpose of taking
such action shall be that amount of Dollars that could be obtained for such
amount at the Market Exchange Rate on the record date fixed for such action or,
if no record date is fixed, on the New York Banking Day immediately preceding
the date of such action.
SECTION 10.13. Judgment Currency. If, for the purpose of obtaining a judgment
in any court with respect to any obligation of the Corporation hereunder or
under any Security or any related coupon it shall become necessary to convert
into any other currency or currency unit any amount in the currency or currency
unit due hereunder or under such Security or coupon then such conversion shall
be made by the Currency Determination Agent at the Market Exchange Rate as in
effect on the date of entry of the judgment (the "Judgment Date"). If pursuant
to any such judgment, conversion shall be made on a date (the "Substitute Date")
other than the Judgment Date and there shall occur a change between the Market
Exchange Rate as in effect on the Judgment Date and the Market Exchange Rate as
in effect on the Substitute Date, the Corporation agrees to pay such additional
amounts (if any) as may be necessary to ensure that the amount paid is equal to
the amount in such other currency or currency unit which, when converted at the
Market Exchange Rate as in effect on the Judgment Date, is the amount due
hereunder or under such Security or coupon. Any amount due from the Corporation
under this Section shall be due as a separate debt and is not to be affected by
or merged into any judgment being obtained for any other sums due hereunder or
with respect to any Security or coupon. In no event, however, shall the
Corporation be required to pay more in the currency or currency unit due
hereunder or under such Security or coupon at the Market Exchange Rate as in
effect on the Judgment Date than the amount of currency or currency unit stated
to be due hereunder or under such Security or coupon so that in any event the
Corporation's obligations hereunder or under such Security or coupon will be
effectively maintained as obligations in such currency or currency unit, and the
Corporation shall be entitled to withhold (or be reimbursed for, as the case may
be) any excess of the amount actually realized upon any such conversion on the
Substitute Date over the amount due and payable on the Judgment Date.
-45-
SECTION 10.14. Successors. All agreements of the Corporation in this Indenture
and the Securities shall bind its successor. All agreements of the Trustee in
this Indenture shall bind its successor.
SECTION 10.15. Duplicate Originals. The parties may sign any number of copies
of this Indenture. One signed copy is enough to prove this Indenture.
SECTION 10.16. 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 Corporation.
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 7.1(e)) conclusive in favor of the Trustee and
the Corporation, if made in the manner provided in this Section.
(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 acknowledgements of deeds, certifying that the individual signing
such instrument or writing acknowledged to such officer the execution thereof.
Where such execution is by a signer acting in a capacity other than such
signer's individual capacity, such certificate or affidavit shall also
constitute sufficient proof of such signer's 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 Corporation may, in the circumstances permitted by the TIA, 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 action, 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 Corporation 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 2.6) 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.
-46-
SIGNATURES
Attest: LOCKHEED MARTIN CORPORATION
___________________________ By:___________________________
Secretary
Attest: U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
___________________________ By:___________________________
Secretary
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EXHIBIT 4(b)
[If the Note [Debenture] is a Discounted Security, insert -- FOR
--------------------------------------------------------
PURPOSES OF SECTIONS 1273 AND 1275 OF THE INTERNAL REVENUE CODE,
THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THIS NOTE [DEBENTURE] IS
% OF ITS PRINCIPAL AMOUNT, THE ISSUE DATE IS ,
THE YIELD TO MATURITY IS %, THE AMOUNT OF ORIGINAL ISSUE
DISCOUNT APPLICABLE TO THE SHORT ACCRUAL PERIOD OF 19 TO 19 ,
IS % OF THE PRINCIPAL AMOUNT OF THIS SECURITY AND THE
METHOD USED TO DETERMINE THE SHORT ACCRUAL PERIOD ORIGINAL ISSUE
DISCOUNT IS THE METHOD.]
[FORM OF U.S.$ DENOMINATED NOTE/DEBENTURE]
No. $______________
LOCKHEED MARTIN CORPORATION
[_____%] [Floating Rate] [Zero Coupon] Note [Debenture] Due ____
LOCKHEED MARTIN CORPORATION, a Maryland corporation, for value received, hereby
promises to pay to _________________________
__________________________________________ or registered assigns, the principal
sum of ____________________________________ Dollars on _____________.
Interest Payment Dates: __________ and __________ [if applicable]
Record Dates: __________ and __________ [if applicable]
Additional provisions of this Note [Debenture] are set forth on the other side
of this Note [Debenture].
LOCKHEED MARTIN CORPORATION
By:_________________________(SEAL)
[Authorized Officer]
__________________________________
Secretary
Dated:
Authenticated:
This is one of the Securities
of the series designated herein
and referred to in the
within-mentioned Indenture.
[Name of Trustee], as Trustee
By:__________________________
[If an Authenticating Agent
has been appointed insert:
This is one of the Securities
referred to in the within-
mentioned Indenture.
[Name of Trustee], as Trustee
By:__________________________
as Authenticating Agent
By:__________________________
Authorized Officer]
-2-
LOCKHEED MARTIN CORPORATION
[_____%] [Floating Rate] [Zero Coupon] Note [Debenture] Due _____
1. Interest. Lockheed Martin Corporation ("Corporation"), a Maryland
corporation, promises to pay interest on the principal amount of this Note
[Debenture] at the rate per annum [shown above] [determined as set forth below].
The Corporation will pay interest semiannually on __________ and __________ of
each year. Interest on the Notes [Debentures] will accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from the
date hereof. Interest will be computed on the basis of a 360-day year of twelve
30-day months.
[If the Note [Debenture] is a Floating Rate Note [Debenture], insert
------
method of determining interest rates and giving of notice thereof including
- -----------------------------------------------------------------------------
identity of the Paying Agent.]
- -----------------------------
[If the Note [Debenture] is not to bear interest prior to maturity,
insert--The principal of this Note [Debenture] shall not bear interest.]
