<PAGE> 1
As filed with the Securities and Exchange Commission on April 5, 1994.
REGISTRATION NO. 022-22173
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 2
TO
FORM T-3
FOR APPLICATIONS FOR QUALIFICATION OF INDENTURES
UNDER THE TRUST INDENTURE ACT OF 1939
ROSEBUD HOLDINGS, INC.
(Name of Applicant)
c/o Lone Star Industries, Inc.
300 FIRST STAMFORD PLACE
Stamford, Connecticut 06912-0014
(Address of Principal Executive Offices)
SECURITIES TO BE ISSUED UNDER THE
INDENTURE TO BE QUALIFIED
<TABLE>
Title of Class Amount
- -------------- ------
<S> <C>
10% Asset Proceeds Notes Due 1997 . . . . . . . . . . up to $138,118,000*
Guarantees of Asset Proceeds Notes . . . . . . . . . . up to $28,000,000
</TABLE>
- -------------------------
* In addition, interest on these notes may be paid in additional notes.
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.
Name and Address of Agent for Service: John J. Martin, Esq., Vice President and Secretary
Lone Star Industries, Inc.
300 First Stamford Place
Stamford, Connecticut 06912-0014
</TABLE>
<PAGE> 2
GENERAL
ITEM 1. GENERAL INFORMATION
(a) Form of Organization.
Corporation.
(b) State or other sovereign power under the laws of which organized.
Delaware.
ITEM 2. SECURITIES ACT EXEMPTION APPLICABLE
State briefly the facts relied upon by the applicant as a basis for
the claim that registration of the Indenture Securities under the Securities
Act of 1933 is not required.
Rosebud Holdings, Inc. (the "Company") and each of its subsidiaries,
jointly and severally, proposes to issue, as part of the Modified Amended
Consolidated Plan of Reorganization of Lone Star Industries, Inc., the
Company's sole stockholder ("Lone Star"), dated November 4, 1993, pursuant to
Section 1121(a) of the United States Bankruptcy Code (the "Plan of
Reorganization"), the Company's 10% Asset Proceeds Notes Due 1997 (the
"Notes"), a portion of which are guaranteed by Lone Star. The Company was
recently organized to be a successor to certain of Lone Star's assets and
liabilities upon consummation of the Plan of Reorganization. The Notes will be
issued to discharge in part claims of existing creditors of Lone Star and
certain of its affiliates in the Bankruptcy Proceeding described below. Lone
Star has filed with the United States Bankruptcy Court for the Southern
District of New York (the "Bankruptcy Court") a Modified Amended Disclosure
Statement (the "Disclosure Statement") for the purpose of soliciting votes of
holders of claims or stock interests in Lone Star and certain of its affiliates
for acceptance or rejection of the Plan of Reorganization (Case Nos. 90 B 21276
to 90 B 21286, 90 B 21334 and 90 B 21335 (HS)). At a hearing held on December
7, 1993, the Bankruptcy Court approved the Disclosure Statement. At a hearing
held on February 16 and 17, 1994, the Bankruptcy Court confirmed the Plan of
Reorganization. A copy of the Disclosure Statement, with the Plan of
Reorganization annexed thereto as an exhibit, is incorporated herein by
reference at Exhibit T3E. The Notes are to be issued under an indenture (the
"Indenture") between the Company and its subsidiaries and Chemical Bank, a form
of which is attached hereto as Exhibit T3C. Certain other securities of Lone
Star will be issued pursuant to the Plan of Reorganization under indentures
separate from the one qualified hereunder and are the subject of separate Form
T-3's filed with the Securities and Exchange Commission.
The Company believes that the issuance of the Notes and the related
guarantee is exempt from the registration requirements of the Securities Act of
1933 (the "Securities Act") pursuant to Section 1145 of the United States
Bankruptcy Code. Section 1145 exempts from the registration requirements of
the Securities Act "the offer or sale under a plan of a security of the debtor
. . ., or a successor to the debtor under the plan . . . in exchange for a
claim against, an interest in, or a claim for an administrative expense in the
case concerning, the debtor. . ." The Company and its subsidiaries will be
issuing the Notes and Lone Star will be granting its guarantee pursuant to the
Plan of Reorganization solely in exchange for the claims of certain existing
creditors of Lone Star and certain of its affiliates. There will be no sales
of Notes by or through an underwriter, as that term is defined in Section
1145(b) of the Bankruptcy Code, in connection with the Plan of Reorganization.
2
<PAGE> 3
AFFILIATIONS
ITEM 3. AFFILIATES
Furnish a list or diagram of all affiliates of the applicant and
indicate the respective percentages of voting securities or other bases of
control.
The Company is a wholly-owned subsidiary of Lone Star. Additional
affiliates of the Company may be deemed to include the following as of March
21, 1994:
1. Hawaiian Cement, a Hawaiian general partnership in which Lone Star
indirectly has a 50% interest.
2. Kosmos Cement Company, a Kentucky general partnership in which
Lone Star indirectly has a 25% interest.
3. Lone Star-Falcon, a Texas general partnership in which Lone Star
has a 50% interest.
4. RMC LONESTAR, a California general partnership in which Lone Star
indirectly has a 50% interest.
5. In a Schedule 13D filed by Scope Industries on January 7, 1992, as
amended, it was reported that Scope Industries and certain related persons
identified therein owned 2,539,200 shares of Lone Star's Common Stock, an
approximate 15.3% interest.
Based on information provided to Lone Star, if the exchange
contemplated by the Plan of Reorganization had occurred as of March 21, 1994,
the following persons would have owned in excess of ten percent of Lone Star's
voting securities after the consummation of the Plan of Reorganization:
A. The Trust Company of the West and affiliates: 17.8% of Lone Star's
Common Stock.
B. Metropolitan Life Insurance Company and Metropolitan Insurance and
Annuity Company: an aggregate of 15.4% of Lone Star's Common Stock.
Attached hereto as Annex A are lists of the subsidiaries of Lone Star
and the Company currently existing and which are expected to exist upon the
consummation of the Plan of Reorganization.
MANAGEMENT AND CONTROL
ITEM 4. DIRECTORS AND EXECUTIVE OFFICERS
List the names and complete mailing addresses of all directors or
executive officers of the applicant and all persons chosen to become directors
or executive officers. Indicate all offices with the applicant held or to be
held by each person named.
<TABLE>
<CAPTION>
Name Address Office(s)
- ----------------------------- ---------------------------- --------------------------------
<S> <C> <C>
William M. Troutman Lone Star Industries Inc. Director, President and
300 First Stamford Place Chairman
Stamford, CT 06912-0014
John J. Martin Same Director, Vice President and
Secretary
</TABLE>
3
<PAGE> 4
<TABLE>
<CAPTION>
Name Address Office(s)
- -------------------------- ---------------------- ----------------------------
<S> <C> <C>
William E. Roberts Same Director, Vice President and
Treasurer
</TABLE>
ITEM 5. PRINCIPAL OWNERS OF VOTING SECURITIES
Furnish the following information as to each person owning 10 percent
or more of the voting securities of the applicant.
AS OF MARCH 21, 1994 AND
GIVING EFFECT TO THE PLAN OF REORGANIZATION
<TABLE>
<CAPTION>
Percentage of
Title of Class Voting Securities
Names and Complete Mailing Address Owned Amount Owned Owned
- -------------------------------------------- ------------------ ----------------- ---------------------
<S> <C> <C> <C>
Lone Star Industries, Inc. Common Stock 100 shares 100%
300 First Stamford Place
Stamford, CT 06912-0014
</TABLE>
UNDERWRITERS
ITEM 6. UNDERWRITERS
Give the name and complete mailing address of (a) each person who,
within three years prior to the date of filing the application, acted as an
underwriter of any securities of the obligor which were outstanding on the date
of filing the application, and (b) each proposed principal underwriter of the
securities proposed to be offered. As to each person specified in (a), give
the title of each class of securities underwritten.
(a) None
(b) None
4
<PAGE> 5
CAPITAL SECURITIES
ITEM 7. CAPITALIZATION
(a) Furnish the following information as to each authorized class of
securities of the applicant.
AS OF EFFECTIVE DATE
<TABLE>
<CAPTION>
Title of Class Amount Authorized Amount Outstanding
- -------------------- ------------------- --------------------
<S> <C> <C>
Common Stock, $1.00 par value per share . . . . . . . . . . . . 1,000 shares 100 shares
10% Asset Proceeds Notes Due 1997* . . . . . . . . . . . . . . . $138,118,000 $138,118,000
</TABLE>
- --------------------
* In addition, interest on the Notes may be paid in additional Notes.
(b) Give a brief outline of the voting rights of each class of voting
securities referred to in paragraph (a) above.
<TABLE>
<CAPTION>
Title of Class Voting Rights
----------------- ---------------------
<S> <C>
Common Stock One vote per share
</TABLE>
INDENTURE SECURITIES
ITEM 8. ANALYSIS OF INDENTURE*
Insert at this point the analysis of indenture provisions required
under Section 305(a)(2) of the Act.
(a) Events of Default and Notice of Default
An Event of Default occurs under the Indenture if: (i) the Obligor
defaults in the payment of interest on any Note when the same becomes due and
payable, whether at maturity, in connection with any redemption, by
acceleration or otherwise, and such default continues for a period of 30 days;
(ii) the Obligor defaults in the payment of the principal of any Note when the
same becomes due and payable, whether at maturity, in connection with any
redemption, by acceleration or otherwise; provided, however, in the case of any
such default resulting from a dispute as to the computation of Net Proceeds,
that such default shall have remained uncured for a period of 30 days from the
date of notice to the Company from the Trustee as to the existence of, and
specifying the basis for, such default; (iii) the Company or any of its
Subsidiaries fails to observe or perform in any material respect any of its
other covenants or agreements in the Notes, the Indenture or the Collateral
Agency Agreement or other agreement relating to liens for the benefit of
Holders, which failure continues for a period of 30 days after the earlier of
(a) the date on which written notice of such failure, requiring the Company to
remedy the same, shall have been given to the Company by the Trustee, or to the
Company and the Trustee by the Holders of at least 25% in
- --------------------
* All capitalized terms used in this Item 8 shall have the same meaning, unless
otherwise defined, as that provided in the Indenture.
5
<PAGE> 6
aggregate principal amount of the 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 Subsidiaries fails to pay when due (whether at maturity, in
connection with any mandatory amortization or redemption, by acceleration or
otherwise) any principal or interest on any Indebtedness with an aggregate
outstanding principal amount in excess of $2 million, whether any such
Indebtedness is outstanding as of the date of the Indenture or is thereafter
outstanding, which default continues for any period of grace applicable thereto
or (b) a default or event of default, as defined in one or more indentures,
agreements or other instruments evidencing or under which the Company or any of
its Subsidiaries individually or collectively have, as of the date of the
Indenture or thereafter, outstanding at least $2 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; provided that if such
default or event of default under such indenture or other instrument shall be
remedied or cured by the Company or the Subsidiary or waived by the holders of
such Indebtedness, then the Event of Default under the Indenture by reason
thereof shall be deemed likewise to have been thereupon remedied, cured or
waived without further action upon the part of either the Trustee or any of the
holders of Notes; (v) one or more final judgments against the Company or any of
its Subsidiaries for payments of money which in the aggregate exceed $2
million, are entered by a court of competent jurisdiction and such judgments
are not rescinded, annulled, stayed or discharged within 60 days; (vi) the
Company and its Subsidiaries, taken as a whole, becomes unable to pay its debts
as they become due; (vii) the Company or any of its 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 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 Subsidiaries, and such petition, application, case or proceeding
is not dismissed or stayed within sixty (60) days; or (x) the entry of a final
judgment, decree or order by a court of competent jurisdiction holding the
Guarantee Agreement, the Pledge Agreement or the Collateral Agency Agreement to
be invalid or unenforceable in any material respect; or the Guarantor or the
Obligor, or any Person acting on behalf of the foregoing, shall assert, in any
pleading filed in such a court, that the Guarantee Agreement, the Pledge
Agreement or the collateral Agency Agreement is invalid or unenforceable in any
material respect; or (xi) an "Event of Default," as defined in the Guarantee
Agreement shall have occurred and be continuing.
If a Default occurs and is continuing and if it is known to the Trustee,
the Trustee shall mail to each holder of the Notes a notice of the Default
within 90 days after it occurs. Except in the case of a Default in payment of
principal of or interest on any Note, the Trustee may withhold the notice if
and so long as it in good faith determines that withholding notice is in the
interests of the Holders of the Notes.
(b) Authentication and Delivery of Notes and Application of Proceeds Thereof
A Note shall not be valid until authenticated by the manual or facsimile
signature of the Trustee. The signature of the Trustee shall be conclusive
evidence that the Note has been authenticated under the Indenture. The Trustee
may appoint an authenticating agent acceptable to the Company to authenticate
the Notes.
The Trustee shall authenticate Notes for original issue in the aggregate
principal amount of up to $138,134,000 upon a written order of the Company. In
addition, interest on the Notes may be paid in additional Notes. Such order
shall specify the amount of Notes to be authenticated and the date on which the
original issue of Notes is to be authenticated.
6
<PAGE> 7
The 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
Until the Notes are paid, the Company has agreed that it will use
reasonable commercial efforts to sell its assets at the best obtainable prices.
Unless an Event of Default has occurred and is continuing, the Company or any
Subsidiary may, subject to compliance with the Trust Indenture Act of 1939, as
amended, dispose of any of the Pledged Collateral in any transaction or series
of transactions not prohibited by the Indenture, and any Pledged Collateral so
disposed of shall, upon such disposition and, if required, the deposit of funds
in accordance with Section 3.08 of the Indenture, ipso facto be released from
the security interests created under the Collateral Agency Agreement. Non-Cash
Proceeds from a Sale of Assets shall be Pledged Collateral and cash
constituting Net Proceeds shall be deposited in the Collateral Account and, to
extent provided in the Indenture, used to redeem Notes.
(d) Satisfaction and Discharge of Indenture
The Obligor may terminate all of its obligations under the Indenture if all
Notes previously authenticated and delivered (other than mutilated, destroyed,
lost or stolen Notes which have been replaced or paid) have been delivered to
the Trustee for cancellation or if: (1) the Notes mature within six months or
all of them are to be called for redemption within six months; (2) the Company
irrevocably deposits in trust with the Trustee, pursuant to an irrevocable
trust and security agreement in form and substance reasonably satisfactory to
the Trustee, money or U.S. Government Obligations sufficient to pay principal
of and interest on the Notes to maturity or redemption, as the case may be, and
all other sums payable by the Company to the holders of the Notes thereunder.
The Company may make the deposit only during the six-month period. Immediately
after making the deposit, the Company shall give notice of such event to the
holders; (3) the Company has paid or caused to be paid all sums then payable by
the Company to the Trustee thereunder as of the date of such deposit; and (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.
However, the Obligor's obligations under the Indenture with respect to the
Registrar and Paying Agent, securityholder lists, transfers and exchanges,
replacement securities, payment on the Notes, compensation, indemnity and
replacement of the Trustee, and repayment of amounts paid to the Company as
excess money upon discharge of the Indenture shall survive until the Notes are
no longer outstanding. Thereafter, the obligations with respect to
compensation and indemnity of the Trustee and repayment of amounts paid to the
Company as excess money shall survive.
After a deposit pursuant to these provisions, the Trustee upon request
shall acknowledge in writing the discharge of the Obligor's obligations under
the Notes and the Indenture except for those surviving obligations specified
above.
In order to have money available on a payment date to pay principal or
interest on the Notes, the U.S. Government Obligations shall be payable as to
principal or interest on or before such payment date in such amounts as will
provide the necessary money.
7
<PAGE> 8
(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 Notes. If the signer does not know of
any such Default or Event of Default, the Certificate shall describe the
Default or Event of Default and its status.
ITEM 9. OTHER OBLIGORS
Give the name and complete mailing address of any person, other than the
applicant, who is an obligor upon the indenture securities.
A portion of the Notes will be guaranteed by Lone Star. In addition, to
avoid holders of the Notes being structurally subordinated to creditors of the
Company's subsidiaries, each such subsidiary (all of which are directly
wholly-owned by the Company) has agreed to be jointly and severally obligated
for the payment of the Notes. A list of the Subsidiaries of the Company is
included in Annex A.
CONTENTS OF APPLICATION FOR QUALIFICATION
This application for qualification comprises:
(a) Pages numbered 1 to 9, consecutively;
(b) Annex A consisting of two pages;
(c) The Statement of Eligibility and Qualification on Form T-1*; and
(d) the following exhibits in addition to those filed as a part of the
Statement of Eligibility and Qualification of the Trustee:
Exhibit T3A. The form of the Company's Certificate of Incorporation is
attached as Exhibit P to the Disclosure Statement
(incorporated by reference at Exhibit T3E)*.
Exhibit T3B. The form of the Company's By-Laws is attached as Exhibit Q to
the Disclosure Statement (incorporated by reference at Exhibit
T3E).*
Exhibit T3C. Form of Indenture between the Company and Chemical Bank.
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 Exhibits T3E* of Lone Star Industries, Inc.
Form T-3 with respect to certain Senior Notes due 2003, filed
on January 14, 1994 (Registration No. 022-22175)
Exhibit T3E(a).A copy of the Modification of the Debtors' Plan of
Reorganization incorporated by reference to Exhibit T3E(a) of
Lone Star Industries, Inc. Amendment to Form T-3 (Registration
No. 022-22175) filed March 24, 1994.
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.
- ---------------------
*Previously filed
8
<PAGE> 9
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
applicant, Rosebud Holdings, Inc., a corporation organized and existing under
the laws of Delaware, has duly caused this application to be signed on its
behalf by the undersigned, thereunto duly authorized, and its seal to be
hereunto affixed and attested all in The City of New York, and State of New
York, on the 5th day of April, 1994.
[Seal]
ROSEBUD HOLDINGS, INC.
By /s/ John J. Martin
------------------------------------
Name: John J. Martin
Title: Vice President and Secretary
Attest: By /s/ John S. Johnson
------------------------------------
Name: John S. Johnson
Title: Assistant Secretary
9
<PAGE> 10
ANNEX A
LONE STAR INDUSTRIES, INC. SUBSIDIARIES
(Wholly owned unless otherwise indicated;
indentation indicates level of ownership)
<TABLE>
<CAPTION>
Jurisdiction of
Name Incorporation
---- --------------
<S> <C>
Lone Star Industries, Inc. Delaware
Coastline Petroleum Company, Inc. Texas
Construction Aggregates Limited Nova Scotia
Construction Materials Co.* Delaware
DeSoto Redi-Mix Corporation* Mississippi
Diamond Building Materials, Inc. California
I.C. Materials, Inc.* Illinois
KCOR CORPORATION (20% owned by Lone Star Delaware
Industries, Inc.; 80% owned by Lone Star
Hawaii Cement Corporation)
Lone Star Building Centers, Inc. Minnesota
Lone Star Building Centers (Eastern) Inc. Delaware
G. M. Stewart Lumber Company, Inc. Minnesota
Lone Star California, Inc. Delaware
Lone Star Cement Inc. (99% ownership) New Jersey
Lonestar Florida Pensucco, Inc.* Delaware
Lonestar Florida Holding, Inc.* Delaware
Lonestar Florida Cement, Inc.* Delaware
Lone Star Hawaii, Inc. Delaware
Lone Star Hawaii Cement Corporation Hawaii
Lone Star Hawaii Properties, Inc. Hawaii
Lone Star Prestress Concrete, Inc. Texas
Lone Star Properties, Inc. Delaware
</TABLE>
- ----------------------
* Will not exist after Effective Date.
<PAGE> 11
LONE STAR INDUSTRIES, INC. SUBSIDIARIES
100% OWNERSHIP UNLESS OTHERWISE NOTED (CONT'D.)
