Inspection and Access Rights. (a) If the Term Agent, or any agent, representative or Affiliate of any of the Term Claimholders, or any receiver, shall, after any Term Default, obtain possession or physical control of any Mortgaged Property, or any material portion of the tangible Term Priority Collateral located on any premises other than Mortgaged Property or control over any material intangible Term Priority Collateral, the Term Agent shall promptly notify the ABL Agent in writing of that fact, and the ABL Agent may at any time thereafter notify the Term Agent in writing if and when the ABL Agent desires to exercise its access rights under this Section 3.9. In addition, if the ABL Agent, or any agent, representative or Affiliate of the ABL Agent, or any receiver, shall obtain possession or physical control of any of the Mortgaged Property, or any material portion of the tangible Term Priority Collateral located on any premises other than Mortgaged Property or control over any material intangible Term Priority Collateral, following the delivery to the Term Agent of an Enforcement Notice, then the ABL Agent may at any time thereafter, without qualifying, limiting or waiving the provisions of Sections 4.2 and 5.4 hereof, notify the Term Agent in writing that the ABL Agent is exercising its access rights under this Agreement under either circumstance. Upon delivery of such notice by the ABL Agent to the Term Agent, the parties shall confer in good faith to coordinate with respect to the ABL Agent’s exercise of such access rights. Consistent with the definition of “Use Period,” access rights may apply to differing parcels of Mortgaged Property and if located at different parcels of Mortgaged Property, to different assets that constitute a portion of the Term Priority Collateral, in each case at differing times, in which case, a differing Use Period will apply to each such property and to each such portion of the Term Priority Collateral located at different parcels of Mortgaged Property. For the avoidance of doubt, different Use Periods shall not apply with regard to Term Priority Collateral located at the same parcel of Mortgaged Property. (b) Without limiting any rights any of the ABL Claimholders may otherwise have under applicable law or by agreement and whether or not any of the Term Claimholders has commenced and is continuing to undertake any Enforcement Action, the Term Agent hereby grants to the ABL Agent an irrevocable, non-exclusive right to have access to, and a royalty-free and rent-free license (subject, however, to the payment of any royalties to third parties that are not Grantors or Affiliates thereof that are due as a result of the exploitation of any licensed Intellectual Property) and right to use the Term Priority Collateral, including, without limitation, Intellectual Property, general intangibles and Real Property and equipment, processors, computers and other machinery related to the storage or processing of records, documents or files (and in the case of Term Priority Collateral that constitutes Intellectual Property, the Term Agent hereby grants to the ABL Agent a non-excusive, irrevocable, fully-paid and royalty-free license to use such Intellectual Property) during the Use Period to the maximum extent permitted by applicable law and to the extent of the Term Agent’s interest therein (subject to, for the avoidance of doubt, any third party licenses (i) to access the ABL Priority Collateral and (ii) to assemble, inspect, copy or download information stored on, take actions to perfect its Lien on, process raw materials or work-in- process into finished Inventory, take possession of, move, package, prepare and advertise for sale or disposition, sell (by public auction, private sale or a “going out of business” or similar sale, whether in bulk, in lots or to customers in the ordinary course of business or otherwise and which sale may include (c) During the period of actual occupation, use or control by the ABL Agent (or its respective employees, agents, advisers and representatives) of any Term Priority Collateral, the ABL Agent shall be obligated to (i) pay any utility, rental, lease or similar charges and payments owed to third parties that accrue during, or that arise as a result of, such use to the extent not paid by the Grantors and (ii) repair at its expense any physical damage (ordinary wear and tear excepted) to such Term Priority Collateral caused by such occupancy, use or control (including the removal of any Collateral from the premises) by the ABL Agent or its agents, representatives or designees; provided that neither the ABL Agent nor the ABL Claimholders will be liable for any diminution in the value of the Term Priority Collateral caused by the absence of the ABL Priority Collateral therefrom. Notwithstanding the foregoing, in no event shall the ABL Agent have any liability to any of the Term Claimholders pursuant to this Section 3.9 as a result of any condition (including any environmental condition, claim or liability) on or with respect to the Term Priority Collateral existing prior to the date of the exercise by the ABL Agent of its rights under this Section 3.9, and the ABL Agent shall have no duty or liability to maintain the Term Priority Collateral in a condition or manner better than that in which it was maintained prior to the use thereof by the ABL Agent, or for any diminution in the value of the Term Priority Collateral that results solely from ordinary wear and tear resulting from the use of the Term Priority Collateral by the ABL Agent in the manner and for the time periods specified under this Section 3.9 and subject to the terms hereof. Without limiting the rights granted in this Section 3.9, the ABL Agent shall use commercially reasonable efforts to cooperate with the Term Agent in connection with any efforts made by the Term Claimholders to sell the Term Priority Collateral. (d) Consistent with the definition of the term “Use Period,” if any order or injunction is issued or stay is granted or is otherwise effective by operation of law that prohibits the ABL Agent from exercising any of its rights hereunder, then the Use Period granted to the ABL Agent under this Section 3.9 shall be stayed during the period of such prohibition and shall continue thereafter for the number of days remaining under this Section 3.
