Contract analysis

ARTICLE I — DEFINITIONS AND INTERPRETATION

Section 1.1 — Definitions As used in this Agreement, the following terms shall have the meanings set forth below: "Agreement" means this Intercreditor Agreement, dated as of April 22, 2021, as it may be amended, restated, supplemented, or otherwise modified from time to time in accordance with Section 11.6. "Bankruptcy Code" means Title 11 of the United States Code, 11 U.S.C. §§ 101 et seq., as amended from time to t

Section 1.2 — Rules of Interpretation Unless the context otherwise requires, the following rules of interpretation shall apply to this Agreement: (a) References to any agreement, instrument, or document (including this Agreement, the Senior Credit Agreement, the Mezzanine Credit Agreement, and each Collateral Document) shall include all amendments, restatements, supplements, extensions, renewals, replacements, refina

Section 1.3 — Incorporation of Senior Credit Agreement and Mezzanine Credit Agreement Definitions Capitalized terms used but not otherwise defined in this Agreement shall have the meanings ascribed to such terms in the Senior Credit Agreement and, to the extent not defined therein, in the Mezzanine Credit Agreement. In the event of any conflict between the definitions set forth in the Senior Credit Agreement and the

ARTICLE II — LIEN PRIORITY AND SUBORDINATION

Section 2.1 — Relative Priority of Liens (a) Notwithstanding the time, order, or method of grant, attachment, or perfection of any lien or security interest, and notwithstanding any provision of the UCC, any other applicable law, or any agreement (other than this Agreement), and notwithstanding the provisions of any filing or recording, any defect in or failure of perfection, or any other circumstance whatsoever: (i)

Section 2.2 — Prohibition on Contesting Liens (a) Mezzanine Lender agrees that it shall not (and hereby waives any right to), directly or indirectly, contest, challenge, object to, or seek to avoid, subordinate, recharacterize, or set aside the validity, enforceability, attachment, perfection, or priority of any of the Senior Liens, whether in any judicial, administrative, or other proceeding (including any proceedin

Section 2.3 — Nature of Obligations Not Affected (a) The subordination of the Mezzanine Liens to the Senior Liens pursuant to this Agreement does not impair, limit, or affect, and shall not be construed to impair, limit, or affect, the obligation of Borrower to pay the Mezzanine Obligations in accordance with their terms as and when due, subject to the payment subordination and blockage provisions of Article IV. (b)

Section 2.4 — No New Liens (a) Neither Senior Agent nor Mezzanine Lender shall acquire or hold any lien or security interest on any Collateral that is senior to or pari passu with the other Party's liens, except in accordance with the applicable Credit Documents and this Agreement. (b) Borrower shall not grant, create, incur, assume, or suffer to exist any additional lien or security interest on any Collateral, excep

Section 2.5 — Perfection of Liens (a) Each Party shall be solely responsible for perfecting its own liens and security interests on and in the Collateral, at its own expense. Neither Party shall have any obligation to the other Party to file, record, or otherwise perfect any lien or security interest on behalf of the other Party. (b) UCC-1 financing statements with respect to the Senior Liens have been filed with the

ARTICLE III — ACTIONS WITH RESPECT TO COLLATERAL

Section 3.1 — Exercise of Remedies by Senior Agent (a) Senior Agent (on behalf of itself and the other lenders under the Senior Credit Agreement) may exercise all rights and remedies available to it under the Senior Credit Agreement, the Senior Collateral Documents, applicable law (including, without limitation, Article 9 of the UCC and any applicable real property foreclosure statutes), and this Agreement, including

Section 3.2 — Standstill on Mezzanine Lender's Exercise of Remedies (a) 180-Day Standstill Period. Upon the occurrence of any event of default under the Mezzanine Credit Agreement, Mezzanine Lender shall not take any Enforcement Action against the Collateral, or any portion thereof, until the earlier of: (i) one hundred eighty (180) days after Mezzanine Lender delivers an Enforcement Notice to Senior Agent in accorda

Section 3.3 — Mezzanine Lender Remedies After Standstill Period (a) After the expiration of the Standstill Period (without the occurrence of the Discharge of Senior Obligations or the commencement of enforcement by Senior Agent that is being diligently pursued), Mezzanine Lender may exercise remedies with respect to the Collateral in accordance with the Mezzanine Credit Agreement, the Mezzanine Collateral Documents,

