Restriction on Enforcement of Note Liens. (a) So long as any Priority Lien Obligations exist that have not been Discharged, the holders of Priority Liens will have the exclusive right to enforce, foreclose, collect or realize upon any Collateral. Subject to Section 3.14 and the second set of clauses (1) through (4) below, the Trustee and Holders of Notes will not authorize or instruct the Note Collateral Agent, and the Note Collateral Agent will not, and will not authorize or direct any Person acting for it, the Trustee or any holder of Note Obligations, to exercise any right or remedy with respect to any Collateral (including any right of set-off) or take any action to enforce, collect or realize upon any Collateral, including without limitation, any right, remedy or action to: (1) take possession of or control over any Collateral; (2) exercise any collection rights in respect of any Collateral or retain any proceeds of accounts and other obligations receivable paid to it directly by any account debtor; (3) exercise any right of set-off against any property subject to any Priority Lien; (4) foreclose upon any Collateral or take or accept any transfer of title in lieu of foreclosure upon any Collateral; (5) enforce any claim to the proceeds of insurance upon any Collateral; (6) deliver any notice, claim or demand relating to the Collateral to any Person (including any securities intermediary, depositary bank or landlord) in the possession or control of any Collateral or acting as bailee, custodian or agent for any holder of Priority Liens in respect of any Collateral; (7) otherwise enforce any remedy available upon default for the enforcement of any Lien upon the Collateral; (8) deliver any notice or commence any proceeding for any of the foregoing purposes; or (9) seek relief in any Insolvency or Liquidation Proceeding permitting it to do any of the foregoing; except that, in any event, any such right or remedy may be exercised and any such action may be taken, authorized or instructed: (1) without any condition or restriction whatsoever, so long as no Priority Lien Obligations exist that have not been Discharged; (2) as necessary to redeem any Collateral in a creditor’s redemption permitted by law or to deliver any notice or demand necessary to enforce (subject to no Priority Lien Obligations existing that have not been Discharged) any right to claim, take or receive proceeds of Collateral remaining at any time when no Priority Lien Obligations exist that have not been Discharged in the event of foreclosure or other enforcement of any prior Lien; (3) as necessary to perfect, or maintain the perfection or priority of, a Lien upon any Collateral by any method of perfection except through possession or control; or (4) as necessary to prove, preserve or protect (but not enforce) the Note Liens, in each case, subject to the provisions of the Security Documents. (b) None of the rights and remedies otherwise available to the holders of Priority Liens in respect of the foreclosure or other enforcement of Priority Liens and none of the other rights and remedies of the holders of Priority Liens and Priority Lien Obligations under the Priority Lien Documents will be impaired, restricted or affected by this Article 3. (c) At any time any Priority Lien Obligations exist that have not been Discharged: (1) the Priority Lien Collateral Agent will have the sole right to adjust settlement of all insurance claims and condemnation awards in the event of any covered loss, theft, destruction or condemnation of any Collateral and all claims under insurance constituting Collateral; (2) all proceeds of insurance on or constituting Collateral and all condemnation awards resulting from a taking of any Collateral will inure to the benefit of, and will be paid to, the holders of the Priority Liens; and (3) the Note Collateral Agent will co-operate, if necessary and as reasonably requested by the Priority Lien Collateral Agent, in effecting the payment of insurance proceeds to the Priority Lien Collateral Agent. (d) Subject to Section 3.14 (other than clauses (4) and (5) of Section 3.14), so long as there are any Priority Lien Obligations existing that have not been Discharged, none of the Holders of Notes, the Trustee or the Note Collateral Agent will: (1) request judicial relief, in an Insolvency or Liquidation Proceeding or in any other court, that would hinder, delay, limit or prohibit the lawful exercise or enforcement of any right or remedy otherwise available to the holders of Priority Liens in respect of Priority Liens or that would limit, invalidate, avoid or set aside any Priority Lien or Priority Lien Security Document or subordinate the Priority Liens to the Note Liens or grant the Priority Liens equal ranking to the Note Liens; (2) oppose or otherwise contest any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement of Priority Liens made by any holder of Priority Liens in any Insolvency or Liquidation Proceeding; (3) oppose or otherwise contest any lawful exercise by any holder of Priority Liens of the right to credit bid Priority Lien Debt at any sale in foreclosure of Priority Liens; (4) oppose or otherwise contest any other request for judicial relief made in any court by any holder of Priority Liens relating to the lawful enforcement of any Priority Lien; (5) request relief from the automatic stay; or (6) challenge the enforceability, perfection or the validity of the Priority Lien Obligations or the Priority Liens. (e) Except for payments received free from the Priority Liens as provided in Section 3.4(f)(2), below, all proceeds of Collateral received by the Trustee or the Note Collateral Agent at any time when any Priority Lien Obligations exist that have not been Discharged will be held by the Trustee or the Note Collateral Agent for account of the holders of Priority Liens and remitted to the Priority Lien Collateral Agent upon demand by the Priority Lien Collateral Agent. To the extent provided by applicable law, the Note Liens will remain attached to and, subject to this Article 3, enforceable against all proceeds so held or remitted. (f) Except for payments that are made from or constitute proceeds of property subject to Priority Liens and that are received by the Trustee or the Note Collateral Agent or any holder of Note Obligations at any time when any Priority Lien Obligations exist that have not been Discharged and after (i) the commencement of any Insolvency or Liquidation Proceeding in respect of the Company or the grantor of any Priority Lien or (ii) the Trustee and the Note