<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 8, 1996
REGISTRATION NO. 333-01939
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
--------------
PRE-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
LOCKHEED MARTIN LOCKHEED MARTIN
CORPORATION TACTICAL SYSTEMS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
--------------
MARYLAND NEW YORK
(STATE OR OTHER JURISDICTION OF INCORPORATION OR ORGANIZATION)
52-1893632 13-1718360
(I.R.S. EMPLOYER IDENTIFICATION NO.)
6801 ROCKLEDGE DRIVE
BETHESDA, MARYLAND 20817
(301) 897-6000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANTS' PRINCIPAL EXECUTIVE OFFICES)
--------------
FRANK H. MENAKER, JR.
VICE PRESIDENT AND 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)
--------------
COPIES TO:
GLENN C. CAMPBELL JOHN W. WHITE
MILES & STOCKBRIDGE CRAVATH, SWAINE & MOORE
A PROFESSIONAL CORPORATION WORLDWIDE PLAZA
10 LIGHT STREET 825 EIGHTH AVENUE
BALTIMORE, MARYLAND 21202 NEW YORK, NEW YORK 10019-7475
(410) 727-6464 (212) 474-1000
--------------
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]
--------------
CALCULATION OF REGISTRATION FEE
<TABLE>
- ----------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------
<CAPTION>
TITLE OF EACH CLASS OF PROPOSED MAXIMUM PROPOSED MAXIMUM
SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED(1)(2) PER UNIT(3) OFFERING PRICE(3) REGISTRATION FEE
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities......... $5,000,000,000 100% $5,000,000,000 $1,724,138(4)
- ----------------------------------------------------------------------------------------------
Guarantees of Debt Secu-
rities (5)............. (5) (5) (5) None
- ----------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------
</TABLE>
(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 and related Guarantees
is entered into by the Registrants.
(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
$5,000,000,000.
(3) Estimated solely for purposes of calculating the registration fee.
(4) Previously paid.
(5) No separate consideration will be received for the Guarantees.
--------------
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.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED MAY 8, 1996
PROSPECTUS SUPPLEMENT TO PROSPECTUS DATED MAY , 1996
$2,200,000,000
LOCKHEED MARTIN CORPORATION
$400,000,000 % NOTES DUE 1999
$600,000,000 % NOTES DUE 2001
$500,000,000 % NOTES DUE 2006
$400,000,000 % DEBENTURES DUE 2016
$300,000,000 % DEBENTURES DUE 2026
GUARANTEED BY
LOCKHEED MARTIN TACTICAL SYSTEMS, INC.
----------
The % Notes Due 1999, % Notes Due 2001, % Notes Due 2006, % Debentures
Due 2016, and % Debentures Due 2026 (collectively, the "Offered Debt
Securities" or the "Securities") will be unsecured obligations of Lockheed
Martin Corporation (the "Corporation"), and the payment of the principal of and
interest on the Offered Debt Securities will be fully and unconditionally
guaranteed by Lockheed Martin Tactical Systems, Inc. ("Tactical Systems" or the
"Guarantor"), a wholly owned subsidiary of the Corporation. The guarantees of
Tactical Systems in respect of the Offered Debt Securities will be unsecured
obligations of Tactical Systems and are referred to herein as the "Guarantees."
Interest on the % Notes Due 1999, the % Notes Due 2001 and the % Notes Due
2006 is payable on November 15 and May 15 of each year, commencing November 15,
1996. Interest on the % Debentures Due 2016 and the % Debentures Due 2026
is payable on November 1 and May 1 of each year, commencing November 1, 1996.
Each tranche of the Offered Debt Securities will be represented by global
securities ("Global Securities") registered in the name of The Depository Trust
Company ("DTC") or its nominee. Interests in the Global Securities will be
shown on, and transfers thereof will be effected only through, records
maintained by DTC and its participants. Except as described in "Description of
Securities--Book Entry Securities," Offered Debt Securities in definitive form
will not be issued.
----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THESECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSIONPASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS SUPPLEMENT OR THE PROSPECTUS TO
WHICH IT RELATES. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
----------
<TABLE>
<CAPTION>
INITIAL PUBLIC UNDERWRITING PROCEEDS TO
OFFERING PRICE(1) DISCOUNT(2) CORPORATION(1)(3)
----------------- ------------ -----------------
<S> <C> <C> <C>
Per % Note Due 1999.......... % % %
Total......................... $ $ $
Per % Note Due 2001.......... % % %
Total......................... $ $ $
Per % Note Due 2006.......... % % %
Total......................... $ $ $
Per % Debenture Due 2016..... % % %
Total......................... $ $ $
Per % Debenture Due 2026..... % % %
Total......................... $ $ $
</TABLE>
- -----
(1) Plus accrued interest, if any, from May , 1996.
(2) The Corporation and the Guarantor have agreed to indemnify the Underwriters
against certain liabilities, including certain liabilities under the
Securities Act of 1933.
(3) Before deducting estimated expenses of $1,725,000 payable by the
Corporation.
----------
The Securities offered hereby are offered severally by the Underwriters, as
specified herein, subject to receipt and acceptance by them and subject to
their right to reject any order in whole or in part. It is expected that the
Securities will be ready for delivery in book-entry form only through the
facilities of DTC in New York, New York on or about May , 1996, against
payment therefor in immediately available funds.
GOLDMAN, SACHS & CO.
CS FIRST BOSTON
MERRILL LYNCH & CO.
J.P. MORGAN & CO.
----------
The date of this Prospectus Supplement is May , 1996.
<PAGE>
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE SECURITIES AT
LEVELS ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH
STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
----------------
THE CORPORATION
The following summary of the business of the Corporation is qualified in its
entirety by and should be read together with the more detailed information and
financial statements included or incorporated by reference in this Prospectus
Supplement and the Prospectus.
The Corporation, which was incorporated in Maryland on August 29, 1994, to
effect the combination of the businesses of Martin Marietta Corporation and
Lockheed Corporation, is a diversified enterprise principally engaged in the
conception, research, development, design, manufacture and integration of
advanced technology products and services. The Corporation conducts its
principal business through six major operating sectors: Space & Strategic
Missiles; Aeronautics; Information & Technology Services; Electronics; Energy
& Environment; and Tactical Systems. The Tactical Systems Sector consists of
the defense electronics and systems integration businesses of the former Loral
Corporation recently acquired by the Corporation (the "Loral Transaction").
See "Recent Developments--Loral Transaction." Those businesses currently are
being conducted through Tactical Systems, a wholly owned subsidiary of the
Corporation.
The Corporation, a Maryland corporation, and Tactical Systems, a New York
corporation, maintain their principal executive offices at 6801 Rockledge
Drive, Bethesda, Maryland 20817 (telephone number (301) 897-6000).
RECENT DEVELOPMENTS
LORAL TRANSACTION
On January 7, 1996, the Corporation and its wholly-owned subsidiary, LAC
Acquisition Corporation ("LAC"), entered into an Agreement and Plan of Merger
(the "Loral Merger Agreement") with Loral Corporation ("Loral") pursuant to
which LAC agreed to commence a tender offer to purchase all the issued and
outstanding shares of common stock of Loral (together with the associated
preferred stock purchase rights) for an aggregate consideration of $38 per
share, net to the Seller in cash, without interest (the "Tender Offer"). The
Tender Offer was made as part of a series of transactions that resulted in (i)
the distribution, to stockholders of Loral immediately prior to the
consummation of the Tender Offer, of shares of capital stock in Loral Space &
Communications, Ltd. ("Loral SpaceCom"), a newly-formed Bermuda company, which
now owns and manages substantially all of Loral's former space and satellite
telecommunications interests, including Loral's direct and indirect interests
in Globalstar, L.P. and Space Systems/Loral, Inc. and certain other assets of
Loral, and (ii) the acquisition by the Corporation of Loral's defense
electronics and systems integration businesses.
In accordance with the terms of the Tender Offer and the Loral Merger
Agreement, on April 23, 1996, LAC purchased approximately 94.5% of the
outstanding shares of common stock of Loral. On April 29, 1996, in accordance
with the terms of the Loral Merger Agreement, LAC merged with and into Loral
and pursuant thereto each remaining share of common stock of Loral not owned
by LAC was converted into the right to receive $38, each outstanding share of
common stock of LAC was converted into shares of common stock of Loral, and
Loral changed its name to Lockheed Martin Tactical Systems, Inc. As a result
of these transactions, Tactical Systems became a wholly owned subsidiary of
the Corporation.
S-2
<PAGE>
In connection with the transactions contemplated by the Loral Merger
Agreement and the related agreements between the Corporation and Loral, the
Corporation acquired shares of preferred stock of Loral SpaceCom that are
convertible into 20% of Loral SpaceCom's common stock on a fully diluted
basis. The Corporation's ownership of the preferred stock of Loral SpaceCom is
subject to certain limitations and restrictions set forth in the terms and
conditions of the preferred stock and in agreements between the Corporation
and Loral SpaceCom.
On April 18, 1996, in connection with the early termination of the waiting
period under the Hart-Scott-Rodino Antitrust Improvements Act by the United
States Federal Trade Commission (the "FTC"), the Corporation entered into an
agreement containing consent order (the "Consent Agreement") with the FTC. The
Consent Agreement obligates the Corporation to enter into a proposed consent
order (the "Consent Order"), subject to a 60-day public notice and comment
period and final approval of the Consent Order by the FTC. Under the Consent
Agreement, the terms of the proposed Consent Order are applicable to the
Corporation during the 60-day public review period and until the final Consent
Order is entered or withdrawn. The terms of the proposed Consent Order provide
for the Corporation to divest its systems engineering and technical services
contract with the Federal Aviation Administration; prohibit the Corporation
from providing certain technical services or information to Space
Systems/Loral, a subsidiary of Loral SpaceCom; restrict participation and
compensation of persons who serve as directors or officers of both the
Corporation and Loral SpaceCom; limit the Corporation's ownership of Loral
SpaceCom; and require "firewalls" to limit information flow about competitors'
military aircraft and unmanned aerial vehicles.
In connection with the consummation of the Tender Offer and the transactions
contemplated by the Loral Merger Agreement, the Corporation entered into
revolving credit facilities (the "Credit Facilities") with a syndicate of
commercial banks that provide for loans in an aggregate amount of up to $10
billion. The Credit Facilities consist of a 364-day unsecured revolving credit
facility in the amount of $5 billion and a 5-year unsecured revolving credit
facility in the amount of $5 billion. The funds for the consummation of the
Tender Offer and the transactions contemplated by the Loral Merger Agreement
were provided through the issuance of commercial paper and through borrowings
under the Credit Facilities. Management of the Corporation is in the process
of evaluating potential near-term actions that may permit the Corporation to
reduce its long-term debt, including but not limited to the disposition of
non-core businesses and surplus properties.
RECENT FINANCIAL RESULTS
The Corporation recently announced the following financial results for the
three months ended March 31, 1996 and for the comparable period in 1995:
<TABLE>
<CAPTION>
(UNAUDITED)
THREE MONTHS ENDED
MARCH 31,
---------------------
1996 1995
---------- ----------
(IN MILLIONS, EXCEPT
PER SHARE AMOUNTS)
<S> <C> <C>
Net sales............................................. $ 5,109 $ 5,644
Earnings from operations.............................. 472 290(a)
Net earnings.......................................... 272 137(a)
Earnings per common share, assuming full dilution..... $ 1.22 $ .62(a)
</TABLE>
- --------
(a)Amounts for 1995 include a pretax charge of $165 million ($110 million
after tax, or $.50 per common share, assuming full dilution) for merger
related expenses.
S-3
<PAGE>
INTERNAL REORGANIZATION
On January 28, 1996, the Corporation consummated an internal reorganization
pursuant to which its wholly-owned subsidiaries, Martin Marietta Technologies,
Inc., Martin Marietta Corporation, Lockheed Sanders Corporation, Lockheed
Missiles and Space Company, Inc. and Lockheed Corporation, were merged in a
series of transactions into the Corporation. As a result, the businesses
previously conducted by those former subsidiaries and the Corporation now are
conducted by the Corporation.
USE OF PROCEEDS
The net proceeds from the sale of the Offered Debt Securities, estimated to
be $ , will be used to repay indebtedness incurred in connection with the
consummation of the Loral Transaction, for the working capital requirements of
the Corporation and its subsidiaries, and for general corporate purposes. The
indebtedness to be repaid represents a portion of the indebtedness incurred
under the Credit Facilities and upon the issuance of commercial paper, which
currently bear interest at a weighted average rate of 5.57% per annum with a
weighted average maturity of 33 days.
CAPITALIZATION
The following table sets forth the consolidated capitalization of the
Corporation (i) as of December 31, 1995, (ii) as adjusted to reflect the
consummation of the Loral Transaction on a pro forma basis, and (iii) as
adjusted to reflect on a pro forma basis the issuance of the Securities
offered hereby and the application of the estimated proceeds therefrom to
repay a portion of the indebtedness incurred in connection with the Loral
Transaction.
<TABLE>
<CAPTION>
AS OF DECEMBER 31, 1995
--------------------------------------
LORAL TRANSACTION PRO FORMA
ACTUAL PRO FORMA AS ADJUSTED
------- ----------------- -----------
(IN MILLIONS)
<S> <C> <C> <C>
Short-term debt and current maturities
of long-term debt.................... $ 722 $ 1,344 $ 1,344
------- ------- -------
Long-term debt:
% Notes Due 1999................... -- -- 400
% Notes Due 2001................... -- -- 600
% Notes Due 2006................... -- -- 500
% Debentures Due 2016.............. -- -- 400
% Debentures Due 2026.............. -- -- 300
Other............................... 3,010 11,879(a) 9,679(a)
------- ------- -------
Total long-term debt.............. 3,010 11,879 11,879
Stockholders' equity:
Series A preferred stock............ 1,000 1,000 1,000
Common stock........................ 199 199 199
Additional paid-in capital.......... 683 683 683
Retained earnings................... 4,838 4,838 4,838
Unearned ESOP shares................ (287) (287) (287)
------- ------- -------
Total stockholders' equity........ 6,433 6,433 6,433
------- ------- -------
Total capitalization.................. $10,165 $19,656 $19,656
======= ======= =======
</TABLE>
- --------
(a) Includes commercial paper classified as long-term debt.
S-4
<PAGE>
UNAUDITED PRO FORMA COMBINED CONDENSED FINANCIAL STATEMENTS
The following unaudited pro forma combined condensed financial statements
have been prepared by the Corporation's management from the historical
consolidated financial statements of the Corporation and of Tactical Systems
(formerly Loral Corporation and Subsidiaries--Retained Business). The
unaudited pro forma combined condensed statement of earnings reflects
adjustments as if the Loral Transaction had occurred on January 1, 1995. The
unaudited pro forma combined condensed balance sheet reflects adjustments as
if the Loral Transaction had occurred on December 31, 1995. See "--Note 1--
Basis of Presentation." The unaudited pro forma adjustments described in the
accompanying notes are based upon preliminary estimates and certain
assumptions that management of the Corporation believes are reasonable in the
circumstances.
The unaudited pro forma combined condensed financial statements are not
necessarily indicative of financial position or results of operations that
would have resulted if the Loral Transaction had occurred on the applicable
dates indicated above. Moreover, they are not intended to be indicative of
future results of operations or financial position. The unaudited pro forma
combined condensed financial statements should be read in conjunction with the
historical consolidated financial statements of the Corporation and related
notes thereto, and the historical financial statements of Tactical Systems and
related notes thereto, both of which are incorporated by reference in the
Prospectus.
UNAUDITED PRO FORMA COMBINED CONDENSED STATEMENT OF EARNINGS
<TABLE>
<CAPTION>
FOR THE YEAR ENDED DECEMBER 31, 1995
---------------------------------------------------
LOCKHEED TACTICAL RECLASS- PRO FORMA PRO FORMA
MARTIN SYSTEMS IFICATIONS ADJUSTMENTS COMBINED
-------- -------- ---------- ----------- ---------
(IN MILLIONS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C>
Net sales.................. $22,853 $6,179 $-- $(173)(e) $28,859
Cost and expenses
Cost of sales............ 20,881 5,494 30 (173)(e) 26,401
169 (f)
Merger related and
consolidation expenses.. 690 -- -- -- 690
------- ------ ---- ----- -------
Earnings from operations... 1,282 685 (30) (169) 1,768
Other income and expenses,
net....................... 95 12 -- -- 107
------- ------ ---- ----- -------
1,377 697 (30) (169) 1,875
Interest expense........... 288 118 -- 482 (g) 888
------- ------ ---- ----- -------
Earnings before income
taxes..................... 1,089 579 (30) (651) 987
Income tax expense......... 407 220 (30) (178)(h) 419
------- ------ ---- ----- -------
Net earnings............... $ 682 $ 359 $-- $(473) $ 568
======= ====== ==== ===== =======
Earnings per common share:
Assuming no dilution..... $ 3.28 N/A $ 2.69
======= ====== =======
Assuming full dilution... $ 3.05 N/A $ 2.55
======= ====== =======
</TABLE>
S-5
<PAGE>
UNAUDITED PRO FORMA COMBINED CONDENSED BALANCE SHEET
<TABLE>
<CAPTION>
AS OF DECEMBER 31, 1995
---------------------------------------------------------------
LOCKHEED TACTICAL PRO FORMA PRO FORMA
MARTIN SYSTEMS RECLASSIFICATIONS ADJUSTMENTS COMBINED
-------- -------- ----------------- ----------- ---------
(IN MILLIONS)
<S> <C> <C> <C> <C> <C>
ASSETS
Current assets:
Cash and cash
equivalents.......... $ 653 $ 227 $ -- $ -- $ 880
Receivables........... 3,876 -- 1,053 -- 4,929
Inventories........... 2,804 -- 445 -- 3,249
Contracts in process.. -- 1,376 (1,376) -- --
Other current assets.. 844 296 (122) -- 1,018
------- ------ ------- ------- -------
Total current
assets............. 8,177 1,899 -- -- 10,076
Property, plant and
equipment.............. 3,165 1,287 -- -- 4,452
Intangible assets
related to contracts
and programs acquired.. 1,808 -- -- 700 (b) 2,508
Cost in excess of net
assets acquired........ 2,817 1,774 -- 5,725 (b) 10,316
Other assets............ 1,681 621 158 467 (b)(c) 2,927
------- ------ ------- ------- -------
$17,648 $5,581 $ 158 $ 6,892 $30,279
======= ====== ======= ======= =======
LIABILITIES AND
STOCKHOLDERS' EQUITY
Current liabilities:
Customer advances and
amounts in excess of
costs incurred....... $ 1,570 $ 446 $ -- $ -- $ 2,016
Debt (short-term and
current maturities).. 722 1 -- 621 (d) 1,344
Other current
liabilities.......... 2,999 750 -- 830 (b) 4,579
------- ------ ------- ------- -------
Total current
liabilities........ 5,291 1,197 -- 1,451 7,939
Long-term debt.......... 3,010 1,869 -- 7,000 (d) 11,879
Post-retirement benefit
liabilities............ 1,778 603 165 (107)(b) 2,439
Other liabilities....... 1,136 196 (7) 264 (b) 1,589
Stockholders' equity
Series A preferred
stock................ 1,000 -- -- -- 1,000
Common stock.......... 199 -- -- -- 199
Additional paid-in-
capital.............. 683 -- -- -- 683
Retained earnings..... 4,838 -- -- -- 4,838
Unearned ESOP shares.. (287) -- -- -- (287)
Net assets............ -- 1,716 -- (1,716)(b) --
------- ------ ------- ------- -------
Total stockholders'
equity............. 6,433 1,716 -- (1,716) 6,433
------- ------ ------- ------- -------
$17,648 $5,581 $ 158 $ 6,892 $30,279
======= ====== ======= ======= =======
</TABLE>
See accompanying notes to unaudited pro forma combined condensed financial
statements.
S-6
<PAGE>
NOTES TO UNAUDITED PRO FORMA
COMBINED CONDENSED FINANCIAL STATEMENTS
1. BASIS OF PRESENTATION
The accompanying unaudited pro forma combined condensed statement of
earnings presents the historical results of operations of the Corporation and
Tactical Systems for the year ended December 31, 1995, with pro forma
adjustments as if the Loral Transaction had occurred on January 1, 1995. The
unaudited pro forma combined condensed balance sheet presents the historical
balance sheets of the Corporation and Tactical Systems as of December 31,
1995, with pro forma adjustments as if the Loral Transaction had been
consummated as of December 31, 1995, in a transaction accounted for as a
purchase in accordance with generally accepted accounting principles.
