Martin Marietta Materials, Inc.
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT
TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): April 25, 2007
Martin Marietta Materials, Inc.
(Exact name of Registrant as specified in its charter)
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North Carolina
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56-1848578 |
(State or other jurisdiction of
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(I.R.S. Employer |
incorporation or organization)
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Identification No.) |
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2710 Wycliff Road, Raleigh, North Carolina
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27607 |
(Address of principal executive offices)
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(Zip code) |
(919) 781-4550
(Registrants telephone number including area code)
Not applicable
(Former name and former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions:
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item 1.01. Entry into a Material Definitive Agreement
Item 2.03 Creation of a Direct Financial Obligation or an Obligation Under an Off-Balance Sheet
Arrangement of the Registrant
On April 30, 2007, Martin Marietta Materials, Inc. (the Company) consummated its offerings of (i)
$225,000,000 aggregate principal amount of its Floating Rate Senior Notes due 2010 (the Floating
Rate Notes) and (ii) $250,000,000 aggregate principal amount of its 6 1/4% Senior Notes due 2037
(the Fixed Rate Notes and together with the Floating Rate Notes, the Notes).
The Notes were offered pursuant to the Companys effective Registration Statement on Form S-3 (File
No. 333-142343) under the Securities Act of 1933, as amended.
The Floating Rate Notes were issued under that certain Indenture, dated as of April 30, 2007 (the
Base Indenture), between the Company and Branch Banking and Trust Company, Inc., as trustee (the
Trustee), as supplemented by the First Supplemental Indenture, dated as of April 30, 2007 (the
First Supplemental Indenture and together with the Base Indenture, the Floating Rate Notes
Indenture), between the Company and the Trustee. The Fixed Rate Notes were issued under the Base
Indenture as supplemented by the Second Supplemental Indenture, dated as April 30, 2007 (the
Second Supplemental Indenture and together with the Base Indenture, the Fixed Rate Notes
Indenture), between the Company and the Trustee.
The Notes are senior unsecured obligations of the Company, ranking equal in right of payment with
all the Companys existing and future unsubordinated indebtedness.
The Floating Rate Notes were priced to investors at 100% of the principal amount. The Fixed Rate
Notes were priced to investors at 99.986% of the principal amount. The Floating Rate Notes will
mature on April 30, 2010. Interest on the Floating Rate Notes will be payable on January 30, April
30, July 30 and October 30 of each year, beginning on July 30, 2007. The Floating Rate Notes have
an interest rate of three-month LIBOR plus 0.15% per year. The Fixed Rate Notes will mature on May
1, 2037. Interest on the Fixed Rate Notes will be payable on May 1 and November 1 of each year,
beginning on November 1, 2007.
The Company may not redeem the Floating Rate Notes. The Company may redeem the Fixed Rate Notes in
whole or in part at any time prior to their maturity at a redemption price equal to the greater of
100% of the principal amount of the Fixed Rate Notes to be redeemed and the make whole amount,
which is generally, the present value of principal and the remaining interest discounted at the
treasury rate plus 25 basis points.
Upon a change of control repurchase event, the Company will be required to make an offer to
repurchase all outstanding Notes at a price in cash equal to 101% of the principal amount of the
Notes, plus any accrued and unpaid interest to, but not including, the purchase date.
The Base Indenture, the First Supplemental Indenture and the Second Supplemental Indenture are
filed as Exhibits 4.1, 4.2 and 4.3, respectively, to this Form 8-K and are incorporated herein
by reference. The descriptions of the material terms of each of the Base Indenture, the
First Supplemental Indenture and the Second Supplemental Indenture are qualified in their entirety
by reference to such exhibits.
On April 25, 2007, the Company entered into an underwriting agreement, with J.P. Morgan Securities
Inc., Banc of America Securities LLC and Citigroup Global Markets Inc., as Representatives of the
several underwriters named therein relating to the underwritten public offering of the Notes (the
Underwriting Agreement). Pursuant to the terms of the Underwriting Agreement, the Company sold
the Floating Rate Notes to the Underwriters at a price of 99.650% of the principal amount thereof
and the Fixed Rate Notes at a price of 99.111% of the principal amount thereof. The Underwriting
Agreement contains usual and customary terms, conditions, representations and warranties and
indemnification provisions.
The
Underwriting Agreement is filed as Exhibit 1.1 to this Form 8-K and is incorporated herein by
reference. The description of the material terms of the Underwriting Agreement is qualified in
their entirety by reference to such exhibit.
Opinions of Willkie Farr & Gallagher LLP and Robinson, Bradshaw & Hinson, P.A. with respect to the
validity of the Notes are attached hereto as Exhibits 5.1 and 5.2, respectively, and are
incorporated herein by reference.
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Item 9.01. Financial Statements and Exhibits.
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1.1 |
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Underwriting Agreement, dated April 25, 2007, among Martin
Marietta Materials, Inc. and J.P. Morgan Securities Inc., Banc of America
Securities LLC and Citigroup Global Markets Inc., as Representatives of the
several underwriters named therein. |
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4.1 |
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Indenture, dated as of April 30, 2007, between Martin Marietta
Materials, Inc. and Branch Banking and Trust Company, Inc., as trustee. |
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4.2 |
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First Supplemental Indenture, dated as of April 30, 2007,
between Martin Marietta Materials, Inc. and Branch Banking and Trust Company,
Inc., as trustee, to that certain Indenture, dated as of April 30, 2007,
between Martin Marietta Materials, Inc. and Branch Banking and Trust Company,
Inc., as trustee. |
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4.3 |
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Second Supplemental Indenture, dated as of April 30, 2007,
between Martin Marietta Materials, Inc. and Branch Banking and Trust Company,
Inc., as trustee, to that certain Indenture, dated as of April 30, 2007,
between Martin Marietta Materials, Inc. and Branch Banking and Trust Company,
Inc., as trustee. |
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5.1 |
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Opinion of Willkie Farr & Gallagher LLP. |
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5.2 |
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Opinion of Robinson, Bradshaw & Hinson, P.A. |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
Martin Marietta Materials, Inc.
By: /s/ Roselyn R. Bar
Name: Roselyn R. Bar
Title: Senior Vice President and General Counsel
Dated: April 30, 2007
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Exhibit 1.1
Exhibit 1.1
Underwriting Agreement
April 25, 2007
J.P. Morgan Securities Inc.
Banc of America Securities LLC
Citigroup Global Markets Inc.
As Representatives of the
several Underwriters listed
in Schedule 1 hereto
c/o J.P. Morgan Securities Inc.
270 Park Avenue
New York, NY 10017
Ladies and Gentlemen:
Martin Marietta Materials, Inc., a North Carolina corporation (the Company), proposes to
issue and sell to the several Underwriters listed in Schedule 1 hereto (the Underwriters), for
whom J.P. Morgan Securities Inc., Banc of America Securities LLC and Citigroup Global Markets Inc.
are acting as representatives (collectively, the Representatives), $225,000,000 principal amount
of its Floating Rate Senior Notes due 2010 having the terms set forth in Schedule 2A hereto (the
Floating Rate Senior Notes) and $250,000,000 principal amount of its 6 1/4% Fixed Rate Senior
Notes due 2037 having the terms set forth in Schedule 2B hereto (the Fixed Rate Senior Notes and
collectively with the Floating Rate Senior Notes, the Securities). The Floating Rate Senior
Notes will be issued pursuant to a base indenture to be dated as of the Closing Date (the Base
Indenture) between the Company and Branch Banking & Trust Company, as trustee (the Trustee) as
supplemented by the supplemental indenture relating to the Floating Rate Senior Notes to be dated
as of the Closing Date (the Supplemental Indenture, and together with the Base Indenture, the
Floating Rate Indenture). The Fixed Rate Senior Notes will be issued pursuant to the Base
Indenture, as supplemented by the supplemental indenture relating to the Fixed Rate Senior Notes to
be dated the Closing Date (the Fixed Rate Supplemental Indenture and together with the Base
Indenture, the Fixed Rate Indenture). The Floating Rate Indenture and the Fixed Rate Indenture
are collectively referred to as the Indenture.
The Company agrees to issue and sell the Securities to the several Underwriters as provided in
this Agreement, and each Underwriter, on the basis of the representations, warranties and
agreements set forth herein and subject to the
conditions set forth herein, agrees, severally and not jointly, to purchase from the Company
the respective principal amount of Securities set forth opposite such Underwriters name in
Schedule 1 hereto at a price equal to 99.650% of the principal amount thereof with respect to the
Floating Rate Senior Notes and 99.111% of the principal amount with respect to the Fixed Rate
Senior Notes, in each case, plus accrued interest, if any, from April 30, 2007 to the Closing Date.
The Company will not be obligated to deliver any of the Securities except upon payment for all the
Securities to be purchased as provided herein.
The Company understands that the Underwriters intend to make a public offering of each series
of Securities as soon after the effectiveness of this Agreement as in the judgment of the
Representatives is advisable, and to offer the Securities on the terms set forth in the Time of
Sale Information and the Prospectus. Schedule 3 hereto sets forth the Time of Sale Information
made available at the Time of Sale. The Company acknowledges and agrees that the Underwriters may
offer and sell Securities to or through any affiliate of an Underwriter and that any such affiliate
may offer and sell Securities purchased by it to or through any Underwriter.
Payment for and delivery of the Securities shall be made at the offices of Skadden, Arps,
Slate, Meagher & Flom LLP at 10:00 A.M., New York City time, on April 30, 2007, or at such other
time or place on the same or such other date, not later than the fifth business day thereafter, as
the Representatives and the Company may agree upon in writing.
Payment for the Securities shall be made by wire transfer in immediately available funds to
the account(s) specified by the Company to the Representatives against delivery to the nominee of
The Depository Trust Company, for the account of the Underwriters, of one or more global notes
representing the Securities (collectively, the Global Notes), with any transfer taxes payable in
connection with the sale of the Securities duly paid by the Company. The Global Notes will be made
available for inspection by the Representatives not later than 1:00 P.M., New York City time, on
the business day prior to the Closing Date.
The Company and the Underwriters acknowledge and agree that the only information relating to
any Underwriter that has been furnished to the Company in writing by any Underwriter through the
Representatives expressly for use in the Registration Statement, the Prospectus (or any amendment
or supplement thereto) any Issuer Free Writing Prospectus or any Time of Sale Information and any
Preliminary Prospectus consists of the following: the list of underwriters in the offering set
forth in the table below the first paragraph, the second and third sentences of the third paragraph
and the sixth paragraph, under the caption Underwriting in the Prospectus.
All provisions contained in the document entitled Martin Marietta Materials, Inc. Debt
Securities Underwriting Agreement Standard Provisions (the Standard Provisions), attached as
Annex I hereto, are incorporated by reference herein in their entirety and shall be deemed to be a
part of this Underwriting Agreement to the same extent as if such provisions had been set forth in
full herein, except that if any term
defined in such Underwriting Agreement Standard Provisions is otherwise defined herein, the
definition set forth herein shall control.
In addition to the representations, warranties and conditions contained in the Standard
Provisions, the Company hereby represents and warrants that Amendment No. 1 to the Five-Year
Credit Agreement, dated as of June 30, 2005, among the Company, the lenders listed therein,
JPMorgan Chase Bank, N.A., as administrative Agent, Bank of America, N.A., BNP Paribas, Branch
Banking and Trust Company and Wachovia Bank, National Association, as Co-Syndication Agents (the
Credit Agreement Amendment) has been duly authorized, executed and delivered by the Company, and
constitutes the valid and legally binding obligation of the Company enforceable against the Company
in accordance with its terms, subject to the Enforceability Exceptions. For purposes of this
Agreement, the definition of Transaction Documents in the Standard Provisions shall be deemed to
include the Credit Agreement Amendment.
This Agreement may be signed in counterparts (which may include counterparts delivered by any
standard form of telecommunication), each of which shall be an original and all of which together
shall constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please indicate your acceptance of
this Agreement by signing in the space provided below.
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Very truly yours, |
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MARTIN MARIETTA MATERIALS, INC. |
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By:
Name:
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/s/ Roselyn R. Bar
Roselyn R. Bar
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Title:
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Senior Vice President and
General Counsel |
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Accepted: April 25, 2007
For themselves and on behalf of the
several Underwriters listed
in Schedule 1 hereto. |
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J.P. Morgan Securities Inc. |
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By:
Name:
Title:
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/s/ Stephen L. Sheiner
Stephen L. Sheiner
Vice President
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Banc of America Securities LLC |
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By:
Name:
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/s/ Lily Chang
Lily Chang
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Title:
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Principal |
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Citigroup Global Markets Inc. |
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By:
Name:
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/s/ Brian D. Bednarski
Brian D. Bednarski
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Title:
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Director |
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Schedule 1
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Principal Amount |
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Principal Amount of |
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of Floating Rate |
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Fixed Rate Senior |
Underwriter |
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Senior Notes |
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Notes |
J.P. Morgan Securities Inc. |
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$ |
72,000,000 |
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$ |
80,000,000 |
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Banc of America Securities LLC |
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60,750,000 |
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67,500,000 |
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Citigroup Global Markets Inc. |
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45,000,000 |
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50,000,000 |
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Wachovia Capital Markets, LLC |
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20,250,000 |
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22,500,000 |
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BB&T Capital Markets, a Division
of Scott &Stringfellow, Inc. |
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13,500,000 |
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15,000,000 |
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Wells Fargo Securities, LLC |
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13,500,000 |
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15,000,000 |
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Total |
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$ |
225,000,000 |
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$ |
250,000,000 |
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Schedule 2A
Certain Terms of the Floating Rate Senior Notes:
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Title of Securities:
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Floating Rate Senior Notes due 2010 |
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Aggregate Principal
Amount of Securities:
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$225,000,000 |
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Maturity Date:
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April 30, 2010 |
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Interest Rate:
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3 Month LIBOR plus .15% |
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Interest Payment Dates:
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January 30, April 30, July 30 and October 30,
commencing July 30, 2007 |
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Record Dates:
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15 Calendar Days Prior to the Interest Payment dates |
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Redemption
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Not redeemable. |
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Repurchase upon Change
of Control:
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Upon a change of control repurchase event, the
Company will be required to make an offer to
repurchase all outstanding notes of such series at
a price in cash equal to 101% of the principal
amount of the notes, plus any accrued and unpaid
interest to, but not including the purchase date. |
Schedule 2B
Certain Terms of the Fixed Rate Senior Notes:
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Title of Securities:
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6 1/4% Senior Notes due 2037 |
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Aggregate Principal
Amount of Securities:
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$250,000,000 |
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Maturity Date:
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May 1, 2037 |
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Interest Rate:
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6.25% |
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Interest Payment Dates:
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May 1 and November 1, commencing November 1, 2007 |
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Record Dates:
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April 15 and October 15 |
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Redemption Provisions:
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The Company may redeem the fixed rate senior
notes in whole or in part at any time prior to
their maturity at the make whole redemption
price described in the prospectus. |
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Repurchase upon Change
of Control:
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Upon a change of control repurchase event, the
Company will be required to make an offer to
repurchase all outstanding notes of such series
at a price in cash equal to 101% of the principal
amount of the notes, plus any accrued and unpaid
interest to, but not including the purchase date. |
Schedule 3
Time of Sale Information
In each case, as of the time of sale
Basic Prospectus, dated April 25, 2007
Preliminary prospectus supplement included in the Preliminary Prospectus, dated April 25, 2007
Pricing Term Sheet for Floating Rate Senior Notes, dated April 25, 2007
Pricing Term Sheet for Fixed Rate Senior Notes, dated April 25, 2007
Schedule 4A
Martin Marietta Materials, Inc.
Pricing Term Sheet for Floating Rate Senior Notes
$225,000,000
April 25, 2007
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Issuer:
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Martin Marietta Materials, Inc. |
Principal Amount:
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$225,000,000 |
Security Type:
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Floating Rate Senior Note |
Maturity:
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April 30, 2010 |
Coupon:
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3 Month LIBOR plus .15% |
Price to Public:
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100% |
Interest Payment and Reset Dates:
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January 30, April 30, July 30 and
October 30, commencing July 30, 2007 |
Day Count Convention:
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Actual/360 |
Trade Date:
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April 25, 2007 |
Settlement Date:
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April 30, 2007 (T+3) |
Net Proceeds Before Expenses:
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$224,212,500 |
Denominations:
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$2,000 x $1,000 |
Anticipated Ratings:
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Baa1/BBB+ |
Joint Book-Running Managers:
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J.P. Morgan Securities Inc.
Banc of America Securities LLC
Citigroup Global Markets Inc. |
Co-Managers:
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Wachovia Capital Markets, LLC
BB&T Capital Markets, a division of
Scott & Stringfellow, Inc.
Wells Fargo Securities, LLC |
A rating reflects only the view of a rating agency and is not a recommendation to buy, sell or
hold the Notes. Any rating can be revised upward or downward or withdrawn at any time by a rating
agency, if it decides that circumstances warrant that change.
The issuer has filed a registration statement (including a prospectus and a prospectus supplement)
with the SEC for the offering to which this communication relates. Before you invest, you should
read the prospectus and prospectus supplement in that registration statement and other documents
the issuer has filed with the SEC for more complete information about the issuer and this offering.
You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov.
Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange
to send you the prospectus and prospectus supplement if you request it by calling collect
1-212-834-4533 or by calling toll free 1-800-294-1322 or 1-877-858-5407.
Any disclaimer or other notice that may appear below is not applicable to this communication and
should be disregarded. Such disclaimer or notice was automatically generated as a result of this
communication being sent by Bloomberg or another email system.
Schedule 4B
Martin Marietta Materials, Inc.
Pricing Term Sheet for Fixed Rate Senior Notes
$250,000,000
April 25, 2007
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Issuer:
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Martin Marietta Materials, Inc. |
Principal Amount:
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$250,000,000 |
Security Type:
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Fixed Rate Senior Note |
Maturity:
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May 1, 2037 |
Coupon:
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6.250% |
Price to Public:
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99.986% |
Yield to maturity:
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6.251% |
Spread to Benchmark Treasury:
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1.40%; 140 bps |
Benchmark Treasury:
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4.500% due February 2036 |
Benchmark Treasury Spot and Yield:
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94-18+ 4.851% |
Interest Payment Dates:
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May 1 and November 1, commencing
November 1, 2007 |
Day Count Convention:
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30/360 |
Denominations:
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$2,000 x $1,000 |
Redemption Provisions: |
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Make-whole call:
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At any time at the greater of 100% and
the make whole amount (the present
value of principal and the remaining
interest discounted at the Treasury
Rate plus 25 basis points) |
Trade Date:
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April 25, 2007 |
Settlement Date:
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April 30, 2007 (T + 3) |
Net Proceeds Before Expenses:
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$247,777,500 |
Anticipated Ratings:
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Baa1/BBB+ |
Joint Book-Running Managers:
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J.P. Morgan Securities Inc.
Banc of America Securities LLC
Citigroup Global Markets Inc. |
Co-Managers:
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Wachovia Capital Markets, LLC
BB&T Capital Markets, a division of
Scott & Stringfellow, Inc.
Wells Fargo Securities, LLC |
A rating reflects only the view of a rating agency and is not a recommendation to buy, sell or
hold the Notes. Any rating can be revised upward or downward or withdrawn at any time by a rating
agency, if it decides that circumstances warrant that change.
The issuer has filed a registration statement (including a prospectus and a prospectus supplement)
with the SEC for the offering to which this communication relates. Before you invest, you should
read the prospectus and prospectus supplement in that registration statement and other documents
the issuer has filed with the SEC for more complete information about the issuer and this offering.
You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov.
Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange
to send you the prospectus and prospectus supplement if you request it by calling collect
1-212-834-4533 or by calling toll free 1-800-294-1322 or 1-877-858-5407.
Any disclaimer or other notice that may appear below is not applicable to this communication and
should be disregarded. Such disclaimer or notice was automatically generated as a result of this
communication being sent by Bloomberg or another email system.
MARTIN MARIETTA MATERIALS, INC.
Debt Securities
Underwriting Agreement Standard Provisions
From time to time, Martin Marietta Materials, Inc., a North Carolina corporation (the
Company), may enter into one or more underwriting agreements in the form of Annex A hereto that
incorporate by reference these Standard Provisions (collectively with these Standard Provisions, an
Underwriting Agreement) that provide for the sale of the securities designated in such
Underwriting Agreement (the Securities) to the several Underwriters named therein (the
Underwriters), for whom the Underwriter(s) named therein shall act as representative (the
Representative). The Underwriting Agreement, including these Standard Provisions, is sometimes
referred to herein as this Agreement. The Securities will be issued pursuant to a base indenture
to be dated as of April 30, 2007 (as may be amended or supplemented, the Indenture) between the
Company and Branch Banking & Trust Company, as trustee (the Trustee).
