If the only
securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a
post-effective
amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☒
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company, or an emerging growth company. See the definitions of large accelerated filer, accelerated filer, smaller reporting company, and emerging growth company in Rule 12b-2 of the Exchange Act.
(Check one):
If an emerging growth company, indicate by check mark
if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
DESCRIPTION OF DEBT SECURITIES
The following summary describes the general terms and provisions of the debt securities covered by this prospectus. When we offer to sell a
particular series of debt securities, we will describe the specific terms of the debt securities in a prospectus supplement.
General
We will issue the debt securities under an indenture, or the Indenture, dated May 6, 2013, or the Original Indenture Date, between us and
U.S. Bank National Association, as trustee, or the Trustee. The Indenture is subject to and governed by the Trust Indenture Act of 1939, as amended, or the Trust Indenture Act. We may issue debt securities under the Indenture from time to time in
one or more series, each in an amount we authorize prior to issuance. Unless we inform you otherwise in a prospectus supplement, the Indenture will not limit the aggregate amount of debt securities we may issue under the Indenture. The debt
securities will be our general unsecured obligations and will rank equally with all our other unsecured and unsubordinated indebtedness. Capitalized terms not otherwise defined herein shall have the respective meanings given to them in the
Indenture. In this description, the words Company, we, us and our refer only to Commercial Metals Company and not to any of its subsidiaries.
The prospectus supplement relating to any series of debt securities being offered will include specific terms relating to the offering. These
terms will include some or all of the following:
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the title of the debt securities of the series;
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the authorized denominations and aggregate principal amount offered and any limit on future issues of additional debt securities of the same series;
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whether we will issue the debt securities as individual certificates to each holder or in the form of global securities held by a depositary on behalf of holders;
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the date or dates on which the principal of the debt securities of the series is payable;
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any interest rate on the debt securities, any date from which interest will accrue, any interest payment dates and regular record dates for interest payments, or the method used to determine any of the foregoing and the
basis for calculating interest, if other than a 360-day year of twelve 30-day months;
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the place or places where the principal of and any premium and interest on any debt securities of the series will be payable;
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any provisions that would determine payments on the debt securities by reference to a formula, index or other method;
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whether and under what circumstances any additional amounts with respect to the debt securities will be payable;
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any mandatory or optional sinking fund or analogous provisions;
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any provisions for optional or mandatory redemption or repurchase;
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the portion of the principal amount of the debt securities that will be payable if the maturity is accelerated, if other than the entire principal amount;
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any provisions for the defeasance of the debt securities;
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the currency in which payments of principal of and any premium and interest on the debt securities will be payable, if other than U.S. dollars;
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any addition to or change in the events of default or covenants which applies to any debt securities of the series, and any change in the right of the Trustee or the requisite holders of such debt securities to declare
the principal amount thereof due and payable;
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any restrictions or other provisions relating to the transfer or exchange of the debt securities;
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if the principal amount payable at the maturity of any debt securities of the series will not be determinable as of any one or more dates prior to the maturity, the amount which will be deemed to be the principal amount
of such debt securities as of any such date for any purpose; and
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any other terms not inconsistent with the provisions of the Indenture.
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Unless we inform you
otherwise in a prospectus supplement, the debt securities will be unsecured obligations and will rank equally with all of our other unsecured and unsubordinated indebtedness. The debt securities will be issuable in denominations of $2,000 and
integral multiples of $1,000, or in such other denominations as may be set out in the terms of the debt securities of any particular series.
Covenants
The covenants summarized below will apply to each series of debt securities as long as any debt securities of that series are
outstanding, unless we inform you otherwise in a prospectus supplement.
Limitation on Liens
The Company shall not, and shall not permit any Principal Subsidiary to, incur or suffer to exist any Lien upon any Principal Property, or upon
any shares of stock of any Principal Subsidiary, whether such Principal Property or shares were owned as of the Original Indenture Date or thereafter acquired, to secure any Debt without making, or causing such Principal Subsidiary to make,
effective provision for securing the debt securities issued under the Indenture (and no other indebtedness of the Company or any Principal Subsidiary except, if the Company shall so determine, any other indebtedness of the Company which is not
subordinate in right of payment to the debt securities or of such Principal Subsidiary) (x) equally and ratably with such Debt as to such Principal Property or shares for as long as such Debt shall be so secured unless (y) such Debt is
Debt of the Company which is subordinate in right of payment to the debt securities, in which case prior to such Debt as to such Principal Property or shares for as long as such Debt shall be so secured.
