Liquidation Procedure. (a) Subject to the provisions of paragraph (e) below, in the event that the Collateral Agent is instructed to sell any Collateral Obligations in the Portfolio following an acceleration pursuant to Clause 24.15 (Acceleration) (for the purposes of this Clause 24.16, the “Seller”) it shall follow the procedure set out below, with any costs and expenses incurred by the Seller pursuant to this Clause 24.16 being payable by the Borrower: (i) prior to the sale of any Collateral Obligation, the Seller shall give the Parent and/or an Affiliate thereof written notification of its intention to sell the Collateral Obligations (a “Notification of Sale”), and following the receipt of such Notification of Sale, the Parent and/or its Affiliates shall have three (3) Business Days in which they shall have the right to irrevocably commit to purchase in writing any or all Collateral Obligations at a price not less than the most recently calculated Market Value of such Collateral Obligation (unless otherwise agreed with the Seller (acting on the instructions of the Supermajority Senior Lenders)) with such price to be paid not later than five (5) Business Days following receipt of the Notification of Sale (such commitments to purchase, individually, the “PG Bids” and, collectively, the “PG Portfolio Bid”), provided that a commitment to purchase from the Parent and/or an Affiliate thereof only constitutes a PG Bid if: (A) the Parent or Affiliate, as applicable, is not subject to any Insolvency Event or any cashflow or balance sheet insolvency, commencement of negotiations with a view to the general readjustment or rescheduling of its indebtedness or any other steps having been taken pre-insolvency of a similar nature; and (B) the amount of the PG Portfolio Bid, if received, would result in the Senior Lenders and the Arranger receiving all amounts due and payable in accordance with the provisions of paragraph 1.3 (Post-Default Priority of Payments) of Schedule 6 (Priorities of Payment), including: (I) all interest; (II) all indemnities, fees, Break Costs and Increased Costs; (III) all outstanding Advances; and (IV) any other amount due and payable, and, if (I) PG Bids satisfying the conditions at (A) and (B) above are not received on or prior to the third (3rd) Business Day following the Notification of Sale or (II) the purchase price of the Collateral Obligations the subject of the PG Bids are not received by the Collateral Agent on or prior to the fifth (5th) Business Day following the Notification of Sale, the Parent and/or its Affiliates shall be deemed to have failed to exercise their purchase right as set out in this paragraph (i); (ii) if the Parent and/or its Affiliates fail to exercise the purchase right set out in paragraph (i), the Seller shall solicit at least four (4) bids from third parties (two (2) of which must be Eligible Dealers) for any Collateral Obligations constituting the Portfolio on a Collateral Obligation-by-Collateral Obligation basis (such bid, a “Third Party Collateral Obligation Bid”) and a bid for the Portfolio of Collateral Obligations in aggregate ((a “Third Party Portfolio Bid”), any Third Party Collateral Obligation Bid and/or any Third Party Portfolio Bid received from the same third party being together, the “Third Party Bid”), provided that the Seller shall have the right to disregard any bid if the Seller determines in its reasonable discretion either that such bid is not bona fide or that such party is unable to consummate (or cause the consummation of) the sale to such bidder; (iii) having solicited Third Party Bids (whether or not any such Third Party Bids have been received), the Seller shall: (A) notify the Senior Lenders of the amounts (or the deemed amounts, if applicable) of the Third Party Bids received (in each case, if any and on an anonymous basis); and (B) solicit from the Senior Lenders (or an entity or person nominated or designated by any Senior Lender that is an Affiliate of that Senior Lender) a submission, if it so chooses, of a bid matching the highest of any Third Party Collateral Obligation Bid for any Collateral Obligation constituting the Portfolio (a “Senior Lender Collateral Obligation Bid”) and/or a bid matching the highest of any Third Party Portfolio Bid (a “Senior Lender Portfolio Bid”, the Senior Lender Collateral Obligation Bid and/or the Senior Lender Portfolio Bid from the same Senior Lender being together, the “Senior Lender Bid”) (and if on the fifth Business Day after soliciting bids from the Senior Lenders that a Senior Lender does not provide any bid matching the highest of any Third Party Bid, that Senior Lender’s Senior Lender Bid shall be deemed to be zero); and (iv) having solicited Third Party Bids and Senior Lender Bids, the Seller shall determine the higher of: (A) the sum of the aggregate of the highest of each Third Party Collateral Obligation Bid (if any) in respect of each Collateral Obligation (on a Collateral Obligation-by-Collateral Obligation basis); and (B) the highest (if any) Third Party Portfolio Bid received, provided