Contract analysis

ARTICLE I — DEFINITIONS AND INTERPRETATION

Section 1.01 — Definitions. As used in this Agreement, the following terms shall have the meanings set forth below: "Administrative Agent" means Crescent Harbor Bank, N.A., in its capacity as administrative agent under the First Lien Credit Agreement, and any successor administrative agent appointed in accordance with the terms thereof. "Agreement" means this Intercreditor Agreement, as it may be amended, restated, s

Section 1.02 — Rules of Interpretation. (a) Unless otherwise defined herein, terms defined in the UCC (including terms defined in Article 9 thereof) are used herein as therein defined. (b) References herein to the First Lien Credit Agreement and the Unsecured Notes Indenture shall be deemed to include all amendments, restatements, amendments and restatements, supplements, extensions, renewals, replacements, refinanci

Section 1.03 — UCC Terms. All terms used herein that are defined in Article 9 of the Uniform Commercial Code as in effect from time to time in the State of New York and not otherwise defined herein shall have the respective meanings given to such terms in Article 9 of such Uniform Commercial Code.

ARTICLE II — PRIORITY OF LIENS AND CLAIMS

Section 2.01 — Relative Priority of Liens. (a) The parties hereto acknowledge and agree that the Unsecured Notes are not secured by any Lien on or security interest in any Collateral. The holders of the Unsecured Notes have no Lien on, security interest in, or other right or interest in or to any Collateral, and nothing in this Agreement or any other agreement or document shall be construed to grant any such Lien, se

Section 2.02 — Prohibition on Contesting Liens. (a) The Unsecured Notes Trustee, on behalf of itself and the Unsecured Notes Parties, hereby agrees that it shall not (and hereby waives any right to) contest, challenge, or raise any objection to the validity, perfection, priority, or enforceability of any Lien on any Collateral in favor of the First Lien Collateral Agent or any First Lien Secured Party, whether in any

Section 2.03 — No New Liens for Unsecured Notes. (a) No Loan Party shall grant, create, incur, assume, or permit to exist any Lien on any Collateral to secure the Unsecured Notes Obligations or any portion thereof. The Unsecured Notes Trustee, on behalf of itself and the Unsecured Notes Parties, agrees that neither it nor any Unsecured Notes Party shall accept, acquire, or receive any Lien on any Collateral to secure

Section 2.04 — Nature of Unsecured Notes Obligations. Each party hereto acknowledges and agrees that the Unsecured Notes Obligations are unsecured obligations of the Loan Parties. Nothing in this Agreement shall be construed as granting or conveying, and nothing herein is intended to grant or convey, any Lien on any Collateral to the Unsecured Notes Trustee or any holder of the Unsecured Notes. The Unsecured Notes Tr

ARTICLE III — ENFORCEMENT ACTIONS

Section 3.01 — Exercise of Remedies. (a) Only the First Lien Collateral Agent, acting at the direction of the Required Lenders under the First Lien Credit Agreement (or such other Persons as may be authorized to direct the First Lien Collateral Agent under the First Lien Credit Agreement), shall have the right to exercise remedies with respect to the Collateral. Such remedies include, without limitation, the right to

Section 3.02 — Enforcement Standstill for Unsecured Notes Parties. (a) The Unsecured Notes Trustee, on behalf of itself and the Unsecured Notes Parties, hereby agrees that it shall not commence, join in, support, or participate in any action or proceeding against any Loan Party to foreclose upon, levy against, attach, or otherwise enforce against any Collateral, or to exercise any right or remedy with respect to the

Section 3.03 — No Interference. The Unsecured Notes Trustee, on behalf of itself and the Unsecured Notes Parties, hereby agrees that it shall not take any action, and shall refrain from taking any action, that would in any manner interfere with, hinder, delay, impede, or otherwise adversely affect the exercise by the First Lien Collateral Agent of any right or remedy with respect to the Collateral. Without limiting t

Section 3.04 — Cooperation of the Borrower. The Borrower hereby agrees to cooperate fully with the First Lien Collateral Agent in connection with any enforcement action with respect to the Collateral, and to use commercially reasonable efforts to facilitate the orderly exercise of remedies by the First Lien Collateral Agent. Such cooperation shall include, without limitation, providing access to the Collateral, makin

ARTICLE IV — APPLICATION OF PROCEEDS

Section 4.01 — Proceeds Waterfall. All proceeds received by the First Lien Collateral Agent or any First Lien Secured Party from the sale, collection, foreclosure, or other disposition of the Collateral (or any part thereof), or from the exercise of any enforcement action, right, or remedy with respect to the Collateral (collectively, "Collateral Proceeds"), shall be applied in the following order of priority: First:

