EXECUTION COPY
FISCAL AND PAYING AGENCY AGREEMENT
Dated as of June 5, 2000
among
LONE STAR INDUSTRIES, INC.,
as Issuer
DYCKERHOFF AG,
as Guarantor
BANKERS TRUST COMPANY,
as Fiscal Agent, Principal Paying Agent, Transfer Agent, Registrar and
Depository
and
DEUTSCHE BANK LUXEMBOURG S.A.,
as Paying Agent and Transfer Agent
US$350,000,000 9.25% Notes due 2010
This Fiscal and Paying Agency Agreement (the "Agreement"),
dated as of June 5, 2000 among Lone Star Industries, Inc., a company
incorporated under the laws of the State of Delaware (the "Issuer"),
Dyckerhoff AG, a company organized under the laws of the Federal
Republic of Germany (the "Guarantor"), Bankers Trust Company, as
fiscal agent and principal paying agent (the "Fiscal and Principal Paying
Agent") and Deutsche Bank Luxembourg S.A., as paying agent (the
"Paying Agent" and, collectively with the Fiscal and Principal Paying
Agent, the "Paying Agents"). The Paying Agents are also each acting as
transfer agents (each in such capacity, a "Transfer Agent", and together,
the "Transfer Agents") and Bankers Trust Company also is acting as
registrar (the "Registrar") for the Notes and as depository (the
"Depository") for the Guarantee under this Agreement.
WITNESSETH:
WHEREAS, the Issuer proposes to issue US$350,000,000 principal
amount of its 9.25% Notes due 2010 (the "Notes") without registration
under the Securities Act of 1933, as amended (the "Securities Act"), in a
transaction pursuant to an applicable exemption from, or in a transaction
not subject to, the registration requirements of the Securities Act;
WHEREAS, the Guarantor has agreed unconditionally and
irrevocably to guarantee the due and punctual payment of all amounts at
any time becoming due and payable in respect of the Notes as provided in
the guarantee dated June 5, 2000 and attached hereto as Schedule 1 (the
"Guarantee"), executed by the Guarantor in favor of the Holders (as
defined in Section 11 hereof) of the Notes and to be deposited by the
Guarantor with the Depository;
WHEREAS, the Issuer wishes to appoint each of the Registrar, the
Paying Agents and the Transfer Agents, and the Guarantor wishes to
appoint the Depository (each of the Registrar, the Paying Agents, the
Transfer Agents and the Depository, an "Agent", and collectively at times
referred to herein as the "Agents"), subject to the terms and conditions set
forth herein;
NOW, THEREFORE, in consideration of the mutual promises
contained herein and for the other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
1. Appointment of Agents. Each of the Issuer and the
Guarantor hereby appoints Bankers Trust Company as its agent in the
capacity of Fiscal and Principal Paying Agent, Transfer Agent and
Registrar in respect of the Notes and Deutsche Bank Luxembourg S.A. as
its agent in the capacity of Paying Agent and Transfer Agent in respect of
the Notes, and the Guarantor hereby appoints Bankers Trust Company as
Depository for the Guarantee, all upon the terms and subject to the
conditions set forth herein, in the Guarantee and in the Notes, and the
Agents hereby accept such respective appointments. Each Agent, and any
successor or successors of such Agent qualified and appointed in
accordance with Section 9 hereof, is herein referred to as if appointed
hereunder. The Agents shall have the powers and authority granted to and
conferred upon them in this Agreement, in the Guarantee and in the Notes
and such further powers and authority to act on behalf of the Issuer and the
Guarantor as may be mutually agreed upon by the Issuer, the Guarantor and
the Agents. All of the terms and provisions with respect to such powers and
authority contained in the Notes and the Guarantee are subject to and
governed by the terms and provisions hereof. Capitalized terms used and
not defined herein shall have the meanings given such terms in the
Placement Agency Agreement dated May 31, 2000 (the "Placement
Agency Agreement"), among the Issuer, the Guarantor and the Initial
Purchasers, or in the Final Memorandum (as defined in the Placement
Agency Agreement) dated May 31, 2000, as the case may be.
2. Authorization of Notes and Guarantee; Form. (a) The Notes
delivered to the Registrar for authentication pursuant to an order to
authenticate from the Issuer on issuance pursuant to Section 3 of this
Agreement shall be established in or pursuant to one or more resolutions of
the Board of Directors of the Issuer, certified by an officer of the Issuer to
have been duly adopted by such Board and to be in full force and effect,
and by a resolution of a committee established by the Board of Managers of
the Guarantor, certified by an officer of the Guarantor to have been duly
adopted by such Board and to be in full force and effect. The Guarantee
accompanying the Notes shall be established in or pursuant to one or more
resolutions of the Board of Directors of the Issuer, certified by an officer of
the Issuer to have been duly adopted by such Board and to be in full force
and effect, and by a resolution of the Board of Managers and of the
Supervisory Board of the Guarantor, each certified by an officer of the
Guarantor to have been duly adopted by each such Board and to be in full
force and effect. The Issuer may "reopen" from time to time the Notes
issued pursuant to this Agreement and issue additional notes in an
aggregate principal amount of up to $500,000,000 (inclusive of the
aggregate principal amount of Notes issued pursuant to this Agreement)
having identical terms and provisions of the Notes issued hereby. Any such
additional notes shall be issued in the manner, and shall be subject to the
provisions, set forth herein.
(b) Each of the Notes shall be issued only in registered form
without coupons in minimum denominations of $250,000 principal amount
and multiples of $1,000 in excess thereof (the "Authorized
Denominations"). The face of the Notes shall be substantially in the form
of certain exhibits hereto as described below and the reverse of the Notes
shall be substantially as set forth in Exhibit B-1 hereto.
(c) Each of the Notes shall be entitled to the benefit of the
Guarantee substantially as set forth in Schedule 1 hereto.
Notes initially offered and sold to qualified institutional buyers
("QIBs", as defined in Rule 144A under the Securities Act ("Rule 144A"))
in reliance upon the exemption from the registration requirements of the
Securities Act provided by Rule 144A shall be issued in the form of one or
more permanent global Notes in registered form (the "Rule 144A Global
Notes"), registered in the name of Cede & Co. as nominee for The
Depository Trust Company (together with any successor clearing agency,
"DTC"), duly executed by the Issuer and authenticated by the Registrar as
hereinafter provided. The face of the Rule 144A Global Notes shall be
substantially in the form of Exhibit A-2 hereto and shall bear the legend
included therein relating to transfer restrictions.
Notes initially offered and sold to persons other than U.S. persons
("Non-U.S. Persons") in offshore transactions in reliance on Regulation S
under the Securities Act ("Regulation S") shall be issued in the form of
one or more permanent global Notes in registered form (the "Regulation S
Global Notes") registered in the name of Cede & Co., as nominee for
DTC, duly executed by the Issuer and authenticated by the Registrar as
hereinafter provided. The face of the Regulation S Global Notes shall be
substantially in the form of Exhibit A-3 hereto and shall bear the legend
included therein relating to transfer restrictions.
The aggregate principal amount of each of the Rule 144A Global
Notes and the Regulation S Global Notes (collectively, the "Global
Notes") may from time to time be increased or decreased by adjustments
made on the records of the Registrar as hereinafter provided. Every Global
Note shall have affixed to its reverse a schedule substantially in the form of
Exhibit B-2 hereto for the purpose of recording such adjustments.
Notes initially offered and sold to institutional investors other than
QIBs that qualify as "accredited investors" as defined in Rule 501(a)(1),
(2), (3) and (7) under the Securities Act ("Institutional Accredited
Investors") shall be issued in the form of certificated Notes in registered
form (the "U.S. Certificated Notes"). The face of the U.S. Certificated
Notes shall be substantially in the form of Exhibit A-1 hereto and shall bear
the legend included therein relating to transfer restrictions. Notes issued
pursuant to Section 5(b) hereof in the limited circumstances provided for
therein in exchange for interests in the Regulation S Global Notes shall be
in the form of certificated Notes in registered form (the "Regulation S
Certificated Notes" and, collectively with the U.S. Certificated Notes, the
"Certificated Notes").
References herein to the "Notes" shall be deemed to include Global
Notes and the Certificated Notes unless the context requires otherwise. The
Notes may have such additional provisions, omissions, variations or
substitutions as are not inconsistent with the provisions of this Agreement
and may have such letters, numbers or other marks of identification and
such legends or endorsements placed thereon as may be required to comply
with any law or with any rules made pursuant thereto or with the rules of
any securities depositary, clearance facility, securities exchange or
governmental agency or as may, consistently herewith, be determined by
the Authorized Officer (as defined in Section 3(a) hereof) of the Issuer, as
conclusively evidenced by execution of such Notes.
(d) The Global Notes shall be initially registered in the name of
Cede & Co. ("Cede"), the nominee of DTC. The Global Notes shall be
authenticated by the Registrar upon the same conditions, in substantially
the same manner and with the same effect as the Certificated Notes. As
long as Cede is the registered holder of a Global Note, such holder will be
considered the absolute owner and holder of such Global Note for all
purposes whatsoever. None of the Issuer, the Guarantor or any Agent will
have any responsibility or liability for any aspect of the records relating to
or payments made by DTC on account of beneficial interests in the Global
Notes. Except as provided in Section 5(b) hereof, owners of beneficial
interests in the Global Notes will not be entitled to have Notes registered in
their names, will not receive or be entitled to receive Notes in definitive
registered form and will not be considered owners or holders thereof under
this Agreement.
(e) If from time to time a portion of the aggregate principal
amount of a Global Note is repurchased and cancelled by the Issuer, the
Registrar in lieu of issuing a new Note upon surrender of a Global Note, as
would otherwise be required pursuant to the provisions hereof and of the
Global Note, shall, and is authorized by the holder of the Global Note, by
its acceptance thereof, to, endorse on the schedule affixed to the Global
Note (or on a continuation of such schedule affixed to the Global Note and
made a part thereof), an appropriate notation evidencing the date and the
reduction in the principal amount of the Global Note equal to the principal
amount of the portion of the Global Note so repurchased and cancelled. The
Registrar's actions in endorsing the schedule (or such continuation thereof)
affixed to a Global Note pursuant to the preceding sentence shall be subject
to the same standard of care as the issuance by the Registrar of new Notes
upon any repurchase of a portion of a Certificated Note and all provisions
hereof and of the Global Notes referred to in the first sentence of this
paragraph (e) relating to the repurchase of Notes (other than those relating
to the issuance and authentication of a new Note) shall apply to each
repurchase resulting in a decrease in the principal amount of a Global Note.
3. Execution of Notes and Guarantee; Dating; Authentication.
(a) Each Note shall be executed manually or by facsimile, imprint, or by
reasonably secure electronic means agreed to by both the Issuer and the
Fiscal and Principal Paying Agent, on behalf of the Issuer by an Authorized
Officer (as defined below), with the Guarantee duly executed, manually or
by facsimile by an Authorized Officer of the Guarantor and attached to
such Note. With the delivery of this Agreement, each of the Issuer and the
Guarantor is furnishing and from time to time thereafter may furnish a
certificate substantially in the form of Exhibits C-1 and C-2 (each, an
"Authorization Certificate") identifying and certifying the incumbency
and specimen signatures of (i) officers of each of the Issuer and the
Guarantor authorized to execute the Notes and the Guarantee, respectively
("Authorized Officers") and (ii) persons authorized to act and to give and
receive instructions and notices on behalf of each of the Issuer and the
Guarantor hereunder (together with the Authorized Officers, "Authorized
Representatives"). Until the Agents receive a subsequent Authorization
Certificate of the Issuer or the Guarantor, the Agents shall be entitled to
rely on the last Authorization Certificate delivered to them for purposes of
determining the Issuer's and Guarantor's Authorized Officers and
Authorized Representatives, unless the Issuer or the Guarantor has
informed the Agents in writing pursuant to Section 13 hereof not to rely on
such Authorization Certificate for purposes of determining the Issuer's and
Guarantor's Authorized Officers and Authorized Representatives. Any such
signature may be in facsimile and may be imprinted or otherwise
reproduced. In case any person who shall have executed any Note shall
cease for any reason to be an Authorized Officer of the Issuer before such
Note shall be authenticated and delivered by the Registrar or disposed of by
the Issuer, such Note may nevertheless be authenticated and delivered or
disposed of as though such person had not ceased to be an Authorized
Officer of the Issuer; and any Note may be executed on behalf of the Issuer
by any such person as, at the date of execution thereof, shall be an
Authorized Officer of the Issuer, although at the date hereof any such
person was not an Authorized Officer of the Issuer. Any Guarantee may be
executed on behalf of the Guarantor by any such person as, at the date of
execution thereof, shall be an Authorized Officer of the Guarantor,
although at the date hereof any such person was not an Authorized Officer
of the Guarantor.
(b) The Registrar is authorized, upon receipt of the Notes duly
executed on behalf of the Issuer for purposes of original issuance, to
authenticate Notes in the aggregate principal amount of US$350,000,000
(which amount may be increased pursuant to the terms of Section 2 hereof
in respect of the Issuer's right to "reopen" the Notes issued hereby) and to
deliver said Notes to or upon the written order of the Issuer signed by any
Authorized Officer or by a duly authorized attorney-in-fact. Thereafter, the
Registrar is authorized to authenticate and deliver Notes in accordance with
the provisions set forth herein or in the Notes.
(c) Notes shall be dated the date of their authentication by the
Registrar.
4. Payment. (a) In order to provide for the payment of principal
of and interest on the Notes as the same shall become due and payable, the
Issuer (or, failing the Issuer, the Guarantor under the terms of the
Guarantee) hereby agrees to pay to the Fiscal and Principal Paying Agent
by wire transfer of immediately available funds for credit to the account of
the Fiscal and Principal Paying Agent as specified in Section 13(b) of this
Agreement prior to 12:00 p.m., New York City time, on each interest
payment date or the maturity date (including a date fixed for redemption) of
Notes in such coin or currency of the United States of America as at the
time of payment shall be legal tender for the payment of public and private
debts, an amount in cash which (together with any cash then held by the
Fiscal and Principal Paying Agent and available for the purpose) shall be
sufficient to pay the interest or principal or both, as the case may be,
becoming due on such date; provided, however, that if such date is not a
Business Day, the Issuer (or, failing the Issuer, the Guarantor under the
terms of the Guarantee) shall make such payment on the next succeeding
Business Day. A "Business Day" is any day which is not a Saturday,
Sunday, or a day on which banking institutions are authorized or obligated
by law to close in New York City. The Fiscal and Principal Paying Agent
shall apply such amounts to the payment due on such date and, pending
such application, such amounts shall be held in trust by the Fiscal and
Principal Paying Agent for the benefit of the persons entitled thereto.
(a) The Issuer (or, failing the Issuer, the Guarantor under the
terms of the Guarantee) shall procure that the bank through which any
payments due hereunder are to be made will supply the Fiscal and Principal
Paying Agent by 12:00 p.m., New York City time, one Business Day prior
to the due date for any such payment, an irrevocable confirmation (by
facsimile to (▇▇▇) ▇▇▇-▇▇▇▇) of its intention to make such payment.
(b) If the Issuer becomes liable to pay additional amounts
pursuant to Section 3(b)(i) of the Notes (all such amounts being referenced
to as "U.S. Additional Amounts"), then at least three Business Days prior
to the date of any payment by the Issuer of principal or interest on the
Notes, the Issuer will furnish the Fiscal and Principal Paying Agent with a
certificate which specifies the amount required to be withheld, if any, on
such payment to holders of the Notes and the U.S. Additional Amounts, if
any, due to holders of the Notes, and, on the date of any payment by the
Issuer of principal or interest on the Notes, will pay to the Fiscal and
Principal Paying Agent such U.S. Additional Amounts as shall be required
to be paid to such holders. All references in this Agreement to principal and
interest, if any, in respect of Notes shall, unless the context otherwise
requires, be deemed to mean and include all Additional Amounts (defined
below), if any, payable in respect of such Notes as set forth in the Notes.
(c) If the Guarantor becomes liable to pay additional amounts
pursuant to Section 3(b)(ii) of the Notes (all such amounts being referenced
to as "German Additional Amounts", and together with the U.S.
Additional Amounts, "Additional Amounts" ), or if the Guarantor
becomes liable to pay U.S. Additional Amounts on behalf of the Issuer
pursuant to the Guarantee, then at least three Business Days prior to the
date of any payment by the Guarantor of any amounts required to be paid
on the Notes pursuant to the Guarantee, the Guarantor will furnish the
Fiscal and Principal Paying Agent with a certificate which specifies the
amount required to be withheld, if any, on such payment to holders of the
Notes and the Additional Amounts, if any, due to holders of the Notes, and,
on the date of any payment by the Guarantor of any amounts required to be
paid on the Notes pursuant to the Guarantee, will pay to the Fiscal and
Principal Paying Agent such Additional Amounts as shall be required to be
paid to such holders. All references in this Agreement to amounts, if any,
payable by the Guarantor pursuant to the terms of the Guarantee shall,
unless the context otherwise requires, be deemed to mean and include all
Additional Amounts, if any, payable in respect of such Notes as set forth in
the Notes.
(e) If the Fiscal and Principal Paying Agent pays out funds on
or after the due date of payment therefor after receipt of the notice
described in Section 4(b) on the assumption that the corresponding
payment by the Issuer or the Guarantor has been or will be made and such
payment has in fact not been so made by the Issuer or the Guarantor, as
applicable, the Issuer or the Guarantor, as applicable, shall on demand
reimburse the Fiscal and Principal Paying Agent for such funds, including
interest on such amount from the date on which it was paid out to the date
of reimbursement at a rate per annum equal to the cost to the Fiscal and
Principal Paying Agent of funding the amount paid out, as certified by the
Fiscal and Principal Paying Agent, expressed as a rate per annum.