Appears in 1 contract
Inspection and Access Rights. (a) If the Term Notes Agent, or any agent, agent or representative or Affiliate of any of the Term ClaimholdersNotes Agent, or any receiver, shall, after any Term Notes Default, obtain possession or physical control of any Mortgaged Property, or any material portion of the tangible Term Notes Priority Collateral located on or Notes Agent shall sell or otherwise dispose of any premises other than Mortgaged Property or control over any material intangible Term Notes Priority Collateral, the Term Notes Agent shall promptly notify the ABL Agent in writing of that fact, and the ABL Agent may at any time shall thereafter notify the Term Notes Agent in writing if and when the as to whether ABL Agent desires to exercise its access rights under this Section 3.93.8. In addition, if the ABL Agent, or any agent, agent or representative or Affiliate of the ABL Agent, or any receiver, shall shall, after any ABL Default, obtain possession or physical control of any of the Mortgaged Property, real properties subject to a Mortgage or any material portion of the tangible Term Notes Priority Collateral located on any premises other than Mortgaged Property real properties subject to a Mortgage or control over any material intangible Term Notes Priority Collateral, following the delivery to the Term Notes Agent of an Enforcement Notice, then the ABL Agent may at any time thereafter, without qualifying, limiting or waiving the provisions of Sections 4.2 and 5.4 hereof, shall thereafter notify the Term Notes Agent in writing that the ABL Agent is exercising its access rights under this Agreement under either circumstance. Upon delivery of such notice by the ABL Agent to the Term Notes Agent, the parties shall confer in good faith to coordinate with respect to the ABL Agent’s exercise of such access rights. Consistent with the definition of “Use Period,” access rights may apply to differing parcels of Mortgaged Property real properties subject to a Mortgage and if located at different parcels of Mortgaged Property, to different assets that constitute a portion of the Term Notes Priority Collateral, in each case at differing times, in which case, a differing Use Period will apply to each such property and to each such portion of the Term Notes Priority Collateral located at different parcels of Mortgaged Property. For the avoidance of doubt, different Use Periods shall not apply with regard to Term Priority Collateral located at the same parcel of Mortgaged PropertyCollateral.
(b) Without limiting any rights ABL Agent or any of the other ABL Claimholders Claimholder may otherwise have under applicable law or by agreement and whether or not Notes Agent or any of the Term Claimholders other Notes Claimholder has commenced and is continuing to undertake Exercise any Enforcement ActionSecured Creditor Remedies of Notes Agent, the Term Agent hereby grants to the ABL Agent or any other person (including any ABL Claimholder) acting with the consent, or on behalf, of ABL Agent shall have an irrevocable, non-exclusive right to have access to, and a royalty-free and rent-free license (subject, however, to the payment of any royalties to third parties that are not Grantors or Affiliates thereof that are due as a result of the exploitation of any licensed Intellectual Property) and right to use use, the Term Notes Priority Collateral, Collateral (including, without limitation, Intellectual Propertyequipment, general intangibles fixtures and Real Property real property and equipment, processors, computers and other machinery related to the storage or processing of records, documents or files (and in the case of Term Priority Collateral that constitutes Intellectual Property, the Term Agent hereby grants to the ABL Agent a non-excusive, irrevocable, fully-paid and royalty-free license to use such Intellectual Propertyfiles) during the Use Period to the maximum extent permitted by applicable law and to the extent of the Term Agent’s interest therein (subject toa) during normal business hours on any Business Day, for the avoidance of doubt, any third party licenses (i) to access the ABL Priority Collateral and that (i) is stored or located in or on, (ii) has become an accession with respect to (within the meaning of Section 9-335 of the UCC), or (iii) has been commingled with (within the meaning of Section 9-336 of the UCC), Notes Priority Collateral, and (b) in order to assemble, inspect, copy or download information stored on, take actions to perfect its Lien on, process raw materials or work-in- in-process into finished Inventoryinventory, take possession of, move, package, prepare and advertise for sale or disposition, sell (by public auction, private sale or a sale, “going out of business” sale or similar sale, whether in bulk, in lots or to customers in the ordinary course of business or otherwise and which sale may includeinclude augmented inventory of the same type sold in Grantors’ business), store, collect, take reasonable actions to protect, secure and otherwise enforce the rights of ABL Agent in and to the ABL Priority Collateral, or otherwise deal with the ABL Priority Collateral, in each case without the involvement of or interference by any Notes Claimholder or liability to any Notes Claimholder. This Agreement will not restrict the rights of Notes Agent to sell, assign or otherwise transfer the related Notes Priority Collateral prior to the expiration of the Use Period if (but only if) the purchaser, assignee or transferee thereof agrees to be bound by the provisions of this Section 3.8.
(c) During the period of actual occupation, use or and/or control by the ABL Claimholders and/or ABL Agent (or its their respective employees, agents, advisers and representatives) of any Term Notes Priority CollateralCollateral or other assets or property, the ABL Claimholders and ABL Agent shall be obligated to (i) pay any utility, rental, lease or similar charges and payments owed to third parties that accrue during, or that arise as a result of, such use to the extent not paid by the Grantors and (ii) repair at its their expense any physical damage (ordinary wear and tear excepted) to such Term Notes Priority Collateral caused by such occupancy, use or control (including the removal of any Collateral from the premises) by the ABL Agent or its agents, representatives or designees, and to leave such Notes Priority Collateral or other assets or property in substantially the same condition as it was at the commencement of such occupancy, use or control, ordinary wear and tear excepted; provided provided, however, that neither the ABL Agent nor and the ABL Claimholders will not be liable for any diminution in the value of the Term Notes Priority Collateral caused by the absence of the ABL Priority Collateral therefrom. Notwithstanding the foregoing, in no event shall the ABL Claimholders or ABL Agent have any liability to any of the Term Notes Claimholders and/or to Notes Agent pursuant to this Section 3.9 3.8 as a result of any condition (including any environmental condition, claim or liability) on or with respect to the Term Notes Priority Collateral existing prior to the date of the exercise by the ABL Agent Claimholders (or ABL Agent, as the case may be) of its their rights under this Section 3.9, 3.8 and the ABL Agent Claimholders shall have no duty or liability to maintain the Term Notes Priority Collateral in a condition or manner better than that in which it was maintained prior to the use thereof by the ABL AgentClaimholders, or for any diminution in the value of the Term Notes Priority Collateral that results solely from ordinary wear and tear resulting from the use of the Term Notes Priority Collateral by the ABL Agent Claimholders in the manner and for the time periods specified under this Section 3.9 and subject to the terms hereof3.8. Without limiting the rights granted in this Section 3.93.8, the ABL Claimholders and ABL Agent shall use commercially reasonable efforts to cooperate with the Term Notes Claimholders and/or Notes Agent in connection with any efforts made by the Term Notes Claimholders and/or the Notes Agent to sell the Term Notes Priority Collateral.