The foregoing restrictions will not apply to Liens existing at the Original Indenture Date or to the following:
(1) Liens securing only debt securities issued under the Indenture;
(2) Liens in favor of only the Company;
(3) Liens on property of a Person existing at the time such Person is merged into or consolidated with the Company or any
Principal Subsidiary but only to the extent such Liens cover such property;
(4) Liens on property existing immediately
prior to the time of acquisition thereof and not in anticipation of the financing of such acquisition;
(5) Any Lien upon a
Principal Property (including any property that becomes a Principal Property after acquisition thereof) to secure Debt incurred for the purpose of financing all or any part of the purchase price or the cost of construction or improvement of the
property subject to such Lien;
provided
,
however
, that (A) the principal amount of any Debt secured by such Lien (1) does not exceed 100% of such purchase price or cost and (2) is incurred not later than six months after
such purchase or the completion of such construction or improvement, whichever is later, and (B) such Lien does not extend to or cover any other property other than such item of property and any improvements on such item;
(6) Liens to secure Debt incurred to extend, renew, refinance or refund Debt secured by any Lien referred to in the foregoing
clauses (1) to (5) or any Lien existing at the Original Indenture Date, in each case, as long as such Lien does not extend to any other property and the original amount of the Debt so secured is not increased;
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(7) any Lien securing Debt owing by the Company to a wholly owned Principal
Subsidiary of the Company (provided that such Debt is at all times held by a Person which is a wholly owned Principal Subsidiary of the Company);
provided
,
however
, that for purposes of this covenant and the covenant described in
Limitation on Sale and Leaseback Transactions, upon either (A) the transfer or other disposition of Debt secured by a Lien so permitted to a Person other than the Company or another wholly owned Principal Subsidiary of the Company
or (B) the issuance, sale, lease, transfer or other disposition of shares of capital stock of any such wholly owned Principal Subsidiary to a Person other than the Company or another wholly owned Principal Subsidiary of the Company, the
provisions of this clause (7) shall no longer be applicable to such Lien and such Lien shall be subject (if otherwise subject) to the requirements of this covenant without regard to this clause (7); and
(8) Liens to secure (or to secure letters of credit, bankers acceptances or bank guarantees in connection with) the
performance of statutory obligations (including obligations under workers compensation, unemployment insurance or similar legislation), surety or appeal bonds, customs bonds, performance bonds, leases, bids, agreements or other obligations of
a like nature, in each case incurred in the ordinary course of business.
In addition to the foregoing, the Company and its Principal
Subsidiaries may incur and suffer to exist a Lien to secure any Debt or enter into a Sale and Leaseback Transaction without equally and ratably securing the debt securities if, after giving effect thereto, the sum of (i) the principal amount of
Debt secured by all Liens incurred after the Original Indenture Date and otherwise prohibited by the Indenture and (ii) the Attributable Debt of all Sale and Leaseback Transactions entered into after the Original Indenture Date and otherwise
prohibited by the Indenture does not exceed 10% of the Consolidated Net Tangible Assets of the Company.
Attributable Debt
means the present value (discounted at the per annum rate of interest publicly announced by Citibank, N.A. as its Reference Rate or Prime Rate on the date of any calculation under the Indenture, provided, that if Citibank,
N.A. is no longer announcing a Reference Rate or Prime Rate, the per annum rate of interest shall be the Prime Rate most recently published in The Wall Street Journal, in either case, compounded monthly), of the obligations for rental payments
required to be paid during the remaining term of any lease of more than 12 months under which any Person is at the time liable.
Capital Expenditures means, for any period, any expenditures of the Company or its Subsidiaries (whether payable in cash, assets
or other property or accrued as a liability (but without duplication)) during such period that, in conformity with generally accepted accounting principles consistently applied, are required to be included in fixed asset accounts as reflected in the
consolidated balance sheets of the Company or its Subsidiaries.
Capital Lease Obligation of any Person means the obligation
to pay rent or other payment amounts under a lease of (or other indebtedness arrangements conveying the right to use) real or personal property of such Person which is required to be classified and accounted for as a capital lease or a liability on
the face of a balance sheet of such Person in accordance with generally accepted accounting principles. The stated maturity of such obligation, as of any date (hereinafter referred to as the measurement date), shall be the date of the last payment
of rent or any other amount due under such lease prior to the first date after the measurement date upon which such lease may be terminated by the lessee, at its sole option, without payment of a penalty.
Consolidated Net Tangible Assets means, as of any date of determination, the net book value of all assets of the Company and its
Consolidated Subsidiaries, excluding any amounts carried as assets for shares of capital stock held in treasury, debt discount and expense, goodwill, patents, trademarks and other intangible assets, less all liabilities of the Company and its
Consolidated Subsidiaries (except Funded Debt, minority interests in Consolidated Subsidiaries, deferred taxes and general contingency reserves of the Company and its Consolidated Subsidiaries), which in each case would be included on a consolidated
balance sheet of the Company and its Consolidated Subsidiaries as of the date of determination, all as determined on a consolidated basis in accordance with generally accepted accounting principles.
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Consolidated Subsidiaries of any Person means all other Persons that would be
accounted for as consolidated Persons in such Persons financial statements in accordance with generally accepted accounting principles.
Corporation means a corporation, association, company (including any limited liability company), joint-stock company, limited
partnership or business or statutory trust.