1. Registration Statement. The Company has prepared and filed with the Securities and
Exchange Commission (the Commission) under the Securities Act of 1933, as amended, and the rules
and regulations of the Commission thereunder (collectively, the Securities Act), a registration
statement on Form S-3 (File No 333-142343), including a prospectus (the Basic Prospectus),
relating to the debt securities to be issued from time to time by the Company. The Company has
also filed, or proposes to file, with the Commission pursuant to Rule 424 under the Securities Act
a prospectus supplement specifically relating to the Securities (the Prospectus Supplement). The
registration statement, as amended at the time it becomes effective, including the information, if
any, deemed pursuant to Rule 430A, 430B or 430C under the Securities Act to be part of the
registration statement at the time of its effectiveness (Rule 430 Information), is referred to
herein as the Registration Statement; and as used herein, the term Prospectus means the Basic
Prospectus as supplemented by the Prospectus Supplement specifically relating to the Securities in
the form first used (or made available upon request of purchasers pursuant to Rule 173 under the
Securities Act) in connection with confirmation of sales of the Securities and the term
Preliminary Prospectus means the preliminary prospectus supplement specifically relating to the
Securities together with the Basic Prospectus. Capitalized terms used but not defined herein shall
have the meanings given to such terms in the Registration Statement and the Prospectus. References
herein to the Registration Statement, the Basic Prospectus, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Securities Act which were filed under the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (the
Exchange Act) on or before the effective date of the Registration Statement or the issue date of
the Basic Prospectus, any Preliminary Prospectus or the Prospectus, as the case may be. The terms
supplement, amendment and amend as used herein as with respect to the Registration Statement,
any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed by the Company under the Exchange Act after the
effective date of the Registration Statement or the issue date of the Securities subsequent to the
date of the Preliminary Prospectus or the Prospectus, as the case may be, deemed to be incorporated
by reference therein. For purposes of this Agreement, the term Effective Time means the
effective date of the Registration Statement with respect to the offering of Securities, as
determined for the Company pursuant to Section 11 of the Securities Act and Item 512 of Regulation
S-K, as applicable.
At or prior to the time when sales of the Securities will be first made (the Time of Sale),
the Company will prepare certain information (collectively, the Time of Sale Information) which
information will be identified in Schedule 3 to the Underwriting Agreement for such offering of
Securities as constituting the Time of Sale Information.
2. Purchase of the Securities by the Underwriters. (a) The Company agrees to issue and
sell the Securities to the several Underwriters named in the Underwriting Agreement, and each
Underwriter, on the basis of the representations, warranties and agreements set forth herein and
subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from the
Company the respective principal amount of Securities set forth opposite such Underwriters name in
the Underwriting Agreement at the purchase price set forth in the Underwriting Agreement.
(b) Payment for and delivery of the Securities will be made at the time and place set forth in
the Underwriting Agreement. The time and date of such payment and delivery is referred to herein as
the Closing Date.
(c) The Company acknowledges and agrees that the Underwriters named in the Underwriting
Agreement are acting solely in the capacity of an arms length contractual counterparty to the
Company with respect to any offering of Securities contemplated hereby (including in connection
with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an
agent of, the Company or any other person. Additionally, no such Underwriter is advising the
Company or any other person as to any legal, tax, investment, accounting or regulatory matters in
any jurisdiction. The Company shall consult with its own advisors concerning such matters and
shall be responsible for making its own independent investigation and appraisal of the transactions
contemplated hereby, and such Underwriters shall have no responsibility or liability to the Company
with respect thereto. Any review by such Underwriters named in the Underwriting Agreement of the
Company, the transactions contemplated thereby or other matters relating to such transactions will
be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company.
3. |
|
Representations and Warranties of the Company. The Company represents and warrants
to each Underwriter that: |
(a) Registration Statement and Prospectus. The Registration Statement is an automatic shelf
registration statement as defined under Rule 405 of the Securities Act that has been filed with
the Commission not earlier than three years prior to the date
hereof; and no notice of objection of the Commission to the use of such registration statement
or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has
been received by the Company. No order suspending the effectiveness of the Registration Statement
has been issued by the Commission and, to the knowledge of the Company, no proceeding for that
purpose or pursuant to Section 8A of the Securities Act against the Company or related to the
offering has been initiated or threatened by the Commission; as of the Effective Time, the
Registration Statement complied in all material respects with the Securities Act and did not or
will not contain any untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements therein not misleading; and as of
the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date, the
Prospectus did not and will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading; provided that
the Company makes no representation and warranty with respect to (i) that part of the Registration
Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee
under the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission
thereunder (collectively, the Trust Indenture Act) or (ii) any statements or omissions in the
Registration Statement and the Prospectus and any amendment or supplement thereto made in reliance
upon and in conformity with information relating to any Underwriter furnished to the Company in
writing by such Underwriter through the Representative expressly for use therein.
(b) Time of Sale Information. The Time of Sale Information, at the Time of Sale, did not
contain any untrue statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which they were made, not
misleading; provided that the Company makes no representation and warranty with respect to any
statements or omissions made in reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter through the Representative
expressly for use in such Time of Sale Information.
(c) Issuer Free Writing Prospectus. The Company (including its agents and representatives,
other than the Underwriters in their capacity as such) has not prepared, made, used, authorized,
approved or referred to and will not prepare, make, use, authorize, approve or refer to any
written communication (as defined in Rule 405 under the Securities Act) that constitutes an offer
to sell or solicitation of an offer to buy the Securities (each such communication by the Company
or its agents and representatives (other than a communication referred to in clauses (i), (ii) and
(iii) below) an Issuer Free Writing Prospectus) other than (i) any document not constituting a
prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities
Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents listed on Schedule 3
to the Underwriting Agreement as constituting the Time of Sale Information and (v) any electronic
road show or other written communications, in each case approved in writing in advance by the
Representative. Each such Issuer Free Writing Prospectus complied in all material respects with
the Securities Act does not
include any information that conflicts with the information contained in the Registration
Statement, including any documents incorporated by reference therein and any prospectus supplement
deemed to be a part thereof that has not been specified or modified, has been or will be (within
the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent
required thereby) and, when taken together with the Preliminary Prospectus accompanying, or
delivered prior to delivery of, or filed prior to the first use of such Issuer Free Writing
Prospectus, did not, and at the Closing Date will not, contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided that the Company
makes no representation and warranty with respect to any statements or omissions made in each such
Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter through the Representative
expressly for use in any Issuer Free Writing Prospectus.
(d) Incorporated Documents. The documents incorporated by reference in the Registration
Statement, the Prospectus and the Time of Sale Information, when filed with the Commission (after
giving effect to any amendment or supplement filed with the Commission prior to the Time of Sale),
conformed or will conform, as the case may be, in all material respects with the requirements of
the Exchange Act and did not and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
(e) Financial Statements. The financial statements and the related notes thereto included or
incorporated by reference in the Registration Statement, the Time of Sale Information and the
Prospectus comply in all material respects with the applicable requirements of the Securities Act
and the Exchange Act, as applicable, and present in all material respects the consolidated
financial position of the Company and its subsidiaries as of the dates indicated and the results of
their operations and the changes in their cash flows for the periods specified; such financial
statements have been prepared in conformity with generally accepted accounting principles applied
on a consistent basis throughout the periods covered thereby, and the supporting schedules to such
financial statements included or incorporated by reference in the Registration Statement present in
all material respects the information required to be stated therein.
(f) No Material Adverse Change. Except in each case as otherwise disclosed in the Time of
Sale Information and the Prospectus, since the date of the most recent financial statements of the
Company included or incorporated by reference in the Registration Statement, the Time of Sale
Information and the Prospectus, (i) there has not been any material change in the long-term debt of
the Company or any of its subsidiaries and there has not been a Material Adverse Effect (as defined
below), (ii) neither the Company nor any of its subsidiaries has entered into any transaction or
agreement that is material to the Company and its subsidiaries taken as a whole or incurred any
liability or obligation, direct or contingent, except for such liabilities or obligations that
individually or in the aggregate, would not have a Material Adverse
Effect and (iii) neither the Company nor any of its subsidiaries has sustained any loss or
interference with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor disturbance or dispute or any action, order or decree of
any court or arbitrator or governmental or regulatory authority, except for such losses that,
individually or in the aggregate, would not have a Material Adverse Effect.
(g) Organization and Good Standing. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of North Carolina, with
power and authority (corporate and other) to own its properties and conduct its business as
described in the Registration Statement, Time of Sale Information and Prospectus.
(h) Description of Notes/Plan of Distribution. The statements set forth in the Registration
Statement, Time of Sale Information and the Prospectus under the caption Description of Notes,
insofar as they purport to constitute a summary of the terms of the Securities, and under the
captions Plan of Distribution and Underwriting, insofar as they purport to describe the
provisions of the laws and documents referred to therein, are accurate, complete and fair in all
material respects.
(i) Due Authorization. The Company has full right, power and authority to execute and deliver
this Agreement, the Securities and the Indenture (collectively, the Transaction Documents) and to
perform its obligations hereunder and thereunder; and all action required to be taken for the due
and proper authorization, execution and delivery of each of the Transaction Documents and the
consummation of the transactions contemplated thereby has been duly and validly taken.
(j) The Indenture. The Indenture has been duly authorized by the Company and has been duly
qualified under the Trust Indenture Act and when executed and delivered by the Company and the
Trustee will constitute a valid and legally binding agreement of the Company enforceable against
the Company in accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency or similar laws affecting the enforcement of creditors rights generally or
by equitable principles relating to enforceability (collectively, the Enforceability Exceptions).
(k) The Securities. The Securities have been duly authorized by the Company and, when duly
executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided
herein, will be duly and validly issued and outstanding and will constitute valid and legally
binding obligations of the Company enforceable against the Company in accordance with their terms,
subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture.
(l) Underwriting Agreement. This Agreement has been duly authorized, executed and delivered
by the Company.
(m) Descriptions of the Transaction Documents. Each Transaction Document conforms in all
material respects to the description thereof contained in the Time of Sale Information and the
Prospectus.
(n) No Violation or Default. Neither the Company nor any of its material subsidiaries is (i)
in violation of its charter or by-laws or similar organizational documents; (ii) in default, and no
event has occurred that, with notice or lapse of time or both, would constitute such a default, in
the due performance or observance of any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or
to which any of the property or assets of the Company or any of its subsidiaries is subject; or
(iii) in violation of any law or statute or any judgment, order, rule or regulation of any court or
arbitrator or governmental or regulatory authority, except, in the case of clauses (ii) and (iii)
above, for any such default or violation that would not, individually or in the aggregate, have a
material adverse effect on the business, properties, financial position, results of operations or
prospects of the Company and its subsidiaries taken as a whole or on the performance by the Company
of its obligations under the Securities (a Material Adverse Effect).
(o) No Conflicts. The execution, delivery and performance by the Company of each of the
Transition Documents, the issue and sale of the Securities and the compliance by the Company with
all of the provisions of the Securities, the Indenture and this Agreement and the consummation of
the transactions herein and therein contemplated will not conflict with or result in a material
breach or violation of any of the terms or provisions of, or constitute a material default under,
any material indenture, mortgage, deed of trust, loan agreement or other material agreement or
instrument to which the Company is a party or by which the Company is bound or to which any of the
property or assets of the Company is subject, nor will such action result in any violation of the
provisions of the charter or bylaws of the Company or result in the violation of any law or statute
or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory
authority, except, in the case of clauses (i) and (iii) above, for any such conflict, breach,
violation or default that would not, individually or in the aggregate, have a Material Adverse
Effect; and no consent, approval, authorization, order, registration or qualification of or with
any such court or governmental agency or body is required for the issue and sale of the Securities
or the consummation by the Company of the transactions contemplated by this Agreement or the
Indenture except as have been made or obtained and except as may be required by and made with or
obtained from state securities laws or regulations, or, with respect to filing the Prospectus with
the Commission in accordance with Rule 424(b) under the Securities Act.
(p) Legal Proceedings. Other than as set forth in the, Time of Sale Information and the
Prospectus, there are no legal or governmental proceedings pending to which the Company or any of
its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is
the subject which would, individually or in the aggregate, have a Material Adverse Effect and there
are no contracts or other documents that are required under the Securities Act to be filed as
exhibits to the Registration Statement and described in the Registration Statement or the
Prospectus that are not so filed as exhibits to the Registration Statement or
described in the Registration Statement, the Time of Sale Information and the Prospectus.
(q) Independent Accountants. Ernst & Young LLP, who has certified certain financial
statements of the Company and its subsidiaries is an independent registered public accounting firm
with respect to the Company and its subsidiaries within the applicable rules and regulations
adopted by the Commission and the Public Company Accounting Oversight Board (United States) and as
required by the Securities Act.
(r) Investment Company Act. The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the net proceeds thereof as described in the Time of
Sale Information and the Prospectus, will not be an investment company within the meaning of the
Investment Company Act of 1940, as amended (Investment Company Act).
(s) Forward-Looking Statements. No forward-looking statement (within the meaning of Section
27A of the Securities Act and Section 21E of the Exchange Act) contained or incorporated by
reference in the Registration Statement, the Time of Sale Information and the Prospectus has been
made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.
(t) Status under the Securities Act. (i) At the time of filing the Registration Statement and,
(ii) at the time of the most recent amendment or supplement thereto, if applicable, for the
purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange
Act or form of prospectus) or determining compliance under Rule 405 of the Securities Act, and
(iii) at the time the Company or any person acting on its behalf (within the meaning, for this
clause only, of Rule 163(c) of the Securities Act) made any offer relating to the Securities in
reliance on the exemption of Rule 163 of the Securities Act, the Company was and is a well-known
seasoned issuer as defined in Rule 405 of the Securities Act. (i) At the earliest time after the
filing of the Registration Statement relating to the Securities that the Company or another
offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the
Securities Act) and (ii) at the time of the most recent amendment or supplement thereto, if
applicable, for the purposes of (whether such amendment or supplement was by post-effective
amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of
prospectus) determining compliance under Rule 405 of the Securities Act, the Company was not an
Ineligible Issuer (as defined in Rule 405 of the Securities Act), without taking account of any
determination by the Commission pursuant to Rule 405 of the Securities Act that it is not necessary
that the Company be considered an Ineligible Issuer.
(u) Disclosure Controls. The Company and its subsidiaries maintain an effective system of
disclosure controls and procedures (as defined in Rule 13a-15(e) under the Exchange Act) that is
designed to ensure that information required to be disclosed by the Company in reports that it
files or submits under the Exchange Act is recorded, processed, summarized and reported within the
time periods specified in the
Commissions rules and forms, including controls and procedures designed to ensure that such
information is accumulated and communicated to the Companys management as appropriate to allow
timely decisions regarding required disclosure. The Company and its subsidiaries have carried out
evaluations of the effectiveness of their disclosure controls and procedures as required by Rule
13a-15 under the Exchange Act.
(v) Accounting Controls. The Company and its subsidiaries maintain systems of internal
control over financial reporting (as defined in Rule 13a-15(f) of the Exchange Act) that comply
with the requirements of the Exchange Act and have been designed by, or under the supervision of
their respective principal executive and principal financial officers, or persons performing
similar functions, to provide reasonable assurance regarding the reliability of financial reporting
and the preparation of financial statements for external purposes in accordance with generally
accepted accounting principles, including, but not limited to internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed in accordance with
managements general or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (iii) access to assets is permitted only in
accordance with managements general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. Other than as disclosed in the Time
of Sale Information and the Prospectus, as of December 31, 2006, there were no material weaknesses
in the Companys internal controls.
(w) Compliance with OFAC. None of the Company, any of its subsidiaries or, to the knowledge
of the Company, any director, officer, agent or employee of the Company or any of its subsidiaries
is currently included on the List of Specially Designated Nationals and Blocked Persons (the SDN
List) maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury
(OFAC); and the Company will not directly or indirectly use the proceeds of the offering of the
Securities hereunder, or lend, contribute or otherwise make available such proceeds to any
subsidiary, joint venture partner or other person or entity, for the purpose of financing the
activities of any person currently included on the SDN List maintained by OFAC.
(x) Compliance with the Foreign Corrupt Practices Act. Neither the Company nor any of its
subsidiaries nor, to the knowledge of the Company, any director, officer, agent or employee of the
Company or any of its subsidiaries is aware of or has taken any action, directly or indirectly,
that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as
amended, and the rules and regulations thereunder (the FCPA), including, without limitation,
making use of the mails or any means or instrumentality of interstate commerce corruptly in
furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or
other property, gift, promise to give, or authorization of the giving of anything of value to any
foreign official (as such term is defined in the FCPA) or any foreign political party or official
thereof or any candidate for foreign political office, in contravention of the FCPA;
and the Company, its subsidiaries and, to the knowledge of the Company, its affiliates have
conducted their businesses in compliance with the FCPA and have instituted and maintain policies
and procedures designed to ensure, and which are reasonably expected to continue to ensure,
continued compliance therewith.
(y) Sarbanes-Oxley Act. There is and has been no failure on the part of the Company or any of
the Companys directors or officers, in their capacities as such, to comply in all material
respects with any provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations
promulgated in connection therewith (the Sarbanes-Oxley Act), including Section 402 related to
loans and Sections 302 and 906 related to certifications.
4. Further Agreements of the Company. The Company covenants and agrees with each
Underwriter that:
(a) Filings with the Commission. The Company will (i) pay the registration fees for this
offering within the time period required by Rule 456(b)1(i) under the Securities Act (without
giving effect to the proviso therein) and in any event prior to the Closing Date and (ii) file the
Prospectus in a form approved by the Underwriters with the Commission pursuant to Rule 424 under
the Securities Act not later than the close of business on the second business day following the
date of determination of the public offering price of the Securities or, if applicable, such
earlier time as may be required by Rule 424(b) and Rule 430A, 430B or 430C under the Securities
Act. The Company will file any Issuer Free Writing Prospectuses (including the term sheets in the
form of Schedule 4 to the Underwriting Agreement) to the extent required by Rule 433 under the
Securities Act; and the Company will furnish copies of the Prospectus and each Issuer Free Writing
Prospectus (to the extent not previously delivered) to the Underwriters in New York City prior to
10:00 A.M., New York City time, on the business day that is two days following the date of this
Agreement in such quantities as the Representative may reasonably request.
(b) Delivery of Copies. The Company will deliver, without charge, to each Underwriter during
the Prospectus Delivery Period (as defined below), as many copies of the Prospectus (including all
amendments and supplements thereto and documents incorporated by reference therein) and each Issuer
Free Writing Prospectus (if applicable) as the Representative may reasonably request. As used
herein, the term Prospectus Delivery Period means such period of time, if any, after the first
date of the public offering of the Securities as a prospectus relating to the Securities is
required by law to be delivered (or required to be delivered but for Rule 172 under the Securities
Act) in connection with sales of the Securities by any Underwriter or dealer.
(c) Amendments or Supplements; Issuer Free Writing Prospectuses. Prior to the termination of
the Prospectus Delivery Period, before making, preparing, using, authorizing, approving, referring
to or filing any Issuer Free Writing Prospectus, and before filing any amendment or supplement to
the Registration Statement or the Prospectus, the Company will furnish to the Representative and
counsel for the Underwriters a copy of the proposed Issuer Free Writing Prospectus, amendment or
supplement for review and will not make, prepare, use, authorize, approve, refer to or file
any such Issuer Free Writing Prospectus or file any such proposed amendment or supplement to which
the Representative reasonably objects.
(d) Notice to the Representative. Prior to the termination of the Prospectus Delivery Period,
the Company will advise the Representative promptly, and confirm such advice in writing, (i) when
any amendment to the Registration Statement has been filed or becomes effective; (ii) when any
supplement to the Prospectus or any amendment to the Prospectus or any Issuer Free Writing
Prospectus has been filed; (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or the receipt of any
comments from the Commission relating to the Registration Statement or any other request by the
Commission for any additional information; (iv) of the issuance by the Commission of any order
suspending the effectiveness of the Registration Statement or preventing or suspending the use of
any Preliminary Prospectus or the Prospectus or the initiation or threatening of any proceeding for
that purpose or pursuant to Section 8A of the Securities Act; (v) of the occurrence of any event
within the Prospectus Delivery Period as a result of which the Prospectus, the Time of Sale
Information or any Issuer Free Writing Prospectus as then amended or supplemented would include any
untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the circumstances existing
when the Prospectus, the Time of Sale Information or any such Issuer Free Writing Prospectus is
delivered to a purchaser, not misleading; (vi) of the receipt by the Company of any notice of
objection of the Commission to the use of the Registration Statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the Securities Act and (vii) of the receipt by
the Company of any notice with respect to any suspension of the qualification of the Securities for
offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such
purpose; and the Company will use its reasonable best efforts to prevent the issuance of any such
order suspending the effectiveness of the Registration Statement, preventing or suspending the use
of any Preliminary Prospectus or the Prospectus or suspending any such qualification of the
Securities and, if any such order is issued, will use its reasonable best efforts to obtain as soon
as possible the withdrawal thereof.
