EXHIBIT 4.6
FORM OF EXCHANGE NOTE
[Include the following legend for Global Notes only:
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 SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
THIS SECURITY IS A GLOBAL SECURITY AS REFERRED TO IN THE INDENTURE HEREINAFTER
REFERENCED. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE
INDIVIDUAL SECURITIES REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE
TRANSFERRED EXCEPT 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 OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR
A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.]
CUSIP [ ]
No. [ ] **$ **
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TEXAS INDUSTRIES, INC.
10 1/4% Senior Notes due 2011
Issue Date:
Texas Industries, Inc., a Delaware corporation (the "Company", which
term includes any successor under this Indenture hereinafter referred to), for
value received, promises to pay to CEDE & CO., or its registered assigns, the
principal sum of [Amount of Note] ($_______) on June 15, 2011.
Interest Payment Dates: June 15 and December 15, commencing December 15, 2003.
Record Dates: June 1 and December 1.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed manually or by
facsimile by its duly authorized officers.
TEXAS INDUSTRIES, INC.
By:
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Name:
Title:
By:
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Name:
Title:
(Trustee's Certificate of Authentication)
This is one of the 10 1/4% Senior Notes due 2011 described in the
within-mentioned Indenture.
Dated: [ ]
WELLS FARGO, NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
Authorized Signatory
[Reverse Side of Note]
TEXAS INDUSTRIES, INC.
10 1/4% Senior Notes due 2011
Capitalized terms used herein shall have the meanings assigned to them
in this Indenture referred to below unless otherwise indicated.
1. Interest. The Company promises to pay interest on the principal
amount of this Note at 10 1/4% per annum from the date hereof until maturity and
shall pay the Liquidated Damages, if any, payable pursuant to Section 5 of the
Registration Rights Agreement referred to below. The Company shall pay interest
and Liquidated Damages, if any, semi-annually in arrears on June 15 and December
15 of each year, or if any such day is not a Business Day, on the next
succeeding Business Day (each an "Interest Payment Date"). Interest on the Notes
shall accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from the date of original issuance; provided that if
there is no existing Default in the payment of interest, and if this Note is
authenticated between a record date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; provided further that the first Interest
Payment Date shall be December 15, 2003. The Company shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue principal and premium, if any, from time to time on demand at a rate
that is 1% per annum in excess of the rate then in effect; it shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest and Liquidated Damages (without regard to any
applicable grace periods) from time to time on demand at the same rate to the
extent lawful. Interest shall be computed on the basis of a 360-day year of
twelve 30-day months.
2. Method of Payment. The Company shall pay interest on the Notes
(except defaulted interest) and Liquidated Damages, if any, to the Persons who
are registered Holders of Notes at the close of business on the record date
immediately preceding the Interest Payment Date, even if such Notes are canceled
after such record date and on or before such Interest Payment Date, except as
provided in Section 2.13 of the Indenture with respect to defaulted interest.
The Notes shall be payable as to principal, premium and Liquidated Damages, if
any, and interest at the office or agency of the Company maintained for such
purpose in The City of New York, or, at the option of the Company, payment of
interest and Liquidated Damages, if any, may be made by check mailed to the
Holders at their addresses set forth in the register of Holders, and provided
that payment by wire transfer of immediately available funds shall be required
with respect to principal of and interest, premium and Liquidated Damages, if
any, on, all Global Notes and to any Holder of $1.0 million or more of Notes
which shall have provided wire transfer instructions to the Company or the
Paying Agent. Such payment shall be in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts.
3. Paying Agent and Registrar. Initially, the Trustee under the
Indenture shall act as Paying Agent and Registrar. The Company may change any
Paying Agent or Registrar without notice to any Holder. The Company or any of
its Subsidiaries may act in any such capacity.
4. Indenture. The Company issued the Notes under an Indenture dated as
of June 6, 2003 ("Indenture") among the Company, the Guarantors and the Trustee.
The terms of the Notes include those stated in the Indenture and those made part
of the Indenture by reference to the Trust Indenture Act of 1939, as amended.
The Notes are subject to all such terms, and Holders are referred to the
Indenture and such Act for a statement of such terms. To the extent any
provision of this Note conflicts with the express provisions of the Indenture,
the provisions of the Indenture shall govern and be controlling. The Indenture
pursuant to which this Note is issued provides that an unlimited aggregate
principal amount of Additional Notes may be issued thereunder.
