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As filed with the Securities and Exchange Commission on April 11, 2000.
Registration No. 333-32408
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________
PRE-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_____________
LOCKHEED MARTIN CORPORATION
(Exact name of registrant as specified in its charter)
Maryland 52-1893632
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Lockheed Martin Corporation
6801 Rockledge Drive
Bethesda, Maryland 20817
(301) 897-6000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
Frank H. Menaker, Jr.
Marian S. Block
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:
David A. Gibbons
King & Spalding
1730 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
(202) 737-0500
_____________
Approximate date of commencement of proposed sale to public: From time to
time after the effective date of this Registration Statement, as determined in
light of market conditions.
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, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering.
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering.
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [X]
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--------------------------------
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 this registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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[The information in this prospectus is not complete and may be changed. We may
not sell these securities until our registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.]
Prospectus, Subject to Completion, Dated April 11, 2000
[LOGO OF LOCKHEED MARTIN APPEARS HERE]
Lockheed Martin Corporation
6801 Rockledge Drive
Bethesda, Maryland 20817
(301) 897-6000
$1,000,000,000
Debt Securities
This prospectus is part of a registration statement that we filed with the
SEC utilizing a "shelf" registration process. Under this shelf process, we may,
from time to time, sell the debt securities described in this prospectus. You
should read this prospectus and any prospectus supplement, together with the
additional information described under the heading, Where You Can Find More
Information, carefully before you invest.
This prospectus provides you with a general description of the debt
securities that we may issue and sell at various times:
. our prospectus supplements will contain the specific terms of each series
of debt securities and may add, update or change information contained in
this prospectus.
. we can issue debt securities in one or more offerings for a total offering
price of up to $1,000,000,000 under this prospectus.
. we may sell the debt securities to or through underwriters, dealers or
agents. We also may sell debt securities directly to investors.
Neither the Securities and Exchange Commission nor any state securities
regulator has approved or disapproved these securities, or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
This Prospectus is dated , 2000.
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Where You Can Find More Information
We file annual, quarterly and current reports, proxy statements and other
information with the SEC. Our SEC filings are available on the SEC's web site at
http://www.sec.gov. You also may read and copy any document we file at the SEC's
public reference rooms in Washington, D.C., New York, New York and Chicago,
Illinois. Please call the SEC at 1-800-SEC-0330 for further information about
their public reference rooms, including copy charges. You also can obtain
information about us from the New York Stock Exchange at 20 Broad Street, New
York, New York 10005.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring to those documents. The information incorporated by reference is an
important part of this prospectus, and information that we file later with the
SEC will automatically update and supersede information in this prospectus and
in our other filings with the SEC. We incorporate by reference the documents
listed below, which we already have filed with the SEC, and any future filings
we make with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities
Exchange Act of 1934 until we sell all of the debt securities:
. our Annual Report on Form 10-K for the year ended December 31, 1999;
. our Current Report on Form 8-K filed with the SEC on January 31, 2000;
. our Current Report on Form 8-K filed with the SEC on April 4, 2000; and
. our Current Report on Form 8-K filed with the SEC on April 5, 2000.
You may read or copy these documents through our web site at
http://www.lockheedmartin.com. You may request a copy of these filings at no
cost, by writing or calling us at the following address:
Lockheed Martin Corporation
6801 Rockledge Drive
Bethesda, Maryland 20817
(301) 897-6000
Attention: Corporate Secretary
You should rely only on the information contained in, or incorporated by
reference into, this prospectus or any applicable prospectus supplement. We have
not authorized anyone to provide you with additional or different information.
You should not assume that the information in this prospectus, any prospectus
supplement, or any document incorporated by reference is accurate as of any date
other than the date of those documents.
You may also obtain from the SEC a copy of the registration statement and
exhibits that we filed with the SEC when we registered the debt securities. The
registration statement may contain additional information that may be important
to you.
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Forward-Looking Statements
We make statements in this prospectus and the documents incorporated by
reference that are considered forward-looking statements under the federal
securities laws. The words "believe," "estimate," "anticipate," "project,"
"intend," "expect" and similar expressions are intended to identify forward-
looking statements.
All forward-looking statements involve risks, uncertainties and factors,
including statements and assumptions with respect to future revenues, program
performance and cash flows, the outcome of contingencies including litigation
and environmental remediation, and anticipated costs of capital investments and
planned dispositions. These risks, uncertainties and factors include: the
ability to achieve or quantify savings for our customers or ourselves as a
result of our reorganization efforts, including the recently announced business
area streamlining and staff reductions, or in our global cost-cutting program;
customer changes in short-range and long-range plans; product performance; our
ability to grow earnings and generate cash flow in accordance with our beliefs;
risks inherent in designing and implementing innovative advanced technology; our
performance under existing government awards and contracts; government import
and export policies; termination of government contracts; our ability to
identify and negotiate strategic alliances or joint ventures to pursue various
business opportunities; difficulties during space launches; the ability to
obtain or the timing of obtaining future government awards; the availability of
government funding and customer requirements; economic conditions, competitive
environment, international business and political conditions, timing of awards
and contracts; timing and customer acceptance of product delivery and launches;
the outcome of contingencies, including completion of any acquisitions and
divestitures, litigation and environmental remediation, program performance, and
our ability to consummate the COMSAT transaction. These are only some of the
numerous factors which may affect the forward-looking statements in this
prospectus.
We do not undertake any obligation to publicly release any revisions to
forward-looking statements to reflect events or circumstances or changes in
expectations or to reflect the occurrence of unanticipated events. These
forward-looking statements in (or incorporated by reference in) this prospectus
are intended to be subject to the safe harbor protection provided by the federal
securities laws. For a discussion identifying some important factors that could
cause actual results to vary materially from those anticipated in these forward-
looking statements, please see the documents incorporated by reference for more
information on these risks, uncertainties and factors.
Lockheed Martin Corporation
We are a highly diversified global enterprise principally engaged in the
conception, research, design, development, manufacture, integration and
operation of advanced technology systems, products and services.
We operate through four principal business areas:
. Systems Integration -- Includes missiles and fire control, naval electronics
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and surveillance systems, platform integration, aerospace electronics,
control systems, and command, control, communications, computers and
intelligence (C4I) lines of business;
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. Space Systems --Includes space launch, commercial and government satellites,
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and strategic missiles lines of business;
. Aeronautical Systems --Includes tactical aircraft, airlift, and aeronautical
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research and development lines of business;
. Technology Services - Includes federal technology services line of business.
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All other operations are grouped in our Corporate and Other segment, which
includes Lockheed Martin Global Telecommunications, Inc. (which has operational
responsibility for our investment in COMSAT Corporation) and certain other joint
ventures and businesses.
Use of Proceeds
We will use the net proceeds from the sale of the debt securities for
general corporate purposes. These purposes may include repayment of debt,
working capital needs, capital expenditures, acquisitions and any other general
corporate purpose. If we identify a specific purpose for the net proceeds of an
offering, we will describe that purpose in the applicable prospectus supplement.
Ratio of Earnings to Fixed Charges
The following table shows ratios of earnings to fixed charges, which are
unaudited, for each of the periods indicated. The ratios include Lockheed
Martin, our consolidated subsidiaries and companies in which we own 50% or less
of the equity.
Years Ended December 31,
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1999 1998 1997 1996 1995
--------- ------- ------- -------- --------
2.4x 2.8x 3.1x 3.5x 4.2x
For purposes of calculating the above ratios:
. "earnings" are determined by adding "total fixed charges," excluding
interest capitalized, to earnings from continuing operations before income
taxes, eliminating equity in undistributed earnings and adding back losses
of companies in which we own 20% to 50% of the equity; and
. "total fixed charges" consists of interest on all indebtedness,
amortization of debt discount or premium, interest capitalized, and an
interest factor attributable to rents.
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Description of Debt Securities
As used in this prospectus, "debt securities" means the debentures, notes,
bonds and other evidences of indebtedness that we issue and a trustee
authenticates and delivers under the applicable indenture. We will describe the
particular terms of any series of debt securities, and the extent to which the
general terms summarized below may apply, in the prospectus supplement relating
to that series.
We initially will issue debt securities under an indenture between Lockheed
Martin and U.S. Bank Trust National Association. The indenture is a contract
between us and U.S. Bank Trust National Association acting as trustee. The
trustee has two main roles. First, the trustee can enforce your rights against
us if an "Event of Default" described below occurs. Second, the trustee performs
certain administrative duties for us.
Selected provisions of the indenture are summarized below. Because it is a
summary, it does not contain all of the information that may be important to
you. We filed the form of this indenture as an exhibit to this registration
statement and we suggest that you read the indenture for provisions that may be
important to you. You especially need to read the indenture to get a complete
understanding of your rights and our obligations under covenants described under
the headings Certain Covenants and Merger, Sale and Consolidation below. To
obtain a copy of the indenture, see the discussion under the heading Where You
Can Find More Information above.
The specific terms of each series of debt securities will be described in
the particular prospectus supplement relating to that series. The prospectus
supplement may or may not modify the general terms found in this prospectus and
will be filed with the SEC. For a complete description of the terms of a
particular series of debt securities, you should read both this prospectus and
the prospectus supplement relating to that particular series.
Terms
The debt securities offered by this prospectus will be limited to a total
amount of $1,000,000,000, or its equivalent in any currency. The indenture,
however, does not limit the amount of debt securities that may be issued under
it. Therefore, additional debt securities may be issued under the indenture.
The indenture provides for the issuance of debt securities in one or more
series. A prospectus supplement relating to a series of debt securities will
include specific terms relating to that offering. These terms will include some
or all of the following:
. the title and type of the debt securities;
. whether the debt securities will be senior or subordinated debt securities
and the terms of the subordination provisions;
. any limit on the total principal amount of the debt securities;
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. the price or prices at which we will sell the debt securities;
. the maturity date or dates of the debt securities;
. the rate or rates, which may be fixed or variable, per annum at which the
debt securities will bear interest and the date from which such interest
will accrue;
. the dates on which interest will be payable and the related record dates;
. whether any index, formula or other method will be used to determine
payments of principal or interest and the manner of determining the amount
of such payments;
. the place or places of payments on the debt securities;
. whether the debt securities are redeemable;
. any redemption dates, prices, obligations and restrictions on the debt
securities;
. any mandatory or optional sinking fund or purchase fund or analogous
provisions;
. the denominations in which the debt securities will be issued, if other
than $1,000 or multiples of $1,000;
. the currency in which principal and interest will be paid, if other than
U.S. dollars;
. any provisions granting special rights upon the occurrence of specified
events;
. any deletions from, changes in or additions to the events of default or the
covenants specified in the indenture;
. any trustees, authenticating or paying agents, transfer agents, registrars
or other agents for the debt securities if other than ;
. any conversion or exchange features of the debt securities;
. whether we will issue the debt securities as original issue discount
securities for federal income tax purposes;
. any special tax implications of the debt securities;
. the terms of payment upon acceleration; and
. any other material terms of the debt securities.
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We may issue debt securities that are convertible into or exchangeable for
our common stock, or the debt or equity of another company. We may also
continuously offer debt securities in a medium term note program. If we issue
these types of debt securities, we will provide additional information in a
prospectus supplement.
We may sell debt securities at a discount below their stated principal
amount, bearing no interest or interest at a rate that, at the time of issuance,
is different than market rates. When we refer to the principal and interest on
debt securities, we also mean the payment of any additional amounts that we are
required to pay under the indenture or the debt securities, including amounts
for certain taxes, assessments or other governmental charges imposed on holders
of debt securities.
Denomination, Form, Payment and Transfer
In general, we will denominate and make payments on debt securities in U.S.
dollars. If we issue debt securities denominated, or with payments, in a
foreign or composite currency, a prospectus supplement will specify the currency
or composite currency.
We may from time to time issue debt securities as registered securities.
This means that holders will be entitled to receive certificates representing
the debt securities registered in their name. You can transfer or exchange debt
securities in registered form without service charge, upon reimbursement of any
taxes or government charges. This transfer or exchange can be made at the
trustee's corporate trust office or at any other office maintained by us for
such purposes. If the debt securities are in registered form, we can pay
interest by check mailed to the person in whose name the debt securities are
registered on the days specified in the indenture.
As a general rule, however, we will issue debt securities in the form of
one or more global certificates that will be deposited with The Depository Trust
Company, New York, New York. DTC will act as depository for the global
certificates. Beneficial interests in global certificates will be shown on, and
transfer of global certificates will be effected only through, records
maintained by DTC and its participants. Therefore, if you wish to own debt
securities that are represented by one or more global certificates, you can do
so only indirectly or "beneficially" through an account with a broker, bank or
other financial institution that has an account with DTC (that is, a DTC
participant) or through an account directly with DTC if you are a DTC
participant.
While the debt securities are represented by one or more global
certificates:
. You will not be able to have the debt securities registered in your name.
. You will not be able to receive a physical certificate for the debt
securities.
. DTC will credit interest and principal payments from us to the accounts of
your broker, bank or other financial institution according to their
beneficial ownership as reflected in DTC's records.
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. Our obligations, as well as the obligations of the trustee and any of our
agents, under the debt securities will run only to DTC as the registered
owner of the debt securities. For example, once we make payment to DTC, we
will have no further responsibility for the payment even if DTC or your
broker, bank or other financial institution fails to pass it on so that you
receive it.
. Your rights under the debt securities relating to payments, transfer,
exchanges and other matters will be governed by applicable law and by the
contractual arrangements between you and your broker, bank or other
financial institution, and/or the contractual arrangements you or your
broker, bank or financial institution has with DTC. Neither we nor the
trustee has any responsibility for the actions of DTC or your broker, bank
or financial institution.
. You may not be able to sell your interests in the debt securities to some
insurance companies and others who are required by law to own their debt
securities in the form of physical certificates.
. Because the debt securities will trade in DTC's Same-Day Funds Settlement
System, when you buy or sell interests in the debt securities, payment for
them will have to be made in immediately available funds. This could
affect the attractiveness of the debt securities to others.
We, the trustee and the paying agent have no responsibility or liability
for the records relating to beneficial ownership interests in the global
certificates or for the payments of principal and interest due for the accounts
of beneficial holders of interests in the global certificates. A global
certificate generally can be transferred only as a whole, unless it is being
transferred to certain nominees of DTC or it is exchanged in whole or in part
for debt securities in physical form in accordance with the indenture. A series
of debt securities represented by global certificates will be exchangeable for
debt securities in registered form with the same terms in authorized
denominations if:
. DTC notifies us that it is unwilling or unable to continue as depositary or
if DTC ceases to be a clearing agency registered under applicable law and
we do not appoint a successor depositary within 90 days; or
. we decide not to require all of the debt securities of a series to be
represented by global certificates and notify the trustee of that decision.
Events of Default
Unless we indicate otherwise in a prospectus supplement, the following are
events of default under the indenture with respect to any issued debt
securities:
. failure to pay the principal or any premium on any debt security of that
series when due;
. failure for 30 days to pay interest on any debt security of that series
when due;
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. failure to perform any other covenant in the indenture that continues for
90 days after we have been given written notice of such failure; or
. certain events of bankruptcy, insolvency or reorganization.
An event of default for one series of debt securities does not necessarily
constitute an event of default for any other series. The trustee may withhold
notice to the debt securities holders of any default, except a payment default,
if it considers such action to be in the holders' interests.
If an event of default occurs and continues, the trustee, or the holders of
at least 25% in aggregate principal amount of the debt securities of the series,
may declare the entire principal of all the debt securities of that series to be
due and payable immediately. If this happens, subject to certain conditions,
the holders of a majority of the aggregate principal amount of the debt
securities of that series can void the acceleration of payment.
The indenture provides that the trustee has no obligation to exercise any
of its rights at the direction of any holders, unless the holders offer the
trustee reasonable indemnity. If they provide this indemnification, the holders
of a majority in principal amount of any series of debt securities have the
right to direct any proceeding, remedy, or power available to the trustee with
respect to that series.
Conversion Rights
We will describe the terms upon which debt securities may be convertible
into our common stock or other securities of Lockheed Martin or another company
in a prospectus supplement. These terms will include provisions as to whether
conversion is mandatory or optional. They may also include provisions adjusting
the number of shares of our common stock or such other securities of Lockheed
Martin or another company.
Certain Covenants
Under the indenture, we will agree to:
. pay the principal, interest and any premium on the debt securities when
due;
. maintain a place of payment;
. deliver a report to the trustee at the end of each fiscal year reviewing
our obligations under the indenture; and
. deposit sufficient funds with any paying agent on or before the due date
for payment of any principal, interest or any premium.
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The indenture restricts our ability and the ability of certain of our
subsidiaries to encumber assets. If we, or any restricted subsidiary, as
defined below, pledge or mortgage any of our property to secure any debt, then
we will, unless an exception applies, pledge or mortgage the same property to
the trustee to secure the debt securities for as long as such debt is secured by
such property.
This restriction will not apply in certain situations. Assets may be
encumbered if the encumbrance is a permitted lien, as defined below, without
regard to the amount of debt secured by the encumbrance. Assets also may be
encumbered if the sum of the following does not exceed 10% of our consolidated
net tangible assets:
. the amount of debt secured by such assets, plus
. the total amount of other secured debt not permitted by this restriction,
excluding debt that is secured by a permitted lien, plus
. the total amount of secured debt existing at the date of the indenture,
plus
. the total amount of attributable debt in respect of certain sale-leaseback
transactions.
