<PAGE> 1
As filed with the Securities and Exchange Commission on January 14, 1994.
REGISTRATION NO. _______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM T-3
FOR APPLICATIONS FOR QUALIFICATION OF INDENTURES
UNDER THE TRUST INDENTURE ACT OF 1939
--------------------
ROSEBUD HOLDINGS, INC.
(Name of Applicant)
c/o Lone Star Industries, Inc.
300 FIRST STAMFORD PLACE
Stamford, Connecticut 06912-0014
(Address of Principal Executive Offices)
--------------------
SECURITIES TO BE ISSUED UNDER THE
INDENTURE TO BE QUALIFIED
--------------------
Title of Class Amount
-------------- ------
10% Asset Proceeds Notes Due 1997 . . . . . . . . . . up to $138,200,000
Guarantees of Asset Proceeds Notes . . . . . . . . . .up to $28,000,000
The Applicant hereby amends this application for qualification on such date or
dates as may be necessary to delay its effectiveness
until (i) the 20th day after the filing of a further amendment which
specifically states that it shall supersede this amendment, or
(ii) such date as the Commission, acting pursuant to Section 307(c) of the Act,
may determine upon the written request of the obligor.
<TABLE>
<S> <C>
Approximate date of proposed exchange: As soon as practicable after Confirmation of the Applicant's parent's Plan of
Reorganization (see Item 2).
Name and Address of Agent for Service: John J. Martin, Esq., Vice President and Secretary
Lone Star Industries, Inc.
300 First Stamford Place
Stamford, Connecticut 06912-0014
</TABLE>
<PAGE> 2
GENERAL
ITEM 1. GENERAL INFORMATION
(a) Form of Organization.
Corporation.
(b) State or other sovereign power under the laws of which organized.
Delaware.
ITEM 2. SECURITIES ACT EXEMPTION APPLICABLE
State briefly the facts relied upon by the applicant as a basis for
the claim that registration of the Indenture Securities under the Securities
Act of 1933 is not required.
Rosebud Holdings, Inc. (the "Company") proposes to issue, as part of
the Modified Amended Consolidated Plan of Reorganization of Lone Star
Industries, Inc., the Company's sole stockholder ("Lone Star"), dated August
24, 1993, pursuant to Section 1121(a) of the United States Bankruptcy Code (the
"Plan of Reorganization"), the Company's 10% Asset Proceeds Notes Due 1997 (the
"Notes"), a portion of which are guaranteed by Lone Star. The Company was
recently organized to be a successor to certain of Lone Star's assets and
liabilities upon consummation of the Plan of Reorganization. The Notes will be
issued to discharge in part claims of existing creditors of Lone Star and
certain of its affiliates in the Bankruptcy Proceeding described below. Lone
Star has filed with the United States Bankruptcy Court for the Southern
District of New York (the "Bankruptcy Court") a Modified Amended Disclosure
Statement (the "Disclosure Statement") for the purpose of soliciting votes of
holders of claims or stock interests in Lone Star and certain of its affiliates
for acceptance or rejection of the Plan of Reorganization (Case Nos. 90 B 21276
to 90 B 21286, 90 B 21334 and 90 B 21335 (HS)). At a hearing held on December
7, 1993, the Bankruptcy Court approved the Disclosure Statement. A copy of the
Disclosure Statement, with the Plan of Reorganization annexed thereto as an
exhibit, is incorporated herein by reference at Exhibit T3E. The Notes are to
be issued under an indenture (the "Indenture") between the Company and a
trustee to be named, preliminary forms of which are attached hereto as Exhibit
T3C. Certain other securities of Lone Star will be issued pursuant to the Plan
of Reorganization under indentures separate from the one being qualified
hereunder and are the subject of separate Form T-3's being filed with the
Securities and Exchange Commission.
The Company believes that the issuance of the Notes and the related
guarantee is exempt from the registration requirements of the Securities Act of
1933 (the "Securities Act") pursuant to Section 1145 of the United States
Bankruptcy Code. Section 1145 exempts from the registration requirements of
the Securities Act "the offer or sale under a plan of a security of the debtor
. . ., or a successor to the debtor under the plan . . . in exchange for a
claim against, an interest in, or a claim for an administrative expense in the
case concerning, the debtor. . ." The Company will be issuing the Notes and
Lone Star will be granting its guarantee pursuant to the Plan of Reorganization
solely in exchange for the claims of certain existing creditors of Lone Star
and certain of its affiliates. There will be no sales of Notes by or through
an underwriter, as that term is defined in Section 1145(b) of the Bankruptcy
Code, in connection with the Plan of Reorganization.
2
<PAGE> 3
AFFILIATIONS
ITEM 3. AFFILIATES
Furnish a list or diagram of all affiliates of the applicant and
indicate the respective percentages of voting securities or other bases of
control.
The Company is a wholly-owned subsidiary of Lone Star. Additional
affiliates of the Company may be deemed to include the following as of January
10, 1994:
1. Hawaiian Cement, a Hawaiian general partnership in which Lone Star
indirectly has a 50% interest.
2. Kosmos Cement Company, a Kentucky general partnership in which
Lone Star indirectly has a 25% interest.
3. Lone Star-Falcon, a Texas general partnership in which Lone Star
has a 50% interest.
4. RMC LONESTAR, a California general partnership in which Lone Star
indirectly has a 50% interest.
5. In a Schedule 13D filed by Scope Industries on January 7, 1992, it
was reported that Scope Industries and certain related persons identified
therein owned 2,539,200 shares of Lone Star's Common Stock, an approximate
15.3% interest.
Based on information provided to Lone Star, if the exchange
contemplated by the Plan of Reorganization had occurred as of January 10, 1994,
the following might have been deemed to be Affiliates of Lone Star:
In addition to the persons listed in items 1-4 to this Item 3 above,
the following persons may own in excess of ten percent of Lone Star's voting
securities after the consummation of the Plan of Reorganization:
A. The Trust Company of the West and affiliates may own 17.8% of Lone
Star's Common Stock.
B. Metropolitan Life Insurance Company and Metropolitan Insurance and
Annuity Company may own an aggregate of 15.4% of Lone Star's Common Stock.
Attached hereto as Annex A are lists of the subsidiaries of Lone Star
and the Company currently existing and which are expected to exist upon the
consummation of the Plan of Reorganization.
MANAGEMENT AND CONTROL
ITEM 4. DIRECTORS AND EXECUTIVE OFFICERS
List the names and complete mailing addresses of all directors or
executive officers of the applicant and all persons chosen to become directors
or executive officers. Indicate all offices with the applicant held or to be
held by each person named.
3
<PAGE> 4
<TABLE>
<CAPTION>
Name Address Office(s)
---- ------- ---------
<S> <C> <C>
William M. Troutman Lone Star Industries Inc. Director, President and
300 First Stamford Place Chairman
Stamford, CT 06912-0014
John J. Martin Same Director, Vice President and
Secretary
William E. Roberts Same Director, Vice President and
Treasurer
</TABLE>
ITEM 5. PRINCIPAL OWNERS OF VOTING SECURITIES
Furnish the following information as to each person owning 10 percent
or more of the voting securities of the applicant.
AS OF JANUARY 10, 1994 AND
GIVING EFFECT TO THE PLAN OF REORGANIZATION
<TABLE>
<CAPTION>
Percentage of
Title of Class Voting Securities
Names and Complete Mailing Address Owned Amount Owned Owned
---------------------------------- -------------- ------------ -----------------
<S> <C> <C> <C>
Lone Star Industries, Inc. Common Stock 100 shares 100%
300 First Stamford Place
Stamford, CT 06912-0014
</TABLE>
UNDERWRITERS
ITEM 6. UNDERWRITERS
Give the name and complete mailing address of (a) each person who,
within three years prior to the date of filing the application, acted as an
underwriter of any securities of the obligor which were outstanding on the date
of filing the application, and (b) each proposed principal underwriter of the
securities proposed to be offered. As to each person specified in (a), give
the title of each class of securities underwritten.
(a) None
(b) None
4
<PAGE> 5
CAPITAL SECURITIES
ITEM 7. CAPITALIZATION
(a) Furnish the following information as to each authorized class of
securities of the applicant.
AS OF JANUARY 10, 1994
<TABLE>
<CAPTION>
Title of Class Amount Authorized Amount Outstanding
-------------- ----------------- ------------------
<S> <C> <C>
Common Stock, $1.00 par value per share . . . . . . . . . . . . 1,000 shares 100 shares
</TABLE>
(b) Give a brief outline of the voting rights of each class of voting
securities referred to in paragraph (a) above.
<TABLE>
<CAPTION>
Title of Class Voting Rights
-------------- -------------
<S> <C>
Common Stock One vote per share
</TABLE>
INDENTURE SECURITIES
ITEM 8. ANALYSIS OF INDENTURE*
Insert at this point the analysis of indenture provisions required under
Section 305(a)(2) of the Act.
(a) Events of Default and Notice of Default
An Event of Default occurs under the Indenture if: (i) the Company
defaults in the payment of interest on any Note when the same becomes due and
payable, whether at maturity, in connection with any redemption, by
acceleration or otherwise, and such default continues for a period of 30 days;
(ii) the Company defaults in the payment of the principal of any Note when the
same becomes due and payable, whether at maturity, in connection with any
redemption, by acceleration or otherwise and such default continues for a
period of 30 days after the earlier of (a) the date on which written notice of
such failure, requiring the Company to remedy the same, shall have been given
to the Company by the Trustee, or to the Company and the Trustee by the Holders
of at least 25% in aggregate principal amount of the Notes at the time
outstanding or (b) the date on which the Company had Actual Knowledge of such
failure; (iii) the Company or any of its Subsidiaries fails to observe or
perform in any material respect any of its other covenants or agreements in the
Notes, the Indenture or the Collateral Agency Agreement or other agreement
relating to liens for the benefit of Holders, which failure continues for a
period of 30 days after the earlier of (a) the date on which written notice of
such failure, requiring the Company to remedy the same, shall have been given
to the Company by the Trustee, or to the Company and the Trustee by the Holders
of at least 25% in aggregate principal amount of the Notes at the time
outstanding or (b) the date on which the Company had Actual
- ----------------------------------
* All capitalized terms used in this Item 8 shall have the same meaning,
unless otherwise defined, as that provided in the Indenture.
5
<PAGE> 6
Knowledge of such failure; (iv) (a) the Company or any of its Subsidiaries
fails to pay when due (whether at maturity, in connection with any mandatory
amortization or redemption, by acceleration or otherwise) any principal or
interest on any Indebtedness with an aggregate outstanding principal amount in
excess of $5.0 million, whether any such Indebtedness is outstanding as of the
date of the Indenture or is thereafter outstanding, which default continues for
the greater of any period of grace applicable thereto or 60 days from the date
of such default, or (b) a default or event of default, as defined in one or
more indentures, agreements or other instruments evidencing or under which the
Company or any of its Subsidiaries individually or collectively have, as of the
date of the Indenture or thereafter, outstanding at least $2.0 million
aggregate principal amount of Indebtedness, shall happen and be continuing and
such Indebtedness shall have been accelerated so that it is due and payable
prior to the date on which it would otherwise have become due and payable, and
such acceleration shall not be rescinded or annulled within 60 days after the
earlier of (x) the date on which written notice of such acceleration shall have
been given to the Company by the Trustee, or to the Company and the Trustee by
the Holders of at least 25% in aggregate principal amount of the Notes at the
time outstanding or (y) the date on which the Company had Actual Knowledge of
such acceleration; provided that if such default or event of default under such
indenture or other instrument shall be remedied or cured by the Company or the
Subsidiary or waived by the holders of such Indebtedness, then the Event of
Default under the Indenture by reason thereof shall be deemed likewise to have
been thereupon remedied, cured or waived without further action upon the part
of either the Trustee or any of the holders of Notes; (v) one or more final
judgments against the Company or any of its Restricted Subsidiaries, for
payments of money which in the aggregate exceed $2.0 million, are entered by a
court of competent jurisdiction and such judgments are not rescinded, annulled,
stayed or discharged within 90 days; (vi) the Company and its Subsidiaries,
taken as a whole, becomes insolvent; (vii) the Company or any of its material
Subsidiaries, pursuant to or within the meaning of any Bankruptcy Law: (a)
commences a voluntary case, (b) consents to the entry of a judgment, decree or
order for relief against it in any involuntary case or proceeding, (c) consents
to the appointment of a Custodian of it or for all or substantially all of its
property, (d) makes a general assignment for the benefit of its creditors, (e)
applies for, consents to or acquiesces in the appointment of, or taking
possession by, a Custodian; (viii) a court of competent jurisdiction enters a
judgment, decree or order for relief in respect of the Company or any of its
material Restricted Subsidiaries, in an involuntary case or proceeding under
any Bankruptcy Law which shall (a) approve as properly filed a petition seeking
reorganization, arrangement, adjustment or composition, (b) appoint a Custodian
for any part of its property, or (c) order the winding up or liquidation of its
affairs, and such judgment, decree or order remains unstayed and in effect for
a period of sixty (60) consecutive days; or (ix) any bankruptcy or insolvency
petition or application is filed, or any bankruptcy case or insolvency
proceeding is commenced against, the Company or any of its material Restricted
Subsidiaries, and such petition, application, case or proceeding is not
dismissed or stayed within ninety (90) days.
If a Default occurs and is continuing and if it is known to the Trustee,
the Trustee shall mail to each holder of the Notes a notice of the Default
within 90 days after it occurs. Except in the case of a Default in payment of
principal of or interest on any Note, the Trustee may withhold the notice if
and so long as it in good faith determines that withholding notice is in the
interests of the Holders of the Notes.
(b) Authentication and Delivery of Notes and Application of Proceeds Thereof
A Note shall not be valid until authenticated by the manual or facsimile
signature of the Trustee. The signature of the Trustee shall be conclusive
evidence that the Note has been authenticated under the Indenture. The Trustee
may appoint an authenticating agent acceptable to the Company to authenticate
the Notes.
The Trustee shall authenticate Notes for original issue in the aggregate
principal amount of up to $138,200,000 upon a written order of the Company.
Such order shall specify the amount of Notes to be authenticated and the date
on which the original issue of Notes is to be authenticated.
The Notes shall be issuable only in registered form without coupons and
only in denominations of $1,000 and integral multiples thereof.
6
<PAGE> 7
(c) Release of Property Subject to Lien of Indenture
Unless an Event of Default has occurred and is continuing, the Company or
its subsidiaries may dispose of any of the Pledged Collateral in any
transaction or series of transactions approved by the Company's Board of
Directors, and any Pledged Collateral so disposed of shall, upon such
disposition, ipso facto be released from the security interests created under
the Collateral Agency Agreement and the Company shall be entitled to receive
and retain the proceeds of such dispositions except that with limited
exceptions (x) non-cash proceeds from a Sale of Assets shall be Pledged
Collateral and (y) cash received in such sales (except such as shall be
required to provide the Company with $5 million of working capital) shall
constitute Cash Collateral and shall be used to redeem or retire Notes. The
Company will comply with Trust Indenture Act of 314(d), relating to the release
of Pledged Collateral.
(d) Satisfaction and Discharge of Indenture
The Company may terminate all of its obligations under the Indenture if all
Notes previously authenticated and delivered (other than mutilated, destroyed,
lost or stolen Notes which have been replaced or paid) have been delivered to
the Trustee for cancellation or if: (1) the Notes mature within six months or
all of them are to be called for redemption within six months; (2) the Company
irrevocably deposits in trust with the Trustee, pursuant to an irrevocable
trust and security agreement in form and substance reasonably satisfactory to
the Trustee, money or U.S. Government Obligations sufficient to pay principal
of and interest on the Notes to maturity or redemption, as the case may be, and
all other sums payable by the Company to the holders of the Notes thereunder.
The Company may make the deposit only during the six-month period. Immediately
after making the deposit, the Company shall give notice of such event to the
holders; (3) the Company has paid or caused to be paid all sums then payable by
the Company to the Trustee thereunder as of the date of such deposit; (4) the
Company has delivered to the Trustee an Officers' Certificate stating that all
conditions precedent provided for in the Indenture relating to the satisfaction
and discharge of the Indenture have been complied with; and (5) the Company has
delivered to the Trustee either (i) an unqualified Opinion of Counsel, stating
that the holders of the Notes (a) will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit (and the defeasance
contemplated in connection therewith) and (b) will be subject to Federal income
tax on the same amounts and in the same manner and at the same times as would
have been the case if such deposit and defeasance had not occurred, or (ii) an
applicable favorable ruling to that effect received from or published by the
Internal Revenue Service.
However, the Company's obligations under the Indenture with respect to the
Registrar and Paying Agent, securityholder lists, transfers and exchanges,
replacement securities, payment on the Notes, compensation, indemnity and
replacement of the Trustee, and the Trustee's obligations with respect to
repayment to the Company of excess money upon discharge of the Indenture shall
survive until the Notes are no longer outstanding. Thereafter, the obligations
with respect to compensation and indemnity of the Trustee and repayment to the
Company of excess money shall survive.
After a deposit pursuant to these provisions, the Trustee upon request
shall acknowledge in writing the discharge of the Company's obligations under
the Notes and the Indenture except for those surviving obligations specified
above.
In order to have money available on a payment date to pay principal or
interest on the Notes, the U.S. Government Obligations shall be payable as to
principal or interest on or before such payment date in such amounts as will
provide the necessary money.
(e) Evidence Required to be Furnished by Obligor to Trustee
The Company shall deliver to the Trustee within 120 days after the end of
each fiscal year of the Company, and within 60 days after the end of each of
the first three fiscal quarters of the Company, an Officer's Certificate
stating that, after a review of the activities of the Company during such
period and of the Company's performance under the Indenture, whether or not, to
the best knowledge of the signer thereof based on such review, there has
7
<PAGE> 8
been any Default or Event of Default by the Company in performing any of its
obligations under the Indenture or the Notes. If the signer does not know of
any such Default or Event of Default, the Certificate shall describe the
Default or Event of Default and its status.
ITEM 9. OTHER OBLIGORS
Give the name and complete mailing address of any person, other than the
applicant, who is an obligor upon the indenture securities.
A portion of the Notes will be guaranteed by Lone Star.
CONTENTS OF APPLICATION FOR QUALIFICATION
This application for qualification comprises:
(a) Pages numbered 1 to 9, consecutively;
(b) Annex A consisting of two pages;
(c) The Statement of Eligibility and Qualification on Form T-1 -- to be
filed by amendment under separate cover; and
(d) the following exhibits in addition to those filed as a part of the
Statement of Eligibility and Qualification of the Trustee:
Exhibit T3A. The form of the Company's Certificate of Incorporation is
attached as Exhibit P to the Disclosure Statement
(incorporated by reference at Exhibit T3E).
Exhibit T3B. The form of the Company's By-Laws is attached as Exhibit Q to
the Disclosure Statement (incorporated by reference at Exhibit
T3E).
Exhibit T3C. Form of Indenture between the Company and a trustee to be
named.
Exhibit T3D. Not applicable.
Exhibit T3E. A copy of the Disclosure Statement regarding the Plan of
Reorganization, with certain exhibits thereto, incorporated by
reference to Exhibit T3E of Lone Star Industries, Inc. Form
T-3 with respect to certain Senior Notes due 2003, filed of
even date herewith.
Exhibit T3F. A cross reference sheet showing the location in the Indenture
of the provisions inserted therein pursuant to Sections 310
through 318(a), inclusive, of the Trust Indenture Act of 1939,
included in Exhibit T3C.
8
<PAGE> 9
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
applicant, Rosebud Holdings, Inc., a corporation organized and existing under
the laws of Delaware, has duly caused this application to be signed on its
behalf by the undersigned, thereunto duly authorized, and its seal to be
hereunto affixed and attested all in The City of New York, and State of New
York, on the 14th day of January, 1994.
[Seal]
<TABLE>
<S> <C>
ROSEBUD HOLDINGS, INC.
By /s/ John J. Martin
------------------------------------
Name: John J. Martin
Title: Vice President and Secretary
Attest: By /s/ John S. Johnson
------------------------------------
Name: John S. Johnson
Title: Assistant Secretary
</TABLE>
9
<PAGE> 10
ANNEX A
LONE STAR INDUSTRIES, INC. SUBSIDIARIES
(Wholly owned unless otherwise indicated;
indentation indicates level of ownership)
<TABLE>
<CAPTION>
Jurisdiction of
Name Incorporation
---- --------------
<S> <C>
Lone Star Industries, Inc. Delaware
Coastline Petroleum Company, Inc. Texas
Construction Aggregates Limited Nova Scotia
Construction Materials Co. Delaware
DeSoto Redi-Mix Corporation Mississippi
Diamond Building Materials, Inc. California
I.C. Materials, Inc. Illinois
KCOR CORPORATION (20% owned by Lone Star Delaware
Industries, Inc.; 80% owned by Lone Star
Hawaii Cement Corporation)
Lone Star Building Centers, Inc. Minnesota
Lone Star Building Centers (Eastern) Inc. Delaware
G. M. Stewart Lumber Company, Inc. Minnesota
Lone Star California, Inc. Delaware
Lone Star Cement Inc. (99% ownership) New Jersey
Lonestar Florida Pensucco, Inc. Delaware
Lonestar Florida Holding, Inc. Delaware
Lonestar Florida Cement, Inc. Delaware
Lone Star Hawaii, Inc. Delaware
Lone Star Hawaii Cement Corporation Hawaii
Lone Star Hawaii Properties, Inc. Hawaii
Lone Star Prestress Concrete, Inc. Texas
Lone Star Properties, Inc. Delaware
</TABLE>
<PAGE> 11
<TABLE>
<CAPTION>
Jurisdiction of
Name Incorporation
---- --------------
LONE STAR INDUSTRIES, INC. SUBSIDIARIES
100% OWNERSHIP UNLESS OTHERWISE NOTED (CONT'D.)