(f) Subject to the Issuer's (and, failing the Issuer's, the
Guarantor's) compliance with Section 4(a) hereof, and subject to and in
accordance with the terms of the Notes and the Guarantee, the Fiscal and
Principal Paying Agent will pay or cause to be paid on behalf of the Issuer
or the Guarantor, if applicable, on and after each due date therefor the
amounts due in respect of the Notes. Pending such payment, amounts
received by the Fiscal and Principal Paying Agent for such payment will be
held in trust by the Fiscal and Principal Paying Agent for the benefit of the
persons entitled thereto. If any payment provided for in Section 4(a) hereof
is made late but otherwise in accordance with this Agreement, the Fiscal
and Principal Paying Agent will nevertheless endeavor to make such
payment in respect of the Notes. However, unless and until the full amount
of any such payment has been made to the Fiscal and Principal Paying
Agent, the Fiscal and Principal Paying Agent will not be bound to make
such payments.
5. Transfer of the Global Notes. (a) The Global Notes initially
shall (i) be registered in the name of DTC or the nominee of DTC, (ii) be
delivered to Bankers Trust Company as custodian for DTC and (iii) bear
legends as described in Section 2(b) hereof.
Members of, or participants in, DTC ("Participants") shall have no
rights under this Agreement with respect to any Global Note, and DTC may
be treated by the Issuer, the Guarantor, the Agents and any agent of the
Issuer, the Guarantor or the Agents as the absolute owner of such Global
Note for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Issuer, the Guarantor, the Agents or any agent of
the Issuer, the Guarantor or the Agents, from giving effect to any written
certification, proxy or other authorization furnished by DTC or impair, as
between DTC and its Participants, the operation of customary practices
governing the exercise of the rights of a holder of any Note. Beneficial
interests in the Global Notes may be held only through Participants in DTC
and, in particular, prior to 40 days after the later of the closing date with
respect to the Notes and the completion of the distribution of the Notes,
beneficial interests in the Regulation S Global Notes may be held only
through accounts with ▇▇▇▇▇▇ Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear System ("Euroclear") or
Clearstream ("Clearstream").
(a) Transfers of the Global Notes shall be limited to transfers of
such Global Notes in whole, but not in part, to DTC, its successors or their
respective nominees except as provided below. Interests of beneficial
owners in the Global Notes may be transferred in accordance with the rules
and procedures of DTC and the provisions of Section 6 hereof. In addition,
U.S. Certificated Notes and Regulation S Certificated Notes shall be
transferred to beneficial owners of interests in the Rule 144A Global Note
or the Regulation S Global Note, respectively, in exchange for such
beneficial interests, if (i) DTC notifies the Issuer that it is unwilling or
unable to continue as depositary for the Rule 144A Global Note or the
Regulation S Global Notes, as the case may be, and a successor depositary
which shall be a clearing agency registered under the Securities Exchange
Act of 1934, as amended, is not appointed by the Issuer within 90 days of
such notice or (ii) an Event of Default has occurred and is continuing and
the Registrar has received a request for exchange from DTC. Upon the
occurrence of either event described in clauses (i) and (ii) in the preceding
sentence, DTC shall promptly surrender the Global Notes for exchange by
the Registrar into Certificated Notes in an aggregate principal amount equal
to the then outstanding principal amount of such Global Notes. Such
Certificated Notes will be executed by the Issuer, and will be authenticated
by the Registrar and registered in the names, addresses and denominations
(in minimum denominations of $250,000 and in multiples of $1,000 in
excess thereof) provided in a written notice to be given by DTC to the
Registrar at least five Business Days prior to the date of exchange (which
notice shall also specify the taxpayer identification number, if any, of each
Holder). Such Certificated Notes will be delivered to or on behalf of DTC
for delivery to its Participants. The Registrar shall promptly cancel and
deliver to the Issuer the surrendered Global Notes.
(b) Any beneficial interest in one of the Global Notes that is
transferred to a person who takes delivery in the form of an interest in
another Global Note will, upon transfer, cease to be an interest in such first
Global Note and become an interest in the other Global Note and,
accordingly, will thereafter be subject to all transfer restrictions, if any,
and other procedures applicable to beneficial interests in such other Global
Note for as long as it remains such an interest.
(c) Any Certificated Note delivered in exchange for an interest
in one of the Global Notes pursuant to paragraph (b) of this Section shall,
except as otherwise provided by Section 6(h) hereof, bear the legend
regarding transfer restrictions applicable to the Notes set forth in Section
2(b).
(d) The registered holder of the Global Notes may grant proxies
and otherwise authorize any person, including Participants and persons that
may hold interests through Participants, to take any action which a Holder
is entitled to take under this Agreement, the Notes or the Guarantee.
6. Transfer and Exchange of Notes; Cancellation. (a) The
Fiscal and Principal Paying Agent, or an agent duly authorized by the
Fiscal and Principal Paying Agent, is hereby authorized from time to time
in accordance with the provisions of the Notes and of this Section 6 to
authenticate and deliver Notes in exchange for or in lieu of Notes which
become mutilated, destroyed, stolen or lost and Notes of authorized
denominations in exchange for a like aggregate principal amount of Notes.
(b) The following restrictions with respect to the registration of
any transfer of any Note shall apply:
(i) Except as provided for in Section 5(b) hereof,
Certificated Notes will not be issued in exchange for
beneficial interests in the Global Notes; all beneficial
interests in the Global Notes will be held directly or
indirectly through a Participant.
(ii) Transfers of interests in one Global Note to parties
who will hold the interests through the same Global Note
will be effected in the ordinary way in accordance with the
respective rules and operating procedures of DTC, Euroclear
or Clearstream, as the case may be.
(iii) Transfers of interests between the Global Notes will
be effected through either Transfer Agent who shall contact
the Registrar to procure the exchange of interests in one
Global Note for interests of an equal principal amount in the
other Global Note; provided, however, that a Transfer
Agent will not be required to accept for registration of
transfer any interest in a Global Note except upon
presentation of evidence satisfactory to the Registrar and the
applicable Transfer Agent that such transfer is being made in
compliance with the legends appearing on the Global Notes;
and further provided, that prior to the expiration of 40 days
after the later of the closing date with respect to the Notes
and the completion of the distribution of the Notes, the
Transfer Agents will not be required to accept for
registration any transfer of an interest in the Regulation S
Global Note to the Rule 144A Global Note if the transferee
is not a QIB. In addition, a Transfer Agent will not be
required to accept for registration of transfer any interest
from a Rule 144A Global Note to a Regulation S Global
Note until such Transfer Agent and the Registrar receive an
executed transfer certificate in the form attached as Exhibit
D hereto. For each transfer of interests between the Global
Notes, the Registrar shall record the appropriate notations to
reflect the respective modifications to the aggregate
principal amount of each Global Note.
(iv) Transfers of interests in Certificated Notes may be
made only in accordance with the legend contained on the
face of such Notes, and a Transfer Agent will not be
required to accept for registration of transfer any such Notes
except upon presentation of evidence satisfactory to the
Registrar and the applicable Transfer Agent that such
transfer is being made in compliance with such legend. QIBs
and Non-U.S. Persons may request that any Notes they hold
as Certificated Notes be exchanged for interests in the
Global Notes. The Transfer Agents shall deliver to the Fiscal
and Principal Paying Agent all such Certificated Notes (and
shall procure the authentication and delivery of new
Certificated Notes representing the remainder of the prior
Certificated Note where less than the whole interest in the
such Certificated Note was transferred, provided in all cases
that such new Certificated Note must be of an Authorized
Denomination) representing interests so exchanged and shall
provide the Registrar any information the Registrar may
require to make the appropriate notations on the schedule
attached to the relevant Global Note.
The Fiscal and Principal Paying Agent shall retain copies of all
letters, notices and other written communications received pursuant to this
Section 6(b). Each of the Issuer and the Guarantor has the right to inspect
all such letters, notices or other written communications at any reasonable
time.
(c) Each Note authenticated and delivered upon any transfer or
exchange for or in lieu of the whole or any part of any Note shall carry all
the rights to interest, if any, accrued and unpaid and to accrue which were
carried by the whole or such part of such Note, and notwithstanding
anything to the contrary herein contained, such new Note shall be so dated
that neither gain nor loss in interest shall result from such transfer,
exchange or substitution.
(d) The Issuer shall execute and deliver to the Fiscal and
Principal Paying Agent or the Registrar Notes in such Authorized
Denominations and at such times as may reasonably be necessary to enable
the Registrar to fulfill its responsibilities under this Agreement and the
Notes.
(e) The Transfer Agents and the Registrar may decline to
exchange or register the transfer of any Note during the period of 10 days
preceding (i) the due date for any payment of principal of or interest, if any,
on the Notes or (ii) the date on which Notes are scheduled for redemption.
(f) Transfer, registration and exchange shall be permitted and
executed as provided in this Section 6 without any charge other than any
stamp or other taxes or governmental charges or insurance charges payable
on transfers or any expenses of delivery by other than regular mail.
Registration of the transfer of a Note by the Registrar shall be deemed to be
the acknowledgement of such transfer on behalf of the Issuer.
(g) All Notes surrendered for payment, redemption, or exchange
shall be delivered to the Registrar. The Registrar shall cancel and may
destroy all such Notes surrendered for payment, redemption or exchange
and, in the case of destruction, shall deliver a certificate of destruction to
each of the Issuer and the Guarantor upon its written request.
(h) Upon the transfer, exchange or replacement of Notes, the
Registrar shall deliver only Notes bearing the legend relating to transfer
restrictions as described in Section 2(b) hereof unless either (i) such
delivery is at least two years after the later of the original issue date of
the Notes and the last date on which the Issuer, the Guarantor or any affiliate
of the Issuer or the Guarantor, as notified to the Fiscal and Principal Paying
Agent pursuant to Section 15 hereof, was the beneficial owner of such Note
(or any predecessor Note) or (ii) there is delivered to the Fiscal and
Principal Paying Agent an opinion of counsel reasonably satisfactory to the
Issuer, the Guarantor and the Fiscal and Principal Paying Agent to the
effect that neither such legend nor the restrictions on transfer set forth in
Section 6(b) hereof are required in order to maintain compliance with
provisions of the Securities Act.
(i) Upon the issuance of any substitute Note, the Issuer may
require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
reasonable expenses (including the reasonable fees and expenses of the
Agents) connected therewith.
The Registrar's actions in recording the appropriate notations to
reflect the respective modifications to the aggregate principal amount of
each Global Note pursuant to this Section 6 shall be subject to the same
standard of care as the issuance by the Registrar of new Notes upon any
transfer of a Note, and all provisions of this Section 6 relating to the
transfer of Notes (other than those relating to the issuance and authorization
of a new Note) shall apply to any transfer resulting in an increase in the
principal amount of such Global Note.
7. Register. The Registrar, as agent of the Issuer, shall maintain
at its corporate trust office in New York City a register for the exchange,
registration and registration of transfers of the Notes. The Registrar will
keep a record of all Noteholders (defined herein) and Notes at said office
and will make such available for inspection upon the reasonable request of
the Issuer or the Guarantor. Included in such record will be notations as to
whether such Notes have been redeemed or otherwise paid or cancelled,
and, in the case of mutilated, destroyed, stolen or lost Notes, whether such
Notes have been replaced. In the case of the replacement of any of the
Notes, the Registrar will keep a record of the Note so replaced, and the
Note issued in replacement thereof. In the case of the cancellation of any of
the Notes, the Registrar will keep a record of the Note so cancelled and the
date on which such Note was cancelled.
8. Conditions of Agents' Obligations. The Agents accept
appointment hereunder and their obligations herein and in the Notes set
forth upon the terms and conditions hereof and thereof, including the
following, to all of which the Issuer and the Guarantor agree and to all of
which the rights of the Holders from time to time of the Notes shall be
subject:
(a) Each of Bankers Trust Company and Deutsche Bank
Luxembourg S.A. shall be entitled to the compensation set forth in the
memorandum dated April 24, 2000 from Deutsche Bank Securities to the
Guarantor (except with respect to the Acceptance Fee set forth therein) for
services rendered by them, and the Issuer and the Guarantor (or one of such
parties on behalf of both such parties) agree promptly to pay such
compensation to each of Bankers Trust Company and Deutsche Bank
Luxembourg S.A., respectively (or to one of such Agents on behalf of both
such Agents), and neither the Issuer nor the Guarantor need concern itself
with the apportionment between the Agents of such payment. The Issuer
(or, failing the Issuer, the Guarantor) shall on demand reimburse the Agents
for their reasonable out-of-pocket expenses (including reasonable fees and
expenses of counsel) incurred by them in connection with the services
rendered by them hereunder. The Issuer and the Guarantor, jointly and
severally, hereby agree to indemnify the Agents (including their respective
officers, directors, employees and agents) for, and to hold them harmless
against, any loss, liability, action, suit, judgment, demand, damage, cost or
expense, including advertising, telex and postage expenses, properly
incurred without negligence, wilful misconduct or bad faith on their part
arising out of or that is in any way related to this Agreement, any Note or
the Guarantee in connection with their acting as Agents of the Issuer and
the Guarantor hereunder. The Agents shall be protected and shall incur no
liability for or in respect of any action taken or omitted to be taken by them
in reliance upon any Note, the Guarantee, notice, direction, consent,
certificate, affidavit, statement, telex, facsimile or other paper or document
reasonably believed by them, in good faith and without negligence, to be
genuine and to have been presented, signed or sent by an Authorized
Representative of the Issuer or the Guarantor. The obligations of the Issuer
and the Guarantor under this Section 8(a) shall survive payment of the
Notes, the resignation or removal of the Agents or the termination of this
Agreement.
(b) In acting under this Agreement and in connection with the
Notes, the Agents are acting solely as agents of the Issuer and the
Guarantor to the extent set forth in Section 1 herein and do not assume any
obligation towards or relationship of agency or trust for or with any of the
owners or holders of the Notes, except that all funds held by any Paying
Agent or the Registrar for the payment of principal of or interest on the
Notes shall be held in trust by it for such owner or holder and applied as set
forth herein and in the Notes, but need not be segregated from other funds
held by it, except as required by law; provided that moneys paid by the
Issuer (or, failing the Issuer, the Guarantor under the terms of the
Guarantee) to the Fiscal and Principal Paying Agent for the payment of
principal of or interest on any of the Notes and remaining unclaimed at the
end of two years after the date on which such principal or interest shall
have become due and payable (whether at maturity, upon call for
redemption or otherwise) shall, together with interest made available for
payment thereof, be repaid to the Issuer or the Guarantor, as applicable, as
provided and in the manner set forth in the Notes, whereupon the aforesaid
trust shall terminate and all liability of such Agents with respect to such
moneys shall cease.
(c) Any Agent may consult with counsel reasonably satisfactory
to it, and any advice or written opinion of such counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted to be taken by it hereunder in good faith and without
negligence and in accordance with such advice or opinion.
(d) Each Agent in its individual capacity or any other capacity,
may become the owner of, or acquire any interest in, any Notes or other
obligations of the Issuer or the Guarantor with the same rights that it would
have if it were not such Agent, and may engage or be interested in any
financial or other transaction with the Issuer or the Guarantor, and may act
on, or as depositary, trustee or agent for, any committee or body of holders
of Notes or other obligations of the Issuer or the Guarantor, as freely as if it
were not such an Agent.
(e) Subject to any agreement among the Issuer, the Guarantor
and the Agents to the contrary, the Agents shall not be under any liability
for interest on any moneys received by them pursuant to any of the
provisions of this Agreement or the Notes; provided, however, that if an
Agent receives moneys on a timely basis from the Issuer or the Guarantor
pursuant to Section 4 hereof and fails to pay such moneys on time to the
person entitled thereto, such Agent shall be liable for any interest due to
such person as a result of such late payment.
(f) The recitals contained in this Agreement and in the Notes
(except the Registrar's certificates of authentication) shall be taken as the
statements of the Issuer and the Guarantor, as applicable, and therefor the
Agents do not assume any responsibility for the correctness of the same.
The Agents do not make any representation (other than with respect to
themselves) as to the validity or sufficiency of this Agreement, the Notes or
the Guarantee, except each Agent's due authorization, execution and
delivery of this Agreement. The Agents shall not be accountable for the use
or application by the Issuer of any of the Notes or the proceeds thereof.
(g) Each Agent, its officers, employees and agents shall be
obligated to perform such duties and only such duties as are specifically set
forth in this Agreement and in the Notes, and no implied duties or
obligations shall be read into this Agreement or the Notes against them.
9. Resignation and Appointment of Successor; Maintenance of
Office or Agency for Certain Purposes. (a) The Issuer and Guarantor agree,
for the benefit of the holders from time to time of the Notes, that until all
of the Notes are no longer outstanding or until moneys for the payment of all
principal of and interest, if any, on all outstanding Notes shall have been
made available at the office of the Fiscal and Principal Paying Agent and
shall have been returned to the Issuer or the Guarantor as provided in
Section 8(b) hereof, whichever occurs earlier, there shall at all times be a
Paying Agent hereunder and that each of the Issuer and the Guarantor will
at all times maintain an office or agency (which may be the offices of one
or more of the Agents) in The City of New York, where the Notes may be
presented or surrendered for payment, registration of transfer or exchange,
as provided in such Notes, and where notices and demands to or upon the
Issuer or the Guarantor in respect of such Notes, the Guarantee and this
Agreement may be served. Each Agent shall at all times be a responsible
financial institution which is authorized by law to exercise its powers and
duties hereunder.
(a) Any Agent may at any time resign by giving written notice
of its resignation to the Issuer and the Guarantor (and to the Fiscal and
Principal Paying Agent, in the case of the resignation of an agent other than
the Fiscal and Principal Paying Agent) and specifying the date on which its
resignation shall become effective; provided that such date shall be at least
60 days after the date on which such notice is given unless the Issuer and
the Guarantor agree to accept shorter notice. Upon receiving such notice of
resignation, the Issuer and the Guarantor shall promptly appoint a successor
agent, qualified as aforesaid, by written instrument in duplicate signed on
behalf of the Issuer and the Guarantor, one copy of which shall be delivered
to the resigning Agent and one copy to the successor agent. Such
resignation shall become effective upon the earlier of (i) the effective date
of such resignation or (ii) the acceptance of appointment by the successor
agent as provided in Section 9(d) hereof. The Issuer and the Guarantor
may, at any time and for any reason, remove any Agent and appoint a
successor agent, qualified as aforesaid, by written instrument in duplicate
signed by a duly authorized officer of each of the Issuer and the Guarantor,
one copy of which shall be delivered to each of the Fiscal and Principal
Paying Agent (if such Agent is not the agent being removed), the Agent
being removed and the successor agent. Any removal of an Agent and any
appointment of a successor agent shall become effective upon acceptance
of appointment by the successor agent as provided in Section 9(d) hereof.