Collateral Agent have received written notice from the Priority Lien Collateral Agent stating that (A) the Priority Lien Debt has become due and payable in full (whether at maturity, upon acceleration or otherwise) or (B) the holders of Priority Liens have become entitled to, and desire to, enforce any or all of the Priority Liens by reason of a default under Priority Lien Documents: (1) no payment of money (or the equivalent of money) made by the Company or a Guarantor to the Trustee, the Note Collateral Agent, any Holder of Notes or any other holder of Note Obligations (including, without limitation, payments and prepayments made for application to Note Obligations) or other payments or deposits made pursuant to any provision of the Indenture, any other Note Document and this Agreement will in any event be subject to the foregoing provisions of this Section 3.4 or otherwise affected by any of the provisions of Section 3.14; and (2) all payments permitted to be received under Section 3.4(f)(1) will be received by the Trustee, the Note Collateral Agent, the Holders of Notes and the other holders of Note Obligations free from the Priority Liens and all other Liens thereon except the Note Liens.
Appears in 1 contract
Restriction on Enforcement of Note Liens. (a) So Subject to clauses (1) through (4) below, Section 3.3(b) and Section 3.14, so long as any Priority Lien Obligations exist that have not been Discharged, the holders of Priority Liens will have the exclusive right to enforce, foreclose, collect or realize upon any Collateral. Subject Collateral consistent with the provisions of the Priority Lien Security Documents and applicable law; provided, however, that, prior to Section 3.14 or concurrent with the taking of any such Enforcement Action, the Priority Lien Collateral Agent shall endeavor to deliver written notice to the Note Collateral Agent that such Enforcement Action has been commenced, provided that the Priority Lien Collateral Agent shall have no liability to the Holders for failure to give any notice which is not otherwise expressly required by applicable law, and the second set failure to give any notice to the Note Collateral Agent or the Holders shall not constitute a default under this Agreement or render ineffective any provision of clauses (1) through (4) below, the this Agreement. The Trustee and the Holders of Notes will not authorize or instruct the Note Collateral Agent, and the Note Collateral Agent will not, and will not authorize or direct any Person acting for it, the Trustee or any holder Holder of Note Obligations, to exercise any right or remedy with respect to any Collateral (including any right of set-off) or take any action to enforceEnforcement Action, collect or realize upon any Collateral, including without limitation, any right, remedy or action to:
(1) take possession of or control over any Collateral;
(2) exercise any collection rights in respect of any Collateral or retain any proceeds of accounts and other obligations receivable paid to it directly by any account debtor;
(3) exercise any right of set-off against any property subject to any Priority Lien;
(4) foreclose upon any Collateral or take or accept any transfer of title in lieu of foreclosure upon any Collateral;
(5) enforce any claim to the proceeds of insurance upon any Collateral;
(6) deliver any notice, claim or demand relating to the Collateral to any Person (including any securities intermediary, depositary bank or landlord) in the possession or control of any Collateral or acting as bailee, custodian or agent for any holder of Priority Liens in respect of any Collateral;
(7) otherwise enforce any remedy available upon default for the enforcement of any Lien upon the Collateral;
(8) deliver any notice or commence any proceeding for any of the foregoing purposes; or
(9) seek relief in any Insolvency or Liquidation Proceeding permitting it to do any of the foregoing; except that, in any event, any such right or remedy may be exercised and any such action Enforcement Action may be taken, authorized or instructedinstructed by the Note Collateral Agent:
(1) without any condition or restriction whatsoever, so long as no Priority Lien Obligations exist that have not been Discharged;
(2) as necessary to redeem any Collateral in a creditor’s redemption permitted by law or to deliver any notice or demand necessary to enforce (subject to no Priority Lien Obligations existing that have not been Discharged) any right to claim, take or receive proceeds of Collateral remaining at any time when no Priority Lien Obligations exist that have not been Discharged in the event of foreclosure or other enforcement of any prior Lien;
(3) as necessary to perfect, or maintain the perfection or priority of, a Lien upon any Collateral by any method of perfection except through possession or control; orprovided, however, that, in the event that the Priority Lien Collateral Agent, after written notice from the Trustee or the Note Collateral Agent to do so, fails to perfect its Priority Liens against any Collateral for which possession or control is required in order to perfect such Liens, then the Note Collateral Agent may take control or possession of such Collateral in order to perfect its Lien in accordance with applicable law, provided, further, that the Note Collateral Agent shall also hold any such Collateral for the benefit of the Priority Lien Collateral Agent and the Lenders consistent with Article 3 hereof;
(42) as necessary to prove, preserve or protect (but not enforce) the Note Liens, in each case, subject to the provisions of the Note Security Documents;
(3) with respect to any filing by any Person of an Insolvency or Liquidation Proceeding, the filing of any claim in or the taking of any other action not inconsistent with the express provisions of this Agreement, required by applicable law with respect to such Insolvency or Liquidation Proceeding, including filing any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleadings (i) in order to prevent any Person (other than the Priority Lien Collateral Agent or Lenders) from seeking to foreclose on the Collateral or to supersede any claim thereto of the Holders of the Note Obligations, the Trustee or the Note Collateral Agent or (ii) in opposition to any motion, claim, adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the disallowance of the claims of the Holders of the Note Obligations, the Trustee or the Note Collateral Agent; or
(4) to exercise Credit Bid Rights with respect to the Note Debt at any sale or foreclosure of Collateral.