Certain reclassifications have been made to the historical financial
statements of the Corporation and Tactical Systems to conform to the unaudited
pro forma combined condensed financial statement presentation.
2. PRO FORMA ADJUSTMENTS
The following adjustments are provided to reflect the Loral Transaction on a
pro forma basis (in millions):
(a) To record the consideration assumed to be exchanged for Tactical
Systems (financed by the issuance of debt):
<TABLE>
<S> <C>
Obligation for all of the Loral common shares....................... $6,884
Estimated transaction costs......................................... 125
------
$7,009
======
</TABLE>
(b) To adjust the assets and liabilities of Tactical Systems to their
estimated fair values (such estimated fair values are subject to
possible adjustment from future valuation analyses):
<TABLE>
<S> <C>
Net assets of Tactical Systems at December 31, 1995................. $1,716
Fair value adjustments:
Intangible assets related to contracts and programs acquired...... 700
Prepaid pension assets............................................ (145)
Other current liabilities......................................... (830)
Post-retirement benefit liabilities............................... 107
Deferred income tax liabilities................................... (264)
Cost in excess of net assets acquired............................. 5,725
------
$7,009
======
</TABLE>
(c) To record the Corporation's $612 million investment in Loral SpaceCom
financed by the issuance of debt.
(d) To record the assumed issuance of debt to finance the Loral
Transaction:
<TABLE>
<S> <C>
Long-term debt obligations.......................................... $7,000
Short-term debt obligations......................................... 621
------
$7,621
======
</TABLE>
(e) To eliminate intercompany sales and cost of sales. No adjustments have
been made to eliminate the related intercompany profit in ending
inventories and the net intercompany receivables and payables at
December 31, 1995 as such amounts are not material.
S-7
<PAGE>
(f) To record the amortization of estimated intangible assets related to
contracts and programs acquired (over an estimated life of 12 years)
and estimated cost in excess of net assets acquired (over an estimated
life of 40 years), net of the state income tax benefit on the net pro
forma adjustments.
(g) To record estimated interest expense (at a blended interest rate
approximating 6.3%) resulting from the assumed issuance of debt
obligations.
(h) To record the federal income tax effect, using a 35% statutory rate, on
the net pro forma adjustments.
The accompanying unaudited pro forma combined condensed financial statements
do not include the effects of any estimated transition or restructuring costs
which may be incurred in connection with integrating the operations of
Tactical Systems into the Corporation. It is not feasible at this time to
estimate these costs. Similarly, no effects for changes in costs related to
Tactical Systems employee pension and post-retirement benefits have been
included as such changes cannot be estimated at this time.
The unaudited pro forma combined condensed statement of earnings does not
reflect any net cost savings or economies of scale that management believes
would have been achieved had the Loral Transaction occurred on January 1,
1995.
3. COMPUTATION OF PRO FORMA EARNINGS PER SHARE
(In millions, except per share data)
<TABLE>
<CAPTION>
FOR THE YEAR ENDED
DECEMBER 31, 1995
------------------
<S> <C>
Assuming No Dilution
Net earnings........................................ $ 568
Less preferred stock dividends...................... 60
-----
Net earnings attributable to common stock........... $ 508
=====
Weighted average number of common shares
outstanding........................................ 189
=====
$2.69
=====
Assuming Full Dilution
Net earnings........................................ $ 568
=====
Weighted average number of common shares
outstanding........................................ 189
Assumed conversion of Series A Preferred Stock...... 29
Dilutive effect of stock options (Treasury stock
method)............................................ 5
-----
223
=====
$2.55
=====
</TABLE>
S-8
<PAGE>
SELECTED CONSOLIDATED FINANCIAL INFORMATION
Lockheed Martin Corporation
The following table presents selected historical consolidated financial
information of the Corporation that has been derived from the Corporation's
audited consolidated financial statements which are incorporated by reference
in the Prospectus. The information is qualified in its entirety by, and should
be read in conjunction with, those consolidated financial statements and
related footnotes thereto.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------
1995 1994 1993
------- ------- -------
(IN MILLIONS, EXCEPT
PER SHARE AMOUNTS)
<S> <C> <C> <C>
INCOME STATEMENT DATA:
Net sales
Space & Strategic Missiles...................... $ 7,521 $ 6,719 $ 7,293
Aeronautics..................................... 6,617 7,091 6,601
Information & Technology Services............... 4,528 4,271 3,712
Electronics..................................... 3,294 4,055 4,092
Energy, Materials and Other (a)................. 893 770 699
------- ------- -------
Total.......................................... $22,853 $22,906 $22,397
======= ======= =======
Operating profit
Space & Strategic Missiles...................... $ 431 $ 476 $ 507
Aeronautics..................................... 394 511 479
Information & Technology Services............... 269 228 145
Electronics..................................... 261 456 331
Energy, Materials and Other (a)................. 22 308 122
------- ------- -------
Total.......................................... $ 1,377 $ 1,979 $ 1,584
======= ======= =======
Net earnings..................................... $ 682 $ 1,018 $ 829
Earnings per common share, assuming full dilu-
tion............................................ $ 3.05 $ 4.66 $ 3.75
CASH FLOW DATA:
Depreciation and amortization.................... $ 921 $ 937 $ 936
Expenditures for property, plant and equipment... 531 509 536
Dividends on common and preferred stock.......... 314 274 260
</TABLE>
<TABLE>
<CAPTION>
AS OF
DECEMBER 31,
---------------
1995 1994
------- -------
(IN MILLIONS)
<S> <C> <C>
BALANCE SHEET DATA:
Cash and cash equivalents.................................... $ 653 $ 639
Total assets................................................. 17,648 18,049
Total debt................................................... 3,732 3,879
Stockholders' equity......................................... 6,433 6,086
</TABLE>
- --------
(a) Includes Energy and Environment Sector, Materials and businesses not
included in the other business segments.
S-9
<PAGE>
Lockheed Martin Tactical Systems, Inc.
The selected financial information for the fiscal years ended March 31,
1995, 1994 and 1993 presented below has been derived from Tactical Systems'
audited consolidated financial statements incorporated by reference in the
Prospectus. Historical financial data at and for the nine month periods ended
December 31, 1995 and 1994 have been derived from Tactical Systems' unaudited
financial statements incorporated by reference in the Prospectus and, in the
opinion of Tactical Systems' management, include all adjustments (consisting
of normal recurring accruals) necessary for a fair presentation of its
financial position, results of operations and cash flows. The information is
qualified in its entirety by, and should be read in conjunction with, those
consolidated financial statements and related footnotes thereto.
<TABLE>
<CAPTION>
NINE MONTHS ENDED YEAR ENDED
DECEMBER 31, MARCH 31,
----------------- --------------------
1995 1994 1995 1994 1993
-------- -------- ------ ------ ------
(IN MILLIONS)
<S> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Sales................................ $ 4,720 $ 4,025 $5,484 $4,009 $3,335
Operating income..................... 502 382 565 401 295
Income before extraordinary item and
cumulative effect of changes in ac-
counting............................ 258 195 296 232 164
Net income (loss).................... 258 195 296 232 (80)
CASH FLOW DATA:
Depreciation and amortization........ $ 201 $ 197 $ 250 $ 178 $ 154
Capital expenditures................. 81 80 123 103 97
</TABLE>
<TABLE>
<CAPTION>
MARCH 31,
DECEMBER 31, -------------
1995 1995 1994
------------ ------ ------
(IN MILLIONS)
<S> <C> <C> <C>
BALANCE SHEET DATA:
Cash and cash equivalents......................... $ 227 $ 126 $ 238
Total assets...................................... 5,581 4,558 5,017
Total debt........................................ 1,870 1,316 1,798
Net assets........................................ 1,716 1,435 1,222
</TABLE>
S-10
<PAGE>
BUSINESS OF THE CORPORATION
The Corporation is a diversified enterprise principally engaged in the
conception, research, development, design, manufacture and integration of
advanced technology products and services. Prior to the consummation of the
Loral Transaction, the Corporation conducted its principal business through
five major operating sectors: Space & Strategic Missiles; Aeronautics;
Information & Technology Services; Electronics; and Energy & Environment.
Space & Strategic Missiles Sector
The Space & Strategic Missiles Sector's activities include the design,
development, engineering and production of civil, commercial and military
space systems, including spacecraft, space launch vehicles and supporting
ground systems and services; satellites; strategic fleet ballistic missiles;
tactical missile systems electronics and instrumentation; remote sensing
technology; space- and ground-based strategic systems; and surface- and space-
based information and communications systems.
Major programs of the Space & Strategic Missiles Sector include the Titan IV
expendable launch vehicle, the Trident II submarine launched fleet ballistic
missile, the Atlas expendable launch vehicle and the production of various
government and commercial satellites including environmental monitoring
satellites, military and civilian communications satellites and the THAAD
ground-based theater air defense system. Through the Space & Strategic
Missiles Sector, the Corporation is also involved in a partnership with
Russian aerospace firms with world-wide rights to Russia's Proton rocket. The
Space & Strategic Missiles Sector is also engaged in a substantial amount of
classified activities.
Aeronautics Sector
The Aeronautics Sector is involved in the design, development, engineering
and production of fighter, bomber, special mission, airlift, antisubmarine
warfare, reconnaissance and surveillance and high performance aircraft;
systems for military operations; aircraft controls and subsystems; thrust
reversers and shipboard vertical launching systems; and aircraft modification
and maintenance and logistics for military and civilian customers.
The Corporation is the prime contractor on the F-16 "Fighting Falcon"
fighter aircraft and on the Air Force's F-22 air superiority fighter program
and produces the C-130 series military airlift aircraft. The Corporation is
also involved in upgrading aircraft, including the U-2 and SR-71
reconnaissance aircraft, the F-117 fighter bomber and the C130J military
airlift aircraft, and designs, produces and supports missile launching systems
such as the Vertical Launching System for the U.S. Navy and international
customers. Activity in the commercial aircraft business continues in the areas
of maintenance and modifications through the Corporation's Aircraft Services
Company and production of thrust reversers for commercial jet engines. Through
the Skunk Works, the Aeronautics Sector performs a substantial amount of
classified work.
Information & Technology Services Sector
The Information & Technology Services Sector is involved in the development
and operation of large, complex information systems; designing, manufacturing
and marketing computer graphics products; developing and manufacturing high
capacity data storage products; electronics manufacturing services; and
providing advanced transportation systems and services, and payload
integration, astronaut training and flight operations support.
The Corporation's CalComp, Access Graphics and MountainGate businesses are
involved in commercial markets for computer graphics, hardware distribution
and data storage devices. The
S-11
<PAGE>
Corporation's Commercial Electronics Company provides electronics contract
manufacturing services for companies in the computer, telecommunications and
medical instruments industries and also is a leading provider of electronic
toll collection services and office automation services. The Corporation also
performs processing services for NASA's space shuttle program and produces the
Space Shuttle's external tank, provides engineering and test analysis services
to NASA and operates the Knolls Atomic Power Laboratory, a government-owned
research and development facility of the U.S. Naval Nuclear Propulsion
Program.
Electronics Sector
The Electronics Sector's activities primarily relate to the design,
development, engineering and production of high performance electronic systems
for undersea, shipboard, land-based and airborne applications. Major product
lines include advanced technology missiles, night navigation and targeting
systems for aircraft; submarine and surface ship combat systems; airborne,
ship and land-based radar; radio frequency, infrared, and electro-optical
countermeasure systems; surveillance systems; control systems; ordnance; and
aircraft component manufacturing and assembly.
The Corporation is the prime contractor for the U.S. Navy's AEGIS fleet air
defense system and the primary contractor for the AN/BSY-2 submarine combat
system for the Seawolf attack submarine. The Electronics Sector also produces
the Target Acquisition Designation Sight/Pilot Night Vision Sensor
(TADS/PNVS), the Hellfire II antitank missile and the Trident II Submarine
Program's fire control and guidance systems.
Energy & Environment Sector
The Energy & Environment Sector is responsible for the Corporation's energy
and environmental businesses, including the management of various U.S.
Department of Energy (DoE) activities. The Corporation is the largest
management and operations contractor within the DoE's system of laboratories
and other facilities and manages, among other facilities, the Sandia National
Laboratories, the Idaho National Engineering Laboratory and the Oak Ridge
National Laboratory.
Other
On February 24, 1994, an initial public offering of the common stock of
Martin Marietta Materials, Inc. ("Materials") was consummated and 8,797,500
shares of common stock (representing approximately 19% of the shares
outstanding) were sold. Materials carries on its operations through two
divisions, Aggregates and Magnesia Specialties. The Aggregates division is the
United States' second largest producer of aggregates for the construction of
highways and other infrastructure projects and for the commercial and
residential construction industries. Through its Magnesia Specialties
Division, Materials manufactures and markets magnesia-based products,
including refractory products for the steel industry and chemical products for
industrial, environmental and agricultural uses.
In addition to the above activities, the Corporation also has real estate
subsidiaries in Florida and Maryland, operates research laboratories and
carries on other miscellaneous activities.
The Corporation's total negotiated backlog at December 31, 1995, was $41.1
billion, which included both unfilled firm orders for the Corporation's
products for which funding has been both authorized and appropriated by the
customer (Congress, in the case of the United States Government
S-12
<PAGE>
customers) and firm orders for which funding has not been appropriated. The
following table shows total backlog by business segment at the end of each of
the last three years:
<TABLE>
<CAPTION>
DECEMBER 31,
-----------------------
1995 1994 1993
------- ------- -------
(IN MILLIONS)
<S> <C> <C> <C>
Space & Strategic Missiles............................. $16,261 $15,920 $14,052
Aeronautics............................................ 14,775 16,146 19,822
Information & Technology Services...................... 4,669 4,855 5,526
Electronics............................................ 5,412 5,238 6,087
Energy, Materials and Other(a)......................... 8 73 23
------- ------- -------
$41,125 $42,232 $45,510
======= ======= =======
</TABLE>
- --------
(a)Includes Energy and Environment Sector, Materials and businesses not
included in the other business segments.
The Corporation is engaged in a number of classified programs that cannot be
referred to specifically, but are included in its consolidated financial
statements. The nature of and business risks associated with classified
programs do not differ materially from those of the Corporation's other
government programs and products.
Approximately 69% of the Corporation's sales in 1995, excluding foreign
military sales, were to the United States government. During that period,
sales to foreign governments, including sales made through the United States
government, accounted for approximately 13% of revenues and sales to
commercial customers accounted for approximately 18% of revenues.
BUSINESS OF TACTICAL SYSTEMS
The businesses acquired by the Corporation in connection with the
consummation of the transactions contemplated by the Loral Merger Agreement
now constitute the sixth operating sector of the Corporation, Tactical
Systems. Tactical Systems' business consists primarily of electronic combat;
command, control, communications and intelligence ("C/3/I") and
reconnaissance; training and simulation; tactical weapons; systems
integration; and space businesses. Tactical Systems supplies electronic
systems, components and services to the United States Government and foreign
governments for defense and non-defense applications.
Electronic Combat Business
The Electronic Combat business produces the ALR/ALQ family of radar warning
receivers; electronic countermeasures (radar jamming) equipment; forward
looking radar; missile defense systems; and provides systems integration for
the Merlin and LAMPS helicopters. These products have applications in major
defense systems for primary tactical aircraft, and provide force multiplying
protection, countermeasure and precision targeting/tracking equipment required
for smaller military force size and upgrades. In general, the systems produced
by the Electronic Combat business protect United States and allied aircraft
and provide anti-submarine and anti-surface warfare, airborne early warning
and electronic support measure capabilities.
Command, Control, Communications and Intelligence and Reconnaissance Business
The C/3/I and Reconnaissance business offers systems integration, operations
management and engineering services, post deployment systems support, military
satellite communication terminals, information processing and display
hardware, information management software, and secured tactical
S-13
<PAGE>
communications instruments to address a broad spectrum of strategic and
tactical C/3/I requirements. The services and products provided by the C/3/I
and Reconnaissance business include engineering support, systems integration,
and operations/maintenance for the United States Air Force satellite control
network; software and hardware support for the Air Force's global positioning
system; aircraft displays; and synthetic aperture radar systems. These
products and services have application in the areas of communications and
force control equipment allowing command centers to monitor and process real-
time troop movement and improving effectiveness and reducing casualties of
reduced military forces.
Training and Simulation Business
The Training and Simulation business provides simulated, realistic
battlefield synthetic environments that assist air, land and sea military
forces in order to achieve and maintain combat readiness and to aid in the
establishment and validation of military requirements for new systems and
their upgrades. The Training and Simulation business produces weapons systems
simulators and distributed interactive simulators, including force-to-force
combat training systems, full-fidelity cockpit and weapons systems trainers,
laser guided training missiles, and support services for weapons platforms.
These products have applications in maintaining and improving the readiness
and effectiveness of smaller military forces, and improving the abilities of
allied military forces through cost-efficient computer simulation. The
operational flight and weapons systems trainers produced by Tactical Systems
simulate the United States Navy's F-15 and F-15E jet aircraft avionics under
combat conditions.
Tactical Weapons Business
The Tactical Weapons business produces a variety of weaponry products, such
as the Multiple-Launch Rocket System (MLRS) for the United States Army and
allied forces; the Army Tactical Missile System (ATACMS), and the Patriot
Advanced Capability Missile (PACIII) formerly known as the Extended Range
Interceptor (ERINT). These products and systems provide essential troop and
firepower support capabilities and precision extended-strike capabilities with
smart weapons. The Tactical Weapons business also offers guidance programs,
including the Digital Scene Matching Area Correlation (DSMAC) System and
produces the Sidewinder air-to-air missile, the AIM-9M and the AIM-9P.
Systems Integration Business
The Systems Integration business focuses on integrating complex hardware and
software systems for the United States Department of Defense, as well as a
broad range of federal and foreign government organizations, including the
Federal Aviation Administration, the United States Department of Commerce, the
United States Department of Justice, the Internal Revenue Service, the United
States Postal Service and the United Kingdom's Civil Aviation Authority.
The Systems Integration business also includes network and data base systems
for the NEXRAD weather-detection system for the National Oceanic and
Atmospheric Administration, which is being designed to make critical Doppler
radar data continuously available throughout the United States. This business
also produces a medical diagnostic imaging system, involving the
implementation of high-volume data storage and retrieval technologies into the
medical marketplace for the Department of Defense, Veterans Administration,
university medical centers or other private health care facilities.
Space Business
The Space business provides engineering services supporting mission control
systems for NASA's manned and unmanned space flight, and develops and produces
computers, scientific instruments,
S-14
<PAGE>
sensors, cameras and power systems for spacecraft. The Space business also
performs Safety Reliability and Quality Assurance testing for NASA's Space
Shuttle and International Space Station programs, and is involved in
designing, developing and integrating various other space systems.
Other
Tactical Systems also is engaged in a number of classified programs that
cannot be referred to specifically, but are included in its consolidated
financial statements. The nature of and business risks associated with
classified programs do not differ materially from those of Tactical Systems'
other government programs and products.
DESCRIPTION OF OFFERED DEBT SECURITIES
The following description of the particular terms of the Securities offered
hereby (referred to in the Prospectus as the "Offered Debt Securities")
supplements and, to the extent inconsistent therewith, supersedes, insofar as
such description relates to the Securities, the description of the Debt
Securities set forth in the Prospectus, to which description reference is
hereby made. Capitalized terms not otherwise defined herein shall have the
meanings given to them in the Prospectus.
The Securities are unsecured and unsubordinated obligations of the
Corporation and will rank pari passu with all other unsecured and
unsubordinated indebtedness of the Corporation. The Guarantees are unsecured
and unsubordinated obligations of Tactical Systems and will rank pari passu
with all other unsecured and unsubordinated indebtedness of Tactical Systems.
The % Notes Due 1999, the % Notes Due 2001 and the % Notes Due 2006 will
mature on May 15, 1999, May 15, 2001 and May 15, 2006, respectively, and the
% Debentures Due 2016 and the % Debentures Due 2026 will mature on May 1,
2016 and May 1, 2026, respectively. The Securities will bear interest at the
rates per annum shown on the cover page of this Prospectus Supplement.