Debt means, without duplication, with respect to any Person, the following:
(1) every obligation of such Person for money borrowed;
(2) every obligation of such Person evidenced by bonds, debentures, notes or other similar instruments;
(3) every reimbursement obligation of such Person with respect to letters of credit, bankers acceptances or similar
facilities issued for the account of such Person; and
(4) every obligation of the type referred to in clauses
(1) through (3) of another Person the payment of which such Person has guaranteed or is responsible or liable for, directly or indirectly, as obligor, guarantor or otherwise (but only, in the case of this clause (4), to the extent such
Person has guaranteed or is responsible or liable for such obligations).
Funded Debt means the following:
(1) all Debt of the Company and each Principal Subsidiary of the Company maturing on, or renewable or extendable at the option
of the obligor to, a date more than one year from the date of the determination thereof;
(2) Capital Lease Obligations
payable on a date more than one year from the date of the determination thereof;
(3) guarantees, direct or indirect, and
other contingent obligations of the Company and each Principal Subsidiary of the Company in respect of, or to purchase or otherwise acquire or be responsible or liable for (through the investment of funds or otherwise), any obligations of the type
described in the foregoing clauses (1) or (2) of others (but not including contingent liabilities on customers receivables sold with recourse); and
(4) amendments, renewals, extensions and refundings of any obligations of the type described in the foregoing clauses (1),
(2) or (3).
Lien means, with respect to any property or assets, any mortgage or deed of trust, pledge, hypothecation,
assignment, security interest, lien, encumbrance, or other security arrangement of any kind or nature whatsoever on or with respect to such property or assets, including any conditional sale or other title retention agreement having substantially
the same economic effect as any of the foregoing.
Person means any individual, corporation, company (including any limited
liability company), association, partnership, joint venture, joint-stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.
Principal Property means (i) any facility, together with the land on which it is erected and fixtures comprising a part
thereof, used primarily for manufacturing, processing, research, warehousing or distribution, owned or leased by the Company or a Subsidiary of the Company and having a net book value in excess of 3% of Consolidated Net Tangible Assets, other than
any such facility or portion thereof which is a pollution control facility financed by state or local government obligations or is not of material importance to the total business conducted or assets owned by the Company and its Subsidiaries as an
entirety, or (ii) any assets or properties acquired with Net Available Proceeds (defined below) from a Sale and Leaseback Transaction that are irrevocably designated by the Company as a Principal Property, which designation shall be made in
writing to the Trustee.
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Principal Subsidiary means any Subsidiary of the Company that owns or leases a
Principal Property or owns or controls stock which under ordinary circumstances has the voting power to elect a majority of the Board of Directors of a Principal Subsidiary.
Sale and Leaseback Transaction of any Person means an arrangement with any lender or investor or to which such lender or investor
is a party providing for the leasing by such Person of any Principal Property that within 12 months of the start of such lease and after the Reference Date, has been or is being sold, conveyed, transferred or otherwise disposed of by such Person to
such lender or investor or to any Person to whom funds have been or are to be advanced by such lender or investor on the security of such property. The term of such arrangement, as of any date (hereinafter referred to as the measurement date), shall
end on the date of the last payment of rent or any other amount due under each arrangement on or prior to the first date after the measurement date on which such arrangement may be terminated by the lessee, at its sole option, without payment of a
penalty. Sale Transaction means any such sale, conveyance, transfer or other disposition. The Reference Date means, for any property that becomes a Principal Property, the last day of the sixth month after the date of the
acquisition, completion of construction and commencement of operation of such property.
Subsidiary means any corporation of
which the Company directly or indirectly owns or controls stock which under ordinary circumstances, not dependent upon the happening of a contingency, has the voting power to elect a majority of the board of directors of such corporation.
Limitation on Sale and Leaseback Transactions
The Company shall not, and shall not permit any Principal Subsidiary of the Company to, enter into any Sale and Leaseback Transaction (except
for a period not exceeding 36 months) unless:
(1) the Company or such Principal Subsidiary would be entitled to enter into
such Sale and Leaseback Transaction pursuant to the provisions of the covenant described in Limitation on Liens without equally and ratably securing the debt securities; or
(2) the Company or such Principal Subsidiary applies or commits to apply, within 270 days before or after the Sale Transaction
pursuant to such Sale and Leaseback Transaction, an amount equal to the Net Available Proceeds therefrom to any combination of the following: (i) the repayment of Funded Debt, (ii) the purchase of other property which will constitute
Principal Property that has an aggregate value of at least the consideration paid therefor or (iii) Capital Expenditures with respect to any Principal Property;
provided
that the amount to be applied or committed to the repayment of such
Funded Debt shall be reduced by (a) the principal amount of any debt securities delivered within six months before or after such Sale Transaction to the Trustee for retirement and cancellation, and (b) the principal amount of such Funded
Debt as is voluntarily retired by the Company within six months before or after such Sale Transaction (it being understood that no amount so applied or committed and no debt securities so delivered or indebtedness so retired may be counted more than
once for such purpose);
provided
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further
, that no repayment or retirement referred to in this clause (2) may be effected by payment at maturity or pursuant to any mandatory sinking fund payment or any mandatory prepayment
provision.