In the event of resignation by an Agent, if a successor agent has not been
appointed by the Issuer and the Guarantor within 60 days after the giving of
notice by such Agent of its intention to resign, such Agent may, at the
expense of the Issuer and the Guarantor, petition any court of competent
jurisdiction for appointment of an agent. Upon its resignation or removal,
an Agent shall be entitled to the payment by the Issuer and the Guarantor of
compensation for the services rendered hereunder and to the reimbursement
of all reasonable out-of-pocket expenses incurred (including the reasonable
fees and expenses of counsel) in connection with the services rendered by it
hereunder.
(b) The Issuer and the Guarantor shall remove an Agent and
appoint a successor agent if such Agent (i) shall become incapable of
acting, (ii) shall be adjudged bankrupt or insolvent, (iii) shall commence a
voluntary case or other proceeding seeking liquidation, reorganization or
other relief with respect to it or its debts under any bankruptcy, insolvency
or other similar law now or hereafter in effect or seeking the appointment
of a trustee, receiver, liquidator, custodian or other similar official of it
or any substantial part of its property, (iv) shall consent to, or shall have
had entered against it a court order for, any such relief or the appointment of
or taking possession by any such official in any involuntary case or other
proceedings commenced against it, (v) shall make a general assignment for
the benefit of creditors or (vi) shall fail generally to pay its debts as they
become due.
(c) Any successor agent appointed as provided in Section 9(b)
or (c) hereof shall execute and deliver to its predecessor and to the Issuer
and the Guarantor an instrument accepting such appointment hereunder,
and thereupon such successor agent, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts, duties
and obligations of its predecessor hereunder, with like effect as if originally
named as such Agent hereunder, and such predecessor, upon payment of its
compensation, out-of-pocket expenses and any indemnity owing pursuant
hereto then unpaid, shall deliver over to such successor agent all moneys,
securities, books, records or other property at the time held by it hereunder.
(d) Any corporation into which an Agent may be merged or
converted or any corporation with which such Agent may be consolidated
or any corporation resulting from any merger, conversion or consolidation
to which such Agent shall be a party or any corporation succeeding to the
corporate trust business of such Agent shall be the successor to such Agent
hereunder (provided that such corporation shall be qualified as aforesaid)
without the execution or filing of any document or any further act on the
part of any of the parties hereto.
10. Successor Corporations. (a) The Issuer may consolidate with
or merge into any other person, or sell, convey or transfer all or
substantially all of its assets to any other person, without the consent of the
Holders, provided that:
(i) the entity (if other than the Issuer) formed by or
resulting from any such consolidation or merger shall be
organized and existing under the laws of the United States of
America, any state thereof or the District of Columbia, and
shall expressly assume, by an amendment to this Agreement
pursuant to Section 14(a) hereof and to the Notes, the due
and punctual payment of the principal of, and premium, if
any, and interest on, the Notes and the due and punctual
performance and observance of all the covenants and
conditions to be performed or observed by the Issuer
pursuant to this Agreement and the Notes;
(ii) such amendment shall be in form reasonably
satisfactory to the Fiscal and Principal Paying Agent, shall
be duly executed by the entity succeeding the Issuer and,
when so executed, shall constitute a valid and legally
binding agreement of such entity, enforceable against such
entity in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and other similar laws affecting creditors'
rights generally and to general principles of equity,
regardless of whether in a proceeding in equity or at law,
and shall be delivered to the Fiscal and Principal Paying
Agent;
(iii) immediately after giving effect to such transaction,
no Event of Default under the terms of the Notes, and no
event which, after notice or lapse of time or both, would
become an Event of Default under the terms of the Notes,
shall have occurred or be continuing; and
(iv) the Issuer delivers to the Fiscal and Principal Paying
Agent an officers' certificate and an opinion of counsel, each
stating that the conditions precedent to such consolidation,
merger, sale, conveyance or transfer as set forth in
subclauses (i) through (iii) of this Section 10(a) have been
satisfied.
Notwithstanding the foregoing, the Issuer may sell, convey or
transfer all or substantially all of its assets to any person which is directly
or indirectly wholly-owned by one or more of the Issuer, the Guarantor and
their wholly-owned Subsidiaries (as defined in the Notes).
(b) In case of any such consolidation, merger, sale, conveyance,
or assumption, such successor corporation thereupon may cause to be
signed, and may issue either in its own name or in the name of the Issuer all
of the Notes issuable hereunder which theretofore shall not have been
executed on behalf of the Issuer and delivered to the Fiscal and Principal
Paying Agent; and, upon the order of such successor corporation, and
subject to all the terms, conditions and limitations in this Agreement
prescribed, the Registrar shall authenticate and shall deliver any Notes
which previously shall have been signed and delivered on behalf of the
Issuer to the Registrar for authentication, and any Notes which such
successor corporation thereafter shall cause to be signed and delivered to
the Registrar for that purpose. All the Notes so issued shall in all respects
have the same legal rank and benefit under this Agreement as the Notes
theretofore or thereafter issued in accordance with the terms of this
Agreement as though all of such Notes had been issued at the date of the
execution hereof.
In case of any such consolidation, merger, sale, conveyance, or
transfer, such changes in phraseology and form (but not in substance) may
be made in the Notes thereafter to be issued as may be appropriate solely in
light thereof.
(c) The Guarantor may consolidate with or merge into any other
person, or sell, convey or transfer all or substantially all of its assets to
any other person, without the consent of the Holders, provided that:
(i) the purchasing or transferee corporation or the
successor, continuing or resulting corporation in the case of
a merger or consolidation (if the Guarantor is not the
surviving corporation), as the case may be (the "Successor
Guarantor"), expressly assumes, by an amendment to this
Agreement pursuant to Section 14(a) hereof and the
Guarantee, the obligations of the Guarantor under this
Agreement and the Guarantee and the due and punctual
performance and observance of all the covenants and
conditions to be performed or observed by the Guarantor
pursuant to this Agreement and the Guarantee;
(ii) such amendment shall be in form reasonably
satisfactory to the Fiscal and Principal Paying Agent, shall
be duly executed by the Successor Guarantor and, when so
executed, shall constitute a valid and legally binding
agreement of such Successor Guarantor, and shall be
delivered to the Fiscal and Principal Paying Agent;
(iii) if such Successor Guarantor is organized under the
laws of a jurisdiction other than the Federal Republic of
Germany (a "Successor Guarantor Jurisdiction"), such
Successor Guarantor agrees to assume the Guarantor's
obligations under the Guarantee to pay any U.S. Additional
Amounts as described under Section 4(c) hereof or any
amounts akin to German Additional Amounts as described
under Section 4(d) hereof imposed by the laws of the
jurisdiction in which the Successor Guarantor is organized;
(iv) immediately after giving effect to such transaction,
no Event of Default under the terms of the Notes, and no
event which, after notice or lapse of time or both, would
become an Event of Default under the terms of the Notes,
shall have occurred or be continuing; and
(v) the Guarantor delivers to the Fiscal and Principal
Paying Agent an officers' certificate and an opinion of
counsel, each stating that the conditions precedent to such
consolidation, merger, sale, conveyance or transfer as set
forth in subclauses (i) through (iv) of this Section 10(c) have
been satisfied.
(d) The Agents, subject to the provisions of Section 8(c) and (d)
hereof, may rely on the documents delivered by any successor corporation
pursuant to this Section 10 as conclusive evidence that any such
consolidation, merger, sale, conveyance or transfer, complies with the
provisions of this Section 10 and the Notes.
11. Meetings; Notice to Noteholders. (a) The Issuer or the
Guarantor may at any time and from time to time call a meeting of the
holders of the Notes ("Noteholders" or "Holders"), such meeting to be
held at such time and at such place as the Issuer or the Guarantor, as
applicable, shall determine, for the purpose of obtaining a waiver of any
covenant or condition set forth in the Notes or for any of the purposes
provided for in Section 14 hereof. Upon a request in writing made by
Holders of not less than 25% of the aggregate outstanding principal amount
of the Notes, determined on the basis of the Holders appearing in the
registry books maintained by the Registrar ("Registered Holders")
pursuant to Section 7 hereof on the date which is 15 days prior to the date
of such writing, after the Notes have become due and payable due to the
occurrence of an Event of Default, the Fiscal and Principal Paying Agent
shall convene a meeting of the Noteholders, such meeting to be held at such
time and at such place as the Issuer or the Guarantor, as applicable, or the
Noteholders shall determine. Notice of any meeting of Noteholders, setting
forth the time and place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be mailed to Noteholders at
their registered addresses not less than 30 nor more than 60 days prior to
the date fixed for the meeting. To be entitled to vote at any meeting of
Noteholders a person shall be (i) a holder of one or more Notes or (ii) a
person appointed by an instrument in writing as proxy by the holder of one
or more of such Notes. The only persons who shall be entitled to be present
or to speak at any meeting of Noteholders shall be the persons entitled to
vote at such meeting and their counsel and any representatives and counsel
of the Issuer and the Guarantor.
The term "outstanding" means, as of any particular time, all Notes
authenticated and delivered by the Registrar under this Agreement, except
(i) Notes theretofore cancelled by the Registrar or delivered to the Registrar
for cancellation; (ii) Notes, or portions thereof, for the payment of which
monies in the necessary amount shall have been deposited in trust with the
Fiscal and Principal Paying Agent; and (iii) Notes in substitution for which
other Notes shall have been authenticated and delivered pursuant to the
terms of Section 6 hereof unless proof satisfactory to the Registrar is
presented that any such Note is held by a person in whose hands such Note
is a legal, valid and binding obligation of the Issuer.
In determining whether the holders of the requisite aggregate
principal amount of Notes have concurred in any direction, request,
demand, authorization, notice, consent or waiver under this Agreement, the
Notes which are owned by the Issuer and the Guarantor or by any person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Issuer or the Guarantor shall be disregarded and
deemed not to be outstanding for the purpose of any such determination,
except that for the purpose of determining whether the Agents shall be
protected in relying on any such direction, consent or waiver, only Notes
that the Registrar knows are so owned shall be so disregarded. Notes so
owned that have been pledged in good faith may be regarded as outstanding
if the pledgee establishes to the satisfaction of the Registrar the pledgee's
right so to act with respect to such Notes and that the pledgee is not the
Issuer or the Guarantor or any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuer or
the Guarantor. In case of a dispute as to such right, the advice of counsel
shall be full protection in respect of any decision made by the Registrar in
accordance with such advice. Any certificate, statement or opinion of
counsel may be based, insofar as it relates to factual matters or information
that is in the possession of the Registrar, upon the certificate, statement or
opinion of or representations by the Registrar unless such counsel knows
that the certificate, statement or opinion or representations with respect to
the matters upon which his certificate, statement or opinion may be based
as aforesaid are erroneous, or in the exercise of reasonable care should
know that the same are erroneous.
(b) The persons entitled to vote at least a majority in aggregate
principal amount of the Notes at the time outstanding shall constitute a
quorum for the purpose of any action to be taken at a meeting of
Noteholders. No business shall be transacted in the absence of a quorum,
unless a quorum is present when the meeting is called to order. In the
absence of a quorum within 30 minutes of the time appointed for any such
meeting, the meeting may be adjourned for a period of not less than 10 days
as determined by the chairman of the meeting. In the absence of a quorum
at any such adjourned meeting, such adjourned meeting shall be further
adjourned for a period of not less than 10 days as determined by the
chairman of the meeting. Notice of the reconvening of any adjourned
meeting shall be given as provided above except that such notice must be
given not less than five days prior to the date on which the meeting is
scheduled to be reconvened. Subject to the foregoing, at the reconvening of
any meeting further adjourned for lack of a quorum, the persons entitled to
vote at least 25% in aggregate principal amount of the Notes at the time
outstanding shall constitute a quorum for the taking of any action set forth
in the notice of the original meeting. Notice of the reconvening of an
adjourned meeting shall state expressly the percentage of the aggregate
principal amount of the outstanding Notes which shall constitute a quorum.
At a meeting or an adjourned meeting duly convened and at which a
quorum is present as aforesaid, any resolution to waive compliance by the
Issuer or the Guarantor with any of the covenants or conditions referred to
above shall be effectively passed and decided if passed and or decided by
the persons entitled to vote the lesser of (i) at least a majority in aggregate
principal amount of Notes then outstanding or (ii) at least 75% in aggregate
principal amount of the Notes represented and voting at the meeting. It
shall not be necessary for the vote or consent of the holders of Notes to
approve the particular form of any proposed modification, amendment,
supplement, authorization notice, consent, waiver or other action, but it
shall be sufficient if such vote or consent shall approve the substance
thereof.
(c) Any Noteholder who has executed an instrument in writing
appointing a person as proxy shall be deemed to be present for the purposes
of determining a quorum and be deemed to have voted; provided that such
Noteholder shall be considered as present or voting only with respect to the
matters covered by such instrument in writing. Any resolution passed or
decision taken at any meeting of Noteholders duly held in accordance with
this Section 11 shall be binding on all the Noteholders whether or not
present or represented at the meeting.
(d) The holding of Notes shall be proved by the registry books
maintained in accordance with Section 7 hereof or by a certificate or
certificates of the Registrar in its capacity as the Issuer's agent for the
maintenance of such books.
(e) The Issuer or the Guarantor, as applicable shall appoint a
temporary chairman of a meeting. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the holders of at least a
majority in aggregate principal amount of the Notes represented at the
meeting. At any meeting each Noteholder or proxy shall be entitled to one
vote for each $1,000 principal amount of Notes held or represented by him
or her, provided that no vote shall be cast or counted at any meeting in
respect of any Note challenged as not outstanding and ruled by the
chairman of the meeting to be not outstanding. The chairman of the
meeting shall have no right to vote except as a Noteholder or proxy. Any
meeting of Noteholders duly called at which a quorum is present may be
adjourned from time to time, and the meeting may be held as so adjourned
without further notice.
(f) The vote upon any resolution submitted to any meeting of
Noteholders shall be by written ballot on which shall be subscribed the
signatures of the Noteholders or proxies and on which shall be inscribed the
serial number or numbers of the Notes held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes
reasonably acceptable to the Issuer who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record in triplicate of the proceedings of each
meeting of Noteholders shall be prepared by the secretary of the meeting
and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one
or more persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was published as
provided above. The record shall be signed and verified by the permanent
chairman and secretary of the meeting and one of the triplicate copies shall
be delivered to each of the Issuer, the Guarantor and to the Fiscal and
Principal Paying Agent to be preserved by the Fiscal and Principal Paying
Agent, the latter to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
(g) Any modifications, amendments or waivers to this
Agreement or to the Notes will be conclusive and binding on all holders of
the Notes, whether or not they have given such consent or were present at
such meeting, and on all future holders of Notes, whether or not notation of
such modifications, amendments or waivers is made upon the Notes. Any
instrument given by or on behalf of any holder of a Note in connection with
any consent to any such modification, amendment or waiver will be
irrevocable once given and will be conclusive and binding on all
subsequent holders of such Note.
(h) Notices to Noteholders will be mailed to them (or the first
named of joint holders) by first class mail (or, if first class mail is
unavailable, by airmail) at their respective addresses in the register and
deemed to have been given on the fourth weekday after the date of mailing.
Notice of any meeting of Holders, setting forth the time and place of such
meeting and in general terms the action proposed to be taken at such
meeting, shall be mailed to Holders at their registered addresses not less
than 30 nor more than 60 days prior to the date fixed for the meeting, as set
forth in Section 11(a). In addition, so long as the Notes are listed on the
Luxembourg Stock Exchange and the rules of such exchange so require,
notice will also be published in a daily newspaper with general circulation
in Luxembourg. Any such notice will be deemed to have been given on the
date of such publication or if published in such newspapers on different
dates, on the date of the first publication.
12. Payment of Taxes. The Issuer (or, failing the Issuer, the
Guarantor) agrees to pay all stamp and other duties, if any, to which this
Agreement or the initial issuance of the Notes may be subject.
13. Notices. (a) All notices or communications hereunder,
except as herein otherwise specifically provided, shall be in writing and if
sent to Bankers Trust Company shall be delivered, telexed or telecopied
and confirmed to such Agent care of:
Bankers Trust Company
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust and Agency Services
and if sent to Deutsche Bank Luxembourg S.A., delivered; telexed or
telecopied and confirmed to such Agent care of:
Deutsche Bank Luxembourg S.A.
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Facsimile: + ▇▇▇ ▇▇▇-▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
and if sent to the Issuer, delivered or sent via facsimile and confirmed at:
Lone Star Industries, Inc.
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Facsimile: + 1 317 415 2441
Attention: General Counsel
and if sent to the Guarantor, delivered or sent via facsimile and confirmed
at:
Dyckerhoff ▇▇
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Facsimile: + 49 611 676 1145
Attention: General Counsel
(or such other address as shall be specified in writing by Bankers
Trust Company, Deutsche Bank Luxembourg S.A., the Issuer or the
Guarantor to the other parties to this Agreement). If any Agent shall receive
any notice or demand addressed to the Issuer or the Guarantor by a
Noteholder pursuant to the provisions of the Notes, such Agent shall
promptly forward such notice or demand to the Issuer or the Guarantor, as
applicable.
(b) Payments to the Fiscal and Principal Paying Agent by wire
transfer of immediately available funds as provided in Section 4(a) hereof
shall be made in U.S. dollars to the following account: Bankers Trust
Company, ABA ▇▇▇-▇▇▇-▇▇▇, A/C No: 01419647 - CTAS, Reference:
Lone Star Industries, Inc., with such bank in New York City as the Fiscal
and Principal Paying Agent may from time to time notify to the Issuer and
the Guarantor reasonably in advance of the time any such payment is due
and payable.
