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AMENDED AND RESTATED INTERCREDITOR AGREEMENT

Dated as of November 10, 2023

among

BELVEDERE CREDIT OPPORTUNITIES FUND LP as Super-Priority Agent

PINNACLE NATIONAL BANK, N.A. as First Lien Agent

and

STONEFIELD LOGISTICS GROUP INC. as the Company

with

STONEFIELD LOGISTICS HOLDINGS LLC STONEFIELD FREIGHT SERVICES LLC STONEFIELD LAST MILE INC. STONEFIELD WAREHOUSING LLC as Guarantors, for certain limited purposes set forth herein

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AMENDED AND RESTATED INTERCREDITOR AGREEMENT

This AMENDED AND RESTATED INTERCREDITOR AGREEMENT (this "Agreement"), dated as of November 10, 2023, is entered into by and among:

(1) BELVEDERE CREDIT OPPORTUNITIES FUND LP, a Delaware limited partnership, having its principal office at 450 Lexington Avenue, 30th Floor, New York, New York 10017, in its capacity as administrative agent and collateral agent (the "Super-Priority Agent") for the Super-Priority Secured Parties (as defined herein);

(2) PINNACLE NATIONAL BANK, N.A., a national banking association organized and existing under the laws of the United States, having its principal office at 200 Liberty Street, New York, New York 10281, in its capacity as administrative agent and collateral agent (the "First Lien Agent") for the First Lien Secured Parties (as defined herein); and

(3) STONEFIELD LOGISTICS GROUP INC., a corporation organized and existing under the laws of the State of Delaware, having its principal office at 4200 Commerce Street, Suite 1500, Dallas, Texas 75201 (the "Company").

Each of the foregoing is referred to herein individually as a "Party" and collectively as the "Parties."

Each of STONEFIELD LOGISTICS HOLDINGS LLC, a Delaware limited liability company, STONEFIELD FREIGHT SERVICES LLC, a Texas limited liability company, STONEFIELD LAST MILE INC., a Delaware corporation, and STONEFIELD WAREHOUSING LLC, a Texas limited liability company (collectively, the "Guarantors"), is a party hereto solely for the limited purposes set forth in Article VII and the signature pages hereof, and each such Guarantor hereby acknowledges and agrees to be bound by the provisions of this Agreement applicable to the Guarantors.

RECITALS

WHEREAS:

A. Stonefield Logistics Group Inc. (a Delaware corporation, EIN 83-2457109, Delaware File No. 6341872) (the "Company") and certain of its subsidiaries are parties to that certain Credit Agreement dated as of December 15, 2017 (the "Original First Lien Credit Agreement"), among the Company, as borrower, Pinnacle National Bank, N.A., as administrative agent and collateral agent (in such capacity, the "First Lien Agent"), and the lenders from time to time party thereto (the "First Lien Lenders"), which Original First Lien Credit Agreement has been amended and restated by that certain Amended and Restated First Lien Credit Agreement dated as of December 1, 2023 (the "First Lien Credit Agreement"), providing for, among other things, (i) a revolving credit facility in an aggregate commitment amount of Thirty-Five Million Dollars ($35,000,000) and (ii) a term loan B facility in an aggregate principal amount of Two Hundred Eighty-Five Million Dollars ($285,000,000), in each case on the terms and subject to the conditions set forth therein;

B. The Company and certain of its subsidiaries have entered into that certain Super-Priority Credit Agreement dated as of November 17, 2023 (the "Super-Priority Credit Agreement"), among the Company, as borrower, Belvedere Credit Opportunities Fund LP, as administrative agent and collateral agent (in such capacity, the "Super-Priority Agent"), and the lenders from time to time party thereto (the "Super-Priority Lenders"), providing for a super-priority term loan facility in an aggregate principal amount of Fifty-Five Million Dollars ($55,000,000), consisting of (i) Forty-Five Million Dollars ($45,000,000) funded on the closing date thereof and (ii) a delayed-draw term loan commitment in an aggregate principal amount of Ten Million Dollars ($10,000,000), in each case on the terms and subject to the conditions set forth therein;

C. The Company, the First Lien Agent, and Continental Fiduciary Trust Company, as second lien collateral agent, are parties to that certain Intercreditor Agreement dated as of December 15, 2017 (the "Original Intercreditor Agreement"), which governed the intercreditor relationship between the first lien secured parties and the holders of the Company's 11.50% Senior Secured Second Lien Notes due June 15, 2025 (CUSIP 861537 AA 2) (the "Mezzanine Notes"). The Mezzanine Notes have been or will be exchanged and cancelled in their entirety pursuant to (i) that certain Exchange Agreement dated as of December 8, 2023, among the Company, the Guarantors, and the holders of the Mezzanine Notes party thereto, and (ii) that certain Supplemental Indenture dated as of December 8, 2023, among the Company, the Guarantors, and Continental Fiduciary Trust Company, as trustee and second lien collateral agent, and accordingly, the second lien obligations previously governed by the Original Intercreditor Agreement are being eliminated in connection with the transactions contemplated hereby;

D. The Parties desire to amend and restate the Original Intercreditor Agreement in its entirety to (i) establish the relative priorities among the Super-Priority Obligations and the First Lien Obligations, (ii) set forth the respective rights and obligations of the Super-Priority Agent and the First Lien Agent with respect to the Collateral, and (iii) replace the prior first lien / second lien framework with a super-priority first-out / first lien second-out framework, all as more fully set forth herein;

E. The Company has joined this Agreement for the purpose of acknowledging the intercreditor arrangements set forth herein and agreeing to certain obligations hereunder, as more fully described in Article VII; and

F. The restructuring of the Company's capital structure, of which this Agreement forms a part, is being consummated as a consensual out-of-court restructuring pursuant to that certain Restructuring Support Agreement dated as of June 30, 2023, among the Company, the Guarantors, certain holders of the Mezzanine Notes, and the other parties thereto (as amended, restated, supplemented, or otherwise modified from time to time, the "RSA").

NOW, THEREFORE, in consideration of the foregoing premises, the mutual covenants and agreements herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

ARTICLE I

DEFINITIONS AND INTERPRETATION

Section 1.01 — Definitions

As used in this Agreement, the following terms shall have the meanings assigned to them below:

"Agents" means, collectively, the Super-Priority Agent and the First Lien Agent, and "Agent" means either of them.

"Agreement" means this Amended and Restated Intercreditor Agreement, as it may be amended, restated, supplemented, or otherwise modified from time to time in accordance with the terms hereof.

"Bankruptcy Code" means Title 11 of the United States Code (11 U.S.C. §§ 101 et seq.), as amended from time to time, and any successor statute thereto.

"Bankruptcy Filing" means any voluntary or involuntary case or proceeding commenced under the Bankruptcy Code or any similar federal, state, or foreign law relating to insolvency, reorganization, receivership, liquidation, adjustment of debts, or relief of debtors.

"Collateral" means all assets and property of the Company and the Guarantors, whether real, personal, or mixed, tangible or intangible, now owned or hereafter acquired, upon which Liens have been granted or purported to be granted to secure any of the Obligations, as described in the Security Documents, including, without limitation, the assets described on Exhibit B hereto.