Section 3.4 — Senior Agent's Right to Conduct Disposition (a) If Senior Agent is conducting or has commenced a foreclosure sale, disposition, or other realization upon any Collateral, or is exercising any other Enforcement Action with respect to the Collateral, Mezzanine Lender shall not take any action that would interfere with, delay, hinder, impede, or inhibit such sale, disposition, or Enforcement Action. Mezzani

Section 3.5 — Release of Mezzanine Liens (a) If Senior Agent releases, forecloses upon, or otherwise disposes of any Collateral (or any portion thereof) in connection with an Enforcement Action or a sale or other disposition of Collateral conducted in accordance with the Senior Collateral Documents or applicable law, the Mezzanine Liens on such Collateral (or such portion thereof) shall be automatically and unconditi

Section 3.6 — Insurance and Condemnation Proceeds (a) All insurance proceeds received on account of any loss or damage to the Collateral and all condemnation awards or payments received in connection with the taking, condemnation, or exercise of eminent domain with respect to the Collateral (or any portion thereof) shall be applied: (i) First, to the Senior Obligations (including the application thereof in such order

ARTICLE IV — PAYMENT SUBORDINATION AND BLOCKAGE

Section 4.1 — Permitted Mezzanine Payments (a) So long as no blockage Period is then in effect, Borrower may make, and Mezzanine Lender may receive and retain, the following payments on account of the Mezzanine Obligations (collectively, "Permitted Mezzanine Payments"): (i) regularly scheduled quarterly cash interest payments on the Mezzanine Obligations at the cash pay rate of eight percent (8.00%) per annum, which,

Section 4.2 — Payment blockage (a) Triggering Event. Upon the occurrence and during the continuance of (i) a payment default (being a failure to pay principal, interest, or any other amount when due under the Senior Credit Agreement), or (ii) a specified event of default under the Senior Credit Agreement (being any event of default described in Sections 8.1(a), 8.1(b), 8.1(e), 8.1(f), or 8.1(g) of the Senior Credit A

Section 4.3 — Payment Default on Senior Obligations Notwithstanding anything to the contrary in this Article IV, if a payment default (being a failure to pay principal, interest, or any other amount when due under the Senior Credit Agreement after giving effect to any applicable grace or cure period) exists under the Senior Credit Agreement, no payments of any kind (whether of principal, cash interest, fees, expenses

Section 4.4 — Resumption of Mezzanine Payments Upon termination of a blockage Period (whether by lapse of time, cure, waiver, or Discharge of Senior Obligations), Borrower may resume making Permitted Mezzanine Payments, including the payment of any catch-up amounts in respect of cash interest payments that were scheduled but not paid during the blockage Period, to the extent that (a) such catch-up payments are permit

Section 4.5 — Subordination of Prepayment (a) No voluntary or mandatory prepayment of the Mezzanine Obligations (including any principal prepayment and any prepayment premium or make-whole amount — Year 1: one hundred three percent (103%); Year 2: one hundred two percent (102%); Year 3: one hundred one percent (101%); Years 4–5: par) may be made by Borrower, and no such prepayment may be received or retained by Mezza

ARTICLE V — TURNOVER PROVISIONS

Section 5.1 — Turnover of Collateral Proceeds (a) If Mezzanine Lender receives any proceeds of Collateral (whether resulting from any Enforcement Action, insurance claim, condemnation award, set-off, or otherwise), at any time when such receipt is not permitted by this Agreement, or in excess of amounts that Mezzanine Lender is permitted to receive and retain under this Agreement, Mezzanine Lender shall: (i) hold suc

Section 5.2 — Application of Proceeds All proceeds of Collateral received by any Party in connection with any Enforcement Action, sale, disposition, collection, or realization upon all or any portion of the Collateral shall be applied in the following order of priority: First, to the payment of all costs and expenses of Senior Agent in connection with such Enforcement Action, sale, disposition, collection, or realiza

Section 5.3 — Subrogation Upon the Discharge of Senior Obligations, Mezzanine Lender shall be subrogated to the rights of Senior Agent in respect of the Senior Liens and the Senior Collateral Documents, but only to the extent of payments or distributions actually received by Senior Agent pursuant to the turnover provisions of this Article V (and not applied to the Senior Obligations from other sources). Until the Dis