(e) Time of Sale Information. If at any time prior to the Closing Date (i) any event shall
occur or condition shall exist as a result of which the Time of Sale Information as then amended or
supplemented would include any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances, not
misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to comply
with law, the Company will immediately notify the Underwriters thereof and as promptly as
practicable prepare and, subject to paragraph (c) above, file with the Commission (to the extent
required) and furnish to the Underwriters and to such dealers as the Representative may designate,
such amendments or supplements to the Time of Sale Information as may be necessary so that the
statements in the Time of Sale Information as so amended or supplemented will not, in the light of
the circumstances, be misleading or so that the Time of Sale Information will comply with law.
(f) Ongoing Compliance. If during the Prospectus Delivery Period (i) any event shall occur or
condition shall exist as a result of which the Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, not misleading or (ii) it
is necessary to amend or supplement the Prospectus to comply with law, the Company will immediately
notify the Underwriters thereof and as promptly as practicable prepare and, subject to paragraph
(c) above, file with the Commission and furnish to the Underwriters and to such dealers as the
Representative may designate, such amendments or supplements to the Prospectus as may be necessary
so that the statements in the Prospectus as so amended or supplemented will not, in the light of
the circumstances existing when the Prospectus is delivered to a purchaser, be misleading or so
that the Prospectus will comply with law.
(g) Blue Sky Compliance. The Company will use its reasonable best efforts to qualify the
Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as the
Representative shall reasonably request and will continue such qualifications in effect so long as
required for distribution of the Securities; provided that the Company shall not be
required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in
any such jurisdiction where it would not otherwise be required to so qualify, (ii) file any general
consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any
such jurisdiction if it is not otherwise so subject.
(h) Earning Statement. The Company will make generally available to its security holders and
the Representative as soon as practicable an earning statement that satisfies the provisions of
Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated thereunder covering
a period of at least twelve months beginning with the first fiscal quarter of the Company occurring
after the effective date (as defined in Rule 158) of the Registration Statement.
(i) Clear Market. During the period from the date hereof through and including the Closing
Date or such later date as is specified in the Underwriting Agreement, the Company will not,
without the prior written consent of the Representative, offer, sell, contract to sell or otherwise
dispose of any debt securities issued or guaranteed by the Company and having a tenor of more than
one year.
(j) Use of Proceeds. The Company will apply the net proceeds from the sale of the Securities
as described in the Registration Statement, the Time of Sale Information and the Prospectus under
the heading Use of proceeds.
(k) No Stabilization. The Company will not take, directly or indirectly, any action designed
to or that could reasonably be expected to cause or result in any stabilization or manipulation of
the price of the Securities.
(l) Filing of Exchange Act Documents. The Company will file when due any reports and any
definitive proxy or information statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act during the Prospectus Delivery
Period.
(m) Record Retention. The Company will, pursuant to reasonable procedures developed in good
faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission
in accordance with Rule 433 under the Securities Act.
5. Certain Agreements of the Underwriters. Each Underwriter hereby represents and agrees
that
(a) It has not and will not use, authorize use of, refer to, or participate in the planning
for use of, any free writing prospectus, as defined in Rule 405 under the Securities Act (which
term includes use of any written information furnished to the Commission by the Company and not
incorporated by reference into the Registration Statement and any press release issued by the
Company) other than (i) a free writing prospectus that, solely a result of use by such underwriter,
would not trigger an obligation to file such free writing prospectus with the Commission pursuant
to Rule 433, (ii) the information contained in any Issuer Free Writing Prospectus listed on
Schedule 3 to the Underwriting Agreement or prepared pursuant to Section 3(c) or Section 4(c) above
(including any electronic road show), or (iii) any free writing prospectus prepared by such
underwriter and approved by the Company in advance in writing (each such free writing prospectus
referred to in clauses (i) or (iii), an Underwriter Free Writing Prospectus).
(b) Notwithstanding the foregoing the Underwriters may use the term sheets substantially in
the form of Schedule 4 to the Underwriting Agreement without the consent of the Company.
(c) It is not subject to any pending proceeding under Section 8A of the Securities Act with
respect to the offering (and will promptly notify the Company if any such proceeding against it is
initiated during the Prospectus Delivery Period).
6. Conditions of Underwriters Obligations. The obligation of each Underwriter to purchase
Securities on the Closing Date as provided herein is subject to the performance by the Company of
its covenants and other obligations hereunder and to the following additional conditions:
(a) Registration Compliance; No Stop Order. If a post-effective amendment to the Registration
Statement is required to be filed under the Securities Act, such post-effective amendment shall
have become effective, and the Representative shall have received notice thereof, not later than
5:00 P.M., New York City time, on the date of the Underwriting Agreement; no order suspending the
effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose,
pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Securities Act shall be pending
before or threatened by the Commission; the Prospectus and each Issuer Free Writing
Prospectus shall have been timely filed with the Commission under the Securities Act (in the
case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities
Act) and in accordance with Section 4(a) hereof; and all requests by the Commission for additional
information shall have been complied with to the reasonable satisfaction of the Representative.
(b) Representations and Warranties. The representations and warranties of the Company
contained herein shall be true and correct on the date hereof and on and as of the Closing Date;
and the statements of the Company and its officers made in any certificates delivered pursuant to
this Agreement shall be true and correct on and as of the Closing Date.
(c) No Downgrade. Subsequent to the earlier of (A) the Time of Sale and (B) the execution and
delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded the
Securities or any other debt securities of or guaranteed by the Company by Moodys Investors
Service, Inc. or Standard & Poors (a division of the McGraw Hill Companies, Inc.) and (ii) no such
organization shall have publicly announced that it has under surveillance or review, or has changed
its outlook with negative implications with respect to, its rating of the Securities or of any
other debt securities of or guaranteed by the Company or any of its subsidiaries (other than an
announcement with positive implications of a possible upgrading).
(d) No Material Adverse Change. No event or condition of a type described in Section 3(f)
hereof shall have occurred or shall exist, which event or condition is not described in the Time of
Sale Information (excluding any amendment or supplement thereto) and the Prospectus (excluding any
amendment or supplement thereto) and the effect of which in the judgment of the Representative
makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the
Securities on the terms and in the manner contemplated by this Agreement, the Time of Sale
Information and the Prospectus.
(e) Officers Certificate. The Representative shall have received on and as of the Closing
Date a certificate of an executive officer of the Company who has specific knowledge of the
Companys financial matters and is reasonably satisfactory to the Representative (i) confirming
that such officer has carefully reviewed the Registration Statement, the Time of Sale Information
and the Prospectus and, to the best knowledge of such officer and on behalf of the Company and not
in his/her individual capacity, the representations set forth in Sections 3(a) and 3(b) hereof are
true and correct, (ii) confirming that the other representations and warranties of the Company in
this Agreement are true and correct and that the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the
Closing Date and (iii) to the effect set forth in paragraphs (a), (c) and (d) above.
(f) Comfort Letters. On the date of this Agreement and on the Closing Date, Ernst & Young LLP
shall have furnished to the Representative, at the request of the Company, letters, dated the
respective dates of delivery thereof and addressed to the
Underwriters, substantially in the form and substance provided to the Representative, prior to
the date hereof, containing statements and information of the type customarily included in
accountants comfort letters to underwriters with respect to the financial statements and certain
financial information contained or incorporated by reference in the Registration Statement, the
Time of Sale Information and the Prospectus; provided that the letter delivered on the
Closing Date shall use a cut-off date no more than three business days prior to the Closing Date.
(g) Opinion and 10b-5 Statement of Counsel for the Company. Willkie Farr & Gallagher LLP,
counsel for the Company, shall have furnished to the Representative, at the request of the Company,
their written opinion and 10b-5 Statement, dated the Closing Date and addressed to the
Underwriters, in form and substance substantially to the effect set forth in Annex B-1 hereto.
(h) Opinion of North Carolina Counsel for the Company. Robinson, Bradshaw & Hinson, P.A.,
special North Carolina counsel for the Company, shall have furnished to the Representative, at the
request of the Company, their written opinion, dated the Closing Date and addressed to the
Underwriters, in form and substance substantially to the effect set forth in Annex B-2 hereto.
(i) Opinion and 10b-5 Statement of Counsel for the Underwriters. The Representative shall
have received on and as of the Closing Date an opinion and negative assurance letter of Skadden,
Arps, Slate, Meagher & Flom LLP, counsel for the Underwriters, with respect to such matters as the
Representative may reasonably request, and such counsel shall have received such documents and
information as they may reasonably request to enable them to pass upon such matters.
(j) No Legal Impediment to Issuance. No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any federal, state or foreign
governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or
sale of the Securities; and no injunction or order of any federal, state or foreign court shall
have been issued that would, as of the Closing Date, prevent the issuance or sale of the
Securities.
(k) Good Standing. The Representative shall have received on and as of the Closing Date
satisfactory evidence of the good standing of the Company and its significant subsidiaries set
forth on Annex C hereto in the jurisdictions set forth on Annex C hereto, in each case in writing
or any standard form of telecommunication from the appropriate governmental authorities of such
jurisdictions.
(l) Additional Documents. On or prior to the Closing Date, the Company shall have furnished
to the Representative such further certificates and documents as the Representative may reasonably
request.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Underwriters.
7. Indemnification and Contribution.
(a) Indemnification of the Underwriters. The Company agrees to indemnify and hold harmless
each Underwriter, its affiliates, directors and officers and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities (including, without
limitation, reasonable legal fees and other expenses incurred in connection with any suit, action
or proceeding or any claim asserted as such fees and expenses are incurred), joint or several, that
arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, or any omission or alleged omission to state therein
a material fact required to be stated therein or necessary in order to make the statements therein,
not misleading, or (ii) any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing
Prospectus or any Time of Sale Information, or any omission or alleged omission to state therein a
material fact necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading, in each case except insofar as such losses, claims,
damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with any information relating
to any Underwriter furnished to the Company in writing by such Underwriter through the
Representative expressly for use therein.
(b) Indemnification of the Company. Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who signed the Registration
Statement and each person, if any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in
paragraph (a) above, but only with respect to any losses, claims, damages or liabilities that arise
out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with any information relating to such Underwriter furnished
to the Company in writing by such Underwriter through the Representative expressly for use in the
Registration Statement, the Prospectus (or any amendment or supplement thereto), any Issuer Free
Writing Prospectus or any Time of Sale Information, it being understood and agreed that the only
such information consists of the information identified in the Underwriting Agreement as being
provided by the Underwriters.
(c) Notice and Procedures. If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against any person in
respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such
person (the Indemnified Person) shall promptly notify the person against whom such
indemnification may be sought (the Indemnifying Person) in writing; provided that the
failure to notify the Indemnifying Person shall not relieve it from any liability that it may have
under this Section 7 except to the extent that it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such failure; and provided,
further, that the failure to notify the Indemnifying Person
shall not relieve it from any liability that it may have to an Indemnified Person otherwise
than under this Section 7. If any such proceeding shall be brought or asserted against an
Indemnified Person and it shall have notified the Indemnifying Person thereof, the Indemnifying
Person shall retain counsel reasonably satisfactory to the Indemnified Person (who shall not,
without the consent of the Indemnified Person, be counsel to the Indemnifying Person) to represent
the Indemnified Person and any others entitled to indemnification pursuant to this Section 7 that
the Indemnifying Person may designate in such proceeding and shall pay the reasonable fees and
expenses of such proceeding and shall pay the fees and expenses of counsel related to such
proceeding as incurred. In any such proceeding, any Indemnified Person shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such
Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within a reasonable time
to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person
shall have reasonably concluded that there may be legal defenses available to it that are different
from or in addition to those available to the Indemnifying Person; or (iv) the named parties in any
such proceeding (including any impleaded parties) include both the Indemnifying Person and the
Indemnified Person and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood and agreed that the
Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm (in
addition to any local counsel) for all Indemnified Persons, and that all such fees and expenses
shall be reimbursed as they are incurred. Any such separate firm for any Underwriter, its
affiliates, directors and officers and any control persons of such Underwriter shall be designated
in writing by the Representative and any such separate firm for the Company, its directors, its
officers who signed the Registration Statement and any control persons of the Company shall be
designated in writing by the Company. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its prior written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying Person agrees to
indemnify each Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. No Indemnifying Person shall, without the written consent of the
Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of
which any Indemnified Person is or could have been a party and indemnification could have been
sought hereunder by such Indemnified Person, unless such settlement (x) includes an unconditional
release of such Indemnified Person, in form and substance reasonably satisfactory to such
Indemnified Person, from all liability on claims that are the subject matter of such proceeding and
(y) does not include any statement as to or any admission of fault, culpability or a failure to act
by or on behalf of any Indemnified Person.
(d) Contribution. If the indemnification provided for in paragraphs (a) and (b) above is
unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such
losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters on the other from
the offering of the Securities or (ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) but also the relative fault of the Company on the one hand and the
Underwriters on the other in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the Underwriters on the other
shall be deemed to be in the same respective proportions as the net proceeds (before deducting
expenses) received by the Company from the sale of the Securities and the total underwriting
discounts and commissions received by the Underwriters in connection therewith, in each case as set
forth in the table on the cover of the Prospectus, bear to the aggregate offering price of the
Securities. The relative fault of the Company on the one hand and the Underwriters on the other
shall be determined by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a material fact relates
to information supplied by the Company or by the Underwriters and the parties relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.
(e) Limitation on Liability. The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such purpose) or
by any other method of allocation that does not take account of the equitable considerations
referred to in paragraph (d) above. The amount paid or payable by an Indemnified Person as a
result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal or other expenses incurred
by such Indemnified Person in connection with any such action or claim. Notwithstanding the
provisions of this Section 7, in no event shall an Underwriter be required to contribute any amount
in excess of the amount by which the total underwriting discounts and commissions received by such
Underwriter with respect to the offering of the Securities exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The Underwriters obligations
to contribute pursuant to this Section 7 are several in proportion to their respective purchase
obligations hereunder and not joint.
(f) Non-Exclusive Remedies. The remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any Indemnified Person
at law or in equity.
8. Termination. This Agreement may be terminated in the absolute discretion of the
Representative, by notice to the Company, if after the execution and delivery of this Agreement and
prior to the Closing Date (i) trading generally shall have been
suspended or materially limited on the New York Stock Exchange; (ii) trading of any securities
issued or guaranteed by the Company shall have been suspended on any exchange or in any
over-the-counter market; (iii) a general moratorium on commercial banking activities shall have
been declared by federal or New York State authorities; or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis,
either within or outside the United States, that, in the judgment of the Representative, is
material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale
or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the
Time of Sale Information and the Prospectus.
9. Defaulting Underwriter. (a) If, on the Closing Date, any Underwriter defaults on its
obligation to purchase the Securities that it has agreed to purchase hereunder, the non-defaulting
Underwriters may in their discretion arrange for the purchase of such Securities by other persons
satisfactory to the Company on the terms contained in this Agreement. If, within 36 hours after
any such default by any Underwriter, the non-defaulting Underwriters do not arrange for the
purchase of such Securities, then the Company shall be entitled to a further period of 36 hours
within which to procure other persons satisfactory to the non-defaulting Underwriters to purchase
such Securities on such terms. If other persons become obligated or agree to purchase the
Securities of a defaulting Underwriter, either the non-defaulting Underwriters or the Company may
postpone the Closing Date for up to five full business days in order to effect any changes that in
the opinion of counsel for the Company or counsel for the Underwriters may be necessary in the
Registration Statement and the Prospectus or in any other document or arrangement, and the Company
agrees to promptly prepare any amendment or supplement to the Registration Statement and the
Prospectus that effects any such changes. As used in this Agreement, the term Underwriter
includes, for all purposes of this Agreement unless the context otherwise requires, any person not
listed in the Underwriting Agreement that, pursuant to this Section 9, purchases Securities that a
defaulting Underwriter agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as
provided in paragraph (a) above, the aggregate principal amount of such Securities that remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of all the Securities,
then the Company shall have the right to require each non-defaulting Underwriter to purchase the
principal amount of Securities that such Underwriter agreed to purchase hereunder plus such
Underwriters pro rata share (based on the principal amount of Securities that such
Underwriter agreed to purchase hereunder) of the Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as
provided in paragraph (a) above, the aggregate principal amount of such Securities that remains
unpurchased exceeds one-eleventh of the aggregate principal amount of all the Securities, or if the
Company shall not exercise
the right described in paragraph (b) above, then this Agreement shall terminate without
liability on the part of the non-defaulting Underwriters. Any termination of this Agreement
pursuant to this Section 9 shall be without liability on the part of the Company, except that the
Company will continue to be liable for the payment of expenses as set forth in Section 10 hereof
and except that the provisions of Section 7 hereof shall not terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may
have to the Company or any non-defaulting Underwriter for damages caused by its default.
10. Payment of Expenses. (a) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid
all costs and expenses incident to the performance of its obligations hereunder, including without
limitation, (i) the costs incident to the authorization, issuance, sale, preparation and delivery
of the Securities and any taxes payable in that connection; (ii) the costs incident to the
preparation, printing and filing under the Securities Act of the Registration Statement, the
Preliminary Prospectus, any Issuer Free Writing Prospectus, any Time of Sale Information and the
Prospectus (including all exhibits, amendments and supplements thereto) and the distribution
thereof; (iii) the costs of reproducing and distributing each of the Transaction Documents; (iv)
the fees and expenses of the Companys counsel and independent accountants; (v) the fees and
expenses incurred in connection with the registration or qualification and determination of
eligibility for investment of the Securities under the laws of such jurisdictions as the
Representative may designate and the preparation, printing and distribution of a Blue Sky
Memorandum (including the related fees and expenses of counsel for the Underwriters in an amount
not to exceed $10,000); (vi) any fees charged by rating agencies for rating the Securities; (vii)
the fees and expenses of the Trustee and any paying agent (including related fees and expenses of
any counsel to such parties); (viii) all expenses and application fees incurred in connection with
any filing with, and clearance of any offering by, the National Association of Securities Dealers,
Inc.(including related fees and expenses of any counsel to the Underwriters in an amount not to
exceed $10,000); and (ix) all expenses incurred by the Company in connection with any road show
presentation to potential investors. Except as set forth in this Section 10(a) and in Section
10(b) below, the Underwriters shall be responsible for their fees and expenses related to the
offering of the Securities.
(b) If (i) this Agreement is terminated pursuant to Section 8(ii), (ii) the Company for any
reason fails to tender the Securities for delivery to the Underwriters or (iii) the Underwriters
decline to purchase the Securities because any condition to the obligations of the Underwriters set
forth in Section 6 hereof is not satisfied, the Company agrees to reimburse the Underwriters for
all out-of-pocket costs and expenses (including the fees and expenses of their counsel) reasonably
incurred by the Underwriters in connection with this Agreement and the offering contemplated
hereby.
11. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective successors and
the officers and directors and any controlling persons referred to herein, and the affiliates of
each Underwriter referred to in Section 7 hereof. Nothing in this Agreement is intended or shall
be construed to give any other person any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein. No purchaser of Securities from any
Underwriter shall be deemed to be a successor merely by reason of such purchase.
12. Survival. The respective indemnities, rights of contribution, representations,
warranties and agreements of the Company and the Underwriters contained in this Agreement or made
by or on behalf of the Company or the Underwriters pursuant to this Agreement or any certificate
delivered pursuant hereto shall survive the delivery of and payment for the Securities and shall
remain in full force and effect, regardless of any termination of this Agreement or any
investigation made by or on behalf of the Company or the Underwriters.
13. Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise
expressly provided, the term affiliate has the meaning set forth in Rule 405 under the Securities
Act; (b) the term business day means any day other than a day on which banks are permitted or
required to be closed in New York City; and (c) the term subsidiary has the meaning set forth in
Rule 405 under the Securities Act.
