DATE AND SIMILAR OR RELATED BUSINESSES.
6.
EVENTS OF DEFAULT AND REMEDIES
6.1
EVENTS OF DEFAULT DEFINED
Each of the following is an "Event of Default":
6.1.1
WITH RESPECT TO THE OBLIGOR:
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(A)
FAILURE BY THE OBLIGOR TO PAY ANY AMOUNT PAYABLE BY IT
HEREUNDER ON THE DATE DUE;
(B)
IF ANY REPRESENTATION OR WARRANTY MADE BY OR ON BEHALF OF
THE OBLIGOR IN THIS AGREEMENT, IN ANY OTHER FUNDAMENTAL DOCUMENT OR IN ANY
CERTIFICATE, REPORT OR FINANCIAL OR OTHER STATEMENT FURNISHED TO THE AGENT AT
ANY TIME UNDER OR IN CONNECTION WITH THIS AGREEMENT, ANY OTHER FUNDAMENTAL
DOCUMENT OR ANY OTHER SUCH DOCUMENT OR AGREEMENT SHALL HAVE BEEN UNTRUE IN ANY
MATERIAL RESPECT WHEN MADE OR DEEMED TO HAVE BEEN MADE;
(C)
DEFAULT BY THE OBLIGOR IN THE OBSERVANCE OR PERFORMANCE OF
ITS COVENANTS SET FORTH IN (I) CLAUSE 5 (COVENANTS); OR (II) DEFAULT BY THE
OBLIGOR IN THE OBSERVANCE OR PERFORMANCE OF ITS OBLIGATION TO MAINTAIN THE VALUE
OF THE CUSTODIAL ACCOUNT MAINTAINED IN ITS NAME IN ACCORDANCE WITH SUB-CLAUSE
5.1.4 (MAINTENANCE OF ADJUSTED COLLATERAL VALUE) HEREOF AND CLAUSE 1 OF THE
SECURITY AGREEMENT BETWEEN IT AND THE SECURITY AGENT;
6.1.2
FAILURE BY THE PARENT TO MAINTAIN A MINIMUM
CONSOLIDATED TANGIBLE NET WORTH THAT IS AT ANY TIME LESS THAN THE SUM OF:
(A) USD$1,950,000,000; (B) 25% OF THE AGGREGATE NET CASH PROCEEDS RECEIVED FROM
ANY ISSUANCE OF COMMON OR PREFERRED EQUITY INTERESTS OF THE PARENT CONSUMMATED
ON OR AFTER AUGUST 30, 2006; AND (C) 25% OF ITS CONSOLIDATED NET INCOME (IF
POSITIVE) FOR EACH FISCAL QUARTER ENDED AFTER JUNE 30, 2006. FOR PURPOSES OF
THIS SUB-CLAUSE 6.1.2, "NET CASH PROCEEDS" MEANS FOR ANY ISSUANCE OF EQUITY, THE
GROSS CASH PROCEEDS (INCLUDING ANY CASH RECEIVED BY WAY OF DEFERRED PAYMENT
PURSUANT TO A PROMISSORY NOTE, RECEIVABLE OR OTHERWISE, BUT ONLY AS AND WHEN
RECEIVED) RECEIVED FROM SUCH ISSUANCE, NET OF REASONABLE TRANSACTION COSTS
(INCLUDING, AS APPLICABLE, ANY UNDERWRITING, BROKERAGE OR OTHER CUSTOMARY
COMMISSIONS AND REASONABLE LEGAL, ADVISORY AND OTHER FEES AND EXPENSES
ASSOCIATED THEREWITH);
6.1.3
THE PARENT LEVERAGE RATIO ON THE LAST DAY OF ANY
FISCAL QUARTER OR FISCAL YEAR OF THE PARENT IS GREATER THAN 0.35:1.00. FOR
PURPOSES OF THIS SUB-CLAUSE 6.1.3:
(A)
"PARENT LEVERAGE RATIO" MEANS, AT ANY TIME, THE RATIO OF
(I) PARENT CONSOLIDATED INDEBTEDNESS AT SUCH TIME TO (II) PARENT CONSOLIDATED
TOTAL CAPITAL AT SUCH TIME;
(B)
"PARENT CONSOLIDATED INDEBTEDNESS" MEANS, AS OF ANY DATE OF
DETERMINATION, (I) ALL INDEBTEDNESS OF THE GROUP WHICH AT SUCH TIME WOULD APPEAR
ON THE LIABILITY SIDE OF A BALANCE SHEET OF SUCH PERSONS PREPARED ON A
CONSOLIDATED BASIS IN ACCORDANCE WITH GAAP PLUS (II) ANY INDEBTEDNESS FOR
BORROWED MONEY OF ANY OTHER PERSON (OTHER THAN ANY MEMBER OF THE GROUP) AS TO
WHICH ANY MEMBER OF THE GROUP HAS CREATED A GUARANTEE (BUT ONLY TO THE EXTENT OF
SUCH GUARANTEE). FOR THE AVOIDANCE OF DOUBT, "PARENT
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CONSOLIDATED INDEBTEDNESS" SHALL NOT INCLUDE ANY GUARANTEES OF ANY PERSON UNDER
OR IN CONNECTION WITH LETTERS OF