Certain Definitions
As used in this section, the following terms have the meanings set
forth below.
“Attributable Debt” with regard to a sale and lease-back
transaction of Principal Property means the lesser of:
(1) the fair market value of such Principal
Property as determined in good faith by our board of directors;
or
(2) discounted present value (discounted at
a rate per annum equal to the average interest borne by all
outstanding debt securities issued under the indenture (which may
include debt securities in addition to the notes such as our
existing senior notes) determined on a weighted average basis and
compounded semi-annually) of all net rentals under the lease.
“Consolidated Net Tangible Assets” means, at any date on which we
effect a transaction requiring such Consolidated Net Tangible
Assets to be measured hereunder, the total assets (less applicable
reserves) appearing on our most recent consolidated balance sheet,
prepared in accordance with GAAP after deducting:
(a) total current liabilities, excluding notes and loans payable,
current maturities of long-term indebtedness, and current
maturities of capital leases; and
(b) intangible assets, to the extent included in total assets.
When calculating the amount of Consolidated Net Tangible Assets and
the application of such term under the Indenture’s covenants in
connection with any financing, acquisition, disposition, or other
transaction, including any sale and lease-back transaction, or the
closing of a revolving credit facility (each, a “Limited Condition
Transaction”), in each case, at the option of the Company (the
Company’s election to exercise such option, an “LCT Election”), the
date of determination of Consolidated Net Tangible Assets and
whether any such Limited Condition Transaction is permitted under
the Indenture shall be deemed to be the date (the “LCT Test Date”)
either (a) the definitive agreement for such Limited Condition
Transaction is entered into, or (b) solely in connection with
an acquisition to which the United Kingdom City Code on Takeovers
and Mergers applies, the date on which a “Rule 2.7 announcement” of
a firm intention to make an offer (or equivalent announcement in
another jurisdiction) (an “LCT Public Offer”) in respect of a
target of a Limited Condition Transaction and, in each case, if the
Company or its Subsidiaries would have been permitted to consummate
such Limited Condition Transaction on the relevant LCT Test Date in
compliance with such covenants, such covenants shall be deemed to
have been complied with (or satisfied) for all purposes (in the
case of Liens, for example, whether the Indebtedness to be secured
by such Liens is committed, issued, assumed or incurred at the LCT
Test Date or at any time thereafter); and compliance with covenants
shall not be determined or tested at any time after the applicable
LCT Test Date for such Limited Condition Transaction and any
actions or transaction related thereto (including the incurrence,
issuance or assumption of Indebtedness and the use of proceeds
thereof, the incurrence or creation of Liens, and the consummation
of a sale and lease-back transaction).
“Exchange Act” means the Securities Exchange Act of 1934, as
amended.
“GAAP” means generally accepted accounting principles in the United
States as in effect from time to time, including without
limitation, those set forth in the Accounting Standards
Codification of the Financial Accounting Standards Board or in such
other statements by such other entity as have been approved by a
significant segment of the accounting profession.
“Governmental Authority” means the government of the United States
or any other nation, or of any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government
(including any supra-national bodies such as the European Union or
the European Central Bank).
“Indebtedness” means, with respect to any Person at any date and
without duplication, any indebtedness in respect of borrowed money
or that is evidenced by bonds, notes, debentures or similar
instruments.
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