Securities and Exchange Commission
Washington, D.C. 20549
__________
Form 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES PURSUANT TO
SECTION 12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934.
Lone Star Industries, Inc.
(Exact name or registrant as specified
in its charter)
Delaware 13-0982660
(State of Incorporation (IRS Employer
or organization) Identification No.)
300 First Stamford Place, P.O. Box 120014,
Stamford, Connecticut 06912-0014
(address of principal executive offices)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class to Name of each exchange
be so registered on which each class
is to be registered
Common Stock,
per share $1.00 par value New York Stock Exchange
Common Stock New York Stock Exchange
Purchase Warrants
10% Senior Notes Due 2004 New York Stock Exchange
Securities to be registered pursuant to Section 12(g) of the Act:
None
(Title of Class)
Page 1 of 18
EXHIBIT INDEX On Page 17<PAGE>
INFORMATION REQUIRED IN
REGISTRATION STATEMENT
Item 1. Description of Registrant's Securities to be
Registered.
The Registrant, Lone Star Industries, Inc., a Delaware
corporation (also referred to herein as the "Company"), presently
files reports pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and is
currently the subject of reorganization proceedings pursuant to
Chapter 11, Title 11 of the United States Code (the "Bankruptcy
Code"). Pursuant to the Registrant's Modified Amended Plan of
Reorganization, as amended (the "Plan of Reorganization"), which
was confirmed by order of the Bankruptcy Court for the Southern
District of New York on March 1, 1994, the Registrant has been
authorized to issue (i) 25,000,000 shares of Common Stock, par
value $1.00 per share ("Common Stock"), (ii) Common Stock Purchase
Warrants to purchase 4,003,333 shares of Common Stock (the
"Warrants") and (iii) $78,000,000 aggregate principal amount of its
10% Senior Notes Due 2004 (the "Notes") (the securities referred
to in the foregoing clauses (i) through (iii) are hereinafter
collectively referred to as the "Securities"). The Securities will
be issued pursuant to Section 1145 of the Bankruptcy Code. The
Registrant has applied to the New York Stock Exchange to list the
Securities thereon.
The Registrant's existing Common Stock, par value $1.00
per share, and Preferred Stock Purchase Rights are currently listed
on the New York Stock Exchange. Pursuant to the Plan of
Reorganization, all of such existing securities will be cancelled
on or about the date of consummation of the Plan of Reorganization
(the "Effective Date").
A. Common Stock
Holders of Common Stock are entitled to one vote per
share on all matters submitted to a vote of the stockholders,
including the election of directors. The Registrant's Amended and
Restated Certificate of Incorporation does not provide for
cumulative voting for the election of directors. The holders of
Common Stock are entitled to dividends as declared from time to
time by the Board of Directors from funds legally available
therefor and such holders will be entitled to receive pro rata all
assets of the Registrant available for distribution to such holders
upon liquidation. No shares of Common Stock have any preemptive
rights to subscribe for additional shares of capital stock. Shares
of Common Stock issued pursuant to the Plan of Reorganization will
be duly authorized, fully paid and non-assessable.
Under the Indenture (as such term is hereinafter
defined), dividends on the Common Stock can be paid only in certain
circumstances and up to a maximum amount. See "Notes -- Restricted
Investments and Restricted Stock Payments" below.
B. Warrants
The Warrants are non-callable, non-redeemable and
exercisable until March 31, 2001 at a price of $18.75 per share.
The number of shares of Common Stock purchasable upon the
exercise of each Warrant and the exercise price of the Warrant are
subject to adjustment if the Registrant (i) pays a dividend in
shares of Common Stock, (ii) subdivides its outstanding shares of
Common Stock, (iii) combines its outstanding shares of Common Stock
into a smaller number of shares of Common Stock, or issues by
reclassification or recapitalization of its shares of Common Stock,
other securities of the Registrant. An adjustment will not result
from the Registrant's sale of Common Stock on the open market or
the declaration of regular cash dividends.
C. Notes
The Notes will be issued under an indenture to be dated
on or about the Effective Date (the "Indenture") between the
Registrant and Chemical Bank, as trustee (the "Trustee"). The
terms of the Notes include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act
of 1939 (the "Trust Indenture Act") as in effect on the date of the
Indenture. The Notes are subject to all such terms, and reference
is made to the Indenture and the Trust Indenture Act for a
statement thereof. The following summary of certain provisions of
the Indenture does not purport to be complete and is qualified in
its entirety by reference to the Indenture, including the
definitions therein. Copies of the proposed forms of Indenture and
Notes have been filed as exhibits to this Registration Statement
and are incorporated herein by reference thereto. Capitalized
terms used herein and not otherwise defined herein shall have the
meanings as defined in the Indenture.
Certain Definitions
Set forth below is a summary of certain of the defined
terms used in the Indenture. Reference is made to the Indenture
for the full definition of all such terms as well as any other
capitalized terms used herein for which no definition is provided.
"Adjusted Consolidated Net Income" means, with respect to
the period commencing on the Opening Balance Sheet Date and
continuing until the date of determination (i) the sum of fifty
percent of the Consolidated Net Income for each fiscal year or
partial fiscal year in such period minus (ii) the sum of one
hundred percent of the Consolidated Net Losses for each fiscal year
or partial fiscal year in such period.
"Affiliate" means any Person directly or indirectly
controlling or controlled by or under common control with the
Company or any Guarantor, as the case may be; provided, however,
that the term Affiliate, with respect to the Company, will not
include any Restricted 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.
"Average Life to Stated Maturity" means, with respect to
any Indebtedness, at any date of determination, the quotient
obtained by dividing (a) the sum of the products of (i) the number
of years from such date to the date or dates of each successive
scheduled principal payment (including, without limitation, any
sinking fund requirements) of such Indebtedness multiplied by (ii)
the amount of each such principal payment by (b) the sum of all
such principal payments.
"Board of Directors" means the Board of Directors of any
Person or any committee of the Board authorized to act for it
hereunder.
"Capital Stock" means any shares, interests,
participations, rights in or other equivalents (however designated)
of such Person's capital stock, and any rights (other than debt
securities convertible into capital stock), warrants or options
exchangeable for or convertible into such capital stock.
"Capitalized Lease" means, at the time any determination
thereof is to be made, any lease of property, real or personal, in
respect of which the present value of the minimum rental commitment
would be capitalized on a balance sheet of the lessee in accordance
with GAAP.
"Capitalized Rent" under any Capitalized Lease will mean,
at any time as of which the amount thereof is to be determined, the
lesser of (i) 10 times the amount of the maximum net rent payable
under such lease during any period of 12 consecutive months
subsequent to the date as of which the rental obligation is to be
determined and (ii) the lesser of (x) the aggregate amount of net
rent payable under such lease until the expiration thereof in
accordance with its terms and (y) the aggregate amount of net rent
payable thereunder until the first date as of which the lessee will
have the right to terminate such lease, together with any other
payments required on the part of the lessee to effect such
termination. The net rent payable under any lease for any period
will be the total amount of the rent payable by the lessee with
respect to such period but will not include amounts required to be
paid on account of maintenance and repairs, insurance, taxes,
assessments, water rates and similar charges. The amount to be
included in net rent for any given period with respect to any
portion thereof which may be a variable will be such amount as the
Registrant will in good faith determine is reasonably to be
expected to be due as a result of such variable.
