<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
------------------------
LONE STAR INDUSTRIES, INC.
(Name of Applicant)
300 FIRST STAMFORD PLACE
Stamford, Connecticut 06912-0014
(Address of Principal Executive Offices)
------------------------
SECURITIES TO BE ISSUED UNDER THE
INDENTURE TO BE QUALIFIED
<TABLE>
<CAPTION>
Title of Class Amount
-------------- ------
<S> <C>
Five Year Guarantee Notes up to $28,000,000
</TABLE>
------------------------
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 Plan of
Reorganization (see Item 2).
Name and Address of Agent for Service: John J. Martin, Esq., Senior Vice President, General Counsel and Secretary
Lone Star Industries, Inc.
300 First Stamford Place
Stamford, Connecticut 06912
</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.
Lone Star Industries, Inc. (the "Company") proposes to issue, as part
of its Modified Amended Consolidated Plan of Reorganization, dated August 24,
1993, pursuant to Section 1121(a) of the United States Bankruptcy Code (the
"Plan of Reorganization"), its 10% Senior Notes Due 2003 (the "Senior Notes")
and to guarantee (the "Guarantee") a portion of certain 10% Asset Proceeds
Notes (the "Asset Proceeds Notes") issued by Rosebud Holdings, Inc., a newly
formed wholly-owned subsidiary of the Company. Upon a call under the
Guarantee, the Company may issue up to an aggregate $28,000,000 principal
amount of five-year notes (the "Guarantee Notes"). The Senior Notes may be
guaranteed by certain of the Company's affiliates. Each of these securities
will be issued to discharge in part claims of existing creditors in the
Bankruptcy Proceeding described below. The Company 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
the Company 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 by
reference herein at Exhibit T3E. The Guarantee 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. Each of (i) the
Asset Proceeds Notes and the Guarantee and (ii) the Senior Notes, will be
issued 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 Guarantee Notes 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
. . . 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 Guarantee Notes, if at all, at its discretion upon a call
of the Guarantee which is to be issued pursuant to the Plan of Reorganization
solely in exchange for the claims of certain existing creditors. There will be
no sales of Guarantee 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.
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 the
Company indirectly has a 50% interest.
2. Kosmos Cement Company, a Kentucky general partnership in which the
Company indirectly has a 25% interest.
3. Lone Star-Falcon, a Texas general partnership in which the Company
has a 50% interest.
4. RMC LONESTAR, a California general partnership in which the
Company 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 the Company's Common Stock, an approximate
15.3% interest.
Based on information provided to the Company, 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 the Company:
In addition to the persons listed in items 1-4 to this Item 3 above,
Item 5 below lists certain persons that may own in excess of ten percent of the
Company's voting securities after the consummation of the Plan of
Reorganization.
Attached hereto as Annex A are lists of the subsidiaries of 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.
<TABLE>
<CAPTION>
Name Address Office(s)
---- ------- ---------
<S> <C> <C>
David W. Wallace Lone Star Industries, Inc. Director, Chairman of the
300 First Stamford Place Board and Chief Executive
Stamford, CT 06912-0014 Officer
William M. Troutman Same Director, President and Chief
Operating Officer
</TABLE>
3
<PAGE> 4
<TABLE>
<S> <C> <C>
John J. Martin Same Senior Vice President, General
Counsel and Secretary
William E. Roberts Same Vice President, Chief
Financial Officer and
Corporate Controller
Roger J. Campbell Lone Star Industries, Inc. Vice President
3905 Vincennes Rd., Ste. 400
Indianapolis, IN 46268
James T. Cleven Lone Star Industries, Inc. Vice President
300 First Stamford Place
Stamford, CT 06912-0014
Pasquale P. Diccianni Lone Star Industries, Inc. Vice President
162 Old Mill Road
West Nyack, NY 10994
Michael W. Puckett Lone Star Industries, Inc. Vice President
3905 Vincennes Rd., Ste. 400
Indianapolis, IN 46268
James E. Bacon 114 West 47th Street Director
Sixth Floor
New York, New York 10036
Theodore F. Brophy 60 Arch Street Director
Greenwich, CT 06830
Kenneth Y. Knight Sinclair Oil Corporation Director
550 East South Temple
Salt Lake City, UT 84102
Meyer Luskin Scope Industries Director
233 Wilshire Blvd.
Suite 310
Santa Monica, CA 90401
Allen E. Puckett 935 Corsica Drive Director
Pacific Palisades, CA 90272
Lawrence J. Ramer Ramer Equities, Inc. Director
1999 Avenue of the Stars
#1090
Los Angeles, CA 90067
Jack R. Wentworth Indiana University Director
School of Business
10th & Fee Lane
Bloomington, IN 47405
</TABLE>
4
<PAGE> 5
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
<TABLE>
<CAPTION>
Percentage of
Title of Class Voting Securities
Names and Complete Mailing Address Owned Amount Owned Owned
---------------------------------- -------------- ------------ -----------------
<S> <C>
See item 5 of Item 3 above.