Interest on the % Notes Due 1999, the % Notes Due 2001 and the % Notes Due
2006 will be payable semi-annually on November 15 and May 15 of each year
(each a "Note Interest Payment Date") commencing November 15, 1996, to the
person for whose account the Securities (or any predecessor Securities) are
held at the close of business on the November 1 and May 1, as the case may be,
next preceding such Note Interest Payment Date. Interest on the % Debentures
Due 2016 and the % Debentures Due 2026 will be payable semi-annually on
November 1 and May 1 of each year (each a "Debenture Interest Payment Date")
commencing November 1, 1996, to the person for whose account the Securities
(or any predecessor Securities) are held at the close of business on the
October 15 and April 15, as the case may be, next preceding such Debenture
Interest Payment Date.
MANDATORY REDEMPTION, SINKING FUND
The Securities will not be redeemable by the Corporation prior to their
maturity and will not be entitled to the benefit of a sinking fund.
DEFEASANCE
The provisions of the Indenture relating to defeasance and covenant
defeasance described under the caption "Description of Debt Securities--
Defeasance" in the Prospectus shall apply to the Securities.
BOOK-ENTRY SECURITIES
The Securities will be issued in the form of global securities. The Global
Securities will be deposited with, or on behalf of DTC (the "Depositary"), and
registered in the name of the Depositary or a nominee thereof. Unless and
until it is exchanged in whole or in part for Securities in definitive form,
no Security may be transferred except as a whole by the Depositary 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 of such Depositary or a nominee of such successor.
S-15
<PAGE>
The Depositary has advised the Corporation as follows: The Depositary is a
limited purpose trust company organized under the New York Banking Law, a
"banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Securities
Exchange Act of 1934, as amended. The Depositary was created to hold
securities of its participants and to facilitate the clearance and settlement
of securities transactions among its participants in such securities through
electronic book-entry changes in participants' accounts thereby eliminating
the need for physical movement of securities certificates. The Depositary's
participants include securities brokers and dealers, banks, trust companies,
clearing corporations, and certain other organizations, some of whom (and/or
their representatives) own the Depositary. Access to the Depositary's book-
entry system is also available to others, such as banks, brokers, dealers and
trust companies that clear through or maintain a custodial relationship with a
participant, either directly or indirectly. The rules applicable to the
Depositary are on file with the Securities and Exchange Commission.
SAME-DAY SETTLEMENT AND PAYMENT
Settlement for the Securities will be made by the Underwriters in
immediately available funds. The Securities will trade in DTC's Same-Day Funds
Settlement System until maturity, and secondary market trading activity in the
Securities therefore will settle in immediately available funds. So long as
DTC continues to make its Same-Day Funds Settlement System available to the
Corporation, it is anticipated that payments of principal of and interest on
the Securities will be made by the Corporation in immediately available funds.
UNDERWRITING
Subject to the terms and conditions set forth in the Underwriting Agreement
and the Pricing Agreement, the Corporation has agreed to sell to each of the
Underwriters named below and each of the Underwriters has severally agreed to
purchase, the principal amount of the Offered Debt Securities set forth
opposite its name below:
<TABLE>
<CAPTION>
PRINCIPAL PRINCIPAL
PRINCIPAL PRINCIPAL PRINCIPAL AMOUNT AMOUNT
AMOUNT AMOUNT AMOUNT OF % OF %
OF % NOTES OF % NOTES OF % NOTES DEBENTURES DEBENTURES
UNDERWRITER DUE 1999 DUE 2001 DUE 2006 DUE 2016 DUE 2026
----------- ------------ ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
Goldman, Sachs & Co..... $ $ $ $ $
CS First Boston
Corporation............
Merrill Lynch, Pierce,
Fenner & Smith
Incorporated...........
J.P. Morgan Securities
Inc....................
------------ ------------ ------------ ------------ ------------
$400,000,000 $600,000,000 $500,000,000 $400,000,000 $300,000,000
============ ============ ============ ============ ============
</TABLE>
Under the terms and conditions of the Underwriting Agreement and related
Pricing Agreement, the Underwriters are committed to take and pay for all of
the Securities, if any are taken.
The Underwriters propose to offer the Securities in part directly to the
public at the initial public offering prices set forth on the cover page of
this Prospectus Supplement, and in part to certain securities dealers at such
prices less a concession of . % of the principal amount of the % Notes Due
1999, . % of the principal amount of the % Notes Due 2001, . % of the
principal amount of the % Notes Due 2006, . % of the principal amount of the
% Debentures Due 2016, and . % principal amount of the % Debentures Due
2026. The Underwriters may allow, and such dealers may reallow, to certain
brokers and dealers a concession not to exceed . % of the principal amount of
each of the % Notes Due 1999, the % Notes Due 2001, the % Notes Due 2006,
the % Debentures Due 2016, and the % Debentures Due 2026. After the
Securities are
S-16
<PAGE>
released for sale to the public, the offering prices and other selling terms
may from time to time be varied by the Underwriters.
The Securities are new issues with no established trading market. The
Corporation has been advised by the Underwriters that they intend to make a
market in the Securities, but they are not obligated to do so and may
discontinue such market making at any time without notice. No assurance can be
given as to the liquidity of the trading market for the Securities. The
Securities will not be listed on any national securities exchange.
More than 10% of the net proceeds of the offering of the Securities, not
including any underwriting compensation, will be used to repay indebtedness
outstanding under the Credit Facilities and outstanding commercial paper.
Included among the banks which are party to the Credit Facilities is Morgan
Guaranty Trust Company of New York, which is affiliated with J.P. Morgan
Securities Inc., a member of the National Association of Securities Dealers,
Inc. (the "NASD") who will participate in the offering of the Securities as an
underwriter. Similarly, CS First Boston Corporation and affiliates of Goldman,
Sachs & Co. and Merrill Lynch & Co. are primary dealers of the Corporation's
commercial paper and are affiliated with members of the NASD who will
participate in the offering of the Securities as underwriters. Accordingly,
the offering of the Securities is being conducted pursuant to Article III,
Section 44(c)(8) of the NASD Rules of Fair Practice, which provides that,
among other things, no NASD member shall participate in a public offering of
an issuer's securities where more than 10% of the net offering proceeds, not
including underwriting compensation, are intended to be paid to NASD members
(or affiliates of such members), unless the yield at which a debt issue is to
be distributed to the public is established pursuant to Subsection 3(c) of
Schedule E to the By-laws of the NASD.
The Corporation and the Guarantor have agreed to indemnify the several
Underwriters against certain liabilities, including certain liabilities under
the Securities Act of 1933.
From time to time, the Underwriters have provided various investment banking
and other services to the Corporation for which they have received customary
compensation.
VALIDITY OF OFFERED DEBT SECURITIES
The validity of the Offered Debt Securities will be passed on for the
Corporation by Miles & Stockbridge, a Professional Corporation, Baltimore,
Maryland. The validity of the Guarantees relating to the Offered Debt
Securities will be passed on for Tactical Systems by William J. LaSalle, Vice
President and General Counsel of the Corporation's Tactical Systems Sector.
Certain legal matters will be passed on for the Underwriters by Cravath,
Swaine & Moore, New York, New York.
S-17
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED MAY 8, 1996
PROSPECTUS
$5,000,000,000
LOCKHEED MARTIN CORPORATION
DEBT SECURITIES
GUARANTEED BY
LOCKHEED MARTIN TACTICAL SYSTEMS, INC.
-----------
Lockheed Martin Corporation (the "Corporation") from time to time may offer
debt securities in one or more series (the "Debt Securities"), which Debt
Securities may consist of debentures, notes or other evidences of indebtedness,
in an amount sufficient to result in an aggregate initial offering price not to
exceed $5,000,000,000 (or the equivalent in foreign denominated currency or
units based on or relating to currencies, including European Currency Units).
The Debt Securities may be offered as separate series in amounts, at prices,
and on terms to be determined by market conditions at the time of sale. The
Debt Securities may be issued in registered form without coupons. All or a
portion of the Debt Securities may be evidenced by a Global Security or Global
Securities. The Debt Securities will be fully and unconditionally guaranteed by
Lockheed Martin Tactical Systems, Inc., a wholly owned subsidiary of the
Corporation ("Tactical Systems" or the "Guarantor"). The guarantees of Tactical
Systems in respect of the Debt Securities are herein referred to as the
"Guarantees." The Debt Securities and the Guarantees will be unsecured
obligations of the Corporation and Tactical Systems, respectively.
The accompanying Prospectus Supplement sets forth with regard to the Debt
Securities in respect of which this Prospectus is being delivered the title,
aggregate principal amount, denominations (which may be in United States
dollars, in any other currency or in units based on or relating to currencies,
including European Currency Units), maturity, rate (which may be fixed or
variable) and time of payment of any interest, any terms for redemption at the
option of the Corporation or the holder, any terms for sinking fund payments,
any listing on a securities exchange, the initial public offering price and any
other terms in connection with the offering and sale of the Debt Securities or
a series of the Debt Securities.
The Corporation may sell Debt Securities to or through underwriters or
dealers, and also may sell Debt Securities directly to other purchasers or
through agents. If underwriters are used in the sale, the Debt Securities may
be offered to the public either through underwriting syndicates represented by
one or more managing underwriters or directly by one or more of such firms. See
"Plan of Distribution." The accompanying Prospectus Supplement sets forth the
names of any underwriters, dealers or agents involved in the sale of the Debt
Securities in respect of which this Prospectus is being delivered, the
principal amounts, if any, to be purchased by underwriters or dealers, and the
compensation, if any, of those underwriters, dealers or agents. The net
proceeds to the Corporation from the sale of the Debt Securities in respect of
which this Prospectus is being delivered are set forth in the Prospectus
Supplement. See "Plan of Distribution" for possible indemnification
arrangements for underwriters, dealers and agents.
-----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
-----------
The date of this Prospectus is May , 1996.
<PAGE>
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS OR IN AN APPLICABLE PROSPECTUS SUPPLEMENT IN
CONNECTION WITH ANY OFFER MADE BY THIS PROSPECTUS AND SUCH PROSPECTUS
SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE CORPORATION OR ANY
UNDERWRITER, DEALER, AGENT OR OTHER PERSON. NEITHER THE DELIVERY OF THIS
PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER OR
THEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE AN IMPLICATION THAT THERE HAS
BEEN NO CHANGE IN THE AFFAIRS OF THE CORPORATION SINCE THE DATE HEREOF OR
THEREOF OR THAT THE INFORMATION CONTAINED HEREIN OR THEREIN IS CORRECT AS OF
ANY TIME SUBSEQUENT TO ITS DATE. THIS PROSPECTUS AND ANY PROSPECTUS SUPPLEMENT
DO NOT CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN ANY JURISDICTION TO
ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION IN SUCH
JURISDICTION.
AVAILABLE INFORMATION
The Corporation is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information
with the Securities and Exchange Commission (the "Commission"). Such reports,
proxy statements and other information can be inspected and copied at the
public reference facilities maintained by the Commission at Room 1024, 450 5th
Street, N.W., Washington, D.C. 20549, and at the following regional offices of
the Commission: New York Office, Seven World Trade Center, 13th Floor, New
York, New York 10048; and Chicago Office, Citicorp Center, Suite 1400, 500
West Madison Street, Chicago, Illinois 60661. Copies of such material can be
obtained from the Public Reference Section of the Commission at 450 5th
Street, N.W., Washington, D.C. 20549, at prescribed rates. In addition, such
reports, proxy statements and other information can be inspected at the
offices of the New York Stock Exchange, Inc., 20 Broad Street, New York, New
York 10005. Tactical Systems comprises the portion of Loral Corporation that
the Corporation acquired on April 23, 1996, and is the successor by name
change to Loral Corporation. It is not anticipated that Tactical Systems will
continue to file reports, proxy statements and other information with the
Commission under the Exchange Act. In the event that Tactical Systems does not
file reports, proxy statements and other information with the Commission under
the Exchange Act, summarized financial information in respect of Tactical
Systems may be included in the footnotes to the audited consolidated financial
statements of the Corporation included in the Corporation's Annual Reports on
Form 10-K filed pursuant to Section 13 of the Exchange Act.
The Corporation and Tactical Systems have filed with the Commission a
Registration Statement on Form S-3 (together with all amendments, documents
incorporated by reference and exhibits, the "Registration Statement") under
the Securities Act of 1933, as amended (the "Securities Act"), with respect to
the Debt Securities and the Guarantees offered hereby. This Prospectus and the
Prospectus Supplement, which constitute a part of the Registration Statement,
do not contain all the information set forth in the Registration Statement,
certain parts of which are contained in exhibits to the Registration Statement
or otherwise have been omitted in accordance with the rules and regulations of
the Commission. For further information, reference is made to the Registration
Statement and to the documents incorporated therein by reference. Copies of
the Registration Statement are on file at the offices of the Commission and
may be obtained upon payment of the fees prescribed by the Commission, or
examined without charge at the public reference facilities of the Commission
described above.
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INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The Corporation's Annual Report on Form 10-K for the year ended December 31,
1995, and Current Reports on Form 8-K filed with the Commission on January 12,
1996, April 4, 1996, and May 2, 1996 (as amended on May 8, 1996), are
incorporated by reference herein and made a part hereof. All documents filed
by the Corporation and Tactical Systems with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date
of this Prospectus and prior to the termination of the offering of the Debt
Securities shall be deemed to be incorporated by reference and to be a part of
this Prospectus from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in any
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such a statement. A statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
The Corporation will provide, without charge, to each person to whom this
Prospectus is delivered, upon written or oral request, a copy of any and all
of the documents incorporated herein by reference other than exhibits to such
documents (unless such exhibits are specifically incorporated by reference in
such documents). Requests should be directed to Lockheed Martin Corporation,
6801 Rockledge Drive, Bethesda, Maryland 20817, Attention: Corporate
Secretary, (301) 897-6000.
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THE CORPORATION
The Corporation, which was incorporated in Maryland on August 29, 1994, to
effect the combination of the businesses of Martin Marietta Corporation and
Lockheed Corporation, is a diversified enterprise principally engaged in the
conception, research, development, design, manufacture and integration of
advanced technology products and services. The Corporation conducts its
principal business through six major operating sectors: Space & Strategic
Missiles; Aeronautics; Information & Technology Services; Electronics; Energy
& Environment; and Tactical Systems. The Tactical Systems Sector consists of
the businesses acquired by the Corporation on April 23, 1996, in connection
with the acquisition of Loral Corporation.
The Corporation's and Tactical Systems' principal executive offices are
located at 6801 Rockledge Drive, Bethesda, Maryland 20817. The telephone
number of the Corporation and Tactical Systems is (301) 897-6000.
USE OF PROCEEDS
Except as otherwise stated in the Prospectus Supplement in respect of which
this Prospectus is being delivered, the net proceeds from the sale of the Debt
Securities offered by the Corporation will be added to the general funds of
the Corporation and will be available to repay debt incurred in connection
with the acquisition of Tactical Systems and for the general corporate
purposes of the Corporation and its subsidiaries, which may include but are
not limited to working capital, capital expenditures, consolidation expenses,
business acquisitions and the refinancing of indebtedness.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges and
the ratio of earnings to combined fixed charges and preferred stock dividends
for each of the last five fiscal years.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31
------------------------
1995 1994 1993 1992 1991
---- ---- ---- ---- ----
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges..................... 4.2 5.6 4.8 5.3 4.6
Ratio of earnings to combined fixed charges and
preferred stock dividends(a).......................... 3.3 4.4 4.0 5.3 4.6
</TABLE>
- --------
(a) Shares of preferred stock were issued on April 2, 1993. Prior to that date
no shares of preferred stock were outstanding.
On a pro forma basis, assuming the transactions contemplated by the Loral
Merger Agreement had occurred on January 1, 1995, the unaudited ratios of
earnings to fixed charges and earnings to combined fixed charges and preferred
stock dividends for the year ended December 31, 1995, would have been 2.0 and
1.8, respectively.
For purposes of computing the ratio of earnings to fixed charges, earnings
represent earnings from continuing operations before income taxes plus
interest expense on indebtedness, amortization of debt discount and premium,
and the portion of rent expense deemed representative of an interest factor,
less undistributed earnings of unconsolidated subsidiaries. Fixed charges
include interest on indebtedness (whether expensed or capitalized),
amortization of debt discount and premium, and the portion of rent expense
deemed representative of an interest factor. Combined fixed charges and
preferred stock dividends include fixed charges as described above and
preferred stock dividends on a pretax basis.
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DESCRIPTION OF DEBT SECURITIES
The following description of the Debt Securities sets forth certain general
terms and provisions of the Debt Securities and the Guarantees to which any
Prospectus Supplement may relate. The particular terms of the Debt Securities
offered by any Prospectus Supplement (the "Offered Debt Securities"),
including the nature of any variation from the following general provisions
applicable to the Offered Debt Securities, will be described in the Prospectus
Supplement relating to the Offered Debt Securities.
The Offered Debt Securities are to be issued in one or more series under an
indenture (the "Indenture") between the Corporation, Tactical Systems, as
Guarantor, and First Trust of Illinois, National Association, as Trustee (the
"Trustee"), a copy of which is filed as an exhibit to the Registration
Statement. The following summaries of certain provisions of the Indenture do
not purport to be complete and are subject to, and are qualified in their
entirety by reference to, all provisions of the Indenture, including
definitions of certain terms. Provisions of or defined terms in the Indenture
that are used in this Prospectus are incorporated by reference.
GENERAL
The Indenture does not limit the aggregate principal amount of debentures,
notes or other evidences of indebtedness that may be issued thereunder and
provides that Debt Securities may be issued in one or more series in an
aggregate principal amount which may be authorized from time to time by the
Corporation. The Debt Securities will be unsecured obligations of the
Corporation and will rank equally with all other unsecured and unsubordinated
indebtedness of the Corporation. Payment of principal of (premium, if any) and
interest, if any, on the Debt Securities will be guaranteed by Tactical
Systems. See "Description of Debt Securities--Guaranties." The Guarantor also
is guarantor of the Corporation's obligations under the principal revolving
credit facilities of the Corporation.
Reference is made to the Prospectus Supplement for the following terms of
the Offered Debt Securities: (1) the title of the Offered Debt Securities; (2)
the price (expressed as a percentage of the aggregate principal amount
thereof) at which the Offered Debt Securities will be issued; (3) any limit on
the aggregate principal amount of the Offered Debt Securities or the series of
which the Offered Debt Securities are a part; (4) the date or dates (or manner
of determining the same) on which the Offered Debt Securities will mature; (5)
the rate or rates (which may be fixed or variable) per annum (or the method or
methods by which such rate or rates will be determined) at which the Offered
Debt Securities will bear interest, if any, and the date or dates from which
such interest will accrue; (6) the date or dates on which interest, if any,
will be payable and the record dates for such interest payment dates; (7) if
the trustee in respect of the Offered Debt Securities is other than the
Trustee (or any successor thereto), the identity of the trustee; (8) the place
or places where the principal of (and premium, if any) and interest, if any,
on the Offered Debt Securities will be payable and each office or agency where
the Offered Debt Securities may be presented for transfer or exchange; (9) any
mandatory or optional sinking fund or purchase fund or similar provision and
the terms and conditions thereof; (10) any provisions relating to the date
after which, the circumstances under which, the price or prices at which, and
the currency or currency unit in which, the Offered Debt Securities may,
pursuant to any optional or mandatory redemption or conversion provisions, be
redeemed or converted at the option of the Corporation or of the Holder and
certain other terms and provisions of such optional or mandatory redemption or
conversion; (11) if the Offered Debt Securities are denominated in other than
United States dollars, the currency or currencies (including composite
currencies) in which the Offered Debt Securities are denominated; (12) the
index, if any, used to determine the amount of payments of principal of (and
premium, if any) or interest, if any, on the Offered Debt Securities; (13) if
payments of principal (and premium, if any) or interest, if any, in respect of
the Offered Debt Securities are to be made in a currency other than United
States dollars or the amount of such payments are to be determined with
reference to an index based on a currency or currencies other than that in
which the Offered Debt Securities are denominated, the currency or currencies
(including composite currencies) in which such payments are to be made, or the
manner in which such amounts are to be determined, respectively; (14) if the
amount payable upon acceleration of the Offered Debt Securities is other than
the full principal amount, the portion of the principal amount payable upon
acceleration; (15) any provisions relating to the conversion of Offered Debt
Securities into
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Debt Securities of another series; (16) any provisions restricting defeasance
of the Offered Debt Securities; (17) if any additional or special events of
default are applicable to the Offered Debt Securities, the terms and
conditions of such events of default; (18) if the Offered Debt Securities will
be issued, in whole or in part, in the form of one or more temporary or
permanent Global Securities, the identity of the depositary for such Global
Securities and certain other terms and conditions relating to the Global
Securities; and (19) any other terms of the Offered Debt Securities and the
Guarantees not inconsistent with the provisions of the Indenture.