ARTICLE VI — MODIFICATIONS TO CREDIT DOCUMENTS

Section 6.1 — Amendments to Senior Credit Agreement (a) Senior Agent, the lenders under the Senior Credit Agreement, and Borrower may, without the consent of Mezzanine Lender, amend, restate, refinance, replace, renew, supplement, or otherwise modify the Senior Credit Agreement and the Senior Collateral Documents, provided that no such amendment, restatement, refinancing, replacement, renewal, supplement, or modifica

Section 6.2 — Amendments to Mezzanine Credit Agreement (a) Mezzanine Lender and Borrower may, without the consent of Senior Agent, amend, restate, supplement, or otherwise modify the Mezzanine Credit Agreement and the Mezzanine Collateral Documents, provided that no such amendment, restatement, supplement, or modification shall, without the prior written consent of Senior Agent (which consent shall not be unreasonabl

Section 6.3 — Refinancing of Senior Obligations (a) Senior Agent may be replaced by a successor administrative agent, and the Senior Obligations may be refinanced, replaced, renewed, or extended by one or more successor senior lenders or agents, and such replacement lender or agent shall succeed to, and be entitled to enforce, all rights, benefits, and protections of Senior Agent under this Agreement, provided that:

ARTICLE VII — BANKRUPTCY AND INSOLVENCY PROVISIONS

Section 7.1 — Relative Rights in Bankruptcy (a) This Agreement shall continue in full force and effect, and the relative rights and priorities of Senior Agent and Mezzanine Lender in and to the Collateral shall be determined in accordance with the provisions of this Agreement, notwithstanding the commencement of any voluntary or involuntary case or proceeding under the Bankruptcy Code, or any state insolvency, receiv

Section 7.2 — DIP Financing (a) If Borrower or any Grantor becomes the subject of an Insolvency Proceeding, Mezzanine Lender shall not object to, and hereby irrevocably consents to, any debtor-in-possession financing ("DIP Financing") provided by Senior Agent or its designee (or any other lender approved by Senior Agent) that is secured by liens on the Collateral senior to the Mezzanine Liens, including superpriority

Section 7.3 — No Objection to Use of Cash Collateral (a) In any Insolvency Proceeding, Mezzanine Lender shall not object to the use of cash collateral (as defined in Section 363(a) of the Bankruptcy Code) by Borrower or any Grantor, provided that (i) Senior Agent has consented to such use in accordance with the Senior Credit Agreement and applicable bankruptcy court orders, and (ii) Mezzanine Lender receives adequate

Section 7.4 — No Objection to Sale of Collateral (a) In any Insolvency Proceeding, Mezzanine Lender shall not object to any sale, transfer, or other disposition of all or any portion of the Collateral under Section 363 of the Bankruptcy Code (or any similar provision of applicable law) that has been approved or consented to by Senior Agent, provided that the Mezzanine Liens shall attach to the proceeds of such sale i

Section 7.5 — Filing of Claims (a) Mezzanine Lender retains the right to file proofs of claim, participate in meetings of creditors, and vote on any plan of reorganization or liquidation, in each case in any Insolvency Proceeding, in its capacity as a holder of the Mezzanine Obligations. (b) Notwithstanding the foregoing, any distribution received by Mezzanine Lender on account of the Mezzanine Obligations in any Ins

Section 7.6 — Adequate Protection (a) In any Insolvency Proceeding, Mezzanine Lender shall not seek, request, or accept adequate protection in the form of (i) additional or replacement liens on Collateral that are senior to or pari passu with the Senior Liens, (ii) superpriority administrative expense claims that are senior to or pari passu with any superpriority administrative expense claims granted to Senior Agent,

ARTICLE VIII — REPRESENTATIONS AND WARRANTIES

Section 8.1 — Representations of Senior Agent Senior Agent hereby represents and warrants to Mezzanine Lender, as of the date hereof, as follows: (a) Organization and Standing. Pinnacle Commercial Bank, N.A. is a national banking association duly organized, validly existing, and in good standing under the laws of the United States, and has all requisite corporate power and authority to conduct its business as present