5. Optional Redemption. (a) Except as set forth in paragraph 5(b)
below, the Company shall not have the option to redeem any Notes prior to June
15, 2007. Thereafter, the Company shall have the option to redeem the Notes, in
whole or in part, upon not less than 30 nor more than 60 days' prior notice, at
the redemption prices (expressed as percentages of principal amount) set forth
below plus accrued and unpaid
interest and Liquidated Damages, if any, thereon to the applicable redemption
date, if redeemed during the twelve-month period beginning on June 15, of the
years indicated below (subject to the right of Holders on the relevant record
date to receive interest due on the related interest payment date):
<Table>
<Caption>
Year Percentage
---- ----------
2007.................................................................. 105.125%
2008.................................................................. 102.563%
2009 and thereafter................................................... 100.000%
</Table>
(b) Notwithstanding the foregoing, at any time prior to June 15, 2006,
the Company may redeem up to 35% of the aggregate principal amount of Notes
originally issued under the Indenture at a redemption price of 110.250% of the
principal amount thereof, plus accrued and unpaid interest and Liquidated
Damages, if any, to the redemption date, with the net cash proceeds of one or
more Equity Offerings of the Company; provided that (A) at least 65% of the
aggregate principal amount of the Notes originally issued under the Indenture
remains outstanding immediately after the occurrence of such redemption,
excluding Notes held by the Company and its Subsidiaries; and (B) the redemption
must occur within 45 days of the date of the closing of such Equity Offering.
(c) In addition, at any time prior to June 15, 2007, the Company may
redeem all or part of the Notes upon not less than 30 days nor more than 60
days' notice at a redemption price equal to the sum of (i) the principal amount
thereof, plus (ii) accrued and unpaid interest, if any, to the applicable date
of redemption, plus (iii) the Make-Whole Premium.
6. Repurchase at Option of Holder. (a) If a Change of Control occurs,
each Holder of Notes will have the right to require the Company to repurchase
all or any part (equal to $1,000 or an integral multiple thereof) of such
Holder's Notes pursuant to an offer by the Company (a "Change of Control Offer")
at an offer price (a "Change of Control Payment") in cash equal to 101% of the
aggregate principal amount thereof plus accrued and unpaid interest and
Liquidated Damages, if any, thereon to the date of purchase. Within ten days
following any Change of Control, the Company will mail a notice to each Holder
describing the transaction or transactions that constitute the Change of Control
and offering to repurchase Notes on a date (the "Change of Control Payment
Date") specified in such notice, which shall be no earlier than 30 days and no
later than 60 days from the date such notice is mailed, pursuant to the
procedures required by the Indenture and described in such notice.
(b) Within 360 days after the receipt of any Net Proceeds from an Asset
Sale, the Company may apply such Net Proceeds at its option: (i) to repay
Indebtedness under the Credit Facilities or Unsubordinated Indebtedness secured
by such assets and, if the Indebtedness repaid is revolving credit Indebtedness,
to correspondingly reduce commitments with respect thereto; or (ii) to purchase
Replacement Assets or make a capital expenditure in or that is used or useful in
a Permitted Business. Pending the final applications of any such Net Proceeds,
the Company may temporarily reduce revolving credit borrowings or otherwise
invest such Net Proceeds in any manner that is not prohibited by the Indenture.
Any Net Proceeds from Asset Sales that are not applied or invested as provided
in the next preceding sentence will constitute "Excess Proceeds." Within ten
days after the aggregate amount of Excess Proceeds exceeds $10.0 million, the
Company shall make an offer (an "Asset Sale Offer") to all Holders of Notes and
all holders of other Unsubordinated Indebtedness containing provisions similar
to those set forth in the Indenture with respect to offers to purchase with the
proceeds of sales of assets, to purchase the maximum principal amount of Notes
and such other Unsubordinated Indebtedness that may be purchased out of the
Excess Proceeds. The offer price in any Asset Sale Offer shall be equal to 100%
of the principal amount thereof plus accrued and unpaid interest and Liquidated
Damages, if any, to the date of purchase and shall be payable in cash. If any
Excess Proceeds remain after consummation of an Asset Sale Offer, the Company
may use such Excess Proceeds for any purpose not otherwise prohibited by the
Indenture. If the aggregate principal amount of Notes and such other
Unsubordinated Indebtedness tendered into such Asset Sale Offer exceeds the
amount of Excess Proceeds, Notes and such other Unsubordinated Indebtedness to
be purchased shall be selected on a pro rata basis based on the principal amount
of Notes and such other Unsubordinated Indebtedness tendered. Upon completion of
each Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
7. Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents and the
Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company is not required to transfer or exchange
any Note selected for redemption. Also, the Company is not required to transfer
or exchange any Note for a period of 15 days before a selection of Notes to be
redeemed. Transfer may be restricted as provided in the Indenture.