"Company" means Stonefield Logistics Group Inc., a corporation organized and existing under the laws of the State of Delaware, and its successors and permitted assigns.

"DIP Financing" has the meaning set forth in Section 6.01 of this Agreement.

"Discharge of First Lien Obligations" means the date on which (a) the First Lien Obligations have been indefeasibly paid in full in cash, (b) all commitments under the First Lien Credit Agreement have been terminated, and (c) all letters of credit issued under the First Lien Credit Agreement have been terminated, cash collateralized, or backstopped to the satisfaction of the applicable issuing lender.

"Discharge of Super-Priority Obligations" means the date on which (a) the Super-Priority Obligations have been indefeasibly paid in full in cash and (b) all commitments under the Super-Priority Credit Agreement (including, without limitation, the Ten Million Dollar ($10,000,000) delayed-draw term loan commitment) have been terminated.

"Enforcement Action" means any action to foreclose on, collect, realize upon, or otherwise enforce any rights or remedies with respect to the Collateral, including, without limitation, (a) any exercise of any rights or remedies under the UCC, (b) any judicial or non-judicial foreclosure, (c) any setoff or recoupment against Collateral (but excluding setoff against deposits held by First Lien Lenders as permitted under Section 3.01(b)(iv)), (d) any notification to account debtors or other obligors to make payment directly to an Agent, (e) any acceleration of indebtedness coupled with actions against Collateral, (f) the commencement or prosecution of any enforcement proceeding, whether by judicial action, self-help, or otherwise, or (g) the exercise of any right under any lockbox agreement, deposit account control agreement, or similar arrangement with respect to proceeds of Collateral.

"Enforcement Notice" has the meaning set forth in Section 3.01(b) of this Agreement.

"Exchange Agreement" means that certain Exchange Agreement dated as of December 8, 2023, among the Company, the Guarantors, and the holders of the Mezzanine Notes party thereto, pursuant to which the Mezzanine Notes are being or will be exchanged and cancelled.

"First Lien Agent" means Pinnacle National Bank, N.A., in its capacity as administrative agent and collateral agent under the First Lien Credit Agreement, and its successors and assigns in such capacity.

"First Lien Credit Agreement" means that certain Amended and Restated First Lien Credit Agreement dated as of December 1, 2023, among the Company, as borrower, the Guarantors, Pinnacle National Bank, N.A., as Administrative Agent and Collateral Agent, and the Lenders from time to time party thereto, providing for (i) a revolving credit facility in an aggregate commitment amount of Thirty-Five Million Dollars ($35,000,000) and (ii) a term loan B facility in an aggregate principal amount of Two Hundred Eighty-Five Million Dollars ($285,000,000), as the same may be amended, restated, supplemented, refinanced, replaced, or otherwise modified from time to time in accordance with the terms hereof.

"First Lien Documents" means, collectively, the First Lien Credit Agreement and all guaranty agreements, pledge and security agreements, mortgages, deeds of trust, deposit account control agreements, collateral assignments, intercreditor agreements (other than this Agreement), and all other agreements, instruments, and documents executed or delivered in connection therewith or pursuant thereto, in each case as the same may be amended, restated, supplemented, or otherwise modified from time to time.

"First Lien Lenders" means the lenders from time to time party to the First Lien Credit Agreement, including the revolving credit lenders (which, as of the date hereof, include Pinnacle National Bank, N.A., Great Basin Commercial Bank, and Tidewater Lending Corporation) and the term loan B lenders from time to time party thereto, together with their respective successors and permitted assigns.

"First Lien Liens" means all Liens granted or purported to be granted pursuant to the First Lien Documents to secure the First Lien Obligations.

"First Lien Obligations" means all obligations of the Company and the Guarantors secured by the First Lien Liens, including, without limitation, all principal amounts outstanding under the revolving credit facility (in an aggregate commitment amount of Thirty-Five Million Dollars ($35,000,000)) and the term loan B facility (in an aggregate principal amount of Two Hundred Eighty-Five Million Dollars ($285,000,000)), together with all accrued and unpaid interest thereon, and all fees (including commitment fees, agency fees, letter of credit fees, and fronting fees), premiums (if any), costs, expenses (including reasonable attorneys' fees and disbursements), indemnification obligations, reimbursement obligations (including letter of credit reimbursement obligations), and other amounts owing under or in respect of the First Lien Documents, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising.

"First Lien Secured Parties" means, collectively, the First Lien Agent and the First Lien Lenders.

"First Lien Security Documents" means, collectively, all security agreements, pledge agreements, mortgages, deeds of trust, deposit account control agreements, collateral assignments, and other documents creating or purporting to create Liens on the Collateral to secure the First Lien Obligations.

"Grantor" means the Company and each Guarantor that has granted a Lien on its assets to secure any Obligation.

"Guarantors" means, collectively, Stonefield Logistics Holdings LLC, a limited liability company organized and existing under the laws of the State of Delaware, Stonefield Freight Services LLC, a limited liability company organized and existing under the laws of the State of Texas, Stonefield Last Mile Inc., a corporation organized and existing under the laws of the State of Delaware, and Stonefield Warehousing LLC, a limited liability company organized and existing under the laws of the State of Texas, and, in each case, their respective successors and permitted assigns.

"Insolvency or Liquidation Proceeding" means (a) any case or proceeding commenced by or against the Company or any Guarantor under the Bankruptcy Code, (b) any case or proceeding commenced by or against the Company or any Guarantor under any similar federal, state, or foreign insolvency, reorganization, receivership, or debtor relief law, (c) any assignment for the benefit of creditors by the Company or any Guarantor, (d) any receivership, conservatorship, or similar proceeding with respect to the Company or any Guarantor or any substantial part of the assets of the Company or any Guarantor, or (e) any proceeding for the liquidation, dissolution, or winding up of the Company or any Guarantor.

"Lien" means any mortgage, pledge, hypothecation, assignment for security, security interest, encumbrance, lien (statutory or otherwise), charge, or deposit arrangement of any kind, whether voluntarily incurred or arising by operation of law or otherwise, including any agreement to grant or submit to any of the foregoing, any conditional sale or other title retention agreement, any lease in the nature thereof, and the filing of, or agreement to give, any financing statement under the UCC or comparable law of any jurisdiction.

"Mezzanine Notes" means the Company's 11.50% Senior Secured Second Lien Notes due June 15, 2025 (CUSIP 861537 AA 2), which have been or will be exchanged and cancelled pursuant to the Exchange Agreement and the Supplemental Indenture.

"Obligations" means, collectively, the Super-Priority Obligations and the First Lien Obligations.

"Original First Lien Credit Agreement" has the meaning set forth in Recital A.

"Original Intercreditor Agreement" means that certain Intercreditor Agreement dated as of December 15, 2017, among Pinnacle National Bank, N.A. (as First Lien Agent) and Continental Fiduciary Trust Company (as Second Lien Collateral Agent), as amended, restated, supplemented, or otherwise modified prior to the date hereof.