Unless otherwise indicated in the Prospectus Supplement in respect of which
this Prospectus is being delivered, principal of (and premium, if any) and
interest, if any, on the Offered Debt Securities (other than Offered Debt
Securities issued as Global Securities) will be payable, and the Offered Debt
Securities (other than Offered Debt Securities issued as Global Securities)
will be exchangeable and transfers thereof will be registrable, at the office
of the Trustee and at any other office maintained from time to time by the
Corporation for such purpose, provided that, at the option of the Corporation,
payment of interest may be made by check mailed to the address of the holder
as it appears in the register of the Offered Debt Securities.
Unless otherwise indicated in the Prospectus Supplement relating thereto,
the Offered Debt Securities will be issued only in fully registered form,
without coupons, in denominations of $1,000 or any integral multiple thereof.
For certain information about Debt Securities issued in global form, see
"Description of Debt Securities--Global Securities." The Corporation may
charge a reasonable fee for any transfer or exchange of the Offered Debt
Securities and may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
Debt Securities bearing no interest or interest at a rate that at the time
of issuance is below the prevailing market rate will be sold at a discount
below their stated principal amount. One or more series of Debt Securities may
be floating rate Debt Securities, exchangeable for fixed rate Debt Securities.
Special United States federal income tax considerations applicable to any such
discounted or floating rate Debt Securities or to certain Debt Securities
issued at par which are treated as having been issued at a discount for United
States federal income tax purposes will be described in the Prospectus
Supplement in respect of which this Prospectus is being delivered, if
applicable.
Debt Securities may be issued, from time to time, with the principal amount
(and premium, if any) payable on the applicable principal payment date, or the
amount of interest, if any, payable on the applicable interest payment date,
to be determined by reference to one or more currency exchange rates,
commodity prices, equity indices or other factors. In such cases, Holders may
receive a principal amount (and premium, if any) on any principal payment
date, or a payment of interest, if any, on any interest payment date, that is
greater than or less than the amount of principal (and premium, if any) or
interest, if any, payable on such dates, depending upon the value on such
dates of the applicable currency, commodity, equity index or other factor.
Information as to the methods for determining the amount of principal (and
premium, if any) or interest, if any, payable on any date, the currencies,
commodities, equity indices or the other factors to which the amount payable
on such date is linked and certain additional tax considerations applicable to
the Offered Debt Securities will be set forth in the Prospectus Supplement in
respect of which this Prospectus is being delivered, if applicable.
All monies paid by the Corporation to the Trustee or a Paying Agent for the
payment of principal of (or premium, if any) or interest, if any, on any
Offered Debt Security that remain unclaimed at the end of two years will be
repaid to the Corporation, unless otherwise prohibited by mandatory provisions
of applicable escheat or abandoned or unclaimed property law, and the Holder
of such Debt Security will thereafter look only to the Corporation for payment
thereof.
The Indenture does not limit the amount of additional unsecured indebtedness
that the Corporation, the Guarantor or any of their Subsidiaries may incur.
Unless otherwise specified in the resolutions or any supplemental indenture
establishing the terms of the Offered Debt Securities, the terms of the
Offered Debt Securities or the covenants contained in the Indenture do not
afford holders of the Offered Debt Securities protection in the event of a
highly leveraged or other similar transaction involving the Corporation, the
Guarantor
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<PAGE>
or any of their Subsidiaries, or any other transaction resulting in a decline
in the ratings on or credit quality of the Offered Debt Securities, that may
adversely affect Securityholders. See "Description of Debt Securities--Certain
Covenants."
GUARANTEES
Tactical Systems will guarantee the due and punctual payment of the
principal of (and premium, if any) or interest, if any, in respect of the Debt
Securities, when and as the same shall become due and payable, whether by
declaration thereof or otherwise. The Guarantor will be subrogated to all
rights of the Holders of the Debt Securities against the Corporation in
respect of any amounts paid by the Guarantor pursuant to the provisions of the
Indenture; provided, however, that the Guarantor shall not be entitled to
enforce, or to receive any payments arising out of or based upon, such right
of subrogation until the principal of (and premium, if any) and interest, if
any, on all Offered Debt Securities has been paid.
The obligations of the Guarantor are limited to the largest amount that will
result in the obligations of the Guarantor under the Guarantees not being
subject to avoidance under Section 548 of the United States Bankruptcy Code or
any comparable provisions of any applicable state law.
Although Holders of the Offered Debt Securities will be direct creditors of
the Guarantor by virtue of the Guarantees, existing or future creditors could
attempt to avoid or subordinate the Guarantees, in whole or in part, under
applicable fraudulent conveyance laws. In the event that any of the Guarantees
are voided as a fraudulent conveyance or held unenforceable for any other
reason, the claims of the Holders of such Offered Debt Securities against the
Guarantor would be subject to the prior payment of all liabilities of the
Guarantor.
GLOBAL SECURITIES
Debt Securities of any series may be issued, in whole or in part, in the
form of one or more Global Securities that will be deposited with a depositary
(the "Depositary") or with a nominee for a Depositary identified in the
Prospectus Supplement relating to such series. Unless and until it is
exchanged in whole or in part for Debt Securities in definitive registered
form, a Global 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.
The specific terms of the depositary arrangement with respect to any series
of Debt Securities to be represented by a Global Security will be described in
the Prospectus Supplement relating to such series. The Corporation, however,
anticipates that the provisions set forth below generally will apply to such
depositary arrangements.
Upon the issuance of a Global Security, the Depositary will credit, on its
book-entry registration and transfer system, the respective principal amounts
of the Debt Securities represented by such Global Security to the accounts of
persons that have accounts with such Depositary ("participants"). The accounts
to be credited shall be designated by any underwriters or agents participating
in the distribution of such Debt Securities or by the Corporation if the Debt
Securities are offered and sold directly by the Corporation. Ownership of
beneficial interest in a Global Security will be limited to participants or
persons that hold interests through participants, but the Corporation has no
obligations to any persons that hold interests through participants. Ownership
of beneficial interests in such Global Security will be shown on, and the
transfer of that ownership will be effected only through, records maintained
by the Depositary for such Global Security (with respect to interests of
participants) or by participants or persons that hold through participants
(with respect to interests of persons other than participants). The laws of
some states require that certain purchasers of securities take physical
delivery of the securities into definitive form. Such limits and laws may
impair the ability to transfer beneficial interest in a Global Security.
As long as the Depositary or its nominee is the registered owner of such
Global Security, the Depositary or its nominee, as the case may be, will be
considered the sole owner or holder of the Debt Securities represented by the
Global Security for all purposes under the Indenture. Except as set forth
below, owners of beneficial
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<PAGE>
interests in a Global Security will not be entitled to have the Debt
Securities represented by such Global Security registered in their names, will
not receive or be entitled to receive physical delivery of such Debt
Securities in definitive form and will not be considered the owners or holders
thereof under the Indenture.
Payments of principal (and premium, if any) and interest, if any, on Debt
Securities represented by a Global Security registered in the name of a
Depositary or its nominee will be made to such Depositary or its nominee, as
the case may be, as the registered owner of such Global Security. Neither the
Corporation, the Guarantor, the Trustee, any Paying Agent nor the Security
Registrar for such Debt Securities will have any responsibility or liability
for any aspect of the records relating to or payments made on account of
beneficial ownership interests in such Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
The Corporation expects that the Depositary for any Debt Securities
represented by a Global Security, upon receipt of any payment of principal
(and premium, if any) or interest, if any, in respect of a permanent Global
Security will, except as provided below, immediately credit participants'
accounts with payments in amounts proportionate to their respective beneficial
interests in the principal amount of such Global Security as shown on the
records of the Depositary. The Corporation also expects that payments by
participants to owners of beneficial interests in such Global Security held
through such participants will be governed by standing instructions and
customary practices, as is now the case with the securities held for the
accounts of customers registered in "street names" and will be the
responsibility of such participants.
If the Depositary for any Debt Securities represented by a Global Security
is at any time unwilling or unable to continue as Depositary and a successor
Depositary is not appointed by the Corporation within 90 days, the Corporation
will issue Debt Securities in definitive form in exchange for such Global
Security. In addition, the Corporation may at any time and in its sole
discretion determine not to have any of the Debt Securities of a series
represented by one or more Global Securities and, in such event, will issue in
exchange therefor Debt Securities of such series in definitive form. Further,
if the Corporation so specifies with respect to the Debt Securities of a
series, an owner of a beneficial interest in a Global Security representing
Debt Securities of that series may, on terms acceptable to the Corporation and
the Depositary for such Global Securities, receive Debt Securities of such
series in a definitive form. In any such instance, an owner of a beneficial
interest in a Global Security will be entitled to physical delivery in
definitive form of Debt Securities of the series represented by the Global
Security equal in principal amount to such beneficial interest and to have
such Debt Securities registered in its name. Debt Securities of such series so
issued in definitive form will be issued in denominations, unless otherwise
specified by the Corporation, of $1,000 and integral multiples thereof if the
Debt Securities of such series are denominated in United States dollars.
AMENDMENT, SUPPLEMENT AND WAIVER
Subject to certain exceptions, the Indenture or the Debt Securities of any
series may be amended or supplemented without notice but with the written
consent of the Holders of not less than a majority in principal amount of the
then outstanding Debt Securities of each affected series and such Holders may
waive compliance by the Corporation or the Guarantor of any provisions of the
Indenture or the Debt Securities or the related Guarantees; provided, however,
that no such modification, amendment or waiver may, without the consent of the
Holder of each outstanding Debt Security affected thereby, (a) reduce the
amount of Debt Securities of any series whose holders must consent to an
amendment, supplement or waiver, (b) reduce the rate of or extend the time for
payment of interest on any Debt Security, (c) reduce the principal of (or
premium, if any) or extend the fixed maturity of any Debt Security, (d) reduce
the portion of the principal amount of a Discounted Security payable upon
acceleration of its maturity, or (e) make any Debt Security payable in a
currency or currency unit other than that stated in the Debt Security. Any
past default or compliance with any provisions may be waived with the consent
of the holders of a majority in principal amount of the Debt Securities of the
affected series, except a default in payment of principal (or premium, if any)
or interest, if any, or in respect of other provisions requiring the consent
of the Holder of each such Debt Security of that series in order to amend.
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Without the consent of any Securityholder, the Corporation and the Trustee
may amend or supplement the Indenture or the Debt Securities of any series
without notice (a) to cure any ambiguity, omission, defect or inconsistency,
(b) to provide for uncertificated Debt Securities in addition to or in place
of certificated Debt Securities, (c) to evidence the succession of another
corporation to the Corporation or the Guarantor and to provide for the
assumption of the Corporation's or the Guarantor's obligations under the Debt
Securities or the Guarantees, as the case may be, and the Indenture by a
successor, (d) to appoint a trustee other than the Trustee (or any successor
thereto) as trustee in respect of one or more series of Debt Securities, (e)
to add, change or eliminate provisions of the Indenture as shall be necessary
or desirable in accordance with any amendment to the Trust Indenture Act of
1939, (f) to change or eliminate any of the provisions of the Indenture;
provided, however, that any such change or elimination shall become effective
only when there is no outstanding Debt Security of any series created prior to
the execution of such amendment or supplement that is entitled to the benefit
of such provision, or (g) to make any change that does not materially
adversely affect the rights of any Securityholder of that series. Without the
consent of any Securityholder, the Trustee may waive compliance with any
provisions of the Indenture or the Debt Securities if the waiver does not
materially adversely affect the rights of any Securityholder.
CERTAIN COVENANTS
Unless otherwise specified in the Board Resolution or Resolutions or any
supplemental indenture establishing the terms of the Debt Securities of any
series, the terms of the Debt Securities of any series or the covenants
contained in the Indenture do not afford holders of Debt Securities protection
in the event of a highly leveraged or other similar transaction involving the
Corporation, the Guarantor or any of their subsidiaries, or any other
transaction resulting in a decline in the ratings on or credit quality of the
Debt Securities, that may adversely affect Securityholders. If the Offered
Debt Securities contain, or a future supplemental indenture contains,
covenants to afford Securityholders protection in the event of a highly
leveraged or similar transaction or any other transaction, the Prospectus
Supplement relating to the Offered Debt Securities (or an applicable pricing
supplement) will provide a brief description of such protective covenants. The
Indenture does not limit the amount of additional unsecured indebtedness that
the Corporation or any of its Subsidiaries may incur.
The following description sets forth certain covenants imposed on the
Corporation and the Guarantor by the Indenture. In the event the covenants are
varied or supplemented in the Board Resolution or Resolutions or any
supplemental indenture establishing the terms of the Debt Securities of any
series, the Prospectus Supplement or Pricing Supplement (if applicable) will
include a description of such provisions.
Certain Definitions. For purposes of the covenants included in the
Indenture, the following terms shall have the meanings provided below.
"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 Guarantor or the Corporation and one or more of their
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 then most recent consolidated balance sheet.
"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
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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 Guarantor or the Corporation and one or more of
their 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
Guarantor, 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
Guarantor, 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
Guarantor, 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).
"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 Commission pursuant to
Section 13 or 15(d) of the Exchange Act.
"Sale-Leaseback Transaction" means an arrangement whereby the Guarantor, 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 (including, without limitation, the Guarantor).
10
<PAGE>
"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.
General. The Indenture requires the Corporation to covenant to the following
with respect to each series of Debt Securities: (i) to promptly pay the
principal of (and premium, if any) and interest, if any, on such series of
Debt Securities; (ii) to maintain an office or agency in each place where Debt
Securities may be presented, surrendered for payment, transferred or exchanged
and where notice upon the Corporation may be served; (iii) if the Corporation
acts as its own Paying Agent for any series of Securities, to segregate and
hold in trust for the benefit of the persons entitled thereto a sum sufficient
to pay the principal of (and premium, if any) or interest, if any, as the same
becomes due; (iv) to deliver to the Trustee, within 120 days after the end of
each fiscal year, a written statement to the effect that the Corporation has
complied with its obligations under the Indenture; and (v) to deliver to the
Trustee copies of annual and other reports that the Corporation files with the
Commission within 15 days after filing such reports with the Commission.
Limitations on Liens. Unless otherwise specified in the Prospectus
Supplement in respect of which this Prospectus is being delivered and subject
to the following two sentences, the Corporation will not, and the Corporation
will not permit any Restricted Subsidiary to, directly or indirectly, as
security for any Debt, incur a Lien on any Restricted Property, unless the
Corporation or such Restricted Subsidiary secures or causes to be secured any
outstanding Debt Securities equally and ratably with all Debt secured by such
Lien. This restriction will not apply to, among other things, certain Liens
(i) existing at the time a corporation becomes a Restricted Subsidiary; (ii)
existing at the time of the acquisition of the Restricted Property; (iii)
securing all or any part of the purchase price of property upon the
acquisition of such property by the Corporation, the Guarantor or a Restricted
Subsidiary or securing any Debt incurred or guaranteed by the Corporation, the
Guarantor 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 thereof, 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; (iv) securing Debt of a
Restricted Subsidiary owed to the Corporation, the Guarantor or another
Restricted Subsidiary; (v) existing at the time a corporation or other entity
merges into, consolidates with or enters into a share exchange with the
Corporation, the Guarantor or a Restricted Subsidiary or transfers or leases
all or substantially all its assets to the Corporation or a Restricted
Subsidiary; (vi) 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; (vii) 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 thereof is effectively stayed and the claims
secured thereby are being contested in good faith by appropriate proceedings
or the lien is a materialman's, suppliers', tax or other similar Lien and
arising in the ordinary course of business securing obligations which are not
overdue or are being contested in good faith by appropriate proceedings; or
(viii) as to any particular series of Debt Securities, that extend, renew or
replace in whole or in part a Lien permitted by any of the foregoing clauses
or existing on the date that Debt Securities of such series were first issued.
In addition and notwithstanding the foregoing restrictions, the Corporation,
the Guarantor and any of their Restricted Subsidiaries may, without securing
the Debt Securities, incur a Lien that otherwise would be subject to the
restrictions, provided that after giving effect to such Lien the aggregate
amount of all Debt secured by Liens that otherwise would be prohibited plus
all Attributable Debt in respect of sale-leaseback transactions that otherwise
would be prohibited by the covenant limiting sale-leaseback transactions
described below would not exceed 10% of Consolidated Net Tangible Assets.
Limitations on Sale-Leaseback Transactions. Unless otherwise specified in
the Prospectus Supplement in respect of which this Prospectus is being
delivered and subject to the following two sentences, the Corporation and the
Guarantor will not, and neither will permit any Restricted Subsidiary to, sell
or transfer a Principal
11
<PAGE>
Property and contemporaneously lease it back, except a lease for a period of
three years or less. Notwithstanding the foregoing restriction, the
Corporation, the Guarantor or any Restricted Subsidiary may sell or transfer a
Principal Property and lease it back for a longer period if (i) the lease is
between the Corporation and the Guarantor, the Corporation and a Restricted
Subsidiary, the Guarantor and a Restricted Subsidiary, or between Restricted
Subsidiaries; (ii) the Corporation, the Guarantor or such Restricted
Subsidiary would be entitled, pursuant to the provisions set forth above under
the caption "Limitations on Liens," to create a Lien on the property to be
leased securing Debt in an amount at least equal in amount to the Attributable
Debt (as herein defined) in respect of the sale-leaseback transaction without
equally and ratably securing the outstanding Debt Securities; (iii) the
Corporation owns or acquires other property which will be made a Principal
Property and is determined by the Board of Directors of the Corporation or the
Guarantor to have a fair value equal to or greater than the Attributable Debt
incurred; or (iv) the Corporation, the Guarantor 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, the prepayment is made within 120 days,
the Debt prepaid is not owned by the Corporation, the Guarantor or a
Restricted Subsidiary, and the Debt prepaid was long-term debt at the time it
was created. In addition and notwithstanding the foregoing restrictions, the
Corporation and any of its Restricted Subsidiaries may, without securing the
Debt Securities, enter into a sale-leaseback transaction that otherwise would
be subject to the restrictions, provided that after giving effect to such
sale-leaseback transaction the aggregate amount of all Debt secured by Liens
that otherwise would be prohibited by the covenant limiting Liens described
above plus all Attributable Debt in respect of sale-leaseback transactions
that otherwise would be prohibited would not exceed 10% of Consolidated Net
Tangible Assets.
Consolidation, Merger, Sale of Assets. Neither the Corporation nor the
Guarantor shall consolidate with or merge into, or transfer all or
substantially all of its assets to, another corporation, unless (1) the
resulting, surviving or transferee corporation assumes by supplemental
indenture all of the obligations of the Corporation or the Guarantor, as the
case may be, under the Guarantees or the Debt Securities and the Indenture,
(2) immediately after giving effect to the transaction, no Event of Default,
and no circumstance 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 or the Guarantor, as the case may be, shall have delivered to the
trustee an officers' certificate and an opinion of counsel each stating that
the consolidation, merger or transfer and the supplemental indenture comply
with the Indenture.
When a successor corporation, trustee, paying agent or registrar assumes all
of the obligations of its predecessor under the Debt Securities and the
Indenture, the predecessor will be released from those obligations.
DEFAULT AND REMEDIES
An Event of Default under the Indenture in respect of any series of Debt
Securities is: default for 30 days in payment of interest on the Debt
Securities of that series; default in payment of principal on the Debt
Securities of that series; failure by the Corporation or the Guarantor for 90
days after notice to it to comply with any of its other agreements in the
Indenture for the benefit of Holders of Debt Securities of that series;
certain events of bankruptcy or insolvency involving the Corporation or the
Guarantor; and any other Event of Default specifically provided for by the
terms of such series, as described in the related Prospectus Supplement. If an
Event of Default occurs and is continuing, the Trustee or the Holders of at
least 25% in principal amount of the outstanding Debt Securities of the
affected series may declare the Debt Securities of that series to be due and
payable immediately, but under certain conditions such acceleration may be
rescinded by the Holders of a majority in principal amount of the outstanding
Debt Securities of the affected series.