that the Seller’s determination will be subject to the following: (i) if there is no Third Party Collateral Obligation Bid received in respect of any Collateral Obligation, the value of that Collateral Obligation shall be deemed to be zero for purposes of the Seller determining the higher of the Third Party Portfolio Bid and the aggregate Third Party Collateral Obligation Bids; and (ii) if amounts determined in paragraphs (A) and (B), above, are equal, the highest Third Party Portfolio Bid shall be deemed to be the higher amount. (v) having determined the higher of the Third Party Collateral Obligation Bids and the Third Party Portfolio Bids in accordance with paragraph (iv) above: (A) if the Third Party Portfolio Bid is determined by the Seller to be the higher amount, the Seller shall notify the relevant third party and the Senior Lenders of such and, to the extent any Senior Lenders have provided a matching Senior Lender Portfolio Bid, the Senior Lender(s) having provided such matching bid shall be selected as the successful bidder, otherwise the third party having provided the highest Third Party Portfolio Bid shall be selected as the successful bidder and the Seller shall notify the successful and unsuccessful parties that have provided such bids, provided that where matching Senior Lender Portfolio Bids are provided by more than one Senior Lender, the Seller shall accept the matching Senior Lender Portfolio Bids on a pro rata basis to such Senior Lenders’ proportion of Total Commitment held between such Senior Lenders as the successful bid; and (B) otherwise, where the Third Party Portfolio Bid is not selected as the higher amount, the Seller shall select the highest of any Third Party Collateral Obligation Bids provided in respect of each Collateral Obligation (to the extent there has been a Third Party Collateral Obligation Bid in respect a Collateral Obligation) as the higher bid and, to the extent any Senior Lenders have provided a matching Senior Lender Collateral Obligation Bid, the Senior Lender(s) having provided such matching bid shall be selected as the successful bidder in respect of such Collateral Obligation, otherwise the third party having provided the highest Third Party Collateral Obligation Bid shall be selected as the successful bidder and the Seller shall notify the successful and unsuccessful parties that have provided such bids, provided that where matching Senior Lender Collateral Obligation Bids are provided by more than one Senior Lender, the Seller shall accept the matching Senior Lender Collateral Obligation Bids in respect of each Collateral Obligation on a pro rata basis to such Senior Lenders’ proportion of Total Commitment held between such Senior Lenders as the successful bid. (b) If the process described in paragraphs (a)(i) to (a)(v), inclusive, shall fail to sell any Collateral Obligation, the Seller shall repeat the procedures set out in paragraphs (a)(ii) to (a)(v), inclusive, an additional two times in respect of any unsold Collateral Obligations only. (c) If, after the Seller has completed the liquidation procedures as set out in paragraphs (a) and (b) above and one or more Collateral Obligations have not been sold, the Collateral Agent (or any Receiver on its behalf) shall (as directed by the Facility Agent acting on the instructions of the Supermajority Senior Lenders) realise such Collateral Obligation(s) in accordance with the provisions of Article VI (Remedies) and the other provisions of the Security Agreement and upon such realisation any security will be released subject to and in accordance with the provisions of the Security Agreement. (d) Notwithstanding any other obligations to provide information in the Finance Documents, the Borrower will make commercially reasonable efforts to provide any additional information available to it to bidders (or potential bidders) on a timely basis as may be requested in respect of any Collateral Obligation in accordance with the procedures set out in this Clause 24.16. (e) The Collateral Agent acting on the instructions of the Facility Agent (acting on the instructions of the Supermajority Senior Lenders) may appoint: (i) the Lead Bank to run part or all of the liquidation procedure; and (ii) where the Lead Bank is unable or unwilling to run part or all of the liquidation procedure, any other party, to run part or all of the liquidation procedure set out in this Clause 24.16 on its behalf and the definition of “Seller” as used in this Clause 24.16 shall include any such party. The Senior Lenders shall be deemed to have approved the appointment of any such person by the Collateral Agent. The Collateral Agent shall not be required to monitor or supervise any such person and shall not be responsible for any liabilities caused by any act or omission of any such person (unless such liabilities have resulted from the Collateral Agent’s fraud, gross negligence or wilful misconduct, having regard to the provisions of the Finance Documents conferring on the Collateral Agent any trusts, powers, authorities or discretions).