2. Method of Payment. The Corporation will pay interest on the Notes
[Debentures] (except defaulted interest, which shall be paid as set forth below)
to the persons who are registered Holders of Notes [Debentures] at the close of
business on the record date for the next interest payment date even though the
Notes [Debentures] are cancelled after the record date and on or before the
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 Note [Debenture] (or one
or more predecessor Notes [Debentures]) is registered at the close of business
on a special record date for the payment of such defaulted interest to be fixed
by the Corporation, notice whereof shall be given to Holders of Notes
[Debentures] not less than 15 days prior to such special record date, or may be
paid at any time in any other lawful manner [not inconsistent with the
requirements of any securities exchange on which the Note [Debenture] may be
listed, and upon such notice as may be required by such exchange], all as more
fully provided in the Indenture. Holders must surrender the Notes [Debentures]
to a Paying Agent to collect principal payments. The Corporation will pay
principal and interest in money of the United States that at the time of payment
is legal tender for payment of public and private debts. However, the
Corporation may pay principal and interest by its check payable in such money.
It may mail an interest check to a Holder's registered address. To the extent
lawful, the Corporation shall pay interest on overdue principal at the rate
borne by the Notes [Debentures] and shall pay interest on overdue
-3-
installments of interest at the same rate.
3. Paying Agent and Registrar. Initially, [______________________________
_____________________________________ ("Trustee")], will act as Paying Agent and
Registrar. The Corporation may change any Paying Agent, Registrar or co-
registrar without notice. The Corporation or any of its Subsidiaries (as defined
in the Indenture) may act as Paying Agent, Registrar or co-registrar.
4. Indenture. The Corporation issued the Notes [Debentures] under an
Indenture dated as of __________ __, _____ ("Indenture"), between the
Corporation and the Trustee. The terms of the Notes [Debentures] include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939 (15 U.S. Code (SS) 77aaa-77bbbb) ("Act"). The Notes
[Debentures] are subject to all such terms, and Holders are referred to the
Indenture, all applicable supplemental indentures and the Act for a statement of
those terms. As provided in the Indenture, the Notes [Debentures] may be issued
in one or more series, which different series may be issued in various aggregate
principal amounts, may mature at different times, may bear interest, if any, at
different rates, may be subject to different redemption provisions, if any, may
be subject to different sinking, purchase or analogous funds, if any, may be
subject to different covenants and Events of Default and may otherwise vary as
in the Indenture provided or permitted. This Note [Debenture] is one of a
series of the Notes [Debentures] designated on the face hereof, limited in
aggregate principal amount to $_________ (except as otherwise provided in the
Indenture).
[If the Notes [Debentures] of this series are subject to optional
redemption insert -- 5. Optional Redemption. The Corporation may redeem all the
Notes [Debentures] at any time, or some of them from time to time, on or after
__________, [if the Notes [Debentures] are not Discounted Securities insert-- at
_____% of the principal amount of the Notes [Debentures], plus accrued interest
to the redemption date].
[If the Notes [Debentures] are Discounted Securities insert formula for
------------------
optional redemption.]
- --------------------
[If the Notes [Debentures] are not subject to optional redemption
insert -- 5. Redemption. The Notes [Debentures] are not redeemable by the
Corporation.]
[If the Notes [Debentures] of this series are subject to redemption
insert -- 6. Notice of Redemption. Notice of redemption will be mailed at least
20 days but not more than 60 days before the redemption date to each Holder of
Notes [Debentures] to be redeemed at such Holder's registered address. Notes
[Debentures] in a denomination larger than $1,000 may be redeemed in part but
only in whole multiples of $1,000. On and
-4-
after the redemption date interest ceases to accrue on Notes [Debentures] or
portions of them called for redemption.]
7. Denominations; Transfer; Exchange. The Notes [Debentures] are in
registered form without coupons in denominations of $1,000 and any multiple of
$1,000. A Holder may transfer or exchange Notes [Debentures] in accordance with
the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay any taxes and
fees required by law or permitted by the Indenture. Also, it need not transfer
or exchange any Notes [Debentures] for a period of 15 days before a selection of
Notes [Debentures] to be redeemed or before an interest payment date.
8. Persons Deemed Owners. The registered Holder of this Note [Debenture] may
be treated as the owner of it for all purposes, and neither the Corporation, the
Trustee, nor any Registrar, Paying Agent or co-registrar shall be affected by
notice to the contrary.
9. Unclaimed Money. If money for the payment of principal or interest
remains unclaimed for two years, the Trustee or Paying Agent will pay, unless
otherwise prohibited by mandatory provisions of applicable abandoned property
law, the money back to the Corporation at its request. After that, Holders
entitled to unclaimed money must look only to the Corporation and not to the
Trustee for payment unless an abandoned property law designates another person.
10. Defeasance. The Indenture contains provisions for defeasance at any time
of the entire principal of the Notes [Debentures] of any series upon compliance
by the Corporation with certain conditions set forth therein.
11. Amendment; Supplement; Waiver. Subject to certain exceptions as therein
provided, the Indenture or the Notes [Debentures] may be amended or supplemented
with the written consent of the Holders of not less than a majority in principal
amount of the Notes [Debentures], and, subject to certain exceptions and
limitations as provided in the Indenture, any past default or compliance with
any provision may be waived with the consent of the Holders of a majority in
principal amount of the Notes [Debentures]. Without the consent of any Holder,
the Indenture or the Notes [Debentures] may be amended or supplemented, for
among other reasons, to cure any ambiguity, omission, defect or inconsistency,
to provide for uncertificated Notes [Debentures] in addition to or in place of
certificated Notes [Debentures] or to make any change that does not materially
adversely affect the rights of any Holder. Without the consent of any Holder,
the Trustee may waive compliance with any provision of the Indenture or the
Notes [Debentures] if the waiver does not materially adversely affect the rights
of any Holder.
