Vulcan Materials Company
Floating Rate Notes due 2010
5.60% Notes due 2012
6.40% Notes due 2017
7.15% Notes due 2037
Underwriting Agreement
December 6, 2007
Banc of America Securities LLC,
Goldman, Sachs & Co.,
J.P. Morgan Securities Inc.,
Wachovia Capital Markets, LLC
As Representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
Vulcan Materials Company, a New Jersey corporation (formerly Virginia Holdco, Inc. and herein
referred to as the Company), proposes, subject to the terms and conditions stated herein, to
issue and sell to the Underwriters named in Schedule I hereto (the Underwriters) an aggregate of
(i) $325,000,000 principal amount of Floating Rate Notes due 2010, (ii) $300,000,000 principal
amount of 5.60% Notes due 2012, (iii) $350,000,000 principal amount of 6.40% Notes due 2017 and
(iv) $250,000,000 principal amount of 7.15% Notes due 2037 (together, the Securities).
1. The Company represents and warrants to, and agrees with, each of the Underwriters that:
(a) An automatic shelf registration statement as defined under Rule 405 under the Securities
Act of 1933, as amended (the Act), on Form S-3 (File No. 333-147796) in respect of the Securities
has been filed by the Company with the Securities and Exchange Commission (the Commission) not
earlier than
three years prior to the date hereof; such registration statement, and any post-effective
amendment thereto, became effective on filing; and no stop order suspending the effectiveness of
such registration statement or any part thereof has been issued under the Act and no proceeding for
that purpose has been initiated, or to the knowledge of the Company has been threatened by the
Commission, 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 Act has been received
by the Company (the base prospectus filed as part of such registration statement, in the form in
which it has most recently been filed with the Commission on or prior to the date of this
Agreement, is hereinafter called the Basic Prospectus; any preliminary prospectus (including any
preliminary prospectus supplement) relating to the Securities filed with the Commission pursuant to
Rule 424(b) under the Act is hereinafter called a Preliminary Prospectus; the various parts of
such registration statement, including all exhibits thereto and any prospectus supplement relating
to the Securities that is filed with the Commission and deemed by virtue of Rule 430B under the Act
to be part of such registration statement, each as amended at the time such part of the
registration statement became effective, are hereinafter collectively called the Registration
Statement; the Basic Prospectus, as amended and supplemented immediately prior to the Applicable
Time (as defined in Section 1(c) hereof), is hereinafter called the Pricing Prospectus; the form
of the final prospectus relating to the Securities filed with the Commission pursuant to Rule
424(b) under the Act in accordance with
Section 5(a) hereof is hereinafter called the Prospectus;
any reference herein to the Basic Prospectus, the Pricing 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 Act, as of the date of such prospectus; any
reference to any amendment or supplement to the Basic Prospectus, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any post-effective amendment to the Registration
Statement, any prospectus supplement relating to the Securities filed with the Commission pursuant
to Rule 424(b) under the Act and any documents filed under the Securities Exchange Act of 1934, as
amended (the Exchange Act), and incorporated by reference into such Basic Prospectus, Preliminary
Prospectus or Prospectus, in each case after the date of the Basic Prospectus, such Preliminary
Prospectus, or the Prospectus, as the case may be; any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any annual report of the Company
filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date of the
Registration Statement that is incorporated by reference in the Registration Statement; and any
issuer free writing prospectus as defined in Rule 433 under the Act relating to the Securities is
hereinafter called an Issuer Free Writing Prospectus);
(b) No order preventing or suspending the use of any Preliminary Prospectus or any Issuer Free
Writing Prospectus has been issued by the
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Commission, and each Preliminary Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the Act and the Trust Indenture Act of 1939, as amended
(the Trust Indenture Act) and the rules and regulations of the Commission thereunder, and did 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; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through the Representatives
expressly for use therein;
(c) For the purposes of this Agreement, the Applicable Time is 4:00 p.m. (Eastern time) on
the date of this Agreement; the Pricing Prospectus as supplemented by the final term sheets
prepared and filed pursuant to Section 5(a) hereof and the Issuer Free Writing Prospectuses, if
any, identified on Schedule II(a) hereto, taken together (collectively, the Pricing Disclosure
Package) as of the Applicable Time, did not 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 under which they were made, not misleading; and each Issuer Free Writing
Prospectus listed on Schedule II(b) hereto does not conflict with the information contained in the
Registration Statement, the Pricing Prospectus or the Prospectus and each such Issuer Free Writing
Prospectus, as supplemented by and taken together with the Pricing Disclosure Package as of the
Applicable Time, did not 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
under which they were made, not misleading; provided, however, that this representation and
warranty shall not apply to statements or omissions made in the Pricing Prospectus or an Issuer
Free Writing Prospectus in reliance upon and in conformity with information furnished in writing to
the Company by an Underwriter through the Representatives expressly for use therein;
(d) The documents incorporated by reference in the Pricing Prospectus and the Prospectus, when
they became effective or were filed with the Commission, as the case may be, conformed in all
material respects to the requirements of the Act or the Exchange Act, as applicable, and the
applicable rules and regulations of the Commission thereunder, and when read together with the
other information in the Registration Statement, the Pricing Disclosure Package and the Prospectus,
at the respective times the Registration Statement and any amendments thereto became effective, as
of the Applicable Time, at the date of the Prospectus and at the Time of Delivery (as defined
below), 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
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misleading; any further documents so filed and incorporated by reference in the Prospectus or
any further amendment or supplement thereto, when such documents become effective or are filed with
the Commission, as the case may be, will conform in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder 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; provided, however, that this
representation and warranty shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company by an Underwriter through
the Representatives expressly for use therein; and no such documents were filed with the Commission
since the Commissions close of business on the business day immediately prior to the date of this
Agreement and prior to the execution of this Agreement, except as set forth on Schedule II(c)
hereto;
(e) The Registration Statement conforms, and the Prospectus and any further amendments or
supplements to the Registration Statement and the Prospectus will conform, as of the applicable
effective date as to the Registration Statement and as of the applicable filing date and as of the
Time of Delivery as to the Prospectus, in all material respects to the requirements of the Act and
the Trust Indenture Act and the rules and regulations of the Commission thereunder and do not and
will not, as of the applicable effective date as to each part of the Registration Statement and as
of the applicable filing date as to the Prospectus and any amendment or supplement thereto, 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 not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company by an Underwriter through
the Representatives expressly for use therein or to any statements in or omissions from the
Statement of Eligibility of the Trustee under the Indenture;
(f) Neither the Company nor any of its subsidiaries has sustained since the respective dates
of the latest audited financial statements included or incorporated by reference in the Pricing
Prospectus and the Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, which is material to the Company and its
subsidiaries taken as a whole otherwise than as set forth or contemplated in the Pricing Prospectus
and the Prospectus; and, since the respective dates as of which information is given in the
Registration Statement, the Pricing Prospectus and the Prospectus, there has not been any material
change in the capital stock or long term debt (which is debt with a maturity of a year or more) of
the
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Company or any of its significant subsidiaries (as defined in Rule 1-02(w) of Regulation S-X)
(Significant Subsidiaries) or any material adverse change in or affecting the business,
management, financial position, shareholders equity, results of operations, or to the knowledge of
the Company in the business prospects, of the Company and its subsidiaries taken as a whole,
otherwise than as set forth or contemplated in the Pricing Prospectus and the Prospectus;
(g) (i) The Company and its Significant Subsidiaries have good and valid title to all of the
properties and assets reflected in the financial statements included or incorporated by reference
in the Pricing Prospectus and Prospectus, subject to no lien, mortgage, pledge, charge or
encumbrance of any kind except those reflected in such financial statements or which are not
material in nature or amount; and (ii) the Company and its Significant Subsidiaries use or occupy
their leased properties under valid and binding leases; except in (i) and (ii) as would not
individually or in the aggregate have a material adverse effect on the business, consolidated
financial position, shareholders equity, results of operations, or to the knowledge of the Company
in the business prospects, of the Company and any of its subsidiaries taken as a whole (a Material
Adverse Effect);
(h) The Company has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of New Jersey, with corporate power and authority to own its
properties and conduct its business as described in the Pricing Prospectus and the Prospectus, and
has been duly qualified as a foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which such qualification is required, except
where the failure to so qualify or be in good standing would not result in a Material Adverse
Effect; and each Significant Subsidiary of the Company has been duly organized and is validly
existing as a corporation or other organization in good standing under the laws of the jurisdiction
in which it is chartered or organized;
(i) The Company has, on a pro forma basis giving effect to the mergers (as such term is used
in the Registration Statement) as of September 30, 2007, an authorized capitalization as set forth
under the caption Capitalization (in the column labeled Pro Forma) in the Pricing Prospectus
and the Prospectus and all of the issued shares of capital stock of the Company have been duly and
validly authorized and issued and are fully paid and non-assessable;
(j) The Securities have been duly authorized and, when issued and delivered pursuant to this
Agreement and the Indenture, will have been duly executed, authenticated, issued and delivered and
will constitute valid and legally binding obligations of the Company entitled to the benefits
provided by the indenture to be dated as of December 11, 2007 (the Indenture) between the
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Company and Wilmington Trust Company as Trustee (the Trustee), under which they are to be
issued, which is substantially in the form filed as an exhibit to the Registration Statement; the
Indenture has been duly authorized by the Company and 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 instrument, enforceable in accordance with its terms, except as (i) the
enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting
the enforcement of creditors rights generally and (ii) rights of acceleration and the availability
of other remedies may be limited by equitable principles of general applicability;
(k) 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 breach or
violation of any of the terms or provisions of, or constitute a default under, 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, except
for such conflicts, breaches, violations or defaults that would not individually or in the
aggregate have a Material Adverse Effect, nor will such action result in any violation of any
statute or any order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their properties, except for
such violations that would not individually or in the aggregate have a Material Adverse Effect, nor
will such action result in any violation of the provisions of the Certificate of Incorporation or
By-laws of the Company; and no material 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 such as have been, or will have been prior to the Time of
Delivery, obtained under the Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of the Securities by the Underwriters;
(l) Neither the Company nor any of its Significant Subsidiaries is in violation of its
Certificate of Incorporation or By-laws (or other organizational documents) or in default in the
performance or observance of any obligation, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound, except for defaults that would not have
a Material Adverse Effect;
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(m) The Securities and the Indenture will conform in all material aspects to the descriptions
thereof in the Pricing Prospectus and the Prospectus;
(n) Other than as set forth in the Pricing Prospectus 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, if determined
adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a
Material Adverse Effect; and, to the Companys knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(o) The Company is not and, after giving effect to the offering and sale of the Securities and
the application of the proceeds thereof, will not be an investment company, as such term is
defined in the Investment Company Act of 1940, as amended (the Investment Company Act);
(p) Other than as set forth in the Pricing Prospectus and the Prospectus, the property, assets
and operations of the Company and its Significant Subsidiaries comply in all material respects with
all applicable federal, state and local law, common law, doctrine, rule, order, decree, judgment,
injunction, license, permit and regulation relating to environmental matters (the Environmental
Laws), except to the extent that failure to comply with such Environmental Laws would not have a
Material Adverse Effect; to the knowledge of the Company, none of the property, assets or
operations of the Company and its Significant Subsidiaries is the subject of any federal, state or
local investigation evaluating whether any remedial action is needed to respond to a release into
the environment of any substance regulated by, or form the basis of liability under, any
Environmental Laws (a Hazardous Material), or is in contravention of any Environmental Law that
would have a Material Adverse Effect; neither the Company nor any subsidiary has received any
notice or claim, nor are there pending or, to the Companys knowledge, threatened lawsuits against
them with respect to violations of an Environmental Law or in connection with the release of any
Hazardous Material into the environment that would reasonably be expected to have a Material
Adverse Effect; and neither the Company nor any subsidiary has any contingent liability in
connection with any release of Hazardous Material into the environment, that is material with
respect to the Company and its subsidiaries taken as a whole;
(q) (A) (i) At the time of filing the Registration Statement, (ii) at the time of the most
recent amendment thereto for the purposes of complying with Section 10(a)(3) of the 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), and (iii) at the time the Company or any person
acting on its behalf (within the meaning, for this clause only, of
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Rule 163(c) under the Act) made any offer relating to the Securities in reliance on the exemption
of Rule 163 under the Act, the Company was a well-known seasoned issuer as defined in Rule 405
under the Act; and (B) at the earliest time after the filing of the Registration Statement that the
Company or another offering participant made a bona fide offer (within the meaning of Rule
164(h)(2) under the Act) of the Securities, the Company was not an ineligible issuer as defined
in Rule 405 under the Act;
(r) Deloitte & Touche LLP, who have expressed its opinion with respect to certain financial
statements of Vulcan Materials Company (which was renamed Legacy Vulcan Corp. on November 16, 2007)
and its subsidiary companies (collectively referred to herein as VMC), VMCs internal control
over financial reporting and managements assessment thereof, all included or incorporated by
reference in the Registration Statement, Pricing Prospectus and Prospectus, was and will be an
independent registered public accounting firm with respect to the Company as of the Applicable Time
and the Time of Delivery, and was an independent registered public accounting firm with respect to
VMC as of November 16, 2007, as required by the Act and the applicable rules and regulations of the
Commission thereunder; KPMG LLP, who have expressed its opinion with respect to certain financial
statements of Florida Rock Industries, Inc. (Florida Rock) and its subsidiaries included or
incorporated by reference in the Registration Statement, Pricing Prospectus and Prospectus, Florida
Rocks internal control over financial reporting included or incorporated by reference in the
Registration Statement, Pricing Prospectus and Prospectus was an independent registered public
accounting firm with respect to Florida Rock as of November 16, 2007 as required by the Act and the
applicable rules and regulations of the Commission thereunder;
(s) The Company maintains a system of internal control over financial reporting (as such term
is defined in Rule 13a-15(f) under the Exchange Act) that complies with the requirements of the
Exchange Act and has been designed by the Companys principal executive officer and principal
financial officer, or under their supervision, 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. The Companys internal
control over financial reporting is effective and the Company is not aware of any material
weaknesses in its internal control over financial reporting;
(t) Since the dates of the latest audited financial statements of VMC and Florida Rock
included or incorporated by reference in the Pricing Prospectus and the Prospectus, there has been
no change in the Companys internal control over financial reporting that has materially affected,
or is reasonably likely to materially affect, the Companys internal control over financial
reporting. On November 16, 2007, the Company acquired Florida Rock which maintains its
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own system of internal controls over financial reporting that differs in certain respects from
the system of internal controls maintained by the Company and VMC. Except as disclosed in the
Pricing Prospectus and the Prospectus, since the end of Florida Rocks most recent audited fiscal
year, Florida Rock has not reported that there has been, and the Company has no knowledge that
there has been (x) any material weakness in Florida Rocks internal control over financial
reporting (whether or not remediated) or (y) any change in Florida Rocks internal control over
financial reporting that has materially affected, or is reasonably likely to affect, Florida Rocks
internal control over financial reporting; provided, however that no representation is made that
changes in the Companys, VMCs or Florida Rocks internal controls will not be made in the future
as a result of Florida Rocks becoming a wholly-owned subsidiary of the Company; and
(u) The Company maintains disclosure controls and procedures (as such term is defined in Rule
13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange Act; such
disclosure controls and procedures have been designed to ensure that material information relating
to the Company and its subsidiaries is made known to the Companys principal executive officer and
principal financial officer by others within those entities; and such disclosure controls and
procedures are effective.
2. Subject to the terms and conditions herein set forth, the Company agrees to issue and sell
to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company (i) at a purchase price of 99.55% of the aggregate principal amount
thereof, plus accrued interest, if any, from December 11, 2007 to the Time of Delivery (as defined
below) hereunder, the aggregate principal amount of Floating Rate Notes due 2010, set forth
opposite the name of such Underwriter in Schedule I hereto, (ii) at a purchase price of 99.222% of
the aggregate principal amount thereof, plus accrued interest, if any, from December 11, 2007 to
the Time of Delivery hereunder, the aggregate principal amount of 5.60% Notes due 2012, set forth
opposite the name of such Underwriter in Schedule I hereto, (iii) at a purchase price of 99.295% of
the principal amount thereof, plus accrued interest, if any, from December 11, 2007 to the Time of
Delivery hereunder, the principal amount of 6.40% Notes due 2017, set forth opposite the name of
such Underwriter in Schedule I hereto and (iv) at a purchase price of 98.847% of the principal
amount thereof, plus accrued interest, if any, from December 11, 2007 to the Time of Delivery
hereunder, the principal amount of 7.15% Notes due 2037, set forth opposite the name of such
Underwriter in Schedule I hereto.
3. Upon the authorization by you of the release of the Securities, the several Underwriters
propose to offer the Securities for sale upon the terms and conditions set forth in the Prospectus.
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4. (a) The Securities to be purchased by each Underwriter hereunder will be represented by
one or more definitive global Securities in book-entry form which will be deposited by or on behalf
of the Company with The Depository Trust Company (DTC) or its designated custodian. The Company
will deliver the Securities to the Representatives, for the account of each Underwriter, against
payment by or on behalf of such Underwriter of the purchase price therefor by wire transfer of
Federal (same-day) funds to the account specified by the Company to the Representatives at least
twenty-four hours in advance, by causing DTC to credit the Securities to the respective accounts of
the Representatives at DTC. The Company will cause the certificates representing the Securities to
be made available to the Representatives for checking at least twenty-four hours prior to the Time
of Delivery (as defined below) at the office of DTC or its designated custodian (the Designated
Office). The time and date of such delivery and payment shall be 9:30 a.m., New York City time,
on December 11, 2007 or such other time and date as the Representatives and the Company may agree
upon in writing. Such time and date are herein called the Time of Delivery.
(b) The documents to be delivered at the Time of Delivery by or on behalf of the parties
hereto pursuant to Section 8 hereof, including the cross-receipt for the Securities and any
additional documents requested by the Underwriters pursuant to Section 8(l) hereof, will be
delivered at the offices of Sullivan & Cromwell LLP, 125 Broad Street, New York, New York 10004
(the Closing Location), and the Securities will be delivered at the Designated Office, all at the
Time of Delivery. A meeting will be held at the Closing Location at 4:00 p.m., New York City time,
on the New York Business Day next preceding the Time of Delivery, at which meeting the final drafts
of the documents to be delivered pursuant to the preceding sentence will be available for review by
the parties hereto. For the purposes of this Section 4, New York Business Day shall mean each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in
New York City are generally authorized or obligated by law or executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file such Prospectus pursuant
to Rule 424(b) under the Act not later than the Commissions close of business on the second
business day following the date of this Agreement; to make no further amendment or any supplement
to the Registration Statement, the Basic Prospectus or the Prospectus prior to the Time of Delivery
which shall be disapproved by you in your reasonable judgment promptly after reasonable notice
thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment
to the Registration Statement has been filed or becomes effective or any amendment or supplement to
the Prospectus has been filed and to furnish you with copies thereof; to prepare final
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term sheets, containing a description of the Securities, substantially in the forms attached
as Schedules III-1, III-2, III-3 and III-4 hereto, and to file such term sheets pursuant to
Rule 433(d) under the Act within the time required by such Rule; to file promptly all other
material required to be filed by the Company with the Commission pursuant to Rule 433(d) under the
Act; to file within the required time periods all 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 subsequent to the date of the Prospectus and for so long as
the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the
Act) is required under the Act in connection with the offering or sale of the Securities; to advise
you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order
or of any order preventing or suspending the use of any Preliminary Prospectus or other prospectus
in respect of the Securities, 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
Act, of the suspension of the qualification of the Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the Registration Statement or the
Prospectus or for additional information; and, in the event of the issuance of any stop order or of
any order preventing or suspending the use of any Preliminary Prospectus or other prospectus or
suspending any such qualification, to promptly use its best efforts to obtain the withdrawal of
such order; and in the event of any such issuance of a notice of objection, promptly to take such
steps including, without limitation, amending the Registration Statement or filing a new
registration statement, at its own expense, as may be necessary to permit offers and sales of the
Securities by the Underwriters (references herein to the Registration Statement shall include any
such amendment or new registration statement);
(b) If required by Rule 430B(h) under the Act, to prepare a form of prospectus in a form
approved by you and to file such form of prospectus pursuant to Rule 424(b) under the Act not later
than may be required by Rule 424(b) under the Act; and to make no further amendment or supplement
to such form of prospectus which shall be disapproved by you promptly after reasonable notice
thereof;
(c) Promptly from time to time to take such action as you may reasonably require to qualify
the Securities for offering and sale under the securities laws of such jurisdictions as you may
reasonably require and to maintain such qualification so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary to complete the distribution
of the Securities up to one year from the date hereof, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction or
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to qualify as a foreign corporation or as a broker or dealer in securities in any jurisdiction
in which it is not so qualified or to subject itself to taxation in respect of doing business in
any jurisdiction in which it is not otherwise so subject;
(d) To
furnish the Underwriters with (i) electronic copies of the Prospectus prior to 3:00 p.m., New York City time,
on the New York Business Day next succeeding the
date of this Agreement and from time to time, and (ii) written copies
of the Prospectus prior to 10:00 a.m., New York City time, on the
second New York Business Day next succeeding the date of this
Agreement and from time to time, in each case in such quantities as you may reasonably
request, and, if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) is required at any time prior to the expiration of nine months after the time
of issue of the Prospectus in connection with the offering or sale of the Securities and if at such
time any event shall have occurred as a result of which the Prospectus as then amended or
supplemented would include an 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 under
which they were made when such Prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) is delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in order to comply with the
Act, the Exchange Act or the Trust Indenture Act, to notify you and upon your request to file such
document and to prepare and furnish without charge to each Underwriter and to any dealer in
securities as many written and electronic copies as you may from time to time reasonably request of
an amended Prospectus or a supplement to the Prospectus which will correct such statement or
omission or effect such compliance; and in case any Underwriter is required to deliver a prospectus
(or in lieu thereof, the notice referred to in Rule 173(a) under the Act) in connection with sales
of any of the Securities at any time nine months or more after the time of issue of the Prospectus,
upon your request but at the expense of such Underwriter, to prepare and deliver to such
Underwriter as many written and electronic copies as you may request of an amended or supplemented
Prospectus complying with Section 10(a)(3) of the Act;
(e) To make generally available to its securityholders as soon as practicable, but in any
event not later than sixteen months after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including, at the option of the Company, Rule 158);
(f) During the period beginning from the date hereof and continuing to and including the later
of the Time of Delivery and such earlier time as you may notify the Company, not to offer, sell,
contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose,
except as provided
-12-
hereunder of, any securities of the Company that mature more than one year after such Time of
Delivery and that are substantially similar to the Securities;
(g) To pay the required Commission filing fees relating to the Securities within the time
required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in
accordance with Rules 456(b) and 457(r) under the Act; and
(h) To use the net proceeds received by it from the sale of the Securities pursuant to this
Agreement in the manner specified in the Pricing Prospectus and the Prospectus under the caption
Use of Proceeds.
6.
(a) (i) The Company represents and agrees that, other than the final term sheets prepared and
filed pursuant to Section 5(a) hereof, without the prior consent of the Representatives, it has not
made and will not make any offer relating to the Securities that would constitute a free writing
prospectus as defined in Rule 405 under the Act;
(ii) each Underwriter represents and agrees that, without the prior consent of the Company and
the Representatives, other than the final term sheets prepared and filed pursuant to 5(a) hereof
term sheets relating to the Securities containing customary information and conveyed to purchasers
of Securities, it has not made and will not make any offer relating to the Securities that would
constitute an Issuer Free Writing Prospectus or any other free writing prospectus that would be
required to be filed with the Commission; and
(iii) any such free writing prospectus the use of which has been consented to by the Company
and the Representatives (including the final term sheets prepared and filed pursuant to
Section 5(a) hereof) is listed on Schedule II(a) or Schedule II(b) hereto, as applicable;
(b) The Company has complied and will comply with the requirements of Rule 433 under the Act
applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or
retention where required and legending; and
(c) The Company agrees that if at any time following issuance of an Issuer Free Writing
Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus
would conflict with the information in the Registration Statement, the Pricing Prospectus or the
Prospectus or would include an 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 then
prevailing, not misleading, the Company will give prompt notice thereof to the Representatives and,
if requested by the Representatives,
-13-
will prepare and furnish without charge to each Underwriter an Issuer Free Writing Prospectus
or other document which will correct such conflict, statement or omission; provided, however, that
this representation and warranty shall not apply to any statements or omissions in an Issuer Free
Writing Prospectus made in reliance upon and in conformity with information furnished in writing to
the Company by an Underwriter through the Representatives expressly for use therein.
7. The Company covenants and agrees with the several Underwriters that the Company will pay or
cause to be paid the following: (i) the fees, disbursements and expenses of the Companys counsel
and accountants in connection with the registration and sale of the Securities under the Act and
all other expenses in connection with the preparation, printing, reproduction and filing of the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus, any Issuer Free Writing
Prospectus and the Prospectus and amendments and supplements thereto and the mailing and delivering
of copies thereof to the Underwriters and dealers; (ii) the cost of printing or producing any
Agreement among Underwriters, this Agreement, the Indenture, the Blue Sky Memorandum, closing
documents (including any compilations thereof) and any other documents in connection with the
offering, purchase, sale and delivery of the Securities; (iii) all reasonable expenses in
connection with the qualification of the Securities for offering and sale under state securities
laws as provided in Section 5(c) hereof, including the reasonable fees and disbursements of counsel
for the Underwriters in connection with such qualification and in connection with the Blue Sky
survey; (iv) any fees charged by securities rating services for rating the Securities; (v) the
filing fees incident to, and the reasonable fees and disbursements of counsel for the Underwriters
in connection with, any required review by the Financial Industry Regulatory Authority of the terms
of the sale of the Securities; (vii) the cost of preparing the Securities; (viii) the fees and
expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for
the Trustee in connection with the Indenture and the Securities; and (ix) all other costs and
expenses incident to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that, except as provided in
this Section and Sections 9 and 12 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, transfer taxes on resale of any of the Securities by
them, and any advertising expenses connected with any offers they may make.
