HAS
BEEN PREPARED ON
79
the basis of the same information and methodology used to prepare the
appropriate financial information,
in each case, as at the end of such financial year or Financial Quarter to which
such financial information relates or detailing any non-compliance.
(B)
UPON THE OCCURRENCE OF AN INTEGRATED MERGER EVENT, TCN SHALL
DELIVER:
(I)
A COMPLIANCE CERTIFICATE SIGNED BY TWO OF ITS AUTHORISED
SIGNATORIES (AT LEAST ONE OF WHOM SHALL BE A FINANCIAL OFFICER) CONFIRMING THAT
AS AT THE EFFECTIVE DATE OF SUCH INTEGRATED MERGER EVENT, THE MERGER EVENT
CONDITION SET OUT IN PARAGRAPH (B) OF THE DEFINITION THEREOF AND (UNLESS THE
CONSENT OF AN INSTRUCTING GROUP HAS BEEN OBTAINED TO THE INTEGRATED MERGER EVENT
PURSUANT TO PARAGRAPH (A)(II) OF THE DEFINITION OF MERGER EVENT CONDITIONS) THE
MERGER EVENT INTEGRATION TESTS SET OUT IN PARAGRAPHS (C), (D), (E) OR (F) (AS
APPLICABLE) AND (G) OF THE DEFINITION THEREOF HAVE BEEN SATISFIED, SUCH
CERTIFICATE TO SET OUT (IN THE CASE OF SUCH MERGER EVENT INTEGRATION TESTS) THE
RELEVANT RATIOS, THE CALCULATIONS SHOWING COMPLIANCE WITH SUCH RATIOS AND THE
INFORMATION FROM WHICH SUCH CALCULATIONS WERE DERIVED (INCLUDING THE
CALCULATIONS FOR THE COMPONENTS OF SUCH RATIOS ON A LINE BY LINE BASIS); AND
(II)
A BUSINESS PLAN FOR THE COMBINED BUSINESSES OF THE TCN GROUP AND
THE TARGET GROUP FOR THE PERIOD UP TO THE FINAL MATURITY DATE IN RESPECT OF
FACILITY C.
(C)
IF:
(I)
AN EVENT OF DEFAULT HAS OCCURRED, BUT ONLY WHILE SUCH EVENT OF
DEFAULT IS CONTINUING, (PROVIDED THAT WITH RESPECT TO AN EVENT OF DEFAULT
RELATING TO A BREACH OF ANY COVENANT IN CLAUSE 17 (FINANCIAL CONDITION), SUCH
EVENT OF DEFAULT SHALL BE DEEMED TO BE CONTINUING UNTIL SUCH TIME AS TCN HAS
DELIVERED A COMPLIANCE CERTIFICATE PURSUANT TO CLAUSE 16.5 (COMPLIANCE
CERTIFICATES) DEMONSTRATING THAT TCN IS IN COMPLIANCE WITH EACH OF THE COVENANTS
SET OUT IN CLAUSE 17 (FINANCIAL CONDITION)); OR
(II)
IN THE REASONABLE OPINION OF AN INSTRUCTING GROUP, A BREACH OF
ANY COVENANT IN CLAUSE 17 (FINANCIAL CONDITION) IS REASONABLY LIKELY TO OCCUR,
IN EACH SUCH CIRCUMSTANCE, AT TCN'S EXPENSE (IN THE CASE OF SUB-PARAGRAPH (I))
AND AT THE LENDERS' EXPENSE (IN THE CASE OF SUB-PARAGRAPH (II)), BUT WITHOUT
CAUSING ANY UNDUE INTERRUPTION TO THE NORMAL BUSINESS OPERATIONS OF SUCH OBLIGOR
OR ANY MEMBER OF THE TCN GROUP:
(X)
THE FACILITY AGENT SHALL BE ENTITLED TO CALL FOR AN INDEPENDENT
AUDIT AND INVESTIGATION WHICH IS REASONABLE IN SCOPE AND DEGREE HAVING REGARD TO
THE NATURE OF THE EVENT OF DEFAULT OR SUSPECTED BREACH (AS THE CASE MAY BE) OF
THE FINANCIAL POSITION OF THE TCN GROUP; AND
(Y)
THE FACILITY AGENT, ANY FINANCE PARTY, OR REPRESENTATIVE OF THE
FACILITY AGENT OR SUCH FINANCE PARTY (AN "INSPECTING PARTY") SHALL BE ENTITLED
TO HAVE ACCESS, TOGETHER WITH ITS ACCOUNTANTS OR OTHER PROFESSIONAL ADVISERS,
DURING NORMAL BUSINESS HOURS, TO INSPECT OR OBSERVE SUCH PART OF THE BUSINESS OF
THE TCN GROUP AS IS OWNED OR OPERATED BY ANY OBLIGOR, AND TO HAVE ACCESS TO