<TABLE>
<CAPTION>
Jurisdiction of
Name Incorporation
---- --------------
<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
Rosebud Falcon Corporation** Delaware
Rosebud General Corporation** Delaware
San-Vel Concrete Corporation Kansas
Southern Aggregates, Inc.* Mississippi
Utah Portland Quarries, Inc. Utah
</TABLE>
- --------------------
* Will not exist after Effective Date.
** Information with respect to these corporations located here is given
effective after the consummation of the Plan of Reorganization.
A-2
<PAGE> 12
EXHIBIT INDEX
Exhibit T3A. The form of the Company's Certificate of Incorporation is
attached as Exhibit P to the Disclosure Statement
(incorporated by reference at Exhibit T3E)*.
Exhibit T3B. The form of the Company's By-Laws is attached as Exhibit Q to
the Disclosure Statement (incorporated by reference at Exhibit
T3E).*
Exhibit T3C. Form of Indenture between the Company and Chemical Bank.
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 Exhibits T3E* of Lone Star
Industries, Inc. Form T-3 with respect to certain Senior Notes
due 2003, filed on January 14, 1994 (Registration No.
022-22175).
Exhibit T3E(a).A copy of the Modification of the Debtors' Plan of
Reorganization incorporated by reference to Exhibit T3E(a) of
Lone Star Industries, Inc. Amendment to Form T-3 (Registration
No. 022-22175) filed March 24, 1994.
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.
- ---------------------
*Previously filed
[TEXT]
<PAGE> 1
================================================================================
ROSEBUD HOLDINGS, INC.
and its Subsidiaries
AND
CHEMICAL BANK
as
Trustee
_______________
Indenture
Dated as of March 29, 1994
$138,118,000
10% ASSET PROCEEDS NOTES DUE 1997
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.01 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02 Incorporation by Reference of Trust Indenture Act . . . . . . . . . . . . . . . . . . . 9
SECTION 1.03 Rules of Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE 2. THE SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.01 Form and Dating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.02 Execution and Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.03 Registrar and Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.04 Paying Agent to Hold Money in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.05 Securityholder Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.06 Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.07 Replacement Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 2.08 Outstanding Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 2.09 Securities Held by the Company or an Affiliate . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.10 Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.11 Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.12 Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.13 Deemed Repayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE 3. REDEMPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 3.01 Notices to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 3.02 Selection of Securities to be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 3.03 Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 3.04 Effect of Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 3.05 Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 3.06 Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 3.07 Optional Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 3.08 Mandatory Redemption. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE 4. COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 4.01 Payment of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 4.02 Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 4.03 Sale of Assets and Subsidiaries; Corporate Existence . . . . . . . . . . . . . . . . . 19
SECTION 4.04 Payment of Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 4.05 Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 4.06 SEC Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 4.07 Compliance Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
</TABLE>
i
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<TABLE>
<S> <C>
SECTION 4.08 Limitation on Stock Payments and Investments . . . . . . . . . . . . . . . . . . . . . 21
SECTION 4.09 Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 4.10 Limitation on Additional Indebtedness and Liens . . . . . . . . . . . . . . . . . . . . 21
SECTION 4.11 Conflicting Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 4.12 Limitation on Dividends and Certain Other Restrictions Affecting Subsidiaries . . . . . 22
SECTION 4.13 Waiver of Stay, Extension or Usury Laws . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 4.14 Maintenance of Insurance and Records, Compliance with Law . . . . . . . . . . . . . . . 22
SECTION 4.15 Limitation on Redemption of Certain Indebtedness . . . . . . . . . . . . . . . . . . . 23
SECTION 4.16 Value of Claims Represented by Securities . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 4.17 Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 4.18 Investment Company Act of 1940 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE 5. RELEASE OF SUBSIDIARIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 5.01 Release of Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE 6. DEFAULTS AND REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 6.01 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 6.02 Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 6.03 Other Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 6.04 Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 6.05 Control by Majority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 6.06 Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 6.07 Rights of Holders to Receive Payment . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 6.08 Collection Suit by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 6.09 Trustee May File Proofs of Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 6.10 Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 6.11 Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE 7. TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 7.01 Acceptance of Trusts; Duties of Trustee . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 7.02 Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 7.03 Individual Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 7.04 Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 7.05 Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 7.06 Reports by Trustee to Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 7.07 Compensation and Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 7.08 Replacement of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 7.09 Successor Trustee by Merger, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 7.10 Eligibility; Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 7.11 Preferential Collection of Claims Against Company . . . . . . . . . . . . . . . . . . . 35
</TABLE>
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<TABLE>
<S> <C>
ARTICLE 8. DISCHARGE OF INDENTURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 8.01 Termination of Obligor's Obligations . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 8.02 Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 8.03 Repayment to Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 8.04 Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE 9. AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 9.01 Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 9.02 With Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 9.03 Compliance with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 9.04 Revocation and Effect of Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 9.05 Notation on or Exchange of Securities . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 9.06 Trustee Protected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE 10. SECURITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 10.01 Collateral Agency Agreement, Pledge Agreement and Guarantee Agreement . . . . . . . 39
SECTION 10.02 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 10.03 Authorization of Actions to be Taken by the Trustee Under the Collateral Agency
Agreement and the Guarantee Agreement . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 10.04 Authorization of Receipt of Funds by the Trustee Under the Collateral Agency
Agreement and the Guarantee Agreement . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 10.05 Termination of Security Interest . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 10.06 Security Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE 11. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 11.01 Trust Indenture Act Controls . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 11.02 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 11.03 Communication by Holders with Other Holders . . . . . . . . . . . . . . . . . . . . 42
SECTION 11.04 Action by Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 11.05 Proof of Execution of Instruments and of Holding of Securities . . . . . . . . . . . 43
SECTION 11.06 Revocation of Consents; Future Holders Bound . . . . . . . . . . . . . . . . . . . . 43
SECTION 11.07 Rules by Trustee and Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 11.08 Certificate and Opinion as to Conditions Precedent . . . . . . . . . . . . . . . . . 44
SECTION 11.09 Statements Required in Certificate or Opinion . . . . . . . . . . . . . . . . . . . 44
SECTION 11.10 Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 11.11 No Recourse Against Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 11.12 Table of Contents, Headings, etc. . . . . . . . . . . . . . . . . . . . . . . . . . 45
</TABLE>
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<TABLE>
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SECTION 11.13 Duplicate Originals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 11.14 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 11.15 No Adverse Interpretation of Other Agreements . . . . . . . . . . . . . . . . . . . 46
SECTION 11.16 Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 11.17 Separability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE 12. MEETINGS OF HOLDERS OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 12.01 Purposes of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 12.02 Call of Meetings by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 12.03 Call of Meetings by Company or Securityholders . . . . . . . . . . . . . . . . . . . 47
SECTION 12.04 Persons Entitled to Vote at Meeting . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 12.05 Regulations for Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
</TABLE>
iv
<PAGE> 6
CROSS-REFERENCE TABLE
<TABLE>
<CAPTION>
TIA Indenture
Section Section
- ------- ---------
<S> <C>
310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.08; 7.10
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.05
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.03
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.03
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.06; 4.07
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.02
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.08
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.08
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.02
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.09
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.05
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.11
316(a)(last sentence) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.09
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.05
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.04
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.07
317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.08
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.04
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.01
- -----------------------
</TABLE>
This cross-reference tables does not constitute a part of the Indenture.
<PAGE> 7
INDENTURE dated as of March 29, 1994 between ROSEBUD HOLDINGS,
INC., a Delaware corporation (the "Company"), and the Subsidiaries of the
Company who are signatories to this Indenture, and CHEMICAL BANK, a New York
banking corporation (the "Trustee").
Each party agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the Holders of the Company's 10%
Asset Proceeds Notes due 1997 (the "Securities").
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 DEFINITIONS.
"Actual Knowledge" has the meaning assigned to such term in
Section 6.01 hereof.
"Affiliate" means any Person directly or indirectly
controlling or controlled by or under common control with the Company;
provided, however, that the term Affiliate shall not include any wholly-owned
Subsidiary of the Company. For this purpose, "control" means possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of a Person, whether through the ownership of voting
securities, by contract or otherwise.
"Agent" means any Registrar, Paying Agent, Collateral Agent or
Co-Registrar.
"Bankruptcy Law" has the meaning assigned to such term in
Section 6.01 hereof.
"Board of Directors" means the Board of Directors of the
Company or any committee of the Board authorized to act for it hereunder.
"Business Day" has the meaning assigned to such term in
Section 11.10 hereof.
"Capital 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 generally accepted accounting
principles.
"Capital Stock" means any stock of any class of a corporation.
<PAGE> 8
"Cash Collateral Account" has the meaning assigned to the term
"Collateral Account" in the Collateral Agency Agreement.
"Collateral Agency Agreement" means the Security, Pledge and
Collateral Agency Agreement of even date with this Indenture between the
Company and its Subsidiaries and Chemical Bank, as the Collateral Agent
thereunder, as the same may be amended, amended and restated, modified or
supplemented from time to time in accordance with the terms hereof and thereof.
"Collateral Agent" means the party named as such in the
Collateral Agency Agreement until a successor replaces it, and thereafter means
the successor.
"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.
"Corporate Trust Office of the Trustee" shall be at the
address of the Trustee specified in Section 11.02 or such other address as the
Trustee may give notice of to the Company.
"Custodian" has the meaning assigned to such term in Section
6.01 hereof.
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Effective Date" means April __, 1994.
"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.
"Existing Agreements" means the Management Services Agreement;
the Trademark License Agreement of even date herewith between the Guarantor and
Nazareth Cement Corporation, a Delaware corporation and Subsidiary; all
agreements between the Guarantor and one or more of the Company and the
Subsidiaries relating, among other things, to the transfer of assets and
liabilities (or the rights to and obligations under the Litigations) to the
Company and the Subsidiaries; and any partnership and related agreements
relating to the Affiliates of the Company which are partnerships or joint
ventures, including, without limitation, the RMC Settlement Agreement, in each
case as in effect on the Effective Date.
2
<PAGE> 9
"Extraordinary Event" means each Sale of Assets, any payment
received by the Company or its Subsidiaries in respect of the Litigation
Agreement, any payments received by the Company or the Subsidiaries in respect
of the Riedel Note, any payment received in respect of casualty insurance
covering the Pledged Collateral to the extent not applied to the repair or
replacement thereof and any payment received in respect of a taking or
condemnation of assets or properties.
"Guarantee Agreement" means the Guarantee Agreement of the
Guarantor of even date with this Indenture and attached hereto as Exhibit A and
incorporated in and a part of this Indenture where specified, as the same may
be amended, amended and restated, modified or supplemented from time to time in
accordance with the terms hereof and thereof.
"Guarantee Payment" has the meaning assigned to such term in
Section 2.13 hereof.
"Guarantor" means Lone Star Industries, Inc., until a
successor replaces it pursuant to the applicable provision of the Guarantee
Agreement, and thereafter means such successor.
"Guarantor Obligations" has the meaning assigned to such term
in the Guarantee Agreement.
"Holder" or "Securityholder" means a Person in whose name a
Security is registered on the Registrar's books.
"Indebtedness" means, with respect to any Person and without
duplication any liability, whether or not contingent, (i) in respect of
borrowed money or evidenced by bonds, notes, debentures or similar instruments
or letters of credit (or reimbursement agreements in respect thereof) or
representing the balance deferred and unpaid of the purchase price of any
property acquired or services rendered (including without limitation pursuant
to Purchase Money Indebtedness or Capital Leases), except any such balance that
constitutes a payable arising in the ordinary course of business, (ii) under
any agreement related to the fixing of interest rates on any Indebtedness, such
as an interest rate swap, cap or collar agreement if and to the extent the same
would constitute a liability on the balance sheet of such Person prepared in
accordance with generally accepted accounting principles, or (iii) in respect
of letters of credit issued at the request of such Person, and shall also
include, to the extent not otherwise included, all Indebtedness of any other
Person for which such Person is or could become liable or which is secured by a
Lien on an asset of such Person, whether or not such Indebtedness is assumed by
such Person, and the guaranty of any of the foregoing items.
"Indenture" means this Indenture and, where specified, the
Guarantee Agreement, each as amended, amended and restated, modified or
supplemented from time to time in accordance with the terms hereof (or, in the
case of the Guarantee Agreement, in accordance with the terms thereof).
3
<PAGE> 10
"Investment" means, other than in the ordinary course of
business, providing any cash or assets to, or extending credit to, becoming
liable in respect of or otherwise providing for payment of any Indebtedness of,
any Person other than the Company or a wholly-owned Subsidiary, whether or not
in exchange for securities of any Person or other consideration.
"Legal Holiday" has the meaning assigned to such term in
Section 11.10 hereof.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or similar encumbrance in respect of such
asset, whether or not filed, recorded or otherwise perfected under applicable
law (including any conditional sale or other title retention agreement, any
capitalized lease in the nature thereof, and any filing of or agreement to give
any financing statement under the Uniform Commercial Code or equivalent
statutes of any jurisdiction, other than an information filing), but does not
include, in the case of the Company, the lien granted to the Trustee under
Section 7.07 hereof.
"Litigation Agreement" shall mean the agreement of even date
herewith between the Company or its designee and the Guarantor and certain of
the Guarantor's Subsidiaries relating to the Litigations as in effect on the
date hereof.
"Litigations" shall mean the following: (i) Lone Star
Industries, Inc. v. Compania Naviera Perez Companc; S.A.C.F.I.M.F.A., et al.,
Case No. 93CIV.5480 (VLB) (United States District Court, Southern District of
New York); (ii) any and all actions which have been or may be commenced by the
Debtors to avoid and recover transfers of property pursuant to Sections 544,
547, 548 and 550 of the Bankruptcy Code including, without limitation, the
following: (a) Lone Star Industries, Inc. v. Aid Association for the Lutherans,
et al.; Ad. Pro. No. 92-5443A (United States Bankruptcy Court, Southern
District of New York); (b) Lone Star Industries, Inc. v. The Minnesota Mutual
Life Insurance Co., et al., Ad. Pro. No. 92-5444A (United States Bankruptcy
Court, Southern District of New York); (c) Lone Star Industries, Inc. v.
Farmers Group, Inc., et al., Ad. Pro. No. 92-5445A (United States Bankruptcy
Court, Southern District of New York); (d) Lone Star Industries, Inc. v. Morgan
Guaranty Trust Company of New York, et al., Ad. Pro. No. 92-5446A (United
States Bankruptcy Court, Southern District of New York); (e) Lone Star
Industries, Inc. v. The Prudential Insurance Company of America, Ad. Pro. No.
92-5447A (United States Bankruptcy Court, Southern District of New York); and
(f) Lone Star Industries, Inc. v. Tom G. Guennewig, Ad. Pro. No. 93-5201A
(United States Bankruptcy Court, Southern District of New York); (iii) Lone
Star Industries, Inc., et al. v. Lafarge Corp., et al., Case No. 93-1505(L) and
Lafarge Corp., et al. v. Lone Star Industries, Inc., et al., Case No. 93-1506
(XAP) (United States Court of Appeals for the Fourth Circuit); (iv) Lone Star
Industries, Inc. v. Liberty Mutual Insurance Company, et al., Civil Action No.
89C-SE-187 (Superior Court, State of Delaware); and (v) Lone Star Industries,
Inc. v. Arthur A. Riedel and United States National Bank of Oregon, Case No.
93-2-27991-4 (Superior Court, County of King, State of Washington).
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"Lone Star California" means Lone Star California, Inc., a
Delaware corporation and Subsidiary.
"Management Services Agreement" means the management services
and asset disposition agreement of even date herewith between the Guarantor and
the Company and the Subsidiaries in effect on the Effective Date and any
replacement or modification thereto so long as such replacement or modification
is not materially less favorable to the Holders or the Company than the
Management Services Agreement as in effect in the Effective Date.
"Maturity Date" of the Securities means July 31, 1997.
"Net Proceeds" with respect to any Extraordinary Event, means
the cash received by the Company or any of its Subsidiaries from such
Extraordinary Event after (i) provision for all income or other taxes measured
by or resulting from such Extraordinary Event or the transfer of the proceeds
thereof to the Company that are payable by the Company or any of its
Subsidiaries (as reasonably and in good faith estimated by the Chief Financial
Officer of the Company) including, without limitation, any taxes to be paid by
the Company or such Subsidiary pursuant to the Management Services Agreement,
(ii) payment of all brokerage commissions, legal and accounting fees and
expenses and other fees and expenses related to such Extraordinary Event, (iii)
deduction of any amounts required to discharge any Permitted Liens senior to
Liens in favor of the Trustee and the Holders under the Collateral Agency
Agreement on any assets sold, leased or otherwise conveyed, and (iv) deduction
of any amounts required to be paid to the Guarantor in respect of advances to
or for the benefit of the Company in accordance with the Management Services
Agreement, (v) deduction of appropriate amounts provided by the Company or its
Subsidiaries as a reserve on its regularly prepared balance sheets (or the
notes thereto), in accordance with generally accepted accounting principles
consistently applied (including, without limitation, subject to the next
succeeding sentence, all amounts escrowed, pledged or otherwise set aside to
assume payment of such liabilities), against the following liabilities
associated with the assets, properties, notes or litigation which are the
subject of the Extraordinary Event and retained by the Company or its
Subsidiaries: (x) pension and other employment and postemployment benefit
liabilities (other than payroll), liabilities related to environmental matters
and related indemnification obligations provided all such deductions in this
clause (x) (after subtracting therefrom any subsequent inclusion in Net
Proceeds of amounts pursuant to clause (B) of the next succeeding sentence) do
not in the aggregate exceed $7,000,000, and (y) payroll and trade payables and
indemnification obligations in respect of items other than those included in
clause (x), and (vi) in the case of proceeds of the Litigations, any amounts
required to be paid to insurance companies in respect of subrogation or similar
claims. Net Proceeds shall include (A) when received in cash, any Net Proceeds
from an Extraordinary Event of any non-cash proceeds received by the Company or
any of its Subsidiaries from an Extraordinary Event and (B) when received in
cash, 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 Extraordinary Event and amounts no longer reserved under
generally accepted accounting principles as described in clause (v) of the
immediately preceding sentence.
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"Obligor" means, jointly and severally, the Company and each
of its Subsidiaries whether existing on the date hereof or created or acquired
hereafter.
"Officer" means the Chairman of the Board, the President, any
Senior Vice-President, Executive Vice-President or any other Vice-President,
the Treasurer or the Secretary of the Company or the Guarantor, as the case may
be.
"Officers' Certificate" means a certificate signed by any two
Officers of the Company or the Guarantor, as the case may be.
"Opinion of Counsel" means a written opinion from legal
counsel who is reasonably acceptable to the Trustee. Such counsel may be an
employee of or counsel for the Company, the Trustee or other counsel.
"Paying Agent" has the meaning assigned to such term in
Section 2.03 hereof.
"Payment Notes" has the meaning assigned to such term in the
Guarantee Agreement.
"Permitted Indebtedness" means Indebtedness deemed by the
Board of Directors to be appropriate to maintain the assets, business and
operations of the Company and the Subsidiaries pending sale of the following
types: (i) Indebtedness to the Guarantor arising under the Management Services
Agreement; (ii) Purchase Money Indebtedness; (iii) Indebtedness of wholly-owned
Subsidiaries of the Company to the Company or other wholly-owned Subsidiaries
of the Company; (iv) Capital Leases; and (v) letters of credit in the ordinary
course of business in the aggregate amount outstanding at any time not to
exceed $1 million.