8. The obligations of the Underwriters to purchase and pay for the Securities hereunder shall
be subject, in their discretion, to the condition that all representations and warranties and other
statements of the Company herein are, at and as of the Time of Delivery, true and correct, the
condition that the Company shall have performed all of its obligations hereunder theretofore to be
performed, and the following additional conditions:
-14-
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the
Act within the applicable time period prescribed for such filing by the rules and regulations under
the Act and in accordance with Section 5(a) hereof; the final term sheets contemplated by
Section 5(a) hereof, and any other material required to be filed by the Company pursuant to Rule
433(d) under the Act, shall have been filed with the Commission within the applicable time periods
prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission and no 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 Act shall have been received by the Company; no stop order
suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have
been initiated or threatened by the Commission; and all requests for additional information on the
part of the Commission shall have been complied with to your reasonable satisfaction;
(b) Sullivan & Cromwell LLP, counsel for the Underwriters, shall have furnished to you such
written opinion or opinions, dated such Time of Delivery, with respect to such matters as you may
reasonably request, and such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters, and may rely upon the opinion of New
Jersey counsel with respect to matters of New Jersey law;
(c) William F. Denson, III, Esq., Senior Vice President and General Counsel, for the Company
shall have furnished to you his written opinion dated the Time of Delivery, in form and substance
satisfactory to you, to the effect set forth in Annex II(A) hereto, and he may rely upon the
opinion of New Jersey counsel with respect to matters of New Jersey law:
(d) Lowenstein Sandler PC, special New Jersey counsel for the Company, shall have furnished to
you their written opinion, dated the Time of Delivery, in form and substance satisfactory to you,
to the effect set forth in Annex II(B) hereto;
(e) McGuireWoods LLP, special Florida counsel for the Company, shall have furnished to you
their written opinion, dated the Time of Delivery, in form and substance satisfactory to you, to
the effect set forth in Annex II(C) hereto;
(f) Wachtell, Lipton, Rosen & Katz, counsel for the Company, shall have furnished to you their
written opinion, dated the Time of Delivery, in form and substance satisfactory to you, to the
effect set forth in Annex II(D) hereto, and such counsel may rely upon the opinion of New Jersey
counsel with respect to matters of New Jersey law;
-15-
(g) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30
a.m., New York City time, on the effective date of any post effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at the Time of Delivery, each of
Deloitte & Touche LLP and KPMG LLP shall have furnished to you a letter or letters, dated the
respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set
forth in Annex I hereto (the executed copy of the letters delivered prior to the execution of this
Agreement are attached as Annex I(a) hereto and forms of letters to be delivered on the effective
date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery
are attached as Annex I(b) hereto);
(h) (i) Neither the Company nor any of its subsidiaries shall have sustained since the
respective dates of the latest audited financial statements of VMC and Florida Rock included or
incorporated by reference in the Pricing Prospectus and the Prospectus any loss or interference
with its business from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or decree, which is
material to the Company and its subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Pricing Prospectus and the Prospectus, and (ii) since the respective dates as
of which information is given in the Pricing Prospectus and the Prospectus there shall not have
been any material change in the capital stock or long term debt (which is debt with a maturity of a
year or more) of the Company or any of its subsidiaries or any material change in or affecting the
business, business prospects, management, or consolidated financial position, shareholders equity
or results of operations of the Company and its subsidiaries taken as a whole, otherwise than as
set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case
described in clause (i) or (ii), is in your judgment so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the delivery of the Securities
on the terms and in the manner contemplated in the Prospectus;
(i) On or after the Applicable Time (i) no downgrading shall have occurred in the rating
accorded the Companys debt securities by any nationally recognized statistical rating
organization, as that term is defined by the Commission for purposes of Rule 436(g)(2) under the
Act, and (ii) no such organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Companys debt securities;
(j) On or after the Applicable Time there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New York Stock
Exchange; (ii) a suspension or material limitation in trading in the Companys securities on the
New York Stock Exchange; or (iii) a general moratorium on commercial banking activities
-16-
declared by either Federal or New York, Alabama or New Jersey State authorities or a material
disruption in commercial banking or securities settlement or clearance services in the United
States; (iv) the outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war or (v) the occurrence of any other
calamity or crisis or any change in financial, political or economic conditions in the United
States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in your
judgment makes it impracticable or inadvisable to proceed with the public offering or the delivery
of the Securities on the terms and in the manner contemplated in the Prospectus;
(k) The Company shall have complied with the provisions of Section 5(d) hereof with respect to
the furnishing of prospectuses on the New York Business Day next succeeding the date of this
Agreement; and
(l) The Company shall have furnished or caused to be furnished to you at the Time of Delivery
certificates of officers of the Company satisfactory to you as to the accuracy of the
representations and warranties of the Company herein at and as of such time, as to the performance
by the Company of all of its obligations hereunder to be performed at or prior to such time, as to
the matters set forth in subsections (a) and (h) of this Section and as to such other matters as
you may reasonably request.
9. (a) The Company will indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement, the Basic Prospectus, any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, any
Issuer Free Writing Prospectus or any issuer information filed or required to be filed pursuant
to Rule 433(d) under the Act, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or defending any such
action or claim within 30 days after receipt of invoicing for such expense; provided, however, that
the Company shall not be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement
thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written
information furnished
-17-
to the Company by any Underwriter through the Representatives expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company against any losses, claims,
damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or
the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, or
arise out of or are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus, the Pricing Prospectus or the Prospectus or any such amendment or
supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through the Representatives
expressly for use therein; and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending any such action or
claim within 30 days after receipt of invoicing for such expenses.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice
of the commencement of any action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified party otherwise than under such
subsection (except to the extent that the indemnifying party is materially prejudiced by reason of
such failure). In case any such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it shall wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified party, be counsel to
the indemnifying party), provided, however, such indemnified party shall have the right to employ
its own counsel in any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such indemnified party, unless: (i) the
employment of such counsel has been specifically authorized in writing by the indemnifying party;
(ii) the indemnifying party has failed promptly to assume the defense and employ counsel reasonably
satisfactory to the indemnified party; or (iii) the named parties to any such action (including any
impleaded parties)
-18-
include both such indemnified party and the indemnifying party or any affiliate of the
indemnifying party, and such indemnified party shall have reasonably concluded that either (x)
there may be one or more legal defenses available to it which are different from or additional to
those available to the indemnifying party or such affiliate of the indemnifying party or (y) a
conflict may exist between such indemnified party and the indemnifying party or such affiliate of
the indemnifying party (it being understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances, be liable for the
fees and expenses of more than one separate firm of attorneys (in addition to a single firm of
local counsel) for all such indemnified parties, which firm shall be designated in writing by the
Representatives and that all such reasonable fees and expenses shall be reimbursed as they are
incurred). Upon receipt of notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying party shall, without
the written consent of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or claim in respect of
which indemnification or contribution may be sought hereunder (whether or not the indemnified party
is an actual or potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all liability arising
out of such action or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 9 is unavailable to or insufficient to
hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other from the offering of the Securities. If, however, the
allocation provided by the immediately preceding sentence is not permitted by applicable law or if
the indemnifying party was materially prejudiced as a result of the failure by the indemnified
party to give the notice required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative fault of the Company
on the one hand and the Underwriters on the other in connection with the statements or omissions
which resulted in such losses,
-19-
claims, damages or liabilities (or actions in respect thereof), 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 proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters, in each case as set forth in
the table on the cover page of the Prospectus. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information supplied by the
Company on the one hand or the Underwriters on the other and the parties relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this subsection (d). The
aggregate amount paid or payable by an indemnified party as a result of the losses, claims, damages
or liabilities (or actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters obligations in this subsection (d)
to contribute are several in proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability
which the Company may otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the Act and each broker-dealer
affiliate of any Underwriter; and the obligations of the Underwriters under this Section 9 shall be
in addition to any liability which the respective Underwriters may otherwise have and shall extend,
upon the same terms and conditions, to each officer and director of the Company and to each person,
if any, who controls the Company within the meaning of the Act.
10. (a) If any Underwriter shall default in its obligation to purchase the Securities which
it has agreed to purchase hereunder, you may in your discretion
-20-
arrange for you or another party or other parties to purchase such Securities on the terms
contained herein. If within thirty six hours after such default by any Underwriter you do not
arrange for the purchase of such Securities, then the Company shall be entitled to a further period
of thirty six hours within which to procure another party or other parties satisfactory to you to
purchase such Securities on such terms. In the event that, within the respective prescribed
periods, you notify the Company that you have so arranged for the purchase of such Securities, or
the Company notifies you that it has so arranged for the purchase of such Securities, you or the
Company shall have the right to postpone the Time of Delivery for a period of not more than seven
days, in order to effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees to
file promptly any amendments or supplements to the Registration Statement or the Prospectus which
in your opinion may thereby be made necessary. The term Underwriter as used in this Agreement
shall include any person substituted under this Section with like effect as if such person had
originally been a party to this Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by you and the Company as provided in subsection (a) above,
the aggregate principal amount of such Securities which 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
which such Underwriter agreed to purchase hereunder and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the principal amount of
Securities which such Underwriter agreed to purchase hereunder) of the Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by you and the Company as provided in subsection (a) above,
the aggregate principal amount of Securities which 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 subsection (b) above to require non-defaulting Underwriters to purchase Securities of
a defaulting Underwriter or Underwriters, then this Agreement shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter or the Company, except for the expenses to
be borne by the Company and the Underwriters as provided in Section 7 hereof and the indemnity and
contribution agreements in Section 9 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
-21-
11. The respective indemnities, agreements, representations, warranties and other statements
of the Company and the several Underwriters, as set forth in this Agreement or made by or on behalf
of them, respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company, or any officer or
director or controlling person of the Company, and shall survive delivery of and payment for the
Securities.
12. If this Agreement shall be terminated pursuant to Section 10 hereof, the Company shall not
then be under any liability to any Underwriter except as provided in Sections 7 and 9 hereof; but,
if for any other reason, the Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through you for all out of pocket
expenses approved in writing by you, including reasonable fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase, sale and delivery
of the Securities, but the Company shall then be under no further liability to any Underwriter
except as provided in Sections 7 and 9 hereof.
13. In all dealings hereunder, you shall act on behalf of each of the Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement
on behalf of any Underwriter made or given by you jointly.
All statements, requests, notices and agreements hereunder shall be in writing, and if to the
Underwriters shall be delivered or sent by mail, telex or facsimile transmission to you as the
representatives in care of each of: (a) Banc of America Securities LLC, 40 West 57th Street, New
York, New York, 10019, Attention: High Grade Transaction Management/Legal, (b) Goldman, Sachs &
Co., 85 Broad Street, 23rd Floor, New York, New York 10004, Attention: Registration Department, (c)
J.P. Morgan Securities Inc., 270 Park Avenue, New York, New York 10017, Attn: Investment Grade
Syndicate Desk, and (d) Wachovia Capital Markets, LLC, 301 S. College Street, Charlotte, North
Carolina 28288, Attn: Transaction Management Group; and if to the Company shall be delivered or
sent by mail, telex or facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Secretary; provided, however, that any notice to an Underwriter
pursuant to Section 9(c) hereof shall be delivered or sent by mail, telex or facsimile transmission
to such Underwriter at its address set forth in its Underwriters Questionnaire, or telex
constituting such Questionnaire, which address will be supplied to the Company by you upon request.
Any such statements, requests, notices or agreements shall take effect upon receipt thereof.
-22-
In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)), the underwriters are required to obtain, verify and record
information that identifies their respective clients, including the Company, which information may
include the name and address of their respective clients, as well as other information that will
allow the underwriters to properly identify their respective clients.
14. This Agreement shall be binding upon, and inure solely to the benefit of, the
Underwriters, the Company and, to the extent provided in Sections 9 and 11 hereof, the officers and
directors of the Company and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of any of the
Securities from any Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
15. Time shall be of the essence of this Agreement. As used herein, the term business day
shall mean any day when the Commissions office in Washington, D.C. is open for business.
16. The Company acknowledges and agrees that (i) the purchase and sale of the Securities
pursuant to this Agreement is an arms-length commercial transaction between the Company, on the
one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the
process leading to such transaction each Underwriter is acting solely as a principal and not the
agent, fiduciary or financial advisor of the Company, (iii) no Underwriter has assumed an advisory
or fiduciary responsibility in favor of the Company with respect to the offering contemplated
hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is
currently advising the Company on other matters) or any other obligation to the Company except the
obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal
and financial advisors to the extent it deemed appropriate. The Company agrees that it will not
claim that the Underwriters, or any of them, has rendered advisory services of any nature or
respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or
the process leading thereto.
17. This Agreement supersedes all prior agreements and understandings (whether written or
oral) between the Company and the Underwriters, or any of them, with respect to the subject matter
hereof.
18.
This Agreement shall be governed by and construed in accordance with the laws of the State
of New York.
19. The Company and each of the Underwriters hereby irrevocably waives, to the fullest extent
permitted by applicable law, any and all right to trial
-23-
by jury in any legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
20. This Agreement may be executed by any one or more of the parties hereto in any number of
counterparts, each of which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
21. Notwithstanding anything herein to the contrary, the Company is authorized to disclose to
any persons the U.S. federal and state income tax treatment and tax structure of the potential
transaction and all materials of any kind (including tax opinions and other tax analyses) provided
to the Company relating to that treatment and structure, without the Underwriters, imposing any
limitation of any kind. However, any information relating to the tax treatment and tax structure
shall remain confidential (and the foregoing sentence shall not apply) to the extent necessary to
enable any person to comply with securities laws. For this purpose, tax structure is limited to
any facts that may be relevant to that treatment.
-24-
If the foregoing is in accordance with your understanding, please sign and return to us seven
counterparts hereof, and upon the acceptance hereof by you, on behalf of each of the Underwriters,
this letter and such acceptance hereof shall constitute a binding agreement between each of the
Underwriters and the Company. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is pursuant to the authority set forth in a form of Agreement among
Underwriters, the form of which shall be submitted to the Company for examination upon request, but
without warranty on your part as to the authority of the signers thereof.
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Very truly yours,
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Vulcan Materials Company
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By:
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/s/ Daniel F. Sansone
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Name: Daniel F. Sansone
|
|
|
|
|
|
|
Title: Chief Financial Officer
|
|
|
|
|
|
|
|
Accepted as of the date hereof:
|
|
|
|
|
|
|
|
Banc of America Securities LLC,
|
|
|
Goldman, Sachs & Co.,
|
|
|
J.P. Morgan Securities Inc.,
|
|
|
Wachovia Capital Markets, LLC
|
|
|
|
|
|
|
|
By:
|
|
/s/ Lily Chang
|
|
|
|
|
|
|
|
|
|
(Banc of America Securities LLC)
|
|
|
|
|
|
|
|
By:
|
|
/s/ Goldman, Sachs & Co.
|
|
|
|
|
|
|
|
|
|
(Goldman, Sachs & Co.)
|
|
|
|
|
|
|
|
By:
|
|
/s/ Stephen L. Sheiner
|
|
|
|
|
|
|
|
|
|
(J.P. Morgan Securities Inc.)
|
|
|
|
|
|
|
|
By:
|
|
/s/ Carolyn Coan
|
|
|
|
|
|
|
|
|
|
(Wachovia Capital Markets, LLC)
|
|
|
SCHEDULE I
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Principal Amount of Securities to be Purchased
|
|
|
Floating
|
|
|
|
|
|
|
|
|
Rate Notes
|
|
5.60% Notes
|
|
6.40% Notes
|
|
7.15% Notes
|
Underwriter
|
|
due 2010
|
|
due 2012
|
|
due 2017
|
|
due 2037
|
Banc of America Securities LLC
|
|
$
|
60,125,000
|
|
|
$
|
55,500,000
|
|
|
$
|
64,750,000
|
|
|
$
|
46,250,000
|
|
Goldman, Sachs & Co.
|
|
|
60,125,000
|
|
|
|
55,500,000
|
|
|
|
64,750,000
|
|
|
|
46,250,000
|
|
J.P. Morgan Securities Inc.
|
|
|
60,125,000
|
|
|
|
55,500,000
|
|
|
|
64,750,000
|
|
|
|
46,250,000
|
|
Wachovia Capital Markets,
LLC
|
|
|
60,125,000
|
|
|
|
55,500,000
|
|
|
|
64,750,000
|
|
|
|
46,250,000
|
|
Morgan
Keegan & Company, Inc.
|
|
|
25,463,750
|
|
|
|
23,505,000
|
|
|
|
27,422,500
|
|
|
|
19,587,500
|
|
UBS
Securities LLC
|
|
|
25,463,750
|
|
|
|
23,505,000
|
|
|
|
27,422,500
|
|
|
|
19,587,500
|
|
Citigroup
Global Markets Inc.
|
|
|
11,375,000
|
|
|
|
10,500,000
|
|
|
|
12,250,000
|
|
|
|
8,750,000
|
|
Mizuho
Securities USA Inc.
|
|
|
11,375,000
|
|
|
|
10,500,000
|
|
|
|
12,250,000
|
|
|
|
8,750,000
|
|
Fifth Third Securities, Inc.
|
|
|
5,411,250
|
|
|
|
4,995,000
|
|
|
|
5,827,500
|
|
|
|
4,162,500
|
|
The Williams Capital Group,
L.P.
|
|
|
5,411,250
|
|
|
|
4,995,000
|
|
|
|
5,827,500
|
|
|
|
4,162,500
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
325,000,000
|
|
|
$
|
300,000,000
|
|
|
$
|
350,000,000
|
|
|
$
|
250,000,000
|
|
|
|
|
SCHEDULE II
(a) Issuer Free Writing Prospectuses included in the Pricing Disclosure Package:
Free Writing Prospectus filed with the SEC at 3:52 p.m. on December 6, 2007.
(b) Issuer Free Writing Prospectuses not included in the Pricing Disclosure Package:
Electronic Roadshow named Fixed Income Investor Presentation, December 2007 and made
available at
https://roadshow.bloomberg.com/jprd/
on December 5, 2007.
(c) Additional Documents Incorporated by Reference:
None.
Schedule III-1
Term Sheet
Filed Pursuant to Rule 433
Registration No. 333-147796
December 6, 2007
Vulcan Materials Company
Floating Rate Notes due December 15, 2010
|
|
|
|
|
|
Issuer:
|
|
Vulcan Materials Company
|
|
|
|
Note Type:
|
|
Senior Unsecured Notes
|
|
|
|
Ratings:
|
|
A3 / A- (Negative / Stable)
|
|
|
|
Type of Offering:
|
|
SEC Registered
|
|
|
|
Final Terms
|
|
|
|
|
|
Principal Amount:
|
|
$325,000,000
|
|
|
|
Benchmark:
|
|
3M LIBOR
|
|
|
|
Re-offer Spread:
|
|
+125 bps
|
|
|
|
Price to Public:
|
|
100%
|
|
|
|
Coupon Dates:
|
|
Quarterly on March 15, June 15,
September 15 and December 15
|
|
|
|
First Coupon Date:
|
|
March 15, 2008
|
|
|
|
Trade Date:
|
|
December 6, 2007
|
|
|
|
Settlement Date:
|
|
December 11, 2007
|
|
|
|
Maturity Date:
|
|
December 15, 2010
|
|
|
|
Make Whole Call:
|
|
Not redeemable
|
-1-
|
|
|
CUSIP:
|
|
929160 AH2
|
|
|
|
Bookrunners:
|
|
Banc of America Securities LLC
Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
Wachovia Capital Markets, LLC
|
|
|
|
Co-Managers:
|
|
Morgan Keegan & Company, Inc.
|
|
|
UBS Investment Bank
Citigroup Global Markets Inc.
Mizuho Securities USA Inc.
Fifth Third Securities, Inc.
The Williams Capital Group, L.P.
|
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents incorporated by reference in the registration
statement and 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 if you request it by calling Banc of America Securities LLC, toll-free,
at 1-800-294-1322, Goldman, Sachs & Co., toll free, at 1-866-471-2526, J.P. Morgan Securities Inc.,
at 1-212-834-4533, or Wachovia Capital Markets, LLC, toll free, at 1-866-289-1262.
Note: A securities rating is not a recommendation to buy, sell or hold securities and may be
subject to revision or withdrawal at any time.
-2-
Schedule III-2
Term Sheet
Filed Pursuant to Rule 433
Registration No. 333-147796
December 6, 2007
Vulcan Materials Company
5.60% Notes due November 30, 2012
|
|
|
Issuer:
|
|
Vulcan Materials Company
|
|
|
|
Note Type:
|
|
Senior Unsecured Notes
|
|
|
|
Ratings:
|
|
A3 / A- (Negative / Stable)
|
|
|
|
Type of Offering:
|
|
SEC Registered
|
|
|
|
Final Terms
|
|
|
|
|
|
Principal Amount:
|
|
$300,000,000
|
|
|
|
Benchmark:
|
|
3.375% due November 30, 2012
|
|
|
|
Benchmark Yield:
|
|
3.392%
|
|
|
|
Re-offer Spread:
|
|
+225 bps
|
|
|
|
Re-offer Yield:
|
|
5.642%
|
|
|
|
Coupon:
|
|
5.60%
|
|
|
|
Price to Public:
|
|
99.822%
|
|
|
|
Coupon Dates:
|
|
May 30 and November 30
|
|
|
|
First Coupon Date:
|
|
May 30, 2008
|
|
|
|
Trade Date:
|
|
December 6, 2007
|
|
|
|
Settlement Date:
|
|
December 11, 2007
|
|
|
|
Maturity Date:
|
|
November 30, 2012
|
|
|
|
Make Whole Call:
|
|
At any time at a discount rate of Treasury plus 35
basis points
|
-3-
|
|
|
CUSIP:
|
|
929160 AE9
|
|
|
|
Bookrunners:
|
|
Banc of America Securities LLC
Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
Wachovia Capital Markets, LLC
|
|
|
|
Co-Managers:
|
|
Morgan Keegan & Company, Inc.
UBS Investment Bank
Citigroup Global Markets Inc.
Mizuho Securities USA Inc.
Fifth Third Securities, Inc.
The Williams Capital Group, L.P.
|
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents incorporated by reference in the registration
statement and 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 if you request it by calling Banc of America Securities LLC, toll-free,
at 1-800-294-1322, Goldman, Sachs & Co., toll free, at 1-866-471-2526, J.P. Morgan Securities Inc.,
at 1-212-834-4533, or Wachovia Capital Markets, LLC, toll free, at 1-866-289-1262.
Note: A securities rating is not a recommendation to buy, sell or hold securities and may be
subject to revision or withdrawal at any time.
-4-
Schedule III-3
Term Sheet
Filed Pursuant to Rule 433
Registration No. 333-147796
December 6, 2007
Vulcan Materials Company
6.40% Notes due November 30, 2017
|
|
|
Issuer:
|
|
Vulcan Materials Company
|
|
|
|
Note Type:
|
|
Senior Unsecured Notes
|
|
|
|
Ratings:
|
|
A3 / A- (Negative / Stable)
|
|
|
|
Type of Offering:
|
|
SEC Registered
|
|
|
|
Final Terms
|
|
|
|
|
|
Principal Amount:
|
|
$350,000,000
|
|
|
|
Benchmark:
|
|
4.25% due November 15, 2017
|
|
|
|
Benchmark Yield:
|
|
4.008%
|
|
|
|
Re-offer Spread:
|
|
+240 bps
|
|
|
|
Re-offer Yield:
|
|
6.408%
|
|
|
|
Coupon:
|
|
6.40%
|
|
|
|
Price to Public:
|
|
99.945%
|
|
|
|
Coupon Dates:
|
|
May 30 and November 30
|
|
|
|
First Coupon Date:
|
|
May 30, 2008
|
|
|
|
Trade Date:
|
|
December 6, 2007
|
|
|
|
Settlement Date:
|
|
December 11, 2007
|
|
|
|
Maturity Date:
|
|
November 30, 2017
|
|
|
|
Make Whole Call:
|
|
At any time at a discount rate of Treasury plus 40
basis points
|
-5-
|
|
|
CUSIP:
|
|
929160 AF6
|
|
|
|
Bookrunners:
|
|
Banc of America Securities LLC
Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
Wachovia Capital Markets, LLC
|
|
|
|
Co-Managers:
|
|
Morgan Keegan & Company, Inc.
UBS Investment Bank
Citigroup Global Markets Inc.
Mizuho Securities USA Inc.
Fifth Third Securities, Inc.
The Williams Capital Group, L.P.
|
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents incorporated by reference in the registration
statement and 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 if you request it by calling Banc of
America Securities LLC, toll-free,
at 1-800-294-1322, Goldman, Sachs & Co., toll free, at 1-866-471-2526, J.P. Morgan Securities Inc.,
at 1-212-834-4533, or Wachovia Capital Markets, LLC, toll free, at 1-866-289-1262.
Note: A securities rating is not a recommendation to buy, sell or hold securities and may be
subject to revision or withdrawal at any time.
-6-
Schedule III-4
Term Sheet
Filed Pursuant to Rule 433
Registration No. 333-147796
December 6, 2007
Vulcan Materials Company
7.15% Notes due November 30, 2037
|
|
|
Issuer:
|
|
Vulcan Materials Company
|
|
|
|
Note Type:
|
|
Senior Unsecured Notes
|
|
|
|
Ratings:
|
|
A3 / A- (Negative / Stable)
|
|
|
|
Type of Offering:
|
|
SEC Registered
|
|
|
|
Final Terms
|
|
|
|
|
|
Principal Amount:
|
|
$250,000,000
|
|
|
|
Benchmark:
|
|
4.75% due February 15, 2037
|
|
|
|
Benchmark Yield:
|
|
4.473%
|
|
|
|
Re-offer Spread:
|
|
+270 bps
|
|
|
|
Re-offer Yield:
|
|
7.173%
|
|
|
|
Coupon:
|
|
7.15%
|
|
|
|
Price to Public:
|
|
99.722%
|
|
|
|
Coupon Dates:
|
|
May 30 and November 30
|
|
|
|
First Coupon Date:
|
|
May 30, 2008
|
|
|
|
Trade Date:
|
|
December 6, 2007
|
|
|
|
Settlement Date:
|
|
December 11, 2007
|
|
|
|
Maturity Date:
|
|
November 30, 2037
|
|
|
|
Make Whole Call:
|
|
At any time at a discount rate of Treasury plus 45
basis points
|
-7-
|
|
|
CUSIP:
|
|
929160 AG4
|
|
|
|
Bookrunners:
|
|
Banc of America Securities LLC
Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
Wachovia Capital Markets, LLC
|
|
|
|
Co-Managers:
|
|
Morgan Keegan & Company, Inc.
UBS Investment Bank
Citigroup Global Markets Inc.
Mizuho Securities USA Inc.
Fifth Third Securities, Inc.
The Williams Capital Group, L.P.
|
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents incorporated by reference in the registration
statement and 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 if you request it by calling Banc of America Securities LLC, toll-free,
at 1-800-294-1322, Goldman, Sachs & Co., toll free, at 1-866-471-2526, J.P. Morgan Securities Inc.,
at 1-212-834-4533, or Wachovia Capital Markets, LLC, toll free, at 1-866-289-1262.
Note: A securities rating is not a recommendation to buy, sell or hold securities and may be
subject to revision or withdrawal at any time.