(b) If a Note Event of Default has occurred under the Indenture and the Holders of Note Obligations have accelerated or demanded payment of the Note Obligations or delivered written notice to AMERCO that a Note Event of Default based on AMERCO's failure to make a payment of principal or interest as and when due has occurred and is continuing in accordance with the terms of the Indenture, the Note Collateral Agent may give the Priority Lien Collateral Agent written notice (each, a "Default Notice") thereof, specifying the nature of the Note Event of Default in reasonable detail, and the Priority Lien Collateral Agent's receipt of which shall commence a Standstill Period as against the Note Collateral Agent. If the Note Event of Default is continuing at the expiration of the Standstill Period, and if the Priority Lien Collateral Agent has not, prior to the expiration of such Standstill Period, notified the Note Collateral Agent that the Priority Lien Collateral Agent has commenced and is diligently and in good faith pursuing one or more Enforcement Actions, then (and only then), upon an additional written notice to the Priority Lien Collateral Agent, the Note Collateral Agent may, subject to the Lien priority set forth in this Agreement and prior application of the proceeds of the Collateral (less the Note Collateral Agent's reasonable expenses, if any, in obtaining such proceeds) to the Priority Lien Obligations, as provided herein, take one or more Enforcement Actions.
(c) None of the rights and remedies otherwise available to the holders of Priority Liens in respect of the foreclosure or other enforcement of Priority Liens and none of the other rights and remedies of the holders of Priority Liens and Priority Lien Obligations under the Priority Lien Documents will be impaired, restricted or affected by this Article 33 or any actions taken by the holders of Priority Liens hereunder which are not in violation of the terms of this Agreement.
(cd) At any time any Priority Lien Obligations exist that have not been Discharged:
(1) the Priority Lien Collateral Agent will have the sole right to adjust settlement of all insurance claims and condemnation awards in the event of any covered loss, theft, destruction or condemnation of any Collateral and all claims under insurance constituting Collateral, subject to the terms of the Priority Lien Security Documents;
(2) all proceeds of insurance on or constituting Collateral and all condemnation awards resulting from a taking of any Collateral will inure to the benefit of, and will be paid to, the holders of the Priority Liens; and
(3) the Note Collateral Agent will co-operatecooperate, if necessary and as reasonably requested by the Priority Lien Collateral Agent, in effecting the payment of insurance proceeds to the Priority Lien Collateral Agent.
(d) Subject to Section 3.14 (other than clauses (4) and (5) of Section 3.14), so long as there are any Priority Lien Obligations existing that have not been Discharged, none of the Holders of Notes, the Trustee or the Note Collateral Agent will:
(1) request judicial relief, in an Insolvency or Liquidation Proceeding or in any other court, that would hinder, delay, limit or prohibit the lawful exercise or enforcement of any right or remedy otherwise available to the holders of Priority Liens in respect of Priority Liens or that would limit, invalidate, avoid or set aside any Priority Lien or Priority Lien Security Document or subordinate the Priority Liens to the Note Liens or grant the Priority Liens equal ranking to the Note Liens;
(2) oppose or otherwise contest any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement of Priority Liens made by any holder of Priority Liens in any Insolvency or Liquidation Proceeding;
(3) oppose or otherwise contest any lawful exercise by any holder of Priority Liens of the right to credit bid Priority Lien Debt at any sale in foreclosure of Priority Liens;
(4) oppose or otherwise contest any other request for judicial relief made in any court by any holder of Priority Liens relating to the lawful enforcement of any Priority Lien;
(5) request relief from the automatic stay; or
(6) challenge the enforceability, perfection or the validity of the Priority Lien Obligations or the Priority Liens.