"Person" means any individual, corporation, limited liability company, partnership (whether general or limited), joint venture, trust, estate, unincorporated organization, governmental authority, or other entity.

"Purchase Option" has the meaning set forth in Section 5.01 of this Agreement.

"RSA" has the meaning set forth in Recital F.

"Secured Parties" means, collectively, the Super-Priority Secured Parties and the First Lien Secured Parties.

"Security Documents" means, collectively, the Super-Priority Security Documents and the First Lien Security Documents.

"SOFR" means the Secured Overnight Financing Rate as administered by the Federal Reserve Bank of New York (or a successor administrator) or, if such rate ceases to be available, a replacement benchmark rate determined in accordance with the Super-Priority Credit Agreement.

"Standstill Period" has the meaning set forth in Section 3.01(b) of this Agreement.

"Supplemental Indenture" means that certain Supplemental Indenture dated as of December 8, 2023, among the Company, the Guarantors, and Continental Fiduciary Trust Company, as trustee and second lien collateral agent, pursuant to which the Mezzanine Notes are being or will be cancelled.

"Super-Priority Agent" means Belvedere Credit Opportunities Fund LP, a limited partnership organized and existing under the laws of the State of Delaware, in its capacity as administrative agent and collateral agent under the Super-Priority Credit Agreement, and its successors and assigns in such capacity.

"Super-Priority Credit Agreement" means that certain Super-Priority Credit Agreement dated as of November 17, 2023, among the Company, as borrower, the Guarantors, Belvedere Credit Opportunities Fund LP, as Administrative Agent and Collateral Agent, and the Lenders from time to time party thereto, providing for a super-priority term loan facility in an aggregate principal amount of Fifty-Five Million Dollars ($55,000,000) (bearing interest at a rate per annum equal to Term SOFR plus 700 basis points, with a SOFR floor of 100 basis points, subject to an original issue discount of 2.00%, and maturing on December 19, 2027), as the same may be amended, restated, supplemented, refinanced, replaced, or otherwise modified from time to time in accordance with the terms hereof.

"Super-Priority Documents" means, collectively, the Super-Priority Credit Agreement and all guaranty agreements, pledge and security agreements, deposit account control agreements, collateral assignments, and all other agreements, instruments, and documents executed or delivered in connection therewith or pursuant thereto, in each case as the same may be amended, restated, supplemented, or otherwise modified from time to time.

"Super-Priority Lenders" means the lenders from time to time party to the Super-Priority Credit Agreement, together with their respective successors and permitted assigns.

"Super-Priority Liens" means all Liens granted or purported to be granted pursuant to the Super-Priority Documents to secure the Super-Priority Obligations.

"Super-Priority Obligations" means all obligations of the Company and the Guarantors secured by the Super-Priority Liens, including, without limitation, all principal amounts outstanding under the super-priority term loan facility (in an aggregate principal amount of Fifty-Five Million Dollars ($55,000,000)), together with all accrued and unpaid interest thereon (whether at the contract rate or the default rate), and all fees, premiums (including call protection premiums of 103% in year one, 102% in year two, 101% in year three, and par thereafter), costs, expenses (including reasonable attorneys' fees and disbursements), indemnification obligations, and other amounts owing under or in respect of the Super-Priority Documents, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising.

"Super-Priority Secured Parties" means, collectively, the Super-Priority Agent and the Super-Priority Lenders.

"Super-Priority Security Documents" means, collectively, all security agreements, pledge agreements, deposit account control agreements, collateral assignments, and other documents creating or purporting to create Liens on the Collateral to secure the Super-Priority Obligations, including, without limitation, that certain Pledge and Security Agreement dated as of November 17, 2023, among the Company, the Guarantors, and the Super-Priority Agent.

"UCC" means the Uniform Commercial Code as from time to time in effect in the State of New York or, where the context requires, the Uniform Commercial Code (or any similar or equivalent legislation) as from time to time in effect in any other applicable jurisdiction.

"Waterfall" has the meaning set forth in Section 4.01 of this Agreement.

Section 1.02 — Rules of Interpretation

For purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires:

(a) References in this Agreement to any Article, Section, Exhibit, Schedule, or other subdivision are to the corresponding Article, Section, Exhibit, Schedule, or other subdivision of or to this Agreement.

(b) The headings and captions of the Articles, Sections, and other subdivisions of this Agreement are inserted for convenience of reference only and shall not control or affect the meaning or construction of any of the provisions hereof.

(c) Whenever the context may require, any pronoun used herein shall include the corresponding masculine, feminine, or neuter forms, and the singular form of nouns, pronouns, and verbs shall include the plural and vice versa.

(d) The words "include," "includes," and "including" shall be deemed to be followed by the phrase "without limitation."

(e) The words "hereof," "herein," "hereunder," and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.

(f) All references herein to "dollars" or "$" shall mean the lawful currency of the United States of America.

(g) All references herein to any agreement, instrument, or document shall mean such agreement, instrument, or document as amended, restated, supplemented, or otherwise modified from time to time in accordance with the terms hereof and thereof, unless otherwise specified.

(h) The principles of construction set forth in this Section 1.02 shall be governed by and construed in accordance with the laws of the State of New York, including Section 5-1401 of the New York General Obligations Law.

(i) Any reference to "law" or "applicable law" shall include any statute, law, rule, regulation, ordinance, order, code, judgment, decree, injunction, or requirement of any governmental authority.

Section 1.03 — Effectiveness of this Agreement

This Agreement shall become effective upon execution and delivery hereof by all Parties hereto on November 10, 2023. Upon the effectiveness of this Agreement, the Original Intercreditor Agreement dated as of December 15, 2017, is hereby amended and restated in its entirety and is superseded hereby, and shall be of no further force or effect except to the extent the provisions thereof are incorporated herein by reference. All references in any document or instrument to the Original Intercreditor Agreement shall hereafter be deemed to refer to this Agreement. For the avoidance of doubt, Continental Fiduciary Trust Company, as the former Second Lien Collateral Agent under the Original Intercreditor Agreement, shall have no further rights or obligations under this Agreement, the Original Intercreditor Agreement having been amended and restated in its entirety hereby.

ARTICLE II

LIEN PRIORITIES

Section 2.01 — Relative Priorities of Liens

Notwithstanding (a) the order of granting, attachment, or perfection of any Super-Priority Liens or First Lien Liens, (b) the date, time, manner, or order of filing or recording of any financing statements, mortgages, deeds of trust, or other documents filed or recorded to perfect such Liens, (c) any provision of the UCC or any other applicable law, or (d) any defect or deficiency in, or failure to perfect or lapse of, any such Lien:

(i) the Super-Priority Liens on the Collateral shall at all times be senior and prior to the First Lien Liens on all Collateral; and

(ii) the First Lien Liens on the Collateral shall at all times be junior and subordinate to the Super-Priority Liens on all Collateral.