Securityholders may not enforce the Indenture or the Debt Securities except
as provided in the Indenture. The Trustee may refuse to enforce the Indenture
or the Debt Securities unless it receives indemnity satisfactory to it.
Subject to certain limitations, Holders of a majority in principal amount of
the Debt Securities of any series may direct the Trustee in its exercise of
any trust or power under the Indenture in respect of that series. The
Indenture provides that the Trustee will, within 90 days after the occurrence
of any default with respect to the Debt Securities of any particular series,
give to the Holders of such Debt Securities notice of the default if known
12
<PAGE>
to it, unless the default shall have been cured or waived. The Trustee may
withhold from Securityholders notice of any continuing default (except a
default in payment of principal or interest) if it determines that withholding
such notice is in the interests of such Holders.
A director, officer, employee or stockholder (other than the Corporation)
shall not have any liability for any obligations of the Corporation or the
Guarantor under the Debt Securities or the Guarantees or the Indenture or for
any claim based on, in respect of, or by reason of such obligations or their
creation. By accepting a Debt Security, each Securityholder waives and
releases all such claims and liability. This waiver and release are part of
the consideration for the issuance of the Debt Securities and the execution of
the Guarantees.
DEFEASANCE
The Indenture provides, unless such provision is made inapplicable to the
Debt Securities of any series issued pursuant to the Indenture, that the
Corporation may, subject to certain conditions described below, discharge its
indebtedness, its obligations and the obligations of the Guarantor, or certain
of their obligations under the Indenture in respect of Debt Securities of a
series by depositing funds or, in the case of Debt Securities payable in
United States dollars, U.S. Government Obligations (as defined in the
Indenture), or Debt Securities of the same series with the Trustee. The
Indenture provides that (1) the Corporation and the Guarantor will be
discharged from any obligation to comply with certain restrictive covenants of
the Indenture and certain other obligations under the Indenture and any
noncompliance with such obligations shall not be an Event of Default in
respect of the series of Debt Securities or (2) provided that 91 days have
passed from the date of the deposit referred to below and certain specified
Events of Default have not occurred, the Corporation and the Guarantor will be
discharged from any and all obligations in respect of the series of Debt
Securities (except for certain obligations, including obligations to register
the transfer and exchange of the Debt Securities of such series, to replace
mutilated, lost or stolen Debt Securities of such series, to maintain paying
agencies and to cause money to be held in trust), in either case upon the
deposit with the Trustee, in trust, of money, Debt Securities of the same
series, and/or U.S. Government Obligations that, through the payment of
interest and principal in accordance with their terms, will provide money in
an amount sufficient to pay the principal of and each installment of interest
on the series of Debt Securities on the date when such payments become due in
accordance with the terms of the Indenture and the series of Debt Securities.
In the event of any such defeasance under clause (1) above, the obligations of
the Corporation under the Indenture and the Debt Securities of the affected
series, other than with respect to the covenants relating to limitations on
liens and sale-leaseback transactions and reporting thereon, and covenants
relating to consolidations, mergers and transfers of all or substantially all
of the assets of the Corporation, shall remain in full force and effect. In
the event of defeasance and discharge under clause (2) above, the holders of
Debt Securities of the affected series are entitled to look only to the trust
fund created by such deposit for payment. In the case of the Corporation's
discharge from any and all obligations in respect of a series of Debt
Securities as described in clause (2) above, the trust may be established only
if, among other things, the Corporation shall have delivered to the Trustee an
opinion of counsel to the effect that, if the subject Debt Securities are then
listed on a national securities exchange, such deposit, defeasance or
discharge will not cause the Debt Securities to be delisted. Under Federal
income tax law as of the date of this Prospectus, defeasance and discharge
under clause (2) above may be treated as a taxable exchange of the related
Debt Securities. As a consequence, each holder of such Debt Securities might
be required to recognize gain or loss equal to the difference between the
Holder's cost or other tax basis for the Debt Securities and the value of the
Holder's interest in the trust. Prospective investors are urged to consult
their own tax advisors as to the specific consequences of such a deposit and
discharge, including the applicability and effect of tax laws other than the
Federal income tax law.
Pursuant to the escrow or trust agreements that the Corporation may execute
in connection with the defeasance of all or certain of its obligations under
the Indenture as provided above, the Corporation from time to time may elect
to substitute U.S. Government Obligations or Debt Securities of the same
series for any or all of the U.S. Government Obligations deposited with the
Trustee; provided that the money, U.S. Government Obligations, and/or Debt
Securities of the same series in trust following such substitution or
substitutions will be sufficient, through the payment of interest and
principal in accordance with their terms, to pay the principal of
13
<PAGE>
and each installment of interest on the series of Debt Securities on the date
when such payments become due in accordance with the terms of the Indenture
and the series of Debt Securities. The escrow trust agreements also may enable
the Corporation (1) to direct the Trustee to invest any money received by the
Trustee on the U.S. Government Obligations comprising the trust in additional
U.S. Government Obligations, and (2) to withdraw monies or U.S. Government
Obligations from the trust from time to time; provided that the money and/or
U.S. Government Obligations in trust following such withdrawal will be
sufficient, through the payment of interest and principal in accordance with
their terms, to pay the principal of and each installment of interest on the
series of Debt Securities on the date when such payments become due in
accordance with the terms of the Indenture and the series of Debt Securities.
GOVERNING LAW
The Debt Securities and the Indenture will be governed by the laws of the
State of Maryland.
TRUSTEE
First Trust of Illinois, National Association from time to time performs
other services for the Corporation in the normal course of business and is
trustee under other indentures pursuant to which debt securities of the
Corporation and Tactical Systems have been issued.
ADDITIONAL INFORMATION
The Indenture is an exhibit to the Registration Statement of which this
Prospectus is a part. Any person who receives this Prospectus may obtain a
copy of the Indenture without charge by writing to the Corporation at the
address listed under the caption "Incorporation of Certain Information by
Reference."
PLAN OF DISTRIBUTION
The Corporation may sell Debt Securities to or through underwriters or to
dealers, acting as principals for their own account and also may sell Debt
Securities directly to other purchasers or through agents. The Prospectus
Supplement in respect of which this Prospectus is being delivered sets forth
the terms of the offering of the Offered Debt Securities and includes, without
limitation, (i) the name or names of any underwriters, dealers or agents with
which the Corporation has entered into arrangements with respect to the sale
of the Offered Debt Securities, (ii) the initial public offering or purchase
price of the Offered Debt Securities, (iii) the principal amounts of the
Offered Debt Securities to be purchased by any such underwriters, dealers or
agents, (iv) any underwriting discounts, commissions and other items
constituting underwriters' compensation and any other discounts, concessions
or commissions allowed or reallowed or paid by any underwriters or other
dealers, (v) any commissions paid to any agents, (vi) the net proceeds to the
Corporation, and (vii) the securities exchanges, if any, on which the Offered
Debt Securities will be listed.
If underwriters are used in the offering of Debt Securities, the Debt
Securities being sold will be acquired by the underwriters for their own
account and may be resold from time to time in one or more transactions,
including negotiated transactions, at a fixed public offering price or at
varying prices determined at the time of such resale. Unless otherwise set
forth in an applicable Prospectus Supplement, the obligations of the
underwriters to purchase such Debt Securities will be subject to certain
conditions precedent and each of the underwriters with respect to such Debt
Securities will be obligated to purchase all of the Debt Securities allocated
to it if any such Debt Securities are purchased. Any initial public offering
price and any discounts or concessions allowed or reallowed or paid to dealers
may be changed from time to time.
If dealers are utilized in the sale of the Debt Securities in respect of
which this Prospectus is being delivered, the Corporation will sell such Debt
Securities to such dealers as principals. The dealers may then resell such
Debt Securities to the public at varying prices to be determined by such
dealers at the time of resale.
Offers to purchase Debt Securities may be solicited by agents designated by
the Corporation from time to time. Any such agent, who may be deemed to be an
"underwriter" as that term is defined in the Securities Act, involved in the
offer or sale of the Debt Securities in respect of which this Prospectus is
being delivered will be
14
<PAGE>
named, and any commissions payable by the Corporation to such agent will be
set forth, in the Prospectus Supplement. Unless otherwise indicated in the
Prospectus Supplement in respect of which this Prospectus is being delivered,
any such agent will be acting on a best efforts basis for the period of its
appointment.
Offers to purchase Debt Securities may be solicited, and sales hereof may be
made directly by the Corporation to institutional investors or otherwise, who
may be deemed to be underwriters within the meaning of the Securities Act with
respect to any resales thereof.
Underwriters, dealers and agents participating in the distribution of Debt
Securities may be deemed to be "underwriters," as that term is defined under
the Securities Act, and any discounts and commissions received by them and any
profit realized by them on the resale of those Debt Securities may be deemed
to be underwriting discounts and commissions, under the Securities Act.
Under agreements that may be entered into by the Corporation, underwriters,
dealers and agents who participate in the distribution of Debt Securities may
be entitled to indemnification by the Corporation against certain liabilities,
including certain liabilities under the Securities Act.
If indicated in the Prospectus Supplement, the Corporation may authorize
underwriters or other persons acting as the Corporation's agents to solicit
offers by certain institutions to purchase Offered Debt Securities from the
Corporation pursuant to contracts providing for payment and delivery on a
future date. Institutions with which such contracts may be made include
commercial and savings banks, insurance companies, pension funds, investment
companies, educational and charitable institutions and others, but in all
cases such institutions must be approved by the Corporation. The obligations
of any purchaser under any such contract will be subject to the condition that
the purchase of the Offered Debt Securities shall not at the time of delivery
be prohibited under the laws of the jurisdiction to which such purchaser is
subject. The underwriters and any such other agents will not have any
responsibility in respect of the validity or performance of such contracts.
VALIDITY
The validity of the Debt Securities offered hereby will be passed on for the
Corporation by Miles & Stockbridge, a Professional Corporation, Baltimore,
Maryland. The validity of the Guarantees will be passed on for Tactical
Systems by William J. LaSalle, Vice President and General Counsel of the
Corporation's Tactical Systems Sector.
EXPERTS
The consolidated financial statements of the Corporation incorporated by
reference in the Corporation's Annual Report (Form 10-K) for the year ended
December 31, 1995, have been audited by Ernst & Young LLP, independent
auditors, as set forth in their report thereon included therein and
incorporated herein by reference. Such consolidated financial statements are
incorporated herein by reference in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
The consolidated balance sheets of Loral Corporation and Subsidiaries--
Retained Business as of March 31, 1995 and 1994 and the related consolidated
statements of operations, changes in net assets and cash flows for each of the
three years in the period ended March 31, 1995, included in the Corporation's
Current Report on Form 8-K filed with the Commission on May 2, 1996 (as
amended on May 8, 1996), which are incorporated herein by reference, have been
audited by Coopers & Lybrand L.L.P., independent auditors, as set forth in
their report thereon included therein and incorporated herein by reference.
Such consolidated financial statements of Loral Corporation and Subsidiaries--
Retained Business are incorporated herein by reference in reliance upon the
report of Coopers & Lybrand L.L.P. given upon the authority of said firm as
experts in accounting and auditing.
15
<PAGE>
===============================================================================
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS SUPPLEMENT OR THE PROSPECTUS AND,
IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON
AS HAVING BEEN AUTHORIZED BY THE CORPORATION, TACTICAL SYSTEMS, THE
UNDERWRITERS OR ANY OTHER PERSON. NEITHER THE DELIVERY OF THIS PROSPECTUS
SUPPLEMENT AND THE PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY
CIRCUMSTANCES CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE CORPORATION OR TACTICAL SYSTEMS SINCE THE DATE HEREOF OR THEREOF
OR THAT THE INFORMATION CONTAINED HEREIN OR THEREIN IS CORRECT AS OF ANY TIME
SUBSEQUENT TO ITS DATE. THIS PROSPECTUS SUPPLEMENT AND THE PROSPECTUS DO NOT
CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN ANY JURISDICTION IN WHICH SUCH
OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH
OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANYONE TO WHOM IT IS
UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
---------------
TABLE OF CONTENTS
PROSPECTUS SUPPLEMENT
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
The Corporation............................................................ S-2
Recent Developments........................................................ S-2
Use of Proceeds............................................................ S-4
Capitalization............................................................. S-4
Unaudited Pro Forma Combined
Condensed Financial Statements............................................ S-5
Selected Consolidated Financial Information................................ S-9
Business of the Corporation................................................ S-11
Business of Tactical Systems............................................... S-13
Description of Offered Debt Securities..................................... S-15
Underwriting............................................................... S-16
Validity of Offered Debt Securities........................................ S-17
PROSPECTUS
Available Information...................................................... 2
Incorporation of Certain Information by
Reference................................................................. 3
The Corporation............................................................ 4
Use of Proceeds............................................................ 4
Ratio of Earnings to Fixed Charges......................................... 4
Description of Debt Securities............................................. 5
Plan of Distribution....................................................... 14
Validity................................................................... 15
Experts.................................................................... 15
</TABLE>
===============================================================================
===============================================================================
$2,200,000,000
LOCKHEED MARTIN
CORPORATION
$400,000,000
% NOTES DUE 1999
$600,000,000
% NOTES DUE 2001
$500,000,000
% NOTES DUE 2006
$400,000,000
% DEBENTURES DUE 2016
$300,000,000
% DEBENTURES DUE 2026
GUARANTEED BY
LOCKHEED MARTIN TACTICAL SYSTEMS, INC.
---------------
[LOGO OF LOCKHEED MARTIN]
---------------
GOLDMAN, SACHS & CO.
CS FIRST BOSTON
MERRILL LYNCH & CO.
J.P. MORGAN & CO.
================================================================================
<PAGE>
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.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee................. $1,724,138
Trustee fees and expenses........................................... 20,000
Legal fees and expenses............................................. 200,000
Accounting fees and expenses........................................ 500,000
Printing and engraving fees and expenses............................ 60,000
Rating agency fees.................................................. 700,000
Blue Sky fees and expenses (including legal fees)................... 20,000
Miscellaneous....................................................... 75,862
----------
$3,300,000
==========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Corporation's By-Laws 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.
Sections 721-726 of the New York Business Corporation Law contain non-
exclusive provisions for indemnification of officers and directors of a
corporation under certain specified conditions, including in part: (a)
indemnification against judgments, fines, amounts paid in settlement of, and
reasonable expenses incurred as a result of, an action or proceeding, whether
civil or criminal, threatened or brought against such person (other
II-1
<PAGE>
than by one bringing an action by or in the right of the corporation, but
including an action by or in the right of any other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise which such
person served in any capacity at the request of the corporation) if such
person acted in good faith, for a purpose which he reasonably believed to be
in, or, in the case of service for any other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise, not opposed to, the
best interests of the corporation, and, in criminal actions or proceedings, in
addition, had no reasonable cause to believe that his conduct was unlawful;
(b) indemnification against amounts paid in settlement and reasonable expenses
incurred by such person in connection with the defense or settlement of an
action by or in the right of the corporation if such director or officer
acted, in good faith, for a purpose which he reasonably believed to be in, or,
in the case of service for any other corporation or any partnership, joint
venture, trust, employee benefit plan or other enterprise, not opposed to, the
best interests of the corporation, except that no indemnification shall be
made in respect of (1) a threatened action, or a pending action which is
settled or otherwise disposed of, or (2) any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation,
unless and only to the extent that the court, or if no action was brought, a
court of competent jurisdiction, determines the person is fairly and
reasonably entitled to indemnity; and (c) notwithstanding the failure of a
corporation to provide indemnification, indemnification pursuant to court
order.
Article Ninth of Tactical Systems' Restated Certificate of Incorporation
provides that any person made a party to any action, suit or proceeding by
reason of the fact that he, his testator or intestate, is or was a director,
officer or employee of Tactical Systems or of any corporation for which he
served as such at the request of Tactical Systems, shall be indemnified by
Tactical Systems against the reasonable expenses, including attorneys' fees,
actually and necessarily incurred by him in connection with the defense of
such action, suit or proceeding, or in connection with any appeal therein,
except in relation to matters as to which it shall be adjudged in such action,
suit or proceeding that such officer, director or employee is liable for
negligence or misconduct in the performance of his duties. Such right of
indemnification shall not be deemed exclusive of any other rights to which
such director, officer or employee may be entitled apart from the
indemnification provisions of said Article Ninth. Any amount payable by way of
indemnity, whether the action, suit or proceeding reaches final judgment, or
is settled with court approval before final judgment, shall be determined and
paid in accordance with the then applicable provisions of the statutes of the
State of New York, provided, however, that if such amount is paid other than
pursuant to court order or action by stockholders, Tactical Systems shall
within 18 months from the date of such payment mail to its stockholders of
record at the time entitled to vote for the election of directors a statement
specifying the persons paid, the amount of the payments and the final
disposition of the litigation.
The By-laws of Tactical Systems provide that Tactical Systems may enter into
such contracts of indemnification as may be authorized from time to time by
the Board of Directors. The Board of Directors has authorized, and Tactical
Systems has entered into, an Indemnity Agreement with certain of Tactical
Systems' directors and executive officers. The Indemnity Agreements provide
that Tactical Systems will pay on behalf of such persons any amount which he
or she is or becomes legally obligated to pay as a result of any claim or
claims threatened or made as a result of any act or omission or neglect or
breach of duty he or she commits or suffers while acting in his or her
capacity as a director or officer of Tactical Systems, including any damages,
judgments, settlements and costs, reasonable costs of investigation and
reasonable costs of defense of legal actions, claims or proceedings and
appeals therefrom, and costs of attachments or similar bonds.
The form of Underwriting Agreement filed as an exhibit to this Registration
Statement provides for indemnification by the Corporation and the Guarantor of
the underwriters or controlling persons of the underwriters under certain
circumstances.
II-2
<PAGE>
ITEM 16. EXHIBITS.
<TABLE>
<C> <S>
1 Form of Underwriting Agreement.
4(a) Form of Indenture.
4(b) Form of Fixed Rate Debt Securities.*
5(a) Opinion of Miles & Stockbridge, a Professional Corporation.
5(b) Opinion of William J. LaSalle.
12(a) Statement regarding computation of ratio of earnings to fixed charges
and ratio of earnings to combined fixed charges and preferred stock
dividends.*
12(b) Statement regarding computation of pro forma ratio of earnings to fixed
charges and pro forma ratio of earnings to combined fixed charges and
preferred stock dividends.
23(a) Consent of Ernst & Young LLP.
23(b) Consent of Coopers & Lybrand L.L.P.
23(c) Consent of Miles & Stockbridge, a Professional Corporation (included in
Exhibit 5(a)).
23(d) Consent of William J. LaSalle (included in Exhibit 5(b)).
Additional Powers of Attorney (certain Powers of Attorney were
24 previously filed).
25 Form T-1, Statement of Eligibility and Qualification Under the Trust
Indenture Act of 1939.
99(a) Agreement and Plan of Merger dated as of January 7, 1996, by and among
Loral Corporation, Lockheed Martin Corporation and LAC Acquisition
Corporation, incorporated by reference herein from
the Schedule 14D-1 in respect of Loral Corporation filed by the
Corporation with the Commission on January 12, 1996.
99(b) Letter Amendment dated as of April 15, 1996, to the Agreement and Plan
of Merger dated as of
January 7, 1996, by and among Loral Corporation, Lockheed Martin
Corporation and LAC Acquisition Corporation, incorporated by reference
herein from Amendment No. 10 to the Schedule 14D-1 in respect of Loral
Corporation filed by the Corporation with the Commission on April 19,
1996.
99(c) Restructuring, Financing and Distribution Agreement dated as of January
7, 1996, by and among Loral Corporation, Loral Aerospace Holdings, Inc.,
Loral Aerospace Corp., Loral General Partner Inc., Loral Globalstar,
L.P., Loral Globalstar Limited, Loral Telecommunications Acquisition,
Inc. (to be renamed "Loral Space & Communications Ltd.") and Lockheed
Martin Corporation, incorporated by reference herein from the Schedule
14D-1 in respect of Loral Corporation filed by the Corporation with the
Commission on January 12, 1996.
99(d) Letter Amendment dated as of April 15, 1996, to the Restructuring,
Financing and Distribution Agreement dated as of January 7, 1996, by and
among Lockheed Martin Corporation, Loral Corporation, Loral Space and
Communications Corporation, Loral Aerospace Holdings, Inc., Loral
Aerospace Corp., Loral General Partner Inc., Loral Globalstar, L.P.,
Loral Globalstar Limited, and Loral Space & Communications Ltd.,
incorporated by reference herein from Amendment No. 11 to the Schedule
14D-1 in respect of Loral Corporation filed by the Corporation with the
Commission on April 22, 1996.