(e) Except for payments received free from the Priority Liens as provided in Section 3.4(f)(2), below, all proceeds of Collateral received by the Trustee or the Note Collateral Agent at any time when any Priority Lien Obligations exist that have not been Discharged will be held by the Trustee or the Note Collateral Agent for account of the holders of Priority Liens and remitted to the Priority Lien Collateral Agent upon demand by the Priority Lien Collateral Agent. To the extent provided by applicable law, the Note Liens will remain attached to and, subject to this Article 3, enforceable against all proceeds so held or remitted.
(f) Except for payments that are made from or constitute proceeds of property subject to Priority Liens and that are received by the Trustee or the Note Collateral Agent or any holder of Note Obligations at any time when any Priority Lien Obligations exist that have not been Discharged and after (i) the commencement of any Insolvency or Liquidation Proceeding in respect of the Company or the grantor of any Priority Lien or (ii) the Trustee and the Note Collateral Agent have received written notice from the Priority Lien Collateral Agent stating that (A) the Priority Lien Debt has become due and payable in full (whether at maturity, upon acceleration or otherwise) or (B) the holders of Priority Liens have become entitled to, and desire to, enforce any or all of the Priority Liens by reason of a default under Priority Lien Documents:
(1) no payment of money (or the equivalent of money) made by the Company or a Guarantor to the Trustee, the Note Collateral Agent, any Holder of Notes or any other holder of Note Obligations (including, without limitation, payments and prepayments made for application to Note Obligations) or other payments or deposits made pursuant to any provision of the Indenture, any other Note Document and this Agreement will in any event be subject to the foregoing provisions of this Section 3.4 or otherwise affected by any of the provisions of Section 3.14; and
(2) all payments permitted to be received under Section 3.4(f)(1) will be received by the Trustee, the Note Collateral Agent, the Holders of Notes and the other holders of Note Obligations free from the Priority Liens and all other Liens thereon except the Note Liens.of
Appears in 1 contract
Restriction on Enforcement of Note Liens. (a) So long as any Priority Lien Obligations exist that have not been Discharged, the holders of Priority Liens will have the exclusive right to enforce, foreclose, collect or realize upon any Collateral. Subject to Section 3.14 3.15 and the second set of clauses (1) through (4) set forth below, the Trustee and Holders of Notes will not authorize or instruct the Note Collateral Agent, and the Note Collateral Agent will not, and will not authorize or direct any Person acting for it, the Trustee or any holder of Note Obligations, to exercise any right or remedy with respect to any Collateral (including any right of set-off) or take any action to enforce, collect or realize upon any Collateral, including without limitation, any right, remedy or action to:
(1) take possession of or control over any Collateral;
(2) exercise any collection rights in respect of any Collateral or retain any proceeds of accounts and other obligations receivable paid to it directly by any account debtor;
(3) exercise any right of set-off against any property subject to any Priority LienCollateral;
(4) foreclose upon any Collateral or take or accept any transfer of title in lieu of foreclosure upon any Collateral;
(5) enforce any claim to the proceeds of insurance upon any Collateral;
(6) deliver any notice, claim or demand relating to the Collateral to any Person (including any securities intermediary, depositary bank or landlord) in the possession or control of any Collateral or acting as bailee, custodian or agent for any holder of Priority Liens in respect of any Collateral;
(7) otherwise enforce any remedy available upon default for the enforcement of any Lien upon the Collateral;
(8) deliver any notice or commence any proceeding for any of the foregoing purposes; or
(9) seek relief in any Insolvency or Liquidation Proceeding permitting it to do any of the foregoing; except that, in any event, any such right or remedy may be exercised and any such action may be taken, authorized or instructed:
(1) without any condition or restriction whatsoever, so long as no Priority Lien Obligations exist that have not been Discharged;
(2) as necessary to redeem any Collateral in a creditor’s 's redemption permitted by law or to deliver any notice or demand necessary to enforce (subject to no Priority Lien Obligations existing that have not been Discharged) any right to claim, take or receive proceeds of Collateral remaining at any time when no Priority Lien Obligations exist that have not been Discharged in the event of foreclosure or other enforcement of any prior Lien;
(3) as necessary to perfect, or maintain the perfection or priority of, a Lien upon any Collateral by any method of perfection except through possession or control; or
(4) as necessary to prove, preserve or protect (but not enforce) the Note Liens, in each case, subject to the provisions of the Security Documents.
(b) None of the rights and remedies otherwise available Subject to the holders of Priority Liens in respect of the foreclosure or other enforcement of Priority Liens and none of the other rights and remedies of the holders of Priority Liens and Priority Lien Obligations under the Priority Lien Documents will be impaired, restricted or affected by this Article 3.