<S> <C>
Lone Star Transportation Corp. Delaware
Lone Star Wyoming, Inc. Delaware
New York Trap Rock Corporation Delaware
Cornell Steamboat Company New York
Gotham Suffolk Stone Corporation New York
NYTR Transportation Corp Delaware
Plastibeton Canada Inc. Canada
Rosebud Holdings, Inc.* Delaware
KCOR CORPORATION* Delaware
Las Colinas Corporation* Delaware
Lone Star California, Inc.* Delaware
Rosebud Real Properties, Inc.* Delaware
Santa Cruz Corporation* Delaware
Nazareth Cement Corporation* Delaware
San-Vel Concrete Corporation Kansas
Southern Aggregates, Inc. Mississippi
Utah Portland Quarries, Inc. Utah
</TABLE>
- ----------------------------------
* Information with respect to these corporations located here is given
effective after the consummation of the Plan of Reorganization.
A-2
<PAGE> 12
EXHIBIT INDEX
Exhibit T3A. The form of the Company's Certificate of Incorporation is
attached as Exhibit P to the Disclosure Statement
(incorporated by reference at Exhibit T3E).
Exhibit T3B. The form of the Company's By-Laws is attached as Exhibit Q to
the Disclosure Statement (incorporated by reference at Exhibit
T3E).
Exhibit T3C. Form of Indenture between the Company and a trustee to be
named.
Exhibit T3D. Not applicable.
Exhibit T3E. A copy of the Disclosure Statement regarding the Plan of
Reorganization, with certain exhibits thereto, incorporated by
reference to Exhibit T3E of Lone Star Industries, Inc. Form
T-3 with respect to certain Senior Notes due 2003, filed of
even date herewith.
Exhibit T3F. A cross reference sheet showing the location in the Indenture
of the provisions inserted therein pursuant to Sections 310
through 318(a), inclusive, of the Trust Indenture Act of 1939,
included in Exhibit T3C.
<PAGE> 1
EXHIBIT T3C
- --------------------------------------------------------------------------------
ROSEBUD HOLDINGS, INC.
AND
------------ Bank
as
Trustee
--------------
Indenture
Dated as of ------------, 1993
10% ASSET PROCEEDS NOTES DUE 1997
- --------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE . . . . . . . . . . . . . . . . 1
SECTION 1.01 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02 Incorporation by Reference of Trust Indenture Act . . . . . . . . . . . . . 7
SECTION 1.03 Rules of Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE 2. THE SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.01 Form and Dating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.02 Execution and Authentication . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 2.03 Registrar and Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 2.04 Paying Agent to Hold Money in Trust . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.05 Securityholder Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.06 Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.07 Replacement Securities . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.08 Outstanding Securities . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.09 Securities Held by the Company or an Affiliate . . . . . . . . . . . . . . 12
SECTION 2.10 Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.11 Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.12 Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.13 Deemed Repayments; Deferral of Maturity Date. . . . . . . . . . . . . . . . 13
ARTICLE 3. REDEMPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 3.01 Notices to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 3.02 Selection of Securities to be Redeemed . . . . . . . . . . . . . . . . . . 14
SECTION 3.03 Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 3.04 Effect of Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 3.05 Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 3.06 Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 3.07 Optional Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 3.08 Redemption or Retirement Upon Sale of Assets . . . . . . . . . . . . . . . 16
ARTICLE 4. COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 4.01 Payment of Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 4.02 Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 4.03 Sale of Assets and Subsidiaries; Corporate
Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 4.04 Payment of Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 4.05 Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 4.06 SEC Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 4.07 Compliance Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . 19
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C> <C>
SECTION 4.08 Limitation on Stock Payments and Investments . . . . . . . . . . . . . . . 19
SECTION 4.09 Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 4.10 Limitation on Additional Indebtedness and Liens . . . . . . . . . . . . . . 20
SECTION 4.11 Conflicting Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 4.12 Limitation on Dividends and Certain Other
Restrictions Affecting Subsidiaries . . . . . . . . . . . . . . 20
SECTION 4.13 Waiver of Stay, Extension or Usury Laws . . . . . . . . . . . . . . . . . . 20
SECTION 4.14 Maintenance of Insurance and Records, Compliance with Law . . . . . . . . . 21
SECTION 4.15 Limitation on Redemption of Certain Indebtedness . . . . . . . . . . . . . 21
SECTION 4.16 Value of Claims Represented by Securities . . . . . . . . . . . . . . . . . 21
SECTION 4.17 Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 4.18 Investment Company Act of 1940. . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE 5. SUCCESSORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 5.01 When Company May Merge, Etc . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 5.02 Successor Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE 6. DEFAULTS AND REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 6.01 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 6.02 Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 6.03 Other Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 6.04 Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 6.05 Control by Majority . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 6.06 Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 6.07 Rights of Holders to Receive Payment . . . . . . . . . . . . . . . . . . . 27
SECTION 6.08 Collection Suit by Trustee . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 6.09 Trustee May File Proofs of Claims . . . . . . . . . . . . . . . . . . . . . 28
SECTION 6.10 Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 6.11 Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE 7. TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 7.01 Acceptance of Trusts; Duties of Trustee . . . . . . . . . . . . . . . . . . 29
SECTION 7.02 Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 7.03 Individual Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 7.04 Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 7.05 Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 7.06 Reports by Trustee to Holders . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 7.07 Compensation and Indemnity . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 7.08 Replacement of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 7.09 Successor Trustee by Merger, etc . . . . . . . . . . . . . . . . . . . . . 33
SECTION 7.10 Eligibility; Disqualification . . . . . . . . . . . . . . . . . . . . . . . 33
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C> <C>
SECTION 7.11 Preferential Collection of Claims Against
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE 8. DISCHARGE OF INDENTURE . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 8.01 Termination of Company's Obligations . . . . . . . . . . . . . . . . . . . 33
SECTION 8.02 Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 8.03 Repayment to Company . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 8.04 Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE 9. AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 9.01 Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 9.02 With Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 9.03 Compliance with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . 37
SECTION 9.04 Revocation and Effect of Consents . . . . . . . . . . . . . . . . . . . . . 37
SECTION 9.05 Notation on or Exchange of Securities . . . . . . . . . . . . . . . . . . . 37
SECTION 9.06 Trustee Protected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE 10. SECURITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 10.01 Collateral Agency Agreement and Guarantee Agreement . . . . . . . . . . . 38
SECTION 10.02 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 10.03 Authorization of Actions to be Taken by the Trustee Under
the Collateral Agency Agreemnt and the Guarantee Agreement . . . . . . . . 39
SECTION 10.04 Authorization of Receipt of Funds by the Trustee Under the
Collateral Agency Agreement and the Guarantee Agreement . . . . . . . . 39
SECTION 10.05 Termination of Security Interest . . . . . . . . . . . . . . . . . . . 39
SECTION 10.06 Security Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE 11. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 11.01 Trust Indenture Act Controls . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 11.02 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 11.03 Communication by Holders with Other Holders . . . . . . . . . . . . . . . 41
SECTION 11.04 Action by Securityholders . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 11.05 Proof of Execution of Instruments and of
Holding of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 11.06 Revocation of Consents; Future Holders Bound . . . . . . . . . . . . . . 42
SECTION 11.07 Rules by Trustee and Agents . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 11.08 Certificate and Opinion as to Conditions Precedent . . . . . . . . . . . 43
SECTION 11.09 Statements Required in Certificate or Opinion . . . . . . . . . . . . . . 43
SECTION 11.10 Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 11.11 No Recourse Against Others . . . . . . . . . . . . . . . . . . . . . . . 44
</TABLE>
iii
<PAGE> 5
<TABLE>
<S> <C>
SECTION 11.12 Table of Contents, Headings, etc . . . . . . . . . . . . . . . . . . . . . 44
SECTION 11.13 Duplicate Originals . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 11.14 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 11.15 No Adverse Interpretation of Other Agreements . . . . . . . . . . . . . . 44
SECTION 11.16 Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 11.17 Separability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
ARTICLE 12. MEETINGS OF HOLDERS OF SECURITIES . . . . . . . . . . . . . . . . . . . . 45
SECTION 12.01 Purposes of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 12.02 Call of Meetings by Trustee . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 12.03 Call of Meetings by Company or Security Holders . . . . . . . . . . . . . 46
SECTION 12.04 Persons Entitled to Vote at Meeting . . . . . . . . . . . . . . . . . . . 46
SECTION 12.05 Regulations for Meeting . . . . . . . . . . . . . . . . . . . . . . . . 46
</TABLE>
iv
<PAGE> 6
CROSS-REFERENCE TABLE
<TABLE>
<CAPTION>
TIA Indenture
Section Section
- ------- ---------
<S> <C>
310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.08; 7.10
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.05
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.03
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.03
313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.06; 4.07
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.02
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.08
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.08
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.02
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.09
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
315 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.05
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.11
316 (a)(last sentence) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.09
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.05
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.04
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.07
317 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.08
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.04
318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.01
</TABLE>
- -----------------------
This cross-reference tables does not constitute a part of the Indenture.
<PAGE> 7
INDENTURE dated as of ------------, 1993 between ROSEBUD
HOLDINGS, INC., a Delaware corporation (the "Company"), and -------- Bank, a
national banking association (the "Trustee").
Each party agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the Holders of the Company's 10%
Asset Proceeds Notes due 1997 (the "Securities").
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 DEFINITIONS.
"Actual Knowledge" has the meaning assigned to such term in
Section 6.01 hereof.
"Affiliate" means any Person directly or indirectly
controlling or controlled by or under common control with the Company;
provided, however, that the term Affiliate shall not include any Subsidiary of
the Company. For this purpose, "control" means possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of a Person, whether through the ownership of voting securities, by
contract or otherwise.
"Agent" means any Registrar, Paying Agent, Collateral Agent or
Co-Registrar.
"Bankruptcy Law" has the meaning assigned to such term in
Section 6.01 hereof.
"Board of Directors" means the Board of Directors of the
Company or any committee of the Board authorized to act for it hereunder.
"Business Day" has the meaning assigned to such term in
Section 11.10 hereof.
"Capital Stock" means any stock of any class of a corporation.
"Collateral Agency Agreement" means the Pledge[,
Intercreditor] and Collateral Agency Agreement of even date with this Indenture
among the Company, the Trustee and ------------, as the Collateral Agent
thereunder as the same may be amended, modified or supplemented from time to
time.
"Collateral Agent" means the party named as such in the
Collateral Agency Agreement until a successor replaces it, and thereafter means
the successor.
<PAGE> 8
"Common Stock" means the common stock, par value $1.00 per
share, of the Company or any security into which the common stock may be
converted.
"Company" means the party named as such above until a
successor replaces it pursuant to the applicable provision hereof, and
thereafter means such successor.
"Corporate Trust Office of the Trustee" shall be at the
address of the Trustee specified in Section 11.02 or such other address as the
Trustee may give notice of to the Company.
"Custodian" has the meaning assigned to such term in Section
6.01 hereof.
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Deferred Notice" has the meaning assigned to such term in
Section 2.13 hereof.
"Effective Date" has the meaning assigned in the Plan of
Reorganization.
"Event of Default" has the meaning assigned to such term in
Section 6.01 hereof.
"Exchange Act" means the Securities Exchange Act of 1934 and
the rules and regulations of the SEC promulgated thereunder.
"Guarantee Agreement" means the Guarantee Agreement of the
Guarantor attached hereto as Exhibit A which is incorporated in and forms a
part of this Indenture where specified, as the same may be amended, modified or
supplemented from time to time.
"Guarantor" means Lone Star Industries, Inc., until a
successor replaces it pursuant to the applicable provision of the Guarantee
Agreement, and thereafter means such successor.
"Holder" or "Securityholder" means a Person in whose name a
Security is registered on the Registrar's books.
"Indebtedness" means, with respect to any Person and without
duplication, any liability, whether or not contingent (i) in respect of
borrowed money or evidenced by bonds, notes, debentures or similar instruments
or letters of credit (or reimbursement agreements in respect thereof) or
representing the balance deferred and unpaid of the purchase price of any
property or services (including without limitation pursuant to Purchase Money
Indebtedness or capital leases), except any such balance that constitutes a
trade payable arising in the ordinary course of business, (ii) under any
agreement related to the fixing of interest rates on any Indebtedness, such as
an interest rate swap, cap or collar agreement if and to the extent
2
<PAGE> 9
the same would constitute a liability on the balance sheet of such Person
prepared in accordance with generally accepted accounting principles, or (iii)
in respect of letters of credit issued at the request of such Person, and shall
also include, to the extent not otherwise included, all Indebtedness of any
other Person for which such Person is or could become liable or which is
secured by a Lien on an asset of such Person, whether or not such Indebtedness
is assumed by such Person, and the guaranty of any of the foregoing items.
"Indenture" means this Indenture and, where specified, the
Guarantee Agreement, each as amended from time to time.
"Investment" means [providing, other than in the ordinary
course of business or a Sale of Assets, any cash or assets to, or becoming
liable in respect of any Indebtedness of, any Person other than a Subsidiary
existing on the Effective Date, whether or not in exchange for securities of
any Person or other consideration, provided, however, the taking of notes
issued by an acquiring Person in connection with a Sale of Assets shall not
constitute the making of an Investment.]
"Legal Holiday" has the meaning assigned to such term in
Section 11.10 hereof.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or similar encumbrance in respect of such
asset, whether or not filed, recorded or otherwise perfected under applicable
law (including any conditional sale or other title retention agreement, any
capitalized lease in the nature thereof, and any filing of or agreement to give
any financing statement under the Uniform Commercial Code or equivalent
statutes of any jurisdiction, other than an information filing), but does not
include, in the case of the Company, the lien granted to the Trustee under
Section 7.07 hereof.
"Maturity Date" of the Securities means, subject to Section
2.13 hereof, ----------, 1997.
"Net Proceeds" with respect to any Sale of Assets, means the
cash (in U.S. dollars or currency freely convertible into U.S. dollars)
received by the Company or any of its Subsidiaries from such Sale of Assets
after (i) provision for all income or other taxes measured by or resulting from
such sale or other disposition or the transfer of the proceeds thereof to the
Company that are payable by the Company or any of its Subsidiaries, (as
reasonably and in good faith estimated by the Chief Financial Officer of the
Company or such Subsidiary), (ii) payment of all brokerage commissions, legal
and accounting fees and expenses and other fees and expenses related to such
sale or other disposition, (iii) deduction of any amounts received by any
Subsidiary that are not legally available for direct or indirect distribution
to the Company, (iv) deduction of any amounts required to discharge any
Permitted Liens on the assets sold, leased or otherwise conveyed, and (v)
deduction of any amounts required to be paid to the lender pursuant to any
Permitted Working Capital Loans upon such Sale of Assets, and (vi) deduction of
appropriate amounts provided by the Company or its Subsidiaries as a reserve on
its regularly prepared balance sheets, in
3
<PAGE> 10
accordance with generally accepted accounting principles consistently applied
(including, without limitation, subject to the next succeeding sentence, all
amounts escrowed, pledged or otherwise set aside to assume payment of such
liabilities), against any liabilities associated with the assets sold in such
Sale of Assets and retained by the Company or its Subsidiaries, including,
without limitation, pension and other postemployment benefit liabilities and
liabilities related to environmental matters, or against any indemnification
obligations associated with the sale or other disposition. Net Proceeds shall
include (i) when received in cash, any Net Proceeds from the sale or other
disposition of any non-cash proceeds received by the Company or any of its
Subsidiaries from a Sale of Assets and (ii) when received in cash, any Net
Proceeds released from escrow, pledge or other set aside and amounts no longer
reserved under generally accepted accounting principles as described in clause
(vi) of the immediately preceding sentence.
"Officer" means the Chairman of the Board, the President, any
Senior Vice-President, Executive Vice-President or any other Vice-President,
the Treasurer or the Secretary of the Company or the Guarantor, as the case may
be.
"Officer's Certificate" means a certificate signed by any
Officer of the Company or the Guarantor, as the case may be.
"Opinion of Counsel" means a written opinion from legal
counsel, who may be an employee of or counsel for the Company or other counsel
reasonably acceptable to the Trustee.
"Paying Agent" has the meaning assigned to such term in
Section 2.03 hereof.
"Permitted Indebtedness" means indebtedness deemed by the
Board of Directors to be appropriate to maintain the assets, business and
operations of Subsidiaries pending sale of the following types: (i) Permitted
Working Capital Loans; (ii) Indebtedness (other than any Indebtedness set forth
in the other clauses of this definition), provided that the proceeds of such
Indebtedness are used within 120 days of its incurrence to retire all
outstanding Securities; (iii) Purchase Money Indebtedness; (iv) Refinancing
Indebtedness; (v) Indebtedness of Subsidiaries of the Company to the Company or
other Subsidiaries of the Company; and (vi) unsecured Indebtedness incurred by
the Company or any Subsidiary, provided that (A) no payment of principal
thereon is made or is required to be made on or before the Maturity Date, (B)
no payment of interest or principal is made thereon during the continuance of
any Event of Default and (C) at the time of the incurrence of such
Indebtedness, there is no outstanding Default or Event of Default.
"Permitted Liens" means (i) Liens contemplated by the
Collateral Agency Agreement; (ii) Liens which may be granted from time to time
to secure and/or maintain Permitted Working Capital Loans; (iii) Liens existing
on the Effective Date or thereafter created to replace such Liens; (iv) Liens
in favor of the Trustee or the Collateral Agent on all property and funds held
or collected by the Trustee or the Collateral Agent as security for the
performance by the Company of its obligations of payment to, and reimbursement
and
4
<PAGE> 11
indemnification of, the Trustee and the Collateral Agent for their services
under the Indenture and the Collateral Agency Agreement, respectively; (v)
Liens for taxes or assessments and similar charges, or imposed in connection
with litigation or asserted claims, either not delinquent or contested in good
faith by appropriate proceedings and as to which the Company or a Subsidiary
thereof shall have set aside on its books such reserves as it deems adequate;
(vi) Liens incurred, or pledges and deposits made, in connection with workers'
compensation, unemployment insurance and other social security benefits, or
securing the performance of leases, contracts (other than for the repayment of
borrowed money), statutory obligations, progress payments, surety and appeal
bonds and other obligations of like nature, but only to the extent any of the
foregoing are incurred in good faith in the ordinary course of business; (vii)
Liens imposed by law, such as mechanics', carriers', warehousemen's,
materialmen's and vendors' Liens, incurred in good faith in the ordinary course
of business; (viii) zoning restrictions, easements, licenses, covenants,
reservations, restrictions on the use of real property or irregularities of
title incident thereto that do not in the aggregate materially detract from the
value of the property or assets of the Company or any of its Subsidiaries, as
the case may be, or materially impair the use of such property in the operation
of the Company's or any Subsidiary's business; (ix) Liens created by
Subsidiaries of the Company to secure Permitted Indebtedness of such
Subsidiaries to the Company or to other Subsidiaries thereof; (x) Liens on
assets acquired in connection with the incurrence of Purchase Money
Indebtedness; (xi) Liens granted in connection with the incurrence of
Refinancing Indebtedness; or (xii) Liens in favor of the Pension Benefits
Guaranty Corporation or otherwise arising out of or in connection with any
employee benefit plans.
"Permitted Working Capital Loans" means loans (or contingent
liability with respect to letters of credit) under revolving credit, working
capital or letter of credit facilities which may or may not be secured by a
lien on inventory and/or Receivables that the Company or any Subsidiary of the
Company may have from time to time, to the extent that the aggregate principal
amount of all Indebtedness outstanding under all such facilities at any time
does not exceed the value of the inventory and Receivables on the books of the
Company and its Subsidiaries taken as a whole.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
or government or any agency or political subdivision thereof.
"Plan of Reorganization" means the Company's Amended
Consolidated Plan of Reorganization, as amended from time to time.
"Pledged Collateral" shall have the meaning assigned to such
term in the Collateral Agency Agreement.
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"Principal" of a debt security means the principal of such
security plus the then applicable premium, if any, on such security and less
the amount, if any, of any unamortized original issue discount.
"Purchase Money Indebtedness" means any Indebtedness incurred
by the Company or any of its Subsidiaries in connection with the acquisition by
the Company or such Subsidiary, after the Effective Date, of equipment or other
fixed assets, including Indebtedness incurred to finance, refinance or refund
the cost (including the cost of construction) of such assets; provided that (i)
the principal amount of such Indebtedness does not exceed the fair market value
of the assets being acquired or the cost of construction paid by or charged to
the Company or such Subsidiary and (ii) such Indebtedness shall not be secured
by any assets of the Company or any Subsidiary of the Company other than the
assets with respect to which such Indebtedness is incurred.
"Receivables" means all "accounts", all "chattel paper", all
"instruments" evidencing "accounts" and all proceeds thereof, as each such term
is defined in the Uniform Commercial Code as in effect in the State of New York
on the Effective Date.