(d) Consistent with the definition of the term “Use Period,” if any order or injunction is issued or stay is granted or is otherwise effective by operation of law that prohibits the ABL Agent from exercising any of its rights hereunder, then the Use Period granted to the ABL Agent under this Section 3.9 3.8 shall be stayed during the period of such prohibition and shall continue thereafter for the number of days remaining as required under this Section 33.8. Notes Agent agrees, for the benefit of ABL Agent, that it shall not sell or dispose of any of the Notes Priority Collateral during the Use Period unless the buyer agrees in writing to acquire the Notes Priority Collateral subject to the terms of this Section 3.8 and agrees therein to comply with the terms of this Section 3.8. The rights of ABL Agent and the other ABL Claimholders under this Section 3.8 during the Use Period shall continue notwithstanding such foreclosure, sale or other disposition by Notes Agent.
(e) ABL Agent and the other ABL Claimholders shall not be obligated to pay any amounts to Notes Agent or the other Notes Claimholders (or any person claiming by, through or under the Notes Claimholders, including any purchaser of the Notes Priority Collateral) or to any Grantor, for or in respect of the use by ABL Agent and the other ABL Claimholders of the Notes Priority Collateral; provided that ABL Agent and the other ABL Claimholders shall be obligated to pay any third-party expenses related thereto, including costs with respect to heat, light, electricity and water with respect to that portion of any premises so used or occupied, or that arise as a result of such use. In the event, and only in the event, that in connection with its use of some or all of the premises constituting Notes Priority Collateral, ABL Agent requires the services of any employees of the Grantors, ABL Agent shall pay directly to any such employees the appropriate, allocated wages of such employees, if any, during the time periods that ABL Agent requires their services. In each case, all amounts paid by ABL Agent hereunder shall be added to the outstanding principal balance of the ABL Obligations.
(f) The ABL Claimholders shall use the Notes Priority Collateral in accordance with applicable law.
(g) Subject to Section 3.7, Notes Agent and the other Notes Claimholders (i) will cooperate with ABL Agent in its efforts pursuant to Section 3.8(b) to enforce its security interest in the ABL Priority Collateral and to finish any work-in-process and assemble the ABL Priority Collateral, (ii) will not hinder or restrict in any respect ABL Agent from enforcing its security interest in the ABL Priority Collateral or from finishing any work-in-process or assembling the ABL Priority Collateral pursuant to Section 3.8(b), and (iii) will, subject to the rights of any landlords under real estate leases, permit the ABL Collateral Agent, its employees, agents, advisers and representatives to exercise the rights described in Section 3.8(b).
(h) Subject to the terms hereof, Notes Agent may advertise and conduct public auctions or private sales of the Notes Priority Collateral, without the involvement of or interference by any ABL Claimholder or liability to any ABL Claimholder, as long as, in the case of an actual sale, the respective purchaser assumes and agrees in advance in writing to the obligations of Notes Agent and the other Notes Claimholders under this Section 3.8. If ABL Agent conducts a public auction or private sale of the ABL Priority Collateral at any of the real property included within the Notes Priority Collateral, ABL Agent shall provide the Notes Agent with reasonable notice and use reasonable efforts to hold such auction or sale in a manner which would not unduly disrupt the Notes Agent’s use of such real property.
(i) For the avoidance of doubt, and without limiting the generality of the other provisions of this Agreement, it is hereby acknowledged and agreed that ABL Agent and the other ABL Claimholders shall have the right to bring an action to enforce their rights under this Section 3.8 and Section 3.9 including an action seeking possession of the applicable Collateral and/or specific performance of this Section 3.8 and Section 3.9.
Appears in 1 contract
Inspection and Access Rights. (a) If the Term Loan Agent, or any agent, agent or representative or Affiliate of any of the Term ClaimholdersLoan Agent, or any receiver, shall, after any Term Loan Default, obtain possession or physical control of any Mortgaged PropertyReal Estate Assets, or any material portion of the tangible Term Priority Collateral located on any premises other than Mortgaged Property or control over any material intangible Term Priority Collateral, the Term Loan Agent shall promptly notify the ABL Revolving Agent in writing of that fact, and the ABL Revolving Agent may at any time thereafter shall, within fifteen (15) Business Days thereafter, notify the Term Loan Agent in writing if and when the ABL as to whether Revolving Agent desires to exercise its access rights under this Section 3.93.8. In addition, if the ABL Revolving Agent, or any agent, agent or representative or Affiliate of the ABL Revolving Agent, or any receiver, shall obtain possession or physical control of any of the Mortgaged Property, Real Estate Assets or any material portion of the tangible Term Priority Collateral located on any premises other than Mortgaged Property Real Estate Assets or control over any material intangible Term Priority Collateral, following the delivery to the Term Loan Agent of an Enforcement Notice, then the ABL Revolving Agent may at any time thereafter, without qualifying, limiting or waiving the provisions of Sections 4.2 and 5.4 hereof, shall promptly notify the Term Loan Agent in writing that the ABL Revolving Agent is exercising its access rights under this Agreement and its rights under Section 3.9 under either circumstance. Upon delivery of such notice by the ABL Revolving Agent to the Term Loan Agent, the parties shall confer in good faith to coordinate with respect to the ABL Revolving Agent’s exercise of such access rights. Consistent with the definition of “Use Period,” access rights may apply to differing parcels of Mortgaged Property and if located at different parcels of Mortgaged Property, to different assets that constitute a portion of the Term Priority Collateral, in each case Real Estate Assets at differing times, in which case, a differing Use Period will apply to each such property and to each such portion of the Term Priority Collateral located at different parcels of Mortgaged Property. For the avoidance of doubt, different Use Periods shall not apply with regard to Term Priority Collateral located at the same parcel of Mortgaged Propertyproperty.