"Permitted Liens" means (i) Liens securing the Securities and
the obligations of the Company hereunder; (ii) Liens existing on the Effective
Date or thereafter created to replace such Liens to the extent they secure the
same obligations and are in property having an aggregate value no greater than
the property subject to the replaced Liens; (iii) Liens in favor of the Trustee
or the Collateral Agent on all property and funds held or collected by the
Trustee or the Collateral Agent as security for the performance by the Company
of its obligations of payment to, and reimbursement and indemnification of, the
Trustee and the Collateral Agent for their services under the Indenture and the
Collateral Agency Agreement, respectively; (iv) Liens for taxes or assessments
and similar charges, or imposed in connection with litigation or asserted
claims, either not delinquent or contested in good faith by appropriate
proceedings and as to which the Company or a Subsidiary thereof shall have set
aside on its books such reserves as it deems adequate (provided such reserves
shall be in accordance with generally accepted accounting principles); (v)
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;
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<PAGE> 13
(vi) 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 (other than those arising in respect of amounts past due unless
being contested by appropriate proceedings as to which the Company or a
Subsidiary shall have set aside on its books such reserves as it deems adequate
(provided such reserves shall be in accordance with generally accepted
accounting principles)); (vii) zoning restrictions, easements, licenses,
covenants, reservations, restrictions on the use of real property or
irregularities of title incident thereto that do not in the aggregate
materially detract from the value of the property or assets of the Company or
any of its Subsidiaries, as the case may be, or materially impair the use of
such property in the operation of the Company's or any Subsidiary's business;
(viii) Liens created by Subsidiaries of the Company to secure Permitted
Indebtedness of such Subsidiaries to the Company or to wholly-owned
Subsidiaries thereof; (ix) Liens on assets acquired in connection with the
incurrence of Purchase Money Indebtedness in accordance with the definition
thereof; and (x) Capital Leases.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
or government or any agency or political subdivision thereof.
"Plan of Reorganization" means the Company's Modified Amended
Consolidated Plan of Reorganization, as amended, modified or supplemented from
time to time prior to the Effective Date.
"Pledge Agreement" means the pledge agreement of even date
herein executed and delivered by the Guarantor in accordance with the Guarantee
Agreement.
"Pledged Collateral" shall have the meaning assigned to such
term in the Collateral Agency Agreement.
"principal" of a debt security means the principal of such
security plus the then applicable premium, if any, on such security and less
the amount, if any, of any unamortized original issue discount.
"Purchase Money Indebtedness" means any Indebtedness incurred
by the Company or any of its Subsidiaries in connection with the acquisition by
the Company or such Subsidiary, after the Effective Date, of equipment or other
fixed assets, including Indebtedness incurred to finance, refinance or refund
the cost (including the cost of construction) of such assets; provided that (i)
the principal amount of such Indebtedness does not exceed 75 percent of the
fair market value of the assets being acquired or the cost of construction paid
by or charged to the Company or such Subsidiary and (ii) such Indebtedness
shall not be secured by any assets of the Company or any Subsidiary of the
Company other than the assets with respect to which such Indebtedness is
incurred.
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"Receivables" means all "accounts", all "chattel paper", all
"instruments" evidencing "accounts" and all proceeds thereof, as each such term
is defined in the Uniform Commercial Code as in effect in the State of New York
on the Effective Date.
"Redemption Price" has the meaning assigned to such term in
Section 3.03 hereof.
"Registrar" has the meaning assigned to such term in Section
2.03 hereof.
"Riedel Note" means a Promissory Note dated April 7, 1987
executed by Arthur Riedel in favor of the Guarantor and subsequently assigned
to a Subsidiary of the Company.
"RMC LONESTAR" means RMC LONESTAR, a California general
partnership.
"RMC Settlement Agreement" means the agreement relating to RMC
LONESTAR, dated _________, 1994, to which the Company, Lone Star California and
the Guarantor are parties as in effect on the Effective Date.
"Sale of Assets" means any sale, lease or other conveyance of
assets (including by way of merger or consolidation or pursuant to a
sale-and-leaseback transaction) of the Company or any of its Subsidiaries
(including the Capital Stock of any Subsidiary of the Company but excluding the
Capital Stock of the Company), as the case may be; provided, however, that the
term "Sale of Assets" shall not include (i) any sale of inventory in the
ordinary course of business or (ii) any sales of assets in the ordinary course,
other than inventory, to the extent that the aggregate amount received from
such sales in any fiscal year or portion thereof after the Effective Date does
not exceed $100,000; and (iii) any sale, lease, conveyance or other disposition
of assets among or between the Company and one of its wholly-owned Subsidiaries
or among or between such wholly-owned Subsidiaries, including, without
limitation, the merger of any such Subsidiary with and into the Company or any
other wholly-owned Subsidiary of the Company.
"SEC" means the Securities and Exchange Commission.
"Securities" has the meaning assigned thereto in the second
paragraph of 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 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.
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"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
Sections 77aaa-77bbbb), as amended and as in effect on the date of the
execution and delivery of this Indenture, except as provided in Section 9.03.
"Trustee" means the party named as such in this Indenture
until a successor replaces it and thereafter means the successor.
"Trust Officer" means any officer of the Trustee assigned by
the Trustee to administer its corporate trust matters.
"U.S. Government Obligations" means direct non-callable
obligations of, or non-callable obligations guaranteed by, the United States of
America for the timely 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 Guarantor and
the Obligor.
All other terms used in this Indenture that are not otherwise
defined herein and are defined by the TIA, are defined by TIA reference to
another statute, or are defined by SEC rule under the TIA have the meanings so
assigned to them.
SECTION 1.03 RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with generally accepted
accounting principles in effect from time to time;
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(3) "or" is not exclusive;
(4) words in the singular include the plural and in the
plural include the singular except where the context manifestly
otherwise requires;
(5) provisions apply to successive events and
transactions;
(6) "herein", "hereof" and other words of similar import
refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision;
(7) references to Sections or Articles herein, unless
otherwise expressly specified, refer to Sections or Articles hereof;
(8) references herein to any action, transaction,
condition or circumstance permitted under a Section shall be deemed to
refer to actions, transactions, conditions or circumstances not
prohibited by the provisions of such Section; and
(9) each covenant in Article 4 hereof shall be effective
from and after the Effective Date.
ARTICLE 2.
THE SECURITIES
SECTION 2.01 FORM AND DATING.
The Securities, the notation thereon relating to the Guarantee
Agreement and the Trustee's certificate of authentication shall be
substantially in the form set forth in Exhibit B, which is incorporated in and
forms a part of this Indenture. The Securities may have such notations,
legends or endorsements as are required by law, stock exchange rule or usage.
Each Security shall be dated the date of its authentication.
SECTION 2.02 EXECUTION AND AUTHENTICATION.
Two Officers shall sign the Securities for the Obligor by
manual or facsimile signature. The Obligor's seal shall be reproduced on the
Securities. An Officer of the Guarantor shall sign the notation on the
Securities relating to the Guarantee Agreement by manual or facsimile
signature.
If an Officer whose signature is on a Security no longer holds
that office at the time the Security is authenticated, the Security shall
nevertheless be valid.
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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 $138,118,000 upon a written order of
the Obligor signed by two Officers or by an Officer and an Assistant Treasurer
or Assistant Secretary of the Obligor. Such order shall specify the amount of
Securities to be authenticated and the date on which the original issue of
Securities is to be authenticated. The Trustee shall thereafter, from time to
time, authenticate additional Securities for issuance pursuant to Section 4.01
upon a written order of the Obligor signed by two Officers or by an Officer and
an Assistant Treasurer or Assistant Secretary of the Obligor specifying the
amount of Securities to be authenticated and the date on which such later issue
of Securities is to be authenticated. The aggregate principal amount of
Securities issued pursuant to the two immediately preceding sentences may not
exceed $192,804,000 except as provided in Section 2.07.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate Securities. An authenticating agent
may authenticate Securities whenever the Trustee may do so. Each reference in
this Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as an Agent to deal with
the Company, the Guarantor, each Signing Subsidiary and any Affiliate.
The Securities shall be issuable only in registered form
without coupons and only in denominations of $1,000 and integral multiples
thereof; provided, however, any Securities issuable pursuant to Section 4.01
may be issuable in denominations of $100 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 and each Signing Subsidiary 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 may act as such.
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The Company initially appoints the Trustee as Registrar and
Paying Agent.
SECTION 2.04 PAYING AGENT TO HOLD MONEY IN TRUST.
Each Paying Agent shall hold in trust for the benefit of the
Securityholders or the Trustee all moneys held by the Paying Agent for the
payment of principal of or interest on the Securities (whether such money has
been paid to it by the Company, any Signing Subsidiary or the Guarantor), and
shall notify the Trustee and the Guarantor of any default by the Company or any
Subsidiary 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, none of the Company, the
Signing Subsidiaries, the Guarantor nor the Paying Agent shall have any further
liability to any Securityholder or to the Trustee for the money paid over. 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 not later than 15 days after each record date a
list, in such form and as of such date as the Trustee may reasonably require,
of the names and addresses of Securityholders and at such other times as the
Trustee may request in writing, within 30 days after such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished.
SECTION 2.06 TRANSFER AND EXCHANGE.
When Securities are presented to the Registrar or Co-Registrar
with a request to register their transfer or to exchange them for an equal
principal amount of Securities of other authorized denominations accompanied by
a written instrument or instruments of transfer, in form satisfactory to the
Company and the Registrar, duly executed by the registered owner or by his or
her attorney duly authorized in writing, the Registrar shall register the
transfer or make the exchange. To permit registrations of transfer and
exchanges, the Trustee shall authenticate Securities (accompanied by notations
relating to the Guarantee Agreement duly endorsed by the Guarantor) at the
Registrar's request. The Company or the Trustee, as the case may be, shall not
be required (i) to issue, authenticate, register the transfer of or exchange
any Security during a period beginning at the opening of business 15 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.
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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 shall deem and
treat the Holder of any Securities, prior to due presentment thereof for
registration of transfer, as the absolute owner of such Securities for all
purposes (whether or not the Securities shall be overdue and notwithstanding
any notation of ownership or other writing thereon) and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
any notice to the contrary.
SECTION 2.07 REPLACEMENT SECURITIES.
If the Holder of a Security claims that the Security has been
mutilated, lost, destroyed or wrongfully taken, the Obligor shall execute and
issue and, upon a written order of the Obligor signed by two Officers or by an
Officer and an Assistant Treasurer or Assistant Secretary of the Obligor, the
Trustee shall authenticate (accompanied by a notation relating to the Guarantee
Agreement duly endorsed by the Guarantor) and deliver a replacement Security if
their respective reasonable requirements as well as the requirements of
applicable law are met and, in the case of a mutilated Security, such mutilated
Security is surrendered to the Trustee. If required by the Trustee, the
Guarantor or the Company, an indemnity bond must be furnished by such Holder in
an amount sufficient in the judgment of the Trustee or the Company, as the case
may be, to indemnify and protect the Company, the Guarantor, the Trustee and
any other Agent and hold them harmless from any loss which any of them may
suffer if a Security is replaced. The Company or the Trustee may charge for
its reasonable expenses in replacing a Security.
If any mutilated, destroyed or wrongfully taken Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security when due.
Every replacement Security is an additional obligation of the
Obligor.
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.
Subject to Section 2.09, a Security does not cease to be outstanding solely
because the Company, the Guarantor or one of their Subsidiaries or Affiliates
is a Holder of the Security.
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If a Security is replaced pursuant to Section 2.07, it ceases
to be outstanding unless the Trustee receives proof satisfactory to it, or a
court holds, that the replaced Security is held by a bona fide purchaser.
If the Paying Agent (if other than the Company) or the Trustee
holds on a redemption date or Maturity Date money sufficient to pay the
principal of, and accrued interest on, the Securities payable on that date,
then on and after that date such Securities shall be deemed to be no longer
outstanding and interest on them shall cease to accrue.
SECTION 2.09 SECURITIES HELD BY THE COMPANY OR AN AFFILIATE.
In determining whether the Holders of the required principal
amount of Securities have concurred in any direction, request, waiver or
consent under this Indenture, Securities owned by the Company or the Guarantor
or any Subsidiary or Affiliate of the Company or the Guarantor shall be
disregarded, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, request, waiver or
consent, only Securities which the Trustee knows are so owned shall be so
disregarded.
SECTION 2.10 TEMPORARY SECURITIES.
Until definitive Securities are ready for delivery, the
Company may prepare and execute and the Trustee shall authenticate (accompanied
by a notation relating to the Guarantee Agreement duly endorsed by the
Guarantor) and deliver temporary Securities. Temporary Securities shall be
substantially in the form of definitive Securities, but may have such
variations as the Company considers appropriate for temporary Securities. The
Company shall prepare and execute and the Trustee shall authenticate and
deliver definitive Securities (accompanied by a notation relating to the
Guarantee Agreement duly endorsed by the Guarantor) in exchange for temporary
Securities without unreasonable delay.
SECTION 2.11 CANCELLATION.
The Company may at any time deliver Securities to the Trustee
for cancellation. The Registrar and Paying Agent shall forward to the Trustee
any Securities surrendered to them for registration of transfer, exchange or
payment. The Trustee shall cancel all Securities surrendered for registration
of transfer, exchange, payment or cancellation and 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 Obligor 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
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<PAGE> 21
date, the Company shall mail to Securityholders, with a copy to the Trustee, a
notice that states the record date, payment date and amount of interest to be
paid.
SECTION 2.13 DEEMED REPAYMENTS.
If the Guarantor is required to make any payment of Guarantor
Obligations, and actually makes such payment to the Trustee whether in cash,
Payment Notes or a combination thereof (all such payments, in the aggregate,
"Guarantee Payments"), the Trustee shall thereupon immediately (and without the
need for any notice or action on the part of any Person) be deemed to have
collected the amount of the Guarantee Payments in respect of Securities under
Article 6 hereof, to be applied in accordance with Section 6.10. In computing
any such deemed collection, each Payment Note issued by the Guarantor shall be
deemed to have a value equal to the principal amount thereof.
ARTICLE 3.
REDEMPTION
SECTION 3.01 NOTICES TO TRUSTEE.
If the Obligor elects to redeem Securities pursuant to Section
3.07 or is required to redeem Securities pursuant to Section 3.08, it shall
notify the Guarantor and the Trustee, by means of an Officers' Certificate at
least 60 days prior to the redemption date (unless a shorter notice period
shall be satisfactory to the Trustee), of the redemption date and the principal
amount of Securities to be redeemed.
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 Obligor 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 Obligor with respect to the
Securities. If the Obligor shall so direct, Securities registered in the name
of the Obligor or Affiliate of the Obligor shall not be included in the
Securities selected for redemption.
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SECTION 3.03 NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a redemption
date, the Obligor 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 (if less than all of the Securities are to be
redeemed) and shall state:
(1) the redemption date;
(2) that the Securities will be redeemed at a price equal
to the principal amount to be redeemed plus accrued and unpaid
interest to the date of redemption (the "Redemption Price");
(3) and the amount of accrued interest to be paid on the
Securities as a part of the Redemption Price;
(4) the name and address of the Paying Agent;
(5) the provisions of the Securities and this Indenture
pursuant to which the Securities are to be redeemed;
(6) that Securities called for redemption must be
surrendered to the Paying Agent to collect the Redemption Price;
(7) 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
(8) the CUSIP number of the Securities.
At the Obligor's request, the Trustee shall give the notice of
redemption in the Obligor's name and at the Obligor'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 Obligor shall default in the payment of the
Redemption Price on the date fixed for redemption), 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. Upon surrender to the Paying Agent,
such Securities shall be paid at the Redemption Price.
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SECTION 3.05 DEPOSIT OF REDEMPTION PRICE.
On or before the Business Day immediately preceding the
redemption date, the Obligor shall deposit with the Paying Agent money in funds
immediately available at the opening of business on the redemption date
sufficient to pay the Redemption Price of 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 Obligor in
whole at any time or in part from time to time at the Redemption Price.
SECTION 3.08 MANDATORY REDEMPTION.
Within two Business Days after receipt of Net Proceeds by the
Obligor, it shall deposit all Net Proceeds received in the Cash Collateral
Account; provided, however, prior to making a deposit of Net Proceeds, (i) the
Obligor shall set aside out of such Net Proceeds cash reserves sufficient to
cause the Obligor to have at least $5 million of cash; and in addition (ii) if
approved by the Board of Directors of the Company by resolution made in good
faith, the Obligor may retain (a) the amount specified in such resolution up to
an aggregate $5 million of such Net Proceeds, in order to meet the anticipated
working capital needs of the Obligor for the one-year period commencing on the
first day following the consummation of the Extraordinary Event in respect of
which such deposit is made and (b) up to $1 million of any payment received in
respect of casualty insurance covering the Pledged Collateral to replace the
Pledged Collateral in respect of which such insurance payment is received.
Within 20 days after such deposit, the Obligor shall provide to the Trustee an
Officers' Certificate setting forth (a) a calculation of the Net Proceeds
received by the Obligor, (b) a calculation of any amount set aside for working
capital in accordance with clause (i) above, (c) a copy of any Board Resolution
passed in accordance with clause (ii) above, and (d) a calculation of the
amount being deposited in the Cash Collateral Account. If at any time there is
at least $5 million in the Cash Collateral Account, all money in the Cash
Collateral Account shall be paid over to the Trustee and used, upon receipt of
the Officers' Certificate delivered pursuant to Section 3.01, by the Trustee to
redeem Securities at the Redemption Price.
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ARTICLE 4.
COVENANTS
SECTION 4.01 PAYMENT OF SECURITIES.
The Obligor shall pay the principal of and interest on the
Securities on the dates and in the manner provided in the Securities and this
Indenture. Principal and interest shall be considered paid on the date due if
the Paying Agent (if other than the Company) holds on that date money
sufficient to pay all principal and interest then due. The Obligor shall pay
interest on overdue principal at the rate specified in the Securities. At the
Company's election evidenced by an Officers' Certificate delivered at least 30
days prior to the interest payment date, in lieu of providing for a cash
payment on any interest payment date prior to the Maturity Date, the Obligor
may pay all or any portion of the interest due on any such interest payment
date by authorizing the Trustee by written order pursuant to Section 2.02
hereof to authenticate and deliver as an interest payment additional Securities
in an aggregate principal amount equal to the amount of such interest payment
or the portion thereof not paid in cash. The Trustee shall distribute such
Securities authorized in lieu of cash to Holders pro rata. Any portion of
interest payable to a Holder which, but for the provisions of Section 2.02
relating to authorized denominations would otherwise be payable in additional
Securities, shall be payable in cash.
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 SALE OF ASSETS AND SUBSIDIARIES; CORPORATE EXISTENCE.
(a) The Company shall use all reasonable commercial
efforts to cause, and shall conduct the business of the Company and its
Subsidiaries in a manner calculated to cause, its assets and the assets and/or
capital stock of its Subsidiaries expeditiously to be sold at the best
obtainable prices to produce Net Proceeds to be applied to redemption and
repayment of the Securities timed in a manner calculated to repay the
Securities in full in cash on or before the Maturity Date.
(b) The Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence
and, pending its sale or liquidation, the corporate existence of each
Subsidiary of the Company; provided, however, that the Company shall not be
required to cause its Subsidiaries to preserve their corporate existence if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and its Subsidiaries as
a whole and if the loss thereof is not disadvantageous in any material respect
to the Holders. The Company shall not consolidate or merge with or into any
Person. The Subsidiaries that have executed this Indenture are the only
Subsidiaries of the Company on the date hereof. If at any time hereafter the
Company shall create or acquire a Subsidiary it shall, within two Business Days
thereafter, cause such Subsidiary, (i) by supplemental indenture, to become
obligated under this Indenture and the Securities jointly and severally with,
and to be included in the definition of, the Obligor and (ii) by supplemental
agreement, to become obligated under the Collateral Agency Agreement, and all
documents, instruments and other writings required thereby, as if it were a
party thereto as a Subsidiary of the Company on the date hereof.
SECTION 4.04 PAYMENT OF TAXES.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent (i) all material taxes,
assessments and governmental charges levied or imposed upon the Company or any
Subsidiary of the Company, or any of their properties, and (ii) all lawful
claims for labor, materials and supplies which, if unpaid, might by law become
a material Lien upon the property of the Company or any Subsidiary of the
Company; provided, however, that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith
by appropriate proceedings and for which it has set aside on its books such
reserves as it deems adequate and are in accordance with generally accepted
accounting principles.