"Redemption Price" has the meaning assigned to such term in
Section 3.07 hereof.
"Refinancing Indebtedness" means Indebtedness the proceeds of
which are used to refinance or refund then outstanding Permitted Indebtedness
of the Company or its Subsidiaries if such refinancing or refunding
Indebtedness (i) does not have a Principal amount in excess of the Principal
amount of the Indebtedness being so refinanced or refunded, plus customary
fees, expenses and costs related to the incurrence of such Refinancing
Indebtedness; (ii) gives its holders no more collateral and no more Guaranties
from the Company and its Subsidiaries than the Indebtedness being refinanced;
(iii) amortizes or matures no more quickly than the Indebtedness being
refinanced; (iv) is at least as junior or no more senior in right of payment to
the Securities, as the case may be, as the Indebtedness being refinanced; (v)
is issued by the Company, if the Indebtedness being refinanced was issued by
the Company, and (vi) is otherwise on terms that, taken as a whole, are at
least as favorable to the borrower as those of the Indebtedness being
refinanced.
"Registrar" has the meaning assigned to such term in Section
2.03 hereof.
"Sale of Assets" means any sale, lease or other conveyance of
assets (including by way of merger or consolidation or pursuant to a
sale-and-leaseback transaction) of the Company or any of its Subsidiaries
(including the Capital Stock of any Subsidiary of the Company but excluding the
Capital Stock of the Company), as the case may be, not made in the ordinary
course of business (provided that any disposition of all or substantially all
of the stock or assets of any Subsidiary of the Company or the assets of any
division or line or business of the Company or any of its Subsidiaries shall
not be deemed to be in the ordinary course of business), if and to the extent
(but only to the extent) that all such sales, leases and other conveyances not
made in the ordinary course of business from and after the Effective
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Date result in aggregate Net Proceeds in excess of $5 million; provided,
however, that the term "Sale of Assets" shall not include (i) any consolidation
or merger involving the Company for the purpose of reincorporating the Company
in another jurisdiction or (ii) the involvement of the Company or any
Subsidiary in a merger, consolidation or reorganization approved by the holders
of 75% or more of the then outstanding principal amount of the Securities or
(iii) any sale, lease, conveyance or other disposition of assets among or
between the Company and one of its Subsidiaries or among or between such
Subsidiaries, including, without limitation, the merger of any such Subsidiary
with and into the Company or any other Subsidiary of the Company, (iv) any
sale, lease, conveyance or other disposition of any assets of the Company or
any Subsidiary, the proceeds of which are reinvested substantially
contemporaneously with their receipt in the acquisition or improvement of
similar assets of the Company or any Subsidiary. For purposes of this
Indenture, a reinvestment of proceeds shall be considered substantially
contemporaneous if completed within 24 months of receipt.
"SEC" means the Securities and Exchange Commission.
"Securities" means the Asset Proceeds Notes issued under this
Indenture.
"Subsidiary" shall mean any Person 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. 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.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
Section Section 77aaa-77bbbb) as in effect on the date of this Indenture,
except as provided in Section 9.03.
"Trustee" means the party named as such in this Indenture
until a successor replaces it and thereafter means the successor.
"Trust Officer" means any officer of the Trustee assigned by
the Trustee to administer its corporate trust matters.
"U.S. Government Obligations" means direct non-callable
obligations of, or non-callable obligations guaranteed by, the United States of
America for the payment of which the full faith and credit of the United States
of America is pledged.
SECTION 1.02 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the
following meanings:
"indenture securities" means the Securities.
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"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company.
All other terms used in this Indenture that are not otherwise
defined herein and are defined by the TIA, are defined by TIA reference to
another statute, or are defined by SEC rule under the TIA have the meanings so
assigned to them.
SECTION 1.03 RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with generally accepted
accounting principles [in effect on the date hereof];
(3) "or" is not exclusive;
(4) words in the singular include the plural and in the
plural include the singular except where the context manifestly
otherwise requires;
(5) provisions apply to successive events and
transactions; and
(6) "herein", "hereof" and other words of similar import
refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision.
ARTICLE 2.
THE SECURITIES
SECTION 2.01 FORM AND DATING.
The Securities, the notation thereon relating to the Guarantee
Agreement and the Trustee's certificate of authentication shall be
substantially in the form set forth in Exhibit B, which is incorporated in and
forms a part of this Indenture. The Securities may have such notations,
legends or endorsements as are required by law, stock exchange rule or usage.
Each Security shall be dated the date of its authentication.
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SECTION 2.02 EXECUTION AND AUTHENTICATION.
Two Officers shall sign the Securities for the Company by
manual or facsimile signature. The Company's seal shall be reproduced on the
Securities. An Officer of the Guarantor shall sign the notation on the
Securities relating to the Guarantor by manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds
that office at the time the Security is authenticated, the Security shall
nevertheless be valid.
A Security shall not be valid until authenticated by the
manual or facsimile signature of the Trustee. The signature shall be
conclusive evidence that the Security has been authenticated by the Trustee
under this Indenture.
The Trustee shall authenticate Securities for original issue
in the aggregate principal amount of up to $------------ upon a written order
of the Company signed by two Officers or by an Officer and an Assistant
Treasurer or Assistant Secretary of the Company. Such order shall specify the
amount of Securities to be authenticated and the date on which the original
issue of Securities is to be authenticated. The Trustee shall hereafter, from
time to time, authenticate additional Securities for issuance pursuant to
Section 4.01 upon a written order of the Company signed by two Officers or by
an Officer and an Assistant Treasurer or Assistant Secretary of the Company
specifying the amount of Securities to be authenticated and the date on which
such later issue of Securities is to be authenticated. The aggregate principal
amount of Securities outstanding at any time may not exceed $------------
million Securities issued pursuant to this paragraph except as provided in
Section 2.07.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Securities. An authenticating agent may
authenticate Securities whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as an Agent to deal with
the Company or any Affiliate.
The Securities shall be issuable only in registered form
without coupons and only in denominations of $1,000 and integral multiples
thereof.
SECTION 2.03 REGISTRAR AND PAYING AGENT.
The Company shall maintain in the Borough of Manhattan, The
City of New York, an office or agency where Securities may be presented for
registration of transfer or for exchange (the "Registrar"), and an office or
agency where Securities may be presented for payment (the "Paying Agent"). The
Registrar shall keep a register of the Securities and of their transfer and
exchange. The Company may appoint or change one or more co-registrars and one
or more additional paying agents without notice, and may act in any such
capacity on its own behalf provided that if the Trustee is acting as registrar
or paying
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agent, the Company shall give the Trustee at least five Business Days prior
written notice of such change. The term "Paying Agent" includes any additional
paying agent.
The Company shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture. The agreement shall implement
the provisions of this Indenture that relate to such Agent. The Company shall
notify the Trustee of the name and address of any Agent not a party to this
Indenture. If the Company fails to maintain a Registrar or Paying Agent, the
Trustee shall act as such.
The Company initially appoints the Trustee as Registrar and
Paying Agent.
SECTION 2.04 PAYING AGENT TO HOLD MONEY IN TRUST.
Each Paying Agent shall hold in trust for the benefit of the
Securityholders or the Trustee all moneys held by the Paying Agent for the
payment of principal of or interest on the Securities (whether such money has
been paid to it by the Company or the Guarantor), and shall notify the Trustee
of any default by the Company in making any such payment. While any such
default continues, the Trustee may require a Paying Agent to pay all money held
by it to the Trustee. The Company may at any time require a Paying Agent to
pay all money held by it to the Trustee. Upon payment over to the Trustee, the
Paying Agent shall have no further liability for the money. If the Company
acts as Paying Agent, it shall segregate and hold as a separate trust fund all
money held by it as Paying Agent.
SECTION 2.05 SECURITYHOLDER LISTS.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Securityholders. If the Trustee is not the Registrar, the Company
shall furnish to the Trustee on or before each interest payment date and at
such other times as the Trustee may request in writing a list, in such form and
as of such date as the Trustee may reasonably require, of the names and
addresses of Securityholders.
SECTION 2.06 TRANSFER AND EXCHANGE.
When Securities are presented to the Registrar or a
co-Registrar with a request to register their transfer or to exchange them for
an equal principal amount of Securities of other authorized denominations
accompanied by a written instrument or instruments of transfer, in form
satisfactory to the Company and the Registrar, duly executed by the registered
owner or by his or her attorney duly authorized in writing, the Registrar shall
register the transfer or make the exchange if the requirements of Section
8-401(1) of the New York Uniform Commercial Code are met. To permit
registrations of transfer and exchanges, the Trustee shall authenticate
Securities (accompanied by notations relating to the Guarantee Agreement duly
endorsed by the Guarantor) at the Registrar's request. The Company or the
Trustee, as the case may be, shall not be required (i) to issue, authenticate,
register the transfer of or exchange any Security during a period beginning at
the opening of business 15
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days before the mailing of a notice of redemption of the Securities selected
for redemption under Section 3.03 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 Securities being redeemed in part.
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 transfer, registration of transfer or exchange
of Securities, other than exchanges pursuant to Sections 2.10, 3.06 or 9.05 not
involving any transfer.
Anything in this Indenture to the contrary notwithstanding,
but subject to the payment of interest to the Holders of the Securities on the
applicable record date, the parties hereto and any agent thereof may deem and
treat the Holder of any Securities, prior to due presentment thereof for
registration of transfer, as the absolute owner of such Securities for all
purposes (whether or not the Securities shall be overdue and notwithstanding
any notation of ownership or other writing thereon) and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
any notice to the contrary.
SECTION 2.07 REPLACEMENT SECURITIES.
If the Holder of a Security claims that the Security has been
mutilated, lost, destroyed or wrongfully taken, the Company shall execute and
issue and, upon the Company's request, the Trustee shall authenticate
(accompanied by a notation relating to the Guarantee Agreement duly endorsed by
the Guarantor) and deliver a replacement Security if their respective
reasonable requirements as well as the requirements of applicable law are met
and, in the case of a mutilated Security, such mutilated Security is
surrendered to the Trustee. If required by the Trustee, the Guarantor or the
Company, an indemnity bond must be furnished by such Holder in an amount
sufficient in the judgment of the Trustee or the Company, as the case may be,
to indemnify and protect the Company, the Guarantor, the Trustee and any other
Agent and hold them harmless from any loss which any of them may suffer if a
Security is replaced. The Company or the Trustee may charge for its reasonable
expenses in replacing a Security.
If any mutilated, destroyed or wrongfully taken 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 when due.
Every replacement Security is an additional obligation of the
Company.
SECTION 2.08 OUTSTANDING SECURITIES.
Securities outstanding at any time are all the Securities
authenticated by the Trustee except those canceled by it, those delivered to it
for cancellation, and those described in this Section as not outstanding. A
Security does not cease to be outstanding solely
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because the Company, the Guarantor or one of their Subsidiaries or Affiliates
is a Holder of the Security.
If a Security is replaced pursuant to Section 2.07, it ceases
to be outstanding unless the Trustee receives proof satisfactory to it, or a
court holds, that the replaced Security is held by a bona fide purchaser.
If the Paying Agent (if other than the Company) or the Trustee
holds on a redemption date or Maturity Date money sufficient to pay the
principal of, and accrued interest on, the Securities payable on that date,
then on and after that date such Securities shall be deemed to be no longer
outstanding and interest on them shall cease to accrue.
SECTION 2.09 SECURITIES HELD BY THE COMPANY OR AN AFFILIATE.
In determining whether the Holders of the required principal
amount of Securities have concurred in any direction, request, waiver or
consent under this Indenture, Securities owned by the Company or the Guarantor
or any Subsidiary or Affiliate of the Company or the Guarantor shall be
disregarded, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, request, waiver or
consent, only Securities which the Trustee knows are so owned shall be so
disregarded.
SECTION 2.10 TEMPORARY SECURITIES.
Until definitive Securities are ready for delivery, the
Company may prepare and execute and the Trustee shall authenticate (accompanied
by a notation relating to the Guarantee Agreement duly endorsed by the
Guarantor) and deliver temporary Securities. Temporary Securities shall be
substantially in the form of definitive Securities, but may have such
variations as the Company considers appropriate for temporary Securities. The
Company shall prepare and execute and the Trustee shall authenticate and
deliver definitive Securities in exchange for temporary Securities without
unreasonable delay.
SECTION 2.11 CANCELLATION.
The Company may at any time deliver Securities to the Trustee
for cancellation. The Registrar and Paying Agent shall forward to the Trustee
any Securities surrendered to them for registration of transfer, exchange or
payment. The Trustee shall cancel all Securities surrendered for registration
of transfer, exchange, payment or cancellation and, at the option of the
Company, shall destroy canceled Securities and deliver a certificate of any
such destruction to the Company. The Company may not issue new Securities to
replace Securities that it has paid or delivered to the Trustee for
cancellation.
SECTION 2.12 DEFAULTED INTEREST.
If and to the extent the Company defaults in a payment of
interest on the Securities, it shall pay the defaulted interest in any lawful
manner. It may pay the defaulted
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interest to the Persons who are Securityholders on a subsequent special record
date. The Company shall fix such record date and payment date. At least 15
days before the record date, the Company shall mail to Securityholders, with a
copy to the Trustee, a notice that states the record date, payment date and
amount of interest to be paid.
SECTION 2.13 DEEMED REPAYMENTS; DEFERRAL OF MATURITY DATE.
If the Guarantor is required to make any payment of "Guarantor
Obligations", as defined in the Guarantee Agreement, and actually makes such
payment (whether in cash, Payment Notes (as clarified in the Guarantee
Agreement) or a combination thereof), the Securities shall thereupon
immediately (and without the need for any notice or action on the part of any
Person) be deemed to have been repaid in an amount, and shall be reduced in
amount, such that the amount outstanding under the Securities thereafter (all
of which shall be deemed to be principal) shall be equal to the excess, if any,
of (a) the sum of (1) $---------- plus (2) interest accrued on such amount
(reduced from time to time by all payments (principal and interest) made by the
Company under the Securities and by the amount (principal and accrued interest)
of any Securities redeemed or otherwise purchased (including, without
limitation, any purchase on the open market) by the Company, its Subsidiaries
or its Affiliates) from the date hereof to the date in respect of which such
calculation is made, at the rate of 10% per annum, compounded on each interest
payment date (computed on the basis of a 360-day year of 12 30-day months),
over (b) the sum of (A) all amounts theretofore paid (principal and interest)
by the Company under the Securities (other than those held by the Company, its
Subsidiaries or its Affiliates), (B) the amount (principal and accrued
interest) of Securities theretofore redeemed or otherwise purchased (including,
without limitation, any purchase on the open market) by the Company, its
Subsidiaries or its Affiliates (other than from the Company, its Subsidiaries
or any of its Affiliates) and (C) all amounts of "Guarantor Obligations", as
defined in the Guarantee Agreement, paid under the Guarantee Agreement (whether
in cash, Payment Notes or a combination thereof). Such reduction shall be made
proportionately among all Securities based on the principal amounts outstanding
of such Securities immediately prior to such deemed repayment. Upon surrender
of a Security that has been deemed to have been repaid in part, the Trustee
shall authenticate for the Holder a new Security equal in principal amount to
the portion of the Security remaining after such deemed repayment.
To the extent permitted under the TIA (taking into
consideration any waivers or no action positions received by the Company or the
Guarantor from the SEC, written notice of which shall be provided to the
Trustee), the Trustee may, with the concurrence of Holders owning an aggregate
of ---% of the principal amount of the outstanding Securities, elect to defer
the maturity dates under the Guarantee Agreement as contemplated in Section 2
thereof. Upon the delivery of a notice (a "Deferral Notice") by the Trustee so
deferring such maturity date, the Maturity Date hereunder shall be
automatically deferred for one year from the date of the original Maturity Date
hereunder and any Default or Event of Default hereunder arising as a result of
any nonpayment on the Maturity Date in effect prior to such deferral shall be
automatically deemed waived without any further action or notice by any Person.
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ARTICLE 3.
REDEMPTION
SECTION 3.01 NOTICES TO TRUSTEE.
If the Company wants to redeem Securities pursuant to Section
3.07 or is required to redeem Securities pursuant to Section 3.08, it shall
notify the Guarantor and the Trustee, by means of an Officer's Certificate at
least 60 days prior to the redemption date (unless a shorter notice period
shall be satisfactory to the Trustee), of the redemption date and the principal
amount of Securities to be redeemed. If the Company elects to reduce the
amount of Securities required to be redeemed pursuant to Section 3.08 as
provided therein, it shall notify the Trustee at least 60 days prior to the
redemption date (unless a shorter notice period shall be satisfactory to the
Trustee) of the amount of the reduction and the basis for it. If the Company
elects to credit against any such redemption Securities it has not previously
delivered to the Trustee for cancellation, it shall deliver the Securities with
the notice.
SECTION 3.02 SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the Securities are to be redeemed, the
Trustee shall select the Securities to be redeemed on a pro rata basis, by lot
or such other method as the Trustee shall deem fair and equitable. The Trustee
shall make the selection from Securities outstanding and not previously called
for redemption. The Trustee may select for redemption portions of the
principal of Securities that have denominations larger than $1,000. The
Securities and portions of them it selects shall be in amounts of $1,000 or
whole multiples of $1,000. The provisions of this Indenture that apply to
Securities called for redemption also apply to portions of Securities called
for redemption. For purposes of any such selection the Company will, upon
request of the Trustee, close for a period of 15 days preceding the mailing of
any notice of redemption the registry books of the Company with respect to the
Securities.
SECTION 3.03 NOTICE OF REDEMPTION.
At least 15 days but not more than 60 days before a redemption
date, the Company shall mail a notice of redemption by first-class mail to each
Holder whose Securities are to be redeemed.
The notice shall identify the Securities and the principal
amount thereof to be redeemed and shall state:
(1) the redemption date;
(2) the Redemption Price (and the amount of accrued
interest to be paid on the Securities called for redemption);
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(3) the name and address of the Paying Agent;
(4) the provisions of the Securities and this Indenture
pursuant to which the Securities are to be redeemed;
(5) that Securities called for redemption must be
surrendered to the Paying Agent to collect the Redemption Price;
(6) that interest on Securities called for redemption
ceases to accrue on and after the redemption date unless the Company
shall default in the payment of the Redemption Price; and
(7) the CUSIP number of the Securities.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense.
SECTION 3.04 EFFECT OF NOTICE OF REDEMPTION.
Once a notice of redemption is mailed in accordance with the
provisions hereof, the Securities called for redemption become due and payable
on the redemption date at the Redemption Price and, on and after such
redemption date (unless the Company shall default in the payment of the
Redemption Price), such Securities shall cease to bear interest and such
Securities shall be deemed not to be outstanding hereunder and shall not be
entitled to any benefits hereunder, except to receive payment of the Redemption
Price together with all accrued interest to the date fixed for redemption.
Upon surrender to the Paying Agent, such Securities shall be paid at the
Redemption Price plus accrued interest to the redemption date.
SECTION 3.05 DEPOSIT OF REDEMPTION PRICE.
On or before the Business Day immediately preceding the
redemption date, the Company shall deposit with the Paying Agent money in funds
immediately available on the redemption date sufficient to pay the Redemption
Price of and accrued interest on all Securities to be redeemed on that date.
SECTION 3.06 SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is redeemed in part, the
Trustee shall authenticate for the Holder a new Security equal in principal
amount to the unredeemed portion of the Security surrendered.
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SECTION 3.07 OPTIONAL REDEMPTION.
The Securities may be redeemed at the option of the Company in
whole at any time or in part from time to time at a price equal to the
principal amount to be redeemed (the "Redemption Price") plus accrued and
unpaid interest to the date of such optional redemption. The Securities may
also be redeemed or prepaid by purchase by the Company on the open market, from
time to time, without premium or penalty.
SECTION 3.08 REDEMPTION OR RETIREMENT UPON SALE OF ASSETS.
Following each Sale of Assets by the Company or any Subsidiary
(a) all of the Net Proceeds received as a result of the Sale of Assets (after
setting aside cash reserves such that the Company shall have cash equal to at
least $5 million of working capital) shall be deposited in the Cash Collateral
Account (as defined in the Collateral Agency Agreement) and all non-cash
proceeds received by the Company and its Subsidiaries in respect of the Sale of
Assets shall become Pledged Collateral immediately upon receipt thereof, and
(b) so long as there shall be at least $5 million in the Cash Collateral
Account after such deposit, all such Net Proceeds in the Cash Collateral
Account shall be used to redeem Securities at the then current Redemption Price
within 120 days after the receipt by the Company or any such Subsidiary, as the
case may be, of such proceeds. With the approval of the Board of Directors,
the Company may elect, for purposes of this Section 3.08, to be deemed to have
deposited such Net Proceeds in the Cash Collateral Account and to have used
them to redeem Securities pursuant to the preceding sentence to the extent it
shall acquire, before or after such Sale of Assets, in lieu of making all or
any portion of the redemptions provided for in this Section 3.08, through open
market or other purchases, Securities with a principal amount equal to the
principal amount of Securities which could have been redeemed with such amount
of Net Proceeds (upon payment of the Redemption Price plus accrued and unpaid
interest thereon) and that have not been previously credited against
redemptions or purchases upon a Sale of Assets, provided any Securities so
purchased shall be delivered to the Trustee for cancellation within 120 days
after the receipt of such Net Proceeds.