Permitted liens include:
. liens on a corporation's property, stock or debt at the time it becomes a
restricted subsidiary;
. liens on property at the time we or a restricted subsidiary acquires the
property, provided that no such lien extends to any of our other property
or any other property of a restricted subsidiary;
. liens securing payment of a property's purchase price or to secure debt
incurred within one year after the property's acquisition for the purpose
of financing the purchase price;
. liens securing debt owing by a restricted subsidiary to us or another
restricted subsidiary;
. liens on property of an entity at the time such entity is merged into or
consolidated with us or a restricted subsidiary or at the time we or a
restricted subsidiary acquire all or substantially all of the assets of the
entity;
. liens in favor of any customer to secure payments or performance pursuant
to any contract or statute, any related indebtedness, or debt guaranteed by
a government or governmental authority;
. liens arising pursuant to any order of attachment, distraint or similar
legal process so long as the execution or other enforcement is effectively
stayed and the claims secured are being contested in good faith by
appropriate proceedings;
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. materialmen's, suppliers', tax or similar liens arising in the ordinary
course of business for sums not overdue or which are being contested in
good faith by appropriate proceedings; and
. any renewal, extension or replacement for any lien permitted by one of the
exceptions described above or a lien existing on the date that debt
securities of a series are first issued, provided that the renewal,
extension, or replacement is limited to all or any part of the same
property subject to the existing lien.
Except in certain circumstances, the indenture also restricts our ability
and the abilities of certain of our subsidiaries to enter into sale-leaseback
transactions. The indenture will not otherwise limit our ability to incur
additional debt, unless we tell you this in a prospectus supplement.
The following are summaries of definitions for certain terms we have just
used. For the full definition of these terms, you should refer to the form of
the indenture filed as an exhibit to the registration statement.
. Attributable debt for a lease means the carrying value of the capitalized
rental obligation determined under generally accepted accounting
principles.
. Consolidated net tangible assets means our total assets, including the
assets of our subsidiaries, as reflected in our most recent balance sheet,
less current liabilities, goodwill, patents and trademarks.
. Principal property means, with certain exceptions, any manufacturing
facility located in the United States and owned by us or by one or more
restricted subsidiaries and which has, as of the date the lien is incurred,
a net book value, after deduction of depreciation and similar charges,
greater than 3% of consolidated net tangible assets, or any manufacturing
facility or other property declared to be a principal property by our chief
executive officer or chief financial officer by delivery of a certificate
to that effect to the trustee.
. Restricted subsidiary means one of our subsidiaries that has substantially
all of its assets located in, or carries on substantially all of its
business in, the United States and that owns a principal property, except
that a subsidiary shall not be a restricted subsidiary if its shares are
registered with the SEC or if it is required to file periodic reports with
the SEC.
. Sale-leaseback transaction means, subject to certain exceptions, an
arrangement pursuant to which we, or a restricted subsidiary, transfer a
principal property to a person and contemporaneously lease it back from
that person.
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Consolidation, Merger or Sale
The indenture prohibits us from consolidating or merging with another
corporation, or transferring all or substantially all of our assets to another
corporation unless:
. the successor corporation assumes all of our obligations under the debt
securities and the indenture;
. immediately after giving effect to the transaction, no event of default and
no circumstances which, after notice or lapse of time or both, would become
an event of default, shall have happened and be continuing; and
. we have delivered to the trustee an officers' certificate and a legal
opinion confirming that we have complied with the indenture.
Redemption, Sinking Fund and Defeasance
We may redeem some or all of the debt securities at our option, subject to
the conditions stated in the applicable prospectus supplement. If a series of
debt securities is subject to a sinking fund, the prospectus supplement will
describe those terms.
The indenture permits us to discharge or defease certain of our obligations
for any series of debt securities at any time. We may defease a series of debt
securities by depositing with the trustee cash or government securities
sufficient to pay all sums due on that series. Under certain circumstances, if
we defease a series of debt securities, our legal obligation to pay principal,
interest and any premium on that series will be discharged. We can defease one
series of debt securities without defeasing any other series.
Under U.S. federal income tax law, a discharge of our obligation to pay
principal, interest and any premium on the debt securities would be treated as
an exchange of the debt securities for a new security representing an interest
in the trust. Each holder would be required to recognize a gain or loss equal to
any 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. Holders would
not be required to recognize a gain or loss in the event of a defeasance of
certain contractual obligations without a discharge of our legal obligation to
pay principal, interest and any premium on the debt securities. Prospective
investors are urged to consult their own tax advisers as to the consequences of
a discharge, including the applicability and effect of tax laws other than U.S.
federal income tax law.
Changes to the Indenture
Holders who own more than 50% in principal amount of the debt securities of
a series can agree with us to change the provisions of the indenture relating to
that series. However, no change can affect the payment terms or the percentage
required to change other terms without the consent of all holders of debt
securities of the affected series.
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We may enter into supplemental indentures for other specified purposes and
to make changes that would not materially adversely affect your interests,
including the creation of any new series of debt securities, without the consent
of any holder of debt securities.
Plan of Distribution
We may sell any series of debt securities through underwriters, dealers or
agents or directly to one or more purchasers.
For each series of debt securities, the prospectus supplement will describe:
. the initial public offering price;
. the names of any underwriters, dealers or agents;
. the purchase price of the debt securities;
. our proceeds from the sale of the debt securities;
. any underwriting discounts, agency fees, or other compensation payable to
underwriters or agents;
. any discounts or concessions allowed or reallowed or paid to dealers; and
. the securities exchanges on which the debt securities will be listed, if
any.
If we use underwriters in the sale, they will buy the debt securities for
their own account. The underwriters may then resell the debt securities in one
or more transactions at a fixed public offering price or at varying prices
determined at the time of sale or thereafter. The obligations of the
underwriters to purchase the debt securities will be subject to certain
conditions. The underwriters will be obligated to purchase all the debt
securities offered if they purchase any debt securities. Any initial public
offering price and any discounts or concessions allowed or re-allowed or paid to
dealers may be changed from time to time.
If we use dealers in the sale, we will sell debt securities to such dealers
as principals. The dealers may then resell the debt securities to the public at
varying prices to be determined by such dealers at the time of resale. If we
use agents in the sale, they will use their reasonable best efforts to solicit
purchases for the period of their appointment. If we sell directly, no
underwriters or agents would be involved. We are not making an offer of debt
securities in any state that does not permit such an offer.
Underwriters, dealers and agents that participate in the debt securities
distribution may be deemed to be underwriters as defined in the Securities Act
of 1933. Any discounts, commissions, or profit they receive when they resell
the debt securities may be treated as underwriting discounts and commissions
under that Act. We may have agreements with
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underwriters, dealers and agents to indemnify them against certain civil
liabilities, including certain liabilities under the Securities Act of 1933, or
to contribute with respect to payments that they may be required to make.
We may authorize underwriters, dealers or agents to solicit offers from
certain institutions whereby the institution contractually agrees to purchase
the debt securities from us on a future date at a specified price. This type of
contract may be made only with institutions that we specifically approve. Such
institutions could include banks, insurance companies, pension funds, investment
companies and educational and charitable institutions. The underwriters, dealers
or agents will not be responsible for the validity or performance of these
contracts.
Underwriters, dealers and agents may be our customers or may engage in
transactions with us or perform services for us in the ordinary course of
business.
Validity of the Debt Securities
King & Spalding, Washington, D.C., will issue an opinion about the legality
of the debt securities for us. Underwriters, dealers or agents, who we will
identify in a prospectus supplement, may have their counsel opine about certain
legal matters relating to the debt securities.
Experts
Ernst & Young LLP, our independent auditors, have audited our consolidated
financial statements incorporated by reference in our Annual Report on Form 10-K
for the year ended December 31, 1999 as set forth in their report, which is
incorporated by reference in this prospectus. Our consolidated financial
statements are incorporated by reference in reliance on Ernst & Young LLP's
report, given on their authority as experts in accounting and auditing.
14
<PAGE>
===============================================================================
You should rely only on the information incorporated by reference or
provided in the prospectus or a prospectus supplement. Lockheed Martin has not
authorized anyone else to provide you with different information. Neither
Lockheed Martin, nor any other person on behalf of Lockheed Martin, is making an
offer to sell or soliciting an offer to buy any of the securities described in
this prospectus or in a prospectus supplement in any state where the offer is
not permitted by law. You should not assume that the information in this
prospectus or any prospectus supplement is accurate as of any date other than
the date on the front of the documents. There may have been changes in the
affairs of Lockheed Martin since the date of the prospectus or a prospectus
supplement.
_____________________
TABLE OF CONTENTS
Page
----
Where You Can Find More
Information........................................... 2
Forward-Looking Statements................................. 3
Lockheed Martin Corporation................................ 3
Use of Proceeds............................................ 4
Ratio of Earnings to Fixed Charges......................... 4
Description of Debt Securities............................. 5
Plan of Distribution....................................... 13
Validity of the Debt Securities............................ 14
Experts.................................................... 14
Lockheed Martin Corporation
$1,000,000,000
Debt Securities
__________
[LOCKHEED MARTIN LOGO]
__________
Prospectus
__________
, 2000
================================================================================
<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.
Securities and Exchange Commission registration fee.. $ 264,000
Trustee fees and expenses............................ 78,000
Legal fees and expenses.............................. 200,000
Accounting fees and expenses......................... 200,000
Printing and engraving fees and expenses............. 123,500
Rating agency fees................................... 150,000
Blue Sky fees and expenses (including legal fees).... 20,000
Miscellaneous........................................ 13,500
----------
Total........................................... $1,051,000
----------
Item 15. Indemnification of Directors and Officers.
The Corporation's Bylaws provide that the Corporation shall indemnify and
advance expenses to its currently acting and its former directors to the fullest
extent permitted by the Maryland General Corporation Law, and that the
Corporation may indemnify and advance expenses to its officers to the same
extent as its directors and to such further extent as is consistent with law.
The Maryland General Corporation Law provides that a corporation may indemnify
any director made a party to any proceeding by reason of service in that
capacity unless it is established that: (1) the act or omission of the director
was material to the matter giving rise to the proceeding and (a) was committed
in bad faith or (b) was the result of active and deliberate dishonesty, or (2)
the director actually received an improper personal benefit in money, property
or services, or (3) in the case of any criminal proceeding, the director had
reasonable cause to believe that the act or omission was unlawful. The statute
permits a Maryland corporation 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
<PAGE>
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 federal securities laws.
The form of Underwriting Agreement filed as an exhibit to this Registration
Statement provides for indemnification by the Corporation of the underwriters or
controlling persons of the underwriters under certain circumstances.
Item 16. Exhibits.
Exhibit
Number Description
- ------- -----------
1.1 Form of Underwriting Agreement.*
4.1 Form of Indenture.
4.2 Form of U.S. $ Denominated Note/Debenture.
5.1 Opinion of King & Spalding.*
12.1 Computation of Ratio of Earnings to Fixed Charges.*
23.1 Consent of Ernst & Young LLP, Independent Auditors.*
23.2 Consent of King & Spalding, included in Exhibit 5.1.*
24.1 Powers of Attorney.*
25.1 Form T-1, Statement of Eligibility and Qualification Under the Trust
Indenture Act of 1939.
- --------------
* Previously filed.
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(a) 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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or
II-2
<PAGE>
high end of the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than 20
percent change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective 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.
(b) 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.
(c) 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.
(d) 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.
(e) That, 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 Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrants of expenses incurred or paid by a director, officer or
controlling person of the registrants in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the 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 of whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
(f) That, 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
II-3
<PAGE>
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.
(g) That, 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.
(h) To file an application for the purpose of determining the eligibility
of the trustee to act under subsection (a) of Section 310 of the Trust Indenture
Act in accordance with the rules and regulations prescribed by the Commission
under Section 305(b)(2) of the Trust Indenture Act.
II-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 registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Bethesda, State of Maryland, the 11th day of April,
2000.
LOCKHEED MARTIN CORPORATION
By: /s/ Marian S. Block
--------------------------
Marian S. Block
Vice President and
Associate General Counsel
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Vance D. Coffman* Chairman and Chief Executive April 11, 2000
- -------------------------- Officer (Principal Executive
Vance D. Coffman Officer)
/s/ Robert J. Stevens* Executive Vice President and April 11, 2000
- -------------------------- Chief Financial Officer
Robert J. Stevens (Principal Financial Officer)
/s/ Christopher E. Kubasik* Vice President and Controller April 11, 2000
- -------------------------- (Principal Accounting Officer)
Christopher E. Kubasik
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* Caleb B. Hurtt*
Marcus C. Bennett* Gwendolyn S. King*
Lynn V. Cheney* Eugene F. Murphy*
Vance D. Coffman* Frank Savage*
Houston I. Flournoy* James R. Ukropina*
James F. Gibbons* Douglas C. Yearley*
Edward E. Hood, Jr.*
*By: /s/ Marian S. Block April 11, 2000
------------------------
Marian S. Block
(As Attorney-in-fact)
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
- ------- -----------
1.1 Form of Underwriting Agreement.*
4.1 Form of Indenture.
4.2 Form of U.S. $ Denominated Note/Debenture.
5.1 Opinion of King & Spalding.*
12.1 Computation of Ratio of Earnings to Fixed Charges.*
23.1 Consent of Ernst & Young LLP, Independent Auditors.*
23.2 Consent of King & Spalding, included in Exhibit 5.1.*
24.1 Powers of Attorney.*
25.1 Form T-1, Statement of Eligibility and Qualification Under the
Trust Indenture Act of 1939.
- -------------------
* Previously filed.
<PAGE>
EXHIBIT 4.1
================================================================================
LOCKHEED MARTIN CORPORATION
AS ISSUER
AND
U.S. BANK TRUST NATIONAL ASSOCIATION
AS TRUSTEE
____________________
INDENTURE
DATED AS OF _________ __, ____
================================================================================
<PAGE>
TABLE OF CONTENTS
__________
<TABLE>
<CAPTION>
Page
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<S> <C> <C>
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions................................................. 1
SECTION 1.02. Other Definitions........................................... 4
SECTION 1.03. Incorporation by Reference of TIA........................... 5
SECTION 1.04. Rules of Construction....................................... 5
ARTICLE 2
THE SECURITIES
SECTION 2.01. Form and Dating............................................. 6
SECTION 2.02. Execution and Authentication................................ 7
SECTION 2.03. Title, Amount and Terms of Securities....................... 9
SECTION 2.04. Registrar and Paying Agent.................................. 12
SECTION 2.05. Paying Agent to Hold Money in Trust......................... 12
SECTION 2.06. Securityholder Lists........................................ 12
SECTION 2.07. Transfer and Exchange....................................... 12
SECTION 2.08. Replacement Securities...................................... 14
SECTION 2.09. Outstanding Securities...................................... 15
SECTION 2.10. Temporary Securities........................................ 15
SECTION 2.11. Cancellation................................................ 16
SECTION 2.12. Defaulted Interest.......................................... 16
SECTION 2.13. Currency and Manner of Payments in Respect of Securities.... 16
SECTION 2.14. Appointment and Resignation of Currency Determination
Agent....................................................... 20
ARTICLE 3
REDEMPTION
SECTION 3.01. Applicability of this Article............................... 20
SECTION 3.02. Notices to Trustee.......................................... 20
SECTION 3.03. Selection of Securities to be Redeemed...................... 21
SECTION 3.04. Notice of Redemption........................................ 21
SECTION 3.05. Effect of Notice of Redemption.............................. 22
</TABLE>
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<TABLE>
<CAPTION>
<S> <C> <C>
SECTION 3.06. Deposit of Redemption Price................................. 22
SECTION 3.07. Securities Redeemed in Part................................. 22
ARTICLE 4
COVENANTS
SECTION 4.01. Certain Definitions......................................... 22
SECTION 4.02. Payment of Securities....................................... 24
SECTION 4.03. Limitation on Liens......................................... 24
SECTION 4.04. Limitation on Sale-Leaseback Transactions................... 26
SECTION 4.05. No Lien Created, etc........................................ 27
SECTION 4.06. Compliance Certificate...................................... 27
SECTION 4.07. SEC Reports................................................. 27
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01. When the Corporation May Merge, etc. ....................... 27
SECTION 5.02. When Securities Must be Secured............................. 27
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default........................................... 28
SECTION 6.02. Acceleration................................................ 29
SECTION 6.03. Other Remedies.............................................. 30
SECTION 6.04. Waiver of Past Defaults..................................... 30
SECTION 6.05. Control by Majority......................................... 30
SECTION 6.06. Limitation on Suits......................................... 30
SECTION 6.07. Rights of Holders to Receive Payment........................ 31
SECTION 6.08. Collection Suit by Trustee.................................. 31
SECTION 6.09. Trustee May File Proofs of Claim............................ 31
SECTION 6.10. Priorities.................................................. 31
SECTION 6.11. Undertaking for Costs....................................... 32
ARTICLE 7
TRUSTEE
SECTION 7.01. Duties of Trustee........................................... 32
SECTION 7.02. Rights of Trustee........................................... 33
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
SECTION 7.03. Individual Rights of Trustee, etc........................... 33
SECTION 7.04. Trustee's Disclaimer........................................ 33
SECTION 7.05. Notice of Defaults.......................................... 33
SECTION 7.06. Reports by Trustee to Holders............................... 34
SECTION 7.07. Compensation and Indemnity.................................. 34
SECTION 7.08. Replacement of Trustee...................................... 34
SECTION 7.09. Successor Trustee by Merger, etc............................ 35
SECTION 7.10. Eligibility; Disqualification............................... 36
SECTION 7.11. Preferential Collection of Claims Against Corporation...... 36
ARTICLE 8
SATISFACTION, DISCHARGE AND DEFEASANCE
SECTION 8.01. Satisfaction and Discharge Under Limited Circumstances...... 36
SECTION 8.02. Satisfaction and Discharge of Indenture..................... 37
SECTION 8.03. Defeasance of Certain Obligations........................... 38
SECTION 8.04. Application of Trust Money.................................. 39
SECTION 8.05. Repayment to Corporation.................................... 40
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.................................. 40
SECTION 9.02. With Consent of Holders..................................... 41
SECTION 9.03. Compliance with Trust Indenture Act of 1939................. 41
SECTION 9.04. Revocation and Effect of Consents........................... 41
SECTION 9.05. Notation on or Exchange of Securities....................... 42
SECTION 9.06. Trustee to Sign Amendments, etc............................. 42
ARTICLE 10
MISCELLANEOUS
SECTION 10.01. TIA Controls................................................ 42
SECTION 10.02. Notices..................................................... 42
SECTION 10.03. Communication by Holders with Other Holders................. 43
SECTION 10.04. Certificate and Opinion as to Conditions Precedent.......... 43
SECTION 10.05. Statements Required in Certificate or Opinion............... 43
SECTION 10.06. When Treasury Securities Disregarded........................ 44
SECTION 10.07. Rules by Trustee, Paying Agent, Registrar................... 44
SECTION 10.08. Legal Holidays.............................................. 44
SECTION 10.09. Governing Law............................................... 44
</TABLE>
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<TABLE>
<CAPTION>
<S> <C> <C>
SECTION 10.10. No Adverse Interpretation of Other Agreements............... 44
SECTION 10.11. No Recourse Against Others.................................. 45
SECTION 10.12. Securities in a Foreign Currency............................ 45
SECTION 10.13. Judgment Currency........................................... 45
SECTION 10.14. Successors.................................................. 46
SECTION 10.15. Duplicate Originals......................................... 46
SECTION 10.16. Acts of Holders; Record Dates............................... 46
</TABLE>
_______________
NOTE: This Table of Contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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<PAGE>
INDENTURE dated as of ______ __, ____, between Lockheed Martin Corporation, a
Maryland corporation (the "Corporation"), and U.S. Bank Trust National
Association, a national banking association (the "Trustee").