Appears in 1 contract
Sources: Facility Agreement (Partners Group Lending Fund, LLC)
Liquidation Procedure. (a) Subject to the provisions of paragraph (e) below, in In the event that Exchange acting in a commercially reasonable manner and in accordance with Section 5.5 or Schedule "F", "G" or "H" determines to offset, in whole or in part, Obligations of the Collateral Agent is instructed Defaulting Party under any PhysicalPhysically Settled Futures Transactions on behalf of such Contracting Party and having notified the Contracting Party of such determination, Exchange may enter orders and NGX Liquidation Transactions to sell any Collateral offset, in whole or in part, such Obligations in such manner and on such terms as may be then available to Exchange. As a consequence of Exchange exercising its rights under this Section 5.6:
a. any NGX Liquidation Transactions will be treated as allocated to the Portfolio following an acceleration pursuant to Clause 24.15 (Acceleration) (Defaulting Party's account;
b. Exchange hereby agrees that the Defaulting Party will, for the purposes of this Clause 24.16determining Exchange's damages, the “Seller”) it shall follow the procedure set out below, with any costs and expenses incurred by the Seller pursuant be deemed to this Clause 24.16 being payable by the Borrower:
(i) prior have performed its Obligations to the sale of any Collateral Obligation, the Seller shall give the Parent and/or an Affiliate thereof written notification of its intention to sell the Collateral Obligations (a “Notification of Sale”), and following the receipt of such Notification of Sale, the Parent and/or its Affiliates shall have three (3) Business Days in which they shall have the right to irrevocably commit to purchase in writing any deliver or all Collateral Obligations at a price not less than the most recently calculated Market Value of such Collateral Obligation (unless otherwise agreed with the Seller (acting on the instructions of the Supermajority Senior Lenders)) with such price to be paid not later than five (5) Business Days following receipt of the Notification of Sale (such commitments to purchase, individually, the “PG Bids” and, collectively, the “PG Portfolio Bid”), provided that a commitment to purchase from the Parent and/or an Affiliate thereof only constitutes a PG Bid if:
(A) the Parent take gas or AffiliateOil, as applicable, is not subject under all NGX Liquidation Transactions allocated to its account and under that portion or all of its PhysicalPhysically Settled Futures Transactions, which are offset by such NGX Liquidation Transactions (any such transaction entered under Section 5.6(b) or Section 8.3(b), an "Offsetting Transaction");
c. for the purposes of determining Exchange's damages, Exchange will Set-Off any and all such amounts that are owed to the Defaulting Party against any and all such amounts that are owed or deemed to be owed by such Defaulting Party under the Offsetting Transactions to arrive at a single net settlement amount payable to or by the Defaulting Party, which shall be immediately due and payable. For clarity, without limitation to any Insolvency Event or any cashflow or balance sheet insolvencyother rights of Exchange under this Agreement, commencement of negotiations with a view to such net settlement amount shall include, without limitation, an amount as liquidated damages representing the general readjustment or rescheduling of its indebtedness or any other steps having been taken pre-insolvency of a similar nature; and
(B) the estimated amount of the PG Portfolio Bidcosts of investigation and damage suffered by Exchange in respect of injury to the development of, if receivedreputation, would result and integrity of the business carried on by Exchange, where Exchange has determined, in its sole discretion, that appropriate circumstances exist for such liquidated damages.