The priority provisions set forth in this Section 2.01 establish a "first-out / second-out" waterfall structure with respect to the Collateral, pursuant to which the Super-Priority Obligations shall be entitled to be satisfied first-out from the proceeds of Collateral, and the First Lien Obligations shall be entitled to be satisfied second-out from the proceeds of Collateral, in each case in accordance with the Waterfall set forth in Article IV. The priorities set forth in this Section 2.01 shall apply regardless of whether the Super-Priority Liens or the First Lien Liens are perfected or unperfected, and regardless of the method of perfection, whether by attachment, possession, filing of financing statements, control, or otherwise.

Each Agent, on behalf of itself and its respective Secured Parties, hereby acknowledges and agrees to the priority of Liens set forth in this Section 2.01. The First Lien Agent, on behalf of itself and the First Lien Secured Parties, hereby acknowledges and agrees that the Super-Priority Liens shall be senior and prior to the First Lien Liens and that the First Lien Liens shall be and are hereby subordinated to the Super-Priority Liens in all respects.

Section 2.02 — Nature of Lien Subordination

The subordination of the First Lien Liens to the Super-Priority Liens as provided in Section 2.01 is a subordination of Liens only. Except as specifically provided in Article IV (Payment Waterfall; Application of Proceeds) and Article VI (Insolvency Proceedings), nothing in this Agreement shall be construed to constitute a subordination of the First Lien Obligations to the Super-Priority Obligations in right of payment. Without limiting the generality of the foregoing, nothing in this Agreement shall impair, restrict, or otherwise affect the obligation of the Company or any Guarantor to pay the First Lien Obligations as and when the same shall become due and payable in accordance with the terms of the First Lien Documents, or the right of the First Lien Agent or the First Lien Secured Parties to receive payment of the First Lien Obligations in accordance with the terms thereof, in each case subject to the provisions of this Agreement.

Section 2.03 — Prohibition on Contesting Liens

Each Agent, on behalf of itself and its respective Secured Parties, agrees that it shall not (and hereby waives any right to) contest, challenge, question, or object to (and shall not support or encourage any other Person in contesting, challenging, questioning, or objecting to) the validity, perfection, priority, or enforceability of any Lien held by or on behalf of the other Agent or its Secured Parties in any of the Collateral, whether in any Insolvency or Liquidation Proceeding or otherwise. Without limiting the generality of the foregoing, no Agent shall, and each Agent agrees that it shall not, seek to avoid, invalidate, set aside, subordinate, recharacterize, or declare unenforceable any Lien of the other Agent or its Secured Parties under any applicable fraudulent conveyance, fraudulent transfer, preferential transfer, equitable subordination, or similar theory, whether under the Bankruptcy Code, applicable state law, or otherwise.

Section 2.04 — No New Liens

(a) If, at any time after the date hereof, any Grantor shall grant a Lien on any asset or property to secure any Obligation owing to one Agent or its Secured Parties and such Grantor shall not have also granted a corresponding Lien on such asset or property to the other Agent to secure the Obligations owing to such other Agent's Secured Parties, then such Grantor shall, promptly (and in any event within ten (10) business days after the granting of such Lien), grant a corresponding Lien on such asset or property to such other Agent to secure the Obligations owing to such other Agent's Secured Parties, subject in all respects to the priorities established in this Article II. Each Agent shall cooperate with the other Agent and the applicable Grantor to effectuate the foregoing, including by executing and delivering such documents, instruments, and agreements as may be reasonably necessary or appropriate.

(b) Anti-marshaling. No Agent shall be required to marshal any Collateral or any other assets in favor of the other Agent or any other Person, and each Agent waives any right to require marshaling of assets or Collateral. Each Agent, on behalf of itself and its respective Secured Parties, hereby irrevocably waives any and all rights to require any marshaling of assets or Collateral that might otherwise be available under applicable law.

Section 2.05 — Perfection; Shared Collateral

(a) Each Agent may, in its sole discretion, file or record such financing statements, mortgages, deeds of trust, assignments, and other documents and take all other actions as it may deem necessary or appropriate to perfect its respective Liens on the Collateral. No Agent shall be under any obligation to the other Agent to file any financing statements, mortgages, or other documents or to take any other action to perfect any Lien for the benefit of the other Agent.

(b) In the event that any Agent holds possession or control of any Collateral or any portion thereof (including, without limitation, certificates representing equity interests, promissory notes, instruments, chattel paper, deposit accounts subject to control agreements, securities accounts, or any other Collateral as to which perfection may be achieved by possession or control), such Agent shall, to the extent necessary, hold such Collateral as bailee for the benefit of the other Agent, in each case subject to the priorities established in this Article II. The duty of any Agent serving as bailee hereunder shall be limited to the duty of reasonable care in the custody and preservation of Collateral in such Agent's possession or control, and such Agent shall have no other duty or liability with respect to any Collateral held for the benefit of the other Agent.

(c) The filing of UCC financing statements by each Agent shall be independent and neither Agent shall have any obligation to include the other Agent's Collateral description in its financing statements. Each Agent's financing statements may describe the Collateral in whatever manner such Agent deems appropriate, and neither Agent shall be required to coordinate or conform its financing statement filings with those of the other Agent.

Section 2.06 — Similar Liens on Same Collateral

(a) All Super-Priority Liens and all First Lien Liens shall attach to the same Collateral, which shall consist of substantially all assets of the Company and the Guarantors, as more fully described on Exhibit B hereto.

(b) Except for immaterial exceptions with respect to de minimis assets (having an individual value not exceeding Fifty Thousand Dollars ($50,000) or an aggregate value not exceeding Two Hundred Fifty Thousand Dollars ($250,000)), neither the Super-Priority Documents nor the First Lien Documents shall grant Liens on any Collateral that does not also secure the other series of Obligations. In the event that either series of Obligations is secured by any Collateral that does not also secure the other series of Obligations (other than such de minimis exceptions), Section 2.04(a) shall apply.

ARTICLE III

ENFORCEMENT RIGHTS; STANDSTILL

Section 3.01 — Enforcement Actions

(a) Super-Priority Agent's Right to Enforce. Subject to the terms of this Agreement, the Super-Priority Agent shall have the exclusive right to take Enforcement Actions with respect to the Collateral at any time following the occurrence and during the continuance of an event of default under the Super-Priority Credit Agreement. The Super-Priority Agent may exercise all rights and remedies available to it and the Super-Priority Secured Parties under the Super-Priority Documents, applicable law (including the UCC), equity, and this Agreement, in such order and in such manner as the Super-Priority Agent, in its sole and absolute discretion, may determine. Without limiting the generality of the foregoing, the Super-Priority Agent shall have the right to take any and all actions to foreclose upon, collect, realize upon, or otherwise enforce the Super-Priority Liens against the Collateral, to credit bid the Super-Priority Obligations in any sale or disposition of the Collateral, and to take any other action that the Super-Priority Agent deems necessary or appropriate to protect the interests of the Super-Priority Secured Parties. The First Lien Agent, on behalf of itself and the First Lien Secured Parties, agrees that it will not object to, oppose, or seek to prevent any Enforcement Action taken by the Super-Priority Agent. The First Lien Agent further acknowledges and agrees that the Super-Priority Agent has no obligation to exercise any right or remedy or to take any Enforcement Action, and the Super-Priority Agent's failure to do so shall not impair or otherwise affect the rights of the Super-Priority Agent or the Super-Priority Secured Parties under this Agreement or any of the Super-Priority Documents.