Net Available Proceeds from any Sale Transaction by any Person means cash or readily marketable cash equivalents
received (including by way of sale or discounting of a note, installment receivable or other receivable, but excluding any other consideration received in the form of assumption by the acquiree of indebtedness or obligations relating to the
properties or assets that are the subject of such Sale Transaction or received in any other noncash form) therefrom by such Person, net of the following:
(1) all legal, title and recording tax expenses, commissions and other fees and expenses incurred and all federal, state,
provincial, foreign and local taxes required to be accrued as a liability as a consequence of such Sale Transaction;
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(2) all payments made by such Person or its Principal Subsidiaries on any
indebtedness which is secured in whole or in part by any such properties and assets in accordance with the terms of any Lien upon or with respect to any such properties and assets or which must, by the terms of such Lien or in order to obtain a
necessary consent to such Sale Transaction or by applicable law, be repaid out of the proceeds from such Sale Transaction; and
(3) all distributions and other payments made to minority interest holders in Principal Subsidiaries of such Person or joint
ventures as a result of such Sale Transaction.
Reports by the Company
The Company shall deliver to the Trustee within 15 days after the same is required to be filed with the SEC, copies of the quarterly and annual
reports and of the information, documents and other reports, if any, that the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act (giving effect to any grace period provided by Rule 12b-25 under the
Exchange Act), and the Company shall otherwise comply with the requirements of Trust Indenture Act Section 314(a). Any quarterly or annual report or other information, document or other report that the Company files with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act on the SECs EDGAR system (or any successor thereto) or any other publicly available database maintained by the SEC shall be deemed to constitute delivery of such filing to the Trustee.
Limitations on Merger and Sale of Assets
The Company shall not consolidate with or merge into any other Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, and the Company shall not permit any Person to consolidate with or merge into the Company or convey, transfer or lease its properties and assets substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into another Person or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, the Person formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Company
substantially as an entirety (for purposes of this covenant, a Successor Company) shall be a corporation, partnership or trust, shall be organized and validly existing under the laws of the United States of America, any State thereof or
the District of Columbia and shall expressly assume, by an indenture supplemental to the Indenture, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of and interest on all the
debt securities and the performance or observance of every covenant of the Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation of the
Company or a Principal Subsidiary of the Company as a result of such transaction as having been incurred by the Company or such Principal Subsidiary at the time of 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 happened and be continuing;
(3) if, as a result of any such
consolidation or merger of such conveyance, transfer or lease, properties or assets of the Company or any Principal Subsidiary of the Company would become subject to a Lien which would not be permitted by the Indenture, the Company or if applicable
the Successor Company, as the case may be, shall take such steps as shall be necessary effectively to secure the debt securities equally and ratably with (or prior to) all Debt secured by such Lien; and
(4) the Company has delivered to the Trustee an officers certificate and an opinion of counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture complies with this covenant and that all conditions precedent provided for relating to
such transaction have been complied with.
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Events of Default
Unless we inform you otherwise in a prospectus supplement, each of the following is an Event of Default for the debt securities of any series
(whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or
governmental body):
(1) default in the payment of any interest upon any debt security of that series when it becomes due
and payable, and continuance of such default for a period of 30 days;
(2) default in the payment of the principal of (or
premium, if any) on any debt security of that series at its Maturity;
(3) default in the deposit of any sinking fund
payment, when and as due by the terms of a debt security of that series;
(4) default in the performance, or breach, of any
covenant or warranty of the Company in the Indenture (other than a covenant or warranty a default in whose performance or whose breach is elsewhere herein specifically dealt with or which has expressly been included in the Indenture solely for the
benefit of series of debt securities other than that series), and continuance of such default or breach for a period of 60 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the
Trustee by the holders of at least 25% in principal amount of the outstanding debt securities of that series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a Notice of
Default;
(5) a default under any bond, debenture, note or other evidence of indebtedness for money borrowed by the
Company or any Principal Subsidiary of the Company having an aggregate principal amount outstanding in excess of an amount equal to 3% of Consolidated Net Tangible Assets or under any mortgage, indenture or instrument under which there may be issued
or by which there may be secured or evidenced any indebtedness for money borrowed by the Company or any Principal Subsidiary of the Company having an aggregate principal amount outstanding in excess of an amount equal to 3% of Consolidated Net
Tangible Assets, whether such indebtedness existed on the Original Indenture Date or was thereafter created, which default shall constitute a failure to pay any portion of the principal of such indebtedness when due and payable after the expiration
of any applicable grace period with respect thereto (which grace period, if such portion of the principal is less than an amount equal to 1% of Consolidated Net Tangible Assets in the aggregate, shall be deemed to be no less than 5 days) or shall
have resulted in such indebtedness becoming or being declared due and payable prior to the date on which it would otherwise have become due and payable, without such indebtedness having been discharged, or such acceleration having been rescinded or
annulled, within a period of 10 days after there shall have been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the holders of at least 25% in principal amount of the outstanding debt
securities of that series a written notice specifying such default and requiring the Company to cause such indebtedness to be discharged or cause such acceleration to be rescinded or annulled and stating that such notice is a Notice of
Default;
(6) certain events of bankruptcy, insolvency or reorganization; or
(7) any other Event of Default provided with respect to debt securities of that series.