d. Exchange will forthwith provide the Senior Lenders Defaulting Party with an Invoice for the Offsetting Transactions setting forth the amounts owed to or by the Defaulting Party and the Arranger receiving all amounts due and payable in accordance with the provisions of paragraph 1.3 (Post-Default Priority of Payments) of Schedule 6 (Priorities of Payment), including: (I) all interest; (II) all indemnities, fees, Break Costs and Increased Costs; (III) all outstanding Advances; and (IV) any other net settlement amount due and payable, and, if (I) PG Bids satisfying to or from the conditions at (A) and (B) above are not received on or prior Defaulting Party;
e. payment to the third (3rd) Business Day following the Notification Exchange of Sale or (II) the purchase price of the Collateral Obligations the subject of the PG Bids are not received any net settlement amount owed by the Collateral Agent on or prior to the fifth (5th) Business Day following the Notification of Sale, the Parent and/or its Affiliates Defaulting Party shall be deemed to have failed satisfy all of its Obligations to exercise their purchase right as set out in this paragraph (i);
(ii) if the Parent and/or its Affiliates fail to exercise the purchase right set out in paragraph (i)pay any and all amounts, including, without limitation, the Seller shall solicit at least four (4) bids from third parties (two (2) of which must be Eligible Dealers) for any Collateral Obligations constituting Purchase Amount, with respect to the Portfolio on a Collateral Obligation-by-Collateral Obligation basis (such bid, a “Third Party Collateral Obligation Bid”) and a bid for the Portfolio of Collateral Obligations in aggregate ((a “Third Party Portfolio Bid”), any Third Party Collateral Obligation Bid and/or any Third Party Portfolio Bid received from the same third party being together, the “Third Party Bid”), provided that the Seller shall have the right to disregard any bid if the Seller determines in its reasonable discretion either that such bid is not bona fide or that such party is unable to consummate (or cause the consummation of) the sale to such bidder;
(iii) having solicited Third Party Bids (whether or not any such Third Party Bids have been received), the Seller shall:
(A) notify the Senior Lenders of the amounts (or the deemed amounts, if applicable) of the Third Party Bids received (in each case, if any and on an anonymous basis)Offsetting Transactions; and
(B) solicit from the Senior Lenders (or an entity or person nominated or designated by f. Exchange shall pay any Senior Lender that is an Affiliate of that Senior Lender) a submission, if it so chooses, of a bid matching the highest of any Third Party Collateral Obligation Bid for any Collateral Obligation constituting the Portfolio (a “Senior Lender Collateral Obligation Bid”) and/or a bid matching the highest of any Third Party Portfolio Bid (a “Senior Lender Portfolio Bid”, the Senior Lender Collateral Obligation Bid and/or the Senior Lender Portfolio Bid from the same Senior Lender being together, the “Senior Lender Bid”) (and if on the fifth Business Day after soliciting bids from the Senior Lenders that a Senior Lender does not provide any bid matching the highest of any Third Party Bid, that Senior Lender’s Senior Lender Bid shall be deemed to be zero); and
(iv) having solicited Third Party Bids and Senior Lender Bids, the Seller shall determine the higher of:
(A) the sum of the aggregate of the highest of each Third Party Collateral Obligation Bid (if any) in respect of each Collateral Obligation (on a Collateral Obligation-by-Collateral Obligation basis); and
(B) the highest (if any) Third Party Portfolio Bid received, provided that the Seller’s determination will be subject net settlement amount owed to the following: (i) if there is no Third Defaulting Party Collateral Obligation Bid received in with respect of any Collateral Obligation, the value of that Collateral Obligation shall be deemed to be zero for purposes of the Seller determining the higher of the Third Party Portfolio Bid and the aggregate Third Party Collateral Obligation Bids; and (ii) if amounts determined in paragraphs (A) and (B), above, are equal, the highest Third Party Portfolio Bid shall be deemed to be the higher amount.
