RULES OF THE
LYONDELLBASELL INDUSTRIES N.V.
1.1 Article 13.3 of the Articles provides that the Management Board may adopt rules governing its internal affairs, which rules require the approval of the Supervisory Board.
1.2 These Rules may only be amended by the Management Board with the approval of the Supervisory Board.
1.3 The Management Board and its Members shall observe and comply with these Rules and action shall be taken by the Management Board and its Members to ensure that the Members shall observe and comply with the principles set out in these Rules.
1.4 These Rules are complementary to (i) the provisions regarding the Management Board and its Members contained in applicable law and regulations, including the principles of good governance and best practice provisions contained in the Dutch Corporate Governance Code and rules of the New York Stock Exchange or any other applicable exchange, (ii) the Articles and (iii) the rules pertaining to the relationship between the Supervisory Board and the Management Board, contained in the Rules of the Supervisory Board.
1.5 If one or more provisions of these Rules are or become invalid, this shall not affect the validity of the remaining provisions. The Management Board, subject to prior approval of the Supervisory Board, may replace the invalid provisions by provisions, which are valid, and the effect of which, given the contents and purpose of these Rules is, to the greatest extent possible, similar to that of the invalid provisions.
1.6 In these Rules, the following expressions shall have the following respective meanings:
Acting Chairman means the Acting Chairman referred to in Clause 2.5.2 of these Rules.
Articles means the Articles of Association of the Company.
CEO means the Chief Executive Officer referred to in Article 12.1 of the Articles and Clause 2.1.2 of these Rules.
CFO means the Chief Financial Officer referred to in Clause 3.3 of these Rules.
Chairman means the Chairman of the Management Board referred to in Clause 2.1.2 of these Rules.
CLO means the Chief Legal Officer referred to in Clause 3.4 of these Rules.
Company means LyondellBasell Industries N.V.
Encumbrance means any encumbrance, lien, pledge, security interest, claim, charges, option, right of first refusal or offer, mortgage, deed of trust, easement, including a restriction on the right to vote equity interests.
Executive Officers means all Members except for the CEO, CFO and Company Secretary.
GAAP means the generally accepted accounting principles in the United States of America.
General Meeting means the Company's general meeting of shareholders.
In writing means by letter, by telecopier, by e-mail, or by message which is transmitted via any other current means of communication and which can be received in written form.
Management Board means the management board of the Company.
Material Acquisition or Divestiture means any acquisition or divestiture, including any investment in or acquisition of a non-controlling interest in any entity (and any divestitures thereof) where the Company and its subsidiaries’ equity in the book value of the asset or investment, or the amounts paid or received in the acquisition or divestiture exceed 5% of the Company’s consolidated total assets.
Meeting means a meeting of the Management Board.
Member means a member of the Management Board.
Person shall be construed broadly and shall include, without limitation, an individual, a partnership, stichting, commanditaire vennootschap, besloten vennootschap, a limited liability company, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization and a governmental entity or any department, agency or political subdivision thereof.
Rules means these rules governing the Management Board's internal affairs, including Annex A.
Secretary means the Secretary of the Management Board referred to in Clause 3.4 of these Rules.
Securities means, with respect to any Person, such Person’s capital stock or other equity interests or any options, warrants or other securities that are directly or indirectly convertible into, or exercisable or exchangeable for, such Person’s capital stock or other equity or equity-linked interests, including phantom stock and stock appreciation rights.
Senior Officer means any executive officer, as that term is defined under Rule 3b-7 promulgated under the Securities Exchange Act of 1934, as amended.
Significant Subsidiary means any “significant subsidiary” as that term is defined in Item 1-02(w) of Regulation S-X of the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended.
Subsidiary means any entity, the majority of whose voting stock or interests are owned by the Company, one or more Subsidiaries of the Company, or the Company and a Subsidiary.
Supervisory Board means the supervisory board of the Company.
2. THE MANAGEMENT BOARD
2.1 Composition and term
2.1.1 The number of Member(s) of the Management Board is determined by the Supervisory Board.
2.1.2 The CEO shall be a Member and shall serve as Chairman.
2.1.3 Except for the initial term of the CEO, which shall be for five (5) years, a Member can be appointed for a maximum term of four (4) years and may be reappointed. There is no limit to the number of times a Member can be reappointed.