SECTION 4.05 MAINTENANCE OF PROPERTIES.
Pending sale, the Company will cause the material properties
owned by the Company or any Subsidiary of the Company for use in the conduct of
its business or the business of any such Subsidiary to be maintained and kept
in good condition, repair and working order (subject to ordinary wear and tear)
and will cause to be made all necessary
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repairs thereof, all as in the judgment of the Company may be necessary so that
the business carried on in connection therewith may be properly and
advantageously conducted; provided, however, that nothing in this Section shall
prevent the Company from discontinuing the maintenance or repair of any such
properties if such discontinuance is, in the judgment of the Company, desirable
in the conduct of its business or the business of any Subsidiary or in
connection with the sale of any of its assets or assets of any Subsidiary and
not disadvantageous in any material respect to the Holders.
SECTION 4.06 SEC REPORTS.
At such times as the Obligor may be required to file reports
and other information with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act, the Obligor shall deliver to the Trustee, within 15 days after
the Obligor files with the SEC copies of its annual and quarterly reports and
other information, documents and reports (or copies of such portions of any of
the foregoing as the SEC may by rules and regulations prescribe) copies of such
documents which it is required to file pursuant to such Sections. The Obligor
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 Obligor is not subject or shall cease to be subject to the requirements
of Section 13 or 15(d) of the Exchange Act, the Company shall commencing on
January 1, 1995 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, an audited consolidated balance sheet and annual financial
statements for the prior year or portion thereof after the Effective Date
prepared in accordance with generally accepted accounting principles and
unaudited condensed quarterly financial statements, including any notes thereto
(but not including any Management's Discussion and Analysis of Financial
Condition and Results of Operations or other materials), each comparable
(except with respect to periods covered) 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 Obligor also shall comply with any other
applicable provisions of TIA Section 314(a).
SECTION 4.07 COMPLIANCE CERTIFICATE.
The Obligor shall deliver to the Trustee within 120 days after
the end of each fiscal year of such Person, and within 60 days after the end of
each of the first three fiscal quarters of such Person, an Officers'
Certificate signed by such Person's principal financial officer, principal
accounting officer or principal executive officer 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. The Obligor will furnish all other opinions,
certificates and other writings
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required by the TIA to the extent applicable including, without limitation, the
opinions required under Section 314(b)(2) thereof.
SECTION 4.08 LIMITATION ON STOCK PAYMENTS AND INVESTMENTS.
(a) The Company will not declare any dividends on any
Capital Stock of the Company or make any payment on account of the purchase,
redemption or other retirement of any shares of such stock or make any
distribution in respect thereof.
(b) The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, make any Investment on or after the
Effective Date; provided, however, that, if approved by resolution of the Board
of Directors of the Company (i) up to 20% of the fair market value (as
determined in such resolution) of the consideration received in connection with
any Extraordinary Event or series of related Extraordinary Events may be
non-cash consideration, including without limitation securities (valued as
determined in such resolution); and (ii) Investments may be made to the extent
required pursuant to any Existing Agreement.
SECTION 4.09 TRANSACTIONS WITH AFFILIATES.
The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly (i) sell, lease, exchange, swap,
transfer or otherwise dispose of any amount of their respective properties,
assets or securities to, (ii) purchase or lease any property, assets or
securities from, (iii) make any Investment in, or (iv) enter into any contract
or agreement with or for the benefit of, an Affiliate other than the Company or
a Signing Subsidiary except for transactions required by the Existing
Agreements and except for any registration rights agreement with respect to any
securities issued by the Company pursuant to the Plan of Reorganization.
SECTION 4.10 LIMITATION ON ADDITIONAL INDEBTEDNESS AND LIENS.
(a) The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, create, incur, issue, assume,
guarantee or otherwise become directly or indirectly liable with respect to any
Indebtedness other than Permitted Indebtedness.
(b) The Company will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien on any asset
owned by the Company or any of its Subsidiaries except Permitted Liens.
SECTION 4.11 CONFLICTING AGREEMENTS.
The Company will not, and will not permit any of its
Subsidiaries to, enter into any agreement or execute any instrument (other
than, in the case of clause (C) below, agreements and instruments relating to
Capital Leases or to Purchase Money Indebtedness) that by its terms expressly
prohibits or otherwise would have the effect of prohibiting the
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Company or any Subsidiary from (A) redeeming or otherwise making any payments
on or with respect to the Securities, (B) granting Liens to secure the
Company's obligations under the Securities or (C) selling its assets, in each
case pursuant to the terms of this Indenture.
SECTION 4.12 LIMITATION ON DIVIDENDS AND CERTAIN OTHER RESTRICTIONS
AFFECTING SUBSIDIARIES.
Except as otherwise provided by the terms of this Indenture or
by the terms of the RMC Settlement Agreement, the Company will not, and will
not permit any of its Subsidiaries to, create or otherwise cause or suffer to
exist or to become effective any encumbrance or restriction on the ability of
any of its Subsidiaries (i) to pay dividends, make loans, extend guarantees or
make any other distributions to the Company or to other Subsidiaries, or to pay
any Indebtedness owed to the Company or a Subsidiary of the Company; (ii) to
make loans or advances to the Company or another Subsidiary; or (iii) to
transfer any of their respective properties or assets to the Company, other
than such encumbrances or restrictions existing under or by reason of (a)
applicable law, (b) customary non-assignment provisions of any lease governing
a leasehold interest of the Company or any of its Subsidiaries, and (c)
restrictions on the transfer of assets acquired in connection with the
incurrence of Purchase Money Indebtedness or Capital Leases.
SECTION 4.13 WAIVER OF STAY, EXTENSION OR USURY LAWS.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
or any usury law or other law which would prohibit or release the Company from
paying all or any portion of the principal of 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.
SECTION 4.14 MAINTENANCE OF INSURANCE AND RECORDS, COMPLIANCE WITH LAW.
(a) Except to the extent that, in the exercise of its
good faith business judgment, the Company believes the cost to be incurred in
procuring and/or maintaining insurance to be excessive in view of the benefit
to be derived therefrom, the Company shall, and shall cause its Subsidiaries
to, maintain with financially sound and reputable insurers such (i) liability
and property and casualty insurance as may be required by law and (ii) such
other insurance, to such extent and against such hazards and liabilities (but
subject to reduction in coverage amount appropriate in light of any
divestitures of assets made from time to time) equivalent to the insurance that
it currently maintains. Each such insurance policy shall name the Trustee as a
loss payee to the extent of its interests hereunder in any proceeds payable
under such policy and shall provide that it may not be cancelled without at
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least thirty days prior notice to the Trustee. Any proceeds in respect of such
insurance received by the Trustee shall be paid to the Company for application
by it as provided in Section 3.08; provided, however, if at the time of receipt
of such proceeds a Default or Event of Default shall have occurred and be
continuing, such proceeds will be deposited into the Cash Collateral Account by
the Trustee.
(b) The Company shall keep, or cause to be kept, true
books and records and accounts in which entries will be made of all of the
business transactions of the Company and its Subsidiaries which shall be full
and correct in all material respects, in accordance with sound business
practices, and reflect in their respective financial statements adequate
accruals and appropriate reserves, all in accordance with generally accepted
accounting principles.
(c) The Company shall, and shall cause its Subsidiaries
to, comply with all statutes, laws, ordinances, or governmental rules and
regulations to which it is subject, noncompliance with which would materially
adversely affect the prospects, earnings, properties, assets or condition,
financial or otherwise, of the Company and its Subsidiaries taken as a whole.
SECTION 4.15 LIMITATION ON REDEMPTION OF CERTAIN INDEBTEDNESS.
The Company will not, and will not permit any of its
Subsidiaries to, (i) redeem pursuant to the optional redemption provisions
thereof, or make any optional payment of principal on, any Permitted
Indebtedness; (ii) defease Permitted Indebtedness; or (iii) issue to the
holders of Permitted Indebtedness in exchange therefor any property or assets;
provided, however, nothing contained herein will limit the Company's ability to
repay the Guarantor monies advanced to or for the benefit of the Company in
accordance with the Management Services Agreement.
SECTION 4.16 VALUE OF CLAIMS REPRESENTED BY SECURITIES.
The Obligor covenants and agrees that in any case commenced
under Chapter 11 of Title 11 of the United States Code subsequent to the
Effective Date involving the Obligor, 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 4.17 NOTICE OF DEFAULT.
In the event that any Default under this Indenture shall
occur, the Company will give written notice of such Default to the Trustee
within 5 Business Days after its occurrence, specifying the (i) date on which
such Default occurred or when the Company had Actual Knowledge thereof and (ii)
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.
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SECTION 4.18 INVESTMENT COMPANY ACT OF 1940.
The Company will not, and will not permit any of its
Subsidiaries to, take any action resulting in its becoming an "investment
company" (as such term is defined in the Investment Company Act of 1940, as
amended).
ARTICLE 5.
RELEASE OF SUBSIDIARIES
SECTION 5.01 RELEASE OF SUBSIDIARY.
Upon any Sale of Assets made in compliance with the terms of
this Indenture which consists of the sale of all of the capital stock of a
Subsidiary or the sale of a Subsidiary by means of any merger or consolidation,
such Subsidiary's obligations in respect of this Indenture and the Securities
shall, without payment of any consideration or any further action on the part
of any Person, be discharged and terminated; provided, however, no such
discharge or termination shall be effective if at the time of such Sale of
Assets there exists a Default or Event of Default. Upon its receipt of an
Officers' Certificate of the Company that a Subsidiary has ceased to have any
obligations in respect of this Indenture and the Securities, the Trustee, upon
payment of all amounts due it under Section 7.07, shall execute and cause to be
filed or delivered any instrument, agreement, indenture or document reasonably
requested by the Company in an Officers' Certificate to fully effect such
discharge and termination.
ARTICLE 6.
DEFAULTS AND REMEDIES
SECTION 6.01 EVENTS OF DEFAULT.
An "Event of Default" occurs if:
(1) the Company defaults in the payment of interest on
any Security when the same becomes due and payable, whether at
maturity, in connection with any redemption, by acceleration or
otherwise, and such default continues for a period of 30 days after
its due date;
(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; provided, however, in the case of any such default
resulting from a dispute as to the computation of Net Proceeds, that
such default shall have remained uncured for a period of 30 days from
the date of notice to
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the Company from the Trustee as to the existence of, and specifying
the basis for, such default;
(3) the Company or any of its Subsidiaries fails to
observe or perform in any material respect any of its other covenants
or agreements in the Securities, this Indenture or the Collateral
Agency Agreement or any other agreement or instrument now or hereafter
entered into creating, perfecting, or evidencing the Lien in and on
any of the Pledged Collateral in favor of the Collateral Agent for the
benefit of the Holders of the Securities, which failure continues for
a period of 30 days after the earlier of (i) the date on which written
notice of such failure, requiring the Company to remedy the same,
shall have been given to the Company by the Trustee, or to the Company
and the Trustee by the Holders of at least 25% in aggregate principal
amount of the Securities at the time outstanding or (ii) the date on
which the Company had Actual Knowledge of such failure;
(4) (a) the Company or any of its Subsidiaries fails to
pay when due (whether at maturity, in connection with any mandatory
amortization or redemption, by acceleration or otherwise) any
principal or interest on any Indebtedness, other than any Indebtedness
referred to in clause (i) or (iii) of the definition of Permitted
Indebtedness herein, with an aggregate outstanding principal amount in
excess of $2 million, whether any such Indebtedness is outstanding as
of the date of this Indenture or is hereafter outstanding, which
default continues for any period of grace applicable thereto, or (b) a
default or event of default, as defined in one or more indentures,
agreements or other instruments evidencing or under which the Company
or any of its Subsidiaries individually or collectively have, as of
the date of this Indenture or hereafter, outstanding at least $2
million aggregate principal amount of Indebtedness, shall happen and
be continuing and such Indebtedness shall have been accelerated so
that it is due and payable prior to the date on which it would
otherwise have become due and payable; provided that if such default
or event of default under such indenture or other instrument shall be
remedied or cured by the Company or the Subsidiary or waived by the
holders of such Indebtedness, then the Event of Default under this
Indenture by reason thereof shall be deemed likewise to have been
thereupon remedied, cured or waived without further action upon the
part of either the Trustee or any of the Holders of Securities;
(5) one or more final judgments against the Company or
any of its Subsidiaries for payments of money which in the aggregate
exceed $2 million, are entered by a court of competent jurisdiction
and such judgments are not rescinded, annulled, stayed or discharged
within 60 days;
(6) the Company and its Subsidiaries, taken as a whole,
becomes unable generally to pay its debts as they become due;
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(7) the Company or any of its 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
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
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;
(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 Subsidiaries and such petition,
application, case or proceeding is not dismissed or stayed within
sixty (60) days;
(10) the entry of a final judgment, decree or order by a
court of competent jurisdiction holding the Guarantee Agreement, the
Pledge Agreement or the Collateral Agency Agreement to be invalid or
unenforceable in any material respect; or the Guarantor or the
Obligor, or any Person acting on behalf of the foregoing, shall
assert, in any pleading filed in such a court, that the Guarantee
Agreement, the Pledge Agreement or the Collateral Agency Agreement is
invalid or unenforceable in any material respect; or
(11) an "Event of Default," as defined in the Guarantee
Agreement shall have occurred and be continuing.
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The term "Bankruptcy Law" means Title 11, U.S. Code or any
similar Federal or State law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law or laws for the enforcement of creditors' rights. The term
"Actual Knowledge" means the actual knowledge of any Officer of the Company;
provided, however, that each 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(7), (8) or (9)) occurs and is continuing, the Trustee
by notice to the Company, or the Holders of at least 25% in principal amount of
the Securities by notice to the Company and the Trustee, may declare the
principal of and accrued interest on all the Securities to be due and payable.
Upon such declaration such principal and interest shall be due and payable
immediately. If an Event of Default specified in Section 6.01(7), (8) or (9)
occurs, all unpaid principal and accrued interest on the Securities then
outstanding shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Securityholder.
The Holders of at least 66 2/3% of the principal amount of the Securities may
rescind an acceleration and its consequences by notice to the Trustee if the
rescission would not conflict with any judgment or decree and if the
outstanding Events of Default have been cured or waived except for nonpayments
of any amounts that have become due solely because of the acceleration. No
such rescission shall affect any subsequent Default or impair any right or
remedy with respect thereto.
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, the Collateral Agency Agreement or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. No remedy is exclusive of any other remedy. All remedies
are cumulative.
In case the Trustee shall have proceeded to enforce any rights
under this Indenture and such proceedings shall have been discontinued or
abandoned for any reason or shall have been determined adversely to the
Trustee, then and in every such case the Company, the Trustee and the Holders
shall, subject to any determination in such
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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 6.02, 6.07 and 9.02, the Holders of at
least 66 2/3% of the principal amount of the Securities by notice to the
Trustee may waive an existing Default or Event of Default and its consequences
or an existing Default or Event of Default under the Guarantee Agreement. When
such a Default or Event of Default is waived, it is cured and ceases.
SECTION 6.05 CONTROL BY MAJORITY.
The Holders of a majority in principal amount of the
Securities may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on it under the Indenture and the Guarantee Agreement. The Trustee,
however, may refuse to follow any direction that conflicts with law, this
Indenture or the Guarantee Agreement, is unduly prejudicial to the rights of
any Securityholder or would subject the Trustee to personal liability;
provided, the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction. A record date may be set 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, the Guarantee Agreement or the
Securities only if:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default under the Indenture or the Guarantee
Agreement, as the case may be;
(2) the Holders of at least 25% in principal amount of
the Securities outstanding 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.
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A Securityholder may not use this Indenture or the Guarantee
Agreement to prejudice the rights of any other Securityholder or to obtain a
preference or priority over any other Securityholder.
SECTION 6.07 RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Subject only to Sections 5.01 and 6.02 hereof, the right of
any Holder of a Security to receive payment of principal of and interest on the
Security or under the Guarantee Agreement, on or after the respective due dates
(prior to any acceleration) expressed in the Security or the Guarantee
Agreement, as the case may be, or to bring suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of the Holder, except that no Holder of Securities shall
have the right to institute any such suit if and to the extent that the
institution or prosecution thereof or the entry of judgment therein would,
under applicable law, result in the surrender, impairment, waiver or loss of
the Lien of the Collateral Agency Agreement upon any of the Pledged Collateral.
SECTION 6.08 COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(1) or (2)
occurs and is continuing, the Trustee may recover judgment in its own name and
as trustee of an express trust against the Obligor for the whole amount of
principal and interest in default or against the Guarantor for the amounts
provided for in the Guarantee Agreement.
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 Obligor, the Guarantor, their creditors or
their property.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
of the Securities any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of the
Securities in any such proceeding.
SECTION 6.10 PRIORITIES.
If the Trustee collects any money pursuant to this Article, it
shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
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Second: to Securityholders for amounts due and unpaid on the
Securities for principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Securities for principal and interest, respectively; and
Third: to the Company.
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 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
under this Indenture:
(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
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requirements of this Indenture. Where a particular provision of this
Indenture requires delivery of certain certificates and opinions to
the Trustee, 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.
(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 or the Guarantee Agreement at the request of any
Holders unless such Holders shall have offered to the Trustee indemnity
reasonably satisfactory to it against any loss, liability or expense. No
provision of this Indenture or the Guarantee Agreement shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or thereunder, or
in the exercise of its rights or power, if it has reasonable grounds for
believing, and does believe in good faith, that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
(f) The Trustee shall not be liable for interest on any
money received by it except as the Trustee may agree in writing with the
Company or the Guarantor, as the case may be. Money held in trust by the
Trustee need not be segregated from other funds except to the extent required
by law.
SECTION 7.02 RIGHTS OF TRUSTEE.
(1) The Trustee may rely on any document believed by it
to be genuine and to have been signed or presented by the proper
Person. The Trustee need not investigate any fact or matter stated in
the document.
(2) Before the Trustee acts or refrains from acting
hereunder or under the Guarantee Agreement, it may require an
Officers' Certificate and/or an Opinion of
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Counsel from the Company or the Guarantor, respectively, 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
Officers' Certificate, Opinion of Counsel or advice of such counsel.
(3) The Trustee may act hereunder or under the Guarantee
Agreement through agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due care.
SECTION 7.03 INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Securities and may otherwise deal with the Company, the
Guarantor or an Affiliate or Subsidiary thereof with the same rights it would
have if it were not Trustee. Any Agent may do the same with like rights. The
Trustee, however, must comply with Sections 7.10 and 7.11.
SECTION 7.04 TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or
adequacy of this Indenture, the Guarantee Agreement, the Collateral Agency
Agreement or the Securities, and it shall not be responsible for any statement
in the Securities, this Indenture, the Pledge Agreement, the Collateral Agency
Agreement or the Guarantee Agreement other than its certificate of
authentication on the Securities.
SECTION 7.05 NOTICE OF DEFAULTS.
If a Default under this Indenture, the Collateral Agency
Agreement, the Pledge Agreement or under the Guarantee Agreement occurs and is
continuing and if it is known to the Trustee, the Trustee shall mail to each
Securityholder a notice of the Default within 90 days after it occurs. Except
in the case of a Default in payment of principal of or interest on any Security
or a Default in payment of Guarantor Obligations under the Guarantee Agreement,
the Trustee may withhold the notice if and so long as it in good faith
determines that withholding the notice is in the interests of Securityholders.
SECTION 7.06 REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each May 15 beginning with May 15, 1995,
the Trustee shall mail to each Securityholder a brief report dated as of such
date in accordance with and to the extent required under 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
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are listed. The Company shall notify the Trustee when the Securities are
listed on any stock exchange.
SECTION 7.07 COMPENSATION AND INDEMNITY.