(v) having determined the higher of the Third Party Collateral Obligation Bids and the Third Party Portfolio Bids in accordance with paragraph (iv) above:
(A) if the Third Party Portfolio Bid is determined by the Seller to be the higher amount, the Seller shall notify the relevant third party and the Senior Lenders of such and, to the extent any Senior Lenders have provided a matching Senior Lender Portfolio Bid, the Senior Lender(s) having provided such matching bid shall be selected as the successful bidder, otherwise the third party having provided the highest Third Party Portfolio Bid shall be selected as the successful bidder and the Seller shall notify the successful and unsuccessful parties that have provided such bids, provided that where matching Senior Lender Portfolio Bids are provided by more than one Senior Lender, the Seller shall accept the matching Senior Lender Portfolio Bids on a pro rata basis to such Senior Lenders’ proportion of Total Commitment held between such Senior Lenders as the successful bid; and
(B) otherwise, where the Third Party Portfolio Bid is not selected as the higher amount, the Seller shall select the highest of any Third Party Collateral Obligation Bids provided in respect of each Collateral Obligation (to the extent there has been a Third Party Collateral Obligation Bid in respect a Collateral Obligation) as the higher bid and, to the extent any Senior Lenders have provided a matching Senior Lender Collateral Obligation Bid, the Senior Lender(s) having provided such matching bid shall be selected as the successful bidder in respect of such Collateral Obligation, otherwise the third party having provided the highest Third Party Collateral Obligation Bid shall be selected as the successful bidder and the Seller shall notify the successful and unsuccessful parties that have provided such bids, provided that where matching Senior Lender Collateral Obligation Bids are provided by more than one Senior Lender, the Seller shall accept the matching Senior Lender Collateral Obligation Bids in respect of each Collateral Obligation on a pro rata basis to such Senior Lenders’ proportion of Total Commitment held between such Senior Lenders as the successful bid.
(b) If the process described in paragraphs (a)(i) to (a)(v), inclusive, shall fail to sell any Collateral Obligation, the Seller shall repeat the procedures set out in paragraphs (a)(ii) to (a)(v), inclusive, an additional two times in respect of any unsold Collateral Obligations only.
(c) If, after the Seller has completed the liquidation procedures as set out in paragraphs (a) and (b) above and one or more Collateral Obligations have not been sold, the Collateral Agent (or any Receiver on its behalf) shall (as directed by the Facility Agent acting on the instructions of the Supermajority Senior Lenders) realise such Collateral Obligation(s) in accordance with the provisions of Article VI (Remedies) and the other provisions of the Security Agreement Offsetting Transactions and upon such realisation any security will be released subject to and in accordance with the provisions of the Security Agreement.
(d) Notwithstanding any other obligations to provide information in the Finance Documentspayment, the Borrower will make commercially reasonable efforts to provide any additional information available to it to bidders (or potential bidders) on a timely basis as may be requested in respect of any Collateral Obligation in accordance with the procedures set out in this Clause 24.16.
(e) The Collateral Agent acting on the instructions of the Facility Agent (acting on the instructions of the Supermajority Senior Lenders) may appoint:
(i) the Lead Bank to run part or shall assume all of the liquidation procedure; and
(ii) where the Lead Bank is unable or unwilling to run part or all rights of the liquidation procedure, any other party, to run part or all of Defaulting Party under the liquidation procedure set out in this Clause 24.16 on its behalf and the definition of “Seller” as used in this Clause 24.16 shall include any such party. The Senior Lenders shall be deemed to have approved the appointment of any such person by the Collateral Agent. The Collateral Agent shall not be required to monitor or supervise any such person and shall not be responsible for any liabilities caused by any act or omission of any such person (unless such liabilities have resulted from the Collateral Agent’s fraud, gross negligence or wilful misconduct, having regard to the provisions of the Finance Documents conferring on the Collateral Agent any trusts, powers, authorities or discretions)Offsetting Transactions.