14. Amendments. (a) This Agreement may be amended by the
parties hereto, without the consent of any Noteholder, for the purpose of: (i)
adding to the covenants of each of the Issuer and the Guarantor for the
benefit of the Holders, (ii) amending this Agreement as permitted by, and
in compliance with, Section 10 of this Agreement, (iii) surrendering any
right or power conferred upon the Issuer or the Guarantor, (iv) modifying
the resale restrictions applicable to the Notes in order to comply with
applicable law, (v) securing the Notes pursuant to the requirements of the
Notes or otherwise or curing any ambiguity, or to correct or supplement
any provision contained in this Agreement which may be defective or
inconsistent with any other provision contained in the Agreement, or (vi) in
any other manner which the parties hereto may mutually deem necessary or
desirable and which shall not be inconsistent with the text of the Notes and
which shall not adversely affect the interest of the Holders of the Notes in
any material respect, as evidenced by an opinion from the Issuer's or the
Guarantor's counsel and delivered to the Fiscal and Principal Paying Agent
and the Paying Agent.
(b) Modifications of and amendments to this Agreement or to
the Notes may also be made, and future compliance therewith or past
default by the Issuer may be waived, at a meeting of Noteholders in
accordance with Section 11 of this Agreement by persons entitled under the
terms of Section 11 hereof to vote at least a majority in aggregate principal
amount of the Notes outstanding (or, in each such case, such lesser amount
as is permitted under the terms of Section 11 hereof to act at a meeting of
Noteholders); provided, however, that no modification, amendment, waiver
or consent may, without the consent of the Holder of each Note so affected
(i) change the Stated Maturity of the principal or of any installment of
interest on any Note; (ii) change any Interest Payment Date; (iii) reduce the
principal amount of or interest on any Note or Additional Amounts payable
with respect thereto, or reduce the amount payable thereon in the event of
redemption or default; (iv) change the currency of payment of principal of
or interest on the Notes or Additional Amounts payable with respect
thereto; (v) change the obligation of the Issuer or the Guarantor to pay any
Additional Amounts; (vi) impair the right to institute suit for the
enforcement of any such payment on or with respect to the Notes; or (vii)
reduce the percentage of the aggregate principal amount of Notes
outstanding necessary under the terms of Section 11 hereof and this Section
14 to approve any modification or amendment permitted under the terms of
Section 11 hereof or this Section 14 or to waive any future compliance or
past default or reduce the quorum required at any meeting of Noteholders
or reduce the percentage of aggregate principal amount of Notes
outstanding necessary to rescind or annul any declaration of the principal of
and accrued interest on the Notes to be due and payable.
(c) Any modifications, amendments or waivers effected in
accordance with the requirements of Section 11 hereof and this Section 14
with respect to the Notes shall be conclusive and binding on all
Noteholders, whether or not they have consented to such action or were
present at the meeting at which such action was taken and whether or not
notation of such modifications, amendments or waivers is made upon the
Notes.
15. Additional Representations, Warranties and Agreements of
the Issuer and the Guarantor. Each of the Issuer and the Guarantor
covenants and agrees that it will not acquire any beneficial interest, and will
use its reasonable efforts to cause its "affiliates" (as defined in paragraph
(a)(1) of Rule 144 under the Securities Act) not to acquire any beneficial
interest, in any Note unless the Issuer or the Guarantor, as applicable, or
any such affiliate notifies the Fiscal and Principal Paying Agent of such
acquisition in writing. Each of the Issuer and the Guarantor further
covenants and agrees that it shall, and shall cause its relevant affiliates to,
immediately notify the Fiscal and Principal Paying Agent if the Issuer or
the Guarantor, as applicable, or any such affiliate shall cease to be the
beneficial owner of any such Notes, specifying the date of such occurrence.
The Agents and all Holders of Notes shall be entitled to rely without further
investigation on any such notification (or the lack thereof).
16. Events of Default. Upon the occurrence of an Event of
Default described in the Notes, the Issuer or the Guarantor, as appropriate,
shall promptly provide the Fiscal and Principal Paying Agent written notice
as to, and instruct the Fiscal and Principal Paying Agent in writing to
promptly provide all of the Registered Holders of Notes such written notice
as to, such occurrence of such Event of Default. Upon receipt of any such
written instruction in respect of the occurrence of any such Event of
Default, the Fiscal and Principal Paying Agent shall promptly mail to all
Registered Holders of such Notes, at the addresses of such Registered
Holders as they appear in the Register, any such written notice of such
Event of Default.
17. Governing Law. (a) THIS AGREEMENT, THE NOTES
AND THE GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.
(a) Each of the Issuer and the Guarantor hereby irrevocably
consents and agrees to submit to the non-exclusive jurisdiction of any New
York State or United States Federal court sitting in the Borough of
Manhattan, New York, New York over any suit, action or proceeding
instituted by the Fiscal and Principal Paying Agent or any Registered
Holder of a Note and arising out of or related to this Agreement, any Note
or the Guarantee. Each of the Issuer and the Guarantor irrevocably waives,
to the fullest extent permitted by law, any immunity to service of process in
respect of any such suit, action or proceeding to which it might otherwise
be entitled, and any objection which it may have to the laying of the venue
of any such suit, action or proceeding brought in such a court and any claim
that any such suit, action or proceeding brought in such a court has been
brought in an inconvenient forum.
(b) As long as any of the Notes remain outstanding, each of the
Issuer and the Guarantor covenants and agrees at all times to have an
authorized agent in The City of New York, upon whom process may be
served in any suit, action or proceeding arising, out of or relating to this
Agreement, any Note or the Guarantee. Service of process upon such agent
and written notice of such service mailed or delivered to the Issuer or the
Guarantor, as the case may be, shall to the extent permitted by law be
deemed in every respect effective service of process upon the Issuer or the
Guarantor, as applicable, in any such suit, action or proceeding. The Issuer
hereby appoints CT Corporation System as its agent for such purpose, and
covenants and agrees that service of process in any suit, action or
proceeding may be made upon it at the office of such agent at ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (or at such other address or at the
office of such other authorized agent as the Issuer may designate by written
notice to the Fiscal and Principal Paying Agent). The Guarantor hereby
appoints CT Corporation System as its agent for such purpose, and
covenants and agrees that service of process in any suit, action or
proceeding may be made upon it at the office of such agent at ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (or at such other address or at the
office of such other authorized agent as the Guarantor may designate by
written notice to the Fiscal and Principal Paying Agent).
18. Counterparts. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as
if the signatures thereto and hereto were upon the same instrument. Such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this
Fiscal and Paying Agency Agreement as of the date first above written.
LONE STAR INDUSTRIES, INC.,
as Issuer
By: _______________________
Name:
Title:
DYCKERHOFF AG,
as Guarantor
By: _______________________
Name:
Title:
By: _______________________
Name:
Title:
BANKERS TRUST COMPANY
as Fiscal Agent, Principal Paying
Agent,
Transfer Agent, Registrar and
Depository
By: _______________________
Name:
Title:
DEUTSCHE BANK
LUXEMBOURG S.A.,
as Paying Agent and Transfer
Agent
By: ________________________
Name:
Title:
SCHEDULE 1
GUARANTEE
DYCKERHOFF AG, a company organized under the laws of the
Federal Republic of Germany (the "Guarantor"), for value received,
hereby unconditionally and irrevocably guarantees to the holders (the
"Holders") of the 9.25% Notes due 2010 (the "Notes") of Lone Star
Industries, Inc., a company incorporated under the laws of the State of
Delaware (the "Issuer"), issued, authenticated and delivered pursuant to the
Fiscal and Paying Agency Agreement, dated as of June 5, 2000 as the same
may be amended, modified or supplemented from time to time (the "Fiscal
Agency Agreement"), among, inter alia, the Issuer, the Guarantor, Bankers
Trust Company and Deutsche Bank Luxembourg S.A., the due and
punctual payment in full of the principal of, and interest on, and all other
amounts (including U.S. Additional Amounts (as defined in and pursuant to
the terms set forth in Section 3 of the Notes and Section 4 of the Fiscal
Agency Agreement) required from the Issuer under the Notes, when and as
the same shall become due and payable, whether at maturity, by
acceleration, upon redemption or repayment, or otherwise, according to the
terms thereof. Any such payment made by the Guarantor pursuant to this
Guarantee shall be in such coin or currency of the United States of America
as at the time of payment shall be legal tender for the payment of public
and private debts. In case of the failure of the Issuer punctually to pay any
such principal, interest or any other amounts (including U.S. Additional
Amounts), the Guarantor hereby agrees to cause any such payment to be
made punctually when and as the same shall become due and payable,
whether at maturity, by acceleration, upon redemption or repayment, or
otherwise, as and if such payment were made by the Issuer. In addition, the
Guarantor agrees to pay any German Additional Amounts pursuant to
Section 4 of the Fiscal Agency Agreement and Section 3 of the Notes.
The Guarantor hereby agrees that its obligations hereunder
shall be as principal debtor and not merely as surety, and shall be absolute,
irrevocable and unconditional, irrespective of, and shall be unaffected by,
any invalidity, irregularity or unenforceability of any Note issued under the
Fiscal Agency Agreement, any failure to enforce the provisions of any such
Note or the Fiscal Agency Agreement, or any waiver, modification, consent
or indulgence granted to the Issuer with respect thereto, by the Holder of
said Note with respect to any provisions thereof or of the Fiscal Agency
Agreement, the recovery of any judgment against the Issuer or any action to
enforce the same, or any other circumstances which may otherwise
constitute a legal or equitable discharge of a surety or guarantor. The
Guarantor hereby waives diligence, presentment, demand of payment,
filing of claims with a court in the event of merger, insolvency or
bankruptcy of the Issuer, any right to require a proceeding first against the
Issuer, protest or notice with respect to any Note issued under the Fiscal
Agency Agreement, and further covenants that this Guarantee will not be
discharged except by payment in full of the principal of, and interest on,
and all other amounts (including U.S. Additional Amounts) required from
the Issuer under, all Notes issued, authenticated and delivered pursuant to
the Fiscal Agency Agreement.
The Guarantor hereby agrees to be bound by each of the
obligations of the Guarantor set forth in this Guarantee, the Notes and the
Fiscal Agency Agreement.
The Guarantor shall be subrogated to all rights of the
Holders of the Notes against the Issuer in respect of any amounts paid to
such Holders by the Guarantor pursuant to the provisions of this Guarantee;
provided, however, that the Guarantor shall not be entitled to enforce, or to
receive any payments arising out of or based upon, such right of
subrogation until the principal of, and interest on, and all other amounts
(including U.S. Additional Amounts) required from such Issuer under, all
Notes issued, authenticated and delivered pursuant to the Fiscal Agency
Agreement, to the extent then due, shall have been paid in full.
The obligations of the Guarantor under this Guarantee are
unsecured and senior obligations of the Guarantor ranking pari passu
without any preference among themselves and at least pari passu with all
other present and future unsecured and senior general obligations of the
Guarantor, save for such obligations as may be preferred by mandatory
provisions of law.
This Guarantee shall continue to be effective or be reinstated, as the
case may be, if at any time any payment made to the Holders of the Notes
in respect of any amount payable thereunder is rescinded in whole or in part
or must otherwise be restored in whole or in part by the Holders thereof
upon the bankruptcy or reorganization of the Issuer or otherwise.
Modification and amendments of this Guarantee may be effected by
the Guarantor without the consent of any Holders of the Notes in order to
(i) evidence the succession of another entity to the Guarantor and the
assumption by any such successor of the obligations of the Guarantor
contained herein, in the Notes and in the Fiscal Agency Agreement (subject
to the limitations set forth in Section 10 of the Fiscal Agency Agreement
and Section 5 of the Notes) provided that such successor assumes such
obligations in accordance with the provisions of Section 5 of the Notes; or
(ii) cure any ambiguity, correct or supplement any provision in this
Guarantee which may be inconsistent with any other provisions with
respect to matters or questions arising herein, in the Notes and in the Fiscal
Agency Agreement, provided that such action shall not adversely affect the
interests of the Holders of the Notes in any respect.
The Guarantor hereby irrevocably agrees, for the benefit of the
Holders of the Notes, that any legal action, suit or proceeding against it
with respect to its obligations, liabilities or any other matter arising out of
or in connection with this Guarantee, the Notes or the Fiscal Agency
Agreement may be brought in any United States federal court or New York
state court, in each case located in the Borough of Manhattan, The City of
New York, and hereby irrevocably consents and agrees to submit to the
non-exclusive jurisdiction of each such court in personam, generally and
unconditionally with respect to any suit, action or proceeding for itself and
in respect of its properties, assets and revenues. The Guarantor hereby
irrevocably and unconditionally waives, to the fullest extent permitted by
law, any immunity to service of process in respect of any such suit, action
or proceeding to which it might otherwise be entitled, and any objection
which it may have to the laying of venue of any such suit, action or
proceeding brought in such court, and any claim that any such suit, action
or proceeding brought in such court has been brought in any inconvenient
forum.
The Guarantor hereby irrevocably agrees to the service of any and
all legal process, summons, notices and documents in any action or
proceeding by serving a copy thereof upon the relevant agent for service of
process or by mailing copies thereof by registered or certified air mail, first
class, postage prepaid, to CT Corporation System, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. The Guarantor further agrees that service of
process as aforementioned shall be deemed in every respect effective
service of process on the Guarantor in any such action, suit or proceeding
and that the failure of any such designee, appointee and agent to give any
notice of such service to it shall not impair or affect in any way the validity
of such service or any judgment rendered in any action or proceeding based
thereon. Nothing herein shall in any way be deemed to limit the ability of
the Holder of any Note to serve any such legal process, summons, notices
and documents in any other manner permitted by applicable law or to
obtain jurisdiction over the Guarantor or bring other actions, suits or
proceedings against the Guarantor in any jurisdiction, and in such manner,
as may be permitted by applicable law.
The Guarantor hereby certifies that all acts, conditions and things
required to be done and performed and to have happened precedent to the
creation and issuance of this Guarantee and to constitute the same valid
obligation of the Guarantor have been done and performed and have
happened in due compliance with all applicable laws.
This Guarantee shall not be valid or become obligatory for any
purpose with respect to any Note until such Note shall have been
authenticated, issued and delivered by the Issuer and the Registrar as
provided in the Fiscal Agency Agreement.
THIS GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED ENTIRELY IN SUCH STATE.
The provisions of this Guarantee are for the benefit of the Holders
of the Notes and shall be binding upon the Guarantor and its successors and
assigns.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee
to be duly executed by one of its duly authorized officers this 5th day of
June, 2000.
DYCKERHOFF AG
By:
Name:
Title:
By:
Name:
Title:
EXHIBIT A-1
[Form of Face of Certificated Note]
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT") OR WITH ANY SECURITIES REGULATORY
AUTHORITY IN ANY JURISDICTION, AND, ACCORDINGLY, MAY
NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO,
OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT
AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A)
IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN
RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) (AN
"INSTITUTIONAL ACCREDITED INVESTOR"); (2) AGREES THAT
IT WILL NOT, WITHIN TWO YEARS AFTER THE LATER OF (x)
THE ORIGINAL ISSUANCE OF THIS NOTE AND (y) THE LAST
DATE ON WHICH LONE STAR INDUSTRIES, INC. (THE "ISSUER")
OR ANY AFFILIATE THEREOF WAS THE BENEFICIAL OWNER OF
THIS NOTE (OR ANY PREDECESSOR HEREOF), RESELL OR
OTHERWISE TRANSFER THIS NOTE EXCEPT (i) IF A QUALIFIED
INSTITUTIONAL BUYER, PURSUANT TO AN APPLICABLE
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES OR
ANY OTHER APPLICABLE JURISDICTION OR (ii) IF AN
INSTITUTIONAL ACCREDITED INVESTOR (A) TO THE ISSUER OR
ANY AFFILIATE THEREOF, (B) INSIDE THE UNITED STATES TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE
UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE) OR (E) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ALL
APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION AND (3)
AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM
THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY
TRANSFER OF THIS NOTE BY AN INSTITUTIONAL ACCREDITED
INVESTOR WITHIN TWO YEARS AFTER THE LATER OF (x) THE
ORIGINAL ISSUANCE OF THIS NOTE AND (y) THE LAST DATE ON
WHICH THE ISSUER OR ANY AFFILIATE THEREOF WAS THE
BENEFICIAL OWNER OF THIS NOTE SUCH INSTITUTIONAL
ACCREDITED INVESTOR, MUST CHECK THE APPROPRIATE BOX
SET FORTH BELOW RELATING TO THE MANNER OF SUCH
TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRANSFER
AGENT. SUCH INSTITUTIONAL ACCREDITED INVESTOR MUST,
PRIOR TO SUCH TRANSFER, FURNISH TO THE ISSUER AND THE
TRANSFER AGENT SUCH CERTIFICATIONS, LEGAL OPINIONS OR
OTHER INFORMATION, IF ANY, AS THEY MAY REASONABLY
REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. THIS LEGEND WILL BE REMOVED AFTER THE
EXPIRATION OF TWO YEARS FROM THE LATER OF (x) THE
ORIGINAL ISSUANCE OF THIS NOTE AND (y) THE LAST DATE ON
WHICH THE ISSUER OR ANY AFFILIATE THEREOF WAS THE
BENEFICIAL OWNER OF THIS NOTE (OR ANY PREDECESSOR
HEREOF). AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION", "UNITED STATES" AND "U.S. PERSON" HAVE
THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER
THE SECURITIES ACT. NO REPRESENTATION CAN BE MADE
AS TO THE AVAILABILITY OF THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT FOR RESALES OF THIS NOTE.
LONE STAR INDUSTRIES, INC.