ARTICLE 4.
COVENANTS
SECTION 4.01 PAYMENT OF SECURITIES.
The Company shall pay the principal of and interest on the
Securities on the dates and in the manner provided in the Securities and this
Indenture. Principal and interest shall be considered paid on the date due if
the Paying Agent (if other than the Company) holds on that date money
sufficient to pay all principal and interest then due. The Company shall pay
interest on overdue principal at the rate borne by the Securities. At the
Company's election, in lieu of providing for a cash payment on any interest
payment date prior to the Maturity Date, the Company may pay all or any portion
of the interest due on any such
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interest payment date by authorizing the Trustee to authenticate and deliver as
an interest payment additional Securities in an aggregate principal amount
equal to the amount of such interest payment or the portion thereof not paid in
cash. The Trustee shall distribute such Securities authorized in lieu of cash
to Holders pro rata, by lot or in such other manner, as the Trustee shall deem
fair and equitable including providing for cash payments of interest amounts
below $1,000.
SECTION 4.02 MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in the Borough of Manhattan, The
City of New York, an office or agency where Securities may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities 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 presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee.
The Company may also from time to time designate one or more
other offices or agencies where the Securities 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 the Borough of Manhattan, The City of New York, 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.
The Company hereby designates the Corporate Trust Office of
the Trustee as an agency of the Company in accordance with Section 2.03.
SECTION 4.03 SALE OF ASSETS AND SUBSIDIARIES; CORPORATE EXISTENCE.
(a) The Company shall use all reasonable commercial
efforts to cause its assets and its Subsidiaries expeditiously to be sold at
the best obtainable prices to produce Net Proceeds to be applied to redemption
and repayment of the Securities.
(b) Except as permitted in Article 5, the Company will do
or cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence and, pending its sale or liquidation, the
corporate existence of each Subsidiary of the Company; provided, however, that
the Company shall not be required to preserve any corporate existence if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and its Subsidiaries as
a whole and that the loss thereof is not disadvantageous in any material
respect to the Holders.
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SECTION 4.04 PAYMENT OF TAXES.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent (i) all taxes, assessments
and governmental charges levied or imposed upon the Company or any Subsidiary
of the Company, and (ii) all lawful claims for labor, materials and supplies
which, if unpaid, might by law become a material Lien upon the property of the
Company or any Subsidiary of the Company; provided, however, that the Company
shall not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim whose amount, applicability or validity
is being contested in good faith by appropriate proceedings and for which it
has set aside on its books such reserves as it deems adequate.
SECTION 4.05 MAINTENANCE OF PROPERTIES.
Pending sale, the Company will cause the material properties
owned by the Company or any Subsidiary of the Company for use in the conduct of
its business or the business of any such Subsidiary to be maintained and kept
in good condition, repair and working order (subject to ordinary wear and tear)
and will cause to be made all necessary repairs thereof, all as in the judgment
of the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted; provided, however, that
nothing in this Section shall prevent the Company from discontinuing the
maintenance or repair of any such properties if such discontinuance is, in the
judgment of the Company, desirable in the conduct of its business or the
business of any Subsidiary or in connection with the sale of any assets or
Subsidiary and not disadvantageous in any material respect to the Holders.
SECTION 4.06 SEC REPORTS.
At such times as the Company may be required to file reports
and other information with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act, the Company shall deliver to the Trustee, within 15 days after
the Company files with the SEC copies of its annual and quarterly reports and
other information, documents and reports (or copies of such portions of any of
the foregoing as the SEC may by rules and regulations prescribe) copies of such
documents which it is required to file pursuant to such Sections. The Company
will mail copies of its annual reports and quarterly reports as filed with the
SEC, other than exhibits to any such report unless such exhibits are themselves
incorporated by reference in such report, to any Securityholder upon request.
If the Company is not subject or shall cease to be subject to the requirements
of Section 13 or 15(d) of the Exchange Act, the Company shall deliver to the
Trustee and to each Securityholder, within 15 days after the date by which it
would have been required to make such a filing with the SEC, audited annual
financial statements prepared in accordance with generally accepted accounting
principles and unaudited condensed quarterly financial statements, including
any notes thereto, each comparable to that which the Company would have been
required to include in such annual reports, information, documents or other
reports if the Company were then
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subject to the requirements of Section 13 or 15(d) of the Exchange Act. The
Company also shall comply with the other provisions of TIA Section 314(a).
SECTION 4.07 COMPLIANCE CERTIFICATE.
The Company shall deliver to the Trustee within 120 days after
the end of each fiscal year of the Company, and within 60 days after the end of
each of the first three fiscal quarters of the Company, an Officer's
Certificate stating that, after a review of the activities of the Company
during such period and of the Company's performance under this Indenture,
whether or not, to the best knowledge of the signer thereof based on such
review, there has been any Default or Event of Default by the Company in
performing any of its Obligations under this Indenture or the Securities. If
the signer does know of any such Default or Event of Default, the certificate
shall describe the Default or Event of Default and its status.
SECTION 4.08 LIMITATION ON STOCK PAYMENTS AND INVESTMENTS.
(a) The Company will not declare any dividends (other
than dividends payable solely in Capital Stock of the Company) on any Capital
Stock of the Company or make any payment on account of the purchase, redemption
or other retirement of any shares of such stock or make any distribution in
respect thereof.
(b) The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, make any Investment.
SECTION 4.09 TRANSACTIONS WITH AFFILIATES.
The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly (i) sell, lease, exchange, swap,
transfer or otherwise dispose of any material amount of their respective
properties, assets or securities to, (ii) purchase or lease any material amount
of property, assets or securities from, (iii) make any material investment in,
or (iv) enter into any material contract or agreement (other than contracts or
agreements substantially in the form described or incorporated by reference in
the Company's Disclosure Statement approved by the United States Bankruptcy
Court) with or for the benefit of, an Affiliate (other than a Subsidiary of the
Company), other than (A) transactions which the Board of Directors of the
Company in good faith determines are on terms at least as favorable to the
Company or such Subsidiary as could be obtained from an unaffiliated party and
are consistent with Section 4.03(a) (provided that if any such transaction and
any related transactions involve an amount or consideration having a fair
market value in excess of $1,000,000, a majority of the directors who are not
also employees, officers, directors or otherwise affiliated with any Affiliate
which is a party to such transaction concur in such determination); (B)
employment, compensation and similar arrangements for the benefit of directors
and employees which the Board of Directors of the Company in good faith
determines to be reasonable and in the best interests of the Company; and (C)
transactions contemplated by the Management Agreement of even date herewith
between the Company
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and the Guarantor. Nothing in this Section 4.09 shall prohibit any
transactions pursuant to any agreement existing as of the Effective Date.
SECTION 4.10 LIMITATION ON ADDITIONAL INDEBTEDNESS AND LIENS.
(a) The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, create, incur, issue, assume,
guarantee or otherwise become directly or indirectly liable with respect to any
Indebtedness other than Permitted Indebtedness.
(b) The Company will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien on any asset
owned by the Company or any of its Subsidiaries except Permitted Liens.
SECTION 4.11 CONFLICTING AGREEMENTS.
The Company will not, and will not permit any of its
Subsidiaries to, enter into any agreement or execute any instrument (other than
agreements or instruments that relate solely to Permitted Working Capital Loans
or which exist on the Effective Date) that by its terms expressly prohibits or
otherwise would have the effect of prohibiting the Company from redeeming or
otherwise making any payments on or with respect to the Securities pursuant to
their terms and the terms of this Indenture.
SECTION 4.12 LIMITATION ON DIVIDENDS AND CERTAIN OTHER RESTRICTIONS
AFFECTING SUBSIDIARIES.
Except as otherwise provided by the terms of this Indenture
and any Permitted Working Capital Loans, the Company will not, and will not
permit any of its Subsidiaries to, create or otherwise cause or suffer to exist
or to become effective any encumbrance or restriction on the ability of any of
its Subsidiaries (i) to pay dividends, make loans, extend guarantees or make
any other distributions to the Company or to other Subsidiaries, or to pay any
Indebtedness owed to the Company or a Subsidiary of the Company; (ii) to make
loans or advances to the Company or another Subsidiary; or (iii) to transfer
any of their respective properties or assets to the Company, other than such
encumbrances or restrictions existing under or by reason of (a) applicable law,
(b) customary non-assignment provisions of any lease governing a leasehold
interest of the Company or any of its Subsidiaries, and (c) restrictions on the
transfer of assets acquired in connection with the incurrence of Purchase Money
Indebtedness.
SECTION 4.13 WAIVER OF STAY, EXTENSION OR USURY 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
or any usury law or other law which would prohibit or release the Company from
paying all or any portion of the principal or interest on the Securities as
contemplated herein, wherever enacted, now or at any time hereafter in
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force, or which may affect the covenants or the performance of this Indenture,
and (to the extent that it may lawfully do so) the Company 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 it will suffer and permit the execution of every such power as
though no such law had been enacted.
SECTION 4.14 MAINTENANCE OF INSURANCE AND RECORDS, COMPLIANCE WITH LAW.
(a) Except to the extent that, in the exercise of its
good faith business judgment, the Company believes the cost to be incurred in
procuring and/or maintaining insurance to be excessive in view of the benefit
to be derived therefrom, the Company shall, and shall cause its Subsidiaries
to, maintain with financially sound and reputable insurers such (i) liability
and property and casualty insurance as may be required by law and (ii) such
other insurance, to such extent and against such hazards and liabilities (but
subject to reduction in coverage amount appropriate in light of any
divestitures of assets made from time to time) equivalent to the insurance that
it currently maintains.
(b) The Company shall keep, or cause to be kept, true
books and records and accounts in which entries will be made of all of the
business transactions of the Company and its Subsidiaries which shall be full
and correct in all material respects, in accordance with sound business
practices, and reflect in their respective financial statements adequate
accruals and appropriate reserves, all in accordance with generally accepted
accounting principles.
(c) The Company shall, and shall cause its Subsidiaries
to, comply with all statutes, laws, ordinances, or governmental rules and
regulations to which it is subject, noncompliance with which would materially
adversely affect the prospects, earnings, properties, assets or condition,
financial or otherwise, of the Company and its Subsidiaries taken as a whole.
SECTION 4.15 LIMITATION ON REDEMPTION OF CERTAIN INDEBTEDNESS.
The Company will not, and will not permit any of its
Subsidiaries to, (i) redeem pursuant to the optional redemption provisions
thereof, or make any optional payment of principal on, any Permitted
Indebtedness; (ii) defease Permitted Indebtedness; or (iii) issue to the
holders of Permitted Indebtedness in exchange therefor any property or assets
(other than the proceeds of any Refinancing Indebtedness incurred with respect
to such Permitted Indebtedness or securities which do not require payments of
principal or interest and are not mandatorily redeemable on or prior to the
Maturity Date).
SECTION 4.16 VALUE OF CLAIMS REPRESENTED BY SECURITIES.
The parties hereto covenant and agree that in any case
commenced under Chapter 11 of Title 11 of the United States Code subsequent to
the Effective Date involving the Company, the claims represented by the
Securities shall equal the full principal amount
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of the Securities, plus accrued and unpaid interest at the stated rates set
forth in the Securities.
SECTION 4.17 NOTICE OF DEFAULT.
In the event that any Default under this Indenture shall
occur, the Company will give prompt written notice of such Default to the
Trustee, specifying the nature and status of such Default and the steps which
the Company or its Subsidiaries have taken or propose to take in order to cure
such Default.
SECTION 4.18 INVESTMENT COMPANY ACT OF 1940
The Company will not, and will not permit any of its
Subsidiaries to, take any action resulting in its becoming an "investment
company" (as such term is defined in the Investment Company Act of 1940, as
amended).
ARTICLE 5.
SUCCESSORS
SECTION 5.01 WHEN COMPANY MAY MERGE, ETC.
The Company shall not consolidate or merge with or into any
Person unless:
(i) the Person formed by or surviving any such
consolidation or merger (if other than the Company) is an entity
organized and existing under the laws of the United States, any state
thereof or the District of Columbia; and
(ii) the Person formed by or surviving any such
consolidation or merger (if other than the Company) assumes by
supplemental indenture all the obligations of the Company under the
Securities and this Indenture.
The Company shall deliver to the Trustee prior to the
consummation of the proposed transaction an Officer's Certificate to the
foregoing effect and an Opinion of Counsel stating that the proposed
transaction and supplemental indenture comply with this Indenture.
SECTION 5.02 SUCCESSOR SUBSTITUTED.
Upon any consolidation or merger in accordance with Section
5.01, the successor Person formed by such consolidation or into which the
Company is merged shall succeed to, and be substituted for, and may exercise
every right and power of, and shall assume every duty and obligation of, the
Company under this Indenture with the same effect as if such successor
corporation had been named as the Company herein. When the
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successor corporation assumes all obligations of the Company hereunder, all
obligations of the predecessor corporation shall terminate.
ARTICLE 6.
DEFAULTS AND REMEDIES
SECTION 6.01 EVENTS OF DEFAULT.
An "Event of Default" occurs if:
(1) the Company defaults in the payment of interest on
any Security when the same becomes due and payable, whether at
maturity, in connection with any redemption, by acceleration or
otherwise, and such default continues for a period of 30 days;
(2) the Company defaults in the payment of the principal
of any Security when the same becomes due and payable, whether at
maturity, in connection with any redemption, by acceleration or
otherwise and such default continues for a period of 30 days after the
earlier of (i) the date on which written notice of such failure,
requiring the Company to remedy the same, shall have been given to the
Company by the Trustee, or to the Company and the Trustee by the
Holders of at least 25% in aggregate principal amount of the
Securities at the time outstanding or (ii) the date on which the
Company had Actual Knowledge of such failure;
(3) the Company or any of its Subsidiaries fails to
observe or perform in any material respect any of its other covenants
or agreements in the Securities, this Indenture or the Collateral
Agency Agreement or any other agreement or instrument now or hereafter
entered into creating, perfecting, or evidencing the Lien in and on
any of the Pledged Collateral in favor of the Collateral Agent for the
benefit of the Holders of the Securities, which failure continues for
a period of 30 days after the earlier of (i) the date on which written
notice of such failure, requiring the Company to remedy the same,
shall have been given to the Company by the Trustee, or to the Company
and the Trustee by the Holders of at least 25% in aggregate principal
amount of the Securities at the time outstanding or (ii) the date on
which the Company had Actual Knowledge of such failure;
(4) (a) the Company or any of its Subsidiaries fails to
pay when due (whether at maturity, in connection with any mandatory
amortization or redemption, by acceleration or otherwise) any
principal or interest on any Indebtedness with an aggregate
outstanding principal amount in excess of $2 million, whether any such
Indebtedness is outstanding as of the date of this Indenture or is
hereafter outstanding, which default continues for the greater of any
period of grace applicable thereto or 60 days from the date of such
default, or (b) a default or event of default, as defined in
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one or more indentures, agreements or other instruments evidencing or
under which the Company or any of its Subsidiaries individually or
collectively have, as of the date of this Indenture or hereafter,
outstanding at least $2 million aggregate principal amount of
Indebtedness, shall happen and be continuing and such Indebtedness
shall have been accelerated so that it is due and payable prior to the
date on which it would otherwise have become due and payable, and such
acceleration shall not be rescinded or annulled within 60 days after
the earlier of (i) the date on which written notice of such
acceleration shall have been given to the Company by the Trustee, or
to the Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Securities at the time outstanding
or (ii) the date on which the Company had Actual Knowledge of such
acceleration; provided that if such default or event of default under
such indenture or other instrument shall be remedied or cured by the
Company or the Subsidiary or waived by the holders of such
Indebtedness, then the Event of Default under this Indenture by reason
thereof shall be deemed likewise to have been thereupon remedied,
cured or waived without further action upon the part of either the
Trustee or any of the Holders of Securities;
(5) one or more final judgments against the Company or
any of its Subsidiaries for payments of money which in the aggregate
exceed $2 million, are entered by a court of competent jurisdiction
and such judgments are not rescinded, annulled, stayed or discharged
within 90 days;
(6) the Company and its Subsidiaries, taken as a whole,
becomes insolvent;
(7) the Company or any of its material Subsidiaries,
pursuant to or within the meaning of any Bankruptcy Law:
(a) commences a voluntary case,
(b) consents to the entry of a judgment, decree
or order for relief against it in an involuntary case or
proceeding,
(c) consents to the appointment of a Custodian of
the Company or such material Subsidiary or for all or
substantially all of its property,
(d) makes a general assignment for the benefit of
its creditors, or
(e) applies for, consents to or acquiesces in the
appointment of, or taking possession by a Custodian;
(8) a court of competent jurisdiction enters a judgment,
decree or order for relief in respect of the Company or any of its
material Subsidiaries in an involuntary case or proceeding under any
Bankruptcy Law which shall
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(a) approve as properly filed a petition seeking
reorganization, arrangement, adjustment or composition;
(b) appoint a Custodian for any part of its
property; or
(c) order the winding up or liquidation of its
affairs;
and such judgment, decree or order remains unstayed and in effect for
a period of sixty (60) consecutive days; or
(9) any bankruptcy or insolvency petition or application
is filed, or any bankruptcy case or insolvency proceeding is commenced
against, the Company or any of its material Subsidiaries and such
petition, application, case or proceeding is not dismissed or stayed
within ninety (90) days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any
similar Federal or State law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law. The term "Actual Knowledge" means the actual knowledge of any
executive officer of the Company; provided, however, that each executive
officer of the Company shall be deemed to have actual knowledge of any fact
that would have come to such officer's attention if he or she had exercised
reasonable care in performing his or her duties, given the nature of his or her
duties and the Company's business and organization.
SECTION 6.02 ACCELERATION.
If an Event of Default (other than an Event of Default
specified in Section 6.01(6), (7), (8) or (9) occurs and is continuing, the
Trustee by notice to the Company, or the Holders of at least 25% in principal
amount of the Securities by notice to the Company and the Trustee, may declare
the principal of and accrued interest on all the Securities to be due and
payable. Upon such declaration such principal and interest shall be due and
payable immediately. If an Event of Default specified in Section 6.01(6), (7),
(8) or (9) occurs, all unpaid principal and accrued interest on the Securities
then outstanding shall ipso facto become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any
Securityholder. The Holders of at least 66 2/3% of the principal amount of the
Securities may rescind an acceleration and its consequences by notice to the
Trustee if the rescission would not conflict with any judgment or decree and if
the outstanding Events of Default have been cured or waived except for
nonpayments of any amounts that have become due solely because of the
acceleration. No such rescission shall affect any subsequent Default or impair
any right or remedy with respect thereto. In the event any Deferral Notice is
provided to the Guarantor as provided in Section 2.13, any previous
acceleration due to nonpayment on the Maturity Date in effect immediately prior
to such deferral shall be automatically rescinded without any further action or
notice by any Person and any Defaults or Events of Default arising as a result
of such nonpayment shall be automatically deemed waived without any further
action or notice by any Person.
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SECTION 6.03 OTHER REMEDIES.
Notwithstanding any other provision of this Indenture, if an
Event of Default occurs and is continuing, the Trustee may pursue any available
remedy by proceeding at law or in equity to collect the payment of principal of
or interest on the Securities or to enforce the performance of any provision of
the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. No remedy is exclusive of any other remedy. All remedies
are cumulative.
In case the Trustee shall have proceeded to enforce any rights
under this Indenture and such proceedings shall have been discontinued or
abandoned for any reason or shall have been determined adversely to the
Trustee, then and in every such case the Company, the Trustee and the Holders
shall, subject to any determination in such proceeding, be restored
respectively to their former positions and rights hereunder, and all rights,
remedies and powers of the Company and the Trustee shall continue as though no
such proceeding had been taken.
SECTION 6.04 WAIVER OF PAST DEFAULTS.
Subject to Sections 6.07 and 9.02, the Holders of at least 66
2/3% of the principal amount of the Securities by notice to the Trustee may
waive an existing Default or Event of Default and its consequences or an
existing Default or Event of Default under the Guarantee Agreement. When such
a Default or Event of Default is waived, it is cured and ceases.
SECTION 6.05 CONTROL BY MAJORITY.
The Holders of a majority in principal amount of the
Securities may 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 it under the Indenture and the Guarantee Agreement. The Trustee,
however, may refuse to follow any direction that conflicts with law, this
Indenture or the Guarantee Agreement, is unduly prejudicial to the rights of
any Securityholder or would subject the Trustee to personal liability;
provided, the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction. The Company may set a record
date for purposes of determining who may exercise such control.
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SECTION 6.06 LIMITATION ON SUITS.
Except as provided in Section 6.07, a Securityholder may
pursue a remedy with respect to this Indenture, the Guarantee Agreement or the
Securities only if:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default under the Indenture or the Guarantee
Agreement, as the case may be;
(2) the Holders of at least 25% in principal amount of
the Securities make a written request to the Trustee to pursue the
remedy;
(3) such Holder or Holders offer to the Trustee indemnity
reasonably satisfactory to the Trustee against any loss, liability or
expense;
(4) the Trustee does not comply with the request within
60 days after receipt of the request and the offer of indemnity; and
(5) during such 60-day period the Holders of a majority
in principal amount of the Securities do not give the Trustee a
direction inconsistent with the request.
