OBLIGOR OR ANY OF ITS SUBSIDIARIES AS
REASONABLY DETERMINED IN GOOD FAITH BY THE BOARD OF DIRECTORS OR SENIOR
MANAGEMENT OF THE OBLIGOR.
5.6.6
AMENDMENTS:
THE OBLIGOR SHALL NOT AMEND OR
OTHERWISE CHANGE THE TERMS OF THE CUSTODIAN AGREEMENT OTHER THAN IN FAVOR OF THE
OBLIGOR AND NOT ADVERSE TO THE LENDERS.
5.6.7
CONDUCT OF BUSINESS:
THE OBLIGOR SHALL NOT,
AND SHALL NOT PERMIT ANY OF ITS SUBSIDIARIES TO, ENGAGE IN ANY BUSINESS OTHER
THAN THE BUSINESSES ENGAGED IN BY THE OBLIGOR AND ITS SUBSIDIARIES ON THE
RESTATEMENT 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:
(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
45
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: (I)
USD$1,950,000,000; (II) 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 (III) 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