-8-
Exhibit 4.1
VULCAN MATERIALS COMPANY
AND
WILMINGTON TRUST COMPANY
Trustee
SENIOR
DEBT INDENTURE
Dated as of December 11, 2007
VULCAN MATERIALS COMPANY
Reconciliation and tie between the Trust Indenture Act of 1939
and the Senior Debt Indenture dated as of December 11, 2007 between
Vulcan Materials Company and Wilmington Trust Company, Trustee
|
|
|
|
|
Trust Indenture
|
|
Indenture
|
Act Section
|
|
Section
|
|
|
§ 310(a)(1)
|
|
609
|
|
|
(a)(2)
|
|
609
|
|
|
(a)(3)
|
|
Not Applicable
|
|
|
(a)(4)
|
|
Not Applicable
|
|
|
(b)
|
|
608
|
|
|
|
|
610
|
|
|
§ 311(a)
|
|
613
|
|
|
(b)
|
|
613
|
|
|
§ 312(a)
|
|
701
|
|
|
|
|
702(a)
|
|
|
(b)
|
|
702(b)
|
|
|
(c)
|
|
702(c)
|
|
|
§ 313(a)
|
|
703(a)
|
|
|
(b)
|
|
703(a)
|
|
|
(c)
|
|
703(a)
|
|
|
(d)
|
|
703(b)
|
|
|
§ 314(a)
|
|
704
|
|
|
(a)(4)
|
|
101
|
|
|
|
|
1004
|
|
|
(b)
|
|
Not Applicable
|
|
|
(c)(1)
|
|
102
|
|
|
(c)(2)
|
|
102
|
|
|
(c)(3)
|
|
Not Applicable
|
|
|
(d)
|
|
Not Applicable
|
|
|
(e)
|
|
102
|
|
|
§ 315(a)
|
|
601
|
|
|
(b)
|
|
602
|
|
|
(c)
|
|
601
|
|
|
(d)
|
|
601
|
|
|
(e)
|
|
514
|
|
|
§ 316(a)
|
|
101
|
|
|
(a)(1)(A)
|
|
502
|
|
|
|
|
512
|
|
|
(a)(1)(B)
|
|
513
|
|
|
(a)(2)
|
|
Not Applicable
|
|
|
(b)
|
|
508
|
|
|
(c)
|
|
104(c)
|
|
|
§ 317(a)(1)
|
|
503
|
|
|
(a)(2)
|
|
504
|
|
|
(b)
|
|
1003
|
|
|
§ 318(a)
|
|
107
|
|
|
|
NOTE:
|
|
This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.
|
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
|
|
PAGE
|
PARTIES
|
|
|
1
|
|
RECITALS OF THE COMPANY
|
|
|
1
|
|
|
|
|
|
|
|
|
ARTICLE ONE
|
|
|
|
|
|
|
|
|
|
|
|
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
|
|
|
|
|
|
|
|
|
|
|
|
Section 101.
|
|
Definitions
|
|
|
1
|
|
|
|
Act
|
|
|
2
|
|
|
|
Affiliate
|
|
|
2
|
|
|
|
Attributable Debt
|
|
|
2
|
|
|
|
Authenticating Agent
|
|
|
2
|
|
|
|
Board of Directors
|
|
|
2
|
|
|
|
Board Resolution
|
|
|
2
|
|
|
|
Business Day
|
|
|
2
|
|
|
|
Commission
|
|
|
3
|
|
|
|
Company
|
|
|
3
|
|
|
|
Company Request; Company Order
|
|
|
3
|
|
|
|
Consolidated Net Tangible Assets
|
|
|
3
|
|
|
|
Corporate Trust Office
|
|
|
3
|
|
|
|
Corporation
|
|
|
3
|
|
|
|
Defaulted Interest
|
|
|
3
|
|
|
|
Depositary
|
|
|
3
|
|
|
|
Event of Default
|
|
|
3
|
|
|
|
Exchange Act
|
|
|
4
|
|
|
|
Funded Debt
|
|
|
4
|
|
|
|
Global Security
|
|
|
4
|
|
|
|
Government Obligations
|
|
|
4
|
|
|
|
Holder
|
|
|
4
|
|
|
|
Indenture
|
|
|
4
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interest
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4
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Interest Payment Date
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4
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Maturity
|
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4
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|
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Officers Certificate
|
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4
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|
Opinion of Counsel
|
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4
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Original Issue Discount Security
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5
|
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Outstanding
|
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5
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Paying Agent
|
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6
|
|
|
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Periodic Offering
|
|
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6
|
|
|
|
|
NOTE:
|
|
This Table of Contents shall not, for any purpose, be deemed to be a part of the Indenture.
|
-i-
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PAGE
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Person
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6
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Place of Payment
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6
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Predecessor Security
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6
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Principal Property
|
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6
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Redemption Date
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6
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Redemption Price
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6
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Regular Record Date
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7
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Restricted Subsidiary
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7
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Securities
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7
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Security Register
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7
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Security Registrar
|
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7
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Special Record Date
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7
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Stated Maturity
|
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7
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Subsidiary
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7
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Trust Indenture Act
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8
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|
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Trustee
|
|
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8
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|
|
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Vice President
|
|
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8
|
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Section 102.
|
|
Compliance Certificates and Opinions
|
|
|
8
|
|
Section 103.
|
|
Form of Documents Delivered to Trustee
|
|
|
9
|
|
Section 104.
|
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Acts of Holders; Record Dates
|
|
|
9
|
|
Section 105.
|
|
Notices, Etc., to Trustee and Company
|
|
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10
|
|
Section 106.
|
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Notice to Holders; Waiver
|
|
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11
|
|
Section 107.
|
|
Conflict with Trust Indenture Act
|
|
|
11
|
|
Section 108.
|
|
Effect of Headings and Table of Contents
|
|
|
11
|
|
Section 109.
|
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Successors and Assigns
|
|
|
11
|
|
Section 110.
|
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Separability Clause
|
|
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12
|
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Section 111.
|
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Benefits of Indenture
|
|
|
12
|
|
Section 112.
|
|
Governing Law
|
|
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12
|
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Section 113.
|
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Legal Holidays
|
|
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12
|
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|
|
|
|
|
|
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ARTICLE TWO
|
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|
|
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|
|
|
SECURITY FORMS
|
|
|
|
|
|
|
|
|
|
|
|
Section 201.
|
|
Forms Generally
|
|
|
12
|
|
Section 202.
|
|
Form of Face of Security
|
|
|
13
|
|
Section 203.
|
|
Form of Reverse of Security
|
|
|
16
|
|
Section 204.
|
|
Additional Provisions Required in Global Security
|
|
|
19
|
|
Section 205.
|
|
Form of Trustees Certificate of Authentication
|
|
|
20
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|
-ii-
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PAGE
|
ARTICLE THREE
|
|
|
|
|
|
|
|
|
|
|
|
THE SECURITIES
|
|
|
|
|
|
|
|
|
|
|
|
Section 301.
|
|
Amount Unlimited; Issuable in Series
|
|
|
20
|
|
Section 302.
|
|
Denominations
|
|
|
23
|
|
Section 303.
|
|
Execution, Authentication, Delivery and Dating
|
|
|
23
|
|
Section 304.
|
|
Temporary Securities
|
|
|
25
|
|
Section 305.
|
|
Registration, Registration of Transfer and Exchange
|
|
|
26
|
|
Section 306.
|
|
Mutilated, Destroyed, Lost and Stolen Securities
|
|
|
27
|
|
Section 307.
|
|
Payment of Interest; Interest Rights Preserved
|
|
|
28
|
|
Section 308.
|
|
Persons Deemed Owners
|
|
|
29
|
|
Section 309.
|
|
Cancellation
|
|
|
30
|
|
Section 310.
|
|
Computation of Interest
|
|
|
30
|
|
|
|
|
|
|
|
|
ARTICLE FOUR
|
|
|
|
|
|
|
|
|
|
|
|
SATISFACTION AND DISCHARGE
|
|
|
|
|
|
|
|
|
|
|
|
Section 401.
|
|
Satisfaction and Discharge of Indenture
|
|
|
30
|
|
Section 402.
|
|
Application of Trust Money
|
|
|
32
|
|
|
|
|
|
|
|
|
ARTICLE FIVE
|
|
|
|
|
|
|
|
|
|
|
|
REMEDIES
|
|
|
|
|
|
|
|
|
|
|
|
Section 501.
|
|
Events of Default
|
|
|
32
|
|
Section 502.
|
|
Acceleration of Maturity; Rescission and Annulment
|
|
|
33
|
|
Section 503.
|
|
Collection of Indebtedness and Suits for Enforcement by Trustee
|
|
|
35
|
|
Section 504.
|
|
Trustee May File Proofs of Claim
|
|
|
35
|
|
Section 505.
|
|
Trustee May Enforce Claims Without Possession of Securities
|
|
|
36
|
|
Section 506.
|
|
Application of Money Collected
|
|
|
36
|
|
Section 507.
|
|
Limitation on Suits
|
|
|
36
|
|
Section 508.
|
|
Unconditional Right of Holders to Receive Principal, Premium and Interest
|
|
|
37
|
|
Section 509.
|
|
Restoration of Rights and Remedies
|
|
|
37
|
|
Section 510.
|
|
Rights and Remedies Cumulative
|
|
|
38
|
|
Section 511.
|
|
Delay or Omission Not Waiver
|
|
|
38
|
|
Section 512.
|
|
Control by Holders
|
|
|
38
|
|
Section 513.
|
|
Waiver of Past Defaults
|
|
|
39
|
|
-iii-
|
|
|
|
|
|
|
|
|
|
|
PAGE
|
Section 514.
|
|
Undertaking for Costs
|
|
|
39
|
|
Section 515.
|
|
Waiver of Stay or Extension Laws
|
|
|
40
|
|
|
|
|
|
|
|
|
ARTICLE SIX
|
|
|
|
|
|
|
|
|
|
|
|
THE TRUSTEE
|
|
|
|
|
|
|
|
|
|
|
|
Section 601.
|
|
Certain Duties and Responsibilities
|
|
|
40
|
|
Section 602.
|
|
Notice of Defaults
|
|
|
41
|
|
Section 603.
|
|
Certain Rights of Trustee
|
|
|
41
|
|
Section 604.
|
|
Not Responsible for Recitals or Issuance of Securities
|
|
|
42
|
|
Section 605.
|
|
May Hold Securities
|
|
|
42
|
|
Section 606.
|
|
Money Held in Trust
|
|
|
42
|
|
Section 607.
|
|
Compensation and Reimbursement
|
|
|
43
|
|
Section 608.
|
|
Disqualification; Conflicting Interests
|
|
|
43
|
|
Section 609.
|
|
Corporate Trustee Required; Eligibility
|
|
|
43
|
|
Section 610.
|
|
Resignation and Removal; Appointment of Successor
|
|
|
44
|
|
Section 611.
|
|
Acceptance of Appointment by Successor
|
|
|
45
|
|
Section 612.
|
|
Merger, Conversion, Consolidation or Succession to Business
|
|
|
46
|
|
Section 613.
|
|
Preferential Collection of Claims Against Company
|
|
|
47
|
|
Section 614.
|
|
Appointment of Authenticating Agent
|
|
|
47
|
|
|
|
|
|
|
|
|
ARTICLE SEVEN
|
|
|
|
|
|
|
|
|
|
|
|
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
|
|
|
|
|
|
|
|
|
|
|
|
Section 701.
|
|
Company to Furnish Trustee Names and Addresses of Holders
|
|
|
49
|
|
Section 702.
|
|
Preservation of Information; Communications to Holders
|
|
|
49
|
|
Section 703.
|
|
Reports by Trustee
|
|
|
49
|
|
Section 704.
|
|
Reports by Company
|
|
|
50
|
|
|
|
|
|
|
|
|
ARTICLE EIGHT
|
|
|
|
|
|
|
|
|
|
|
|
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
|
|
|
|
|
|
|
|
|
|
|
|
Section 801.
|
|
Company May Consolidate, Etc., Only on Certain Terms
|
|
|
50
|
|
Section 802.
|
|
Successor Substituted
|
|
|
51
|
|
-iv-
|
|
|
|
|
|
|
|
|
|
|
PAGE
|
ARTICLE NINE
|
|
|
|
|
|
|
|
|
|
|
|
SUPPLEMENTAL INDENTURES
|
|
|
|
|
|
|
|
|
|
|
|
Section 901.
|
|
Supplemental Indentures Without Consent of Holders
|
|
|
51
|
|
Section 902.
|
|
Supplemental Indentures with Consent of Holders
|
|
|
52
|
|
Section 903.
|
|
Execution of Supplemental Indentures
|
|
|
53
|
|
Section 904.
|
|
Effect of Supplemental Indentures
|
|
|
54
|
|
Section 905.
|
|
Conformity with Trust Indenture Act
|
|
|
54
|
|
Section 906.
|
|
Reference in Securities to Supplemental Indentures
|
|
|
54
|
|
|
|
|
|
|
|
|
ARTICLE TEN
|
|
|
|
|
|
|
|
|
|
|
|
COVENANTS
|
|
|
|
|
|
|
|
|
|
|
|
Section 1001.
|
|
Payment of Principal, Premium and Interest
|
|
|
54
|
|
Section 1002.
|
|
Maintenance of Office or Agency
|
|
|
54
|
|
Section 1003.
|
|
Money for Securities Payments to Be Held in Trust
|
|
|
55
|
|
Section 1004.
|
|
Statement by Officers as to Default
|
|
|
56
|
|
Section 1005.
|
|
Existence
|
|
|
56
|
|
Section 1006.
|
|
Restrictions on Secured Debt
|
|
|
56
|
|
Section 1007.
|
|
Limitations on Sales and Leasebacks
|
|
|
58
|
|
Section 1008.
|
|
Waiver of Certain Covenants
|
|
|
59
|
|
|
|
|
|
|
|
|
ARTICLE ELEVEN
|
|
|
|
|
|
|
|
|
|
|
|
REDEMPTION OF SECURITIES
|
|
|
|
|
|
|
|
|
|
|
|
Section 1101.
|
|
Applicability of Article
|
|
|
59
|
|
Section 1102.
|
|
Election to Redeem; Notice to Trustee
|
|
|
59
|
|
Section 1103.
|
|
Selection by Trustee of Securities to Be Redeemed
|
|
|
59
|
|
Section 1104.
|
|
Notice of Redemption
|
|
|
60
|
|
Section 1105.
|
|
Deposit of Redemption Price
|
|
|
61
|
|
Section 1106.
|
|
Securities Payable on Redemption Date
|
|
|
61
|
|
Section 1107.
|
|
Securities Redeemed in Part
|
|
|
61
|
|
|
|
|
|
|
|
|
ARTICLE TWELVE
|
|
|
|
|
|
|
|
|
|
|
|
SINKING FUNDS
|
|
|
|
|
|
|
|
|
|
|
|
Section 1201.
|
|
Applicability of Article
|
|
|
62
|
|
-v-
|
|
|
|
|
|
|
|
|
|
|
PAGE
|
Section 1202.
|
|
Satisfaction of Sinking Fund Payments with Securities
|
|
|
62
|
|
Section 1203.
|
|
Redemption of Securities for Sinking Fund
|
|
|
62
|
|
|
|
|
|
|
|
|
ARTICLE THIRTEEN
|
|
|
|
|
|
|
|
|
|
|
|
DEFEASANCE AND COVENANT DEFEASANCE
|
|
|
|
|
|
|
|
|
|
|
|
Section 1301.
|
|
Applicability of Article; Companys Option to Effect Defeasance or Covenant Defeasance
|
|
|
63
|
|
Section 1302.
|
|
Defeasance and Discharge
|
|
|
63
|
|
Section 1303.
|
|
Covenant Defeasance
|
|
|
64
|
|
Section 1304.
|
|
Conditions to Defeasance or Covenant Defeasance
|
|
|
64
|
|
Section 1305.
|
|
Deposited Money and Government Obligations to be Held in Trust; Other Miscellaneous Provisions
|
|
|
66
|
|
-vi-
SENIOR
DEBT INDENTURE
, dated as of December 11, 2007 between VULCAN MATERIALS COMPANY, a corporation duly
organized and existing under the laws of the State of New Jersey (herein called the Company),
having its principal office at 1200 Urban Center Drive, Birmingham, Alabama 35242, and Wilmington
Trust Company, a corporation duly organized and existing under the laws of the State of Delaware,
as Trustee (herein called the Trustee).
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of its unsecured debentures, notes or other evidences of
indebtedness (herein called the Securities), to be issued in one or more series as in this
Indenture provided.
All things necessary to make this Indenture a valid agreement of the Company, in accordance
with its terms, have been done.
Now, Therefore, This Indenture Witnesseth:
For and in consideration of the premises and the purchase of the Securities by the Holders (as
defined below) thereof, it is mutually agreed, for the equal and proportionate benefit of all
Holders of the Securities or of series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 101.
Definitions.
For all purposes of this Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in this
Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture Act, either
directly or by reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with generally accepted accounting principles, and, except as otherwise
herein expressly provided, the term generally accepted accounting principles with respect
to any computation required or permitted hereunder shall mean such accounting principles as
are generally accepted at the date of such computation; and
(4) the words herein, hereof and hereunder and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section or other
subdivision.
Act, when used with respect to any Holder, has the meaning specified in Section 104.
Affiliate of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For the
purposes of this definition, control when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms controlling and
controlled have meanings correlative to the foregoing.
Attributable Debt means as to any particular lease under which any Person is at the time
liable, at any date as of which the amount thereof is to be determined, the total net amount of
rent required to be paid by such Person under such lease during the remaining term thereof,
discounted from the respective due dates thereof to such date at the rate of 11% per annum
compounded annually. The net amount of rent required to be paid under any such lease for any such
period shall be the amount of the rent payable by the lessee with respect to such period, after
excluding amounts required to be paid on account of maintenance and repairs, insurance, taxes,
assessments, water rates and similar charges. In the case of any lease which is terminable by the
lessee upon the payment of a penalty, such net amount shall also include the amount of such
penalty, but no rent shall be considered as required to be paid under such lease subsequent to the
first date upon which it may be so terminated.
Authenticating Agent means any Person authorized by the Trustee pursuant to Section 614 to
act on behalf of the Trustee to authenticate Securities of one or more series.
Board of Directors means either the board of directors of the Company or any committee of
that board duly authorized to act hereunder.
Board Resolution means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company 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. Where any
provision of this Indenture refers to action to be taken pursuant to a Board Resolution (including
the establishment of any series of the Securities and the forms and terms thereof), such action may
be taken by any committee, officer or employee of the Company authorized to take such action by a
Board Resolution.
Business Day, when used with respect to any Place of Payment, means each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions in New York, New
York and any city in which the Corporate Trust
-2-
Office of the Trustee may be in are authorized or
obligated by law or executive order to close.
Commission means the Securities and Exchange Commission, as from time to time constituted,
created under the Exchange Act, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
Company means the Person named as the Company in the first paragraph of this instrument
until a successor Person shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter Company shall mean such successor Person.
Company Request or Company Order means a written request or order signed in the name of
the Company by its Chairman of the Board, its Vice Chairman of the Board, its President or a Vice
President, and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary,
and delivered to the Trustee.
Consolidated Net Tangible Assets means the aggregate amount of assets after deducting
therefrom (a) all current liabilities (excluding any thereof constituting Funded Debt by reason of
being renewable or extendible) and (b) all goodwill, trade names, trademarks, patents, unamortized
debt discount and expense and other like intangibles, all as set forth on the most recent balance
sheet of the Company and its consolidated subsidiaries and computed in accordance with generally
accepted accounting principles.
Corporate Trust Office means the principal office of the Trustee in Wilmington, Delaware at
which at any particular time its corporate trust business shall be administered, which office at
the date of execution of this Indenture is located at 1100 North Market Street, Rodney Square
North, Wilmington, Delaware, 19890, Attn: Corporate Trust Administration: Vulcan Materials Company,
or any other address that the Trustee may designate with respect to itself from time to time by
notice to the Company and the Holders.
Corporation means a corporation, partnership, company (including a limited liability
company), joint venture, association, joint-stock company or trust.
Defaulted Interest has the meaning specified in Section 307.
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 Person designated as Depositary by the
Company pursuant to Section 301, and if at any time there is more than one such Person,
Depositary as used with respect to the Securities of any such series shall mean the Depositary
with respect to the Securities of such series.
Event of Default has the meaning specified in Section 501.
-3-
Exchange Act means the Securities Exchange Act of 1934 as it may be amended and any
successor act thereto.
Funded Debt means all indebtedness for money borrowed having a maturity of more than 12
months from the date as of which the amount thereof is to be determined or having a maturity of
less than 12 months but by its terms being renewable or extendible beyond 12 months from such date
at the option of the borrower.
Global Security means a Security in the form prescribed in Section 204 evidencing all or
part of a series of Securities, issued to the Depositary for such series or its nominee, and
registered in the name of such Depositary or nominee.
Government Obligations has the meaning specified in Section 1304.
Holder means a Person in whose name a Security is registered in the Security Register.
Indenture means this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof, including, for all purposes of this instrument and any such
supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of
and govern this instrument and any such supplemental indenture, respectively. The term Indenture
shall also include the terms of particular series of Securities established as contemplated by
Section 301.
interest, when used with respect to an Original Issue Discount Security which by its terms
bears interest only after Maturity, means interest payable after Maturity.
Interest Payment Date, when used with respect to any Security, means the Stated Maturity of
an installment of interest on such Security.
Maturity, when used with respect to any Security, means the date on which the principal of
such Security or an installment of principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
Officers Certificate means a certificate signed by the Chairman of the Board, a Vice
Chairman of the Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company, and delivered to the Trustee.
One of the officers signing an Officers Certificate given pursuant to Section 1004 shall be the
principal executive, financial or accounting officer of the Company.
Opinion of Counsel means a written opinion of counsel, who may be an employee of the Company
or other counsel for the Company, and who shall be
-4-
acceptable to the Trustee. Any such Opinion of
Counsel shall not be at the expense of the Trustee.
Original Issue Discount Security means any Security which provides for an amount less than
the principal amount thereof to be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502.
Outstanding, when used with respect to Securities, means, as of the date of determination,
all Securities theretofore authenticated and delivered under this Indenture,
except
:
(i) Securities theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation;
(ii) Securities for whose payment or redemption money and/or Government Obligations in
the necessary amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by the Company (if
the Company shall act as its own Paying Agent) for the Holders of such Securities;
provided
that, if such Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;
and
(iii) Securities which have been paid pursuant to Section 306 or in exchange for or in
lieu of which other Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid obligations of the Company;
provided
,
however
, that in determining whether the Holders of the requisite principal amount of the
Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, (i) the principal amount of an Original Issue
Discount Security that shall be deemed to be Outstanding shall be the amount of the principal
thereof that would be due and payable as of the date of such determination upon acceleration of the
Maturity thereof pursuant to Section 502 and (ii) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall
be protected in relying upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which the Trustee knows to be so owned shall be so disregarded. Securities
so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgees right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
-5-
Paying Agent means any Person authorized by the Company to pay the principal of or any
premium or interest on any Securities on behalf of the Company.
Periodic Offering means an offering of Securities of a series from time to time the specific
terms of which Securities, including, without limitation, the rate or rates of interest, if any,
thereon, the Stated Maturity or Maturities thereof and the redemption provisions, if any, with
respect thereto, are to be determined by the Company or its agents upon the issuance of such
Securities.
Person means any individual, corporation, partnership, company (including a limited
liability company), joint venture, association, joint stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
Place of Payment, when used with respect to the Securities of any series, means the place or
places where the principal of and any premium and interest on the Securities of that series are
payable as specified as contemplated by Section 301.
Predecessor Security of any particular Security means every previous Security evidencing all
or a portion of the same debt as that evidenced by such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered under Section 306 in exchange for or
in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Security.
Principal Property means any building, structure or other facility, together with the land
upon which it is erected and fixtures comprising a part thereof, used primarily for manufacturing
or processing, owned or leased by the Company or any Restricted Subsidiary of the Company and
located in the United States, the gross book value (without deduction of any depreciation reserves)
of
which on the date as of which the determination is being made exceeds 3% of Consolidated Net
Tangible Assets, other than any such building, structure or other facility or portion thereof (i)
which is a facility financed by obligations issued by a State or local governmental unit pursuant
to Section 142(a)(5),
142(a)(6)
, 142(a)(8) or 144(a) of the Internal Revenue Code of 1986, as
amended, or any successor provision thereof, or (ii) which, in the opinion of the Board of
Directors, is not of material importance to the total business conducted by the Company and its
Subsidiaries as an entirety.
Redemption Date, when used with respect to any Security to be redeemed, means the date fixed
for such redemption by or pursuant to this Indenture.
Redemption Price, when used with respect to any Security to be redeemed, means the price at
which it is to be redeemed pursuant to this Indenture.
-6-
Regular Record Date for the interest payable on any Interest Payment Date on the Securities
of any series means the date specified for that purpose as contemplated by Section 301.
Responsible Officer means, when used with respect to the Trustee, any officer within the
corporate trust department of the Trustee, including any vice president, assistant vice president,
assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred because of such
persons knowledge of and familiarity with the particular subject and who shall in each case have
direct responsibility for the administration of this Indenture.
Restricted Subsidiary means a Corporation more than 50% of the outstanding voting stock of
which is owned, directly or indirectly, by the Company or by one or more other Subsidiaries, or by
the Company and one or more other Subsidiaries, and has substantially all of its assets located in,
or carries on substantially all of its business in, the United States of America;
provided,
however
, that the term Restricted Subsidiary shall not include any entity which is principally
engaged in leasing or in financing receivables, or which is principally engaged in financing the
Companys operations outside the United States of America. For the purposes of this definition,
voting stock means stock which ordinarily has voting power for the election of directors, whether
at all times or only so long as no senior class of stock has such voting power by reason of any
contingency.
Securities has the meaning stated in the first recital of this Indenture and more
particularly means any Securities authenticated and delivered under this Indenture.
Security Register and Security Registrar have the respective meanings specified in
Section 305.
Special Record Date for the payment of any Defaulted Interest means a date fixed by the
Trustee pursuant to Section 307.
Stated Maturity, when used with respect to any Security or any installment of principal
thereof or interest thereon, means the date specified in such Security as the fixed date on which
the principal of such Security or such installment of principal or interest is due and payable.
Subsidiary means a Corporation more than 50% of the outstanding voting stock of which is
owned, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the
Company and one or more other Subsidiaries. For the purposes of this definition, voting stock
means stock which ordinarily has voting power for the election of directors, whether at all times
or only so long as no senior class of stock has such voting power by reason of any contingency.
-7-
Trust Indenture Act means the Trust Indenture Act of 1939 as in force at the date as of
which this instrument was executed;
provided
,
however
, that in the event the Trust Indenture Act of
1939 is amended after such date, Trust Indenture Act means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
Trustee means the Person named as the Trustee in the first paragraph of this instrument
until a successor Trustee shall have become such with respect to one or more series of Securities
pursuant to the applicable provisions of this Indenture, and thereafter Trustee shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is more than one such
Person, Trustee as used with respect to the Securities of any series shall mean the Trustee with
respect to Securities of that series.