A Securityholder may not use this Indenture or the Guarantee
Agreement to prejudice the rights of any other Securityholder or to obtain a
preference or priority over any other Securityholder.
SECTION 6.07 RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Subject only to Section 2.13 and 6.02 hereof, the right of any
Holder of a Security to receive payment of principal of and interest on the
Security or under the Guarantee Agreement, on or after the respective due dates
(prior to any acceleration) expressed in the Security or the Guarantee
Agreement, as the case may be, or to bring suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of the Holder, except that no Holder of Securities shall
have the right to institute any such suit if and to the extent that the
institution or prosecution thereof or the entry of judgment therein would,
under applicable law, result in the surrender, impairment, waiver or loss of
the Lien of the Collateral Agency Agreement upon any of the Pledged Collateral.
SECTION 6.08 COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(1) or (2)
occurs and is continuing, the Trustee may recover judgment in its own name and
as trustee of an express trust against the Company for the whole amount of
principal and interest in default.
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SECTION 6.09 TRUSTEE MAY FILE PROOFS OF CLAIMS.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee, any predecessor Trustee and the Securityholders allowed in any
judicial proceedings relative to the Company, the Guarantor, their creditors or
their property.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
of the Securities 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 of the
Securities in any such proceeding.
SECTION 6.10 PRIORITIES.
If the Trustee collects any money pursuant to this Article, it
shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Securityholders for amounts due and unpaid on the
Securities for principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Securities for principal and interest, respectively;
Third: to the Company or such other Person (including the
Guarantor) as is legally entitled thereto.
The Trustee may fix a record date and payment date for any
payment by it to Securityholders pursuant to this Section.
SECTION 6.11 UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require any party
litigating the suit other than the Trustee to file an undertaking to pay the
costs of the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in the suit,
having due regard to the merits and good faith of the claims or defenses made
by the party litigant. This Section does not apply to a suit by the Trustee, a
suit by a Holder pursuant to Section 6.07, or a suit by Holders of more than
10% in principal amount of the Securities.
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ARTICLE 7.
TRUSTEE
SECTION 7.01 ACCEPTANCE OF TRUSTS; DUTIES OF TRUSTEE.
The Trustee hereby accepts the trusts imposed upon it by this
Indenture and the Guarantee Agreement and covenants and agrees to perform the
same as herein expressed.
(a) If an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture and the Guarantee Agreement, and use the same degree of
care and skill in their exercise, as a prudent Person would exercise or use
under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default
under this Indenture or the Guarantee Agreement:
(1) The Trustee need perform only those duties that are
specifically set forth in this Indenture or the Guarantee Agreement,
as the case may be, and no others.
(2) In the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture or the Guarantee Agreement, as the case may be.
However, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture or the Guarantee Agreement, as the case may be.
(c) The Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph
(b) of this Section 7.01.
(2) The Trustee shall not be liable with respect to any
error of judgment made in good faith by a Trust Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent
facts.
(3) The Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05.
(d) Every provision of this Indenture or the Guarantee
Agreement that in any way relates to the Trustee is subject to paragraphs (a),
(b) and (c) of this Section 7.01.
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(e) The Trustee may refuse to exercise any of its rights
or powers under this Indenture or the Guarantee Agreement at the request of any
Holders unless such Holders shall have offered to the Trustee indemnity
reasonably satisfactory to it against any loss, liability or expense. No
provision of this Indenture or the Guarantee Agreement 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 thereunder, or
in the exercise of its rights or power, if it has reasonable grounds for
believing, and does believe in good faith, that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
(f) The Trustee shall not be liable for interest on any
money received by it except as the Trustee may agree with the Company or the
Guarantor, as the case may be. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.
SECTION 7.02 RIGHTS OF TRUSTEE.
(1) For purposes of this Indenture and the Guarantee
Agreement, the Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper Person.
The Trustee need not investigate any fact or matter stated in the
document.
(2) Before the Trustee acts or refrains from acting
hereunder or under the Guarantee Agreement, it may require an
Officer's Certificate and/or an Opinion of Counsel from the Company or
the Guarantor and may consult with its counsel. The Trustee shall not
be liable for any action it takes or omits to take in good faith in
reliance on such Certificate, Opinion or advice of such counsel.
(3) The Trustee may act hereunder or under the Guarantee
Agreement through agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due care.
SECTION 7.03 INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Securities and may otherwise deal with the Company, the
Guarantor or an Affiliate thereof with the same rights it would have if it were
not Trustee. Any Agent may do the same with like rights. The Trustee,
however, must comply with Sections 7.10 and 7.11.
SECTION 7.04 TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or
adequacy of this Indenture, the Guarantee Agreement or the Securities, and it
shall not be responsible for any statement in the Securities or the Guarantee
Agreement other than its certificate of authentication.
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SECTION 7.05 NOTICE OF DEFAULTS.
If a Default under this Indenture or under the Guarantee
Agreement occurs and is continuing and if it is known to the Trustee, the
Trustee shall mail to each Securityholder a notice of the Default within 90
days after it occurs. Except in the case of a Default in payment of principal
of or interest on any Security or a Default in payment of Guarantor Obligations
under the Guarantee Agreement, the Trustee may withhold the notice if and so
long as it in good faith determines that withholding the notice is in the
interests of Securityholders.
SECTION 7.06 REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each ------ beginning with ------, 1994,
the Trustee shall mail to each Securityholder as required by TIA Section
313(c) a brief report dated as of such date that complies with TIA Section
313(a) with respect to this Indenture and the Guarantee Agreement. The Trustee
also shall comply with TIA Section 313(b) with respect to this Indenture and
the Guarantee Agreement.
A copy of each report at the time of its mailing to
Securityholders shall be filed by the Trustee with the SEC and each stock
exchange, if any, on which the Securities or the Guarantee Agreement are
listed. The Company shall notify the Trustee when the Securities or the
Guarantee Agreement are listed on any stock exchange.
SECTION 7.07 COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time such
compensation under this Indenture and the Guarantee Agreement for its services
as shall be agreed upon in writing. The Trustee's compensation under this
Indenture and the Guarantee Agreement shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee upon request for all reasonable out-of-pocket expenses, advances and
disbursements incurred by it under this Indenture and the Guarantee Agreement.
Such expenses shall include the reasonable compensation and out-of-pocket
expenses of the Trustee's agents and counsel under this Indenture and the
Guarantee Agreement.
Except as hereinafter provided in this paragraph, the Company
shall indemnify the Trustee against any loss or liability (including the
reasonable fees and expenses of counsel) incurred by it in connection with the
administration of this trust and the performance of its duties hereunder and
under the Guarantee Agreement. Neither the Company nor the Guarantor need pay
for any settlement made without its consent. The Trustee shall notify the
Company and the Guarantor promptly of any claim for which it may seek
indemnification. Neither the Company nor the Guarantor need reimburse any
expense or indemnify against any loss or liability incurred by the Trustee
through the Trustee's negligence or bad faith under this Indenture or the
Guarantee Agreement.
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To secure the Company's payment obligations in this Section,
the Trustee shall have a lien prior to the Securities on all money or property
held or collected by the Trustee except that held in trust to pay principal and
interest on particular Securities.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(6), (7), (8) or (9) occurs or under
Section 6(a)(5), (6), (7) or (8) under the Guarantee Agreement, the expenses
and the compensation for services are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 7.08 REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a
successor Trustee under this Agreement and the Guarantee Agreement shall become
effective only upon the successor Trustee's acceptance of appointment as
provided in this Section.
The Trustee may resign by so notifying the Company and the
Guarantor. The Holders of a majority in principal amount of the Securities may
remove the Trustee by so notifying the Trustee, the Guarantor and the Company
and may appoint a successor Trustee with the Company's consent. The Company
may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of
the Trustee or its property;
(4) the Trustee becomes incapable of acting; or
(5) in the Company's good faith judgment, the Trustee's fees
and expense structure for acting as such hereunder become materially
non-competitive.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office,
the Holders of a majority in principal amount of the Securities may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee does not take office within 30 days
after the retiring Trustee resigned or is removed, the retiring Trustee, the
Company or the Holders of at least 10% in principal amount of the Securities
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
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If the Trustee fails to comply with Section 7.10, any Holder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee, the Guarantor and to the Company.
Thereupon the resignation or removal of the retiring Trustee shall become
effective and the successor Trustee shall have all the rights, powers and
duties of the Trustee under this Indenture and the Guarantee Agreement. The
successor Trustee shall mail a notice of its succession to Securityholders.
The retiring Trustee shall promptly transfer all property held by it as Trustee
to the successor Trustee, subject to the lien provided for in Section 7.07.
SECTION 7.09 SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to another
corporation, the successor corporation without any further act shall be the
successor Trustee under this Indenture and the Guarantee Agreement.
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION.
This Indenture and the Guarantee Agreement shall always have a
Trustee who satisfies the requirements of TIA Section 310(a)(1). The Trustee
shall always have a combined capital and surplus of at least $50,000,000 as set
forth in its most recent published annual report of condition. With respect to
this Indenture and the Guarantee Agreement, the Trustee shall comply with TIA
Section 310(b), including the optional provision permitted by the second
sentence of TIA Section 310(b)(9).
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
With respect to this Indenture and the Guarantee Agreement,
the Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE 8.
DISCHARGE OF INDENTURE
SECTION 8.01 TERMINATION OF COMPANY'S OBLIGATIONS.
All of the Company's obligations under this Indenture shall
terminate when Securities previously authenticated and delivered (other than
mutilated, destroyed, lost or
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stolen Securities which have been replaced or paid) have been delivered to the
Trustee for cancellation or if:
(1) the Securities mature within six months or all of
them are to be called for redemption within six months;
(2) the Company or the Guarantor irrevocably deposits in
trust with the Trustee, pursuant to an irrevocable trust and security
agreement in form and substance reasonably satisfactory to the
Trustee, money or U.S. Government Obligations sufficient to pay
principal of and interest on the Securities to maturity or redemption,
as the case may be, and all other sums payable by the Company to the
Holders of the Securities hereunder. The Company or the Guarantor may
make the deposit only during the six-month period. Immediately after
making the deposit, the Company shall give notice of such event to the
Holders;
(3) the Company has paid or caused to be paid all sums
then payable by the Company to the Trustee hereunder as of the date of
such deposit;
(4) the Company has delivered to the Trustee an Officer's
Certificate stating that all conditions precedent provided for herein
relating to the satisfaction and discharge of this Indenture have been
complied with; and
(5) the Company has delivered to the Trustee either (i)
an unqualified Opinion of Counsel, stating that the Holders of the
Securities (a) will not recognize income, gain or loss for Federal
income tax purposes as a result of such deposit (and the defeasance
contemplated in connection therewith) and (b) will be subject to
Federal income tax on the same amounts and in the same manner and at
the same times as would have been the case if such deposit and
defeasance had not occurred, or (ii) an applicable favorable ruling to
that effect received from or published by the Internal Revenue
Service.
Notwithstanding the foregoing, the Company's obligations in Sections 2.03,
2.04, 2.05, 2.06, 2.07, 4.01, 7.07, 7.08 and 8.03 shall survive until the
Securities are no longer outstanding, and the Company's obligations pursuant to
Sections 7.07 and 8.03 shall survive any such termination.
After a deposit pursuant to this Section 8.01, the Trustee
upon request shall acknowledge in writing the discharge of the Company's
obligations under the Securities and this Indenture except for those surviving
obligations specified above.
In order to have money available on a payment date to pay
principal or interest on the Securities, the U.S. Government Obligations shall
be payable as to principal or interest on or before such payment date in such
amounts as will provide the necessary money.
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SECTION 8.02 APPLICATION OF TRUST MONEY.
The Trustee shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to Section 8.01, 3.05 and 3.08. It
shall apply the deposited money and the money from U.S. Government Obligations
through the Paying Agent and in accordance with this Indenture to the payment
of principal of and interest on the Securities.
SECTION 8.03 REPAYMENT TO COMPANY.
The Trustee and the Paying Agent shall promptly pay to the
Company upon request any excess money or securities held by them at any time.
The Trustee and the Paying Agent shall pay to the Company upon request any
money held by them for the payment of principal or interest that remains
unclaimed for two years; 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 of general circulation
in The City of New York or cause to be mailed to each Holder, a notice stating
that such money remains and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication or mailing, any
unclaimed balance of such money then remaining will be repaid to the Company.
After payment to the Company, Securityholders entitled to the money must look
to the Company for payment as general creditors unless an applicable abandoned
property law designates another Person.
SECTION 8.04 REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any money or
U.S. Government Obligations in accordance with Section 8.01 by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Securities
shall be revived and reinstated as though no deposit has occurred pursuant to
Section 8.01 until such time as the Trustee or Paying Agent is permitted to
apply all such money or U.S. Government Obligations in accordance with Section
8.01; provided, however, that if the Company has made any payment of interest
on or principal of any Securities because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money or U.S. Government
Obligations held by the Trustee or Paying Agent.
ARTICLE 9.
AMENDMENTS
SECTION 9.01 WITHOUT CONSENT OF HOLDERS.
The Company, with the consent of the Trustee, may amend or
supplement this Indenture or the Securities and the Guarantor, with the consent
of the Trustee, may amend or
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supplement the Guarantee Agreement, in each case without notice to or the
consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or
inconsistency;
(2) to comply with Section 5.01 or Section 4(c) of the
Guarantee Agreement;
(3) to provide for uncertified securities; or
(4) to make any change that does not adversely affect the
rights of any Securityholder.
SECTION 9.02 WITH CONSENT OF HOLDERS.
The Company, with the consent of the Trustee, may amend or
supplement this Indenture or the Securities and the Guarantor, with the consent
of the Trustee, may amend or supplement the Guarantee Agreement, in each case
without notice to any Securityholder but with the written consent of the
Holders of at least 66 2/3% (except as hereinafter provided) of the principal
amount of the Securities. Subject to Section 6.07, the Holders of a majority
(except as hereinafter provided) in principal amount of the Securities may
waive compliance by the Company with any provision of this Indenture or the
Securities and compliance by the Guarantor with any provision of the Guarantee
Agreement, without notice to any Securityholder. However, without the consent
of each Securityholder affected, no amendment, supplement or waiver (other than
as provided in Section 2.13 and 6.02 hereof), including a waiver pursuant to
Section 6.04, may:
(1) reduce the amount of Securities whose Holders must
consent to an amendment, supplement or waiver;
(2) reduce the rate of or change the time for payment of
interest on any Security;
(3) reduce the principal of or change the fixed maturity
of any Security or alter the redemption provisions with respect
thereto;
(4) waive a default in the payment of principal of,
premium, if any, or interest on any Security;
(5) make any Security payable in money other than that
stated in the Security;
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(6) make any change in Section 6.04, Section 6.07 or this
Section 9.02; or
(7) release the Guarantor from its liability to make
payments of Guarantor Obligations under the Guarantee Agreement.
Promptly after an amendment under this Section becomes
effective, the Company or the Guarantor, as the case may be, shall mail to the
Securityholders a notice briefly describing the amendment.
It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment or
supplement, but it shall be sufficient if such consent approves the substance
thereof.
SECTION 9.03 COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment to this Indenture or the Securities or the
Guarantee Agreement shall comply with the TIA as then in effect.
SECTION 9.04 REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver under this Indenture
or the Guarantee Agreement becomes effective, a consent to it by a Holder of a
Security is a continuing consent by the Holder and every subsequent Holder of a
Security or portion of a Security that evidences the same debt as the
consenting Holder's Security, even if notation of the consent is not made on
any Security. However, any such Holder or subsequent Holder may revoke the
consent under this Indenture or the Guarantee Agreement as to his Security or
portion of a Security if the Trustee receives the notice of revocation before
the date the amendment, supplement or waiver becomes effective. An amendment,
supplement or waiver under this Indenture or the Guarantee Agreement becomes
effective in accordance with its terms.
After an amendment, supplement or waiver under this Indenture
or the Guarantee Agreement becomes effective with respect to the Securities, it
shall bind every Securityholder unless it makes a change described in any of
clauses (1) through (6) of Section 9.02. In that case the amendment,
supplement or waiver shall bind each Holder of a Security who has consented to
it and, provided that notice of such amendment, supplement or waiver is
reflected on a Security that evidences the same debt as the consenting Holder's
Security, every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder's Security.
SECTION 9.05 NOTATION ON OR EXCHANGE OF SECURITIES.
If an amendment, supplement or waiver changes the terms of a
Security, the Trustee may require the Holder of the Security to deliver it to
the Trustee. The Trustee may place an appropriate notation on the Security
about the changed terms and return it to the
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Holder. Alternatively, if the Company or the Trustee so determines, the
Company in exchange for the Security shall issue and the Trustee shall
authenticate a new Security that reflects the changed terms.
SECTION 9.06 TRUSTEE PROTECTED.
The Trustee need not sign any amendment, supplement or waiver
under this Indenture or the Guarantee Agreement authorized pursuant to this
Article that adversely affects the Trustee's rights. The Trustee shall be
entitled to receive and rely upon an Opinion of Counsel and an Officer's
Certificate that any supplemental indenture complies with the Indenture.
ARTICLE 10.
SECURITY
SECTION 10.01 COLLATERAL AGENCY AGREEMENT AND GUARANTEE AGREEMENT.
The Company hereby agrees to grant and, with respect to the
Company's outstanding Common Stock the Guarantor has granted pursuant to the
Pledge Agreement, as defined in the Guarantee Agreement, to the Trustee for the
benefit of the Securityholders a first priority security interest (subject to
senior liens, if any, on -----------------------------) in the Pledged
Collateral and the Common Stock, respectively.
Each Securityholder, by accepting a Security, agrees to all of
the terms and provisions of the Collateral Agency Agreement pursuant to which
the Securities will be secured (including, without limitation, the provisions
of Section 9 of the Collateral Agency Agreement providing for the release of
the Pledged Collateral), the Guarantee Agreement and the Pledge Agreement, as
the same may be in effect or may be amended from time to time pursuant to their
terms. The due and punctual payment of the principal and interest on the
Securities, when and as the same shall be due and payable, whether on an
interest payment date, at maturity, by acceleration, following call for
redemption or otherwise, and the payment and performance of all other
obligations of the Company to the Holders or the Trustee under this Indenture,
according to the terms hereof, shall be secured as and to the extent provided
in the Collateral Agency Agreement and the Guarantee Agreement.
SECTION 10.02 FURTHER ASSURANCES.
The Company and its Subsidiaries have executed and delivered,
filed and recorded (to the extent that it may currently do so under applicable
law) and will execute and deliver, file and record, all instruments and
documents, and have done and will do all such acts and other things, at the
Company's expense, as may be necessary or desirable, or that the Trustee may
reasonably request, to subject the Pledged Collateral to the Liens intended to
be created pursuant to the Collateral Agency Agreement (which Liens are defined
herein as
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the "Security Interests"), to perfect, maintain and protect the Security
Interests and, in the case of the existence of an Event of Default, to enable
the Trustee to exercise and enforce its rights and remedies with respect to the
Security Interests.
The Company shall cause (a) TIA Section 314(b), relating to
Opinions of Counsel regarding the Liens created under the Collateral Agency
Agreement and (b) TIA Section 314(d), relating to the release of Pledged
Collateral from the Liens created under the Collateral Agency Agreement and
Officer's Certificates or other documents regarding fair value of the Pledged
Collateral, to be complied with to the extent applicable. Any certificate or
opinion required by TIA Section 314(d) may be made by an Officer of the
Company to the extent permitted by TIA Section 314(d).
SECTION 10.03 AUTHORIZATION OF ACTIONS TO BE TAKEN BY THE TRUSTEE UNDER THE
COLLATERAL AGENCY AGREEMENT AND THE GUARANTEE AGREEMENT.
Except as otherwise provided therein, the Trustee may, in its
sole discretion and without the consent of the Securityholders, take all
actions it deems necessary or appropriate in order to (i) enforce any of the
terms of the Collateral Agency Agreement and the Guarantee Agreement and (ii)
collect and receive any and all amounts payable in respect of the obligations
of the Company thereunder. Such actions shall include, but not be limited to,
advising, instructing or otherwise directing the Collateral Agent in connection
with enforcing or effecting any term or provision of the Collateral Agency
Agreement or the Guarantee Agreement. Subject to the provisions of the
Collateral Agency Agreement and the Guarantee Agreement, the Trustee shall have
power to institute and to maintain such suits and proceedings as it may deem
expedient to prevent any impairment of the collateral pledged thereunder by any
acts that may be unlawful or in violation of the Collateral Agency Agreement,
the Guarantee Agreement, the Pledge Agreement under the Guarantee Agreement or
this Indenture, and such suits and proceedings as the Trustee may deem
expedient to preserve or protect its interests and the interests of the
Securityholders in such collateral.
SECTION 10.04 AUTHORIZATION OF RECEIPT OF FUNDS BY THE TRUSTEE UNDER THE
COLLATERAL AGENCY AGREEMENT AND THE GUARANTEE AGREEMENT.
The Trustee is authorized to receive any funds for the benefit
of Securityholders distributed under the Collateral Agency Agreement or the
Guarantee Agreement, and to make further distributions of such funds to the
Holders according to the provisions of this Indenture.