Each party agrees as follows for the benefit of the other party and, as to
each series of Securities, for the equal and ratable benefit of the Holders of
that series of the Corporation's Securities issued pursuant to this Indenture:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Board of Directors" means the Board of Directors, or any duly appointed
committee of the Board of Directors, of the Corporation.
"Board Resolution" means a resolution of the Board of Directors or of a
committee or person to which or to whom the Board of Directors has properly
delegated the appropriate authority, a copy of which has been certified by the
Secretary or an Assistant Secretary of the Corporation to have been duly adopted
by the Board of Directors or such committee or person and to be in full force
and effect on the date of such certification and delivered to the Trustee.
"Business Day," when used with respect to any particular Place of Payment,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in that Place of Payment are authorized or obligated
by law to close, and shall otherwise mean each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions, at the
place where any specified act pursuant to this Indenture is to occur, are
authorized or obligated by law to close.
"Conversion Event" means, in the good faith judgment of the Corporation, the
unavailability of any Foreign Currency or currency unit, due to the imposition
of exchange controls or other circumstances beyond the control of the
Corporation.
"Corporation" means the party named as such in this Indenture until a
successor replaces it and thereafter means the successor.
"Currency Determination Agent," with respect to Securities of any series,
means a New York Clearing House bank designated pursuant to Section 2.03 or
Section 2.14.
"Default" means any event which is, or after notice or passage of time or both
would be, an Event of Default.
<PAGE>
"Depositary" means, with respect to the Securities of any series issuable or
issued in whole or in part in the form of one or more Global Securities, the
party designated as Depositary by the Corporation pursuant to Section 2.03 until
a successor Depositary shall have become such pursuant to the applicable
provisions hereof, and thereafter "Depositary" shall mean or include each party
who is then a Depositary hereunder, and if at any time there is more than one
such party, "Depositary" as used with respect to the Securities on any such
series shall mean the Depositary with respect to the Securities of that series.
"Discounted Security" means any Security which provides for an amount
(excluding any amounts attributable to accrued but unpaid interest) less than
its principal amount to be due and payable upon a declaration of acceleration of
the maturity of the Security pursuant to Section 6.02.
"Dollars" and the sign "$" mean the currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
"Exchange Act" means the Securities Exchange Act of 1934, as it may be amended
from time to time.
"Exchange Rate Officers' Certificate" means a certificate or facsimile thereof
setting forth (i) the applicable Market Exchange Rate and (ii) the Dollar,
Foreign Currency or currency unit amounts of principal and interest, if any (on
an aggregate basis and on the basis of a Security having the denomination
principal amount determined in accordance with Section 2.03 in the relevant
currency or currency unit), payable with respect to a Security of any series on
the basis of such Market Exchange Rate, signed by any Officer of the
Corporation.
"Foreign Currency" means a currency issued by the government of any country
other than the United States of America or a currency established by a group of
countries as a common legal currency such as the "Euro".
"Global Security" means a Security evidencing all or a part of a series of
Securities, issued to the Depositary for such series in accordance with Section
2.01, and bearing the legend prescribed in Section 2.01.
"Holder" or "Securityholder" means the person in whose name a Security is
registered on the Registrar's books.
"Indenture" means this Indenture as amended or supplemented from time to time.
"Market Exchange Rate" means (i) for any conversion involving a currency unit
on the one hand and Dollars or any Foreign Currency on the other, the exchange
rate between the
-2-
<PAGE>
relevant currency unit and Dollars or such Foreign Currency calculated by the
method specified pursuant to Section 2.03 for the Securities of the relevant
series, (ii) for any conversion of Dollars into any Foreign Currency, the noon
(New York City time) buying rate for such Foreign Currency for cable transfers
quoted in New York City as certified for customs purposes by the Federal Reserve
Bank of New York, (iii) for any conversion of one Foreign Currency into Dollars
or another Foreign Currency, the spot rate at noon local time in the relevant
market at which, in accordance with normal banking procedures, the Dollars or
Foreign Currency into which conversion is being made could be purchased with the
Foreign Currency from which conversion is being made from major banks located in
either New York City, London or any other principal market for Dollars or such
purchased Foreign Currency, in each case determined by the applicable Currency
Determination Agent in its sole discretion and without liability on its part. In
the event of the unavailability of any of the exchange rates provided for in the
foregoing clauses (i), (ii) and (iii) the Currency Determination Agent shall
use, in its sole discretion and without liability on its part, such quotation of
the Federal Reserve Bank of New York as of the most recent available date, or
quotations from one or more major banks in New York City, London or any other
principal market for such currency or currency unit in question, or such other
quotations as the Currency Determination Agent shall deem appropriate. Unless
otherwise specified by the Currency Determination Agent, if there is more than
one market for dealing in any currency or currency unit by reason of foreign
exchange regulations or otherwise, the market to be used with respect to such
currency or currency unit shall be that upon which a nonresident issuer of
securities designated in such currency or currency unit would purchase such
currency or currency unit in order to make payments with respect to such
securities. For purposes of this definition, a "nonresident issuer" shall mean
an issuer that is not a resident of the country or countries that issue such
currency or whose currencies are included in such currency unit.
"Officer" means the Chairman of the Board, the Chief Executive Officer, the
President, the Chief Operating Officer, any Executive Vice President, Senior
Vice President or Vice President, the Treasurer or the Secretary of the
Corporation.
"Officers' Certificate" means a certificate signed by two Officers or by an
Officer and an Assistant Treasurer or Assistant Secretary of the Corporation.
"Opinion of Counsel" means a written opinion from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Corporation or the Trustee.
"Place of Payment" means, when used with respect to the Securities of any
particular series, the place or places where the principal of and interest, if
any, on the Securities of that series are payable, as contemplated by Section
2.03.
"principal" of a Security means the principal of the Security plus, when
appropriate, the premium, if any, on the Security.
"SEC" means the Securities and Exchange Commission.
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<PAGE>
"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
"Custodian".................................. 6.01
"Debt"....................................... 4.01
"Dollar Equivalent of the Currency Unit"..... 2.13
"Dollar Equivalent of the Foreign Currency".. 2.13
"Election Date".............................. 2.13
"Event of Default"........................... 6.01
"Judgment Date".............................. 10.13
"Legal Holiday".............................. 10.08
"Lien"....................................... 4.01
"Long-Term Debt"............................. 4.01
"Paying Agent"............................... 2.04
"Principal Property"......................... 4.01
"Registrar".................................. 2.04
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
<S> <C>
"Restricted Property"........................ 4.01
"Restricted Subsidiary"...................... 4.01
"Sale-Leaseback Transaction"................. 4.01
"Specified Amount"........................... 2.13
"Subsidiary"................................. 4.01
"Substitute Date"............................ 10.13
"United States".............................. 4.01
"U.S. Government Obligations"................ 8.02
"Valuation Date"............................. 2.13
"Voting Stock"............................... 4.01
</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;
(2) an accounting term not otherwise defined has the meaning assigned to
it in accordance with generally accepted accounting principles;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural include
the singular;
(5) any gender used in this Indenture shall be deemed to include the
neuter, masculine or feminine gender; and
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(6) provisions apply to successive events and transactions.
ARTICLE 2
THE SECURITIES
SECTION 2.01. Form and Dating. The Securities shall be issued substantially in
the form or forms (including global form) as shall be established by or pursuant
to a Board Resolution or Resolutions or any supplemental indenture, in each case
with such appropriate insertions, omissions, substitutions or other variations
as are required or permitted by this Indenture. The Securities may have
notations, legends or endorsements required by law, stock exchange rule or
usage. Each Security shall be dated the date of its authentication.
Notwithstanding the foregoing, if any Security of a series is issuable in the
form of a Global Security or Securities, each such Global Security may provide
that it shall represent the aggregate amount of Securities outstanding under the
series from time to time endorsed thereon and also may provide that the
aggregate amount of Securities outstanding under the series represented thereby
may from time to time be reduced to reflect exchanges. Any endorsement of a
Global Security to reflect the amount of Securities outstanding under the series
represented thereby shall be made by the Trustee in accordance with the
instructions of the Corporation and in such manner as shall be specified on such
Global Security. Any instructions by the Corporation with respect to a Global
Security, after its initial issuance, shall be in writing but need not comply
with Section 10.04.
Before the first delivery of a Security of any series to the Trustee for
authentication, the Corporation shall deliver to the Trustee the following:
(1) the Board Resolution or Resolutions by or pursuant to which the
forms and terms of the Security have been approved;
(2) an Officers' Certificate of the Corporation dated the date of
delivery stating that all conditions precedent provided for in this
Indenture relating to the authentication and delivery of Securities in that
series have been complied with and directing the Trustee to authenticate
and deliver the Securities to or upon written order of the Corporation; and
(3) Opinions of Counsel stating that all conditions precedent provided
for in this Indenture relating to the authentication and delivery of
Securities of that series have been complied with, the form and terms of
the series have been established by or pursuant to a Board Resolution or
Resolutions in conformity with this Indenture, and that
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Securities in such form when completed by appropriate insertions and
executed by the Corporation and delivered by the Corporation to the Trustee
for authentication in accordance with this Indenture, authenticated and
delivered by the Trustee in accordance with this Indenture within the
authorization as to aggregate principal amount established from time to
time by the Board of Directors and sold in the manner specified in such
Opinions of Counsel will be the legal, valid and binding obligations of the
Corporation, entitled to the benefits of this Indenture, subject to
applicable bankruptcy, reorganization, insolvency and other similar laws
generally affecting creditors' rights and to general equity principles, and
to such other qualifications as such counsel shall conclude do not
materially affect the rights of Holders of Securities of that series or
that are customarily included in similar opinions by lawyers experienced in
such matters.
Notwithstanding the foregoing, if the Corporation shall establish pursuant to
Section 2.03 that the Securities of a series are to be issued in whole or in
part in the form of one or more Global Securities, then the Corporation shall
execute and the Trustee shall, in accordance with this Section, Section 2.02 and
the authentication order of the Corporation with respect to such series,
authenticate and deliver one or more Global Securities in temporary or permanent
form that shall (a) represent and be denominated in an aggregate amount equal to
the aggregate principal amount of the Securities of such series to be
represented by one or more Global Securities, (b) be registered in the name of
the Depositary for such Global Security or Securities or the nominee of such
Depositary, (c) be delivered by the Trustee to such Depositary or pursuant to
such Depositary's instruction; and (d) bear a legend substantially to the
following effect: "Unless and until it is exchanged in whole or in part for
Securities in definitive form, this Security may not be transferred except as a
whole by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any nominee to a successor Depositary or a nominee of any
successor Depositary."
SECTION 2.02. Execution and Authentication. Two Officers shall sign the
Securities for the Corporation by manual or facsimile signature. The
Corporation's seal shall be impressed, affixed, imprinted or reproduced on the
Securities.
If an Officer whose signature is on a Security no longer holds that office at
the time the Trustee authenticates the Security, the Security shall be valid
nevertheless.
A Security shall not be valid until the Trustee manually signs the certificate
of authentication on the Security. The signature shall be conclusive evidence
that the Security has been authenticated under this Indenture.
Notwithstanding the provisions of Section 2.03 and of the preceding
paragraphs, if all Securities of a series are not to be originally issued at one
time (including, for example, a series constituting a medium-term note program),
it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 2.01 or the Opinions of Counsel otherwise
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required pursuant to such preceding paragraphs at or prior to the time of
authentication of each Security of such series if such documents are delivered
at or prior to the time of authentication upon original issuance of the first
Security of such series. In such case the Trustee may conclusively rely on the
foregoing documents and opinions delivered pursuant to Section 2.01 and Section
2.03, and this Section, as applicable (unless revoked by superseding comparable
documents or opinions), as to the matters set forth therein.
Notwithstanding the foregoing, if any Security shall have been duly
authenticated and delivered hereunder but never issued and sold by the
Corporation, and the Corporation shall deliver such Security to the Trustee for
cancellation as provided in Section 2.11 together with a written statement
(which need not comply with Section 2.01 and need not be accompanied by an
Opinion of Counsel) stating that such Security has never been issued and sold by
the Corporation, for all purposes of this Indenture such Security shall be
deemed never to have been authenticated and delivered hereunder and shall never
be entitled to the benefits of this Indenture.
If any Security of a series shall be represented by a Global Security, then,
for purposes of this Section and Section 2.10, the notation of the record
owners' interest therein upon original issuance of such Security shall be deemed
to be delivered in connection with the original issuance of each beneficial
owner's interest in such Global Security.
The Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
Date: U.S. Bank Trust National Association, as Trustee
By___________________________
The Trustee may appoint an authenticating agent acceptable to the Corporation
to authenticate Securities. An authenticating agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the
Corporation.
If at any time there shall be an authenticating agent appointed with respect
to any series of Securities, then the Trustee's certificate of authentication to
be borne by the Securities of each such series shall be substantially as
follows:
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
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Date: U.S. Bank Trust National Association, as Trustee
By:___________________________
as Authenticating Agent
By:___________________________
Authorized Officer
SECTION 2.03. Title, Amount and Terms of Securities. The principal amount of
Securities that may be authenticated and delivered and outstanding under this
Indenture is not limited. The Securities may be issued in a total principal
amount up to that authorized from time to time by or pursuant to relevant Board
Resolutions.
The Securities may be issued in one or more series, each of which shall be
issued pursuant to a Board Resolution or Resolutions of the Corporation, which
shall specify:
(1) the title of the Securities of that series (which shall distinguish
the Securities of that series from Securities of all other series);
(2) any limit on the aggregate principal amount of the Securities of
that series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration or
transfer of, in exchange for or in lieu of other Securities of that series
pursuant to Sections 2.07, 2.08 or 3.07);
(3) the date or dates (or the manner of determining the same) on which
the principal of the Securities of that series is payable (which, if so
provided in the Board Resolution or Resolutions, may be determined by the
Corporation from time to time and set forth in the Securities of that
series issued from time to time);
(4) the rate or rates, or the method to be used in ascertaining the rate
or rates, at which the Securities of that series shall bear interest, if
any, the basis upon which interest shall be calculated if other than that
of a 360-day year of 12 30-day months, the date or dates from which such
interest shall accrue (which, in either case or both, if so provided in the
Board Resolution or Resolutions, may be determined by the Corporation from
time to time and set forth in the Securities of that series issued from
time to time), the interest payment dates on which such interest shall be
payable (or the manner of determining the same) and the record date for the
interest payable on any interest payment date;
(5) if the trustee of that series is other than the Trustee initially
named in this
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Indenture or any successor thereto, the trustee of that series;
(6) the place or places where the principal of and interest, if any, on
Securities of that series shall be payable;
(7) the period or periods within which, the price or prices at which,
the currency or currency unit in which, and the terms and conditions on
which Securities of that series may be redeemed or converted into another
Security, in whole or in part, at the option of the Corporation;
(8) the obligation, if any, of the Corporation to redeem or purchase
Securities of that series pursuant to any sinking fund or analogous
provisions or at the option of Holders of Securities of that series (or to
convert such Securities into other Securities at the option of the Holder),
and the period or periods within which, the price or prices at which, the
currency or currency unit in which, and the terms and conditions upon which
Securities of that series shall be redeemed or purchased, in whole or in
part, pursuant to such obligation;
(9) if denominated in Dollars and in denominations other than
denominations of $1,000 and any multiple of $1,000, the denominations in
which Securities of that series shall be issuable;
(10) if denominated in other than Dollars, the currency or currencies,
including composite currencies, in which the Securities of that series are
denominated and the denominations in which Securities of that series shall
be issuable;
(11) if the principal of and interest, if any, on the Securities of that
series are to be payable, at the election of the Corporation or a Holder
thereof, in a currency or currency unit other than that in which the
Securities are denominated or stated to be payable, in accordance with
provisions in addition to or in lieu of or in accordance with the
provisions of Section 2.13, the period or periods within which (including
the Election Date), and the terms and conditions upon which, such election
may be made, and the time and manner of determining the exchange rate
between the currency or currency unit in which the Securities are
denominated or stated to be payable and the currency or currency unit in
which the Securities are to be so payable;
(12) the index, if any, used to determine the amount of payments of
principal of or interest, if any, on the Securities of that series;
(13) if the amount of payments of the principal of and interest, if any,
on the Securities of that series may be determined with reference to an
index based on a currency or currencies other than that in which the
Securities of that series are denominated, the manner in which such amounts
shall be determined;
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(14) if other than the full principal amount, the portion of the
principal amount of Securities of that series which shall be payable upon a
declaration of acceleration of the maturity pursuant to Section 6.02;
(15) if convertible into or exchangeable for Securities of another
series or other securities of the Corporation or another issuer, the terms
upon which the Securities of that series will be convertible into or
exchangeable for such securities;
(16) the right, if any, of the Corporation to redeem all or any part of
the Securities of that series before maturity and the period or periods
within which, the price or prices at which and the terms and conditions
upon which Securities of that series may be redeemed;
(17) the provisions, if any, restricting defeasance of the Securities of
that series;
(18) if other than or in addition to the events specified in Section
6.01, events of default with respect to the Securities of that series;
(19) if the Securities of that series are to be issued in whole or in
part in the form of one or more Global Securities, the Depositary for such
Global Security or Securities and whether beneficial owners of interests in
any such Global Securities may exchange such interests for other Securities
of such series in the manner provided in Section 2.07, and the manner and
the circumstances under which and the place or places where any such
exchanges may occur if other than in the manner provided in Section 2.07,
and any other terms of the series relating to the global nature of the
Securities of such series and the exchange, registration or transfer
thereof and the payment of any principal thereof or interest, if any,
thereon;
(20) the designation of the original Currency Determination Agent, if
any, with respect to the Securities of that series; and
(21) any other terms of or relating to the Securities of that series
(which terms shall not be inconsistent with the provisions of this
Indenture).