"Cash Equivalents" means, at any time: (i) any evidence
of Indebtedness with a maturity of 180 days or less issued or
directly and fully guaranteed or insured by the United States of
America or any agency or instrumentality thereof (provided that the
full faith and credit of the United States of America is pledged in
support thereof); (ii) certificates of deposit or acceptances with
a maturity of 180 days or less of any financial institution that is
a member of the Federal Reserve System having combined capital and
surplus and undivided profits of not less than $500,000,000; (iii)
commercial paper with a maturity of 180 days or less issued by a
corporation that is not an Affiliate of the Company organized under
the laws of any state of the United States or the District of
Columbia and rated at least A-1 by S&P or at least P-1 by Moody's
or at least an equivalent rating category of another nationally
recognized securities rating agency; and (iv) repurchase agreements
and reverse repurchase agreements, in each case maturing within 180
days from the date of acquisition, relating to marketable direct
obligations issued or unconditionally guaranteed by the government
of the United States of America or issued by any agency thereof and
backed by the full faith and credit of the United States of
America; provided that the terms of such agreements comply with the
guidelines set forth in the Federal Financial Agreements of
Depository Institutions With Securities Dealers and Others, as
adopted by the Comptroller of the Currency on October 31, 1985.
"Change of Control" means (a) a sale of all or
substantially all of the assets of the Company as an entirety to
any person (within the meaning of Rule 13d-3 under the Exchange Act
and Sections 13(d) and 14(d) of the Exchange Act), (b) the approval
by the stockholders of the Company of a plan of liquidation or
dissolution, or (c) any person or group (within the meaning of Rule
13d-5 under the Exchange Act and Section 13(d) and 14(d) of the
Exchange Act) becoming, directly or indirectly, the "beneficial
owner," as defined in Rule 13d-3 under the Exchange Act (in a
single transaction or in a related series of transactions, by way
of merger, consolidation or other business combination or
otherwise), of greater than 50% of the total voting power entitled
to vote in the election of directors, managers or trustees of the
Company or such other person surviving the transaction.
"Change of Control Triggering Event" means the occurrence
of both a Change of Control and Rating Decline.
"Consolidated Net Income", with respect to any period,
means net income of the Company and its Subsidiaries, other than
Rosebud, Construction Aggregates and any Subsidiary referred to in
clause (i) of the definition of Restricted Subsidiary (as set forth
below), all as consolidated (except as expressly provided herein)
and determined in accordance with GAAP.
"Consolidated Net Loss", with respect to any period,
means net losses of the Company and its Subsidiaries, other than
Rosebud, Construction Aggregates and any Subsidiary referred to in
clause (i) of the definition of Restricted Subsidiary (as set forth
below), all as consolidated (except as expressly provided in the
Indenture) and determined in accordance with GAAP.
"Consolidated Net Worth" means the total assets of a
Person and its Restricted Subsidiaries minus the total liabilities
of a Person and its Restricted Subsidiaries, as consolidated
(except for the exclusion of Subsidiaries which are not Restricted
Subsidiaries) and determined in accordance with GAAP.
"Construction Aggregates" means Construction Aggregates
Limited, a corporation organized under the laws of Nova Scotia.
"Default" means any event which is, or after notice or
passage of time or both would be, an Event of Default.
"Dividends" means any dividends declared by a Person on
its Capital Stock (other than (i) dividends payable to the Company
or any Restricted Subsidiary, (ii) dividends payable solely in
Capital Stock of the Company and (iii) dividends required under the
terms of Preferred Stock of a Restricted Subsidiary permitted under
Section 4.10 of the Indenture).
"EBITDA" means, in respect of any period, the
Consolidated Net Income (or Consolidated Net Loss), plus any
amounts that were deducted from revenues in determining such
Consolidated Net Income (or Consolidated Net Loss) (i) in respect
of depreciation, amortization and Interest Expense, (ii) the
aggregate amount of any provisions (or minus any credits) for
federal, state, and local franchise, income and similar taxes
(including taxes based on capital), extraordinary losses and gains
and (iii) without duplication, the aggregate amount of all non-cash
charges to Consolidated Net Income (or Consolidated Net Loss).
"Employee Settlement Agreements" means settlement
agreements in effect on the Effective Date with the Pension
Benefits Guaranty Corporation, the Official Committee of Retired
Employees of the Registrant and the Registrant's [(and its
Subsidiaries')] unions, and all related agreements, documents and
instruments, as amended, modified and supplemented from time to
time.
"Event of Default" has the meaning assigned to such term
in Section 6.01 of the Indenture.
"Excepted Lease" means (i) any lease existing on the
Effective Date and renewals or extensions thereof and (ii) any
lease from the Registrant or any Restricted Subsidiary to the
Registrant or any Restricted Subsidiary.
"Excess Net Proceeds" means at any date of determination,
the excess of (i) all Net Proceeds received from time to time
during the Company's fiscal year (or portion thereof) in which such
date occurs by the Registrant or any Restricted Subsidiary over
(ii) $2 million.
"Fair Value" means fair market value as determined in
good faith by the Board of Directors of the Registrant.
"First Fiscal Year" means the first four complete fiscal
quarters following the Opening Balance Sheet Date.
"GAAP" means generally accepted accounting principles in
effect from time to time.
"Guarantee" means the Guarantee set forth in Article 10
of the Indenture to be made for the benefit of the holders of Notes
from time to time by the Guarantors.
"Guarantee Agreement" means the Guarantee Agreement,
dated of even date with the Indenture, between the Company and
Chemical Bank, as trustee, pursuant to which the Company has
guaranteed a portion of certain Asset Proceeds Notes issued by
Rosebud pursuant to a separate Indenture, dated as of such date,
between Rosebud and Chemical Bank, as Trustee.
"Guarantor" means each Restricted Subsidiary in existence
from time to time which has by supplemental indenture become
obligated under the Guarantee in accordance with Section 10.01 of
the Indenture.