91/4% Notes due 2010
Guaranteed by
DYCKERHOFF AG
CUSIP: ▇▇▇▇▇▇▇▇▇
Number:______________
LONE STAR INDUSTRIES, INC., a corporation organized under the laws
of the State of Delaware ("Lone Star" or the "Issuer"), for value received,
hereby promises to pay to or registered assigns, upon
surrender hereof, the principal sum of _________ ($______) Dollars on
June 1, 2010 (the "Stated Maturity"), in such coin or currency of the United
States of America as at the time of payment shall be legal tender for the
payment of public and private debts. In addition, the Issuer promises to pay
interest, semi-annually on June 1 and December 1 of each year (each, an
"Interest Payment Date"), commencing December 1, 2000 on said principal
sum, in like coin or currency, at the rate per annum specified in the title of
this Note (calculated on the basis of a 360-day year of twelve 30-day
months), from and including the date of original issuance of this Note (the
"Original Issue Date") or from and including the most recent Interest
Payment Date to which interest on this Note (or any predecessor Note) has
been paid or duly provided for, until payment of said principal sum has
been made or duly provided for.
The interest payable hereon on any Interest Payment Date will be interest
accrued from and including such dates as stated in the immediately
preceding sentence, to but excluding such Interest Payment Date, provided,
however, that the interest payable hereon on the Stated Maturity will be
interest accrued from and including such dates to but including such Stated
Maturity. Subject to certain exceptions referred to on the reverse hereof,
interest so payable on any Interest Payment Date will be paid to the person
in whose name this Note is registered at the close of business on November
15 or May 15, as the case may be, next preceding such Interest Payment
Date (each, a "Record Date").
Dyckerhoff AG (the "Guarantor") will fully, unconditionally and
irrevocably guarantee payments of principal of, interest on, and any
Additional Amounts with respect to, the Notes if the Issuer fails to make
any such payment in a timely manner.
The statements set forth in the legend, if any, set forth above are an integral
part of the terms of this Note and by acceptance hereof each Holder of this
Note agrees to be subject to and bound by the terms and provisions set forth
in such legend, if any.
Reference is made to the further provisions of this Note set forth on the
reverse hereof. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.
IN WITNESS WHEREOF, Lone Star has caused this instrument to
be signed manually or by facsimile by its duly Authorized Officer.
LONE STAR INDUSTRIES,
INC.
By: ______________________
Name:
Title:
Date:_____________________
[FORM OF CERTIFICATE OF AUTHENTICATION]
This is one of the Notes referred to in the within-mentioned Fiscal Agency
Agreement.
By or on behalf of:
BANKERS TRUST
COMPANY
as Registrar
By:________________
____
Authorized Officer
Date:_______________
____
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered Holder hereby
sell(s), assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
____________________________________________________________
_______________
____________________________________________________________
_______________
Please print or typewrite name and address including postal zip code of
assignee
____________________________________________________________
_______________
the within Note and all rights thereunder, hereby irrevocably constituting
and appointing
____________________________________________________________
_______________
attorney to transfer said Note on the books of the Issuer with full power of
substitution in the premises.
In connection with any transfer of this Note occurring prior to the date
which is two years after the later of June 5, 2000 and the last date, if any,
that this Note (or any predecessor Note) was owned by the Issuer or an
affiliate of the Issuer, the undersigned confirms that without utilizing any
general solicitation or general advertising that:
[Check One]
[ ] (a) this Note is being transferred to the Issuer or an affiliate
thereof, and such transferee shall make the appropriate notification to the
Fiscal and Principal Paying Agent pursuant to Section 15 of the Fiscal Agency
Agreement.
or
[ ] (b) this Note is being transferred inside the United States to a QIB in
compliance with Rule 144A.
or
[ ] (c) this Note is being transferred outside the United States in
compliance with Rule 904 under the Securities Act.
or
[ ] (d) this Note is being transferred pursuant to the exemption from
registration provided by Rule 144 under the Securities Act (if available).
or
[ ] (e) this Note is being transferred pursuant to an effective registration
statement under the Securities Act.
In addition, the undersigned will provide the Issuer and the Transfer Agent
such certifications, legal opinions and other information, if any, as they
may reasonably require to confirm that the proposed transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act.
If none of the foregoing boxes is checked, the Fiscal and Principal Paying
Agent shall not be obligated
to register this Note in the name of any person other than the Holder hereof
unless and until the conditions to any such transfer of registration set forth
herein and in Section 6(b) of the Fiscal Agency Agreement shall have been
satisfied.
Date:_____________________
_______________________________
NOTICE: The signature to this assignment must correspond with the name
as written upon the face of the within-mentioned instrument in every
particular, without alteration or any change whatever.
TO BE COMPLETED BY PURCHASER IF (b) ABOVE IS CHECKED:
The undersigned represents and warrants that it is purchasing the Note for
its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities
Act of 1933, as amended, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such
information regarding the Issuer and the Guarantor as the undersigned has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption
from registration provided by Rule 144A.
Date:_____________________
_______________________________
NOTICE: To be executed by an executive officer.
EXHIBIT A-2
[Form of Face of Rule 144A Global Note]
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933), AS AMENDED (THE
"SECURITIES ACT") OR WITH ANY SECURITIES REGULATORY
AUTHORITY IN ANY JURISDICTION, AND, ACCORDINGLY, MAY
NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO,
OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT
AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A)
IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN
RULE 501 (a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) (AN
"INSTITUTIONAL ACCREDITED INVESTOR"); (2) AGREES THAT
IT WILL NOT, WITHIN TWO YEARS AFTER THE LATER OF (x)
THE ORIGINAL ISSUANCE OF THIS NOTE AND (y) THE LAST
DATE ON WHICH LONE STAR INDUSTRIES, INC. (THE "ISSUER")
OR ANY AFFILIATE THEREOF WAS THE BENEFICIAL OWNER OF
THIS NOTE (OR ANY PREDECESSOR HEREOF), RESELL OR
OTHERWISE TRANSFER THIS NOTE EXCEPT (i) IF A QUALIFIED
INSTITUTIONAL BUYER, PURSUANT TO AN APPLICABLE
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES OR
ANY OTHER APPLICABLE JURISDICTION OR (ii) IF AN
INSTITUTIONAL ACCREDITED INVESTOR (A) TO THE ISSUER OR
ANY AFFILIATE THEREOF, (B) INSIDE THE UNITED STATES TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE
UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE) OR (E) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ALL
APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION AND (3)
AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM
THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY
TRANSFER OF THIS NOTE BY AN INSTITUTIONAL ACCREDITED
INVESTOR WITHIN TWO YEARS AFTER THE LATER OF (x) THE
ORIGINAL ISSUANCE OF THIS NOTE AND (y) THE LAST DATE ON
WHICH THE ISSUER OR ANY AFFILIATE THEREOF WAS THE
BENEFICIAL OWNER OF THIS NOTE SUCH INSTITUTIONAL
ACCREDITED INVESTOR MUST CHECK THE APPROPRIATE BOX
SET FORTH BELOW RELATING TO THE MANNER OF SUCH
TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRANSFER
AGENT. SUCH INSTITUTIONAL ACCREDITED INVESTOR MUST,
PRIOR TO SUCH TRANSFER, FURNISH TO THE ISSUER AND THE
TRANSFER AGENT SUCH CERTIFICATIONS, LEGAL OPINIONS OR
OTHER INFORMATION, IF ANY, AS THEY MAY REASONABLY
REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. THIS LEGEND WILL BE REMOVED AFTER THE
EXPIRATION OF TWO YEARS FROM THE LATER OF (x) THE
ORIGINAL ISSUANCE OF THIS NOTE AND (y) THE LAST DATE ON
WHICH THE ISSUER OR ANY AFFILIATE THEREOF WAS THE
BENEFICIAL OWNER OF THIS NOTE (OR ANY PREDECESSOR
HEREOF). AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION", "UNITED STATES" AND "U.S. PERSON" HAVE
THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER
THE SECURITIES ACT. NO REPRESENTATION CAN BE MADE
AS TO THE AVAILABILITY OF THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT FOR RESALES OF THIS NOTE.
THIS IS A GLOBAL NOTE REFERRED TO IN SECTION 2 OF THE
WITHIN MENTIONED FISCAL AGENCY AGREEMENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A
NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR ON SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL AS MUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
LONE STAR INDUSTRIES, INC.
91/4% Notes due 2010
Guaranteed by
DYCKERHOFF AG
CUSIP: ▇▇▇▇▇▇▇▇▇
Number:_____________
LONE STAR INDUSTRIES, INC., a corporation organized under the laws
of the State of Delaware ("Lone Star" or the "Issuer"), for value received,
hereby promises to pay to CEDE & CO., or registered assigns, the
aggregate unpaid principal amount shown on the schedule affixed hereto
and made a part hereof (or on a continuation thereof) which shall be affixed
hereto and made a part thereto as endorsed by the Registrar (as defined on
the reverse hereto pursuant to the Fiscal Agency Agreement (as so defined),
which amount is on the date hereof ONE HUNDRED SIXTY-EIGHT
MILLION DOLLARS ($168,000,000.00), on June 1, 2010 (the "Stated
Maturity"), in such coin or currency of the United States of America as at
the time of payment shall be legal tender for the payment of public and
private debts. In addition, the Issuer promises to pay interest, semi-annually
on June 1, and December 1 of each year (each, an "Interest Payment
Date"), commencing December 1, 2000 on said principal sum, in like coin
or currency, at the rate per annum specified in the title of this Note
(calculated on the basis of a 360-day year of twelve 30-day months), from
and including the date of original issuance of this Note (the "Original Issue
Date") or from and including the most recent Interest Payment Date to
which interest on this Note (or any predecessor Note) has been paid or duly
provided for, until payment of said principal sum has been made or duly
provided for.
The interest payable hereon on any Interest Payment Date will be interest
accrued from and including such dates as stated in the immediately
preceding sentence, to but excluding such Interest Payment Date, provided,
however, that the interest payable hereon on the Stated Maturity will be
interest accrued from and including, such dates to but including such Stated
Maturity. Subject to certain exceptions referred to on the reverse hereof,
interest so payable on any Interest Payment Date will be paid to the person
in whose name this Note is registered at the close of business on November
15 or May 15, as the case may be, next preceding such Interest Payment
Date (each, a "Record Date").
Dyckerhoff AG (the "Guarantor") will fully, unconditionally and
irrevocably guarantee payments of principal of, interest on, and any
Additional Amounts with respect to, the Notes if the Issuer fails to make
any such payment in a timely manner.
The statements set forth in the legend, if any, set forth above are an integral
part of the terms of this Note and by acceptance hereof each Holder of this
Note agrees to be subject to and bound by the terms and provisions set forth
in such legend, if any.
Reference is made to the further provisions of this Note set forth on the
reverse hereof. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.
IN WITNESS WHEREOF, Lone Star has caused this instrument to
be signed manually or by facsimile by its duly Authorized Officer.
LONE STAR
INDUSTRIES, INC.
By:_______________
________
Name:
Title:
Date:
_____________________
[FORM OF CERTIFICATE OF AUTHENTICATION]
This is one of the Global Notes referred to in the within-mentioned Fiscal
Agency Agreement.
By or on behalf of:
BANKERS TRUST
COMPANY
as Registrar
By:_______________
_______
Authorized Officer
Date:______________
_______
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered Holder hereby
sell(s), assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
____________________________________________________________
_______________
____________________________________________________________
_______________
Please print or typewrite name and address including postal zip code of
assignee
____________________________________________________________
_______________
the within Note and all rights thereunder, hereby irrevocably constituting
and appointing
____________________________________________________________
_______________
attorney to transfer said Note on the books of the Issuer with full power of
substitution in the premises.
In connection with any transfer of this Note occurring prior to the date
which is two years after the later of June 5, 2000 and the last date, if any,
that this Note (or any predecessor Note) was owned by the Issuer or an
affiliate of the Issuer, the undersigned confirms that without utilizing any
general solicitation or general advertising that:
[Check One]
[ ] (a) this Note is being transferred to the Issuer or an affiliate thereof,
and such transferee shall make the appropriate notification to the Fiscal and
Principal Paying Agent pursuant to Section 15 of the Fiscal Agency
Agreement.
or
[ ] (b) this Note is being transferred inside the United States to a QIB in
compliance with Rule 144A.
or
[ ] (c) this Note is being transferred outside the United States in
compliance with Rule 904 under the Securities Act.
or
[ ] (d) this Note is being transferred pursuant to the exemption from
registration provided by Rule 144 under the Securities Act (if available).
or
[ ] (e) this Note is being transferred pursuant to an effective registration
statement under the Securities Act.
In addition, the undersigned will provide the Issuer and the Transfer Agent
such certifications, legal opinions and other information, if any, as they
may reasonably require to confirm that the proposed transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act.
If none of the foregoing boxes is checked, the Fiscal and Principal Paying
Agent shall not be obligated
to register this Note in the name of any person other than the Holder hereof
unless and until the conditions to any such transfer of registration set forth
herein and in Section 6(b) of the Fiscal Agency Agreement shall have been
satisfied.
Date:_____________________
_______________________________
NOTICE: The signature to this assignment must correspond with the name
as written upon the face of the within-mentioned instrument in every
particular, without alteration or any change whatever.
TO BE COMPLETED BY PURCHASER IF (b) ABOVE IS CHECKED:
The undersigned represents and warrants that it is purchasing the Note for
its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities
Act of 1933, as amended, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such
information regarding the Issuer and the Guarantor as the undersigned has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption
from registration provided by Rule 144A.
Date:_____________________
_______________________________
NOTICE: To be executed by an executive officer.
EXHIBIT A-3
[Form of Face of Regulation S Global Note]
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR WITH ANY SECURITIES REGULATORY
AUTHORITY IN ANY JURISDICTION, AND, ACCORDINGLY, MAY
NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO,
OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT
AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT IT
IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN
OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL NOT,
PRIOR TO THE EXPIRATION OF A DISTRIBUTION COMPLIANCE
PERIOD (DEFINED AS 40 DAYS AFTER THE LATER OF THE
CLOSING DATE WITH RESPECT TO THE NOTES AND THE
COMPLETION OF THE DISTRIBUTION OF THE NOTES), RESELL
OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A)(1) OUTSIDE
THE UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER
THE SECURITIES ACT OR (2) TO A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT IN COMPLIANCE WITH RULE 144A, AND (B) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF
THE STATES OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION.
THIS IS A GLOBAL NOTE REFERRED TO IN SECTION 2 OF THE
WITHIN MENTIONED FISCAL AGENCY AGREEMENT.
UNLESS, THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A
NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL IN AS MUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
LONE STAR INDUSTRIES, INC.
91/4% Notes Due 2010
Guaranteed by
DYCKERHOFF AG
CUSIP: ▇▇▇▇▇▇▇▇▇
Number:____________
ISIN: US U 54229 AA45
Common Code: 011251196
LONE STAR INDUSTRIES, INC., a corporation organized under the laws
of the State of Delaware ("▇▇▇▇▇▇▇▇" or the "Issuer"), for value received,
hereby promises to pay to CEDE & CO., or registered assigns, the
aggregate unpaid principal amount shown on the schedule affixed hereto
and made a part hereof (or on a continuation thereof which shall be affixed
hereto and made a part thereof) as endorsed by the Registrar (as defined on
the reverse hereof) pursuant to the Fiscal Agency Agreement (as so
defined), which amount is on the date hereof ONE HUNDRED EIGHTY-
TWO MILLION DOLLARS ($182,000,000), on June 1, 2010 (the "Stated
Maturity"), in such coin or currency of the United States of America as at
the title of payment shall be legal tender for the payment of public and
private debts. In addition, the Issuer promises to pay interest, semi-annually
on June 1 and December 1 of each year (each, an "Interest Payment Date"),
commencing December 1, 2000 on said principal sum, in like coin or
currency, at the rate per annum specified in the title of this Note (calculated
on the basis of a 360-day year of twelve 30-day months), from and
including the date of original issuance of this Note (the "Original Issue
Date") or from and including the most recent Interest Payment Date to
which interest on this Note (or any predecessor Note) has been paid or duly
provided for, until payment of said principal sum has been made or duly
provided for.
The interest payable hereon on any Interest Payment Date will be interest
accrued from and including such dates as stated in the immediately
preceding sentence, to but excluding, such Interest Payment Date, provided,
however, that the interest payable hereon on the Stated Maturity will be
interest accrued from and including such dates to but including such Stated
Maturity. Subject to certain exceptions referred to on the reverse hereof,
interest so payable on any Interest Payment Date will be paid to the person
in whose name this Note is registered at the close of business on November
15 or May 15, as the case may be, next preceding such Interest Payment
Date (each, a "Record Date").
The statements set forth in the legend, if any, set forth above are an integral
part of the terms of this Note, and by acceptance hereof each Holder of this
Note agrees to be subject to and bound by the terms and provisions set forth
in such legend, if any.
Reference is made to the further provisions of this Note set forth on the
reverse hereof. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.
IN WITNESS WHEREOF, Lone Star has caused this instrument to
be signed manually or by facsimile by its duly Authorized Officer.
LONE STAR
INDUSTRIES, INC.
By:
__________________
_____
Name:
Title:
Date:_____________
_________
[FORM OF CERTIFICATE OF AUTHENTICATION]
This is one of the Global Notes referred to in the within-mentioned Fiscal
Agency Agreement.
By or on behalf of:
BANKERS TRUST
COMPANY
as Registrar
By:
____________________
Authorized Officer
Date:________________
____
EXHIBIT B-1
[FORM OF REVERSE OF NOTE]
1. General. (a) This Note is one of a duly authorized issue of debt
securities of the Issuer, designated as its 91/4% Notes due June 1, 2010 (the
"Notes"), limited to the aggregate principal amount of U.S. $350,000,000
(subject to the terms of Section 2 of the Fiscal and Paying Agency
Agreement, defined herein) and issued or to be issued pursuant to a fiscal
and paying agency agreement (the "Fiscal Agency Agreement") dated as of
June 5, 2000 among the Issuer, the Guarantor and Bankers Trust Company,
as fiscal agent, principal paying agent and as depository for the Guarantee
(the "Fiscal and Principal Paying Agent") and pursuant to which Deutsche
Bank Luxembourg S.A. is acting as paying agent (collectively with the
Fiscal and Principal Paying Agent, the "Paying Agents", which term shall
include successors and assigns as such Paying Agents). The Paying Agents
are also each acting as transfer agent (the Transfer Agents") and Bankers
Trust Company is acting as registrar ("Registrar") under the Fiscal Agency
Agreement. The Holders of the Notes will be entitled to the benefits of, be
bound by, and be deemed to have notice of, all of the provisions of the
Fiscal Agency Agreement. A copy of the Fiscal Agency Agreement is on
file and may be inspected at the corporate trust office of the Fiscal and
Principal Paying Agent and the Registrar. The Guarantor will fully,
unconditionally and irrevocably guarantee payments of principal of, interest
on, and any Additional Amounts with respect to, the Notes if the Issuer
fails to make any such payment in a timely manner.