All Securities of any particular series shall be identical as to currency of
denomination and otherwise shall be substantially identical except as to
denomination and except as may otherwise be provided in or pursuant to the
relevant Board Resolution or Resolutions.
The Trustee need not authenticate the Securities in any series if their terms
impose on the Trustee duties in addition to those imposed on the Trustee by this
Indenture. If the Trustee does authenticate any such Securities, the
authentication will evidence the Trustee's agreement to comply with any such
additional duties.
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Each Depositary designated pursuant to this Section 2.03 for a Global Security
in registered form shall, if required, at the time of its designation and at all
times while it serves as a Depositary, be a clearing agency registered under the
Exchange Act and any other applicable statute or regulation.
SECTION 2.04. Registrar and Paying Agent. The Corporation shall maintain an
office or agency where Securities may be presented for registration of transfer
or for exchange ("Registrar") and an office or agency where Securities may be
presented for payment ("Paying Agent"). The Registrar shall keep a register of
the Securities and of their transfer and exchange. The Corporation may have one
or more co-registrars and one or more additional paying agents. The term "Paying
Agent" includes any additional paying agent. There may be separate Registrars
and Paying Agents for different series of Securities.
The Corporation shall enter into an appropriate agency agreement with any
Registrar, Paying Agent or co-registrar not a party to this Indenture. The
agreement shall implement the provisions of this Indenture that relate to such
Agent. The Corporation shall notify the Trustee of the name and address of any
such Agent. If the Corporation fails to maintain a Registrar or Paying Agent,
the Trustee shall act as such.
The Corporation initially appoints the Trustee as Registrar and Paying Agent.
SECTION 2.05. Paying Agent to Hold Money in Trust. Each Paying Agent for any
series of Securities shall hold in trust for the benefit of Holders of
Securities of the same series or the Trustee all money held by the Paying Agent
for the payment of principal of or interest, if any, on such Securities and
shall notify the Trustee of any default by the Corporation in making such
payment. If the Corporation or a Subsidiary acts as Paying Agent with respect to
a series of Securities, it shall segregate the money for that series and hold it
as a separate trust fund. The Corporation at any time may require a Paying Agent
to pay all money held by it to the Trustee. Upon doing so the Paying Agent shall
have no further liability for the money.
SECTION 2.06. Securityholder Lists. For each series of Securities, the Trustee
shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of Holders of Securities of that
series. If the Trustee is not the Registrar, the Corporation shall furnish or
cause to be furnished to the Trustee on or before each interest payment date for
each series of Securities and at such other times as the Trustee may request in
writing a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of Holders of Securities of that series.
SECTION 2.07. Transfer and Exchange. Where a Security (other than a Global
Security except as set forth herein) is presented to the Registrar or a co-
registrar with a request to register a transfer, the Registrar shall register
the transfer as requested if the requirements of Section 8-401(1) of the Uniform
Commercial Code (or any successor provision) are met. Where
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Securities (other than a Global Security except as set forth herein) of any
series are presented to the Registrar or a co-registrar with a request to
exchange them for an equal principal amount of Securities of other denominations
of the same series with identical terms as the Securities exchanged, the
Registrar shall make the exchange as requested if the same requirements are met.
To permit transfers and exchanges, the Trustee shall authenticate Securities at
the Registrar's request. The Corporation may charge a reasonable fee for any
transfer or exchange, but not for any exchange pursuant to Section 2.10, 3.07 or
9.05. The Corporation shall not be required to make transfers or exchanges of
Securities of any series for a period of 15 days before a selection of
Securities of the same series to be redeemed or before an interest payment.
Notwithstanding any other provision of this Section, unless and until it is
exchanged in whole or in part for Securities in definitive form, a Global
Security representing all or a portion of the Securities of a series may not be
transferred except as a whole by the Depositary for such series to a nominee of
such Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor Depositary for such series or a nominee of such successor Depositary.
None of the Corporation, the Trustee, the Paying Agent, the Registrar or any
co-registrar shall have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
If at any time the Depositary for the Securities of a series notifies the
Corporation that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for the Securities of
such series shall no longer be eligible under Section 2.03, the Corporation
shall appoint a successor Depositary with respect to the Securities of such
series. If a successor Depositary for the Securities of such series is not
appointed by the Corporation within 90 days after the Corporation receives such
notice or becomes aware of such ineligibility, the Corporation's election
pursuant to Section 2.03(19) shall no longer be effective with respect to the
Securities of such series and the Corporation will execute, and the Trustee,
upon receipt of an order of the Corporation for the authentication and delivery
of definitive Securities of such series, will authenticate and deliver
Securities of such series in definitive form in an aggregate principal amount
equal to the principal amount of the Global Security or Securities representing
such series in exchange for such Global Security or Securities.
The Corporation may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by such Global Security or Securities. In such
event the Corporation will execute, and the Trustee, upon receipt of an order of
the Corporation for the authentication and delivery of definitive Securities of
such series, will authenticate and deliver Securities of such series in
definitive form in an aggregate principal amount equal to the principal amount
of the Global Security or Securities representing such series in exchange for
such Global Security or Securities.
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If specified by the Corporation pursuant to Section 2.03 with respect to a
series of Securities, the Depositary for such series of Securities may surrender
a Global Security for such series of Securities in exchange in whole or in part
for the Securities of such series in definitive form on such terms as are
acceptable to the Corporation and such Depositary. Thereupon, the Corporation
shall execute, and the Trustee shall authenticate and deliver:
(1) to each party specified by such Depositary a new Security or
Securities of the same series, of any authorized denomination as requested
by such party in aggregate principal amount equal to and in exchange for
such party's beneficial interest in the Global Security; and
(2) to such Depositary a new Global Security in a denomination equal to
the difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of Securities delivered
to Holders thereof.
Upon the exchange of the Global Security for Securities in definitive form,
such Global Security shall be canceled by the Trustee. Securities issued in
exchange for a Global Security pursuant to this Section 2.07 shall be registered
in such names and in such authorized denominations as the Depositary for such
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Securities to the parties in whose names such Securities are so
registered.
SECTION 2.08. Replacement Securities. If the Holder of a Security claims that
the Security has been mutilated, destroyed, lost or stolen, the Corporation may
issue and the Trustee shall authenticate a replacement Security of the same
series with identical terms as the Securities exchanged if the requirements of
Section 8-405 of the Uniform Commercial Code (or any successor provision) are
met. Such Holder shall furnish an indemnity bond sufficient in the judgment of
the Corporation and the Trustee to protect the Corporation, the Trustee, the
Paying Agent, the Registrar and any co-registrar from any loss which any of them
may suffer if a Security is replaced. The Corporation and the Trustee may charge
for their expenses in replacing a Security.
In case any such mutilated, destroyed, lost or stolen Security has become due
and payable, the Corporation in its discretion may, instead of issuing a new
Security, pay such Security (without surrender thereof except in the case of a
mutilated Security) if the applicant for such payment shall furnish to the
Corporation, the Trustee, the Paying Agent, the Registrar and any co-registrar
for such Security such security or indemnity as may be required by them to hold
each of them harmless, and in case of destruction, loss or theft, evidence
satisfactory to the Corporation, the Trustee, the Paying Agent, the Registrar
and any co-registrar, and any agent of any of them, of the destruction, loss or
theft of such Security and the ownership thereof.
Upon the issuance of any new Security under this Section 2.08, the Corporation
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may
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be imposed in relation thereto and any other expenses (including all fees and
expenses of the Trustee, the Paying Agent, the Registrar and any co-registrar
for such Security) connected therewith.
Every new Security of any series issued pursuant to this Section 2.08 in lieu
of any destroyed, lost or stolen Security or in exchange for any mutilated
Security, shall constitute an original additional obligation of the Corporation,
whether or not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of the
same series.
The provisions of this Section 2.08 are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 2.09. Outstanding Securities. Securities outstanding at any time are
all Securities authenticated by the Trustee (and, in the case of Global
Securities, endorsed by the Trustee) except for those canceled by it, those
delivered to it for cancellation and those described in this Section as not
outstanding. A Security does not cease to be outstanding because the
Corporation, or an affiliate of the Corporation holds the Security.
If a Security is replaced pursuant to Section 2.08, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent holds on a redemption date or maturity date money
sufficient to pay Securities payable on that date, then on and after that date
such Securities cease to be outstanding and interest on them ceases to accrue.
If a Security is called for redemption, the Corporation and the Trustee need
not treat the Security as outstanding in determining whether Holders of the
required principal amount of Securities have concurred in any direction, waiver
or consent.
SECTION 2.10. Temporary Securities. Until definitive Securities of any series
are ready for delivery or a permanent Global Security or Securities are
prepared, as the case may be, the Corporation may prepare and the Trustee shall
authenticate temporary Securities or one or more temporary Global Securities, as
the case may be, of the same series. Temporary Securities of any series shall be
substantially in the form of definitive Securities or permanent Global
Securities, as the case may be, of the same series, but may have variations that
the Corporation considers appropriate for temporary Securities. Without
unreasonable delay, the Corporation shall prepare and the Trustee shall
authenticate definitive Securities or a permanent Global Security or Securities,
as the case may be, of the same series in exchange for temporary Securities.
Until so exchanged, the temporary Securities of any series shall be entitled to
the same benefits under this Indenture as definitive Securities or permanent
Global Securities of such series.
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SECTION 2.11. Cancellation. The Corporation at any time may deliver Securities
to the Trustee for cancellation. The Registrar and the Paying Agent shall
forward to the Trustee any Securities surrendered to them for transfer, exchange
or payment. The Trustee and no one else shall cancel or destroy all Securities
surrendered for transfer, exchange, payment or cancellation, and shall so
certify to the Corporation. The Corporation may not issue new Securities to
replace Securities it has paid or it has delivered to the Trustee for
cancellation.
SECTION 2.12. Defaulted Interest. If the Corporation defaults in a payment of
interest on any Securities of any series, it shall pay the defaulted interest to
the persons who are Holders of those Securities on a subsequent special record
date. The Corporation shall fix the special record date and the payment date in
respect thereof. At least 15 days before the special record date, the
Corporation shall mail to each Holder of Securities of that series a notice that
states the special record date, the payment date and the amount of defaulted
interest to be paid. The Corporation may pay defaulted interest in any other
lawful manner.
SECTION 2.13. Currency and Manner of Payments in Respect of Securities. (a)
With respect to Securities of any series not permitting the election provided
for in paragraph (b) below or the Holders of which have not made the election
provided for in paragraph (b) below, except as provided in paragraph (d) below,
payment of the principal of and interest, if any, on any Security of such series
will be made in the currency or currency unit in which such Security is payable.
(b) It may be provided pursuant to Section 2.03 with respect to Securities of
any series that Holders shall have the option, subject to paragraphs (d) and (e)
below, to receive payments of principal of or interest, if any, on such
Securities in any of the currencies or currency units which may be designated
for such election by delivering to the Trustee for such series of Securities a
written election with signature guarantees and in form and substance
satisfactory to such Trustee, not later than the close of business on the
Election Date immediately preceding the applicable payment date. If a Holder so
elects to receive such payments in any such currency or currency unit, such
election will remain in effect for such Holder until changed by such Holder by
written notice to the Trustee for such series of Securities (but any such change
must be made not later than the close of business on the Election Date
immediately preceding the next payment date to be effective for the payment to
be made on such payment date and no such change of election may be made with
respect to payments to be made on any Security of such series with respect to
which an Event of Default has occurred or notice of redemption has been given by
the Corporation pursuant to Article 3). In the event any Holder makes any such
election pursuant to the preceding sentence, such election will not be effective
on any transferee of such Holder and such transferee shall be paid in the
currency or currency unit indicated pursuant to paragraph (a) above unless such
transferee makes an election pursuant to the preceding sentence; provided,
however, that such election, if in effect while funds are on deposit with
respect to the Securities of such series as described in Section 8.01, 8.02 or
8.03, will be effective on any
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transferee of such Holder unless otherwise specified pursuant to Section 2.03
for the Securities of such series. Any Holder of any such Security who shall not
have delivered any such election to the Trustee of such series of Securities not
later than the close of business on the applicable Election Date will be paid
the amount due on the applicable payment date in the relevant currency or
currency unit as provided in paragraph (a) of this Section. In no case may a
Holder of Securities of any series elect to receive payments in any currency or
currency unit as described in this Section 2.13(b) following a deposit of funds
with respect to the Securities of such series as described in Section 8.01, 8.02
or 8.03.
(c) If the election referred to in paragraph (b) above has been provided for
pursuant to Section 2.03, then not later than the fourth Business Day after the
Election Date for each payment date for Securities of any series, the Currency
Determination Agent for that series will deliver to the Corporation a written
notice specifying, in the currency or currency unit in which Securities of such
series are payable, the respective aggregate amounts of principal of and
interest, if any, on the Securities to be made on such payment date, and
specifying the amounts in such currency or currency unit so payable with respect
to the Securities of such series as to which the Holders thereof shall have
elected to be paid in a currency or currency unit other than that in which such
series is denominated as provided in paragraph (b) above. If the election
referred to in paragraph (b) above has been provided for pursuant to Section
2.03 and if at least one Holder has made such election, then, on the second
Business Day preceding such payment date the Corporation will deliver to the
Trustee for such series of Securities an Exchange Rate Officers' Certificate
with respect to the Dollar, Foreign Currency or currency unit payments to be
made on such payment date. The Dollar, Foreign Currency or currency unit amount
receivable by Holders of Securities who have elected payment in a currency or
currency unit as provided in paragraph (b) above shall, unless otherwise
provided pursuant to Section 2.03, be determined by the Corporation on the basis
of the applicable Market Exchange Rate in effect on the third Business Day (the
"Valuation Date") immediately preceding each payment date.
(d) If a Conversion Event occurs with respect to a Foreign Currency or any
currency unit in which any of the Securities are denominated or payable other
than pursuant to an election provided for pursuant to paragraph (b) above, then
with respect to each date for the payment of principal of and interest, if any,
on the applicable Securities denominated or payable in such Foreign Currency or
such currency unit occurring after the last date on which such Foreign Currency
or such currency unit was available (the "Conversion Date"), the Dollar shall be
the currency of payment for use on each such payment date. The Dollar amount to
be paid by the Corporation to the Trustee of each such series of Securities and
by such Trustee or any Paying Agent to the Holders of such Securities with
respect to such payment date shall be the amount that would have been payable in
Foreign Currency or currency units but expressed in Dollars according to the
Dollar Equivalent of the Foreign Currency or, in the case of a currency unit,
the Dollar Equivalent of the Currency Unit, in each case as determined by the
Currency Determination Agent in the manner provided in paragraph (f) or (g)
below.
(e) If the Holder of a Security denominated in any currency or currency unit
shall
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have elected to be paid in another currency or currency unit as provided in
paragraph (b) above, and a Conversion Event occurs with respect to such elected
currency or currency unit, such Holder shall receive payment in the currency or
currency unit in which payment would have been made in the absence of such
election. If a Conversion Event occurs with respect to the currency or currency
unit in which payment would have been made in the absence of such election, such
Holder shall receive payment in Dollars as provided in paragraph (d) above.
(f) The "Dollar Equivalent of the Foreign Currency" shall be determined by the
Currency Determination Agent and shall be obtained for each subsequent payment
after the Conversion Date by converting the specified Foreign Currency into
Dollars at the Market Exchange Rate on the Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be determined by the
Currency Determination Agent and subject to the provisions of paragraph (h)
below shall be the sum of each amount obtained by converting the Specified
Amount of each Component Currency into Dollars at the Market Exchange Rate for
such Component Currency on the Valuation Date with respect to each payment.
(h) For purposes of this Section 2.13 the following terms shall have the
following meanings:
A "Component Currency" shall mean any currency which, on the Conversion Date,
was a component currency of the relevant currency unit.
A "Specified Amount" of a Component Currency shall mean the number of units of
such Component Currency or fractions thereof which were represented in the
relevant currency unit on the Conversion Date. If after the Conversion Date the
official unit of any Component Currency is altered by way of combination or
subdivision, the Specified Amount of such Component Currency shall be divided or
multiplied in the same proportion. If after the Conversion Date two or more
Component Currencies are consolidated into a single currency, the respective
Specified Amounts of such Component Currencies shall be replaced by an amount in
such single currency equal to the sum of the respective Specified Amounts of
such consolidated Component Currencies expressed in such single currency, and
such amount shall thereafter be a Specified Amount and such single currency
shall thereafter be a Component Currency. If after the Conversion Date any
Component Currency shall be divided into two or more currencies, the Specified
Amount of such Component Currency shall be replaced by amounts of such two or
more currencies, each of whose Dollar Equivalent at the Market Exchange Rate on
the date of such replacement shall be equal to the Dollar Equivalent of the
Specified Amount of such former Component Currency at the Market Exchange Rate
on such date divided by the number of currencies into which such Component
Currency was divided, and such amounts shall thereafter be Specified Amounts and
such currencies shall thereafter be Component Currencies. If, after the
Conversion Date of the relevant currency unit a Conversion Event (other than any
event referred to above in this definition of "Specified Amount") occurs with
respect to any
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Component Currency of such currency unit and is continuing on the applicable
Valuation Date, the Specified Amount of such Component Currency shall, for
purposes of calculating the Dollar Equivalent of the Currency Unit, be converted
into Dollars at the Market Exchange Rate in effect on the Conversion Date of
such Component Currency.