99(e) Agreement Containing Consent Order entered into between Lockheed Martin
Corporation and the Federal Trade Commission on April 15, 1996,
incorporated by reference herein from Amendment No. 11 to the Schedule
14D-1 in respect of Loral Corporation filed by the Corporation with the
Commission on April 22, 1996.
99(f) Revolving Credit Agreement (364 day) dated as of April 15, 1996, by and
among Lockheed Martin Corporation, LAC Acquisition Corporation, as
Guarantor, the Banks listed therein, Morgan Guaranty Trust Company of
New York, as Documentation Agent, and Bank of America National Trust and
Savings Association, as Administrative Agent, incorporated by reference
herein from Amendment No. 10 to the Schedule 14D-1 in respect of Loral
Corporation filed by the Corporation with the Commission on April 19,
1996.
99(g) Revolving Credit Agreement (5 year) dated as of April 15, 1996, by and
among Lockheed Martin Corporation, LAC Acquisition Corporation, as
Guarantor, the Banks listed therein, Morgan Guaranty Trust Company of
New York, as Documentation Agent, and Bank of America National Trust and
Savings Association, as Administrative Agent, incorporated by reference
herein from Amendment No. 10 to the Schedule 14D-1 in respect of Loral
Corporation filed by the Corporation with the Commission on April 19,
1996.
</TABLE>
- --------
* Previously filed.
II-3
<PAGE>
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.
(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 ("Act") in accordance
with the rules and regulations prescribed by the Commission under Section
305(b)(2) of the Act.
II-4
<PAGE>
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 PRE-EFFECTIVE
AMENDMENT NO. 1 TO THE REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF BETHESDA, STATE OF
MARYLAND, THE 8TH DAY OF MAY 1996.
Lockheed Martin Corporation
/s/ Walter E. Skowronski
By: __________________________________
Walter E. Skowronski
Vice President and Treasurer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS PRE-
EFFECTIVE AMENDMENT NO. 1 TO THE REGISTRATION STATEMENT HAS BEEN SIGNED BY THE
FOLLOWING PERSONS IN THE CAPACITIES AND ON THE DATES INDICATED.
* Chief Executive
- ------------------------------------ Officer (Principal May 8, 1996
NORMAN R. AUGUSTINE Executive Officer)
* Senior Vice
- ------------------------------------ President and May 8, 1996
MARCUS C. BENNETT Chief Financial
Officer (Principal
Financial Officer)
* Vice President and
- ------------------------------------ Controller May 8, 1996
ROBERT E. RULON (Principal
Accounting
Officer)
THIS PRE-EFFECTIVE AMENDMENT NO. 1 TO 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* Gwendolyn S. King*
Vincent N. Marafino*
Marcus C. Bennett*
Lynne V. Cheney* Eugene F. Murphy*
Vance D. Coffman* Frank Savage*
Houston I. Flournoy* Daniel M. Tellep*
James F. Gibbons* Carlisle A.H. Trost*
Edward E. Hood, Jr.* James R. Ukropina*
Caleb B. Hurtt* Douglas C. Yearley*
/s/ Stephen M. Piper
*By: _______________________________ May 8, 1996
Stephen M. Piper
(As Attorney-in-fact)
II-5
<PAGE>
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 PRE-EFFECTIVE
AMENDMENT NO. 1 TO THE REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF BETHESDA, STATE OF
MARYLAND, THE 8TH DAY OF MAY 1996.
Lockheed Martin Tactical Systems,
Inc.
/s/ Walter E. Skowronski
By: __________________________________
Walter E. Skowronski
Vice President and Treasurer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS PRE-
EFFECTIVE AMENDMENT NO. 1 TO THE REGISTRATION STATEMENT HAS BEEN SIGNED BY THE
FOLLOWING PERSONS IN THE CAPACITIES AND ON THE DATES INDICATED.
* Chief Executive
- ------------------------------------ Officer (Principal May 8, 1996
NORMAN R. AUGUSTINE Executive Officer)
* Senior Vice
- ------------------------------------ President and May 8, 1996
MARCUS C. BENNETT Chief Financial
Officer (Principal
Financial Officer)
* Vice President and
- ------------------------------------ Controller May 8, 1996
ROBERT E. RULON (Principal
Accounting Officer)
THIS PRE-EFFECTIVE AMENDMENT NO. 1 TO THE REGISTRATION STATEMENT ALSO HAS
BEEN SIGNED ON THE DATE INDICATED BY THE FOLLOWING DIRECTORS, WHO CONSTITUTE A
MAJORITY OF THE BOARD OF DIRECTORS:
Marcus C. Bennett* Frank C. Lanza*
Vance D. Coffman* Frank H. Menaker, Jr.*
/s/ Stephen M. Piper
*By: _______________________________ May 8, 1996
Stephen M. Piper
(As Attorney-in-fact)
II-6
<PAGE>
EXHIBIT 1
LOCKHEED MARTIN CORPORATION
Guaranteed Debt Securities
Payments on the Guaranteed Debt
Securities are Guaranteed by
LOCKHEED MARTIN TACTICAL SYSTEMS, INC.
Underwriting Agreement
----------------------
________ __, 199_
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"), and Lockheed Martin Tactical Systems, Inc., a New York
corporation (the "Guarantor"), propose 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"), which
Securities shall be fully and unconditionally guaranteed by the Guarantor (the
"Guarantees").
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
<PAGE>
sell any of the Securities, the obligation of the Guarantor to provide the
Guarantees 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 and the Guarantor represent and warrant to, and agree
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"), and the
Staff of the Securities and Exchange Commission (the "Commission") has concurred
in the Guarantor's request that the Guarantor be entitled to use Form S-3. The
Corporation and the Guarantor have carefully prepared and filed with 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 and the Guarantees. 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 and
the Guarantor propose 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 and have previously advised you of all further
information (financial and other) with respect to the Corporation and the
Guarantor to be set forth therein. 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
- 2 -
<PAGE>
"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 is hereinafter called an
"Interim Prospectus." If the Corporation and the Guarantor have 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
- 3 -
<PAGE>
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 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 or the Guarantor 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 or the Guarantor for
use therein.
(e) The certificates delivered pursuant to paragraph (e) of Section 5
hereof and all other documents delivered by the Corporation or the Guarantor 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 to be 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
or the Guarantor 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 or the Guarantor.
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 and the Guarantor
hereby confirm 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 and the Guarantor (as they may be amended or supplemented
from time to time if the Corporation and the Guarantor furnish amendments or
supplements thereto to such Underwriters).
- 4 -
<PAGE>
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 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 and
the Guarantor 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 and
the Guarantor 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 the Current Report on Form 8-K of
the Corporation filed with the Commission on May 2, 1996 (as amended by the
Current Report on Form 8-K/A filed with the Commission on May 8, 1996), 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 -
<PAGE>
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 and the
Guarantor 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 and the Guarantor 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 and the Guarantor, 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 or the Guarantor, as the case may be, 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, to the effect set forth in Exhibit A
hereto, and with respect to such letter dated such Time of Delivery, as to such
other matters as the Representatives may reasonably request and in form and
substance satisfactory to the Representatives.
- 6 -
<PAGE>
(g) 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 Loral 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, to the effect set forth in Exhibit B
hereto, and with respect to such letter dated such Time of Delivery, as to such
other matters as the Representatives may reasonably request and in form and
substance satisfactory to the Representatives.
(h) 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,
substantially in the form of opinion set forth in Exhibit C hereto.
(i) 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 incorporation of the Guarantor, 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.
(j) 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 that are guaranteed by the
Guarantor.
(k) Subsequent to the execution of the Pricing Agreement relating to
such Designated Securities, neither the Corporation nor the Guarantor shall 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 and the Guarantor agree 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 and the Guarantor with the
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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 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 and the Guarantor
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 or the Guarantor 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 the Guarantor or any
representative of or attorney for the Corporation or the Guarantor of any other
communication from the Commission relating to the Corporation, the Guarantor,
the Registration Statement, the Basic Prospectus, any Interim Prospectus or the
Final Prospectus and (v) of the receipt by the Corporation or the Guarantor or
any representative of or attorney for the Corporation or the Guarantor 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 and the
Guarantor each 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),
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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.
(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 or the Guarantor 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
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writing copies of such financial statements and other periodic and special
reports as the Corporation or the Guarantor 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.
(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 or the Guarantor
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 and the Guarantor covenant and agree with each
Underwriter that the Corporation and the Guarantor 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 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
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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 and the Guarantor each agree 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 and the Guarantor), 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 or the Guarantor 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 or the Guarantor 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 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 and the Guarantor with Section 6(d) hereof.
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<PAGE>
(b) Each Underwriter of Designated Securities agrees to indemnify and
hold harmless the Corporation and the Guarantor to the same extent as the
foregoing indemnity from the Corporation and the Guarantor 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 or the Guarantor 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 and the
Guarantor 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 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
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<PAGE>
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 and the Guarantor 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 and the
Guarantor 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 and the Guarantor on the one hand and such Underwriters on
the other shall be deemed to be in the same proportion as the total 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 and the Guarantor 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, the Guarantor 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
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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 and the Guarantor under this
Section 8 shall be in addition to any liability which the Corporation and the
Guarantor 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 or the Guarantor and
to each person, if any, who controls the Corporation or the Guarantor 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 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
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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 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,
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(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 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 and the Guarantor 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 or the Guarantor, 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 or the Guarantor to comply
with the terms or to fulfill any of the conditions of this Agreement, the
Corporation or the Guarantor, as the case may be, 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
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hereunder to justify its cancellation or termination of its obligations
hereunder, shall be relieved of liability to the Corporation or the Guarantor 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 Guarantor 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 the Guarantor,
or any officer or director or controlling person of the Corporation or the
Guarantor, and shall survive delivery of and payment for the Securities.
12. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof, neither the Corporation nor the Guarantor shall 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 and the Guarantor
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 and the Guarantor shall then be under no further liability
to any Underwriter with respect 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 statements, requests, notices and agreements hereunder shall be in
writing or by telegram if promptly confirmed in writing, and if to the
Underwriters shall be sufficient in all respects if delivered or sent by
registered mail to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Corporation or the Guarantor shall be
sufficient in all respects if delivered or sent by registered mail to the
address of the Corporation or the Guarantor 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 by registered mail to such Underwriter at its address set
forth in its Underwriters'
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Questionnaire, or telex constituting such Questionnaire, which address will be
supplied to the Corporation by the Representatives upon request.
14. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Corporation and the
Guarantor and, to the extent provided in Section 8 and Section 11 hereof, the
officers and directors of the Corporation and the Guarantor and each person who
controls the Corporation or the Guarantor 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.
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:________________________________
LOCKHEED MARTIN TACTICAL
SYSTEMS, INC.
By:________________________________
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Accepted as of the date hereof:
_________________________
_________________________
_________________________
On behalf of itself and each of the
Underwriters
_________________________
______________________________
By:
- 19 -
<PAGE>
LOCKHEED MARTIN CORPORATION
LOCKHEED MARTIN TACTICAL SYSTEMS, INC.
Pricing Agreement
-----------------
_________________________
_________________________
_________________________
c/o _____________________
_____________________
_____________________
________ __, 199_
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 ________ __, 1996 (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"), which Designated Securities shall be fully and unconditionally
guaranteed by Lockheed Martin Tactical Systems, Inc., a New York corporation
("the Guarantor"). 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,
<PAGE>
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, the
Corporation and the Guarantor. 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:_______________________________
LOCKHEED MARTIN TACTICAL
SYSTEMS, INC.
By:_______________________________
Accepted as of the date hereof:
_________________________
_________________________
_________________________
On behalf of itself and each of the
Underwriters
_________________________
___________________________________
By:
- 2 -
<PAGE>
SCHEDULE I
Principal Amount of Designated Securities
to be Purchased
-----------------------------------------
Underwriter
- -----------
<PAGE>
SCHEDULE II
Registration Statement No.: 333-01939
- --------------------------
Title of Designated Securities:
- ------------------------------
[ %] Guaranteed [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 May , 1996, between the
Corporation, the Guarantor and First Trust of Illinois,
National Association, as Trustee
Maturity:
- --------
Interest Rate:
- -------------
[ %] [Zero Coupon] [See Floating Rate Provisions]
<PAGE>
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 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
II-2
<PAGE>
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].]
Time of Delivery:
- ----------------
Closing Location:
- ----------------
Names and addresses of Representatives:
II-3
<PAGE>
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
II-4
<PAGE>
the form in which such features will be described in the Prospectus
Supplement for the offering.
II-5
<PAGE>
EXHIBIT 4(a)
================================================================================
LOCKHEED MARTIN CORPORATION
as Issuer
LOCKHEED MARTIN TACTICAL SYSTEMS, INC.
as Guarantor
AND
FIRST TRUST OF ILLINOIS,
NATIONAL ASSOCIATION
--------------------------------------
as Trustee
--------------------
INDENTURE
Dated as of May ___, 1996
================================================================================
<PAGE>
TABLE OF CONTENTS
----------
<TABLE>
<CAPTION>
Page
----
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
<S> <C> <C>
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........................ 8
SECTION 2.03. Title, Amount and Terms of Securities............... 9
SECTION 2.04. Registrar and Paying Agent.......................... 13
SECTION 2.05. Paying Agent to Hold Money in Trust................. 13
SECTION 2.06. Securityholder Lists................................ 13
SECTION 2.07. Transfer and Exchange............................... 13
SECTION 2.08. Replacement Securities.............................. 15
SECTION 2.09. Outstanding Securities.............................. 16
SECTION 2.10. Temporary Securities................................ 17
SECTION 2.11. Cancellation........................................ 17
SECTION 2.12. Defaulted Interest.................................. 17
SECTION 2.13. Currency and Manner of Payments in
Respect of Securities.............................. 17
SECTION 2.14. Appointment and Resignation of Currency
Determination Agent................................ 21
ARTICLE 3
REDEMPTION
SECTION 3.01. Applicability of this Article....................... 22
SECTION 3.02. Notices to Trustee.................................. 22
SECTION 3.03. Selection of Securities to be Redeemed.............. 22
SECTION 3.04. Notice of Redemption................................ 23
SECTION 3.05. Effect of Notice of Redemption...................... 23
SECTION 3.06. Deposit of Redemption Price......................... 24
SECTION 3.07. Securities Redeemed in Part......................... 24
ARTICLE 4
COVENANTS
SECTION 4.01. Certain Definitions................................. 24
SECTION 4.02. Payment of Securities............................... 26
</TABLE>
- i -
<PAGE>
<TABLE>
<S> <C> <C>
SECTION 4.03. Limitation on Liens................................. 26
SECTION 4.04. Limitation on Sale-Leaseback Transactions........... 28
SECTION 4.05. No Lien Created, etc................................ 29
SECTION 4.06. Compliance Certificate.............................. 29
SECTION 4.07. SEC Reports......................................... 29
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01. When the Corporation or the Guarantor
May Merge, etc. ................................... 29
SECTION 5.02. When Securities Must be Secured..................... 30
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default................................... 31
SECTION 6.02. Acceleration........................................ 32
SECTION 6.03. Other Remedies...................................... 32
SECTION 6.04. Waiver of Past Defaults............................. 33
SECTION 6.05. Control by Majority................................. 33
SECTION 6.06. Limitation on Suits................................. 33
SECTION 6.07. Rights of Holders to Receive Payment................ 33
SECTION 6.08. Collection Suit by Trustee.......................... 34
SECTION 6.09. Trustee May File Proofs of Claim.................... 34
SECTION 6.10. Priorities.......................................... 34
SECTION 6.11. Undertaking for Costs............................... 34
ARTICLE 7
TRUSTEE
SECTION 7.01. Duties of Trustee................................... 35
SECTION 7.02. Rights of Trustee................................... 36
SECTION 7.03. Individual Rights of Trustee, etc. ................. 36
SECTION 7.04. Trustee's Disclaimer................................ 36
SECTION 7.05. Notice of Defaults.................................. 36
SECTION 7.06. Reports by Trustee to Holders....................... 36
SECTION 7.07. Compensation and Indemnity.......................... 37
SECTION 7.08. Replacement of Trustee.............................. 37
SECTION 7.09. Successor Trustee by Merger, etc. .................. 38
SECTION 7.10. Eligibility; Disqualification....................... 39
SECTION 7.11. Preferential Collection of Claims
Against Corporation................................ 39
ARTICLE 8
SATISFACTION, DISCHARGE AND DEFEASANCE
SECTION 8.01. Satisfaction and Discharge Under Limited
Circumstances...................................... 39
</TABLE>
- ii -
<PAGE>
<TABLE>
<S> <C> <C>
SECTION 8.02. Satisfaction and Discharge of Indenture............. 40
SECTION 8.03. Defeasance of Certain Obligations................... 41
SECTION 8.04. Application of Trust Money.......................... 43
SECTION 8.05. Repayment to Corporation............................ 43
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.......................... 43
SECTION 9.02. With Consent of Holders............................. 44
SECTION 9.03. Compliance with Trust Indenture Act of
1939............................................... 45
SECTION 9.04. Revocation and Effect of Consents................... 45
SECTION 9.05. Notation on or Exchange of Securities............... 45
SECTION 9.06. Trustee to Sign Amendments, etc..................... 45
ARTICLE 10
GUARANTEE OF SECURITIES
SECTION 10.01. Unconditional Guarantee............................ 46
SECTION 10.02. Execution and Delivery of Guarantees............... 47
SECTION 10.03. Form of Guarantee.................................. 47
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. TIA Controls....................................... 48
SECTION 11.02 Notices............................................ 49
SECTION 11.03. Communication by Holders with Other
Holders........................................... 49
SECTION 11.04. Certificate and Opinion as to Conditions
Precedent......................................... 49
SECTION 11.05. Statements Required in Certificate or
Opinion........................................... 50
SECTION 11.06. When Treasury Securities Disregarded............... 50
SECTION 11.07. Rules by Trustee, Paying Agent,
Registrar......................................... 50
SECTION 11.08. Legal Holidays..................................... 50
SECTION 11.09. Governing Law...................................... 51
SECTION 11.10. No Adverse Interpretation of Other
Agreements........................................ 51
SECTION 11.11. No Recourse Against Others......................... 51
SECTION 11.12. Securities in a Foreign Currency................... 51
SECTION 11.13. Judgment Currency.................................. 51
SECTION 11.14. Successors......................................... 52
SECTION 11.15. Duplicate Originals................................ 52
SECTION 11.16. Acts of Holders; Record Dates...................... 52
</TABLE>
- ---------------
NOTE: This Table of Contents shall not, for any purpose, be
deemed to be a part of the Indenture.
- iii -
<PAGE>
INDENTURE dated as of May __, 1996, among Lockheed Martin Corporation, a
Maryland corporation (the "Corporation"), Lockheed Martin Tactical Systems,
Inc., a New York corporation (the "Guarantor"), and First Trust of Illinois,
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 or the Guarantor, as the
case may be.
"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 or the Guarantor, as the
case may be, 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.
<PAGE>
"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.
"ECU" means the European Currency Unit as defined and revised from time to
time by the Council of the European Communities.
"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.
"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.
"Guarantee" means any guarantee of the Guarantor endorsed on a Security
authenticated and delivered pursuant to this Indenture and shall include the
guarantee set forth in Article 10.
"Guarantor" means the party named as such in this Indenture until a
successor replaces it and thereafter means the successor.
- 2 -
<PAGE>
"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 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 or the Guarantor, as the case may be.
- 3 -
<PAGE>
"Officers' Certificate" means a certificate signed by two Officers or by an
Officer and an Assistant Treasurer or Assistant Secretary of the Corporation or
the Guarantor, as the case may be.
"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, the Guarantor 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.
"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.