Vice President, when used with respect to the Company, means any vice president, whether or
not designated by a number or a word or words added before or after the title vice president.
Section 102.
Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any action under any
provision of this Indenture, the Company shall furnish to the Trustee such certificates and
opinions as may be required under the Trust Indenture Act. Each such certificate or opinion shall
be given in the form of an Officers Certificate, if to be given by an officer of the Company, or
an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the
Trust Indenture Act and any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture shall include
(1) a statement that each individual signing such certificate or opinion has read such
covenant or condition and the definitions herein relating thereto;
(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 each such individual, he has made such
examination or investigation as is necessary to enable him to express an informed opinion
as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such condition
or covenant has been complied with.
-8-
Section 103.
Form of Documents Delivered to Trustee
.
In any case where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some matters and one or more
other such Persons as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based, insofar as it relates to
legal matters, upon a certificate or opinion of, or representations by, counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an officer or officers of
the Company stating that the information with respect to such factual matters is in the possession
of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that
the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this Indenture, they may,
but need not, be consolidated and form one instrument.
Section 104.
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 an 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 Company. 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 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
Without limiting the generality of the foregoing, a Holder, including a Depositary that is a
Holder of a Global Security, may make, give or take, by a proxy, or proxies, duly appointed in
writing, any request, demand, authorization, direction, notice, consent, waiver or other action
provided in this Indenture to be made, given or taken by Holders, and a Depositary that is a Holder
of a Global Security may provide its proxy or proxies to the beneficial owners of interests in any
such Global Security.
-9-
(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 acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof. Where such execution
is by a signer acting in a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust Indenture Act and other than
in the circumstances described in Section 502, fix any day as the record date for the purpose of
determining the Holders of Securities of any series entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action, or to vote on any action,
authorized or permitted to be given or taken by Holders of Securities of such series. If not set
by the Company 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 701) 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.
(d) The ownership of Securities shall be proved by the Security Register.
(e) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the
Holder of any Security shall bind every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company
in reliance thereon, whether or not notation of such action is made upon such Security.
Section 105.
Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or furnished to, or
filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, or
(2) the Company by the Trustee or by any Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if in
-10-
writing and mailed,
first-class postage prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument or at any other address
previously furnished in writing to the Trustee by the Company.
Section 106.
Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at his address as it appears in
the Security Register, not later than the latest date (if any) and not earlier than the earliest
date (if any), prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to
any particular Holder shall affect the sufficiency of such notice with respect to other Holders.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action taken in reliance upon
such waiver.
In case by reason of the suspension of regular mail service or by reason of any other cause it
shall be impracticable to give such notice by mail, then such notification as shall be made with
the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
Section 107.
Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture
Act that is required under such Act to be a part of and govern this Indenture, the latter provision
shall control. If any provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified or to be excluded, as the case may be.
Section 108.
Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 109.
Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
-11-
Section 110.
Separability Clause.
In case any provision in this Indenture or in the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 111.
Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder and the Holders, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
Section 112.
Governing Law.
This Indenture and the Securities shall be governed by and construed in accordance with the
laws of the State of New York.
Section 113.
Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any
Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities (other than a provision of the Securities of any
series which specifically states that such provision shall apply in lieu of this Section)) payment
of interest or principal (and premium, if any) need not be made at such Place of Payment on such
date, but may be made on the next succeeding Business Day at such Place of Payment with the same
force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated
Maturity;
provided
that no interest shall accrue for the period from and after such Interest Payment
Date, Redemption Date or Stated Maturity, as the case may be.
ARTICLE TWO
SECURITY FORMS
Section 201.
Forms Generally.
The Securities of each series shall be in substantially the form set forth in this Article, or
in such other form as shall be established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities, as evidenced by
their execution of the Securities. If the form of Securities of any series is established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall
be certified by the Secretary or an
-12-
Assistant Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Company Order contemplated by Section 303 for the authentication
and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved on steel engraved borders
or may be produced in any other manner, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
Section 202.
Form of Face of Security.
The Securities shall be in substantially the following form:
[
Insert any legend required by the Internal Revenue Code and the regulations
thereunder
]
.
VULCAN MATERIALS COMPANY
[[
%] [NOTE] [BOND] [DEBENTURE] DUE
]
[[SERIES
] MEDIUM-TERM NOTE]
Vulcan Materials Company, a corporation duly organized and existing under the laws of New
Jersey (herein called the Company, which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
, or registered assigns, the principal sum of
[
Dollars
]
on
[
if the Security is to bear interest prior to Maturity,
insert
, and to pay interest thereon from
or from the most recent Interest Payment Date to which interest has been paid or
duly provided for, semi-annually on
and
in each year, commencing
at
the rate of ___% per annum, until the principal hereof is paid or made available for payment
[
if
applicable insert
, and (to the extent that the payment of such interest shall be legally
enforceable) at the rate of ___% per annum on any overdue principal and premium and on any overdue
installment of interest.
]
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name
this Security (or one or more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the
or
(whether or not a
Business Day), as the case may be, next preceding such 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, notice whereof shall be given to
Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the
-13-
Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture.
]
[
If the Security is not to bear interest prior to Maturity, insert
The principal of this Security
shall not bear interest except in the case of a default in payment of principal upon acceleration,
upon redemption or at Stated Maturity and in such case the overdue principal of this Security shall
bear interest at the rate of ___% per annum (to the extent that the payment of such interest
shall be legally enforceable), which shall accrue from the date of such default in payment to the
date payment of such principal has been made or duly provided for. Interest on any overdue
principal shall be payable on demand. Any such interest on any overdue principal that is not so
paid on demand shall bear interest at the rate of ___% per annum (to the extent that the payment of
such interest shall be legally enforceable), which shall accrue from the date of such demand for
payment to the date payment of such interest has been made or duly provided for, and such interest
shall also be payable on demand.
]
Payment of the principal of (and premium, if any) and
[
if applicable, insert any such
]
interest on this Security will be made at the office or agency of the Company maintained for that
purpose in New York, 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
[
If applicable, insert
;
provided
,
however
, that at the option of the Company payment of interest may be made by check
mailed to the address of the Person entitled thereto as such address shall appear in the Security
Register
]
.
Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been executed by the Trustee or an
authentication agent on its behalf referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
-14-
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated:
|
|
|
|
|
|
VULCAN MATERIALS COMPANY
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
|
|
-15-
Section 203.
Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the Company (herein called
the Securities), issued and to be issued in one or more
series under Senior Debt Indenture, dated as of
December 11, 2007 (herein called the Indenture), between the Company and Wilmington Trust
Company, as Trustee (herein called the Trustee, which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof
[
, limited in aggregate
principal amount
to $
]
.
[
If applicable, insert
The Securities of this series are subject to redemption upon not less
than 30 days notice by mail,
[
If applicable, insert
(1) on
in any year commencing with
the year
and ending with the year
through operation of the sinking fund for this
series at a Redemption Price equal to 100% of the principal amount, and (2)
]
at any time
[
on or
after
, 19___, as a whole or in part, at the election of the Company, at the following
Redemption Prices (expressed as percentages of the principal amount): If redeemed
[
on or before
___, ___%, and if redeemed
]
during the 12-month period beginning
of the years indicated,
|
|
|
|
|
|
|
|
|
Redemption
|
|
|
|
Redemption
|
Year
|
|
Price
|
|
Year
|
|
Price
|
|
|
|
|
|
|
|
and thereafter at a Redemption Price equal to ___% of the principal amount, together in the case
of any such redemption
[
if applicable, insert
(whether through operation of the sinking fund or
otherwise)
]
with accrued interest to the Redemption Date, but interest installments whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the relevant Record
Dates referred to on the face hereof, all as provided in the Indenture.
]
[
If applicable, insert
The Securities of this series are subject to redemption upon not less
than 30 days notice by mail, (1) on
in any year commencing with the year ___ and ending
with the year ___ through operation of the sinking fund for this series at the Redemption Prices
for redemption through operation of the sinking fund
-16-
(expressed as percentages of the principal amount) set forth in the table below, and (2) at
any time
[
on or after
]
, as a whole or in part, at the election of the Company, at the
Redemption Prices for redemption otherwise than through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table below: If redeemed during the 12-month
period beginning
of the years indicated,
|
|
|
|
|
|
|
Redemption Price
|
|
Redemption Price For
|
|
|
For Redemption
|
|
Redemption Otherwise
|
|
|
Through Operation
|
|
Than Through Operation
|
Year
|
|
of the Sinking Fund
|
|
of the Sinking Fund
|
|
|
|
|
|
and thereafter at a Redemption Price equal to ___% of the principal amount, together in the case
of any such redemption (whether through operation of the sinking fund or otherwise) with accrued
interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to
such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Dates referred to on the face
hereof, all as provided in the Indenture.
]
[
Notwithstanding the foregoing, the Company may not, prior to ___, redeem any
Securities of this series as contemplated by
[
Clause (2) of
]
the preceding paragraph as a part of,
or in anticipation of, any refunding operation by the application, directly or indirectly, of
moneys borrowed having an interest cost to the Company (calculated in accordance with generally
accepted financial practice) of less than ___% per annum.
]
[
The sinking fund for this series provides for the redemption on ___ in each year beginning
with the year ___ and ending with the year ___ of
[
not less than $___ (mandatory
sinking fund) and not more than
]
$___ aggregate principal amount of Securities of this
series. Securities of this series acquired or redeemed by the Company otherwise than through
[
mandatory
]
sinking fund payments
-17-
may be credited against subsequent
[
mandatory
]
sinking fund payments otherwise required to be
made
[
in the inverse order in which they become due.
]
[
If the Security is subject to redemption, insert
In the event of redemption of this Security
in part only, a new Security or Securities of this series and of like tenor for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.
]
[
If the Security is not an Original Issue Discount Security, insert
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 may be declared due and payable in the manner and with the effect
provided in the Indenture.
]
[
If the Security is an Original Issue Discount Security, insert
If an Event of Default with
respect to Securities of this series shall occur and be continuing, an amount of principal of the
Securities of this series may be declared due and payable in the manner and with the effect
provided in the Indenture. Such amount shall be equal toinsert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable and (ii) of
interest on any overdue principal and overdue interest (in each case to the extent that the payment
of such interest shall be legally enforceable), all of the Companys obligations in respect of the
payment of the principal of and interest, if any, on the Securities of this series shall
terminate.
]
[
The Indenture contains provisions for defeasance at any time of (a) the entire indebtedness
of the Company on this Security and (b) certain restrictive covenants and the related Events of
Default, upon compliance by the Company with certain conditions set forth therein, which provisions
apply to this Security.
]
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains provisions permitting
the Holders of specified percentages in principal amount of the Securities of each series at the
time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults under the Indenture
and their consequences. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
Except as set forth in Article Thirteen of the Indenture, no reference herein to the Indenture
and no provision of this Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of
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and any premium and interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable in the Security Register, upon surrender of this Security
for registration of transfer at the office or agency of the Company in any place where the
principal of and any premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in
denominations of [$___] and integral multiples of [$___] in excess thereof. As provided in
the Indenture and subject to certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this series and of like tenor
of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
Section 204.
Additional Provisions Required in Global Security.
Unless otherwise specified as contemplated by Section 301, any Global Security issued
hereunder shall in addition to the provisions contained in Sections 202 and 203 bear a legend in
substantially the following form.
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
OF A DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE
NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE
-19-
INDENTURE AND NO TRANSFER OF THIS SECURITY (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 MAY BE REGISTERED EXCEPT IN SUCH LIMITED
CIRCUMSTANCES.)
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (DTC), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
Section 205.
Form of Trustees Certificate of Authentication.
The Trustees certificates of authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein and referred to in the
within-mentioned Indenture.
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[Name of Trustee],
As Trustee
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By
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Authorized Officer
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ARTICLE THREE
THE SECURITIES
Section 301.
Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
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The Securities may be issued in one or more series. There shall be established in or pursuant
to a Board Resolution and, subject to Section 303, set forth, or determined in the manner provided,
in an Officers Certificate, or established in one or more indentures supplemental hereto, prior to
the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish the Securities
of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities of the series
which may be authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of the series pursuant to Section 304, 305, 306, 906 or 1107 and
except for any Securities which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series shall be payable, if
other than the Person in whose name that Security (or one or more Predecessor Securities)
is registered at the close of business on the Regular Record Date for such interest;
(4) the date or dates on which the principal of the Securities of the series is
payable;
(5) the rate or rates (or method by which determined) at which the Securities of the
series shall bear interest, if any, the date or dates from which such interest shall
accrue, the Interest Payment Dates on which any such interest shall be payable and the
Regular Record Date for any interest payable on any Interest Payment Date;
(6) the place or places where the principal of and any premium and interest on
Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at which and the terms and
conditions upon which Securities of the series may be redeemed, in whole or in part, at the
option of the Company;
(8) the obligation, if any, of the Company to redeem or purchase Securities of the
series pursuant to any sinking fund or analogous provisions or at the option of a Holder
thereof and the period or periods within which, the price or prices at which and the terms
and conditions upon which Securities of the series shall be redeemed or purchased, in whole
or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple thereof, the
denominations in which Securities of the series shall be issuable;
-21-
(10) if the amount of payments of principal of or any premium or interest on any
Securities of the series may be determined with reference to an index, the manner in which
such amounts shall be determined;
(11) if other than the principal amount thereof, the portion of the principal amount
of Securities of the series which shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 502;
(12) whether the Securities of the series shall be issuable in whole or in part in the
form of one or more Global Securities and, in such case, the Depositary or Depositaries
with respect to such Global Security or Securities, the form of any legend or legends which
shall be borne by any such Global Security in addition to or in lieu of that in Section 204
and the circumstances under which any such Global Security may be registered for transfer
or exchange, or authenticated and delivered, in the name of a Person other than such
Depositary or its nominee, if other than as set forth in Section 305;
(13) if other than as specified in Section 501, the events of default applicable with
respect to the Securities of the series;
(14) any other covenant or warranty included for the benefit of Securities of the
series in addition to (and not inconsistent with) those included in this Indenture for the
benefit of Securities of all series, or any other covenant or warranty included for the
benefit of Securities of the series in lieu of any covenant or warranty included in this
Indenture for the benefit of Securities of all series, or any provision that any covenant
or warranty included in this Indenture for the benefit of Securities of all series shall
not be for the benefit of Securities of such series, or any combination of such covenants,
warranties or provisions;
(15) any subordination provisions applicable with respect to the Securities of the
series; and
(16) any other terms of the series (which terms shall not be inconsistent with the
provisions of this Indenture, except as permitted by Section 901(5)).
All Securities of any one series shall be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to the Board Resolution referred to above
and (subject to Section 303) set forth or determined in the manner provided, in the Officers
Certificate referred to above or in any such indenture supplemental hereto.
If any of the terms of the Securities of a series are established by action taken pursuant to
a Board Resolution, a copy of an appropriate record of such action shall be certified by the
Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Officers Certificate setting forth the terms of the Securities of such series.
-22-
With respect to Securities of a series offered in a Periodic Offering, such Board Resolution
or action may provide general terms or parameters for Securities of such series and provide either
that the specific terms of particular Securities of such series shall be specified in a Company
Order or that such terms shall be determined by the Company or its agents in accordance with a
Company Order as contemplated by the first proviso of the third paragraph of Section 303.
Section 302.
Denominations.
The Securities of each series shall be issuable in registered form without coupons in such
denominations as shall be specified as contemplated by Section 301. In the absence of any such
provisions with respect to the Securities of any series, the Securities of such series shall be
issuable in denominations of $1,000 and any integral multiple thereof.
Section 303.
Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman of the Board, its
Vice Chairman of the Board, its President or one of its Vice Presidents, attested by its Secretary
or one of its Assistant Secretaries. The signature of any of these officers on the Securities may
be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who were at any time the
proper officers of the Company shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver
such Securities;
provided
,
however
, that, with respect to Securities of a series offered in a
Periodic Offering, (a) the Trustee shall authenticate and deliver Securities of such series for
original issue from time to time, in an aggregate principal amount not exceeding the aggregate
principal amount established for such series, pursuant to a Company Order or pursuant to such other
procedures acceptable to the Trustee as may be specified from time to time by a Company Order,
(b) the maturity date or dates, original issue date or dates, currency or currency units, interest
rate or rates and any other terms of the Securities of such series shall be determined by Company
Order or pursuant to such procedures and (c) if provided for in such procedures, such Company Order
may authorize authentication and delivery pursuant to oral or electronic instructions from the
Company or its duly authorized agent or agents, which instructions shall be promptly confirmed in
writing. Any such Company Order must be received by the Trustee not later than 10:00 a.m. (Eastern
time) one Business Day prior to the proposed date for delivery of such Securities. If the form or
terms of the Securities of the
-23-
series have been established in or pursuant to one or more Board Resolutions as permitted by
Sections 201 and 301, in authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled
to receive, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of
Counsel stating,
(a) if the form of such Securities has been established by or pursuant to Board
Resolution as permitted by Section 201, that such form has been established in conformity
with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or pursuant to Board
Resolution as permitted by Section 301, that such terms have been established in conformity
with the provisions of this Indenture; and
(c) that such Securities, when authenticated and delivered by the Trustee and issued
by the Company in the manner and subject to any conditions specified in such Opinion of
Counsel, will constitute valid and legally binding obligations of the Company, enforceable
in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to or
affecting, creditors rights and to general equity principles;
provided
,
however
, that,
with respect to Securities of a series offered in a Periodic Offering, the Trustee shall be
entitled to receive such Opinion of Counsel in connection only with the first
authentication of Securities of such series and that the opinions described in clauses
(b) and (c) above may state, respectively,
(x) that, when the terms of such Securities shall have been established
pursuant to a Company Order or pursuant to such procedures as may be specified from
time to time by a Company Order, all as contemplated by a Board Resolution or
action taken pursuant thereto, such terms will have been duly authorized by the
Company and will have been established in conformity with the provisions of this
Indenture; and
(y) that such Securities, when (i) executed by the Company, (ii) completed,
authenticated and delivered by the Trustee in accordance with this Indenture,
(iii) issued and delivered by the Company and (iv) paid for, all in accordance with
any agreement of the Company relating to the offering, issuance and sale of such
Securities, will have been duly issued under this Indenture and will constitute
valid and legally binding obligations of the Company, entitled to the benefits
provided by the Indenture, and enforceable in accordance with their terms, subject,
as to enforcement, to bankruptcy, insolvency, reorganization, moratorium and other
laws relating to or affecting generally the enforcement of creditors rights and to
general principles of equity.
-24-
With respect to Securities of a series offered in a Periodic Offering, the Trustee may
rely, as to the authorization by the Company of any of such Securities, the form and terms
thereof and the legality, validity, binding effect and enforceability thereof, upon the
Opinion of Counsel, Company Order and other documents delivered pursuant to Sections 201
and 301 and this Section, as applicable, delivered at or prior to the first authentication
of Securities of such series unless and until such opinion or other documents have been
superseded or revoked.
If such form or terms have been so established, the Trustee shall not be required to
authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect
the Trustees own rights, duties or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the third paragraph of this Section 303,
if any Securities of a series are to be offered in a Periodic Offering, it shall not be necessary
to deliver the Company Order, Opinion of Counsel and other documents otherwise required pursuant to
Sections 201 and 301 and this Section at or prior to the time of authentication of each Security of
such series if such documents are delivered at or prior to the authentication upon original
issuance of the first Security of such series to be issued;
provided
,
however
, that any subsequent
request by the Company to the Trustee to authenticate Securities of such series upon original
issuance shall constitute a representation and warranty by the Company that, as of the date of such
request, the statements made in the Officers Certificate delivered pursuant to this Section 303
shall be true and correct as if made on such date.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory
for any purpose unless there appears on such Security a certificate of authentication substantially
in the form provided for herein executed by the Trustee by manual signature, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such Security has been
duly authenticated and delivered hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing and subject, in the case of a Global Security, to Section 204, if any
Security shall have been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in
Section 309, 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.
Section 304.
Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company may execute, and
upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise
-25-
produced, in any authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will cause definitive Securities
of that series to be prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities of such series at
the office or agency of the Company in a Place of Payment for that series, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Securities of any series the
Company shall execute and the Trustee shall authenticate and deliver in exchange therefor one or
more definitive Securities of the same series of any authorized denominations and of a like
aggregate principal amount and tenor. Until so exchanged the temporary Securities of any series
shall in all respects be entitled to the same benefits under this Indenture as definitive
Securities of such series and tenor.
Section 305.
Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register
(the register maintained in such office and in any other office or agency of the Company in a Place
of Payment being herein sometimes collectively referred to as the Security Register) in which,
subject to such reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. Unless another entity is appointed
pursuant to a supplemental indenture, the Trustee is hereby appointed Security Registrar for the
purpose of registering Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any series at the office or
agency in a Place of Payment for that series, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or transferees, one or more new
Securities of the same series, of any authorized denominations and of a like aggregate principal
amount and tenor.
At the option of the Holder, Securities of any series may be exchanged for other Securities of
the same series, of any authorized denominations and of a like aggregate principal amount and
tenor, upon surrender of the Securities to be exchanged at such office or agency. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or exchange of Securities shall be the
valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
-26-
Every Security presented or surrendered for registration of transfer or for exchange shall (if
so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
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 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or exchange
Securities of any series during a period beginning at the opening of business 15 days before the
day of the mailing of a notice of redemption of Securities of that series selected for redemption
under Section 1103 and ending at the close of business on the day of such mailing, or (ii) to
register the transfer of or exchange any Security so selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in part.
Notwithstanding the foregoing, any Global Security shall be exchangeable pursuant to this
Section 305 for Securities registered in the name of Persons other than the Depositary for such
Security or its nominee only if (x) such Depositary notifies the Company that it is unwilling or
unable to continue as Depositary for such Global Security or if at any time such Depositary ceases
to be a clearing agency registered under the Exchange Act and, in either case, the Company fails to
appoint a successor Depositary registered as a clearing agency under the Exchange Act within 90
days of such event, (y) the Company executes and delivers to the Trustee a Company Order that such
Global Security shall be exchangeable or (z) there shall have occurred and be continuing an Event
of Default. Any Global Security that is exchangeable pursuant to the preceding sentence shall be
exchangeable for Securities registered in such names as the Depositary shall direct.
Except as provided in the preceding paragraph, any Security authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, any Global Security, whether
pursuant to this Section, Sections 304, 306, 906 or 1107 or otherwise, shall also be a Global
Security and bear the legend specified in Section 204.
Notwithstanding any other provision of this Section, a Global Security may not be transferred
except as a whole by the Depositary to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary.
Section 306.
Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a new Security of the
-27-
same series and of like tenor and principal amount and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction
of the mutilation, destruction, loss or theft of any Security and (ii) such security or indemnity
as may be required by them to save each of them and any agent of either of them harmless, then, in
the absence of notice to the Company or the Trustee that such Security has been acquired by a bona
fide purchaser, the Company shall execute and the Trustee shall authenticate and deliver in lieu of
any such mutilated, destroyed, lost or stolen Security, a new Security of the same series and of
like tenor and principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, the Company in its discretion may, instead of issuing a new Security, pay
such Security.
Upon the issuance of any new Security under this Section, the Company 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 the fees and expenses of the Trustee) connected
therewith.
Every new Security of any series issued pursuant to this Section in lieu of any mutilated,
destroyed, lost or stolen Security shall constitute an original additional contractual obligation
of the Company, whether or not the mutilated, 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 that series duly issued hereunder.
The provisions of this Section 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 307.
Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with respect to any series of
Securities, interest on any Security which is payable, and is punctually paid or duly provided for,
on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the Regular Record Date for
such interest.
Any interest on any Security of any series which is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date (herein called Defaulted Interest) shall
forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
-28-
(1) The Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The Company shall notify
the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each
Security of such series and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and, in the name and
at the expense of the Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to
each Holder of Securities of such series at his address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose names the Securities
of such series (or their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable pursuant to the
following clause (2).
(2) The Company may make payment of any Defaulted Interest on the Securities of any
series in any other lawful manner not inconsistent with the requirements of any securities
exchange on which such Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security delivered under this
Indenture upon registration of transfer of, in exchange for, or in lieu of, any other Security
shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
Section 308.
Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of
-29-
receiving payment of principal of and any premium and (subject to Section 307) any interest on
such Security and for all other purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
Notwithstanding the foregoing, with respect to any Global Security, nothing herein shall
prevent the Company, the Trustee, or any agent of the Company or the Trustee, from giving effect to
any written certification, proxy or other authorization furnished by a Depositary or impair, as
between a Depositary and holders of beneficial interests in any Global Security, the operation of
customary practices governing the exercise of the rights of the Depositary as Holder of such Global
Security.
Section 309.
Cancellation.
All Securities surrendered for payment, redemption, registration of transfer or exchange or
for credit against any sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The Company may at any
time deliver to the Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the
Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of as
directed by a Company Order.
Section 310.
Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities of any series,
interest on the Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401.
Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein expressly provided
for), and the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(1) either:
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(A) all Securities theretofore authenticated and delivered (other than
(i) Securities which have been mutilated, destroyed, lost or stolen and which have
been replaced or paid as provided in Section 306 and (ii) Securities for whose
payment money has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or discharged from such
trust, as provided in Section 1003) have been delivered to the Trustee for
cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one
year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or caused
to be deposited with the Trustee as trust funds in trust for the purpose an amount
sufficient to pay and discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for principal and any
premium and interest to the date of such deposit (in the case of Securities which
have become due and payable) or to the Stated Maturity or Redemption Date, as the
case may be;
(2) the Company has paid or caused to be paid all other sums payable hereunder by the
Company; and
(3) the Company has delivered to the Trustee an Officers Certificate and an Opinion
of Counsel, each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of
the Company to the Trustee under Section 607, the obligations of the Trustee to any
Authenticating Agent under Section 614 and, if money shall have been deposited with the
Trustee pursuant to subclause (B) of clause (1) of this Section, the obligations of the
Trustee under Section 402 and the last paragraph of Section 1003 shall survive.
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Section 402.
Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money deposited with the
Trustee pursuant to Section 401 shall be held in trust and applied by it, in accordance with the
provisions of the Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine,
to the Persons entitled thereto, of the principal and any premium and interest for whose payment
such money has been deposited with the Trustee.
ARTICLE FIVE
REMEDIES
Section 501.
Events of Default.