</TABLE>
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>
The Trust Company of the West Common Stock 2,135,914 17.8%
and affiliates
21st Floor
865 South Figueroa St.
Los Angeles, CA 90071
Metropolitan Life Insurance Company Common Stock 1,853,361 15.4%
and Metropolitan Insurance and
Annuity Company
One Madison Avenue
New York, NY 10010
</TABLE>
- ----------
* These figures are based on information provided to the Company and give
effect to the Plan of Reorganization as if it were consummated on January
10, 1994.
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
5
<PAGE> 6
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 . . . . . 25,000,000 shares 16,644,392 shares
Preferred Stock, $1.00 par value per share: 3,500,000 shares 386,020 shares
$13.50 Cumulative Convertible Preferred . . . 375,000 shares 375,000 shares
$ 4.50 Cumulative Convertible Preferred . . . 11,020 shares 11,020 shares
8 3/4% Notes due 1992 . . . . . . . . . . . . . . . $150,000,000 $150,000,000
9 3/4% Promissory Notes due 1993 and 1994 . . . . . $90,000,000 $90,000,000
9 1/2% Notes due 1991 . . . . . . . . . . . . . . . $50,000,000 $50,000,000
Pollution Control, Industrial Development and
Industrial Revenue Bonds due 1991-2008 . . . . $11,500,000 $6,365,000
</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
$13.50 Cumulative Right to elect two Directors
Convertible Preferred
$4.50 Cumulative Together with all other
Convertible Preferred preferred stock, right to
elect two Directors
</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 Guarantee Note when the same becomes
due and payable, whether at maturity, in connection with any redemption,
- ----------------------------------
* All capitalized terms used in this Item 8 shall have the same meaning,
unless otherwise defined, as that provided in the Indenture.
6
<PAGE> 7
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
Guarantee 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
Guarantee 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
Restricted Subsidiaries fails to observe or perform in any material respect any
of its other covenants or agreements in the Guarantee Notes or the Indenture
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 Guarantee Notes at the time outstanding or (b) the date on which
the Company had Actual Knowledge of such failure; (iv) (a) the Company or any
of its Restricted Subsidiaries fails to pay when due (whether at maturity, 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
Restricted Subsidiaries individually or collectively have, as of the date of
the Indenture or thereafter, outstanding at least $5.0 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 Guarantee
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 Restricted 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 Guarantee 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 $5.0 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 Restricted Subsidiaries, taken as a whole become
insolvent; (vii) the Company or any of its material Restricted 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 Guarantee 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 Guarantee 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 Guarantee Notes.
7
<PAGE> 8
(b) Authentication and Delivery of Guarantee Notes and Application of
Proceeds Thereof
A Guarantee 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 Guarantee Note has been authenticated under the
Indenture. The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate the Guarantee Notes.
The Trustee shall authenticate Guarantee Notes for original issue in the
aggregate principal amount of up to $28,000,000 upon a written order of the
Company. Such order shall specify the amount of Guarantee Notes to be
authenticated and the date on which the original issue of Guarantee Notes is to
be authenticated.
The Guarantee Notes shall be issuable only in registered form without
coupons and only in denominations of $1,000 and integral multiples thereof.
(c) Release of Property Subject to Lien of Indenture
Inapplicable.
(d) Satisfaction and Discharge of Indenture
The Company may terminate all of its obligations under the Indenture if all
Guarantee Notes previously authenticated and delivered (other than mutilated,
destroyed, lost or stolen Guarantee Notes which have been replaced or paid)
have been delivered to the Trustee for cancellation or if: (1) the Guarantee
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 Guarantee Notes
to maturity or redemption, as the case may be, and all other sums payable by
the Company to the holders of the Guarantee 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 Guarantee 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 Guarantee 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 Guarantee 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 Guarantee Notes and the Indenture except for those surviving obligations
specified above.