8. Persons Deemed Owners. The registered Holder of a Note will be
treated as its owner for all purposes.
9. Amendment, Supplement and Waiver. Subject to certain exceptions, the
Indenture or the Notes may be amended or supplemented with the consent of the
Holders of at least a majority in principal amount of the then outstanding Notes
(including, without limitation, consents obtained in connection with a purchase
of, or tender offer or exchange offer for, the Notes), and any existing default
or compliance with any provision of the Indenture or the Notes may be waived
with the consent of the Holders of a majority in principal amount of the then
outstanding Notes (including, without limitation, consents obtained in
connection with a purchase of, or tender offer or exchange offer for, the
Notes). Without the consent of any Holder of a Note, the Indenture or the Notes
may be amended or supplemented to, among other things, cure any ambiguity,
defect or inconsistency, or to make any change that does not adversely affect
the legal rights under the Indenture of any such Holder.
10. Defaults and Remedies. In the case of an Event of Default arising
from certain events of bankruptcy or insolvency, with respect to the Company or
any Significant Subsidiary of the Company (or any Restricted Subsidiaries that
together would constitute a Significant Subsidiary), all outstanding Notes will
become due and payable immediately without further action or notice. If any
other Event of Default occurs and is continuing, the Trustee or the Holders of
at least 25% in principal amount of the then outstanding Notes may declare all
the Notes to be due and payable immediately by notice in writing to the Company
specifying the Event of Default. Holders of the Notes may not enforce the
Indenture or the Notes except as provided in the Indenture. Subject to certain
limitations, Holders of a majority in principal amount of the then outstanding
Notes may direct the Trustee in its exercise of any trust or power. The Trustee
may withhold from Holders of the Notes notice of any Default or Event of Default
(except a Default or Event of Default relating to the payment of principal,
premium, interest or Liquidated Damages) if it determines that withholding
notice is in their interest. The Holders of a majority in aggregate principal
amount of the Notes then outstanding by notice to the Trustee may on behalf of
the Holders of all of the Notes waive any existing Default or Event of Default
and its consequences under the Indenture except a continuing Default or Event of
Default in the payment of interest or Liquidated Damages on, or the principal or
premium, if any, of, the Notes.
With respect to periods after June 15, 2007, in the case of any Event
of Default occurring by reason of any willful action or inaction taken or not
taken by or on behalf of the Company with the intention of avoiding payment of
the premium that the Company would have had to pay if the Company then had
elected to redeem the Notes pursuant to Section 3.07(a) of the Indenture, an
equivalent premium shall also become and be immediately due and payable to the
extent permitted by law upon the acceleration of the Notes. With respect to
periods prior to June 15, 2007, if an Event of Default occurs during any time
that the Notes are outstanding, by reason of any willful action (or inaction)
taken (or not taken) by or on behalf of the Company with the intention of
avoiding payment of the premium that the Company would have had to pay if the
Company then had elected to redeem the Notes pursuant to Section 3.07(c) of the
Indenture, then the premium specified in Section 3.07(c) of the Indenture as
being payable upon an optional redemption prior to June 15, 2007 shall become
immediately due and payable to the extent permitted by law upon the acceleration
of the Notes.
11. Trustee Dealings with Company. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not the Trustee.
12. No Recourse Against Others. No director, officer, employee,
incorporator or stockholder of the Company or any Guarantor, as such, shall have
any liability for any obligations of the Company or the Guarantors under the
Notes, the Indenture, the Note Guarantees or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder of Notes by
accepting a Note waives and releases all such liability. The waiver and release
are part of the consideration for issuance of the Notes. The waiver may not be
effective to waive liabilities under the federal securities laws.
13. Authentication. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
14. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
15. Guarantee. The Company's obligations under the Notes are fully and
unconditionally guaranteed, jointly and severally, by the Guarantors.
