THE EXCHANGE OFFER
General
When we issued
$350,000,000 principal amount of old notes on February 23, 2018, we entered into a registration rights agreement among us, as issuer, and Goldman Sachs & Co. LLC, U.S. Bancorp Investments, Inc. and Wells Fargo Securities, LLC, as
representatives of the initial purchasers of such old notes (the Registration Rights Agreement). We issued an additional $110,701,000 principal amount of old notes issued on March 7, 2018 and an additional $248,000 principal
amount of old notes on March 21, 2018 in connection with the early retirement via exchange offer of like amounts of the 7.15% Notes due 2037. These additional old notes, which constituted a further issuance of, and formed a single series with
the old notes issued in February 2018, are also subject to the Registration Rights Agreement. Under the Registration Rights Agreement, we agreed to use commercially reasonable efforts to:
|
|
|
file a registration statement (the Exchange Offer Registration Statement) with the SEC relating to the exchange offer, to exchange the new
notes for the old notes;
|
|
|
|
cause the Exchange Offer Registration Statement to be declared effective by the SEC;
|
|
|
|
cause the exchange offer to be completed no later than the 360
th
day after February 23, 2018 (or if such 360
th
day is not a business day, the next succeeding business day); and
|
|
|
|
cause the Exchange Offer Registration Statement to be effective continuously and keep the exchange offer open for a period of not less than the minimum
period required under applicable federal and state securities laws to consummate the exchange offer.
|
For
each old note validly tendered pursuant to the exchange offer and not validly withdrawn by the holder thereof, the holder of such old note will receive in exchange a new note having a principal amount equal to that of the tendered old note. Interest
on each new note will accrue from the last interest payment date on which interest was paid on the old notes exchanged therefor or, if no interest has been paid on the old notes, from the date of the original issue of the old notes.
Shelf Registration
Under certain circumstances, we have agreed to use our commercially reasonable efforts to (i) file a shelf registration statement
relating to the resale of the old notes (the Shelf Registration Statement) as promptly as practicable, and (ii) cause the Shelf Registration Statement to be declared effective by the SEC as promptly as practicable. We have also
agreed to use our commercially reasonable efforts to keep the Shelf Registration Statement continuously effective until one year after its effective date (or such shorter period that will terminate when all the old notes covered thereby have been
sold pursuant thereto).
Additional Interest on Old Notes
Subject to certain limitations, we will be required to pay the holders of the old notes additional interest (as determined in accordance with the terms of the Registration Rights Agreement) on the old
notes if:
|
|
|
the exchange offer has not been completed by February 18, 2019; or
|
|
|
|
the Shelf Registration Statement (if required) has not become or been declared effective within the later of 90 days after such Shelf Registration
Statement filing obligation arises and February 18, 2019; or
|
|
|
|
the Exchange Offer Registration Statement or Shelf Registration Statement required by the Registration Rights Agreement is filed and declared effective
but shall thereafter either be withdrawn by the Company or shall become subject to an effective stop order issued pursuant to Section 8(d) of the Securities Act suspending the effectiveness of such registration statement (except as specifically
permitted in the Registration Rights Agreement) without being succeeded immediately by an additional registration statement filed and declared effective.
|
13
If we fail to meet these targets (each, a registration default), as
applicable, the annual interest rate on the old notes will increase by 0.25% during the
90-day
period following the registration default, and will increase by an additional 0.25% for each subsequent
90-day
period during which the registration default continues, up to a maximum additional interest rate of 1.00% per year. The additional interest will accrue and be payable only with respect to a single
registration default at any given time, notwithstanding the fact that multiple registration defaults may exist at such time.
This summary of the provisions of the Registration Rights Agreement does not purport to be complete and is subject to, and is qualified in
its entirety by reference to, the complete text of the Registration Rights Agreement, a copy of which is filed as an exhibit to the registration statement of which this prospectus forms a part.
Terms of the Exchange Offer
This prospectus and the accompanying Letter of Transmittal together constitute the exchange offer. Upon the terms and subject to the conditions set forth in this prospectus and in the Letter of
Transmittal, we will accept for exchange old notes that are properly tendered and not withdrawn on or before the expiration date of the exchange offer. We have agreed to use all commercially reasonable efforts to keep the exchange offer open for at
least 20 business days in accordance with Regulation 14E under the Securities Exchange Act of 1934, as amended (the Exchange Act). The expiration date of this exchange offer is 5:00 p.m., New York City time, on December 10, 2018, or
such later date and time to which we, in our sole discretion, extend the exchange offer.
The form and terms of the new notes
being issued in the exchange offer are the same as the form and terms of the old notes, except that the new notes being issued in the exchange offer:
|
|
|
will have been registered under the Securities Act;
|
|
|
|
will not bear the restrictive legends restricting their transfer under the Securities Act that are contained in the old notes; and
|
|
|
|
will not contain the registration rights and additional interest provisions that apply to the old notes.
|
We expressly reserve the right, in our sole discretion:
|
|
|
to extend the expiration date;
|
|
|
|
to delay accepting any old notes due to any extension, if applicable, of the exchange offer;
|
|
|
|
to terminate the exchange offer and not accept any old notes for exchange if any of the conditions set forth below under Conditions to the
Exchange Offer have not been satisfied; and
|
|
|
|
to amend the exchange offer in any manner.
|
We will give written notice of any extension, delay, termination,
non-acceptance
or amendment as promptly as practicable by a public announcement, and in the case
of an extension, no later than 9:00 a.m., New York City time, on the next business day after the previously scheduled expiration date. During an extension, all old notes previously tendered will remain subject to the exchange offer and may be
accepted for exchange by us. Any old notes not accepted for exchange for any reason will be returned without cost to the holder that tendered them promptly after the expiration or termination of the exchange offer.
Exchange Offer Procedures
When the holder of old notes tenders and we accept old notes for exchange, a binding agreement between us and the tendering holder is
created, subject to the terms and conditions set forth in this prospectus and the accompanying Letter of Transmittal. Except as set forth below, a holder of old notes who wishes to tender old notes for exchange must, on or prior to the expiration
date of the exchange offer:
|
|
|
transmit a properly completed and duly executed Letter of Transmittal, including all other documents required by such Letter of Transmittal, to Regions
Bank, the exchange agent, at the address set forth under the heading The Exchange Agent below; or
|
14
|
|
|
if old notes are tendered pursuant to the book-entry procedures set forth below, the tendering holder must transmit an Agents Message (as defined
below) to the exchange agent at the address set forth under the heading The Exchange Agent below.
|
In addition, either:
|
|
|
the exchange agent must receive the certificates for the old notes and the Letter of Transmittal;
|
|
|
|
the exchange agent must receive, prior to the expiration date, a timely confirmation of the book-entry transfer of the old notes being tendered into
the exchange agents account at DTC, along with the Letter of Transmittal or an Agents Message; or
|
|
|
|
the holder must comply with the guaranteed delivery procedures described under the heading Guaranteed Delivery Procedures below.
|
The term Agents Message means a message, transmitted by DTC to and received by the
exchange agent and forming a part of a book-entry transfer, referred to as a
Book-Entry Confirmation,
which states that DTC has received an express acknowledgment that the tendering holder
agrees to be bound by the Letter of Transmittal and that we may enforce the Letter of Transmittal against such holder.
The
method of delivery of the old notes, the Letters of Transmittal and all other required documents is at the election and risk of the holder. If such delivery is by mail, we recommend registered mail, properly insured, with return receipt requested.
In all cases, you should allow sufficient time to assure timely delivery. No Letters of Transmittal or old notes should be sent directly to us.
Signatures on a Letter of Transmittal or a notice of withdrawal, as the case may be, must be guaranteed unless the old notes surrendered for exchange are tendered:
|
|
|
by a holder of old notes who has not completed the box entitled Special Issuance Instructions or Special Delivery Instructions
on the Letter of Transmittal; or
|
|
|
|
for the account of an eligible institution.
|
An eligible institution is a firm which is a member of a registered national securities exchange or a member of the Financial Industry Regulatory Authority, a commercial bank or trust company
having an office or correspondent in the United States or an eligible guarantor institution within the meaning of Rule
17Ad-15
under the Exchange Act.
If signatures on a Letter of Transmittal or notice of withdrawal are required to be guaranteed, the guarantor must be an eligible
institution. If old notes are registered in the name of a person other than the signer of the Letter of Transmittal, the old notes surrendered for exchange must be endorsed by, or accompanied by a written instrument or instruments of transfer or
exchange, in satisfactory form as determined by us in our sole discretion, duly executed by the registered holder with the holders signature guaranteed by an eligible institution.
We will determine all questions as to the validity, form, eligibility, including time of receipt, and acceptance of old notes tendered for
exchange in our sole discretion. Our determination will be final and binding. We reserve the absolute right to:
|
|
|
reject any and all tenders of any old note improperly tendered;
|
|
|
|
refuse to accept any old note if, in our judgment or the judgment of our counsel, acceptance of the old note may be deemed unlawful; and
|
|
|
|
waive any defects or irregularities or conditions of the exchange offer as to any particular old note either before or after the expiration date,
including the right to waive the ineligibility of any class of holder who seeks to tender old notes in the exchange offer.
|
Our interpretation of the terms and conditions of the exchange offer as to any particular old notes either before or after the expiration date, including the Letter of Transmittal and the instructions
related
15
thereto, will be final and binding on all parties. Holders must cure any defects and irregularities in connection with tenders of old notes for exchange within such reasonable period of time as
we will determine, unless we waive such defects or irregularities. Neither we, the exchange agent nor any other person will be under any duty to give notification of any defect or irregularity with respect to any tender of old notes for exchange,
nor will any such persons incur any liability for failure to give such notification.