8
<PAGE> 9
In order to have money available on a payment date to pay principal or
interest on the Guarantee 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 been
any Default or Event of Default by the Company in performing any of its
obligations under the Indenture or the Guarantee 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.
Inapplicable.
CONTENTS OF APPLICATION FOR QUALIFICATION
This application for qualification comprises:
(a) Pages numbered 1 to 10, 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:
<TABLE>
<S> <C>
Exhibit T3A. Amended and Restated Certificate of Incorporation of the Company, incorporated by reference to Exhibit 19 to the
Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1988. The Certificate of Incorporation will
be amended in connection with the Plan of Reorganization. The form of Amended and Restated Certificate of
Incorporation of the Company is attached as Exhibit H to the Disclosure Statement (incorporated by reference at
Exhibit T3E).
Exhibit T3B. Amended By-Laws of the Company, incorporated by reference to Exhibit 2 to the Company's Report on Form 8-K, August
20, 1992. The By-Laws will be amended in connection with the Plan of Reorganization. The form of Restated By-Laws
of the Company is attached as Exhibit I 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.
</TABLE>
9
<PAGE> 10
<TABLE>
<S> <C>
Exhibit T3E. A copy of the Disclosure Statement regarding the Plan of Reorganization, with certain exhibits thereto,
incorporated by reference to Exhibit T3E of the Company's 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.
</TABLE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
applicant, Lone Star Industries, 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>
LONE STAR INDUSTRIES, INC.
By /s/ John J. Martin
-----------------------------
Name: John J. Martin
Title: Senior Vice President,
General Counsel and
Secretary
Attest: By /s/ John S. Johnson
-----------------------------
Name: John S. Johnson
Title: Assistant Secretary
</TABLE>
10
<PAGE> 11
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> 12
<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> 13
EXHIBIT INDEX
<TABLE>
<S> <C>
Exhibit T3A. Amended and Restated Certificate of Incorporation of the Company, incorporated by reference to Exhibit 19 to the
Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1988. The Certificate of Incorporation will
be amended in connection with the Plan of Reorganization. The form of Amended and Restated Certificate of
Incorporation of the Company is attached as Exhibit H to the Disclosure Statement (incorporated by reference at
Exhibit T3E).
Exhibit T3B. Amended By-Laws of the Company, incorporated by reference to Exhibit 2 to the Company's Report on Form 8-K, August
20, 1992. The By-Laws will be amended in connection with the Plan of Reorganization. The form of Restated By-Laws
of the Company is attached as Exhibit I 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 the Company's 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.
</TABLE>
<PAGE> 1
EXHIBIT T3C
LONE STAR INDUSTRIES, INC.
AND
BANK
__________________
as
Trustee
Indenture
Dated as of _______________, 199_
Up to $28,000,000
NOTES DUE July 31, [five years from date of issuance]
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE 1. DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions
Section 1.02 Incorporation by Reference of
Trust Indenture Act.
Section 1.03 Rules of Construction.
ARTICLE 2. THE SECURITIES
Section 2.01 Form and Dating
Section 2.02 Execution and Authentication.
Section 2.03 Registrar and Paying Agent.
Section 2.04 Paying Agent to Hold Money in Trust.
Section 2.05 Securityholder List.
Section 2.06 Transfer and Exchange.
Section 2.07 Replacement Securities.
Section 2.08 Outstanding Securities.
Section 2.09 Securities Held by the Company or
an Affiliate.
Section 2.10 Temporary Securities.
Section 2.11 Cancellation.
Section 2.12 Defaulted Interest.
ARTICLE 3. REDEMPTION
Section 3.01 Notices to Trustee.
Section 3.02 Selection of Securities to be
Redeemed.
Section 3.03 Notice of Redemption.
Section 3.04 Effect of Notice of Redemption.
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
Page
----
<S> <C>
Section 3.05 Deposit of Redemption Price.
Section 3.06 Securities Redeemed in Part.
Section 3.07 Optional Redemption.
ARTICLE 4. COVENANTS
Section 4.01 Payment of Securities.
Section 4.02 Maintenance of Office or Agency.
Section 4.03 Corporate Existence.
Section 4.04 Payment of Taxes and Liens.
Section 4.05 Maintenance of Properties.
Section 4.06 SEC Reports.