(c) At any time any Priority Lien Obligations exist that have not been Discharged:
clauses (1) the Priority Lien Collateral Agent will have the sole right to adjust settlement of all insurance claims and condemnation awards in the event of any covered loss, theft, destruction or condemnation of any Collateral and all claims under insurance constituting Collateral;
(2) all proceeds of insurance on or constituting Collateral and all condemnation awards resulting from a taking of any Collateral will inure to the benefit of, and will be paid to, the holders of the Priority Liens; and
through (3) the Note Collateral Agent will co-operate, if necessary and as reasonably requested by the Priority Lien Collateral Agent, in effecting the payment of insurance proceeds to the Priority Lien Collateral Agent.
(d) Subject to Section 3.14 (other than clauses (4) and (5) of Section 3.14)3.15, so long as there are any Priority Lien Obligations existing that have not been Discharged, none of the Holders of Notes, the Trustee or the Note Collateral Agent will:
(1) request judicial relief, in an Insolvency or Liquidation Proceeding or in any other court, that would hinder, delay, limit or prohibit the lawful exercise or enforcement of any right or remedy otherwise available to the holders of Priority Liens in respect of Priority Liens or that would limit, invalidate, avoid or set aside any Priority Lien or Priority Lien Security Document or subordinate the Priority Liens to the Note Liens or grant the Priority Liens equal ranking to the Note Liens;
(2) oppose or otherwise contest any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement of Priority Liens made by any holder of Priority Liens in any Insolvency or Liquidation Proceeding;
(3) oppose or otherwise contest any lawful exercise by any holder of Priority Liens of the right to credit bid Priority Lien Debt at any sale in foreclosure of Priority Liens;
(4) oppose or otherwise contest any other request for judicial relief made in any court by any holder of Priority Liens relating to the lawful enforcement of any Priority Lien;
(5) request relief from the automatic stay; or
(65) challenge the enforceability, perfection or the validity of the Priority Lien Obligations or the Priority Liens.
(ec) Except for payments received free from the Priority Liens as provided in this Section 3.4(f)(2), below3.4, all proceeds of Collateral received by the Trustee or the Note Collateral Agent at any time when any Priority Lien Obligations exist that have not been Discharged will be held by the Trustee or the Note Collateral Agent for account of the holders of Priority Liens and remitted to the Priority Lien Collateral Agent upon demand by the Priority Lien Collateral Agent. To the extent provided by applicable law, the Note Liens will remain attached to and, subject to this Article 3, enforceable against all proceeds so held or remitted.
(fd) Except for payments that are made from or constitute proceeds of property subject to Priority Liens and that are received by the Trustee or the Note Collateral Agent or any holder of Note Obligations at any time when any Priority Lien Obligations exist that have not been Discharged and after (i) the commencement of any Insolvency or Liquidation Proceeding in respect of the Company or the grantor of any Priority Lien or (ii) the Trustee and the Note Collateral Agent have received written notice from the Priority Lien Collateral Agent stating that (A) the Priority Lien Debt has become due and payable in full (whether at maturity, upon acceleration or otherwise) or (B) the holders of Priority Liens have become entitled to, and desire to, enforce any or all of the Priority Liens by reason of a default under Priority Lien Documents:
(1) no payment of money (or the equivalent of money) made by the Company or a Guarantor any other Obligor to the Trustee, the Note Collateral Agent, any Holder of Notes or any other holder of Note Obligations (including, without limitation, payments and or prepayments made for application to Note Obligations) or any other payments or deposits made pursuant to any provision of the Indenture, any other Note Document and this Agreement will in any event be subject to the foregoing provisions of this Section 3.4 or otherwise affected by any of the provisions of Section 3.143.15; and
(2) all payments permitted to be received under this Section 3.4(f)(1) 3.4 will be received by the Trustee, the Note Collateral Agent, the Holders of Notes and the other holders of Note Obligations free from the Priority Liens and all other Liens thereon except the Note Liens.
(e) Notwithstanding any other provision of the Indenture or any other Note Document, the right of any Holder of a Note to receive from the Company or Note Guarantors, payment of the principal, premium and Liquidated Damages, if any, and interest on the Notes held by such Holder, on or after the respective due dates for payment from the Company or the Note Guarantors expressed in the Note (including in connection with an offer to purchase), or to institute suit against the Company or the Note Guarantors for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder; provided that a Holder shall not have the right to institute any such suit against the Company or the Note Guarantors for the enforcement of payment if and to the extent that the surrender or prosecution thereof or the entry of judgment therein would, under applicable law, result in the surrender, impairment, waiver or loss of the Lien of the Indenture upon any property subject to such Lien.