Appears in 1 contract
Sources: Risk Disclosure Agreement
Liquidation Procedure. (a) Subject Following (x) the exercise of remedies available to the provisions of paragraph (e) belowOnshore Collateral Agent with respect to the Properties in accordance with Section 6.02, the Servicer may, in its discretion or, upon receipt of a Liquidation Election, shall or (y) a Targeted Maturity Failure, the event that Servicer shall, coordinate the Collateral Agent is instructed to sell any Collateral Obligations in sale of the Portfolio following an acceleration Properties pursuant to Clause 24.15 the following liquidation procedure (Acceleration) (for the purposes of this Clause 24.16, the “SellerLiquidation Procedure”) it shall follow the procedure set out below, with any costs and expenses incurred by the Seller pursuant to this Clause 24.16 being payable by the Borrower:):
(i) first, the Servicer will organize one or more auctions, as necessary, to sell one or more of the Properties;
(ii) second, the Servicer will determine the Properties to be included in the Liquidation Procedure (the “Liquidated Properties”) will notify potential bidders of the time and process appointed for each auction, will note that termination of the Liquidation Procedure at any time and at the discretion of the Servicer will not result in any liability to the Servicer, the Indenture Trustee or any other relevant party and may also participate in informational meetings with potential bidders and perform certain pre-qualification procedures prior to the sale of any Collateral Obligationauction date; provided that, such meetings and procedures will not prevent the Servicer from receiving bids from other bidders on the auction date;
(iii) third, on the auction date, the Seller shall give bidders will submit their bids in a sealed envelope, which at the Parent and/or an Affiliate thereof written notification end of its intention to sell the Collateral Obligations auction period will be opened by the Servicer before a notary public (a “Notification of Sale”notario público), and following which bidders may also be required by the receipt Servicer to provide standby letters of such Notification of Salecredit in connection with their bids;
(iv) fourth, the Parent and/or Servicer will award the Liquidated Property to the bidder that has submitted the highest cash offer (cash offer to exclude cash equivalents);
(v) fifth, the winning bidder will pay the Indenture Trustee the auction price no later than thirty (30) Business Days thereafter; provided that if the winning bidder does not pay the offering price within the allocated thirty (30) Business Day period, the Servicer shall, if applicable, draw on the standby letter of credit provided by the winning bidder and apply such funds to the documented fees and expenses incurred in connection with such auction;
(vi) sixth, if the winning bidder does not pay the offering price within the allotted thirty (30) Business Day period, or if the winning bidder withdraws its Affiliates shall have bid, the Servicer will, within three (3) Business Days in which they shall have Days, notify the right to irrevocably commit to purchase in writing any or all Collateral Obligations at a price second place bidder and request confirmation that their bid has not less than decreased; provided that if the most recently calculated Market Value of such Collateral Obligation (unless otherwise agreed with the Seller (acting on the instructions of the Supermajority Senior Lenders)) with such price to be paid second place bidder does not later than five (5) Business Days following receipt of the Notification of Sale (such commitments to purchase, individuallymaintain its bid, the “PG Bids” and, collectively, the “PG Portfolio Bid”), provided that a commitment to purchase from the Parent and/or an Affiliate thereof only constitutes a PG Bid if:
(A) the Parent or Affiliate, as applicable, is not subject to any Insolvency Event or any cashflow or balance sheet insolvency, commencement Servicer may contact all other bidders in descending order of negotiations with a view to the general readjustment or rescheduling of its indebtedness or any other steps having been taken pre-insolvency of a similar nature; and
(B) the amount of the PG Portfolio Bid, if received, would result in the Senior Lenders and the Arranger receiving all amounts due and payable in accordance with the provisions of paragraph 1.3 (Post-Default Priority of Payments) of Schedule 6 (Priorities of Payment), including: (I) all interest; (II) all indemnities, fees, Break Costs and Increased Costs; (III) all outstanding Advances; and (IV) any other amount due and payable, and, if (I) PG Bids satisfying the conditions at (A) and (B) above are not received on or prior to the third (3rd) Business Day following the Notification of Sale or (II) the purchase price of the Collateral Obligations the subject of the PG Bids are not received by the Collateral Agent on or prior to the fifth (5th) Business Day following the Notification of Sale, the Parent and/or its Affiliates shall be deemed to have failed to exercise their purchase right as set out in this paragraph (i);