2.1.4 If all Members are permanently incapacitated or prevented from acting, Article 14.2 of the Articles shall apply.
2.2 Appointment and dismissal of Members
2.2.1 The Member(s) shall be appointed by the General Meeting in the manner as described in Article 12.2 of the Articles. The Supervisory Board shall nominate one or more candidates for appointment.
2.2.2 A Member is suspended or dismissed in the manner as described in Articles 12.2, 12.5 and 12.6 of the Articles. If a Member is suspended by the General Meeting or the Supervisory Board and the General Meeting does not resolve either to dismiss him or to terminate or continue the suspension within three months from the date of suspension, the sus¬pension shall lapse. A suspended Member shall be given an opportunity to account for his actions at the General Meeting and to be assisted by an adviser in doing so.
2.2.3 A resolution to continue the suspension as referred to above may be adopted only once. In such event the suspension may be continued for a maximum period of three (3) months commencing on the day the General Meeting has adopted the resolution to continue the suspension. If within the period of continued suspension the General Meeting has not resolved either to dismiss such Member or to terminate the suspension, the suspension shall lapse.
The Supervisory Board shall determine the remuneration and other terms of employment for the Member(s) in their roles as executive officers (as that term is defined under U.S. federal securities laws); no additional remuneration is provided to Members (in their capacity as such). Such remuneration and other terms will be on the basis of a remuneration policy determined by the General Meeting, with due observance of Article 12.8 of the Articles.
2.4 Majority and quorum
2.4.1 Save as set out in Clause 5.4, each Member shall have the right to cast one vote on any resolution proposed at a Meeting.
2.4.2 The participation of a majority of the number of Members holding office is required to establish a quorum, provided that one of them is the Chairman or Acting Chairman.
2.4.3 All resolutions of the Management Board shall be passed by a majority of the votes cast. Abstentions will be regarded as votes not cast. In the event of a tie vote or where no votes are cast, the Chairman shall have the deciding vote.
2.4.4 The determination of the Chairman with regard to the results of a vote at a Meeting, and, where there has been a vote about a proposal which has not been put in writing, his determination as to the contents of the resolution passed shall be decisive. However, where the accuracy of any such determination is contested promptly after it has been made, a new vote shall take place if so required by a majority of the Members present or represented at the Meeting or, where the first vote did not take place by response to a roll call or in writing, if one Member present or represented so requires. The original vote shall be voided as a result of any new vote.
2.5.1 The Management Board shall conduct meetings whenever deemed desirable by the Chairman or the Acting Chairman, provided that the Management Board shall hold at least four regularly scheduled Meetings per year. Meetings of the Management Board generally shall be held in the United Kingdom. No Meetings shall be held in The Netherlands and no action shall be taken in The Netherlands by any Member pursuant to his or her authority as a Member.
2.5.2 The Chairman shall chair all Meetings. If the Chairman is absent or otherwise unable to chair a Meeting, he may designate an Acting Chairman. If the Chairman is unable to act due to a conflict or because he is incapacitated, the Member who has the longest tenure with the Management Board shall temporarily serve as Acting Chairman and, in such case, all references to Chairman in these Rules shall be construed to include Acting Chairman. To the extent Members have equal tenure, the eldest Member shall serve as Acting Chairman.
2.5.3 Notice of the Meeting shall be given by the Chairman and shall set out an agenda identifying in reasonable detail the matters to be discussed at the Meeting and copies of any relevant papers to be discussed at the Meeting will be provided to the Members in advance of the meeting. Any matter which is to be submitted to the Management Board for a decision which is not identified in reasonable detail as aforesaid may, notwithstanding the foregoing, be decided upon at the applicable Meeting.
2.5.4 There shall be at least two days between the date on which notice is given to the Member(s) of any Meeting and the date on which it is held, unless the person giving notice of the Meeting determines a shorter notice period is necessary, such that urgent matters may be dealt with on shorter notice.
2.5.5 A Member may be represented at a Meeting by another Member holding a proxy in writing. The existence of such proxy must be proved to the satisfaction of the Chairman.
2.5.6 The Management Board shall not pass resolutions relating to the area of expertise of a particular Member in the absence of that Member, unless the proposal was approved by the particular Member beforehand in writing or the Chairman deems it necessary to proceed in that Member’s absence due to urgency.