-5-
12. Restrictive Covenants. The Indenture does not limit unsecured debt of
the Corporation or any of its Subsidiaries. It does limit certain mortgages,
liens and sale-leaseback transactions. The limitations are subject to a number
of important qualifications and exceptions. Once a year the Corporation must
report to the Trustee on compliance with the limitations.
13. Successors. When a successor entity assumes all the obligations of the
Corporation or its successors under the Notes [Debentures] and the Indenture,
the predecessor corporation will be released from those obligations.
14. Defaults and Remedies. An Event of Default is: default for 30 days in
payment of any interest on the Notes [Debentures]; default in payment of any
principal on the Notes [Debentures]; failure by the Corporation for 90 days
after notice to it to comply with any of its other agreements in the Indenture
or the Notes [Debentures]; and certain events of bankruptcy or insolvency. [If
--
the Note [Debenture] is not an Original Issue Discount Note [Debenture],
- ----------------------------------------------------------------------
insert -- If an Event of Default with respect to Notes [Debentures] of this
series shall occur and be continuing, the principal of the Notes [Debentures] of
this series and accrued interest thereon may be declared due and payable in the
manner and with the effect provided in the Indenture. [If the Note [Debenture]
-----------------------
is an Original Issue Discount Note [Debenture], insert -- If an Event of Default
- ---------------------------------------------
with respect to Notes of this series shall occur and be continuing, an amount of
principal of the Notes [Debentures] of this series and accrued interest thereon
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 or cross reference
---------------------------------
to redemption provisions for determining the amount].] Holders of Notes
- ---------------------------------------------------
[Debentures] may not enforce the Indenture or the Notes [Debentures] except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Notes [Debentures] unless it receives indemnity satisfactory to it. Subject
to certain limitations, Holders of a majority in principal amount of the Notes
[Debentures] may direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Holders notice of any continuing default (except a
default in payment of principal or interest) if a committee of its trust
officers in good faith determines that withholding notice is in the interests of
such Holders.
15. Trustee Dealings with the Corporation. [______________________________
___________], the Trustee under the Indenture, in its individual or any other
capacity may make loans to, accept deposits from and perform services for the
Corporation or any of its affiliates, and may otherwise deal with the
Corporation or its affiliates as if it were not Trustee.
-6-
16. No Recourse Against Others. A director, officer, employee or
stockholder, as such, of the Corporation shall not have any liability for any
obligations of the Corporation under the Notes [Debentures] or the Indenture or
for any claim based on, in respect of, or by reason of such obligations or their
creation. Each Holder by accepting a Note [Debenture] waives and releases all
such liability. This waiver and release are part of the consideration for the
issue of the Notes [Debentures].
17. Authentication. This Note [Debenture] shall not be valid until the
Trustee manually signs the certificate of authentication on the other side of
this Note [Debenture].
18. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts
to Minors Act).
19. Miscellaneous. This Note [Debenture] shall for all purposes be governed
by, and construed in accordance with, the laws of the State of Maryland.
All terms used in this Note [Debenture] which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
-7-
The Corporation will furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to: Lockheed Martin
Corporation, 6801 Rockledge Drive, Bethesda, Maryland 20817, Attention:
Secretary.
_____________________________
I or we assign and transfer to
Insert social security or other identifying number of assignee
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
(Print or type name, address and zip code of assignee)
this Note [Debenture] and irrevocably appoint ___________________ agent to
transfer this Note [Debenture] on the books of the Corporation. The agent may
substitute another to act for him.
Dated: _______________________________________________________
Signed: _______________________________________________________
(Sign exactly as name appears on the other side of this
Note [Debenture])
-8-
Exhibit 5
MILES & STOCKBRIDGE P.C.
10 Light Street
Baltimore, Maryland 21202
January 29, 1999
Lockheed Martin Corporation
6801 Rockledge Drive
Bethesda, Maryland 20817
Ladies and Gentlemen:
We have acted as counsel to Lockheed Martin Corporation, a Maryland
corporation (the "Corporation"), in connection with the filing with the
Securities and Exchange Commission (the "Commission") of a Registration
Statement on Form S-3 (the "Registration Statement") under the Securities Act of
1933, as amended (the "Act"), in respect of the Corporation's Debt Securities to
be issued from time to time pursuant to Rule 415 under the Act. In this
capacity we have reviewed the Charter and Bylaws of the Corporation, the form of
Indenture to be entered into by and between the Corporation and U.S. Bank Trust
National Association (the "Trustee") (as supplemented or modified by the Trust
Indenture Act of 1939, collectively, the "Indenture"), the Registration
Statement including the exhibits thereto, the corporate proceedings of the
Corporation relating to the authorization of the issuance of the Debt Securities
and such certificates and other documents as we deemed necessary or advisable
for the purposes of this opinion.
Based on the foregoing, we are of the opinion that the Debt Securities,
when duly authorized and executed in accordance with the terms of the
resolutions adopted by the Board of Directors of the Corporation and the terms
of the Indenture, authenticated by the Trustee in accordance with the terms of
the Indenture and issued and delivered against payment therefor, will be legally
issued and will constitute valid and binding obligations of the Corporation
entitled to the benefits of the Indenture.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under the heading "Legal
Opinions" in the
Lockheed Martin Corporation
January 29, 1999
Page 2
Prospectus. In giving our consent, we do not thereby admit that we are in the
category of persons whose consent is required under Section 7 of the Act or the
rules and regulations of the Commission thereunder.
Very truly yours,
Miles & Stockbridge P.C.