Event of Default, wherever used herein with respect to Securities of any series, means any
one of the following events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of that series when it
becomes due and payable, and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any, on) any Security
of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as due by the terms
of a Security of that series; or
(4) default in the performance, or breach, of any covenant or warranty of the Company
in this Indenture (other than a covenant or warranty a default in whose performance or
whose breach is elsewhere in this Section specifically dealt with or which has expressly
been included in this Indenture solely for the benefit of series of Securities other than
that series), and continuance of such default or breach for a period of 90 days after there
has been given, by registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice is a Notice of Default
hereunder; or
(5) the entry by a court having jurisdiction in the premises of (A) a decree or order
for relief in respect of the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency,
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reorganization or other similar law or
(B) a decree or order adjudging the Company a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment or composition of
or in respect of the Company under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official
of the Company or of any substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or order for relief or
any such other decree or order unstayed and in effect for a period of 60 consecutive days;
or
(6) the commencement by the Company of a voluntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or
of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent
by it to the entry of a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, or the filing by it of a petition or answer or
consent seeking reorganization or relief under any applicable Federal or State law, or the
consent by it to the filing of such petition or to the appointment of or taking possession
by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or the making by it of
an assignment for the benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the taking of corporate action
by the Company in furtherance of any such action; or
(7) any other Event of Default provided with respect to Securities of that series.
Section 502.
Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the time Outstanding occurs
and is continuing, then in every such case the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Securities of that series may declare the principal amount (or,
if any of the Securities of that series are Original Issue Discount Securities, such portion of the
principal amount of such Securities as may be specified in the terms thereof) of all of the
Securities of that series to be due and payable immediately, by a notice in writing to the Company
(and to the Trustee if given by Holders), and upon any such declaration such principal amount (or
specified amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to Securities of any series
has been made and before a judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of
the Outstanding Securities of that series, by written notice
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to the Company and the Trustee, may
rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of that series
which have become due otherwise than by such declaration of acceleration and any
interest thereon at the rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful, interest upon
overdue interest at the rate or rates prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default with respect to Securities of that series, other than the
non-payment of the principal of Securities of that series which have become due solely by
such declaration of acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
Upon receipt by the Trustee of any declaration of acceleration, or rescission and annulment
thereof, with respect to Securities of a series all or part of which is represented by a Global
Security, a record date shall be established for determining Holders of Outstanding Securities of
such series entitled to join in such declaration of acceleration, or rescission and annulment, as
the case may be, which record date shall be at the close business on the day the Trustee receives
such declaration of acceleration, or rescission and annulment, as the case may be. The Holders on
such record date, or their duly designated proxies, and only such Persons, shall be entitled to
join in such declaration of acceleration, or rescission and annulment, as the case may be, whether
or not such Holders remain Holders after such record date;
provided
, that unless such declaration
of acceleration, or rescission and annulment, as the case may be, shall have become effective by
virtue of the requisite percentage having been obtained prior to the day which is 90 days after
such record date, such declaration of acceleration, or rescission and annulment, as the case may
be, shall automatically and without further action by any Holder be canceled and of no further
effect. Nothing in this paragraph shall prevent a
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Holder, or a proxy of a Holder, from giving,
after expiration of such 90-day period, a new declaration of acceleration, or rescission or
annulment thereof, as the case may be, that is identical to a declaration of acceleration, or
rescission or annulment thereof, which has been canceled pursuant to the proviso to the preceding
sentence, in which event a new record date shall be established pursuant to the provisions of this
Section 502.
Section 503.
Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security when such interest
becomes due and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if any, on) any
Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such
Securities, the whole amount then due and payable on such Securities for principal and any premium
and interest and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.
Section 504.
Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any other obligor upon the
Securities), its property or its creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions authorized under the
Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and receive any moneys or
other property payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments directly to the
Holders, to pay
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to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 505.
Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may be prosecuted and
enforced by the Trustee without the possession of any of the Securities or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in
respect of which such judgment has been recovered.
Section 506.
Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on
account of principal or any premium or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any agents appointed in
connection with the Securities under Section 607; and
SECOND: To the payment of the amounts then due and unpaid for principal of and any
premium and interest on the Securities in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of any kind, according to
the amounts due and payable on such Securities for principal and any premium and interest,
respectively.
Section 507.
Limitation on Suits.
No Holder of any Security of any series shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of a continuing
Event of Default with respect to the Securities of that series;
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(2) the Holders of not less than 25% in principal amount of the Outstanding Securities
of that series shall have made written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable indemnity against
the costs, expenses and liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and offer of
indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to the Trustee
during such 60-day period by the Holders of a majority in principal amount of the
Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have any right in any
manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb
or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such Holders.
Section 508.
Unconditional Right of Holders to Receive Principal, Premium and Interest.
Except as set forth in Article Thirteen hereof, the Holder of any Security shall have the
right, which is absolute and unconditional, to receive payment of the principal of and any premium
and (subject to Section 307) any interest on such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute
suit for the enforcement of any such payment, and such rights shall not be impaired without the
consent of such Holder.
Section 509.
Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every such case, subject to
any determination in such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such proceeding had been
instituted.
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Section 510.
Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 306, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 511.
Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 512.
Control by Holders.
The Holders of a majority in principal amount of the Outstanding Securities of any series
shall have the right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series,
provided
that
(1) such direction shall not be in conflict with any rule of law or with this
Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
Upon receipt by the Trustee of any such direction with respect to Securities of a series all
or part of which is represented by a Global Security, a record date shall be established for
determining Holders of Outstanding Securities of such series entitled to join in such direction,
which record date shall be at the close of business on the day the Trustee receives such direction.
The Holders on such record date, or their duly designated proxies, and only such Persons, shall be
entitled to join in such direction, whether or not such Holders remain Holders after such record
date;
provided
, that unless such majority in principal amount shall have been obtained prior to the
date which is 90 days after such record date, such direction shall automatically and without
further action by any Holder be canceled and of no further effect. Nothing in this paragraph shall
prevent a Holder, or a proxy of a Holder, from giving, after expiration of such 90-day period, a
new direction identical to a direction which has been canceled pursuant to the
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proviso to the
preceding sentence, in which event a new record date shall be established pursuant to the
provisions of this Section 512.
Section 513.
Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the Outstanding Securities of
any series may on behalf of the Holders of all the Securities of such series waive any past default
hereunder with respect to such series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on any Security of
such series, or
(2) in respect of a covenant or provision hereof which under Article Nine cannot be
modified or amended without the consent of the Holder of each Outstanding Security of such
series affected.
The Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Persons entitled to waive any past default hereunder. If a record date is fixed,
the Holders on such record date, or their duly designated proxies, and only such Persons, shall be
entitled to waive any default hereunder, whether or not such Holders remain Holders after such
record date;
provided
, that unless such majority in principal amount shall have been obtained prior
to the date which is 90 days after such record date, any such waiver previously given shall
automatically and without further action by any Holder be canceled and of no further effect.
Upon any such waiver, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 514.
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, suffered or omitted by it as Trustee, a court may require
any party litigant in such suit to file an undertaking to pay the costs of such suit, and may
assess costs against any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act;
provided
that neither this Section nor the Trust Indenture Act shall be deemed to
authorize any court to require such an undertaking or to make such an assessment in any suit
instituted by the Company, in any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Securities, or in any suit
instituted by any Holder for the enforcement of the payment of the principal of (or premium, if
any) or interest on any Security on or after the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on or after the Redemption Date).
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Section 515.
Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it will not at any time
insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any
stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully
do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will
not hinder, delay or impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
Section 601.
Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Trustee shall be as provided by the Trust Indenture
Act. Notwithstanding the foregoing, no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the performance of any
of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it. Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this Section. Any
permissive right of the Trustee enumerated in this Indenture or provided in the Trust Indenture Act
shall not be construed as a duty. The Trustee shall not be charged with knowledge of an Event of
Default until such time as a Responsible Officer of the Trustee shall have actual knowledge or have
received written notice thereof.
(b) The Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports,
documents, orders or other instruments furnished to the Trustee which are specifically required to
be furnished pursuant to any provision of this Indenture, shall examine them to determine whether
they conform to the requirements of this Indenture;
provided, however
, that the Trustee shall not
be responsible for the accuracy or content of any resolution, certificate, statement, opinion,
report, document, order or other instrument furnished by the Company hereunder.
(c) The Trustee shall not be liable in its individual capacity for an error of judgment made
in good faith by a Responsible Officer or other officers of the Trustee, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts.
(d) The Trustee shall not be liable in its individual capacity with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance with this Indenture or at
the direction of the Holders of a majority in principal amount of the
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Outstanding Securities,
relating to the time, method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising or omitting to exercise any trust or power conferred upon the Trustee, under
this Indenture.
Section 602.
Notice of Defaults.
If a default of which a Responsible Officer of the Trustee has actual knowledge occurs
hereunder with respect to Securities of any series, the Trustee shall give the Holders of
Securities of such series notice of such default as and to the extent provided by the Trust
Indenture Act;
provided
,
however
, that in the case of any default of the character specified in
Section 501(4) with respect to Securities of such series, no such notice to Holders shall be given
until at least 30 days after the occurrence thereof. For the purpose of this Section, the term
default means any event which is, or after notice or lapse of time or both would become, an Event
of Default with respect to Securities of such series.
Section 603.
Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be sufficiently evidenced
by a Company Request or Company Order and any resolution of the Board of Directors shall be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem it desirable that
a matter be proved or established prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, rely upon an Officers Certificate;
(d) the Trustee may consult with counsel and the advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the Trustee security or indemnity satisfactory to it
against the costs, expenses and liabilities which might be incurred by it in compliance with such
request or direction;
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(f) the Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document,
unless requested in writing to do so by Holders of a majority in principal amount of the
Outstanding Securities;
provided, however
, that if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee not assured to it by the security afforded to it by
the terms of this Indenture, the Trustee may require indemnity satisfactory to the Trustee against
such cost, expense or liability as a condition to taking any such action. The reasonable expense
of every such examination shall be paid by the Company or, if paid by the Trustee, shall be repaid
by the Company upon demand from the Companys own funds;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or attorney appointed with
due care by it hereunder; and
(h) the Trustee shall not be personally liable for any action taken, suffered or omitted by it
in good faith and believed by it to be authorized or within the discretion or rights or powers
conferred upon it by this Indenture.
Section 604.
Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustees certificates of
authentication, shall be taken as the statements of the Company, and the Trustee or any
Authenticating Agent assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the Securities. The
Trustee or any Authenticating Agent shall not be accountable for the use or application by the
Company of Securities or the proceeds thereof.
Section 605.
May Hold Securities.
The Trustee, any Authenticating Agents, any Paying Agent, any Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 608 and 613, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar
or such other agent.
Section 606.
Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from other funds except to
the extent required by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.
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Section 607.
Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation for all services
rendered by it hereunder (which compensation shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and outside counsel), except
any such expense, disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any loss, liability
or expense incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties hereunder,
except to the extent any such loss, liability or expense may be attributable to its
negligence or bad faith.
Anything in this Indenture to the contrary notwithstanding, in no event shall the Trustee be
liable for special, indirect or consequential loss or damage of any kind whatsoever (including but
not limited to lost profits), even if the Trustee has been advised of the likelihood of such loss
or damage and regardless of the form of action.
The obligations of the Company under this Section 607 shall survive the resignation and
removal of the Trustee, payment of the Securities and termination of this Indenture.
Section 608.
Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the
manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.
Section 609.
Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a Person that is eligible
pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus of at
least $50,000,000 subject to supervision or examination by Federal or State authority and having
its Corporate Trust Office in the United States of America. If such
-43-
Person publishes reports of
condition at least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital and surplus of
such Person shall be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
Section 610.
Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities of one or more series by
giving written notice thereof to the Company. If the instrument of acceptance by a successor
Trustee required by Section 611 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Securities of such
series.
(c) The Trustee may be removed at any time with respect to the Securities of any series by Act
of the Holders of a majority in principal amount of the Outstanding Securities of such series,
delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written request therefor
by the Company or by any Holder who has been a bona fide Holder of a Security for at least
six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall fail to resign
after written request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the Trustee with respect
to all Securities, or (ii) subject to Section 514, any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of
-44-
the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy
shall occur in the office of Trustee for any cause, with respect to the Securities of one or more
series, the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees
with respect to the Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of such series and
that at any time there shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 611. If, within one year
after such resignation, removal or incapability, or the occurrence of such vacancy, a successor
Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities of such series delivered to the Company
and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section 611, become the
successor Trustee with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities
of any series shall have been so appointed by the Company or the Holders and accepted appointment
in the manner required by Section 611, any Holder who has been a bona fide Holder of a Security of
such series for at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal of the Trustee with
respect to the Securities of any series and each appointment of a successor Trustee with respect to
the Securities of any series to all Holders of Securities of such series in the manner provided in
Section 106. Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
Section 611.
Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on the request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring
Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder.
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(b) In case of the appointment hereunder of a successor Trustee with respect to the Securities
of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee
with respect to the Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment and which (1)
shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those
series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring
Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be
necessary 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 hereunder separate and apart from any trust or trusts hereunder administered by any other
such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided therein and each such
successor Trustee, without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates; but, on request of the
Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee hereunder with respect
to the Securities of that or those series to which the appointment of such successor Trustee
relates.
(c) Upon the reasonable request of any such successor Trustee, the Company shall execute any
and all instruments for more fully and certainly vesting in and confirming to such successor
Trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as
the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of such acceptance
such successor Trustee shall be qualified and eligible under this Article.
Section 612.
Merger, Conversion, Consolidation or Succession to Business.
Any Corporation into which the Trustee may be merged or converted or with which it may be
consolidated, or any Corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any Corporation succeeding to all or substantially all the
corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided
such Corporation shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the parties hereto. In
case any Securities shall have been
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authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation to such authenticating Trustee may
adopt such authentication and deliver the Securities so authenticated with the same effect as if
such successor Trustee had itself authenticated such Securities.
Section 613.
Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or any other obligor
upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act
regarding the collection of claims against the Company (or any such other obligor).
Section 614.
Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities
of such series issued upon original issue and upon exchange, registration of transfer or partial
redemption thereof or pursuant to Section 306, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustees certificate of
authentication, such reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a Corporation organized and doing business under the laws of the
United States of America, any State thereof or the District of Columbia, authorized under such laws
to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000
and subject to supervision or examination by Federal or State authority. If such Authenticating
Agent publishes reports of condition at least annually, pursuant to law or to the requirements of
said supervising or examining authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any Corporation into which an Authenticating Agent may be merged or converted or with which it
may be consolidated, or any Corporation resulting from any merger, conversion or consolidation to
which such Authenticating Agent shall be a party, or any Corporation succeeding to the corporate
agency or corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such Corporation shall be otherwise eligible under this Section,
without the execution or filing of any paper or any further act on the part of the Trustee or the
Authenticating Agent.
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An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee
and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be acceptable to the Company and shall mail
written notice of such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will serve, as their names
and addresses appear in the Security Register. Any successor Authenticating Agent upon acceptance
of its appointment hereunder shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No
successor Authenticating Agent shall be appointed unless eligible under the provisions of this
Section.
The Trustee agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section, and the Trustee shall be entitled to be
reimbursed for such payments, subject to the provisions of Section 607.
If an appointment with respect to one or more series is made pursuant to this Section, the
Securities of such series may have endorsed thereon, in addition to the Trustees certificate of
authentication, an alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
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ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701.
Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a)
semi-annually, not more than 15 days after the Regular Record
Date, a list, in such form as the Trustee may reasonably require, of
the names and addresses of the Holders of Securities as of such Regular
Record Date, and
(b) at such other times as the Trustee may request in writing, within 30 days after
the receipt by the Company of any such request, a list of similar form and content as of a
date not more than 15 days prior to the time such list is furnished;
excluding
from any such list names and addresses received by the Trustee in its capacity as
Security Registrar.
Section 702.
Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names
and addresses of Holders contained in the most recent list furnished to the Trustee as provided in
Section 701 and the names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 701
upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with respect to their rights under
this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee,
shall be as provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same, agrees with the Company and
the Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of any disclosure of information as to names and addresses of Holders made
pursuant to the Trust Indenture Act.
Section 703.
Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the Trustee and its actions
under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto.
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(b) A copy of each such report shall, at the time of such transmission to Holders, be filed by
the Trustee with each stock exchange upon which any Securities are listed, with the Commission and
with the Company. The Company will notify the Trustee when any Securities are listed on any stock
exchange.
Section 704.
Reports by Company.
The Company shall file with the Trustee and the Commission, and transmit to Holders, such
information, documents and other reports, and such summaries thereof, as may be required pursuant
to the Trust Indenture Act at the times and in the manner provided pursuant to such Act;
provided
that any such information, documents or reports required to be filed with the Commission pursuant
to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within 15 days after the
same is actually filed with the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801.
Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Corporation or convey, transfer
or lease its properties and assets substantially as an entirety to any Corporation, and the Company
shall not permit any Corporation to consolidate with or merge into the Company or convey, transfer
or lease its properties and assets substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into another Corporation or
convey, transfer or lease its properties and assets substantially as an entirety to any
Corporation, the Corporation formed by such consolidation or into which the Company is
merged or the Corporation which acquires by conveyance or transfer, or which leases, the
properties and assets of the Company substantially as an entirety shall be a Corporation
organized and validly existing under the laws of the United States of America, any State
thereof or the District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of and any premium and interest on
all the Securities and the performance or observance of every covenant of this Indenture on
the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and treating any indebtedness
which becomes an obligation of the Company or a Subsidiary as a result of such transaction
as having been incurred by the Company or such Subsidiary at the time of such transaction,
no Event of Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing;
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(3) if, as a result of any such consolidation or merger or such conveyance, transfer
or lease, properties or assets of the Company would become subject to a mortgage, pledge,
lien, security interest or other encumbrance which would not be permitted by this
Indenture, the Company or such successor Corporation, as the case may be, shall take such
steps as shall be necessary effectively to secure the Securities equally and ratably with
(or prior to) all indebtedness secured thereby; and
(4) the Company has delivered to the Trustee an Officers Certificate and an Opinion
of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease
and, if a supplemental indenture is required in connection with such transaction, such
supplemental indenture comply with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with.
This Section 801 shall not apply to sale, assignment, transfer, conveyance or other disposition of
assets between or among the Company and any Restricted Subsidiary.
Section 802.
Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company into, any other
Corporation or any conveyance, transfer or lease of the properties and assets of the Company
substantially as an entirety in accordance with Section 801, the successor Corporation formed by
such consolidation or into which the Company is merged or to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor Corporation had been
named as the Company herein, and thereafter, except in the case of a lease, the predecessor
Corporation shall be relieved of all obligations and covenants under this Indenture and the
Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901.
Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a Board Resolution, and
the Trustee, at any time and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the assumption by
any such successor of the covenants of the Company herein and in the Securities; or
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(2) to add to the covenants of the Company for the benefit of the Holders of all or
any series of Securities (and if such covenants are to be for the benefit of less than all
series of Securities, stating that such covenants are expressly being included solely for
the benefit of such series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this Indenture to such extent as
shall be necessary to permit or facilitate the issuance of Securities in bearer form,
registrable or not registrable as to principal, and with or without interest coupons; or
(5) to add to, change or eliminate any of the provisions of this Indenture in respect
of one or more series of Securities;
provided
that any such addition, change, or
elimination (i) shall neither (A) apply to any Security of any series created prior to the
execution of such supplemental indenture and entitled to the benefit of such provision nor
(B) modify the rights of the Holder of any such Security with respect to such provision or
(ii) shall become effective only when there is no such Security Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as permitted by
Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Securities of one or more series and to add to or change any of
the provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant to the
requirements of Section 611(b); or
(9) to cure any ambiguity, to correct or supplement any provision herein which may be
inconsistent with any other provision herein, or to make any other provisions with respect
to matters or questions arising under this Indenture;
provided
that such action pursuant to
this clause (9) shall not adversely affect the interests of the Holders of Securities of
any series in any material respect.
Section 902.
Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities of each series affected by such supplemental indenture, by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture or of modifying in
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any manner the rights of the Holders of Securities of such series under this Indenture;
provided
,
however
, that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment of principal of
or interest on, any Security, or reduce the principal amount thereof or the rate of
interest thereon or any premium payable upon the redemption thereof, or reduce the amount
of the principal of an Original Issue Discount Security that would be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502, or change
any Place of Payment where, or the coin or currency in which, any Security or any premium
or interest thereon is payable, or impair the right to institute suit for the enforcement
of any such payment on or after the Stated Maturity thereof (or, in the case of redemption,
on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding Securities of any
series, the consent of whose Holders is required for any such supplemental indenture, or
the consent of whose Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their consequences) provided
for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513 or Section 1008, except
to increase any such percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of each
Outstanding Security affected thereby;
provided
,
however
, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in the references to
the Trustee and concomitant changes in this Section and Section 1008, or the deletion of
this proviso, in accordance with the requirements of Sections 611(b) and 901(8).
A supplemental indenture which changes or eliminates any covenant or other provision of this
Indenture which has expressly been included solely for the benefit of one or more particular series
of Securities, or which modifies the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to approve the particular
form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve
the substance thereof.
Section 903.
Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of
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such supplemental indenture is authorized or permitted by this Indenture. The Trustee may,
but shall not be obligated to, enter into any such supplemental indenture which affects the
Trustees own rights, duties or immunities under this Indenture or otherwise.
Section 904.
Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby.
Section 905.
Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act.
Section 906.
Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in
form approved by the Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of any series so modified as to conform, in the opinion
of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities
of such series.
ARTICLE TEN
COVENANTS
Section 1001.
Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay the principal of and any premium and interest on the Securities of that
series in accordance with the terms of the Securities and this Indenture.
Section 1002.
Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of Securities an office or
agency where Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Securities of that series and this
Indenture may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with
the address thereof, such
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presentations, surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices or agencies where
the Securities of one or more series may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations;
provided
,
however
, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain an office or
agency in each Place of Payment for Securities of any series for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or rescission and of any change
in the location of any such other office or agency.
Section 1003.
Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect to any series of
Securities, it will, on or before each due date of the principal of or any premium or interest on
any of the Securities of that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will
promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of Securities, it
will, prior to each due date of the principal of or any premium or interest on any Securities of
that series, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be held
as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such Paying Agent will (i) comply with the
provisions of the Trust Indenture Act applicable to it as a Paying Agent and (ii) during the
continuance of any default by the Company (or any other obligor upon the Securities of that series)
in the making of any payment in respect of the Securities of that series, upon the written request
of the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such
-55-
payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of or any premium or interest on any Security of any series
and remaining unclaimed for two years after such principal, premium or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease;
provided
,
however
, that the Trustee or such Paying Agent, before
being required to make any such repayment, may at the expense of the Company cause to be published
once, in a newspaper published in the English language, customarily published on each Business Day
and of general circulation in the Borough of Manhattan, The City of New York, notice that such
money remains unclaimed and that, after a date specified therein, which shall not be less than 30
days from the date of such publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
Section 1004.
Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end of each fiscal year of
the Company ending after the date hereof, an Officers Certificate, stating whether or not to the
best knowledge of the signers thereof the Company is in default in the performance and observance
of any of the terms, provisions, conditions or covenants of this Indenture (without regard to any
period of grace or requirement of notice provided hereunder) and, if the Company shall be in
default, specifying all such defaults and the nature and status thereof of which they may have
knowledge.
Section 1005.
Existence.
So long as any of the Securities remain unpaid, the Company will at all times (except as
otherwise provided or permitted elsewhere in this Indenture) do or cause to be done all things
necessary to preserve and keep in full force and effect its existence as a Corporation.
Section 1006.
Restrictions on Secured Debt.
The Company will not itself, and will not permit any Restricted Subsidiary to, incur, issue,
assume or guarantee any notes, bonds, debentures or other similar evidences of indebtedness for
money borrowed (notes, bonds, debentures or other similar evidences of indebtedness for money
borrowed being hereinafter in this Article called Debt), secured by pledge of, or mortgage or
other lien on, any Principal Property of the Company or any Restricted Subsidiary, or any shares of
stock or Debt of any Restricted Subsidiary (pledges, mortgages and other liens being hereinafter in
this Article called
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Mortgage or Mortgages), without effectively providing that the Securities of each series
then Outstanding (together with, if the Company shall so determine, any other Debt of the Company
or such Subsidiary then existing or thereafter created which is not subordinate to the Securities
of each series then Outstanding) shall be secured equally and ratably with (or prior to) such
secured Debt, so long as such secured Debt shall be so secured, unless, after giving effect
thereto, the aggregate amount of all such secured Debt plus all Attributable Debt of the Company
and its Restricted Subsidiaries in respect of sale and leaseback transactions (as defined in
Section 1007) would not exceed 15% of Consolidated Net Tangible Assets;
provided
,
however
, that
this Section shall not apply to, and there shall be excluded from secured Debt in any computation
under this Section, Debt secured by:
(1) Mortgages on property of, or on any shares of stock or Debt of, any Person
existing at the time such Person becomes a Restricted Subsidiary or with respect to a
particular series of the Securities, liens existing as of the time such Securities are
first issued;
(2) Mortgages in favor of the Company or any Restricted Subsidiary;
(3) Mortgages in favor of the United States of America, or any agency, department or
other instrumentality thereof, or other government or governmental entity, to secure
progress, advance or other payments pursuant to any contract or provision of any statute or
regulation;
(4) Mortgages on property, shares of stock or Debt existing at the time of acquisition
thereof (including acquisition through merger or consolidation) or to secure the payment of
all or any part of the purchase price or construction or improvement cost thereof or to
secure any Debt incurred prior to, at the time of, or within one year after, the
acquisition of such property or shares or Debt or the completion of any such construction
on or improvement of the property and commencement of full operation thereof for the
purpose of financing all or any part of the purchase price or construction or improvement
cost thereof;
(5) Mortgages securing all of the Securities; and
(6) any extension, renewal or replacement (or successive extensions, renewals or
replacements), as a whole or in part, of any Mortgage referred to in the foregoing clauses
(1) to (5), inclusive;
provided
, that such extension, renewal or replacement Mortgage shall
be limited to all or a part of the same property, shares of stock or Debt that secured the
Mortgage extended, renewed or replaced (plus improvements on such property); and,
provided
,
further
, in the event that Debt secured by a Mortgage is increased as a result of any
extension, renewal or replacement described above, the increased amount of such Debt, and
only such increased amount, shall be included in secured Debt in any computation under this
Section.
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Section 1007.
Limitations on Sales and Leasebacks.