"Election Date" shall mean any date for any series of Securities as specified
pursuant to Section 2.03(11) by which the written election referred to in
Section 2.13(b) may be made, such date to be not later than the regular record
date for the earliest payment for which such election may be effective.
All decisions and determinations of the Currency Determination Agent regarding
the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the
Currency Unit, the Market Exchange Rate and changes in the Specified Amounts as
specified above shall be in its sole discretion and shall, in the absence of
manifest error, be conclusive for all purposes and irrevocably binding upon the
Corporation, the Trustee for the appropriate series of Securities and all
Holders of such Securities denominated or payable in the relevant currency or
currency units. The Currency Determination Agent shall promptly give written
notice to the Corporation and the Trustee for the appropriate series of
Securities of any such decision or determination.
In the event of a Conversion Event with respect to a Foreign Currency, the
Corporation, after learning thereof, will immediately give written notice
thereof to the Trustee of the appropriate series of Securities and the Currency
Determination Agent with respect to such series (and such Trustee will promptly
thereafter give notice to the Holders) specifying the Conversion Date. In the
event of a Conversion Event with respect to any currency unit in which
Securities are denominated or payable, the Corporation, after learning thereof,
will immediately give written notice thereof to the Trustee of the appropriate
series of Securities and the Currency Determination Agent with respect to such
series (and such Trustee will promptly thereafter give notice to the Holders)
specifying the Conversion Date and the Specified Amount of each Component
Currency on the Conversion Date. In the event of any subsequent change in any
Component Currency as set forth in the definition of Specified Amount above, the
Corporation, after learning thereof, will similarly give written notice to the
Trustee of the appropriate series of Securities and the Currency Determination
Agent.
The Trustee of the appropriate series of Securities shall be fully justified
and protected in relying and acting upon information received by it from the
Corporation and the Currency Determination Agent and shall not otherwise have
any duty or obligation to determine such information independently.
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SECTION 2.14. Appointment and Resignation of Currency Determination Agent. (a)
If and so long as the Securities of any series (i) are denominated in a currency
unit or a currency other than Dollars or (ii) may be payable in a currency unit
or a currency other than Dollars, or so long as it is required under any other
provision of this Indenture, then the Corporation will maintain with respect to
each such series of Securities, or as so required, a Currency Determination
Agent. The Corporation will cause the Currency Determination Agent to make the
necessary foreign exchange determinations at the time and in the manner
specified pursuant to Section 2.03 for the purpose of determining the applicable
rate of exchange and for the purpose of converting the issued currency or
currency unit into the applicable payment currency or currency unit for the
payment of principal and interest, if any, pursuant to Section 2.13.
(b) No resignation of the Currency Determination Agent and no appointment of a
successor Currency Determination Agent pursuant to this Section shall become
effective until the acceptance of appointment by the successor Currency
Determination Agent as evidenced by a written instrument delivered to the
Corporation and the Trustee of the appropriate series of Securities accepting
such appointment executed by the successor Currency Determination Agent.
(c) If the Currency Determination Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the Currency
Determination Agent for any cause, with respect to the Securities of one or more
series, the Corporation, by a Board Resolution, shall promptly appoint a
successor Currency Determination Agent or Currency Determination Agents with
respect to the Securities of that or those series (it being understood that any
such successor Currency Determination Agent may be appointed with respect to the
Securities of one or more or all of such series and that at any time there shall
only be one Currency Determination Agent with respect to the Securities of any
particular series).
ARTICLE 3
REDEMPTION
SECTION 3.01. Applicability of this Article. Securities of any series that are
redeemable at the option of the Corporation prior to their maturity shall be
redeemable in accordance with their terms (except as otherwise specified in this
Indenture for Securities of any series) and in accordance with this Article 3.
SECTION 3.02. Notices to Trustee. If the Corporation wants to redeem any
Securities, it shall notify the Trustee of the redemption date and the principal
amount of Securities to be redeemed in accordance with the terms of the
Securities. If the redemption is of less than all the outstanding Securities of
a series, the Corporation shall furnish to the Trustee a written statement
signed by an Officer of the Corporation stating that with respect to that series
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there exists no Event of Default and no circumstance which, after notice or the
passage of time or both, would constitute an Event of Default. The Corporation
shall give the notice provided for in this Section at least 50 days before the
redemption date.
SECTION 3.03. Selection of Securities to be Redeemed. If, at the option of the
Corporation, less than all the Securities of a series are to be redeemed, the
Trustee shall select the Securities to be redeemed by a method the Trustee
considers fair and appropriate, subject to any applicable stock exchange
requirements. The Trustee shall make the selection from outstanding Securities
not previously called for redemption. The Trustee may select for redemption
portions of the principal of Securities that have a denomination larger than
$1,000 (or the applicable minimum denomination for such Securities in the event
the Securities are payable in a Foreign Currency or Currencies). Securities and
portions of them it selects shall be in amounts of $1,000 (or the applicable
minimum denomination for such Securities in the event the Securities are payable
in a Foreign Currency or Currencies) or a multiple of $1,000 (or the applicable
minimum denomination for such Securities in the event the Securities are payable
in a Foreign Currency or Currencies). Provisions of this Indenture that apply to
Securities called for redemption also apply to portions of Securities called for
redemption.
The Trustee for the Securities of any series to be redeemed shall promptly
notify the Corporation in writing of the Securities of such series selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities shall relate, in the case of
any Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Securities which has been or is to be redeemed.
SECTION 3.04. Notice of Redemption. At least 20 days but not more than 60 days
before a date of redemption of Securities at the option of the Corporation, the
Corporation shall mail a notice of redemption by first-class mail to each Holder
of Securities to be redeemed.
The notice shall identify the Securities to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price; and
(5) that interest, if any, on Securities called for redemption ceases to
accrue on and after the redemption date.
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At the Corporation's request, the Trustee shall give the notice of redemption
in the Corporation's name and at its expense. In such event the Corporation
will provide the Trustee with the information required by clauses (1) through
(5) above.
SECTION 3.05. Effect of Notice of Redemption. Once notice of redemption is
mailed, Securities called for redemption become due and payable on the
redemption date and at the redemption price stated in the notice. Upon surrender
to the Paying Agent, such Securities shall be paid at the redemption price
stated in the notice, plus accrued interest, if any, to the redemption date;
provided, however, that any regular payment of interest becoming due on the
redemption date shall be payable to the Holder of any such Security being
redeemed as provided in the Security.
SECTION 3.06. Deposit of Redemption Price. By the opening of business on the
redemption date, the Corporation shall deposit with the Paying Agent money
sufficient to pay the redemption price of and accrued interest, if any, on all
Securities to be redeemed at the option of the Corporation on that date.
SECTION 3.07. Securities Redeemed in Part. Upon surrender of a Security that
is redeemed in part, the Trustee shall authenticate for the Holder a new
Security equal in principal amount to the unredeemed portion of the Security
surrendered.
ARTICLE 4
COVENANTS
SECTION 4.01. Certain Definitions. "Attributable Debt" for a lease means the
carrying value of the capitalized rental obligation determined under generally
accepted accounting principles. The carrying value may be reduced by the
capitalized value of the rental obligations, calculated on the same basis, that
any sublessee has for all or part of the same property. This term does not
include any obligation to make payments arising from the transfer of tax
benefits under the Economic Recovery Tax Act of 1981 (as it may from time to
time be amended, or any successor statute) to the extent such obligation is
offset by or conditioned upon receipt of payments from another person. A lease
obligation shall be counted only once even if the Corporation and one or more of
its Subsidiaries may be responsible for the obligation.
"Consolidated Net Tangible Assets" means total assets less (1) total current
liabilities (excluding any Debt which, at the option of the borrower, is
renewable or extendable to a term exceeding 12 months and which is included in
current liabilities and further excluding any deferred income taxes which are
included in current liabilities) and (2) goodwill, patents and trademarks, all
as reflected in the Corporation's most recent consolidated balance sheet
preceding the date of a determination under Section 4.03(11).
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"Debt" means all indebtedness for borrowed money reported as debt in the
consolidated financial statements or any guarantee of such a debt and includes
purchase money obligations. This term does not include any obligation to make
payments arising from the transfer of tax benefits under the Economic Recovery
Tax Act of 1981 (as it may from time to time be amended, or any successor
statute) to the extent such obligation is offset by or conditioned upon receipt
of payments from another person. A Debt shall be counted only once even if the
Corporation and one or more of its Subsidiaries may be responsible for the
obligation.
"Lien" means any mortgage, pledge, security interest or lien. This term does
not include any obligation arising from the transfer of tax benefits under the
Economic Recovery Tax Act of 1981 (as it may from time to time be amended, or
any successor statute) to the extent such obligation is offset by or conditioned
upon receipt of payments from another person.
"Long-Term Debt" means Debt that by its terms matures on a date more than 12
months after the date it was created or Debt that the obligor may extend or
renew without the obligee's consent to a date more than 12 months after the Debt
was created.
"Principal Property" means, as to any particular series of Securities, any
manufacturing facility located in the United States and owned by the Corporation
or by one or more Restricted Subsidiaries from the date Securities of that
series are first issued and which has, as of the date the Lien is incurred, a
net book value (after deduction of depreciation and other similar charges)
greater than 3% of Consolidated Net Tangible Assets, except (1) any such
facility or property which is financed by obligations of any State, political
subdivision of any State or the District of Columbia under terms which permit
the interest payable to the holders of the obligations to be excluded from gross
income as a result of the plant, facility or property satisfying the conditions
of Section 103(b)(4)(C), (D), (E), (F) or (H) of the Internal Revenue Code of
1954, as amended, Section 103(b)(6) of the Internal Revenue Code of 1954, as
amended, Section 142(a) or Section 144(a) of the Internal Revenue Code of 1986,
or of any successors to such provisions, or (2) any such facility or property
which, in the opinion of the Board of Directors of the Corporation, is not of
material importance to the total business conducted by the Corporation and its
Subsidiaries taken as a whole. However, the Chief Executive Officer or Chief
Financial Officer of the Corporation may at any time declare any manufacturing
facility or other property to be a Principal Property by delivering a
certificate to that effect to the Trustee.
"Restricted Property" means, as to any particular series of Securities, any
Principal Property, any Debt of a Restricted Subsidiary owned by the Corporation
or a Restricted Subsidiary on the date Securities of that series are first
issued or secured by a Principal Property (including any property received upon
a conversion or exchange of such Debt), or any shares of stock of the
Corporation or a Restricted Subsidiary owned by the Corporation or a Restricted
Subsidiary (including any property or shares received upon a conversion, stock
split or other distribution with respect to the ownership of such stock).
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"Restricted Subsidiary" means a Subsidiary that has substantially all its
assets located in, or carries on substantially all its business in, the United
States and that owns a Principal Property. Notwithstanding the preceding
sentence, a Subsidiary shall not be a Restricted Subsidiary during such period
of time as it (or any corporation (other than the Corporation) or other entity
that, directly or indirectly, beneficially owns a majority of the Voting Stock
of the Subsidiary) has shares of capital stock registered under the Exchange Act
or it files reports and other information with the SEC pursuant to Section 13 or
15(d) of the Exchange Act.
"Sale-Leaseback Transaction" means an arrangement whereby the Corporation or a
Restricted Subsidiary now owns or hereafter acquires a Principal Property,
transfers it to a person and contemporaneously leases it back from the person.
This term does not include any transaction arising from the transfer of tax
benefits under the Economic Recovery Tax Act of 1981 (as it may from time to
time be amended, or any successor statute) to the extent the obligation to make
rental payments is offset or conditioned upon receipt of payments from another
person.
"Subsidiary" means a corporation a majority of the Voting Stock of which is
owned by the Corporation, the Corporation and one or more Subsidiaries, or one
or more Subsidiaries.
"United States" means the United States of America. The Commonwealth of
Puerto Rico, the Virgin Islands and other territories and possessions are not
part of the United States.
"Voting Stock" means capital stock having voting power under ordinary
circumstances to elect directors.
SECTION 4.02. Payment of Securities. The Corporation shall promptly pay the
principal of and interest, if any, on the Securities on the dates and in the
manner provided in the Securities.
To the extent lawful, the Corporation shall pay interest, if any, on overdue
principal at the rate borne by the Securities and shall pay interest, if any, on
overdue installments of interest at the same rate.
SECTION 4.03. Limitation on Liens. The Corporation shall not, and shall not
permit any Restricted Subsidiary to, incur a Lien on Restricted Property to
secure a Debt unless:
(1) the Lien equally and ratably secures the Securities and the Debt.
The Lien may equally and ratably secure the Securities and any other
obligation of the Corporation or a Subsidiary. The Lien may not secure an
obligation of the Corporation that is subordinated to any Securities; or
(2) the Lien is on property, Debt or shares of stock of a corporation at
the time such corporation becomes a Restricted Subsidiary; or
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(3) the Lien is on property at the time the Corporation or a Restricted
Subsidiary acquires the property. However, the Lien may not extend to any
other Restricted Property owned by the Corporation or a Restricted Subsidiary
at the time the property is acquired; or
(4) the Lien secures the payment of all or any part of the purchase
price of property upon the acquisition of such property by the Corporation or
a Restricted Subsidiary or secures any Debt incurred or guaranteed by the
Corporation or a Restricted Subsidiary prior to, at the time of, or within one
year after the later of the acquisition, completion of construction (including
any improvements on an existing property) or commencement of full operation of
such property, which Debt is incurred or guaranteed for the purpose of
financing all or any part of the purchase price thereof or construction or
improvements thereon, and which Debt may be in the form of obligations
incurred in connection with industrial revenue bonds or similar financings and
letters of credit issued in connection therewith; provided, however, that in
the case of any such acquisition, construction or improvement the Lien shall
not apply to any property theretofore owned by the Corporation or a Restricted
Subsidiary, other than, in the case of any such construction or improvement,
any theretofore unimproved real property on which the property so constructed
or the improvement made is located; or
(5) the Lien secures Debt of a Restricted Subsidiary owed to the
Corporation or another Restricted Subsidiary; or
(6) the Lien is on property of a corporation or other entity at the time
such corporation or other entity merges into, or consolidates or enters into a
share exchange with, the Corporation or a Restricted Subsidiary; or
(7) the Lien is on property of a person at the time the person transfers
or leases all or substantially all its assets to the Corporation or a
Restricted Subsidiary; or
(8) the Lien is in favor of any customer (including any government or
governmental authority) to secure partial, progress, advance or other payments
or performance pursuant to any contract or statute or to secure any related
indebtedness or to secure Debt guaranteed by a government or governmental
authority; or
(9) the Lien arises pursuant to any order of attachment, distraint or
similar legal process arising in connection with court proceedings so long as
the execution or other enforcement thereof is effectively stayed and the
claims secured thereby are being contested in good faith by appropriate
proceedings or the Lien is a materialmen's, suppliers', tax or other similar
Lien arising in the ordinary course of business securing obligations which are
not overdue or are being contested in good faith by appropriate proceedings;
or
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(10) as to any particular series of Securities, the Lien extends, renews
or replaces in whole or in part a Lien ("existing Lien") permitted by any of
the clauses (1) through (9) or a Lien existing on the date that Securities of
such series are first issued. The Lien may not extend beyond the property
subject to the existing Lien. The Debt secured by the Lien may not exceed the
Debt secured at the time by the existing Lien unless the existing Lien or a
predecessor Lien was incurred under clause (1) or (5); or
(11) the Debt secured by the Lien plus all other Debt secured by Liens
on Restricted Property, excluding Debt secured by a Lien permitted by any of
the clauses (1) through (10) and any Debt secured by a Lien existing at the
date of this Indenture, at the time does not exceed 10% of Consolidated Net
Tangible Assets. Attributable Debt for any lease entered into under clause (4)
of Section 4.04 shall be included in the determination and treated as Debt
secured by a Lien on Restricted Property not otherwise permitted by any of the
clauses (1) through (10).
SECTION 4.04. Limitation on Sale-Leaseback Transactions. The Corporation shall
not, and shall not permit any Restricted Subsidiary to, enter into a Sale-
Leaseback Transaction unless:
(1) the lease has a term of three years or less; or
(2) the lease is between the Corporation and a Restricted Subsidiary or
between Restricted Subsidiaries; or
(3) the Corporation or a Restricted Subsidiary under clauses (2) through
(10) of Section 4.03 could create a Lien on the property to secure Debt at
least equal in amount to the Attributable Debt for the lease; or
(4) the Corporation or a Restricted Subsidiary under clause (11) of
Section 4.03 could create a Lien on the property to secure Debt at least equal
in amount to the Attributable Debt for the lease; or
(5) the Corporation or a Subsidiary owns or acquires other property
which will be made a Principal Property and is determined by the Board of
Directors of the Corporation to have a fair value equal to or greater than the
Attributable Debt incurred; or
(6) (A) the Corporation or a Restricted Subsidiary makes an optional
prepayment in cash of its Debt at least equal in amount to the Attributable
Debt for the lease,
(B) the prepayment is made within 120 days of the effective date of
the lease,
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(C) the Debt prepaid is not owned by the Corporation or a Restricted
Subsidiary, and
(D) the Debt prepaid was Long-Term Debt at the time it was created.
