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EXHIBIT 4.1
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LAFARGE CORPORATION
and
CITIBANK, N.A.,
as Trustee
---------------------
Supplemental Indenture
relating to
$650,000,000
____% Senior Notes Due ____
Dated as of ______ __, 1998
---------------------
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SUPPLEMENTAL INDENTURE, dated as of ____ __, 1998 relating to
the Senior Notes referred to below (herein called the "Supplemental Indenture"),
between LAFARGE CORPORATION, a corporation duly organized and existing under the
laws of the State of Maryland (hereinafter called the "Company"), and CITIBANK,
N.A., a national banking association incorporated and existing under the laws of
the United States, as Trustee under the Original Indenture referred to below
(hereinafter called the "Trustee").
WITNESSETH:
WHEREAS, the Company has heretofore executed and delivered to
the Trustee an indenture dated as of October 1, 1989 (hereinafter called the
"Original Indenture"), to provide for the issuance from time to time of its
unsecured and unsubordinated debt securities (hereinafter called the
"Securities"), the form and terms of which are to be established as set forth in
Sections 201 and 301 of the Original Indenture; and
WHEREAS, Section 901 of the Original Indenture provides, among
other things, that the Company and the Trustee may enter into indentures
supplemental to the Original Indenture for, among other things, the purpose of
establishing the form and terms of the Securities of any series as permitted in
Sections 201 and 301 of the Original Indenture and otherwise amending the
Original Indenture in a manner not prejudicial to the interests of the Holders
of the Securities of any series; and
WHEREAS, the Company desires to create a series of the
Securities in an aggregate principal amount of $650,000,000 of ____% Senior
Notes due ____ (the "Senior Notes"), and all action on the part of the Company
necessary to authorize the issuance of the Senior Notes under the Original
Indenture and this Supplemental Indenture has been duly taken; and
WHEREAS, all acts and things necessary to make the Senior
Notes when executed by the Company and authenticated and delivered by the
Trustee as in the Original Indenture provided, the valid and binding obligations
of the Company and to constitute these presents a valid and binding supplemental
indenture and agreement according to its terms, have been done and performed;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
That in consideration of the premises and of the acceptance
and purchase of the Senior Notes by the holders thereof, and of the acceptance
of this trust by the Trustee, the Company covenants and agrees with the Trustee,
for the equal benefit of holders of the Senior Notes, as follows:
ARTICLE ONE
DEFINITIONS
The use of the terms and expressions herein is in accordance
with the definitions, uses and constructions contained in the Original Indenture
and the form of Senior Note attached hereto as Exhibit A.
ARTICLE TWO
TERMS AND ISSUANCE OF THE SENIOR NOTES
Section 201 Issue of Senior Notes. A series of Securities which shall be
designated as the "___% Senior Notes due ____" shall be executed, authenticated
and delivered in accordance with the provisions of, and shall in all respects be
subject to, the terms, conditions and covenants of the Original Indenture and
this Supplemental Indenture (including the form of Senior Note set forth in
Exhibit A hereto). The aggregate principal amount of Senior Notes created hereby
which may be authenticated and delivered under this Supplemental Indenture shall
not, except as permitted by the provisions of the Original Indenture, exceed
$650,000,000.
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Section 202. Form of the Senior Notes; Incorporation of Terms. The form of
the Senior Notes shall be substantially in the form of Exhibit A attached
hereto, the terms of which are herein incorporated by reference and which are
part of this Supplemental Indenture.
Section 203. Place of Payment. The Place of Payment will be initially the
Corporate Trust Office of the Trustee in New York City which, as of the date
hereof, is located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
ARTICLE THREE
AMENDMENT OF ORIGINAL INDENTURE
Section 301. Amendment to Reconciliation and tie between Trust Indenture
Act of 1939 and Original Indenture. The Reconciliation and tie between the Trust
Indenture Act of 1939 (hereinafter referred to as the "TIA") and the Original
Indenture is hereby amended as set forth in Exhibit B hereto.