The Company will not itself, and it will not permit any Restricted Subsidiary to, enter into
any arrangement with any bank, insurance company or other lender or investor (not including the
Company or any Restricted Subsidiary) or to which any such lender or investor is a party, providing
for the leasing by the Company or a Restricted Subsidiary for a period, including renewals, in
excess of three years (except for such arrangements that the Company or such Restricted Subsidiary may terminate within
three years) of any Principal Property which has been or is to be sold or transferred, more than
one year after the acquisition, construction, improvement and commencement of full operation
thereof, by the Company or any Restricted Subsidiary to such lender or investor or to any Person to
whom funds have been or are to be advanced by such lender or investor on the security of such
Principal Property (herein referred to as a sale and leaseback transaction) unless either:
(1) the Company or such Restricted Subsidiary could create Debt secured by a Mortgage
pursuant to Section 1006 on the Principal Property to be leased back in an amount equal to
the Attributable Debt with respect to such sale and leaseback transaction without equally
and ratably securing the Securities of each series, or
(2) the Company or any Restricted Subsidiary within one year after the sale or
transfer shall have been made by the Company or a Restricted Subsidiary, applies an amount
not less than the greater of (i) the net proceeds of the sale of the Principal Property
sold and leased back pursuant to such arrangement; or (ii) the fair market value of the
Principal Property so sold and leased back at the time of entering into such arrangement
(as determined by any two of the following: the Chairman or a Vice Chairman of the Board
of Directors of the Company, its President, any Vice President of the Company, its
Treasurer and its Comptroller) to (a) the purchase, construction or improvement of other
property used or useful in the business of, or other capital expenditure by, the Company or
of any of its Restricted Subsidiaries or (b) the retirement of Funded Debt, or the
prepayment of any capital lease obligation, of the Company or any Restricted Subsidiary;
provided, that the amount to be applied to the retirement of Funded Debt or the prepayment
of any capital lease obligation of the Company or any Restricted Subsidiary shall be
reduced by (x) the principal amount of any Securities delivered within one year after such
sale to the Trustee for retirement and cancellation, and (y) the principal amount of Funded
Debt, other than Securities, voluntarily retired by the Company or any Restricted
Subsidiary within one year after such sale. Notwithstanding the foregoing, no retirement
referred to in this clause (2) may be effected by payment at maturity or pursuant to any
mandatory sinking fund payment or mandatory prepayment provision, or
(3) as to any particular series of Securities, sale and leaseback transactions
existing on the date that Securities of such series are first issued.
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Section 1008.
Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term, provision or
condition set forth in Sections 1006 and 1007 with respect to the Securities of any series if
before the time for such compliance the Holders of at least a majority in principal amount of the
Outstanding Securities of such series shall, by Act of such Holders, either waive such compliance
in such instance or generally waive compliance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations of the Company and
the duties of the Trustee in respect of any such term, provision or condition shall remain in full
force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101.
Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified as contemplated by Section 301
for Securities of any series) in accordance with this Article.
Section 1102.
Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by a Board Resolution.
In case of any redemption at the election of the Company of less than all the Securities of any
series, the Company shall, at least 60 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date, of the principal amount of Securities of such series to be redeemed (or if any of
the Securities of that series are Original Issue Discount Securities, such portion of the principal
amount of such Securities as may be specified in the terms thereof) and, if applicable, of the
tenor of the Securities to be redeemed. In the case of any redemption of Securities prior to the
expiration of any restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an Officers Certificate
evidencing compliance with such restriction.
Section 1103.
Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless all of the Securities
of such series and of a specified tenor are to be redeemed), the particular Securities to be
redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from
the Outstanding Securities of such series not previously called for redemption, and shall be made
pro rata
, by lot or by such method as the Trustee shall deem fair and appropriate and which may
provide for the selection for
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redemption of portions (equal to the minimum authorized denomination for Securities of that
series or any integral multiple thereof) of the principal amount of Securities of such series of a
denomination larger than the minimum authorized denomination for Securities of that series. If
less than all of the Securities of such series and of a specified tenor are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series and specified tenor
not previously called for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption, the principal amount
thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all provisions
relating to the redemption of Securities shall relate, in the case of any Securities 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 1104.
Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than
30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed,
at his address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and accrued interest, if any,
(3) if less than all the Outstanding Securities of any series are to be redeemed, the
identification (and, in the case of partial redemption of any Securities, the principal
amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price and accrued interest, if any,
will become due and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(5) the place or places where such Securities are to be surrendered for payment of the
Redemption Price and accrued interest, if any, and
(6) that the redemption is for a sinking fund, if such is the case.
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Notice of redemption of Securities to be redeemed at the election of the Company shall be
given by the Company or, at the Companys request, by the Trustee in the name and at the expense of
the Company.
Section 1105.
Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money sufficient to pay the Redemption Price of, and (except
if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
Section 1106.
Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall,
on the Redemption Date, become due and payable at the Redemption Price therein specified, and from
and after such date (unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender of any such
Security for redemption in accordance with said notice, such Security shall be paid by the Company
at the Redemption Price, together with accrued interest to the Redemption Date;
provided
,
however
,
that, unless otherwise specified as contemplated by Section 301, installments of interest whose
Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the close of business on
the relevant Record Dates according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal and any premium shall, until paid, bear interest from the Redemption Date
at the rate prescribed therefor in the Security.
Section 1107.
Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment
therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new
Security or Securities of the same series and of like tenor, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered. If a Global Security is so surrendered,
such new Security so issued shall be a Global Security.
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ARTICLE TWELVE
SINKING FUNDS
Section 1201.
Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by Section 301 for Securities
of such series.
The minimum amount of any sinking fund payment provided for by the terms of Securities of any
series is herein referred to as a mandatory sinking fund payment, and any payment in excess of
such minimum amount provided for by the terms of Securities of any series is herein referred to as
an optional sinking fund payment. If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided in Section 1202.
Each sinking fund payment shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series.
Section 1202.
Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other than any previously
called for redemption) and (2) may apply as a credit Securities of a series which have been
redeemed either at the election of the Company pursuant to the terms of such Securities or through
the application of permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund payment with
respect to the Securities of such series required to be made pursuant to the terms of such
Securities as provided for by the terms of such Series;
provided
that such Securities have not been
previously so credited. Such Securities shall be received and credited for such purpose by the
Trustee at the Redemption Price specified in such Securities for redemption through operation of
the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 1203.
Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any series of Securities,
the Company will deliver to the Trustee an Officers Certificate specifying the amount of the next
ensuing sinking fund payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which
is to be satisfied by delivering and crediting Securities of that series pursuant to Section 1202
and will also deliver to the Trustee any Securities to be so delivered. Not less than 30 days
before each such sinking fund payment date the Trustee shall select the Securities to be redeemed
upon such sinking fund payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company in the manner
provided in
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Section 1104. Such notice having been duly given, the redemption of such Securities shall be
made upon the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 1301.
Applicability of Article; Companys Option to Effect Defeasance or Covenant
Defeasance.
If pursuant to Section 301 provision is made for either or both of (a) defeasance of the
Securities of a series under Section 1302 or (b) covenant defeasance of the Securities of a series
under Section 1303, then the provisions of such Sections, as the case may be, together with the
other provisions of this Article Thirteen, shall be applicable to the Securities of such series,
and the Company may at its option by Board Resolution, at any time, with respect to the Securities
of such series, elect to have either Section 1302 (if applicable) or Section 1303 (if applicable)
be applied to the Outstanding Securities of such series upon compliance with the applicable
conditions set forth below in this Article Thirteen.
Section 1302.
Defeasance and Discharge.
Upon the Companys exercise of the option provided in Section 1301 to defease the Outstanding
Securities of a particular series, the Company shall be discharged from its obligations with
respect to the Outstanding Securities of such series on the date the applicable conditions set
forth in Section 1304 are satisfied (hereinafter, defeasance). Defeasance shall mean that the
Company shall be deemed to have paid and discharged the entire indebtedness represented by the
Outstanding Securities of such series and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the same);
provided
,
however
, that the following rights, obligations, powers, trusts, duties and immunities shall
survive until otherwise terminated or discharged hereunder: (A) the rights of Holders of
Outstanding Securities of such series to receive, solely from the trust fund provided for in
Section 1304, payments in respect of the principal of and any premium and interest on such
Securities when such payment, are due, (B) the Companys obligations with respect to such
Securities under Sections 304, 305, 306, 1002 and 1003, (C) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and (D) this Article Thirteen. Subject to compliance with this
Article Thirteen, the Company may exercise its option with respect to defeasance under this
Section 1302 notwithstanding the prior exercise of its option with respect to covenant defeasance
under Section 1303 in regard to the Securities of such series.
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Section 1303.
Covenant Defeasance.
Upon the Companys exercise of the option provided in Section 1301 to obtain a covenant
defeasance with respect to the Outstanding Securities of a particular series, the Company shall be
released from its obligations under Sections 704, 1006 and 1007 and Article Eight and any
additional covenants specified in any indenture supplemental hereto with respect to the Outstanding
Securities of such series on and after the date the applicable conditions set forth in Section 1304
are satisfied (hereinafter, covenant defeasance). Covenant defeasance shall mean that, with
respect to the Outstanding Securities of such series, the Company may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in Sections 704, 1006
and 1007 and Article Eight and any additional covenants specified in any indenture supplemental
hereto, whether directly or indirectly by reason of any reference elsewhere herein to any such
Section or Article or by reason of any reference in any such Section or Article to any other
provision herein or in any other document, and such omission to comply shall not constitute an
Event of Default under Section 501(4) with respect to Outstanding Securities of such series, and
the remainder of this Indenture and of the Securities of such series shall be unaffected thereby.
Section 1304.
Conditions to Defeasance or Covenant Defeasance.
The following shall be conditions to defeasance under Section 1302 and covenant defeasance
under Section 1303 with respect to the Outstanding Securities of a particular series:
(1) the Company shall irrevocably have deposited or caused to be deposited with the
Trustee (or another trustee satisfying the requirements of Section 609 who shall agree to
comply with the provisions of this Article Thirteen applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of such Securities, (A) money in
an amount, or (B) Government Obligations which through the scheduled payment of principal
and interest in respect thereof in accordance with their terms will provide, not later than
the due date of any payment, money in an amount, or (C) a combination thereof, sufficient,
in the opinion of a nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay and discharge, and
which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge,
(i) the principal of and any premium and each installment of principal of and any premium
and interest on the Outstanding Securities of such series on the Stated Maturity of such
principal or installment of principal or interest and (ii) any mandatory sinking fund
payments or analogous payments applicable to the Outstanding Securities of such series on
the day on which such payments are due and payable in accordance with the terms of this
Indenture and of such Securities. For this purpose, Government Obligations means
securities that are (x) direct obligations of the United States of America the
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payment of which its full faith and credit is pledged or (y) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of the United States
of America the payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case, are not callable or
redeemable at the option of the issuer thereof, and shall also include a depository receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities Act of 1933, as amended)
as custodian with respect to any such Government Obligation or a specific payment of
principal of or interest on any such Government Obligation held by such custodian for the
account of the holder of such depository receipt;
provided
that (except as required by
law), such custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in respect of
such Government Obligation or the specific payment of principal of or interest on such
Government Obligation evidenced by such depository receipt.
(2) No Event of Default or event which, with notice or lapse of time or both, would
become an Event of Default with respect to the Securities of such series shall have
occurred and be continuing on the date of such deposit or, insofar as subsections 501(5)
and (6) are concerned, at any time during the period ending on the 91st day after the date
of such deposit (it being understood that this condition shall not be deemed satisfied
until the expiration of such period).
(3) Such defeasance or covenant defeasance shall not result in a breach or violation
of, or constitute a default under, this Indenture or any other material agreement or
instrument to which the Company is a party or by which it is bound.
(4) In the case of an election with respect to Section 1302, the Company shall have
delivered to the Trustee an Opinion of Counsel stating that (x) the Company has received
from the Internal Revenue Service a private letter ruling or there has been published by
the Internal Revenue Service a revenue ruling pertaining to a comparable form of
transaction, or (y) since the date of this Indenture there has been a change in the
applicable federal income tax law, in either case to the effect that, and based thereon
such opinion shall confirm that, the Holders of the Outstanding Securities of such series
will not recognize income, gain or loss for Federal income tax purposes as a result of such
defeasance and will be subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such defeasance had not
occurred.
(5) In the case of an election with respect to Section 1303, the Company shall have
delivered to the Trustee an Opinion of Counsel to the effect that the Holders of the
Outstanding Securities of such series will not recognize income, gain or loss for Federal
income tax purposes as a result of such covenant defeasance and will be subject to Federal
income tax on the same amounts, in the
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same manner and at the same times as would have been the case if such covenant
defeasance had not occurred.
(6) Such defeasance or covenant defeasance shall be effected in compliance with any
additional terms, conditions or limitations which may be imposed on the Company in
connection therewith pursuant to Section 301.
(7) The Company shall have delivered to the Trustee an Officers Certificate and an
Opinion of Counsel, each stating that all conditions precedent provided for relating to
either the defeasance under Section 1302 or the covenant defeasance under Section 1303 (as
the case may be) have been complied with.
Section 1305.
Deposited Money and Government Obligations to be Held in Trust; Other Miscellaneous
Provisions.
Subject to the provisions of the last paragraph of Section 1003, all money and Government
Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee collectively for purposes of this Section 1305, the Trustee) pursuant to Section 1304 in
respect of the Outstanding Securities of a particular series shall be held in trust and applied by
the Trustee, in accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of such Securities of all sums due and
to become due thereon in respect of principal (and premium, if any) and interest, but such money
need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the Government Obligations deposited pursuant to Section 1304 or the
principal and interest received in respect thereof, other than any such tax, fee or other charge
which by law is for the account of the Holders of the Outstanding Securities of such series.
Anything in this Article Thirteen to the contrary notwithstanding, the Trustee shall deliver
or pay to the Company from time to time upon Company Request any money or Government Obligations
held by it as provided in Section 1304 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be deposited for the
purpose for which such money or Government Obligations were deposited.
This instrument may be executed in any number of counterparts, each of which so executed shall
be deemed to be an original, but all such counterparts shall together constitute but one and the
same instrument.
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IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed and attested, as of
the day and year first above written.
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VULCAN MATERIALS COMPANY
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By:
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/s/
Daniel F. Sansone
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Daniel F. Sansone
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Senior Vice President and
Chief Financial Officer
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Attest:
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/s/
Jerry F. Perkins, Jr.
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Jerry F. Perkins, Jr.
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Secretary
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WILMINGTON TRUST COMPANY
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By:
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/s/ Michael G. Oller, Jr.
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Michael G. Oller, Jr.
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Senior Financial Services Officer
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Exhibit 4.2
VULCAN MATERIALS COMPANY
and
WILMINGTON TRUST COMPANY,
Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of December 11, 2007
to
SENIOR
DEBT INDENTURE
Dated as of December 11, 2007
Floating Rate Notes due 2010
5.60% Notes due 2012
6.40% Notes due 2017
7.15% Notes due 2037
TABLE OF CONTENTS
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Page
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ARTICLE ONE
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DEFINITIONS
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Section 101.
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Definition of Terms
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2
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ARTICLE TWO
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GENERAL TERMS AND CONDITIONS OF THE 2010 NOTES
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Section 201.
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Designation and Principal Amount
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3
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Section 202.
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Maturity
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3
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Section 203.
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Further Issues
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3
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Section 204.
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Form and Payment
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4
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Section 205.
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Global Securities
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4
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Section 206.
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Definitive Form
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4
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Section 207.
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Interest
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4
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Section 208.
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Authorized Denominations
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5
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Section 209.
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Redemption
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6
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Section 210.
|
|
Change of Control
|
|
|
6
|
|
Section 211.
|
|
Appointment of Agents
|
|
|
8
|
|
Section 212.
|
|
Company to Furnish Trustee Names
and Addresses of Holders
|
|
|
8
|
|
|
|
|
|
|
|
|
ARTICLE THREE
|
GENERAL TERMS AND CONDITIONS OF THE 2012 NOTES
|
|
|
|
|
|
|
|
Section 301.
|
|
Designation and Principal Amount
|
|
|
8
|
|
Section 302.
|
|
Maturity
|
|
|
8
|
|
Section 303.
|
|
Further Issues
|
|
|
8
|
|
Section 304.
|
|
Form and Payment
|
|
|
8
|
|
Section 305.
|
|
Global Securities
|
|
|
8
|
|
Section 306.
|
|
Definitive Form
|
|
|
9
|
|
Section 307.
|
|
Interest
|
|
|
9
|
|
Section 308.
|
|
Authorized Denominations
|
|
|
9
|
|
Section 309.
|
|
Redemption
|
|
|
9
|
|
Section 310.
|
|
Change of Control
|
|
|
9
|
|
Section 311.
|
|
Appointment of Agents
|
|
|
11
|
|
-i-
TABLE OF CONTENTS
(
continued
)
|
|
|
|
|
|
|
|
|
|
|
Page
|
ARTICLE FOUR
|
GENERAL TERMS AND CONDITIONS OF THE 2017 NOTES
|
|
|
|
|
|
|
|
Section 401.
|
|
Designation and Principal Amount
|
|
|
12
|
|
Section 402.
|
|
Maturity
|
|
|
12
|
|
Section 403.
|
|
Further Issues
|
|
|
12
|
|
Section 404.
|
|
Form and Payment
|
|
|
12
|
|
Section 405.
|
|
Global Securities
|
|
|
12
|
|
Section 406.
|
|
Definitive Form
|
|
|
12
|
|
Section 407.
|
|
Interest
|
|
|
13
|
|
Section 408.
|
|
Authorized Denominations
|
|
|
13
|
|
Section 409.
|
|
Redemption
|
|
|
13
|
|
Section 410.
|
|
Change of Control
|
|
|
13
|
|
Section 411.
|
|
Appointment of Agents
|
|
|
15
|
|
|
|
|
|
|
|
|
ARTICLE FIVE
|
GENERAL TERMS AND CONDITIONS OF THE 2037 NOTES
|
|
|
|
|
|
|
|
Section 501.
|
|
Designation and Principal Amount
|
|
|
15
|
|
Section 502.
|
|
Maturity
|
|
|
15
|
|
Section 503.
|
|
Further Issues
|
|
|
16
|
|
Section 504.
|
|
Form and Payment
|
|
|
16
|
|
Section 505.
|
|
Global Securities
|
|
|
16
|
|
Section 506.
|
|
Definitive Form
|
|
|
16
|
|
Section 507.
|
|
Interest
|
|
|
16
|
|
Section 508.
|
|
Authorized Denominations
|
|
|
17
|
|
Section 509.
|
|
Redemption
|
|
|
17
|
|
Section 510.
|
|
Change of Control
|
|
|
17
|
|
Section 511.
|
|
Appointment of Agents
|
|
|
19
|
|
|
|
|
|
|
|
|
ARTICLE SIX
|
FORMS OF NOTES
|
|
|
|
|
|
|
|
Section 601.
|
|
Form of 2010 Notes
|
|
|
19
|
|
Section 602.
|
|
Form of 2012 Notes
|
|
|
19
|
|
Section 603.
|
|
Form of 2017 Notes
|
|
|
19
|
|
Section 604.
|
|
Form of 2037 Notes
|
|
|
19
|
|
-ii-
TABLE OF CONTENTS
(
continued
)
|
|
|
|
|
|
|
|
|
|
|
Page
|
ARTICLE SEVEN
|
ORIGINAL ISSUE OF NOTES
|
|
|
|
|
|
|
|
Section 701.
|
|
Original Issue of 2010 Notes
|
|
|
20
|
|
Section 702.
|
|
Original Issue of 2012 Notes
|
|
|
20
|
|
Section 703.
|
|
Original Issue of 2017 Notes
|
|
|
20
|
|
Section 704.
|
|
Original Issue of 2037 Notes
|
|
|
20
|
|
|
|
|
|
|
|
|
ARTICLE EIGHT
|
MISCELLANEOUS
|
|
|
|
|
|
|
|
Section 801.
|
|
Ratification of Indenture
|
|
|
20
|
|
Section 802.
|
|
Trustee Not Responsible for Recitals
|
|
|
20
|
|
Section 803.
|
|
Governing Law
|
|
|
21
|
|
Section 804.
|
|
Separability
|
|
|
21
|
|
Section 805.
|
|
Counterparts
|
|
|
21
|
|
|
|
|
|
|
|
|
EXHIBIT
A
|
|
Form of 2010 Notes
|
|
|
A-1
|
|
EXHIBIT
B
|
|
Form of 2012 Notes
|
|
|
B-1
|
|
EXHIBIT
C
|
|
Form of 2017 Notes
|
|
|
C-1
|
|
EXHIBIT
D
|
|
Form of 2037 Notes
|
|
|
D-1
|
|
-iii-
FIRST SUPPLEMENTAL INDENTURE, dated as of December 11, 2007 (this Supplemental Indenture),
between Vulcan Materials Company, a corporation duly organized and existing under the laws of the
State of New Jersey, having its principal office at 1200 Urban Center Drive, Birmingham, Alabama
35242 (the Company), and Wilmington Trust Company, a corporation duly organized and existing
under the laws of the State of Delaware, as trustee (the Trustee).
WHEREAS,
the Company executed and delivered the senior debt indenture, dated as of December 11, 2007, to
the Trustee (as heretofore supplemented, the Indenture), to provide for the issuance of the
Companys notes or other evidences of indebtedness (the Securities), to be issued in one or more
series;
WHEREAS, pursuant to the terms of the Indenture, the Company desires to provide for the
establishment of four new series of its notes under the Indenture to be known as its Floating Rate
Notes due 2010 (the 2010 Notes), 5.60% Notes due 2012 (the 2012 Notes),6.40% Notes due
2017 (the 2017 Notes) and 7.15% Notes due 2037 (the 2037 Notes), the form and substance of
each such series and the terms, provisions and conditions thereof to be set forth as provided in
the Indenture and this Supplemental Indenture;
WHEREAS,
the Board of Directors of the Company and the Pricing Committee
thereof, pursuant to resolutions duly adopted on
November 12, 2007 and December 6, 2007, respectively, has duly authorized the issuance of the 2010 Notes, 2012 Notes, 2017 Notes and
the 2037 Notes, and has authorized the proper officers of the Company 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
Article Two and Section 901(7) of the Indenture;
WHEREAS, the Company 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
Company, in accordance with its terms, and to make each of the 2010 Notes, the 2012 Notes, the 2017
Notes and the 2037 Notes, each when executed by the Company and authenticated and delivered by the
Trustee or an authentication agent, the valid obligations of the Company, 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 each of the
2010 Notes, the 2012 Notes, the 2017 Notes and the 2037 Notes by the Holders thereof, and for the
purpose of setting forth, as provided in the Indenture, the forms and terms of each of the 2010
Notes, the 2012 Notes, the 2017 Notes and the 2037 Notes, the Company covenants and agrees, with
the Trustee, as follows:
ARTICLE ONE
DEFINITIONS
Section 101.
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.
Change of Control means the occurrence of any of the following: (1) the consummation of any
transaction (including, without limitation, any merger or consolidation) the result of which is
that any person (as that term is used in Section 13(d)(3) of the Exchange Act) (other than the
Company or one of its subsidiaries) becomes the beneficial owner (as defined in Rules 13d-3 and
13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the Voting Stock of the
Company or other Voting Stock into which the Voting Stock of the Company is reclassified,
consolidated, exchanged or changed, measured by voting power rather than number of shares; (2) the
direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or
consolidation), in one or more series of related transactions, of all or substantially all of the
assets of the Company and the assets of its subsidiaries, taken as a
whole, to one or more Persons (other than the Company or one of its
subsidiaries);
or (3) the first day on which a majority of the members of the Board of Directors of the Company is
composed of members who are not Continuing Directors. Notwithstanding the foregoing, a transaction
will not be deemed to involve a Change of Control if (1) the Company becomes a direct or indirect
wholly-owned subsidiary of a holding company and (2)(A) the direct or indirect holders of the
Voting Stock of such holding company immediately following that transaction are substantially the
same as the holders of the Voting Stock of the Company immediately prior to that transaction or (B)
immediately following that transaction no person (other than a holding company satisfying the
requirements of this sentence) is the beneficial owner, directly or indirectly, of more than 50% of
the Voting Stock of such holding company.
Continuing Directors means, as of any date of determination, any member of the Companys
Board of Directors who (1) was a member of such Board of Directors on the date of this Supplemental
Indenture or (2) was nominated for election, elected or appointed to such Board of Directors with
the approval of a majority of the Continuing Directors who were members of such Board of Directors
at the time of such nomination, election or appointment (either by a specific vote or by approval
of the Companys proxy statement in which such member was named as a nominee for election as a
director, without objection to such nomination).
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
-2-
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
Company.
A London business day is a day on which dealings in deposits in U.S. dollars are transacted
in the London interbank market.
Moodys means Moodys Investors Service, Inc.
Rating Agency means in respect of any series of Securities (a) each of Moodys and S&P; and
(b) if either of Moodys or S&P ceases to rate the Securities of such series or fails to make a
rating of the Securities of such series publicly available for reasons outside of the Companys
control, a nationally recognized statistical rating organization within the meaning of Section
3(a)(62) under the Exchange Act, selected by the Company and
certified by the Companys Board of
Directors as a replacement agency for the agency that ceased such rating or failed to make it
publicly available.
S&P means Standard & Poors Ratings Services, a division of McGraw-Hill, 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.
ARTICLE TWO
GENERAL TERMS AND CONDITIONS OF THE 2010 NOTES
Section 201.
Designation and Principal Amount
.
There is hereby authorized and established a series of Securities under the Indenture,
designated as the Floating Rate Notes due 2010, which is not limited in aggregate principal
amount. The aggregate principal amount of the 2010 Notes to be issued shall be as set forth in any
Company Order for the authentication and delivery of the 2010 Notes, pursuant to Section 303 of the
Indenture.
Section 202.
Maturity
.
The Stated Maturity of principal for the 2010 Notes will be December 15, 2010.
Section 203.
Further Issues
.
The Company may from time to time, without the consent of the Holders of the 2010 Notes, issue
additional notes of that series. Any such additional notes will have the same ranking, interest
rate, maturity date and other terms as the 2010 Notes. Any such additional notes, together with
the 2010 Notes herein provided for, will constitute a single series of Securities under the
Indenture.
-3-
Section 204.
Form and Payment
.
Principal of, premium, if any, and interest on the 2010 Notes shall be payable in U.S.
dollars.
Section 205.
Global Securities
.
Upon the original issuance, the 2010 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 Company will issue the 2010 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.
Section 206.
Definitive Form
.
If
(a) the Depositary is at any time unwilling or unable to
continue as depositary or ceases to be a registered clearing agency
and, in either case, a
successor depositary is not appointed by the Company within 90 days of notice thereof, (b) an Event
of Default has occurred with regard to the 2010 Notes and has not been cured or waived, or (c) the
Company at any time and in its sole discretion determines not to have the 2010 Notes represented by
Global Securities, the Company may issue the 2010 Notes in definitive form in exchange for such
Global Securities. In any such instance, an owner of a beneficial interest in 2010 Notes will be
entitled to physical delivery in definitive form of 2010 Notes, equal in principal amount to such
beneficial interest and to have 2010 Notes registered in its name as shall be established in a
Company Order.