By: /s/ Glenn C. Campbell
----------------------
Principal
Exhibit 12
LOCKHEED MARTIN CORPORATION
RATIO OF EARNINGS TO FIXED CHARGES
(IN MILLIONS, EXCEPT RATIO)
Nine Months Ended
September 30, Year Ended December 31,
1998 1997 1997 1996 1995 1994 1993
--------- -------- -------- ------- ------- ------- --------
EARNINGS:
Earnings from continuing operations before income taxes $1,401 $1,498 $1,937 $2,033 $1,089 $1,675 $1,306
Interest expense 655 615 842 700 289 311 281
Amortization of debt premium and discount, net (3) (3) (3) (1) (1) (7) (3)
Portion of rents representative of an interest factor 39 64 86 123 53 57 60
Losses and undistributed earnings of less than 50%
owned companies, net (12) (7) (11) 27 (15) (1) -
------ ------ ------ ------ ------ ------ ------
Adjusted earnings from continuing operations before
income taxes $2,080 $2,167 $2,851 $2,882 $1,415 $2,035 $1,644
====== ====== ====== ====== ====== ====== ======
FIXED CHARGES
Interest expense 655 615 842 700 289 311 281
Capitalized interest 7 4 5 2 1 4 3
Amortization of debt premium and discount, net (3) (3) (3) (1) (1) (7) (3)
Portion of rents representative of an interest factor 39 64 86 123 53 57 60
------ ------ ------ ------ ------ ------ ------
Total fixed charges $698 $680 $930 $824 $342 $365 $341
====== ====== ====== ====== ====== ====== ======
RATIO OF EARNINGS TO FIXED CHARGES 3.0X 3.2X 3.1X 3.5X 4.1X 5.6X 4.8X
====== ====== ====== ====== ====== ====== ======
EXHIBIT 23(a)
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Lockheed Martin
Corporation for the shelf registration of $2.5 billion of debt securities and
to the incorporation by reference therein of our report dated January 19, 1998,
except for Note 2 and the next to last paragraph of Note 16, as to which the
date is March 12, 1998, with respect to the consolidated financial statements
of Lockheed Martin Corporation incorporated by reference in its Annual Report
(Form 10-K) for the year ended December 31, 1997, filed with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
Ernst & Young LLP
Washington, D.C.
January 22, 1999
EXHIBIT 24
POWER OF ATTORNEY
LOCKHEED MARTIN CORPORATION
The undersigned hereby constitutes Frank H. Menaker, Jr. and Stephen M.
Piper, and each of them, jointly and severally, his or her lawful attorney-in-
fact and agent, with full power of substitution and resubstitution, for him or
her and in his or her name, place and stead, in any and all capacities,
including, but not limited to, that listed below, to execute and file, or cause
to be filed, with exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission (hereinafter referred to as the
"Commission") one or more registration statements on Form S-3 or Form S-4 for
the purpose of registering under the Securities Act of 1933, as amended, (the
"Securities Act") debt securities of Lockheed Martin Corporation and amendments
thereto (including post-effective amendments), and all matters required by the
Commission in connection with such registration statements under the Securities
Act, granting unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and thing requisite or
necessary to be done as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said attorney's-in-
fact and agents, and each of them, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
/s/ NORMAN R. AUGUSTINE October 22, 1998
-------------------------------
Norman R. Augustine
Director
POWER OF ATTORNEY
LOCKHEED MARTIN CORPORATION
The undersigned hereby constitutes Frank H. Menaker, Jr. and Stephen M.
Piper, and each of them, jointly and severally, his or her lawful attorney-in-
fact and agent, with full power of substitution and resubstitution, for him or
her and in his or her name, place and stead, in any and all capacities,
including, but not limited to, that listed below, to execute and file, or cause
to be filed, with exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission (hereinafter referred to as the
"Commission") one or more registration statements on Form S-3 or Form S-4 for
the purpose of registering under the Securities Act of 1933, as amended, (the
"Securities Act") debt securities of Lockheed Martin Corporation and amendments
thereto (including post-effective amendments), and all matters required by the
Commission in connection with such registration statements under the Securities
Act, granting unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and thing requisite or
necessary to be done as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said attorney's-in-
fact and agents, and each of them, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
/s/ MARCUS C. BENNETT October 22, 1998
-----------------------------------
Marcus C. Bennett
Executive Vice President, Chief Financial
Officer and Director
POWER OF ATTORNEY
LOCKHEED MARTIN CORPORATION
The undersigned hereby constitutes Frank H. Menaker, Jr. and Stephen M.
Piper, and each of them, jointly and severally, his or her lawful attorney-in-
fact and agent, with full power of substitution and resubstitution, for him or
her and in his or her name, place and stead, in any and all capacities,
including, but not limited to, that listed below, to execute and file, or cause
to be filed, with exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission (hereinafter referred to as the
"Commission") one or more registration statements on Form S-3 or Form S-4 for
the purpose of registering under the Securities Act of 1933, as amended, (the
"Securities Act") debt securities of Lockheed Martin Corporation and amendments
thereto (including post-effective amendments), and all matters required by the
Commission in connection with such registration statements under the Securities
Act, granting unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and thing requisite or
necessary to be done as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said attorney's-in-
fact and agents, and each of them, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
/s/ LYNNE V. CHENEY October 22, 1998
---------------------------------
Lynne V. Cheney
Director
POWER OF ATTORNEY
LOCKHEED MARTIN CORPORATION
The undersigned hereby constitutes Frank H. Menaker, Jr. and Stephen M.
Piper, and each of them, jointly and severally, his or her lawful attorney-in-
fact and agent, with full power of substitution and resubstitution, for him or
her and in his or her name, place and stead, in any and all capacities,
including, but not limited to, that listed below, to execute and file, or cause
to be filed, with exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission (hereinafter referred to as the
"Commission") one or more registration statements on Form S-3 or Form S-4 for
the purpose of registering under the Securities Act of 1933, as amended, (the
"Securities Act") debt securities of Lockheed Martin Corporation and amendments
thereto (including post-effective amendments), and all matters required by the
Commission in connection with such registration statements under the Securities
Act, granting unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and thing requisite or
necessary to be done as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said attorney's-in-
fact and agents, and each of them, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
/s/ VANCE D. COFFMAN October 22, 1998
----------------------------------
Vance D. Coffman
Chairman and Chief Executive Officer
POWER OF ATTORNEY
LOCKHEED MARTIN CORPORATION
The undersigned hereby constitutes Frank H. Menaker, Jr. and Stephen M.