SECTION 4.05. No Lien Created, etc. This Indenture and the Securities do not
create a Lien, charge or encumbrance on any property of the Corporation or any
Subsidiary.
SECTION 4.06. Compliance Certificate. The Corporation shall deliver to the
Trustee within 120 days after the end of each fiscal year of the Corporation an
Officers' Certificate stating whether or not the signers know of any default by
the Corporation in performing their covenants in Section 4.03 or 4.04. If they
do know of such a default, the certificate shall describe the default. The
certificate need not comply with Section 10.05.
SECTION 4.07. SEC Reports. The Corporation shall file with the Trustee within
15 days after it files them with the SEC copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the SEC may by rules and regulations prescribe) which the
Corporation is required to file with the SEC pursuant to Section 13 or Section
15(d) of the Exchange Act. The Corporation also shall comply with the other
provisions of TIA Section 314(a).
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01. When the Corporation May Merge, etc. The Corporation shall not
consolidate with or merge into, or transfer all or substantially all its assets
to another corporation, unless (1) the resulting, surviving or transferee
corporation assumes by supplemental indenture all the obligations of the
Corporation under the Securities and this Indenture, (2) immediately after
giving effect to such transaction no Event of Default and no circumstances
which, after notice or lapse of time or both, would become an Event of Default,
shall have happened and be continuing, and (3) the Corporation shall have
delivered to the Trustee an Officers' Certificate and an Opinion of Counsel,
each stating that such consolidation, merger or transfer and such supplemental
indenture comply with this Indenture, and thereafter all such obligations of the
Corporation shall terminate.
SECTION 5.02. When Securities Must be Secured. If upon any such consolidation,
merger or transfer a Restricted Property would become subject to an attaching
Lien that secures Debt, then, before the consolidation, merger or transfer
occurs, the Corporation by supplemental
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indenture shall secure the Securities by a direct lien on the Restricted
Property. The direct Lien shall have priority over all Liens on the Restricted
Property except those already on it. The direct Lien may equally and ratably
secure the Securities and any other obligation of the Corporation or a
Subsidiary. However, the Corporation need not comply with this Section if:
(1) upon the consolidation, merger or transfer the attaching Lien will
secure the Securities equally and ratably with or prior to Debt secured by
the attaching Lien; or
(2) the Corporation or a Restricted Subsidiary under any of the clauses
(2) through (11) of Section 4.03 could create a Lien on the Restricted
Property to secure Debt at least equal in amount to that secured by the
attaching Lien.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default. An "Event of Default" occurs with respect to
a series of Securities if:
(1) the Corporation defaults in the payment of interest on any Security
of that series when the same becomes due and payable and the default continues
for a period of 30 days;
(2) the Corporation defaults in the payment of the principal of any
Security of that series when the same becomes due and payable at maturity,
upon redemption or otherwise;
(3) the Corporation fails to comply with any of its other agreements in
the Securities of that series or this Indenture for the benefit of that series
and the default continues for the period and after the notice specified in
this Section;
(4) the Corporation pursuant to or within the meaning of any Bankruptcy
Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in an
involuntary case,
(C) consents to the appointment of a Custodian of it or for all or
substantially all of its property, or
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(D) makes a general assignment for the benefit of its creditors;
(5) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Corporation in an involuntary case,
(B) appoints a Custodian of the Corporation or for all or
substantially all of the property of the Corporation, or
(C) orders the winding up or liquidation of the Corporation,
and the order or decree remains unstayed and in effect for 90 days; or
(6) there occurs any other event specifically described as an Event of
Default by the Securities of that series.
The term "Bankruptcy Law" means Title 11, United States Code, or any similar
Federal or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator, custodian or similar official under any
Bankruptcy Law.
A default under clause (3) is not an Event of Default with respect to a series
of Securities until the Trustee or the Holders of at least 25% in principal
amount of the Securities of that series notify the Corporation of the default
and the Corporation does not cure the default within 90 days after receipt of
the notice. The notice must specify the default, demand that it be remedied and
state that the notice is a "Notice of Default." Subject to Sections 7.01 and
7.02 the Trustee shall not be charged with knowledge of any default unless
written notice thereof shall have been given to the Trustee by the Corporation,
the Paying Agent, the Holder of a Security or an agent of such Holder.
SECTION 6.02. Acceleration. If an Event of Default with respect to a series of
Securities occurs and is continuing, the Trustee, by notice to the Corporation
or the Holders of at least 25% in principal amount of the Securities of that
series by notice to the Corporation and the Trustee, may declare the principal
(or, in the case of Discounted Securities, such amount of principal as may be
provided for in such Securities) of and accrued interest, if any, on all the
Securities of that series to be due and payable immediately. Upon such a
declaration such principal and interest, if any, shall be due and payable
immediately. The Holders of a majority in principal amount of the Securities of
any series by notice to the Trustee may rescind an acceleration (and upon such
rescission any Event of Default caused by such acceleration shall be deemed
cured) with respect to that series and its consequences if all existing Events
of Default with respect to the series have been cured or waived, if the
rescission would not conflict with any judgment or decree, and if all payments
due to the Trustee and any predecessor Trustee under Section 7.07 have been
made.
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SECTION 6.03. Other Remedies. If an Event of Default with respect to a series
of Securities occurs and is continuing, the Trustee may pursue any available
remedy by proceeding at law or in equity to collect the payment of principal of
(or, in the case of Discounted Securities, such amount of principal as may be
provided for in such Securities) or interest, if any, on the Securities of that
series or to enforce the performance of any provision of such Securities or this
Indenture.
The Trustee may maintain a proceeding even if it does not possess any of the
Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
SECTION 6.04. Waiver of Past Defaults. Subject to Section 9.02 the Holders of
a majority in principal amount of the Securities of a series by notice to the
Trustee may waive an existing Default or Event of Default with respect to that
series and its consequences. When a Default or Event of Default is waived, it is
cured and stops continuing, but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereto.
SECTION 6.05. Control by Majority. The Holders of a majority in principal
amount of the Securities of a series may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on it with respect to that series.
However, the Trustee may refuse to follow any direction that conflicts with law
or this Indenture, or, subject to Section 7.01, that the Trustee determines is
unduly prejudicial to the rights of other Holders of Securities of the same
series or would involve the Trustee in personal liability.
SECTION 6.06. Limitation on Suits. No Holder of a Security of any series may
pursue any remedy with respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice stating that an Event
of Default with respect to the Securities of the series is continuing;
(2) the Holders of at least 25% in principal amount of the Securities of
that series make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity satisfactory
to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
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(5) during such 60-day period the Holders of a majority in principal
amount of the Securities of that series do not give the Trustee a direction
inconsistent with the request.
A Securityholder may not use this Indenture to prejudice the rights of another
Securityholder or to obtain a preference or priority over any other
Securityholder.
SECTION 6.07. Rights of Holders to Receive Payment. Notwithstanding any other
provision of this Indenture, the right of any Holder to receive payment of
principal of and interest, if any, on the Security on or after the respective
due dates expressed in the Security, or to bring suit for the enforcement of any
such payment on or after such respective date, shall not be impaired or affected
without the consent of the Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of Default in payment of
interest or principal specified in Section 6.01(1) or (2) occurs and is
continuing, subject to Sections 6.02 and 6.04 the Trustee may recover judgment
in its own name and as trustee of an express trust against the Corporation for
the whole amount of principal and interest, if any, remaining unpaid.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may file such
proofs of claim and other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee and the Securityholders allowed in
any judicial proceedings relative to the Corporation, or any of its creditors or
property, and unless prohibited by law or applicable regulations, may vote on
behalf of the Holders in any election of a trustee in bankruptcy or other person
performing similar functions.
SECTION 6.10. Priorities. If the Trustee collects any money pursuant to this
Article with respect to the Securities of any series, it shall pay out the money
in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Holders of Securities of that series for amounts due and
unpaid on such Securities for principal and interest, if any, ratably, without
preference or priority of any kind, according to the amounts due and payable
on such Securities for principal and interest, if any, respectively; and
Third: to the Corporation.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section.
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SECTION 6.11. Undertaking for Costs. In any suit for the enforcement of any
right or remedy under this Indenture or in any suit against the Trustee for any
action taken or omitted by it as Trustee, a court in its discretion may require
the filing by any party litigant in the suit other than the Trustee of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in the suit including the Trustee, having due regard to the merits and
good faith of the claims or defenses made by the party litigant. This Section
does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section
6.07 or a suit by Holders of more than 10% in principal amount of the Securities
of any series.
ARTICLE 7
TRUSTEE
SECTION 7.01. Duties of Trustee. (a) If an Event of Default has occurred and
is continuing, the Trustee shall with respect to Securities exercise its rights
and powers and use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that are specifically set
forth in this Indenture and no others; and
(2) in the absence of bad faith on its part, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates, notices or opinions furnished to the
Trustee and conforming to the requirements of this Indenture. However, the
Trustee shall examine the certificates, notices and opinions to determine
whether or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct, except
that:
(1) this paragraph does not limit the effect of paragraph (b) of this
Section;
(2) the Trustee shall not be liable for any error of judgment made in good
faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it takes or
omits to
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take in good faith in accordance with a direction received by it pursuant
to Section 6.05.
(d) Every provision of this Indenture that in any way relates to the Trustee
is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee may refuse to perform any duty or exercise any right or power
unless it receives indemnity satisfactory to it against any loss, liability or
expense.
(f) The Trustee shall not be liable for interest on any money received by it
except as the Trustee may agree with the Corporation.
SECTION 7.02. Rights of Trustee. (a) Subject to Section 7.01 the Trustee may
rely on any document believed by it to be genuine and to have been signed or
presented by the proper person. The Trustee need not investigate any fact or
matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on the
Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take
in good faith which it believes to be authorized or within its rights or powers.
SECTION 7.03. Individual Rights of Trustee, etc. The Trustee in its individual
or any other capacity may become the owner or pledgee of Securities and may
otherwise deal with the Corporation or any of its affiliates with the same
rights it would have if it were not Trustee. Any Agent may do the same with like
rights. However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer. The Trustee makes no representations as to
the validity or adequacy of this Indenture or the Securities, it shall not be
accountable for the Corporation's use of the proceeds from the Securities, and
it shall not be responsible for any statement in the Securities other than its
certificate of authentication.
SECTION 7.05. Notice of Defaults. If a Default occurs with respect to a series
of Securities and is continuing and if it is known to the Trustee, the Trustee
shall mail to each Holder of Securities of that series notice of the Default
within 90 days after it occurs. Except in the case of a default in payment on
any Security, the Trustee may withhold the notice if and so long as a committee
of its Trust Officers in good faith determines that withholding the notice is in
the interests of such Holders.
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SECTION 7.06. Reports by Trustee to Holders. If required pursuant to TIA
Section 313(a), the Trustee, within 60 days after each May 15, shall mail to
each Securityholder a brief report dated as of May 15 that complies with TIA
Section 313(a). The Trustee also shall comply with the reporting obligations of
TIA Section 313(b).
A copy of each report at the time of its mailing to Securityholders shall be
filed with the SEC and each stock exchange on which the Securities are listed.
The Corporation agrees to notify the Trustee whenever the Securities become
listed on any stock exchange.
SECTION 7.07. Compensation and Indemnity. The Corporation shall pay to the
Trustee from time to time reasonable compensation for its services. The
Corporation shall reimburse the Trustee upon request for all reasonable out-of-
pocket expenses incurred by it. Such expenses shall include the reasonable
compensation and expenses of the Trustee's agents and counsel. The Corporation
shall indemnify the Trustee against any loss or liability incurred by it in
connection with the administration of this trust and its duties hereunder. The
Trustee shall notify the Corporation promptly of any claim for which it may seek
indemnity. The Corporation need not pay for any settlement made without its
consent. The Corporation need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee through negligence or bad faith.
To secure the Corporation's payment obligations in this Section, the Trustee
shall have a senior claim to which the Securities are hereby made subordinate on
all money or property held or collected by the Trustee, except that held in
trust to pay principal of and interest, if any, on particular Securities.
When the Trustee incurs expenses or renders services after an Event of Default
specified in Section 6.01(4) or (5) occurs, the expenses and the compensation
for the services are intended to constitute expenses of administration under any
Bankruptcy Law.
SECTION 7.08. Replacement of Trustee. The Trustee may resign with respect to
the Securities of one or more series by so notifying the Corporation. The
Holders of a majority in principal amount of the Securities of any series may
remove the Trustee with respect to that series by so notifying the removed
Trustee and may appoint a successor Trustee with the Corporation's consent. The
Corporation may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee otherwise becomes incapable of acting.
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If the Trustee resigns or is removed or if a vacancy exists in the office of
trustee for any reason, the Corporation shall promptly appoint a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to
the retiring Trustee and to the Corporation. Immediately after that, the
retiring Trustee shall transfer all property held by it as Trustee for the
benefit of the series with respect to which it is retiring to the successor
Trustee, the resignation or removal of the retiring Trustee shall then become
effective, and the successor Trustee shall have all the rights, powers and
duties of the Trustee under this Indenture with respect to that series. A
successor Trustee shall mail notice of its succession to each Holder of the
Securities of the series affected.
If pursuant to Section 2.03(5) a trustee, other than the Trustee initially
named in this Indenture (or any successor thereto), is appointed with respect to
one or more series of Securities, the Corporation, the Trustee initially named
in this Indenture (or any successor thereto) and such newly appointed trustee
shall execute and deliver a supplement to this Indenture which shall contain
such provisions as shall be necessary or desirable to confirm that all the
rights, powers, trusts and duties of the Trustee initially named in this
Indenture (or any successor thereto) with respect to the Securities of any
series as to which the Trustee is continuing as trustee hereunder shall continue
to be vested in the Trustee initially named in this Indenture (or any successor
thereto), and shall add to, supplement or change any of the provisions of this
Indenture as shall be necessary or desirable to provide for or facilitate the
administration of the trusts hereunder by more than one trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such trustees co-trustees of the same trust and that each such
trustee shall be trustee of a trust or trusts relating to the separate series of
Securities as if it were acting under a separate indenture.
If a successor Trustee with respect to a series of Securities does not take
office within 60 days after the retiring Trustee resigns or is removed, the
retiring Trustee, the Corporation or the Holders of a majority in principal
amount of the Securities of that series may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee with respect to a series of Securities fails to comply with
Section 7.10, any Holder of Securities of that series may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee.
If there are two or more Trustees at any time under this Indenture, each will
be the Trustee of a separate trust held under this Indenture for the benefit of
the series of Securities for which it is acting as Trustee and the rights and
obligations of each Trustee will be determined as if it were acting under a
separate indenture.
SECTION 7.09. Successor Trustee by Merger, etc. If the Trustee consolidates
with, merges or converts into or transfers all or substantially all its
corporate trust assets to another
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corporation, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
SECTION 7.10. Eligibility; Disqualification. This Indenture shall always have
a Trustee that satisfies the requirements of TIA Section 310(a). The Trustee
shall have a combined capital and surplus of at least $5,000,000 as set forth in
its most recent published annual report of condition. The Trustee shall comply
with TIA Section 310(b), provided that the question whether the Trustee has a
conflicting interest shall be determined as if each series of Securities were
separate issues of securities issued under separate indentures.
SECTION 7.11. Preferential Collection of Claims Against Corporation. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE 8
SATISFACTION, DISCHARGE AND DEFEASANCE
SECTION 8.01. Satisfaction and Discharge Under Limited Circumstances. If at
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any time (a) all Securities of a series previously authenticated (other than any
Securities destroyed, lost or stolen and replaced or paid as provided in Section
2.08) shall have been delivered to the Trustee for cancellation, or (b) all the
Securities of a series not previously delivered to the Trustee for cancellation
shall have become due and payable, the Corporation has deposited or caused to be
deposited with the Trustee as trust funds the entire amount (other than moneys
paid to the Corporation in accordance with Section 8.05) sufficient to pay at
maturity or upon redemption all Securities of that series not previously
delivered to the Trustee for cancellation, including principal and interest, if
any, due, and if, in either case, the Corporation shall also pay all other sums
then payable under this Indenture by the Corporation, then this Indenture shall
cease to be of further effect with respect to Securities of that series, and the
Trustee, on demand of and at the cost and expense of the Corporation, shall
execute proper instruments acknowledging satisfaction of and discharging this
Indenture with respect to Securities of that series. The Corporation will
reimburse the Trustee for any subsequent costs or expenses reasonably and
properly incurred by the Trustee in connection with this Indenture or the
Securities.
SECTION 8.02. Satisfaction and Discharge of Indenture. The Corporation may
take any action provided for in this Section unless the Securities of the
affected series specifically provide that this Section shall not apply to the
series. The Corporation at any time at its option may terminate all of its
obligations under the Securities of a series previously authenticated and its
obligations under this Indenture with respect to such series (except as provided
below), and the Trustee, at the expense of the Corporation, shall, upon the
request of the Corporation, execute proper instruments acknowledging
satisfaction of and discharging this Indenture with respect to Securities of
that series, effective on the date the following conditions are satisfied:
(1) with reference to this Section, the Corporation has deposited or
caused to be deposited with the Trustee, as trust funds in trust,
specifically pledged as security for and dedicated solely to the benefit of
the Holders of the Securities of that series, (a) lawful money, in the
currency or currencies in which Securities of that series are payable, in
an amount, or (b) if the Securities of that series are payable in Dollars,
U.S. Government Obligations which through the payment of interest and
principal in respect thereof in accordance with their terms (and, as to
callable U.S. Government Obligations, regardless of when they are called)
will provide not later than the opening of business on the due dates of any
payment of the principal of and any interest on the Securities of that
series lawful money of the United States in an amount, or (c) Securities of
that series, or (d) a combination thereof, sufficient to pay and discharge
the principal of and interest, if any, on the Securities of that series on
the date on which such payments are due and payable in accordance with the
terms of this Indenture and of the Securities of that series and 91 days
have passed during which no Event of Default under Section 6.01(4) or
6.01(5) has occurred;
(2) if the Securities of that series are then listed on any national
securities
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exchange, the Corporation shall have delivered to the Trustee an Opinion of
Counsel to the effect that such deposit, defeasance and discharge will not
cause such Securities to be delisted; and
(3) the Corporation has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, complying with Section 10.04
relating to the Corporation's exercise of such option.