Section 207.
Interest
.
(a) The 2010 Notes will bear interest (computed on the basis of the actual number of days in
an interest period and a 360-day year) from December 11, 2007 (or from the most recent Interest
Payment Date to which interest has been paid or duly provided for; provided, that, notwithstanding
Section 113 of the Indenture, if an Interest Payment Date (other than in the case of the Stated
Maturity of the 2010 Notes) falls on a day that is not a Business Day, the Interest Payment Date
shall be postponed to the next Succeeding Business Day unless such next succeeding Business Day would be in
the following month, in which case, the Interest Payment Date shall be the immediately preceding
Business Day) payable quarterly on March 15, June 15, September 15 and December 15,
commencing March 15, 2008, to the person in whose name the 2010 Notes were registered at the close
of business on the 15th day preceding the Interest Payment Date
(whether or not a Business Day).
(b) The 2010 Notes will bear interest for each interest period at a rate determined by the
calculation agent. The calculation agent will be the Paying Agent until such time as the Company
shall appoint a successor calculation agent. The interest rate
-4-
on the 2010 Notes for a particular interest period will be a per annum rate equal to
three-month USD LIBOR as determined on the interest determination date plus 1.25%. The interest
determination date for an interest period shall be the second London business day preceding that
interest period. Promptly upon determination, the calculation agent will inform the Trustee and
the Company 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 of the 2010 Notes, the Trustee and the Company.
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 as reported by Bloomberg Financial Commodities News 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 Company) 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 Banc of America Securities LLC, Goldman, Sachs & Co., J.P. Morgan
Securities Inc. and Wachovia Capital Markets, LLC) 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 written request from any Holder of 2010 Notes, the calculation agent will provide the
interest rate in effect for the 2010 Notes for the current interest period and, if it has been
determined, the interest rate to be in effect for the next interest period. Dollar amounts
resulting from such calculation shall be rounded to the nearest cent, with one-half cent being
rounded upward.
Section 208.
Authorized Denominations
.
The 2010 Notes shall be issuable in denominations of $2,000 and integral multiples of $1,000
in excess thereof.
-5-
Section 209.
Redemption
.
The 2010 Notes shall not be redeemable prior to their maturity.
Section 210.
Change of Control
.
(a) Upon the occurrence of a 2010 Change of Control Repurchase
Event (as defined below), the Company shall make
an irrevocable offer to each Holder of 2010 Notes to repurchase all or any part (equal to or in
excess of $2,000 and in integral multiples of $1,000) of such Holders 2010 Notes at a repurchase
price in cash equal to 101% of the aggregate principal amount of 2010 Notes repurchased plus
accrued and unpaid interest, if any, on the 2010 Notes repurchased to, but not including, the date
of repurchase.
(b) Within 30 days following any 2010 Change of Control Repurchase Event or, at the Companys
option, prior to any Change of Control, but in either case, after the public announcement of such
Change of Control, the Company shall mail, or shall cause to be mailed, to each Holder of 2010
Notes, with a copy to the Trustee, a notice:
(i) describing the transaction or transactions that constitute or may constitute the 2010
Change of Control Repurchase Event;
(ii) offering to repurchase all 2010 Notes tendered;
(iii) setting forth the payment date (the 2010 Change of Control Payment Date) for the
repurchase of the 2010 Notes, which date will be no earlier than 30 days and no later than 60 days
from the date such notice is mailed;
(iv) if mailed prior to the date of consummation of the Change of Control, stating that the
offer to repurchase is conditioned on a 2010 Change of Control Repurchase Event occurring on or
prior to the 2010 Change of Control Payment Date specified in such notice;
(v) disclosing that any 2010 Note not tendered for repurchase will continue to accrue
interest; and
(vi) specifying the procedures for tendering 2010 Notes.
(c) The Company 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 2010 Notes as a result of a 2010 Change of
Control Repurchase Event. To the extent that the provisions of any securities laws or regulations
conflict with the 2010 Change of Control Repurchase Event provisions of the 2010 Notes, the Company
will comply with the applicable securities laws and regulations and will not be deemed to have
breached its obligations under the 2010 Change of Control Repurchase Event provisions of the 2010
Notes by virtue of such conflict.
-6-
(d) On the repurchase date following a 2010 Change of Control Repurchase Event, the Company
shall, to the extent lawful:
(i) accept for payment all 2010 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 2010 Notes or portions thereof properly tendered; and
(iii) deliver or cause to be delivered to the Trustee the 2010 Notes properly accepted,
together with an Officers Certificate of the Company stating the aggregate principal amount of
2010 Notes or portions thereof being repurchased by the Company.
(e) The Paying Agent will promptly distribute to each Holder of 2010 Notes properly tendered
the purchase price for such 2010 Notes deposited with the Paying
Agent by the Company, the Company will execute
and the Authenticating Agent, upon the execution and delivery by the Company of such 2010 Notes,
will promptly authenticate and deliver (or cause to be transferred by book-entry) to each Holder
a new 2010 Note equal in principal amount to any unpurchased portion of any 2010 Notes surrendered;
provided
that each new 2010 Note will be in a principal amount of an integral multiple of $1,000.
(f) The Company shall not be required to make an offer to repurchase the 2010 Notes upon a
2010 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 Company and such
third party purchases all 2010 Notes properly tendered and not withdrawn under its offer. In
addition, the Company shall not repurchase any 2010 Notes if there has occurred and is continuing
on the 2010 Change of Control Payment Date an Event of Default in respect of any series of notes
under the Indenture, other than a default in the payment of all or any portion of the aggregate
purchase price in respect of all 2010 Notes or portions thereof properly tendered in connection
with a Change of Control Repurchase Event.
(g) Solely for purposes of this Section 210 in connection with the 2010 Notes, the following
terms shall have the following meanings:
2010 Below Investment Grade Ratings Event means that on any day commencing 60 days prior to
the first public announcement by the Company of any Change of Control (or pending Change of
Control) and ending 60 days following consummation of such Change of Control (which period will be
extended following consummation of a Change of Control for up to an additional 60 days for so long
as either of the Rating Agencies has publicly announced that it is considering a possible ratings
change), the 2010 Notes are downgraded to a rating that is below Investment Grade by each of the
Rating Agencies (regardless of whether the rating prior to such downgrade was Investment Grade or
below Investment Grade).
2010 Change of Control Repurchase Event means the occurrence of both a Change of Control and
a 2010 Below Investment Grade Ratings Event.
-7-
Section 211.
Appointment of Agents
.
Citibank,
N.A. will initially be the Security Registrar, Paying Agent and calculation agent for the 2010 Notes
and will act as such only at its offices (a) for Securities transfer purposes and for purposes of
presentment and surrender of Securities for the final distributions thereon, at Citibank, N.A., 111
Wall Street, 15th Floor, New York, New York 10005, Attention: 15th Floor Window and (b) for all
other purposes, at Citibank, N.A., 388 Greenwich Street, 14th Floor, New York, New York, 10013,
Attention: Agency & Trust, Vulcan Materials Company; or any other address that the Securities
Registrar and Paying Agent may designate with respect to itself from time to time by notice to the
Trustee, the Company and the Holders.
Section 212.
Company to Furnish Trustee Names and Addresses of Holders
.
Notwithstanding
Section 701(a) of the Indenture, the Company will furnish or will
cause to be
furnished to the Trustee quarterly, not later than each Interest Payment Date with respect to the
2010 Notes, a list, in such form as the Trustee may reasonably require, of the names and addresses
of the Holders of 2010 Notes as of the day 15 days preceding
(whether or not a Business Day) such
Interest Payment Date.
ARTICLE THREE
GENERAL TERMS AND CONDITIONS OF THE 2012 NOTES
Section 301.
Designation and Principal Amount
.
There is hereby authorized and established a series of Securities under the Indenture,
designated as the 5.60% Notes due 2012, which is not limited in aggregate principal amount. The
aggregate principal amount of the 2012 Notes to be issued shall be as set forth in any Company
Order for the authentication and delivery of the 2012 Notes, pursuant to Section 303 of the
Indenture.
Section 302.
Maturity
.
The Stated Maturity of principal for the 2012 Notes will be November 30, 2012.
Section 303.
Further Issues
.
The Company may from time to time, without the consent of the Holders of the 2012 Notes, issue
additional notes of that series. Any such additional notes will have the same ranking, interest
rate, maturity date and other terms as the 2012 Notes. Any such additional notes, together with
the 2012 Notes herein provided for, will constitute a single series of Securities under the
Indenture.
Section 304.
Form and Payment
.
Principal of, premium, if any, and interest on the 2012 Notes shall be payable in U.S.
dollars.
Section 305.
Global Securities
.
Upon the original issuance, the 2012 Notes will be represented by one or more Global
Securities registered in the name of Cede & Co., the nominee of DTC. The Company will issue the
2012 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.
-8-
Section 306.
Definitive Form
.
If
(a) the Depositary is at any time unwilling or unable to
continue as depositary or ceases to be a registered clearing agency
and, in either case, a
successor depositary is not appointed by the Company within 90 days of notice thereof, (b) an Event
of Default has occurred with regard to the 2012 Notes and has not been cured or waived, or (c) the
Company at any time and in its sole discretion determines not to have the 2012 Notes represented by
Global Securities, the Company may issue the 2012 Notes in definitive form in exchange for such
Global Securities. In any such instance, an owner of a beneficial interest in 2012 Notes will be
entitled to physical delivery in definitive form of 2012 Notes, equal in principal amount to such
beneficial interest and to have 2012 Notes registered in its name as shall be established in a
Company Order.
Section 307.
Interest
.
The 2012 Notes will bear interest (computed on the basis of a 360-day year consisting of
twelve 30-day months) from December 11, 2007 at the rate of 5.60% per annum, payable semiannually;
interest payable on each Interest Payment Date will include interest accrued from December 11,
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 30 and
November 30, commencing on May 30, 2008; and the record date for the interest payable on any
Interest Payment Date is the close of business on May 15 or November 15 (whether or not such day is
a Business Day), as the case may be, next preceding the relevant Interest Payment Date.
Section 308.
Authorized Denominations
.
The 2012 Notes shall be issuable in denominations of $2,000 and integral multiples of $1,000
in excess thereof.
Section 309.
Redemption
.
The 2012 Notes are subject to redemption at the option of the Company as set forth in the form
of 2012 Note attached hereto as Exhibit B.
Section 310.
Change of Control
.
(a) Upon the occurrence of a 2012 Change of Control Repurchase
Event (as defined below), unless the Company has
exercised its right to redeem all 2012 Notes in accordance with the redemption terms as set forth
in the 2012 Notes, the Company shall make an irrevocable offer to each Holder of 2012 Notes to
repurchase all or any part (equal to or in excess of $2,000 and in integral multiples of $1,000) of
such Holders 2012 Notes at a repurchase price in cash equal to 101% of the aggregate principal
amount of 2012 Notes repurchased plus accrued and unpaid interest, if any, on the 2012 Notes
repurchased to, but not including, the date of repurchase.
-9-
(b) Within 30 days following any 2012 Change of Control Repurchase Event or, at the Companys
option, prior to any Change of Control, but in either case, after the public announcement of such
Change of Control, the Company shall mail, or shall cause to be mailed, to each Holder of 2012 Notes, with a copy to the Trustee,
a notice:
(i) describing the transaction or transactions that constitute or may constitute the 2012
Change of Control Repurchase Event;
(ii) offering to repurchase all 2012 Notes tendered;
(iii) setting forth the payment date (the 2012 Change of Control Payment Date) for the
repurchase of the 2012 Notes, which date will be no earlier than 30 days and no later than 60 days
from the date such notice is mailed;
(iv) if mailed prior to the date of consummation of the Change of Control, stating that the
offer to repurchase is conditioned on a 2012 Change of Control Repurchase Event occurring on or
prior to the 2012 Change of Control Payment Date specified in such notice;
(v) disclosing that any 2012 Note not tendered for repurchase will continue to accrue
interest; and
(vi) specifying the procedures for tendering 2012 Notes.
(c) The Company 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 2012 Notes as a result of a 2012 Change of
Control Repurchase Event. To the extent that the provisions of any securities laws or regulations
conflict with the 2012 Change of Control Repurchase Event provisions of the 2012 Notes, the Company
will comply with the applicable securities laws and regulations and will not be deemed to have
breached its obligations under the 2012 Change of Control Repurchase Event provisions of the 2012
Notes by virtue of such conflict.
(d) On the repurchase date following a 2012 Change of Control Repurchase Event, the Company
shall, to the extent lawful:
(i) accept for payment all 2012 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 2012 Notes or portions thereof properly tendered; and
(iii) deliver or cause to be delivered to the Trustee the 2012 Notes properly accepted,
together with an Officers Certificate of the Company stating the aggregate principal amount of
2012 Notes or portions thereof being repurchased by the Company.
-10-
(e) The Paying Agent will promptly distribute to each Holder of 2012 Notes properly tendered
the purchase price for such 2012 Notes deposited with the Paying Agent, the Company will execute
and the Authenticating Agent, upon the execution and delivery by the Company of such 2012 Notes,
will promptly authenticate and deliver (or cause to be transferred by book-entry) to each Holder a new
2012 Note equal in principal amount to any unpurchased portion of any 2012 Notes surrendered;
provided that each new 2012 Note will be in a principal amount of an integral multiple of $1,000.
(f) The Company shall not be required to make an offer to repurchase the 2012 Notes upon a
2012 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 Company and such
third party purchases all 2012 Notes properly tendered and not withdrawn under its offer. In
addition, the Company shall not repurchase any 2012 Notes if there has occurred and is continuing
on the 2012 Change of Control Payment Date an Event of Default in respect of any series of notes
under the Indenture, other than a default in the payment of all or any portion of the aggregate
purchase price in respect of all 2012 Notes or portions thereof properly tendered in connection
with a Change of Control Repurchase Event.
(g) Solely for purposes of this Section 310 in connection with the 2012 Notes, the following
terms shall have the following meanings:
2012 Below Investment Grade Ratings Event means that on any day commencing 60 days prior to
the first public announcement by the Company of any Change of Control (or pending Change of
Control) and ending 60 days following consummation of such Change of Control (which period will be
extended following consummation of a Change of Control for up to an additional 60 days for so long
as either of the Rating Agencies has publicly announced that it is considering a possible ratings
change), the 2012 Notes are downgraded to a rating that is below Investment Grade by each of the
Rating Agencies (regardless of whether the rating prior to such downgrade was Investment Grade or
below Investment Grade).
2012 Change of Control Repurchase Event means the occurrence of both a Change of Control and
a 2012 Below Investment Grade Ratings Event.
Section 311.
Appointment of Agents
.
Citibank, N.A. will initially be the Security Registrar and Paying Agent for the 2012 Notes
and will act as such only at its offices (a) for Securities transfer purposes and for purposes of
presentment and surrender of Securities for the final distributions thereon, at Citibank, N.A., 111
Wall Street, 15th Floor, New York, New York 10005, Attention: 15th Floor Window and (b) for all
other purposes, at Citibank, N.A., 388 Greenwich Street, 14th Floor, New York, New York, 10013,
Attention: Agency & Trust, Vulcan Materials Company; or any other address that the Securities
Registrar and Paying Agent may designate with respect to itself from time to time by notice to the
Trustee, the Company and the Holders.
-11-
ARTICLE FOUR
GENERAL TERMS AND CONDITIONS OF THE 2017 NOTES
Section 401.
Designation and Principal Amount
.
There is hereby authorized and established a series of Securities under the Indenture,
designated as the 6.40% Notes due 2017, which is not limited in aggregate principal amount. The
aggregate principal amount of the 2017 Notes to be issued shall be as set forth in any Company
Order for the authentication and delivery of the 2017 Notes, pursuant to Section 303 of the
Indenture.
Section 402.
Maturity
.
The Stated Maturity of principal for the 2017 Notes will be November 30, 2017.
Section 403.
Further Issues
.
The Company may from time to time, without the consent of the Holders of the 2017 Notes, issue
additional notes of that series. Any such additional notes will have the same ranking, interest
rate, maturity date and other terms as the 2017 Notes. Any such additional notes, together with
the 2017 Notes herein provided for, will constitute a single series of Securities under the
Indenture.
Section 404.
Form and Payment
.
Principal of, premium, if any, and interest on the 2017 Notes shall be payable in U.S.
dollars.
Section 405.
Global Securities
.
Upon the original issuance, the 2017 Notes will be represented by one or more Global
Securities registered in the name of Cede & Co., the nominee of DTC. The Company will issue the
2017 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.
Section 406.
Definitive Form
.
If (a) the Depositary
is at any time unwilling or unable to continue as depositary or ceases to be a registered clearing agency and, in either case, a
successor depositary is not appointed by the Company within 90 days of notice thereof, (b) an Event
of Default has occurred with regard to the 2017 Notes and has not been cured or waived, or (c) the
Company at any time and in its sole discretion determines not to have the 2017 Notes represented by
Global Securities, the Company may issue the 2017 Notes in definitive form in exchange for such
Global Securities. In any such instance, an owner of a beneficial interest in 2017 Notes will be
entitled to physical delivery in definitive form of 2017 Notes, equal in principal amount to such
beneficial interest and to have 2017 Notes registered in its name as shall be established in a
Company Order.
-12-
Section 407.
Interest
.
The 2017 Notes will bear interest (computed on the basis of a 360-day year consisting of
twelve 30-day months) from December 11, 2007 at the rate of 6.40% per annum, payable semiannually;
interest payable on each Interest Payment Date will include interest accrued from December 11,
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 30 and
November 30, commencing on May 30, 2008; and the record date for the interest payable on any
Interest Payment Date is the close of business on May 15 or November 15 (whether or not such day is
a Business Day), as the case may be, next preceding the relevant Interest Payment Date.
Section 408.
Authorized Denominations
.
The 2017 Notes shall be issuable in denominations of $2,000 and integral multiples of $1,000
in excess thereof.
Section 409.
Redemption
.
The 2017 Notes are subject to redemption at the option of the Company as set forth in the form
of 2017 Note attached hereto as Exhibit C.
Section 410.
Change of Control
.
(a) Upon
the occurrence of a 2017 Change of Control Repurchase Event (as defined below), unless the Company has
exercised its right to redeem all 2017 Notes in accordance with the redemption terms as set forth
in the 2017 Notes, the Company shall make an irrevocable offer to each Holder of 2017 Notes to
repurchase all or any part (equal to or in excess of $2,000 and in integral multiples of $1,000) of
such Holders 2017 Notes at a repurchase price in cash equal to 101% of the aggregate principal
amount of 2017 Notes repurchased plus accrued and unpaid interest, if any, on the 2017 Notes
repurchased to, but not including, the date of repurchase.
(b) Within 30 days following any 2017 Change of Control Repurchase Event or, at the Companys
option, prior to any Change of Control, but in either case, after the public announcement of such
Change of Control, the Company shall mail, or shall cause to be mailed, to each Holder of 2017 Notes, with a copy to the Trustee,
a notice:
(i) describing the transaction or transactions that constitute or may constitute the 2017
Change of Control Repurchase Event;
(ii) offering to repurchase all 2017 Notes tendered;
(iii) setting forth the payment date (the 2017 Change of Control Payment Date) for the
repurchase of the 2017 Notes, which date will be no earlier than 30 days and no later than 60 days
from the date such notice is mailed;
-13-
(iv) if mailed prior to the date of consummation of the Change of Control, stating that the
offer to repurchase is conditioned on a 2017 Change of Control Repurchase Event occurring on or
prior to the 2017 Change of Control Payment Date specified in such notice;
(v) disclosing that any 2017 Note not tendered for repurchase will continue to accrue
interest; and
(vi) specifying the procedures for tendering 2017 Notes.
(c) The Company 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 2017 Notes as a result of a 2017 Change of
Control Repurchase Event. To the extent that the provisions of any securities laws or regulations
conflict with the 2017 Change of Control Repurchase Event provisions of the 2017 Notes, the Company
will comply with the applicable securities laws and regulations and will not be deemed to have
breached its obligations under the 2017 Change of Control Repurchase Event provisions of the 2017
Notes by virtue of such conflict.
(d) On the repurchase date following a 2017 Change of Control Repurchase Event, the Company
shall, to the extent lawful:
(i) accept for payment all 2017 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 2017 Notes or portions thereof properly tendered; and
(iii) deliver or cause to be delivered to the Trustee the 2017 Notes properly accepted,
together with an Officers Certificate of the Company stating the aggregate principal amount of
2017 Notes or portions thereof being repurchased by the Company.
(e) The Paying Agent will promptly distribute to each Holder of 2017 Notes properly tendered
the purchase price for such 2017 Notes deposited with the Paying
Agent by the Company, the Company will execute
and the Authenticating Agent, upon the execution and delivery by the Company of such 2017 Notes,
will promptly authenticate and deliver (or cause to be transferred by book-entry) to each Holder a new
2017 Note equal in principal amount to any unpurchased portion of any 2017 Notes surrendered;
provided
that each new 2017 Note will be in a principal amount of an integral multiple of $1,000.
(f) The Company shall not be required to make an offer to repurchase the 2017 Notes upon a
2017 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 Company and such
third party purchases all 2017 Notes properly tendered and not withdrawn under its offer. In
addition, the Company shall not repurchase any 2017 Notes if there has occurred and is continuing
on the 2017 Change of
-14-
Control Payment Date an Event of Default in respect of any series of notes under the
Indenture, other than a default in the payment of all or any portion of the aggregate purchase
price in respect of all 2017 Notes or portions thereof properly tendered in connection with a
Change of Control Repurchase Event.
(g) Solely for purposes of this Section 410 in connection with the 2017 Notes, the following
terms shall have the following meanings:
2017 Below Investment Grade Ratings Event means that on any day commencing 60 days prior to
the first public announcement by the Company of any Change of Control (or pending Change of
Control) and ending 60 days following consummation of such Change of Control (which period will be
extended following consummation of a Change of Control for up to an additional 60 days for so long
as either of the Rating Agencies has publicly announced that it is considering a possible ratings
change), the 2017 Notes are downgraded to a rating that is below Investment Grade by each of the
Rating Agencies (regardless of whether the rating prior to such downgrade was Investment Grade or
below Investment Grade).
2017 Change of Control Repurchase Event means the occurrence of both a Change of Control and
a 2017 Below Investment Grade Ratings Event.
Section 411.
Appointment of Agents
.
Citibank, N.A. will initially be the Security Registrar and Paying Agent for the 2017 Notes
and will act as such only at its offices (a) for Securities transfer purposes and for purposes of
presentment and surrender of Securities for the final distributions thereon, at Citibank, N.A., 111
Wall Street, 15th Floor, New York, New York 10005, Attention: 15th Floor Window and (b) for all
other purposes, at Citibank, N.A., 388 Greenwich Street, 14th Floor, New York, New York, 10013,
Attention: Agency & Trust, Vulcan Materials Company; or any other address that the Securities
Registrar and Paying Agent may designate with respect to itself from time to time by notice to the
Trustee, the Company and the Holders.
ARTICLE FIVE
GENERAL TERMS AND CONDITIONS OF THE 2037 NOTES
Section 501.
Designation and Principal Amount
.
There is hereby authorized and established a series of Securities under the Indenture,
designated as the 7.15% Notes due 2037, which is not limited in aggregate principal amount. The
aggregate principal amount of the 2037 Notes to be issued shall be as set forth in any Company
Order for the authentication and delivery of the 2037 Notes, pursuant to Section 303 of the
Indenture.
Section 502.
Maturity
.
The Stated Maturity of principal for the 2037 Notes will be November 30, 2037.
-15-
Section 503.
Further Issues
.
The Company may from time to time, without the consent of the Holders of the 2037 Notes, issue
additional notes of that series. Any such additional notes will have the same ranking, interest
rate, maturity date and other terms as the 2037 Notes. Any such additional notes, together with
the 2037 Notes herein provided for, will constitute a single series of Securities under the
Indenture.
Section 504.
Form and Payment
.
Principal of, premium, if any, and interest on the 2037 Notes shall be payable in U.S.
dollars.
Section 505.
Global Securities
.
Upon the original issuance, the 2037 Notes will be represented by one or more Global
Securities registered in the name of Cede & Co., the nominee of DTC. The Company will issue the
2037 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.
Section 506.
Definitive Form
.
If (a) the
Depositary is at any time unwilling or unable to continue as
depositary or ceases to be a registered clearing agency and, in
either case, a
successor depositary is not appointed by the Company within 90 days of notice thereof, (b) an Event
of Default has occurred with regard to the 2037 Notes and has not been cured or waived, or (c) the
Company at any time and in its sole discretion determines not to have the 2037 Notes represented by
Global Securities, the Company may issue the 2037 Notes in definitive form in exchange for such
Global Securities. In any such instance, an owner of a beneficial interest in 2037 Notes will be
entitled to physical delivery in definitive form of 2037 Notes, equal in principal amount to such
beneficial interest and to have 2037 Notes registered in its name as shall be established in a
Company Order.
Section 507.
Interest
.
The 2037 Notes will bear interest (computed on the basis of a 360-day year consisting of
twelve 30-day months) from December 11, 2007 at the rate of 7.15% per annum, payable semiannually;
interest payable on each Interest Payment Date will include interest accrued from December 11,
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 30 and
November 30, commencing on May 30, 2008; and the record date for the interest payable on any
Interest Payment Date is the close of business on May 15 or November 15 (whether or not such day is
a Business Day), as the case may be, next preceding the relevant Interest Payment Date.
-16-
Section 508.
Authorized Denominations
.
The 2037 Notes shall be issuable in denominations of $2,000 and integral multiples of $1,000
in excess thereof.
Section 509.
Redemption
.
The 2037 Notes are subject to redemption at the option of the Company as set forth in the form
of 2037 Note attached hereto as Exhibit D.
Section 510.
Change of Control
.
(a) Upon the occurrence of a
2037 Change of Control Repurchase Event (as defined below), unless the Company has
exercised its right to redeem all 2037 Notes in accordance with the redemption terms as set forth
in the 2037 Notes, the Company shall make an irrevocable offer to each Holder of 2037 Notes to
repurchase all or any part (equal to or in excess of $2,000 and in integral multiples of $1,000) of
such Holders 2037 Notes at a repurchase price in cash equal to 101% of the aggregate principal
amount of 2037 Notes repurchased plus accrued and unpaid interest, if any, on the 2037 Notes
repurchased to, but not including, the date of repurchase.