<TABLE>
<CAPTION>
Defined in
Term Section
---- ----------
<S> <C>
"Attributable Debt".................................. 4.01
"Bankruptcy Law"..................................... 6.01
"Component Currency"................................. 2.13
"Consolidated Net Tangible Assets"................... 4.01
"Conversion Date".................................... 2.13
</TABLE>
- 4 -
<PAGE>
<TABLE>
<S> <C>
"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"...................................... 11.13
"Legal Holiday"...................................... 11.08
"Lien"............................................... 4.01
"Long-Term Debt"..................................... 4.01
"Paying Agent"....................................... 2.04
"Principal Property"................................. 4.01
"Registrar".......................................... 2.04
"Restricted Property"................................ 4.01
"Restricted Subsidiary".............................. 4.01
"Sale-Leaseback Transaction"......................... 4.01
"Specified Amount"................................... 2.13
"Subsidiary"......................................... 4.01
"Substitute Date".................................... 11.13
"United States"...................................... 4.01
"U.S. Government Obligations"........................ 8.02
"Valuation Date"..................................... 2.13
"Voting Stock"....................................... 4.01
</TABLE>
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;
- 5 -
<PAGE>
(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
(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.
The Guarantees by the Guarantor to be endorsed on the Securities shall be
substantially in the form set forth in Section 10.03, or 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 Guarantees may have notations, legends or endorsements required
by law, stock exchange rule or usage.
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 or the Guarantor with
respect to a Global Security, after its initial issuance, shall be in writing
but need not comply with Section 11.04.
- 6 -
<PAGE>
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 and the Guarantee have been approved;
(2) Officers' Certificates of the Corporation and the Guarantor 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 and the guarantee of such Securities by the Guarantor 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 and the guarantee of such Securities by the
Guarantor 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, the form and terms of the guarantee of such
Securities by the Guarantor have been established by or pursuant to a Board
Resolution or Resolutions in conformity with this Indenture, and that
Securities and Guarantees in such form when completed by appropriate
insertions and executed by the Corporation and the Guarantor 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 and the Guarantor, respectively,
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 and the
Guarantor 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
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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. Two Officers
shall sign the Guarantees for the Guarantor by manual or facsimile signature.
The Corporation's and the Guarantor's seals shall be impressed, affixed,
imprinted or reproduced on the Securities.
If an Officer whose signature is on a Security or a Guarantee no longer
holds that office at the time the Trustee authenticates the Security, the
Security or the Guarantee, as the case may be, shall be valid nevertheless.
A Security and the related Guarantee 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 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
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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.
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.
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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 or the
Guarantor, as appropriate, 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 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
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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;
(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 Securities of another series, the terms upon
which the Securities of that series will be convertible into Securities of
such other series;
(16) the right, if any, of the Corporation to redeem all or any part
of the Securities of that series before maturity
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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;
(21) the Guarantee of the Securities of such series pursuant to
Article 10; and
(22) any other terms of or relating to the Securities of that series
or the related Guarantees (which terms shall not be inconsistent with the
provisions of this Indenture).
References herein to currency shall include ECUs, unless otherwise
specified or unless the context otherwise requires.
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.
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
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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
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(or any successor provision) are met. Where 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 Guarantor, 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
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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.
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 Guarantor, 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,
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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 Guarantor, 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
Guarantor, 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 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, the Guarantor or an affiliate of the Corporation or the Guarantor
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
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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, having endorsed thereon Guarantees duly
executed by the Guarantor in accordance with the terms and conditions of this
Indenture. 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.
SECTION 2.11. Cancellation. The Corporation or the Guarantor 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.
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(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 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
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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, ECU or
currency unit payments to be made on such payment date. The Dollar, Foreign
Currency, ECU 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, the
ECU or any other 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, the ECU or such other currency unit occurring after the last
date on which such Foreign Currency, the ECU or such other 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 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
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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, including, but not
limited to, the ECU.
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, including, but not limited to, the ECU, 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, including, but not limited to,
the ECU, a Conversion Event (other than any event referred to above in this
definition of "Specified Amount") occurs with respect to any 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.
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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 the ECU or any other 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.
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.
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(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 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
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
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denomination for such Securities in the event the Securities are payable in ECUs
or 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 ECUs or 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 ECUs
or 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.
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
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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 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 Guarantor or the Corporation
and one or more of their 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).
"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
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counted only once even if the Corporation or the Guarantor and one or more of
their 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, the Guarantor 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, the Guarantor 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,
the Guarantor 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).
"Restricted Subsidiary" means a Subsidiary that has substantially all its
assets located in, or carries on
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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,
the Guarantor 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 (including, without limitation, the Guarantor).
"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 and the Guarantor
shall not, and neither shall 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, the Guarantor or a Subsidiary. The Lien may
not secure an obligation of the Corporation that is subordinated to any
Securities or an obligation of the Guarantor that is subordinated to any
Guarantees; or
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(2) the Lien is on property, Debt or shares of stock of a corporation
at the time such corporation becomes a Restricted Subsidiary; or
(3) the Lien is on property at the time the Corporation, the Guarantor
or a Restricted Subsidiary acquires the property. However, the Lien may
not extend to any other Restricted Property owned by the Corporation, the
Guarantor 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,
the Guarantor or a Restricted Subsidiary or secures any Debt incurred or
guaranteed by the Corporation, the Guarantor 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, the
Guarantor 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, the Guarantor 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, the Guarantor 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,
the Guarantor 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
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(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
(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
and the Guarantor shall not, and neither shall 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 the Guarantor, the
Guarantor and a Restricted Subsidiary, the Corporation and a Restricted
Subsidiary or between Restricted Subsidiaries; or
(3) the Corporation, the Guarantor 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, the Guarantor 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
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(5) the Corporation or the Guarantor owns or acquires other property
which will be made a Principal Property and is determined by the Board of
Directors of the Corporation or the Guarantor to have a fair value equal to
or greater than the Attributable Debt incurred; or
(6) (A) the Corporation, the Guarantor 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,
(C) the Debt prepaid is not owned by the Corporation, the
Guarantor 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, the
Guarantor or any Subsidiary.
SECTION 4.06. Compliance Certificate. The Corporation and the Guarantor
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 or the Guarantor 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 11.05.
SECTION 4.07. SEC Reports. Each of the Corporation and the Guarantor
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 or the Guarantor, as the case may
be, is required to file with the SEC pursuant to Section 13 or Section 15(d) of
the Exchange Act. The Corporation and the Guarantor, as applicable, also shall
comply with the other provisions of TIA Section 314(a).
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01. When the Corporation or the Guarantor May Merge, etc.
(a) Neither the Corporation nor the Guarantor shall consolidate with
or merge into, or transfer all or substantially
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all its assets to another corporation, unless (1) the resulting, surviving or
transferee corporation assumes by supplemental indenture all the obligations of
the Corporation or the Guarantor, as the case may be, under the Securities or
the Guarantees 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 or the Guarantor, as the case may be,
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 or the Guarantor, as the case may be, shall
terminate.
(b) In the event that (1) the Corporation and the Guarantor shall
consolidate with each other into another corporation, (2) the Corporation shall
merge into the Guarantor or vice versa, or (3) the Corporation shall transfer
all or substantially all of its assets to the Guarantor or vice versa, then,
upon satisfaction of the conditions set forth in Section 5.01(a), the resulting,
surviving or transferee corporation shall be substituted for the Corporation
under this Indenture and the Guarantees shall terminate and be of no further
effect.
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 or the Guarantor, as the case may be, by
supplemental 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 or the Guarantees and any other obligation of the
Corporation, the Guarantor or a Subsidiary. However, the Corporation or the
Guarantor, as the case may be, need not comply with this Section if:
(1) upon the consolidation, merger or transfer the attaching Lien will
secure the Securities or the Guarantees, as the case may be, equally and
ratably with or prior to Debt secured by the attaching Lien; or
(2) the Corporation or the Guarantor 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.
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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 or the Guarantor fails to comply with any of its
other agreements in the Guarantees or 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 or the Guarantor 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
(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 or the Guarantor in an
involuntary case,
(B) appoints a Custodian of the Corporation or the Guarantor or
for all or substantially all of the property of the Corporation or the
Guarantor, or
(C) orders the winding up or liquidation of the Corporation or
the Guarantor,
and the order or decree remains unstayed and in effect for 60 days; or
(6) there occurs any other event specifically described as an Event of
Default by the Securities of that series.
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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 and the
Guarantor of the default and the Corporation or the Guarantor, as the case may
be, 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 Guarantor, 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 and the Guarantor or the Holders of at least 25% in principal amount
of the Securities of that series by notice to the Corporation, the Guarantor 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.
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
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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 of 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
(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,
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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 and the Guarantor 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 the Guarantor, or any of
their 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.
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
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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 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.
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(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, the Guarantor or any of their
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 or the
Guarantees, 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 or in the Guarantees 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.
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).
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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.
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.
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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 Guarantor, 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
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or substantially all its corporate trust assets to another 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. First Trust
of Illinois, 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 March 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 Guarantor has issued
$100,000,000 aggregate principal amount of its 9.125%, Debentures due 2022 and
(v) an indenture dated September 1, 1993, under which the Guarantor 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.
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 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 related Guarantees, 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 and the related Guarantees. The Corporation will reimburse the
Trustee for any subsequent costs or expenses reasonably and properly incurred by
the Trustee in connection with this Indenture, the Securities or the related
Guarantees.
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
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time at its option may terminate all of its obligations and the obligations of
the Guarantor 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 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 11.04
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
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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 and the
Guarantees, including the terms and conditions with respect thereto set forth in
this Indenture, shall no longer be binding upon, or applicable to, the
Corporation or the Guarantor.
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 and the Guarantor 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 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
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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 11.04 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 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
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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 and the
Guarantor 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;
(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 or the Guarantor with
any provision of this Indenture or the Securities of
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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 and the Guarantor
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 and the Guarantor. The Holders of a majority in principal amount of
the Securities of each series affected may waive compliance by the Corporation
or the Guarantor with any provision of this Indenture or the Securities of each
such series or the related Guarantees 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, 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.
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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. Neither the Corporation
nor the Guarantor may sign an amendment or supplement unless authorized by an
appropriate Board Resolution.
ARTICLE 10
GUARANTEE OF SECURITIES
SECTION 10.01. Unconditional Guarantee. The Guarantor hereby fully and
unconditionally guarantees to each Holder of a Security authenticated and
delivered by the Trustee, and to the Trustee, the due and punctual payment of
the principal of and interest, if any, on such Security, when and as the same
shall become due and payable, whether by declaration thereof or otherwise in
accordance with the terms of such Security and of this Indenture.
The Guarantor hereby agrees that its obligations hereunder shall be as if
it were principal debtor and not merely surety and shall be absolute and
unconditional, irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of any such Security or this Indenture, any
failure to enforce the provisions of any such Security or this Indenture, any
waiver, modification or indulgence granted to the Corporation with respect
thereto, by the Holder of such Security or the Trustee, or any other
circumstances that otherwise may constitute a legal or
- 45 -
<PAGE>
equitable discharge of a surety or guarantor; provided that, notwithstanding the
foregoing, no such waiver, modification, indulgence or circumstance shall,
without the consent of the Guarantor, increase the principal amount of a
Security or the interest rate thereon or increase any premium payable upon
redemption thereof. The Guarantor hereby agrees that this Guarantee shall be
enforceable without any demand, suit or proceeding first against the
Corporation. The Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of merger or bankruptcy of
the Corporation, any right to require a proceeding first against the
Corporation, protest or notice with respect to any such Security or the
indebtedness evidenced thereby or with respect to any sinking fund payment
required by the terms of such Security and all demands whatsoever and covenants
that this Guarantee will not be discharged as to any such Security except in
accordance with Section 8.01 or 8.02 or by payment in full of the principal of
and interest, if any, on such Security.
The Guarantor will be subrogated to all rights of the Holder against the
Corporation in respect of any amount paid by the Guarantor pursuant to the
provisions of the Guarantee; provided, however, that the Guarantor shall not be
entitled to enforce, or to receive any payments arising out of or based upon,
such right of subrogation until the principal of and interest, if any, on such
Security shall have been paid in full.
The Guarantee set forth in this Section 10.01 shall not be valid or become
obligatory for any purpose with respect to a Security until the certificate of
authentication on such Security shall have been signed by the Trustee.
SECTION 10.02. Execution and Delivery of Guarantees. Subject to Section
2.01, the Guarantor hereby agrees to execute the Guarantee in substantially the
form set forth in Section 10.03 to be endorsed on each Security authenticated
and delivered by the Trustee. The delivery of such Security by the Trustee,
after the authentication thereof hereunder, shall constitute due delivery of
such Guarantee on behalf of the Guarantor.
SECTION 10.03. Form of Guarantee. Guarantees to be endorsed on the
Securities shall, subject to Section 2.01, be in substantially the form set
forth below:
GUARANTEE OF LOCKHEED MARTIN TACTICAL SYSTEMS, INC.
For value received, Lockheed Martin Tactical Systems, Inc., a New York
corporation (the "Guarantor"), hereby fully and unconditionally guarantees
to the Holder of the Security upon which this Guarantee is endorsed the due
and punctual payment of the principal of, premium, if any, and interest, if
any, on said Security, when and as the same shall become due and payable,
whether by
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<PAGE>
declaration thereof or otherwise, according to the terms thereof and of the
Indenture referred to therein.
The Guarantor hereby agrees that its obligations hereunder shall be
absolute and unconditional, irrespective of, and shall be unaffected by,
any failure to enforce the provisions of said Security or said Indenture,
any extension, renewal, settlement, compromise, waiver, consent or
indulgence granted to the Corporation with respect thereto, by operation of
law or otherwise, or any other circumstance which may otherwise constitute
a legal or equitable discharge of a surety or guarantor; provided that,
notwithstanding the foregoing, no such extension, renewal, settlement,
compromise, waiver, consent, indulgence or circumstance shall, without the
consent of the Guarantor, increase the principal amount of, premium, if
any, or interest, if any, on said Security. The Guarantor hereby agrees
that this Guarantee shall be enforceable without any demand, suit or
proceeding first against the Corporation. The Guarantor hereby waives
diligence, presentment, demand of payment, filing of claims with a court in
the event of insolvency or bankruptcy of the Corporation, any right to
require a proceeding first against the Corporation, protest or notice with
respect to said Security or the indebtedness evidenced thereby or with
respect to any sinking fund payment required by the terms of said Security
and all demands whatsoever, and covenants that this Guarantee will not be
discharged except in accordance with certain provisions set forth in the
Indenture or by payment in full of the principal of, premium, if any, and
interest, if any, on said Security.
The Guarantor will be subrogated to all rights of the Holder against
the Corporation in respect of any amount paid by the Guarantor pursuant to
the provisions of this Guarantee; provided, however, that the Guarantor
shall not be entitled to enforce, or to receive any payments arising out of
or based upon, such right of subrogation until the principal of, premium,
if any, and interest, if any, on said Security shall have been paid in
full.
Notwithstanding the foregoing, the obligations of the Guarantor under
this Guarantee shall be limited to an amount equal to the largest amount
that would not render its obligations under this Guarantee subject to
avoidance under Section 548 of the United States Bankruptcy Code or any
comparable provisions of any applicable state law.
This Guarantee shall not be valid or become obligatory for any purpose
until the certificate of authentication on said Security shall have been
signed manually by the Trustee under the Indenture referred to
- 47 -
<PAGE>
in said Security. Terms used herein which are defined in such Indenture
shall have the respective meanings assigned thereto in the Indenture.
This Guarantee shall be deemed to be a contract made under the laws of
the State of Maryland, and for all purposes shall be governed by and
construed in accordance with the laws of such State, except as may
otherwise be required by mandatory provisions of law.
IN WITNESS WHEREOF, this Guarantee has been duly executed as of the
date of authentication on said Security.
LOCKHEED MARTIN TACTICAL
SYSTEMS, INC.
By:______________________(SEAL)
______________________________
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. 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 11.02 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:
if to the Corporation:
Lockheed Martin Corporation
Attention: Treasurer
6801 Rockledge Drive
Bethesda, Maryland 20817
if to the Guarantor:
Lockheed Martin Tactical Systems, Inc.
Attention: Treasurer
6801 Rockledge Drive
Bethesda, Maryland 20817
- 48 -
<PAGE>
if to the Trustee:
First Trust of Illinois, National Association
400 N. Michigan Avenue
Chicago, Illinois 60611
The Corporation, the Guarantor or the Trustee by notice to the others 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 11.03. 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 Guarantor, the Trustee, the Registrar and
anyone else shall have the protection of TIA Section 312(c).
SECTION 11.04. Certificate and Opinion as to Conditions Precedent. Upon
any request or application by the Corporation or the Guarantor to the Trustee to
take any action under this Indenture, the Corporation or the Guarantor, as the
case may be, 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 11.05. 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:
(1) a statement that the person making such certificate or opinion has
read such covenant or condition;
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<PAGE>
(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 11.06. 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 the Guarantor, or by any person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Corporation or the Guarantor, 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 11.07. 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 11.08. 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 11.09. Governing Law. The laws of the State of Maryland shall
govern this Indenture and the Securities.
SECTION 11.10. No Adverse Interpretation of Other Agreements. This
Indenture may not be used to interpret another indenture, loan or debt agreement
of the Corporation, the Guarantor or any Subsidiary of the Corporation or the
Guarantor. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
- 50 -
<PAGE>
SECTION 11.11. 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 or the Guarantor shall not have any liability for any
obligation of the Corporation or the Guarantor under the Securities or the
Guarantees 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, the issue of the Securities and the execution of the Guarantees.
SECTION 11.12. 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 11.13. 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
- 51 -
<PAGE>
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.
SECTION 11.14. Successors. All agreements of the Corporation and the
Guarantor in this Indenture and the Securities and the related Guarantees shall
bind its successor. All agreements of the Trustee in this Indenture shall bind
its successor.
SECTION 11.15. Duplicate Originals. The parties may sign any number of
copies of this Indenture. One signed copy is enough to prove this Indenture.
SECTION 11.16. 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 a 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
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<PAGE>
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.
- 53 -
<PAGE>
SIGNATURES
Attest: LOCKHEED MARTIN CORPORATION
______________________________ By: ___________________________(Seal)
Secretary
Attest: LOCKHEED MARTIN TACTICAL
SYSTEMS, INC., as Guarantor
______________________________ By:___________________________(Seal)
Secretary
Attest: FIRST TRUST OF ILLINOIS, NATIONAL
ASSOCIATION, as Trustee
______________________________ By:___________________________(Seal)
Secretary
- 54 -
<PAGE>
EXHIBIT 5a
MILES & STOCKBRIDGE
A PROFESSIONAL CORPORATION
10 LIGHT STREET
BALTIMORE, MARYLAND 21202
May 8, 1996
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 (Reg. No. 333-01939) (as amended, 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 By-
Laws of the Corporation, the form of Indenture to be entered into by and between
the Corporation, Lockheed Martin Tactical Systems, Inc. and First Trust of
Illinois, 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, the terms
of the resolutions adopted by the Finance Committee of 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.
<PAGE>
Lockheed Martin Corporation
May 8, 1996
Page 2
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
"Validity" in the 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
a Professional Corporation
By: /s/ Glenn C. Campbell
--------------------------------
Principal
<PAGE>
EXHIBIT 5b
LOCKHEED MARTIN TACTICAL SYSTEMS, INC.
600 THIRD AVENUE
NEW YORK, NEW YORK 10016
May 8, 1996
Lockheed Martin Tactical Systems, Inc.
6801 Rockledge Drive
Bethesda, Maryland 20817
Ladies and Gentlemen:
I am the Vice President and General Counsel of the Tactical Systems Sector
of Lockheed Martin Corporation, a Maryland corporation ("Lockheed Martin"). This
letter is being delivered in connection with the filing with the Securities and
Exchange Commission (the "Commission") of a Registration Statement on Form S-3
(Reg. No. 333-01939) (as amended, the "Registration Statement") under the
Securities Act of 1933, as amended (the "Act") and the guarantee of Lockheed
Martin Tactical Systems, Inc., a New York corporation (the "Corporation") of the
Debt Securities of Lockheed Martin to be issued from time to time pursuant to
Rule 415 under the Act. In this capacity, I have reviewed the Charter and By-
laws of the Corporation, the form of Indenture to be entered into by and between
Lockheed Martin, the Corporation and First Trust of Illinois, 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 guarantees and such certificates and other
documents as I have deemed necessary or advisable for the purposes of this
opinion.
Based on the foregoing, I am of the opinion that the Guarantees, 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, endorsed on the Debt Securities in accordance with the terms
of the Indenture and issued and delivered against payment to Lockheed Martin
for the Debt Securities, will be legally issued and will constitute valid
and binding obligations of the Corporation entitled to the benefits of the
Indenture.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to me under
<PAGE>
Lockheed Martin Tactical
Systems, Inc.