The Obligor shall pay to the Trustee, from time to time, such
reasonable compensation for all services rendered by it hereunder (which
compensation shall not be limited by any law on compensation of a trustee of an
express trust). The Obligor shall reimburse the Trustee upon request for all
reasonable out-of-pocket expenses, advances and disbursements incurred or made
by the Trustee in accordance with any provision of this Indenture (including
the reasonable compensation and the expenses and disbursements of its agents
and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith.
The Obligor shall indemnify the Trustee for, and hold it
harmless against, any loss, expense or liability (including the reasonable fees
and expenses of agents and counsel) incurred without negligence, bad faith or
willful misconduct on its part, in connection with the acceptance or
administration of this Indenture and the performance of its duties hereunder,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers
or duties hereunder.
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(7), (8) or (9) occurs or under
Section 6(a)(6), (7) or (8) under the Guarantee Agreement, the expenses and the
compensation for services are intended to constitute expenses of administration
under any Bankruptcy Law.
SECTION 7.08 REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
The Trustee may resign by so notifying the Company and the
Guarantor. The Holders of a majority in principal amount of the Securities may
remove the Trustee by so notifying the Trustee, the Guarantor and the Company
and such Holders 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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(3) a receiver or other public officer takes charge of
the Trustee or its property; or
(4) the Trustee becomes incapable of acting.
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 resigns 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, the Guarantor and to the Obligor.
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 Pledge Agreement, the
Collateral Agency Agreement and the Guarantee Agreement. The successor Trustee
shall mail a notice of its succession to Securityholders. The retiring
Trustee, upon payment of all amounts due it under Section 7.07 hereof, shall
promptly transfer all property held by it as Trustee to the successor Trustee,
subject to the lien provided for in Section 7.07.
SECTION 7.09 SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to another
corporation, the successor corporation without any further act shall be the
successor Trustee.
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).
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SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee shall comply with TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated.
ARTICLE 8.
DISCHARGE OF INDENTURE
SECTION 8.01 TERMINATION OF OBLIGOR'S OBLIGATIONS.
All of the Obligor's obligations under this Indenture shall
terminate when Securities previously authenticated and delivered (other than
mutilated, destroyed, lost or stolen Securities which have been replaced or
paid) have been delivered to the Trustee for cancellation or if:
(1) the Securities mature within six months or all of
them are to be called for redemption within six months;
(2) the Obligor or the Guarantor irrevocably deposits in
trust with the Trustee, pursuant to an irrevocable trust and security
agreement in form and substance reasonably satisfactory to the
Trustee, money or U.S. Government Obligations sufficient to pay the
principal and interest due at maturity or the Redemption Price due at
redemption, as the case may be. The Obligor or the Guarantor may make
the deposit only during the six-month period. Immediately after
making the deposit, the Company shall give notice of such event to the
Holders;
(3) the Company has paid or caused to be paid all sums
then payable by the Company to the Trustee hereunder as of the date of
such deposit; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel stating that all conditions
precedent provided for herein relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the foregoing, the Obligor'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 Obligor's
obligations under the Securities and this Indenture except for those surviving
obligations specified above.
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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 8.01, 3.05 and 3.08 or
pursuant to the Guarantee Agreement. 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. Upon written direction of the Company, the Trustee shall
invest monies held by it hereunder in U.S. Government Obligations. Any written
direction of the Company pursuant to the immediately preceding sentence shall
be such as to cause the Trustee to hold U.S. Government Obligations payable as
to principal or interest on or before the applicable date of payment on the
Securities or the Guarantee, as the case may be, in such amounts as will
provide the money necessary to make such payment. The Trustee shall not be
liable for any investment made in accordance with such written direction.
SECTION 8.03 REPAYMENT TO COMPANY.
The Trustee and the Paying Agent shall promptly pay to the
Company upon request any excess money or securities held by them at any time.
The Trustee and the Paying Agent shall pay to the Company upon request any
money held by them for the payment of principal or interest that remains
unclaimed for two years; provided, however, that the Trustee or such Paying
Agent, before being required to make any such repayment, may, at the expense of
the Company, cause to be published once in a newspaper of general circulation
in The City of New York or cause to be mailed to each Holder, or both, 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 Obligor'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 Obligor has made any payment of interest
on or principal of any
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Securities because of the reinstatement of its obligations, the Obligor shall
be subrogated to the rights of the Holders of such Securities to receive such
payment from the money or U.S. Government Obligations held by the Trustee or
Paying Agent.
ARTICLE 9.
AMENDMENTS
SECTION 9.01 WITHOUT CONSENT OF HOLDERS.
The Obligor, pursuant to a resolution of its Board of
Directors evidenced by an Officers' Certificate and the Trustee, may amend or
supplement this Indenture or the Securities and the Guarantor, with the consent
of the Trustee, may amend or supplement the Guarantee Agreement, in each case
without notice to or the consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or
inconsistency;
(2) to comply with Section 5.01 or Section 4(c) of the
Guarantee Agreement;
(3) to provide for uncertified securities; or
(4) to make any change that does not adversely affect the
rights of any Securityholder.
SECTION 9.02 WITH CONSENT OF HOLDERS.
The Obligor, pursuant to a resolution of its Board of
Directors evidenced by an Officers' Certificate and the Trustee, may amend or
supplement this Indenture or the Securities and the Guarantor, with the consent
of the Trustee, may amend or supplement the Guarantee Agreement, in each case
without notice to any Securityholder but with the written consent of the
Holders of at least 66 2/3% (except as hereinafter provided) of the principal
amount of the Securities. Subject to Section 6.07, the Holders of a majority
(except as hereinafter provided) in principal amount of the Securities may
waive compliance by the Obligor with any provision of this Indenture or the
Securities and compliance by the Guarantor with any provision of the Guarantee
Agreement, without notice to any Securityholder. However, without the consent
of each Securityholder affected, no amendment, supplement or waiver (other than
as provided in Section 6.02 hereof), including a waiver pursuant to Section
6.04, may:
(1) reduce the amount of Securities whose Holders must
consent to an amendment, supplement or waiver;
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(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;
(6) make any change in Section 6.04, Section 6.07 or this
Section 9.02; or
(7) release the Guarantor from any obligation to make
payments of Guarantor Obligations under the Guarantee Agreement or to
change the definition of Guarantor Obligations.
Promptly after an amendment under this Section becomes
effective, the Company or the Guarantor, as the case may be, shall mail to the
Securityholders a notice briefly describing the amendment.
It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment or
supplement, but it shall be sufficient if such consent approves the substance
thereof.
SECTION 9.03 COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment to this Indenture or the Securities shall
comply with the TIA as then in effect.
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.
After an amendment, supplement or waiver under this Indenture
or the Guarantee Agreement becomes effective with respect to the Securities, it
shall bind every Securityholder.
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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.
SECTION 9.06 TRUSTEE PROTECTED.
The Trustee need not sign any amendment, supplement or waiver
under this Indenture or the Guarantee Agreement authorized pursuant to this
Article that adversely affects the Trustee's rights. The Trustee shall be
entitled to receive and rely upon an Opinion of Counsel and an Officers'
Certificate that any supplemental indenture complies with the Indenture.
ARTICLE 10.
SECURITY
SECTION 10.01 COLLATERAL AGENCY AGREEMENT, PLEDGE AGREEMENT AND GUARANTEE
AGREEMENT.
The Company hereby agrees to grant and, with respect to the
Company's outstanding Common Stock, the Guarantor has granted pursuant to the
Pledge Agreement, to the Trustee for the benefit of the Trustee and the
Securityholders a first priority security interest in the Pledged Collateral
and the issued and outstanding Common Stock, respectively.
Each Securityholder, by accepting a Security, agrees to all of
the terms and provisions of the Collateral Agency Agreement pursuant to which
the Securities will be secured (including, without limitation, the provisions
of Section 9 of the Collateral Agency Agreement providing for the release of
the Pledged Collateral), the Guarantee Agreement and the Pledge Agreement, as
the same may be in effect or may be amended from time to time pursuant to their
respective terms. The due and punctual payment of the principal and interest
on the Securities, when and as the same shall be due and payable, whether on an
interest payment date, at maturity, by acceleration, following call for
redemption or otherwise, and the payment and performance of all other
obligations of the Obligor to the Holders or the Trustee under this Indenture,
according to the terms hereof, shall be secured as and to the extent (and
solely to the extent) provided in the Collateral Agency Agreement, the Pledge
Agreement and the Guarantee Agreement.
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SECTION 10.02 FURTHER ASSURANCES.
The Company and its Subsidiaries have executed and delivered,
filed and recorded (to the extent that it may currently do so under applicable
law) and will execute and deliver, file and record, all instruments and
documents, and have done and will do all such acts and other things, at the
Company's expense, as may be necessary or desirable, or that the Trustee may
reasonably request, to subject the Pledged Collateral to the Liens intended to
be created pursuant to the Collateral Agency Agreement (which Liens are defined
herein as the "Security Interests"), to perfect, maintain and protect the
Security Interests and, in the case of the existence of an Event of Default, to
enable the Trustee to exercise and enforce its rights and remedies with respect
to the Security Interests.
The Company shall cause (a) TIA Section 314(b), relating to
Opinions of Counsel regarding the Liens created under the Collateral Agency
Agreement and (b) TIA Section 314(d), relating to the release of Pledged
Collateral from the Liens created under the Collateral Agency Agreement and
Officers' Certificates or other documents regarding fair value of the Pledged
Collateral, to be complied with to the extent applicable. Any certificate or
opinion required by TIA Section 314(d) may be made by an Officer of the
Company to the extent permitted by TIA Section 314(d).
SECTION 10.03 AUTHORIZATION OF ACTIONS TO BE TAKEN BY THE TRUSTEE UNDER THE
COLLATERAL AGENCY AGREEMENT AND THE GUARANTEE AGREEMENT.
Except as otherwise provided therein, the Trustee may, in its
sole discretion and without the consent of the Securityholders, take all
actions it deems necessary or appropriate in order to (i) enforce any of the
terms of the Collateral Agency Agreement, the Pledge Agreement and the
Guarantee Agreement and (ii) collect and receive any and all amounts payable in
respect of the obligations of the Company thereunder. Such actions shall
include, but not be limited to, advising, instructing or otherwise directing
the Collateral Agent in connection with enforcing or effecting any term or
provision of the Collateral Agency Agreement or the Guarantee Agreement.
Subject to the provisions of the Collateral Agency Agreement, the Pledge
Agreement and the Guarantee Agreement, the Trustee shall have power to
institute and to maintain such suits and proceedings as it may deem expedient
to prevent any impairment of the collateral pledged thereunder by any acts that
may be unlawful or in violation of the Collateral Agency Agreement, the
Guarantee Agreement, the Pledge Agreement under the Guarantee Agreement or this
Indenture, and such suits and proceedings as the Trustee may deem expedient to
preserve or protect its interests and the interests of the Securityholders in
such collateral.
SECTION 10.04 AUTHORIZATION OF RECEIPT OF FUNDS BY THE TRUSTEE UNDER THE
COLLATERAL AGENCY AGREEMENT AND THE GUARANTEE AGREEMENT.
The Trustee is authorized to receive any funds for the benefit
of Securityholders distributed under the Collateral Agency Agreement, the
Pledge Agreement or
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the Guarantee Agreement, and to make further distributions of such funds to the
Holders according to the provisions of this Indenture.
SECTION 10.05 TERMINATION OF SECURITY INTEREST.
Upon the payment in full in cash of all obligations of the
Obligor under this Indenture and the Securities and upon payment in full
(whether in cash, by issuance of Payment Notes, or any combination thereof) of
the obligations of the Guarantor under the Guarantee Agreement, the Trustee
shall, at the request of the Company or the Guarantor, as the case may be,
deliver a certificate to the Collateral Agent stating that such obligations
have been paid in full.
SECTION 10.06 SECURITY DOCUMENTS.
The Obligor shall take any and all actions required to cause
the Collateral Agency Agreement to create, as security for the obligations
under this Indenture and the Securities, a valid and enforceable perfected lien
in and on all of the Pledged Collateral, in favor of the Collateral Agent for
the benefit of the Holders of the Securities and the Trustee, superior to and
prior to the rights of all third Persons and subject to no other Liens other
than Permitted Liens.
ARTICLE 11.
MISCELLANEOUS
SECTION 11.01 TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or
conflicts with another provision which is required or deemed to be included in
this Indenture by the TIA, the required or deemed provision shall control.
SECTION 11.02 NOTICES.
Any notice or communication by the Obligor or the Trustee to
the other is duly given if in writing and when delivered in person, mailed by
first-class mail to the other's address stated in this Section 11.02. The
Obligor 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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<PAGE> 48
If a notice or communication is mailed to any Securityholder
or the Obligor 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 Obligor's address is:
c/o Lone Star Industries, Inc.
300 First Stamford Place
Stamford, CT 06912-0014
Attn: Secretary
Telephone: (203) 969-8600
Facsimile: (203) 969-8686
The Trustee's address is:
Chemical Bank
450 West 33rd Street
15th Floor
New York, New York 10001
Attn: Corporate Trust Administration
Telephone: (212) 613-7655
Facsimile: (212) 613-7800
SECTION 11.03 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA Section
312(b) with other Securityholders with respect to their rights under this
Indenture, the Guarantee Agreement or the Securities. The Company, the
Trustee, the Guarantor, the Registrar and anyone else shall have the protection
of TIA Section 312(c).
SECTION 11.04 ACTION BY SECURITYHOLDERS.
Whenever in this Indenture or the Guarantee Agreement, it is
provided that the Holders of a specified percentage in aggregate principal
amount of the Securities may take any action (including the making of any
demand or request, the giving of any notice, consent or waiver or the taking of
any other action), the fact that at the time of taking any such action the
Holders of such specified percentage have joined therein may be evidenced by
(a) any instrument or any number of instruments of similar tenor executed by
Holders of Securities in person or by agent or proxy appointed in writing, or
(b) by the record of the
42
<PAGE> 49
Holders of Securities in favor thereof, at any meeting of Holders duly called
and held in accordance with the provisions of Article 12, or (c) by a
combination of such instrument or instruments and any such record of such
meeting of Holders, but in each case only to the extent that the Holders of
Securities shall not have revoked such action, consent or vote pursuant to
Section 9.04 and Section 11.06.
SECTION 11.05 PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF
SECURITIES.
For purposes of this Indenture and the Guarantee Agreement,
proof of the execution of any instrument by a Holder of Securities or his or
her agent or proxy and proof of the holding by any Person of any of the
Securities shall be sufficient if made in the following manner:
(1) The fact and date of execution of any such instrument
shall be proved in any manner which the Trustee deems sufficient.
(2) The ownership of Securities shall be proved by the
register of such Security or by a certificate of the Registrar
thereof.
(3) The Trustee shall not be bound to recognize any
Person as a Securityholder unless his or her title to any Security is
proved in the manner provided in this Article 11.
The Trustee may require such additional proof of any matter
referred to in this Section 11.05 as it shall deem necessary.
SECTION 11.06 REVOCATION OF CONSENTS; FUTURE HOLDERS BOUND.
Subject to Section 9.04, at any time prior to (but not after)
the evidencing to the Trustee, as provided in Section 11.04, of the taking of
any action under this Indenture 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 Corporate
Trust Office and upon proof of holding as provided in Section 11.05, revoke
such action so far as concerns such Security. Except as aforesaid, any such
action taken by the Holder of any Security shall be conclusive and binding upon
such Holder and upon all future holders and owners of such Security and of any
Security issued in exchange or substitution therefor, irrespective of whether
or not any notation in regard thereto is made upon such Security. Any action
taken under this Indenture by the Holders of the required percentage of the
aggregate principal amount of the 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.
43
<PAGE> 50
SECTION 11.07 RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a
meeting of Securityholders under this Indenture. The Registrar or Paying Agent
may make reasonable rules and set reasonable requirements for their respective
functions under this Indenture.
SECTION 11.08 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee
to take any action under this Indenture, the Guarantee Agreement, the
Collateral Agency Agreement or the Pledge Agreement, the Company or the
Guarantor, as the case may be, shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion
of the signer, all conditions precedent, if any, provided for in this
Indenture, the Guarantee Agreement, the Collateral Agency Agreement or
the Pledge Agreement, as the case may be, relating to the proposed
action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of
such counsel, all such conditions precedent have been complied with.
Each signer of an Officers' Certificate or an Opinion of
Counsel may (if so stated) rely upon an Opinion of Counsel as to legal matters
and an Officers' Certificate as to factual matters if such signer reasonably
and in good faith believes in the accuracy of the document relied upon.
SECTION 11.09 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture, the Guarantee Agreement,
the Collateral Agency Agreement or the Pledge Agreement, shall include:
(1) a statement that the Person making such
certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope
of the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are
based;
(3) a statement that, in the opinion of such
Person, he or she has made such examination or investigation
as is necessary to enable such Person to express an informed
opinion as to whether or not such covenant or condition has
been complied with; and
44
<PAGE> 51
(4) a statement as to whether or not, in the
opinion of such Person, such condition or covenant has been
complied with.
SECTION 11.10 LEGAL HOLIDAYS.
A "Legal Holiday" is a Saturday, a Sunday or a day on which
banking institutions are not obligated by law, regulation or executive order to
remain closed in The City of New York, in the State of New York or in the city
in which the Trustee or any Paying Agent under this Indenture administers its
corporate trust business. If a payment date is a Legal Holiday at a place of
payment, payment may be made at that place on the next succeeding day that is
not a Legal Holiday, and no interest shall accrue on that payment for the
intervening period.
A "Business Day" is a day other than a Legal Holiday.
SECTION 11.11 NO RECOURSE AGAINST OTHERS.
All liability of any director, officer, employee or
stockholder, as such, of the Obligor or the Guarantor with respect to the
Securities, the Collateral Agency Agreement, the Pledge Agreement and the
Guarantee Agreement is waived and released.
SECTION 11.12 TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and headings of
the Articles and Sections of this Indenture 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.
SECTION 11.13 DUPLICATE ORIGINALS.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
SECTION 11.14 GOVERNING LAW.
The laws of the State of New York, without regard to
principles of conflicts of law, shall govern this Indenture and the Securities.
45
<PAGE> 52
SECTION 11.15 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or a Subsidiary. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
SECTION 11.16 SUCCESSORS.
All agreements of the Company and the Guarantor in this
Indenture, the Guarantee Agreement and the Securities shall bind their
successors. All agreements of the Trustee in this Indenture and the Guarantee
Agreement shall bind its successors.
SECTION 11.17 SEPARABILITY.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby and a Holder shall have no claim therefor against any party
hereto.
ARTICLE 12.
MEETINGS OF HOLDERS OF SECURITIES
SECTION 12.01 PURPOSES OF MEETINGS.
A meeting of Holders of Securities may be called at any time
and from time to time pursuant to the provisions of this Article 12 for any of
the following purposes:
(a) to give any notice to the Company or to the Trustee,
or to give any direction to the Trustee, or to waive any non-performance
hereunder, and its consequences, or to take any other action authorized to be
taken by Holders of Securities pursuant to any of the provisions of this
Indenture or the Guarantee Agreement;
(b) to remove the Trustee and appoint a successor trustee
pursuant to the provisions of Section 7.08;
(c) to consent to the execution of an indenture or
indentures supplemental hereto or supplemental to the Guarantee Agreement
pursuant to the provisions of Article 9;
(d) to take any other action authorized to be taken by or
on behalf of the Holders of any specified aggregate principal amount of the
Securities under any other provision of this Indenture, the Guarantee Agreement
or under applicable law.
46
<PAGE> 53
SECTION 12.02 CALL OF MEETINGS BY TRUSTEE.
The Trustee may at any time call a meeting of Holders of
Securities to take any action specified in Section 12.01, to be held at such
time and at such place in the State of New York, as the Trustee shall
determine. Notice of each meeting of the Holders of Securities, setting forth
the time and the place of such meeting and, in general terms, the action
proposed to be taken at such meeting, shall be mailed by the Trustee to the
Holders of the Securities, not less than 20 nor more than 60 days prior to the
date fixed for the meeting, at their last addresses as they shall appear on the
register of the Securities.