Section 4.07 Compliance Certificate.
Section 4.08 Waiver of Stay, Extension or
Usury Laws.
Section 4.09 Maintenance of Insurance and
Records, Compliance with Law.
Section 4.10 Value of Claims Represented by
Securities.
Section 4.11 Investment Company Act of 1940.
Section 4.12 Notice of Default.
ARTICLE 5. SUCCESSORS
Section 5.01 When Company May Merge, Etc.
Section 5.02 Successor Substituted.
ARTICLE 6. DEFAULTS AND REMEDIES
Section 6.01 Events and Default.
Section 6.02 Acceleration.
Section 6.03 Other Remedies.
</TABLE>
<PAGE> 4
<TABLE>
<CAPTION>
Page
----
<S> <C>
Section 6.04 Waiver of Past Defaults.
Section 6.05 Control by Majority.
Section 6.06 Limitation on Suits.
Section 6.07 Rights of Holders to Receive
Payment.
Section 6.08 Collection Suite by Trustee.
Section 6.09 Trustee May File Proofs of Claims.
Section 6.10 Priorities.
Section 6.11 Undertaking for Costs.
ARTICLE 7. TRUSTEE
Section 7.01 Acceptance of Trusts, Duties of
Trustee.
Section 7.02 Rights of Trustee.
Section 7.03 Individual Rights of Trustee.
Section 7.04 Trustee's Disclaimer.
Section 7.05 Notice of Defaults.
Section 7.06 Reports by Trustee to Holders.
Section 7.07 Compensation and Indemnity.
Section 7.08 Replacement of Trustee.
Section 7.09 Successor Trustee by Merger, etc.
Section 7.10 Eligibility, Disqualification.
Section 7.11 Preferential Collection of Claims
Against the Company.
ARTICLE 8. DISCHARGE OF INDENTURE
Section 8.01 Termination of Company's Obligations.
Section 8.02 Application of Trust Money.
Section 8.03 Repayment to Company.
</TABLE>
<PAGE> 5
<TABLE>
<CAPTION>
Page
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<S> <C>
Section 8.04 Reinstatement.
ARTICLE 9. AMENDMENTS
Section 9.01 Without Consent of Holders.
Section 9.02 With Consent of Holders.
Section 9.03 Compliance with Trust Indenture Act.
Section 9.04 Revocation and Effect of Consents.
Section 9.05 Notation on or Exchange of Securities.
Section 9.06 Trustee Protected.
ARTICLE 10. MISCELLANEOUS
Section 10.01 Trust Indenture Act Controls.
Section 10.02 Notices.
Section 10.03 Communication by Holders with Other
Holders.
Section 10.04 Action by Securityholders.
Section 10.05 Proof of Execution of Instruments
and of Holding of Securities.
Section 10.06 Revocation of Consents, Future Holders
Bound.
Section 10.07 Obligation to Disclose Beneficial Owner-
ship of Securities.
Section 10.08 Certificate and Opinion as to Conditions
Precedent.
Section 10.09 Statements Required in Certificate or
Opinion.
Section 10.10 Rules by Trustee and Agents.
Section 10.11 Legal Holidays.
Section 10.12 No Recourse Against Others.
Section 10.13 Duplicate Originals.
</TABLE>
<PAGE> 6
<TABLE>
<CAPTION>
Page
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<S> <C>
Section 10.14 Governing Law.
Section 10.15 No Adverse Interpretation of Other
Agreements.
Section 10.16 Successors.
Section 10.17 Separability.
Section 10.18 Table of Contents, Headings, etc.
ARTICLE 11. MEETINGS OF HOLDERS OF SECURITIES.
Section 11.01 Purposes of Meetings.
Section 11.02 Call of Meetings by Trustee
Section 11.03 Call of Meeting by Company or Security
Holders.
Section 11.04 Persons Entitled to Vote at Meeting.
Section 11.05 Regulations for Meeting.
</TABLE>
This cross-reference tables does not constitute a part of the Indenture.
<PAGE> 7
CROSS-REFERENCE TABLE
<TABLE>
<CAPTION>
TIA Indenture
Section Section
------- --------
<S> <C> <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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.03
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.03
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(b) (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(b) (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 406; 407
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c) (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.08
(c) (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.08
(c) (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.09
(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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.01
</TABLE>
- -------------
This cross-reference table does not constitute a part of the Indenture.