(b) First Lien Agent Standstill Period. Notwithstanding any rights that the First Lien Agent or the First Lien Secured Parties may have under the First Lien Documents or applicable law, following the occurrence and during the continuance of an event of default under the First Lien Credit Agreement, the First Lien Agent shall not take any Enforcement Action with respect to the Collateral for a period of one hundred eighty (180) days from the date on which the First Lien Agent delivers written notice (an "Enforcement Notice") to the Super-Priority Agent of (x) such event of default and (y) the First Lien Agent's intention to commence Enforcement Actions (such 180-day period, the "Standstill Period"). During the Standstill Period, the First Lien Agent shall not exercise any right of foreclosure, any right to realize upon or otherwise enforce any Lien on the Collateral, or any other remedy against the Collateral, whether judicial or non-judicial, whether under the UCC, the Bankruptcy Code, or otherwise.

Notwithstanding the foregoing, during the Standstill Period the First Lien Agent shall be permitted to:

(i) accelerate the First Lien Obligations in accordance with the terms of the First Lien Credit Agreement;

(ii) file proofs of claim and make other filings necessary to preserve and protect the claims of the First Lien Secured Parties;

(iii) take actions to preserve and protect the Collateral (including, without limitation, actions to prevent the waste, destruction, or diminution in value of the Collateral), provided, that such actions shall not include any sale, lease, or other disposition of, or any realization upon, the Collateral; and

(iv) exercise setoff rights against deposit accounts and other funds held by the First Lien Lenders (or any of them) in the ordinary course of their banking relationships with the Company or the Guarantors, to the extent such setoff rights exist independently under applicable law or contract and are not exercised for the purpose of circumventing the Standstill Period.

(c) Termination of Standstill Period. The Standstill Period shall automatically terminate upon the earliest to occur of the following:

(i) the expiration of one hundred eighty (180) days from the date of delivery of the applicable Enforcement Notice to the Super-Priority Agent;

(ii) the commencement of any Insolvency or Liquidation Proceeding by or against the Company or any Guarantor;

(iii) the Super-Priority Agent's commencement of any Enforcement Action with respect to the Collateral; or

(iv) the Discharge of Super-Priority Obligations.

Upon the termination of the Standstill Period in accordance with clauses (i) through (iii) above, the First Lien Agent shall be entitled to take Enforcement Actions with respect to the Collateral, provided, that any proceeds of Collateral received by the First Lien Agent in connection with any such Enforcement Action shall be applied in accordance with the Waterfall set forth in Article IV.

(d) Waivers During Standstill. The First Lien Agent, on behalf of itself and the First Lien Secured Parties, agrees that during the Standstill Period it shall not (and hereby waives any right to) object to, oppose, or seek to prevent, delay, or otherwise interfere with any Enforcement Action taken by the Super-Priority Agent with respect to the Collateral. The First Lien Agent further agrees that it shall not, and hereby waives any right to, seek a judicial stay, injunction, restraining order, or other equitable or legal restraint against the Super-Priority Agent's exercise of remedies with respect to the Collateral during the Standstill Period or at any other time while Super-Priority Obligations remain outstanding. The foregoing waivers are made with full knowledge of their significance and consequences and are intended to be enforceable to the fullest extent permitted by applicable law.

Section 3.02 — Application of Proceeds from Enforcement Actions

All proceeds received by either Agent from any Enforcement Action with respect to the Collateral shall be applied in accordance with the Waterfall set forth in Article IV of this Agreement. Each Agent agrees to promptly deliver to the other Agent any proceeds of Collateral received by it that are required to be turned over or applied in a different manner pursuant to Article IV.

Section 3.03 — Cooperation

(a) Each Agent agrees to cooperate reasonably and in good faith with the other Agent in connection with any Enforcement Action with respect to the Collateral, including, without limitation, providing reasonable access to books, records, and other information in such Agent's possession or control relating to the Collateral, identifying the locations of Collateral, and facilitating the orderly and efficient realization upon the Collateral.

(b) The Company and each Guarantor hereby consent to the cooperation described in Section 3.03(a) and agree to cooperate with each Agent in connection with any Enforcement Action, including, without limitation, providing reasonable access to the Company's and the Guarantors' books, records, premises, and personnel. Nothing in this Section 3.03 shall be construed to impose any obligation on either Agent that is inconsistent with its duties under the applicable credit agreement or its fiduciary obligations to its respective Secured Parties.

ARTICLE IV

PAYMENT WATERFALL; APPLICATION OF PROCEEDS

Section 4.01 — Application of Collateral Proceeds

All proceeds of Collateral received by any Agent or any Secured Party in connection with (a) any Enforcement Action, (b) any Insolvency or Liquidation Proceeding, (c) any other realization upon or disposition of Collateral, or (d) any distribution on account of any Lien on any Collateral, shall be distributed and applied in the following order of priority (the "Waterfall"):

First, to the payment of all reasonable and documented costs and expenses of the Super-Priority Agent and the First Lien Agent incurred in connection with such collection, enforcement, realization, or distribution (including reasonable attorneys' fees and disbursements, appraisers' fees, consultants' fees, and any other costs of administration and collection), on a pro rata basis between the Agents based on the respective amounts of such costs and expenses incurred by each Agent;

Second, after the application described in "First" above, to the payment in full of all Super-Priority Obligations (including, without limitation, all outstanding principal, all accrued and unpaid interest (including default interest), all make-whole premiums and call protection premiums, all fees, all expenses, and all indemnification obligations owing to the Super-Priority Agent and the Super-Priority Secured Parties), until the Discharge of Super-Priority Obligations shall have occurred;

Third, after the application described in "Second" above, to the payment in full of all First Lien Obligations (including, without limitation, all outstanding principal, all accrued and unpaid interest (including default interest), all fees, all expenses, and all indemnification obligations owing to the First Lien Agent and the First Lien Secured Parties), until the Discharge of First Lien Obligations shall have occurred; and

Fourth, after the application described in "Third" above, to the Company or as otherwise required by applicable law.

The priority of payments set forth in this Section 4.01 constitutes the "first-out / second-out" payment waterfall referenced herein and shall govern the application of all Collateral proceeds as between the Super-Priority Secured Parties (as first-out creditors) and the First Lien Secured Parties (as second-out creditors).

Section 4.02 — Turnover Provisions

(a) If the First Lien Agent or any First Lien Secured Party shall at any time receive any Collateral proceeds, payments, or other distributions on account of the First Lien Liens that should have been applied to the Super-Priority Obligations pursuant to the Waterfall set forth in Section 4.01 (including, without limitation, any amounts received by the First Lien Agent or any First Lien Secured Party in violation of this Agreement), such amounts shall be segregated, held in trust for the benefit of the Super-Priority Agent, and promptly (and in any event within two (2) business days of receipt) turned over and paid to the Super-Priority Agent, in the same form as received (with any necessary endorsements or instruments of transfer), for application in accordance with Section 4.01.