"Indebtedness" of any Person means, without duplication,
(a) 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), (b) all amounts owing by such
Person under Purchase Money Indebtedness or other purchase money
liens or conditional sales or other title retention agreements, (c)
all indebtedness secured by any mortgage, pledge or other lien or
encumbrance upon property owned by such Person, even though such
Person has not assumed or become liable for the payment of such
indebtedness, (d) all Capitalized Rent under any Capitalized Lease
(other than Excepted Leases) and (e) the lowest mandatory or
optional redemption price or liquidation value of outstanding
Preferred Stock issued by such Person, if a Restricted Subsidiary,
and owned by any Person other than the Company or another
Restricted Subsidiary; provided, however, that the term
Indebtedness excludes (i) trade payables and other accrued current
liabilities incurred in the ordinary course of business; (ii) any
obligations to the Company or any Restricted Subsidiary; (iii) any
obligations arising from the Production Payment Transaction, (iv)
in the case of the Company, any obligations arising under the
Guarantee Agreement and (without limitation) any obligations on any
Payment Notes hereafter issued thereunder and (v) 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 as and when due, and thereafter such
money and evidences of indebtedness so deposited shall not be
included in any computation of the assets of such Person. In
determining the Indebtedness of the Company and its Restricted
Subsidiaries, any Indebtedness for which the Company and one or
more Restricted Subsidiaries or for which two or more Restricted
Subsidiaries are obligated shall be deemed to be Indebtedness of
only one such Person.
"Interest Expense" means, in respect of any period, all
interest charges on Indebtedness of the Registrant and its
Restricted Subsidiaries (and, in the case of Preferred Stock
included in the definition of Indebtedness, mandatory dividends
thereon when payable, regardless of when declared, other than
liquidating and similar dividends) paid or payable (or, with
respect to any original issue discount, accrued) in respect of such
period, excluding, however, imputed interest on Capitalized Leases,
but including without limitation all late charges, funding cost
adjustments, prepayment and yield protection fees paid or payable
in respect of Indebtedness, and interest payable on obligations
arising under the Production Payment Transaction, during such
period.
"Interest Expense Ratio" means the ratio of (i) the
aggregate EBITDA for the four complete fiscal quarters immediately
preceding the date of calculation to (ii) the aggregate Interest
Expense for such four immediately preceding fiscal quarters;
provided, however, that in calculating the Interest Expense Ratio
for purposes of determining whether proposed Indebtedness may be
incurred (A) Interest Expense will be calculated on a pro forma
basis giving effect to the incurrence of such proposed Indebtedness
as if it were incurred on the first day of such four fiscal quarter
period and (B) if the incurrence of such indebtedness relates to
any transaction proposed by the Company (and otherwise permitted
hereunder), any EBITDA, determined on a pro forma basis, which the
Company or its Restricted Subsidiaries would have received had such
transaction been consummated immediately prior to such four fiscal
quarter period will be included within the aggregate EBITDA
referenced in clause (i) above for purposes of such calculation.
"Inventory" means finished goods, work in process, repair
parts and supplies, fuels and packages, raw materials and goods in
transit.
"Investment" means, other than in the ordinary course of
business, providing any cash or assets to, or extending credit to,
or becoming liable in respect of, or otherwise providing for,
payment of any Indebtedness of, any Person, whether or not in
exchange for securities of any Person or other consideration.
"Investment Grade" means BBB- or higher by S&P and Baa3
or higher by Moody's or the equivalent of such ratings by S&P or
Moody's.
"Kosmos" means Kosmos Cement Company, a Kentucky
partnership.
"Lien" means, with respect to any asset, any mortgage,
lien, pledge, charge, security interest or similar encumbrance in
respect of such asset, whether or not filed, recorded or otherwise
perfected under applicable law (including any conditional sale or
other title retention agreement, any Capitalized Lease in the
nature thereof, and any filing of or agreement to give any
financing statement under the Uniform Commercial Code or equivalent
statutes of any jurisdiction other than an information filing), but
does not include, in the case of the Company and its Restricted
Subsidiaries, the lien granted to the Trustee under Section 7.07 of
the Indenture.
"Maturity Date" of the Securities means January 31, 2004.
"Moody's" means Moody's Investors Services, Inc. and its
successors.
"Net Proceeds" with respect to any Sale of Assets, means
the cash (in U.S. dollars or currency freely convertible into U.S.
dollars) received from such Sale of Assets after (i) provision for
all income or other taxes measured by or resulting from such sale
or other disposition or the transfer of the proceeds thereof to the
Registrant that are payable by the Registrant or any of its
Subsidiaries (as reasonably and in good faith estimated by the
Chief Financial Officer of the Registrant or such Subsidiary),
(ii) payment of all brokerage commissions, legal and accounting
fees and expenses and other fees and expenses related to such sale
or other disposition, (iii) deduction of any amounts required to be
paid to the lender pursuant to any Permitted Working Capital Loans
upon such Sale of Assets, (iv) deduction of amounts provided by the
Registrant or its Subsidiaries as a reserve on its regularly
prepared balance sheets (or the notes thereto), in accordance with
GAAP consistently applied (including, without limitation, subject
to the next succeeding sentence, all amounts escrowed, pledged or
otherwise set aside to assume payment of such liabilities), against
any liabilities associated with the assets sold in such Sale of
Assets and retained by the Registrant or its Subsidiaries,
including, without limitation, trade payables, payroll and pension
and other employment and postemployment benefit liabilities and
liabilities related to environmental matters, or against any
indemnification obligations associated with the sale or other
disposition, (v) deduction of amounts set aside in good faith for
the construction, acquisition or improvement of assets as
contemplated by clause (D) of the proviso to the definition of
"Sale of Assets," and (vi) deduction of any amounts required to
discharge any Permitted Liens on the assets sold, leased, conveyed
or otherwise disposed of. Net Proceeds (i) will not include any
proceeds from the transfer of the Non-Core Assets pursuant to the
Plan of Reorganization but (ii) will include, when received in cash
(x) any Net Proceeds from the sale or other disposition of any
non-cash proceeds received by the Registrant or any of its
Subsidiaries from a Sale of Assets and (y) any Net Proceeds
released from escrow, pledge or other set aside pursuant to the
contract, settlement or other instrument or document governing such
aspect of the Sale of Assets and amounts no longer reserved or set
aside as described in clause (iv) or (v), respectively, of the
immediately preceding sentence.
"Officer" means the Chairman of the Board, the President,
any Senior Vice-President, Executive Vice-President or any other
Vice-President, the Treasurer or the Secretary of the Registrant or
a Guarantor, as the case may be.
"Officer's Certificate" means a certificate signed by any
Officer of the Registrant or a Guarantor, as the case may be.
"Opening Balance Sheet Date" means [April 1, 1994].
"Opinion of Counsel" means a written opinion from legal
counsel, who may be an employee of or counsel for the Registrant or
a Guarantor or other counsel reasonably acceptable to the Trustee.
"Payment Notes" has the meaning assigned to such term in
the Guarantee Agreement.
"Permitted Acquisitions" means acquisitions of assets in
the ordinary course of business and acquisitions approved by the
Board of Directors of the Registrant (including by way of merger or
consolidation) of any assets (but not of less than 100% of the
Capital Stock or other equity interests) of any Person or any
division or line of business, provided that neither the Registrant
nor any Restricted Subsidiary of the Registrant (other than the
acquired Person and its Subsidiaries) incurs any liability,
contingent or otherwise, for the payment of any deferred portion of
the purchase price therefor, other than Purchase Money
Indebtedness, or for any Indebtedness, obligation or liability,
contingent or otherwise, other than any such liability, contingent
or otherwise, which the Registrant could incur without violation of
this Agreement.