If an Event of Default with respect to debt securities of any series at the time oustanding occurs and is continuing, then in every such case
the Trustee or the holders of not less than 25% in principal amount of each series of debt securities outstanding may, by a notice in writing to us, and to the Trustee if given by such holders, declare to be due and payable immediately the principal
amount of all of the debt securities of that series. However, at any time after such a declaration of acceleration of the debt securities has been made, but before a judgment or decree for payment of the money due has been obtained by the Trustee,
the holders of a majority in the principal amount of such series of debt securities outstanding may, subject to certain conditions, rescind and annul such acceleration. For information as to waiver of defaults, see Modification and
Waiver herein.
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In case an Event of Default under the Indenture occurs and is continuing, then, subject to the
provisions of the Indenture and the Trust Indenture Act relating to the duties of the Trustee under the Indenture, the Trustee will be under no obligation to exercise any of its rights or powers under the Indenture at the request or direction of any
of the holders of the debt securities, unless such holders shall have offered to the Trustee reasonable security or indemnity. The holders of a majority in aggregate outstanding principal amount of any series of debt securities outstanding shall
have the right, subject to such provisions for indemnification of the Trustee, to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee under the Indenture or exercising any trust or power conferred
on the Trustee with respect to the debt securities of such series. However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture or that the Trustee determines in good faith may be unduly prejudicial to the rights
of holders of the affected debt securities not joining in the giving of such direction and the Trustee may take any other action it deems proper that is not inconsistent with any such direction received from holders of such debt securities.
No holder of any debt securities of any series will have any right to institute any proceeding with respect to the Indenture or for the
appointment of a receiver or trustee or for any other remedy thereunder, unless such holder of debt securities shall have previously given to the Trustee written notice of a continuing Event of Default with respect to the debt securities of such
series and unless the holders of at least 25% in aggregate principal amount of such series of debt securities outstanding shall have made written request, and offered reasonable indemnity, to the Trustee to institute such proceeding as trustee, and
the Trustee shall not have received from the holders of a majority in aggregate principal amount of such series of debt securities outstanding a direction inconsistent with such request and the Trustee shall have failed to institute such proceeding
within 60 days.
However, such limitations do not apply to a suit instituted by a holder of debt securities for enforcement of payment of
the principal of, and premium, if any, and any interest on the debt securities on or after the respective due dates expressed in the debt securities.
We will be required to furnish to the Trustee annually a statement as to whether we are in default in the performance and observance of any of
the terms, provisions and conditions of the Indenture. The Indenture provides that the Trustee may withhold notice to the holders of the debt securities of any default, except in payment of principal, any premium or interest, if it considers it in
the interest of such holders to do so; provided, however, that in the case of any default of the character specified in paragraph (4) above, no such notice to holders will be given until at least 30 days after the occurrence of the default.
Modification and Waiver
Together
with the Trustee, we may modify the Indenture without the consent of the holders of the debt securities for limited purposes, including but not limited to adding to our covenants or events of default, securing the debt securities, appointing a
substitute trustee, curing ambiguities, defects or inconsistencies, maintaining the qualification of the Indenture under the Trust Indenture Act, providing for the assumption by a successor to the Company of its obligations under the Indenture and
making other changes that do not adversely affect the rights of the holders of the debt securities in any material respect. In addition, we and the Trustee may make modifications and amendments to the Indenture with the consent of the holders of not
less than a majority in aggregate principal amount of each series of debt securities outstanding affected by such modification;
provided
,
however
, that no such modification or amendment may, without the consent of the holder of each
such outstanding debt security affected thereby, (1) change the stated maturity of the principal of, or any installment of principal or interest on any debt security, (2) reduce the principal amount of or the rate of interest or the
premium, if any, on any debt security, (3) change the place or currency of payment of principal of or interest or the premium, if any, on any debt security, (4) impair the right to institute suit for the enforcement of any payment with
respect to the debt securities on or after the stated maturity thereof, (5) reduce the percentage in principal amount of outstanding debt securities the consent of whose holders is required for any such modification, or (6) reduce the
percentage of outstanding debt securities the consent of whose holders is required for waiver of compliance with certain provisions of the Indenture or for waiver of certain defaults thereunder.