(b) If the Super-Priority Agent or any Super-Priority Secured Party shall at any time receive any Collateral proceeds, payments, or other distributions in excess of the amount required for the full payment and satisfaction of all Super-Priority Obligations (after application in accordance with the Waterfall), such excess amounts shall be segregated, held in trust for the benefit of the First Lien Agent, and promptly (and in any event within two (2) business days of receipt) turned over and paid to the First Lien Agent, in the same form as received (with any necessary endorsements or instruments of transfer), for application in accordance with Section 4.01.

(c) All amounts required to be turned over pursuant to this Section 4.02 shall be turned over in the form received, without deduction, setoff, or counterclaim (other than for any applicable withholding taxes required by law), and the receiving Agent shall have the right to apply such amounts in accordance with Section 4.01 without any obligation to first pursue any other remedy or to give any prior notice.

Section 4.03 — Payments Permitted

(a) Regular Payments. Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement shall prohibit the Company or any Guarantor from making regularly scheduled payments of principal, interest (at the contract rate or, if applicable, the default rate), fees, and other amounts to the First Lien Agent and the First Lien Secured Parties in accordance with the terms of the First Lien Documents, so long as (i) no Enforcement Action is pending or being pursued by either Agent with respect to the Collateral and (ii) no Insolvency or Liquidation Proceeding has been commenced by or against the Company or any Guarantor.

(b) Mandatory Prepayments. The mandatory prepayment provisions of the Super-Priority Credit Agreement (including, without limitation, the excess cash flow sweep requiring the prepayment of seventy-five percent (75%) of excess cash flow in excess of a Twenty Million Dollar ($20,000,000) liquidity threshold) shall have priority over any mandatory prepayment obligations under the First Lien Credit Agreement, to the extent such mandatory prepayments arise from the same event, occurrence, or cash flow period. In the event that the same event, occurrence, or cash flow period gives rise to mandatory prepayment obligations under both the Super-Priority Credit Agreement and the First Lien Credit Agreement, the mandatory prepayment obligations under the Super-Priority Credit Agreement shall be satisfied first, and the mandatory prepayment obligations under the First Lien Credit Agreement shall be subordinated to such Super-Priority mandatory prepayment obligations.

(c) Voluntary Prepayments. Voluntary prepayments of the First Lien Obligations shall be permitted at any time so long as (i) no event of default exists and is continuing under the Super-Priority Credit Agreement at the time of such voluntary prepayment and (ii) after giving effect to such voluntary prepayment, no event of default would exist under the Super-Priority Credit Agreement.

Section 4.04 — Discharge of Super-Priority Obligations

"Discharge of Super-Priority Obligations" means the indefeasible payment in full in cash of all Super-Priority Obligations (including all outstanding principal, all accrued and unpaid interest, all premiums, all fees, all expenses, and all other amounts owing under or in respect of the Super-Priority Documents) and the irrevocable termination of all commitments and obligations of the Super-Priority Lenders under the Super-Priority Credit Agreement (including, without limitation, the Ten Million Dollar ($10,000,000) delayed-draw term loan commitment). Upon the Discharge of Super-Priority Obligations, (a) this Agreement shall automatically terminate and be of no further force or effect, subject to the survival provisions of Section 9.09, (b) all Liens granted to or held by the Super-Priority Agent for the benefit of the Super-Priority Secured Parties shall automatically be released, and (c) the First Lien Liens shall automatically become the senior Liens on the Collateral. The Super-Priority Agent shall, at the Company's expense, promptly execute and deliver such instruments, documents, and agreements as may be reasonably necessary or appropriate to evidence the termination of this Agreement and the release of the Super-Priority Liens, including UCC-3 termination statements and mortgage releases.

ARTICLE V

PURCHASE OPTION

Section 5.01 — Purchase Option

(a) The First Lien Agent (on behalf of the First Lien Secured Parties, or any designee thereof, including any one or more First Lien Lenders or any of their respective affiliates) shall have the option (the "Purchase Option"), exercisable at any time following the occurrence and during the continuance of an event of default under the Super-Priority Credit Agreement, to purchase all (but not less than all) of the Super-Priority Obligations from the Super-Priority Secured Parties.

(b) The Purchase Option shall be exercised by delivery of a written notice (the "Purchase Notice") from the First Lien Agent (or its designee) to the Super-Priority Agent, specifying (i) the identity of the purchasing party or parties, (ii) the proposed closing date for the purchase, which shall not be later than ten (10) business days after the date of delivery of the Purchase Notice, and (iii) the wire transfer or other payment instructions for the consummation of the purchase.

(c) The purchase price for the Super-Priority Obligations (the "Purchase Price") shall be equal to the sum of (i) one hundred percent (100%) of the outstanding principal amount of the Super-Priority Obligations as of the closing date, plus (ii) all accrued and unpaid interest on the Super-Priority Obligations through and including the closing date (at the contract rate or, if applicable, the default rate), plus (iii) all applicable premiums (including any make-whole premium or call protection premium at 103% in year one, 102% in year two, 101% in year three, and par thereafter, as determined in accordance with the Super-Priority Credit Agreement), plus (iv) all fees and expenses (including reasonable attorneys' fees and disbursements and any other amounts) owing to the Super-Priority Agent and the Super-Priority Secured Parties under the Super-Priority Documents as of the closing date.

(d) Upon consummation of the purchase and payment of the Purchase Price in full in immediately available funds, the purchasing party shall be subrogated to all of the rights of the Super-Priority Agent and the Super-Priority Secured Parties under the Super-Priority Documents, including, without limitation, the benefit of the Super-Priority Liens, and shall be deemed to be the "Super-Priority Agent" for all purposes under this Agreement and the Super-Priority Documents.

Section 5.02 — Mechanics of Purchase

(a) Upon receipt of the Purchase Price in full in immediately available funds, the Super-Priority Agent shall, promptly and in any event within two (2) business days, deliver to the purchasing party (i) all promissory notes, if any, evidencing the Super-Priority Obligations, duly endorsed or accompanied by duly executed allonges, (ii) executed assignments and assumptions in form reasonably satisfactory to the purchasing party, pursuant to which the Super-Priority Secured Parties shall assign all of their respective rights, title, and interest in and to the Super-Priority Obligations and the Super-Priority Documents (other than rights to indemnification and expense reimbursement that survive repayment) to the purchasing party, and (iii) such other documents and instruments as may be reasonably necessary to effectuate the purchase and assignment contemplated herein.

(b) The purchase and assignment contemplated by this Article V shall be without recourse to, and without any representation or warranty by, the Super-Priority Agent or the Super-Priority Secured Parties, other than representations and warranties (i) that the Super-Priority Agent and each Super-Priority Secured Party has good and valid title to the Super-Priority Obligations being assigned, free and clear of any adverse claim, (ii) that the Super-Priority Agent has the requisite authority to consummate the assignment, and (iii) that the execution and delivery of the assignment documents has been duly authorized. The Super-Priority Agent and the Super-Priority Secured Parties shall not be required to make any representation or warranty regarding the creditworthiness of the Company or any Guarantor, the value of the Collateral, the enforceability of the Super-Priority Documents, or any other matter.