14. Miscellaneous. (a) Authority of the Representative. Any action by the Underwriters
hereunder may be taken by the Representative on behalf of the Underwriters, and any such action
taken by the Representative shall be binding upon the Underwriters.
(b) Notices. All notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted and confirmed by any standard form of
telecommunication. Notices to the Underwriters shall be given to the Representative at the address
set forth in the Underwriting Agreement. Notices to the Company shall be given to it at 2710
Wycliff Road, Raleigh, North Carolina, 27607, (fax: 919-783-4535); Attention: Roselyn R. Bar, or if
different, to the address set forth in the Underwriting Agreement.
(c) Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
(d) Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any
consent or approval to any departure therefrom, shall in any event be effective unless the same
shall be in writing and signed by the parties hereto.
(e) Headings. The headings herein are included for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this Agreement.
Exhibit 4.1
Exhibit 4.1
MARTIN MARIETTA MATERIALS, INC.
as Issuer
Branch Banking and Trust Company
as Trustee
INDENTURE
Dated as of April 30, 2007
MARTIN MARIETTA MATERIALS, INC.
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO
SECTIONS 310 THROUGH 318, INCLUSIVE, OF THE
TRUST INDENTURE ACT OF 1939
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Trust Indenture |
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Act Section |
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Indenture Section |
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Section 310(a)(1) |
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7.10 |
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(a)(2) |
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7.10 |
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(a)(3) |
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Not applicable
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(a)(4) |
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Not applicable
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(b) |
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7.8 |
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Section 311(a) |
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7.11 |
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(b) |
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7.11 |
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Section 312(a) |
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2.6 |
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(b) |
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10.3 |
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(c) |
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10.3 |
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Section 3l3(a) |
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7.6 |
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(b) |
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7.6 |
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(c) |
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7.6 |
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(d) |
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7.6 |
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Section 314(a) |
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4.6, 4.7 |
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(a) (4) |
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4.6, 4.7 |
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(b) |
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Not applicable
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(c) (1) |
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10.4, 10.5 |
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(c) (2) |
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10.4, 10.5 |
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(c) (3) |
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Not applicable
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(d) |
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Not applicable
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(e) |
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10.5 |
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Section 315(a) |
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7.1, 7.2 |
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(b) |
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7.5, 10.1 |
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(c) |
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7.1 |
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(d) |
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7.1 |
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(e) |
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6.11 |
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Section 316(a) |
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6.5 |
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(a) (1) |
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6.5 |
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(a) (1) (B) |
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6.4 |
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(a) (2) |
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Not applicable
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(b) |
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6.6, 6.7 |
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(c) |
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10.16 |
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i
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Trust Indenture |
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Act Section |
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Indenture Section |
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Section 317(a)(1) |
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6.8 |
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(a) (2) |
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6.9 |
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(b) |
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2.5 |
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Section 3.18(a) |
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10.1 |
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NOTE: |
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This reconciliation and tie shall not, for any purpose, be deemed to be a part of the
Indenture. |
ii
TABLE OF CONTENTS
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
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Section 1.1. Definitions |
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1 |
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Section 1.2. Other Definitions |
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3 |
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Section 1.3. Incorporation by Reference of TIA |
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3 |
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Section 1.4. Rules of Construction |
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4 |
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ARTICLE 2.
THE SECURITIES
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Section 2.1. Form and Dating |
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4 |
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Section 2.2. Execution and Authentication |
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6 |
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Section 2.3. Title, Amount and Terms of Securities |
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7 |
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Section 2.4. Registrar and Paying Agent |
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9 |
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Section 2.5. Paying Agent to Hold Money in Trust |
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10 |
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Section 2.6. Securityholder Lists |
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10 |
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Section 2.7. Transfer and Exchange |
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10 |
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Section 2.8. Replacement Securities |
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12 |
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Section 2.9. Outstanding Securities |
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12 |
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Section 2.10. Temporary Securities |
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13 |
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Section 2.11. Cancellation |
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13 |
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Section 2.12. Defaulted Interest |
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13 |
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Section 2.13. Payment in Currencies |
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13 |
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Section 2.14. CUSIP Numbers |
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15 |
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ARTICLE 3.
REDEMPTION
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Section 3.1. Applicability of this Article |
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15 |
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Section 3.2. Notices to Trustee |
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15 |
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Section 3.3. Selection of Securities to be Redeemed |
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15 |
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Section 3.4. Notice of Redemption |
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16 |
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Section 3.5. Effect of Notice of Redemption |
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16 |
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Section 3.6. Deposit of Redemption Price |
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16 |
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Section 3.7. Securities Redeemed in Part |
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16 |
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ARTICLE 4.
COVENANTS
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Section 4.1. Certain Definitions |
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17 |
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Section 4.2. Payment of Securities |
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18 |
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Section 4.3. Limitation on Liens |
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18 |
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Section 4.4. Limitation on Sale-Leaseback Transactions |
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20 |
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Section 4.5. No Lien Created, etc |
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21 |
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Section 4.6. Compliance Certificate |
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21 |
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iii
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Section 4.7. SEC Reports |
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21 |
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ARTICLE 5.
SUCCESSOR CORPORATION
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Section 5.1. When the Corporation May Merge, etc |
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21 |
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Section 5.2. When Securities Must Be Secured |
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21 |
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ARTICLE 6.
DEFAULTS AND REMEDIES
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Section 6.1. Events of Default |
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22 |
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Section 6.2. Acceleration |
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23 |
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Section 6.3. Other Remedies |
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23 |
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Section 6.4. Waiver of Past Defaults |
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23 |
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Section 6.5. Control by Majority |
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23 |
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Section 6.6. Limitation on Suits |
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24 |
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Section 6.7. Rights of Holders to Receive Payment |
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24 |
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Section 6.8. Collection Suit by Trustee |
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24 |
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Section 6.9. Trustee May File Proofs of Claim |
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24 |
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Section 6.10. Priorities |
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24 |
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Section 6.11. Undertaking for Costs |
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25 |
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ARTICLE 7.
TRUSTEE
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Section 7.1. Duties of Trustee |
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25 |
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Section 7.2. Rights of Trustee |
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26 |
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Section 7.3. Individual Rights of Trustee, etc |
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26 |
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Section 7.4. Trustees Disclaimer |
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26 |
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Section 7.5. Notice of Defaults |
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26 |
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Section 7.6. Reports by Trustee to Holders |
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27 |
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Section 7.7. Compensation and Indemnity |
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27 |
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Section 7.8. Replacement of Trustee |
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27 |
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Section 7.9. Successor Trustee by Merger, etc |
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28 |
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Section 7.10. Eligibility; Disqualification |
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28 |
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Section 7.11. Preferential Collection of Claims Against Corporation |
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29 |
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ARTICLE 8.
SATISFACTION, DISCHARGE AND DEFEASANCE
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Section 8.1. Satisfaction and Discharge Under Limited Circumstances |
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29 |
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Section 8.2. Satisfaction and Discharge of Indenture |
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29 |
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Section 8.3. Defeasance of Certain Obligations |
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31 |
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Section 8.4. Application of Trust Money |
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31 |
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Section 8.5. Repayment to Corporation |
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32 |
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iv
ARTICLE 9.
AMENDMENTS, SUPPLEMENTS AND WAIVERS
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Section 9.1. Without Consent of Holders |
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32 |
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Section 9.2. With Consent of Holders |
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33 |
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Section 9.3. Compliance with Trust Indenture Act of 1939 |
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33 |
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Section 9.4. Revocation and Effect of Consents |
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33 |
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Section 9.5. Notation on or Exchange of Securities |
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33 |
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Section 9.6. Trustee to Sign Amendments, etc |
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34 |
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ARTICLE 10.
MISCELLANEOUS
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Section 10.1. TIA Controls |
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34 |
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Section 10.2. Notices |
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34 |
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Section 10.3. Communication by Holders with Other Holders |
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35 |
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Section 10.4. Certificate and Opinion as to Conditions Precedent |
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35 |
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Section 10.5. Statements Required in Certificate or Opinion |
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35 |
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Section 10.6. When Treasury Securities Disregarded |
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35 |
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Section 10.7. Rules by Trustee, Paying Agent, Registrar |
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36 |
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Section 10.8. Legal Holidays |
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36 |
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Section 10.9. Governing Law |
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36 |
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Section 10.10. No Adverse Interpretation of Other Agreements |
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36 |
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Section 10.11. No Recourse Against Others |
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36 |
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Section 10.12. Securities in a Foreign Currency |
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36 |
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Section 10.13. Judgment Currency |
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36 |
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Section 10.14. Successors |
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37 |
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Section 10.15. Duplicate Originals |
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37 |
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Section 10.16. Acts of Holders; Record Dates |
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37 |
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Section 10.17. Force Majeure |
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38 |
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Note: |
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This Table of Contents shall not, for any purpose, be deemed to be a part of the Indenture. |
v
INDENTURE dated as of April 30, 2007, between MARTIN MARIETTA MATERIALS, INC., a North
Carolina corporation (the Corporation), and Branch Banking and Trust Company, a state banking
corporation (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 Corporations
Securities issued pursuant to this Indenture:
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions.
Agent means any Registrar, Paying Agent or co-registrar.
Board of Directors means the Board of Directors, or the Executive Committee or the Finance
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 and to be in full force and effect on the date of such
certification and delivered to the Trustee.
Corporation means the party named as such in this Indenture until a successor replaces it
and thereafter means the successor.
Default means any event which is, or after notice or passage of time or both would be, an
Event of Default.
Depositary means, with respect to the Securities of any series issuable or issued in whole
or in part in the form of one or more Global Securities, The Depository Trust Company or such other
party as may be designated as Depositary by the Corporation pursuant to Section 2.3, 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 in respect of 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 6.2.
Exchange Act means the Securities Exchange Act of 1934, as it may be amended from time to
time.
Foreign Currency means a currency issued by the government of any country other than the
United States of America.
Global Security means a Security evidencing all or a part of a series of Securities, issued
to the Depositary for such series in accordance with Section 2.1, and bearing the legend prescribed
in Section 2.1.
Holder or Securityholder means the person in whose name a Security is registered on the
Registrars books.
Indenture means this Indenture as amended or supplemented from time to time.
Market Exchange Rate for any currency means, as appropriate, the noon U.S. dollar buying
rate or selling rate for that currency for cable transfers quoted in the City of New York on the
applicable date as certified for customs purposes by the Federal Reserve Bank of New York. If for
any reason such rates are not available for one or more currencies for which a Market Exchange Rate
is required, the Trustee shall use: (i) the quotation of the Federal Reserve Bank of New York as
of the most recent available date, (ii) quotations from one or more major banks in the City of New
York or in the country of issue of the currency in question, or (iii) such other quotations as the
Trustee shall deem appropriate. Unless otherwise specified by the Trustee, if there is more than
one market for dealing in any currency by reason of foreign exchange regulations or otherwise, the
market to be used is that in which a nonresident issuer of securities designated in that currency
would purchase that currency in order to make payments on those securities. All decisions and
determinations of the Trustee regarding the Market Exchange Rate 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 and all holders.
Officer means the Chairman of the Board, the Chief Executive Officer, the President, any
Vice President, the Treasurer or the Secretary of the Corporation.
Officers Certificate means the 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.
principal of a Security means the principal of the Security plus, when appropriate, the
premium, if any, on the Security.
SEC means the Securities and Exchange Commission.
Securities means the securities issued pursuant to this Indenture from time to time, as such
securities may be amended or supplemented from time to time.
Series when used with respect to the Securities means all Securities bearing the same title
and authorized by the same Board Resolution or indenture supplemental hereto.
2
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 2.3 or Section 7.8 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 or assistant officer of the
Trustee assigned by the Trustee to administer its corporate trust matters.
Section 1.2. Other Definitions.
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Defined in |
Term |
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Section |
Act |
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10.16 |
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Attributable Debt |
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4.1 |
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Bankruptcy Law |
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6.1 |
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Capital Expenditures |
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4.1 |
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Consolidated Net Tangible Assets |
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4.1 |
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Custodian |
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6.1 |
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Debt |
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4.1 |
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Event of Default |
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6.1 |
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Judgment Date |
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10.13 |
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Legal Holiday |
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10.8 |
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Lien |
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4.1 |
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Long-Term Debt |
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4.1 |
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Paying Agent |
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2.4 |
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Principal Property |
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4.1 |
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Registrar |
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2.4 |
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Restricted Property |
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4.1 |
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Restricted Subsidiary |
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4.1 |
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Sale-Leaseback Transaction |
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4.1 |
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Subsidiary |
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4.1 |
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Substitute Date |
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10.13 |
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United States |
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4.1 |
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U.S. Government Obligations |
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8.2 |
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Voting Stock |
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4.1 |
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Section 1.3. 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.
3
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 1.4. 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 in effect from time to time unless
a different time is established in the applicable series of Securities;
(3) or is not exclusive;
(4) words in the singular include the plural, and in the plural include the singular;
(5) any gender used in this Indenture shall be deemed to include the neuter, masculine
or feminine gender; and
(6) provisions apply to successive events and transactions.
ARTICLE 2.
THE SECURITIES
Section 2.1. 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 indenture supplemental hereto, 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
4
Corporation with respect to a Global Security, after its initial issuance, shall be in writing
but need not comply with Section 10.4.
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 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) an Opinion 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 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 Opinion 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 2.3 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 2.2 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 Global Securities or the nominee of such
Depositary, (c) be delivered by the Trustee to such Depositary or pursuant to such Depositarys
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.
5
Section 2.2. Execution and Authentication. Two Officers shall sign the Securities for the
Corporation by manual or facsimile signature. The Corporations seal shall be impressed, affixed,
imprinted or reproduced on the Securities. Securities shall be dated the date of their
authentication.
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 2.3 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 2.1 or the Opinion of Counsel otherwise required
pursuant to such preceding paragraphs at or prior to the time of authentication of each Security of
such series if such documents are delivered at or prior to the time of authentication upon original
issuance of the first Security of such series. In such case the Trustee may conclusively rely on
the foregoing documents and opinions delivered pursuant to Section 2.1 and Section 2.3, 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 2.1 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 delivery in connection with the original issuance
of each beneficial owners interest in such Global Security.
The Trustees 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.
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Date : |
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[
], as Trustee |
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By: |
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Authorized Officer
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6
If at any time there shall be an Authenticating Agent appointed with respect to any series of
Securities, then the Trustees certificate of authentication to be borne by the Securities of each
such series shall be substantially as follows:
This is one of the Securities referred to in the within-mentioned Indenture.
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[
], as Trustee |
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By: |
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as Authenticating Agent |
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By: |
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Authorized Officer
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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.
Section 2.3. 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 or established in one or more indentures supplemental
hereto.
The Securities may be issued in one or more series, each of which shall be issued pursuant to
a Board Resolution or Resolutions of the Corporation, or established in one or more indentures
supplemental hereto, 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 Section 2.7, 2.8 or 3.7);
(3) the date or dates (or manner of determining the same) on which the principal of the
Securities of that series is payable;
(4) the rate or rates, or the method to be used in ascertaining the rate or rates
(which may be fixed or variable), 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, the
interest payment dates on which such interest shall be payable and the record date for the
interest payable on any interest payment date;
7
(5) if the trustee of that series is other than the Trustee initially named in this
Indenture or any successor thereto, the trustee of that series;
(6) the place or places where the principal of and interest, if any, on Securities of
that series shall be payable;
(7) the period or periods within which, the price or prices at which and the terms and
conditions on which Securities of that series may be redeemed, 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, and the period or periods within which, the price or prices at
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 U.S. 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 U.S. 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 other than the currency in which the Securities of that series are denominated,
the currency or currencies, including composite currencies, in which payment of the
principal of and interest, if any, on Securities of that series shall be payable;
(12) 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;
(13) 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 6.2;
(14) if convertible into Securities of another series, or shares of capital stock of
the Corporation, the terms upon which the Securities of that series will be convertible into
Securities of such other series or shares of capital stock of the Corporation;
(15) 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;
8
(16) the provisions, if any, restricting defeasance of the Securities of that series;
(17) if other than or in addition to the events specified in Section 6.1, events of
default with respect to the Securities of that series;
(18) 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 Global
Securities if other than The Depository Trust Company, New York, New York 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 2.7, 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 2.7, 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;
(19) any other terms of or relating to the Securities of that series (which terms shall
not be inconsistent with the provisions of this Indenture); and
(20) the form of any notice to be delivered to the Trustee with respect to any such
Security.
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 or indentures supplemental
hereto. All Securities of any particular series need not be issued at the same time and, unless
otherwise provided, a series may be reopened, without the consent of the Holders, for issuances of
additional Securities of that series, unless otherwise specified in Board Resolutions or one or
more indentures supplemental hereto.
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 Trustees agreement to
comply with any such additional duties.
Each Depositary 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 2.4. 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.
9
The Corporation shall enter into an appropriate agency agreement with any Registrar, Paying
Agent or co-registrar not a party to this Indenture. The agreements 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 2.5. 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 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 2.6. 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 2.7. 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. Where Securities (other than a
Global Security except as set forth herein) of any series are presented to the Registrar or a
co-registrar with a request to exchange them for an equal principal amount of Securities of other
denominations of the same series with identical terms as the Securities exchanged, the Registrar
shall make the exchange as requested if the same requirements are met. To permit transfers and
exchanges, the Trustee shall authenticate Securities at the Registrars request. No service charge
shall be made for any registration of transfer or exchange of Securities, but the Company may
require payment of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 2.10, 3.7 or 9.5 not involving any transfer. 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.
10
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
2.3, 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 Corporations election pursuant to Section 2.3(18) 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 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.
If specified by the Corporation pursuant to Section 2.3 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 partys 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 2.7 shall be registered in such names and in such authorized denominations
as the Depositary for such Global Security, pursuant to instructions from its direct
11
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 2.8. 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. 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 2.8, the Corporation may require the
payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including all fees and expenses of the Trustee, the Paying
Agent, the Registrar and any co-registrar for such Security) connected therewith.
Every new Security of any series issued pursuant to this Section 2.8 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 2.8 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 2.9. 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 2.8, it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Security is held by a bona fide
purchaser.
12
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 redeemed (or as to which the full redemption price has been deposited with
the Trustee on the applicable Redemption Date), 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 in accordance with the terms
and conditions of this Indenture. Temporary Securities of any series shall be substantially in the
form of definitive Securities or permanent Global Securities, as the case may be, of the same
series, but may have variations that the Corporation considers appropriate for temporary
Securities. Without unreasonable delay, the Corporation shall prepare and the Trustee shall
authenticate definitive Securities or a permanent Global Security or Securities, as the case may
be, of the same series in exchange for temporary Securities. Until so exchanged, the temporary
Securities of any series shall be entitled to the same benefits under this Indenture as definitive
Securities or permanent Global Securities of such series.
Section 2.11. Cancellation. The Corporation 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. Upon the Corporations request,
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 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 payment date 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. Payment in Currencies. (a) Payment of the principal of and interest, if any,
on the Securities shall be made in the currency or currencies specified below:
(1) for Securities of a series denominated in U.S. dollars, payment shall be made in
U.S. dollars; and
(2) for Securities of a series denominated in a Foreign Currency, payment shall be made
in that Foreign Currency unless the Holder of a Security of that series elects to receive
payment in U.S. dollars and such election is permitted by the Board
13
Resolution or Resolutions or indentures supplemental hereto adopted pursuant to Section
2.3 in respect of that series.
A Holder may make the election referred to in clause (2) above by delivering to the Trustee a
written notice of election substantially in the form contemplated by the Board Resolution or
Resolutions or indentures supplemental hereto adopted pursuant to Section 2.3 or in any other form
acceptable to the Trustee. For any payment, a notice of election will not be effective unless it
is received by the Trustee not later than the close of business on the applicable record date. An
election shall remain in effect until the Holder delivers to the Trustee a written notice
specifying a change in the currency in which payment is to be made. No change in currency may be
made for payments to be made on Securities of a series for which notice of redemption has been
given pursuant to Article 3 or as to which the Corporation has accomplished a satisfaction,
discharge or defeasance pursuant to Section 8.1, 8.2 or 8.3.
(b) The Trustee shall deliver to the Corporation, not later than the fourth business day after
each record date for payment on Securities of a series denominated in a Foreign Currency, a written
notice specifying, in the currency in which the Securities of that series are denominated, the
aggregate amount of the principal of and interest, if any, on Securities of that series to be paid
on the payment date. If at least one Holder has made the election referred to in clause (2) of
paragraph (a) of this Section, the written notice shall also specify, in each currency elected, the
amount of principal of and interest, if any, to be paid in that currency on the payment date.
