OCCURRED AND IS CONTINUING
OR, IF A DEFAULT HAS OCCURRED, WHAT DEFAULT HAS OCCURRED AND THE STEPS BEING
TAKEN TO REMEDY THAT DEFAULT.
(C)
EACH COMPLIANCE CERTIFICATE SHALL BE
SIGNED BY A DIRECTOR OF THE COMPANY AND, WHEN REQUIRED TO BE DELIVERED WITH THE
CONSOLIDATED ANNUAL FINANCIAL STATEMENTS OF THE COMPANY, SHALL BE ACCOMPANIED BY
CONFIRMATION THEREOF (TOGETHER WITH A CUSTOMARY ENGAGEMENT LETTER PROVIDING FOR
RELIANCE BY THE LENDERS) FROM THE COMPANY'S AUDITORS IN FORM SATISFACTORY TO THE
FACILITY AGENT (ACTING REASONABLY).
23.3
REQUIREMENTS AS TO FINANCIAL STATEMENTS
(A)
EACH SET OF FINANCIAL STATEMENTS
DELIVERED PURSUANT TO CLAUSE 23.1 (FINANCIAL STATEMENTS):
(I)
SHALL BE CERTIFIED BY A DIRECTOR OF THE RELEVANT
COMPANY AS GIVING A TRUE AND FAIR VIEW (IN THE CASE OF ANNUAL FINANCIAL
STATEMENTS) OR FAIRLY REPRESENTING (IN OTHER CASES) ITS, OR AS THE CASE MAY BE,
ITS CONSOLIDATED
82
FINANCIAL CONDITION AND OPERATIONS AS AT THE DATE AS AT WHICH THOSE FINANCIAL
STATEMENTS WERE DRAWN UP AND SHALL BE PREPARED USING THE ACCOUNTING PRINCIPLES,
ACCOUNTING PRACTICES AND FINANCIAL REFERENCE PERIODS CONSISTENT WITH THOSE
APPLIED, IN THE PREPARATION OF THE BUSINESS PLAN, UNLESS, IN RELATION TO ANY SET
OF FINANCIAL STATEMENTS, THE COMPANY NOTIFIES THE FACILITY AGENT THAT THERE HAS
BEEN A CHANGE IN THE ACCOUNTING PRINCIPLES, THE ACCOUNTING PRACTICES OR
REFERENCE PERIODS AND ITS AUDITORS (OR, IF APPROPRIATE, THE AUDITORS OF THE
OBLIGOR OR THE COMPANY) DELIVER TO THE FACILITY AGENT:
(A)
A DESCRIPTION OF ANY CHANGE NECESSARY FOR THOSE FINANCIAL
STATEMENTS TO REFLECT THE ACCOUNTING PRINCIPLES, ACCOUNTING PRACTICES AND
REFERENCE PERIODS UPON WHICH THE BUSINESS PLAN OR, AS THE CASE MAY BE, THAT
OBLIGOR'S ORIGINAL FINANCIAL STATEMENTS WERE PREPARED; AND
(B)
SUFFICIENT INFORMATION, IN FORM AND SUBSTANCE AS MAY BE
REASONABLY REQUIRED BY THE FACILITY AGENT, TO ENABLE THE LENDERS TO DETERMINE
WHETHER CLAUSE 24 (FINANCIAL COVENANTS) AND CLAUSE 25.23 (GUARANTORS) HAVE BEEN
COMPLIED WITH, TO DETERMINE THE MARGIN AS SET OUT IN THE DEFINITION OF "MARGIN"
AND CLAUSE 12.3 (MARGIN RATCHET), TO DETERMINE WHETHER A PERSON IS A MATERIAL
COMPANY AS SET OUT IN THE DEFINITION OF "MATERIAL COMPANY" AND TO MAKE AN
ACCURATE COMPARISON BETWEEN THE FINANCIAL POSITION INDICATED IN THOSE FINANCIAL
STATEMENTS AND THE BUSINESS PLAN (IN THE CASE OF THE COMPANY) OR THAT OBLIGOR'S
ORIGINAL FINANCIAL STATEMENTS (IN THE CASE OF AN OBLIGOR).
(B)
IF THE COMPANY NOTIFIES THE FACILITY
AGENT OF A CHANGE IN ACCORDANCE WITH SUB-PARAGRAPH (I) ABOVE THEN THE COMPANY
AND FACILITY AGENT SHALL ENTER INTO NEGOTIATIONS IN GOOD FAITH WITH A VIEW TO
AGREEING:
(I)
WHETHER OR NOT THE CHANGE MIGHT RESULT IN ANY
MATERIAL ALTERATION IN THE COMMERCIAL EFFECT OF ANY OF THE TERMS OF THIS
AGREEMENT; AND
(II)
IF SO, ANY AMENDMENTS TO THIS AGREEMENT WHICH MAY BE
NECESSARY TO ENSURE THAT THE CHANGE DOES NOT RESULT IN ANY MATERIAL ALTERATION
IN THE COMMERCIAL EFFECT OF THOSE TERMS,
and if any amendments are agreed they shall take effect and be binding on each
of the Parties in accordance with their terms.
If no such agreement