(C)
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;
(D)
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 CLAUSE 5.1.4
HEREOF AND CLAUSE 1 OF THE SECURITY AGREEMENT BETWEEN IT AND THE SECURITY AGENT;
(E)
FAILURE BY THE PARENT TO MAINTAIN A MINIMUM NET WORTH
THAT IS AT ANY TIME LESS THAN THE SUM OF: (I) USD$1,500,000,000; (II) 25% OF THE
NET CASH PROCEEDS OF ANY COMMON OR PREFERRED EQUITY RAISED BY THE PARENT AFTER
THE DATE OF THIS AGREEMENT; AND (III) 25% OF CONSOLIDATED NET INCOME FOR EACH
FINANCIAL YEAR OF THE PARENT:
38
(F)
IN THIS PARAGRAPH (F) THE FOLLOWING TERM HAS THE
FOLLOWING MEANING.
(I)
"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).
6.1.2
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 6.1.2:
(A)
"PARENT LEVERAGE RATIO" MEANS, AT ANY TIME, THE RATIO OF
(I) CONSOLIDATED INDEBTEDNESS AT SUCH TIME TO (II) CONSOLIDATED TOTAL CAPITAL AT
SUCH TIME;
(B)
"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, "CONSOLIDATED INDEBTEDNESS" SHALL
NOT INCLUDE ANY GUARANTEES OF ANY PERSON UNDER OR IN CONNECTION WITH LETTERS OF
CREDIT OR SIMILAR FACILITIES SO LONG AS NO UNREIMBURSED DRAWINGS OR PAYMENTS
HAVE BEEN MADE IN RESPECT THEREOF; AND
(C)
"CONSOLIDATED TOTAL CAPITAL" MEANS, AS OF ANY DATE OF
DETERMINATION, THE SUM OF (I) CONSOLIDATED INDEBTEDNESS AND (II) NET WORTH OF
THE PARENT AT SUCH TIME;
6.1.3
THE PARENT PERMITS, CREATES, ASSUMES, INCURS OR
SUFFERS TO EXIST ANY LIEN ON ANY ASSET, TANGIBLE OR INTANGIBLE,