<PAGE> 8
INDENTURE dated as of _________________, 199_ between LONE STAR
INDUSTRIES, INC., a Delaware corporation (the "Company"), and
_________________________, 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 _________ Notes
due _______________ (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 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.
1
<PAGE> 9
"Business Day" has the meaning assigned to such term in Section 10.11
hereof.
"Capital Stock" means any stock of any class of a corporation.
"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 10.02 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.
"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, as amended, and
the rules and regulations of the SEC promulgated thereunder.
2
<PAGE> 10
"Fair Value" means fair market value as determined in good faith by the
Board of Directors.
"GAAP" means generally accepted accounting principles in effect from time
to time.
"Holder" or "Securityholder" means a Person in whose name a Security is
registered on the Registrar's books.
"Indebtedness" of any Person shall mean, without duplication, all
indebtedness for money borrowed, created, incurred or assumed by such Person or
guaranteed by such Person or for which it is otherwise liable or responsible
(such as by agreement to purchase indebtedness of others); provided, however,
that in determining the Indebtedness of any Person there shall be excluded any
particular indebtedness if, upon or prior to the maturity thereof, there shall
have been deposited with the proper depository in trust money (or evidences of
such indebtedness if permitted by the instrument creating such indebtedness) in
the necessary amount to pay, redeem or satisfy such indebtedness, and
thereafter such money and evidences of indebtedness so deposited shall not be
included in any computation of the assets of such Person.
"Indenture" means this Indenture as amended from time to time.
"Legal Holiday" has the meaning assigned to such term in Section 10.11
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, and any
filing of or agreement to give any financing statement under the Uniform
Commercial Code or equivalent statutes of any
3
<PAGE> 11
jurisdiction other than an information filing), but does not include, in the
case of the Company and its Restricted Subsidiaries, the lien granted to the
Trustee under Section 7.07 hereof.
"Maturity Date" of the Securities means ______________.
"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.
"Officer's Certificate" means a certificate signed by any Officer of the
Company.
"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.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, or
government or any agency or political subdivision thereof.
"Redemption Price" has the meaning assigned to such term in Section 3.07
hereof.
"Registrar" has the meaning assigned to such term in Section 2.03 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
4
<PAGE> 12
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 Company or its Restricted Subsidiaries) or
providing services directly related thereto, or which is otherwise primarily
engaged in the finance business or in the real estate business; or (iii)
Rosebud Holdings, Inc. and its Subsidiaries; and (B) any Subsidiary specified
in clause (i) or (ii) of paragraph (A) above which the Company, by resolution
of the Board of Directors, shall have designated as a Restricted Subsidiary.
"SEC" means the Securities and Exchange Commission.
"Securities" means the 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.
5
<PAGE> 13
"Trust Officer" means any officer of the Trustee assigned by the Trustee
to administer its corporate trust matters.
"Unrestricted Subsidiary" shall mean any Subsidiary which is not a
Restricted Subsidiary; all Unrestricted Subsidiaries as of the date of this
Indenture are listed on Schedule hereto.
"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.
"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.
6
<PAGE> 14
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) "or" is not exclusive;
(3) words in the singular include the plural and in the plural include
the singular except where the context manifestly otherwise requires;
(4) provisions apply to successive events and transactions; and
(5) "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 and the Trustee's certificate of authentication shall be
substantially in the form set forth in Exhibit A, 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
7
<PAGE> 15
usage. Each Security shall be dated the date of its authentication.
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.
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 $28,000,000 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 aggregate principal amount of
Securities outstanding at any time may not exceed the amount of 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
8
<PAGE> 16
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
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.
9
<PAGE> 17
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, 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
10
<PAGE> 18
Registrar shall register the transfer or make the exchange if the requirements
of Section 8-401(l) of the New York Uniform Commercial Code are met. To permit
registrations of transfer and exchanges, the Trustee shall authenticate
Securities 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 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.
11
<PAGE> 19
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 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 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 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 because the Company or one of
its Subsidiaries or Affiliates is a Holder of the Security.
12
<PAGE> 20
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 the 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 any Subsidiary or Affiliate
of the Company 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 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.
13
<PAGE> 21
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 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.
ARTICLE 3.
REDEMPTION
SECTION 3.01 NOTICES TO TRUSTEE.
If the Company wants to redeem Securities pursuant to Section 3.07, it
shall notify 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
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Securities to be redeemed. 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;
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(2) the Redemption Price (and the amount of accrued interest to be
paid on the Securities called for redemption);
(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.