2.5.7 Minutes of the matters dealt with at a Meeting shall be sufficient evidence thereof and of the observance of all necessary formalities, provided such minutes are approved by the Chairman.
2.5.8 The Management Board shall require the approval of the Supervisory Board for resolutions required by Dutch law, the New York Stock Exchange Listed Company Manual, and any other applicable law or regulations, the Articles and those matters as listed in Annex A; provided, however, that no resolutions shall be require under Annex A for transactions or matters contemplated by the business plan and budget of the Company already approved by the Supervisory Board.
2.5.9 Management Board resolutions may also be adopted in writing, provided the proposal concerned is submitted to all Members then in office and none of them objects to this form of adoption. Adoption of resolutions in writing shall be effected by statements in writing from all the Members. Copies of all written resolutions shall be kept with the minutes of the Meetings.
3. RESPONSIBILITIES OF INDIVIDUAL MANAGEMENT BOARD MEMBERS
3.1.1 In addition to the responsibilities that follow from applicable law and the Articles, the Management Board shall be collectively responsible for managing the day to day affairs of the Company, setting and achieving the Company's objectives and strategy, managing the associated risk profile, ensuring the delivery of results and addressing corporate social responsibility issues that are relevant to the Company.
3.1.2 In the performance of its duties, the Management Board and each of its Member(s) individually shall be guided by the interests of the Company and its associated enterprise, taking into consideration the interests of the Company’s stakeholders. The Management Board is accountable for these matters to the Supervisory Board and the General Meeting and is responsible for the quality of the Company’s performance.
3.1.3 As set forth in Dutch law and the Dutch Corporate Governance Code, the collective responsibilities of the Management Board shall include:
a. ensuring compliance with all relevant laws and regulations, the Articles and good corporate governance practice;
b. setting and achieving the operational and financial objectives and proposing the strategy of the Company;
c. reviewing the general state of affairs and results of the Company and overseeing investor relations;
d. financing the Company;
e. approving contracts and commitments as required under the Articles and the Company’s policy on delegation of authorities;
f. ensuring proper management of the risks associated with the Company’s activities through appropriate risk management control systems and policies and reporting to the Supervisory Board thereon;
g. ensuring the quality and completeness of publicly disclosed financial reports through establishment and maintenance of the Company’s financial reporting process;
h. consulting with the external auditor of the Company and the Audit Committee of the Supervisory Board to prepare an internal audit schedule;
i. maintaining key relationships with the Supervisory Board, internal auditor of the Company, external auditor of the Company and other stakeholders;
j. monitoring businesses and corporate functions of the Company that are not directly represented on the Management Board;
k. addressing corporate social responsibility issues relevant to the Company;
l. ensuring maintenance of insurance coverage for the Company, including a directors’ and officers’ liability insurance policy; and
m. making recommendations to the Supervisory Board in relation to the matters set out in Annex A to these Rules and where required pursuant to Dutch law, the rules of the New York Stock Exchange, any other applicable regulations or the Articles.
3.1.4 The Management Board shall, at least once every year, propose to the Supervisory Board in writing for approval a budget and business plan for the Company for the succeeding fiscal year.
3.1.5 Members may be charged with specific duties relating to the managerial tasks set out herein. The division of tasks within the Management Board is determined by the Management Board as set forth in these Rules. Each Member shall be accountable to the Management Board for the fulfillment of his duties and shall therefore report to the Management Board on a regular basis and in such a manner as to give the Management Board - also having regard to its collective responsibility - a good understanding of the performance of that Member.
3.1.6 A Member may only exercise such powers as are explicitly attributed or delegated to that Member. A Member may never exercise powers beyond those exercisable by the Management Board as a whole.
3.1.7 In the case of the absence of a Member, his duties and powers shall be carried out by another Member to be designated by the Management Board. A further specification of the responsibilities of the Management Board and the current division of tasks between Members is set out in Clauses 3.2 to 3.5 below.
3.1.8 Each Member shall have the right to receive from other Members and from employees any information about matters which he may deem useful or appropriate in connection with his joint responsibility for the Company’s management. He must consult with the other Members if the implementation of his duties affects the implementation of the duties of the other Members or if the significance of the matter requires consultation with the other Members.