(b) Without limiting any rights Revolving Agent or any of the ABL Claimholders other Revolving Claimholder may otherwise have under applicable law or by agreement and whether or not Term Loan Agent or any of the other Term Claimholders Loan Claimholder has commenced and is continuing to undertake Exercise any Enforcement ActionSecured Creditor Remedies of Term Loan Agent, Revolving Agent or any other Person (including any Revolving Claimholder) acting with the Term Agent hereby grants to consent, or on behalf, of Revolving Agent, shall have the ABL Agent an irrevocableright during the Use Period, non-exclusive right to have access to, and a royalty-free and rent-free license (subject, howevera) during normal business hours on any Business Day, to access Revolving Priority Collateral that (i) is stored or located in or on, (ii) has become an accession with respect to (within the payment meaning of any royalties to third parties that are not Grantors or Affiliates thereof that are due as a result Section 9-335 of the exploitation UCC), or (iii) has been commingled with (within the meaning of any licensed Intellectual Property) and right to use Section 9-336 of the UCC), Term Priority Collateral, and (b) to access the Term Priority Collateral (including, without limitation, equipment, fixtures, Intellectual Property, general intangibles and Real Property real property and equipment, processors, computers and other machinery related to the storage or processing of records, documents or files (and files), in the each case of Term Priority Collateral that constitutes Intellectual Propertythe foregoing, the Term Agent hereby grants to the ABL Agent a non-excusive, irrevocable, fully-paid and royalty-free license to use such Intellectual Property) during the Use Period to the maximum extent permitted by applicable law and to the extent of the Term Agent’s interest therein (subject to, for the avoidance of doubt, any third party licenses (i) to access the ABL Priority Collateral and (ii) in order to assemble, inspect, copy or download information stored on, take actions to perfect its Lien on, process raw materials or work-in- process into finished Inventorycomplete a production run of Inventory involving, take possession of, move, package, prepare and advertise for sale or dispositionsale, sell (by public auction, private sale or a “store closing,” “going out of business” or similar sale, whether in bulk, in lots or to customers in the ordinary course of business or otherwise and which sale may includeinclude augmented Inventory of the same type sold in the business of the Lead Borrower and its Subsidiaries), store, take reasonable actions to protect, secure and otherwise enforce the rights of Revolving Agent in and to the Revolving Priority Collateral, or otherwise deal with the Revolving Priority Collateral, in each case without the involvement of or interference by any Term Loan Claimholder or liability to any Term Loan Claimholder. In the event that any Revolving Claimholder has commenced and is continuing the Exercise of any Secured Creditor Remedies with respect to any Revolving Priority Collateral, this Agreement will not restrict the rights of Term Loan Agent to sell, assign or otherwise transfer the related Term Priority Collateral prior to the expiration of the Use Period if the purchaser, assignee or transferee thereof agrees to be bound by the provisions of this Section 3.8.
(c) During the period of actual occupation, use or and/or control by the ABL Revolving Claimholders and/or Revolving Agent (or its their respective employees, agents, advisers and representatives) of any Term Priority CollateralCollateral or other assets or property, the ABL Revolving Claimholders and Revolving Agent shall be obligated to (i) pay any utility, rental, lease or similar charges and payments owed to third parties that accrue during, or that arise as a result of, such use to the extent not paid by the Grantors and (ii) repair at its their expense any physical damage (ordinary wear and tear excepted) to such Term Priority Collateral caused by or other assets or property resulting from such occupancy, use or control (including the removal of any Collateral from the premises) by the ABL Agent or its agentscontrol, representatives or designees; provided that neither the ABL Agent nor the ABL Claimholders will be liable for any diminution in the value of the and to leave such Term Priority Collateral caused by or other assets or property in substantially the absence same condition as it was at the commencement of the ABL Priority Collateral therefromsuch occupancy, use or control, ordinary wear and tear and casualty and condemnation excepted. Notwithstanding the foregoing, in no event shall the ABL Revolving Claimholders or Revolving Agent have any liability to any of the Term Loan Claimholders and/or to Term Loan Agent pursuant to this Section 3.9 3.8 as a result of any condition (including any environmental condition, claim or liability) on or with respect to the Term Priority Collateral existing prior to the date of the exercise by the ABL Agent Revolving Claimholders (or Revolving Agent, as the case may be) of its their rights under this Section 3.9, 3.8 and the ABL Agent Revolving Claimholders shall have no duty or liability to maintain the Term Priority Collateral in a condition or manner better than that in which it was maintained prior to the use thereof by the ABL AgentRevolving Claimholders, or for any diminution in the value of the Term Priority Collateral that results solely from ordinary wear and tear resulting from the use of the Term Priority Collateral by the ABL Agent Revolving Claimholders in the manner and for the time periods specified under this Section 3.9 and subject to the terms hereof3.8. Without limiting the rights granted in this Section 3.93.8, the ABL Revolving Claimholders and Revolving Agent shall use commercially reasonable efforts to cooperate with the Term Loan Claimholders and/or Term Loan Agent in connection with any efforts made by the Term Loan Claimholders and/or Term Loan Agent to sell the Term Priority Collateral.
