BE ABLE TO CLAIM ANY LEGAL PRIVILEGE IN RESPECT
OF, ANY FINANCIAL INFORMATION RELATING TO ITSELF OR THE GROUP.
21.5
CHANGE IN ACCOUNTING PRACTICES
TCN shall ensure that each set of financial information delivered to the
Facility Agent pursuant to Clause 21.1 (Financial Statements) is prepared using
accounting policies, practices and procedures consistent with US GAAP as at the
date hereof, unless in relation to any such set of financial information TCN
elects to notify the Agents that there have been one or more changes in any such
accounting policies, practices or procedures (including, without limitation, any
change in the basis upon which costs are capitalised):
(A)
TCN PROVIDES A DESCRIPTION OF THE CHANGES AND THE ADJUSTMENTS
WHICH WOULD BE REQUIRED TO BE MADE TO THAT FINANCIAL INFORMATION IN ORDER TO
CAUSE THEM TO REFLECT US GAAP AS AT THE DATE HEREOF AND ANY REFERENCE IN THIS
AGREEMENT TO THAT FINANCIAL INFORMATION SHALL BE CONSTRUED AS A REFERENCE TO
THAT FINANCIAL INFORMATION AS ADJUSTED TO REFLECT US GAAP AS AT THE DATE HEREOF;
OR
(B)
TCN NOTIFIES THE FACILITY AGENT THAT IT IS NOT LONGER PRACTICABLE
TO TEST COMPLIANCE WITH THE FINANCIAL COVENANTS SET OUT IN CLAUSE 22 (FINANCIAL
CONDITION) AGAINST THE FINANCIAL INFORMATION REQUIRED TO BE DELIVERED PURSUANT
TO THIS CLAUSE 21 OR THAT IT WISHES TO CEASE PREPARING THE ADDITIONAL
INFORMATION REQUIRED BY SUB-PARAGRAPH (A) ABOVE, IN WHICH CASE:
(I)
THE FACILITY AGENT AND TCN SHALL ENTER INTO NEGOTIATIONS WITH A
VIEW TO AGREEING ALTERNATIVE FINANCIAL COVENANTS TO REPLACE THOSE CONTAINED IN
CLAUSE 22 (FINANCIAL CONDITION) IN ORDER TO MAINTAIN A CONSISTENT BASIS FOR SUCH
FINANCIAL COVENANTS (AND FOR APPROVAL BY AN INSTRUCTING GROUP);
(II)
IF THE FACILITY AGENT AND TCN AGREE ALTERNATIVE FINANCIAL
COVENANTS TO REPLACE THOSE CONTAINED IN CLAUSE 22 (FINANCIAL CONDITION) WHICH
ARE ACCEPTABLE TO AN INSTRUCTING GROUP, SUCH ALTERNATIVE FINANCIAL COVENANTS
SHALL BE BINDING ON ALL PARTIES HERETO; AND
(III)
IF, AFTER THREE MONTHS FOLLOWING THE DATE OF THE NOTICE GIVEN TO
THE FACILITY AGENT PURSUANT TO THIS SUB-PARAGRAPH (B), THE FACILITY AGENT AND
TCN CANNOT AGREE ALTERNATIVE FINANCIAL COVENANTS WHICH ARE ACCEPTABLE TO AN
INSTRUCTING GROUP, THE FACILITY AGENT SHALL REFER THE MATTER TO ANY OF THE
PERMITTED AUDITORS AS MAY BE AGREED BETWEEN TCN AND THE FACILITY AGENT FOR
DETERMINATION OF THE ADJUSTMENTS
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REQUIRED TO BE MADE TO SUCH FINANCIAL INFORMATION OR THE CALCULATION OF SUCH
RATIOS TO TAKE ACCOUNT OF SUCH CHANGE, SUCH DETERMINATION TO BE BINDING ON THE
PARTIES HERETO, PROVIDED THAT PENDING SUCH DETERMINATION (BUT NOT THEREAFTER)
TCN SHALL CONTINUE TO PREPARE FINANCIAL INFORMATION AND CALCULATE SUCH COVENANTS
IN ACCORDANCE WITH PARAGRAPH (A) ABOVE.
21.6
NOTIFICATIONS
TCN shall furnish or procure that there shall be furnished to the Agents in
sufficient copies for each of the Lenders:
(A)
AS SOON AS REASONABLY PRACTICABLE, DOCUMENTS REQUIRED TO BE
DESPATCHED BY THE ULTIMATE PARENT TO ITS SHAREHOLDERS GENERALLY (OR ANY CLASS OF
THEM) IN THEIR CAPACITY AS SUCH AND ALL DOCUMENTS RELATING TO THE FINANCIAL
OBLIGATIONS OF ANY OBLIGOR