"Permitted Investment" means (i) any Investment in the
Registrant or any Restricted Subsidiary (whether or not such Person
is a Restricted Subsidiary before such Investment); (ii)
Investments in obligations of, or guaranteed by the United States
government or any agency or political subdivision thereof; (iii)
Investments in commercial paper issued by corporations maturing
within 180 days from the date of the original issue thereof, and
rated "P-1" or better by Moody's or "A-1" or better by S&P or an
equivalent rating or better by any other nationally recognized
securities rating agency; (iv) Investments in certificates of
deposit issued or acceptances accepted by or guaranteed by any bank
or trust company organized under the laws of the United States of
America or any state thereof or the District of Columbia, in each
case having capital, surplus and undivided profits totalling more
than $100,000,000 maturing within one year of the date of purchase;
(v) money market funds organized under the laws of the United
States of America or any state thereof that invest substantially
all of their assets in any of the types of Investments described in
clause (ii), (iii) or (iv) above or (xii) below; (vi) any
additional Investments in, or purchases of additional interests in,
Kosmos, (vii) any advance to Rosebud or its Subsidiaries or
Affiliates permitted under the Management Services Agreement or
otherwise expressly contemplated by the Plan of Reorganization,
(viii) any Investment in Construction Aggregates after the First
Fiscal Year provided the aggregate amount of such Investments in
any 12-month period will not exceed $2 million, net of cash
repayments during such period, (ix) any Investments required
pursuant to any agreement existing on the date hereof, (x)
Permitted Acquisitions, (xi) non-cash consideration received in a
Sale of Assets or series of related Sales of Assets, to the extent
permitted in Section 4.13 of the Indenture, (xii) Cash Equivalents;
(xiii) Investments in any Affiliates during the First Fiscal Year
in the aggregate amount of not more than $5 million; and (xiv)
other Investments expressly contemplated by the Plan of
Reorganization.
"Permitted Liens" means (1) Liens which may be granted
from time to time to secure and/or maintain Permitted Working
Capital Loans; (2) Liens provided for or expressly contemplated by
the Plan of Reorganization or existing on the Effective Date
(including, without limitation, liens granted in respect of the
Registrant's settlement agreement relating to RMC LONESTAR, a
California general partnership) or thereafter created to replace
such Liens; (3) Liens in favor of the Trustee on all property and
funds held or collected by the Trustee as security for the
performance by the Registrant of its obligations of payment to, and
reimbursement and indemnification of, the Trustee for its services
under the Indenture and any similar liens in favor of the trustee
under any indenture under which the Payment Notes may be issued;
(4) Liens for taxes or assessments and similar charges, or imposed
in connection with litigation or asserted claims, either not
delinquent or contested in good faith by appropriate proceedings
and as to which the Registrant or a Subsidiary shall have set aside
on its books such reserves as it deems adequate (provided such
reserves will be in accordance with GAAP); (5) Liens incurred, or
pledges and deposits made, in connection with workers'
compensation, unemployment insurance and other social security
benefits, or securing the performance of leases, statutory
obligations, progress payments, surety and appeal bonds and other
obligations of like nature, but only to the extent any of the
foregoing are incurred in good faith in the ordinary course of
business; (6) Liens imposed by law, such as mechanics', carriers',
warehousemen's, materialmen's and vendors' Liens, incurred in good
faith in the ordinary course of business either in respect of
amounts not delinquent or contested in good faith by appropriate
proceedings as to which the Registrant or a Subsidiary will have
set aside on its books such reserves as it deems adequate (provided
such reserves will be in accordance with GAAP); (7) zoning
restrictions, easements, licenses, covenants, reservations,
restrictions on the use of real property or irregularities of title
incident thereto that do not in the aggregate materially detract
from the value of the property or assets of the Registrant or any
of its Subsidiaries, as the case may be, or materially impair the
use of such property in the operation of the Registrant's or any
Subsidiary's business; (8) Liens created by Restricted Subsidiaries
of the Registrant to secure Indebtedness of such Restricted
Subsidiaries to the Registrant or to other Restricted Subsidiaries
thereof; (9) any Lien on any asset acquired as a part of a
Permitted Acquisition (10) Liens on the Capital Stock or other
securities of any Unrestricted Subsidiary or any asset (including
the stock of any Subsidiary thereof) of any Unrestricted Subsidiary
to secure Indebtedness of such Unrestricted Subsidiary; (11) Liens
on assets acquired in connection with the incurrence of Purchase
Money Indebtedness in accordance with the definition thereof;
(12) Liens granted in connection with the incurrence of Refinancing
Indebtedness in accordance with the definition thereof; (13) Liens
securing Employee Settlement Agreements; (14) Liens required under
the Production Payment Transaction in accordance with the
definition thereof; (15) any Liens on the Registrant's West Nyack,
New York, plant and related facilities incurred in connection with
West Nyack Indebtedness; (16) Liens under Capital Leases and sale
and leaseback transactions, each to the extent permitted under
Section 4.08 of the Indenture; (17) Liens on the Capital Stock of
Rosebud to secure the Registrant's obligations under the Guarantee
Agreement or any Payment Notes issued thereunder; (18) other Liens
expressly contemplated by the Plan of Reorganization; and (19) any
other Liens existing from time to time securing obligations not
exceeding, in the aggregate, $1.5 million.
"Permitted Working Capital Loans" means Indebtedness for
money borrowed under committed revolving credit or similar
committed facilities for working capital purposes, or the issuance
of letters of credit pursuant to the any such facility, which
facility may or may not be secured by a lien on Inventory and/or
Receivables that the Registrant or any Restricted Subsidiary of the
Registrant may have from time to time, to the extent that the
aggregate principal amount of all such Indebtedness outstanding
under all such facilities at any time does not exceed the greater
of (i) $35 million or (ii) the sum of 85% of the book value of the
Receivables of the Registrant and its Restricted Subsidiaries and
60% of the book value of the Inventory of the Registrant and its
Restricted Subsidiaries.
"Person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust,
unincorporated organization, or government or any agency or
political subdivision thereof.
"Preferred Stock", as applied to the stock of any Person,
means any class of stock of such Person which has a preference in
respect of dividends of such Person or other distribution of
assets, or in respect of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution and winding up of
such Person, over any other class of stock of such Person.
"Production Payment Transaction" means the Amended and
Restated Conveyance of Production Payments, the Amended and
Restated Marketing Agreement, the Amended and Restated Option
Agreement and the Amended and Restated Expense and Interest
Agreement, each dated as of September 1, 1988 and between the
Registrant and John Fouhey, as Trustee for Selleck Hill Trust, and
all related documents and instruments, as each of the foregoing may
have been amended, amended and restated or supplemented on or prior
to the Effective Date.