Piper, and each of them, jointly and severally, his or her lawful attorney-in-
fact and agent, with full power of substitution and resubstitution, for him or
her and in his or her name, place and stead, in any and all capacities,
including, but not limited to, that listed below, to execute and file, or cause
to be filed, with exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission (hereinafter referred to as the
"Commission") one or more registration statements on Form S-3 or Form S-4 for
the purpose of registering under the Securities Act of 1933, as amended, (the
"Securities Act") debt securities of Lockheed Martin Corporation and amendments
thereto (including post-effective amendments), and all matters required by the
Commission in connection with such registration statements under the Securities
Act, granting unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and thing requisite or
necessary to be done as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said attorney's-in-
fact and agents, and each of them, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
/s/ HOUSTON I. FLOURNOY October 22, 1998
--------------------------------
Houston I. Flournoy
Director
POWER OF ATTORNEY
LOCKHEED MARTIN CORPORATION
The undersigned hereby constitutes Frank H. Menaker, Jr. and Stephen M.
Piper, and each of them, jointly and severally, his or her lawful attorney-in-
fact and agent, with full power of substitution and resubstitution, for him or
her and in his or her name, place and stead, in any and all capacities,
including, but not limited to, that listed below, to execute and file, or cause
to be filed, with exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission (hereinafter referred to as the
"Commission") one or more registration statements on Form S-3 or Form S-4 for
the purpose of registering under the Securities Act of 1933, as amended, (the
"Securities Act") debt securities of Lockheed Martin Corporation and amendments
thereto (including post-effective amendments), and all matters required by the
Commission in connection with such registration statements under the Securities
Act, granting unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and thing requisite or
necessary to be done as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said attorney's-in-
fact and agents, and each of them, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
/s/ JAMES F. GIBBONS October 22, 1998
----------------------------------
James F. Gibbons
Director
POWER OF ATTORNEY
LOCKHEED MARTIN CORPORATION
The undersigned hereby constitutes Frank H. Menaker, Jr. and Stephen M.
Piper, and each of them, jointly and severally, his or her lawful attorney-in-
fact and agent, with full power of substitution and resubstitution, for him or
her and in his or her name, place and stead, in any and all capacities,
including, but not limited to, that listed below, to execute and file, or cause
to be filed, with exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission (hereinafter referred to as the
"Commission") one or more registration statements on Form S-3 or Form S-4 for
the purpose of registering under the Securities Act of 1933, as amended, (the
"Securities Act") debt securities of Lockheed Martin Corporation and amendments
thereto (including post-effective amendments), and all matters required by the
Commission in connection with such registration statements under the Securities
Act, granting unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and thing requisite or
necessary to be done as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said attorney's-in-
fact and agents, and each of them, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
/s/ EDWARD E. HOOD, JR. October 22, 1998
-----------------------------------
Edward E. Hood, Jr.
Director
POWER OF ATTORNEY
LOCKHEED MARTIN CORPORATION
The undersigned hereby constitutes Frank H. Menaker, Jr. and Stephen M.
Piper, and each of them, jointly and severally, his or her lawful attorney-in-
fact and agent, with full power of substitution and resubstitution, for him or
her and in his or her name, place and stead, in any and all capacities,
including, but not limited to, that listed below, to execute and file, or cause
to be filed, with exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission (hereinafter referred to as the
"Commission") one or more registration statements on Form S-3 or Form S-4 for
the purpose of registering under the Securities Act of 1933, as amended, (the
"Securities Act") debt securities of Lockheed Martin Corporation and amendments
thereto (including post-effective amendments), and all matters required by the
Commission in connection with such registration statements under the Securities
Act, granting unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and thing requisite or
necessary to be done as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said attorney's-in-
fact and agents, and each of them, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
/s/ CALEB B. HURTT October 22, 1998
--------------------------------
Caleb B. Hurtt
Director
POWER OF ATTORNEY
LOCKHEED MARTIN CORPORATION
The undersigned hereby constitutes Frank H. Menaker, Jr. and Stephen M.
Piper, and each of them, jointly and severally, his or her lawful attorney-in-
fact and agent, with full power of substitution and resubstitution, for him or
her and in his or her name, place and stead, in any and all capacities,
including, but not limited to, that listed below, to execute and file, or cause
to be filed, with exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission (hereinafter referred to as the
"Commission") one or more registration statements on Form S-3 or Form S-4 for
the purpose of registering under the Securities Act of 1933, as amended, (the
"Securities Act") debt securities of Lockheed Martin Corporation and amendments
thereto (including post-effective amendments), and all matters required by the
Commission in connection with such registration statements under the Securities
Act, granting unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and thing requisite or
necessary to be done as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said attorney's-in-
fact and agents, and each of them, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
/s/ TODD J. KALLMAN October 22, 1998
---------------------------------
Todd J. Kallman
Chief Accounting Officer
POWER OF ATTORNEY
LOCKHEED MARTIN CORPORATION
The undersigned hereby constitutes Frank H. Menaker, Jr. and Stephen M.