The trust established pursuant to subsection (1) above shall be irrevocable
and shall be made under the terms of an escrow trust agreement in form and
substance satisfactory to the Trustee. The escrow trust agreement may, at the
Corporation's election, grant the Corporation the right to substitute U.S.
Government Obligations or Securities of the same series from time to time for
any or all of the U.S. Government Obligations deposited with the Trustee
pursuant to this Section and the escrow trust agreement; provided, that the
condition specified in subsection (1) above is satisfied immediately following
any such substitution or substitutions. If any Securities of a series are to be
redeemed prior to their stated maturity pursuant to optional redemption
provisions the applicable escrow trust agreement shall provide therefor and the
Corporation shall make such arrangements as are satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in the name, and at the
expense, of the Corporation.
Upon the satisfaction of the conditions set forth in this Section with respect
to the Securities, the terms and conditions of the Securities, including the
terms and conditions with respect thereto set forth in this Indenture, shall no
longer be binding upon, or applicable to, the Corporation.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Corporation under Sections 2.04, 2.05, 2.06, 2.07, 2.08,
2.10, 7.07 and 7.08 with respect to the Securities of that series shall survive
until the Securities of that series are no longer outstanding. Thereafter, the
Corporation's obligations in Section 7.07 shall survive.
"U.S. Government Obligations" means the following obligations:
(1) direct obligations of the United States for the payment of which its
full faith and credit is pledged; or
(2) obligations of a person controlled or supervised by and acting as an
agency or instrumentality of the United States the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the
United States.
SECTION 8.03. Defeasance of Certain Obligations. The Corporation may take any
action provided for in this Section unless the Securities of the affected series
specifically provide that this Section shall not apply to the series. The
Corporation at any time at their option may cease to be under any obligation to
comply with Sections 4.03, 4.04, 4.06, 5.01 and 5.02 with
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respect to Securities of a series effective on the date the following conditions
are satisfied:
(1) with reference to this Section, the Corporation has deposited or
caused to be deposited with the Trustee irrevocably, as trust funds in
trust, specifically pledged as security for and dedicated solely to the
benefit of the Holders of the Securities of that series, (a) lawful money,
in the currency or currencies in which Securities of that series are
payable, in an amount, or (b) if the Securities of that series are payable
in Dollars, U.S. Government Obligations which through the payment of
interest and principal in respect thereof in accordance with their terms
(and, as to callable U.S. Government Obligations, regardless of when they
are called) will provide not later than the opening of business on the due
dates of any payment of principal of and interest on the Securities of that
series lawful money of the United States in an amount, or (c) Securities of
that issue, or (d) a combination thereof, sufficient to pay and discharge
the principal of and interest on the Securities of that series on the day
on which such payments are due and payable in accordance with the terms of
this Indenture and of the Securities of that series; and
(2) the Corporation has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel complying with Section 10.04 relating
to the Corporation's exercise of such option.
The trust established pursuant to subsection (1) above shall be irrevocable
and shall be made under the terms of an escrow trust agreement in form and
substance satisfactory to the Trustee. The escrow trust agreement may, at the
Corporation's election, grant the Corporation the right to substitute U.S.
Government Obligations or Securities of the same series from time to time for
any or all of the U.S. Government Obligations deposited with the Trustee
pursuant to this Section and the escrow trust agreement; provided, that the
condition specified in subsection (1) above is satisfied immediately following
any such substitution or substitutions. If any Securities of a series are to be
redeemed prior to their stated maturity pursuant to optional redemption
provisions the applicable escrow trust agreement shall provide therefor and the
Corporation shall make such arrangements as are satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in the name, and at the
expense, of the Corporation.
The Corporation's exercise of its option under this Section shall not preclude
the Corporation from subsequently exercising its option under Section 8.02
hereof and the Corporation may so exercise that option by providing the Trustee
with written notice to such effect.
SECTION 8.04. Application of Trust Money. The Trustee shall hold in trust
money, U.S. Government Obligations, and Securities of that series deposited with
it pursuant to Sections 8.01, 8.02 or 8.03. It shall apply the deposited money
and U.S. Government Obligations through the Paying Agent and in accordance with
this Indenture, to the payment of principal and interest, if any, on the
Securities of the series for the payment of which such money and U.S. Government
Obligations has been deposited. The Holder of any Security replaced
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pursuant to Section 2.08 shall not be entitled to any such payment and shall
look only to the Corporation for any payment which such Holder may be entitled
to collect. In connection with the satisfaction and discharge of this Indenture
or the defeasance of certain obligations under this Indenture with respect to
Securities of a series pursuant to Section 8.02 or Section 8.03 hereof,
respectively, the escrow trust agreement may, at the Corporation's election, (1)
enable the Corporation to direct the Trustee to invest any money received by the
Trustee on the U.S. Government Obligations deposited in trust thereunder in
additional U.S. Government Obligations and (2) enable the Corporation to
withdraw monies or U.S. Government Obligations from the trust from time to time;
provided, that the condition specified in Section 8.02(1) or 8.03(1) is
satisfied immediately following any investment of such money by the Trustee or
the withdrawal of monies or U.S. Government Obligations from the trust by the
Corporation as the case may be.
SECTION 8.05. Repayment to Corporation. The Trustee and the Paying Agent shall
promptly pay to the Corporation upon request any excess money or securities held
by them at any time. The Trustee and the Paying Agent shall pay, unless
otherwise prohibited by mandatory provisions of applicable escheat or abandoned
or unclaimed property law, to the Corporation upon request any money held by
them for the payment of principal or interest, if any, that remains unclaimed
for two years.
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders. The Corporation may amend or
supplement this Indenture or the Securities of any series without notice to or
consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article 5;
(3) to provide for uncertificated Securities in addition to or in place
of certificated Securities;
(4) to effectuate or comply with the provisions of Section 2.03(5) or
7.08;
(5) to change or eliminate any of the provisions of this Indenture;
provided, however, that any such change or elimination shall become
effective only when there is no outstanding Security of any series created
prior to the execution of such amendment or supplement that is entitled to
the benefit of such provision;
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(6) to make any change that does not materially adversely affect the
rights of any Holder of any Security of that series; or
(7) to add or change or eliminate any provisions of this Indenture as
shall be necessary or desirable in accordance with any amendments to the
TIA.
The Trustee may waive compliance by the Corporation with any provision of this
Indenture or the Securities of any series without notice to or consent of any
Securityholder if the waiver does not materially adversely affect the rights of
any Holder of any Securities of that series.
SECTION 9.02. With Consent of Holders. The Corporation may amend or supplement
this Indenture or the Securities without notice to any Securityholder but with
the written consent of the Holders of not less than a majority in principal
amount of the Securities of each series affected and the Trustee shall execute
any such amendment or supplement at the direction of the Corporation. The
Holders of a majority in principal amount of the Securities of each series
affected may waive compliance by the Corporation with any provision of this
Indenture or the Securities of each such series without notice to any
Securityholder. However, without the consent of each Securityholder affected, an
amendment, supplement or waiver, including a waiver pursuant to Section 6.04,
may not:
(1) reduce the amount of Securities of any series whose Holders must
consent to an amendment, supplement or waiver;
(2) reduce the rate of or extend the time for payment of interest on any
Security;
(3) reduce the principal of or extend the fixed maturity of any
Security;
(4) reduce the portion of the principal amount of a Discounted Security
payable upon acceleration of its maturity; or
(5) make any Security payable in a currency or currency unit other than
that stated in the Security.
It shall not be necessary for any Act of Holders under this Section to approve
the particular form of any proposed supplement or amendment, but it shall be
sufficient if such Act shall approve the substance thereof.
SECTION 9.03. Compliance with Trust Indenture Act of 1939. Every amendment to
or supplement of this Indenture or the Securities shall comply with the TIA as
then in effect.
SECTION 9.04. Revocation and Effect of Consents. A consent to an amendment,
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supplement or waiver by a Holder of a Security shall bind the Holder and every
subsequent Holder of that Security or portion of the Security that evidences the
same debt as the consenting Holder's Security, even if notation of the consent
is not made on the Security. However, any such Holder or subsequent Holder may
revoke the consent as to his Security or portion of the Security. The Trustee
must receive the notice of revocation before the date the amendment, supplement
or waiver becomes effective.
After an amendment, supplement or waiver becomes effective, it shall bind
every Securityholder unless it makes a change described in clauses (2), (3), (4)
or (5) of Section 9.02. In that case the amendment, supplement or waiver shall
bind each Holder of a Security who has consented to it and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder's Security.
SECTION 9.05. Notation on or Exchange of Securities. If an amendment,
supplement or waiver changes the terms of a Security, the Trustee may require
the Holder of the Security to deliver it to the Trustee. The Trustee may place
an appropriate notation on the Security about the changed terms and return it to
the Holder. Alternatively, if the Corporation or the Trustee so determine, the
Corporation in exchange for the Security shall issue and the Trustee shall
authenticate a new Security that reflects the changed terms.
SECTION 9.06. Trustee to Sign Amendments, etc. The Trustee shall sign any
amendment, supplement or waiver authorized pursuant to this Article if the
amendment, supplement or waiver does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If it does, the Trustee may but need
not sign it. In signing such amendment, supplement or waiver the Trustee shall
be entitled to receive, and (subject to Section 7.01) shall be fully protected
in relying upon, an Opinion of Counsel stating that such amendment, supplement
or waiver is authorized or permitted by this Indenture. The Corporation may not
sign an amendment or supplement unless authorized by an appropriate Board
Resolution.
ARTICLE 10
MISCELLANEOUS
SECTION 10.01. TIA Controls. If any provision of this Indenture limits,
qualifies or conflicts with another provision which is required to be included
in this Indenture by the TIA, the required provision shall control.
SECTION 10.02 Notices. Any notice or communication shall be sufficiently given
if in writing and delivered in person or mailed by first-class mail addressed as
follows:
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if to the Corporation:
Lockheed Martin Corporation
Attention: Treasurer
6801 Rockledge Drive
Bethesda, Maryland 20817
if to the Trustee:
U.S. Bank Trust National Association
100 Wall Street
New York, New York 10005
The Corporation or the Trustee by notice to the other may designate additional
or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Securityholder shall be mailed to the
Securityholder at the Securityholder's address as it appears on the registration
books of the Registrar and shall be sufficiently given if so mailed within the
time prescribed.
Failure to mail a notice of communication to a Securityholder or any defect in
it shall not affect its sufficiency with respect to other Securityholders. If a
notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
SECTION 10.03. Communication by Holders with Other Holders. Securityholders
may communicate pursuant to TIA Section 312(b) with other Securityholders with
respect to their rights under this Indenture or the Securities. The Corporation,
the Trustee, the Registrar and anyone else shall have the protection of TIA
Section 312(c).
SECTION 10.04. Certificate and Opinion as to Conditions Precedent. Upon any
request or application by the Corporation to the Trustee to take any action
under this Indenture, the Corporation shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
SECTION 10.05. Statements Required in Certificate or Opinion. Each certificate
or opinion with respect to compliance with a condition or covenant provided for
in this Indenture shall include:
-43-
<PAGE>
(1) a statement that the person making such certificate or opinion has
read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such person, the person has made
such examination or investigation as is necessary to enable the person to
express an informed opinion as to whether such covenant or condition has
been complied with;
(4) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with.
SECTION 10.06. When Treasury Securities Disregarded. In determining whether
the Holders of the required principal amount of Securities have concurred in any
direction, waiver or consent, Securities owned by the Corporation or by any
person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Corporation, shall be disregarded, except that
for the purpose of determining whether the Trustee shall be protected in relying
on any such direction, waiver or consent, only Securities which the Trustee
knows are so owned shall be so disregarded. Also, subject to the foregoing, only
Securities outstanding at the time shall be considered in any such
determination.
SECTION 10.07. Rules by Trustee, Paying Agent, Registrar. The Trustee may make
reasonable rules for action by or a meeting of Securityholders. The Paying Agent
or Registrar may make reasonable rules for its functions.
SECTION 10.08. Legal Holidays. A "Legal Holiday" is a Saturday, a Sunday, a
legal holiday or a day on which banking institutions are not required to be
open. If a payment date is a Legal Holiday at a place of payment, payment shall
be made at that place on the next succeeding day that is not a Legal Holiday,
and no interest shall accrue for the intervening period. If a regular record
date is a Legal Holiday in the state or other jurisdiction in which the Trustee
maintains its principal place of business, then the record date shall be the
next succeeding day that is not a Legal Holiday in such state or other
jurisdiction.
SECTION 10.09. Governing Law. The laws of the State of Maryland shall govern
this Indenture and the Securities.
SECTION 10.10. No Adverse Interpretation of Other Agreements. This Indenture
may not be used to interpret another indenture, loan or debt agreement of the
Corporation or any Subsidiary of the Corporation. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
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<PAGE>
SECTION 10.11. No Recourse Against Others. A director, officer, employee or
stockholder (other than the Corporation as issuer of the Debt Securities), as
such, of the Corporation shall not have any liability for any obligation of the
Corporation under the Securities or the Indenture or for any claim based on,
with respect to or by reason of such obligations or their creation. All such
liability is waived and released as a condition of, and as partial consideration
for, the execution of this Indenture and the issue of the Securities.
SECTION 10.12. Securities in a Foreign Currency. Unless otherwise specified in
an Officers' Certificate delivered pursuant to Section 2.01 of this Indenture
with respect to a particular series of Securities, whenever for purposes of this
Indenture any action may be taken by the holders of a specified percentage in
aggregate principal amount of Securities of all series at the time outstanding
and, at such time, there are outstanding Securities of any series which are
denominated in a Foreign Currency, then the principal amount of Securities of
such series which shall be deemed to be outstanding for the purpose of taking
such action shall be that amount of Dollars that could be obtained for such
amount at the Market Exchange Rate on the record date fixed for such action or,
if no record date is fixed, on the New York Banking Day immediately preceding
the date of such action.
SECTION 10.13. Judgment Currency. If, for the purpose of obtaining a judgment
in any court with respect to any obligation of the Corporation hereunder or
under any Security or any related coupon it shall become necessary to convert
into any other currency or currency unit any amount in the currency or currency
unit due hereunder or under such Security or coupon then such conversion shall
be made by the Currency Determination Agent at the Market Exchange Rate as in
effect on the date of entry of the judgment (the "Judgment Date"). If pursuant
to any such judgment, conversion shall be made on a date (the "Substitute Date")
other than the Judgment Date and there shall occur a change between the Market
Exchange Rate as in effect on the Judgment Date and the Market Exchange Rate as
in effect on the Substitute Date, the Corporation agrees to pay such additional
amounts (if any) as may be necessary to ensure that the amount paid is equal to
the amount in such other currency or currency unit which, when converted at the
Market Exchange Rate as in effect on the Judgment Date, is the amount due
hereunder or under such Security or coupon. Any amount due from the Corporation
under this Section shall be due as a separate debt and is not to be affected by
or merged into any judgment being obtained for any other sums due hereunder or
with respect to any Security or coupon. In no event, however, shall the
Corporation be required to pay more in the currency or currency unit due
hereunder or under such Security or coupon at the Market Exchange Rate as in
effect on the Judgment Date than the amount of currency or currency unit stated
to be due hereunder or under such Security or coupon so that in any event the
Corporation's obligations hereunder or under such Security or coupon will be
effectively maintained as obligations in such currency or currency unit, and the
Corporation shall be entitled to withhold (or be reimbursed for, as the case may
be) any excess of the amount actually realized upon any such conversion on the
Substitute Date over the amount due and payable on the Judgment Date.
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<PAGE>
SECTION 10.14. Successors. All agreements of the Corporation in this Indenture
and the Securities shall bind its successor. All agreements of the Trustee in
this Indenture shall bind its successor.
SECTION 10.15. Duplicate Originals. The parties may sign any number of copies
of this Indenture. One signed copy is enough to prove this Indenture.
SECTION 10.16. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Corporation.
Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 7.1(e)) conclusive in favor of the Trustee and
the Corporation, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgements of deeds, certifying that the individual signing
such instrument or writing acknowledged to such officer the execution thereof.
Where such execution is by a signer acting in a capacity other than such
signer's individual capacity, such certificate or affidavit shall also
constitute sufficient proof of such signer's authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
(c) The Corporation may, in the circumstances permitted by the TIA, fix
any day as the record date for the purpose of determining the Holders of
Securities of any series entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action, or to vote on
any action, authorized or permitted to be given or taken by Holders of
Securities of such series. If not set by the Corporation prior to the first
solicitation of a Holder of Securities of such series made by any person in
respect of any such action, or, in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 30th day (or, if
later, the date of the most recent list of Holders required to be provided
pursuant to Section 2.6) prior to such first solicitation or vote, as the case
may be. With regard to any record date for action to be taken by the Holders of
one or more series of Securities, only the Holders of Securities of such series
on such date (or their duly designated proxies) shall be entitled to give
or take, or vote on, the relevant action.
-46-
<PAGE>
SIGNATURES
Attest: LOCKHEED MARTIN CORPORATION
___________________________ By:___________________________
Secretary
Attest: U.S. BANK TRUST NATIONAL ASSOCIATION
as Trustee
___________________________ By:___________________________
Secretary
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<PAGE>
EXHIBIT 4.2
[If the Note [Debenture] is a Discounted Security, insert -- FOR
--------------------------------------------------------
PURPOSES OF SECTIONS 1273 AND 1275 OF THE INTERNAL REVENUE CODE,
THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THIS NOTE [DEBENTURE] IS
% OF ITS PRINCIPAL AMOUNT, THE ISSUE DATE IS ,
THE YIELD TO MATURITY IS %, THE AMOUNT OF ORIGINAL ISSUE
DISCOUNT APPLICABLE TO THE SHORT ACCRUAL PERIOD OF 19 TO 19 ,
IS % OF THE PRINCIPAL AMOUNT OF THIS SECURITY AND THE
METHOD USED TO DETERMINE THE SHORT ACCRUAL PERIOD ORIGINAL ISSUE
DISCOUNT IS THE METHOD.]