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We may, in the circumstances permitted by the Trust Indenture Act, set any day as the record date
for the purpose of determining the holders of the debt securities of any series entitled to give or take any request, demand, authorization, direction, notice, consent, waiver or other action, or vote on any action, authorized or permitted to be
given by holders of debt securities of that series by the Indenture.
The holders of a majority in aggregate principal amount of each
series of debt securities outstanding may on behalf of the holders of all such debt securities waive, insofar as such debt securities are concerned (but not as to any other series of debt securities issued under the Indenture), compliance by the
Company with the covenants limiting Liens and Sale and Leaseback Transactions contained in the Indenture. The holders of a majority in aggregate principal amount of each series of debt securities outstanding may on behalf of the holders of all such
debt securities waive any past default under the Indenture except a default in the payment of the principal of, or premium, if any, or any interest on such debt securities or in respect of a covenant or provision which under the Indenture cannot be
modified or amended without the consent of the holder of each outstanding debt security affected.
For purposes of the Indenture, the debt
securities outstanding will be deemed to exclude those held by persons that control, are controlled by or are under direct or indirect common control with the Company, provided that any person who does not own, directly or indirectly, more than 5%
of the outstanding voting securities of the Company will not be deemed to control the Company.
Defeasance
Discharge.
The Indenture provides that the Company may be discharged from all of its obligations under the Indenture (except as
otherwise provided in the Indenture) when (1) either (i) all debt securities authenticated and delivered have been delivered to the Trustee for cancellation, or (ii) all debt securities not delivered to the Trustee for cancellation
have become due and payable, or will become due and payable at their stated maturity within one year, or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company, and the Company, in each case, has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose an amount in U.S. dollars or U.S. Government Obligations
maturing as to principal and interest in such amounts and at such time as will insure (without consideration of any reinvestment of interest) the availability of cash, or a combination thereof, in amounts that will be sufficient to pay and discharge
the entire indebtedness on those debt securities not delivered to the Trustee for cancellation, for principal and any premium and accrued interest to the date of such deposit (in the case of debt securities which have become due and payable) or to
the stated maturity date or redemption date, as the case may be; (2) the Company has paid or caused to be paid all other sums payable by the Company under the Indenture; and (3) the Company has delivered to the Trustee an officers
certificate and an opinion of counsel, each stating that all conditions precedent relating to the satisfaction and discharge of the Indenture have been complied with.
Legal Defeasance
. The Indenture provides that the Company may elect to deposit or cause to be deposited with the Trustee as trust funds
in trust, for the benefit of the holders of outstanding debt securities of any series, money and/or U.S. Government Obligations sufficient to pay and discharge the principal of, and premium, if any, and any interest on and any mandatory sinking fund
payments or analogous payments in respect of the debt securities of that series on the stated maturity of such payments in accordance with the terms of the Indenture and the debt securities, and thereby be discharged from its obligations with
respect to the outstanding debt securities of that series (hereinafter called Defeasance) on and after the date that, among other things, the Company provides to the Trustee an opinion of counsel to the effect that (1) the Company has received
from, or there has been published by, the Internal Revenue Service a ruling, or (2) there has been a change in the applicable federal income tax law, in each case to the effect that the holders of debt securities of that series will not
recognize gain or loss for federal income tax purposes as a result of the deposit, Defeasance and discharge to be effected with respect to the debt securities and will be subject to federal income tax on the same amount, in the same manner and at
the same times as would be the case if such deposit, Defeasance and discharge were not to occur. For this
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purpose, such Defeasance means that the Company will be deemed to have paid and discharged the entire indebtedness represented by such outstanding debt securities of that series and to have
satisfied all its other obligations under the debt securities of that series and the Indenture insofar as the debt securities of that series are concerned, except for certain continuing administrative responsibilities. In the event of any such
Defeasance, holders of the debt securities of that series would be able to look only to such trust for payment of principal of, and premium, if any, and any interest on and any mandatory sinking fund payments in respect of the debt securities.
Covenant Defeasance
. The Indenture provides that the Company may elect to deposit or cause to be deposited with the Trustee as trust
funds in trust, for the benefit of the holders of outstanding debt securities of any series, money and/or U.S. Government Obligations sufficient to pay and discharge the principal, and premium, if any, of and any interest on and any mandatory
sinking fund payments or analogous payments in respect of the debt securities on the stated maturity of such payments in accordance with the terms of the Indenture and such debt securities of that series, and thereby (1) be released from its
obligations with respect to the debt securities under certain covenants in the Indenture, including the covenants relating to limitation on Liens, limitation on Sale and Leaseback Transactions and mergers and sales of assets and (2) have the
occurrence of certain defaults in performance, or breach, of covenants under the Indenture and defaults under other obligations of the Company not be deemed to be or result in an Event of Default, in each case with respect to the outstanding debt
securities of that series (hereinafter called Covenant Defeasance), on and after the date that, among other things, the Company provides to the Trustee an opinion of counsel that the holders of outstanding debt securities of that series will not
recognize gain or loss for federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to the debt securities of that series and will be subject to federal income tax on the same amount, in the same
manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur. For this purpose, such Covenant Defeasance means that the Company may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such specified Indenture provision, whether directly or indirectly by reason of any reference elsewhere in the Indenture to any such provision or by reason of any reference in any such provision to any
other provision of the Indenture or in any other document, but the remainder of the Indenture and the debt securities of that series shall be unaffected thereby. The obligations of the Company under the Indenture and the debt securities of that
series other than with respect to the covenants referred to above and the Events of Default other than the Events of Default referred to above shall remain in full force and effect.
