exv10w02






EXHIBIT 10.02




FIRST AMENDMENT TO TERM LOAN AGREEMENT




     THIS FIRST AMENDMENT TO TERM LOAN AGREEMENT (this “Amendment”), is made and entered
into as of December 23, 2009, by and among MARTIN MARIETTA MATERIALS, INC., a North
Carolina corporation (the “Borrower”), the several banks and other financial institutions
from time to time party hereto (collectively, the “Lenders”) and SUNTRUST BANK, in its
capacity as Administrative Agent for the Lenders (the “Administrative Agent”).



W I T N E S S E T H:




     WHEREAS, the Borrower, the Lenders and the Administrative Agent are parties to a
certain Term Loan Agreement, dated as of April 23, 2009 (as amended, restated, supplemented
or otherwise modified from time to time, the “Credit Agreement”; capitalized terms used
herein and not otherwise defined shall have the meanings assigned to such terms in the
Credit Agreement), pursuant to which the Lenders have made certain financial accommodations
available to the Borrower;



     WHEREAS, the Borrower has requested that the Lenders and the Administrative Agent
amend certain provisions of the Credit Agreement, and subject to the terms and conditions
hereof, the Lenders are willing to do so;



     NOW, THEREFORE, for good and valuable consideration, the sufficiency and receipt of
all of which are acknowledged, the Borrower, the Lenders and the Administrative Agent agree
as follows:



     1. Amendment. Section 5.09 of the Credit Agreement is hereby amended by
replacing the first paragraph of such Section in its entirety with the following:




     The Leverage Ratio shall not exceed (i) 3.25 to 1.00 as of the end of
any fiscal quarter ending on or prior to September 30, 2009, (ii) 3.75 to
1.00 as of December 31, 2009 or March 31, 2010 and (iii) 3.50 to 1.00 as of
the end of any fiscal quarter ending on or after June 30, 2010; provided that
if (i) Consolidated Debt has increased in connection with a Specified
Acquisition, (ii) as a consequence of such Specified Acquisition, the rating
of long-term unsecured debt of the Borrower has not been suspended, withdrawn
or fallen below BBB by Standard & Poor’s (a division of The McGraw-Hill
Companies, Inc.) or Baa2 by Moody’s Investors Service, Inc. and (iii) the
Administrative Agent has received a Specified Acquisition Notice within 10
days of consummation of such Specified Acquisition, then, for a period of 180
consecutive days following the consummation of such Specified Acquisition,
the additional Consolidated Debt in connection with such Specified
Acquisition shall be excluded from Consolidated Debt for purposes of
calculating the Leverage Ratio, but only if the Leverage Ratio calculated
without such exclusion at no time exceeds during such 180 day period the
otherwise applicable maximum ratio set forth above modified to increase the
numerator by 0.25.



     2. Conditions to Effectiveness of this Amendment. Notwithstanding any other provision
of this Amendment and without affecting in any manner the rights of the Lenders hereunder, it is
understood and agreed that this Amendment shall not become effective, and the Borrower shall have
no rights under this Amendment, until the Administrative Agent shall have received (i) an amendment
fee in an amount equal to 0.08% of the outstanding principal balance of each such Consenting Bank’s
Loan, (ii) reimbursement or payment of its costs and expenses incurred in connection with this
Amendment or the Credit Agreement (including reasonable fees,



 









 




charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent), and
(iii) each of the following documents:




     (a) executed counterparts to this Amendment from the Borrower and the Required Lenders;



     (b) an amendment to the Existing Agreement, duly executed by the JPMorgan Chase Bank, N.A.,
the required lenders thereunder and the Borrower; and



     (c) an amendment to the Account Purchase Agreement dated as of April 21, 2009 among the
Borrower and Wells Fargo Bank, N.A. , duly executed by the Borrower and Wells Fargo Bank, N.A.



     3. Representations and Warranties. To induce the Lenders and the Administrative Agent
to enter into this Amendment, each Loan Party hereby represents and warrants to the Lenders and the
Administrative Agent:



     (a) Each of the Borrower and its Restricted Subsidiaries is a corporation duly organized and
validly existing under the laws of the state of its incorporation without limitation on the
duration of its existence, is in good standing therein, and is duly qualified to transact business
in all jurisdictions where such qualification is necessary, except for such jurisdictions where the
failure to be so qualified or licensed will not be reasonably likely to have a Material Adverse
Effect;