(b) Within
30 days following any 2037 Change of Control Repurchase Event or, at the Companys
option, prior to any Change of Control, but in either case, after the public announcement of such
Change of Control, the Company shall mail, or shall cause to be mailed, to each Holder of 2037 Notes, with a copy to the Trustee,
a notice:
(i) describing the transaction or transactions that constitute or may constitute the 2037
Change of Control Repurchase Event;
(ii) offering to repurchase all 2037 Notes tendered;
(iii) setting forth the payment date (the 2037 Change of Control Payment Date) for the
repurchase of the 2037 Notes, which date will be no earlier than 30 days and no later than 60 days
from the date such notice is mailed;
(iv) if mailed prior to the date of consummation of the Change of Control, stating that the
offer to repurchase is conditioned on a 2037 Change of Control Repurchase Event occurring on or
prior to the 2037 Change of Control Payment Date specified in such notice;
(v) disclosing that any 2037 Note not tendered for repurchase will continue to accrue
interest; and
(vi) specifying the procedures for tendering 2037 Notes.
(c) The Company 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 2037
-17-
Notes as a result of a 2037 Change of Control Repurchase Event. To the extent that the
provisions of any securities laws or regulations conflict with the 2037 Change of Control
Repurchase Event provisions of the 2037 Notes, the Company will comply with the applicable
securities laws and regulations and will not be deemed to have breached its obligations under the
2037 Change of Control Repurchase Event provisions of the 2037 Notes by virtue of such conflict.
(d) On the repurchase date following a 2037 Change of Control Repurchase Event, the Company
shall, to the extent lawful:
(i) accept for payment all 2037 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 2037 Notes or portions thereof properly tendered; and
(iii) deliver or cause to be delivered to the Trustee the 2037 Notes properly accepted,
together with an Officers Certificate of the Company stating the aggregate principal amount of
2037 Notes or portions thereof being repurchased by the Company.
(e) The Paying
Agent will promptly distribute to each Holder of 2037 Notes properly tendered
the purchase price for such 2037 Notes deposited with the Paying
Agent by the Company, the Company will execute
and the Authenticating Agent, upon the execution and delivery by the Company of such 2037 Notes,
will promptly authenticate and deliver (or cause to be transferred by book-entry) to each Holder a new
2037 Note equal in principal amount to any unpurchased portion of any 2037 Notes surrendered;
provided
that each new 2037 Note will be in a principal amount of an integral multiple of $1,000.
(f) The Company shall not be required to make an offer to repurchase the 2037 Notes upon a
2037 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 Company and such
third party purchases all 2037 Notes properly tendered and not withdrawn under its offer. In
addition, the Company shall not repurchase any 2037 Notes if there has occurred and is continuing
on the 2037 Change of Control Payment Date an Event of Default in respect of any series of notes
under the Indenture, other than a default in the payment of all or any portion of the aggregate
purchase price in respect of all 2037 Notes or portions thereof properly tendered in connection
with a Change of Control Repurchase Event.
(g) Solely for purposes of this Section 510 in connection with the 2037 Notes, the following
terms shall have the following meanings:
2037 Below Investment Grade Ratings Event means that on any day commencing 60 days prior to
the first public announcement by the Company of any Change of Control (or pending Change of
Control) and ending 60 days following consummation of such Change of Control (which period will be
extended following consummation of a Change of Control for up to an additional 60 days for so long
as
-18-
either of the Rating Agencies has publicly announced that it is considering a possible ratings
change), the 2037 Notes are downgraded to a rating that is below Investment Grade by each of the
Rating Agencies (regardless of whether the rating prior to such downgrade was Investment Grade or
below Investment Grade).
2037 Change of Control Repurchase Event means the occurrence of both a Change of Control and
a 2037 Below Investment Grade Ratings Event.
Section 511.
Appointment of Agents
.
Citibank, N.A. will initially be the Security Registrar and Paying Agent for the 2037 Notes
and will act as such only at its offices (a) for Securities transfer purposes and for purposes of
presentment and surrender of Securities for the final distributions thereon, at Citibank, N.A., 111
Wall Street, 15th Floor, New York, New York 10005, Attention: 15th Floor Window and (b) for all
other purposes, at Citibank, N.A., 388 Greenwich Street, 14th Floor, New York, New York, 10013,
Attention: Agency & Trust, Vulcan Materials Company; or any other address that the Securities
Registrar and Paying Agent may designate with respect to itself from time to time by notice to the
Trustee, the Company and the Holders.
ARTICLE SIX
FORMS OF NOTES
Section 601.
Form of 2010 Notes
.
The 2010 Notes and the Trustees Certificate of Authentication to be endorsed thereon are to
be substantially in the form set forth in Exhibit A hereto.
Section 602.
Form of 2012 Notes
.
The 2012 Notes and the Trustees Certificate of Authentication to be endorsed thereon are to
be substantially in the form set forth in Exhibit B hereto.
Section 603.
Form of 2017 Notes
.
The 2017 Notes and the Trustees Certificate of Authentication to be endorsed thereon are to
be substantially in the form set forth in Exhibit C hereto.
Section 604.
Form of 2037 Notes
.
The 2037 Notes and the Trustees Certificate of Authentication to be endorsed thereon are to
be substantially in the form set forth in Exhibit D hereto.
-19-
ARTICLE SEVEN
ORIGINAL ISSUE OF NOTES
Section 701.
Original Issue of 2010 Notes
.
The 2010 Notes may, upon execution of this Supplemental Indenture, be executed by the Company
and delivered to the Trustee for authentication, and the Trustee shall, upon Company Order,
authenticate and deliver such 2010 Notes as in such Company Order provided.
Section 702.
Original Issue of 2012 Notes
.
The 2012 Notes may, upon execution of this Supplemental Indenture, be executed by the Company
and delivered to the Trustee for authentication, and the Trustee shall, upon Company Order,
authenticate and deliver such 2012 Notes as in such Company Order provided.
Section 703.
Original Issue of 2017 Notes
.
The 2017 Notes may, upon execution of this Supplemental Indenture, be executed by the Company
and delivered to the Trustee for authentication, and the Trustee shall, upon Company Order,
authenticate and deliver such 2017 Notes as in such Company Order provided.
Section 704.
Original Issue of 2037 Notes
.
The 2037 Notes may, upon execution of this Supplemental Indenture, be executed by the Company
and delivered to the Trustee for authentication, and the Trustee shall, upon Company Order,
authenticate and deliver such 2037 Notes as in such Company Order provided.
ARTICLE EIGHT
MISCELLANEOUS
Section 801.
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 2010 Notes, the 2012 Notes, the 2017 Notes and the 2037
Notes.
Section 802.
Trustee Not Responsible for Recitals
.
The recitals herein contained are made by the Company 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.
-20-
Section 803.
Governing Law
.
This Supplemental Indenture, each 2010 Note, each 2012 Note, each 2017 Note and each 2037 Note
shall be governed by and construed in accordance with the laws of the State of New York.
Section 804.
Separability
.
In case any one or more of the provisions contained in this Supplemental Indenture, the 2010
Notes, the 2012 Notes, the 2017 Notes or the 2037 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 notes, but this Supplemental
Indenture and the notes shall be construed as if such invalid or illegal or unenforceable provision
had never been contained herein or therein.
Section 805.
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.
-21-
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed, all as of the day and year first above written.
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VULCAN MATERIALS COMPANY
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By:
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/s/
Daniel F. Sansone
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Name:
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Daniel F. Sansone
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Title:
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Chief Financial Officer
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WILMINGTON TRUST COMPANY,
as Trustee
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By:
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/s/
Michael G. Oller, Jr.
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Name:
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Michael G. Oller, Jr.
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Title:
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Senior Financial Services Officer
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Acknowledged:
CITIBANK, N.A.,
as initial Authenticating Agent, Paying Agent and Security Registrar
and Calculation Agent
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By:
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/s/
John J. Byrnes
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Name:
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John J. Byrnes
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Title:
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Vice President
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EXHIBIT A
FORM OF 2010 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 OF A DEPOSITARY. THIS SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND NO TRANSFER OF THIS
SECURITY (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) MAY BE REGISTERED EXCEPT IN SUCH
LIMITED CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (DTC), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.]
VULCAN MATERIALS COMPANY
FLOATING RATE NOTE DUE 2010
Vulcan Materials Company, a corporation duly organized and existing under the laws of New
Jersey (herein called the Company, which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE & CO., or registered
assigns, the principal sum of ______ Dollars on [___], 2010, and to pay interest thereon
from [___] or from the most recent Interest Payment Date to which interest has been paid or duly
provided for, quarterly on [___], [___], [___] and [___] in each year, commencing [___], 2008 at the
rate set forth in the [___], until the principal hereof is paid or made available for payment, and
(to the extent that the payment of such interest shall be legally enforceable) at the rate set
forth in the [___] on any overdue principal and premium and on any overdue installment of
interest. The interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose name
A-1
this Security (or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the [___] day preceding the Interest Payment Date (whether or not a Business Day). 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, notice whereof shall be given to
Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this Security will be made
at the office or agency of the Company maintained for that purpose in New York, 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.
Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
Unless
the certificate of authentication hereon has been executed by the
Trustee or an authentication agent on its behalf referred to
on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
A-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated:
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VULCAN MATERIALS COMPANY
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By:
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A-3
TRUSTEES CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the
series designated therein referred to
in the within-mentioned Indenture.
WILMINGTON TRUST COMPANY,
as Trustee
or
WILMINGTON TRUST COMPANY,
as Trustee
By: CITIBANK, N.A., as Authenticating Agent
A-4
(FORM OF REVERSE OF 2010 NOTE)
This Security is one of a duly authorized issue of securities of the Company (herein called
the Securities), issued and to be issued in one or more
series under a Senior Debt Indenture, dated as of
December 11, 2007 (herein called the Indenture), as supplemented by the First Supplemental
Indenture, dated as of December 11, 2007, between the Company and Wilmington Trust Company, as Trustee (herein called the
Trustee, which term includes any successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on the face hereof.
The Securities are not subject to redemption.
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 may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time of (i) the entire indebtedness of
the Company on this Security and (ii) certain restrictive and other covenants and the related Events of
Default, upon compliance by the Company with certain conditions set forth therein, which provisions
apply to this Security. In addition, upon the Companys exercise of the option provided in Section
1301 to obtain a covenant defeasance with respect to this Security, the Company shall be released
from its obligations under Section 210 of the First Supplemental Indenture (in addition to the
Sections provided in Section 1303 of the Indenture) with respect to this Security on and after the
date the applicable conditions set forth in Section 1304 are satisfied.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains provisions permitting
the Holders of specified percentages in principal amount of the Securities of each series at the
time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults under the Indenture
and their consequences. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
Except as set forth in Article Thirteen of the Indenture, no reference herein to the Indenture
and no provision of this Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
A-5
As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable in the Security Register, upon surrender of this Security
for registration of transfer at the office or agency of the Company in any place where the
principal of and any premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in
denominations of
[$
] and multiples of [$
] thereof. As provided in the Indenture and subject
to certain limitations therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
A-6
EXHIBIT B
FORM OF 2012 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 OF A DEPOSITARY. THIS SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND NO TRANSFER OF THIS
SECURITY (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) MAY BE REGISTERED EXCEPT IN SUCH
LIMITED CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (DTC), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.]
VULCAN MATERIALS COMPANY
5.60% NOTE DUE 2012
Vulcan Materials Company, a corporation duly organized and existing under the laws of New
Jersey (herein called the Company, which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE & CO., or registered
assigns, the principal sum of
Dollars on [___], 2012, and to pay interest thereon
from [___] or from the most recent Interest Payment Date to which interest has been paid or duly
provided for, semiannually on [___] and [___] in each year, commencing [___], 2008 at the rate of
[___]% per annum, until the principal hereof is paid or made available for payment, and (to the
extent that the payment of such interest shall be legally enforceable) at the rate of [___]% per
annum on any overdue principal and premium and on any overdue installment of interest. The
interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will,
as provided in such Indenture, be paid to the Person in whose name this
B-1
Security (or one or more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the [___] or [___] (whether or not a Business
Day), as the case may be, next preceding such 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, notice whereof shall be given to
Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this Security will be made
at the office or agency of the Company maintained for that purpose in New York, 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.
Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
Unless the
certificate of authentication hereon has been executed by the Trustee
or an authentication agent on its behalf referred to
on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
B-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated:
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VULCAN MATERIALS COMPANY
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By:
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B-3
TRUSTEES CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the
series designated therein referred to
in the within-mentioned Indenture.
WILMINGTON TRUST COMPANY,
as Trustee
or
WILMINGTON TRUST COMPANY,
as Trustee
By: CITIBANK, N.A., as Authenticating Agent
B-4
(FORM OF REVERSE OF 2012 NOTE)
This Security is one of a duly authorized issue of securities of the Company (herein called
the Securities), issued and to be issued in one or more series under an Indenture, dated as of
December 11, 2007 (herein called the Indenture), as supplemented by the First Supplemental
Indenture, dated as of December 11, 2007, between the Company and Wilmington Trust Company, as Trustee (herein called the
Trustee, which term includes any successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on the face hereof.
The Securities are subject to redemption upon not less than 30 days nor more than 60 days
notice by mail, at any time, as a whole or in part, at the election of the Company, at a redemption
price equal to the greater of (i) one hundred percent (100%) of the principal amount of the
Securities and (ii) the sum of the present values of the remaining scheduled payments of principal
and interest (exclusive of interest accrued to the Redemption Date) on the Securities discounted to
the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Rate (as defined below), plus [___] basis points, and plus accrued and
unpaid interest, if any, on the Securities being redeemed to the Redemption Date, but interest
installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the
Holders of such Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.
The Independent Investment Banker (as defined below) will calculate the Redemption Price.
Treasury Rate means, with respect to the Securities on any Redemption Date, the rate per
annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue,
assuming 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.
Comparable Treasury Issue means the United States Treasury security selected by the
Independent Investment Banker as having a maturity comparable to the remaining term of the
Securities to be redeemed that would be used, 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 term of those Securities.
Comparable Treasury Price means, with respect to the Securities on any Redemption Date, (i)
the average of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) on the third Business Day
preceding such Redemption Date, as set forth in the daily statistical release (or any successor
release) published by the Federal Reserve Bank of New York and designated Composite 3:30 p.m.
Quotations for U.S. Government Securities or (ii) if such release (or any successor release)
B-5
is not published or does not contain such prices on such Business Day, (a) the average of the
Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and
lowest such Reference Treasury Dealer Quotations, or (b) if the Trustee obtains fewer than four
such Reference Treasury Dealer Quotations, the average of all such quotations.
Independent Investment Banker means one of the Reference Treasury Dealers appointed by the
Trustee as directed by the Company.
Reference Treasury Dealer Quotations means, with respect to each Reference Treasury Dealer
and the Securities on 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 amount) quoted in writing to the Trustee by such Reference
Treasury Dealer at 5:00 p.m. on the third Business Day preceding such Redemption Date.
Reference Treasury Dealer means each of Banc of America Securities LLC, Goldman, Sachs &
Co., J.P. Morgan Securities Inc. and Wachovia Capital Markets, LLC, and their respective
successors;
provided
,
however
, that if any of the foregoing shall cease to be a primary U.S.
Government securities dealer in New York City (a Primary Treasury Dealer), the Company shall
replace that former dealer with another Primary Treasury Dealer.
In the event of redemption of this Security in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof.
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 may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time of (i) the entire indebtedness of
the Company on this Security and (ii) certain restrictive and other covenants and the related Events of
Default, upon compliance by the Company with certain conditions set forth therein, which provisions
apply to this Security. In addition, upon the Companys exercise of the option provided in Section
1301 to obtain a covenant defeasance with respect to this Security, the Company shall be released
from its obligations under Section 310 of the First Supplemental Indenture (in addition to the
Sections provided in Section 1303 of the Indenture) with respect to this Security on and after the
date the applicable conditions set forth in Section 1304 are
satisfied.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains provisions permitting
the Holders of specified percentages in principal amount of the Securities of each series at the
time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past
B-6
defaults under the Indenture and their consequences. Any such consent or waiver by the Holder
of this Security shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this
Security.
Except as set forth in Article Thirteen of the Indenture, no reference herein to the Indenture
and no provision of this Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable in the Security Register, upon surrender of this Security
for registration of transfer at the office or agency of the Company in any place where the
principal of and any premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in
denominations of [$___] and multiples of [$___] thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
B-7
EXHIBIT C
FORM OF 2017 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 OF A DEPOSITARY. THIS SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND NO TRANSFER OF THIS
SECURITY (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) MAY BE REGISTERED EXCEPT IN SUCH
LIMITED CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (DTC), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.]
VULCAN MATERIALS COMPANY
% NOTE DUE 2017
Vulcan Materials Company, a corporation duly organized and existing under the laws of New
Jersey (herein called the Company, which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE & CO., or registered
assigns, the principal sum of _____ Dollars on [___], 2017, and to pay interest thereon
from [___] or from the most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on [___] and [___] in each year, commencing [___], 2008 at the rate of
[___]% per annum, until the principal hereof is paid or made available for payment, and (to the
extent that the payment of such interest shall be legally enforceable) at the rate of [___]% per
annum on any overdue principal and premium and on any overdue installment of interest. The
interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will,
as provided in such Indenture, be paid to the Person in whose name this
C-1
Security (or one or more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the [___] or [___] (whether or not a Business
Day), as the case may be, next preceding such 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, notice whereof shall be given to
Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this Security will be made
at the office or agency of the Company maintained for that purpose in
New York, 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.
Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
Unless
the certificate of authentication hereon has been executed by the
Trustee or an authentication agent on its behalf referred to
on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
C-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated:
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VULCAN MATERIALS COMPANY
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By:
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C-3
TRUSTEES CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the
series designated therein referred to
in the within-mentioned Indenture.
WILMINGTON TRUST COMPANY,
as Trustee
or
WILMINGTON TRUST COMPANY,
as Trustee
By:
CITIBANK, N.A., as Authenticating Agent
C-4
(FORM OF REVERSE OF 2017 NOTE)
This Security is one of a duly authorized issue of securities of the Company (herein called
the Securities), issued and to be issued in one or more
series under an Indenture, dated as of December 11, 2007 (herein called the Indenture), as supplemented by the First Supplemental Indenture,
dated as of December 11, 2007, between the Company and Wilmington Trust Company, as Trustee (herein called the Trustee, which
term includes any successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the face hereof.
The Securities are subject to redemption upon not less than 30 days nor more than 60 days
notice by mail, at any time, as a whole or in part, at the election of the Company, at a redemption
price equal to the greater of (i) one hundred percent (100%) of the principal amount of the
Securities and (ii) the sum of the present values of the remaining scheduled payments of principal
and interest (exclusive of interest accrued to the Redemption Date) on the Securities discounted to
the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Rate (as defined below), plus [___] basis points, and plus accrued and
unpaid interest, if any, on the Securities being redeemed to the Redemption Date, but interest
installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the
Holders of such Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.
The Independent Investment Banker (as defined below) will calculate the Redemption Price.
Treasury Rate means, with respect to the Securities on any Redemption Date, the rate per
annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue,
assuming 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.
Comparable Treasury Issue means the United States Treasury security selected by the
Independent Investment Banker as having a maturity comparable to the remaining term of the
Securities to be redeemed that would be used, 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 term of those Securities.
Comparable Treasury Price means, with respect to the Securities on any Redemption Date, (i)
the average of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) on the third Business Day
preceding such Redemption Date, as set forth in the daily statistical release (or any successor
release) published by the Federal Reserve Bank of New York and designated Composite 3:30 p.m.
Quotations for U.S. Government Securities or (ii) if such release (or any successor release)
C-5
is not published or does not contain such prices on such Business Day, (a) the average of the
Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and
lowest such Reference Treasury Dealer Quotations, or (b) if the Trustee obtains fewer than four
such Reference Treasury Dealer Quotations, the average of all such quotations.
Independent Investment Banker means one of the Reference Treasury Dealers appointed by the
Trustee as directed by the Company.
Reference Treasury Dealer Quotations means, with respect to each Reference Treasury Dealer
and the Securities on 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 amount) quoted in writing to the Trustee by such Reference
Treasury Dealer at 5:00 p.m. on the third Business Day preceding such Redemption Date.
Reference Treasury Dealer means each of Banc of America Securities LLC, Goldman, Sachs &
Co., J.P. Morgan Securities Inc. and Wachovia Capital Markets, LLC, and their respective
successors;
provided
,
however
, that if any of the foregoing shall cease to be a primary U.S.
Government securities dealer in New York City (a Primary Treasury Dealer), the Company shall
replace that former dealer with another Primary Treasury Dealer.
In the event of redemption of this Security in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof.
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 may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time of (i) the entire indebtedness of
the Company on this Security and (ii) certain restrictive and
any other covenants and the related Events of
Default, upon compliance by the Company with certain conditions set forth therein, which provisions
apply to this Security. In addition, upon the Companys exercise of the option provided in Section
1301 to obtain a covenant defeasance with respect to this Security, the Company shall be released
from its obligations under Section 410 of the First Supplemental Indenture (in addition to the
Sections provided in Section 1303 of the Indenture) with respect to this Security on and after the
date the applicable conditions set forth in Section 1304 are
satisfied.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains provisions permitting
the Holders of specified percentages in principal amount of the Securities of each series at the
time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past
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defaults under the Indenture and their consequences. Any such consent or waiver by the Holder
of this Security shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this
Security.
Except as set forth in Article Thirteen of the Indenture, no reference herein to the Indenture
and no provision of this Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable in the Security Register, upon surrender of this Security
for registration of transfer at the office or agency of the Company in any place where the
principal of and any premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in
denominations of [$___] and multiples of [$___] thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
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EXHIBIT D
FORM OF 2037 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 OF A DEPOSITARY. THIS SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND NO TRANSFER OF THIS
SECURITY (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) MAY BE REGISTERED EXCEPT IN SUCH
LIMITED CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (DTC), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.]
VULCAN MATERIALS COMPANY
[__]% NOTE DUE 2037
Vulcan Materials Company, a corporation duly organized and existing under the laws of New
Jersey (herein called the Company, which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE & CO., or registered
assigns, the principal sum of
Dollars on [___], 2037, and to pay interest thereon
from [___] or from the most recent Interest Payment Date to which interest has been paid or duly
provided for, semiannually on [___] and [___] in each year, commencing [___], 2008 at the rate of
[___]% per annum, until the principal hereof is paid or made available for
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payment, and (to the extent that the payment of such interest shall be legally enforceable) at
the rate of [___]% per annum on any overdue principal and premium and on any overdue installment of
interest. The interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the [___] or [___] (whether or not a Business Day), as
the case may be, next preceding such 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, notice whereof shall be given to Holders of
Securities of this series not less than 10 days prior to such Special Record Date, or be paid at
any time in any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this Security will be made
at the office or agency of the Company maintained for that purpose in New York, 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.
Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
Unless
the certificate of authentication hereon has been executed by the
Trustee or an authentication agent on its behalf referred to
on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
D-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated:
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VULCAN MATERIALS COMPANY
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By:
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D-3
TRUSTEES CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the
series designated therein referred to
in the within-mentioned Indenture.
WILMINGTON TRUST COMPANY,
as Trustee
or
WILMINGTON TRUST COMPANY,
as Trustee
By: CITIBANK, N.A., as Authenticating Agent
D-4
(FORM OF REVERSE OF 2037 NOTE)
This Security is one of a duly authorized issue of securities of the Company (herein called
the Securities), issued and to be issued in one or more
series under a Senior Debt Indenture, dated as of
December 11, 2007 (herein called the Indenture), as supplemented by the First Supplemental Indenture,
dated as of December 11, 2007, between the Company and Wilmington Trust Company, as Trustee (herein called the Trustee, which
term includes any successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the face hereof.
The Securities are subject to redemption upon not less than 30 days nor more than 60 days
notice by mail, at any time, as a whole or in part, at the election of the Company, at a redemption
price equal to the greater of (i) one hundred percent (100%) of the principal amount of the
Securities and (ii) the sum of the present values of the remaining scheduled payments of principal
and interest (exclusive of interest accrued to the Redemption Date) on the Securities discounted to
the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Rate (as defined below), plus [___] basis points, and plus accrued and
unpaid interest, if any, on the Securities being redeemed to the Redemption Date, but interest
installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the
Holders of such Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.
The Independent Investment Banker (as defined below) will calculate the Redemption Price.
Treasury Rate means, with respect to the Securities on any Redemption Date, the rate per
annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue,
assuming 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.
Comparable Treasury Issue means the United States Treasury security selected by the
Independent Investment Banker as having a maturity comparable to the remaining term of the
Securities to be redeemed that would be used, 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 term of those Securities.
Comparable Treasury Price means, with respect to the Securities on any Redemption Date, (i)
the average of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) on the third Business Day
preceding such Redemption Date, as set forth in the daily statistical release (or any successor
release) published by the Federal Reserve Bank of New York and designated Composite 3:30 p.m.
Quotations for U.S. Government Securities or (ii) if such release (or any successor release)
D-5
is not published or does not contain such prices on such Business Day, (a) the average of the
Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and
lowest such Reference Treasury Dealer Quotations, or (b) if the Trustee obtains fewer than four
such Reference Treasury Dealer Quotations, the average of all such quotations.
Independent Investment Banker means one of the Reference Treasury Dealers appointed by the
Trustee as directed by the Company.
Reference
Treasury Dealer Quotations means, with respect to each Reference Treasury Dealer
and the Securities on 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 amount) quoted in writing to the Trustee by such Reference
Treasury Dealer at 5:00 p.m. on the third Business Day preceding such Redemption Date.
Reference Treasury Dealer means each of Banc of America Securities LLC, Goldman, Sachs &
Co., J.P. Morgan Securities Inc. and Wachovia Capital Markets, LLC, and their respective
successors;
provided
,
however
, that if any of the foregoing shall cease to be a primary U.S.
Government securities dealer in New York City (a Primary Treasury Dealer), the Company shall
replace that former dealer with another Primary Treasury Dealer.
In the event of redemption of this Security in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof.
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 may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time of (i) the entire indebtedness of
the Company on this Security and (ii) certain restrictive and
other covenants and the related Events of
Default, upon compliance by the Company with certain conditions set forth therein, which provisions
apply to this Security. In addition, upon the Companys exercise of the option provided in Section
1301 to obtain a covenant defeasance with respect to this Security, the Company shall be released
from its obligations under Section 510 of the First Supplemental Indenture (in addition to the
Sections provided in Section 1303 of the Indenture) with respect to this Security on and after the
date the applicable conditions set forth in Section 1304 are
satisfied.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains provisions permitting
the Holders of specified percentages in principal amount of the Securities of each series at the
time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past
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defaults under the Indenture and their consequences. Any such consent or waiver by the Holder
of this Security shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this
Security.
Except as set forth in Article Thirteen of the Indenture, no reference herein to the Indenture
and no provision of this Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable in the Security Register, upon surrender of this Security
for registration of transfer at the office or agency of the Company in any place where the
principal of and any premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in
denominations of [$___] and multiples of [$___] thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
D-7