SECTION 10.05 TERMINATION OF SECURITY INTEREST.
Upon the payment in full of all obligations of the Company
under this Indenture and the Securities, the Trustee shall, at the request of
the Company, deliver a certificate to the Collateral Agent stating that such
obligations have been paid in full.
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SECTION 10.06 SECURITY DOCUMENTS.
The Company shall take any and all actions required to cause
the Collateral Agency Agreement to create, as security for the obligations
under this Indenture and the Securities, a valid and enforceable perfected lien
in and on all of the Pledged Collateral, in favor of the Collateral Agent for
the benefit of the Holders of the Securities, superior to and prior to the
rights of all third Persons (other than --------) and subject to no other Liens
other than Permitted Liens.
ARTICLE 11.
MISCELLANEOUS
SECTION 11.01 TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or
conflicts with another provision which is required to be included in this
Indenture by the TIA, the required provision shall control.
SECTION 11.02 NOTICES.
Any notice or communication by the Company or the Trustee to
the other is duly given if in writing and when delivered in person, mailed by
first-class mail or by express delivery to the other's address stated in this
Section 11.02. The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication to a Securityholder shall be
mailed by first-class mail to his or her address shown on the register kept by
the Registrar. Failure to mail a notice or communication to a Securityholder
or any defect in it shall not affect its sufficiency with respect to other
Securityholders.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the
addressee receives it.
If the Company mails a notice or communication to
Securityholders, it shall mail a copy to the Trustee and each Agent at the same
time.
All notices or communications shall be in writing.
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The Company's address is:
--------------------------------------
--------------------------------------
--------------------------------------
--------------------------------------
The Trustee's address is:
--------------------------------------
--------------------------------------
--------------------------------------
--------------------------------------
SECTION 11.03 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA Section
312(b) with other Securityholders with respect to their rights under this
Indenture, the Guarantee Agreement or the Securities. The Company, the
Trustee, the Guarantor, the Registrar and anyone else shall have the protection
of TIA Section 312(c).
SECTION 11.04 ACTION BY SECURITYHOLDERS.
Whenever in this Indenture or the Guarantee Agreement, it is
provided that the Holders of a specified percentage in aggregate principal
amount of the Securities may take any action (including the making of any
demand or request, the giving of any notice, consent or waiver or the taking of
any other action), the fact that at the time of taking any such action the
Holders of such specified percentage have joined therein may be evidenced by
(a) any instrument or any number of instruments of similar tenor executed by
Holders of Securities in person or by agent or proxy appointed in writing, or
(b) by the record of the Holders of Securities in favor thereof, at any meeting
of Holders duly called and held in accordance with the provisions of Article
12, or (c) by a combination of such instrument or instruments and any such
record of such meeting of Holders, but in each case only to the extent that the
Holders of Securities shall not have revoked such action, consent or vote
pursuant to Section 9.04 and Section 11.06.
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SECTION 11.05 PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF
SECURITIES.
For purposes of this Indenture and the Guarantee Agreement,
proof of the execution of any instrument by a Holder of Securities or his or
her agent or proxy and proof of the holding by any Person of any of the
Securities shall be sufficient if made in the following manner:
(1) The fact and date of the execution by any such Person
of any instrument may be proved by the certificate of any notary
public or other officer of any jurisdiction authorized to take
acknowledgements of deeds to be recorded in such jurisdiction that the
Person executing such instrument acknowledged to him or her the
execution thereof, or by an affidavit of a witness to such execution
sworn to before any such notary or other such officer. Such
certificate or affidavit shall also constitute sufficient proof of the
authority of the Person executing any instrument in cases where
Securities are not held by Persons in their individual capacities.
(2) The fact and date of execution of any such instrument
may also be proved in any other manner which the Trustee deems
sufficient.
(3) The ownership of Securities shall be proved by the
register of such Security or by a certificate of the Registrar
thereof.
(4) The Trustee shall not be bound to recognize any
Person as a Securityholder unless his or her title to any Security is
proved in the manner provided in this Article 11.
The Trustee may require such additional proof of any matter
referred to in this Section 11.05 as it shall deem necessary.
SECTION 11.06 REVOCATION OF CONSENTS; FUTURE HOLDERS BOUND.
Subject to Section 9.04, at any time prior to (but not after)
the evidencing to the Trustee, as provided in Section 11.04, of the taking of
any action under this Indenture or the Guarantee Agreement by the Holders of
the required percentage of the aggregate principal amount of the Securities
specified in this Indenture or the Guarantee Agreement in connection with such
action, any Holder of a Security which is shown by the evidence to be included
in the Securities the Holders of which have consented to such action may, by
filing written notice with the Trustee at its principal office and upon proof
of holding as provided in Section 11.05, revoke such action so far as concerns
such Security. Except as aforesaid, any such action taken by the Holder of any
Security shall be conclusive and binding upon such Holder and upon all future
holders and owners of such Security and of any Security issued in exchange or
substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon such Security. Any action taken under this Indenture or
the Guarantee Agreement by the Holders of the required percentage of the
aggregate principal amount of the Securities specified in this Indenture or the
Guarantee Agreement in
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connection with such action shall be conclusive and binding upon the Company,
the Trustee, the Guarantor and the holders of all the Securities.
SECTION 11.07 RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a
meeting of Securityholders under this Indenture or the Guarantee Agreement.
The Registrar or Paying Agent may make reasonable rules and set reasonable
requirements for their respective functions under this Indenture or the
Guarantee Agreement.
SECTION 11.08 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee
to take any action under this Indenture or the Guarantee Agreement the Company
shall furnish to the Trustee:
(1) an Officer's Certificate stating that, in the opinion
of the signer, all conditions precedent, if any, provided for in this
Indenture or the Guarantee Agreement, as the case may be, relating to
the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of
such counsel, all such conditions precedent have been complied with.
Each signer of an Officer's Certificate or an Opinion of
Counsel may (if so stated) rely upon an Opinion of Counsel as to legal matters
and an Officer's Certificate as to factual matters if such signer reasonably
and in good faith believes in the accuracy of the document relied upon.
SECTION 11.09 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture or the Guarantee Agreement
shall include:
(1) a statement that the Person making such
certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope
of the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are
based;
(3) a statement that, in the opinion of such
Person, he or she has made such examination or investigation
as is necessary to enable such Person to express an informed
opinion as to whether or not such covenant or condition has
been complied with; and
43
<PAGE> 50
(4) a statement as to whether or not, in the
opinion of such Person, such condition or covenant has been
complied with.
SECTION 11.10 LEGAL HOLIDAYS.
A "Legal Holiday" is a Saturday, a Sunday or a day on which
banking institutions are not required to be open in The City of New York, in
the State of New York or in the city in which the Trustee or any Paying Agent
under this Indenture administers its corporate trust business. If a payment
date is a Legal Holiday at a place of payment, payment may be made at that
place on the next succeeding day that is not a Legal Holiday, and no interest
shall accrue on that payment for the intervening period.
A "Business Day" is a day other than a Legal Holiday.
SECTION 11.11 NO RECOURSE AGAINST OTHERS.
All liability of any director, officer, employee or
stockholder, as such, of the Company or the Guarantor with respect to the
Securities and the Guarantee Agreement is waived and released.
SECTION 11.12 TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and headings of
the Articles and Sections of this Indenture and the Guarantee Agreement have
been inserted for convenience of reference only, are not to be considered a
part hereof, and shall in no way modify or restrict any of the terms or
provisions hereof or thereof.
SECTION 11.13 DUPLICATE ORIGINALS.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
SECTION 11.14 GOVERNING LAW.
The laws of the State of New York, without regard to
principles of conflicts of law, shall govern this Indenture and the Securities.
SECTION 11.15 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or a Subsidiary. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
44
<PAGE> 51
SECTION 11.16 SUCCESSORS.
All agreements of the Company and the Guarantor in this
Indenture, the Guarantee Agreement and the Securities shall bind their
successors. All agreements of the Trustee in this Indenture and the Guarantee
Agreement shall bind its successors.
SECTION 11.17 SEPARABILITY.
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 and a Holder shall have no claim therefor against any party
hereto.
ARTICLE 12.
MEETINGS OF HOLDERS OF SECURITIES
SECTION 12.01 PURPOSES OF MEETINGS.
A meeting of Holders of Securities may be called at any time
and from time to time pursuant to the provisions of this Article 12 for any of
the following purposes:
(a) to give any notice to the Company or to the Trustee,
or to give any direction to the Trustee, or to waive any non-performance
hereunder, and its consequences, or to take any other action authorized to be
taken by Holders of Securities pursuant to any of the provisions of this
Indenture or the Guarantee Agreement;
(b) to remove the Trustee and appoint a successor trustee
pursuant to the provisions of Section 7.08;
(c) to consent to the execution of an indenture or
indentures supplemental hereto or supplemental to the Guarantee Agreement
pursuant to the provisions of Article 9;
(d) to take any other action authorized to be taken by or
on behalf of the Holders of any specified aggregate principal amount of the
Securities under any other provision of this Indenture, the Guarantee Agreement
or under applicable law.
SECTION 12.02 CALL OF MEETINGS BY TRUSTEE.
The Trustee may at any time call a meeting of Holders of
Securities to take any action specified in Section 12.01, to be held at such
time and at such place in the State of New York, as the Trustee shall
determine. Notice of each meeting of the Holders of Securities, setting forth
the time and the place of such meeting and, in general terms, the action
proposed to be taken at such meeting, shall be mailed by the Trustee to the
Holders of
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<PAGE> 52
the Securities, not less than 20 nor more than 60 days prior to the date fixed
for the meeting, at their last addresses as they shall appear on the register
of the Securities.
SECTION 12.03 CALL OF MEETINGS BY COMPANY OR SECURITY HOLDERS.
If at any time the Company, pursuant to a resolution of its
Board of Directors, or the holders of at least twenty percent in aggregate
principal amount of the Securities then outstanding, shall have requested the
Trustee to call a meeting of Holders of Securities to take any action
authorized in Section 12.01, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall
not have mailed notice of such meeting within twenty days after receipt of such
request, then the Company or the Holders of Securities in the amount above
specified, as the case may be, may determine the time and the place in the
State of New York for such meeting, and may call such meeting by mailing notice
thereof as provided in Section 12.02.
SECTION 12.04 PERSONS ENTITLED TO VOTE AT MEETING.
To be entitled to vote at any meeting of Holders of
Securities, a Person shall (a) be a Holder of Securities or (b) be a Person
appointed by an instrument in writing as proxy by a Holder of Securities. The
only Persons who shall be entitled to be present or speak at any meeting of the
Holders of the Securities shall be the Persons entitled to vote at such meeting
and their counsel and any representatives of the Company and its counsel.
SECTION 12.05 REGULATIONS FOR MEETING.
Notwithstanding any other provisions of this Indenture or the
Guarantee Agreement, the Trustee may make such reasonable regulations as it may
deem advisable for any meeting of Holders of the Securities in regard to the
appointment of proxies, the proof of the holding of Securities, the appointment
and duties of inspectors of votes, the submission and examination of proxies
and other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think fit. Except as otherwise permitted or
required by any such regulations, the holding of Securities shall be proved in
the manner specified in Section 11.05 and the appointment of any proxy shall be
proved in the manner specified in such Section 11.05 or by having the signature
of the Person executing the proxy witnessed or guaranteed by any bank, banker,
trust company or New York Stock Exchange, Inc. member firm satisfactory to the
Trustee.
The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of the Securities as provided in Section 12.03, in
which case the Company or the Holders of the Securities calling the meeting, as
the case may be, shall in like manner appoint a temporary chairman, and a
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Holders of a majority in principal amount of the Securities
represented at the meeting and entitled to vote.
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<PAGE> 53
At any meeting of Holders of Securities, the presence of
Persons holding or representing Securities in an aggregate principal amount
sufficient to take action upon the business for the transaction of which such
meeting was called shall be necessary to constitute a quorum; but, if less than
a quorum be present, the Persons holding or representing a majority in
aggregate principal amount of the Securities represented at the meeting may
adjourn such meeting with the same effect, for all intents and purposes, as
though a quorum had been present.
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<PAGE> 54
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
ROSEBUD HOLDINGS, INC.
By:
---------------------------------
Title:
[SEAL]
Attest:
- ---------------------------------
Title:
BANK
------------
By:
----------------------------------
Title:
[SEAL]
Attest:
- ---------------------------------
Title:
48
<PAGE> 55
EXHIBIT A
GUARANTEE AGREEMENT
by
LONE STAR INDUSTRIES, INC.
in favor of
each and every
"Holder"
of
10% Asset Proceeds Notes due 1997
of ROSEBUD HOLDINGS, INC.
--------------------
Dated as of ------------, 1993
--------------------
<PAGE> 56
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Asset Proceeds Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Bankruptcy Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Compounding Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Covered Deficiency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Debtors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Guarantor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Guarantor Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Guarantor Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Lien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Maturity Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Obligor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Officer's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Payment Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Payment Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Pledge Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Proscribed Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Restricted Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SEC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Senior Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
TIA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2. Guarantor Obligations; Extension Notices; Payment and Deemed Repayment . . . . . . . . . . . 5
3. Nature of Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
4. Covenants of Guarantor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5. Continued Effectiveness of this Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . 9
6. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
7. Pledge Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 14
</TABLE>
<PAGE> 57
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
8. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
9. Binding Agreement; Assignment; Obligations Several . . . . . . . . . . . . . . . . . . . . . 15
10. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
11. Effectiveness; Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
12. Trust Indenture Act Controls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
13. Inconsistent Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
14. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
15. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
16. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
</TABLE>
-ii-
<PAGE> 58
GUARANTEE AGREEMENT
This Guarantee, dated as of ____________, 1993, is made by
LONE STAR INDUSTRIES, INC., a Delaware corporation (the "Guarantor"), in favor
of each and every "Holder" of "Asset Proceeds Notes," as such terms (and all
others used herein without definition) are defined in accordance with Section 1
below.
W I T N E S S E T H:
WHEREAS, on December 10, 1990, Lone Star Industries, Inc., a
Delaware corporation and predecessor-in-interest of the Guarantor, and certain
of its affiliates (collectively, the "Debtors"), filed a voluntary petition for
relief under Chapter 11 of the U.S. Bankruptcy Code with the United States
Bankruptcy Court for the Southern District of New York (the "Bankruptcy
Court");
WHEREAS, on June 28, 1993, the Debtors filed an Amended
Consolidated Plan of Reorganization (such plan, as it may be amended from time
to time, the "Plan") in the bankruptcy proceeding describing the means by
which, and the extent to which, claims against the Debtors in such bankruptcy
proceeding will be satisfied;
WHEREAS, on ____________, 1993, an order was entered by the
Bankruptcy Court confirming the Plan; and
WHEREAS, it is a term of the Plan that the Guarantor shall
execute and deliver this Guarantee which is the "Reorganized Lone Star
Guarantee" defined in the Plan;
NOW, THEREFORE, in consideration of the foregoing, the
sufficiency of which consideration is hereby acknowledged by the Guarantor, the
Guarantor does hereby covenant and agree with the Trustee for the ratable
benefit of the Holders as follows:
1. Definitions. The following terms shall have the
meanings set forth after each:
"Affiliate", as to any Person, means any other Person directly
or indirectly controlling or controlled by or under common control with that
Person including any Subsidiary of that Person. For this purpose, "control"
means possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ownership of voting securities, by contract or otherwise. Without limiting the
foregoing, the Guarantor is an Affiliate of the Obligor for purposes hereof.
<PAGE> 59
"Asset Proceeds Notes" shall mean the notes of the Obligor, in
the aggregate initial principal amount of $138,118,000, issued from time to
time by the Obligor pursuant to the Indenture including, without limitation,
all such notes issued in respect of interest on other Asset Proceeds Notes.
"Bankruptcy Court" shall have the meaning ascribed thereto in
the recitals.
"Business Day" shall mean a day other than a Saturday, Sunday
or day on which banking institutions are not required to be open in The City of
New York, in the State of New York or in the city in which the Trustee
administers its corporate trust business.
"Compounding Date" shall mean each __________ and __________
commencing on the first such date following the date hereof.
"Covered Deficiency" shall mean the excess, if any, of (a)
the sum of (i) $88,110,000 plus (ii) interest accrued on such amount (reduced
from time to time by all payments (principal and interest) made by the Obligor
under the Asset Proceeds Notes and by the amount (principal and accrued
interest) of any Asset Proceeds Notes redeemed or otherwise purchased
(including, without limitation, by purchase on the open market) by the Obligor
or its Affiliates) from the date hereof to the date in respect of which the
calculation of Covered Deficiency is to be made, at the rate of 10% per annum,
compounded on each Compounding Date (computed on the basis of a 360-day year
of 12 30-day months), over (b) the sum of all amounts paid (principal and
interest) by the Obligor under the Asset Proceeds Notes (other than those held
by the Obligor or its Affiliates) and the amount (principal and accrued
interest) of Asset Proceeds Notes redeemed or otherwise purchased (including,
without limitation, by purchase on the open market) by the Obligor or its
Affiliates (other than from the Obligor or its Affiliates) on or prior to the
date in respect of which the calculation of Covered Deficiency is to be made;
provided, however, in no event shall the Covered Deficiency exceed $20,000,000
plus interest accrued thereon from the date hereof to the date in respect of
which the calculation of Covered Deficiency is to be made, at the rate of 10%
per annum, compounded on each Compounding Date (computed on the basis of a
360-day year of 12 30-day months).
"Debtors" shall have the meaning ascribed thereto in the
recitals.
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Event of Default" shall have the meaning ascribed thereto in
Section 6 hereof.
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<PAGE> 60
"Exchange Act" shall have the meaning ascribed thereto in
Section 4(g) hereof.
"Guarantee" means this Guarantee, and any extensions,
modifications, renewals, restatements, reaffirmations, supplements or
amendments hereof.
"Guarantor" shall have the meaning ascribed thereto in the
recitals.
"Guarantor Indenture" shall mean the indenture of even date
herewith between the Guarantor and ________, as trustee, which indenture
relates to the Guarantor's 10% Senior Notes Due 2003 in the initial principal
amount of $75,000,000.
"Guarantor Obligations". Guarantor Obligations shall mean the
obligations of the Guarantor to pay to the Trustee any amounts which are due
and unpaid by the Obligor under the terms of the Asset Proceeds Notes
(including, without limitation, Section 2.13 thereof) on the first business day
after the Maturity Date; provided, however, in no event shall the Guarantor
Obligations exceed the amount of the Covered Deficiency.
"Holders" shall mean each and every holder of an Asset
Proceeds Note.
"Indenture" shall mean the Indenture of even date herewith
between the Obligor and the Trustee, which Indenture relates to the Asset
Proceeds Notes.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or similar encumbrance in respect of such
asset, whether or not filed, recorded or otherwise perfected under applicable
law (including any conditional sale or other title retention agreement, any
capitalized lease in the nature thereof, and any filing of or agreement to give
any financing statement under the New York Uniform Commercial Code or
equivalent statutes of any jurisdiction other than an information filing).
"Maturity Date" shall have the meaning ascribed thereto in the
Indenture, but may be deferred in yearly increments up to three years in
accordance with Section 2(b) hereof.
"Obligor" shall mean Rosebud Holdings, Inc., a Delaware
corporation and wholly-owned subsidiary of the Guarantor.
"Officer" means the Chairman of the Board, the President, any
Senior Vice-President, Executive Vice-President or any other Vice-President,
the Treasurer or the Secretary of the Guarantor.
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<PAGE> 61
"Officer's Certificate" means a certificate signed by an
Officer of the Guarantor.
"Opinion of Counsel" means a written opinion from legal
counsel, who may be an employee of or counsel for the Guarantor or other
counsel reasonably acceptable to the Trustee.
"Payment Notes" shall mean unsecured promissory notes of the
Guarantor which shall mature on July 31 of the fifth calendar year after their
date of issuance and bear interest at a rate equal to 300 basis points above
the current yield for five-year U.S. Treasury Bond obligations as of the date
of the issuance of such Payment Notes. If required by the Trust Indenture Act
of 1939, the Payment Notes will be issued in accordance with such act
including, without limitation, being issued under an indenture duly qualified
under such act. The Payment Notes shall be subordinate to the Senior Notes.
"Payment Notice" shall have the meaning ascribed thereto in
Section 2 hereof.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
or government or any agency or political subdivision thereof.
"Plan" shall have the meaning ascribed thereto in the recitals.
"Pledge Agreement" shall mean the pledge agreement of even
date herewith pursuant to which the Guarantor grants a pledge of the common
stock of the Obligor to the Trustee to secure the Guarantor's obligations
hereunder (which shall not, for any purposes hereunder or under the Pledge
Agreement, be deemed to include any obligations under the Payment Notes).
"Proscribed Distribution" shall have the meaning ascribed
thereto in Section 4(a) hereof.
