ARE GRANTED A
FIRST RANKING SECURITY INTEREST OVER THE SHARES OF THE SUCCESSOR ENTITY;
123
(V)
NO EVENT OF DEFAULT HAS OCCURRED AND IS
CONTINUING OR WOULD ARISE FROM THE LIQUIDATION TRANSFER OR THE SOLVENT
LIQUIDATION; AND
(VI)
IMMEDIATELY AFTER THE SOLVENT LIQUIDATION,
THE FOLLOWING DOCUMENTS ARE DELIVERED TO THE FACILITY AGENT EACH IN A FORM
PREVIOUSLY APPROVED BY THE FACILITY AGENT (ACTING ON THE INSTRUCTIONS OF AN
INSTRUCTING GROUP):
(1)
copies of solvency declarations of the
directors of the Successor Entity confirming to the best of their knowledge and
belief, that the Successor Entity was balance sheet solvent immediately prior to
and after the Solvent Liquidation, accompanied by any report by the auditors or
other advisers of the relevant Successor Entity on which such directors have
relied for the purposes of giving such declaration;
(2)
copies of the resolutions of the Predecessor
Obligor and the Successor Entity (to the extent required by law) approving the
Liquidation Transfer and/or the Solvent Liquidation (as applicable);
(3)
copies of the statutory declarations of the
directors of the Predecessor Obligor (to the extent required by law) given in
connection with Solvent Liquidation;
(4)
a copy of the executed transfer agreement
relating to the Liquidation Transfer; and
(5)
the legal opinion from the Successor
Entity's counsel confirming (i) the due capacity and incorporation of each of
the Successor Entity and the Predecessor Obligor, (ii) the power and authority
of the Successor Entity to enter into and perform its obligations under this
Agreement and any other Finance Document to which it is a party and (iii) that
the transfer agreement giving effect to the Liquidation Transfer is legally
binding and enforceable in accordance with its terms.
(B)
NO SENIOR FACILITIES OBLIGOR (FOR THESE
PURPOSES, AS USED IN THIS PARAGRAPH (B), A "PREDECESSOR OBLIGOR") SHALL, WITHOUT
THE PRIOR WRITTEN CONSENT OF AN INSTRUCTING GROUP, LIQUIDATE ON A SOLVENT BASIS
(FOR PURPOSES OF THIS PARAGRAPH (B), THE "SOLVENT LIQUIDATION") UNLESS:
(I)
ON OR PRIOR TO THE SOLVENT LIQUIDATION,
AN ENTITY (FOR PURPOSES OF THIS PARAGRAPH (B), THE "SUCCESSOR ENTITY") ACQUIRES
SUBSTANTIALLY ALL OF THE ASSETS AND ASSUMES SUBSTANTIALLY ALL OF THE LIABILITIES
OF THE PREDECESSOR OBLIGOR (FOR PURPOSES OF THIS PARAGRAPH (B), A "LIQUIDATION
TRANSFER"), EXCLUDING ANY RIGHTS UNDER CONTRACTS THAT CANNOT BE ASSIGNED OR
LIABILITIES THAT WILL BE SATISFIED OR RELEASED UPON THE SOLVENT LIQUIDATION, ON
AN ARMS' LENGTH BASIS AND FOR FULL CONSIDERATION;
(II)
THE SUCCESSOR ENTITY IS ORGANISED IN THE
SAME JURISDICTION AS THAT IN WHICH THE PREDECESSOR OBLIGOR IS ORGANISED AND IS
EITHER:
(x)
an existing Senior Facilities Obligor; or
(y)
a Subsidiary of the Company that is entitled to become (and
subsequently does become) a Senior Facilities Obligor in accordance with the
provisions of Clause 26.1 or Clause 26.2 of the Senior Facilities Agreement; and
124
(III)
THE SUCCESSOR ENTITY DOES NOT INCUR ANY
ADDITIONAL MATERIAL LIABILITIES IN CONNECTION WITH THE SOLVENT LIQUIDATION OTHER
THAN THOSE WHICH ARE TO BE TRANSFERRED TO IT BY THE PREDECESSOR OBLIGOR BUT
WHICH DID