"Purchase Money Indebtedness" means any Indebtedness
incurred by the Registrant or any of its Restricted Subsidiaries in
connection with the acquisition or construction by the Registrant
or such Restricted Subsidiary, after the Effective Date, of
equipment or other fixed assets, including Indebtedness incurred to
finance, refinance or refund the cost (including the cost of
construction) of such assets; provided that a) the principal amount
of such Indebtedness does not exceed 75% of the Fair Value of the
assets being acquired or the cost of construction paid by or
charged to the Registrant or such Restricted Subsidiary and b) such
Indebtedness shall not be secured by any assets of the Registrant
or any Restricted Subsidiary other than the assets acquired or
constructed with the proceeds of such Indebtedness.
"Rating Agencies" means (i) S&P, (ii) Moody's or (iii) if
S&P or Moody's or both do not make a rating of the Notes publicly
available, a nationally recognized securities rating agency or
agencies, as the case may be, selected by the Registrant, which
will be substituted for S&P or Moody's or both, as the case may be.
"Rating Category" means (i) with respect to S&P, any of
the following categories: BB, B, CCC, CC, C and D (or equivalent
successor categories); (ii) with respect to Moody's, any of the
following categories: Ba, B, Caa, Ca, C and D (or equivalent
successor categories); and (iii) the equivalent of any such
category of S&P or Moody's used by another Rating Agency. In
determining whether the rating of the Notes has decreased by one or
more gradations, gradations within Rating Categories (+ and - for
S&P; 1, 2 and 3 for Moody's; or the equivalent gradations for
another Rating Agency) shall be taken into account (e.g., with
respect to S&P, a decline in a rating from BB+ to BB, as well as
from BB- to B+, shall constitute a decrease of one gradation).
"Rating Date" means the date which is 90 days prior to
the earlier of (i) a Change of Control and (ii) public notice of
the occurrence of a Change of Control or of the intention by the
Registrant to effect a Change of Control.
"Rating Decline" means that on or within 90 days after
the date of public notice of the occurrence of a Change of Control
or of the intention by the Registrant to effect a Change of Control
(which period shall be extended so long as the rating of the Notes
is under publicly announced consideration for possible downgrade by
any of the Rating Agencies as a result of such Change of Control)
the following shall occur: (a) in the event the Notes are rated by
either Moody's or S&P on the Rating Date as Investment Grade, the
rating of the Notes by both Rating Agencies shall be below
Investment Grade; or (b) in the event the Notes are rated below
Investment Grade by both Rating Agencies on the Rating Date, the
rating of the Notes by either Rating Agency shall be decreased by
one or more gradations (including gradations within Rating
Categories as well as between Rating Categories).
"Receivables" means all "accounts", all "chattel paper",
all "instruments" evidencing "accounts" and all proceeds thereof,
as each such term is defined in the Uniform Commercial Code as in
effect in the State of New York on the Effective Date.
"Refinancing Indebtedness" means Indebtedness, the
proceeds of which are used to extend, renew, refinance or refund
then outstanding Indebtedness of the Registrant or its Restricted
Subsidiaries permitted under this Indenture, if such refinancing or
refunding Indebtedness (i) does not have a principal amount in
excess of the principal amount of the Indebtedness being so
refinanced or refunded, plus customary fees, expenses and costs
related to the incurrence of such Refinancing Indebtedness;
(ii) gives its holders collateral with no greater value (as
determined by the Registrant's Board of Directors) and no more
guaranties from the Registrant and its Subsidiaries (other than
Unrestricted Subsidiaries) than the Indebtedness being refinanced;
(iii) has an Average Life to Stated Maturity no shorter than the
Indebtedness being refinanced; and (iv) is at least as junior or no
more senior in right of payment to the Notes, as the case may be,
as the Indebtedness being refinanced (it being understood that the
fact that such Indebtedness is secured by a Permitted Lien or
guaranteed by an Unrestricted Subsidiary will not cause the
Indebtedness to be excluded from the definition of Refinancing
Indebtedness under this clause (iv)).
"Restricted Stock Payments" means any payment on account
of the purchase, redemption or other retirement of any shares of
Capital Stock or any other distribution in respect thereof (other
than Dividends, payments to the Registrant or any Restricted
Subsidiary, dividends payable solely in Capital Stock of the
Registrant and dividends required under the terms of Preferred
Stock of a Restricted Subsidiary permitted under Section 4.10 of
the Indenture).
"Restricted Subsidiary" means, for any time of
determination: (A) any Subsidiary which has assets with a book
value at such time in excess of $1,000,000 (as reflected in the
Registrant's most recent audited consolidated financial statements)
other than: (i) a Subsidiary substantially all of the physical
properties of which are located, and substantially all of the
business of which is carried on, outside the limits of the United
States of America (including Alaska and Hawaii) or which is
organized under the laws of any jurisdiction other than the United
States of America, the District of Columbia, the Commonwealth of
Puerto Rico, or 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
Registrant 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; (iii)
Rosebud, its Subsidiaries and its and their successors-in-interest;
or (iv) Construction Aggregates; and (B) any Subsidiary specified
in clause (i), (ii), or (iv) of clause (A) above which the
Registrant, by resolution of the Board of Directors, shall have
designated as a Restricted Subsidiary. As of the Effective Date,
New York Trap Rock Corporation will be a Restricted Subsidiary.
"Rosebud" means Rosebud Holdings, Inc., a Delaware
corporation and a Subsidiary of the Registrant.
"S&P" means Standard & Poor's Corporation and its
successors.