3.2 Chairman and CEO
3.2.1 The Chairman, as CEO, shall have and perform all duties and responsibilities incidental to the office of chief executive officer that may be required by law, rule or regulation and all such other duties as are properly required of this office by the Supervisory Board, including, but not necessary limited to, human resources and compensation matters which are not reserved for the Supervisory Board or its committees or otherwise delegated by the CEO and all other authorities and powers as contained in the Company’s Delegations of Authority Policy, as the same may be amended from time to time.
3.2.2 Within the Management Board, the Chairman shall be responsible for the planning and organizing all of the activities of the Management Board including:
a. the preparation for, and the conduct of, all Meetings;
b. ensuring that the Management Board functions and makes decisions in a collective manner and that the individual tasks set out herein are properly carried out;
c. the quality, quantity and timeliness of the information that goes to Members;
d. determining whether a proposed resolution should be brought to the Management Board for a vote;
e. ensuring that resolutions passed by the Management Board are in accordance with a strategy that is consistent with the objectives of the Company;
f. supervising the implementation of resolutions passed by the Management Board and consulting with Members on their implementation, including regarding Members’ respective tasks set out herein;
g. the development of the Management Board, including Management Board recruitment, evaluation and compensation (subject to Supervisory Board oversight and shareholder approval as required); and
h. the ongoing formal and informal regular communication and consultation with the Supervisory Board, including, but not limited to, (i) any communications required by these Rules, (ii) ensuring that the Supervisory Board is provided with all information necessary for the proper performance of its duties, (iii) designating Members who consult on behalf of the Management Board with Committees of the Supervisory Board and considering Members’ requests to consult with particular members of the Supervisory Board regarding their particular area(s) of expertise, and (iv) consulting regularly with the chairman and the other members of the Supervisory Board, if deemed necessary or advisable.
3.3 Chief Financial Officer
3.3.1 The CFO, as such, is primarily responsible for:
a. proposing the Company’s financial strategy;
b. overseeing and ensuring the integrity of the Company’s accounts;
c. managing the financial reporting of the Company; and
d. performing any other related duties as may be prescribed from time to time by the Supervisory Board or Management Board.
The CFO shall also have and perform all duties and responsibilities incidental to the office of chief financial officer that may be required by law, rule or regulation and all such other duties as are properly required of this office by the Supervisory Board, including, but not necessary limited to, all authorities and powers as contained in the Company’s Delegations of Authority Policy, as the same may be amended from time to time.
3.3.2 Within the Management Board, the CFO is also responsible for taking part in meetings of the Audit Committee of the Supervisory Board and with the Chairman to discuss:
a. the financial reporting process and the integrity of the financial statements of the Company;
b. the qualifications, independence, remuneration and non-audit work of the external auditor of the Company (without prejudice to the responsibilities of the Audit Committee of the Supervisory Board in the area of finance, accounting and tax);
c. performance of tasks by the internal audit department of the Company and the external auditor;
d. the system of internal controls (including but not limited to the effect of internal risk management and control systems);
e. compliance by the Company with recommendations of the external auditor, the Company’s internal audit department and with laws and regulations and applicable codes of conduct in the area of finance, accounting and tax, and the financing of the Company;
f. the financing of the Company and finance-related strategies; and
g. the Company’s tax planning.
3.4 Chief Legal Officer and Secretary
3.4.1 The Management Board shall be assisted by the CLO, who is appointed to serve as Secretary of the Management Board.
3.4.2 The CLO shall ensure that the correct Management Board procedures are followed and legal, compliance and regulatory obligations are met, including, but not limited to, compliance with the Articles, and shall report to the Management Board on legal, compliance, regulatory and government affairs matters. The CLO also shall have and perform all duties and responsibilities incidental to the office of chief legal officer that may be required by law, rule or regulation and all such other duties as are properly required of this office by the Supervisory Board, including, but not necessary limited to, all authorities and powers as contained in the Company’s Delegations of Authority Policy, as the same may be amended from time to time.
3.4.3 As Secretary, the CLO shall assist the Chairman in the organization of the affairs of the Management Board including preparation for, and reporting of, all Meetings.
3.4.4 The Secretary may delegate his duties under these Rules, or any part thereof, to an individual appointed by him in consultation with the Chairman.
3.5 Executive Officers
3.5.1 Each Executive Officer shall report to the Management Board on matters relevant to the business segment(s) for which he is responsible, including operational and financial performance, strategic and material developments and changes in risk profile.