"Restricted Subsidiary" means: (A) any Subsidiary other than:
(i) a subsidiary substantially all of the physical properties of which are
located, and substantially all of the business of which is carried on, outside
the limits of the United States of America (including Alaska and Hawaii) or
which is organized under the laws of any jurisdiction other than the United
States of America, the District of Columbia, the Commonwealth of Puerto Rico,
the States or the possessions of the United States; (ii) a Subsidiary the
primary business of which consists of purchasing accounts receivable and/or
making loans secured by accounts receivable and/or making investments in or in
the development of real estate (other than for sale or lease to the Guarantor
or its Restricted Subsidiaries) or providing services directly related thereto,
or which is otherwise
-4-
<PAGE> 62
primarily engaged in the finance business or in the real estate business; or
(iii) the Obligor and its Subsidiaries; and (B) any Subsidiary specified in
clause A(i) or (ii) above which the Guarantor, by resolution of its Board of
Directors, shall have designated as a Restricted Subsidiary.
"SEC" shall have the meaning ascribed thereto in Section 4(g)
hereof.
"Senior Notes" shall mean notes issued by the Guarantor in the
aggregate principal amount of $75,000,000 pursuant to the Guarantor Indenture.
"Subsidiary" shall mean any Person more than 50% of the
outstanding voting stock of which is owned, directly or indirectly, by the
Guarantor or by 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.
"TIA" shall mean the Trust Indenture Act of 1939 (15 U.S.C.
## 77aaa-77bbbb) as in effect on the date of this Guarantee,
except as provided in Section 9.03 of the Indenture.
"Trustee" shall mean ______________, in its capacity as
trustee under the Indenture.
2. Guarantor Obligations; Extension Notices; Payment
and Deemed Repayment.
(a) The Guarantor hereby guarantees the payment of
the Guarantor Obligations (and only the Guarantor Obligations). Subject to
Section 6 hereof, the Guarantor Obligations shall become due and payable by the
Guarantor hereunder, if at all, upon notice (a "Payment Notice") from the
Trustee delivered not earlier than the first Business Day after the Maturity
Date, and shall not be accelerated as a result of any acceleration of the Asset
Proceeds Notes.
(b) In the event that any amounts remain outstanding
under the Asset Proceeds Notes on the Maturity Date, the Trustee within sixty
days after the Maturity Date either (i) shall deliver a Payment Notice in
accordance with Section 2(a) or (ii) to the extent permitted pursuant to the
TIA (taking into consideration any waivers or no action positions received by
the Obligor and the Guarantor from the SEC, written notice of which shall be
provided to the Trustee) with the concurrence of Holders owning an aggregate of
___% of the principal amount of the outstanding Asset Proceeds Notes, may elect
to defer the Maturity Date for a period of one year. If the Trustee defers the
Maturity Date, (x) no Payment Notice shall be made unless and
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<PAGE> 63
until amounts remain outstanding under the Asset Proceeds Notes on the first
Business Day following the Maturity Date as so deferred and (y) the maturity
date of the Asset Proceeds Notes will be automatically deferred one year and
all "Defaults" or "Events of Default" thereunder resulting from the nonpayment
thereof prior to such deferral shall automatically be deemed cured and waived
by all Holders and the Trustee. To the extent permitted pursuant to the TIA
(taking into consideration any waivers or no action positions received by the
Obligor and the Guarantor from the SEC, written notice of which shall be
provided to the Trustee) the Maturity Date may be deferred in yearly increments
under this Section 2(b) up to three times (i.e. with a final Maturity Date not
later than July 31, 2000).
(c) If any Guarantor Obligations become due and
payable, the Guarantor shall promptly pay such amounts to the Trustee upon the
Guarantor's receipt of a Payment Notice. Such payment may, in the discretion
of the Guarantor, be made (i) in cash or by check; (ii) by issuance of Payment
Notes; or (iii) by a combination of the types of payment described in clauses
(i) and (ii). Upon payment of the Guarantor Obligations in accordance with
this Section 2, (x) all obligations under this Guarantee and the Pledge
Agreement shall terminate in their entirety; and (y) the Asset Proceeds Notes
shall irrevocably be deemed to be repaid in an amount equal to the amount of
all amounts of Guarantor Obligations paid hereunder and the outstanding amount
thereof shall be deemed accordingly reduced. In computing any such deemed
repayment, each Payment Note issued by the Guarantor shall be deemed to have a
value equal to the principal amount thereof.
3. Nature of Guarantee. This Guarantee is
unconditional, irrevocable and continuing in nature. Subject to the notice
provisions set forth in Section 2 hereof, this Guarantee is a guarantee of
prompt and punctual payment and performance, and is not merely a guarantee of
collection.
4. Covenants of Guarantor.
(a) The Guarantor shall not directly or indirectly
demand, accept or receive payment of any monies whatsoever by the Obligor,
whether by way of repayment of debt, dividend, distribution, salary, consulting
fee or otherwise, if such payment would constitute a breach of Sections 4.08 or
4.09 of the Indenture on the part of the Obligor (any such prohibited payment,
a "Proscribed Distribution"). If, notwithstanding the provisions of this
Guarantee, the Guarantor receives any Proscribed Distribution (including
receipt in any bankruptcy or similar proceedings), the Guarantor shall hold
such payment in trust for the Trustee and will promptly turn over such payment
to the Trustee, in the form received, to be held by the Trustee in trust and
applied to the Guarantor Obligations if appropriate in accordance with the
terms of this Guarantee. In the event of (x) any insolvency, bankruptcy,
receivership, custodianship,
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<PAGE> 64
liquidation, reorganization, readjustment of debt, arrangement, composition,
moratorium, assignment for the benefit of creditors, or other similar
proceedings affecting the Obligor or its property or assets, or (y) any
proceeding for voluntary liquidation, dissolution or other winding up or
bankruptcy or other similar proceedings affecting the Obligor, then and in any
such event the Asset Proceeds Notes shall first be (or, in accordance with the
terms of the Indenture, be deemed to be) indefeasibly paid in full before any
payment or distribution of any character, whether in cash, securities,
obligations or other property, shall be made in respect of Proscribed
Distributions.
(b) Except as specified in Section 7 hereof the
Guarantor shall not sell, transfer, assign, pledge, exchange or otherwise
encumber or dispose of, or grant any option or warrant with respect to, or
cause the Obligor to issue, or grant any option or warrant with respect to the
issuance of, any capital stock of the Obligor.
(c) The Guarantor shall not cause the Obligor to
merge or consolidate with any other Person in violation of the Indenture. The
Guarantor shall not consolidate or merge with or into, or sell, assign,
transfer or lease all or substantially all of the assets of the Guarantor and
its Restricted Subsidiaries, taken as a whole, to, any Person unless:
(i) the Person formed by or surviving any such
consolidation or merger (if other than the Guarantor), or to
which such sale or conveyance shall have been made, is an
entity organized and existing under the laws of the United
States, any state thereof or the District of Columbia; and
(ii) the Person formed by or surviving any such
consolidation or merger (if other than the Guarantor), or to
which such sale or conveyance shall have been made, assumes
all the obligations of the Guarantor under the Guarantee.
The Guarantor shall deliver to the Trustee prior to the
consummation of the proposed transaction an Officer's Certificate to the
foregoing effect and an Opinion of Counsel stating that the proposed
transaction complies with this Section 4(c).
(d) The Guarantor shall reimburse the Trustee for
all payments made and expenses incurred by the Trustee, including fees,
expenses and disbursements of attorneys acting for the Trustee in connection
with the negotiation, execution and delivery of this Guarantee Agreement or the
exercise or enforcement of any rights of the Trustee hereunder.
(e) Except as contemplated in the second sentence
of Section 4(c) above, the Guarantor shall do or cause to be done
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<PAGE> 65
all things necessary to preserve and keep in full force and effect its
corporate existence.
(f) The Guarantor will pay or discharge or cause
to be paid or discharged, before the same shall become delinquent (i) all
taxes, assessments and governmental charges levied or imposed upon the
Guarantor, and (ii) all lawful claims for labor, materials and supplies which,
if unpaid, might by law become a material Lien upon the property of the
Guarantor; provided, however, that the Guarantor shall not be required to pay
or discharge or cause to be paid or discharged any such tax, assessment, charge
or claim whose amount, applicability or validity is being contested in good
faith by appropriate proceedings and for which it has set aside on its books
such reserves as it deems adequate.
(g) Within 15 days after the Guarantor files with
the Securities and Exchange Commission (the "SEC") copies of its annual and
quarterly reports and other information, documents and reports (or copies of
such portions of any of the foregoing as the SEC may by rules and regulations
prescribe) which it is required to file with the SEC pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 (the "Exchange Act"), the Company
shall deliver the same to the Trustee. If the Guarantor shall cease to be
subject to the requirements of Section 13 or 15(d) of the Exchange Act, the
Guarantor shall deliver to the Trustee, within 15 days after the date by which
it would have been required to make such a filing with the SEC, audited annual
financial statements prepared in accordance with generally accepted accounting
principles and unaudited condensed quarterly financial statements, including
any notes thereto, each comparable to that which the Guarantor would have been
required to include in such annual reports, information, documents or other
reports if the Guarantor were then subject to the requirements of Section 13 or
15(d) of the Exchange Act. The Guarantor also shall comply with the other
provisions of TIA Section 314(a).
(h) The Guarantor will not declare any dividends
(other than dividends payable solely in capital stock of the Guarantor or
dividends required under the terms of a preferred stock issued by a company
which is at the time of such issuance or later becomes a Restricted Subsidiary)
on any capital stock of the Guarantor or make any payment on account of the
purchase, redemption or other retirement of any shares of such stock or make
any distribution in respect thereof, either directly or indirectly, and the
Guarantor will not itself, and will not permit any Restricted Subsidiary to,
make any investment in any Subsidiaries which are not Restricted Subsidiaries,
in each case to the extent such declaration, payment, redemption, retirement or
investment would constitute a breach of Section 4.08 of the Guarantor
Indenture.
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(i) The Guarantor will not, and will not permit
any of its Restricted Subsidiaries to, engage in any material transaction with
any of its Affiliates (other than the Guarantor, the Obligor or their
Restricted Subsidiaries) unless (i) such transaction is in the ordinary course
of business or (ii) the Board of Directors of the Guarantor in good faith
determines that such transaction is in the best interest of the Guarantor.
Nothing in this Section 4(i) shall prohibit any transactions pursuant to any
agreement existing as of the Effective Date.
(j) The Guarantor will not, and will not permit
any of its Restricted Subsidiaries to, enter into any agreement or execute any
instrument that by its terms expressly prohibits or otherwise would have the
effect of prohibiting the Guarantor from making any payments pursuant to the
terms of this Guarantee.
(k) The Guarantor shall keep, or cause to be
kept, true books and records and accounts in which entries will be made of all
of the business transactions of the Guarantor and its Restricted Subsidiaries
which shall be full and correct in all material respects, in accordance with
sound business practices, and reflect in their respective financial statements
adequate accruals and appropriate reserves, all in accordance with generally
accepted accounting principles.
(l) The Guarantor shall, and shall cause its
Restricted Subsidiaries to, comply with all statutes, laws, ordinances, or
governmental rules and regulations to which it is subject, noncompliance with
which would materially adversely affect the prospects, earnings, properties,
assets or condition, financial or otherwise, of the Guarantor and its
Restricted Subsidiaries taken as a whole.
(m) In the event that any Default under this
Guarantee shall occur, the Guarantor will give prompt written notice of such
Default to the Trustee, specifying the nature and status of such Default and
the steps which the Guarantor or its Subsidiaries have taken or propose to take
in order to cure such Default. The Guarantor shall deliver to the Trustee
within 120 days after the end of each fiscal year of the Guarantor, and within
60 days after the end of each of the first three fiscal quarters of the
Guarantor, an Officer's Certificate stating that, after a review of the
activities of the Guarantor during such period and of the Guarantor's
performance under this Guarantee, whether or not, to the best knowledge of the
signer thereof based on such review, there has been any Default or Event of
Default by the Guarantor in performing any of its obligations under this
Guarantee. If the signer does know of any such Default or Event of Default,
the certificate shall describe the Default or Event of Default and its status.
5. Continued Effectiveness of this Guarantee. The
Guarantor hereby expressly agrees that its obligations hereunder
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shall be binding irrespective of any event or circumstance (except any act,
event or circumstance which would constitute a discharge, release, defense,
waiver or other satisfaction of or to the Obligor's obligations other than by
reason of the Obligor's future bankruptcy, insolvency or inability to pay or
perform its obligations) which might otherwise constitute a legal or equitable
discharge or defense of a guarantor, indemnitor or surety under the laws of
any jurisdiction, including, without limitation, any failure of, or delay in,
due and timely demand or notice, and regardless of any change of circumstances,
whether or not foreseen or foreseeable, whether or not knowledge or notice
thereof is imputable to the Guarantor, and irrespective of any present or
future law or order of any jurisdiction (or any agency thereof) purporting to
reduce, amend or otherwise affect any obligation of the Guarantor under the
terms hereof or to vary the terms hereof or of the Asset Proceeds Notes or the
Indenture or any other instrument, writing or arrangement relating thereto and
irrespective of any other circumstance (subject to the exception stated above),
whether or not any of the foregoing might in any manner or to any extent vary
the obligations of the Guarantor under this Guarantee or otherwise constitute
a legal or equitable discharge or defense of a guarantor, indemnitor or surety.
The Guarantor hereby consents that at any time and from time
to time, without notice to the Guarantor, the performance or observance by the
Obligor of any term or covenant of the Asset Proceeds Notes or the Indenture or
any other instrument pertaining thereto, or any other writing or arrangement
relating to the Asset Proceeds Notes or the Indenture may be waived, the time
of performance thereof extended, the time of any payment under the Asset
Proceeds Notes accelerated or extended, and any provisions of the Asset
Proceeds Notes or the Indenture amended, without affecting the liability of the
Guarantor hereunder. The Guarantor hereby waives presentment and protest of
any Asset Proceeds Note and waives all notices of every kind which may be
required to be given by any statute, regulation or rule of law in any
jurisdiction. The Guarantor hereby consents in all respects to the execution
and delivery of the Asset Proceeds Notes and the Indenture and to all of the
terms thereof, and acknowledges receipt of an executed counterpart of the Asset
Proceeds Notes and the Indenture.
Anything herein to the contrary notwithstanding, the Guarantor
shall have no obligation hereunder with respect to any act, event or
obligation, or at any time, or under any circumstances, to the extent that any
such obligation at such time, under then existing circumstances, exceeds the
then corresponding obligation of the Obligor, if any; provided, that the
foregoing shall not apply if the Obligor's obligation is affected by reason of
the Obligor's future bankruptcy, insolvency or inability to pay or perform its
obligations.
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6. Events of Default.
(a) An "Event of Default" occurs if:
(1) the Guarantor defaults in the
payment of Guarantor Obligations when the same becomes due and payable
in accordance with Section 2 hereof, and such default continues for a
period of 30 days;
(2) the Guarantor fails to observe or
perform in any material respect any of its other covenants or
agreements in this Guarantee, which failure continues for a period of
30 days after the earlier of (i) the date on which written notice of
such failure, requiring the Guarantor to remedy the same, shall have
been given to the Guarantor by the Trustee, or to the Guarantor and
the Trustee by the Holders of at least 25% in aggregate principal
amount of the Asset Proceeds Notes at the time outstanding or (ii) the
date on which the Guarantor had Actual Knowledge of such failure;
(3) (a) the Guarantor fails to pay
when due (whether at maturity, in connection with any mandatory
amortization or redemption, by acceleration or otherwise) any
principal or interest on any indebtedness with an aggregate
outstanding principal amount in excess of $5 million, whether any such
indebtedness is outstanding as of the date of this Guarantee or is
hereafter outstanding, which default continues for the greater of any
period of grace applicable thereto or 60 days from the date of such
default, or (b) a default or event of default, as defined in one or
more indentures, agreements or other instruments evidencing or under
which the Guarantor has, as of the date of this Guarantee or
hereafter, outstanding at least $5 million aggregate principal amount
of indebtedness, shall happen and be continuing and such indebtedness
shall have been accelerated so that it is due and payable prior to the
date on which it would otherwise have become due and payable, and such
acceleration shall not be rescinded or annulled within 60 days after
the earlier of (i) the date on which written notice of such
acceleration shall have been given to the Guarantor by the Trustee, or
to the Guarantor and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Asset Proceeds Notes at the time
outstanding or (ii) the date on which the Guarantor had Actual
Knowledge of such acceleration; provided that if such default or event
of default under such indenture or other instrument shall be remedied
or cured by the Guarantor or waived by the holders of such
indebtedness, then the Event of Default under this Guarantee by reason
thereof shall be deemed likewise to have been thereupon remedied,
cured or waived without further action upon the part of either the
Trustee or any of the Holders of Asset Proceeds Notes;
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<PAGE> 69
(4) one or more final judgments against
the Guarantor for payments of money which in the aggregate exceed $5
million are entered by a court of competent jurisdiction and such
judgments are not rescinded, annulled, stayed or discharged within 90
days;
(5) the Guarantor and its Subsidiaries,
taken as a whole, become insolvent;
(6) the Guarantor pursuant to or within
the meaning of any Bankruptcy Law:
(a) commences a voluntary case,
(b) consents to the entry of a judgment,
decree or order for relief against it in an involuntary case
or proceeding,
(c) consents to the appointment of a
Custodian of it or for all or substantially all of its
property,
(d) makes a general assignment for the
benefit of its creditors, or
(e) applies for, consents to or
acquiesces in the appointment of, or taking possession by a
Custodian;
(7) a court of competent jurisdiction
enters a judgment, decree or order for relief in respect of the
Guarantor in an involuntary case or proceeding under any Bankruptcy
Law which shall
(a) approve as properly filed a petition
seeking reorganization, arrangement, adjustment or
composition;
(b) appoint a Custodian for any part of
its property; or
(c) order the winding up or liquidation
of its affairs; and such judgment, decree or order remains
unstayed and in effect for a period of sixty (60) consecutive
days; or
(8) any bankruptcy or insolvency
petition or application is filed, or any bankruptcy case or insolvency
proceeding is commenced against, the Guarantor or any of its material
Restricted Subsidiaries and such petition, application, case or
proceeding is not dismissed or stayed within ninety (90) days.
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The term "Bankruptcy Law" means Title 11, U.S. Code or any
similar Federal or State law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law. The term "Actual Knowledge" means the actual knowledge of any
executive officer of the Guarantor; provided, however, that each executive
officer of the Guarantor shall be deemed to have actual knowledge of any fact
that would have come to such officer's attention if he or she had exercised
reasonable care in performing his or her duties, given the nature of his or her
duties and the Guarantor's business and organization.
(b) If an Event of Default (other than an Event
of Default specified in Section 6(a)(5), (6), (7) or (8) occurs and is
continuing, the Trustee by notice to the Guarantor, or the Holders of at least
25% in principal amount of the Asset Proceeds Notes by notice to the Guarantor
and the Trustee, may declare the Guarantor Obligations to be accelerated. If
an Event of Default specified in Section 6(a)(5), (6), (7) or (8) occurs, all
Guarantor Obligations shall ipso facto be accelerated without any declaration
or other act on the part of the Trustee or any Holder. Upon any acceleration
of the Guarantor Obligations (i) if the Event of default is specified in
Section 6(a)(1), any Guarantor Obligations shall be due and payable and (ii)
otherwise, the Guarantor shall irrevocably deposit in trust with the Trustee
immediately available funds or obligations of the United States of America
sufficient to pay all Guarantor Obligations on the first Business Day after the
Maturity Date then in effect. Such deposit shall be made under the terms of an
irrevocable trust (in form and substance reasonably satisfactory to the
Trustee), and this Guarantee and the Pledge Agreement shall thereupon terminate
except for the Guarantor's obligations to pay any Guarantor Obligations to the
extent provided in Section 2 hereof (which payment shall be made, to the extent
possible, from such trust fund) and the Trustee's obligation to return to the
Guarantor any amounts remaining in such trust fund after such payment. The
Holders of at least 66 2/3% of the principal amount of the Asset Proceeds Notes
may rescind an acceleration and its consequences by notice to the Trustee if
the rescission would not conflict with any judgment or decree and if the
outstanding Events of Default have been cured or waived, except for nonpayment
of (or failure to deposit, as the case may be) Guarantor Obligations due solely
as a result of such acceleration. No such rescission shall affect any
subsequent Event of Default or impair any right or remedy with respect thereto.
(c) Subject only to Section 2(b) and 6(b) hereof,
the right of any Holder of an Asset Proceeds Note to receive payment under this
Guarantee, on or after the due dates (prior to any acceleration) expressed in
this Guarantee, or to bring suit for the enforcement of any such payment on or
after such date, shall not be impaired or affected without the consent of the
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Holder, except that no Holder of Asset Proceeds Notes shall have the right to
institute any such suit if and to the extent that the institution or
prosecution thereof or the entry of judgment therein would, under applicable
law, result in the surrender, impairment, waiver or loss of any Lien under the
Pledge Agreement.
(d) If an Event of Default specified in Section
6(a)(1) or (2) occurs and is continuing, the Trustee may recover judgment in
its own name and as trustee of an express trust (which trust shall be
established as provided in the third and fourth sentence of Section 6(b))
against the Guarantor for the whole amount of the Guarantor Obligations.
(e) The Trustee may file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee, any predecessor Trustee and the Holders allowed in any
judicial proceedings relative to the Guarantor, its creditors or its property.
Nothing herein contained shall be deemed to authorize the Trustee to authorize
or consent to or accept or adopt on behalf of any Holder of the Asset Proceeds
Notes any plan of reorganization, arrangement, adjustment or composition
affecting the Guarantee or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder of the Asset Proceeds
Notes in any such proceeding.