"Sale of Assets" means any sale, lease or other
conveyance (including by way of merger or consolidation) of assets
(including the Capital Stock of any Subsidiary of the Registrant
but excluding the Capital Stock of the Registrant) of (i) the
Registrant or any Restricted Subsidiary or (ii) any Unrestricted
Subsidiary to the extent and solely to the extent that the
Registrant or any Restricted Subsidiary actually receives a
distribution of some or all of the Net Proceeds of such sale, lease
or conveyance; provided, however, that the term "Sale of Assets"
does not include (A) any consolidation or merger involving the
Registrant or any Subsidiary for the purpose of reincorporating the
Registrant or such Subsidiary in another jurisdiction; (B) any
sale, lease, conveyance or other disposition of assets among or
between the Registrant and one or more of its Restricted
Subsidiaries or among or between Restricted Subsidiaries,
including, without limitation, the merger of any Restricted
Subsidiary with and into the Registrant or any other Restricted
Subsidiary of the Registrant; (C) any sale, lease or conveyance
required under the Production Payment Transaction; (D) any sale,
lease, conveyance or other disposition of assets of the Registrant
or any Subsidiary to the extent the proceeds thereof are reinvested
substantially contemporaneously with their receipt in the
construction, acquisition or improvement of assets by the
Registrant and/or any Restricted Subsidiary which the Board of
Directors has in good faith determined will be useful in the
business to be conducted by the Registrant or such Restricted
Subsidiary; (E) any sale, lease, conveyance or other disposition of
assets pursuant to a sale-leaseback arrangement permitted pursuant
to this Indenture; (F) any sale of Receivables provided such sale
is without recourse to the Registrant or its Restricted
Subsidiaries or any sale of Receivables with recourse to the
Registrant or its Restricted Subsidiaries provided such sale is
Indebtedness permitted under this Indenture; (G) any sale,
assignment, transfer, lease, conveyance or other disposition of
assets that is governed by the provisions of Article 5 of the
Indenture; (H) any sale, assignment, transfer, lease, conveyance or
other disposition of assets that is in the ordinary course of
business or (I) any sale, assignment, transfer, lease, conveyance
or other disposition of any property, right or interest of the
Registrant or any Subsidiary to Rosebud or any of its Subsidiaries
or Affiliates as contemplated by the Plan of Reorganization. For
purposes of this Indenture, a reinvestment of proceeds shall be
considered substantially contemporaneous if (1) the Board of
Directors of the appropriate Person has approved the construction,
acquisition or improvement within 12 months before or 12 months
after the consummation of the sale, lease or other conveyance of
assets and (2) on or before the date which is six months after such
approval such company shall have entered into a definitive
agreement for such construction, acquisition or improvement or
shall have commenced such construction, acquisition or improvement.
"Subsidiary" shall mean any Person more than 50% of the
outstanding voting stock of which is owned, directly or indirectly,
by the Registrant or by one or more other Subsidiaries. For the
purposes of this definition, "voting stock" means stock or
partnership interests or any other equity interest which ordinarily
has voting power for the election of directors or, if the Person is
not a corporation, voting power to direct the management of such
Person, whether at all times or only so long as no senior class of
stock or equity has such voting power by reason of any contingency.
"Unrestricted Subsidiary" shall mean any Subsidiary which
is not a Restricted Subsidiary[; all Subsidiaries as of the date of
the Indenture are Unrestricted Subsidiaries other than New York
Trap Rock Corporation].
"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.
"West Nyack Indebtedness" means the first $25 million of
principal amount of Indebtedness from time to time outstanding (and
accrued interest thereon), including without limitation Capitalized
Leases, sale-leaseback transactions or any other kind of
Indebtedness incurred in connection with the West Nyack
Modernization.
"West Nyack Modernization" means the proposed
modernization of the West Nyack, New York, plant and related
facilities owned by the Registrant and/or its Restricted
Subsidiaries.
Paying Agent and Registrar
Principal of, and interest on the Notes will be payable,
and the Notes may be presented for registration of transfer or
exchange, at the offices or agencies of the respective Paying
Agents and Registrars in New York, New York. Holders must
surrender the Securities to a Paying Agent to collect principal
payments. The initial Paying Agent and Registrar is the Trustee.
The Registrant may pay principal and interest by check and may mail
interest checks to the registered holders of the Notes. The
Registrant may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection
with certain transfers or exchanges. The Registrant or any of its
subsidiaries may act as Paying Agent or Registrar and the
Registrant may change the Paying Agent or Registrar without prior
notice to holders of Notes.
Maturity, Interest and Principal
The Notes will have a final maturity date of January 31,
2004 and will bear interest at an annual rate of 10% with interest
payable semiannually on January 31 and July 31 of each year.
Interest will be computed on the basis of a 360 day year of twelve
30-day months. The Notes will be issued in the original aggregate
principal amount of $78,000,000.
The Notes will be general unsecured obligations of the
Registrant; however, the Notes will be entitled to the benefit of
the Guarantee.
Denominations
Notes will be issued in registered form without coupons
only in $1,000 denominations and in integral multiples of $1,000.
Optional Redemption
The Notes will be subject to redemption (otherwise than
through the mandatory redemption described below) upon at least 60
days' notice, at any time in whole, or from time to time in part,
at the election of Registrant, at a redemption price equal to 100%
of their principal amount, together with accrued and unpaid
interest, if any, to the date fixed for redemption ("Redemption
Price"). If less than all the Notes are to be redeemed, the
Trustee will select the Notes or portions thereof to be redeemed
pro rata by lot or such other method as the Trustee considers fair
and equitable to the holders of the Notes.
Mandatory Redemption
Upon a Sale of Assets, the Excess Net Proceeds derived
therefrom are to be deposited with the Trustee within 45 days after
the end of each fiscal quarter of the Registrant; provided,
however, if the Registrant has determined in good faith to reinvest
substantially contemporaneously all or any portion of the Net
Proceeds derived from any such Sale of Assets in the construction,
acquisition or improvement of assets by the Registrant and/or any
Restricted Subsidiary, then those Net Proceeds will not be
available for deposit with the Trustee. If at any time there is at
least $5,000,000 of Excess Net Proceeds on deposit with the
Trustee, all such monies will be used by the Trustee as soon as
practicable to redeem the Notes at the Redemption Price. The
amount of any such deposited monies will be reduced by the
principal amount of any Notes that the Registrant has (no more than
six months prior to the Sale of Assets in respect of which the
deposit is to be made and before the latest date permissible for
making such deposit) optionally redeemed or purchased and delivered
to the Trustee for cancellation ("Redemption Credit Securities").
Sinking Fund
Commencing in the year 2001, the Registrant is required
to make three annual payments of $10,000,000 each into a sinking
fund account maintained with the Trustee for redemption of the
Notes. The amount of any such required sinking fund account will
be reduced, without duplication, by the principal amount of any
Notes that the Registrant has optionally redeemed or purchased and
delivered to the Trustee for cancellation; provided, however, that
no such reduction shall be made in respect of any Redemption Credit
Securities.
Guarantee
The Registrant is obligated to cause each Restricted
Subsidiary to unconditionally guarantee the due and punctual
payment of the principal of, and interest on, the Notes.
Upon any Sale of Assets permitted by the terms of the
Indenture, or any transaction which would be a Sale of Assets if
not for the provisions of clause (D) of the definition of Sale of
Assets, which, in either case, consists of all of the Capital Stock
of a Restricted Subsidiary or the sale of substantially all of the
assets of a Restricted Subsidiary, such Restricted Subsidiary's
obligations in respect of the Guarantee will be released.
In addition, if any Restricted Subsidiary ceases to be a
Restricted Subsidiary by virtue of its having had total assets with
a book value of less than $1,000,000 on the last day of each of any
four consecutive fiscal quarters of the Registrant, such Restricted
Subsidiary will be released from its obligation under the
Guarantee.