Piper, and each of them, jointly and severally, his or her lawful attorney-in-
fact and agent, with full power of substitution and resubstitution, for him or
her and in his or her name, place and stead, in any and all capacities,
including, but not limited to, that listed below, to execute and file, or cause
to be filed, with exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission (hereinafter referred to as the
"Commission") one or more registration statements on Form S-3 or Form S-4 for
the purpose of registering under the Securities Act of 1933, as amended, (the
"Securities Act") debt securities of Lockheed Martin Corporation and amendments
thereto (including post-effective amendments), and all matters required by the
Commission in connection with such registration statements under the Securities
Act, granting unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and thing requisite or
necessary to be done as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said attorney's-in-
fact and agents, and each of them, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
/s/ GWENDOLYN S. KING October 22, 1998
-----------------------------------
Gwendolyn S. King
Director
POWER OF ATTORNEY
LOCKHEED MARTIN CORPORATION
The undersigned hereby constitutes Frank H. Menaker, Jr. and Stephen M.
Piper, and each of them, jointly and severally, his or her lawful attorney-in-
fact and agent, with full power of substitution and resubstitution, for him or
her and in his or her name, place and stead, in any and all capacities,
including, but not limited to, that listed below, to execute and file, or cause
to be filed, with exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission (hereinafter referred to as the
"Commission") one or more registration statements on Form S-3 or Form S-4 for
the purpose of registering under the Securities Act of 1933, as amended, (the
"Securities Act") debt securities of Lockheed Martin Corporation and amendments
thereto (including post-effective amendments), and all matters required by the
Commission in connection with such registration statements under the Securities
Act, granting unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and thing requisite or
necessary to be done as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said attorney's-in-
fact and agents, and each of them, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
/s/ VINCENT N. MARAFINO October 22, 1998
---------------------------------
Vincent N. Marafino
Director
POWER OF ATTORNEY
LOCKHEED MARTIN CORPORATION
The undersigned hereby constitutes Frank H. Menaker, Jr. and Stephen M.
Piper, and each of them, jointly and severally, his or her lawful attorney-in-
fact and agent, with full power of substitution and resubstitution, for him or
her and in his or her name, place and stead, in any and all capacities,
including, but not limited to, that listed below, to execute and file, or cause
to be filed, with exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission (hereinafter referred to as the
"Commission") one or more registration statements on Form S-3 or Form S-4 for
the purpose of registering under the Securities Act of 1933, as amended, (the
"Securities Act") debt securities of Lockheed Martin Corporation and amendments
thereto (including post-effective amendments), and all matters required by the
Commission in connection with such registration statements under the Securities
Act, granting unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and thing requisite or
necessary to be done as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said attorney's-in-
fact and agents, and each of them, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
/s/ EUGENE F. MURPHY October 22, 1998
----------------------------------
Eugene F. Murphy
Director
POWER OF ATTORNEY
LOCKHEED MARTIN CORPORATION
The undersigned hereby constitutes Frank H. Menaker, Jr. and Stephen M.
Piper, and each of them, jointly and severally, his or her lawful attorney-in-
fact and agent, with full power of substitution and resubstitution, for him or
her and in his or her name, place and stead, in any and all capacities,
including, but not limited to, that listed below, to execute and file, or cause
to be filed, with exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission (hereinafter referred to as the
"Commission") one or more registration statements on Form S-3 or Form S-4 for
the purpose of registering under the Securities Act of 1933, as amended, (the
"Securities Act") debt securities of Lockheed Martin Corporation and amendments
thereto (including post-effective amendments), and all matters required by the
Commission in connection with such registration statements under the Securities
Act, granting unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and thing requisite or
necessary to be done as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said attorney's-in-
fact and agents, and each of them, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
/s/ ALLEN E. MURRAY October 22, 1998
---------------------------------
Allen E. Murray
Director
POWER OF ATTORNEY
LOCKHEED MARTIN CORPORATION
The undersigned hereby constitutes Frank H. Menaker, Jr. and Stephen M.
Piper, and each of them, jointly and severally, his or her lawful attorney-in-
fact and agent, with full power of substitution and resubstitution, for him or
her and in his or her name, place and stead, in any and all capacities,
including, but not limited to, that listed below, to execute and file, or cause
to be filed, with exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission (hereinafter referred to as the
"Commission") one or more registration statements on Form S-3 or Form S-4 for
the purpose of registering under the Securities Act of 1933, as amended, (the
"Securities Act") debt securities of Lockheed Martin Corporation and amendments
thereto (including post-effective amendments), and all matters required by the
Commission in connection with such registration statements under the Securities
Act, granting unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and thing requisite or
necessary to be done as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said attorney's-in-
fact and agents, and each of them, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
/s/ FRANK SAVAGE October 22, 1998
------------------------------
Frank Savage
Director
POWER OF ATTORNEY
LOCKHEED MARTIN CORPORATION
The undersigned hereby constitutes Frank H. Menaker, Jr. and Stephen M.
Piper, and each of them, jointly and severally, his or her lawful attorney-in-
fact and agent, with full power of substitution and resubstitution, for him or
her and in his or her name, place and stead, in any and all capacities,
including, but not limited to, that listed below, to execute and file, or cause
to be filed, with exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission (hereinafter referred to as the
"Commission") one or more registration statements on Form S-3 or Form S-4 for
the purpose of registering under the Securities Act of 1933, as amended, (the
"Securities Act") debt securities of Lockheed Martin Corporation and amendments
thereto (including post-effective amendments), and all matters required by the
Commission in connection with such registration statements under the Securities
Act, granting unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and thing requisite or
necessary to be done as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said attorney's-in-
fact and agents, and each of them, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
/s/ PETER B. TEETS October 22, 1998
-----------------------------------
Peter B. Teets
Director
POWER OF ATTORNEY
LOCKHEED MARTIN CORPORATION
The undersigned hereby constitutes Frank H. Menaker, Jr. and Stephen M.