3.5.2 Specifically, each Executive Officer shall primarily be responsible for:
a. formulating and reporting on business and risk management strategy for his segment(s);
b. reviewing and approving contracts, commitments and other routine operating transactions for his segment(s);
c. overseeing and reporting on the joint ventures in his business segment(s); and
d. performing any other related duties as may be prescribed from time to time by the Management Board.
Each of the Executive Officers shall have and perform all duties and responsibilities incidental to their respective offices that may be required by law, rule or regulation and all such other duties as are properly required of those offices by the Supervisory Board, including, but not necessary limited to, all authorities and powers as contained in the Company’s Delegations of Authority Policy, as the same may be amended from time to time.
The Members are entitled to rely on the Company’s senior executives and its outside advisors, including auditors and legal counsel, except to the extent that any such person’s integrity, honesty or competence is in doubt. The Members are also entitled to the indemnification granted by the Company as set forth in Article 24 of the Articles, statutory exculpation and the Company’s directors’ and officers’ liability insurance policy then in place.
5. CONFLICTS OF INTEREST
5.1 Members, while serving as such, shall not: (i) enter into competition with the Company; (ii) demand or accept gifts from the Company for himself or for his spouse, registered partner or other life companion, foster child or relative by blood or marriage up to the second degree as defined under Dutch law in derogation of the Company’s internal policies or as otherwise may create an actual or apparent conflict for such Member; (iii) provide unjustified advantages to third parties to the detriment of the Company; or (iv) take advantage of business opportunities to which the Company is entitled for himself or his spouse, registered partner or other life companion, foster child or relative by blood or marriage up to the second degree.
5.2 A Member shall immediately report any conflict of interest or potential conflict of interest that is of material significance to the Company and/or to the Member concerned, to the chairman of the Supervisory Board and to the Members and shall provide all relevant information, including information concerning his spouse, registered partner or other life companion, foster child and relatives by blood or marriage upon the second degree. The Supervisory Board shall decide, without the Member concerned being present, whether there is a conflict of interest.
5.3 A conflict of interest exists, in any event, if the Company intends to enter into a transaction with a legal entity: (i) in which a Member personally has a material financial interest; (ii) which has a management board member who has a relationship under family law with a Member; or (iii) in which a Member has a management or supervisory position.
5.4 A Member shall not take part in any discussion or decision-making that involves a subject or transaction in relation to which he has a conflict of interest with the Company and shall not be counted in the quorum for any related vote.
5.5 All transactions in which there is a conflict of interest with a Member shall be agreed on terms that are customary for arm's-length transactions in the branch of business in which the Company and its Subsidiaries operate. Decisions to enter into transactions which give rise to conflicts of interest with a Member that are of material significance to the Company and/or the relevant Member require the approval of the Supervisory Board.
5.6 In the event of a conflict of interest between the Company and one or more Members, the Company shall be represented by the person or persons designated for such purpose by the Supervisory Board, save when one or more other persons have been designated by the General Meeting.
6. GOVERNING LAW
6.1 These Rules shall be governed by, and be construed in accordance with, the laws of The Netherlands.
6.2 All disputes arising in connection with these Rules shall be finally settled in accordance with the arbitration rules of The Netherlands Arbitration Institute (NAI). The arbitral tribunal shall be composed of three (3) arbitrators: one selected by the Management Board, one selected by the Supervisory Board and the third agreed upon by the first two selected arbitrators. The place of arbitration shall be Amsterdam. The arbitral procedures shall be conducted in the English language. Consolidation of the arbitral proceedings with other arbitral proceedings pending in The Netherlands, as provided in article 1046 of the Netherlands Code of Civil Procedure, is excluded.