Section 302. Amendment to Section 401(3). Section 401(3) of the Original
Indenture is hereby amended in relation to the Senior Notes by adding the
following to the last sentence thereof, immediately following "have been
complied with" but before the end of the sentence: "and if Section 401(1)(B)(ii)
or Section 401(1)(B)(iii) applies, an Opinion of Counsel meeting the
requirements of Section 403(4)(A) relating to the discharge"
Section 303. Amendment to Section 403(4)(A). Section 403(4)(A) is hereby
deleted in its entirety in relation to the Senior Notes and shall be replaced by
the following provision:
"(A) an opinion of counsel based on a change in law occurring
after the issue dates of the Senior Notes or a private letter ruling
from the United States Internal Revenue Service addressed to the
Company to the effect that the Holders of the Securities will not
recognize income, gain or loss for Federal income tax purposes as a
result of such deposit and discharge and will be subject to Federal
income tax in the same amount and in the same manner and at the same
times as would have been the case if such deposit and discharge had not
occurred; and"
Section 304. Amendment to Section 608. Section 608 of the Original
Indenture is hereby deleted in its entirety in relation to the Senior Notes and
shall be replaced by the following provision:
"The Trustee for the Debt Securities of any series issued
hereunder shall be subject to the provisions of Section 310(b) of the
Trust Indenture Act during the period of time provided for therein. If
the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate
such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this
Indenture. Nothing herein shall prevent the Trustee from filing with
the Commission the application referred to in the second to last
paragraph of Section 310(b) of the Trust Indenture Act."
Section 305. Amendment to Section 613. Section 613 of the Original
Indenture is hereby amended in relation to the Senior Notes by deleting all
references to the "four" month period prior to or subsequent to a default and
shortening such time period to "three" months every place it appears in Section
613 but only in Section 613.
Section 306. Amendment to Section 703(a). Section 703(a) of the Original
Indenture is hereby deleted in its entirety in relation to the Senior Notes and
replaced with the following provision:
"Within 60 days after the first May 15 which occurs not less than 60
days following the first date of issuance of Securities of any series
under this Indenture and within 60 days after May 15 in every year
thereafter, the Trustee shall transmit by mail to all Holders, as their
names and addresses appear in the Security Register, dated as of such
May 15, such reports concerning the Trustee and its actions under this
Indenture as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant thereto."
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Section 307. Amendment to Section 704(4). Section 704(4) of the Original
Indenture is hereby deleted in its entirety in relation to the Senior Notes and
replaced with the following provision:
"(4) deliver to the Trustee within 120 days after the end of each
fiscal year of the Company a brief certificate from the principal
executive, financial or accounting officer of the Company as to his or
her knowledge, after due inquiry, of the Company's compliance with all
conditions and covenants under the Indenture (such compliance to be
determined without regard to any period of grace or requirement of
notice provided under the Indenture)."
ARTICLE FOUR
MISCELLANEOUS
Section 401. Execution as Supplemental Indenture. This Supplemental
Indenture is executed and shall be construed as an indenture supplemental to the
Original Indenture and, as provided in the Original Indenture, this Supplemental
Indenture forms a part thereof in respect of the Senior Notes.
Section 402. Conflict with Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with another provision hereof which is required
to be included in this Supplemental Indenture by any of the provisions of the
Trust Indenture Act, such required provision shall control.
Section 403. Effect of Headings. The Article and Section headings herein
are for convenience only and shall not affect the construction hereof.
Section 404. Successors and Assigns. All covenants and agreements by the
Company in this Supplemental Indenture shall bind its successors and assigns,
whether so expressed or not.
Section 405. Separability Clause. In case any provision in this
Supplemental Indenture or in the Senior Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 406. Benefits of Supplemental Indenture. Nothing in this
Supplemental Indenture or in the Senior Notes, express or implied, shall give to
any person, other than the parties hereto and their successors hereunder and the
Holders of Senior Notes, any benefit or any legal or equitable right, remedy or
claim under this Supplemental Indenture.
Section 407. Governing Law. This Supplemental Indenture and each Senior
Note shall be governed by and construed in accordance with the laws of the State
of New York.
Section 408. Execution and Counterparts. This Supplemental Indenture may be
executed in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the day and year first
above written.
LAFARGE CORPORATION
[Seal] By
------------------------------------
Name:
Title:
Attest:
--------------------------------
Name:
Title:
CITIBANK, N.A., as Trustee
By
------------------------------------
Name:
Title:
0
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the [____] day of [____________], 1998, before me
personally came [___________], to me known, who, being by me duly sworn, did
depose and say that [he/she] is a [__________] of Lafarge Corporation, one of
the corporations described in and which executed the foregoing instrument; and
that [he/she] signed [his/her] name thereto by like authority.
-------------------------------------------
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the [____] day of [____________], 1998, before me
personally came [___________], to me known, who, being by me duly sworn, did
depose and say that [he/she] is a [__________] of Citibank, N.A., one of the
corporations described in and which executed the foregoing instrument; and that
[he/she] signed [his/her] name thereto by like authority.