(c) The Company hereby consents to any purchase of the Super-Priority Obligations pursuant to this Article V and agrees to cooperate reasonably with the Super-Priority Agent, the First Lien Agent, and the purchasing party to effectuate any such purchase.

ARTICLE VI

INSOLVENCY PROCEEDINGS

Section 6.01 — DIP Financing

If any Insolvency or Liquidation Proceeding is commenced by or against the Company or any Guarantor:

(a) The First Lien Agent, on behalf of itself and the First Lien Secured Parties, agrees that it will not object to, oppose, or vote against, any post-petition financing (a "DIP Financing") provided by, arranged by, or consented to by the Super-Priority Agent or the Super-Priority Secured Parties, provided, that all of the following conditions are satisfied:

(i) the aggregate principal amount of such DIP Financing (together with all Super-Priority Obligations outstanding at the time of the commencement of such Insolvency or Liquidation Proceeding) does not exceed one hundred fifteen percent (115%) of the aggregate Super-Priority Obligations outstanding immediately prior to the commencement of such proceeding;

(ii) the First Lien Agent's Liens on the Collateral are not primed or subordinated by the Liens securing such DIP Financing, except to the extent that the Super-Priority Liens already prime and are senior to the First Lien Liens under this Agreement (it being understood that DIP Financing Liens that replace or are pari passu with the Super-Priority Liens shall not constitute priming of the First Lien Liens for purposes of this clause (ii)); and

(iii) the terms of such DIP Financing, taken as a whole, are commercially reasonable under the circumstances (including pricing, maturity, covenants, milestones, and other material terms).

(b) The First Lien Agent, on behalf of itself and the First Lien Secured Parties, agrees that it shall not seek, propose, or support any DIP Financing that would prime or subordinate the Super-Priority Liens without the prior written consent of the Super-Priority Agent.

(c) If neither the Super-Priority Agent nor any of the Super-Priority Secured Parties proposes to provide or arrange DIP Financing within thirty (30) days of the commencement of an Insolvency or Liquidation Proceeding, then the First Lien Agent shall be permitted to propose, arrange, or provide DIP Financing on terms reasonably satisfactory to the First Lien Agent, provided, that (x) such DIP Financing does not prime or subordinate the Super-Priority Liens (unless the Super-Priority Agent has provided its prior written consent thereto), and (y) the proceeds of such DIP Financing are applied in a manner consistent with the priorities established in this Agreement.

Section 6.02 — Relief from Stay; Adequate Protection

(a) The First Lien Agent, on behalf of itself and the First Lien Secured Parties, agrees that it shall not seek or request relief from the automatic stay imposed under Section 362 of the Bankruptcy Code (or any similar stay or injunction under any comparable law) with respect to the Collateral during the Standstill Period (as such Standstill Period may be extended or deemed to apply in the context of any Insolvency or Liquidation Proceeding), unless the Super-Priority Agent has also sought or requested relief from the automatic stay with respect to the Collateral.

(b) If adequate protection of the Super-Priority Agent's interest in the Collateral is provided in any Insolvency or Liquidation Proceeding in the form of (x) replacement liens on the Collateral and/or the proceeds thereof, (y) superpriority administrative expense claims under Section 507(b) of the Bankruptcy Code, or (z) any combination thereof, the First Lien Agent, on behalf of itself and the First Lien Secured Parties, agrees that it shall not object to or contest such adequate protection on the basis that the First Lien Secured Parties should receive senior or equal adequate protection.

(c) The First Lien Agent may seek adequate protection of the First Lien Liens in any Insolvency or Liquidation Proceeding in the form of (x) replacement liens on the Collateral and/or the proceeds thereof, and/or (y) superpriority administrative expense claims under Section 507(b) of the Bankruptcy Code, provided, that in each case such adequate protection (including any replacement liens and any superpriority administrative expense claims) shall be junior and subordinate to any adequate protection provided to the Super-Priority Agent, and the First Lien Agent shall so stipulate in any motion or order relating to such adequate protection.

(d) Any adequate protection payments (whether in the form of current cash payments, replacement liens, or otherwise) received by the First Lien Agent or any First Lien Secured Party in any Insolvency or Liquidation Proceeding shall be applied in accordance with the Waterfall set forth in Section 4.01. To the extent any adequate protection payments received by the First Lien Agent should have been applied first to the Super-Priority Obligations in accordance with the Waterfall, such payments shall be promptly turned over to the Super-Priority Agent in accordance with Section 4.02.

Section 6.03 — Asset Dispositions in Insolvency Proceedings

The First Lien Agent, on behalf of itself and the First Lien Secured Parties, agrees that it shall not object to, oppose, or otherwise seek to prevent any sale, use, or lease of the Collateral (in whole or in part) that is approved or consented to by the Super-Priority Agent in any Insolvency or Liquidation Proceeding, including, without limitation, any sale of substantially all of the assets of the Company and the Guarantors under Section 363 of the Bankruptcy Code (or any comparable provision of applicable law), provided, that the proceeds of any such sale, use, or lease are applied in accordance with the Waterfall set forth in Section 4.01. The First Lien Agent further agrees that it shall not object to any such sale on the grounds that the First Lien Agent's or the First Lien Secured Parties' rights under this Agreement are impaired by such sale, so long as the Waterfall is observed in the application of the proceeds thereof. For the avoidance of doubt, nothing in this Section 6.03 shall prevent the First Lien Agent from credit bidding the First Lien Obligations in any sale of Collateral, subject to the prior right of the Super-Priority Agent to credit bid the Super-Priority Obligations.

Section 6.04 — Plan of Reorganization

The First Lien Agent, on behalf of itself and the First Lien Secured Parties, agrees that it shall not propose, vote in favor of, or otherwise support any plan of reorganization or plan of liquidation in any Insolvency or Liquidation Proceeding that is inconsistent with the priorities and waterfall established in this Agreement. If any plan of reorganization or plan of liquidation provides for distributions on account of Liens on the Collateral (whether in the form of cash, new debt, new equity, or other consideration), the Waterfall set forth in Section 4.01 shall apply to such distributions, and the First Lien Agent agrees not to accept any distribution on account of the First Lien Liens unless and until all Super-Priority Obligations have been indefeasibly paid in full in cash.

Section 6.05 — Post-Petition Interest

(a) The Super-Priority Agent shall have the right, and is hereby authorized by the First Lien Agent, to claim, assert, and recover post-petition interest, fees, costs, and expenses to the fullest extent permitted by the Bankruptcy Code, including as an oversecured creditor entitled to post-petition interest under Section 506(b) of the Bankruptcy Code.

(b) The First Lien Agent, on behalf of itself and the First Lien Secured Parties, agrees that it shall not oppose, contest, or object to any claim for post-petition interest, fees, costs, or expenses asserted by the Super-Priority Agent in any Insolvency or Liquidation Proceeding.