(d) Consistent with Revolving Agent and the definition Revolving Claimholders shall not be obligated to pay any amounts to Term Loan Agent or the Term Loan Claimholders (or any Person claiming by, through or under the Term Loan Claimholders, including any purchaser of the term “Use Period,” if Term Priority Collateral) or to any order Grantor, for or injunction is issued in respect of the use by Revolving Agent and the Revolving Claimholders of the Term Priority Collateral; provided that Revolving Agent and the other Revolving Claimholders shall be obligated to pay any third-party expenses related thereto, including costs with respect to heat, light, electricity and water with respect to that portion of any premises so used or stay is granted occupied, or is otherwise effective by operation that arise as a result of law such use. In the event, and only in the event, that prohibits in connection with its use of some or all of the ABL premises constituting Term Priority Collateral, Revolving Agent from exercising requires the services of any employees of the Lead Borrower or any of its rights hereunderSubsidiaries, then Revolving Agent shall pay directly to any such employees the Use Period granted appropriate, allocated wages (including benefits) of such employees, if any, during the time periods that Revolving Agent requires their services.
(e) The Revolving Claimholders shall use the Term Priority Collateral in accordance with applicable law.
(f) Term Loan Agent and the other Term Loan Claimholders (i) will cooperate with Revolving Agent in its efforts pursuant to Section 3.8(b) to enforce its security interest in the Revolving Priority Collateral and to finish any work-in-process and assemble the Revolving Priority Collateral, (ii) will not hinder or restrict in any respect Revolving Agent from enforcing its security interest in the Revolving Priority Collateral or from finishing any work-in-process or assembling the Revolving Priority Collateral pursuant to Section 3.8(b), and (iii) will, subject to the ABL rights of any landlords under real estate leases, permit Revolving Agent, its employees, agents, advisers and representatives to exercise the rights described in Section 3.8(b).
(g) Subject to the terms hereof, Term Loan Agent may advertise and conduct public auctions or private sales of the Term Priority Collateral, without the involvement of or interference by any Revolving Claimholder or liability to any Revolving Claimholder as long as, in the case of an actual sale, the respective purchaser assumes and agrees in advance in writing to the obligations of Term Loan Agent and the Term Loan Claimholders under this Section 3.9 3.8. If Revolving Agent conducts a public auction or private sale of the Revolving Priority Collateral at any of the real property included within the Term Loan Collateral, Revolving Agent shall be stayed during the period provide Term Loan Agent with reasonable notice and use reasonable efforts to hold such auction or sale in a manner which would not unduly disrupt Term Loan Agent’s use of such prohibition and shall continue thereafter for the number of days remaining under this Section 3real property.
Appears in 1 contract
Samples: Credit Agreement (Ollie's Bargain Outlet Holdings, Inc.)
Inspection and Access Rights. (a) If the Term Agent, or any agent, representative or Affiliate of any of the Term Claimholders, or any receiver, shall, after any Term Default, obtain possession or physical control of any Mortgaged Property, or any material portion of the tangible Term Priority Collateral located on any premises other than Mortgaged Property or control over any material intangible Term Priority Collateral, the Term Agent shall promptly notify the ABL Agent in writing of that fact, and the ABL Agent may at any time thereafter notify the Term Agent in writing if and when the ABL Agent desires to exercise its access rights under this Section 3.9. In addition, if the ABL Agent, or any agent, representative or Affiliate of the ABL Agent, or any receiver, shall obtain possession or physical control of any of the Mortgaged Property, or any material portion of the tangible Term Priority Collateral located on any premises other than Mortgaged Property or control over any material intangible Term Priority Collateral, following the delivery to the Term Agent of an Enforcement Notice, then the ABL Agent may at any time thereafter, without qualifying, limiting or waiving the provisions of Sections 4.2 and 5.4 hereof, notify the Term Agent in writing that the ABL Agent is exercising its access rights under this Agreement under either circumstance. Upon delivery of such notice by the ABL Agent to the Term Agent, the parties shall confer in good faith to coordinate with respect to the ABL Agent’s exercise of such access rights. Consistent with the definition of “Use Period,” access - 30 - WEIL:\96331350\2\35899.0561 rights may apply to differing parcels of Mortgaged Property and if located at different parcels of Mortgaged Property, to different assets that constitute a portion of the Term Priority Collateral, in each case at differing times, in which case, a differing Use Period will apply to each such property and to each such portion of the Term Priority Collateral located at different parcels of Mortgaged Property. For the avoidance of doubt, different Use Periods shall not apply with regard to Term Priority Collateral located at the same parcel of Mortgaged Property.