SECTION 12.03 CALL OF MEETINGS BY COMPANY OR SECURITYHOLDERS.
If at any time the Company, pursuant to a resolution of its
Board of Directors, or the holders of at least twenty percent in aggregate
principal amount of the Securities then outstanding, shall have requested the
Trustee to call a meeting of Holders of Securities to take any action
authorized in Section 12.01, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall
not have mailed notice of such meeting within twenty days after receipt of such
request, then the Company or the Holders of Securities in the amount above
specified, as the case may be, may determine the time and the place in the
State of New York for such meeting, and may call such meeting by mailing notice
thereof as provided in Section 12.02.
SECTION 12.04 PERSONS ENTITLED TO VOTE AT MEETING.
To be entitled to vote at any meeting of Holders of
Securities, a Person shall (a) be a Holder of Securities or (b) be a Person
appointed by an instrument in writing as proxy by a Holder of Securities. The
only Persons who shall be entitled to be present or speak at any meeting of the
Holders of the Securities shall be the Persons entitled to vote at such meeting
and their counsel and any representatives of the Company and its counsel.
SECTION 12.05 REGULATIONS FOR MEETING.
Notwithstanding any other provisions of this Indenture or the
Guarantee Agreement, the Trustee may make such reasonable regulations as it may
deem advisable for any meeting of Holders of the Securities in regard to the
appointment of proxies, the proof of the holding of Securities, the appointment
and duties of inspectors of votes, the submission and examination of proxies
and other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think fit. Except as otherwise permitted or
required by any such regulations, the holding of Securities shall be proved in
the manner specified in Section 11.05 and the appointment of any proxy shall be
proved in the manner specified in such Section 11.05 or by having the signature
of the Person executing the proxy witnessed or guaranteed by any bank, banker,
trust company or New York Stock Exchange, Inc. member firm satisfactory to the
Trustee.
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<PAGE> 54
The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of the Securities as provided in Section 12.03, in
which case the Company or the Holders of the Securities calling the meeting, as
the case may be, shall in like manner appoint a temporary chairman, and a
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Holders of a majority in principal amount of the Securities
represented at the meeting and entitled to vote.
At any meeting of Holders of Securities, the presence of
Persons holding or representing Securities in an aggregate principal amount
sufficient to take action upon the business for the transaction of which such
meeting was called shall be necessary to constitute a quorum; but, if less than
a quorum be present, the Persons holding or representing a majority in
aggregate principal amount of the Securities represented at the meeting may
adjourn such meeting with the same effect, for all intents and purposes, as
though a quorum had been present.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
ROSEBUD HOLDINGS, INC.
By: _________________________________
Title:
(SEAL)
Attest:
_________________________________
Title:
48
<PAGE> 55
KCOR CORPORATION
By: ___________________________________
Title:
(SEAL)
Attest:
_________________________________
Title:
LAS COLINAS CORPORATION
By: ___________________________________
Title:
(SEAL)
Attest:
_________________________________
Title:
LONE STAR CALIFORNIA, INC.
By: ___________________________________
Title:
(SEAL)
Attest:
_________________________________
Title:
49
<PAGE> 56
ROSEBUD REAL PROPERTIES, INC.
By: ____________________________________
Title:
(SEAL)
Attest:
_________________________________
Title:
SANTA CRUZ CORPORATION
By: ____________________________________
Title:
(SEAL)
Attest:
_________________________________
Title:
NAZARETH CEMENT CORPORATION
By: ____________________________________
Title:
(SEAL)
Attest:
_________________________________
Title:
ROSEBUD FALCON CORPORATION
By: ____________________________________
Title:
(SEAL)
Attest:
_________________________________
Title:
50
<PAGE> 57
ROSEBUD GENERAL CORPORATION
By: ____________________________________
Title:
(SEAL)
Attest:
_________________________________
Title:
CHEMICAL BANK
By: ____________________________________
Title:
(SEAL)
Attest:
_________________________________
Title:
51
<PAGE> 58
===============================================================================
EXHIBIT A
GUARANTEE AGREEMENT
BY
LONE STAR INDUSTRIES, INC.
IN FAVOR OF
EACH AND EVERY
"HOLDER"
OF
10% ASSET PROCEEDS NOTES DUE 1997
OF ROSEBUD HOLDINGS, INC.
--------------------
DATED AS OF ------------, 1994
--------------------
===============================================================================
A-1
<PAGE> 59
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-4
Actual Knowledge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-4
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-4
Asset Proceeds Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-5
Bankruptcy Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-5
Bankruptcy Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-5
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-5
Collateral Agency Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-5
Compounding Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-5
Consolidated Net Worth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-5
Covered Deficiency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-5
Custodian . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-6
Debtors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-6
Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-6
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-6
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-6
Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-6
Guarantor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-6
Guarantor Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-6
Guarantor Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-6
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-6
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-6
Investment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-7
Lien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-7
Material Restricted Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-7
Maturity Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-7
Obligor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-7
Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-7
Officer's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-7
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-7
Payment Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-7
Payment Note Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-7
Payment Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-7
Permitted Investment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-8
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-8
Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-8
Pledge Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-8
Proscribed Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-8
Restricted Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-8
Restricted Stock Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-8
SEC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-8
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-8
TIA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-9
</TABLE>
A-2
<PAGE> 60
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-9
U.S. Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-9
2. Guarantor Obligations; Payment and Deemed Repayment . . . . . . . . . . . . . . . . . . . . . A-9
3. Nature of Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-9
4. Covenants of Guarantor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-10
5. Continued Effectiveness of this Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . A-13
6. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-14
7. Pledge Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-18
8. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-18
9. Binding Agreement; Assignment; Obligations Several . . . . . . . . . . . . . . . . . . . . . . A-18
10. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-19
11. Effectiveness; Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-19
12. Trust Indenture Act Controls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-20
13. Inconsistent Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-20
14. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-20
15. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-21
16. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-21
</TABLE>
A-3
<PAGE> 61
GUARANTEE AGREEMENT
This Guarantee, dated as of ------------, 1994, is made by LONE STAR
INDUSTRIES, INC., a Delaware corporation (the "Guarantor"), in favor of each
and every "Holder" of "Asset Proceeds Notes," as such terms (and all others
used herein without definition) are defined in accordance with Section 1 below.
W I T N E S S E T H:
WHEREAS, on December 10, 1990, the Guarantor and certain of its
affiliates (collectively, the "Debtors") filed a voluntary petition for relief
under Chapter 11 of the U.S. Bankruptcy Code with the United States Bankruptcy
Court for the Southern District of New York (the "Bankruptcy Court");
WHEREAS, on November 4, 1993, the Debtors filed a Modified Amended
Consolidated Plan of Reorganization (such plan, as it may be amended from time
to time, the "Plan") in the bankruptcy proceeding describing the means by
which, and the extent to which, claims against the Debtors in such bankruptcy
proceeding will be satisfied;
WHEREAS, on February 17, 1994, an order was entered by the Bankruptcy
Court confirming the Plan; and
WHEREAS, it is a term of the Plan that the Guarantor shall execute and
deliver this Guarantee, which is the "Reorganized Lone Star Guarantee" defined
in the Plan;
NOW, THEREFORE, in consideration of the foregoing, the sufficiency of
which consideration is hereby acknowledged by the Guarantor, the Guarantor does
hereby covenant and agree with the Trustee for the ratable benefit of the
Holders as follows:
1. Definitions. The following terms shall have the meanings set forth
after each:
"Actual Knowledge" shall have the meaning ascribed thereto in Section 6
hereof.
"Affiliate", as to any Person, means any other Person directly or
indirectly controlling or controlled by or under common control with that
Person including any Subsidiary of that Person. For this purpose, "control"
means possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ownership of voting securities, by contract or otherwise. Without limiting the
foregoing, the Guarantor is an Affiliate of the Obligor for purposes hereof.
A-4
<PAGE> 62
"Asset Proceeds Notes" means the notes of the Obligor, in the aggregate
initial principal amount of $138,118,000, issued from time to time by the
Obligor pursuant to the Indenture including, without limitation, all such notes
issued in respect of interest on other Asset Proceeds Notes, as the same may be
amended, amended and restated, modified or supplemented from time to time
(provided, however, in no event shall any such amendment, amendment and
restatement, modification, supplement or exchange increase the principal amount
outstanding or any interest rate or fees, expenses, premiums or other payments
required to be made without the written consent of the Guarantor).
"Bankruptcy Court" shall have the meaning ascribed thereto in the
recitals.
"Bankruptcy Law" shall have the meaning ascribed thereto in Section 6
hereof.
"Business Day" means a day other than a Saturday, Sunday or a day on
which banking institutions are not required by law, regulation or executive
order to be open in The City of New York, in the State of New York or in the
city in which the Trustee administers its corporate trust business.
"Collateral Agency Agreement" shall have the meaning ascribed thereto in
the Indenture, as the same may be amended, amended and restated, modified or
supplemented from time to time.
"Compounding Date" means each January 31 and July 31, commencing on the
first such date following the date hereof.
"Consolidated Net Worth" means, at any date of determination, and as to
any Person, the net worth of such Person and its Subsidiaries on a consolidated
basis determined in conformity with generally accepted accounting principles.
If such Person acquires a Subsidiary or a business is acquired directly or
indirectly by such Person or any of its Subsidiaries (an "Acquisition") at any
time when Consolidated Net Worth is to be determined, the Consolidated Net
Worth of such Person shall be determined so as to give pro forma effect to the
Acquisition as if such Acquisition occurred as of the date of determination.
Pro forma adjustments made pursuant to the preceding sentence shall reflect
only actual transactions.
"Covered Deficiency" means a notional amount, determined as of the
Maturity Date, equal to the sum of (i) (x) $88,118,000 minus (y) the aggregate
amount of all payments (principal and interest and whether paid upon mandatory
redemption, voluntary prepayment, at maturity or otherwise) made in cash by the
Obligor under the Asset Proceeds Notes (such difference, calculated from time
to time, the "Unpaid Balance") plus (ii) interest on the Unpaid Balance
calculated from time to time from the date hereof to the Maturity Date at the
rate of 10% per annum (computed on the basis of a 360-day year of twelve 30-day
months) and compounded on each Compounding Date; provided, however, that (1) in
no event shall the Covered
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Deficiency exceed $28,000,000 and (2) if the Unpaid Balance shall be less than
$0, the Covered Deficiency shall be $0.
"Custodian" shall have the meaning ascribed thereto in Section 6 hereof.
"Debtors" shall have the meaning ascribed thereto in the recitals.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Event of Default" shall have the meaning ascribed thereto in Section 6
hereof.
"Exchange Act" shall have the meaning ascribed thereto in Section 4(g)
hereof.
"Guarantee" means this Guarantee, and any extensions, modifications,
renewals, restatements, reaffirmations, supplements or amendments hereof.
"Guarantor" shall have the meaning ascribed thereto in the recitals.
"Guarantor Indenture" means the indenture of even date herewith between
the Guarantor and Chemical Bank, as trustee, which indenture relates to the
Guarantor's 10% Senior Notes Due 2003 in the initial principal amount of
$78,000,000.
"Guarantor Obligations" means (i) all amounts due and payable by the
Obligor under the Asset Proceeds Notes (including, without limitation,
principal, interest and interest accruing after the filing of a petition under
any Bankruptcy Law regardless of whether such interest is allowed as a claim
against the Obligor) on the Maturity Date which shall be unpaid by the Obligor,
and not deemed repaid pursuant to Section 2.13 of the Indenture, on the first
Business Day following the Maturity Date, but only to the extent not exceeding
the Covered Deficiency and (ii) all other obligations of the Guarantor
expressly provided for pursuant to the terms of this Guarantee but expressly
excluding any obligations under the Payment Notes.
"Holder" and "Holders" respectively mean each holder of an Asset
Proceeds Note and all such holders collectively.
"Indenture" means the Indenture of even date herewith between the
Obligor and the Trustee relating to the Asset Proceeds Notes, as the same may
be amended, amended and restated, modified or supplemented (provided, however,
in no event shall any such amendment, amendment and restatement, modification,
supplement or exchange increase the principal amount outstanding or any
interest rate or fees, expenses, premiums or other payments required to be made
without the written consent of the Guarantor).
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"Investment" shall have the meaning ascribed thereto in the Guarantor
Indenture.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or similar encumbrance in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any
capitalized lease in the nature thereof, and any filing of or agreement to give
any financing statement under the New York Uniform Commercial Code or
equivalent statutes of any jurisdiction other than an information filing).
"Material Restricted Subsidiary" shall have the meaning ascribed thereto
in Section 6 hereof.
"Maturity Date" shall have the meaning ascribed thereto in the Indenture.
"Obligor" means Rosebud Holdings, Inc., a Delaware corporation and
wholly-owned subsidiary of the Guarantor, and its subsidiaries on a joint and
several basis.
"Officer" means the Chairman of the Board, the President, any Senior
Vice-President, Executive Vice-President or any other Vice- President, the
Treasurer or the Secretary of the Guarantor.
"Officer's Certificate" means a certificate signed by an Officer of the
Guarantor.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel for the Guarantor or the Trustee.
"Payment Notes" means the promissory notes of the Guarantor which shall
(i) be secured to the extent provided in the Pledge Agreement and the
Collateral Agency Agreement, (ii) mature on July 31 of the fifth calendar year
following the date of issuance, (iii) bear interest at a rate equal to 300
basis points above the current yield for five-year U.S. Treasury Note
obligations as of the date of the issuance of such Payment Notes, as set forth
in the most recent prior weekly statistical release (or any successor release)
published by the Federal Reserve Bank of New York and designated "H.15(519)
Selected Interest Rates" and (iv) be issued in substantially the form set forth
as Exhibit A to the form of Payment Note Indenture.
"Payment Note Indenture" means an indenture, substantially in the form
of Exhibit A hereto, with such changes thereto as shall be required by
applicable law, between the Guarantor and the trustee thereunder, providing for
the issuance of the Payment Notes.
"Payment Notice" shall have the meaning ascribed thereto in Section 2
hereof.
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"Permitted Investment" shall have the meaning ascribed thereto in the
Guarantor Indenture.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, or
government or any agency or political subdivision thereof.
"Plan" shall have the meaning ascribed thereto in the recitals.
"Pledge Agreement" means the pledge agreement of even date herewith
pursuant to which the Guarantor grants a pledge of the common stock of the
Obligor to the Trustee to secure the Guarantor's obligations hereunder and
under the Payment Notes, as the same may be amended, amended and restated,
modified or supplemented from time to time.
"Proscribed Distribution" shall have the meaning ascribed thereto in
Section 4(a) hereof.
"Restricted Subsidiary" means, in the case of the Guarantor and 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 Company'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 or providing services directly related
thereto, or which is otherwise primarily engaged in the finance business; (iii)
Construction Aggregates Limited, a corporation organized under the laws of Nova
Scotia, or (iv) the Obligor and its Subsidiaries and its and their
successors-in-interest; (B) any Subsidiary specified in clause A(i), (ii) or
(iii) above which the Guarantor, by resolution of its Board of Directors, shall
have designated as a Restricted Subsidiary; and (C) New York Trap Rock
Corporation, a Delaware corporation, and NYTR Transportation Corp., a Delaware
corporation.
"Restricted Stock Payment" shall have the meaning ascribed thereto in
the Guarantor Indenture.
"SEC" shall have the meaning ascribed thereto in Section 4(g) hereof.
"Subsidiary" means any Person more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Guarantor or by one or
more other Subsidiaries. For the purposes of this definition, "voting stock"
means stock 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
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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.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Code Section
Section 77aaa-77bbbb) as amended and as in effect on the date of this
Guarantee, except as provided in Section 9.03 of the Indenture.
"Trustee" means Chemical Bank, in its capacity as trustee under the
Indenture.
"U.S. Government Obligations" means direct non-callable obligations of,
or non-callable obligations guaranteed by, the United States of America for the
timely payment of which the full faith and credit of the United States of
America is pledged.
2. Guarantor Obligations; Payment and Deemed Repayment.
(a) The Guarantor hereby guarantees the payment of the Guarantor
Obligations (and only the Guarantor Obligations). Subject to Section 6(b)
hereof, the Guarantor Obligations shall become due and payable by the Guarantor
hereunder, if at all, upon notice (a "Payment Notice") from the Trustee
delivered not earlier than the first Business Day following the Maturity Date
as to the Obligor's failure to pay the Guarantor Obligations and the amount
thereof. Notwithstanding any contrary provision hereof, the Guarantor
Obligations hereunder shall be due and payable hereunder only as expressly
provided herein and shall not except as expressly provided herein be subject to
acceleration, whether as a result of any acceleration of the Asset Proceeds
Notes or otherwise.
(b) If any Guarantor Obligations become due and payable, the
Guarantor shall within five Business Days after the Guarantor's receipt of a
Payment Notice pay such amounts to the Trustee. Such payment may, in the
discretion of the Guarantor, be made (i) in cash or by check; (ii) by issuance
of Payment Notes (with such Payment Notes being valued for purposes hereof at
their initial principal amount); or (iii) by a combination of the types of
payment described in clauses (i) and (ii). Upon payment of the Guarantor
Obligations in accordance with this Section 2, (x) all obligations under this
Guarantee shall terminate in their entirety; and (y) the Asset Proceeds Notes
shall irrevocably be deemed to be paid in accordance with, and to the extent
provided in, Section 2.13 of the Indenture.
(c) Any Payment Notes which the Guarantor shall determine to issue
in accordance with this Section 2 above shall be issued in accordance with the
provisions of the TIA and the Payment Note Indenture. The Guarantor shall
cause the Payment Note Indenture, if required under applicable law to be filed
in connection with any such issuance of Payment Notes, to be duly qualified and
filed under the applicable provisions of the TIA.
3. Nature of Guarantee. This Guarantee is unconditional, irrevocable
and continuing in nature. This Guarantee is a guarantee of payment and
performance, and is not merely a guarantee of collection.
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4. Covenants of Guarantor.
(a) Neither the Guarantor nor any of its Subsidiaries shall directly
or indirectly demand, accept or receive payment of any monies whatsoever by the
Obligor, whether by way of repayment of debt, dividend, distribution, salary,
consulting fee or otherwise, if such payment would constitute a breach of
Sections 4.08 or 4.09 of the Indenture on the part of the Obligor (any such
prohibited payment, a "Proscribed Distribution"). If, notwithstanding the
provisions of this Guarantee, the Guarantor or any of its Subsidiaries receives
any Proscribed Distribution (including receipt in any bankruptcy or similar
proceedings), the Guarantor or such Subsidiary shall hold such payment in trust
for the Trustee and will promptly turn over such payment to the Trustee, in the
form received, to be held by the Trustee in an interest-bearing trust and
applied to the Guarantor Obligations if appropriate in accordance with the
terms of this Guarantee. In the event of (x) any insolvency, bankruptcy,
receivership, custodianship, liquidation, reorganization, readjustment of debt,
arrangement, composition, moratorium, assignment for the benefit of creditors,
or other similar proceedings affecting the Obligor or its property or assets,
or (y) any proceeding for voluntary liquidation, dissolution or other winding
up or bankruptcy or other similar proceedings affecting the Obligor, then and
in any such event the Asset Proceeds Notes and all amounts due to the Trustee
under Section 7.07 of the Asset Proceeds Note Indenture shall first be (or, in
accordance with the terms of the Indenture, be deemed to be) indefeasibly paid
in cash in full before any payment or distribution of any character, whether in
cash, securities, obligations or other property, shall be made in respect of
Proscribed Distributions. The Guarantor hereby irrevocably waives any claim or
other rights which it may now or hereafter acquire against the Obligor that
arise from the existence, payment, performance or enforcement of the
Guarantor's obligations under the Guarantee including, without limitation, any
right of subrogation, reimbursement, exoneration, indemnification, and any
right to participate in any claim or remedy of any holder of Securities against
the Obligor, whether or not such claim, remedy or right arises in equity, or
under contract, statute or common law, including, without limitation, the right
to take or receive from the Obligor, directly or indirectly, in cash or other
property or by set-off or in any other manner, payment or security on account
of such claim or other rights. The Guarantor acknowledges that it will receive
direct and indirect benefits from the financing arrangements contemplated by
the Indenture and the waiver set forth in this Section 4(a) is knowingly made
in contemplation of such benefits.