(b) The issue of the Notes was authorized pursuant to a
resolution of the Board of Directors of the Issuer dated May 5, 2000. The
Guarantee was issued pursuant to resolutions of the Board of Directors of
the Issuer, dated May 5, 2000, a resolution of the Board of Managers of the
Guarantor, dated August 30, 1999 and a resolution of the Supervisory
Board of the Guarantor dated September 2, 1999.
(c) The Notes are unsecured general obligations of the Issuer
and rank pari passu with all other unsecured general obligations of the
Issuer. The obligations of the Guarantor pursuant to the Guarantee are
unsecured and senior obligations of the Guarantor and will rank pari passu
without any preference among themselves and at least pari passu with all
other present and future unsecured and senior obligations of the Guarantor,
save for such obligations as may be preferred by mandatory provisions of
law.
(d) The Notes are issuable in definitive, fully registered form,
without coupons, in minimum denominations of U.S.$250,000 principal
amount and multiples of $1,000 in excess thereof. The Notes may be
exchanged, and transfers thereof shall be registered, as provided in
paragraph 6 hereof and in the Fiscal Agency Agreement. The person in
whose name a Note shall be registered may (to the fullest extent permitted
by applicable laws) be treated at all times, by all persons and for all
purposes, as the absolute owner of such Note regardless of any notice of
ownership, theft or loss or of any writing thereon.
2. Payment and Paying Agencies. (a) In order to provide for
the payment of principal of and interest on the Notes as and when the same
shall become due and payable, the Issuer (or, failing the Issuer, the
Guarantor under the terms of the Guarantee) shall pay to the Fiscal and
Principal Paying Agent on or before each Interest Payment Date or the
Stated Maturity or any date fixed for redemption of the Notes in such coin
or currency of the United States as at the time shall be legal tender for the
payment of public and private debts, an amount in immediately available
funds which (together with any funds then held by any Paying Agent or the
Registrar and available for this purpose) shall be sufficient to pay the
interest or principal or both, as the case may be, becoming due on such
date; provided, however, that if such date is not a Business Day, the Issuer
(or, failing the Issuer, the Guarantor under the terms of the Guarantee) shall
make such payment on the next succeeding Business Day. A "Business
Day" is any day which is not at Saturday, Sunday, or a day on which
banking institutions are authorized or obligated to close in New York City.
All sums payable to the Fiscal and Principal Paying Agent hereunder shall
be paid to such account and with such bank as the Fiscal and Principal
Paying Agent may from time to time notify to the Issuer reasonably in
advance of the time such sum is due and payable.
(b) (i) Payment of interest and principal with respect to
interests in global Notes will be credited to the account of
the Holders of such interests with The Depository Trust
Company ("DTC"), ▇▇▇▇▇▇ Guaranty Trust Company of
New York, Brussels office, as operator of the Euroclear
System ("Euroclear"), and Clearstream Banking, societe
anonyme (formerly Cedelbank) ("Clearstream").
(ii) Principal of certificated Notes will be payable
against surrender of such Notes at the office of the Registrar
or any Paying Agent or, subject to applicable laws and
regulations, in such other place or places as are designated
by the Issuer, by dollar check drawn on, or by transfer to a
dollar account maintained by the Holder with, a bank
located in New York City. Payment of interest on
certificated Notes, if any, will be made (x) by a dollar check
drawn on a bank in New York City mailed to the Holder at
such Holder's registered address or (y) upon application by a
Holder of at least $1,000,000 aggregate principal amount of
Notes to the Registrar or any Paying Agent not later than the
relevant Record Date, by wire transfer in immediately
available funds to a dollar account maintained by the Holder
with a bank in New York City.
(c) Payment of interest on the Notes will be made to the person
in whose name such Note is registered at the close of business on the
Record Date next preceding the relevant Interest Payment Date
notwithstanding the cancellation of such Note upon any transfer or
exchange thereof subsequent to the Record Date and prior to such Interest
Payment Date; provided that: (i) interest payable at the Stated Maturity will
be payable to the person to whom principal shall be payable; and (ii) if and
to the extent the Issuer shall default in the payment of interest due on such
interest payment date, such defaulted interest shall be paid to the persons in
whose names the Notes are registered at the close of business on a
subsequent record date established by notice given by mail by or on behalf
of the Issuer to the holders of Notes not less than 15 days preceding such
subsequent record date, such record date to be not less than 10 days
preceding the date of payment of such defaulted interest.
(d) The Issuer has initially appointed the Paying Agents, the
Transfer Agents and the Registrar for the Notes as stated above. The Issuer
may at any time appoint additional or other paying agents, transfer agents
and registrars and terminate the appointment thereof, provided that while
the Notes are outstanding the Issuer will maintain in New York City an
office or agency (which may be the offices of the Fiscal and Principal
Paying Agent) for the payment of principal of and interest on this Note as
herein provided. Notice of any such termination or appointment and of any
change in the office through which any paying agent, transfer agent or
registrar will act will be promptly given once in the manner described in
paragraph 10 herein.
(e) All monies paid by the Issuer (or, failing the Issuer, the
Guarantor under the terms of the Guarantee) to the Fiscal and Principal
Paying Agent for payment of the principal of or interest on any Note and
remaining unclaimed for two years after such payment has been made shall
be repaid to the Issuer or the Guarantor, as applicable, and, to the extent
permitted by law, the holder of such Note thereafter may look only to the
Issuer or the Guarantor, as applicable, for payment thereof.
(f) Should the Issuer (or, failing the Issuer, the Guarantor under
the terms of the Guarantee) at any time default in the payment of any
principal of this Note, the Issuer (or, failing the Issuer, the Guarantor under
the terms of the Guarantee) will pay interest on the amount in default at the
rate of interest borne by the Notes.
3. Withholding Taxes; Redemption. (a) All payments of, or in
respect of, principal and interest made by the Issuer hereunder in respect of
this Note will be made without withholding or deduction for, or on account
of, any present or future taxes, duties, assessments or governmental charges
of whatever nature imposed or levied by or on behalf of the United States
or by or within any political subdivision thereof or any authority therein
having power to tax, unless such taxes, duties, assessments or governmental
charges are required by law to be withheld or deducted.
(b) (i) If any deduction or withholding for any present or
future taxes, assessments or other governmental charges of the United
States (or any political subdivision or taxation authority thereof or therein)
shall at any time be required by the United States (or any such political
subdivision or taxing authority) in respect of any amounts to be paid by the
Issuer on this Note, the Issuer will pay to the holder of this Note such
additional amounts (the "U.S. Additional Amounts") as may be necessary
in order that the net amounts paid to such Holder of this Note who is not
resident in the United States for U.S. tax purposes, after such deduction or
withholding, shall be not less than the amounts specified in this Note to
which such Holder is entitled; provided, however, that the Issuer shall not
be required to make any payment of U.S. Additional Amounts to a Holder
for or on account of:
(1) any tax, assessment or other governmental charge which
would not have been imposed but for (i) the existence of any present
or former connection between such Holder (or between a fiduciary,
settlor, beneficiary, member or shareholder of, or possessor of a
power over, such Holder, if such Holder is an estate, a trust, a
partnership or a corporation) and the United States or any political
subdivision or territory or possession thereof or area subject to its
jurisdiction, including, without limitation, such Holder (or such
fiduciary, settlor, beneficiary, member, shareholder or possessor)
being or having been a citizen, domiciliary, national or resident
thereof or being or having been present or engaged in a trade or
business therein or having, or having had, a permanent
establishment therein or otherwise having, or having had, some
connection with the United States or such political subdivision,
territory or possession other than the holding or ownership of a Note
or the collection of principal of and interest, if any, on, or the
enforcement of, a Note or (ii) the presentation by the Holder of a
Note (where presentation is required) for payment on a date more
than 30 days after the date on which such payment became due and
payable or the date on which payment thereof is duly provided for,
whichever occurs later, except to the extent that the Holder would
have been entitled to such U.S. Additional Amounts if it had
presented such Note for payment on any day within such period of
30 days; or
(2) any tax, fee or duty which the Holder is subject to for any
reason other than the mere fact of being a recipient of principal or
interest in respect of the Notes, in particular if the Holder is subject
to such taxes, fees or duties based on a personal unlimited or limited
tax liability; or
(3) any estate, inheritance, gift, sale, transfer, personal property
tax or any similar tax, assessment or other governmental charge; or
(4) any tax, assessment or other governmental charge which is
payable otherwise than by withholding from payments of (or in
respect of) principal of, or any interest on, the Notes; or
(5) any tax, assessment or other governmental charge imposed
by reason of such Holder's past or present status as a personal
holding company or foreign personal holding company or
controlled foreign corporation or passive foreign investment
company with respect to the United States or as a corporation which
accumulates earnings to avoid United States federal income tax or
as a private foundation or other tax-exempt organization; or
(6) any tax, assessment or other governmental charge which
would not have been imposed but for the failure to comply with
certification, information or other reporting requirements
concerning the nationality, residence or identity of the Holder or
beneficial owner of such Note, if such compliance is required by
statute or by regulation of the United States or of any political
subdivision or taxing authority thereof or therein as a precondition
to relief or exemption from such tax, assessment or other
governmental charge; or
(7) any combination of items (1), (2), (3), (4), (5) and (6) above;
nor shall U.S. Additional Amounts be paid with respect to any payment of
the principal of, or any interest on, a Note to any Holder who is a fiduciary
or partnership or other than the sole beneficial owner of such payment to
the extent such payment would be required by the laws of the United
States, or any political subdivision or taxing authority thereof or therein to
be included in the income, for tax purposes, of a beneficiary or settlor with
respect to such fiduciary or a member of such partnership or a beneficial
owner who would not have been entitled to such U.S. Additional Amounts
had such beneficiary, settlor, member or beneficial owner been the holder
of the Note.
(ii) If any deduction or withholding for any present or future
taxes, assessments or other governmental charges of the Federal Republic
of Germany (or any political subdivision or taxation authority thereof or
therein) shall at any time be required by the Federal Republic of Germany
(or any such political subdivision or taxing authority) in respect of any
amounts to be paid by the Guarantor under the terms of the Guarantee, the
Guarantor will pay to the Holder of this Note such additional amounts (the
"German Additional Amounts" and, together with any U.S. Additional
Amounts, the "Additional Amounts") as may be necessary in order that the
net amounts paid to such holder of this Note, after such deduction or
withholding, shall be not less than the amounts specified in this Note to
which such Holder is entitled; provided, however, that the Guarantor shall
not be required to make any payment of German Additional Amounts to a
Holder for or on account of:
(1) any tax, assessment or other governmental charge which
would not have been imposed but for (i) the existence of any
present or former connection between such Holder (or between a
fiduciary, settlor, beneficiary, member or shareholder of, or
possessor of a power over, such Holder, if such Holder is an estate,
a trust, a partnership or a corporation) and the Federal Republic of
Germany or any political subdivision or territory or possession
thereof or area subject to its jurisdiction, including, without
limitation, such Holder (or such fiduciary, settlor, beneficiary,
member, shareholder or possessor) being or having been a citizen,
domiciliary, national or resident thereof or being or having been
present or engaged in a trade or business therein or having, or
having had, a permanent establishment therein or otherwise having,
or having had, some connection with the Federal Republic of
Germany or such political subdivision, territory or possession other
than the holding or ownership of a Note subject to the Guarantee or
the collection of principal of and interest, if any, on, or the
enforcement of, a Note or the Guarantee or (ii) the presentation by
the Holder of a Note (where presentation is required) for payment
on a date more than 30 days after the date on which such payment
became due and payable or the date on which payment thereof is
duly provided for, whichever occurs later, except to the extent that
the Holder would have been entitled to such German Additional
Amounts if it had presented such Note for payment on any day
within such period of 30 days; or
(2) any tax, fee or duty which the Holder is subject to for any
reason other than the mere fact of being a recipient of principal or
interest in respect of the Notes, in particular if the Holder is subject
to such taxes, fees or duties based on a personal unlimited or limited
tax liability; or
(3) any estate, inheritance, gift, sale, transfer, personal property
tax or any similar tax, assessment or other governmental charge; or
(4) any tax, assessment or other governmental charge which is
payable otherwise than by withholding from payments of (or in
respect of) principal of, or any interest on, the Notes or the
Guarantee; or
(5) any tax, assessment or other governmental charge which
would not have been imposed but for the failure to comply with
certification, information or other reporting requirements
concerning the nationality, residence or identity of the Holder or
beneficial owner of such Note, if such compliance is required by
statute or by regulation of the Federal Republic of Germany or of
any political subdivision or taxing authority thereof or therein as a
precondition to relief or exemption from such tax, assessment or
other governmental charge; or
(6) any combination of items (1), (2), (3), (4) and (5) above;
nor shall German Additional Amounts be paid with respect to any payment
of the principal of or any interest on, a Note to any Holder who is a
fiduciary or partnership or other than the sole beneficial owner of such
payment to the extent such payment would be required by the laws of the
Federal Republic of Germany, or any political subdivision or taxing
authority thereof or therein to be included in the income, for tax purposes,
of a beneficiary or settlor with respect to such fiduciary or a member of
such partnership or a beneficial owner who would not have been entitled to
such German Additional Amounts had such beneficiary, settlor, member or
beneficial owner been the Holder of the Note.
(c) The Notes may be redeemed, at the option of the Issuer or
the Guarantor, as the case may be, in whole but not in part, upon notice as
described below, at a redemption price equal to 100% of the principal
amount thereof, together with accrued interest to the date fixed for
redemption, if any, if, as a result of any change in, or amendment to, the
laws (or any regulations or rulings promulgated thereunder) of the United
States or any political subdivision or taxing authority thereof or therein
affecting taxation, or any change in official position regarding application
or interpretation of such laws, regulations or rulings (including a holding by
a court of competent jurisdiction), which change, amendment, application
or interpretation becomes effective on or after the closing date in respect of
the Notes, on the occasion of the next payment of principal or interest in
respect of the Notes, the Issuer or the Guarantor, as the case may be, would
be obligated to pay U.S. Additional Amounts and such obligation cannot be
avoided by the Issuer or the Guarantor, as the case may be, taking
reasonable measures available to it. Prior to the giving of any notice of
redemption of the Notes pursuant to the foregoing, the Issuer or the
Guarantor, as the case may be, shall deliver to the Fiscal and Principal
Paying Agent an opinion of independent U.S. legal counsel (of recognized
standing) stating that the Issuer or the Guarantor, as the case may be, is
entitled to effect such redemption, together with a certificate of the Issuer
or the Guarantor, as applicable, setting forth a statement of facts showing
that the conditions precedent to the right of the Issuer or the Guarantor, as
the case may be, so to redeem have occurred.
The Notes may also be redeemed, at the option of the Issuer or the
Guarantor, in whole but not in part, upon notice as described below, at a
redemption price equal to 100% of the principal amount thereof, together
with accrued interest to the date fixed for redemption, if any, if as a result
of any change in, or amendment to, the laws (or any regulations or rulings
promulgated thereunder) of the Federal Republic of Germany or any
political subdivision or taxing authority thereof or therein affecting
taxation, or any change in official position regarding application or
interpretation of such laws, regulations or rulings (including a holding by a
court of competent jurisdiction), which change, amendment, application or
interpretation becomes effective on or after the closing date in respect of
the Notes, on the occasion of the next payment of principal or interest
required to be made under the Guarantee, the Guarantor would be obligated
to pay German Additional Amounts by virtue of a payment required to be
made under the Guarantee and such obligation cannot be avoided by the
Guarantor taking reasonable measures available to it. Prior to the giving of
any notice of redemption of the Notes pursuant to the foregoing, the
Guarantor shall deliver to the Fiscal and Principal Paying Agent an opinion
of independent German legal counsel (of recognized standing) to the
Guarantor stating that the Guarantor is entitled to effect such redemption,
together with a certificate of the Guarantor setting forth a statement of facts
showing that the conditions precedent to the right of the Guarantor so to
redeem have occurred.
Notice of redemption of the Notes as provided above shall be given,
not less than 30 nor more than 60 days prior to the date fixed for
redemption; provided that no such notice of redemption shall be given
earlier than 90 days prior to the earliest date on which the Issuer would be
required to pay Additional Amounts if a payment in respect of such Notes
was then due, all as provided in the Fiscal Agency Agreement. Notice
having been given, the Notes shall become due and payable on the date
fixed for redemption and will be paid at the redemption price, together with
accrued interest to the date fixed for redemption, at the place or places of
payment and in the manner specified in the Notes.
From and after the redemption date, if moneys for the redemption of
the Notes called for redemption shall have been made available as provided
in the Notes for redemption on the redemption date, such Notes shall cease
to bear interest, and the only right of the Holders of such Notes shall be to
receive payment of the redemption price and all unpaid interest accrued to
the date of redemption.