(b) Without limiting any rights any of the ABL Claimholders may otherwise have under applicable law or by agreement and whether or not any of the Term Claimholders has commenced and is continuing to undertake any Enforcement Action, the Term Agent hereby grants to the ABL Agent an irrevocable, non-exclusive right to have access to, and a royalty-free and rent-free license (subject, however, to the payment of any royalties to third parties that are not Grantors or Affiliates thereof that are due as a result of the exploitation of any licensed Intellectual Property) and right to use the Term Priority Collateral, including, without limitation, Intellectual Property, general intangibles and Real Property and equipment, processors, computers and other machinery related to the storage or processing of records, documents or files (and in the case of Term Priority Collateral that constitutes Intellectual Property, the Term Agent hereby grants to the ABL Agent a non-excusive, irrevocable, fully-paid and royalty-free license to use such Intellectual Property) during the Use Period to the maximum extent permitted by applicable law and to the extent of the Term Agent’s interest therein (subject to, for the avoidance of doubt, any third party licenses (i) to access the ABL Priority Collateral and (ii) to assemble, inspect, copy or download information stored on, take actions to perfect its Lien on, process raw materials or work-in- in-process into finished Inventory, take possession of, move, package, prepare and advertise for sale or disposition, sell (by public auction, private sale or a “going out of business” or similar sale, whether in bulk, in lots or to customers in the ordinary course of business or otherwise and which sale may includeinclude augmented Inventory of the same type sold in the Grantors’ business), store, collect, take reasonable actions to protect, secure and otherwise enforce the rights of the ABL Agent in and to the ABL Priority Collateral, or otherwise deal with the ABL Priority Collateral, in each case without the involvement of or interference by any of the Term Claimholders or liability to any of the Term Claimholders; provided that (A) no ABL Claimholder shall have any right to mine or extract any Coal or other minerals located at, on, under or within any Mortgaged Property or part thereof subject to a Mortgage in favor of the Term Claimholders until after the Payment in Full of Term Priority Debt, (B) any such license shall terminate upon the sale or other Disposition of all the applicable ABL Priority Collateral and shall not extend or transfer to the purchaser of such ABL Priority Collateral, (C) the ABL Agent’s use of such Intellectual Property shall be reasonable and lawful and (D) any such license granted is on an “AS IS” basis, without any representation or warranty whatsoever. This Agreement will not restrict the rights of the Term Agent to sell, assign or otherwise transfer the related Term Priority Collateral prior to the expiration of the Use Period if (but only if) the purchaser, assignee or transferee thereof agrees to be bound by the provisions of this Section 3.9.
(c) During the period of actual occupation, use or control by the ABL Agent (or its respective employees, agents, advisers and representatives) of any Term Priority Collateral, the ABL Agent shall be obligated to (i) pay any utility, rental, lease or similar charges and payments owed to third parties that accrue during, or that arise as a result of, such use to the extent not paid by the Grantors and (ii) repair at its expense any physical damage (ordinary wear and tear excepted) to such Term Priority Collateral caused by such occupancy, use or control (including the removal of any Collateral from the premises) by the ABL Agent or its agents, representatives or designees; provided that neither the ABL Agent nor the ABL Claimholders will be liable for any diminution in the value of the Term Priority Collateral caused by the absence of the ABL Priority Collateral therefrom. Notwithstanding the foregoing, in no event shall the ABL Agent have any liability to any of the Term Claimholders pursuant to this Section 3.9 as a result of any condition (including any environmental condition, claim or liability) on or with respect to the Term Priority WEIL:\96331350\2\35899.0561 Collateral existing prior to the date of the exercise by the ABL Agent of its rights under this Section 3.9, and the ABL Agent shall have no duty or liability to maintain the Term Priority Collateral in a condition or manner better than that in which it was maintained prior to the use thereof by the ABL Agent, or for any diminution in the value of the Term Priority Collateral that results solely from ordinary wear and tear resulting from the use of the Term Priority Collateral by the ABL Agent in the manner and for the time periods specified under this Section 3.9 and subject to the terms hereof. Without limiting the rights granted in this Section 3.9, the ABL Agent shall use commercially reasonable efforts to cooperate with the Term Agent in connection with any efforts made by the Term Claimholders to sell the Term Priority Collateral.
(d) Consistent with the definition of the term “Use Period,” if any order or injunction is issued or stay is granted or is otherwise effective by operation of law that prohibits the ABL Agent from exercising any of its rights hereunder, then the Use Period granted to the ABL Agent under this Section 3.9 shall be stayed during the period of such prohibition and shall continue thereafter for the number of days remaining under this Section 33.9. The Term Agent agrees, for the benefit of the ABL Agent, that it shall not be permitted to sell or dispose of any of the Term Priority Collateral during the Use Period unless the buyer agrees in writing to acquire the Term Priority Collateral subject to the terms of Section 3.9 of this Agreement and agrees therein to comply with the terms of this Section 3.9. The rights of the ABL Agent under this Section 3.9 during the Use Period shall continue notwithstanding such foreclosure, sale or other disposition by the Term Agent.
(e) Except as expressly provided herein, the ABL Agent shall not be obligated to pay any amounts to the Term Claimholders (or any Person claiming by, through or under the Term Claimholders, including any purchaser of the Term Priority Collateral) or to any Grantor, for or in respect of the use by the ABL Agent of the Term Priority Collateral. In each case, all amounts paid by the ABL Agent hereunder shall be added to the outstanding principal balance of the ABL Debt.
(f) The ABL Agent shall use the Term Priority Collateral in accordance with applicable law.
(g) The Term Agent (i) will not hinder or restrict in any respect the ABL Agent from enforcing its security interest in the ABL Priority Collateral, or from finishing any work-in-process with respect to the ABL Priority Collateral or assembling the ABL Priority Collateral pursuant to Section 3.9(b), and (ii) will, subject to the rights of any landlords under Real Property Leases, permit the ABL Agent, its employees, agents, advisers and representatives to exercise the rights described in Section 3.9(b), subject to the terms and conditions thereof.
