of Control, or (2) public announcement of the occurrence of a
Change of Control or the Issuer’s intention to effect a Change of
Control, the notes are rated below Investment Grade by at least two
of the three Rating Agencies. Notwithstanding the foregoing, a
Below Investment Grade Ratings Event otherwise arising by virtue of
a particular reduction in rating shall not be deemed to have
occurred in respect of a particular Change of Control (and thus
shall not be deemed a Below Investment Grade Ratings Event for
purposes of the definition of Change of Control Repurchase Event
hereunder) if the Rating Agencies making the reduction in rating to
which this definition would otherwise apply do not publicly
announce or publicly confirm or inform us in writing that the
reduction was the result, in whole or in part, of any event or
circumstance comprised of or arising as a result of, or in respect
of, the applicable Change of Control (whether or not the applicable
Change of Control shall have occurred at the time of the Below
Investment Grade Ratings Event).
“Change of Control” means the occurrence of any of the following:
(a) the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which is
that any “person” or “group” (as those terms are used in
Section 13(d)(3) of the Exchange Act), other than (1) the
Guarantor or any of its subsidiaries, (2) any employee benefit
plan (or a trust forming a part thereof) maintained by the
Guarantor or any of its subsidiaries, or (3) any underwriter
temporarily holding Voting Stock of the Guarantor pursuant to an
offering of such Voting Stock, 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 the combined
voting power of the Guarantor’s Voting Stock or other Voting Stock
into which the Guarantor’s Voting Stock is reclassified,
consolidated, exchanged or changed measured by voting power rather
than number of shares; (b) the direct or indirect sale, lease,
transfer, conveyance or other disposition (other than by way of
merger or consolidation), in one or a series of related
transactions, of all or substantially all of the assets of the
Guarantor and its subsidiaries taken as a whole to any “person” or
“group” (as those terms are used in Section 13(d)(3) of the
Exchange Act) other than to the Guarantor or one of its
subsidiaries; or (c) the Guarantor consolidates with, or
merges with or into, any person, or any person consolidates with,
or merges with or into, the Guarantor, in any such event pursuant
to a transaction in which any of the outstanding Voting Stock of
the Guarantor or such other person is converted into or exchanged
for cash, securities or other property, other than any such
transaction where the shares of the Voting Stock of the Guarantor
outstanding immediately prior to such transaction constitute, or
are converted into or exchanged for, a majority of the Voting Stock
of the surviving person immediately after giving effect to such
transaction.
“Change of Control Repurchase Event” means the occurrence of both a
Change of Control and a Below Investment Grade Ratings Event with
respect to the notes.
“Fitch” means Fitch Ratings Inc., and its successors.
“Investment Grade” means, with respect to Fitch, a rating of BBB–
or better (or its equivalent under any successor rating categories
of Fitch), with respect to Moody’s, a rating of Baa3 or better (or
its equivalent under any successor rating categories of Moody’s),
and with respect to S&P, a rating of BBB– or better (or its
equivalent under any successor rating categories of S&P), or if
the applicable securities are not then rated by Fitch, Moody’s or
S&P an equivalent investment grade credit rating by any
additional Rating Agency or Rating Agencies selected by the
Issuer.
“Moody’s” means Moody’s Investors Service, Inc., a subsidiary of
Moody’s Corporation, and its successors.
“Rating Agency” means (1) each of Fitch, Moody’s and S&P,
and (2) if any of Fitch, Moody’s or S&P ceases to rate the
notes or fails to make a rating of the notes publicly available for
reasons outside of the Issuer’s control, a different nationally
recognized statistical rating organization selected by the Issuer
as a replacement agency for Fitch, Moody’s or S&P, or each of
them, as applicable.
“S&P” means Standard & Poor’s Ratings Services, a
division of S&P Global Inc., and its successors.
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