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EXHIBIT A
[Form of Face of Security]
This Security is a Book-Entry Security within the meaning of
the Indenture hereinafter referred to and is registered in the name of a
Depositary or a nominee of a Depositary. This Security is exchangeable for
Securities registered in the name of a person other than the Depositary or its
nominee only in the limited circumstances described in the Indenture, and no
transfer of this Security (other than a transfer of this Security as a whole by
the Depositary to a nominee of the Depositary or by a nominee of the Depositary
to the Depositary or another nominee of the Depositary) may be registered except
in limited circumstances.
Unless this Note 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 definitive
Note is issued 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.
LAFARGE CORPORATION
___% Senior Note due ____
No. __________ $__________
Lafarge Corporation, a corporation duly organized and existing
under the laws of the State of Maryland (herein called the "Company", which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to
___________________________________, or registered assigns, the principal sum of
________________________ Dollars on _________________________________, and to
pay interest thereon from ________, or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semi-annually on
____________ and ___________ in each year, commencing ________, at the rate per
annum provided in the title hereof, until the principal hereof is paid or made
available for payment. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the _______ or ________ (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture.
As used herein, "Business Day" and "Special Record Date" with respect to any
Interest Payment Date shall be as defined in the Indenture.
Payment of the principal of (and premium, if any) and interest
on this Security will be made at the office or agency of the Company maintained
for that purpose in The City of New York, in such coin or currency of the United
States of America as at the time of payment is legal tender for the payment of
public and private debts; provided, however, that at the option of the Company
payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
LAFARGE CORPORATION
[Seal] By
-------------------------------------
Name:
Title:
Attest:
--------------------------------
Name:
Title:
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[Form of Reverse of Security]
LAFARGE CORPORATION
___% Senior Note due ____
This Security is one of a duly authorized issue of securities
of the Company (herein called the "Securities"), issued and to be issued in one
or more series under an Indenture, dated as of October 1, 1989 as supplemented
by the Supplemental Indenture dated as of ________, 1998 (herein called the
"Indenture"), between the Company and Citibank, N.A., as Trustee (herein called
the "Trustee", which term includes any successor trustee under the Indenture),
to which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof, limited in aggregate principal amount to $________.
These Securities will be redeemable, in whole or in part, at
the option of the Company, on any date (a "Redemption Date") at a redemption
price equal to the greater of (a) 100% of their principal amount of the
Securities to be redeemed and (b) the sum of the present values of the remaining
scheduled payments of principal and interest thereon (exclusive of interest
accrued to such Redemption Date) discounted to such Redemption Date on a
semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at
the Treasury Rate plus [__] basis points, plus accrued and unpaid interest on
the principal amount being redeemed to such Redemption Date; provided, however,
that installments of interest on Securities that are due and payable on an
Interest Payment Date falling on or prior to the relevant Redemption Date shall
be payable to the holders of such Securities, registered as such at the close of
business on the relevant Record Date according to their terms and provisions of
the Indenture.
"Treasury Rate" means, with respect to any Redemption Date for
the Securities, (a) the yield, under the heading that represents the average for
the immediately preceding week, appearing in the most recently published
statistical release designated "H.15(519)" or any successor publication that is
published weekly by the Board of Governors of the Federal Reserve System and
that establishes yields on actively traded United States Treasury securities
adjusted to constant maturity under the caption "Treasury Constant Maturities"
for the maturity corresponding to the Comparable Treasury Issue (if no maturity
is within three months before or after the Maturity Date, yields for the two
published maturities most closely corresponding to the Comparable Treasury Issue
shall be determined and the Treasury Rate shall be interpolated or extrapolated
from such yields on a straight-line basis, rounding to the nearest month) or (b)
if such release (or any successor release) is not published during the week
preceding the calculation date or does not contain such yields, the rate per
annum equal to the semi-annual equivalent yield to maturity of the Comparable
Treasury Issue, calculated using a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Redemption Date. The Treasury Rate shall be calculated
on the third Business Day preceding the Redemption Date.
"Comparable Treasury Issue" means, the United States Treasury
security selected by the Independent Investment Banker as having a maturity
comparable to the remaining term of the Securities to be redeemed that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of the Securities.
"Independent Investment Banker" means Xxxxxxxxx, Xxxxxx &
Xxxxxxxx Securities Corporation, Warburg Dillon Read LLC or Citicorp Securities,
Inc. or, if such firms are unwilling or unable to select the Comparable Treasury
Issue, an independent investment banking institution of national standing
appointed by the Company.