May 8, 1996
Page 2
the heading "Validity" in the Prospectus. In giving my consent, I do not
thereby admit that I am 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,
/s/ William J. LaSalle
<PAGE>
EXHIBIT 12b
LOCKHEED MARTIN CORPORATION
PRO FORMA RATIO OF EARNINGS TO FIXED CHARGES
DECEMBER 31, 1995
(IN MILLIONS, EXCEPT RATIO)
<TABLE>
<CAPTION>
LOCKHEED TACTICAL PRO FORMA PRO FORMA
MARTIN SYSTEMS ADJUSTMENTS COMBINED
-------- -------- ----------- ---------
<S> <C> <C> <C> <C>
EARNINGS:
Earnings from continuing operations before income taxes $1,089 $579 ($681) $987
Interest expense 288 118 482 888
Amortization of debt premium and discount, net (1) 1 - -
Portion of rents representative of an interest factor 53 25 - 78
Earnings of less than 50% owned associated companies (4) - - (4)
------ ------ ------ ------
Adjusted earnings from continuing operations before
income taxes and fixed charges $1,425 $723 ($199) $1,949
====== ====== ====== ======
FIXED CHARGES:
Interest expense $288 $118 $482 $888
Capitalized interest 3 - - 3
Amortization of debt premium and discount, net (1) 1 - -
Portion of rents representative of an interest factor 53 25 - 78
------ ------ ------ ------
Total fixed charges $343 $144 $482 $969
====== ====== ====== ======
RATIO OF EARNINGS TO FIXED CHARGES 4.2 5.0 2.0
====== ====== ====== ======
</TABLE>
<PAGE>
EXHIBIT 12b
LOCKHEED MARTIN CORPORATION
PRO FORMA RATIO OF EARNINGS TO
COMBINED FIXED CHARGES AND
PREFERRED STOCK DIVIDENDS
DECEMBER 31, 1995
(IN MILLIONS, EXCEPT RATIO)
<TABLE>
<CAPTION>
LOCKHEED TACTICAL PRO FORMA PRO FORMA
MARTIN SYSTEMS ADJUSTMENTS COMBINED
-------- -------- ----------- ---------
<S> <C> <C> <C> <C>
EARNINGS:
Earnings from continuing operations before income taxes $1,089 $579 ($681) $987
Interest expense 288 118 482 888
Amortization of debt premium and discount, net (1) 1 - -
Portion of rents representative of an interest factor 53 25 - 78
Earnings of less than 50% owned associated companies (4) - - (4)
------ ----- ----- ------
Adjusted earnings from continuing operations before
income taxes and fixed charges $1,425 $723 ($199) $1,949
====== ===== ===== ======
COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS:
Interest expense $288 $118 $482 $888
Capitalized interest 3 - - 3
Amortization of debt premium and discount, net (1) 1 - -
Portion of rents representative of an interest factor 53 25 - 78
Dividends on preferred stock, pretax 96 8 104
------ ----- ----- ------
Total combined fixed charges and preferred stock dividends $439 $144 $490 $1,073
====== ===== ===== ======
RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND
PREFERRED STOCK DIVIDENDS 3.2 5.0 1.8
======= ===== =====
</TABLE>
<PAGE>
EXHIBIT 23(a)
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in Pre-
Effective Amendment No. 1 to the Registration Statement (Form S-3 No. 333-01939)
and related Prospectus and Prospectus Supplement of Lockheed Martin Corporation
and Lockheed Martin Tactical Systems, Inc. for the registration of Guaranteed
Debt Securities to be filed on May 8, 1996, and to the incorporation by
reference therein of our report dated January 23, 1996, 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, 1995,
filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Washington, D.C.
May 8, 1996
<PAGE>
EXHIBIT 23(B)
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this registration statement of
Lockheed Martin Corporation on Form S-3 (File No. 333-01939) of our report dated
May 11, 1995 (except as to the information presented in notes 1 and 14, for
which the date is January 12, 1996), on our audits of the consolidated
financial statements of Loral Corporation and Subsidiaries-Retained Business as
of March 31, 1995 and 1994, and for each of the three years in the period ended
March 31, 1995, which report is included in the Current Report on Form 8-K/A of
Lockheed Martin Corporation dated April 23, 1996. We also consent to reference
to our firm under the caption "Experts."
/s/ COOPERS & LYBRAND L.L.P.
New York, New York
May 8, 1996
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
LOCKHEED MARTIN TACTICAL SYSTEMS, INC.
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 for the purpose of
registering under the Securities Act of 1933, as amended (the "Securities Act")
guarantees by Lockheed Martin Tactical Systems, Inc. of 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 April 30, 1996
- ---------------------
Marcus C. Bennett
Senior Vice President, Chief
Financial Officer and Director
(Principal Financial Officer)
<PAGE>
POWER OF ATTORNEY
LOCKHEED MARTIN TACTICAL SYSTEMS, INC.
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 for the purpose of
registering under the Securities Act of 1933, as amended (the "Securities Act")
guarantees by Lockheed Martin Tactical Systems, Inc. of 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 April 30, 1996
- --------------------
Vance D. Coffman
Director
<PAGE>
POWER OF ATTORNEY
LOCKHEED MARTIN TACTICAL SYSTEMS, INC.
The undersigned hereby constitutes Stephen M. Piper his lawful attorney-in-
fact and agent, with full power of substitution and resubstitution, for him and
in his 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 for the purpose of registering
under the Securities Act of 1933, as amended (the "Securities Act") guarantees
by Lockheed Martin Tactical Systems, Inc. of 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 attorney-in-fact and
agent, 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
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
/s/ FRANK H. MENAKER, JR. April 30, 1996
- -------------------------
Frank H. Menaker, Jr.
Director
<PAGE>
POWER OF ATTORNEY
LOCKHEED MARTIN TACTICAL SYSTEMS, INC.
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
for the purpose of registering under the Securities Act of 1933, as amended (the
"Securities Act") guarantees by Lockheed Martin Tactical Systems, Inc. of 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 April 30, 1996
- -----------------------
Norman R. Augustine
Chief Executive Officer
<PAGE>
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
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/ A. James Clark February 22, 1996
- ------------------------
A. James Clark
Director
<PAGE>
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
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 February 22, 1996
- ------------------------
Vance D. Coffman
Director
<PAGE>
================================================================================
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)
----------------
FIRST TRUST OF ILLINOIS,
NATIONAL ASSOCIATION
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
36-4046888
(I.R.S. EMPLOYER
IDENTIFICATION NO.)
400 NORTH MICHIGAN AVENUE, 60611
CHICAGO, ILLINOIS (ZIP CODE)
(ADDRESS OF PRINCIPAL EXECUTIVE
OFFICES)
----------------
JOHN W. PORTER
FIRST TRUST OF ILLINOIS, NATIONAL ASSOCIATION
400 N. MICHIGAN AVENUE, FLOOR 2S
CHICAGO, ILLINOIS 60611
TELEPHONE (312) 836-6736
(NAME, ADDRESS, AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
----------------
LOCKHEED MARTIN LOCKHEED MARTIN
CORPORATION TACTICAL SYSTEMS, INC.
(EXACT NAME OF OBLIGOR AS (EXACT NAME OF GUARANTOR AS
SPECIFIED IN ITS CHARTER) SPECIFIED IN ITS CHARTER)
----------------
Maryland New York
(State or other jurisdiction of incorporation or organization)
52-1893632 13-1718360
(I.R.S. Employer Identification No.)
6801 ROCKLEDGE DRIVE 6801 ROCKLEDGE DRIVE
BETHESDA, MARYLAND BETHESDA, MARYLAND
20817 20817
(ADDRESS AND ZIP CODE OF PRINCIPAL (ADDRESS AND ZIP CODE PRINCIPAL
EXECUTIVE OFFICES OF OBLIGOR) EXECUTIVE OFFICES OF GUARANTOR)
DEBT SECURITIES AND GUARANTEES OF DEBT SECURITIES
(TITLE OF INDENTURE SECURITIES)
================================================================================
<PAGE>
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 THE OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
The obligor is not an affiliate of the trustee.
ITEM 3. VOTING SECURITIES OF THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF VOTING SECURITIES OF
THE TRUSTEE:
AS OF MAY 2, 1996
<TABLE>
<CAPTION>
COL. B
COL. A AMOUNT
TITLE OF CLASS OUTSTANDING
-------------- -----------
<S> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 4. TRUSTEESHIPS UNDER OTHER INDENTURES.
IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH ANY OTHER
SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY OTHER
SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, FURNISH THE FOLLOWING INFORMATION:
(A) TITLE OF THE SECURITIES OUTSTANDING UNDER EACH SUCH OTHER INDENTURE.
Not applicable by virtue of response to Item 13.
(B) A BRIEF STATEMENT OF THE FACTS RELIED UPON AS A BASIS FOR THE CLAIM
THAT NO CONFLICTING INTEREST WITHIN THE MEANING OF SECTION 310(B)(1) OF
THE ACT ARISES AS A RESULT OF THE TRUSTEESHIP UNDER ANY SUCH OTHER
INDENTURE, INCLUDING A STATEMENT AS TO HOW THE INDENTURE SECURITIES
WILL RANK AS COMPARED WITH THE SECURITIES ISSUED UNDER SUCH OTHER
INDENTURE.
Not applicable by virtue of response to Item 13.
ITEM 5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE OBLIGOR OR
UNDERWRITERS.
IF THE TRUSTEE OR ANY OF THE DIRECTORS OR EXECUTIVE OFFICERS OF THE TRUSTEE
IS A DIRECTOR, OFFICER, PARTNER, EMPLOYEE, APPOINTEE, OR REPRESENTATIVE OF THE
OBLIGOR OR OF ANY UNDERWRITER FOR THE OBLIGOR, IDENTIFY EACH SUCH PERSON HAVING
ANY SUCH CONNECTION AND STATE THE NATURE OF EACH SUCH CONNECTION.
Not applicable by virtue of response to Item 13.
1
<PAGE>
ITEM 6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF THE TRUSTEE
OWNED BENEFICIALLY BY THE OBLIGOR AND EACH DIRECTOR, PARTNER AND EXECUTIVE
OFFICER OF THE OBLIGOR.
AS OF MAY 2, 1996
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
PERCENTAGE
OF VOTING
SECURITIES
REPRESENTED
BY AMOUNT
NAME OF TITLE OF AMOUNT OWNED GIVEN
OWNER CLASS BENEFICIALLY IN COL. C
------- -------- ------------ -----------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR
OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF THE TRUSTEE
OWNED BENEFICIALLY BY EACH UNDERWRITER FOR THE OBLIGOR AND EACH DIRECTOR,
PARTNER, AND EXECUTIVE OFFICER OF EACH SUCH UNDERWRITER.
AS OF MAY 2, 1996
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
PERCENTAGE
OF VOTING
SECURITIES
REPRESENTED
BY AMOUNT
NAME OF TITLE OF AMOUNT OWNED GIVEN
OWNER CLASS BENEFICIALLY IN COL. C
------- -------- ------------ -----------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO SECURITIES OF THE OBLIGOR OWNED
BENEFICIALLY OR HELD AS COLLATERAL SECURITY FOR OBLIGATIONS IN DEFAULT BY THE
TRUSTEE:
AS OF MAY 2, 1996
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
WHETHER
THE
SECURITIES
ARE VOTING
OR AMOUNT OWNED BENEFICIALLY OR PERCENT OF CLASS
TITLE OF NONVOTING HELD AS COLLATERAL SECURITY REPRESENTED BY AMOUNT
CLASS SECURITIES FOR OBLIGATIONS IN DEFAULT GIVEN IN COL. C
-------- ---------- ---------------------------- ---------------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
2
<PAGE>
ITEM 9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT ANY SECURITIES OF AN UNDERWRITER FOR THE OBLIGOR,
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OF SUCH
UNDERWRITER ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
AS OF MAY 2, 1996
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
AMOUNT OWNED
BENEFICIALLY OR HELD PERCENT OF CLASS
NAME OF ISSUER AS COLLATERAL SECURITY REPRESENTED BY
AND TITLE OF AMOUNT FOR OBLIGATIONS IN AMOUNT GIVEN IN
CLASS OUTSTANDING DEFAULT BY TRUSTEE COL. C
-------------- ----------- ---------------------- ----------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF CERTAIN
AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT VOTING SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE OF
THE TRUSTEE (1) OWNS 10 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR
OR (2) IS AN AFFILIATE, OTHER THAN A SUBSIDIARY, OF THE OBLIGOR, FURNISH THE
FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF SUCH PERSON.
AS OF MAY 2, 1996
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
AMOUNT OWNED
BENEFICIALLY OR HELD PERCENT OF CLASS
NAME OF ISSUER AS COLLATERAL SECURITY REPRESENTED BY
AND TITLE OF AMOUNT FOR OBLIGATIONS IN AMOUNT GIVEN IN
CLASS OUTSTANDING DEFAULT BY TRUSTEE COL. C
-------------- ----------- ---------------------- ----------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 11. OWNERSHIP OF HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF A PERSON
OWNING 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT ANY SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE OF THE
TRUSTEE, OWNS 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR,
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OF SUCH PERSON
ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
AS OF MAY 2, 1996
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
AMOUNT OWNED
BENEFICIALLY OR HELD PERCENT OF CLASS
NAME OF ISSUER AS COLLATERAL SECURITY REPRESENTED BY
AND TITLE OF AMOUNT FOR OBLIGATIONS IN AMOUNT GIVEN IN
CLASS OUTSTANDING DEFAULT BY TRUSTEE COL. C
-------------- ----------- ---------------------- ----------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
3
<PAGE>
ITEM 12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE.
EXCEPT AS NOTED IN THE INSTRUCTIONS, IF THE OBLIGOR IS INDEBTED TO THE
TRUSTEE, FURNISH THE FOLLOWING INFORMATION:
AS OF MAY 2, 1996
<TABLE>
<CAPTION>
COL. A COL. B COL. C
NATURE OF INDEBTEDNESS AMOUNT OUTSTANDING DATE DUE
- ---------------------- ------------------ --------
<S> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 13. DEFAULTS BY THE OBLIGOR.
(A) STATE WHETHER THERE IS OR HAS BEEN A DEFAULT WITH RESPECT TO THE
SECURITIES UNDER THIS INDENTURE. EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
There is not nor has there been a default with respect to the
securities under this indenture.
(B) IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH ANY OTHER
SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY OTHER
SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, OR IS TRUSTEE FOR MORE THAN ONE
OUTSTANDING SERIES OF SECURITIES UNDER THE INDENTURE, STATE WHETHER THERE HAS
BEEN A DEFAULT UNDER ANY SUCH INDENTURE OR SERIES, IDENTIFY THE INDENTURE OR
SERIES AFFECTED, AND EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
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 and guarantor
are outstanding. There is not and there has not been a default with
respect to the securities outstanding under such other indentures.
ITEM 14. AFFILIATIONS WITH THE UNDERWRITERS.
IF ANY UNDERWRITER IS AN AFFILIATE OF THE TRUSTEES, DESCRIBE EACH SUCH
AFFILIATION.
Not applicable by virtue of response to Item 13.
ITEM 15. FOREIGN TRUSTEE.
IDENTIFY THE ORDER OR RULE PURSUANT TO WHICH THE FOREIGN TRUSTEE IS
AUTHORIZED TO ACT AS SOLE TRUSTEE UNDER INDENTURES QUALIFIED OR TO BE QUALIFIED
UNDER THE ACT.
Not applicable.
ITEM 16. LIST OF EXHIBITS.
LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the Articles of Association of First Trust of Illinois,
National Association as now in effect, incorporated herein by reference to
Exhibit 1 to T-1; Registration No. 33-64175.
2. A copy of the certificate of authority to commence business,
incorporated herein by reference to Exhibit 2 to T-1; Registration No. 33-
64175.
3. A copy of the certificate of authority to exercise corporate trust
powers, incorporated herein by reference to Exhibit 3 to T-1; Registration
No. 33-64175.
4. A copy of the existing By-Laws of First Trust of Illinois, National
Association as now in effect, incorporated herein by reference to Exhibit 4
to T-1; Registration No. 33-64175.
4
<PAGE>
5. Not applicable by virtue of response to Item 13.
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 to T-
1; Registration No. 33-64175.
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.
SIGNATURE
PURSUANT TO THE REQUIREMENTS OF THE TRUST INDENTURE ACT OF 1939, THE TRUSTEE,
FIRST TRUST OF ILLINOIS, 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 TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, ALL IN THE CITY OF CHICAGO, AND STATE
OF ILLINOIS, AS OF THE 2ND DAY OF MAY, 1996.
First Trust of Illinois, National
Association
/s/ John W. Porter
By __________________________________
John W. Porter
Vice President and Secretary
5
<PAGE>
First Trust of Illinois, National A Call Date 12/31/95 Page RC-1
400 North Michigan Avenue Vendor ID: D CERT: 34094
Chicago, IL 60611
9
Transit Number: 09600069
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for December 31, 1995
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the most outstanding as of the last business day of the
quarter.
Schedule RC - Balance Sheet
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
ASSETS
RCOM
1. Cash and balances due from depository institutions (from Schedule RC-A): ----
a. Noninterest-bearing balances and currency and coin (1)___________________________ 0081. . 69,279 1.a
b. Interest-bearing balances (2)____________________________________________________ 0071. . 0 1.b
2. Securities:
a. Held-to-maturity securities (from Schedule RC-8, column A)_______________________ 1754. . 0 2.a
b. Available-for-sale securities (from Schedule RC-8, column D)_____________________ 1773. . 3,000 2.b
3. Federal funds sold and securities purchased under agreements to resell:
a. Federal funds sold_______________________________________________________________ 0276. . 0 3.a
b. Securities purchased under agreements to resell__________________________________ 0277. . 0 3.b
4. Loans and lease financing receivables:
RCON
a. Loans and leases, net of unearned income ----
(from Schedule RC-C)______________________________ 2122. . 0 . . . . . . 4.a
b. LESS: Allowance for loan and lease losses_________ 3125. . 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. . 0 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. . 27,568 10.
11. Other assets (from Schedule RC-F)___________________________________________________ 2160. . 401 11.
12. Total assets (sum of items 7 through 11)____________________________________________ 2170. . 100,248 12.
- ---------
</TABLE>
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certification of deposits not held for trading.
<PAGE>
First Trust of Illinois, National A Call Date: 12/31/95 Page RC -2
600 North Michigan Avenue Vendor ID: D CERT: 34094
Chicago, IL 60611 10
Transit Number: 09600069
Schedule RC - Continued
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
LIABILITIES
13. Deposits: RCON
a. In domestic offices (sum of totals of ----
columns A and C from Schedule RC-E)_______________________________________2200. . 0 13.a
RCON
----
(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) Noninterest-bearing___________________________________________________ . . . . . .
(2) Interest-bearing______________________________________________________ . . . . . .
14. Federal funds purchased and securities sold under agreements to repurchase:
a. Federal funds purchased___________________________________________________0278. . 0 14.a
b. Securities sold under agreements to repurchase____________________________0279. . 0 14.b
15. a. Demand notes issued to U.S. Treasury______________________________________2840. . 0 15.a
b. Trading liabilities_______________________________________________________3548. . 0 15.b
16. Other borrowed money:
a. With original maturity of one year or less________________________________2332. . 0 16.a
b. With original maturity of more than one year______________________________2333. . 0 16.b
17. Mortgage indebtedness and obligations under capitalized leases_______________2910. . 0 17.
18. Bank's liability on acceptances executed and outstanding_____________________2920. . 0 18.
19. Subordinated notes and debentures____________________________________________3200. . 0 19.
20. Other liabilities (from Schedule RC-G)_______________________________________2930. . 228 20.
21. Total liabilities (sum of items 13 through 20)_______________________________2948. . 228 21.
22. Limited-life preferred stock and related surplus_____________________________3282. . 0 22.
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. . 99,000 25.
26. a. Undivided profits and capital reserves____________________________________3632. . 20 26.a
b. Net unrealized holding gains (losses) on available-for-sale securities____8434. . 0 26.b
27. Cumulative foreign currency translation adjustments__________________________ . . . . . .
28. Total equity capital (sum of items 23 through 27)____________________________3210. . 100,020 28.
29. Total liabilities, limited-life preferred stock, and equity capital (sum of
items 21, 22, and 28_________________________________________________________3300. . 100,248 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 1994________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 on 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
</TABLE>
- -------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
