ACQUIRES SUBSTANTIALLY ALL OF THE ASSETS AND
ASSUMES SUBSTANTIALLY ALL OF THE LIABILITIES OF THE PREDECESSOR OBLIGOR (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;
(B)
THE SUCCESSOR ENTITY IS ORGANISED IN THE
SAME JURISDICTION AS THAT IN WHICH THE PREDECESSOR OBLIGOR IS ORGANISED AND IS
EITHER:
(I)
AN EXISTING OBLIGOR; OR
(II)
A SUBSIDIARY OF THE COMPANY THAT IS ENTITLED
TO BECOME (AND SUBSEQUENTLY DOES BECOME) AN OBLIGOR IN ACCORDANCE WITH THE
PROVISIONS OF CLAUSE 26.1 (ACCEDING BORROWERS) OR CLAUSE 26.2 (ACCEDING
GUARANTORS); AND
(C)
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 NOT ARISE DIRECTLY AS A RESULT OF THE SOLVENT LIQUIDATION;
(D)
TO THE EXTENT PREVIOUSLY PROVIDED IN
RESPECT OF THE SHARES OF THE PREDECESSOR OBLIGOR, THE FINANCE PARTIES ARE
GRANTED A FIRST RANKING SECURITY INTEREST OVER THE SHARES OF THE SUCCESSOR
ENTITY;
(E)
NO EVENT OF DEFAULT HAS OCCURRED AND IS
CONTINUING OR WOULD ARISE FROM THE LIQUIDATION TRANSFER OR THE SOLVENT
LIQUIDATION;
(F)
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):
(I)
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;
(II)
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);
(III)
COPIES OF THE STATUTORY DECLARATIONS OF THE
DIRECTORS OF THE PREDECESSOR OBLIGOR (TO THE EXTENT REQUIRED BY LAW) GIVEN IN
CONNECTION WITH SOLVENT LIQUIDATION;
(IV)
A COPY OF THE EXECUTED TRANSFER AGREEMENT
RELATING TO THE LIQUIDATION TRANSFER; AND
(V)
THE LEGAL OPINION FROM THE SUCCESSOR
ENTITY'S COUNSEL CONFIRMING (I) THE DUE
169
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.
25.21
ERISA
Neither any Obligor nor any ERISA Affiliate shall maintain or contribute to (or
have an obligation to contribute to) a Plan subject to Title IV or Section 302
of ERISA and/or Section 412 of the Code or to a Multiemployer Plan which could
reasonably be