Section 4.02 — Turnover Provisions. (a) If the Unsecured Notes Trustee or any Unsecured Notes Party receives any payment, distribution, or other recovery of any kind or character from the Collateral or proceeds of the Collateral (whether by direct payment, setoff, recoupment, counterclaim, or otherwise) in violation of this Agreement or in contravention of the waterfall set forth in Section 4.01 hereof, such payment,

Section 4.03 — Payments Permitted on Unsecured Notes. Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement shall prohibit or restrict: (a) regularly scheduled payments of principal and interest on the Unsecured Notes when due in accordance with the terms of the Unsecured Notes Indenture, so long as no default or event of default under the First Lien Credit Agreement has occurred and i

ARTICLE V — INSOLVENCY PROCEEDINGS

Section 5.01 — Insolvency Proceeding Provisions. In the event of any Insolvency Proceeding involving any Loan Party: (a) The Unsecured Notes Trustee, on behalf of itself and the Unsecured Notes Parties, hereby agrees that it shall not oppose, object to, or otherwise interfere with any motion, application, request, or other pleading made or filed by the First Lien Collateral Agent seeking (i) relief from or modificati

Section 5.02 — Asset Sales in Insolvency Proceedings. (a) The Unsecured Notes Trustee, on behalf of itself and the Unsecured Notes Parties, hereby agrees that it shall not object to, oppose, or otherwise interfere with any sale, transfer, or other disposition of the Collateral (or any part thereof) under Section 363 of the Bankruptcy Code, under a plan of reorganization or liquidation, or under any other provision of

Section 5.03 — DIP Financing. (a) The Unsecured Notes Trustee, on behalf of itself and the Unsecured Notes Parties, hereby agrees that it shall not object to, oppose, or otherwise interfere with any DIP Financing or post-petition credit facility that is secured by Liens on the Collateral (whether or not such Liens prime the existing Liens of the First Lien Collateral Agent on the Collateral), provided that the First

Section 5.04 — Filing of Proofs of Claim. Nothing in this Article V shall prohibit the Unsecured Notes Trustee from (a) filing a proof of claim in any Insolvency Proceeding with respect to the Unsecured Notes Obligations as unsecured claims, (b) voting on any plan of reorganization, plan of liquidation, or other plan in any Insolvency Proceeding, or (c) receiving distributions from the debtor's estate attributable to

Section 5.05 — Post-Petition Interest and Adequate Protection. The Unsecured Notes Trustee, on behalf of itself and the Unsecured Notes Parties, hereby acknowledges and agrees that the First Lien Secured Parties are entitled to post-petition interest on the First Lien Obligations to the extent of any surplus value of the Collateral over and above the amount of the First Lien Obligations (as determined under Section 5

ARTICLE VI — RELEASE OF LIENS AND COLLATERAL

Section 6.01 — Automatic Release. If the First Lien Collateral Agent releases, or is deemed to have released, any Lien on any Collateral in connection with (a) any sale, transfer, lease, exchange, or other disposition of such Collateral that is permitted under the First Lien Credit Agreement (including any disposition made in connection with an enforcement action or a sale under Section 363 of the Bankruptcy Code), o

Section 6.02 — Release Upon Payment in Full. Upon the indefeasible payment in full in cash of all First Lien Obligations and the termination of all commitments and obligations of the Lenders under the First Lien Credit Agreement and the other First Lien Loan Documents, this Agreement shall terminate in accordance with Section 12.14, and the Unsecured Notes Trustee's rights and the rights of the Unsecured Notes Partie

Section 6.03 — Authorization to Release. The Unsecured Notes Trustee hereby irrevocably authorizes the First Lien Collateral Agent to, and the Unsecured Notes Trustee hereby irrevocably appoints the First Lien Collateral Agent as its attorney-in-fact, with full power of substitution, to, on behalf of the Unsecured Notes Trustee and each Unsecured Notes Party: (a) file UCC-3 termination statements, amendments, or part

ARTICLE VII — REFINANCING AND REPLACEMENT DEBT

Section 7.01 — Refinancing of First Lien Obligations. (a) This Agreement shall remain in full force and effect notwithstanding any refinancing, extension, renewal, amendment, restatement, amendment and restatement, supplement, replacement, or other modification of all or any portion of the First Lien Obligations or the First Lien Credit Agreement. If the First Lien Obligations are refinanced in whole or in part, this

Section 7.02 — Refinancing of Unsecured Notes. If the Unsecured Notes are refinanced, repaid, replaced, or otherwise discharged and replaced with new unsecured obligations, (a) such replacement unsecured obligations shall be subject to the terms and conditions of this Agreement in all respects, (b) the replacement unsecured notes trustee (or similar representative) shall be bound by the terms and conditions of this A

Section 7.03 — Additional First Lien Debt. (a) The First Lien Collateral Agent may, without the consent of the Unsecured Notes Trustee or any Unsecured Notes Party, permit the incurrence of additional first lien obligations (including incremental term loans, incremental revolving commitments, and other additional first lien indebtedness) that share in the Collateral on a pari passu basis with the existing First Lien