Piper, and each of them, jointly and severally, his or her lawful attorney-in-
fact and agent, with full power of substitution and resubstitution, for him or
her and in his or her name, place and stead, in any and all capacities,
including, but not limited to, that listed below, to execute and file, or cause
to be filed, with exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission (hereinafter referred to as the
"Commission") one or more registration statements on Form S-3 or Form S-4 for
the purpose of registering under the Securities Act of 1933, as amended, (the
"Securities Act") debt securities of Lockheed Martin Corporation and amendments
thereto (including post-effective amendments), and all matters required by the
Commission in connection with such registration statements under the Securities
Act, granting unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and thing requisite or
necessary to be done as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said attorney's-in-
fact and agents, and each of them, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
/s/ CARLISLE A.H. TROST October 22, 1998
-------------------------------------
Carlisle A.H. Trost
Director
POWER OF ATTORNEY
LOCKHEED MARTIN CORPORATION
The undersigned hereby constitutes Frank H. Menaker, Jr. and Stephen M.
Piper, and each of them, jointly and severally, his or her lawful attorney-in-
fact and agent, with full power of substitution and resubstitution, for him or
her and in his or her name, place and stead, in any and all capacities,
including, but not limited to, that listed below, to execute and file, or cause
to be filed, with exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission (hereinafter referred to as the
"Commission") one or more registration statements on Form S-3 or Form S-4 for
the purpose of registering under the Securities Act of 1933, as amended, (the
"Securities Act") debt securities of Lockheed Martin Corporation and amendments
thereto (including post-effective amendments), and all matters required by the
Commission in connection with such registration statements under the Securities
Act, granting unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and thing requisite or
necessary to be done as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said attorney's-in-
fact and agents, and each of them, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
/s/ JAMES R. UKROPINA October 22, 1998
-----------------------------------
James R. Ukropina
Director
POWER OF ATTORNEY
LOCKHEED MARTIN CORPORATION
The undersigned hereby constitutes Frank H. Menaker, Jr. and Stephen M.
Piper, and each of them, jointly and severally, his or her lawful attorney-in-
fact and agent, with full power of substitution and resubstitution, for him or
her and in his or her name, place and stead, in any and all capacities,
including, but not limited to, that listed below, to execute and file, or cause
to be filed, with exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission (hereinafter referred to as the
"Commission") one or more registration statements on Form S-3 or Form S-4 for
the purpose of registering under the Securities Act of 1933, as amended, (the
"Securities Act") debt securities of Lockheed Martin Corporation and amendments
thereto (including post-effective amendments), and all matters required by the
Commission in connection with such registration statements under the Securities
Act, granting unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and thing requisite or
necessary to be done as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said attorney's-in-
fact and agents, and each of them, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
/s/ DOUGLAS C. YEARLEY January 28, 1999
---------------------------------
Douglas C. Yearley
Director
EXHIBIT 25
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER
THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility of
a Trustee Pursuant to Section 305(b)(2)
_______________________________________________________
U.S. BANK TRUST NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
111 EAST WACKER DRIVE, SUITE 3000
CHICAGO, ILLINOIS 60601 36-4046888
(Address of principal executive offices) (Zip Code) I.R.S. Employer Identification No.
Patricia M. Trlak
111 East Wacker Drive, Suite 3000
Chicago, Illinois 60601
Telephone (312) 228-9448
(Name, address and telephone number of agent for service)
LOCKHEED MARTIN CORPORATION
(Exact name of obligor as specified in its charter)
MARYLAND 52-1893632
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.)
6801 ROCKLEDGE DRIVE
BETHESDA, MARYLAND 20817
(Address of Principal Executive Offices) (Zip Code)
DEBT SECURITIES
(Title of the Indenture Securities)
================================================================================
FORM T-1
--------
ITEM 1. GENERAL INFORMATION. Furnish the following information as to the
Trustee.
a) Name and address of each examining or supervising authority to which
it is subject.
Comptroller of the Currency
Washington, D.C.
b) Whether it is authorized to exercise corporate trust powers.
Yes
ITEM 2. AFFILIATIONS WITH OBLIGOR. If the obligor is an affiliate of the
Trustee, describe each such affiliation.
None
ITEMS 3-15 There is not nor has there been a default with respect to the
securities under this Indenture. The Trustee is a Trustee under
other Indentures under which securities issued by the obligor are
outstanding. There is not and there has not been a default with
respect to the securities outstanding under such other Indentures.
ITEM 16. LIST OF EXHIBITS: List below all exhibits filed as a part of this
statement of eligibility and qualification.
1. A copy of the Articles of Association of the Trustee now in effect,
incorporated herein by reference to Exhibit 1 of Form T-1,
Registration No. 333-18235.*
2. A copy of the certificate of authority of the Trustee to commence
business, incorporated herein by reference to Exhibit 2 of Form T-1,
Registration No. 333-18235.*
3. A copy of the certificate of authority of the Trustee to exercise
corporate trust powers, incorporated herein by reference to Exhibit
3 of Form T-1, Registration No. 333-18235.*
4. A copy of the existing bylaws of the Trustee, as now in effect,
incorporated herein by reference to Exhibit 4 of Form T-1,
Registration No. 333-18235.*
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Trust
Indenture Act of 1939, incorporated herein by reference to Exhibit 6
of Form T-1, Registration No. 333-18235.*
7. A copy of the latest report of condition of the Trustee published
pursuant to law or the requirements of its supervising or examining
authority, filed herewith .
8. Not applicable.
9. Not applicable.
2
* Exhibits thus designated are incorporated herein by reference to Exhibits
bearing identical numbers in Item 16 of the Form T-1 filed by the Trustee with
the Securities and Exchange Commission with the specific references noted.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the
Trustee, U.S. BANK TRUST NATIONAL ASSOCIATION, a national banking association
organized and existing under the laws of the United States of America, has duly
caused this statement of eligibility and qualification to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of
Chicago, State of Illinois on the 29th day of January, 1999.