4. Events of Default. The following will be Events of Default
(each an "Event of Default") with respect to the Notes:
(a) the failure to pay the principal amount of, or the redemption
price of, any Note when the same shall become due and payable,
whether at stated maturity, by acceleration, by notice of redemption
or otherwise, or the failure to pay any installment of interest or any
Additional Amounts as and when the same shall become due and
payable and such failure shall continue for a period of 30 days;
(b) except as provided in the preceding clause 4(a), the Issuer or
the Guarantor shall default in the performance of, or shall breach,
any covenant or warranty contained in the Notes or the Guarantee,
as applicable, and continuance of such default or breach for a period
of 90 days after written notice thereof shall have been given to the
Issuer or the Guarantor, as applicable, by the Fiscal and Principal
Paying Agent or shall have been given to the Issuer or the
Guarantor, as applicable, and the Fiscal and Principal Paying Agent
by the Holders of at least 25% in aggregate principal amount of
Notes then outstanding, which notice shall specify the default and
require the Issuer or the Guarantor, as applicable, to remedy the
same;
(c) any event of default as defined in any mortgage, indenture or
instrument under which there may be issued, or by which there may
be secured or evidenced, any indebtedness of the Issuer, the
Guarantor or any of their respective subsidiaries for money
borrowed, whether such indebtedness now exists or shall hereafter
be created, shall occur and shall result in such indebtedness in
principal amount in excess of $40,000,000 (or the equivalent thereof
in foreign or composite currencies) becoming or being declared due
and payable prior to the date on which it would otherwise become
due and payable, and such acceleration shall not be rescinded or
annulled, or such indebtedness shall not have been discharged,
within a period of 30 days after written notice thereof shall have
been given to the Issuer or the Guarantor, as applicable, by the
Fiscal and Principal Paying Agent or to the Issuer, or the Guarantor,
as applicable, and the Fiscal and Principal Paying Agent by the
Holders of at least 25% in aggregate principal amount of Notes then
outstanding, which notice shall specify the event of default and
require the Issuer or the Guarantor, as applicable, to cause such
acceleration to be rescinded or annulled or to cause such
indebtedness to be discharged;
(d) the entry by a court having jurisdiction in the premises of (i)
a decree or order for relief in respect of the Issuer, the Guarantor, or
any Principal Subsidiary (as defined below) in an involuntary case
or proceeding under any applicable federal or state bankruptcy,
liquidation, insolvency, reorganization or other similar law or (ii) a
decree or order adjudging the Issuer, the Guarantor or any Principal
Subsidiary, bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Issuer, the Guarantor or any
Principal Subsidiary under any applicable law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or
other similar official of the Issuer, the Guarantor or any Principal
Subsidiary or of any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the continuance of any
such decree or order for relief or any such other decree or order
unstayed and in effect for a period of 90 consecutive days;
(e) the commencement by the Issuer, the Guarantor or any
Principal Subsidiary of a voluntary case or proceeding under any
applicable federal or state bankruptcy, liquidation, insolvency,
reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent
by it to the entry of a decree or order for relief in respect of the
Issuer, the Guarantor or any Principal Subsidiary in an involuntary
case or proceeding under any applicable federal or state bankruptcy,
liquidation, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding
against it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable law, or the
consent by it to the filing of such petition or to the appointment of
or taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Issuer, the
Guarantor or any Principal Subsidiary or of any substantial part of
its property, or the making by the Issuer, the Guarantor or any
Principal Subsidiary of an assignment for the benefit of creditors, or
the taking of any corporate action by the Issuer, the Guarantor or
any Principal Subsidiary in furtherance of any such action; and
(f) the Guarantee shall cease to be in full force and effect, or the
Guarantor shall deny or disaffirm its obligations under the
Guarantee.
In each and every such case where such Event of Default shall have
occurred and be continuing (other than an Event of Default specified in
clause (a) above or an Event of Default in respect of the Issuer, the
Guarantor or any Principal Subsidiary specified in clauses (d) or (e) above)
the Holders of at least 25% in aggregate principal amount of the Notes at
the time outstanding may, by written notice to the Issuer, the Guarantor and
the Fiscal and Principal Paying Agent, declare the principal of and all
accrued interest on the Notes to be due and payable upon the date that
written notice is received by or on behalf of the Issuer, the Guarantor and
the Fiscal and Principal Paying Agent unless prior to such date all Events of
Default in respect of all the Notes shall have been cured. Upon any such
declaration, the Holders of a majority in the principal amount of all the
Notes by notice to the Issuer, the Guarantor and the Fiscal and Principal
Paying Agent may rescind an acceleration and its consequences if the
rescission would not conflict with any judgment or decree by a court of
competent jurisdiction and if all existing Events of Default have been cured
or waived except non-payment of principal that has become due solely
because of the acceleration. If an Event of Default specified in clause (a)
above occurs, each Holder may, by written notice to the Issuer, the
Guarantor and the Fiscal and Principal Paying Agent, declare the principal
of and all accrued interest on the Notes of such Holder to be immediately
due and payable upon the date that written notice is received by or on
behalf of the Issuer, the Guarantor and the Fiscal and Principal Paying
Agent unless prior to such date all Events of Default in respect of such
Holder's Notes have been cured. If an Event of Default in respect of the
Issuer, the Guarantor or any Principal Subsidiary specified in clause (d) or
(e) above occurs, the principal of and accrued interest on the Notes will be
immediately due and payable without any declaration or other act on the
part of any Holder of Notes.
As used herein, "Principal Subsidiary" means any direct or indirect
Subsidiary (as defined in Section 5 herein) of the Issuer or the Guarantor
whose total assets, shareholders equity or earnings before tax (as
determined in accordance with applicable generally accepted accounting
principles) exceeds 10% of the Issuer's or the Guarantor's consolidated total
assets, shareholders equity or earnings before tax, respectively (in each case
determined in accordance with applicable generally accepted accounting
principles).
5. Certain Covenants of the Issuer and the Guarantor. (a)
Consolidation, Merger, Sale or Conveyance. (i) The Issuer may consolidate
with or merge into any other person, or sell, convey or transfer all or
substantially all of its assets to any other person, without the consent of the
Holders of the Notes, provided that:
(w) the entity (if other than the Issuer) formed by or resulting
from any such consolidation or merger shall be organized
and existing under the laws of the United States, any state
thereof or the District of Columbia, and shall expressly
assume, by an amendment to the Fiscal Agency Agreement
and the Notes pursuant to the Fiscal Agency Agreement, the
due and punctual payment of the principal of, and premium,
if any, and interest on, the Notes and the due and punctual
performance and observance of all the covenants and
conditions to be performed or observed by the Issuer
pursuant to the Fiscal Agency Agreement and the Notes;
(x) such amendment shall be in form reasonably satisfactory to
the Fiscal and Principal Paying Agent, shall be duly
executed by the entity succeeding the Issuer and, when so
executed, shall constitute a valid and legally binding
agreement of such entity succeeding the Issuer, enforceable
against such entity in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and other similar laws
affecting creditors' rights generally and to general principles
of equity, regardless of whether in a proceeding in equity or
at law, and shall be delivered to the Fiscal and Principal
Paying Agent;
(y) immediately after giving effect to such transaction, no Event
of Default and no event which, after notice or lapse of time
or both, would become an Event of Default, shall have
occurred or be continuing; and
(z) the Issuer has delivered to the Fiscal and Principal Paying
Agent an officers' certificate and an opinion of counsel, each
stating that the conditions precedent to such consolidation,
merger, sale, conveyance or transfer have been satisfied.
Notwithstanding the foregoing, the Issuer may sell, convey or
transfer all or substantially all of its assets to any person which is directly
or indirectly wholly-owned by one or more of the Issuer, the Guarantor and
their wholly-owned Subsidiaries.
(ii) The Guarantor may consolidate with or merge into any other
person, or sell, convey or transfer all or substantially all of its assets to
any other person, without the consent of the Holders of the Notes, provided
that:
(v) the purchasing or transferee corporation or the successor,
continuing or resulting corporation in the case of a merger or
consolidation (if the Guarantor is not the surviving
corporation), as the case may be (the "Successor
Guarantor"), expressly assumes, by an amendment to the
Fiscal Agency Agreement and the Guarantee pursuant to the
Fiscal Agency Agreement, the obligations of the Guarantor
under the Fiscal Agency Agreement and the Guarantee and
the due and punctual performance and observance of all the
covenants and conditions to be performed or observed by the
Guarantor pursuant to the Fiscal Agency Agreement and the
Guarantee;
(w) such amendment shall be in form reasonably satisfactory to
the Fiscal and Principal Paying Agent, shall be duly
executed by the Successor Guarantor and, when so executed,
shall constitute a valid and legally binding agreement of
such Successor Guarantor, enforceable against such
Successor Guarantor in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and other similar laws
affecting creditors' rights generally and to general principles
of equity, regardless of whether in a proceeding in equity or
at law, and shall be delivered to the Fiscal and Principal
Paying Agent;
(x) if such Successor Guarantor is organized under the laws of a
jurisdiction other than the Federal Republic of Germany (a
"Successor Guarantor Jurisdiction"), such Successor
Guarantor agrees to assume the Guarantor's obligations
under the Guarantee to pay any U.S. Additional Amounts
pursuant to Section 3(b)(i) herein or any amounts akin to
German Additional Amounts pursuant to Section 3(b)(ii)
herein imposed by the laws of the jurisdiction in which the
Successor Guarantor is organized;
(y) immediately after giving effect to such transaction, no Event
of Default and no event which, after notice or lapse of time
or both, would become an Event of Default, shall have
occurred or be continuing; and
(z) the Guarantor shall have delivered to the Fiscal and
Principal Paying Agent an officers' certificate and an
opinion of counsel, each stating that the conditions
precedent to such consolidation, merger, sale, conveyance or
transfer have been satisfied.
In addition to the foregoing conditions, in the event of any such
assumption of the obligations of the Issuer or the Guarantor, the Issuer or
the Guarantor, as the case may be, will be required to deliver an opinion of
its counsel of recognized standing to the effect that such assumption of the
Issuer's or the Guarantor's obligations under the Notes or the Guarantee, as
the case may be, shall not be deemed for U.S. federal income tax purposes
to be a taxable exchange of the Notes for new Notes by the Holders thereof,
resulting in the recognition of gain or loss for such purposes or resulting in
any other material adverse tax consequences to Holders of the Notes.
(b) Limitations on Liens. For so long as any Notes remain
outstanding, neither the Issuer nor the Guarantor will create or allow, and
nor will either the Issuer or the Guarantor permit any Subsidiary to create
or allow, any lien, mortgage, pledge, security interest, charge or other
encumbrance (a "Lien") on any part of its Property (as defined below) to
secure any Indebtedness for borrowed money without providing that the
Notes will be secured equally and ratably with or prior to such
Indebtedness, for so long as the Indebtedness is secured. However, this
limitation will not apply to any Lien that: (i) exists on or prior to the
date of the Fiscal Agency Agreement; (ii) arises by operation of law and does
not secure amounts that are more than 90 days overdue or are otherwise being
contested in good faith; (iii) arises from any judgment that does not give
rise to an event of default; (iv) exists over Property or shares of any
Subsidiary (as defined below) which becomes a Subsidiary after the date of
the Fiscal Agency Agreement, provided that the Lien was not created in
contemplation of the Subsidiary becoming a Subsidiary; (v) exists over any
Property as a security for indebtedness incurred to finance all or part of the
price including costs such as increased costs due to escalation, interest
during construction and similar costs of the acquisition of the Property, or
(in the case of Property other than shares of any Subsidiary) the
development, redevelopment, modification or improvement of the Property,
and created within 180 days after the acquisition; (vi) exists over any
Property which is acquired by the Issuer, the Guarantor or any Subsidiary,
or Property or shares of any entity that merges into or consolidates with the
Issuer, the Guarantor or any Subsidiary, provided that the Lien was not
created in contemplation of the transaction; (vii) is incurred to secure the
performance of tenders, bids, leases, statutory obligations, surety and
appeal bonds, government contracts, performance and return-of-money
bonds and other similar obligations incurred in the ordinary course of
business; (viii) is in favor of the federal government of the United States or
the government of any state in the United States with respect to the Issuer
and its Subsidiaries, or the government of the Federal Republic of Germany
or any member state of the European Union or any other government with
respect to the Guarantor's Subsidiaries (other than the Issuer), or any
instrumentality of any of them, securing obligations of the Issuer, the
Guarantor, or any Subsidiary under any contracts or payments owed to any
such entity, when the law requires that such obligations be so secured; (ix)
secures taxes or assessments or other governmental charges, which, if
overdue, are being contested diligently and in good faith; (x) was created
on any Property to secure Indebtedness incurred in connection with the
financing of such Property, the repayment of which is to be made from
revenues arising out of, or other proceeds of realization from, such
Property, with recourse to those revenues and proceeds and other Property
used in connection with or forming the subject matter of such Property, but
without recourse to the Issuer, the Guarantor or any of their Subsidiaries;
(xi) secures Indebtedness in respect of interest rate agreement obligations
or currency agreement obligations entered into to protect against
fluctuations in interest rates or currency exchange rates and not for
speculative reasons; (xii) constitutes an extension, renewal or replacement
of any Lien referred to above, for amounts not exceeding the principal
amount of the borrowed money secured by such Liens, provided that the
extension, renewal or replacement is limited to the same Property that
secured the original Lien (plus improvements on the property); or (xiii) is
in the favor of the Issuer or the Guarantor or a Subsidiary of either of them.
The Issuer, the Guarantor or any Subsidiary may also create or
allow Liens over any Property so long as the aggregate amount of
Indebtedness for borrowed money secured by all Liens (excluding the
amount of the indebtedness secured by the Liens described above) and the
aggregate Attributable Debt (as defined below) of all Sale and Leaseback
Transactions (as defined below) does not exceed 15% of the Consolidated
Net Tangible Assets (as defined below) of the Guarantor.
(c) Limitations on Sale and Leaseback Transactions. For so
long as any Notes remain outstanding, the Issuer and the Guarantor will
not, and will not permit any Subsidiary to, enter into any arrangement
providing for the leasing for a period of more than three years, of any
Property which has been owned by the Issuer, the Guarantor or such
Subsidiary for more than 180 days and which has been or is to be
transferred by the Issuer, the Guarantor or such Subsidiary to a buyer/lessor
that is not the Issuer, the Guarantor or a Subsidiary of either of them (a
"Sale and Leaseback Transaction") unless:
(i) the Issuer, the Guarantor or such Subsidiary would be
entitled to create indebtedness secured by a Lien (pursuant the
provisions of Section 5(b) herein) on the Property to be leased back
in an amount equal to the Attributable Debt of the Sale and
Leaseback Transaction without equally and ratably securing the
Notes; or
(ii) within 180 days after the consummation of the Sale and
Leaseback Transaction, the Issuer, the Guarantor or such
Subsidiary, as applicable, spends for any Property, including any
capital improvements, an amount equal to: (x) the greater of: (1) the
net proceeds that the Issuer receives from the Sale and Leaseback
Transaction, and (2) the fair market value of the property at the time
of the transaction, as determined in good faith by the board of
directors of the Issuer, the Guarantor or such Subsidiary, as
applicable (such greater amount referred to here as the "net
proceeds"); or (y) a part of the net proceeds, and the Issuer, the
Guarantor or such Subsidiary elect to apply the balance of the net
proceeds in the manner described in the following clause (iii); or
(iii) within 180 days after the consummation of any Sale and
Leaseback Transaction, the Issuer, the Guarantor or such
Subsidiary, as applicable, applies an amount equal to the net
proceeds (less any amount spent pursuant to Section 5(c)(ii) herein)
to the retirement or repayment of Indebtedness (as defined below)
of the Issuer, the Guarantor, or such Subsidiary. No retirement
referred to in this clause may be effected by payment at maturity or
pursuant to any mandatory sinking fund or prepayment provision
(unless the repayment is required because of the receipt of the net
proceeds).
(d) For the purpose of Sections 5(b) and (c) above, the
following terms shall have the following respective meanings:
"Attributable Debt" means, as to any lease in respect of a Sale and
Leaseback Transaction, as of the date of determination, the lesser of (a) the
fair value of the property subject to the Sale and Leaseback Transaction (as
determined in good faith by the Board of Directors of the Issuer or the
Guarantor, as applicable), and (b) the present value, discounted at the rate
of interest set forth or implicit in the terms of the lease (or, if this rate
ofinterest is not practicable to determine, the weighted average annual
interest rate borne by the Notes) compounded semi-annually, of the total
amount of rent required to be paid under the lease during the remaining term of
the lease, including any period for which the lease has been extended. For the
purposes of clause (b) of this definition, rental payments will not include
amounts payable by or on behalf of the lessee on account of maintenance
and repairs, insurance, taxes, assessments, water rates and similar charges.
"Consolidated Net Tangible Assets" means the total of all assets
reflected on a consolidated balance sheet of the Guarantor and its
consolidated subsidiaries prepared in accordance with International
Accounting Standards ("IAS") at their net book values (after deducting
related depreciation, depletion, amortization and all other valuation
reserves which, in accordance with IAS, should be set aside in connection
with the business conducted), but excluding goodwill and all other like
intangible assets, less the aggregate of the current liabilities of the
Guarantor and its consolidated subsidiaries, all as determined in accordance
with IAS. For purposes of this definition, "current liabilities" include all
indebtedness for money borrowed, incurred, issued, assumed or guaranteed
by the Guarantor and its consolidated subsidiaries, and other payables and
accruals, in each case payable on demand or due within one year of the date
of determination of Consolidated Net Tangible Assets, but shall exclude
any portion of long-term debt maturing within one year of the date of such
determination, all as reflected on such consolidated balance sheet of the
Guarantor and its consolidated subsidiaries prepared in accordance with
IAS.
"Indebtedness" means any indebtedness for borrowed money in the
form of bonds, notes, debentures or other similar evidence of indebtedness
which by its terms or by the terms of any instrument or agreement relating
to such indebtedness matures, or which is otherwise payable or unpaid,
more than one year from, or is directly or indirectly renewable or
extendible at the option of the debtor to a date more than one year from the
date of creation thereof.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political
subdivision thereof or any other entity.
"Property" means (a) any and all land, buildings, fixtures,
machinery, equipment and other tangible assets owned by the Issuer, the
Guarantor or any Subsidiary, and any and all leasehold interests of the
Issuer, the Guarantor or any Subsidiary in any of the foregoing to the extent
any are leased by the Issuer, and any and all leasehold improvements in
respect of the foregoing; and (b) any shares of Subsidiaries that are owned
by the Issuer or the Guarantor.
"Subsidiary" means any corporation of which the outstanding
voting equity interests having at least a majority of the votes entitled to be
cast in the election of directors will at the time be owned directly or
indirectly by the Issuer or the Guarantor, or any other person of which at
least a majority of voting equity interests are at the time directly or
indirectly owned by the Issuer or the Guarantor.