ARTICLE VIII — SECOND LIEN PROVISIONS (RESERVED)

Section 8.01 — Future Second Lien Debt. (a) The parties hereto acknowledge that the First Lien Credit Agreement contains customary provisions permitting the Administrative Agent to enter into a "First Lien/Second Lien Intercreditor Agreement" (or similar agreement) in the event the Borrower incurs second lien indebtedness secured by the Collateral in the future. (b) If any second lien indebtedness is incurred by the

ARTICLE IX — REPRESENTATIONS AND WARRANTIES

Section 9.01 — Representations of the First Lien Collateral Agent. Crescent Harbor Bank, N.A. hereby represents and warrants to each other party hereto that (a) it is a national banking association duly organized, validly existing, and in good standing under the laws of the United States, (b) it has been duly authorized under the First Lien Credit Agreement to execute, deliver, and perform this Agreement in its capac

Section 9.02 — Representations of the Unsecured Notes Trustee. Pinnacle Trust Company hereby represents and warrants to each other party hereto that (a) it is a trust company duly organized, validly existing, and authorized to exercise trust powers under the laws of the State of New York, (b) it has been duly authorized under the Unsecured Notes Indenture to execute, deliver, and perform this Agreement in its capacit

Section 9.03 — Representations of the Borrower. Nexford Industrial Holdings Inc. hereby represents and warrants to each other party hereto as follows: (a) Organization and Good Standing. The Borrower is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware. (b) Power and Authority. The Borrower has all requisite corporate power and authority to execute, deliver,

ARTICLE X — ADDITIONAL AGREEMENTS OF THE BORROWER

Section 10.01 — Notice of New Lien Grants. The Borrower shall provide prompt written notice to the Unsecured Notes Trustee and the First Lien Collateral Agent if any Lien on the Collateral is granted, created, incurred, assumed, or otherwise arises in favor of any Person other than the First Lien Collateral Agent (for the benefit of the First Lien Secured Parties), except for Permitted Liens. Such notice shall descri

Section 10.02 — Obligations Absolute. The obligations and agreements of the Borrower under this Agreement are unconditional and absolute and shall not be released, discharged, impaired, or otherwise affected by (a) any amendment, modification, supplement, extension, renewal, refinancing, or replacement of the First Lien Credit Agreement, the First Lien Security Documents, the Unsecured Notes Indenture, the Unsecured

Section 10.03 — Compliance with Instruments. The Borrower hereby agrees that it will comply with all of the terms and conditions of the First Lien Credit Agreement, the First Lien Security Documents, the Unsecured Notes Indenture, and the Unsecured Notes to the extent applicable to this Agreement and the transactions contemplated hereby, and that it will not take any action or omit to take any action that would resul

ARTICLE XI — THE FIRST LIEN COLLATERAL AGENT AND THE UNSECURED NOTES TRUSTEE

Section 11.01 — First Lien Collateral Agent. (a) The First Lien Collateral Agent acts hereunder solely in its capacity as agent for the First Lien Secured Parties and not in its individual capacity. The First Lien Collateral Agent shall have only those duties and obligations expressly set forth in this Agreement and shall have no implied duties or obligations. The First Lien Collateral Agent shall not be liable for a

Section 11.02 — Unsecured Notes Trustee. (a) The Unsecured Notes Trustee acts hereunder solely in its capacity as trustee for the holders of the Unsecured Notes and not in its individual capacity. The Unsecured Notes Trustee shall have only those duties and obligations expressly set forth in this Agreement and shall have no implied duties or obligations. The Unsecured Notes Trustee shall not be liable for any action

Section 11.03 — Successor Agents and Trustees. (a) Any successor to the First Lien Collateral Agent appointed in accordance with the terms of the First Lien Credit Agreement shall automatically succeed to all of the rights and obligations of the First Lien Collateral Agent under this Agreement without the necessity of any further action by any party hereto. The resigning or removed First Lien Collateral Agent shall p

Section 12.01 — Notices. All notices, requests, demands, consents, waivers, and other communications under this Agreement shall be in writing and shall be deemed to have been duly given (a) when delivered by hand, (b) one (1) Business Day after being sent by nationally recognized overnight courier service (with tracking capability and receipt confirmed), or (c) when delivered by electronic mail (with confirmation of

Section 12.02 — Governing Law. This Agreement and any claims, controversies, disputes, or causes of action (whether in contract, tort, or otherwise) based upon, arising out of, or relating to this Agreement and the transactions contemplated hereby shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflicts of law principles thereof (other than Sections 5-1401 a

Section 12.03 — Submission to Jurisdiction. Each party hereto irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the United States District Court for the Southern District of New York sitting in the Borough of Manhattan, or, if such court lacks subject matter jurisdiction, the Supreme Court of the State of New York, New York County, a