The term U.S. Government Obligations means securities which are (i) direct obligations of the United States of America for
the payment of which its full faith and credit is pledged or (ii) obligations of a person controlled or supervised by and acting as an agency or instrumentality of the United States of America, the payment of which is unconditionally guaranteed
as a full faith and credit obligation by the United States of America, which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act) as custodian with respect to any such U.S. Government Obligation or a specific payment of interest on or principal of any U.S. Government Obligation held by such custodian for the account of the holder of
a depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S.
Government Obligation or the specific payment of interest on or principal of the U.S. Government Obligation evidenced by such depository receipt.
Book-Entry System
Unless we inform you
otherwise in a prospectus supplement, each series of debt securities will be evidenced by global securities, which will be deposited on behalf of The Depository Trust Company, or DTC, and registered in the name of a nominee of DTC. Except as set
forth below, the record ownership of the global securities may be transferred, in whole or in part, only to DTC, another nominee of DTC or to a successor of DTC or its nominee. Except under circumstances described below, each series of debt
securities will not be
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issued in definitive form. See Certificated Securities below. Upon the issuance of a global security, DTC will credit on its book-entry registration and transfer system the accounts
of persons acquiring each series of debt securities with the respective principal amounts of the debt securities represented by the global security. Ownership of beneficial interests in a global security will be limited to persons that have accounts
with DTC or its nominee (hereinafter referred to as participants) or persons that may hold interests through participants. Owners of beneficial interests in each series of debt securities represented by the global securities will hold their
interests pursuant to the procedures and practices of DTC.
Ownership of beneficial interests in a global security will be shown on, and
the transfer of that ownership will be effected only through, records maintained by DTC or its nominee. The laws of some states require that certain purchasers of securities take physical delivery of such securities in definitive form. Such limits
and such laws may impair the ability to transfer beneficial interests in a global security. DTC will have no knowledge of the actual beneficial owners of the global securities; DTCs records reflect only the identity of the participants to
whose accounts such global securities are credited, which may or may not be the beneficial owners of the global securities.
The
participants will remain responsible for keeping account of their holdings on behalf of their customers.
Conveyance of notices and other
communications by DTC to participants and by participants to the beneficial owners of the global securities will be governed by arrangements among them, subject to any statutory or regulatory requirements as may be in effect from time to time.
Transfers between participants will be effected in the ordinary way in accordance with DTC rules and will be settled in immediately available funds.
So long as DTC or its nominee is the registered owner of a global security, DTC or its nominee, as the case may be, will be considered the
sole owner or holder of each series of debt securities represented by that global security for all purposes under the Indenture. Except as provided below, owners of beneficial interests in a global security will not be entitled to have the debt
securities represented by that global security registered in their names, will not receive or be entitled to receive physical delivery of debt securities in definitive form and will not be considered the owners or holders thereof under the
Indenture. Beneficial owners will not receive written confirmation from DTC of their purchase. Beneficial owners are, however, expected to receive written confirmations providing details of the transaction, as well as periodic statements of their
holdings, from the direct or indirect participant through which the beneficial owner entered into the transaction. Beneficial owners will not be holders and will not be entitled to any rights provided to the holders of the debt securities under the
global securities or the Indenture. Principal payments, premium payments, if any, interest payments and liquidated damage payments, if any, on debt securities registered in the name of DTC or its nominee will be made to DTC or its nominee, as the
case may be, as the registered owner of the relevant global security. None of the Company, the Trustee or the registrar for the debt securities will have any responsibility or liability for any aspect of the records relating to, or payments made on
account of, beneficial interests in a global security or for maintaining, supervising or reviewing any records relating to such beneficial interests. Neither the Company nor the Trustee would be liable for any delay by DTC or any of its participants
in identifying the beneficial owners of the debt securities, and the Company and the Trustee may conclusively rely on and will be protected in relying on instructions from DTC or its nominee for all purposes. Beneficial owners of debt securities may
wish to take certain steps to augment the transmission to them of notices of significant events with respect to such debt securities, such as redemptions, tenders, defaults, and proposed amendments to the security documents. For example, beneficial
owners of debt securities may wish to ascertain that the nominee holding the debt securities for their benefit has agreed to obtain and transmit notices to beneficial owners. In the alternative, beneficial owners may wish to provide their names and
addresses to the registrar and request that copies of notices be provided directly to them.