If a person or persons other than the
registered holder or holders of the old notes tendered for exchange signs the Letter of Transmittal, the tendered old notes must be endorsed or accompanied by appropriate powers of attorney, in either case signed exactly as the name or names of the
registered holder or holders that appear on the old notes.
If trustees, executors, administrators, guardians,
attorneys-in-fact,
officers of corporations or others acting in a fiduciary or representative capacity sign the Letter of Transmittal or any old notes or any power of
attorney, such persons should so indicate when signing and must submit proper evidence satisfactory to us of such persons authority to so act unless we waive this requirement.
By tendering old notes, each holder will represent to us that, among other things, the person acquiring new notes in the exchange offer is
acquiring them in the ordinary course of its business, whether or not such person is the holder, and that neither the holder nor such other person has any arrangement or understanding with any person to participate in the distribution of the new
notes. If any holder or any such other person is an affiliate of ours as defined in Rule 405 under the Securities Act, or is engaged in or intends to engage in or has an arrangement or understanding with any person to participate in a
distribution of the new notes, such holder or any such other person:
|
|
|
may not rely on the applicable interpretations of the staff of the SEC as set forth in
no-action
letters issued
to third parties; and
|
|
|
|
must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale transaction and be
identified as an underwriter in the applicable prospectus.
|
Each broker-dealer that receives new notes for
its own account in exchange for old notes, where such old notes were acquired by such broker-dealer as a result of market-making activities or other trading activities, must acknowledge that it may be a statutory underwriter and that it will deliver
a prospectus in connection with any resale of such new notes. The Letter of Transmittal states that by so acknowledging and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an underwriter within the
meaning of the Securities Act.
Acceptance of Old Notes for Exchange; Delivery of New Notes Issued in the Exchange Offer
Upon satisfaction or waiver of all of the conditions to the exchange offer, we will accept, promptly after the expiration date, all old
notes properly tendered and will issue new notes registered under the Securities Act. For purposes of the exchange offer, we will be deemed to have accepted properly tendered old notes for exchange when, as and if we have given oral or written
notice to the exchange agent, with written confirmation of any oral notice to be given promptly thereafter. See Conditions to the Exchange Offer below for a discussion of the conditions that must be satisfied before we accept any
old notes for exchange.
For each old note accepted for exchange, the holder will receive a new note registered under the
Securities Act having a principal amount equal to, and in the denomination of, that of the surrendered old note. Accordingly, registered holders of new notes on the relevant record date for the first interest payment date following the consummation
of the exchange offer will receive interest accruing from the most recent date to which interest has been paid on the old notes. Old notes that we accept for exchange will cease to accrue interest from and after the date of consummation of the
exchange offer. Under the Registration Rights Agreement, we may be required to make additional payments in the form of additional interest to the holders of the old notes under circumstances relating to the timing of the exchange offer, as discussed
under Additional Interest on Old Notes above.
16
In all cases, we will issue new notes in the exchange offer for old notes that are accepted
for exchange only after the exchange agent timely receives:
|
|
|
certificates for such old notes or a timely Book-Entry Confirmation of such old notes into the exchange agents account at DTC;
|
|
|
|
a properly completed and duly executed Letter of Transmittal or an Agents Message; and
|
|
|
|
all other required documents.
|
If for any reason set forth in the terms and conditions of the exchange offer we do not accept any tendered old notes, or if a holder submits old notes for a greater principal amount than the holder
desires to exchange, we will promptly return such unaccepted or
non-exchanged
old notes without cost to the tendering holder. In the case of old notes tendered by book-entry transfer into the exchange
agents account at DTC, such
non-exchanged
old notes will be credited to an account maintained with DTC. We will return the old notes or have them credited to DTC promptly after the expiration or
termination of the exchange offer.
Book-Entry Transfers
The exchange agent will make a request to establish an account at DTC for purposes of the exchange offer within two business days after the date of this prospectus. Any financial institution that is a
participant in DTCs system must make book-entry delivery of old notes denominated in dollars by causing DTC to transfer the old notes into the exchange agents account at DTC in accordance with DTCs procedures for transfer. Such
participant should transmit its acceptance to DTC on or prior to the expiration date or comply with the guaranteed delivery procedures described below. DTC will verify such acceptance, execute a book-entry transfer of the tendered old notes into the
exchange agents account at DTC and then send to the exchange agent confirmation of such book-entry transfer. The confirmation of such book-entry transfer will include an Agents Message confirming that DTC has received an express
acknowledgment from such participant that such participant has received and agrees to be bound by the Letter of Transmittal and that we may enforce the Letter of Transmittal against such participant. Notwithstanding the foregoing, the Letter of
Transmittal or facsimile thereof or an Agents Message, with any required signature guarantees and any other required documents, must:
|
|
|
be transmitted to and received by the exchange agent at the address set forth below under the heading The Exchange Agent on or prior
to the expiration date; or
|
|
|
|
comply with the guaranteed delivery procedures described below.
|
Guaranteed Delivery Procedures
If a holder of old notes desires to tender
such notes and the holders old notes are not immediately available, or time will not permit such holders old notes or other required documents to reach the exchange agent before the expiration date, or the procedure for
book-entry
transfer cannot be completed on a timely basis, a tender may be effected if:
|
|
|
the holder tenders the old notes through an eligible institution;
|
|
|
|
prior to the expiration date, the exchange agent receives from such eligible institution a properly completed and duly executed notice of guaranteed
delivery, substantially in the form we have provided, by email or facsimile transmission, mail or hand delivery, as applicable, setting forth the name and address of the holder of the old notes being tendered and the amount of the old notes being
tendered. The notice of guaranteed delivery will state that the tender is being made and guarantee that within three business days after the date of execution of the notice of guaranteed delivery, the certificates for all physically tendered old
notes, in proper form for transfer, or a Book-Entry Confirmation, as the case may be, together with a properly completed and duly executed Letter of Transmittal or Agents Message with any required signature guarantees and any other documents
required by the Letter of Transmittal, will be deposited by the eligible institution with the exchange agent; and
|
17
|
|
|
the exchange agent receives the certificates for all physically tendered old notes, in proper form for transfer, or a Book-Entry Confirmation, as the
case may be, together with a properly completed and duly executed Letter of Transmittal or Agents Message with any required signature guarantees and any other documents required by the Letter of Transmittal, within three business days after
the date of execution of the notice of guaranteed delivery.
|
Withdrawal Rights
You may withdraw tenders of your old notes at any time prior to 5:00 p.m., New York City time, on the expiration date. For a withdrawal to
be effective, you must send a written notice of withdrawal to the exchange agent at the address set forth under the heading The Exchange Agent below. Any such notice of withdrawal must:
|
|
|
specify the name of the person who tendered the old notes to be withdrawn;
|
|
|
|
identify the old notes to be withdrawn, including the principal amount of such old notes; and
|
|
|
|
where certificates for old notes are transmitted, specify the name in which old notes are registered, if different from that of the withdrawing holder.
|
If certificates for old notes have been delivered or otherwise identified to the exchange agent, then,
prior to the release of such certificates, the withdrawing holder must also submit the serial numbers of the particular certificates to be withdrawn and a signed notice of withdrawal with signatures guaranteed by an eligible institution unless such
holder is an eligible institution. If old notes have been tendered pursuant to the procedure for book-entry transfer described above, any notice of withdrawal must specify the name and number of the account at DTC to be credited with the withdrawn
old notes and otherwise comply with the procedures of such facility. We will determine all questions as to the validity, form and eligibility, including time of receipt, of such notices, and our determination will be final and binding on all
parties. Any tendered old notes so withdrawn will be deemed not to have been validly tendered for exchange for purposes of the exchange offer. Any old notes which have been tendered for exchange but which are not exchanged for any reason will be
promptly returned to the holder of those old notes without cost to the holder. In the case of old notes tendered by book-entry transfer into the exchange agents account at DTC, the old notes withdrawn will be credited to an account maintained
with DTC for the old notes. The old notes will be returned or credited to this account as soon as practicable after withdrawal or rejection of tender or promptly after termination of the exchange offer. Properly withdrawn old notes may be
re-tendered
by following one of the procedures described above under the heading Exchange Offer Procedures at any time on or prior to 5:00 p.m., New York City time, on the expiration date.
Conditions to the Exchange Offer
We are not required to accept for exchange, or to issue new notes in the exchange offer for, any old notes. We may terminate or amend the exchange offer at any time before the expiration date if:
|
|
|
the exchange offer would violate any applicable federal law, statute, rule or regulation or any applicable interpretation of the staff of the SEC;
|
|
|
|
any action or proceeding is instituted or threatened in any court or by or before any governmental agency challenging the exchange offer or that we
believe might be expected to prohibit or materially impair our ability to proceed with the exchange offer;
|
|
|
|
any stop order is threatened or in effect with respect to either (1) the registration statement of which this prospectus forms a part or
(2) the qualification of the indenture governing the new notes under the Trust Indenture Act of 1939, as amended (the Trust Indenture Act);
|
18
|
|
|
any law, rule or regulation is enacted, adopted, proposed or interpreted that we believe might be expected to prohibit or impair our ability to proceed
with the exchange offer or to materially impair the ability of holders generally to receive freely tradable new notes in the exchange offer;
|
|
|
|
there is any change or a development involving a prospective change in our business, properties, assets, liabilities, financial condition, operations
or results of operations taken as a whole, that is or may be adverse to us;
|
|
|
|
there is any declaration of war, armed hostilities or other similar international calamity directly or indirectly involving the United States, or the
worsening of any such condition that existed at the time that we commence the exchange offer; or
|
|
|
|
we become aware of facts that, in our reasonable judgment, have or may have adverse significance with respect to the value of the old notes or the new
notes to be issued in the exchange offer.
|
The preceding conditions are for our sole benefit, and we may
assert them regardless of the circumstances giving rise to any such condition. We may waive the preceding conditions in whole or in part at any time and from time to time in our sole discretion. If we do so, the exchange offer will remain open for
at least five business days following any waiver of the preceding conditions. Our failure at any time to exercise the foregoing rights will not be deemed a waiver of any such right and each such right will be deemed an ongoing right which we may
assert at any time and from time to time.
The Exchange Agent
Regions Bank, an Alabama banking corporation (the exchange agent), has been appointed as exchange agent for the exchange offer. You should direct questions and requests for assistance,
requests for additional copies of this prospectus or of the Letter of Transmittal and requests for the notice of guaranteed delivery or the notice of withdrawal to the exchange agent addressed as follows:
To: Regions Bank
By Mail or In Person:
Regions Bank
Attention: Patti Maner
1900 Fifth Avenue North, 26
th
Floor
Birmingham, Alabama 35203
By Email or Facsimile Transmission (for Eligible
Institutions Only)
:
Email: patti.maner@regions.com
john.holcomb@regions.com
Fax: (205)
264-5264
For Information and to Confirm by Telephone:
(205)
264-5399
DELIVERY OF THE LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SHOWN ABOVE OR TRANSMISSION VIA EMAIL OR FACSIMILE OTHER THAN AS SET FORTH ABOVE DOES NOT CONSTITUTE A VALID DELIVERY OF THE LETTER OF
TRANSMITTAL.
Fees and Expenses
We will not make any payment to brokers, dealers or others for soliciting acceptance of the exchange offer except for reimbursement of mailing expenses. We will pay the cash expenses to be incurred by us
in connection with the exchange offer, including:
|
|
|
the SEC registration fee;
|
19
|
|
|
fees and expenses of the exchange agent and the trustee;
|
|
|
|
accounting and legal fees;
|
|
|
|
other related fees and expenses.
|
Transfer Taxes
Holders who tender their old notes for exchange will not be
obligated to pay any transfer taxes in connection with the exchange. If, however, the new notes issued in the exchange offer are to be delivered to, or are to be issued in the name of, any person other than the holder of the old notes tendered, or
if a transfer tax is imposed for any reason other than the exchange of old notes in connection with the exchange offer, then the holder must pay any such transfer taxes, whether imposed on the registered holder or on any other person. If
satisfactory evidence of payment of, or exemption from, such taxes is not submitted with the Letter of Transmittal, the amount of such transfer taxes will be billed directly to the tendering holder.
Consequences of Failure to Exchange Old Notes
Holders who desire to tender their old notes in exchange for new notes should allow sufficient time to ensure timely delivery of the documents required for such exchange. Neither the exchange agent nor we
are under any duty to give notification of defects or irregularities with respect to the tenders of old notes for exchange.
Old notes that are not tendered, or are tendered but not accepted, will, following the consummation of the exchange offer, continue to be
subject to the provisions in the applicable indenture regarding the transfer and exchange of the old notes and the existing restrictions on transfer set forth in the legend on the old notes and in the offering memorandum dated February 20, 2018
with respect to the $350,000,000 aggregate principal amount of old notes, or the offer to exchange offering memorandum dated February 20, 2018 with respect to the $110,949,000 aggregate principal amount of old notes, as applicable. Except in
limited circumstances with respect to specific types of holders of old notes, we will have no further obligation to provide for the registration under the Securities Act of such old notes. In general, old notes, unless registered under the
Securities Act, may not be offered or sold except pursuant to an exemption from, or in a transaction not subject to, the Securities Act and applicable state securities laws. We do not currently anticipate that we will take any action to register the
old notes under the Securities Act or under any state securities laws following the expiration date of the exchange offer.
Upon completion of the exchange offer, holders of the old notes will not be entitled to any further registration rights under the
Registration Rights Agreement, except under limited circumstances.
Holders of the new notes and any old notes that remain
outstanding after consummation of the exchange offer will vote together as a single class for purposes of determining whether holders of the requisite percentage of the class have taken certain actions or exercised certain rights under the
applicable indenture.
Consequences of Exchanging Old Notes
Based on interpretations of the staff of the SEC, as set forth in
no-action
letters to third parties, we believe that the new notes may be offered for resale,
resold or otherwise transferred by holders of those new notes, other than by any holder that is an affiliate of ours within the meaning of Rule 405 under the Securities Act. The new notes may be offered for resale, resold or otherwise
transferred without compliance with the registration and prospectus delivery provisions of the Securities Act, if:
|
|
|
the new notes issued in the exchange offer are acquired in the ordinary course of the holders business; and
|
20
|
|
|
neither the holder, other than a broker-dealer, nor, to the actual knowledge of such holder, any other person receiving new notes from the holder, has
any arrangement or understanding with any person to participate in the distribution of the new notes issued in the exchange offer.
|
However, the SEC has not considered this exchange offer in the context of a
no-action
letter and we cannot guarantee that the staff of the SEC would make a similar
determination with respect to this exchange offer as in such other circumstances.
Each holder, other than a broker-dealer,
must furnish a written representation, at our request, that:
|
|
|
it is not an affiliate of ours;
|
|
|
|
it is not engaged in, and does not intend to engage in, a distribution of the new notes and has no arrangement or understanding to participate in a
distribution of new notes;
|
|
|
|
it is acquiring the new notes issued in the exchange offer in the ordinary course of its business; and
|
|
|
|
it is not acting on behalf of a person who could not make the three preceding representations.
|
Each broker-dealer that receives new notes for its own account in exchange for old notes must acknowledge that:
|
|
|
such old notes were acquired by such broker-dealer as a result of market-making or other trading activities (and not directly from us);
|
|
|
|
it has not entered into any arrangement or understanding with us or an affiliate of ours to distribute the new notes; and
|
|
|
|
it will deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such new notes, and such broker-dealer
will comply with the applicable provisions of the Securities Act with respect to resale of any new notes.
|
Furthermore, any broker-dealer that acquired any of its old notes directly from us:
|
|
|
may not rely on the position of the SEC enunciated in Morgan Stanley and Co., Inc. (June 5, 1991) and Exxon Capital Holdings Corporation (May 13,
1988), as interpreted in the SECs letter to Shearman & Sterling dated July 2, 1993, and similar
no-action
letters; and
|
|
|
|
must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any secondary resale transaction and be
identified as an underwriter in the applicable prospectus.
|
In addition, to comply with state securities laws
of certain jurisdictions, the new notes issued in the exchange offer may not be offered or sold in any state unless they have been registered or qualified for sale in such state or an exemption from registration or qualification is available and
complied with by the holders selling the new notes. We have agreed in the Registration Rights Agreement that, prior to any public offering of old notes, we will cooperate with the selling holders of old notes and their counsel in connection with the
registration and qualification of such old notes entitled to registration rights, under the securities or Blue Sky laws of such jurisdictions as the selling holders of old notes may reasonably request and do any and all other acts or things
necessary or advisable to enable the disposition in the applicable jurisdictions,
provided, however
, that we are not required to register or qualify as a foreign corporation where we are not so qualified or to take any action that would
subject us to the service of process in suits or to taxation, in any jurisdiction where we are not so subject.
Accounting Treatment
We will record the new notes at the same carrying value as the old notes, as reflected in our accounting records on the
date of the exchange offer. Accordingly, we will not recognize any gain or loss for accounting purposes.
21
DESCRIPTION OF THE NEW NOTES
The term new notes refers to Vulcans $460,949,000 4.70% Notes due 2048 that have been registered under the Securities
Act. The term old notes refers to Vulcans outstanding unregistered $460,949,000 4.70% Notes due 2048. We refer to the new notes and the old notes (to the extent not exchanged for new notes) in this section as the notes.
The terms of the old notes are identical in all material respects to those of the new notes, except that: (1) the old
notes have not been registered under the Securities Act, are subject to certain restrictions on transfer and are entitled to certain rights under the registration rights agreement (which rights will terminate upon consummation of the exchange offer,
except under limited circumstances); and (2) the new notes will not contain terms with respect to additional interest.
The Company issued the old notes and will issue the new notes pursuant to the indenture dated as of February 23, 2018, between the
Company and Regions Bank, as trustee (as amended, modified or supplemented, the Indenture). The terms of the new 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 Trust Indenture Act). You should refer to the Indenture and the Trust Indenture Act for a complete statement of the terms applicable to the new notes.
The following is a summary of material provisions of the Indenture. The following summary of the terms of the new notes and the Indenture
is not complete and is subject to, and is qualified by reference to, the new notes and the Indenture, including the definitions therein of certain capitalized terms used but not defined in this Description of the New Notes. We urge you
to read the entire Indenture, because the Indenture, and not this description, defines your rights as holders of the new notes.
In this summary, Vulcan, the Company, we, our, or us means Vulcan Materials
Company only, unless we indicate otherwise or the context requires otherwise.
General
The summaries of certain provisions of the Indenture described below are not complete and are qualified in their entirety by reference to
all the provisions of the Indenture, a copy of which is filed as an exhibit to the registration statement of which this prospectus forms a part.
We are a holding company that conducts our operations through our operating subsidiaries. Accordingly, our cash flow and consequent ability to pay principal and interest on the new notes depends, in part,
on our ability to obtain dividends or loans from our operating subsidiaries, which may be subject to contractual restrictions, as well as applicable law.
The old notes are, and the new notes will be, our general unsecured obligations and will rank equally with all of our other current and future unsecured and unsubordinated debt and senior in right of
payment to all of our future subordinated debt. The old notes are not, and the new notes will not be, guaranteed by any of our subsidiaries. The new notes will be effectively subordinated to all of our secured debt (as to the collateral pledged
to secure that debt) and to all indebtedness and other liabilities of our subsidiaries. As of September 30, 2018, we and our subsidiaries had unsecured debt with a total face value of approximately $3,046.4
million,
$200.0 million of which was outstanding on our bank line of credit, and approximately $0.2
million of which was debt of our subsidiaries.
The covenants in the Indenture do not necessarily afford the holders of the notes protection in the event of a decline in our credit quality resulting from highly leveraged or other transactions involving
us.
We may issue separate series of debt securities under the Indenture from time to time without limitation on the aggregate
principal amount of such debt securities. Under the Indenture, we may specify a maximum aggregate principal amount for the debt securities of any series.
22
We do not intend to apply to list the new notes on any securities exchange or to have the
new notes quoted on any automated quotation system.
The new notes will be issued only in minimum denominations of $2,000 and
$1,000 multiples above that amount.
We may, without the consent of the holders of the notes, issue additional notes and
thereby increase the principal amount of the notes in the future, on the same terms and conditions (except for any differences in the issue price, issue date and interest accrued prior to the issue date of such additional notes) and with the same
CUSIP number as the new notes offered in this prospectus.
From time to time, in our sole discretion, depending upon market,
pricing and other conditions, as well as on our cash balances and liquidity, we or our affiliates may seek to repurchase a portion of the notes. Any such future purchases may be made in the open market, privately negotiated transactions, tender
offers or otherwise, in each case in our sole discretion.
Interest
The new notes will bear interest at 4.70% per annum, payable semi-annually on each March 1 and September 1, commencing on
March 1, 2019, to the registered holders of the new notes on the close of business on the immediately preceding February 15 and August 15, respectively, whether or not such date is a business day. The new notes will mature on
March 1, 2048.
Interest on the new notes will be computed on the basis of a
360-day
year of twelve
30-day
months. If an interest payment date for the new notes falls on a date that is not a business day, the interest payment shall be postponed
to the next succeeding business day, and no interest on such payment shall accrue for the period from and after such interest payment date.
No Sinking Fund
The old
notes are not, and the new notes will not be, entitled to the benefit of a sinking fund.
Optional Redemption
At any time prior to the date that is six months prior to the maturity for the notes (the par call date), the notes
will be redeemable as a whole or in part, at our option at a redemption price equal to the greater of (1) 100% of the principal amount of such notes and (2) the sum of the present values of the remaining scheduled payments of principal and
interest on the notes to be redeemed that would be due if the notes matured on the applicable par call date (exclusive of interest accrued on the notes to be redeemed to the date of redemption) discounted to the redemption date semiannually
(assuming a
360-day
year consisting of twelve
30-day
months) at the Treasury Rate (as defined below), plus 25 basis points, plus any accrued and unpaid interest on the
notes being redeemed to, but not including, the date of redemption, but interest installments whose stated maturity is on or prior to the date of redemption will be payable to the holders of record of the notes at the close of business on the
relevant record date for the notes. The Independent Investment Banker (as defined below) will calculate the redemption price.
In addition, at any time on or after the applicable par call date, we may redeem the notes in whole or in part, at our option, from time
to time at a redemption price equal to 100% of the aggregate principal amount of the notes being redeemed, plus any accrued and unpaid interest on the notes being redeemed to, but not including, the date of redemption, but interest installments
whose stated maturity is on or prior to the date of redemption will be payable to the holders of the notes of record at the close of business on the relevant record dates for the notes.
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 notes to be redeemed
23
(assuming, for this purpose, that the notes matured on the applicable par call date) that would be used, at the time of selection and in accordance with customary financial practice, in pricing
new issues of corporate debt securities of comparable maturity with the remaining term of those notes (assuming, for this purpose, that the notes matured on the applicable par call date).
Comparable Treasury Price
means, with respect to the notes on any redemption date, (1) the average of four
Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest Reference Treasury Dealer Quotations, or (2) if the Independent Investment Banker obtains fewer than four such Reference Treasury Dealer
Quotations, the average of all such quotations.
Independent Investment Banker
means one of the Reference
Treasury Dealers appointed by the Trustee, as directed by us.
Reference Treasury Dealer Quotations
means,
with respect to each Reference Treasury Dealer and the notes on any redemption date, the average, as determined by the Independent Investment Banker, of the bid and asked prices for the Comparable Treasury Issue for such notes (expressed in each
case as a percentage of its principal amount) quoted in writing to the Independent Investment Banker by such Reference Treasury Dealer at 5:00 p.m. on the third business day preceding such redemption date.
Reference Treasury Dealer
means each of (i) Goldman Sachs & Co. LLC and its successors, (ii) a
Primary Treasury Dealer selected by U.S. Bancorp Investments, Inc., and its successors, (iii) Wells Fargo Securities, LLC, and its successors and (iv) one Primary Treasury Dealer selected by the Company; 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), we shall replace that former dealer with another Primary Treasury Dealer.
Treasury Rate
means, with respect to any redemption date, (1) the average of the yields in each statistical
release for the immediately preceding week designated H.15 or any successor publication which is published by the Board of Governors of the Federal Reserve System and which establishes yields on actively traded United States Treasury
securities adjusted to constant maturity under the caption U.S. government securitiesTreasury constant maturitiesnominal, for the maturity corresponding to the Comparable Treasury Issue (if no maturity is within three months
before or after the remaining term of the notes to be redeemed, yields for the two published maturities most closely corresponding to the Comparable Treasury Issue will be determined and the Treasury Rate will be interpolated or extrapolated from
such yields on a straight line basis, rounding to the nearest month) or (2) 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 year 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 will be calculated on the third business day preceding the applicable redemption date.
We will mail notice of any redemption between 30 days and 60 days before the applicable redemption date to each holder of the notes to be
redeemed. In connection with any redemption of the notes, any such redemption may, at our discretion, be subject to one or more conditions precedent. If such redemption is subject to satisfaction of one or more conditions precedent, the notice of
such redemption shall state that, in our discretion, the applicable redemption date may be delayed until such time as any or all such conditions shall be satisfied, or such redemption may not occur and such notice may be rescinded in the event that
any or all such conditions shall not have been satisfied by the redemption date, or by the applicable redemption date so delayed.
Unless we default in payment of the redemption price and accrued interest, if any, on and after any redemption date, interest will cease to accrue on the notes or portions of the notes called for
redemption.
In the case of a partial redemption, selection of the notes for redemption will be made pro rata, by lot or by
such other method as the Trustee in its sole discretion deems fair and appropriate. No notes of a principal amount of $2,000 or less will be redeemed in part. If any note is to be redeemed in part only, the
24
notice of redemption that relates to the note will state the portion of the principal amount of the note to be redeemed. A new note in a principal amount equal to the unredeemed portion of the
note will be issued in the name of the holder of the note upon surrender for cancellation of the original note.
Change of Control
Repurchase Event
If a change of control repurchase event (as defined below) occurs with respect to the notes, unless we
have redeemed all of the notes as described under Optional Redemption above or have defeased the notes as described below, we will be required to make an irrevocable offer to each holder of the notes to repurchase all or any part
(equal to or in excess of $2,000 and in integral multiples of $1,000) of that holders notes at a repurchase price in cash equal to 101% of the aggregate principal amount of the notes repurchased plus accrued and unpaid interest, if any, on the
notes repurchased to, but not including, the date of repurchase. Within 30 days following a change of control repurchase event or, at our option, prior to a change of control (as defined below), but in either case, after the public announcement
of the change of control, we will mail, or shall cause to be mailed, a notice to each holder, with a copy to the Trustee, describing the transaction or transactions that constitute or may constitute the change of control, offering to repurchase the
applicable notes on the payment date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is mailed, disclosing that any note not tendered for repurchase will continue to accrue
interest, and specifying the procedures for tendering notes. The notice shall, if mailed prior to the date of consummation of the change of control, state that the offer to purchase is conditioned on a change of control repurchase event occurring on
or prior to the payment date specified in the notice. We will comply with the requirements of Rule
14e-1
under the Exchange Act, and any other securities laws and regulations thereunder to the extent those
laws and regulations are applicable in connection with the repurchase of the applicable notes as a result of a change of control repurchase event. To the extent that the provisions of any securities laws or regulations conflict with the change of
control repurchase event provisions of the applicable notes, we will comply with the applicable securities laws and regulations and will not be deemed to have breached our obligations under the change of control repurchase event provisions of the
notes by virtue of such conflict.
On the repurchase date following a change of control repurchase event, we will, to the
extent lawful:
1. accept for payment all applicable notes or portions of notes properly
tendered pursuant to our offer;
2. deposit with the paying agent an amount equal to the
aggregate purchase price in respect of all applicable notes or portions of notes properly tendered; and
3. deliver or cause to be delivered to the Trustee the applicable notes properly accepted, together
with an Officers Certificate stating the aggregate principal amount of notes being purchased by us.
The paying agent
will promptly distribute to each holder of applicable notes properly tendered the purchase price for such notes deposited with them by us, we will execute, and the authenticating agent will promptly authenticate and deliver (or cause to be
transferred by
book-entry)
to each holder a new note equal in principal amount to any unpurchased portion of any applicable notes surrendered, provided that each new note will be in a principal amount of an
integral multiple of $1,000.
We will not be required to make an offer to repurchase the notes upon a change of control
repurchase event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for an offer made by us and such third party purchases all applicable notes properly tendered and not withdrawn under
its offer. In addition, we will not repurchase any notes if there has occurred and is continuing on the change of control payment date (as defined in the Indenture) an event of default under the Indenture, other than a default in the payment of the
purchase price upon a change of control repurchase event.
The definition of change of control (as well as the covenant
regarding our ability to enter into consolidations, mergers and sales of assets) includes the direct or indirect sale, transfer, conveyance or
25
other disposition of all or substantially all of our properties or assets (in the case of such definition of change of control, taken as a whole with our subsidiaries). Although there
is a limited body of case law interpreting the phrase substantially all, there is no precise established definition of the phrase under applicable law. Accordingly, the ability of a holder of notes to require us to repurchase the notes
as a result of a sale, transfer, conveyance or other disposition of less than all of the properties or assets of us and our subsidiaries, taken as a whole, to another person or group may be uncertain.
For purposes of the foregoing discussion of a repurchase at the option of the applicable holders, the following definitions are
applicable:
below investment grade ratings event
means that on any day commencing 60 days prior to the
first public announcement by us of any change of control (or pending change of control) and ending 60 days following consummation of such change of control (which period will be extended following consummation of a change of control for up to an
additional 60 days for so long as either of the rating agencies has publicly announced that it is considering a possible ratings change), the notes are downgraded to a rating that is below investment grade (as defined below) by each of the
rating agencies (regardless of whether the rating prior to such downgrade was investment grade or below investment grade).
change of control
means the occurrence of any of the following: (1) the consummation of any transaction
(including, without limitation, any merger or consolidation) the result of which is that any person (as that term is used in Section 13(d)(3) of the Exchange Act) (other than us or one of our subsidiaries) becomes the
beneficial owner (as defined in Rules
13d-3
and
13d-5
under the Exchange Act), directly or indirectly, of more than 50% of our voting stock (as defined below) or other
voting stock into which our voting stock is reclassified, consolidated, exchanged or changed, measured by voting power rather than number of shares; (2) the direct or indirect sale, transfer, conveyance or other disposition (other than by way
of merger or consolidation), in one or more series of related transactions, of all or substantially all of our assets and the assets of our subsidiaries, taken as a whole, to one or more persons (as defined in the Indenture) (other
than us or one of our subsidiaries); or (3) the first day on which a majority of the members of our Board of Directors is composed of members who are not continuing directors. Notwithstanding the foregoing, a transaction will not be deemed to
involve a change of control if (1) we become a direct or indirect wholly-owned subsidiary of a holding company and (2)(A) the direct or indirect holders of the voting stock of such holding company immediately following that transaction are
substantially the same as the holders of our voting stock immediately prior to that transaction or (B) immediately following that transaction no person (other than a holding company satisfying the requirements of this sentence) is the
beneficial owner, directly or indirectly, of more than 50% of the voting stock of such holding company.
change of
control repurchase event
means, with respect to notes, the occurrence of both a change of control and a below investment grade ratings event.
continuing directors
means, as of any date of determination, any member of our Board of Directors who (1) was a member of such Board of Directors on the date the notes were
initially issued or (2) was nominated for election, elected or appointed to such Board of Directors with the approval of a majority of the continuing directors who were members of such Board of Directors at the time of such nomination, election
or appointment (either by a specific vote or by approval of our proxy statement in which such member was named as a nominee for election as a director, without objection to such nomination).
investment grade
means a rating of Baa3 or better by Moodys (or its equivalent under any successor rating
categories of Moodys); a rating of
BBB-
or better by S&P (or its equivalent under any successor rating categories of S&P); and the equivalent investment grade credit rating from any additional
rating agency or rating agencies selected by us.
Moodys
means Moodys Investors Service, Inc.
rating agency
means (1) each of Moodys and S&P; and (2) if either of Moodys or
S&P ceases to rate the notes or fails to make a rating of the notes publicly available for reasons outside of our control, a
26
nationally recognized statistical rating organization within the meaning of Section 3(a)(62) under the Exchange Act, selected by us (and certified by a resolution of our Board of
Directors) as a replacement agency for the agency that ceased such rating or failed to make it publicly available.
S&P
means Standard & Poors Ratings Services, a division of The McGraw-Hill Companies, Inc.
voting stock
of any specified person (as that term is used in Section 13(d)(3) of the
Exchange Act) as of any date means the capital stock of such person that is at the time entitled to vote generally in the election of the board of directors of such person.
The change of control repurchase event feature of the notes may, in certain circumstances, make more difficult or discourage a sale or takeover of us and, thus, the removal of incumbent management. We
could, in the future, enter into certain transactions, including acquisitions, refinancings or other recapitalizations, that would not constitute a change of control under the notes, but that could increase the amount of indebtedness outstanding at
such time or otherwise affect our capital structure or credit ratings on the notes.
We may not have sufficient funds to
repurchase all the notes upon a change of control repurchase event.
Securities Filings
Notwithstanding that we are subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or are otherwise
required to report on an annual and quarterly basis on forms provided for pursuant to rules and regulations promulgated by the SEC, so long as the notes are outstanding (unless defeased in a legal defeasance), the Company will (a) file with the
SEC (unless the SEC will not accept such filing), and (b) make available to the Trustee and, upon written request, the registered holders of the notes, without cost to any holder, from the date that the notes are issued:
1. within the time periods specified by the Exchange Act (including all applicable extension
periods), an annual report on Form
10-K
(or any successor or comparable form) containing the information required to be contained therein (or required in such successor or comparable form); and
2. within the time periods specified by the Exchange Act (including all applicable
extension periods), a quarterly report on Form
10-Q
(or any successor or comparable form).
In the event that we are not permitted to file those reports with the SEC pursuant to the Exchange Act, we will nevertheless make available such Exchange Act reports to the Trustee and the holders of the
notes as if we were subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act within the time periods specified by the Exchange Act (including all applicable extension periods), which requirement may be satisfied by
posting those reports on our website within the time periods specified above.
Notwithstanding the foregoing, the availability
of the reports referred to in paragraphs (1) and (2) above on the SECs Electronic Data Gathering, Analysis and Retrieval system (or any successor system, including the SECs Interactive Data Electronic Application system) and
our website within the time periods specified above will be deemed to satisfy the above delivery obligation.
Covenants
The old notes are, and the new notes will be, subject to certain restrictive covenants described below.
Restrictions on Secured Debt
In the Indenture, we covenant that we will not, and each of our restricted subsidiaries (as defined below) will not, incur, issue, assume or guarantee any debt (as defined in the Indenture) secured
by a pledge, mortgage or other lien (1) on a principal property (as defined below) owned or leased by us or any restricted subsidiary or (2) on any shares of stock or debt of any restricted subsidiary, unless we secure the
27
notes equally and ratably with or prior to the debt secured by the lien. If we secure the notes in this manner, we have the option of securing any of our other debt or obligations, or those of
any subsidiary, equally and ratably with the notes, as long as the other debt or obligations are not subordinate to the notes. This covenant has significant exceptions; it does not apply to the following liens:
|
|
|
liens on the property, shares of stock or debt of any person (as defined in the Indenture) existing at the time the person becomes our restricted
subsidiary or, with respect to the notes, liens existing as of the time the notes are first issued;
|
|
|
|
liens in favor of us or any of our restricted subsidiaries;
|
|
|
|
liens in favor of U.S. governmental bodies to secure progress, advance or other payments required under any contract or provision of any statute or
regulation;
|
|
|
|
liens on property, shares of stock or debt, either:
|
|
|
|
existing at the time we acquire the property, stock or debt, including acquisition through merger or consolidation;
|
|
|
|
securing all or part of the cost of acquiring the property, stock or debt or construction on or improvement of the property; or
|
|
|
|
securing debt to finance the purchase price of the property, stock or debt or the cost of acquiring, constructing on or improving of the property that
were incurred prior to or at the time of or within one year after the acquisition of the property, stock or debt or complete construction on or improvement of the property and commence full operation thereof;
|
|
|
|
liens securing all the notes; and
|
|
|
|
any extension, renewal or replacement of the liens described above if the extension, renewal or replacement is limited to the same property, shares or
debt that secured the lien that was extended, renewed or replaced (plus improvements on such property), except that if the debt secured by a lien is increased as a result of such extension, renewal or replacement, we will be required to include the
increase when we compute the amount of debt that is subject to this covenant.
|
In addition, this covenant
restricting secured debt does not apply to any debt that either we or any of our restricted subsidiaries issue, assume or guarantee if the total principal amount of the debt, when added to (1) all of the other outstanding debt that this
covenant would otherwise restrict, and (2) the total amount of remaining rent, discounted by 11% per year, that we or any restricted subsidiary owes under any lease arising out of a sale and leaseback transaction, is less than or equal to 15%
of our consolidated net tangible assets. When we talk about consolidated net tangible assets, we mean, in general, the aggregate amount of the assets of us and our consolidated subsidiaries after deducting (a) all current liabilities (excluding
any thereof constituting funded debt, as defined in the Indenture, by reason of being renewable or extendible) and (b) all goodwill, trade names, trademarks, patents, unamortized debt discount and expense, and similar intangible assets, all as
set forth in our most recent consolidated balance sheet.
When we talk about a restricted subsidiary, we mean, in general, a
corporation (as defined in the Indenture) more than 50% of the outstanding voting stock of which is owned, directly or indirectly, by us or by one or more of our other subsidiaries, or us and one or more of our other subsidiaries, and has
substantially all its assets located in, or carries on substantially all of its business in, the United States of America; provided, however, that the term shall not include any entity which is principally engaged in leasing or in financing
receivables, or which is principally engaged in financing our operations outside the United States of America.
When we talk
about a principal property, we mean, in general, any building, structure or other facility that we or any restricted subsidiary leases or owns, together with the land on which the facility is built and fixtures comprising a part thereof, which is
located in the United States, used primarily for manufacturing or processing and which has a gross book value in excess of 3% of our consolidated net tangible assets,
28
other than property financed pursuant to certain exempt facility sections of the Internal Revenue Code or which in the opinion of our board of directors, is not of material importance to the
total business.
Limitation on Sale and Leasebacks
We have agreed that neither we nor any of our restricted subsidiaries will enter into a sale and leaseback transaction (as defined in the
Indenture) related to a principal property which would take effect more than one year after the acquisition, construction, improvement and commencement of full operation of the property, except for temporary leases for a term of not more than three
years (or which we or such restricted subsidiary may terminate within three years) and except for leases between us and a restricted subsidiary or between our restricted subsidiaries, unless one of the following applies:
|
|
|
we or our restricted subsidiary could have incurred debt secured by a lien on the principal property to be leased back in an amount equal to the
remaining rent, discounted by 11% per year, for that sale and leaseback transaction, without being required to equally and ratably secure the debt securities as required by the Restrictions on Secured Debt covenant described above, or
|
|
|
|
within one year after the sale or transfer, we or a restricted subsidiary apply to (1) the purchase, construction or improvement of other property
used or useful in the business of, or other capital expenditure by, us or any of our restricted subsidiaries or (2) the retirement of long-term debt, which is debt with a maturity of a year or more, or the prepayment of any capital lease
obligation of the Company or any restricted subsidiary, an amount of cash at least equal to (a) the net proceeds of the sale of the principal property sold and leased back under the sale and leaseback arrangement, or (b) the fair market
value of the principal property sold and leased back under the arrangement, whichever is greater, provided that the amount to be applied or prepaid shall be reduced by (x) the principal amount of any debt securities delivered within one year
after such sale to the Trustee for retirement and cancellation, and (y) the principal amount of our long-term debt (as defined in the Indenture), other than debt securities, voluntarily retired by us or any restricted subsidiary within one year
after such sale, or
|
|
|
|
as to the notes, sale and leaseback transactions existing on February 23, 2018.
|
Consolidation, Merger and Sale of Assets
We may not consolidate with or merge into any corporation (as defined in the Indenture), or convey, transfer or lease our properties and assets substantially as an entirety to any corporation, and may not
permit any corporation to consolidate or merge into us or convey, transfer or lease its properties and assets substantially as an entirety to us, unless:
1. the remaining or acquiring entity is a corporation organized and validly existing under the laws of the United States of America, any state thereof or the District of Columbia
and expressly assumes our obligations on the notes and under the Indenture;
2. immediately after giving effect to the transaction, no event of default (as defined in the
Indenture), and no event which, after notice or lapse of time or both, would become an event of default, would occur and continue;
3. if, as a result of any such consolidation or merger or such conveyance, transfer or lease, our properties or assets would become subject to a mortgage, pledge, lien security
interest or other encumbrance which would not be permitted by the Indenture, we or the successor corporation shall take such steps as shall be necessary effectively to secure the notes equally and ratably with (or prior to) all indebtedness secured
thereby; and
4. we have 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 Article Eight of the
Indenture and that all conditions precedent provided therein relating to such transaction have been complied with.
29
This covenant shall not apply to sale, assignment, transfer, conveyance or other disposition
of assets between or among us and any restricted subsidiary.
Events of Default
Each of the following constitutes an event of default under the Indenture with respect to the notes:
1. failure to pay any interest on the notes when due and payable, continued for 30 days;
2. failure to pay principal of or any premium on the notes when due;
3. failure to perform, or breach of, any other covenant or warranty of ours in the Indenture with
respect to the notes (other than a covenant or warranty included in the Indenture solely for the benefit of a particular series of debt securities other than the notes), continued for 90 days after written notice has been given to us by the Trustee
or the holders of at least 25% in principal amount of the outstanding notes, as provided in the Indenture;
4. certain events involving bankruptcy, insolvency or reorganization; and
5. any other event of default in respect of the notes.
If an event of default with respect to the notes at the time outstanding occurs and continues, either the Trustee or the holders of at
least 25% of the aggregate principal amount of the outstanding notes may declare the principal amount of the notes to be due and payable immediately by giving notice as provided in the Indenture. After the acceleration of the notes, but before a
judgment or decree based on acceleration is rendered, the holders of a majority of the aggregate principal amount of the outstanding notes series may, under certain circumstances, rescind and annul the acceleration if all events of default, other
than the
non-payment
of accelerated principal, have been cured or waived as provided in the Indenture.
If an event of default occurs and is continuing, generally the Trustee will be under no obligation to exercise any of its rights under the Indenture at the request of any of the holders, unless those
holders offer to the Trustee indemnity satisfactory to it. If the Trustee is offered indemnity satisfactory to it under the Indenture, the holders of a majority of the aggregate principal amount of the outstanding notes will have the right to direct
(provided such direction shall not conflict with any rule of law or the Indenture) the time, method and place of:
|
|
|
conducting any proceeding for any remedy available to the Trustee; or
|
|
|
|
exercising any trust or power conferred on the Trustee with respect to the notes.
|
No holder of the notes will have any right to institute any proceeding with respect to the Indenture, or for the appointment of a receiver
or a trustee or for any other remedy under the Indenture, unless:
|
|
|
the holder has previously given to the Trustee written notice of a continuing event of default with respect to the notes;
|
|
|
|
the holders of at least 25% of the aggregate principal amount of the outstanding notes have made written request, and the holder or holders have
offered reasonable indemnity, to the Trustee to institute the proceeding; and
|
|
|
|
the Trustee has failed to institute a proceeding, and has not received from the holders of a majority of the aggregate principal amount of the
outstanding notes a direction inconsistent with the request, within 60 days after the notice, request and offer.
|
However, the limitations do not apply to a suit instituted by a holder of the notes for the enforcement of payment of the principal of or any premium or interest on the notes on or after the applicable
due date specified in the debt security.
We will furnish annually a statement to the Trustee by certain of our officers as to
whether or not we, to the best of their knowledge, are in default in the performance or observance of any of the terms, provisions, conditions or covenants of the Indenture and, if so, specifying all known defaults and the nature and status of such
defaults.
30
If a default of which a responsible officer of the Trustee has actual knowledge occurs with
respect to the notes, the Trustee shall give the holders of the notes notice of such default in accordance with the requirements of the Trust Indenture Act. However, in the case of certain events of default, the Indenture provides that no such
notice shall be given to holders of the notes until at least 30 days after the occurrence of such events of default.
Modification and
Waiver
Modifications and amendments of the Indenture may be made by us and the Trustee with the consent of the holders of
a majority of aggregate principal amount of the outstanding notes. No modification or amendment may, without the consent of the holders of each affected outstanding note:
1. change the stated maturity of the principal of, or any installment of principal of or interest
on, the notes;
2. reduce the principal amount of, or any premium or interest on, the
notes;
3. reduce the amount of principal of an original issue discount security payable
upon acceleration of maturity;
4. change the place or currency of payment of principal
of, or any premium or interest on, the notes;
5. impair the right to institute suit for
the enforcement of any payment on or with respect to the notes;
6. reduce the
percentage of the principal amount of outstanding notes that is required to consent to the modification or amendment of the Indenture;
7. reduce the percentage of the principal amount of outstanding notes necessary for waiver of compliance with certain provisions of the Indenture or for waiver of certain defaults;
or
8. make certain modifications to the provisions of the Indenture with respect to
modification and waiver.
The holders of a majority of the aggregate principal amount of the outstanding notes may waive any
past default or compliance with certain restrictive provisions under the Indenture, except a default in the payment of principal, premium or interest and certain covenants and provisions of the Indenture which cannot be amended without the consent
of the holder of each outstanding note.
In determining whether the holders of the requisite principal amount of the
outstanding notes have given or taken any direction, notice, consent, waiver or other action under the Indenture as of any date, the principal amount of an original issue discount note that will be deemed to be outstanding will be the amount of its
principal that would be due and payable at that time if the note were accelerated to that date.
Certain notes, including those
owned by us or any of our affiliates or for which payment or redemption money has been deposited or set aside in trust for the holders, will not be deemed to be outstanding.
We will generally be entitled to set any day as a record date for the purpose of determining the holders of outstanding notes entitled to give or take any direction, notice, consent, waiver or other
action under the Indenture, in the manner and subject to the limitations provided in the Indenture. In certain limited circumstances, the Trustee will be entitled to set a record date for action by holders, and to be effective, that action must be
taken by holders of the requisite principal amount of the notes within 90 days following the record date. If a record date is set for any action to be taken by holders of the notes, the action may be taken only by persons who are holders of
outstanding notes on the record date.
Defeasance and Discharge Provisions
The provisions of the Indenture relating to defeasance and discharge of indebtedness and defeasance of certain restrictive covenants, may
apply to the notes or to any specified part of the notes.
31
Defeasance and Discharge
.
The Indenture provides that
we may be discharged from all of our obligations with respect to the notes (except for the rights of holders to receive payments of principal and any premium or interest solely from funds deposited in trust, and certain obligations to exchange or
register the transfer of notes, to replace stolen, lost or mutilated notes, to maintain paying agencies, to hold moneys for payment in trust and to defease and discharge notes under Article Thirteen of the Indenture). To be discharged from those
obligations, we must deposit in trust for the benefit of the holders of the notes money or government obligations, or both, which, through the payment of principal of and interest on the deposited money or government obligations, will provide enough
money to pay the principal of and any premium and interest on the notes on the stated maturities and any sinking fund payments in accordance with the terms of the Indenture and the notes. We may only do this if, among other things, we have delivered
to the Trustee an opinion of counsel to the effect that we have received from, or there has been published by, the United States Internal Revenue Service a ruling, or there has been a change in tax law, in either case to the effect that holders of
the notes will not recognize income, gain or loss for federal income tax purposes as a result of the defeasance and discharge and will be subject to federal income tax on the same amount, in the same manner and at the same times as would have been
the case if the defeasance and discharge were not to occur.
Defeasance of Certain
Covenants
.
The Indenture provides that:
|
|
|
in certain circumstances, we may omit to comply with certain restrictive covenants, including those described under CovenantsRestrictions
on Secured Debt, CovenantsLimitation on Sale and Leasebacks, Reports by Company, Consolidation, Merger and Sale of Assets and other covenants identified in any supplemental indenture; and
|
|
|
|
in those circumstances, the occurrence of certain events of default, which are described above in clause (iii) (with respect to the restrictive
covenants) under Events of Default, will be deemed not to be or result in an event of default with respect to the notes.
|
We, to exercise this option, will be required to deposit, in trust for the benefit of the holders of the notes, money or government obligations, or both, which, through the payment of principal of and
interest on the deposited money or government obligations, will provide enough money to pay the principal of and any premium and interest on the notes on the stated maturities in accordance with the terms of the Indenture and the notes. We will also
be required, among other things, to deliver to the Trustee an opinion of counsel to the effect that holders of the notes will not recognize income, gain or loss for federal income tax purposes as a result of the deposit and defeasance and will be
subject to federal income tax on the same amount, in the same manner and at the same times as would have been the case if the deposit and defeasance were not to occur. If we exercise this option with respect to any notes and those notes are
accelerated because of the occurrence of any event of default, the amount of money and U.S. government obligations deposited in trust will be sufficient to pay amounts due on those notes at the time of their stated maturities but might not be
sufficient to pay amounts due on those notes upon that acceleration. In that case, we will remain liable for the payments.
Notices
Notices to holders of the new notes will be given by mail to the addresses of the holders as they appear in the security
register.
Title
We, the Trustee, the paying agent and any of their agents may treat the registered holder of a new note as the absolute owner of the new note for the purpose of making payment and for all other purposes.
Payment of Securities
We will duly and punctually pay the principal of and any premium or interest on the new notes in accordance with the terms of the new notes and the Indenture.
32
Maintenance of Office or Agency
We maintain an office or agency where the notes may be paid and notices and demands to or upon us in respect of the notes and the
Indenture may be served and an office or agency where notes may be surrendered for registration of transfer or exchange. We will give prompt written notice to the trustee of the location, and any change in the location, of any such office or agency.
If at any time we shall fail to maintain any required office or agency or shall fail to furnish the Trustee with the address of any required office or agency, all presentations, surrenders, notices and demands may be served at the office of the
Trustee.
Form, Exchange and Transfer
We will issue the new notes only in fully registered form, without coupons, and, unless otherwise specified in this prospectus, only in denominations of $1,000 and integral multiples thereof.
Holders may, at their option, but subject to the terms of the Indenture and the limitations that apply to global notes,
exchange their notes for other notes of the same series of any authorized denomination and of a like tenor and aggregate principal amount.
Subject to the terms of the Indenture and the limitations that apply to global notes, holders may exchange notes as provided above or present for registration of transfer at the office of the security
registrar or at the office of any transfer agent designated by us. No service charge applies for any registration of transfer or exchange of notes, but the holder may have to pay any tax or other governmental charge associated with registration of
transfer or exchange. The transfer or exchange will be made after the security registrar or the transfer agent is satisfied with the documents of title and the identity of the person making the request. We have appointed Regions Bank as
security registrar and transfer agent. We may at any time designate additional transfer agents or cancel the designation of any transfer agent or approve a change in the office through which any transfer agent acts. However, we will be required to
maintain a transfer agent in each place of payment for the notes.
If the notes are to be partially redeemed, we will not be
required to:
|
|
|
issue or register the transfer of or exchange the notes during a period beginning 15 days before the day of mailing of a notice of redemption and
ending on the day of the mailing; or
|
|
|
|
register the transfer of or exchange the notes selected for redemption, in whole or in part, except the unredeemed portion of any debt security being
redeemed in part.
|
Authentication and Delivery
The new notes shall be executed on behalf of Vulcan by our Chairman of the Board, Vice Chairman of the Board, President, or any Vice
President and attested by our Secretary or any Assistant Secretary. The signatures of any of these officers on the new notes may be manual or by facsimile. We may deliver the new notes so executed by our proper officers to the Trustee for
authentication, together with a company order for authentication and delivery of such new notes, and the Trustee in accordance with such company order shall authenticate and deliver the new notes, subject to certain exceptions stated in the
Indenture.
Payment and Paying Agents
We will pay interest on a new note on any interest payment date to the registered holder of the new note as of the close of business on the regular record date for payment of interest.
We will pay the principal of and any premium and interest on the new notes at the office of the paying agent or paying agents that we
designate. Principal and interest payments on global notes registered in the name of DTCs nominee (including the global notes representing the new notes) will be made in immediately available funds to DTCs nominee as the registered owner
of the global notes.
33
We have appointed Regions Bank as paying agent. We may at any time designate additional
paying agents, rescind the designation of any paying agent or approve a change in the office through which any paying agent acts. We must maintain a paying agent in each place of payment for the notes.
Concerning the Trustee and Agent
Regions Bank will initially act as trustee, authenticating agent, paying agent, registrar and transfer agent for the new notes issued pursuant to this prospectus.
The trustee may resign or be removed at any time with respect to the notes by any act of holders of a majority in principal amount of the
outstanding notes, and we may appoint a successor trustee to act for the notes.
We describe the material business and other
relationships (including additional trusteeships), other than the trusteeship under the Indenture and the agency under the paying agency agreement, between us and any of our affiliates, on the one hand, and each trustee and agent under the Indenture
and the paying agency agreement, on the other hand under Plan of Distribution Other Relationships.
Governing Law
The laws of the State of New York govern the Indenture and the old notes and will govern the new notes.
Global Notes
The new
notes may be issued in whole or in part in the form of one or more global notes that will be deposited with the depository identified herein. Unless it is exchanged in whole or in part for new notes in definitive form, a global note may not be
transferred. However, transfers of the whole new note between the depository for that global note and its nominees or their respective successors are permitted.
The Depository Trust Company, New York, New York, which we refer to in this prospectus as DTC, will act as depository for the global notes. Beneficial interests in global notes will be shown
on, and transfers of global notes will be effected only through, records maintained by DTC and its participants.
DTC has
provided the following information to us:
DTC is a:
|
|
|
limited-purpose trust company organized under the New York Banking Law;
|
|
|
|
banking organization within the meaning of the New York Banking Law;
|
|
|
|
member of the U.S. Federal Reserve System;
|
|
|
|
clearing corporation within the meaning of the New York Uniform Commercial Code; and
|
|
|
|
clearing agency registered under the provisions of Section 17A of the Exchange Act.
|
DTC holds securities that its direct participants deposit with DTC. DTC also facilitates the settlement among direct participants of
securities transactions, in deposited securities through electronic computerized book-entry changes in the direct participants accounts. This eliminates the need for physical movement of securities certificates. Direct participants include
securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations. DTC is owned by a number of its direct participants and by the New York Stock Exchange, Inc., the American Stock Exchange, Inc. and the
Financial Industry Regulatory Authority. Access to DTCs book-entry system is also available to indirect participants such as securities brokers and dealers, banks and trust companies that clear through or maintain a custodial relationship with
a direct participant. The rules applicable to DTC and its direct and indirect participants are on file with the SEC.