(ii) if the Parent and/or its Affiliates fail to exercise the purchase right set out in paragraph (i), the Seller shall solicit at least four (4) bids from third parties (two (2) of which must be Eligible Dealers) for any Collateral Obligations constituting the Portfolio on a Collateral Obligation-by-Collateral Obligation basis (such bid, a “Third Party Collateral Obligation Bid”) and a bid for the Portfolio of Collateral Obligations in aggregate ((a “Third Party Portfolio Bid”), any Third Party Collateral Obligation Bid and/or any Third Party Portfolio Bid received from the same third party being together, the “Third Party Bid”), provided that the Seller shall have the right to disregard any bid if the Seller determines in its reasonable discretion either that such bid is not bona fide or that such party is unable to consummate (or cause the consummation of) the sale to such bidder;
(iii) having solicited Third Party Bids (whether or not any such Third Party Bids have been received), the Seller shall:
(A) notify the Senior Lenders of the amounts (or the deemed amounts, if applicable) of the Third Party Bids received (in each case, if any and on an anonymous basis); and
(B) solicit from the Senior Lenders (or an entity or person nominated or designated by any Senior Lender that is an Affiliate of that Senior Lender) a submission, if it so chooses, of a bid matching the highest of any Third Party Collateral Obligation Bid for any Collateral Obligation constituting the Portfolio (a “Senior Lender Collateral Obligation Bid”) and/or a bid matching the highest of any Third Party Portfolio Bid (a “Senior Lender Portfolio Bid”, the Senior Lender Collateral Obligation Bid and/or the Senior Lender Portfolio Bid from the same Senior Lender being together, the “Senior Lender Bid”) (and if on the fifth Business Day after soliciting bids from the Senior Lenders that a Senior Lender does not provide any bid matching the highest of any Third Party Bid, that Senior Lender’s Senior Lender Bid shall be deemed to be zero); and
(iv) having solicited Third Party Bids and Senior Lender Bids, the Seller shall determine the higher of:
(A) the sum of the aggregate of the highest of each Third Party Collateral Obligation Bid (if any) in respect of each Collateral Obligation (on a Collateral Obligation-by-Collateral Obligation basis); and
(B) the highest (if any) Third Party Portfolio Bid received, provided that the Seller’s determination will be subject to the following: (i) if there is no Third Party Collateral Obligation Bid received in respect of any Collateral Obligation, the value of that Collateral Obligation shall be deemed to be zero for purposes of the Seller determining the higher of the Third Party Portfolio Bid and the aggregate Third Party Collateral Obligation Bids; and (ii) if amounts determined in paragraphs (A) and (B), above, are equal, the highest Third Party Portfolio Bid shall be deemed to be the higher amount.
(v) having determined the higher of the Third Party Collateral Obligation Bids and the Third Party Portfolio Bids in accordance with paragraph (iv) above:
(A) if the Third Party Portfolio Bid is determined by the Seller to be the higher amount, the Seller shall notify the relevant third party and the Senior Lenders of such and, to the extent any Senior Lenders have provided a matching Senior Lender Portfolio Bid, the Senior Lender(s) having provided such matching bid shall be selected as the successful bidder, otherwise the third party having provided the highest Third Party Portfolio Bid shall be selected as the successful bidder and the Seller shall notify the successful and unsuccessful parties that have provided such bids, provided that where matching Senior Lender Portfolio Bids are provided by more than one Senior Lender, the Seller shall accept the matching Senior Lender Portfolio Bids on a pro rata basis to such Senior Lenders’ proportion of Total Commitment held between such Senior Lenders as the successful bid; and
(Bvii) otherwiseseventh, where if the Third Party Portfolio Bid sale of the Liquidated Property is not selected as awarded to any bidder in the higher amountterms of the procedure mentioned above, the Seller shall select the highest of any Third Party Collateral Obligation Bids provided in respect of each Collateral Obligation Servicer may (i) to the extent there the Liquidation Deadline has been a Third Party Collateral Obligation Bid in respect a Collateral Obligation) as not occurred, request new Appraised Values from the higher bid and, to Authorized Appraiser regarding the extent Liquidated Property and delay and set the timing for further auctions; provided that any Senior Lenders have provided a matching Senior Lender Collateral Obligation Bid, the Senior Lender(s) having provided such matching bid further auction shall be selected as conducted in accordance with the successful bidder in respect preceding clauses, or (ii) call a new auction through the invitation of the same and/or different bidders to present an offer within fifteen (15) days following the date of such Collateral Obligation, otherwise the third party having provided the highest Third Party Collateral Obligation Bid shall be selected as the successful bidder and the Seller shall notify the successful and unsuccessful parties that have provided such bids, provided that where matching Senior Lender Collateral Obligation Bids are provided by more than one Senior Lender, the Seller shall accept the matching Senior Lender Collateral Obligation Bids in respect of each Collateral Obligation on a pro rata basis to such Senior Lenders’ proportion of Total Commitment held between such Senior Lenders as the successful bidinvitation.