(e) Defeasance. The Issuer or the Guarantor, as applicable, may
discharge its respective obligation to comply with the covenants specified
in Section 5 herein by irrevocably depositing funds or obligations issued by
the United States in an amount sufficient to provide for the timely payment
of principal, premium, if any, interest and all other amounts due under the
Notes with the Fiscal and Principal Paying Agent, acting as trustee for such
purposes, provided that (i) such deposit will not result in a breach or
violation of, or constitute a default under the Notes or any other agreement
or instrument of which the Issuer or the Guarantor is a party or by which it
is bound; (ii) no Event of Default or event which with the giving of notice
or lapse of time would be reasonably expected to become an Event of
Default with respect to the Notes shall have occurred and be continuing on
the date of such deposit; (iii) in the event that, on the date of such deposit,
all Notes then outstanding are not due and payable, or have not been called
for redemption, within one year, the Issuer has delivered to the Fiscal and
Principal Paying Agent an opinion of independent tax counsel of
recognized standing to the effect that Holders of the Notes will not
recognize income, gain or loss for United States Federal income tax
purposes as a result of such deposit and defeasance of certain obligations
and will be subject to United States Federal income tax on the same amount
and in the same manner and at the same times as would have been the case
if such deposit and defeasance had not occurred; and (iv) the Issuer has
delivered to the Fiscal and Principal Paying Agent an officer's certificate
and an opinion of independent counsel of recognized standing, each stating
that all the conditions precedent herein provided for relating to the
defeasance contemplated by this paragraph 5(d) have been complied with.
6. Replacement, Exchange and Transfer of Notes. (a) In case
any Note shall become mutilated, destroyed, lost or stolen, the Issuer may
execute, and, upon the request of the Issuer, the Fiscal and Principal Paying
Agent shall authenticate and deliver, a new Note and bearing a number not
contemporaneously outstanding, in exchange and substitution for the
mutilated or defaced Note or in lieu of and in substitution for the destroyed,
lost or stolen Note. In every case the applicant for a substitute Note shall
furnish to the Issuer and to the Paying Agents such security or indemnity as
may be required by them to indemnify and defend and to save each of them
and any agent of the Issuer or the Paying Agents harmless and, in every
case of destruction, loss or theft evidence to their satisfaction of the
destruction, loss or theft of such Note and of the ownership thereof. Upon
the issuance of any substitute Note, the Issuer may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Registrar or Transfer Agents) connected therewith.
(b) Upon the terms and subject to the conditions set forth in the
Fiscal Agency Agreement, and subject to paragraph 6(e) hereof, a Note or
Notes may be exchanged for an equal aggregate principal amount of Notes
in different Authorized Denominations by surrender of such Note or Notes
to any Transfer Agent or at the office of any other agent of the Issuer
designated for such purpose, duly endorsed or accompanied by a proper
instrument of assignment and transfer, together with a written request for
the exchange.
(c) Upon the terms and subject to the conditions set forth in the
Fiscal Agency Agreement, and subject to paragraph 6(e) hereof, a Note
may be transferred in whole or in part (in the amount of U.S.$250,000 or
any multiple of $1,000 in excess thereof) by the Holder or Holders
surrendering the Note for registration of transfer at the office of any
Transfer Agent or at the office of any other agent of the Issuer designated
for such purpose, duly endorsed or accompanied by an executed instrument
of assignment and transfer.
(d) The costs and expenses of effecting any exchange or
registration of transfer pursuant to the foregoing provisions, except for the
expenses of delivery by other than regular mail (if any) and except for the
payment of a sum sufficient to cover any tax or other governmental charge
or insurance charges that may be imposed in relation thereto, will be borne
by the Issuer.
(e) The Transfer Agents or Registrar may decline to accept any
request for an exchange or registration of transfer during the period of 10
days preceding (i) the due date for any payment of principal of or interest,
if any, on the Notes or (ii) the date on which the Notes are scheduled for
redemption.
7. Modifications and Amendments; Noteholders' Meetings. (a)
Notifications of and amendments to the Fiscal Agency Agreement or to the
terms and conditions of the Notes may be made, and future compliance
therewith or past default by the Issuer or the Guarantor may be waived,
with the consent of the Holders of at least a majority in aggregate principal
amount of the Notes at the time outstanding, or of such lesser percentage as
may act at a meeting of Holders held in accordance with the provisions of
the Fiscal Agency Agreement; provided, that no such modification,
amendment, waiver or consent may, without the consent of the holder of
each Note so affected: (i) change the Stated Maturity of the principal of, or
of any installment of interest on, any Note; (ii) change any Interest Payment
Date; (iii) reduce the principal amount of or interest on any Note or
Additional Amounts payable with respect thereto or reduce the amount
payable in the event of redemption or default; (iv) change the place or
currency of payment of principal of or interest on the Notes or Additional
Amounts payable with respect thereto; (v) change the obligation of the
Issuer or the Guarantor to pay Additional Amounts; (vi) impair the right to
institute suit for enforcement of any such payment on or with respect to the
Notes; or (vii) reduce the above-stated percentage of aggregate principal
amount of Notes outstanding necessary (w) to modify or amend the Fiscal
Agency Agreement or the terms and conditions of the Notes, or (x) to
waive any future compliance or past default, or (y) to reduce the quorum
requirements or the percentage of aggregate principal amount of Notes
outstanding required for the adoption of any action at a Holders meeting or
(z) to reduce the percentage of aggregate principal amount of Notes
outstanding necessary to rescind or annul any declaration of the principal of
and all accrued interest on the Notes to be due and payable.
Any modifications, amendments or waivers to the Fiscal Agency
Agreement or to these terms and conditions will be conclusive and binding
on all Holders of the Notes, whether or not they have given such consent or
were present at such meeting, and on all future Holders of Notes, whether
or not notation of such modifications, amendments or waivers is made upon
the Notes. Any instrument given by or on behalf of any Holder of a Note in
connection with any consent to any such modification, amendment or
waiver will be irrevocable once given and will be conclusive and binding
on all subsequent Holders of such Note.
(b) At a meeting of the Holders of the Notes for the purpose of
approving a modification or amendment to, or obtaining a waiver of, any
covenant or condition set forth in the Notes, persons entitled to vote at least
a majority in aggregate principal amount of the Notes at the time
outstanding shall constitute a quorum. In the absence of a quorum at any
such meeting, the meeting may be adjourned for a period of not less than 10
days; in absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10
days; at the reconvening of any meeting further adjourned for lack of a
quorum, the persons entitled to vote at least 25% in aggregate principal
amount of the Notes at the time outstanding shall constitute a quorum for
the taking of any action set forth in the notice of the original meeting. At a
meeting or an adjourned meeting duly convened and at which a quorum is
present as aforesaid, any resolution to modify or amend, or to waive
compliance with, any of the covenants or conditions referred to above shall
be effectively passed if passed by the persons entitled to vote the lesser of
(i) at least a majority in aggregate principal amount of Notes then
outstanding or (ii) at least 75% in aggregate principal amount of the Notes
represented and voting at the meeting.
8. Non-business Days; Calculation of Interest. (a) In any case
where the date of maturity of the principal of or interest on the Notes or the
date fixed for redemption of the Notes shall be in New York City a
Saturday, Sunday, or a day on which banking institutions are authorized or
obligated by law to close, then payment of principal or interest need not be
made on such date at such place but it may be made on the next succeeding
day which is not, in New York City, a Saturday, Sunday, or a day on which
banking institutions are authorized or obligated by law to close, with the
same force and effect as if made on the date of maturity or the date fixed
for redemption, and no interest shall accrue for the period after such date.
(b) Interest in respect of any period of less than one year shall
be calculated on the basis of a 360-day year of twelve 30-day months.
9. Paying Agents, Transfer Agents and Registrar. In acting
under the Fiscal Agency Agreement and in connection with the Notes, the
Paying Agents, Transfer Agents and the Registrar are acting solely as
agents of the Issuer and do not assume any obligation towards or
relationship of agency or trust for or with the owners or Holders of the
Notes, except that any funds held by any Paying Agent or Registrar for
payment of principal of or interest on the Notes, or Additional Amounts
with respect thereto, shall be held in trust by it for such owners and Holders
and applied as set forth herein, but need not be segregated from other funds
held by it, except as required by law. For a description of the duties and the
immunities and rights of the Paying Agents, Transfer Agents and Registrar
under the Fiscal Agency Agreement, reference is made to the Fiscal
Agency Agreement, and the obligations of the Paying Agents, Transfer
Agents and Registrar to the Holders hereof are subject to such immunities
and rights.
10. Notices. Notices to Holders of Notes will be mailed to them
(or the first named of joint Holders) by first class mail (or, if first class
mail is unavailable, by airmail) at their respective addresses in the
register and deemed to have been given on the fourth weekday after the date
of mailing. Notice of any meeting of Holders, setting forth the time and
place of such meeting and in general terms the action proposed to be taken
at such meeting, shall be mailed to Holders at their registered addresses not
less than 30 nor more than 60 days prior to the date fixed for the meeting.
In addition, so long as the Notes are listed on the Luxembourg Stock
Exchange and the rules of such exchange so require, notice will also be
published in a daily newspaper with general circulation in Luxembourg.
Any such notice will be deemed to have been given on the date of such
publication or if published in such newspapers on different dates, on the
date of the first publication.
11. Governing Law. (a) The Notes shall be construed in
accordance with and governed by the laws of the State of New York.
(b) The Issuer has irrevocably submitted to the non-exclusive
jurisdiction of any New York State or United States Federal court sitting in
the Borough of Manhattan, New York, New York over any suit, action or
proceeding arising out of or relating to the Fiscal Agency Agreement or any
Note. The Issuer has appointed CT Corporation System, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as its agent upon whom process must be
served in any such suit, action or proceeding.
12. Authentication. This Note shall not become valid or
obligatory until the certificate of authentication hereon shall have been duly
signed by the Registrar acting under the Fiscal Agency Agreement.
13. Descriptive Headings. The descriptive headings appearing in
these terms and conditions are for convenience of reference only and shall
not alter, limit or define the provisions hereof.
EXHIBIT B-2
SCHEDULE TO [RULE 144A/REGULATION S] GLOBAL NOTE
Initial Principal Amount
$[Insert initial principal amount]
Date of Decrease/Increase
Decrease in Principal Amount at Maturity
Increase in Principal Amount at Maturity
Total Principal Amount at Maturity Following such Increase/Decrease
Notation Made by or on behalf of Registrar
EXHIBIT C-1
Form of Certificate of Designation and Incumbency
I, ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇, the Secretary of the Board of Directors of Lone Star
Industries, Inc. (the "Issuer"), hereby certify that (A) each officer or
employee of the Issuer listed below is (i) an Authorized Representative of
the Issuer for purposes of the Fiscal Agency Agreement, dated as of
June 5, 2000 (the "Agreement"), among the Issuer, Dyckerhoff AG, as
Guarantor, Bankers Trust Company and Deutsche Bank Luxembourg S.A.; (ii)
duly elected or appointed, qualified and acting as the holder of the respective
office or offices set forth opposite his or her name; (iii) a person upon
whose oral or written instructions the Fiscal and Principal Paying Agent is
authorized to act with respect to the Notes issued under the Agreement;
(iv) in the case of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, the duly authorized person who executed
or will execute the Notes by his manual or facsimile signature; (B) each
signature appearing below is the person's genuine signature; and (C) ▇▇▇▇▇▇▇
▇▇▇▇▇▇ is an Authorized Officer of the Issuer for purposes of the Agreement.
Name Title Signature
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Chief Executive Officer _______________________
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ General Counsel & Secretary___________________
_______________________ _______________________
_______________________
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated:
_______________________________
Secretary of the Board of Directors
EXHIBIT C-2
Form of Certificate of Designation and Incumbency
I, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Member, Board of Management and I, ▇▇▇ ▇▇▇▇▇▇▇, Senior
General Manager of Dyckerhoff AG (the "Guarantor"), hereby certify that (A)
each officer or employee of the Guarantor listed below is (i) an Authorized
Representative of the Guarantor for purposes of the Fiscal Agency Agreement,
dated as of June 5, 2000 (the "Agreement"), among Lone Star Industries, Inc.,
as Issuer, the Guarantor, Bankers Trust Company and Deutsche Bank
Luxembourg S.A.; (ii) duly elected or appointed, qualified and acting as the
holder of the respective office or offices set forth opposite his or her
name; (iii) a person upon whose oral or written instructions the Fiscal and
Principal Paying Agent is authorized to act with respect to the Guarantee issued
under the Agreement; (iv) in the case of ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇, the
duly authorized person who executed or will execute the Guarantee by his manual
or facsimile signature; (B) each signature appearing below is the person's
genuine signature; and (C) ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇ are Authorized
Officers of the Guarantor for purposes of the Agreement.
Name Title Signature
▇▇▇▇▇ ▇▇▇▇▇▇▇ Chief Financial Officer _______________________
▇▇▇▇ ▇▇▇▇▇ Group Treasurer _______________________
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated:
______________________________________________
Secretary of the [Board of Managers/Supervisory Board]
EXHIBIT D
FORM OF TRANSFER CERTIFICATE
FOR TRANSFER FROM RULE 144A GLOBAL
NOTE TO REGULATION S GLOBAL NOTE
Bankers Trust Company
as Fiscal and Principal Paying Agent and Registrar
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Lone Star Industries, Inc. 91/4% Notes due 2010, Guaranteed
by Dyckerhoff AG
Reference is hereby made to the Fiscal and Paying Agency
Agreement, dated as of June 5, 2000 (the "Agreement"), among Lone Star
Industries, Inc. (the "Issuer"), Dyckerhoff AG, as Guarantor, Bankers Trust
Company, as Fiscal and Principal Paying Agent, Transfer Agent and
Registrar and Deutsche Bank Luxembourg S. A., as Paying Agent and
Transfer Agent, relating to the Notes which constitute unsecured, general
obligations of the Issuer. Capitalized terms used but not defined herein
shall have the meanings given to them in the Agreement.
This letter relates to ______________ principal amount of
Notes which are evidenced by one or more Rule 144A Global Notes
(CUSIP No.▇▇▇▇▇▇▇▇▇) sold in reliance on Rule 144A under the U.S.
Securities Act of 1933, as amended (the "Securities Act"), held by a
nominee of DTC for the benefit of direct and indirect participants in DTC
including [insert name of transferor] (the "Transferor"). The Transferor has
requested a transfer of such beneficial interest in Notes to [insert name of
transferee] (the "Transferee") that will take delivery thereof in the form of
an equal principal amount of Notes evidenced by one or more Regulation S
Global Notes (CUSIP No. ▇▇▇▇▇▇▇▇▇) sold in reliance on Regulation S
under the Securities Act.
In connection with such request and in respect of such
Notes, the Transferee does hereby represent and agree:
1. It is purchasing the Notes for its own account or an account
with respect to which it exercises sole investment discretion and it and
any such account is a foreign purchaser that is outside the United States
(or a foreign purchaser that is a dealer or other fiduciary).
2. It acknowledges that the Notes have not been registered
under the Securities Act, or with any securities regulatory authority of
any jurisdiction, and may not be offered or sold within the United States
except as set forth below.
3. It understands and agrees that the Notes being transferred
were initially offered in the United States to a "qualified institutional
buyer" ("QIB") as defined in Rule 144A under the Securities Act and
are represented by one or more Rule 144A Global Notes, and that the
Notes are being transferred outside the United States in reliance on
Regulation S under the Securities Act and will be represented by one or
more global notes.
4. It shall not resell or otherwise transfer any of such Notes
except (A) to the Issuer, the Guarantor or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated, Deutsche Bank Securities Inc., Dresdner Bank AG
London Branch or with any other placement agent as may be appointed
by the Issuer with respect to such Notes (each a "Placement Agent" and
collectively, the "Placement Agents") or by, through, or in a transaction
approved by a Placement Agent, (B) within the United States to a QIB in
a transaction complying with Rule 144A under the Securities Act, (C)
within the United States to an "institutional accredited investor" within
the meaning of Rule 501(a)(1), (2), (3) or (7) acquiring the Notes for
investment purposes and not for distribution in violation of the
Securities Act, (D) pursuant to the exemption from registration provided
by Rule 144 under the Securities Act (if available), or (E) pursuant to an
effective registration statement under the Securities Act.
5. It agrees that it will give to each person to whom it transfers
any of such Notes notice of any restrictions on transfer of such Notes.
6. It acknowledges that prior to any proposed transfer of Notes
(other than pursuant to an effective registration statement) the holder of
such Notes may be required to provide certifications relating to the
manner of such transfer as provided in the Agreement.
7. It acknowledges that the Registrar and Transfer Agent for
the Notes will not be required to accept for registration transfer of any
Notes acquired by it, except upon presentation of evidence satisfactory
to the Registrar and Transfer Agent that the restrictions set forth herein
have been complied with.
8. It acknowledges that the Issuer, the Guarantor, the
Placement Agents and others will rely upon the truth and accuracy of the
foregoing acknowledgements, representations and agreements and
agrees that if any of the acknowledgements, representations or
agreements deemed to have been made by its purchase of the Notes are
no longer accurate, it shall promptly notify the Issuer, the Guarantor and
the Placement Agents. If it is acquiring the Notes as a fiduciary or agent
for one or more investor accounts, it represents that it has sole
investment discretion with respect to each such account and it has full
power to make the foregoing acknowledgements, representations, and
agreements on behalf of each account.
9. It acknowledges that until the 40th day after the closing date
for the offering of the Notes and the completion of the distribution of the
Notes represented by Regulation S Global Notes sold in reliance on
Regulation S under the Securities Act, interests in such international
global notes may only be held through ▇▇▇▇▇▇ Guaranty Trust
Company of New York, Brussels Office, as operator of the Euroclear
system, or Clearstream.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Issuer, the Guarantor and the Placement
Agents, if any, of the Notes being transferred.
[insert Name of Transferee]
By:
________________________
Name:
Title:
Dated: _______________________
cc: Lone Star Industries, Inc.
Dyckerhoff AG