U.S. BANK TRUST NATIONAL ASSOCIATION
By: /s/ Patricia M. Trlak
--------------------------------------
Patricia M. Trlak
Vice President and Assistant Secretary
3
Consolidated Report of Condition for Insured Commercial and State-Chartered
Savings Banks for September 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
Schedule RC - Balance Sheet
C200
Dollar Amounts in Thousands
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ASSETS
1. Cash and balances due from depository
institutions (from Schedule RC-A): RCON
a. Noninterest-bearing balances and currency ----
and coin (1).................................. 0081 10,441 1.a
b. Interest-bearing balances (2)................. 0071 47,750 1.b
2. Securities:
a. Held-to-maturity securities (from
Schedule RC-B, column A)...................... 1754 0 2.a
b. Available-for-sale securities (from
Schedule RC-B, column D)...................... 1773 3,726 2.b
3. Federal funds sold and securities purchased
under agreements to resell....................... 1350 0 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income
(from Schedule RC-C).......................... 2122 0 4.a
b. LESS: Allowance for loan and lease losses..... 3123 0 4.b
c. LESS: Allocated transfer risk reserve......... 3128 0 4.c
d. Loans and leases, net of unearned income,
allowance, and reserve (item 4.a minus 4.b
and 4.c)...................................... 2125 0 4.d
5. Trading assets................................... 3545 0 5.
6. Premises and fixed assets (including
capitalized leases).............................. 2145 93 6.
7. Other real estate owned (from Schedule RC-M)..... 2150 0 7.
8. Investments in unconsolidated subsidiaries
and associated companies (from Schedule RC-M).... 2130 0 8.
9. Customers' liability to this bank on
acceptances outstanding.......................... 2155 0 9.
10. Intangible assets (from Schedule RC-M)........... 2143 45,439 10.
11. Other assets (from Schedule RC-F)................ 2160 2,888 11.
12. Total assets (sum of items 1 through 11)......... 2170 110,337 12.
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(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
Schedule RC - CONTINUED
Dollar Amounts in Thousands
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LIABILITIES
13. Deposits: RCON
a. In domestic offices (sum of totals of ----
columns A and C from Schedule RC-E)............. 2200 0 13.a
(1) Noninterest-bearing (1) .................... 6631 0 13.a.1
(2) Interest-bearing............................ 6636 0 13.a.2
b. In foreign offices, Edge and Agreement
subsidiaries, and IBFs..........................
(1) Non-interest bearing........................
(2) Interest-bearing............................
14. Federal funds purchased and securities sold
under agreements to repurchase..................... 2800 0 14.
15. a. Demand notes issued to the U.S. Treasury........ 2840 0 15.a
b. Trading liabilities............................. 3548 0 15.b
16. Other borrowed money (includes mortgage
indebtedness and obligations under capitalized
leases)............................................
a. With a remaining maturity of one year or less... 2332 0 16.a
b. With a remaining maturity of more than one
year through three years........................ A547 0 16.b
c. With a remaining maturity of more than three
years........................................... A548 0 16.c
17. Not applicable
18. Bank's liability on acceptances executed and
outstanding........................................ 2920 0 18.
19. Subordinated notes and debentures (2) ............. 3200 0 19.
20. Other liabilities (from Schedule RC-G)............. 2930 2,543 20.
21. Total liabilities (sum of items 13 through 20)..... 2948 2,543 21.
22. Not applicable.....................................
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus...... 3838 0 23.
24. Common Stock....................................... 3230 1,000 24.
25. Surplus (exclude all surplus related to preferred
stock)............................................. 3839 106,712 25.
26. a. Undivided profits and capital reserves.......... 3632 78 26.a
b. Net unrealized holding gains (losses) on
available-for-sale securities................... 8434 4 26.b
27. Cumulative foreign currency translation
adjustments........................................
28. Total equity capital (sum of items 23 through 27).. 3210 107,794 28.
29. Total liabilities and equity capital (sum of
items 21 and 28)................................... 3300 110,337 29.
Memorandum
TO BE REPORTED ONLY WITH THE MARCH REPORT OF CONDITION.
1. Indicate in the box at the right the number of the
statement below that best describes the most
comprehensive level of auditing work performed for
the bank by independent external auditors as of
any date during 1997............................... 6724 N/A M.1
1= Independent audit of the bank conducted in accordance with generally accepted
auditing standards by a certified public accounting firm which submits a
report on the bank
2= Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3= Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4= Directors' examination of the bank performed by other external auditors (may
be required by state chartering authority)
5= Review of the bank's financial statements by external auditors
6= Compilation of the bank's financial statements by external auditors
7= Other audit procedures (excluding tax preparation work)
8= No external audit work
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(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited life preferred stock and related surplus.
Schedule RC-A - Cash and Balances Due from Depository Institutions
Exclude assets held for trading
C205
Dollar Amounts in Thousands
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1. Cash items in process of collection, unposted RCON
debits, and currency and coin: ----
a. Cash items in process of collection and
unposted debits................................. 0020 0 1.a
b. Currency and coin............................... 0080 0 1.b
2. Balances due from depository institutions in
the U.S.:
a. U.S. branches and agencies of foreign banks..... 0083 0 2.a
b. Other commercial banks in the U.S. and other
depository institutions in the U.S.............. 0085 58,191 2.b
3. Balances due from banks in foreign countries and
foreign central banks
a. Foreign branches of other U.S. banks............ 0073 0 3.a
b. Other banks in foreign countries and foreign
central banks................................... 0074 0 3.b
4. Balances due from Federal Reserve Banks............ 0090 0 4.
5. Total (sum of items 1 through 4) (must equal
Schedule RC, sum of items 1.a and 1.b)............. 0010 58,191 5.
Memorandum Dollars Amounts in Thousands
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1. Noninterest-bearing balances due from RCON
commercial banks in the U.S. (included in ----
items 2.a and 2.b above)........................... 0050 10,441 M.1