(b) Except as specified in Section 7 hereof and for sales of the
Subsidiaries of Rosebud Holdings, Inc. permitted by the Indenture, the
Guarantor shall not sell, transfer, assign, pledge, exchange or otherwise
encumber or dispose of, or grant any option or warrant with respect to, or
cause the Obligor to issue, or grant any option or warrant with respect to the
issuance of, any capital stock of the Obligor.
(c) The Guarantor shall not cause the Obligor to merge or
consolidate with any other Person in violation of the Indenture. The Guarantor
shall not consolidate or merge with or into, or sell, assign, transfer or lease
all or substantially all of the assets of the Guarantor and its Restricted
Subsidiaries, taken as a whole, to, any Person unless:
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(i) there is no outstanding Default or Event of Default; and
(ii) the Person formed by or surviving any such consolidation or
merger (if other than the Guarantor), or to which such sale or
conveyance shall have been made, is an entity organized and existing
under the laws of the United States, any state thereof or the District
of Columbia; and
(iii) the Person formed by or surviving any such consolidation
or merger (if other than the Guarantor), or to which such sale or
conveyance shall have been made, assumes all the obligations of the
Guarantor under the Guarantee; and
(iv) the Person formed by or surviving any such consolidation or
merger, or to which such sale or conveyance shall have been made
(immediately after such transaction and after giving effect thereto),
(A) has Consolidated Net Worth no less than the Consolidated Net Worth
of the Guarantor and its Restricted Subsidiaries immediately preceding
such transaction and (B) would be able to borrow $1 under Section 4.10
(without taking into consideration the proviso thereto) of the Guarantor
Indenture as then in effect (or, if not then in effect, as in effect
immediately prior to the termination of its effectiveness).
The Guarantor shall deliver to the Trustee prior to the consummation of
the proposed transaction an Officer's Certificate to the foregoing effect and
an Opinion of Counsel stating that the proposed transaction complies with this
Section 4(c). The grant of security interests in assets by the Guarantor in
favor of the lender or lenders under the Permitted Working Capital Loan, as
defined in the Guarantor Indenture, required by the Permitted Working Capital
Loan shall not be deemed for purposes of this Section 4(c) to be the sale,
assignment, transfer or lease of all or substantially all of the assets of the
Guarantor and its Restricted Subsidiaries, taken as a whole.
(d) The Guarantor shall pay to the Trustee, from time to time, such
reasonable compensation for all services rendered by it hereunder (which
compensation shall not be limited by any law on compensation of a trustee of an
express trust). The Guarantor shall reimburse the Trustee upon request for all
reasonable out-of-pocket expenses, advances and disbursements incurred or made
by the Trustee in accordance with any provision of this Guarantee (including
the reasonable compensation, disbursements and expenses of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its gross negligence or bad faith. The Guarantor shall
indemnify the Trustee for, and hold it harmless against, any loss, expense or
liability (including the reasonable fees and expenses of agents and counsel)
incurred without gross negligence, bad faith or willful misconduct on its part,
in connection with the acceptance or administration of this Guarantee and the
performance of its duties hereunder, including the costs and expenses of
defending itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder.
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(e) Except as contemplated in the second sentence of Section 4(c)
above, the Guarantor and its Restricted Subsidiaries shall 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 Guarantor and its Subsidiaries
shall not be required to preserve the corporate existence of any of the
Guarantor's Subsidiaries if the Guarantor's Board of Directors shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Guarantor and its Subsidiaries as a whole and if the loss
thereof is not disadvantageous in any material respect to the Holders.
(f) The Guarantor will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent (i) all material taxes,
assessments and governmental charges levied or imposed upon the Guarantor or
any 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
Guarantor or any Subsidiary; provided, however, that the Guarantor shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings and for which it has set
aside on its books such reserves as it deems adequate and are in accordance
with generally accepted accounting principles.
(g) Within 15 days after the Guarantor files with the Securities and
Exchange Commission (the "SEC") copies of its annual and quarterly reports and
other information, documents and reports (or copies of such portions of any of
the foregoing as the SEC may by rules and regulations prescribe) which it is
required to file with the SEC pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), the Guarantor shall
deliver the same to the Trustee. If the Guarantor shall cease to be subject to
the requirements of Section 13 or 15(d) of the Exchange Act, the Guarantor
shall deliver to the Trustee, within 15 days after the date by which it would
have been required to make such a filing with the SEC, audited annual financial
statements prepared in accordance with generally accepted accounting principles
and unaudited condensed quarterly financial statements, including any notes
thereto (but not including any Management's Discussion and Analysis of
Financial Condition and Results of Operations or other Materials), each
comparable to that which the Guarantor would have been required to include in
such annual reports, information, documents or other reports if the Guarantor
were then subject to the requirements of Section 13 or 15(d) of the Exchange
Act. The Guarantor also shall comply with the other provisions of TIA Section
314(a).
(h) The Guarantor will not itself, and will not permit any
Restricted Subsidiary to, declare any Dividends or make any Restricted Stock
Payment or Investment (other than Permitted Investments) in each case if and to
the extent such declaration, payment, redemption, retirement or investment
would constitute a breach of Section 4.08 of the Guarantor Indenture as then in
effect (or, if the Guarantor Indenture is not then in effect, as in effect
immediately prior to the termination of its effectiveness).
(i) The Guarantor will not itself, and will not permit any of its
Restricted Subsidiaries to, engage in any material transaction with any of its
Affiliates if and to the extent such transaction would constitute a breach of
Section 4.09 of the Guarantor
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Indenture as then in effect (or, if the Guarantor Indenture is not then in
effect, as in effect immediately prior to the termination of its
effectiveness).
(j) The Guarantor will not, and will not permit any of its
Subsidiaries to, enter into any agreement or execute any instrument that by its
terms expressly prohibits or otherwise would have the effect of prohibiting the
Guarantor from making any payments pursuant to the terms of this Guarantee.
(k) The Guarantor shall keep, or cause to be kept, true books and
records and accounts in which entries will be made of all of the business
transactions of the Guarantor and its Restricted Subsidiaries which shall be
full and correct in all material respects, in accordance with sound business
practices, and reflect in their respective financial statements adequate
accruals and appropriate reserves, all in accordance with sound business
practice and generally accepted accounting principles.
(l) The Guarantor shall, and shall cause its Subsidiaries to, comply
with all statutes, laws, ordinances, or governmental rules and regulations to
which it is subject, noncompliance with which would materially adversely affect
the prospects, earnings, properties, assets or condition, financial or
otherwise, of the Guarantor and its Subsidiaries taken as a whole.
(m) In the event that any Default under this Guarantee shall occur,
the Guarantor will give written notice of such Default, within 5 Business Days
after the occurrence thereof, to the Trustee, specifying (i) the date on which
such Default occurred, (ii) the date on which the Guarantor had Actual
Knowledge thereof and (iii) the nature and status of such Default and the steps
which the Guarantor or its Subsidiaries have taken or propose to take in order
to cure such Default. The Guarantor shall deliver to the Trustee within 120
days after the end of each fiscal year of the Guarantor, and within 60 days
after the end of each of the first three fiscal quarters of the Guarantor, an
Officer's Certificate stating that, after a review of the activities of the
Guarantor during such period and of the Guarantor's performance under this
Guarantee, whether or not, to the best knowledge of the signer thereof based on
such review, there has been any Default or Event of Default by the Guarantor in
performing any of its obligations under this Guarantee. If the signer does
know of any such Default or Event of Default, the certificate shall describe
the Default or Event of Default and its status.
5. Continued Effectiveness of this Guarantee. Subject to the proviso
set forth in the definitions of "Asset Proceeds Notes" and "Indenture," the
Guarantor hereby expressly agrees that its obligations hereunder shall be
binding irrespective of any event or circumstance which might otherwise
constitute a legal or equitable discharge or defense of a guarantor, indemnitor
or surety under the laws of any jurisdiction, including, without limitation,
any failure of, or delay in, due and timely demand or notice, and regardless of
any change of circumstances, whether or not foreseen or foreseeable, whether or
not knowledge or notice thereof is imputable to the Guarantor, and irrespective
of any present or future law or order of any jurisdiction (or any agency
thereof) purporting to reduce, amend or otherwise affect any obligation of the
Guarantor under the terms hereof or to vary the terms hereof or of the Asset
Proceeds Notes or the Indenture or any other instrument,
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writing or arrangement relating thereto and irrespective of any other
circumstance, whether or not any of the foregoing might in any manner or to any
extent vary the obligations of the Guarantor under this Guarantee or otherwise
constitute a legal or equitable discharge or defense of a guarantor, indemnitor
or surety.
The Guarantor hereby consents that at any time and from time to time,
without notice to the Guarantor, the performance or observance by the Obligor
of any term or covenant of the Asset Proceeds Notes or the Indenture or any
other instrument pertaining thereto, or any other writing or arrangement
relating to the Asset Proceeds Notes or the Indenture may be waived, the time
of performance thereof extended, the time of any payment under the Asset
Proceeds Notes accelerated or extended, and any provisions of the Asset
Proceeds Notes or the Indenture amended (subject to the proviso set forth in
the definitions of "Asset Proceeds Notes" and "Indenture"), without affecting
the liability of the Guarantor hereunder. The Guarantor hereby waives
presentment and protest of any Asset Proceeds Note and waives all notices of
every kind which may be required to be given by any statute, regulation or rule
of law in any jurisdiction. The Guarantor hereby consents in all respects to
the execution and delivery of the Asset Proceeds Notes and the Indenture and to
all of the terms thereof, and acknowledges receipt of an executed counterpart
of the Indenture and a specimen of the Asset Proceeds Notes.
6. Events of Default.
(a) An "Event of Default" occurs if:
(1) the Guarantor defaults in the payment of Guarantor
Obligations when the same become due and payable in accordance with
Section 2 hereof;
(2) the Guarantor fails to observe or perform any of its other
covenants or agreements in this Guarantee, which failure continues for a
period of 30 days after the earlier of (i) the date on which written notice
of such failure, requiring the Guarantor to remedy the same, shall have been
given to the Guarantor by the Trustee, or to the Guarantor and the Trustee
by the Holders of at least 25% in aggregate principal amount of the Asset
Proceeds Notes at the time outstanding or (ii) the date on which the
Guarantor had Actual Knowledge of such failure;
(3) (a) the Guarantor fails to pay when due (whether at
maturity, in connection with any mandatory amortization or redemption, by
acceleration or otherwise) any principal or interest on any indebtedness for
borrowed money with an aggregate outstanding principal amount in excess of
$5 million, whether any such indebtedness is outstanding as of the date of
this Guarantee or is hereafter outstanding, which default continues for the
period of grace applicable thereto, or (b) a default or event of default, as
defined in one or more indentures, agreements or other instruments
evidencing or under which the Guarantor has, as of the date of this
Guarantee or hereafter, outstanding at least $5 million aggregate principal
amount of indebtedness for borrowed money, shall happen and be continuing
for the period of grace applicable thereto; provided that if such default or
event of
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default under such indenture or other instrument shall be remedied or cured
by the Guarantor or waived by the holders of such indebtedness (whether
prior to or after acceleration thereof), then the Event of Default under
this Guarantee by reason thereof shall be deemed likewise to have been
thereupon remedied, cured or waived without further action upon the part of
either the Trustee or any of the Holders of Asset Proceeds Notes;
(4) one or more final judgments against the Guarantor for payments
of money which in the aggregate exceed $5 million are entered by a court of
competent jurisdiction and such judgments are not rescinded, annulled,
stayed or discharged within 60 days;
(5) the Guarantor and its Restricted Subsidiaries, taken as a
whole, become unable generally to pay their debts as they become due;
(6) the Guarantor 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 it or for
all or substantially all of its property,
(d) makes a general assignment for the benefit of its
creditors, or
(e) applies for, consents to or acquiesces in the appointment
of, or taking possession by a Custodian;
(7) a court of competent jurisdiction enters a judgment, decree or
order for relief in respect of the Guarantor 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
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(8) any bankruptcy or insolvency petition or application is filed,
or any bankruptcy case or insolvency proceeding is commenced against, the
Guarantor or any of its Material Restricted Subsidiaries and such petition,
application, case or proceeding is not dismissed or stayed within sixty (60)
days.
The term "Material Restricted Subsidiary" shall mean any Restricted
Subsidiary whose total Consolidated Net Worth exceeds $5 million as of the end
of the most recently completed fiscal year. 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 Officer of the Guarantor;
provided, however, that each Officer of the Guarantor shall be deemed to have
actual knowledge of any fact that would have come to such Officer's attention
if he or she had exercised reasonable care in performing his or her duties,
given the nature of his or her duties and the Guarantor's business and
organization.
(b) If an Event of Default (other than an Event of Default specified
in Section 6(a)(6), (7) or (8)) occurs and is continuing, the Trustee by notice
to the Guarantor, or the Holders of at least 25% in principal amount of the
Asset Proceeds Notes by notice to the Guarantor and the Trustee, may declare
the Guarantor Obligations to be accelerated. If an Event of Default specified
in Section 6(a)(6), (7) or (8) occurs, all Guarantor Obligations shall ipso
facto be accelerated without any declaration or other act on the part of the
Trustee or any Holder. Upon any acceleration of the Guarantor Obligations (i)
if the Event of Default is specified in Section 6(a)(1), any and all Guarantor
Obligations shall be due and payable immediately and (ii) otherwise, the
Guarantor shall irrevocably deposit in trust with the Trustee immediately
available funds or U.S. Government Obligations sufficient to pay all Guarantor
Obligations on the first Business Day after the Maturity Date. In order to
have money available on a payment date to pay Guarantor Obligations, the U.S.
Government Obligations shall be payable as to principal or interest on or
before such payment date in such amounts as will provide the necessary money.
Such deposit shall be made under the terms of an irrevocable trust (in form and
substance reasonably satisfactory to the Trustee), and this Guarantee shall
thereupon terminate except for the Guarantor's obligations to pay any Guarantor
Obligations to the extent provided in Section 2 hereof (which payment shall be
made, to the extent possible, from such trust fund) and except that the Trustee
shall be obligated to return to the Guarantor any amounts remaining in such
trust fund after all payments required to be made therefrom pursuant to this
Guarantee are made. The Holders of at least 66 2/3% of the principal amount of
the Asset Proceeds Notes may rescind an acceleration and its consequences by
notice to the Trustee if the rescission would not conflict with any judgment or
decree and if the outstanding Events of Default have been cured or waived,
except for nonpayment of (or failure to deposit, as the case may be) Guarantor
Obligations due solely as a result of such acceleration. No such rescission
shall affect any subsequent Event of Default or impair any right or remedy with
respect thereto.
(c) Subject only to Section 6(b) hereof, the right of any Holder of
an Asset Proceeds Note to receive payment under this Guarantee, on or after the
due dates (prior to any acceleration) expressed in this Guarantee, or to bring
suit for the enforcement of any such payment on or after such date, shall not
be impaired or affected without the
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consent of the Holder, except that no Holder of Asset Proceeds Notes shall have
the right to institute any such suit if and to the extent that the institution
or prosecution thereof or the entry of judgment therein would, under applicable
law, result in the surrender, impairment, waiver or loss of any Lien under the
Pledge Agreement. Except as provided in this Section 6(c) above, a Holder may
pursue a remedy with respect to this Guarantee only if:
(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 Asset
Proceeds Notes 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 Asset Proceeds Notes do not give the Trustee a direction
inconsistent with the request.
A Holder may not use this Guarantee to prejudice the rights of any other Holder
or to obtain a preference over any other Holder.
(d) If an Event of Default specified in Section 6(a)(1) occurs and
is continuing, the Trustee may recover judgment in its own name and as trustee
of an express trust (which trust shall be established as provided in the third
and fourth sentence of Section 6(b)) against the Guarantor for the whole amount
of the Guarantor Obligations.
(e) The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee, any predecessor Trustee and the Holders allowed in any judicial
proceedings relative to the Guarantor, its creditors or its property. Nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder of the Asset Proceeds
Notes any plan of reorganization, arrangement, adjustment or composition
affecting the Guarantee or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder of the Asset Proceeds
Notes in any such proceeding.
(f) In any suit for the enforcement of any right or remedy under
this Guarantee or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require any party
litigating the suit other than the Trustee to file an undertaking to pay the
costs of the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in the suit,
having due regard to the merits and good faith of the claims or defenses made
by the party litigant. This Section does not apply to a suit by the Trustee, a
suit by a Holder pursuant to
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Section 6(c), or a suit by Holders of more than 10% in principal amount of the
Asset Proceeds Notes.
7. Pledge Agreement. To secure this Guarantee, the Guarantor is
simultaneously herewith executing and delivering the Pledge Agreement.
8. Notices. Any notices or other communications required or permitted
hereunder shall be in writing, and shall be sufficiently given if made by hand
delivery, by telecopier or registered or certified mail, postage prepaid,
return receipt requested, addressed as follows:
To the Guarantor:
Lone Star Industries, Inc.
300 First Stamford Place
Stamford, Connecticut 06912-0014
Attention: Secretary
Telephone: (203) 969-8600
Facsimile: (203) 969-8686
To the Trustee:
Chemical Bank
450 West 33rd Street, 15th Floor
New York, New York 10001
Attention: Corporate Trust Administration
Telephone: (212) 613-7655
Facsimile: (212) 613-7800
Any party hereto may by notice to each other party designate such additional or
different addresses as shall be furnished in writing by such party. Any notice
or communication to any party hereto shall be deemed to have been given or made
as of the date so delivered, if personally delivered; when receipt is
acknowledged by telecopier confirmation, if telecopied; and five calendar days
after mailing if sent by registered or certified mail (except that a notice of
change of address shall not be deemed to have been given until actually
received by the addressee). Any party hereto may give notice to the Holders,
in the manner set forth in the Asset Proceeds Note Indenture, at the addresses
set forth for them in the register kept by the Registrar under the Indenture.
9. Binding Agreement; Assignment; Obligations Several. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, including, without limitation, and
without the need for an express assignment or amendment, subsequent Holders of
Asset Proceeds Notes (whether or not the Asset Proceeds Notes held by such
persons are outstanding as of the date hereof or issued hereafter). This
Agreement may not be assigned by the Guarantor; provided, however, that this
Agreement shall be deemed to be automatically assigned by the Guarantor to any
Person which is a successor to the Guarantor, in accordance with the terms of
this
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Guarantee. This Guarantee shall be deemed to be automatically assigned by the
Trustee to any Person who succeeds to the Trustee in accordance with the
Indenture, and such assignee shall have all rights and powers of, and act as,
the Trustee hereunder. Each Holder of the Asset Proceeds Notes, by its
acceptance of any Asset Proceeds Notes, consents to and agrees to be bound by
the provisions hereof.
10. Governing Law. This Agreement shall be construed in accordance
with and governed by the laws of the State of New York without regard to its
conflict of law principles, except as otherwise required by mandatory
provisions of law.
11. Effectiveness; Termination. (a) This Agreement shall become
effective on the date hereof. Upon the earlier of (i) payment in full (whether
in cash, by issuance of Payment Notes or any combination thereof) of the
Guarantor Obligations to the Trustee in accordance with Section 2 hereof or
(ii) such time as the Guarantor shall deliver to the Trustee an Officer's
Certificate to the effect that the Covered Deficiency is $0 (setting forth all
calculations in reasonable detail), this Agreement shall terminate. If any
Holder or the Trustee is required by any court or otherwise to return to the
Guarantor or the Obligor or any custodian, trustee, liquidator or other similar
official acting in relation to the Obligor or the Guarantor, any amount paid by
the Obligor or the Guarantor to the Trustee or such Holder, this Guarantee, to
the extent discharged by such payment, shall be reinstated to such extent (but
to be no more than the amount of the Covered Deficiency).