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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.
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 penalty or premium.
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
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principal and interest then due. The Company shall pay interest on overdue
principal at the rate borne by the Securities.
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.
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SECTION 4.03 CORPORATE EXISTENCE.
Except as permitted in Article 5, the Company and its Restricted
Subsidiaries shall each do or cause to be done all things necessary to preserve
and keep in full force and effect its corporate existence; 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
Restricted Subsidiaries as a whole and that the loss thereof is not
disadvantageous in any material respect to the Holders.
SECTION 4.04 PAYMENT OF TAXES AND LIENS.
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 Restricted
Subsidiary, 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 Restricted Subsidiary; 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.
The Company will cause the material properties owned by the Company or
any Restricted Subsidiary for use in the conduct of its business or the
business of any such Restricted Subsidiary to be maintained and kept in good
condition, repair and working order (subject to ordinary wear and tear) and
will cause to be
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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
Restricted Subsidiary and not disadvantageous in any material respect to the
Holders.
SECTION 4.06 SEC REPORTS.
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) which it is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act, the Company shall deliver the same to
the Trustee. 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 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 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).
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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, 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 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 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.
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SECTION 4.09 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 Restricted
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, substantially equivalent to the insurance that comparable
companies maintain.
(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 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.
(c) The Company 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 other-wise, of the Company and its Restricted Subsidiaries taken
as a whole.
SECTION 4.10 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
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subsequent to the date of this Indenture involving the Company, the claims
represented by the Securities shall equal the full principal amount of the
Securities, plus accrued and unpaid interest at the stated rates set forth in
the Securities.
SECTION 4.11 INVESTMENT COMPANY ACT OF 1940.
The Company will not, and will not permit any of its Restricted
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).
SECTION 4.12 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.
ARTICLE 5.
SUCCESSORS
SECTION 5.01 WHEN COMPANY MAY MERGE, ETC.
The Company shall not consolidate or merge with or into, or sell, assign,
transfer or lease all or substantially all of the assets of the Company 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 Company), 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
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(ii) the Person formed by or surviving any such consolidation
or merger (if other than the Company), or to which such sale or
conveyance shall have been made, 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 or transfer or lease of all or
substantially all of the assets of the Company and its Restricted Subsidiaries,
taken as a whole, in accordance with Section 5.01, the successor Person formed
by such consolidation or into which the Company is merged or to which such
sale, assignment, transfer or lease is made 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 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:
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(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 Restricted Subsidiaries fails to
observe or perform in any material respect any of its other covenants or
agreements in the Securities or this Indenture, 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 Restricted Subsidiaries fails to
pay when due (whether at maturity, 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
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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 one or more indentures, agreements or
other instruments evidencing or under which the Company or any of its
Restricted Subsidiaries individually or collectively have, as of the date
of this Indenture 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 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
Restricted 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
Restricted Subsidiaries 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;
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(6) the Company and its Restricted Subsidiaries, taken as a whole
become insolvent;
(7) the Company or any of its material Restricted 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
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
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(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 Restricted 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
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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, unless theretofore cured, nonpayment of principal or interest
that has become due solely because of the acceleration. No such rescission
shall affect any subsequent Default or impair any right or remedy with respect
thereto.
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
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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. When 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. The
Trustee, however, may refuse to follow any direction that conflicts with law or
this Indenture, 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.
SECTION 6.06 LIMITATION ON SUITS.
Except as provided in Section 6.07, a Securityholder may pursue a remedy
with respect to this Indenture or the Securities only if:
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(1) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(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 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.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Security to receive payment of principal of and interest on the
Security, on or after the respective due dates (prior to any acceleration)
expressed in the Security, 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.
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SECTION 6.08 COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(l) 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.
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, 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
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
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and payable on the Securities for principal and interest, respectively;
Third: to the Company or such other Person 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.
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 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
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powers vested in it by this Indenture, 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:
(1) The Trustee need perform only those duties that are
specifically set forth in this Indenture 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. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements of
this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b)
of this Section 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.
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(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 that in any way relates to
the Trustee is subject to paragraphs (a), (b) and (c) of this Section 7.01.
(e) The Trustee may refuse to exercise any of its rights or powers
under this Indenture 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 shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of 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. 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) 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.