(h) Subject to the terms hereof, the Term Agent may advertise and conduct public auctions or private sales of the Term Priority Collateral, without the involvement of, or interference by, any of the ABL Claimholders or liability to any of the ABL Claimholders as long as, in the case of an actual sale, the respective purchaser assumes and agrees in advance in writing to the obligations of the Term Agent under this Section 3.9. If the ABL Agent conducts a public auction or private sale of the ABL Priority Collateral at any of the Real Property included within the Term Priority Collateral, the ABL Agent shall provide the Term Agent with reasonable prior notice of such sale and shall use reasonable efforts to hold such auction or sale in a manner which would not unduly disrupt or interfere with the Term Agent’s use of such real property.
(i) For the avoidance of doubt, and without limiting the generality of the other provisions of this Agreement, it is hereby acknowledged and agreed that the ABL Agent shall have the right - 32 - WEIL:\96331350\2\35899.0561 to bring an action to enforce its rights under this Section 3.9 and Section 3.10, including an action seeking possession of the applicable Collateral or specific performance of this Section 3.9 and Section 3.10.
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Inspection and Access Rights. (a) If the Term Notes Collateral Agent, or any agent, agent or representative or Affiliate of any of the Term ClaimholdersNotes Collateral Agent, or any receiver, shall, after any Term Notes Default, obtain possession or physical control of any Mortgaged Property, or any material portion of the tangible Term Priority Collateral located on any premises other than Mortgaged Property or control over any material intangible Term Priority Collateralreal properties subject to a Mortgage, the Term Notes Collateral Agent shall promptly notify the ABL Revolving Collateral Agent in writing of that fact, and the ABL Revolving Collateral Agent may at any time thereafter shall, within fifteen (15) Business Days thereafter, notify the Term Notes Collateral Agent in writing if and when as to whether the ABL Revolving Collateral Agent desires to exercise its access rights under this Section 3.93.8. In addition, if the ABL Revolving Collateral Agent, or any agent, agent or representative or Affiliate of the ABL Revolving Collateral Agent, or any receiver, shall obtain possession or physical control of any of the Mortgaged Property, real properties subject to a Mortgage or any material portion of the tangible Term Notes Priority Collateral located on any premises other than Mortgaged Property real properties subject to a Mortgage or control over any material intangible Term Notes Priority Collateral, following the delivery to the Term Notes Collateral Agent of an Enforcement Notice, then the ABL Revolving Collateral Agent may at any time thereafter, without qualifying, limiting or waiving the provisions of Sections 4.2 and 5.4 hereof, shall promptly notify the Term Notes Collateral Agent in writing that the ABL Revolving Collateral Agent is exercising its access rights under this Agreement and its rights under Section 3.9 under either circumstance. Upon delivery of such notice by the ABL Revolving Collateral Agent to the Term Notes Collateral Agent, the parties shall confer in good faith to coordinate with respect to the ABL Revolving Collateral Agent’s exercise of such access rights. Consistent with the definition of “Use Period,” access rights may apply to differing parcels of Mortgaged Property and if located at different parcels of Mortgaged Property, real properties subject to different assets that constitute a portion of the Term Priority Collateral, in each case Mortgage at differing times, in which case, a differing Use Period will apply to each such property and to each such portion of the Term Priority Collateral located at different parcels of Mortgaged Property. For the avoidance of doubt, different Use Periods shall not apply with regard to Term Priority Collateral located at the same parcel of Mortgaged Propertyproperty.
(b) Without limiting any rights the Revolving Collateral Agent or any of the ABL Claimholders other Revolving Claimholder may otherwise have under applicable law or by agreement and whether or not the Notes Collateral Agent or any of the Term Claimholders other Notes Claimholder has commenced and is continuing to undertake Exercise any Enforcement ActionSecured Creditor Remedies of the Notes Collateral Agent, the Term Revolving Collateral Agent hereby grants to or any other Person (including any Revolving Claimholder) acting with the ABL Agent an irrevocableconsent, non-exclusive or on behalf, of the Revolving Collateral Agent, shall have the right to have access toduring the Use Period, and a royalty-free and rent-free license (subject, howevera) during normal business hours on any Business Day, to access Revolving Priority Collateral that (i) is stored or located in or on, (ii) has become an accession with respect to (within the payment meaning of any royalties to third parties that are not Grantors or Affiliates thereof that are due as a result Section 9-335 of the exploitation UCC), or (iii) has been commingled with (within the meaning of any licensed Intellectual Property) and right to use Section 9-336 of the Term UCC), Notes Priority Collateral, and (b) access the Notes Priority Collateral (including, without limitation, equipment, fixtures, Intellectual Property, general intangibles and Real Property real property and equipment, processors, computers and other machinery related to the storage or processing of records, documents or files (and in the case of Term Priority Collateral that constitutes Intellectual Propertyfiles), the Term Agent hereby grants to the ABL Agent a non-excusive, irrevocable, fully-paid and royalty-free license to use such Intellectual Property) during the Use Period to the maximum extent permitted by applicable law and to the extent each of the Term Agent’s interest therein (subject to, for the avoidance of doubt, any third party licenses (i) to access the ABL Priority Collateral and (ii) foregoing in order to assemble, inspect, copy or download information stored on, take actions to perfect its Lien on, process raw materials or work-in- process into finished Inventorycomplete a production run of Inventory involving, take possession of, move, package, prepare and advertise for sale or dispositionsale, sell (by public auction, private sale or a “store closing,” “going out of business” or similar sale, whether in bulk, in lots or to customers in the ordinary course of business or otherwise and which sale may includeinclude augmented Inventory of the same type sold in AMLLC’s business), store, take reasonable actions to protect, secure and otherwise enforce the rights of the Revolving Collateral Agent in and to the Revolving Priority Collateral, or otherwise deal with the Revolving Priority Collateral, in each case without the involvement of or interference by any Notes Claimholder or liability to any Notes Claimholder. In the event that any Revolving Claimholder has commenced and is continuing the Exercise of any Secured Creditor Remedies with respect to any Revolving Priority Collateral, this Agreement will not restrict the rights of the Notes Collateral Agent to sell, assign or otherwise transfer the related Notes Priority Collateral prior to the expiration of the Use Period if the purchaser, assignee or transferee thereof agrees to be bound by the provisions of this Section 3.8.
