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 22 (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 21.4 (COMPLIANCE
CERTIFICATES) DEMONSTRATING THAT TCN IS IN COMPLIANCE WITH EACH OF THE COVENANTS
SET OUT IN CLAUSE 22 (FINANCIAL CONDITION)); OR
(II)
IN THE REASONABLE OPINION OF AN INSTRUCTING GROUP, A BREACH OF
ANY COVENANT IN CLAUSE 22 (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
97
(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
BOOKS, RECORDS, ACCOUNTS, DOCUMENTS, COMPUTER PROGRAMMES, DATA OR OTHER
INFORMATION IN THE POSSESSION OF OR AVAILABLE TO SUCH OBLIGOR OR MEMBER OF THE
TCN GROUP AND TO TAKE SUCH COPIES AS MAY BE CONSIDERED APPROPRIATE BY SUCH
INSPECTING PARTY, PROVIDED THAT NO OBLIGOR SHALL (AND TCN SHALL NOT BE OBLIGED
TO PROCURE THAT ANY MEMBER OF THE TCN GROUP SHALL) BE UNDER ANY OBLIGATION TO
ALLOW ANY PERSON TO HAVE ACCESS TO ANY BOOKS, RECORDS, ACCOUNTS, DOCUMENTS,
COMPUTER PROGRAMMES, DATA OR OTHER INFORMATION OR TO TAKE COPIES THEREOF WHERE
TO DO SO WOULD BREACH ANY CONFIDENTIALITY OBLIGATION BINDING ON ANY MEMBER OF
THE GROUP OR WOULD PREJUDICE THE RETENTION OF LEGAL PRIVILEGE TO WHICH SUCH
OBLIGOR OR MEMBER OF THE GROUP IS THEN ENTITLED IN RESPECT OF SUCH BOOKS,
RECORDS, ACCOUNTS, DOCUMENTS, COMPUTER PROGRAMMES, DATA OR OTHER INFORMATION AND
PROVIDED FURTHER THAT NO OBLIGOR SHALL (AND TCN SHALL PROCURE THAT NO MEMBER OF
THE TCN GROUP SHALL) BE ABLE TO DENY THE FACILITY AGENT ANY SUCH INFORMATION BY
REASON OF IT HAVING ENTERED INTO A CONFIDENTIALITY UNDERTAKING WHICH WOULD
PREVENT IT FROM DISCLOSING, OR