Appears in 1 contract
Restriction on Enforcement of Note Liens. (a) So long as any Priority Lien Obligations exist that have not been DischargedUntil the Discharge of ABL Facility Obligations, the holders of ABL Facility Priority Liens will have the exclusive right to manage, perform and enforce the terms of the ABL Facility Priority Lien Documents with respect to all ABL Facility Priority Collateral and to exercise and enforce all privileges and rights thereunder as permitted by the ABL Facility Priority Lien Documents and applicable law, including, without limitation, the exclusive right to take any actions to enforce, foreclosecollect, collect foreclose or realize upon any ABL Facility Priority Collateral. Subject to Section 3.14 and the second set of clauses (1) through (4) and Section 13.06 below, the Trustee and Holders of Notes will not authorize or instruct the Note Collateral AgentTrustee, and the Note Collateral Agent Trustee will not, and will not authorize or direct any Person acting for it, the Trustee or any holder of Note Obligations, to exercise any right or remedy with respect to any ABL Facility Priority Collateral (including any right of set-off) or take any action to enforce, collect or realize upon any ABL Facility Priority Collateral, including without limitation, any right, remedy or action to:
(1) take possession of or control over any Collateral;
(2) exercise any collection rights in respect of any Collateral or retain any proceeds of accounts and other obligations receivable paid to it directly by any account debtor;
(3) exercise any right of set-off against any property subject to any Priority Lien;
(4) foreclose upon any Collateral or take or accept any transfer of title in lieu of foreclosure upon any Collateral;
(5) enforce any claim to the proceeds of insurance upon any Collateral;
(6) deliver any notice, claim or demand relating to the Collateral to any Person (including any securities intermediary, depositary bank or landlord) in the possession or control of any Collateral or acting as bailee, custodian or agent for any holder of Priority Liens in respect of any Collateral;
(7) otherwise enforce any remedy available upon default for the enforcement of any Lien upon the Collateral;
(8) deliver any notice or commence any proceeding for any of the foregoing purposes; or
(9) seek relief in any Insolvency or Liquidation Proceeding permitting it to do any of the foregoing; except that, in any event, any such right or remedy may be exercised and any such action may be taken, authorized or instructed:
(1) without any condition or restriction whatsoever, so long as no Priority Lien Obligations exist that have not been Dischargedat any time after the Discharge of ABL Facility Obligations;
(2) as necessary to redeem any ABL Facility Priority Collateral in a creditor’s redemption permitted by law or to deliver any notice or demand necessary to enforce (subject to no Priority Lien Obligations existing that have not been Dischargedthe prior Discharge of ABL Facility Obligations) any right to claim, take or receive proceeds of ABL Facility Priority Collateral remaining at any time when no Priority Lien after Discharge of ABL Facility Obligations exist that have not been Discharged in the event of foreclosure or other enforcement of any prior Lien;
(3) as necessary to perfect, or maintain the perfection or priority of, perfect a Lien upon any ABL Facility Priority Collateral by any method of perfection except through possession or control; or
(4) as necessary to prove, preserve or protect (but not enforce) the Note LiensLien on the ABL Facility Priority Collateral, in each case, subject to the provisions of the Security Documents.
(b) None of the rights and remedies otherwise available to the holders of Priority Liens in respect of the foreclosure or other enforcement of Priority Liens and none of the other rights and remedies of the holders of Priority Liens and Priority Lien Obligations under the Priority Lien Documents will be impaired, restricted or affected by this Article 3.
(c) At any time any Priority Lien Obligations exist that have not been Discharged:
(1) the Priority Lien Collateral Agent will have the sole right to adjust settlement of all insurance claims and condemnation awards in the event of any covered loss, theft, destruction or condemnation of any Collateral and all claims under insurance constituting Collateral;
(2) all proceeds of insurance on or constituting Collateral and all condemnation awards resulting from a taking of any Collateral will inure to the benefit of, and will be paid to, the holders of the Priority Liens; and
(3) the Note Collateral Agent will co-operate, if necessary and as reasonably requested by the Priority Lien Collateral Agent, in effecting the payment of insurance proceeds to the Priority Lien Collateral Agent.
(d) Subject to Section 3.14 (other than clauses (4) and (5) of Section 3.14), so long as there are any Priority Lien Obligations existing that have not been Discharged, none of the Holders of Notes, the Trustee or the Note Collateral Agent will:
(1) request judicial relief, in an Insolvency or Liquidation Proceeding or in any other court, that would hinder, delay, limit or prohibit the lawful exercise or enforcement of any right or remedy otherwise available to the holders of Priority Liens in respect of Priority Liens or that would limit, invalidate, avoid or set aside any Priority Lien or Priority Lien Security Document or subordinate the Priority Liens to the Note Liens or grant the Priority Liens equal ranking to the Note Liens;
(2) oppose or otherwise contest any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement of Priority Liens made by any holder of Priority Liens in any Insolvency or Liquidation Proceeding;
(3) oppose or otherwise contest any lawful exercise by any holder of Priority Liens of the right to credit bid Priority Lien Debt at any sale in foreclosure of Priority Liens;
(4) oppose or otherwise contest any other request for judicial relief made in any court by any holder of Priority Liens relating to the lawful enforcement of any Priority Lien;
(5) request relief from the automatic stay; or
(6) challenge the enforceability, perfection or the validity of the Priority Lien Obligations or the Priority Liens.