Amended and Restated Effective April 15, 2014
Resolutions to (to the extent applicable, in one or a series of related transactions):
- acquire, repurchase, redeem, cancel, sell, or otherwise dispose of any equity interest of the Company or any of its Significant Subsidiaries, or any equity interest convertible into or exchangeable for, or any rights, warrants or options to acquire any shares of, capital stock of the Company or any of its Significant Subsidiaries;
- declare, set aside, make or pay any dividend or other distribution in respect of the Company’s Securities, or purchase or redeem, directly or indirectly, such Securities;
- amend, modify or waive any material term of any outstanding (i) Security of the Company or any of its Significant Subsidiaries or (ii) indebtedness (as defined in GAAP) in excess of $125,000,000 of the Company or any of its Significant Subsidiaries;
- consummate an initial public offering or a public offering of the Securities of any Subsidiary;
- make any Material Acquisition or Divestiture of any business or assets;
- to adopt, materially amend or materially change the annual budget or strategy of the Company and its Subsidiaries or make aggregate expenditures exceeding the overall budget by greater than 10%;
- make expenditures for capital projects (i) contemplated by the then approved annual budget, in excess of $125,000,000 or (ii) not contemplated by the then approved annual budget, in excess of $50,000,000;
- adopt or amend these Rules;
- enter into any material new line of business;
- agree to enter into or consummate any mergers, amalgamations, consolidations, reorganizations, recapitalizations or other business combinations with unrelated third parties;
- commence the termination, liquidation or dissolution of the Company, or enter into any agreement or arrangement relating thereto;
- propose or institute proceedings to adjudicate the Company or any of its Subsidiaries as bankrupt, or consent to the filing of a bankruptcy proceeding against the Company or any of its subsidiaries, or file a petition or answer or consent seeking reorganization of the Company or any of its Subsidiaries under any applicable bankruptcy or insolvency laws, or consent to the filing of any such petition against the Company or any of its Subsidiaries, or consent to the appointment of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of the Company or any of its Subsidiaries, or make an assignment for the benefit of creditors of the Company or any of its Subsidiaries or admit in writing the Company’s or any of its Subsidiary’s inability to pay its debts generally as they become due;
- subject to applicable insolvency law, propose that the Company be wound up or that any liquidation proceedings be commenced;
- enter into, extend or terminate any contract, agreement, arrangement, commitment, letter of intent, memorandum of understanding, obligation or similar understanding (i) in the ordinary course of business, involving more than $1,500,000,000 for purchase contracts and more than $750,000,000 for sales contracts or (ii) outside of the ordinary course of business, involving more than $50,000,000;
- hire or fire any Senior Officer or create any new Senior Officer position;
- (i) adopt, approve or materially amend compensation and benefit plans and programs of the Company or any of its Subsidiaries, including cash bonus plans, option and equity-based or profit sharing plans, (ii) enter into or adopt any welfare, pension or benefit plan or arrangement involving any labor organization (including without limitation any multi-employer trust providing retirement benefits) or (iii) approve any compensation of any Senior Officer, including any grants under any equity based or profit sharing plans;
- adopt or approve any Company-wide severance agreements or arrangements or any severance agreements or arrangements with any Senior Officer;
- enter into any agreement providing for the indemnification of any director or Senior Officer of the Company;
- purchase, obtain, terminate, discontinue or materially amend any “director and officer” insurance for the benefit of any officer, director, employee, agent or representative of the Company;
- accept or approve the external auditors or auditors’ reports;
- approve the payment of any investment banking fees in excess of $10,000,000;
- make any political contribution or make any charitable contribution from Company funds in excess of $500,000;
- amend or waive any material term of any agreement or transaction that requires approval of the Supervisory Board hereunder;
- change the corporate seat of the Company; or
- make, permit or approve any of the following transactions:
- other than in the ordinary course of business consistent with the then approved business plan and budget of the Company, mortgage or otherwise encumber or subject to any Encumbrance any material assets of the Company or any of its Significant Subsidiaries;
- other than in the ordinary course of business consistent with the then approved business plan and budget of the Company, lend any money or assets of the Company to any other Person in excess of $50,000,000; provided however, that any loans made to directors, officers or employees of either the Company or of any of its Significant Subsidiaries other than normal advances for travel and entertainment expenses and the like, shall require approval irrespective of the amount; or
- incurrence of (a) indebtedness of the Company or its Subsidiaries for money borrowed from others and purchase money indebtedness, in each case in excess of $100,000,000; (b) guarantees by the Company or its Subsidiaries of third party indebtedness of the type and amounts described in clause (a) above, but excluding endorsements of checks and other instruments in the ordinary course; and (c) obligations of the Company or its Subsidiaries to pay rent or other amounts under any lease of (or other arrangement covering the right to use) real or personal property in excess of $50,000,000, which obligations are required to be classified and accounted for as capital leases on a balance sheet of the Company, as of such date computed in accordance with GAAP.