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(2) Before the Trustee acts or refrains from acting, it may require
an Officer's Certificate and/or an Opinion of Counsel 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 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 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 or the Securities, and it shall not be responsible for any
statement in the Securities other than its certificate of authentication.
SECTION 7.05 NOTICE OF DEFAULTS.
If a Default 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, the Trustee may withhold the notice if and so
long
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as it in good faith determines that withholding the notice is in the interests
of the Securityholders.
SECTION 7.06 REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each ________________ beginning _____________, 199_,
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). The Trustee also shall comply with TIA Section 313(b).
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 are listed. The Company shall notify the Trustee when the
Securities 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
for its services as shall be agreed upon in writing. The Trustee's
compensation 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.
Such expenses shall include the reasonable compensation and out-of-pocket
expenses of the Trustee's agents and counsel.
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. The
Company need not pay any amount in respect of a settlement made without its
consent. The Trustee shall notify the Company promptly of any claim for
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which it may seek indemnification. The Company need not reimburse any expense
or indemnify against any loss or liability incurred by the Trustee through the
Trustee's negligence or bad faith.
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, 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 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. The Holders of a
majority in principal amount of the Securities may remove the Trustee by so
notifying the Trustee 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;
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<PAGE> 46
(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.
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 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. 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
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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.
SECTION 7.10 ELIGIBILITY, DISQUALIFICATION.
This Indenture 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. 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 THE COMPANY.
The Trustee shall comply with TIA Section 31 1 (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 all Securities previously authenticated and delivered (other than
mutilated, destroyed, lost or stolen
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<PAGE> 48
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 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 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
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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.
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 3.05 and 8.01. 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
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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.
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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 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;
(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 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 without notice to any Securityholder.
However, without the consent of each Securityholder affected, no amendment,
supplement or waiver, including a waiver pursuant to Section 6.04, may:
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(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; or
(6) make any change in Section 6.04, Section 6.07 or this Section
9.02.
Promptly after an amendment under this Section becomes effective, the
Company 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 shall comply with the
TIA as then in effect.
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SECTION 9.04 REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver 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 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 becomes effective
in accordance with its terms.
After an amendment, supplement or waiver 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 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.
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SECTION 9.06 TRUSTEE PROTECTED.
The Trustee need not sign any amendment, supplement or a waiver
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.
MISCELLANEOUS
SECTION 10.01 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 10.02 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.
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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.
The Company's address is:
--------------------------
--------------------------
--------------------------
The Trustee's address is:
--------------------------
--------------------------
--------------------------
SECTION 10.03 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 or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
SECTION 10.04 ACTION BY SECURITYHOLDERS.
Whenever in this Indenture 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
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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 11, 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 10.06.
SECTION 10.05 PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF
SECURITIES.
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.
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(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 10.
The Trustee may require such additional proof of any matter referred to
in this Section 10.05 as it shall deem necessary.
SECTION 10.06 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 10.04, of the taking of any
action by the Holders of the required percentage of the aggregate principal
amount of the Securities specified in this Indenture 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 10.05, 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 by the Holders of the
required percentage of the aggregate principal amount of the
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Securities specified in this Indenture in connection with such action shall be
conclusive and binding upon the Company, the Trustee and the holders of all the
Securities.
SECTION 10.07 OBLIGATION TO DISCLOSE BENEFICIAL OWNERSHIP OF SECURITIES.
All Securities shall be held and owned upon the express condition that,
upon demand of any regulatory agency having jurisdiction over the Company, and
pursuant to law or regulation empowering such agency to assert such demand, any
registered Holder shall disclose to such agency the identity of the beneficial
owner of all Securities held thereby.
SECTION 10.08 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 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 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.
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SECTION 10.09 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture 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
(4) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
SECTION 10.10 RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
Securityholders. The Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for their respective functions.
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SECTION 10.11 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 10.12 NO RECOURSE AGAINST OTHERS.
All liability of any director, officer, employee or stockholder, as such,
of the Company with respect to the Securities is waived and released.
SECTION 10.13 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 10.14 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.
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SECTION 10.15 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.
SECTION 10.16 SUCCESSORS.
All agreements of the Company in this Indenture and the Securities shall
bind its successors. All agreements of the Trustee in this Indenture shall
bind its successors.
SECTION 10.17 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.
SECTION 10.18 TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and headings of the Articles
and Sections of this Indenture 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.
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ARTICLE 11.