16. Copies of Documents. The Company shall furnish to any Holder upon
written request and without charge a copy of the Indenture and/or the
Registration Rights Agreement. Requests may be made to:
Texas Industries, Inc.
1341 West Mockingbird Lane
Dallas, TX 75247
Facsimile: 972-647-3320
Attention: Robert C. Moore, General Counsel
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:
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(Insert assignee's legal name)
- --------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date:
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Your Signature:
----------------------------
(Sign exactly as your name appears on
the face of this Note)
Signature Guarantee*:
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* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.10 or 4.14 of the Indenture, check the appropriate box
below:
[ ] Section 4.10 [ ] Section 4.14
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.10 or Section 4.14 of the Indenture, state the
amount you elect to have purchased:
$
----------------------------
Date:
----------------
Your Signature:
------------------------------
(Sign exactly as your name appears on
the face of this Note)
Tax Identification No.:
----------------------
Signature Guarantee*:
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* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
[To be attached to Global Notes only:
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases and decreases in this Global Note have been made:
<Table>
Date of Exchange Amount of decrease Amount of increase Principal Amount of Signature of
in Principal Amount in Principal Amount Global Note authorized Officer,
of Global Note of Global Note following decrease Trustee or Security
(or increase) Custodian]
</Table>
FORM OF NOTATION OF GUARANTEE
For value received, each Guarantor (which term includes any successor
Person under the Indenture) has, jointly and severally, unconditionally
guaranteed, to the extent set forth in the Indenture and subject to the
provisions in the Indenture dated as of June 6, 2003 (the "Indenture") among
Texas Industries, Inc., the other Guarantors (as defined in the Indenture) and
Wells Fargo Bank, National Association, as trustee (the "Trustee"), (a) the due
and punctual payment of the principal of, premium, if any, and interest and
Liquidated Damages, if any, on the Notes (as defined in the Indenture), whether
at maturity, by acceleration, redemption or otherwise, and the due and punctual
payment of interest on overdue principal, premium, if any, and interest and
Liquidated Damages, if any, on the Notes, if lawful (subject in all cases to any
applicable grace period provided herein), and the due and punctual performance
of all other obligations of the Company to the Holders or the Trustee all in
accordance with the terms of the indenture and the Notes and (b) in case of any
extension of time of payment or renewal of any Notes or any of such other
obligations, the same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. The obligations of the Guarantors to the
Holders of Notes and to the Trustee pursuant to the Note Guarantee and the
Indenture are expressly set forth in Article Ten of the Indenture and reference
is hereby made to the Indenture for the precise terms of the Note Guarantee.
Each Holder of a Note, by accepting the same, (a) agrees to and shall be bound
by such provisions and (b) appoints the Trustee attorney-in-fact of such Holder
for such purpose.
IN WITNESS HEREOF, each Guarantor has caused this Notation of Guarantee
to be signed manually or by facsimile by its duly authorized officer.
ATHENS BRICK COMPANY
BROOKHOLLOW CORPORATION
BROOKHOLLOW OF ALEXANDRIA, INC.
BROOKHOLLOW OF VIRGINIA, INC.
SOUTHWESTERN FINANCIAL CORPORATION
CHAPARRAL STEEL COMPANY
CHAPARRAL STEEL HOLDINGS, INC.
CHAPARRAL STEEL TRUST
CHAPARRAL STEEL TEXAS, INC.
CHAPARRAL STEEL MIDLOTHIAN, LP
CHAPARRAL (VIRGINIA) INC.
CREOLE CORPORATION
PACIFIC CUSTOM MATERIALS, INC.
RIVERSIDE CEMENT COMPANY
PARTIN LIMESTONE PRODUCTS, INC.
RIVERSIDE CEMENT HOLDINGS COMPANY
TEXAS INDUSTRIES HOLDINGS, INC.
TEXAS INDUSTRIES TRUST
TXI AVIATION, INC.
TXI CALIFORNIA INC.
TXI CEMENT COMPANY
TXI CORP.
TXI OPERATING TRUST
TXI OPERATIONS, LP
TXI POWER COMPANY
TXI RIVERSIDE INC.
TXI STAR RECYCLING LP
TXI TRANSPORTATION COMPANY
By:
--------------------------------
Name:
Title: