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or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above
constituting at the time of such election or nomination at least a majority of that board or equivalent governing body (excluding, in the case of both clause (ii) and clause (iii), any individual whose initial nomination for, or assumption of
office as, a member of that board or equivalent governing body occurs as a result of an actual or threatened solicitation of proxies or consents for the election or removal of one or more directors by any person or group other than a solicitation
for the election of one or more directors by or on behalf of the board of directors).
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Notwithstanding the foregoing, a
transaction will not be deemed to involve a Change of Control if (i) the Company becomes a wholly owned subsidiary of a holding company and (ii) the holders of the Voting Stock of such holding company immediately following such transaction
are substantially the same as the holders of the Companys Voting Stock immediately prior to such transaction.
The definition of
Change of Control includes a phrase relating to the direct or indirect sale, lease, transfer, conveyance or other disposition of all or substantially all of our assets and those of our subsidiaries taken as a whole. 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 its notes as a
result of a sale, lease, transfer, conveyance or other disposition of less than all of our assets of those of our subsidiaries taken as a whole to another person or group may be uncertain.
Change of Control Triggering Event
means the occurrence of both a Change of Control and a Below Investment Grade Rating
Event.
Common Stock
of any Person means any and all shares, interests or other participations in, and other
equivalents (however designated and whether voting or
non-voting)
of, such Persons common stock, and includes, without limitation, all series and classes of such common stock.
Consolidated Net Tangible Assets
means, as of any date on which we effect a transaction requiring such Consolidated Net
Tangible Assets to be measured hereunder, the aggregate amount of assets (less applicable reserves) after deducting therefrom: (a) all current liabilities, except for current maturities of long-term debt and obligations under capital leases;
and (b) intangible assets, to the extent included in said aggregate amount of assets, all as set forth on our most recent consolidated balance sheet and computed in accordance with generally accepted accounting principles in the United States
of America applied on a consistent basis.
Credit Agreement
means the Credit Agreement, dated as of October 25,
2017, among the Company, as borrower, Bank of America, N.A., in its capacity as Administrative Agent, Swing Line Lender and L/C Issuer, Wells Fargo Bank, N.A., Citibank, N.A. and U.S. Bank National Association, as L/C Issuers, and the other Lenders
from time to time a party thereto, including any related letters of credit, notes, guarantees, collateral documents, instruments and agreements executed in connection therewith, in each case, as amended, restated, modified, renewed, refunded,
replaced or refinanced from time to time by one or more credit facilities, in which case, the credit agreement or similar agreement together with all other documents and instruments related thereto shall constitute the Credit Agreement
under the indenture, whether with the same or different agents and lenders.
Funded Debt
means Indebtedness, whether or
not contingent, for money borrowed (including all obligations evidenced by bonds, debentures, notes or similar instruments) owed or guaranteed by the Company or any consolidated subsidiary, and any of the debt which under generally accepted
accounting principles in the United States of America would appear as debt on the consolidated balance sheet of the Company.
Investment Grade Rating
means a rating equal to or higher than Baa3 (or the equivalent) by Moodys and
BBB-
(or the equivalent) by S&P, or, in each case, if such Rating Agency ceases to rate the notes or fails to make
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