Restricted Investments and Restricted Stock Payments
The Registrant will not itself, and will not permit any
Restricted Subsidiary to, declare any Dividends or make any
Restricted Stock Payment or Investment (other than Permitted
Investments), unless, in the case of Dividends, such Dividends are
declared to be payable not more than 120 days after the date of
declaration and unless, in each case, after giving effect to the
proposed Dividend, Restricted Stock Payment or Investment and to
any other Dividends declared but not yet paid, at the date
(hereinafter called the "Computation Date") of such declaration (in
case of a Dividend) or of such Restricted Stock Payment or
Investment (i) the Interest Expense Ratio will be at least equal to
2.0: 1.0, (ii) there is no outstanding Default or Event of Default
and (iii) the sum of:
(A) Adjusted Consolidated Net Income, plus:
(B) the aggregate amount of net cash proceeds to the
Registrant from sales subsequent to the Opening Balance Sheet Date
of shares of its Capital Stock (other than Preferred Stock of a
Restricted Subsidiary permitted under section 4.10 of the
Indenture);
shall be greater than the sum of
(C) the aggregate amount of all such Dividends declared
and Restricted Stock Payments made during the period commencing
Opening Balance Sheet Date to and including the Computation Date,
plus
(D) the excess, if any, of (1) the amount of the
aggregate unliquidated Investments (computed as hereinbelow
provided) other than Permitted Investments on the Computation Date
of the Company and all Restricted Subsidiaries in all Persons other
than Restricted Subsidiaries, over (2) the aggregate of (x) the
amount of the aggregate unliquidated Investment (so computed) other
than Permitted Investments on the Opening Balance Sheet Date of the
Registrant and all Restricted Subsidiaries in Persons other than
Restricted Subsidiaries and (y) the amount included in Consolidated
Net Income, if any, by which the aggregate of the net profits
realized upon any sales for cash after Opening Balance Sheet Date
by the Registrant and its Restricted Subsidiaries of its or their
Investments (other than Permitted Investments) in Persons other
than Restricted Subsidiaries exceeds the aggregate of the net
losses, if any, realized upon any such sales (such profits and
losses to be determined in accordance with GAAP and, in the case of
profits, after deducting all applicable taxes); provided that the
profit or loss on any such sale to the Registrant or to any
Restricted Subsidiary will not be included in such computation;
provided, however, that without regard to the foregoing
restrictions, (a) the Registrant may retire any shares of any class
of its Capital Stock by exchange for, or out of the proceeds of the
substantially concurrent sale of, other shares of its Capital
Stock, and neither any such retirement nor any such proceeds so
used shall be included in any computation provided for above and
(b) any Restricted Subsidiary may make any required payments
(including without limitation, dividend, sinking fund, and
mandatory redemption payments) on or in respect of any Preferred
Stock of such Restricted Subsidiary permitted under section 4.10 of
the Indenture. For purposes of Section 4.08 of the Indenture, the
issuance of Capital Stock upon the conversion of any Indebtedness
of the Registrant will be deemed to constitute a sale for cash of
such Capital Stock and the net proceeds of such sale will be deemed
to be an amount equal to the principal amount of such Indebtedness,
less applicable expenses and cash payments for fractional shares.
For the purposes of any computation provided for above,
the amount of any Dividend declared or Restricted Stock Payment
made in property other than cash, and the amount of any Investment
in a Person other than a Restricted Subsidiary made through the
transfer to it of any such property, will be deemed to be the Fair
Value of such property at the time of declaration (in the case of
Dividends) or at the time of payment or distribution or the making
of such Investment.
Also for the purpose of any computation provided for
above, the aggregate unliquidated Investment of the Registrant and
Restricted Subsidiaries in any Person other than a Restricted
Subsidiary will be computed in accordance with GAAP and will
include all Investments by means of stock purchase, loan, advance,
guarantee, capital contribution or otherwise, provided, however,
that
(A) amounts invested by the Registrant through the
exchange of its Capital Stock for Capital Stock of any such Person
or for assets contemporaneously transferred to such Person will be
disregarded;
(B) undistributed earnings of such Person will not be
included;
(C) there will not be deducted from the amounts invested
in any such Person any amounts received by the Registrant or any
Restricted Subsidiary (as dividends, interest or otherwise) as
earnings on its Investment in such Person;
(D) write-ups, write-downs or write-offs after the
Opening Balance Sheet Date, of Investments in such Person will be
disregarded; and
(E) accounts receivable from such Person arising in the
ordinary course of business from the sale of goods or services will
not be included.
Certain Limitations on Debt and Liens
The Registrant will not, and will not permit any
Restricted Subsidiary, directly or indirectly, to create, incur or
assume or guarantee or otherwise become liable or responsible for,
any Indebtedness, unless immediately thereafter and after giving
effect thereto, the Interest Expense Ratio shall be at least equal
to 2.0:1.0; provided, however, that nothing contained in the
foregoing will prevent the Registrant or any Restricted Subsidiary
from creating, incurring or assuming or guaranteeing or otherwise
becoming liable or responsible for (i) the Indebtedness evidenced
by the Notes, (ii) any Refinancing Indebtedness, (iii) any sale and
lease-back transaction the proceeds of which are reinvested
substantially contemporaneously with their receipt in connection
with the acquisition or improvement of capital assets of the
Registrant and/or any of its Restricted Subsidiaries; (iv) any
Permitted Working Capital Loans; (v) any West Nyack Indebtedness;
and (vi) other Indebtedness having an aggregate outstanding
principal amount of no more than $1.5 million.
Furthermore, the Registrant will not, and will not permit
any of its Restricted Subsidiaries to, create, incur, assume or
suffer to exist any Lien on any asset owned by the Registrant or
any of its Restricted Subsidiaries except Permitted Liens.
Sales of Assets
The Registrant will not, and will not permit any of its
Restricted Subsidiaries to, consummate a Sale of Assets unless (i)
the Registrant or such Restricted Subsidiary, as the case may be,
receives consideration at the time of such Sale of Assets at least
equal to the Fair Value of the shares or assets sold or otherwise
disposed of and (ii) at least 80% of such consideration consists of
(A) cash (which will be deemed to include amounts subject to post-
closing adjustments or contingencies and held in escrow or payable
pursuant to a promissory note maturing within 60 days of
consummation of such sale or disposition), (B) Cash Equivalents,
(C) readily marketable securities which the Registrant in good
faith expects to liquidate promptly following such Sale of Assets,
(D) the assumption of liabilities by the purchaser pursuant to such
Sale of Assets (including, in the case of the sale of the Capital
Stock of a Restricted Subsidiary, liabilities of such Restricted
Subsidiary) or (E) assets which the Board of Directors has in good
faith determined will be useful in the ordinary course of business
to be conducted by the Registrant or such Restricted Subsidiary.
Change of Control
Upon the occurrence of a Change of Control Triggering
Event, the Registrant will be obligated to make an offer to
purchase (a "Change of Control Offer") and will, subject to the
provisions described below, purchase, on a Business Day (the
"Change of Control Purchase Date") not more than 90 nor less than
30 days following the occurrence of the Change of Control
Triggering Event, all of the then outstanding Notes at a purchase
price (the "Change of Control Purchase Price") equal to 100% of the
principal amount thereof plus accrued and unpaid interest, if any,
to the Change of Control Purchase Date. The Registrant will,
subject to the provisions described below, be required to purchase
all Notes properly tendered into the Change of Control Offer and
not withdrawn.