MEETINGS OF HOLDERS OF SECURITIES
SECTION 11.01 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 11 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;
(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 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 or under applicable law.
SECTION 11.02 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 11.01, 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
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taken at such meeting, shall be mailed by the Trustee to the Holders of 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 11.03 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 11.01, 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 11.02.
SECTION 11.04 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.
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SECTION 11.05 REGULATIONS FOR MEETING.
Notwithstanding any other provisions of this Indenture, 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
10.05 and the appointment of any proxy shall be proved in the manner specified
in such Section 10.05 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 11.03, 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.
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
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aggregate principal amount of the Securities represented at the meeting may
adjourn such meeting with the same effect, for all intents and purposes, as
through a quorum had been present.
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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.
LONE STAR INDUSTRIES, INC.
By:
---------------------------
Title:
[SEAL]
Attest:
- -------------------------
Title:
BANK
-------------
By:
----------------------------
Title:
[SEAL]
Attest:
- -------------------------
Title:
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EXHIBIT A
REGISTERED [Face of Security) REGISTERED
NUMBER DOLLARS
LONE STAR INDUSTRIES, INC.
____________ NOTE DUE __________
LONE STAR INDUSTRIES, 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 ____, 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 ____________ 199_.
Record Dates: _______________
The provisions on the back of this certificate are incorporated as if set
forth on the face hereof.
IN WITNESS WHEREOF, LONE STAR INDUSTRIES, INC. has caused this instrument
to be duly signed under its corporate seal.
[SEAL) LONE STAR INDUSTRIES, INC.
By:
----------------------------
Title:
By:
----------------------------
Title:
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred
to in the within-mentioned Indenture.
BANK
- ------------- as Trustee
By:
------------------------
Signatory
Dated:
-----------------------------
- -----------
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[REVERSE OF SECURITY]
LONE STAR INDUSTRIES, INC.
* % SENIOR NOTE DUE
----- -------
1. Interest. Lone Star Industries, 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
____________________, 199_. 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 date of issue). Interest on overdue principal shall accrue at
the rate per annum one percentage point greater than the rate per annum shown
above 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. 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.
*Interest rate to be 300 basis points above the then current yield for
five-year U.S. Treasury Bond obligations.
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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 _________________, 199_ (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 obligations of the Company limited to up to
$28,000,000 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. Voluntary Prepayments or 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 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 penalty or
premium.
6. 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
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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.
7. Persons Deemed Owners. The registered Holder of this Note may be
treated as its owner for all purposes.
8. Merger or Consolidation. The Company and its Restricted
Subsidiaries, as a whole, 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: (i) the person is an entity organized and existing under the
laws of the United States, any state thereof or the District of Columbia; and
(ii) such entity assumes by supplemental indenture all the obligations of the
Company under the Securities and the Indenture.
9. 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.
10. 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
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redemption, by acceleration or otherwise, and such 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; or failure by the Company or any Restricted Subsidiary to observe or
perform in any material respect any of its other covenants or agreements in the
Securities or the Indenture, which further 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 Restricted Subsidiaries to pay when due any principal or interest on any
Indebtedness with an aggregate outstanding principal amount in excess of $5
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 Restricted
Subsidiaries individually or collectively have outstanding at least $5 million
aggregate principal amount of Indebtedness 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 or the Company had Actual Knowledge of such acceleration, unless
cured or waived; entry of one or more final judgments against the Company or
any of its Restricted Subsidiaries for payments of money which in the aggregate
exceed $5 million, by a court of competent jurisdiction and such judgments are
not rescinded, annulled, stayed or discharged within 90 days; the Company and
its Restricted Subsidiaries, taken as a whole, shall become insolvent; the
commencement of a voluntary case under the Federal Bankruptcy law; or the
occurrence of certain other events under the Bankruptcy law, including but not
limited to the entry of a judgment for relief in respect of the Company or any
of its material Restricted Subsidiaries by a court of competent jurisdiction
which remains unstayed and in effect for 90 days.
11. 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
Restricted Subsidiaries, and may otherwise deal with the Company or its
Affiliates and Restricted Subsidiaries, as if it were not Trustee.
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12. 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.
13. Authentication. This Security shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
14. 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: LONE STAR
INDUSTRIES, INC.
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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):
Signature(s) guaranteed by:
(Sign exactly as your name(s) appear on the other side of this Security)
(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)
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