IN FURTHERANCE OF THE ABL AGENT'S RIGHTS
UNDER SECTION 3.5(A), AT ALL TIMES DURING THE USE PERIOD, THE TERM AGENT
(I) SHALL, TO THE EXTENT PERMITTED BY LAW, PERMIT THE ABL AGENT AND ITS AGENTS
OR REPRESENTATIVES AT THE ABL AGENT'S OPTION TO USE, ON A NONEXCLUSIVE, ROYALTY
FREE BASIS, ANY OF THE INTELLECTUAL PROPERTY AS IS OR MAY BE NECESSARY FOR THE
ABL AGENT TO SELL OR OTHERWISE LIQUIDATE THE ABL PRIORITY COLLATERAL AND
(II) HEREBY GRANTS TO THE ABL AGENT A NONEXCLUSIVE, IRREVOCABLE, ROYALTY-FREE,
WORLDWIDE LICENSE TO USE ANY AND ALL INTELLECTUAL PROPERTY AS IS OR MAY BE
NECESSARY TO SELL OR OTHERWISE LIQUIDATE THE ABL PRIORITY COLLATERAL.
THE TERM
AGENT (A) ACKNOWLEDGES AND CONSENTS TO THE GRANT TO THE ABL AGENT BY THE ABL
OBLIGORS ON THE DATE HEREOF OF A CONTINUING, LIMITED, NON-EXCLUSIVE ROYALTY-FREE
LICENSE FOR THE USES DESCRIBED IN CLAUSES (B)(I) AND (B)(II) ABOVE AT ANY TIME
(THE "EFFECTIVE DATE LICENSE") AND (B) AGREES THAT ITS LIENS ON THE TERM
PRIORITY COLLATERAL SHALL BE SUBJECT TO THE EFFECTIVE DATE LICENSE AS SET FORTH
HEREIN.
FURTHERMORE, THE TERM AGENT AGREES THAT, IN CONNECTION WITH ANY
FORECLOSURE SALE CONDUCTED BY THE TERM AGENT IN RESPECT OF THE INTELLECTUAL
PROPERTY, (1) ANY NOTICE REQUIRED TO BE GIVEN BY THE TERM AGENT IN CONNECTION
WITH SUCH FORECLOSURE SHALL CONTAIN AN ACKNOWLEDGEMENT THAT THE TERM AGENT'S
LIEN IS SUBJECT TO THE EFFECTIVE DATE LICENSE, AND (2) THE TERM AGENT SHALL
DELIVER A COPY OF THE EFFECTIVE DATE LICENSE TO ANY PURCHASER AT SUCH
FORECLOSURE AND PROVIDE WRITTEN NOTICE TO SUCH PURCHASER THAT THE TERM AGENT'S
LIEN AND THE PURCHASER'S RIGHTS IN THE SUCH TRANSFERRED COLLATERAL ARE SUBJECT
TO THE EFFECTIVE DATE LICENSE.
(C)
DURING THE PERIOD OF ACTUAL OCCUPATION, USE
AND/OR CONTROL BY THE ABL SECURED PARTIES AND/OR THE ABL AGENT (OR THEIR
RESPECTIVE EMPLOYEES, AGENTS, ADVISERS AND REPRESENTATIVES) OF ANY TERM PRIORITY
COLLATERAL, THE ABL SECURED PARTIES AND THE ABL AGENT SHALL BE OBLIGATED TO
REPAIR AT THEIR EXPENSE ANY PHYSICAL DAMAGE (BUT NOT ANY OTHER DIMINUTION IN
VALUE) TO SUCH TERM PRIORITY COLLATERAL RESULTING FROM SUCH OCCUPANCY, USE OR
CONTROL, AND TO LEAVE SUCH TERM PRIORITY COLLATERAL IN SUBSTANTIALLY THE SAME
CONDITION AS IT WAS AT THE COMMENCEMENT OF SUCH OCCUPANCY, USE OR CONTROL,
ORDINARY WEAR AND TEAR EXCEPTED.
NOTWITHSTANDING THE FOREGOING, IN NO EVENT
SHALL THE ABL SECURED PARTIES OR THE ABL AGENT HAVE ANY LIABILITY TO THE TERM
SECURED PARTIES AND/OR TO THE TERM AGENT PURSUANT TO THIS SECTION 3.5 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 SECURED PARTIES (OR THE ABL AGENT, AS THE
CASE MAY BE) OF THEIR RIGHTS UNDER SECTION 3.5 AND THE ABL SECURED PARTIES 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