(b) The Guarantor may terminate its obligations under this
Guarantee by:
(i) irrevocably depositing in trust with the Trustee, pursuant to
an irrevocable trust and security agreement in form and substance reasonably
satisfactory to the Trustee, money or U.S. Government Obligations sufficient
to pay all Guarantor Obligations on the first Business Day after the
Maturity Date. Immediately after making the deposit, the Guarantor shall
give notice of such event to the Holders;
(ii) delivering to the Trustee an Opinion of Counsel and an
Officer's Certificate stating that all conditions precedent provided for
herein relating to the satisfaction and discharge of this Guarantee have
been complied with; and
(iii) delivering to the Trustee either (i) an unqualified Opinion
of Counsel, stating that the Holders of the Asset Proceeds Notes (a) will
not recognize income, gain or loss for Federal income tax purposes as a
result of such deposit (and the defeasance contemplated in connection
therewith) and (b) will be subject to Federal income tax on the same amounts
and in the same manner and at the same times as would have been the case if
such deposit and defeasance had not occurred, or (ii) an applicable
favorable ruling to that effect received from or published by the Internal
Revenue Service.
Notwithstanding the foregoing, the Guarantor's obligations in Section 2 and
4(c) hereof and Article VII of the Indenture shall survive until this Guarantee
terminates pursuant to Section 11(a). After a deposit pursuant to this Section
11(b), the Trustee upon request shall
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acknowledge in writing the discharge of the Guarantor's obligations under this
Guarantee except for those surviving obligations specified above. In order to
have money available on a payment date to pay Guarantor Obligations, the U.S.
Government Obligations shall be payable as to principal or interest on or
before such payment date in such amounts as will provide the necessary money.
(c) The Trustee shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to Section 11(b). It shall apply the
deposited money and the money from U.S. Government Obligations in accordance
with this Guarantee to the payment of Guarantor Obligations.
(d) The Trustee shall promptly pay to the Guarantor upon written
request any excess money or securities held by it at any time.
(e) If the Trustee is unable to apply any money or U.S. Government
Obligations in accordance with Section 11(b) by reason of any legal proceeding
or by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the
Guarantor's obligations under this Guarantee shall be revived and reinstated as
though no deposit has occurred pursuant to Section 11(b) until such time as the
Trustee is permitted to apply all such money or U.S. Government Obligations in
accordance with Section 11(b); provided, however, that if the Guarantor has
made any payment of Guarantor Obligations because of the reinstatement of its
obligations, the Guarantor shall be subrogated to the rights of the Holders of
such Asset Proceeds Notes to receive such payment from the money or U.S.
Government Obligations held by the Trustee or Guarantor.
12. Trust Indenture Act Controls. If any provision of this Guarantee
limits, qualifies or conflicts with another provision which is required or
deemed to be included in the Guarantee by the TIA, the required or deemed
provision shall control.
13. Inconsistent Provisions. This Guarantee is a part of the Indenture
to the extent specified therein. If any provision of this Guarantee shall be
inconsistent with, or contrary to, any provision of the Indenture, such
provision of the Indenture shall be controlling and shall supersede such
inconsistent provisions hereof to the extent necessary to give full effect to
such provision of the Indenture.
14. Severability. In the event that any provision contained in this
Guarantee shall for any reason be held to be illegal or invalid under the laws
of any jurisdiction, such illegality or invalidity shall in no way impair the
effectiveness of any other provision hereof or of such provision under the laws
of any other jurisdiction; provided, that in the construction and enforcement
of such provision under the laws of the jurisdiction in which such holding of
illegality or invalidity exists, and to the extent only of such illegality or
invalidity, this Guarantee shall be construed and enforced as though such
illegal or invalid provision had not been contained herein.
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<PAGE> 78
15. Headings. Section headings used herein are inserted for convenience
only and shall not in any way affect the meaning or construction of any
provision of this Agreement.
16. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be an
original, and all of which shall together constitute one and the same
instrument. A complete set of counterparts shall be lodged with the Trustee.
IN WITNESS WHEREOF, the Guarantor has caused this Agreement to be
executed and delivered by its officer thereunto duly authorized as of the day
and year first above written.
LONE STAR INDUSTRIES, INC.
By:---------------------------------------
Title:------------------------------------
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<PAGE> 79
EXHIBIT B
REGISTERED (Face of Security) REGISTERED
NUMBER DOLLARS
ROSEBUD HOLDINGS, INC. ........
and Subsidiaries
10% ASSET PROCEEDS NOTE DUE 1997
ROSEBUD HOLDINGS, INC., a Delaware corporation (herein called
the "Company") and its subsidiaries for value received, hereby promise to pay
to _______________ or registered assigns, the principal sum of _______________
Dollars on July 31, 1997, and to pay interest thereon as provided on the
reverse hereof, until the principal hereof is paid or duly provided for.
Interest Payment Dates: January 31 and July 31 of each year, commencing July
31, 1994
Record Dates: January 15 and July 15 of each year, commencing July 15, 1994
The provisions on the reverse of this certificate are
incorporated as if set forth on the face hereof.
IN WITNESS WHEREOF, ROSEBUD HOLDINGS, INC. and its
subsidiaries have caused this instrument to be duly signed under their
respective corporate seals.
(SEAL) ROSEBUD HOLDINGS, INC.
By: ___________________________________
Title:
By: ___________________________________
(SEAL) KCOR CORPORATION
By: ___________________________________
Title:
By: ____________________________________
Title:
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<PAGE> 80
(SEAL) LAS COLINAS CORPORATION
By:_____________________________________
Title:
By:_____________________________________
Title:
(SEAL) LONE STAR CALIFORNIA, INC.
By:_____________________________________
Title:
By:_____________________________________
Title:
(SEAL) ROSEBUD REAL PROPERTIES, INC.
By:_____________________________________
Title:
By:_____________________________________
Title:
(SEAL) SANTA CRUZ CORPORATION
By:_____________________________________
Title:
By:_____________________________________
Title:
(SEAL) NAZARETH CEMENT CORPORATION
By:_____________________________________
Title:
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<PAGE> 81
By:_____________________________________
Title:
(SEAL) ROSEBUD FALCON CORPORATION
By:_____________________________________
Title:
By:_____________________________________
Title:
(SEAL) ROSEBUD GENERAL CORPORATION
By:_____________________________________
Title:
By:_____________________________________
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred
to in the within-mentioned Indenture.
CHEMICAL BANK
as Trustee
By:____________________________________
Authorized Officer
Dated:_________________________________
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<PAGE> 82
(REVERSE OF SECURITY)
ROSEBUD HOLDINGS, INC.
and Subsidiaries
10% ASSET PROCEEDS NOTE DUE 1997
1. Interest. ROSEBUD HOLDINGS, INC., a Delaware
corporation (the "Company"), and its Subsidiaries which are signatories on the
face of this Security (the "Signing Subsidiaries" and, with the Company on a
joint and several basis, the "Obligor") promise to pay interest on the
principal amount of this Security at the rate per annum shown above. The
Obligor will pay interest semi-annually in arrears on January 31 and July 31 of
each year, commencing July 31, 1994. Interest on the Securities will accrue
from the most recent date to which interest has been paid (or, if no interest
has been paid, from March 1, 1994). Interest on overdue principal shall accrue
at the rate per annum of 11% from the due date until paid in full. Interest
shall be computed on the basis of a 360-day year of 12 30-day months.
2. Method of Payment; Deemed Repayment.
(a) The Obligor 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
Obligor 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;
provided, however, at the election of Company, interest may be paid, in whole
or in part, on any interest payment date prior to the Maturity Date in
additional Securities of like tenor with this Security in a principal amount
equal to such interest payment amount or part thereof. Notwithstanding the
preceding sentence, the Obligor may pay principal and interest by check payable
in money of the United States mailed to a Holder's registered address.
(b) If the Guarantor is required to make any
Guarantee Payments, and actually makes such payment to the Trustee, whether in
cash, Payment Notes (as defined in the Guarantee Agreement) or a combination
thereof, the Trustee shall thereupon immediately (and without the need for any
notice or action on the part of any Person) be deemed to have collected the
amount of such Guarantee Payments in respect of the Securities under Article 6
of the Indenture, to be applied in accordance with Section 6.10 of the
Indenture. In computing any such deemed collection, each Payment Note issued
by the Guarantor shall be deemed to have a value equal to the principal amount
thereof.
3. Paying Agent and Registrar. Initially, Chemical 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 Obligor has issued the Securities
under an Indenture, dated as March 29, 1994 (the "Indenture"), between the
Obligor 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, as amended (15 U.S. Code
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<PAGE> 83
Sections 77aaa=77bbbb) (the "Act") as in effect on the date of the
Indenture. The Securities are subject to all such terms, and Securityholders
are referred to the Indenture and the Act for a statement of such terms. The
Securities are secured obligations of the Obligor limited to up to $192,804,000
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. Optional Redemption. The Securities may be redeemed
at the option of the Company in whole at any time or in part from time to time
at the principal amount thereof plus accrued and unpaid interest to the
redemption date (the "Redemption Price").
6. Mandatory Redemption. Upon receipt of Net Proceeds
by the Company or any Subsidiary, such Person shall deposit all Net Proceeds
received in the Cash Collateral Account; provided, however, prior to making a
deposit of Net Proceeds, (i) the Company shall set aside from such Net Proceeds
cash reserves sufficient to cause the Company to have at least $5 million of
cash; and in addition (ii) if approved by the Board of Directors of the Company
by resolution made in good faith, the Company may retain (a) the amount
specified in such resolution up to an additional $5 million of such Net
Proceeds, in order to meet the anticipated working capital needs of the Company
and its Subsidiaries for the one-year period commencing on the first day
following the consummation of the Extraordinary Event in respect of which such
deposit is made and (b) up to $1 million of any payment received in respect of
casualty insurance covering the Pledged Collateral to replace the Pledged
Collateral in respect of which such insurance payment is received. Within 20
days after such deposit, the Company shall provide to the Trustee an Officers'
Certificate setting forth (a) a calculation of the Net Proceeds received by the
Company or the Subsidiary, (b) a calculation of any amount set aside for
working capital in accordance with clause (i) above, (c) a copy of any Board
Resolution passed in accordance with clause (ii) above, and (d) a calculation
of the amount deposited in the Cash Collateral Account. If at any time there
is at least $5 million in the Cash Collateral Account, all money in the Cash
Collateral Account shall be paid over to the Trustee and, upon receipt of the
Officers' Certificate delivered pursuant to Section 3.01 of the Indenture, used
by the Trustee to redeem Securities at the Redemption Price. All non-cash
proceeds received by the Company and its Subsidiaries shall become Pledged
Collateral immediately upon receipt thereof.
7. Security. Securityholders are granted a first
priority interest in the Pledged Collateral, pursuant to the Collateral Agency
Agreement, as more fully set forth in the Indenture. Each Securityholder, by
accepting a Security, agrees to all of the terms and provisions of the
Collateral Agency Agreement, the Guarantee Agreement and the Pledge Agreement,
as the same may be amended from time to time.
8. Denominations, Transfer, Exchange. The Securities
are in registered form without coupons in denominations of $1,000 and whole
multiples of $1,000 except that additional Securities issued in payment of
interest pursuant to Section 4.01 of the Indenture may be issued in
denominations of $100 and whole multiples of $100. The transfer of Securities
may be registered and Securities may be exchanged as provided in the Indenture.
The Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents. No service charge shall be made for any
such registration or transfer or exchange, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge payable in
connection therewith. The Registrar need not exchange
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<PAGE> 84
or register the transfer of any Security selected for redemption in whole or in
part (except the unredeemed portion of Securities being redeemed in part).
Also, it need not exchange or register the transfer of any Securities for a
period of 15 days before a selection of Securities to be redeemed.
9. Persons Deemed Owners. The registered Holder of any
of the Securities shall be treated as its owner for all purposes.
10. No Merger or Consolidation; Release of Subsidiaries.
The Company may not consolidate or merge with or into another person. Upon any
Sale of Assets made in compliance with the terms of the Indenture which
consists of the sale of all of the capital stock of a Subsidiary or the sale of
a Subsidiary by means of any merger or consolidation, such Subsidiary's
obligations in respect of the Indenture and the Securities shall, without
payment of any consideration or any further action on the part of any Person,
be discharged and terminated; provided, however, no such dischrge or
termination shall be effective if at the time of such Sale of assets there is a
Default or Event of Default.
11. Amendments and Waivers. Subject to certain
exceptions, the Indenture or the Securities may be amended with the consent of
the Holders of at least 66 2/3% of the principal amount of the Securities
outstanding, and certain existing defaults may be waived with the consent of
the Holders of at least 66 2/3% of the principal amount of the Securities
outstanding. Without the consent of any Securityholder, the Indenture or the
Securities may be amended to cure any ambiguity, omission, defect or
inconsistency, to provide for uncertificated Securities in addition to
certificated Securities, to comply with Section 5.01 of the Indenture or to
make any change that does not adversely affect the right of any Securityholder.
12. Defaults and Remedies. An Event of Default is:
default in the payment of interest on any Security when the same becomes due
and payable, whether at maturity, in connection with any redemption, by
acceleration or otherwise, which default continues for a period of 30 days
after its due date; 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; provided, however, in the case of
any such default resulting from a dispute as to the computation of Net
Proceeds, that such default shall have remained uncured for a period of 30 days
from the date of notice to the Company from the Trustee as to the existence of,
and specifying the basis for, such default; failure by the Company or any
Subsidiaries to observe or perform in any material respect any of its other
covenants or agreements in the Securities, the Indenture or the Collateral
Agency Agreement or any other agreement or instrument now or hereinafter
entered into creating, perfecting or evidencing the Lien in and on any of the
Pledged Collateral in favor of the Collateral Agent for the benefit of the
Trustee and the Holders of the Securities, which failure continues for a period
of 30 days after the earlier of (i) the date on which written notice shall have
been given to the Company or (ii) the date on which the Company had Actual
Knowledge of such failure; failure by the Company or any of its Subsidiaries to
pay when due any principal or interest on any Indebtedness (other than
Indebtedness to the Guarantor under the Management Services Agreement or
Indebtedness of wholly-owned Subsidiaries of the Company to the Company or
other of its wholly-owned Subsidiaries) with an aggregate outstanding principal
amount in excess of $2 million, which default continues for any period of grace
applicable thereto; a default or event of default, as defined in one or more
indentures, agreements or other
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<PAGE> 85
instruments evidencing or under which the Company or any of its Subsidiaries
individually or collectively have, outstanding at least $2 million aggregate
principal amount of Indebtedness shall happen and 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, provided that
if such default or event of default under such indenture or other instrument
shall be remedied or cured by the Company or the Subsidiary or waived by the
holders of such Indebtedness, then the Event of Default under the Indenture by
reason thereof shall be deemed likewise to have been thereupon remedied, cured
or waived without further action upon the part of either the Trustee or any of
the Holders of Securities; entry of one or more final judgments against the
Company or any of its Subsidiaries for payments of money which in the aggregate
exceed $2 million, by a court of competent jurisdiction and such judgments are
not rescinded, annulled, stayed or discharged within 90 days; the Company and
its Subsidiaries, taken as a whole, becomes unable generally to pay its debts
as they become due; the commencement of a voluntary case under the Federal
Bankruptcy law; the occurrence of certain other events under a Bankruptcy Law,
including but not limited to the entry of a judgment for relief in respect of
the Company or any of its Subsidiaries by a court of competent jurisdiction
which remains unstayed and in effect for 60 days; the entry of a final
judgment, decree or order by a court of competent jurisdiction holding the
Guarantee Agreement, the Pledge Agreement or the Collateral Agency Agreement to
be invalid or unenforceable in any material respect; the Guarantor or the
Obligor, or any Person acting on behalf of the foregoing, shall assert, in any
pleading filed in such a court, that the Guarantee Agreement, the Pledge
Agreement or the Collateral Agency Agreement is invalid or unenforceable in any
material respect; or the occurrence of an "Event of Default," as defined in the
Guarantee Agreement.
13. Trustee Dealings with Company. Chemical 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, the Guarantor or
their Subsidiaries or Affiliates, and may otherwise deal with the Company, the
Guarantor or their Subsidiaries or Affiliates, as if it were not Trustee.
14. No Recourse Against Others. No director, officer,
employee, or stockholder (except for obligations of the Guarantor under the
Guarantee Agreement and the Pledge Agreement), as such, of the Obligor or the
Guarantor shall have any liability for any obligations of the Company under the
Securities, the Indenture, the Guarantee Agreement, the Collateral Agency
Agreement or the Pledge Agreement or for any claim based on, in respect of or
by reason of such obligations or their creation. Each Securityholder by
accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issue of the Securities.
15. Authentication. This Security shall not be valid
until authenticated by the manual or facsimile signature of the Trustee or an
authenticating agent.
16. Abbreviations. Customary abbreviations may be used
in the name of a Securityholder or an assignee, such as: TEN COM (= tenants in
common), TEN ENT (= tenants by the entireties,) JT TEN (= joint tenants with
right of survivorship and not as tenants in common), CUST (= Custodian), and
U/G/M/A (= Uniform Gifts to Minors Act).
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<PAGE> 86
THE COMPANY WILL FURNISH TO ANY SECURITYHOLDER UPON WRITTEN
REQUEST AND WITHOUT CHARGE A COPY OF THE INDENTURE. REQUESTS MAY BE MADE TO:
ROSEBUD HOLDINGS, INC., c/o LONE STAR INDUSTRIES, INC., 300 FIRST STAMFORD
PLACE, STAMFORD, CT 06912-0014, Attn: SECRETARY.
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<PAGE> 87
NOTATION RELATING TO
GUARANTEE AGREEMENT
The undersigned (hereinafter referred to as the "Guarantor,"
which term includes any successor person under the Guarantee Agreement, as
defined in the Indenture referred to in the Security upon which this notation
is endorsed), has unconditionally guaranteed the Guarantor Obligations, as
defined in the Guarantee Agreement.
The obligations of the Guarantor to the Holders of the
Securities and to the Trustee pursuant to the Guarantee Agreement and the
Indenture, to the extent specified therein, are expressly set forth in the
Guarantee Agreement and the Indenture and reference is hereby made thereto for
their precise terms.
No director, officer, employee or stockholder, as such, past,
present or future, of the Guarantor or any of its Subsidiaries shall have any
personal liability under the Guarantee Agreement by reason of his or its status
as such.
The Guarantee Agreement shall not be valid or obligatory for
any purpose until the certificate of authentication on the Securities upon
which this notation is made shall have been executed by the Trustee under the
Indenture by the manual or facsimile signature of one of its authorized
officers or by an authenticating agent.
LONE STAR INDUSTRIES, INC.
By: _____________________________
By: _____________________________
(SEAL)
B-9
<PAGE> 88
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to:
____________________________________________________
____________________________________________________
____________________________________________________
(Print or type assignee's name, address and zip code)
____________________________________________________
____________________________________________________
(Insert Assignee's Soc. Sec. or Tax I.D. No.)
and irrevocably appoint ___________________________
agent to transfer this Security on the books of the
Company. The agent may substitute another to act for him or her.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Date:______________ Signature(s): ___________________________________________
___________________________________________
(Sign exactly as your name(s) appear on
the other side of this Security)
Signature(s) guaranteed by: __________________________________________________
(All signatures must be guaranteed by a member of a
national securities exchange or of the National
Association of Securities Dealers, Inc. or by a
commercial bank or trust company located in the
United States)
B-10