(e) Except for payments received free from the ABL Facility Priority Liens as provided in Section 3.4(f)(2), belowthis Section, all proceeds of ABL Facility Priority Collateral received by the Trustee or the Note Collateral Agent at any time when any Priority Lien prior to the Discharge of ABL Facility Obligations exist that have not been Discharged will be held by the Trustee or the Note Collateral Agent for account of the holders of ABL Facility Priority Liens and remitted to the Priority Lien Collateral ABL Facility Agent upon demand by the Priority Lien Collateral ABL Facility Agent. To the extent provided by applicable law, the Note Liens will remain attached to and, subject to this Article 313, enforceable against all proceeds so held or remitted.
(fc) Except for payments that are made from or constitute proceeds of property subject to ABL Facility Priority Liens Collateral and that are received by the Trustee or the Note Collateral Agent or any holder of Note Obligations at any time when any Priority Lien prior to the Discharge of ABL Facility Obligations exist that have not been Discharged and after (i) the commencement of any Insolvency or Liquidation Proceeding in respect of the Company or the grantor of any ABL Facility Priority Lien or (ii) the Trustee and the Note Collateral Agent have has received written notice from the Priority Lien Collateral ABL Facility Agent stating that (A) the ABL Facility Priority Lien Debt has become due and payable in full (whether at maturity, upon acceleration or otherwise) or (B) the holders of ABL Facility Priority Liens have become entitled to, and desire to, enforce any or all of the ABL Facility Priority Liens by reason of a default under ABL Facility Priority Lien Documents:
(1) no payment of money (or the equivalent of money) made by the Company or a Guarantor to the Trustee, the Note Collateral Agent, any Holder of Notes or any other holder of Note Obligations (including, without limitation, payments and prepayments made for application to Note Obligations) or Obligations and all other payments or and deposits made pursuant to any provision of the this Indenture, any other Note Document and this Agreement the Notes, the Guarantees or the Security Documents) will in any event be subject to the foregoing provisions of this Section 3.4 13.04 or otherwise affected by any of the provisions of Section 3.14Article 13; and
(2) all payments permitted to be received under Section 3.4(f)(113.04(c)(1) will be received by the Trustee, the Note Collateral Agent, the Holders of Notes and the other holders of Note Obligations free from the ABL Facility Priority Liens and all other Liens thereon except the Note Liens.
Appears in 1 contract
Samples: Indenture (Tekni Plex Inc)
Restriction on Enforcement of Note Liens. (a) So long as any Until the Discharge of Priority Lien Obligations exist that have not been DischargedObligations, the holders of Priority Liens will have the exclusive right to manage, perform and enforce the terms of the Priority Lien Documents with respect to all Collateral and to exercise and enforce all privileges and rights thereunder as permitted by the Priority Lien Documents and applicable law, including, without limitation, the exclusive right to take any actions to enforce, foreclosecollect, collect foreclose or realize upon any Collateral. Subject to Section 3.14 and the second set of clauses (1) through (4) and Section 13.06 below, the Trustee and Holders of Notes will not authorize or instruct the Note Collateral AgentTrustee, and the Note Collateral Agent Trustee will not, and will not authorize or direct any Person acting for it, the Trustee or any holder of Note Obligations, to exercise any right or remedy with respect to any Collateral (including any right of set-off) or take any action to enforce, collect or realize upon any Collateral, including without limitation, any right, remedy or action to:
(1) take possession of or control over any Collateral;
(2) exercise any collection rights in respect of any Collateral or retain any proceeds of accounts and other obligations receivable paid to it directly by any account debtor;
(3) exercise any right of set-off against any property subject to any Priority Lien;
(4) foreclose upon any Collateral or take or accept any transfer of title in lieu of foreclosure upon any Collateral;
(5) enforce any claim to the proceeds of insurance upon any Collateral;
(6) deliver any notice, claim or demand relating to the Collateral to any Person (including any securities intermediary, depositary bank or landlord) in the possession or control of any Collateral or acting as bailee, custodian or agent for any holder of Priority Liens in respect of any Collateral;
(7) otherwise enforce any remedy available upon default for the enforcement of any Lien upon the Collateral;
(8) deliver any notice or commence any proceeding for any of the foregoing purposes; or
(9) seek relief in any Insolvency or Liquidation Proceeding permitting it to do any of the foregoing; except that, in any event, any such right or remedy may be exercised and any such action may be taken, authorized or instructed:
(1) without any condition or restriction whatsoever, so long as no at any time after the Discharge of Priority Lien Obligations exist that have not been DischargedObligations;
(2) as necessary to redeem any Collateral in a creditor’s 's redemption permitted by law or to deliver any notice or demand necessary to enforce (subject to no the prior Discharge of Priority Lien Obligations existing that have not been DischargedObligations) any right to claim, take or receive proceeds of Collateral remaining at any time when no after Discharge of Priority Lien Obligations exist that have not been Discharged in the event of foreclosure or other enforcement of any prior Lien;
(3) as necessary to perfect, or maintain the perfection or priority of, perfect a Lien upon any Collateral by any method of perfection except through possession or control; or
(4) as necessary to prove, preserve or protect (but not enforce) the Note Liens, in each case, subject to the provisions of the Security Documents.