(f) In any suit for the enforcement of any right or
remedy under this Guarantee or in any suit against the Trustee for any action
taken or omitted by it as Trustee, a court in its discretion may require any
party litigating the suit other than the Trustee to file an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 6(c), or a suit by Holders of
more than 10% in principal amount of the Asset Proceeds Notes.
7. Pledge Agreement. To secure this Guarantee, the Guarantor
is simultaneously herewith executing and delivering the Pledge Agreement.
8. Notices. Any notices or other communications required or
permitted hereunder shall be in writing, and shall be sufficiently given if
made by hand delivery, by telex, by telecopier or registered or certified mail,
postage prepaid, return receipt requested, addressed as follows:
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To the Guarantor:
with a copy to:
To the Trustee:
Any party hereto may by notice to each other party designate such additional or
different addresses as shall be furnished in writing by such party. Any notice
or communication to any party hereto shall be deemed to have been given or made
as of the date so delivered, if personally delivered; when answered back, if
telexed; when receipt is acknowledged by telecopier confirmation, if
telecopied; and five calendar days after mailing if sent by registered or
certified mail (except that a notice of change of address shall not be deemed
to have been given until actually received by the addressee). Any party hereto
may give notice to the Holders at the addresses set forth for them in the
register kept by the Registrar under the Indenture.
9. Binding Agreement; Assignment; Obligations Several. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns, including, without
limitation, and without the need for an express assignment or amendment,
subsequent Holders of Asset Proceeds Notes (whether or not the Asset Proceeds
Notes held by such persons are outstanding as of the date hereof or issued
hereafter). This Agreement may not be assigned by the Guarantor; provided,
however, that this Agreement shall be deemed to be automatically assigned by
the Guarantor to any person which is a successor to the Guarantor, in
accordance with the terms of this Guarantee. This Guarantee shall be deemed to
be automatically assigned by the Trustee to any person who succeeds to the
Trustee in accordance with the Indenture, and such assignee shall have all
rights and powers of, and act as, the Trustee hereunder. Each Holder of the
Asset Proceeds Notes, by its acceptance of any Asset Proceeds Notes, consents
to and agrees to be bound by the provisions hereof.
10. Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of New York without
regard to its conflict of law principles, except as otherwise required by
mandatory provisions of law.
11. Effectiveness; Termination. (a) This Agreement shall
become effective on the Effective Date. Upon the earlier of (i) payment of the
Guarantor Obligations in accordance with
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Section 2 hereof or (ii) such time as the Covered Deficiency shall be $0 or
less, this Agreement and the Pledge Agreement shall terminate.
(b) All of the Guarantor's obligations under this
Guarantee shall terminate when:
(i) the Guarantor irrevocably deposits in trust
with the Trustee, pursuant to an irrevocable trust and security
agreement in form and substance reasonably satisfactory to the
Trustee, money or U.S. Government Obligations sufficient to pay all
Guarantor Obligations on the first Business Day after the Maturity
Date then in effect. Immediately after making the deposit, the
Guarantor shall give notice of such event to the Holders;
(ii) the Guarantor has delivered to the Trustee an
Officer's Certificate stating that all conditions precedent provided
for herein relating to the satisfaction and discharge of this
Guarantee have been complied with; and
(iii) the Guarantor has delivered to the Trustee
either (i) an unqualified Opinion of Counsel, stating that the Holders
of the Asset Proceeds Notes (a) will not recognize income, gain or
loss for Federal income tax purposes as a result of such deposit (and
the defeasance contemplated in connection therewith) and (b) will be
subject to Federal income tax on the same amounts and in the same
manner and at the same times as would have been the case if such
deposit and defeasance had not occurred, or (ii) an applicable
favorable ruling to that effect received from or published by the
Internal Revenue Service.
Notwithstanding the foregoing, the Guarantor's obligations in Section 2 and
4(c) hereof and Article VII of the Indenture shall survive until this Guarantee
terminates pursuant to Section 11(a). After a deposit pursuant to this Section
11(b), the Trustee upon request shall acknowledge in writing the discharge of
the Guarantor's obligations under this Guarantee except for those surviving
obligations specified above. In order to have money available on a payment
date to pay Guarantor Obligations, the U.S. Government Obligations shall be
payable as to principal or interest on or before such payment date in such
amounts as will provide the necessary money.
(c) The Trustee shall hold in trust money or U.S.
Government Obligations deposited with it pursuant to Section 11(b). It shall
apply the deposited money and the money from U.S. Government Obligations in
accordance with this Guarantee to the payment of Guarantor Obligations.
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<PAGE> 74
(d) The Trustee shall promptly pay to the Guarantor
upon request any excess money or securities held by it at any time.
(e) If the Trustee is unable to apply any money
or U.S. Government Obligations in accordance with Section 11(b) by reason of
any legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Guarantor's obligations under this Guarantee shall be revived
and reinstated as though no deposit has occurred pursuant to Section 11(b)
until such time as the Trustee is permitted to apply all such money or U.S.
Government Obligations in accordance with Section 11(b); provided, however,
that if the Guarantor has made any payment of Guarantor Obligations because of
the reinstatement of its obligations, the Guarantor shall be subrogated to the
rights of the Holders of such Asset Proceeds Notes to receive such payment from
the money or U.S. Government Obligations held by the Trustee or Guarantor.
12. Trust Indenture Act Controls. If any provision of
this Guarantee limits, qualifies or conflicts with another provision which is
required to be included in the Guarantee by the TIA, the required provision
shall control.
13. Inconsistent Provisions. This Guarantee is a part of
the Indenture to the extent specified therein. If any provision of this
Agreement shall be inconsistent with, or contrary to, any provision of the
Indenture, such provision of the Indenture shall be controlling and shall
supersede such inconsistent provisions hereof to the extent necessary to give
full effect to such provision of the Indenture.
14. Severability. In the event that any provision
contained in this Agreement shall for any reason be held to be illegal or
invalid under the laws of any jurisdiction, such illegality or invalidity shall
in no way impair the effectiveness of any other provision hereof or of such
provision under the laws of any other jurisdiction; provided, that in the
construction and enforcement of such provision under the laws of the
jurisdiction in which such holding of illegality or invalidity exists, and to
the extent only of such illegality or invalidity, this Agreement shall be
construed and enforced as though such illegal or invalid provision had not been
contained herein.
15. Headings. Section headings used herein are inserted
for convenience only and shall not in any way affect the meaning or
construction of any provision of this Agreement.
16. Counterparts. This Agreement may be executed in any
number of counterparts, each of which when so executed and delivered shall be
an original, and all of which shall together
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<PAGE> 75
constitute one and the same instrument. A complete set of counterparts shall
be lodged with the Trustee.
IN WITNESS WHEREOF, the Trustee and the Guarantor have caused
this Agreement to be executed and delivered by their respective officers
thereunto duly authorized as of the day and year first above written.
LONE STAR INDUSTRIES, INC.
By: -----------------------
Title: -----------------------
------------------------ BANK,
as Trustee
By: -----------------------
Title: -----------------------
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<PAGE> 76
EXHIBIT B
REGISTERED [Face of Security] REGISTERED
NUMBER DOLLARS
ROSEBUD HOLDINGS, INC. ........
10% ASSET PROCEEDS NOTE DUE 1997
ROSEBUD HOLDINGS, INC., a Delaware corporation (herein called
the "Company"), for value received, hereby promises to pay to ---------------
or registered assigns, the principal sum of --------------- Dollars on
- ---------, 1997, and to pay interest thereon as provided on the reverse hereof,
until the principal hereof is paid or duly provided for.
Interest Payment Dates: ------------ and ------------ of each year, commencing
- ------------, 1994
Record Dates: ------------ and ------------ of each year, commencing
- ------------, 1994
The provisions on the back of this certificate are
incorporated as if set forth on the face hereof.
IN WITNESS WHEREOF, ROSEBUD HOLDINGS, INC. has caused this
instrument to be duly signed under its corporate seal.
[SEAL] ROSEBUD HOLDINGS, INC.
By:
--------------------------------
Title:
By:
--------------------------------
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred
to in the within-mentioned Indenture.
BANK
- ------------
as Trustee
By:
----------------------------------------
Signatory
Dated:
---------------------------------------
B-1
<PAGE> 77
[REVERSE OF SECURITY]
ROSEBUD HOLDINGS, INC.
10% ASSET PROCEEDS NOTE DUE 1997
1. Interest. ROSEBUD HOLDINGS, INC., a Delaware
corporation (the "Company"), promises to pay interest on the principal amount
of this Security at the rate per annum shown above. The Company will pay
interest semi-annually in arrears on -------- and -------- of each year,
commencing --------, 1994. Interest on the Securities will accrue from the
most recent date to which interest has been paid (or, if no interest has been
paid, from the Effective Date, as defined in the below-mentioned Indenture).
Interest on overdue principal shall accrue at the rate per annum of 11% from
the due date until paid in full. Interest shall be computed on the basis of a
360-day year of 12 30-day months.
2. Method of Payment; Deemed Repayment; Deferral of
Maturity Date.
(a) The Company will pay interest on the Securities
(except defaulted interest) to the persons who are registered Holders of
Securities at the close of business on the record date set forth on the face of
this Security next preceding the applicable interest payment date. Holders
must surrender Securities to a Paying Agent to collect principal payments. The
Company will pay principal and interest in money of the United States that at
the time of payment is legal tender for payment of public and private debts.
However, the Company may pay principal and interest by check payable in such
money. It may mail an interest check to a Holder's registered address. At the
election of Company, interest may be paid, in whole or in part, on any interest
payment date prior to the Maturity Date in additional Securities of like tenor
with this Note in a principal amount equal to such interest payment amount or
part thereof.
(b) If the Guarantor is required to make any
payment of "Guarantor Obligations", as defined in the Guarantee Agreement, and
actually makes such payment, the Securities shall thereupon immediately (and
without the need for any notice or action on the part of any Person) be deemed
to have been repaid in an amount, and shall be reduced in amount, such that the
amount outstanding under the Securities thereafter (all of which shall be
deemed to be principal) shall be equal to the excess, if any, of (a) the sum of
(1) $---------- plus (2) interest accrued on such amount (reduced from time to
time by all payments (principal and interest) made by the Company under the
Securities and by the amount (principal and accrued interest) of any Securities
redeemed or otherwise purchased (including, without limitation, any purchase on
the open market) by the Company, its Subsidiaries or its Affiliates) from the
date hereof to the date in respect of which such calculation is made, at the
rate of 10% per annum, compounded on each interest payment date (computed on
the basis of a 360-day year of 12 30-day months), over (b) the sum of (A) all
amounts theretofore paid (principal and interest) by the Company under the
Securities (other than those held by the Company, its Subsidiaries or its
Affiliates), (B) the amount (principal and accrued interest) of Securities
theretofore redeemed or otherwise purchased (including, without limitation, any
purchase on the open market) by the Company, its Subsidiaries or its Affiliates
(other than from the Company, its Subsidiaries or its Affiliates) and (C) all
amounts of "Guarantor Obligations", as defined in the Guarantee Agreement, paid
under the Guarantee Agreement. Such reduction shall be made proportionately
among all Securities
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<PAGE> 78
based on the principal amounts outstanding of such Securities immediately prior
to such deemed repayment. Upon surrender of a Security that has been deemed to
have been repaid in part, the Trustee shall authenticate for the Holder a new
Security equal in principal amount to the portion of the Security remaining
after such deemed repayment.
To the extent permitted under the TIA (taking into
consideration any waivers or no action positions received by the Company or the
Guarantor from the SEC, written notice of which shall be provided to the
Trustee), the Trustee may, with the concurrence of Holders owning an aggregate
of ---% of the principal amount of the outstanding Securities, elect to defer
the maturity dates under the Guarantee Agreement as contemplated in Section 2
thereof. Upon the delivery of a Deferred Notice by the Trustee so deferring
such maturity date, the Maturity Date hereunder shall be automatically deferred
for one year from the date of the original Maturity Date hereunder and any
Default or Event of Default hereunder arising as a result of any nonpayment on
the Maturity Date in effect prior to such deferral shall be automatically
deemed waived without any further action or notice by any Person.
3. Paying Agent and Registrar. Initially, -------- Bank
(the "Trustee") will act as Paying Agent and Registrar. The Company may change
any Paying Agent, Registrar or co-registrar without notice. The Company may
act in any such capacity.
4. Indenture. The Company has issued the Securities
under an Indenture dated as of ------------ (the "Indenture") between the
Company and the Trustee. The terms of the Securities include those stated in
the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S. Code Section Section 77aaa=77bbbb) (the "Act")
as in effect on the date of the Indenture. The Securities are subject to all
such terms, and Securityholders are referred to the Indenture and the Act for a
statement of such terms. The Securities are secured obligations of the Company
limited to up to $------------ aggregate principal amount (except for
Securities issued in substitution for destroyed, mutilated, lost or stolen
Securities). Terms used herein which are defined in the Indenture have the
meanings assigned to them in the Indenture.
5. Optional Redemption. The Securities may be redeemed
at the option of the Company in whole at any time or in part from time to time
at the principal amount thereof (the "Redemption Price"), plus accrued and
unpaid interest to the redemption date. The Securities may also be redeemed or
prepaid by purchase by the Company on the open market from time to time without
penalty or premium.
6. Mandatory Redemption. Within 120 days after the
consummation of a Sale of Assets (as defined in the Indenture), the Company
shall redeem that principal amount of Securities such that the aggregate
Redemption Price, plus accrued and unpaid interest to the redemption date, of
such Securities equals (i) 100% of the Net Proceeds (as defined in the
Indenture) from such Sale of Assets less (ii) such reserves as are necessary to
provide the Company with $5 million for working capital purposes. With the
approval of the Board of Directors, the Company may before or after the Sale of
Assets, in lieu of making the redemptions provided for in this Section 6, in
whole or in part, effect open market purchases of Securities (with any
Securities so purchased to be delivered to the Trustee for cancellation) in a
principal amount equal to the principal amount of Securities which could have
been redeemed hereunder with such amount of Net Proceeds, provided that such
Securities have not been previously credited against redemptions or purchases
upon a Sale of Assets.
B-3
<PAGE> 79
7. Security. Securityholders are granted a first
priority interest in the Pledged Collateral, subject to senior liens on
- ---------------- pursuant to the Collateral Agency Agreement, as more fully set
forth in the Indenture. Each Securityholder, by accepting a Security, agrees
to all of the terms and provisions of the Collateral Agency Agreement and the
Guarantee Agreement as the same may be amended from time to time.
8. Denominations, Transfer, Exchange. The Securities
are in registered form without coupons in denominations of $1,000 and whole
multiples of $1,000. The transfer of Securities may be registered and
Securities may be exchanged as provided in the Indenture. The Registrar may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents. No service charge shall be made for any such registration
or 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. The Registrar need not exchange or register the transfer of any
Security selected for redemption in whole or in part (except the unredeemed
portion of securities being redeemed in part). Also, it need not exchange or
register the transfer of any Securities for a period of 15 days before a
selection of Securities to be redeemed.
9. Persons Deemed Owners. The registered Holder of any
of the Securities may be treated as its owner for all purposes.
10. Merger or Consolidation. The Company may not
consolidate or merge with or into, or sell, assign, transfer or lease all or
substantially all of its assets to another person unless: the person is an
entity organized and existing under the laws of the United States, any state
thereof or the District of Columbia; and such entity assumes by supplemental
indenture all the obligations of the Company under the Securities and the
Indenture.
11. Amendments and Waivers. Subject to certain
exceptions, the Indenture or the Securities may be amended with the consent of
the Holders of at least 66 2/3% of the principal amount of the Securities
outstanding, and certain existing defaults may be waived with the consent of
the Holders of 66 2/3% of the principal amount of the Securities. Without the
consent of any Securityholder, the Indenture or the Securities may be amended
to cure any ambiguity, omission, defect or inconsistency, to provide for
uncertificated Securities in addition to certificated Securities, to comply
with Section 5.01 of the Indenture or to make any change that does not
adversely affect the right of any Securityholder.
12. Defaults and Remedies. An Event of Default is:
default in the payment of interest on any Security when the same becomes due
and payable, whether at maturity, in connection with any redemption, by
acceleration or otherwise, which default continues for a period of 30 days;
default in the payment of the principal of any Security when the same becomes
due and payable, whether at maturity, in connection with any redemption, by
acceleration or otherwise, which failure continues for a period of 30 days
after either notice shall have been given to the Company or the date on which
the Company had Actual Knowledge of such failure; failure to observe or perform
in any material respect any of the Company's other covenants or agreements in
the Securities, the Indenture or the Collateral Agency Agreement, which
continues for a period of 30 days after either notice shall have been given to
the Company or the date on which the Company had Actual Knowledge of such
failure; failure by the Company or any of its Subsidiaries to pay when due any
principal or interest on any Indebtedness with an aggregate outstanding
principal amount in excess of $2
B-4
<PAGE> 80
million, which default continues for the greater of any period of grace
applicable thereto or 60 days from the date of such default; a default or event
of default, as defined in one or more indentures, agreements or other
instruments evidencing or under which the Company or any of its Subsidiaries
individually or collectively have, outstanding at least $2 million aggregate
principal amount of Indebtedness shall happen and such Indebtedness shall have
been accelerated so that it is due and payable prior to the date on which it
would otherwise have become due and payable, and such acceleration shall not be
rescinded or annulled within 60 days after either notice shall have been given
to the Company on the date on which the Company had Actual Knowledge of such
acceleration; entry of one or more final judgments against the Company or any
of its Subsidiaries for payments of money which in the aggregate exceed $2
million, by a court of competent jurisdiction and such judgments are not
rescinded, annulled, stayed or discharged within 90 days; the Company and its
Subsidiaries, taken as a whole, becomes insolvent; the commencement of a
voluntary case under the Federal Bankruptcy law; the occurrence of certain
other events under a Bankruptcy Law, including but not limited to the entry of
a judgment for relief in respect of the Company or any of its material
Subsidiaries by a court of competent jurisdiction which remains unstayed and in
effect for 60 days.
13. Trustee Dealings with Company. -------- Bank, the
Trustee under the Indenture, or any banking institution serving as successor
Trustee thereunder, in its individual or any other capacity, may make loans to,
accept deposits from, and perform services for the Company or its Affiliates,
and may otherwise deal with the Company or its Affiliates, as if it were not
Trustee.
14. No Recourse Against Others. No director, officer,
employee, or stockholder, as such, of the Company shall have any liability for
any obligations of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. Each Securityholder by accepting a Security waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the Securities.
15. Authentication. This Security shall not be valid
until authenticated by the manual signature of the Trustee or an authenticating
agent.
16. Abbreviations. Customary abbreviations may be used
in the name of a Securityholder or an assignee, such as: TEN COM (= tenants in
common), TEN ENT (= tenants by the entireties,) JT TEN (=joint tenants with
right of survivorship and not as tenants in common), CUST (= Custodian), and
U/G/M/A (= Uniform Gifts to Minors Act).
THE COMPANY WILL FURNISH TO ANY SECURITYHOLDER UPON WRITTEN
REQUEST AND WITHOUT CHARGE A COPY OF THE INDENTURE. REQUESTS MAY BE MADE TO:
ROSEBUD HOLDINGS, INC., ----------------------------------.
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<PAGE> 81
[FORM OF NOTATION ON NOTE
RELATING TO GUARANTEE]
GUARANTEE
The undersigned (hereinafter referred to as the "Guarantor,"
which term includes any successor person under the Guarantee Agreement, as
defined in the Indenture (the "Indenture") referred to in the Note upon which
this notation is endorsed), has unconditionally guaranteed the Guarantor
Obligations, as defined in the Guarantee Agreement.
The obligations of the Guarantor to the Holders of the Notes
and to the Trustee pursuant to the Guarantee Agreement and the Indenture, to
the extent specified therein, are expressly set forth in the Guarantee
Agreement and the Indenture and reference is hereby made thereto for their
precise terms.
No director, officer, employee or stockholder, as such, past,
present or future, of the Guarantor or any of its Subsidiaries shall have any
personal liability under the Guarantee by reason of his or its status as such
director, officer, employee or stockholder.
The Guarantee Agreement shall not be valid or obligatory for
any purpose until the certificate of authentication on the Notes upon which
this notation is made shall have been executed by the Trustee under the
Indenture by the manual or facsimile signature of one of its authorized
officers.
LONE STAR INDUSTRIES, INC.
By:
-----------------------------
By:
-----------------------------
(SEAL)
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<PAGE> 82
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to:
- ----------------------------------------------------
- ----------------------------------------------------
- ----------------------------------------------------
(Print or type assignee's name, address and zip code)
- ----------------------------------------------------
- ----------------------------------------------------
(Insert Assignee's Soc. Sec. or Tax I.D. No.)
and irrevocably appoint ---------------------------
agent to transfer this Security on the books of the
Company. The agent may substitute another to act for him or her.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Date: Signature(s):
-------------- ----------------------------
----------------------------
(Sign exactly as your name(s)
appear on the other side of
this Security)
Signature(s) guaranteed by: -----------------------------------------
(All signatures must be guaranteed
by a member of a national securities
exchange or of the National
Association of Securities Dealers,
Inc. or by a commercial bank or
trust company located in the United
States)
B-7