(c) The amount payable to Holders of Securities of a series denominated in a Foreign Currency
who have elected to receive payment in U.S. dollars shall be determined by the Trustee on the basis
of the Market Exchange Rate in effect on the record date.
(d) If the Foreign Currency in which a series of Securities is denominated ceases to be used
both by the government of the country that issued such currency and for the settlement of
transactions by public institutions of or within the international banking community, then for each
payment date on Securities of that series occurring after the last date on which the Foreign
Currency was so used, all payments on Securities of that series shall be made in U.S. dollars. If
payment is to be made in U.S. dollars to the Holders of Securities of any such series pursuant to
the preceding sentence, then the amount to be paid in U.S. dollars on a payment date by the
Corporation to the Trustee and by the Trustee or any Paying Agent to Securityholders shall be
determined by the Trustee as of the applicable record date and shall be equal to the sum obtained
by converting the specified Foreign Currency into U.S. dollars at the Market Exchange Rate on the
last record date on which such Foreign Currency was so used in either such capacity.
(e) All decisions and determinations of the Trustee regarding the amount payable in accordance
with paragraph (c) of this Section, conversion of Foreign Currency into U.S. dollars pursuant to
paragraph (d) of this Section or the Market Exchange Rate shall, in the absence of manifest error,
be conclusive for all purposes and irrevocably binding upon the Corporation and all
Securityholders. If a Foreign Currency in which payment on Securities of a series may be made
pursuant to paragraph (a) of this Section ceases to be used both by the government of the country
that issued such currency and for the settlement of transactions by public institutions of or
within the international banking community, the Corporation shall give notice to the Trustee and
mail notice by first-class mail to each Holder of Securities of that series specifying the last
14
date on which the Foreign Currency was used for the payment of principal of or interest, if
any, on Securities of that series.
Section 2.14. CUSIP Numbers. The Corporation in issuing the Securities may use CUSIP
numbers (if then generally in use), and, if so, the Trustee shall use CUSIP numbers in notices of
redemption as a convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed on the Securities or
as contained in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall not be affected by
any defect in or omission of such numbers.
ARTICLE 3.
REDEMPTION
Section 3.1. Applicability of this Article. Securities of any series that are redeemable
prior to their maturity shall be redeemable in accordance with their terms (except as otherwise
specified in this Indenture for Securities of any series) and in accordance with this Article 3.
Section 3.2. Notices to Trustee. If the Corporation wants to redeem any Securities, it shall
notify the Trustee of the redemption date and the principal amount of Securities to be redeemed in
accordance with the terms of the Securities. If the redemption is of less than all the outstanding
Securities of a series, the Corporation shall furnish to the Trustee a written statement signed by
an Officer of the Corporation stating that with respect to that series there exists no Event of
Default and no circumstance which, after notice or the passage of time or both, would constitute an
Event of Default. The Corporation shall give the notice provided for in this Section at least 50
days before the redemption date.
Section 3.3. 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 of such series 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 of such series 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.
15
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 3.4. Notice of Redemption. At least 30 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;
(5) that interest on Securities called for redemption ceases to accrue on and after the
redemption date; and
(6) the CUSIP number for the Securities called for redemption.
At the Corporations request, the Trustee shall give the notice of redemption in the
Corporations name and at its expense. In such event the Corporation will provide the Trustee with
the information required by clauses (1) through (5).
Section 3.5. 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 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 3.6. 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 on all Securities to be redeemed on that date.
Section 3.7. 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.
16
ARTICLE 4.
COVENANTS
Section 4.1. Certain Definitions. Attributable Debt for a lease means the carrying value
of the capitalized rental obligation determined under generally accepted accounting principles
whether or not such obligation is required to be shown on the balance sheet as a long-term
liability. 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. 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.
Capital Expenditures means, for any period, any expenditures of the Corporation or its
Subsidiaries during such period that, in conformity with generally accepted accounting principles
consistently applied, are required to be included in fixed asset accounts on the consolidated
balance sheet of the Corporation and its Subsidiaries.
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 Corporations most recent publicly available consolidated balance sheet
preceding the date of a determination under Section 4.3(11).
Debt means any debt for borrowed money which would appear on the balance sheet as a
liability or any guarantee of such a debt and includes purchase money obligations. 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.
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 obligees consent to a
date more than 12 months after the Debt was created.
Principal Property means, as to any particular series of Securities, any mining and
quarrying or 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) or Section 103(b)(6) of the
Internal Revenue Code of 1954 or of 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
17
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 mining and quarrying or 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 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).
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 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, sells or transfers it to a person
and contemporaneously leases it back from the person.
Subsidiary means an entity, 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 or other equity interest having voting power under ordinary
circumstances to elect directors or managers, as applicable.
Section 4.2. 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 on overdue principal at the rate
borne by the Securities and shall pay interest on overdue installments of interest at the same
rate.
Section 4.3. 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
18
(2) the Lien is on property, Debt or shares of stock of an entity at the time such
entity becomes a Restricted Subsidiary; or
(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 Debt incurred to finance all or some of the purchase price or cost
of construction of property of the Corporation or a Restricted Subsidiary. The Lien may not
extend to any other Restricted Property owned by the Corporation or a Restricted Subsidiary
at the time the Lien is incurred. However, in the case of any construction the Lien related
to the construction may extend to unimproved real property. The Debt secured by the Lien
may not be incurred more than one year after the later of the acquisition, completion of
construction or commencement of full operation of the property subject to the Lien; 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 an entity at the time such 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 a government or governmental entity and
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(A) |
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secures payment pursuant to a contract,
subcontract, statute or regulation; or |
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(B) |
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secures Debt which is guaranteed by the
government or governmental entity; or |
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(C) |
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secures Debt incurred to finance all or some of
the purchase price or cost of construction of goods, products or
facilities produced under contract or subcontract for the government or
governmental entity; or |
|
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(D) |
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secures Debt incurred to finance all or some of
the purchase price or cost of construction of the property subject to
the Lien; or |
(9) 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 (l) through (8) 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
19
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
(10) 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 (9)
and any Debt secured by a Lien existing at the date of this Indenture, at the time does not
exceed 15% of Consolidated Net Tangible Assets. Attributable Debt for any lease entered
into under clause (4) of Section 4.4 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 (9).
Section 4.4. 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 (9) of Section
4.3 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 (10) of Section 4.3 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 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) within 270 days the Corporation makes Capital Expenditures with respect to a
Principal Property in an amount at least equal to the amount of the Attributable Debt
incurred; or
(7) (A) the Corporation or a Restricted Subsidiary makes an optional prepayment in cash
of its Debt or capital lease obligations at least equal in amount to the Attributable Debt
for the lease;
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(B) |
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the prepayment is made within 270 days of the
effective date of the lease; |
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(C) |
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the Debt prepaid is not owned by the
Corporation or a Restricted Subsidiary; |
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(D) |
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the Debt prepaid is not subordinated to any of
the Securities; and |
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(E) |
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the Debt prepaid was Long-Term Debt at the time
it was created. |
20
Section 4.5. 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 4.6. 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 its covenants in Section
4.3 or 4.4. If they do know of such a default, the certificate shall describe the default. The
certificate need not comply with Section 10.5.
Section 4.7. 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 §
314(a).
ARTICLE 5.
SUCCESSOR CORPORATION
Section 5.1. 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 entity, unless (1) the
resulting, surviving or transferee entity 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 5.2. 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 indenture
shall secure the Securities by a direct lien on such Restricted Property. The direct Lien shall
have priority over all Liens on such Restricted Property except these 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
(10) of Section 4.3 could create a Lien on the Restricted Property to secure Debt at least
equal in amount to that secured by the attaching Lien.
21
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.1. 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:
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(A) |
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commences a voluntary case, |
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(B) |
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consents to the entry of an order for relief
against it in an involuntary case, |
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(C) |
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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 |
|
|
(D) |
|
the order or decree remains unstayed and in
effect for 60 days; or |
(6) there occurs any other event specifically described as an Event of Default by the
Securities of that series.
22
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 7.1 and 7.2, the
Trustee shall not be charged with knowledge of any default, or of the delivery to the Corporation
of a notice of default by any Holder, 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 6.2. 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 on all the Securities of that
series to be due and payable immediately. Upon a declaration such principal and interest 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 7.7 have been made.
Section 6.3. 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 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 6.4. Waiver of Past Defaults. Subject to Section 9.2, 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 6.5. 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
23
any remedy available to the Trustee or of exercising any trust of power conferred on it with
respect to that series. However, the Trustee may refuse to follow any direction that conflicts
with law or this Indenture, or, subject to Section 7.1, 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 6.6. Limitation on Suits. No Holder of a Security of any series may pursue any
remedy with respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice stating that an Event of Default
with respect to the Securities of the series is continuing;
(2) the Holders of at least 25% in principal amount of the Securities of that series
make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity satisfactory to the Trustee
against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after receipt of the
request and the offer of indemnity; and
(5) during such 60-day period the Holders of a majority in principal amount of the
Securities of that series do not give the Trustee a direction inconsistent with the request.
A Securityholder may not use this Indenture to prejudice the rights of another Securityholder
or to obtain a preference or priority over the other Securityholder.
Section 6.7. 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 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 6.8. Collection Suit by Trustee. If an Event of Default in payment of interest or
principal specified in Section 6.1(1) or (2) occurs and is continuing, 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 remaining unpaid.
Section 6.9. 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:
24
First: to the Trustee for amounts due under Section 7.7;
Second: to Holders of Securities of that series for amounts due and
unpaid on such Securities for principal and interest, ratably,
without preference or priority of any kind, according to the amounts
due and payable on such Securities for principal and interest,
respectively; and
Third: to the Corporation.
The Trustee may fix a record date and payment date for any payment to Securityholders pursuant
to this Section.
Section 6.11. Undertaking for Costs. In any suit for the enforcement of any right or remedy
under this Indenture or in any suit against the Trustee for any action taken or omitted by it as
Trustee, a court in its discretion may require the filing by any party litigant in the suit other
than the Trustee of an undertaking to pay the costs of the suit, and the court in its discretion
may assess reasonable costs, including reasonable attorneys fees, against any party litigant in
the suit 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 6.7 or a suit by Holders of more than 10% in principal amount of the Securities of any
series.
ARTICLE 7.
TRUSTEE
Section 7.1. 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 and expressly 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;
25
(2) the Trustee shall not be liable for any error of judgment made in good faith by a
Trust Officer, unless it is proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to Section 6.5;
(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 7.2. Rights of Trustee. (a) Subject to Section 7.1, the Trustee may rely on any
document (whether in its original, electronic or facsimile form) 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 7.3. 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 7.4. Trustees 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 Corporations
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 7.5. 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 determines in good faith that withholding the notice is in the
interests of such Holders.
26
Section 7.6. Reports by Trustee to Holders. If required pursuant to TIA § 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 § 313(a). The Trustee also shall comply with the reporting
obligations of TIA § 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 7.7. 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 Trustees 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 Corporations 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 on particular
Securities.
When the Trustee incurs expenses or renders services after an Event of Default specified in
Section 6.1(4) or (5) occurs, the expenses and the compensation for the services are intended to
constitute expenses of administration under any Bankruptcy Law.
Section 7.8. 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 Corporations consent.
The Corporation may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office of trustee for any
reason, the Corporation shall promptly appoint a successor Trustee.
27
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 2.3(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 7.9. 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
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 § 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 § 310(b), provided that the question whether the Trustee has
28
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 § 311(a), excluding any creditor relationship listed in TIA § 311(b). A Trustee
who has resigned or been removed shall be subject to TIA § 311(a) to the extent indicated therein.
ARTICLE 8.
SATISFACTION, DISCHARGE AND DEFEASANCE
Section 8.1. Satisfaction and Discharge Under Limited Circumstances. If at any time (a) all
Securities of a series previously authenticated (other than any Securities destroyed, lost or
stolen and replaced or paid as provided in Section 2.8) 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 8.5) 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 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 8.2. 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 U.S. 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
29
(d) a combination thereof, sufficient to pay and discharge the principal of and
interest 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 6.1(4) or 6.1(5) has
occurred;
(2) if the Securities of that series are then listed on any national securities
exchange, the Corporation shall have delivered to the Trustee an Opinion of Counsel to the
effect that such deposit, defeasance and discharge will not cause such Securities to be
delisted; and
(3) the Corporation has delivered to the Trustee an Officers Certificate and an
Opinion of Counsel, complying with Section 10.4 relating to the Corporations 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 Corporations 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, however, 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 following shall survive
until otherwise terminated or discharged hereunder: (A) the rights of Holders of the Securities of
such series to receive, solely from the trust fund described in Section 8.1 and as more fully set
forth in such Section, payments in respect of the principal of and any premium and interest on the
Securities of such series when such payments are due, (B) the Companys obligations with respect to
such Securities under Sections 2.4, 2.5, 2.6, 2.7, 2.8, 2.10, 7.7 and 7.8, (C) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and (D) this Article Eight.
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. |
30
Section 8.3. 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 its option may cease to be
under any obligation to comply with Sections 4.3, 4.4, 4.6, 5.1 and 5.2 with respect to Securities
of a series effective on the date the following conditions are satisfied:
(1) with reference to this Section, the Corporation has deposited or caused to be
deposited with the Trustee, 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 U.S. 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 10.4 relating to the Corporations 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 Corporations 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, however, 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 Corporations exercise of its option under this Section shall not preclude the Corporation
from subsequently exercising its option under Section 8.2 hereof and the Corporation may so
exercise that option by providing the Trustee with written notice to such effect.
Section 8.4. 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 8.1,
8.2 or 8.3. It shall apply the deposited money and U.S. Government Obligations, through the
31
Paying Agent and in accordance with this Indenture, to the payment of principal and interest
on the Securities of the series for the payment of which such money and U.S. Government Obligations
has been deposited. The Holder of any Security replaced pursuant to Section 2.8 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 8.2 or Section 8.3 hereof, respectively, the escrow trust agreement
may, at the Corporations 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, however, that the condition
specified in Section 8.2(1) or 8.3(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 8.5. 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 to the Corporation upon request any money held by them for
the payment of principal or interest that remains unclaimed for two years.
ARTICLE 9.
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.1. 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 of
such series:
(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 2.3 or 7.8;
(5) to make any change that does not materially adversely affect the rights of any
Holder of any Security of that series; or
(6) 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 of such series if
the waiver does not materially adversely affect the rights of any Holder of any Securities of that
series.
32
Section 9.2. With Consent of Holders. The Corporation may amend or supplement this Indenture
or the Securities with respect to any series 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
such 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
such series affected may waive compliance by the Corporation with any provision of this Indenture
or the Securities of such series without notice to any Securityholder. However, without the
consent of each Securityholder of such series affected, an amendment, supplement or waiver,
including a waiver pursuant to Section 6.4, may not:
(1) reduce the amount of Securities of such 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 of
such series;
(3) reduce the principal of or extend the fixed maturity of any Security of such
series;
(4) reduce the portion of the principal amount of a Discounted Security of such series
payable upon acceleration of its maturity; or
(5) make any Security of such series payable in money other than that stated in such
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 9.3. 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 9.4. Revocation and Effect of Consents. A consent to an amendment, supplement or
waiver by a Holder of a Security shall bind the Holder and every subsequent Holder of that Security
or portion of the Security that evidences the same debt as the consenting Holders 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 9.2. 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 Holders Security.
Section 9.5. 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
33
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 9.6. 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 7.1) 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 shall not sign an amendment or supplement unless
authorized by an appropriate Board Resolution.
ARTICLE 10.
MISCELLANEOUS
Section 10.1. 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 10.2. Notices. Any notice or communication shall be sufficiently given if in writing
and delivered in person, sent by facsimile or electronic delivery, or mailed by first-class mail
addressed as follows:
if to the Corporation:
Martin Marietta Materials, Inc.
Attention: Chief Financial Officer
2710 Wycliff Road
Raleigh, North Carolina 27607
if to the Trustee:
Branch Banking and Trust Company
Attention: Corporate Trust Services
223 West Nash Street
Wilson, North Carolina 27893
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 Securityholders address as it appears on the registration books of the Registrar and shall
be sufficiently given if so mailed within the time prescribed.
34
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 10.3. Communication by Holders with Other Holders. Securityholders may communicate
pursuant to TIA § 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 § 312(c).
Section 10.4. 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 10.5. Statements Required in Certificate or Opinion. Each certificate or opinion
with respect to compliance with a condition or covenant provided for in this Indenture shall
include:
(1) a statement that the person making such certificate or opinion has read such
covenant or condition;
(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 10.6. 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.
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Section 10.7. 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 10.8. 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 10.9. Governing Law. The laws of the State of New York 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. Any
such indenture, loan or debt agreement may not be used to interpret this Indenture.
Section 10.11. No Recourse Against Others. A director, officer, employee or stockholder, 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 2.1 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 U.S. 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, it shall become
necessary to convert into any other currency any amount in the currency due hereunder or under such
Security, then such conversion shall be made by the Trustee (a) with respect to conversions between
any Foreign Currency and U.S. dollars at the Market Exchange Rate as in effect on the date of entry
of the judgment (the Judgment Date) and (b) with respect to conversions of any Foreign Currency
into any other Foreign Currency by (i) converting such Foreign Currency into U.S. dollars at the
Market Exchange Rate as in effect on the Judgment Date and (ii) converting the sum of U.S. dollars
so obtained into such other Foreign Currency at
36
the Market Exchange Rate as in effect on 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 any Market Exchange Rate used in such conversion as in effect on the
Judgment Date and such 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 which, when converted at such Market Exchange Rate as
in effect on the Judgment Date, is the amount due hereunder or under such Security. 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 in respect of any
Security. In no event, however, shall the Corporation be required to pay more in the currency due
hereunder or under such Security at the Market Exchange Rate as in effect on the Judgment Date than
the amount of currency stated to be due hereunder or under such Security so that in any event the
Corporations obligations hereunder or under such Security will be effectively maintained as
obligations in such currency, and the Corporation shall be entitled to withhold (or be reimbursed
for, as the case may be) any excess of the amount actually realized upon any such conversion on the
Substitute Date over the amount due and payable on the Judgment Date.
Section 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 signers individual capacity, such
certificate or affidavit shall also constitute sufficient proof of such signers 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.
37
(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, wavier 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.
Section 10.17. Force Majeure. In no event shall the Trustee be responsible or liable for any
failure or delay in the performance of its obligations hereunder arising out of or caused by,
directly or indirectly, forces beyond its control, including, without limitation, strikes, work
stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural
catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications
or computer (software or hardware) services; it being understood that the Trustee shall use
reasonable efforts which are consistent with accepted practices in the banking industry to resume
performance as soon as practicable under the circumstances.
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SIGNATURES |
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MARTIN MARIETTA MATERIALS, INC. |
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By:
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/s/ Anne H. Lloyd |
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[CORPORATE SEAL] |
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Name: Anne H. Lloyd |
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Title: Chief Financial Officer |
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Attest: |
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Secretary |
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BRANCH BANKING AND TRUST COMPANY |
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[CORPORATE SEAL]
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By:
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/s/ Pamela B. McGee |
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Name: Pamela B. McGee |
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Title: Vice President |
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Attest: |
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Secretary |
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[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
TO , 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]
MARTIN MARIETTA MATERIALS, INC.
[
%] [Floating Rate] [Zero Coupon] Note
[Debenture] Due
MARTIN MARIETTA MATERIALS, INC., a North Carolina 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].
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Attest: |
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MARTIN MARIETTA MATERIALS, INC. |
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By: |
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Secretary
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Chief Executive Officer
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Dated:
Authenticated:
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This in one of the Securities of the
series designated herein and referred
to in the within-named Indenture. |
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, |
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as Trustee |
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By:
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, |
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Authorized Officer |
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[If an Authenticating Agent has been
appointed insert: |
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This is one of the Securities
referred to in the within-mentioned
Indenture. |
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, |
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as Trustee |
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By: |
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as Authenticating Agent |
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By: |
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Authorized Officer]
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2
Exhibit 4.2
Exhibit 4.2
MARTIN MARIETTA MATERIALS, INC.
as Issuer
and
BRANCH BANKING AND TRUST COMPANY,
as Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of April 30, 2007
to
INDENTURE
Dated as of April 30, 2007
Floating Rate Senior Notes due 2010
TABLE OF CONTENTS
Page
ARTICLE 1.
DEFINITIONS
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Section 1.1.
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Definition of Terms
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ARTICLE 2.
