Exhibit 4.1
MARTIN MARIETTA MATERIALS, INC.
as
Issuer
and
BRANCH BANKING AND TRUST COMPANY,
as
Trustee
THIRD SUPPLEMENTAL INDENTURE
Dated as of April 21, 2008
to
INDENTURE
Dated as of April 30, 2007
6.60% Senior Notes due 2018
TABLE OF CONTENTS
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ARTICLE 1.
DEFINITIONS
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Section 1.1.
Definition of Terms
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ARTICLE 2. GENERAL
TERMS AND CONDITIONS OF THE 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. FORM OF
NOTES
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Section 3.1.
Form of Senior Notes
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ARTICLE 4.
ORIGINAL ISSUE OF NOTES
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Section 4.1.
Original Issue of Senior Notes
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ARTICLE 5.
Defaults and Remedies
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Section 5.1.
Acceleration
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ARTICLE 6.
MISCELLANEOUS
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Section 6.1.
Ratification of Indenture
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Section 6.2.
Trustee Not Responsible for Recitals
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Section 6.3.
Governing Law
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Section 6.4.
Separability
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Section 6.5.
Counterparts
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EXHIBIT A –
Form Of Senior Notes
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A-1 |
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ii
THIRD SUPPLEMENTAL INDENTURE , dated as of April 21,
2008 (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 Corporation’s 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
“6.60% Senior Notes due 2018” (the “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 the Board of Directors of
the Corporation pursuant to resolutions duly adopted on
April 14, 2008 and resolutions of the Chairman Finance
Committee of the Board of Directors of the Corporation duly adopted
on April 16, 2008, have duly authorized the issuance of the
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 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 Senior Notes by the Holders thereof, and for
the purpose of setting forth, as provided in the Indenture, the
forms and terms of the 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 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 “6.60% Senior Notes due
2018”, which is not limited in aggregate principal amount.
The aggregate principal amount of the Senior Notes to be issued
shall be as set forth in any Corporation order for the
authentication and delivery of the Senior Notes, pursuant to
Section 2.1 of the Indenture.
Section 2.2.
Maturity . The stated maturity of principal for the Senior
Notes will be April 15, 2018.
Section 2.3.
Further Issues . The Corporation may from time to time,
without the consent of the Holders of the 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 Senior Notes. Any such additional notes, together with the
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 Senior Notes shall be payable in U.S.
dollars.
Section 2.5.
Global Securities . Upon the original issuance, the 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 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 Senior Notes to accelerate the Senior Notes’ maturity
shall have occurred and be continuing.
Section 2.6.
Interest . The Senior Notes will bear interest (computed on
the basis of a 360-day year consisting of twelve 30-day months)
from April 21, 2008 at the rate of 6.60% per annum, payable
semiannually in arrears; interest payable on each interest payment
date will include interest accrued from April 21, 2008, 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 April 15 and October 15,
commencing on October 15, 2008; and the record date for the
interest payable on any interest payment date is the close of
business on April 1 or October 1, as the case may be, next
preceding the relevant Interest Payment Date.
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Section 2.7.
Authorized Denominations . The Senior Notes shall be
issuable in denominations of $2,000 and integral multiples of
$1,000 in excess thereof.
Section 2.8.
Redemption . The Senior Notes are subject to redemption at
the option of the Corporation as set forth in the form of 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 Senior Notes in
accordance with the redemption terms as set forth in the Senior
Notes, the Corporation shall make an irrevocable offer
(“Change of Control Offer”) to each Holder of 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
Holder’s Senior Notes at a repurchase price in cash equal to
101% of the aggregate principal amount of Senior Notes repurchased
plus any accrued and unpaid interest on the Senior Notes
repurchased to, but not including, the date of repurchase (a
“Change of Control Payment”).
(b) Within
30 days following any Change of Control Repurchase Event or,
at the Corporation’s 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 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 Senior Notes tendered on the payment
date specified in such notice;
(iii)
setting forth the payment date for the repurchase of the Senior
Notes, which date will be no earlier than 30 days and no later
than 60 days from the date such notice is mailed (a
“Change of Control Payment Date”); 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 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
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) In
order to accept the Change of Control Offer, the Holder must
deliver to the Paying Agent, at least five Business Days prior to
the Change of Control Payment Date, the Senior Note together with
the form entitled “Election Form” (which form is
annexed as Annex A
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to the
Form of Senior Note set forth in Exhibit A hereto) duly
completed, or a telegram, telex, facsimile transmission or a letter
from a member of a national securities exchange or the Financial
Industry Regulatory Authority or a commercial bank or trust company
in the United States setting forth:
(i) the
name of the Holder of the Senior Note;
(ii)
the principal amount of the Senior Note;
(iii)
the principal amount of the Senior Note to be repurchased;
(iv)
the certificate number or a description of the tenor and terms of
the Senior Note;
(v) a
statement that the Holder is accepting the Change of Control Offer;
and
(vi) a
guarantee that the Senior Note, together with the form entitled
“Election Form” duly completed, will be received by the
Paying Agent at least five Business Days prior to the Change of
Control Payment Date.