Payments of principal, premium, if any, and
interest to DTC will be the responsibility of the Company or the Trustee. The disbursement of such payments to participants shall be the responsibility of DTC. We expect that DTC or its nominee, upon receipt of any payment of principal, premium, if
any, or interest, if any, will credit
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immediately participants accounts with payments in amounts proportionate to their respective beneficial interests in the principal amount of the relevant global security as shown on the
records of DTC or its nominee. We also expect that payments by participants to owners of beneficial interests in a global security held through such participants will be governed by standing instructions and customary practices, as is the case with
securities held for the accounts of customers in bearer form or registered in street name, and will be the responsibility of such participants and not DTC, the Company or the Trustee, subject to any statutory or regulatory requirements
as may be in effect from time to time.
If we redeem less than all of the applicable global security, we have been advised that it is
DTCs practice to determine by lot the amount of the interest of each participant in such global security to be redeemed. DTC has advised us that it is a limited-purpose trust company organized under the New York Banking Law, a banking
organization within the meaning of the New York Banking Law, a member of the Federal Reserve System, a clearing corporation within the meaning of the New York Uniform Commercial Code, and a clearing agency registered
pursuant to the provisions of Section 17A of the Exchange Act. DTC is owned by a number of its participants and by the New York Stock Exchange, Inc., the American Stock Exchange LLC, and the Financial Industry Regulatory Authority, Inc.
DTC holds securities deposited with it by its participants and facilitates the settlement of transactions among its participants in such
securities through electronic computerized book-entry changes in accounts of the participants, thereby eliminating the need for physical movement of securities certificates. DTCs participants include securities brokers and dealers (including
the underwriters), banks, trust companies, clearing corporations and certain other organizations, some of whom (and/or their representatives) own the depositary. Access to DTCs book-entry system is also available to others, such as banks,
brokers, dealers, trust companies and clearing corporations that clear through or maintain a custodial relationship with a participant, either directly or indirectly. The rules applicable to DTC and its participants are on file with the SEC.
According to DTC, the foregoing information with respect to DTC has been provided to the financial community for informational purposes only
and is not intended to serve as a representation, warranty or contract modification of any kind, and we take no responsibility for the accuracy or completeness of such information.
Certificated Securities
If DTC is at any
time unwilling or unable to continue as a depositary or if an event of default shall have occurred and be continuing under the Indenture, we will issue debt securities in definitive form in exchange for the entire global security for the debt
securities. In addition, we may at any time and in our sole discretion determine not to have the debt securities represented by a global security and, in such event, will issue debt securities in definitive form in exchange for the entire global
security relating to such debt securities. In any such instance, an owner of a beneficial interest in a global security will be entitled to physical delivery in definitive form of debt securities represented by such global security equal in
principal amount to such beneficial interest and to have such debt securities registered in its name.
Debt securities so issued in
definitive form will be issued as registered debt securities in denominations of $2,000 principal amount and integral multiples of $1,000 in excess thereof, unless otherwise specified by us. The holder of a certificated debt security may transfer it
by surrendering it at (1) the office or agency maintained by us for such purpose in the Borough of Manhattan, The City of New York, which initially will be the office of the Trustee maintained for such purpose or (2) the office of any
transfer agent we appoint.
Same-Day Settlement and Payment
Settlement for the debt securities will be made in immediately available or same-day funds. So long as the debt securities are represented by
the global securities, we will make all payments of principal and interest in immediately available funds.
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So long as the debt securities are represented by the global securities registered in the name of
DTC or its nominee, the debt securities will trade in DTCs Same-Day Funds Settlement System. DTC will require secondary market trading activity in the debt securities represented by the global securities to settle in immediately available or
same-day funds on trading activity in the debt securities.
No Personal Liability of Directors, Officers, Employees and Stockholders
No past, present or future director, officer, employee, incorporator, agent, member or stockholder or affiliate of the Company will have any
liability for any obligations of the Company under the debt securities, or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each holder of the debt securities, by accepting a debt security,
waives and releases all such liability. Such waivers and releases are part of the consideration for issuance of the debt securities and may not be effective to waive liabilities under the U.S. federal securities laws.
Concerning our Relationship with Trustee
U.S. Bank National Association is the trustee, registrar and paying agent under the Indenture. In addition, the Company has entered into
several equipment capital lease agreements with U.S. Bank National Association and its affiliates with average annual rental and lease expenses payable by the Company of approximately $0.9 million. U.S. Bank National Association also serves as the
trustee under the indenture governing the Companys 4.875% senior notes due 2023 as well as several of the Companys employee defined benefit plans. Further, U.S. Bancorp Community Development Corporation acts as the new markets tax credit
equity investor providing qualified equity investment(s) to facilitate the completion of several projects of the Company that qualify as qualified active low-income community businesses.
Governing Law
The Indenture and the debt
securities will be governed by and construed in accordance with the laws of the New York.
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