GENERAL TERMS AND CONDITIONS
OF THE FLOATING RATE SENIOR NOTES
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Section 2.1.
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Designation and Principal Amount
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Section 2.2.
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Maturity
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Section 2.3.
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Further Issues
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Section 2.4.
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Form and Payment
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Section 2.5.
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Global Securities
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Section 2.6.
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Interest
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Section 2.7.
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Authorized Denominations
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Section 2.8.
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Redemption
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Section 2.9.
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Change of Control
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Section 2.10.
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Appointment of Agents
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ARTICLE 3.
FORM OF NOTES
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Section 3.1.
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Form of Floating Rate Senior Notes
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ARTICLE 4.
ORIGINAL ISSUE OF NOTES
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Original Issue of Floating Rate Senior Notes
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ARTICLE 5.
MISCELLANEOUS
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Section 5.1.
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Ratification of Indenture
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Section 5.2.
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Trustee Not Responsible for Recitals
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Section 5.3.
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Governing Law
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Section 5.4.
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Separability
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Counterparts
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EXHIBIT A Form Of Floating Rate Senior Notes
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A-1 |
i
FIRST SUPPLEMENTAL INDENTURE, dated as of April 30, 2007 (this Supplemental Indenture),
between Martin Marietta Materials, Inc., a corporation duly organized and existing under the laws
of the State of North Carolina, having its principal office at 2710 Wycliff Road, Raleigh, North
Carolina 27607-3033 (the Corporation), and Branch Banking and Trust Company, a North Carolina
state banking association, as trustee (the Trustee).
WHEREAS, the Corporation executed and delivered the indenture, dated as of April 30, 2007, to
the Trustee (as heretofore supplemented, the Indenture), to provide for the issuance of the
Corporations debt securities (the Securities), to be issued in one or more series;
WHEREAS, pursuant to the terms of the Indenture, the Corporation desires to provide for the
establishment of a new series of its notes under the Indenture to be known as its Floating Rate
Senior Notes due 2010 (the Floating Rate Senior Notes), the form and substance and the terms,
provisions and conditions thereof to be set forth as provided in the Indenture and this
Supplemental Indenture;
WHEREAS, the Finance Committee of Board of Directors of the Corporation pursuant to
resolutions duly adopted on March 15, 2007 and resolutions of the Chairman Finance Committee of the
Board of Directors of the Corporation duly adopted on April 20, 2007, have duly authorized the
issuance of the Floating Rate Senior Notes, and has authorized the proper officers of the
Corporation to execute any and all appropriate documents necessary or appropriate to effect each
such issuance;
WHEREAS, this Supplemental Indenture is being entered into pursuant to the provisions of
Section 9.1(4) of the Indenture;
WHEREAS, the Corporation has requested that the Trustee execute and deliver this Supplemental
Indenture; and
WHEREAS, all things necessary to make this Supplemental Indenture a valid agreement of the
Corporation, in accordance with its terms, and to make the Floating Rate Senior Notes, when
executed by the Corporation and authenticated and delivered by the Trustee, the valid obligations
of the Corporation, have been performed, and the execution and delivery of this Supplemental
Indenture has been duly authorized in all respects;
NOW THEREFORE, in consideration of the premises and the purchase and acceptance of the
Floating Rate Senior Notes by the Holders thereof, and for the purpose of setting forth, as
provided in the Indenture, the forms and terms of the Floating Rate Senior Notes, the Corporation
covenants and agrees, with the Trustee, as follows:
ARTICLE 1.
DEFINITIONS
Section
1.1 Definition of Terms. Unless the context otherwise requires:
(a) each term defined in the Indenture has the same meaning when used in this Supplemental
Indenture;
(b) the singular includes the plural and vice versa; and
(c) headings are for convenience of reference only and do not affect interpretation.
ARTICLE 2.
GENERAL TERMS AND CONDITIONS
OF THE FLOATING RATE SENIOR NOTES
Section
2.1 Designation and Principal Amount. There is hereby authorized and established a series of
Securities under the Indenture, designated as the Floating Rate Senior Notes due 2010, which is
not limited in aggregate principal amount. The aggregate principal amount of the Floating Rate
Senior Notes to be issued shall be as set forth in any Corporation order for the authentication and
delivery of the Floating Rate Senior Notes, pursuant to Section 2.1 of the Indenture.
Section
2.2 Maturity. The stated maturity of principal for the Floating Rate Senior Notes will be April 30,
2010.
Section
2.3 Further Issues. The Corporation may from time to time, without the consent of the Holders of the
Floating Rate Senior Notes, issue additional notes of such series. Any such additional notes will
have the same ranking, interest rate, maturity date and other terms as the Floating Rate Senior
Notes. Any such additional notes, together with the Floating Rate Senior Notes herein provided
for, will constitute a single series of Securities under the Indenture.
Section
2.4 Form and Payment. Principal of, premium, if any, and interest on the Floating Rate Senior Notes
shall be payable in U.S. dollars.
Section
2.5 Global Securities. Upon the original issuance, the Floating Rate Senior Notes will be represented
by one or more Global Securities registered in the name of Cede & Co., the nominee of The
Depository Trust Company (DTC). The Corporation will issue the Floating Rate Senior Notes in
denominations of $2,000 and integral multiples of $1,000 in excess thereof and will deposit the
Global Securities with DTC or its custodian and register the Global Securities in the name of Cede
& Co. The provisions of the fourth paragraph of Section 2.7 of the Indenture shall also apply if
an Event of Default or Default which entitles the Holders of the Floating Rate Senior Notes to
accelerate the Floating Rate Senior Notes maturity shall have occurred and be continuing.
Section
2.6 Interest. (a) The Floating Rate Senior Notes will bear interest from April 30, 2007 (or from the
most recent interest payment date to which interest has been paid or provided for; provided, that,
notwithstanding Section 10.8 of the Indenture, if an interest payment date (other than in the case
of the maturity date of the Floating Rate Senior Notes) falls on a day that is not a business day,
the interest payment date shall be postponed to the next business day unless such next succeeding
business day would be in the following month, in which case, the interest payment
2
date shall be the immediately preceding business day) payable quarterly in arrears on January 30,
April 30, July 30 and October 30, commencing July 30, 2007, to the person in whose name the
Floating Rate Senior Notes were registered at the close of business on the 15th day preceding the
interest payment date (whether or not a business day); provided, however, that interest payable at
maturity of the Floating Rate Senior Notes shall be payable to the person to whom principal thereof
shall be payable.
(b) The Floating Rate Senior Notes will bear interest for each interest period at a rate
determined by the Calculation Agent. The Calculation Agent will be the Trustee until such time as
the Corporation shall appoint a successor Calculation Agent. The interest rate on the Floating Rate
Senior Notes for a particular interest period will be a per annum rate equal to three-month LIBOR
as determined on the interest determination date plus 0.15%. The interest determination date for an
interest period will be the second London business day preceding that interest period. Promptly
upon determination, the Calculation Agent will inform the Trustee and the Corporation of the
interest rate for the next interest period. Absent manifest error, the determination of the
interest rate by the Calculation Agent shall be binding and conclusive on the Holders, the Trustee
and the Corporation. A London business day is a day on which dealings in deposits in U.S. dollars
are transacted in the London interbank market.
On any interest determination date, LIBOR shall be equal to the offered rate for deposits in
U.S. dollars having an index maturity of three months, in amounts of at least $1,000,000, as such
rate appears on Reuters Page LIBOR01 at approximately 11:00 a.m., London time, on such interest
determination date. If, on an interest determination date, such rate does not appear on the
Reuters Page LIBOR01 as of 11:00 a.m., London time, or if the Reuters Page LIBOR01 is not
available on such date, the Calculation Agent shall obtain such rate from Bloomberg L.P.s page
BBAM.
If no offered rate appears on Reuters Page LIBOR01 or Bloomberg L.P. page BBAM on an
interest determination date at approximately 11:00 a.m., London time, then the Calculation Agent
(after consultation with the Corporation) will select four major banks in the London interbank
market and shall request each of their principal London offices to provide a quotation of the rate
at which three-month deposits in U.S. dollars in amounts of at least $1,000,000 are offered by it
to prime banks in the London interbank market, on that date and at that time, that is
representative of single transactions at that time. If at least two quotations are provided, LIBOR
will be the arithmetic average of the quotations provided. Otherwise, the Calculation Agent shall
select three major banks (which may include the underwriters of the Floating Rate Senior Notes) in
New York City and shall request each of them to provide a quotation of the rate offered by them at
approximately 11:00 a.m., New York City time, on the interest determination date for loans in U.S.
dollars to leading European banks having an index maturity of three months for the applicable
interest period in an amount of at least $1,000,000 that is representative of single transactions
at that time. If three quotations are provided, LIBOR shall be the arithmetic average of the
quotations provided. Otherwise, the rate of LIBOR for the next interest period shall be set equal
to the rate of LIBOR for the then current interest period.
(c) Upon request from any Holder of Floating Rate Senior Notes, the Calculation Agent will
provide the interest rate in effect for the Floating Rate Senior Notes for the current interest
period and, if it has been determined, the interest rate to be in effect for the
3
next interest period. Dollar amounts resulting from such calculation shall be rounded to the
nearest cent, with one-half cent being rounded upward.
Section
2.7 Authorized Denominations. The Floating Rate Senior Notes shall be issuable in denominations of
$2,000 and integral multiples of $1,000 in excess thereof.
Section
2.8 Redemption. The Floating Rate Senior Notes shall not be redeemable prior to their maturity.
Section
2.9 Change of Control.
(a) Upon the occurrence of a Change of Control Repurchase Event, unless the Corporation has
exercised its right to redeem all Floating Rate Senior Notes in accordance with the redemption
terms as set forth in the Floating Rate Senior Notes, the Corporation shall make an irrevocable
offer to each Holder of Floating Rate Senior Notes to repurchase all or any part (in denominations
of $2,000 and in integral multiples of $1,000 in excess thereof) of such Holders Floating Rate
Senior Notes at a repurchase price in cash equal to 101% of the aggregate principal amount of
Floating Rate Senior Notes repurchased plus any accrued and unpaid interest on the Floating Rate
Senior Notes repurchased to, but not including, the date of repurchase.
(b) Within 30 days following any Change of Control Repurchase Event or, at the Corporations
option, prior to any Change of Control, but in either case, after the public announcement of such
Change of Control, the Corporation shall mail to each Holder of Floating Rate Senior Notes, with a
copy to the Trustee, a notice:
(i) describing the transaction or transactions that constitute or may constitute the
Change of Control Repurchase Event;
(ii) offering to repurchase all Floating Rate Senior Notes tendered on the payment date
specified in such notice;
(iii) setting forth the payment date for the repurchase of the Floating Rate Senior
Notes, which date will be no earlier than 30 days and no later than 60 days from the date
such notice is mailed; and
(iv) if mailed prior to the date of consummation of the Change of Control, stating that
the offer to repurchase is conditioned on a Change of Control Repurchase Event occurring on
or prior to the payment date specified in such notice.
(c) The Corporation shall comply with the requirements of Rule 14e-1 under the Exchange Act,
and any other securities laws and regulations thereunder to the extent those laws and regulations
are applicable in connection with the repurchase of the Floating Rate Senior Notes as a result of a
Change of Control Repurchase Event. To the extent that the provisions of any securities laws or
regulations conflict with the Change of Control Repurchase Event provisions of the Floating Rate
Senior Notes, the Corporation will comply with the applicable securities laws and regulations and
will not be deemed to have breached its obligations under this Section 2.9 by virtue of such
conflict.
4
(d) On the repurchase date following a Change of Control Repurchase Event, the Corporation
shall, to the extent lawful:
(i) accept for payment all Floating Rate Senior Notes or portions thereof properly
tendered pursuant to such offer;
(ii) deposit with the Paying Agent an amount equal to the aggregate purchase price in
respect of all Floating Rate Senior Notes or portions thereof properly tendered; and
(iii) deliver or cause to be delivered to the Trustee the Floating Rate Senior Notes
properly accepted, together with an Officers Certificate of the Corporation stating the
aggregate principal amount of Floating Rate Senior Notes or portions thereof being
repurchased by the Corporation.
(e) The Paying Agent will promptly mail to each Holder of Floating Rate Senior Notes properly
tendered, the purchase price for such Floating Rate Senior Notes, and the Trustee, upon the
execution and delivery by the Corporation of such Floating Rate Senior Notes, will promptly
authenticate and mail (or cause to be transferred by book-entry) to each Holder a new Floating Rate
Senior Note equal in principal amount to any unpurchased portion of any Floating Rate Senior Notes
surrendered; provided that each new Floating Rate Senior Note will be in a principal amount of an
integral multiple of $1,000.
(f) The Corporation shall not be required to make an offer to repurchase the Floating Rate
Senior Notes upon a Change of Control Repurchase Event if a third party makes such an offer in the
manner, at the times and otherwise in compliance with the requirements for an offer made by the
Corporation and such third party purchases all Floating Rate Senior Notes properly tendered and not
withdrawn under its offer.
(g) Solely for purposes of this Section 2.9 in connection with the Floating Rate Senior Notes,
the following terms shall have the following meanings:
Below Investment Grade Rating Event means that (i) the Floating Rate Senior Notes are
downgraded by both Rating Agencies on any date from the date of the public notice of an arrangement
that could result in a Change of Control until the end of the 60-day period after public notice of
the occurrence of a Change of Control (which period shall be extended so long as the rating of the
Floating Rate Senior Notes is under publicly announced consideration for possible downgrade by
either of the Rating Agencies) and (ii) the rating for the Floating Rate Senior Notes issued by
both Rating Agencies following such reduction in rating is below Investment Grade (as defined
herein), regardless of whether the rating prior to such reduction in rating was below Investment
Grade. Notwithstanding the foregoing, a Below Investment Grade Rating Event otherwise arising by
virtue of a particular reduction in rating shall not be deemed to have occurred in respect of a
particular Change of Control (and thus shall not be deemed a below investment grade rating event
for purposes of the definition of Change of Control Repurchase Event hereunder) if the Rating
Agencies making the reduction in rating to which this definition would otherwise apply do not
announce or publicly confirm or inform the Trustee in writing at its request that the reduction was
the result, in whole or in part, of any event or circumstance
5
comprised of or arising as a result of, or in respect of, the applicable Change of Control
(whether or not the applicable Change of Control shall have occurred at the time of the Below
Investment Grade Rating Event).
Change of Control means (i) the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which is that any person or group (as used
in Section 13(d)(3) of the Exchange Act), becomes the beneficial owner, directly or indirectly, of
more than 50% of the Corporations Voting Stock (as defined herein), measured by voting power
rather than number of shares, (ii) any sale, lease, exchange or other transfer (in one transaction
or a series of related transactions) of all or substantially all of the assets of the Corporation
and its Subsidiaries, taken as a whole, to any person or group of related persons for the purpose
of Section 13(d)(3) of the Exchange Act, together with any affiliates thereof (whether or not
otherwise in compliance with the provisions of the Indenture) or (iii) the replacement of a
majority of the Board of Directors over a two-year period from the directors who constituted the
Board of Directors at the beginning of such period, when such replacement shall have not been
approved by a vote of at least a majority of the Board of Directors then still in office who either
were members of such Board of Directors at the beginning of such period or whose election as
members of such Board of Directors was previously so approved.
Change of Control Repurchase Event means the occurrence of both a Change of Control and a
Below Investment Grade Ratings Event.
Investment Grade means a rating of Baa3 or better by Moodys (or its equivalent under any
successor rating categories of Moodys); a rating of BBB- or better by S&P (or its equivalent under
any successor rating categories of S&P); and the equivalent investment grade credit rating from any
additional Rating Agency or Rating Agencies selected by the Corporation.
Moodys means Moodys Investors Service, Inc.
Rating Agency means (a) each of Moodys and S&P; and (b) if either of Moodys or S&P ceases
to rate the Floating Rate Senior Notes or fails to make a rating of the Floating Rate Senior Notes
publicly available for reasons outside of the Corporations control, a nationally recognized
statistical rating organization within the meaning of Section 3(a)(62) under the Exchange Act,
selected by the Corporation and as certified by the Corporations Board of Directors as a
replacement agency for Moodys or S&P, or both of them, as the case may be.
S&P means Standard & Poors Ratings Services, a division of The McGraw-Hill Companies, Inc.
Voting Stock of any specified person (as that term is used in Section 13(d)(3) of the
Exchange Act) as of any date means the capital stock of such person that is at the time entitled to
vote generally in the election of the board of directors of such person.
Section
2.10 Appointment of Agents. The Trustee will initially be the Security Registrar and Paying Agent for
the Floating Rate Senior Notes.
6
ARTICLE 3.
FORM OF NOTES
Section
3.1 Form of Floating Rate Senior Notes. The Floating Rate Senior Notes and the Trustees Certificate
of Authentication to be endorsed thereon are to be substantially in the form set forth in Exhibit A
hereto.
ARTICLE 4.
ORIGINAL ISSUE OF NOTES
Section
4.1 Original Issue of Floating Rate Senior Notes. The Floating Rate Senior Notes may, upon execution
of this Supplemental Indenture, be executed by the Corporation and delivered to the Trustee for
authentication, and the Trustee shall, upon Corporation order, authenticate and deliver such
Floating Rate Senior Notes as in such Corporation order provided.
ARTICLE 5.
MISCELLANEOUS
Section
5.1 Ratification of Indenture. The Indenture, as supplemented by this Supplemental Indenture, is in
all respects ratified and confirmed, other than matters governed by Article 8 of the Indenture,
which shall apply solely in the final interest period with respect to the Floating Rate Senior
Notes, and this Supplemental Indenture shall be deemed part of the Indenture in the manner and to
the extent herein and therein provided; provided that the provisions of this Supplemental Indenture
apply solely in the final interest period with respect to the Floating Rate Senior Notes. Without
limiting the foregoing, it is expressly affirmed that the obligations of the Corporation set forth
in Sections 4.3, 4.4 and 4.7 of the Indenture shall apply with respect to the Floating Rate Senior
Notes.
Section
5.2 Trustee Not Responsible for Recitals. The recitals herein contained are made by the Corporation
and not by the Trustee, and the Trustee assumes no responsibility for the correctness thereof. The
Trustee makes no representation as to the validity or sufficiency of this Supplemental Indenture.
Section
5.3 Governing Law. This Supplemental Indenture, and each Floating Rate Senior Note shall be governed
by and construed in accordance with the laws of the State of New York.
Section
5.4 Separability. In case any one or more of the provisions contained in the Indenture, this
Supplemental Indenture, the Floating Rate Senior Notes shall for any reason be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not
affect any other provisions of this Supplemental Indenture or of the Floating Rate Senior Notes,
but the Indenture, this Supplemental Indenture and the Floating Rate Senior Notes shall be
construed as if such invalid or illegal or unenforceable provision had never been contained herein
or therein.
7
Section
5.5 Counterparts. This Supplemental Indenture may be executed in any number of counterparts each of
which shall be an original; but such counterparts shall together constitute but one and the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be
duly executed, all as of the day and year first above written.
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MARTIN MARIETTA MATERIALS, INC.
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By: |
/s/ Anne H. Lloyd
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Name: |
Anne H. Lloyd |
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Title: |
Chief Financial Officer |
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BRANCH BANKING AND TRUST COMPANY, as Trustee
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/s/ Pamela B. McGee
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Name: |
Pamela B. McGee |
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Title: |
Vice President |
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EXHIBIT A
FORM OF FLOATING RATE SENIOR NOTES
[THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED
IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART
MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF,
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
MARTIN MARIETTA MATERIALS, INC.
Floating Rate Senior Note Due 2010
MARTIN MARIETTA MATERIALS, INC., a North Carolina corporation, for value received, hereby promises
to pay to CEDE & CO., or registered assigns, the principal sum of $ Dollars on April 30,
2010.
Interest Payment Dates: January 30, April 30, July 30 and October 30
Record Dates: 15 calendar days prior to the Interest Payment Dates (whether or not a business
day
Additional provisions of this Note are set forth on the other side of this Note.
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Attest: |
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[SEAL] |
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MARTIN MARIETTA MATERIALS, INC. |
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By: |
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Chief Executive Officer
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1
Dated:
Authenticated:
This in one of the Securities of the series designated herein and referred to in
the within-named Indenture.
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as Trustee |
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By: |
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Authorized Officer
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2
MARTIN MARIETTA MATERIALS, INC.