[FORM OF U.S.$ DENOMINATED NOTE/DEBENTURE]
No. $______________
LOCKHEED MARTIN CORPORATION
[_____%] [Floating Rate] [Zero Coupon] Note [Debenture] Due ____
LOCKHEED MARTIN CORPORATION, a Maryland corporation, for value received, hereby
promises to pay to _________________________
__________________________________________ or registered assigns, the principal
sum of ____________________________________ Dollars on _____________.
Interest Payment Dates: __________ and __________ [if applicable]
Record Dates: __________ and __________ [if applicable]
Additional provisions of this Note [Debenture] are set forth on the other side
of this Note [Debenture].
LOCKHEED MARTIN CORPORATION
By:_________________________(SEAL)
[Authorized Officer]
__________________________________
Secretary
<PAGE>
Dated:
Authenticated:
This is one of the Securities
of the series designated herein
and referred to in the
within-mentioned Indenture.
U.S. Bank Trust National Association, as Trustee
By:__________________________
[If an Authenticating Agent
has been appointed insert:
This is one of the Securities
referred to in the within-
mentioned Indenture.
U.S. Bank Trust National Association, as Trustee
By:__________________________
as Authenticating Agent
By:__________________________
Authorized Officer]
-2-
<PAGE>
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, TO THE CORPORATION OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS IS REQUESTED BY A REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES [DEBENTURES]
IN DEFINITIVE FORM, THIS NOTE [DEBENTURE] 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 BY THE
DEPOSITARY OR ANY NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF ANY
SUCCESSOR DEPOSITARY.]
LOCKHEED MARTIN CORPORATION
[_____%] [Floating Rate] [Zero Coupon] Note [Debenture] Due _____
1. Interest. Lockheed Martin Corporation ("Corporation"), a Maryland
corporation, promises to pay interest on the principal amount of this Note
[Debenture] at the rate per annum [shown above] [determined as set forth below].
The Corporation will pay interest semiannually on __________ and __________ of
each year. Interest on the Notes [Debentures] will accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from the
date hereof. Interest will be computed on the basis of a 360-day year of twelve
30-day months.
[If the Note [Debenture] is a Floating Rate Note [Debenture], insert
------
method of determining interest rates and giving of notice thereof including
- -----------------------------------------------------------------------------
identity of the Paying Agent.]
- -----------------------------
[If the Note [Debenture] is not to bear interest prior to maturity,
insert--The principal of this Note [Debenture] shall not bear interest.]
2. Method of Payment. The Corporation will pay interest on the Notes
[Debentures] (except defaulted interest, which shall be paid as set forth below)
to the persons who are registered Holders of Notes [Debentures] at the close of
business on the record date for the next interest payment date even though the
Notes [Debentures] are cancelled after the record date and on or before the
interest payment date. Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such regular record date
and may either be paid to the Person in whose name this Note [Debenture] (or one
or more predecessor Notes [Debentures]) is registered at the close of business
on a special record date for the payment of such defaulted interest to be fixed
by the Corporation, notice whereof shall be given to Holders of Notes
[Debentures] not less than 15 days prior to such special record date, or may be
paid at any time in any other lawful manner [not inconsistent with the
requirements of any securities exchange on which the Note [Debenture] may be
listed, and upon such notice as may be required by such exchange], all as more
fully provided in the Indenture. Holders must surrender the Notes [Debentures]
to a Paying Agent to collect principal payments. The Corporation will pay
principal and interest in money of the United States that at the time of payment
is legal tender for payment of public and private debts. However, the
Corporation may pay principal and interest by its check payable in such money.
It may mail an interest check to a Holder's registered address. To the extent
lawful, the Corporation shall pay interest on overdue principal at the rate
borne by the Notes [Debentures] and shall pay interest on overdue
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<PAGE>
installments of interest at the same rate.
3. Paying Agent and Registrar. Initially, U.S. Bank Trust National
Association ("Trustee"), will act as Paying Agent and Registrar. The Corporation
may change any Paying Agent, Registrar or co-registrar without notice. The
Corporation or any of its Subsidiaries (as defined in the Indenture) may act as
Paying Agent, Registrar or co-registrar.
4. Indenture. The Corporation issued the Notes [Debentures] under an
Indenture dated as of __________ __, _____ ("Indenture"), between the
Corporation and the Trustee. The terms of the Notes [Debentures] include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939 (15 U.S. Code (SS) 77aaa-77bbbb) ("Act"). The Notes
[Debentures] are subject to all such terms, and Holders are referred to the
Indenture, all applicable supplemental indentures and the Act for a statement of
those terms. As provided in the Indenture, the Notes [Debentures] may be issued
in one or more series, which different series may be issued in various aggregate
principal amounts, may mature at different times, may bear interest, if any, at
different rates, may be subject to different redemption provisions, if any, may
be subject to different sinking, purchase or analogous funds, if any, may be
subject to different covenants and Events of Default and may otherwise vary as
in the Indenture provided or permitted. This Note [Debenture] is one of a
series of the Notes [Debentures] designated on the face hereof, unlimited in
aggregate principal amount.
[If the Notes [Debentures] of this series are subject to optional
redemption insert -- 5. Optional Redemption. The Corporation may redeem all the
Notes [Debentures] at any time, or some of them from time to time, on or after
__________, [if the Notes [Debentures] are not Discounted Securities insert-- at
_____% of the principal amount of the Notes [Debentures], plus accrued interest
to the redemption date].
[If the Notes [Debentures] are Discounted Securities insert formula for
------------------
optional redemption.]
- --------------------
[If the Notes [Debentures] are not subject to optional redemption
insert -- 5. Redemption. The Notes [Debentures] are not redeemable by the
Corporation.]
[If the Notes [Debentures] of this series are subject to redemption
insert -- 6. Notice of Redemption. Notice of redemption will be mailed at least
20 days but not more than 60 days before the redemption date to each Holder of
Notes [Debentures] to be redeemed at such Holder's registered address. Notes
[Debentures] in a denomination larger than $1,000 may be redeemed in part but
only in whole multiples of $1,000. On and
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<PAGE>
after the redemption date interest ceases to accrue on Notes [Debentures] or
portions of them called for redemption.]
7. Denominations; Transfer; Exchange. The Notes [Debentures] are in
registered form without coupons in denominations of $1,000 and any multiple of
$1,000. A Holder may transfer or exchange Notes [Debentures] in accordance with
the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay any taxes and
fees required by law or permitted by the Indenture. Also, it need not transfer
or exchange any Notes [Debentures] for a period of 15 days before a selection of
Notes [Debentures] to be redeemed or before an interest payment date.
This Note [Debenture] is issued in the form of a Global Security and
is exchangeable in whole, but not in part, for Notes [Debentures] registered in
the names of persons other than the Depositary or its nominee or in the name of
a successor to the Depositary or a nominee of such successor depositary only if
(i) the Depositary notifies the Corporation that it is unwilling or unable to
continue as Depositary for this Note [Debenture] or if at any time such
Depositary shall no longer be registered or in good standing under the
Securities Exchange Act of 1934, as amended, or other applicable statute or
regulation, and, in either case, a successor depositary is not appointed by the
Corporation within 90 days of the receipt by the Corporation of such notice or
of the Corporation becoming aware of such condition, or (ii) the corporation in
its discretion at any time determines not to have all of the Notes [Debentures]
represented by one or more Global Security or Securities. If this Note
[Debenture] is exchangeable pursuant to the preceding sentence, it shall be
exchangeable for Notes [Debentures] of like tenor and terms in definitive form
in aggregate principal amount equal to the principal amount of the Global
Security. Subject to the foregoing, this Note [Debenture] is not exchangeable,
except for a Note [Debenture] or Notes [Debentures]of the same aggregate
denominations to be registered in the name of such Depositary or its nominee or
in the name of a successor to the Depositary or a nominee of such successor
depositary.
8. Persons Deemed Owners. The registered Holder of this Note [Debenture] may
be treated as the owner of it for all purposes, and neither the Corporation, the
Trustee, nor any Registrar, Paying Agent or co-registrar shall be affected by
notice to the contrary.
9. Unclaimed Money. If money for the payment of principal or interest
remains unclaimed for two years, the Trustee or Paying Agent will pay, unless
otherwise prohibited by mandatory provisions of applicable abandoned property
law, the money back to the Corporation at its request. After that, Holders
entitled to unclaimed money must look only to the Corporation and not to the
Trustee for payment unless an abandoned property law designates another person.
10. Defeasance. The Corporation may discharge or defease certain of its
obligations with respect to the Notes [Debentures] by irrevocably depositing
with the Trustee, in trust, cash or government securities sufficient to pay all
sums due on the Notes [Debentures]. The establishment of such a trust will be
conditioned on the delivery by the Corporation to the Trustee of an opinion of
counsel, who may be counsel to the Corporation, to the effect that, based on
applicable U.S. federal income tax law or a ruling published by the United
States Internal Revenue Service, the defeasance and discharge will not be
deemed, or result in, a taxable event with respect to the Holders of the Notes
[Debentures].
11. Amendment; Supplement; Waiver. Subject to certain exceptions as therein
provided, the Indenture or the Notes [Debentures] may be amended or supplemented
with the written consent of the Holders of not less than a majority in principal
amount of the Notes [Debentures], and, subject to certain exceptions and
limitations as provided in the Indenture, any past default or compliance with
any provision may be waived with the consent of the Holders of a majority in
principal amount of the Notes [Debentures]. Without the consent of any Holder,
the Indenture or the Notes [Debentures] may be amended or supplemented, for
among other reasons, to cure any ambiguity, omission, defect or inconsistency,
to provide for uncertificated Notes [Debentures] in addition to or in place of
certificated Notes [Debentures] or to make any change that does not materially
adversely affect the rights of any Holder. Without the consent of any Holder,
the Trustee may waive compliance with any provision of the Indenture or the
Notes [Debentures] if the waiver does not materially adversely affect the rights
of any Holder.
-5-
<PAGE>
12. Restrictive Covenants. The Indenture does not limit unsecured debt of
the Corporation or any of its Subsidiaries. It does limit certain mortgages,
liens and sale-leaseback transactions. The limitations are subject to a number
of important qualifications and exceptions. Once a year the Corporation must
report to the Trustee on compliance with the limitations.
13. Successors. When a successor entity assumes all the obligations of the
Corporation or its successors under the Notes [Debentures] and the Indenture,
the predecessor corporation will be released from those obligations.
14. Defaults and Remedies. An Event of Default is: default for 30 days in
payment of any interest on the Notes [Debentures]; default in payment of any
principal on the Notes [Debentures]; failure by the Corporation for 90 days
after notice to it to comply with any of its other agreements in the Indenture
or the Notes [Debentures]; and certain events of bankruptcy or insolvency. [If
--
the Note [Debenture] is not an Original Issue Discount Note [Debenture],
- ----------------------------------------------------------------------
insert -- If an Event of Default with respect to Notes [Debentures] of this
series shall occur and be continuing, the principal of the Notes [Debentures] of
this series and accrued interest thereon may be declared due and payable in the
manner and with the effect provided in the Indenture. [If the Note [Debenture]
-----------------------
is an Original Issue Discount Note [Debenture], insert -- If an Event of Default
- ---------------------------------------------
with respect to Notes of this series shall occur and be continuing, an amount of
principal of the Notes [Debentures] of this series and accrued interest thereon
may be declared due and payable in the manner and with the effect provided in
the Indenture. Such amount shall be equal to insert formula or cross reference
---------------------------------
to redemption provisions for determining the amount].] Holders of Notes
- ---------------------------------------------------
[Debentures] may not enforce the Indenture or the Notes [Debentures] except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Notes [Debentures] unless it receives indemnity satisfactory to it. Subject
to certain limitations, Holders of a majority in principal amount of the Notes
[Debentures] may direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Holders notice of any continuing default (except a
default in payment of principal or interest) if a committee of its trust
officers in good faith determines that withholding notice is in the interests of
such Holders.
15. Trustee Dealings with the Corporation. U.S. Bank Trust National
Association, the Trustee under the Indenture, in its individual or any other
capacity may make loans to, accept deposits from and perform services for the
Corporation or any of its affiliates, and may otherwise deal with the
Corporation or its affiliates as if it were not Trustee.
-6-
<PAGE>
16. No Recourse Against Others. A director, officer, employee or
stockholder, as such, of the Corporation shall not have any liability for any
obligations of the Corporation under the Notes [Debentures] or the Indenture or
for any claim based on, in respect of, or by reason of such obligations or their
creation. Each Holder by accepting a Note [Debenture] waives and releases all
such liability. This waiver and release are part of the consideration for the
issue of the Notes [Debentures].
17. Authentication. This Note [Debenture] shall not be valid until the
Trustee manually signs the certificate of authentication on the other side of
this Note [Debenture].
18. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts
to Minors Act).
19. CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee
on Uniform Security Identification Procedures, the Corporation had caused CUSIP
numbers to be printed on the Note [Debenture] and has directed the Trustee to
use CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to accuracy of any of such numbers either as printed
on the Note [Debenture] or as contained in any notice of redemption and reliance
may be placed only on the other identification numbers placed thereon.
20. Miscellaneous. This Note [Debenture] shall for all purposes be governed
by, and construed in accordance with, the laws of the State of Maryland.
All terms used in this Note [Debenture] which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
-7-
<PAGE>
The Corporation will furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to: Lockheed Martin
Corporation, 6801 Rockledge Drive, Bethesda, Maryland 20817, Attention:
Secretary.
_____________________________
I or we assign and transfer to
Insert social security or other identifying number of assignee
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
(Print or type name, address and zip code of assignee)
this Note [Debenture] and irrevocably appoint ___________________ agent to
transfer this Note [Debenture] on the books of the Corporation. The agent may
substitute another to act for him.
Dated: _______________________________________________________
Signed: _______________________________________________________
(Sign exactly as name appears on the other side of this
Note [Debenture])
Signature Guarantee: _____________________________
(Signature must be guaranteed
by an eligible institution
within the meaning of Rule
17A(d)-15 under the
Securities Exchange Act of
1934, as amended)
-8-
<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) _________
U.S. BANK TRUST NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
13-3781471
(I. R. S. Employer
Identification No.)
100 Wall Street, New York, NY 10005
(Address of principal executive offices) (Zip Code)
----------------------------------
For information, contact:
Terry L. McRoberts, President
U.S. Bank Trust National Association
100 Wall Street, 16th Floor
New York, NY 10005
Telephone: (212) 361-2506
LOCKHEED MARTIN CORPORATION
(Exact name of obligor as specified in its charter)
Maryland 52-1893632
(State or other jurisdiction of (I. R. S. Employer
incorporation or organization) Identification No.)
Lockheed Martin Corporation
6801 Rockledge Drive
Bethesa, Maryland 20817
(Address of principal executive offices) (Zip Code)
----------------------------------
DEBT 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.
Name Address
---- -------
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.
None.
Item 16. List of Exhibits.
Exhibit 1. Articles of Association of U.S. Bank Trust National
Association, incorporated herein by reference to
Exhibit 1 of Form T-1, Registration No. 333-51961.
Exhibit 2. Certificate of Authority to Commence Business for
First Trust of New York, National Association now
known as U.S. Bank Trust National Association,
incorporated herein by reference to Exhibit 2 of
Form T-1, Registration No. 33-83774.
Exhibit 3. Authorization to exercise corporate trust powers
for U.S. Bank Trust National Association,
incorporated herein by reference to Exhibit 3 of
Form T-1, Registration No. 333-51961.
Exhibit 4. By-Laws of U.S. Bank Trust National Association,
incorporated herein by reference to Exhibit 4 of
Form T-1, Registration No. 333-51961.
Exhibit 5. Not applicable.
Exhibit 6. Consent of First Trust of New York, National
Association now known as U.S. Bank Trust National
Association, required by Section 321(b) of the Act,
incorporated herein by reference to Exhibit 6 of
Form T-1, Registration No. 33-83774.
<PAGE>
Exhibit 7. Report of Condition of U.S. Bank Trust National
Association, as of the close of business on
September 30, 1999, published pursuant to law or
the requirements of its supervising or examining
authority.
Exhibit 8. Not applicable.
Exhibit 9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, U.S. Bank Trust National Association, a national banking
association organized and existing under the laws of the United States, has duly
caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 7th day of April, 2000.
U.S. BANK TRUST
NATIONAL ASSOCIATION
By: /s/ K. Wendy Kumar
------------------------
K. Wendy Kumar
Vice President
<PAGE>
Exhibit 7
---------
U.S. Bank Trust National Association
Statement of Financial Condition
As of 12/31/1999
($000's)
<TABLE>
<CAPTION> 12/31/1999
------------
<S> <C>
Assets
Cash and Due From Depository Institutions $ 48,229
Federal Reserve Stock 3,346
Fixed Assets 391
Intangible Assets 61,796
Other Assets 8,123
---------
Total Assets $121,885
Liabilities
Other Liabilities 10,474
---------
Total Liabilities $ 10,474
Equity
Common and Preferred Stock 1,000
Surplus 120,932
Undivided Profits (10,521)
Total Equity Capital $111,411
---------
Total Liabilities and Equity Capital $121,885
</TABLE>
- --------------------------------------------------------------------------------
To the best of the undersigned's determination, as of this date the above
financial information is true and correct.
U.S. Bank Trust National Association
By: /s/ K. Wendy Kumar
----------------------
Vice President
Dated: April 7, 2000