     (b) The execution, delivery and performance by the Borrower of this Agreement and the Notes
are within the corporate powers of the Borrower, have been duly authorized by all necessary
corporate action and do not contravene, or constitute a default under, any provision of applicable
law or regulation or of the certificate of incorporation or by-laws of the Borrower or of any
agreement, judgment, injunction, order, decree or other instrument binding upon the Borrower or any
of its Subsidiaries or result in the creation or imposition of any Lien on any asset of the
Borrower or any of its Subsidiaries which would be reasonably likely to have a Material Adverse
Effect;



     (c) This Amendment has been duly executed and delivered for the benefit of or on behalf of the
Borrower and constitutes a legal, valid and binding obligation of the Borrower, enforceable against
the Borrower in accordance with its terms except as the enforceability hereof may be limited by
bankruptcy, insolvency, reorganization, moratorium and other laws affecting creditors’ rights and
remedies in general; and



     (d) After giving effect to this Amendment, the representations and warranties contained in the
Credit Agreement are true and correct in all material respects, and no Default or Event of Default
has occurred and is continuing as of the date hereof.



     4. Effect of Amendment. Except as set forth expressly herein, all terms of the Credit
Agreement, as amended hereby, shall be and remain in full force and effect and shall constitute the
legal, valid, binding and enforceable obligations of the Borrower to the Lenders and the
Administrative Agent. The execution, delivery and effectiveness of this Amendment shall not,
except as expressly provided herein, operate as a waiver of any right, power or remedy of the
Lenders under the Credit Agreement, nor constitute a waiver of any provision of the Credit
Agreement.



     5. Governing Law. This Amendment shall be governed by, and construed in accordance
with, the internal laws of the State of New York and all applicable federal laws of the United
States of America.



 









 





     6. No Novation. This Amendment is not intended by the parties to be, and shall not be
construed to be, a novation of the Credit Agreement or an accord and satisfaction in regard
thereto.



     7. Costs and Expenses. The Borrower agrees to pay on demand all costs and expenses of
the Administrative Agent in connection with the preparation, execution and delivery of this
Amendment, including, without limitation, the reasonable fees and out-of-pocket expenses of outside
counsel for the Administrative Agent with respect thereto.



     8. Counterparts. This Amendment may be executed by one or more of the parties hereto
in any number of separate counterparts, each of which shall be deemed an original and all of which,
taken together, shall be deemed to constitute one and the same instrument. Delivery of an executed
counterpart of this Amendment by facsimile transmission or by electronic mail in pdf form shall be
as effective as delivery of a manually executed counterpart hereof.



     9. Binding Nature. This Amendment shall be binding upon and inure to the benefit of
the parties hereto, their respective successors, successors-in-titles, and assigns.



     10. Entire Understanding. This Amendment sets forth the entire understanding of the
parties with respect to the matters set forth herein, and shall supersede any prior negotiations or
agreements, whether written or oral, with respect thereto.



[Signature Pages To Follow]




 









 








     IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed, under
seal in the case of the Borrower, by their respective authorized officers as of the day and year
first above written.



	 	 	 	 	 
	 

	 	BORROWER:
	 
	 	 	 	 
	 

	 	MARTIN MARIETTA MATERIALS, INC.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Anne H. Lloyd
	 

	 	 	 	 
	 

	 	 	 	Name: Anne H. Lloyd

Title:   EVP, CFO and Treasurer
	 
	 	 	 	 
	 

	 	LENDERS:
	 
	 	 	 	 
	 

	 	SUNTRUST BANK,
individually and as Administrative Agent
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Steven Deily
	 

	 	 	 	 
	 

	 	 	 	Name: Steven Deily

Title:   Managing Director
	 
	 	 	 	 
	 

	 	BRANCH BANKING & TRUST COMPANY, as Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Jack Frost
	 

	 	 	 	 
	 

	 	 	 	Name: Jack Frost

Title:   Senior Vice President
	 
	 	 	 	 
	 

	 	NORTHERN TRUST COMPANY, as Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ John Canty
	 

	 	 	 	 
	 

	 	 	 	Name: John Canty

Title:   Senior Vice President
	 
	 	 	 	 
	 

	 	REGIONS BANK, as Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Anthony LeTrent
	 

	 	 	 	 
	 

	 	 	 	Name: Anthony LeTrent

Title:   Senior Vice President






[SIGNATURE PAGE TO FIRST AMENDMENT]





 









 








	 	 	 	 	 
	 

	 	BANK OF AMERICA, N.A., as Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Scott Hitchens
	 

	 	 	 	 
	 

	 	 	 	Name: Scott Hitchens

Title:   Vice President
	 
	 	 	 	 
	 

	 	COMERICA BANK, as Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Scott M. Kowalski
	 

	 	 	 	 
	 

	 	 	 	Name: Scott M. Kowalski

Title:   Vice President