Floating Rate Note Due 2010
Interest. Martin Marietta Materials, Inc., a North Carolina corporation (the Corporation),
promises to pay interest on the principal amount of this Security at the rate set forth in the
Indenture (as defined below) above. The Corporation will pay interest quarterly in arrears on
January 30, April 30, July 30 and October 30 of each year, commencing on July 30, 2007. Interest
on the Securities will accrue from the most recent date to which interest has been paid, or if no
interest has been paid, from April 30, 2007. Unless otherwise specified, interest will be computed
on the basis of a 360-day year of twelve 30-day months.
Method of Payment. Except as described above, the Corporation will pay interest on the
Securities of this series (except defaulted interest, which shall be paid as set forth below) to
the persons who are registered holders of the Securities at the close of business on the record
date for the next interest payment date even though the Securities 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 Security (or one or more predecessor Securities) is
registered at the close of business on a special record date for the payment of such defaulted
interest to be fixed by the Trustee for the Securities, notice whereof shall be given to the
Holders of Securities 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 this Security may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture. Payment of the principal of (and premium,
if any) and interest on this Securities will be made at the office or agency of the Corporation
maintained for that purpose in the Borough of Manhattan, The City of New York, in such coin or
currency of the United States of America as at the time of payment is legal tender for payment of
public and private debts; provided, however, that at the option of the Corporation payment of
interest may be made by check mailed to a registered Holders address. All payments of principal
and interest with respect to the Global Notes will be made by the Corporation in immediately
available funds. To the extent lawful, the Corporation shall pay interest on overdue principal at
the rate borne by the Securities and it shall pay interest on overdue installments of interest at
the same rate.
Paying Agent and Registrar. Initially, Branch Banking and Trust Company (Trustee),
Corporate Trust Services, 223 West Nash Street, Wilson, North Carolina 27893, 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.
Indenture. The Corporation issued the Securities under an Indenture dated as of April 30,
2007, between the Corporation and the Trustee, as supplemented by the First Supplemental Indenture
dated as of April 30, 2007, between the Corporation and the Trustee ( as supplemented, the
Indenture). The terms of the Securities 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 §§
77aaa-77bbbb) (Act). The Securities 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.
3
This Security is one of the series designated on the face hereof and will initially be offered
in the principal amount of $225,000,000. The Corporation may, without the consent of the Holders,
issue additional Securities and thereby increase such principal amount in the future, on the same
terms and conditions and with the same CUSIP number as this Security.
Denominations; Transfer; Exchange. The Securities of this series are in registered form
without coupons in denominations of $2,000 and any multiple of $1,000 in excess thereafter. A
holder may transfer or exchange Securities 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 Securities for a period of 15 days before a selection of Securities to be
redeemed or before an interest payment date.
Persons Deemed Owners. The registered holder of this Security 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.
Unclaimed Money. If money for the payment of principal or interest remains unclaimed for two
years, the Trustee or Paying Agent will pay the money back to the Corporation at its request.
After that, holders entitled to unclaimed money must look only to the Corporation and not the
Trustee for payment unless an abandoned property law designates another person.
Defeasance. The Indenture contains provisions for defeasance of the entire principal of the
Securities of this series solely in the final interest period upon compliance by the Corporation
with certain conditions set forth therein.
Amendment; Supplement; Waiver. Subject to certain exceptions as therein provided, the
Indenture or the Securities may be amended or supplemented with the consent of the Holders of not
less than a majority in principal amount of the Securities of each series affected, 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 Securities. Without the consent of any Holder, the Indenture or the Securities of this
series may be amended or supplemented, for among other reasons, to cure any ambiguity, omission,
defect or inconsistency, to provide for uncertificated Securities in addition to or in place of
certificated Securities 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 Securities of this series if the waiver does not materially
adversely affect the rights of any Holder of Securities of this series.
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.
Successors. When a successor entity assumes all the obligations of the Corporation or its
successors under, and in compliance with, the Securities and the Indenture, the predecessor
Corporation will be released from those obligations.
4
Defaults and Remedies. An Event of Default is: default for 30 days in payment of any interest
on the Securities; default in payment of any principal on the Securities of this series; failure by
the Corporation for 90 days after notice to it given in accordance with the terms of the Indenture
to comply with any of its other agreements in the Indenture or the Securities; and certain events
of bankruptcy or insolvency, all as more fully set forth in the Indenture. If an Event of Default
with respect to Securities of this series shall occur and be continuing, the principal of the
Securities of this series and accrued interest thereon may be declared due and payable in the
manner and with the effect provided in the Indenture. Holders of Securities may not enforce the
Indenture or the Securities except as provided in the Indenture. The Trustee may refuse to enforce
the Indenture or the Securities unless it receives indemnity satisfactory to it. Subject to
certain limitations, holders of a majority in principal amount of the Securities 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 it determines in good
faith that withholding notice is in the interests of such holders.
Trustee Dealings with the Corporation. Branch Banking and Trust Company, the Trustee under
the Indenture, in its individual or any other capacity is a lender under the Corporations credit
facility and a underwriter of the Securities and 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.
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
Securities 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 Security waives and releases all such
liability. This waiver and release are part of the consideration for the issue of the Securities.
Authentication. This Security shall not be valid until the Trustee or other Authenticating
Agent manually signs the certificate of authentication on this Security.
Miscellaneous. This Security shall for all purposes be governed by, and construed in
accordance with, the laws of the State of New York.
All terms used in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
The Corporation will furnish to any holder upon written request and without charge a copy of
the Indenture. Requests may be made to: Martin Marietta Materials, Inc., 2710 Wycliff Road,
Raleigh, North Carolina 27607-3033 Attention: Secretary.
5
Exhibit 4.3
Exhibit 4.3
MARTIN MARIETTA MATERIALS, INC.
as Issuer
and
BRANCH BANKING AND TRUST COMPANY,
as Trustee
SECOND SUPPLEMENTAL INDENTURE
Dated as of April 30, 2007
to
INDENTURE
Dated as of April 30, 2007
61/4% Senior Notes due 2037
TABLE OF CONTENTS
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ARTICLE 1. |
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DEFINITIONS |
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Section 1.1. Definition of Terms 2 |
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ARTICLE 2. |
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GENERAL TERMS AND CONDITIONS OF THE FIXED RATE SENIOR NOTES |
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Section 2.1. Designation and Principal Amount |
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Section 2.2. Maturity |
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Section 2.3. Further Issues |
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Section 2.4. Form and Payment |
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Section 2.5. Global Securities |
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Section 2.6. Interest |
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Section 2.7. Authorized Denominations |
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Section 2.8. Redemption |
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Section 2.9. Change of Control |
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Section 2.10. Appointment of Agents |
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ARTICLE 3. |
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FORM OF NOTES |
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Section 3.1. Form of Fixed Rate Senior Notes |
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ARTICLE 4. |
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ORIGINAL ISSUE OF NOTES |
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Section 4.1. Original Issue of Fixed Rate Senior Notes |
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ARTICLE 5. |
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MISCELLANEOUS |
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Section 5.1. Ratification of Indenture |
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Section 5.2. Trustee Not Responsible for Recitals |
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Section 5.3. Governing Law |
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Section 5.4. Separability |
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Section 5.5. Counterparts |
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EXHIBIT A Form Of Fixed Rate Senior Notes |
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A-1 |
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i
SECOND SUPPLEMENTAL INDENTURE, dated as of April 30, 2007 (this Supplemental Indenture),
between Martin Marietta Materials, Inc., a corporation duly organized and existing under the laws
of the State of North Carolina, having its principal office at 2710 Wycliff Road, Raleigh, North
Carolina 27607-3033 (the Corporation), and Branch Banking and Trust Company, a North Carolina
state banking association, as trustee (the Trustee).
WHEREAS, the Corporation executed and delivered the indenture, dated as of April 30, 2007, to
the Trustee (as heretofore supplemented, the Indenture), to provide for the issuance of the
Corporations debt securities (the Securities), to be issued in one or more series;
WHEREAS, pursuant to the terms of the Indenture, the Corporation desires to provide for the
establishment of a new series of its notes under the Indenture to be known as its 61/4% Senior Notes
due 2037 (the Fixed Rate Senior Notes), the form and substance and the terms, provisions and
conditions thereof to be set forth as provided in the Indenture and this Supplemental Indenture;
WHEREAS, the Finance Committee of Board of Directors of the Corporation pursuant to
resolutions duly adopted on March 15, 2007 and resolutions of the Chairman Finance Committee of the
Board of Directors of the Corporation duly adopted on April 20, 2007, have duly authorized the
issuance of the Fixed Rate Senior Notes, and has authorized the proper officers of the Corporation
to execute any and all appropriate documents necessary or appropriate to effect each such issuance;
WHEREAS, this Supplemental Indenture is being entered into pursuant to the provisions of
Section 9.1(4) of the Indenture;
WHEREAS, the Corporation has requested that the Trustee execute and deliver this Supplemental
Indenture; and
WHEREAS, all things necessary to make this Supplemental Indenture a valid agreement of the
Corporation, in accordance with its terms, and to make the Fixed Rate Senior Notes, when executed
by the Corporation and authenticated and delivered by the Trustee, the valid obligations of the
Corporation, have been performed, and the execution and delivery of this Supplemental Indenture has
been duly authorized in all respects;
NOW THEREFORE, in consideration of the premises and the purchase and acceptance of the Fixed
Rate Senior Notes by the Holders thereof, and for the purpose of setting forth, as provided in the
Indenture, the forms and terms of the Fixed Rate Senior Notes, the Corporation covenants and
agrees, with the Trustee, as follows:
ARTICLE 1.
DEFINITIONS
Section
1.1 Definition of Terms. Unless the context otherwise requires:
(a) each term defined in the Indenture has the same meaning when used in this Supplemental
Indenture;
(b) the singular includes the plural and vice versa; and
(c) headings are for convenience of reference only and do not affect interpretation.
ARTICLE 2.
GENERAL TERMS AND CONDITIONS OF THE FIXED RATE SENIOR NOTES
Section
2.1 Designation and Principal Amount. There is hereby authorized and established a series of
Securities under the Indenture, designated as the 61/4% Senior Notes due 2037, which is not limited
in aggregate principal amount. The aggregate principal amount of the Fixed Rate Senior Notes to be
issued shall be as set forth in any Corporation order for the authentication and delivery of the
Fixed Rate Senior Notes, pursuant to Section 2.1 of the Indenture.
Section
2.2 Maturity. The stated maturity of principal for the Fixed Rate Senior Notes will be May 1, 2037.
Section
2.3 Further Issues. The Corporation may from time to time, without the consent of the Holders of the
Fixed Rate Senior Notes, issue additional notes of such series. Any such additional notes will
have the same ranking, interest rate, maturity date and other terms as the Fixed Rate Senior Notes.
Any such additional notes, together with the Fixed Rate Senior Notes herein provided for, will
constitute a single series of Securities under the Indenture.
Section
2.4 Form and Payment. Principal of, premium, if any, and interest on the Fixed Rate Senior Notes shall
be payable in U.S. dollars.
Section
2.5 Global Securities. Upon the original issuance, the Fixed Rate Senior Notes will be represented by
one or more Global Securities registered in the name of Cede & Co., the nominee of The Depository
Trust Company (DTC). The Corporation will issue the Fixed Rate Senior Notes in denominations of
$2,000 and integral multiples of $1,000 in excess thereof and will deposit the Global Securities
with DTC or its custodian and register the Global Securities in the name of Cede & Co. The
provisions of the fourth paragraph of Section 2.7 of the Indenture shall also apply if an Event of
Default or Default which entitles the Holders of the Fixed Rate Senior Notes to accelerate the
Fixed Rate Senior Notes maturity shall have occurred and be continuing.
Section
2.6 Interest. The Fixed Rate Senior Notes will bear interest (computed on the basis of a 360-day year
consisting of twelve 30-day months) from April 30, 2007 at the rate of 6.25% per annum, payable
semiannually in arrears; interest payable on each interest payment date will include interest
accrued from April 30, 2007, or from the most recent interest payment date to which interest has
been paid or duly provided for; the interest payment dates on which such interest shall be payable
are May 1 and November 1, commencing on November 1, 2007; and the record date for the interest
payable on any interest payment date is the close of business on April 15 or October 15, as the
case may be, next preceding the relevant Interest Payment Date.
2
Section
2.7 Authorized Denominations. The Fixed Rate Senior Notes shall be issuable in denominations of $2,000
and integral multiples of $1,000 in excess thereof.
Section
2.8 Redemption. The Fixed Rate Senior Notes are subject to redemption at the option of the Corporation
as set forth in the form of Fixed Rate Senior Note attached hereto as Exhibit A.
Section
2.9 Change of Control.
(a) Upon the occurrence of a Change of Control Repurchase Event, unless the Corporation has
exercised its right to redeem all Fixed Rate Senior Notes in accordance with the redemption terms
as set forth in the Fixed Rate Senior Notes, the Corporation shall make an irrevocable offer to
each Holder of Fixed Rate Senior Notes to repurchase all or any part (in denominations of $2,000
and in integral multiples of $1,000 in excess thereof) of such Holders Fixed Rate Senior Notes at
a repurchase price in cash equal to 101% of the aggregate principal amount of Fixed Rate Senior
Notes repurchased plus any accrued and unpaid interest on the Fixed Rate Senior Notes repurchased
to, but not including, the date of repurchase.
(b) Within 30 days following any Change of Control Repurchase Event or, at the Corporations
option, prior to any Change of Control, but in either case, after the public announcement of such
Change of Control, the Corporation shall mail to each Holder of Fixed Rate Senior Notes, with a
copy to the Trustee, a notice:
(i) describing the transaction or transactions that constitute or may constitute the
Change of Control Repurchase Event;
(ii) offering to repurchase all Fixed Rate Senior Notes tendered on the payment date
specified in such notice;
(iii) setting forth the payment date for the repurchase of the Fixed Rate Senior Notes,
which date will be no earlier than 30 days and no later than 60 days from the date such
notice is mailed; and
(iv) if mailed prior to the date of consummation of the Change of Control, stating that
the offer to repurchase is conditioned on a Change of Control Repurchase Event occurring on
or prior to the payment date specified in such notice.
(c) The Corporation shall comply with the requirements of Rule 14e-1 under the Exchange Act,
and any other securities laws and regulations thereunder to the extent those laws and regulations
are applicable in connection with the repurchase of the Fixed Rate Senior Notes as a result of a
Change of Control Repurchase Event. To the extent that the provisions of any securities laws or
regulations conflict with the Change of Control Repurchase Event provisions of the Fixed Rate
Senior Notes, the Corporation will comply with the applicable securities laws and regulations and
will not be deemed to have breached its obligations under this Section 2.9 by virtue of such
conflict.
(d) On the repurchase date following a Change of Control Repurchase Event, the Corporation
shall, to the extent lawful:
3
(i) accept for payment all Fixed Rate Senior Notes or portions thereof properly
tendered pursuant to such offer;
(ii) deposit with the Paying Agent an amount equal to the aggregate purchase price in
respect of all Fixed Rate Senior Notes or portions thereof properly tendered; and
(iii) deliver or cause to be delivered to the Trustee the Fixed Rate Senior Notes
properly accepted, together with an Officers Certificate of the Corporation stating the
aggregate principal amount of Fixed Rate Senior Notes or portions thereof being repurchased
by the Corporation.
(e) The Paying Agent will promptly mail to each Holder of Fixed Rate Senior Notes properly
tendered, the purchase price for such Fixed Rate Senior Notes, and the Trustee, upon the execution
and delivery by the Corporation of such Fixed Rate Senior Notes, will promptly authenticate and
mail (or cause to be transferred by book-entry) to each Holder a new Fixed Rate Senior Note equal
in principal amount to any unpurchased portion of any Fixed Rate Senior Notes surrendered; provided
that each new Fixed Rate Senior Note will be in a principal amount of an integral multiple of
$1,000.
(f) The Corporation shall not be required to make an offer to repurchase the Fixed Rate Senior
Notes upon a Change of Control Repurchase Event if a third party makes such an offer in the manner,
at the times and otherwise in compliance with the requirements for an offer made by the Corporation
and such third party purchases all Fixed Rate Senior Notes properly tendered and not withdrawn
under its offer.
(g) Solely for purposes of this Section 2.9 in connection with the Fixed Rate Senior Notes,
the following terms shall have the following meanings:
Below Investment Grade Rating Event means that (i) the Fixed Rate Senior Notes are
downgraded by both Rating Agencies on any date from the date of the public notice of an arrangement
that could result in a Change of Control until the end of the 60-day period after public notice of
the occurrence of a Change of Control (which period shall be extended so long as the rating of the
Fixed Rate Senior Notes is under publicly announced consideration for possible downgrade by either
of the Rating Agencies) and (ii) the rating for the Fixed Rate Senior Notes issued by both Rating
Agencies following such reduction in rating is below Investment Grade (as defined herein),
regardless of whether the rating prior to such reduction in rating was below Investment Grade.
Notwithstanding the foregoing, a Below Investment Grade Rating Event otherwise arising by virtue of
a particular reduction in rating shall not be deemed to have occurred in respect of a particular
Change of Control (and thus shall not be deemed a below investment grade rating event for purposes
of the definition of Change of Control Repurchase Event hereunder) if the Rating Agencies making
the reduction in rating to which this definition would otherwise apply do not announce or publicly
confirm or inform the Trustee in writing at its request that the reduction was the result, in whole
or in part, of any event or circumstance comprised of or arising as a result of, or in respect of,
the applicable Change of Control (whether or not the applicable Change of Control shall have
occurred at the time of the Below Investment Grade Rating Event).
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Change of Control means (i) the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which is that any person or group (as used
in Section 13(d)(3) of the Exchange Act), becomes the beneficial owner, directly or indirectly, of
more than 50% of the Corporations Voting Stock (as defined herein), measured by voting power
rather than number of shares, (ii) any sale, lease, exchange or other transfer (in one transaction
or a series of related transactions) of all or substantially all of the assets of the Corporation
and its Subsidiaries, taken as a whole, to any person or group of related persons for the purpose
of Section 13(d)(3) of the Exchange Act, together with any affiliates thereof (whether or not
otherwise in compliance with the provisions of the Indenture) or (iii) the replacement of a
majority of the Board of Directors over a two-year period from the directors who constituted the
Board of Directors at the beginning of such period, when such replacement shall have not been
approved by a vote of at least a majority of the Board of Directors then still in office who either
were members of such Board of Directors at the beginning of such period or whose election as
members of such Board of Directors was previously so approved.
Change of Control Repurchase Event means the occurrence of both a Change of Control and a
Below Investment Grade Ratings Event.
Investment Grade means a rating of Baa3 or better by Moodys (or its equivalent under any
successor rating categories of Moodys); a rating of BBB- or better by S&P (or its equivalent under
any successor rating categories of S&P); and the equivalent investment grade credit rating from any
additional Rating Agency or Rating Agencies selected by the Corporation.
Moodys means Moodys Investors Service, Inc.
Rating Agency means (a) each of Moodys and S&P; and (b) if either of Moodys or S&P ceases
to rate the Fixed Rate Senior Notes or fails to make a rating of the Fixed Rate Senior Notes
publicly available for reasons outside of the Corporations control, a nationally recognized
statistical rating organization within the meaning of Section 3(a)(62) under the Exchange Act,
selected by the Corporation and as certified by the Corporations Board of Directors as a
replacement agency for Moodys or S&P, or both of them, as the case may be.
S&P means Standard & Poors Ratings Services, a division of The McGraw-Hill Companies, Inc.
Voting Stock of any specified person (as that term is used in Section 13(d)(3) of the
Exchange Act) as of any date means the capital stock of such person that is at the time entitled to
vote generally in the election of the board of directors of such person.
Section
2.10 Appointment of Agents. The Trustee will initially be the Security Registrar and Paying Agent for
the Fixed Rate Senior Notes.
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ARTICLE 3.
FORM OF NOTES
Section
3.1 Form of Fixed Rate Senior Notes. The Fixed Rate Senior Notes and the Trustees Certificate of
Authentication to be endorsed thereon are to be substantially in the form set forth in Exhibit A
hereto.
ARTICLE 4.
ORIGINAL ISSUE OF NOTES
Section
4.1 Original Issue of Fixed Rate Senior Notes. The Fixed Rate Senior Notes may, upon execution of this
Supplemental Indenture, be executed by the Corporation and delivered to the Trustee for
authentication, and the Trustee shall, upon Corporation order, authenticate and deliver such Fixed
Rate Senior Notes as in such Corporation order provided.
ARTICLE 5.