(c) During the period of actual occupation, use or and/or control by the ABL Revolving Claimholders and/or the Revolving Collateral Agent (or its their respective employees, agents, advisers and representatives) of any Term Notes Priority CollateralCollateral or other assets or property, the ABL Revolving Claimholders and the Revolving Collateral Agent shall be obligated to (i) pay any utility, rental, lease or similar charges and payments owed to third parties that accrue during, or that arise as a result of, such use to the extent not paid by the Grantors and (ii) repair at its their expense any physical damage (to such Notes Priority Collateral or other assets or property resulting from such occupancy, use or control, and to leave such Notes Priority Collateral or other assets or property in substantially the same condition as it was at the commencement of such occupancy, use or control, ordinary wear and tear excepted) to such Term Priority Collateral caused by such occupancy, use or control (including the removal of any Collateral from the premises) by the ABL Agent or its agents, representatives or designees; provided that neither the ABL Agent nor the ABL Claimholders will be liable for any diminution in the value of the Term Priority Collateral caused by the absence of the ABL Priority Collateral therefrom. Notwithstanding the foregoing, in no event shall the ABL Revolving Claimholders or the Revolving Collateral Agent have any liability to any of the Term Notes Claimholders and/or to the Notes Collateral Agent pursuant to this Section 3.9 3.8 as a result of any condition (including any environmental condition, claim or liability) on or with respect to the Term Notes Priority Collateral existing prior to the date of the exercise by the ABL Agent Revolving Claimholders (or the Revolving Collateral Agent, as the case may be) of its their rights under this Section 3.9, 3.8 and the ABL Agent Revolving Claimholders shall have no duty or liability to maintain the Term Notes Priority Collateral in a condition or manner better than that in which it was maintained prior to the use thereof by the ABL AgentRevolving Claimholders, or for any diminution in the value of the Term Notes Priority Collateral that results solely from ordinary wear and tear resulting from the use of the Term Notes Priority Collateral by the ABL Agent Revolving Claimholders in the manner and for the time periods specified under this Section 3.9 and subject to the terms hereof3.8. Without limiting the rights granted in this Section 3.93.8, the ABL Revolving Claimholders and the Revolving Collateral Agent shall use commercially reasonable efforts to cooperate with the Term Notes Claimholders and/or the Notes Collateral Agent in connection with any efforts made by the Term Notes Claimholders and/or the Notes Collateral Agent to sell the Term Notes Priority Collateral.
(d) Consistent with The Revolving Collateral Agent and the definition Revolving Claimholders shall not be obligated to pay any amounts to the Notes Collateral Agent or the Notes Claimholders (or any person claiming by, through or under the Notes Claimholders, including any purchaser of the term “Use Period,” if Notes Priority Collateral) or to any order Grantor, for or injunction is issued in respect of the use by the Revolving Collateral Agent and the Revolving Claimholders of the Notes Priority Collateral; provided that Revolving Collateral Agent and the other Revolving Claimholders shall be obligated to pay any third-party expenses related thereto, including costs with respect to heat, light, electricity and water with respect to that portion of any premises so used or stay is granted occupied, or is otherwise effective by operation that arise as a result of law such use. In the event, and only in the event, that prohibits in connection with its use of some or all of the ABL premises constituting Notes Priority Collateral, the Revolving Collateral Agent from exercising requires the services of any employees of AMLLC or any of its rights hereunderSubsidiaries, then the Use Period granted Revolving Collateral Agent shall pay directly to any such employees the appropriate, allocated wages of such employees, if any, during the time periods that the Revolving Collateral Agent requires their services.
(e) The Revolving Claimholders shall use the Notes Priority Collateral in accordance with applicable law.
(f) Subject to Section 3.7, the Notes Collateral Agent and the other Notes Claimholders (i) will cooperate with the Revolving Collateral Agent in its efforts pursuant to Section 3.8(b) to enforce its security interest in the Revolving Priority Collateral and to finish any work-in-process and assemble the Revolving Priority Collateral, (ii) will not hinder or restrict in any respect the Revolving Collateral Agent from enforcing its security interest in the Revolving Priority Collateral or from finishing any work-in-process or assembling the Revolving Priority Collateral pursuant to Section 3.8(b), and (iii) will, subject to the ABL rights of any landlords under real estate leases, permit the Revolving Collateral Agent, its employees, agents, advisers and representatives to exercise the rights described in Section 3.8(b).
(g) Subject to the terms hereof, the Notes Collateral Agent may advertise and conduct public auctions or private sales of the Notes Priority Collateral, without the involvement of or interference by any Revolving Claimholder or liability to any Revolving Claimholder as long as, in the case of an actual sale, the respective purchaser assumes and agrees in advance in writing to the obligations of the Notes Collateral Agent and the Notes Claimholders under this Section 3.9 3.8. If the Revolving Collateral Agent conducts a public auction or private sale of the Revolving Priority Collateral at any of the real property included within the Notes Collateral, the Revolving Collateral Agent shall be stayed during provide the period Notes Collateral Agent with reasonable notice and use reasonable efforts to hold such auction or sale in a manner which would not unduly disrupt the Notes Collateral Agent’s use of such prohibition and shall continue thereafter for the number of days remaining under this Section 3real property.
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Samples: Intercreditor Agreement (Associated Materials, LLC)