34
Principal and interest payments on global notes registered in the name of DTCs nominee
will be made in immediately available funds to DTCs nominee as the registered owner of the global notes. We and the trustee will treat DTCs nominee as the owner of the global notes for all other purposes as well. Accordingly, we, the
trustee and any paying agent will have no direct responsibility or liability to pay amounts due on the global notes to owners of beneficial interests in the global notes. It is DTCs current practice, upon receipt of any payment of principal or
interest, to credit direct participants accounts on the payment date according to their respective holdings of beneficial interests in the global notes. These payments will be the responsibility of the direct and indirect participants and not
of DTC, the trustee, the paying agent or us.
New notes represented by a global note will be exchangeable for new notes in
definitive form of like amount and terms in authorized denominations only if:
|
|
|
DTC notifies us that it is unwilling or unable to continue as depository or DTC ceases to be a registered clearing agency and, in either case, a
successor depository is not appointed by us within 90 days;
|
|
|
|
we determine not to require all of the new notes to be represented by a global note and notify the applicable trustee of our decision; or
|
|
|
|
an event of default is continuing.
|
35
BOOK ENTRY; DELIVERY AND FORM
New notes will be offered and exchanged in minimum principal amounts of $2,000 and integral multiples of $1,000 in excess thereof. We will
issue each series of new notes in the form of one or more permanent global notes in fully registered, book-entry form without interest coupons, which we refer to as the global notes.
Each such global note will be deposited with, or on behalf of, DTC, as depositary, and registered in the name of Cede & Co.
(DTCs partnership nominee). Investors may elect to hold their interests in the global notes through either DTC (in the United States), or Euroclear Bank S.A./N.V., as the operator of the Euroclear System (Euroclear), or Clearstream
Banking, société anonyme, Luxembourg (Clearstream), if they are participants in those systems, or indirectly through organizations that are participants in those systems. Each of Euroclear and Clearstream will appoint a DTC
participant to act as its depositary for the interests in the global notes that are held within DTC for the account of each settlement system on behalf of its participants.
Depository Procedures
The following description of the operations and
procedures of DTC, Euroclear and Clearstream are provided solely as a matter of convenience. These operations and procedures are solely within the control of the respective settlement systems and are subject to changes by them. We take no
responsibility for these operations and procedures and urge investors to contact the system or their participants directly to discuss these matters.
DTC has advised us that DTC is a limited-purpose trust company created to hold securities for its participating organizations (collectively, the participants) and to facilitate the clearance
and settlement of transactions in those securities between participants through electronic book-entry changes in accounts of its participants. The participants include securities brokers and dealers, banks, trust companies, clearing corporations and
certain other organizations. Access to DTCs system is also available to other entities such as banks, brokers, dealers and trust companies that clear through or maintain a custodial relationship with a participant, either directly or
indirectly (collectively, the indirect participants). Persons who are not participants may beneficially own securities held by or on behalf of DTC only through the participants or the indirect participants. The ownership interests in,
and transfers of ownership interests in, each security held by or on behalf of DTC are recorded on the records of the participants and indirect participants.
DTC has also advised us that, pursuant to procedures established by it:
(1) upon deposit of the global notes, DTC will credit the accounts of participants designated by the initial purchasers with portions of the principal amount of the global notes;
and
(2) ownership of these interests in the global notes will be shown on, and the
transfer of ownership thereof will be effected only through, records maintained by DTC (with respect to the participants) or by the participants and the indirect participants (with respect to other owners of beneficial interest in the global notes).
Investors who are participants in DTCs system may hold their interests in the global notes directly through DTC.
Investors who are not participants may hold their interests in the global notes indirectly through organizations (including Euroclear and Clearstream) which are participants in such system. All interests in a global note, including those held
through Euroclear or Clearstream, may be subject to the procedures and requirements of DTC. Those interests held through Euroclear or Clearstream may also be subject to the procedures and requirements of such systems.
Except as described below, owners of interests in the global notes will not have new notes registered in their names, will not receive
physical delivery of new notes in certificated form and will not be considered the registered owners or Holders thereof under the Indenture for any purpose.
Payments in respect of the principal of, premium, if any, interest, and additional interest on the old notes, if any, on a global note registered in the name of DTC or its nominee will be payable to DTC
or its
36
nominee in its capacity as the registered Holder under the Indenture. Under the terms of the Indenture, we and the trustee will treat the persons in whose names the new notes, including the
global notes, are registered as the owners thereof for the purpose of receiving payments and for all other purposes. Consequently, neither we, the trustee nor any agent of ours or the trustee has or will have any responsibility or liability for:
(1) any aspect of DTCs records or any participants or indirect
participants records relating to or payments made on account of beneficial ownership interest in the global notes or for maintaining, supervising or reviewing any of DTCs records relating to the identity of the participants to whose
accounts the global notes are credited or any participants or indirect participants records relating to the beneficial ownership interests in the global notes; or
(2) any other matter relating to the actions and practices of DTC or any of its participants or
indirect participants.
DTC has advised us that its current practice, upon receipt of any payment in respect of securities such
as the new notes (including principal and interest), is to credit the accounts of the relevant participants with the payment on the payment date unless DTC has reason to believe it will not receive payment on such payment date. Each relevant
participant is credited with an amount proportionate to its interest in the principal amount of the relevant security as shown on the records of DTC. Payments by the participants and the indirect participants to the beneficial owners of new notes
will be governed by standing instructions and customary practices and will be the responsibility of the participants or the indirect participants and will not be the responsibility of DTC, the trustee or us. Neither we nor the trustee will be liable
for any delay by DTC or any of its participants in identifying the beneficial owners of the new notes, and we and the trustee may conclusively rely on, and will be protected in relying on, instructions from DTC or its nominee for all purposes.
Transfers between participants in DTC will be effected in accordance with DTCs procedures, and transfers between
participants in Euroclear and Clearstream will be effected in accordance with their respective rules and operating procedures.
Cross-market transfers between the participants in DTC, on the one hand, and Euroclear or Clearstream participants, on the other hand,
will be effected through DTC in accordance with DTCs rules on behalf of Euroclear or Clearstream, as the case may be, by its respective depositary; however, such cross-market transactions will require delivery of instructions to Euroclear or
Clearstream, as the case may be, by the counterparty in such system in accordance with the rules and procedures and within the established deadlines (Brussels time) of such system. Euroclear or Clearstream, as the case may be, will, if the
transaction meets its settlement requirements, deliver instructions to its respective depositary to take action to effect final settlement on its behalf by delivering or receiving interests in the relevant global note in DTC, and making or receiving
payment in accordance with normal procedures for
same-day
funds settlement applicable to DTC. Euroclear and Clearstream participants may not deliver instructions directly to the depositories for Euroclear or
Clearstream.
DTC has advised us that it will take any action permitted to be taken by a Holder of new notes only at the
direction of one or more participants to whose account DTC has credited the interests in the global notes and only in respect of such portion of the aggregate principal amount of the new notes as to which such participant or participants have given
such direction.
Although DTC, Euroclear and Clearstream have agreed to the foregoing procedures to facilitate transfers of
interests in the global notes among participants in DTC, Euroclear and Clearstream, they are under no obligation to perform or to continue to perform such procedures, and may discontinue such procedures at any time. Neither we nor the trustee nor
any of our respective agents will have any responsibility for the performance by DTC, Euroclear or Clearstream or their respective participants or indirect participants of their respective obligations under the rules and procedures governing their
operations.
37
Exchange of Global Notes for Certificated Notes
A global note is exchangeable for definitive notes in registered certificated form (certificated notes), if (a) DTC
notifies us that it is unwilling or unable to continue as depositary for the global notes; (b) DTC has ceased to be a clearing agency registered under the Exchange Act, and in each case of (a) or (b) we fail to appoint a successor
depositary within 90 days after becoming aware of such condition; or (c) we, at our option, notify the trustee that we elect to cause the issuance of definitive notes in exchange for global notes.
In all cases, certificated notes delivered in exchange for any global note or beneficial interests in global notes will be registered in
the names, and issued in any approved denominations, requested by or on behalf of the depositary (in accordance with its customary procedures).
Same Day Settlement and Payment
The new notes represented by the global notes are expected to trade in DTCs
Same-Day
Funds Settlement System, and any permitted secondary market trading
activity in such new notes will, therefore, be required by DTC to be settled in immediately available funds. We expect that secondary trading in any certificated notes will also be settled in immediately available funds.
We expect that, because of time zone differences, the securities account of a Euroclear or Clearstream participant purchasing an interest
in a global note from a participant in DTC will be credited, and any such crediting will be reported to the relevant Euroclear or Clearstream participant, during the securities settlement processing day (which must be a business day for Euroclear
and Clearstream) immediately following the settlement date of DTC. DTC has advised us that cash received in Euroclear or Clearstream as a result of sales of interests in a global note by or through a Euroclear or Clearstream participant to a
participant in DTC will be received with value on the settlement date of DTC but will be available in the relevant Euroclear or Clearstream cash account only as of the business day for Euroclear or Clearstream following DTCs settlement date.
38