RE-RENTAL TERMS: COLLATERAL ACCESS AGREEMENT
December 22, 2020
To secure the obligations of OHR Rents (“Company”) owed to Great Rock Capital Partners, LLC (the “Agent”) the Company has granted to Agent a security interest in and to certain of the assets of the Company (the “Collateral”), including, without limitation, all of the Company’s raw materials, work-in-progress inventory and machinery and equipment, which may be located upon the real property (the “Premises”) of the Customer (the “Customer”).
Upon entering into an equipment lease agreement with the Company, the Customer hereby represents, warrants, covenants and agrees as follows:
- The Customer agrees that any Collateral is and shall remain personal property of the Company, subject to Agent’s security interest, and is not and shall not become or be deemed to be fixtures affixed to the Premises. Any Collateral may not be relocated without Agent’s written consent. In the event that any Collateral is deemed to be a fixture to the Premises for any reason, Customer agrees to execute such additional documentation as reasonably requested by Agent in order to properly perfect Agent’s security interest in that certain Collateral and to recognize and acknowledge such Collateral as the property of Company (subject to Agent’s security interest), including, without limitation, reasonably cooperate with the filing of a fixture filing on the Premises. In the event any third party, including a creditor or lender to the Company, by notice to Customer attempts to claim ownership or right in and to any Collateral, Customer agrees to notify Agent and Company in writing of such action or claim to provide Agent and/or Company an opportunity to defend against such claim or action. In the event any Customer seeks to sell or lease the Premises to a third party, Customer shall notify Agent and Company in writing of such action not less than thirty (30) days prior to such action being consummated to provide Agent and/or Company a reasonable opportunity to obtain a landlord waiver or similar agreement with such third party.
- The Customer hereby recognizes Agent’s security interest in and to any Collateral, acknowledges that it has no right or title over any Collateral superior to Agent’s and unconditionally waives and releases in favor of the Agent and any other credit parties: (a) any and all rights of distraint, levy, and execution, however arising, which Customer may now or hereafter have against the Collateral; (b) any and all statutory liens, security interests, or other liens which Customer may now or hereafter have in the Collateral and the proceeds thereof, whether by statute or by virtue of Company’s occupation of space at the Premises at which the Collateral resides; and (c) any and all other interests or claims of every nature whatsoever which Landlord may now or hereafter have in or against the Collateral for any rent, storage charges, or other sums due, or to become due, to Customer by Company. Customer agrees not to exercise any of Customer’s rights, remedies, powers, privileges, or discretions with respect to the Collateral, or liens or security interests in the Collateral, unless and until Customer receives written notice from an officer of the Agent that the Company’s obligations to the Agent and the other credit parties have been paid in full, and that the commitment of each credit party to make loans or furnish other financial accommodations to the Company under any loan agreement has been terminated. The foregoing waiver is for the benefit of the Agent and the other credit parties only and does not affect the obligations of the any Company to any Customer.
- In the event of the exercise by the Agent of its rights upon a default under the any loan agreement with respect to any Collateral, the Agent shall have a reasonable time, but in no event less than one hundred twenty (120) days, in which to repossess and/or dispose of the Collateral from the Premises; provided, however, that such period will be tolled during any period in which the Agent has been stayed from taking action to remove any Collateral in any bankruptcy, insolvency or similar proceeding, and the Agent shall have an additional period of time (but in no event less than one hundred twenty (120) days) thereafter in which to repossess and/or dispose of any Collateral from the Premises.
- In the event Company is threatened with a default, is notified of a pending default or is in default under the lease agreement, or in the event the lease agreement is set to terminate or expire early for any reason, Customer shall give the Agent not less than thirty (30) days’ prior written notice of such action at the address set forth below, and shall provide Agent with access to the Premises so that Agent has a reasonable opportunity to preserve, protect, liquidate, take possession of or remove any Collateral on the Premises and, if the Agent so elects, to cure such breach of or default. Notwithstanding the provisions of this paragraph, the Agent shall not have any obligation to cure any such breach or default. The cure of any such breach or default by the Agent on any one occasion shall not obligate the Agent to cure any other breach or default or to cure such breach or default on any other occasion.
- Company hereby unconditionally and irrevocably authorizes the Customer to grant and allow access by the Agent, or its agents or nominees, to the Premises pursuant to the terms hereof without any duty or obligation to make inquiry of the Agent or to oversee or monitor in any way the activities of the Agent in the Premises. Under this Agreement, the Customer agrees to provide Agent with reasonable assistance and recognizes Agent as attorney-in-fact for the Company and to take all reasonable directions from Agent.
- To the extent not paid or prepaid by the Company, the Agent shall pay the Company’s Customer a sum for its use and occupancy of the Premises on a per diem basis in an amount equal to the monthly base rent required to be paid by a Company under a lease agreement from the date on which the Agent shall have taken possession of the Collateral on the Premises until the date on which the Agent vacates the Premises, it being understood, however, that the Agent shall not, thereby, have assumed any of the obligations of any Company to any Customer, including, without limitation, any obligation to pay any past due rent owing by the Company. No payment by the Agent to any Customer hereunder shall affect any obligation of any Company and its affiliates to reimburse the Agent for any such payment by the Agent pursuant to the terms of any loan agreement.
- The Customer will, upon reasonable prior written notice from the Agent, (a) cooperate with the Agent in gaining access to the Premises and (b) if requested by the Agent, permit the Agent, or its agents or nominees, to dispose of any Collateral on the Premises in a manner reasonably designed to minimize any interference with any of any Landlord’s other tenants at the Premises. The Agent shall promptly repair, at the Agent’s cost and expense, any physical damage to the Premises actually caused by the Agent, but shall not be liable for any diminution in value of the Premises caused by the removal or absence of the Collateral.
- All notices shall be made to the following addresses by recognized overnight courier, by hand delivery or by facsimile transmission:
If to the Agent:
Great Rock Capital Partners Management, LLC, as Agent
c/o Two Sigma Investments, LLC
101 Avenue of the Americas, 17th Floor
New York, NY 10013
Attention: Stuart Armstrong
Email: Armstrong@greatrockcapital.com and firstname.lastname@example.org
Great Rock Capital Partners Management, LLC, as Agent
285 Riverside Avenue
Westport, CT 06880
Attention: Izabel Leal-Ross
with a copy to:
Moore & Van Allen PLLC
100 North Tryon St., Suite 4700
Charlotte, NC 28202
Attention: Kimberly Zirkle, Esq.