Notice of a Change of Control Offer will be mailed by the
Registrant not later than the 60th day after the Change of Control
Triggering Event to the holders of Notes at their last registered
addresses with a copy to each Guarantor, the Trustee and the Paying
Agent. The Change of Control Offer will remain open from the time
of mailing for at least 20 Business Days and until 5:00 p.m., New
York City time, on the Change of Control Purchase Date.
On the Change of Control Purchase Date, the Registrant
will (i) accept for payment Notes or portions thereof (but only in
principal amounts which are integral multiples of $1,000) validly
tendered pursuant to the Change of Control Offer, (ii) deposit with
the Paying Agent money, in immediately available funds, sufficient
to pay the Change of Control Purchase Price of all Notes or
portions thereof so tendered and accepted, and (iii) deliver to the
Trustee the Notes so accepted together with an Officer's
Certificate setting forth the Notes or portions thereof tendered to
and accepted for payment by the Registrant.
The Registrant will not be required to make a Change of
Control Offer upon a Change of Control Triggering Event if a third
party makes the Change of Control Offer in the manner, at the times
and otherwise in compliance with the requirements applicable to a
Change of Control Offer made by the Registrant and purchases all
Notes validly tendered and not withdrawn under such Change of
Control Offer.
Events of Default
An "Event of Default" is defined in the Indenture to
mean, among other things, (i) failure by the Registrant or any
Guarantor to pay interest when the same becomes due and payable and
continuance of such failure for 30 days; (ii) failure by the
Registrant or any Guarantor to pay principal when and as the same
will become due and payable, at maturity, upon acceleration, in
connection with any sinking fund payment obligation, redemption or
otherwise; (iii) failure by the Registrant or any of its Restricted
Subsidiaries to generally pay any Indebtedness in excess of
$1,000,000 or the Employee Settlement Agreements after giving
effect to any applicable grace period; (iv) one or more final
judgments against the Company or any of its Restricted Subsidiaries
for payments of money which in the aggregate exceed $1,000,000,
occur and such judgments are not stayed or otherwise rescinded; (v)
failure by the Registrant or any of its Restricted Subsidiaries to
perform, or breach by the Registrant or any of its Restricted
Subsidiaries of, certain covenants in the Indenture and continuance
of such failure for 30 days after written notice is given to the
Registrant by the Trustee or to the Registrant and the Trustee by
the holders of 25% in principal amount of the Notes; or (vi)
certain events of bankruptcy, insolvency or reorganization of the
Registrant or any of its Material Restricted Subsidiaries. The
Indenture provides that the Trustee must, within 90 days after the
occurrence of a Default, give to the holders of the Notes notice of
all uncured Defaults known to it, provided that, except in the case
of Default in payment on any Notes, the Trustee will be protected
in withholding notice if the Trustee in good faith determines that
the withholding of such notice is in the interest of the holders of
Notes.
The Registrant or any Guarantor will be required to
furnish to the Trustee within 120 days after the close of each
fiscal year; and within 60 days after the end of each of the first
three fiscal quarters of the Registrant and such Guarantor, an
Officer's Certificate stating whether such officer knows of any
Default or Event of Default under the Indenture during such period,
and the status of each such Default or Event of Default.
The Trustee or the holders of not less than 25% in
principal amount of the Notes will be authorized, upon the
happening of any Event of Default specified in the Indenture, to
declare all unpaid principal and accrued interest on the Notes to
the date of acceleration, due and payable.
The holders of 66 2/3% in principal amount of the Notes
are authorized to waive any Default or Event of Default and rescind
such declaration if the Default or Event of Default, except a
Default in the payment of principal of or interest on any Notes, or
a Default with respect to a covenant or provision which cannot be
modified or amended without consent of the holder of each
outstanding Note affected. Subject to all provisions of the
Indenture and applicable law, the holders of a majority in
principal amount of the Notes have the right to direct the time,
method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power
conferred on the Trustee.
Amendment, Supplement and Waiver
Subject to certain exceptions, the Indenture, the
Guarantee or the Notes may be amended or supplemented with the
consent of the holders of at least 66 2/3 percent in principal
amount of the respective issue of Notes then outstanding, and any
existing Default or compliance with any provision may be waived
(other than a continuing Default or Event of Default in the payment
of principal or interest of any Note) with the consent of the
holders of 66 2/3 percent in principal amount of Notes then
outstanding. Without the consent of any holder of Notes, the
Company and the Trustee may amend or supplement the Indentures or
the Notes, among other things, to cure any ambiguity, defect or
inconsistency, to provide for uncertificated Notes in addition to
or in place of certificated Notes, to provide for the assumption of
the Registrant's obligations in the case of a merger or
acquisition, in order to effect the granting or release of the
Guarantee with respect to any Guarantor as permitted under the
Indenture, or to make any change that does not adversely affect the
rights of any holder of the Notes.
Without the consent of each holder affected, the Company
may not, among other things, reduce the principal amount of Notes
whose holders are necessary to consent to an amendment of the
Indenture; reduce the rate or change the interest payment time of
any Note or alter the redemption provisions with respect thereto;
reduce the principal of or change the fixed maturity of any Note;
make any change in the provisions concerning waiver of Defaults or
Events of Default by holders of the Notes or rights of holders to
receive payment of principal or interest; or waive a Default in the
payment of principal or interest on any Note.
Item 2. Exhibits.
The following exhibits are being filed with each copy of
this Registration Statement:
1. The Plan of Reorganization (Incorporated by
reference to Exhibit A to Exhibit E to the Lone Star
Industries, Inc. Form T-3, File No. 022-22175, dated
January 14, 1994, as filed by the Registrant with
the Securities and Exchange Commission (hereinafter
referred to as the "January 1994 Form T-3").
2. Modification of Debtors' Plan of Reorganization
(Incorporated by reference to Exhibit 2 to the Lone
Star Industries, Inc. Form 8-K, File No. 1.001-
06124, as filed with Securities and Exchange
Commission on March 8, 1994).
3. The Disclosure Statement (Incorporated by reference
to Exhibit 5 to the March 1994 Form T-3).
4. Form of Amended and Restated Certificate of
Incorporation of Reorganized Lone Star Industries,
Inc. (Incorporated by reference from Exhibit H to
Exhibit E to the January 1994 Form T-3).
5. Form of Warrant Agreement.
6. Form of Indenture.*
<PAGE>
Signature
Pursuant to the requirements of Section 12 of the
Securities Exchange Act of 1934, the Registrant has duly caused
this Registration Statement to be signed on its behalf by the
undersigned, thereto duly authorized.
Date: March 17, 1994 LONE STAR INDUSTRIES, INC.
By:/s/ John J. Martin
John J. Martin
Senior Vice President,
General Counsel & Secretary