"Comparable Treasury Price" means, with respect to any
Redemption Date, (a) the average of four Reference Treasury Dealer Quotations
for such Redemption Date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (b) if the Trustee obtains fewer than four such
Reference Treasury Dealer Quotations, the average of all such Quotations.
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"Reference Treasury Dealer" means each of Xxxxxxxxx, Xxxxxx &
Xxxxxxxx Securities Corporation, Warburg Dillon Read LLC or Citicorp Securities,
Inc. and their respective successors; provided however, that if any of the
foregoing shall cease to be a primary U.S. Government securities dealer in New
York City (a "Primary Treasury Dealer"), the Company will substitute therefor
another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to
the Reference Treasury Dealer and any Redemption Date, the average, as
determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m.,
New York City time, on the third Business Day preceding such Redemption Date.
Notice of any redemption by the Company will be mailed at
least 30 days but not more than 60 days before any Redemption Date to each
holder of Securities to be redeemed. If less than all the Securities are to be
redeemed at the option of the Company, the Trustee shall select, in such manner
as it shall deem fair and appropriate, the Securities to be redeemed in whole or
in part.
Unless the Company defaults in payment of the redemption
price, on and after any Redemption Date interest will cease to accrue on the
Securities or portions thereof called for redemption.
Interest payments for this Security shall be computed and paid
on the basis of a 360-day year of twelve 30-day months.
The Indenture contains provisions for defeasance of (a) the
entire indebtedness of this Security and (b) certain restrictive covenants, upon
compliance by the Company with certain conditions set forth therein.
If an Event of Default with respect to Securities of this
series shall occur and be continuing, the principal of the Securities of this
series may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in aggregate principal amount of the
Securities at the time Outstanding of all series to be affected (voting as a
class). The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such series,
to waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest, if any, on this Security at the times, place and
rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registrable in
the Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in any place where the principal
of (and premium, if any) and interest, if any, on this Security are payable,
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Securities of this series are issuable only in registered
form without coupons in denominations of $1,000 and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations therein
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set forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
This Security shall be governed by and construed in accordance
with the laws of the State of New York.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
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[Form of Trustee's Certificate of Authentication]
This is one of the Securities of the series designated herein
and referred to in the within-mentioned Indenture.
CITIBANK, N.A.
By
------------------------------------------
Name:
Title:
Date:
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EXHIBIT B
LAFARGE CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of October 1, 1989
Trust Indenture
Act Section Indenture Section
---------------- -----------------
ss.310 (a)(1) ...................................................................... 609
(a)(2) ...................................................................... 609
(a)(3) ...................................................................... Not Applicable
(a)(4) ...................................................................... Not Applicable
(b) ...................................................................... 608
610
ss.311 (a) ...................................................................... 613(a)
(b) ...................................................................... 613(b)
(b)(2) ...................................................................... 703(a)(2)
703(b)
ss.312 (a) ...................................................................... 701
702(a)
(b) ...................................................................... 702(b)
(c) ...................................................................... 702(c)
ss.313 (a) ...................................................................... 703(a)
(b)(1) ...................................................................... Not Applicable
(b)(2) ...................................................................... 703(b)
(c) ...................................................................... 703(a), 703(b)
(d) ...................................................................... 703(c)
ss.314 (a) ...................................................................... 704
(b) ...................................................................... Not Applicable
(c)(1) ...................................................................... 102
(c)(2) ...................................................................... 102
(c)(3) ...................................................................... Not Applicable
(d) ...................................................................... Not Applicable
(e) ...................................................................... 102
ss.315 (a) ...................................................................... 601(a)
(b) ...................................................................... 602
703(a)(6)
(c) ...................................................................... 601(b)
(d) ...................................................................... 601(c)
(d)(1) ...................................................................... 601(a)(1)
(d)(2) ...................................................................... 601(c)(2)
(d)(3) ...................................................................... 601(c)(3)
(e) ...................................................................... 514
ss.316 (a)(1)(A) ...................................................................... 502
512
(a)(1)(B) ...................................................................... 513
(a)(2) ...................................................................... Not Applicable
(b) ...................................................................... 508
(c) ...................................................................... Not Applicable
ss.317 (a)(1) ...................................................................... 503
(a)(2) ...................................................................... 504
(b) ...................................................................... 1003
ss.318 (a) ...................................................................... 108
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NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