(b) None of the rights and remedies otherwise available to the holders of Priority Liens in respect of the foreclosure or other enforcement of Priority Liens and none of the other rights and remedies of the holders of Priority Liens and Priority Lien Obligations under the Priority Lien Documents will be impaired, restricted or affected by this Article 3.
(c) At any time any Priority Lien Obligations exist that have not been Discharged:
(1) the Priority Lien Collateral Agent will have the sole right to adjust settlement of all insurance claims and condemnation awards in the event of any covered loss, theft, destruction or condemnation of any Collateral and all claims under insurance constituting Collateral;
(2) all proceeds of insurance on or constituting Collateral and all condemnation awards resulting from a taking of any Collateral will inure to the benefit of, and will be paid to, the holders of the Priority Liens; and
(3) the Note Collateral Agent will co-operate, if necessary and as reasonably requested by the Priority Lien Collateral Agent, in effecting the payment of insurance proceeds to the Priority Lien Collateral Agent.
(d) Subject to Section 3.14 (other than clauses (4) and (5) of Section 3.14), so long as there are any Priority Lien Obligations existing that have not been Discharged, none of the Holders of Notes, the Trustee or the Note Collateral Agent will:
(1) request judicial relief, in an Insolvency or Liquidation Proceeding or in any other court, that would hinder, delay, limit or prohibit the lawful exercise or enforcement of any right or remedy otherwise available to the holders of Priority Liens in respect of Priority Liens or that would limit, invalidate, avoid or set aside any Priority Lien or Priority Lien Security Document or subordinate the Priority Liens to the Note Liens or grant the Priority Liens equal ranking to the Note Liens;
(2) oppose or otherwise contest any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement of Priority Liens made by any holder of Priority Liens in any Insolvency or Liquidation Proceeding;
(3) oppose or otherwise contest any lawful exercise by any holder of Priority Liens of the right to credit bid Priority Lien Debt at any sale in foreclosure of Priority Liens;
(4) oppose or otherwise contest any other request for judicial relief made in any court by any holder of Priority Liens relating to the lawful enforcement of any Priority Lien;
(5) request relief from the automatic stay; or
(6) challenge the enforceability, perfection or the validity of the Priority Lien Obligations or the Priority Liens.
(e) Except for payments received free from the Priority Liens as provided in Section 3.4(f)(2), belowthis Section, all proceeds of Collateral received by the Trustee or the Note Collateral Agent at any time when any prior to the Discharge of Priority Lien Obligations exist that have not been Discharged will be held by the Trustee or the Note Collateral Agent for account of the holders of Priority Liens and remitted to the Priority Lien Collateral Agent upon demand by the Priority Lien Collateral Agent. To the extent provided by applicable law, the Note Liens will remain attached to and, subject to this Article 313, enforceable against all proceeds so held or remitted.
(fc) Except for payments that are made from or constitute proceeds of property subject to Priority Liens and that are received by the Trustee or the Note Collateral Agent or any holder of Note Obligations at any time when any prior to the Discharge of Priority Lien Obligations exist that have not been Discharged and after (i) the commencement of any Insolvency or Liquidation Proceeding in respect of the Company or the grantor of any Priority Lien or (ii) the Trustee and the Note Collateral Agent have has received written notice from the Priority Lien Collateral Agent stating that (A) the Priority Lien Debt has become due and payable in full (whether at maturity, upon acceleration or otherwise) or (B) the holders of Priority Liens have become entitled to, and desire to, enforce any or all of the Priority Liens by reason of a default under Priority Lien Documents:
(1) no payment of money (or the equivalent of money) made by the Company or a Guarantor to the Trustee, the Note Collateral Agent, any Holder of Notes or any other holder of Note Obligations (including, without limitation, payments and prepayments made for application to Note Obligations) or Obligations and all other payments or and deposits made pursuant to any provision of the this Indenture, any other Note Document and this Agreement the Notes, the Guarantees or the Security Documents) will in any event be subject to the foregoing provisions of this Section 3.4 13.04 or otherwise affected by any of the provisions of Section 3.14Article 13; and
(2) all payments permitted to be received under Section 3.4(f)(113.04(c)(1) will be received by the Trustee, the Note Collateral Agent, the Holders of Notes and the other holders of Note Obligations free from the Priority Liens and all other Liens thereon except the Note Liens.
Appears in 1 contract
Samples: Indenture (Puretec Corp)