(b) If Upon a Property Disposition following a Targeted Maturity Failure (but prior to an acceleration of the process described in paragraphs Notes), the Indenture Trustee shall instruct the Onshore Collateral Agent to apply the proceeds from such Property Disposition (a)(ithe “Property Liquidation Proceeds”) to the Issuer Trust: (a)(v)i) first, inclusiveto pay taxes, shall fail fees and expenses related to sell the Liquidation Procedure, (ii) second, transfer to the Operating Accounts amounts required to pay any Collateral ObligationOperating Expenses in accordance with the Hotel Management Agreement and the Subordination and Non-Disturbance Agreement, (iii) third, to pay any invoiced and unpaid Issuance Maintenance Expenses, (iv) fourth, transfer to the Debt Service Account amounts required to redeem the Notes (a “Property Liquidation Redemption”) and (v) fifth, if all amounts outstanding under the Financing Documents have been repaid, the Seller shall repeat balance, if any to the procedures set out in paragraphs (a)(iiaccount(s) to (a)(v), inclusive, an additional two times in respect of any unsold Collateral Obligations onlyinstructed by the Murano Parent Guarantor.
(c) IfThe Servicer or the Majority Holders may pause, after the Seller has completed delay, restart or cancel the liquidation procedures as set out in paragraphs (a) and (b) above and one or more Collateral Obligations have not been sold, the Collateral Agent (or any Receiver on its behalf) shall (as directed by the Facility Agent acting on the instructions of the Supermajority Senior Lenders) realise such Collateral Obligation(s) process in accordance with the provisions Liquidation Procedure; provided however that following the four-year anniversary of Article VI the date of the Event of Default relating to such acceleration (Remedies) the “Liquidation Deadline”), the Servicer or the Majority Holders may no longer pause, delay, restart or cancel the liquidation process, and such Liquidation Procedure will continue automatically pursuant to the terms hereof. In no event may the Servicer or the Majority Holders permit an extension of the Liquidation Deadline beyond September 12, 2035, and the other provisions of the Security Agreement and upon such realisation any security will be released subject to and in accordance with the provisions of the Security Agreement.
(d) Notwithstanding any other obligations to provide information in the Finance Documents, the Borrower will make Servicer shall use commercially reasonable efforts to provide any additional information available sell the Properties prior to it to bidders (or potential bidders) on a timely basis as may be requested in respect of any Collateral Obligation in accordance with the procedures set out in this Clause 24.16September 12, 2040.
(e) The Collateral Agent acting on the instructions of the Facility Agent (acting on the instructions of the Supermajority Senior Lenders) may appoint:
(i) the Lead Bank to run part or all of the liquidation procedure; and
(ii) where the Lead Bank is unable or unwilling to run part or all of the liquidation procedure, any other party, to run part or all of the liquidation procedure set out in this Clause 24.16 on its behalf and the definition of “Seller” as used in this Clause 24.16 shall include any such party. The Senior Lenders shall be deemed to have approved the appointment of any such person by the Collateral Agent. The Collateral Agent shall not be required to monitor or supervise any such person and shall not be responsible for any liabilities caused by any act or omission of any such person (unless such liabilities have resulted from the Collateral Agent’s fraud, gross negligence or wilful misconduct, having regard to the provisions of the Finance Documents conferring on the Collateral Agent any trusts, powers, authorities or discretions).
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