Any
exercise by a Holder of its election to accept the Change of
Control Offer shall be irrevocable. The Change of Control Offer may
be accepted for less than the entire principal amount of the Senior
Note, but in that event the principal amount of the Senior Note
remaining outstanding after repurchase must be equal to $2,000 and
in integral multiples of $1,000 in excess thereof.
(e) On
the repurchase date following a Change of Control Repurchase Event,
the Corporation shall, to the extent lawful:
(i)
accept for payment all 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 Senior Notes or portions thereof
properly tendered; and
(iii)
deliver or cause to be delivered to the Trustee the Senior Notes
properly accepted, together with an Officers’ Certificate of
the Corporation stating the aggregate principal amount of Senior
Notes or portions thereof being repurchased by the
Corporation.
(f) The
Paying Agent will promptly mail to each Holder of Senior Notes
properly tendered, the purchase price for such Senior Notes, and
the Trustee, upon the execution and delivery by the Corporation of
such 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 Senior Notes surrendered; provided that each new Fixed Rate
Senior Note will be in a principal amount of an integral multiple
of $1,000.
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(g) The
Corporation shall not be required to make an offer to repurchase
the 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 Senior Notes
properly tendered and not withdrawn under its offer.
(h) Solely
for purposes of this Section 2.9 in connection with the Senior
Notes, the following terms shall have the following meanings:
“Below
Investment Grade Rating Event” means the rating on the Senior
Notes is lowered by at least two of the three Rating Agencies and
the Senior Notes are rated below an Investment Grade Rating by at
least two of the three Rating Agencies on any day during the period
(which period shall be extended so long as the rating of the Senior
Notes is under publicly announced consideration for a possible
downgrade by any of the Rating Agencies) commencing 60 days
prior to the first public notice of the occurrence of a Change of
Control or the Corporation’s intention to effect a Change of
Control and ending 60 days following consummation of such
Change of Control.
“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
Corporation’s 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), (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, or
(iv) the adoption of a plan relating to the liquidation or
dissolution of the Corporation.
“Change
of Control Repurchase Event” means the occurrence of both a
Change of Control and a Below Investment Grade Ratings Event.
“Fitch”
means Fitch Inc. and its successors.
“Investment
Grade Rating” means a rating equal to or higher than Baa3 (or
the equivalent) by Moody’s, BBB-(or the equivalent) by
S&P and BBB- (or the equivalent) by Fitch and the equivalent
investment grade credit rating from any replacement rating agency
or rating agencies selected by the Corporation.
“Moody’s”
means Moody’s Investors Service, Inc. and its
successors.
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“Rating
Agency” means (1) each of Moody’s, S&P and
Fitch; and (2) if any of Moody’s, S&P or Fitch
ceases to rate the Senior Notes of this series or fails to make a
rating of such Senior Notes publicly available for reasons outside
of the Corporation’s control, a “nationally recognized
statistical rating organization” within the meaning of
Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act selected by
the Corporation (as certified by a resolution of the
Corporation’s Board of Directors) to act as a replacement
agency for Moody’s, S&P or Fitch, or all of them, as the
case may be.
“S&P”
means Standard & Poor’s Ratings Services, a division of
The McGraw-Hill Companies, Inc. and its successors.
“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 Senior Notes.
ARTICLE 3.
FORM OF NOTES
Section 3.1.
Form of Senior Notes . The Senior Notes and the
Trustee’s 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 Senior Notes . The 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 Senior Notes as in such Corporation order provided.
ARTICLE 5.
DEFAULTS AND REMEDIES
Section 5.1. Acceleration
. For purposes of the Senior Notes, Section 6.2 of the
Indenture shall be replaced with, and superseded by, the
following:
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, and upon a declaration such
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principal and
interest shall be due and payable immediately; provided, however,
that if an Event of Default specified in Section 6.1(4) or
Section 6.1(5) of the Indenture with respect to the
Corporation shall occur and be continuing, the principal of,
premium, if any, and accrued and unpaid interest on all the
Securities of that series will become immediately due and payable
without any declaration or other act on the part of the Trustee or
any Holders. 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
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