MISCELLANEOUS
Section
5.1 Ratification of Indenture. The Indenture, as supplemented by this Supplemental Indenture, is in
all respects ratified and confirmed, and this Supplemental Indenture shall be deemed part of the
Indenture in the manner and to the extent herein and therein provided; provided that the provisions
of this Supplemental Indenture apply solely with respect to the Fixed Rate Senior Notes. Without
limiting the foregoing, it is expressly affirmed that the obligations of the Corporation set forth
in Sections 4.3, 4.4 and 4.7 of the Indenture shall apply with respect to the Notes.
Section
5.2 Trustee Not Responsible for Recitals. The recitals herein contained are made by the Corporation
and not by the Trustee, and the Trustee assumes no responsibility for the correctness thereof. The
Trustee makes no representation as to the validity or sufficiency of this Supplemental Indenture.
Section
5.3 Governing Law. This Supplemental Indenture, and each Fixed Rate Senior Note shall be governed by
and construed in accordance with the laws of the State of New York.
Section
5.4 Separability. In case any one or more of the provisions contained in the Indenture, this
Supplemental Indenture, the Fixed Rate Senior Notes shall for any reason be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not
affect any other provisions of this Supplemental Indenture or of the Fixed Rate Senior Notes, but
the Indenture, this Supplemental Indenture and the Fixed Rate Senior Notes shall be construed as if
such invalid or illegal or unenforceable provision had never been contained herein or therein.
Section
5.5 Counterparts. This Supplemental Indenture may be executed in any number of counterparts each of
which shall be an original; but such counterparts shall together constitute but one and the same
instrument.
6
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be
duly executed, all as of the day and year first above written.
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MARTIN MARIETTA MATERIALS, INC.
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/s/ Anne H. Lloyd
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Name: |
Anne H. Lloyd |
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Title: |
Chief Financial Officer |
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BRANCH BANKING AND TRUST COMPANY, as Trustee
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/s/ Pamela B. McGee
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Pamela B. McGee |
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Vice President |
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EXHIBIT A
FORM OF FIXED RATE SENIOR NOTES
[THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED
IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART
MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF,
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
MARTIN MARIETTA MATERIALS, INC.
6.25% Senior Note Due 2037
MARTIN MARIETTA MATERIALS, INC., a North Carolina corporation, for value received, hereby promises
to pay to CEDE & CO., or registered assigns, the principal sum of $ Dollars on May 1,
2037.
Interest Payment Dates: May 1 and November 1
Record Dates: April 15 and October 15
Additional provisions of this Note are set forth on the other side of this Note.
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Attest: |
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[SEAL]
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MARTIN MARIETTA MATERIALS, INC. |
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By: |
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Secretary |
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Chief Executive Officer |
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Dated: |
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Authenticated: |
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This in one of the Securities of the series
designated herein and referred to in
the within-named Indenture. |
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as Trustee |
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By:
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Authorized Officer |
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2
MARTIN MARIETTA MATERIALS, INC.
6.25% Note Due 2037
Interest. Martin Marietta Materials, Inc., a North Carolina corporation (the Corporation),
promises to pay interest on the principal amount of this Security at the rate per annum shown
above. The Corporation will pay interest semi-annually on May 1 and November 1 of each year,
commencing on November 1, 2007. Interest on the Securities will accrue from the most recent date
to which interest has been paid, or if no interest has been paid, from April 30, 2007. Unless
otherwise specified, interest will be computed on the basis of a 360-day year of twelve 30-day
months.
Method of Payment. Except as described above, the Corporation will pay interest on the
Securities of this series (except defaulted interest, which shall be paid as set forth below) to
the persons who are registered holders of the Securities at the close of business on the record
date for the next interest payment date even though the Securities 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 Security (or one or more predecessor Securities) is
registered at the close of business on a special record date for the payment of such defaulted
interest to be fixed by the Trustee for the Securities, notice whereof shall be given to the
Holders of Securities 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 this Security may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture. Payment of the principal of (and premium,
if any) and interest on this Securities will be made at the office or agency of the Corporation
maintained for that purpose in the Borough of Manhattan, The City of New York, in such coin or
currency of the United States of America as at the time of payment is legal tender for payment of
public and private debts; provided, however, that at the option of the Corporation payment of
interest may be made by check mailed to a registered Holders address. All payments of principal
and interest with respect to the Global Notes will be made by the Corporation in immediately
available funds. To the extent lawful, the Corporation shall pay interest on overdue principal at
the rate borne by the Securities and it shall pay interest on overdue installments of interest at
the same rate.
Paying Agent and Registrar. Initially, Branch Banking and Trust Company (Trustee),
Corporate Trust Services, 223 West Nash Street, Wilson, North Carolina 27893, 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.
Indenture. The Corporation issued the Securities under an Indenture dated as of April 30,
2007, between the Corporation and the Trustee, as supplemented by the Second Supplemental Indenture
dated as of April 30, 2007, between the Corporation and the Trustee ( as supplemented, the
Indenture). The terms of the Securities 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 §§
77aaa-77bbbb) (Act). The Securities 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.
3
This Security is one of the series designated on the face hereof and will initially be offered
in the principal amount of $250,000,000. The Corporation may, without the consent of the Holders,
issue additional Securities and thereby increase such principal amount in the future, on the same
terms and conditions and with the same CUSIP number as this Security.
Redemption. The Securities of this series will be redeemable at the option of the
Corporation, in whole at any time or in part from time to time, on at least 30 days but not more
than 60 days prior written notice mailed to the registered holders thereof, at a redemption price
equal to the greater of (i) 100% of the principal amount of the Securities of this series to be
redeemed or (ii) the sum, as determined by the Quotation Agent (as defined herein), of the present
values of the principal amount of the Fixed Rate Senior Notes to be redeemed and the remaining
scheduled payments of interest thereon from the redemption date to the maturity date of the
Securities of this series to be redeemed, exclusive of interest accrued to the redemption date (the
Remaining Life), discounted from their respective scheduled payment dates to the redemption date
on a semiannual basis (assuming a 360-day year consisting of 30-day months) at the Treasury Rate
(as defined herein) plus 25 basis points plus accrued and unpaid interest on the principal amount
being redeemed to the date of redemption.
If money sufficient to pay the redemption price of and accrued interest on all the Securities
(or portions thereof) to be redeemed on the redemption date is deposited with the Trustee or paying
agent on or before the redemption date and certain other conditions are satisfied, then on and
after such redemption date, interest will cease to accrue on such Securities (or such portion
thereof) called for redemption.
business day means any day other than a Saturday, a Sunday or a day on which banking
institutions in The City of New York, New York are authorized or obligated by law, regulation,
executive order or governmental decree to close.
Comparable Treasury Issue means the United States Treasury security selected by the
Quotation Agent as having a maturity comparable to the Remaining Life that would be utilized, at
the time of selection and in accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity with the Remaining Life.
Comparable Treasury Price means, with respect to any redemption date, the average of two
Reference Treasury Dealer Quotations for such redemption date.
Quotation Agent means the Reference Treasury Dealer appointed by the Corporation.
Reference Treasury Dealer means J.P. Morgan Securities Inc. and its successors; provided,
however, that if the foregoing ceases to be a primary U.S. Government Securities dealer in New York
City (a Primary Treasury Dealer), the Corporation will substitute therefor another Primary
Treasury Dealer.
Reference Treasury Dealer Quotations means, with respect to each Reference Treasury Dealer
and any redemption date, the average, as determined by the Trustee, of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a percentage of its principal
4
amount) quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New
York City time, on the third business day preceding such redemption date.
Treasury Rate means, with respect to any redemption date, the rate per annum equal to the
semiannual yield to maturity of the Comparable Treasury Issue, calculated on the third business day
preceding such redemption date using a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for such redemption
date.
Denominations; Transfer; Exchange. The Securities of this series are in registered form
without coupons in denominations of $2,000 and any multiple of $1,000 in excess thereafter. A
holder may transfer or exchange Securities 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 Securities for a period of 15 days before a selection of Securities to be
redeemed or before an interest payment date.
Persons Deemed Owners. The registered holder of this Security 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.
Unclaimed Money. If money for the payment of principal or interest remains unclaimed for two
years, the Trustee or Paying Agent will pay the money back to the Corporation at its request.
After that, holders entitled to unclaimed money must look only to the Corporation and not the
Trustee for payment unless an abandoned property law designates another person.
Defeasance. The Indenture contains provisions for defeasance at any time of the entire
principal of the Securities upon compliance by the Corporation with certain conditions set forth
therein.
Amendment; Supplement; Waiver. Subject to certain exceptions as therein provided, the
Indenture or the Securities may be amended or supplemented with the consent of the Holders of not
less than a majority in principal amount of the Securities of each series affected, 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 Securities. Without the consent of any Holder, the Indenture or the Securities of this
series may be amended or supplemented, for among other reasons, to cure any ambiguity, omission,
defect or inconsistency, to provide for uncertificated Securities in addition to or in place of
certificated Securities 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 Securities of this series if the waiver does not materially
adversely affect the rights of any Holder of Securities of this series.
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.
5
Successors. When a successor entity assumes all the obligations of the Corporation or its
successors under, and in compliance with, the Securities and the Indenture, the predecessor
Corporation will be released from those obligations.
Defaults and Remedies. An Event of Default is: default for 30 days in payment of any interest
on the Securities; default in payment of any principal on the Securities of this series; failure by
the Corporation for 90 days after notice to it given in accordance with the terms of the Indenture
to comply with any of its other agreements in the Indenture or the Securities; and certain events
of bankruptcy or insolvency, all as more fully set forth in the Indenture. If an Event of Default
with respect to Securities of this series shall occur and be continuing, the principal of the
Securities of this series and accrued interest thereon may be declared due and payable in the
manner and with the effect provided in the Indenture. Holders of Securities may not enforce the
Indenture or the Securities except as provided in the Indenture. The Trustee may refuse to enforce
the Indenture or the Securities unless it receives indemnity satisfactory to it. Subject to
certain limitations, holders of a majority in principal amount of the Securities 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 it determines in good
faith that withholding notice is in the interests of such holders.
Trustee Dealings with the Corporation. Branch Banking and Trust Company, the Trustee under
the Indenture, in its individual or any other capacity is a lender under the Corporations credit
facility and a underwriter of the Securities and 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.
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
Securities 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 Security waives and releases all such
liability. This waiver and release are part of the consideration for the issue of the Securities.
Authentication. This Security shall not be valid until the Trustee or other Authenticating
Agent manually signs the certificate of authentication on this Security.
Miscellaneous. This Security shall for all purposes be governed by, and construed in
accordance with, the laws of the State of New York.
All terms used in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
The Corporation will furnish to any holder upon written request and without charge a copy of
the Indenture. Requests may be made to: Martin Marietta Materials, Inc., 2710 Wycliff Road,
Raleigh, North Carolina 27607-3033 Attention: Secretary.
6
Exhibit 5.1
Exhibit 5.1
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787 Seventh Avenue |
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New York, NY 10019-6099 |
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Tel: 212 728 8000 |
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Fax: 212 728 8111 |
April 30, 2007
Martin Marietta Materials, Inc.
2710 Wycliff Road
Raleigh, North Carolina 27607
Re: Offering of Floating Rate Senior Notes and Fixed Rate Senior Notes
Ladies and Gentlemen:
We have acted as counsel for Martin Marietta Materials, Inc., a North Carolina corporation
(the Company), in connection with the execution and delivery by the Company of that certain
Underwriting Agreement, dated April 25, 2006, among the Company and the underwriters named on
Schedule I thereto (the Underwriting Agreement) relating to the sale of (i) $225,000,000
aggregate principal amount of Floating Rate Senior Notes due 2010 of the Company (the Floating
Rate Senior Notes) and (ii) $250,000,000 aggregate principal amount of 6 1/4% Senior Notes due 2037
of the Company (the Fixed Rate Senior Notes and together with the Floating Rate Senior Notes, the
Securities). The Floating Rate Senior Notes are being issued under that certain Indenture, dated
as of the date hereof (the Base Indenture), between the Company and Branch Banking & Trust
Company, Inc., as trustee (the Trustee), as supplemented by the First Supplemental Indenture,
dated as of the date hereof (the First Supplemental Indenture and together with the Base
Indenture, the Floating Rate Senior Notes Indenture), between the Company and the Trustee. The
Fixed Rate Senior Notes are being issued under the Base Indenture as supplemented by the Second
Supplemental Indenture, dated as of the date hereof (the Second Supplemental Indenture and
together with the Base Indenture, the Fixed Rate Senior Notes Indenture), between the Company and
the Trustee. The Fixed Rate Senior Notes Indenture and the Floating Rate Senior Notes Indenture
are collectively referred to as the Indenture. The Securities are being offered pursuant to Rule
415 under the Securities Act of 1933, as amended (the Securities Act), and have been registered
under the Companys Registration Statement on Form S-3 (File No. 333-142343) (the Registration
Statement).
In connection with the foregoing, we have examined originals or copies, certified or otherwise
identified to our satisfaction, of the Registration Statement, the final prospectus supplement
dated April 25, 2007 relating to the offer of the Securities, the Underwriting Agreement, the
Indenture, the certificate evidencing the Securities, the Officers Certificate of the Company
dated April 30, 2007 and delivered to the Trustee pursuant to the Indenture, the written order of
the Company dated April 30, 2007 and delivered to the Trustee pursuant to the Indenture, and such
other instruments, documents and certificates of public officials and certificates of officers of
the Company as we have deemed relevant and necessary as a basis for the opinions hereinafter set
forth. In all such examinations we have assumed the genuineness of all signatures on original or
certified or otherwise identified
Martin Marietta Materials, Inc.
April 30, 2007
Page 2
documents and the conformity to original or certified or otherwise identified documents of all
copies submitted to us as conformed or photostatic copies. As to questions of fact material to such
opinions, we have relied without independent investigation upon representations set forth in the
Underwriting, certificates of officers of the Company and certificates of public officials. We have
assumed (i) the accuracy of all factual matters contained therein and have made no independent
investigation or other effort to confirm the accuracy of such factual matters; (ii) the due
organization, valid existence and good standing of all parties under all applicable laws; (iii) the
legal right and power of all parties under all applicable laws and regulations to enter into,
execute and deliver such documents, agreements and instruments; and (iv) the due authorization of
all documents, agreements and instruments (including the Indentures and the Securities) by all
parties thereto.
On the basis of the foregoing and subject to the qualifications and limitations stated herein,
we are of the opinion that the Securities, when executed and authenticated in accordance with the
Indenture and delivered and paid therefor as provided in the Underwriting Agreement, will
constitute a valid and legally binding obligation of the Company enforceable against the Company in
accordance with their terms, except as enforceability may be limited by applicable bankruptcy,
insolvency or similar laws affecting the enforcement of creditors rights generally or by equitable
principles relating to enforceability, and will be entitled to the benefits of the Indenture.
This opinion is being rendered solely in connection with the registration of the offering and
sale of the Securities pursuant to the registration requirements of the Securities Act. We hereby
consent to the filing of this opinion as an exhibit to the Companys Current Report on Form 8-K,
which is incorporated by reference into the Registration Statement. By giving our consent, we do
not admit that we are in the category of persons whose consent is required under Section 7 of the
Securities Act or the rules and regulations issued or promulgated thereunder.
This opinion is limited to the laws of the State of New York and the Delaware General
Corporation Law, which includes the statutory provisions, applicable provisions of the Delaware
constitution and reported judicial decisions interpreting such provisions.
Very truly yours,
/s/ Willkie Farr & Gallagher LLP
Exhibit 5.2
Exhibit 5.2
ROBINSON, BRADSHAW & HINSON, P.A.
101 North Tryon Street, Suite 1900
Charlotte, North Carolina 28246
Telephone (704) 377-2536
Facsimile (704) 378-4000
April 30, 2007
Martin Marietta Materials, Inc.
2710 Wycliff Road
Raleigh, North Carolina 27607
Attention: Ms. Anne H. Lloyd
Ladies and Gentlemen:
We have served as special North Carolina counsel to Martin Marietta Materials, Inc. (the
Company),in connection with the Registration Statement on Form S-3 (file no. 333-142343)
(the Registration Statement) filed on April 25, 2007 by the Company with the Securities
and Exchange Commission (the Commission) under the Securities Act of 1933, as amended
(the Act), relating to the issuance and sale from time to time by the Company of an
indeterminate amount of its senior debt securities. The Company has entered into an Underwriting
Agreement, dated as of April 25, 2007, between the Company and J.P. Morgan Securities Inc., Banc of
America Securities LLC and Citigroup Global Markets Inc., as representatives of the several
underwriters listed therein, relating to the issuance and sale by the Company of $250,000,000
principal amount of its 6 1/4% Senior Notes due 2037 (the Fixed Rate Notes) and
$225,000,000 principal amount of its Floating Rate Senior Notes due 2010 (the Floating Rate
Notes and together with the Fixed Rate Notes, the Securities). The Company is
issuing the Securities under an Indenture, dated April 30, 2007, between the Company and Branch
Banking and Trust Company, as Trustee (the Base Indenture), the First Supplemental
Indenture dated April 30, 2007 between the Company and Branch Banking and Trust Company, as Trustee
(the First Supplemental Indenture), and the Second Supplemental Indenture dated April 30,
2007 between the Company and Branch Banking and Trust Company, as Trustee (the Second
Supplemental Indenture and together with the Base Indenture and the First Supplemental
Indenture, the Indenture).
These opinions are being furnished in accordance with the requirements of Item 601(b)(5) of
Regulation S-K promulgated under the Act. The Company will file a Current Report on Form 8-K with
respect to the offer and sale of the Securities (the Form 8-K) which is to include this
opinion letter as an exhibit. A copy of this opinion letter is also being provided to Willkie Farr
& Gallagher LLP, counsel assisting the Company in the issuance of the Securities, with the
understanding that Willkie Farr & Gallagher LLP will rely upon this opinion letter in providing its
opinion in accordance with the requirements of Item 601(b)(5) of Regulation S-K promulgated under
the Act.
Martin
Marietta Materials, Inc.
April 30, 2007
Page 2
In connection with these opinions, we have examined original, certified, conformed, electronic
or photographic copies, certified or otherwise identified to our satisfaction, of such records,
documents, certificates and instruments as we have deemed necessary and appropriate to enable us to
render the opinions expressed below.
In such review, we have assumed the genuineness of all signatures, the capacity of all natural
persons, the authenticity of all documents and certificates submitted to us as originals or
duplicate originals, the conformity to original documents and certificates of the documents and
certificates submitted to us as certified, electronic, conformed or facsimile copies, the
authenticity of the originals of such latter documents and certificates, the accuracy and
completeness of all statements contained in all such documents and certificates, and the integrity
and completeness of the minute books and records of the Company to the date hereof. As to all
questions of fact material to the opinions expressed herein that have not been independently
established, we have relied, without investigation or analysis of any underlying data, upon
certificates and statements of public officials and representatives of the Company.
Based upon the foregoing, and subject to all of the assumptions, limitations and
qualifications set forth herein, we are of the opinion that:
1. The Company is a corporation duly incorporated and validly existing under the laws of the
State of North Carolina.
2. The Indenture has been duly authorized, executed and delivered by the Company.
3. The Floating Rate Notes have been duly authorized, executed and delivered by the Company
and, assuming due authentication as provided in the Indenture and First Supplemental Indenture and
payment therefor pursuant to the Underwriting Agreement, are duly and validly issued and
outstanding.
4. The Fixed Rate Notes have been duly authorized, executed and delivered by the Company and,
assuming due authentication as provided in the Indenture and Second Supplemental Indenture and
payment therefor pursuant to the Underwriting Agreement, are duly and validly issued and
outstanding.
The foregoing opinions are limited to the laws of the State of North Carolina and the federal
laws of the United States of the type typically applicable to transactions contemplated by the
Exchange Offer, and we are expressing no opinion as to the effect of the laws of any other
jurisdiction.
We consent to the filing of this opinion as an exhibit to the Companys Form 8-K incorporated
by reference in the Registration Statement and to the reference to our firm under the caption
Legal Matters in the prospectus supplement included in the prospectus dated April 25, 2007 with
respect to the Securities filed by the Company with the Commission on April 26, 2007
Martin
Marietta Materials, Inc.
April 30, 2007
Page 3
pursuant to Rule 424(b)(5) under the Act. In giving such consent, we do not admit that we are in
the category of persons whose consent is required under Section 7 of the Act or that this consent
is required by Section 7 of the Act.
Very truly yours,
ROBINSON, BRADSHAW & HINSON, P.A.
/s/ Robinson, Bradshaw & Hinson, P.A.
cc: Willkie Farr & Gallagher LLP