(c) The First Lien Agent shall be entitled to claim post-petition interest on the First Lien Obligations only to the extent that the value of the Collateral exceeds the sum of (i) all Super-Priority Obligations (including post-petition interest, fees, costs, and expenses claimed by the Super-Priority Agent) and (ii) all First Lien Obligations (excluding post-petition interest on the First Lien Obligations). In no event shall any claim for post-petition interest on the First Lien Obligations reduce or impair the recovery of the Super-Priority Secured Parties on account of the Super-Priority Obligations.

Section 6.06 — Avoidance Actions

If any payment, distribution, or transfer of Collateral proceeds to the Super-Priority Agent or any Super-Priority Secured Party for the account of the Super-Priority Obligations is avoided, set aside, invalidated, declared fraudulent, or required to be repaid, returned, or disgorged to any Person (including the Company, any Guarantor, or any trustee, receiver, or similar fiduciary) under any Insolvency or Liquidation Proceeding or otherwise (including as a preference, fraudulent transfer, or fraudulent conveyance under the Bankruptcy Code or applicable state law), then (a) the Super-Priority Liens and the subor

AMENDED AND RESTATED INTERCREDITOR AGREEMENT
Dated as of November 10, 2023
among
BELVEDERE CREDIT OPPORTUNITIES FUND LP as Super-Priority Agent
PINNACLE NATIONAL BANK, N.A. as First Lien Agent
and
STONEFIELD LOGISTICS GROUP INC. as the Company
with
STONEFIELD LOGISTICS HOLDINGS LLC STONEFIELD FREIGHT SERVICES LLC STONEFIELD LAST MILE INC. STONEFIELD WAREHOUSING LLC as Guarantors, for certain limited purposes set forth herein
TABLE OF CONTENTS
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AMENDED AND RESTATED INTERCREDITOR AGREEMENT
This AMENDED AND RESTATED INTERCREDITOR AGREEMENT (this "Agreement"), dated as of November 10, 2023, is entered into by and among:
(1) BELVEDERE CREDIT OPPORTUNITIES FUND LP, a Delaware limited partnership, having its principal office at 450 Lexington Avenue, 30th Floor, New York, New York 10017, in its capacity as administrative agent and collateral agent (the "Super-Priority Agent") for the Super-Priority Secured Parties (as defined herein);
(2) PINNACLE NATIONAL BANK, N.A., a national banking association organized and existing under the laws of the United States, having its principal office at 200 Liberty Street, New York, New York 10281, in its capacity as administrative agent and collateral agent (the "First Lien Agent") for the First Lien Secured Parties (as defined herein); and
(3) STONEFIELD LOGISTICS GROUP INC., a corporation organized and existing under the laws of the State of Delaware, having its principal office at 4200 Commerce Street, Suite 1500, Dallas, Texas 75201 (the "Company").
Each of the foregoing is referred to herein individually as a "Party" and collectively as the "Parties."
Each of STONEFIELD LOGISTICS HOLDINGS LLC, a Delaware limited liability company, STONEFIELD FREIGHT SERVICES LLC, a Texas limited liability company, STONEFIELD LAST MILE INC., a Delaware corporation, and STONEFIELD WAREHOUSING LLC, a Texas limited liability company (collectively, the "Guarantors"), is a party hereto solely for the limited purposes set forth in Article VII and the signature pages hereof, and each such Guarantor hereby acknowledges and agrees to be bound by the provisions of this Agreement applicable to the Guarantors.
RECITALS
WHEREAS:
A. Stonefield Logistics Group Inc. (a Delaware corporation, EIN 83-2457109, Delaware File No. 6341872) (the "Company") and certain of its subsidiaries are parties to that certain Credit Agreement dated as of December 15, 2017 (the "Original First Lien Credit Agreement"), among the Company, as borrower, Pinnacle National Bank, N.A., as administrative agent and collateral agent (in such capacity, the "First Lien Agent"), and the lenders from time to time party thereto (the "First Lien Lenders"), which Original First Lien Credit Agreement has been amended and restated by that certain Amended and Restated First Lien Credit Agreement dated as of December 1, 2023 (the "First Lien Credit Agreement"), providing for, among other things, (i) a revolving credit facility in an aggregate commitment amount of Thirty-Five Million Dollars ($35,000,000) and (ii) a term loan B facility in an aggregate principal amount of Two Hundred Eighty-Five Million Dollars ($285,000,000), in each case on the terms and subject to the conditions set forth therein;
B. The Company and certain of its subsidiaries have entered into that certain Super-Priority Credit Agreement dated as of November 17, 2023 (the "Super-Priority Credit Agreement"), among the Company, as borrower, Belvedere Credit Opportunities Fund LP, as administrative agent and collateral agent (in such capacity, the "Super-Priority Agent"), and the lenders from time to time party thereto (the "Super-Priority Lenders"), providing for a super-priority term loan facility in an aggregate principal amount of Fifty-Five Million Dollars ($55,000,000), consisting of (i) Forty-Five Million Dollars ($45,000,000) funded on the closing date thereof and (ii) a delayed-draw term loan commitment in an aggregate principal amount of Ten Million Dollars ($10,000,000), in each case on the terms and subject to the conditions set forth therein;
C. The Company, the First Lien Agent, and Continental Fiduciary Trust Company, as second lien collateral agent, are parties to that certain Intercreditor Agreement dated as of December 15, 2017 (the "Original Intercreditor Agreement"), which governed the intercreditor relationship between the first lien secured parties and the holders of the Company's 11.50% Senior Secured Second Lien Notes due June 15, 2025 (CUSIP 861537 AA 2) (the "Mezzanine Notes"). The Mezzanine Notes have been or will be exchanged and cancelled in their entirety pursuant to (i) that certain Exchange Agreement dated as of December 8, 2023, among the Company, the Guarantors, and the holders of the Mezzanine Notes party thereto, and (ii) that certain Supplemental Indenture dated as of December 8, 2023, among the Company, the Guarantors, and Continental Fiduciary Trust Company, as trustee and second lien collateral agent, and accordingly, the second lien obligations previously governed by the Original Intercreditor Agreement are being eliminated in connection with the transactions contemplated hereby;
D. The Parties desire to amend and restate the Original Intercreditor Agreement in its entirety to (i) establish the relative priorities among the Super-Priority Obligations and the First Lien Obligations, (ii) set forth the respective rights and obligations of the Super-Priority Agent and the First Lien Agent with respect to the Collateral, and (iii) replace the prior first lien / second lien framework with a super-priority first-out / first lien second-out framework, all as more fully set forth herein;
E. The Company has joined this Agreement for the purpose of acknowledging the intercreditor arrangements set forth herein and agreeing to certain obligations hereunder, as more fully described in Article VII; and
F. The restructuring of the Company's capital structure, of which this Agreement forms a part, is being consummated as a consensual out-of-court restructuring pursuant to that certain Restructuring Support Agreement dated as of June 30, 2023, among the Company, the Guarantors, certain holders of the Mezzanine Notes, and the other parties thereto (as amended, restated, supplemented, or otherwise modified from time to time, the "RSA").
NOW, THEREFORE, in consideration of the foregoing premises, the mutual covenants and agreements herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.01 — Definitions
As used in this Agreement, the following terms shall have the meanings assigned to them below:
"Agents" means, collectively, the Super-Priority Agent and the First Lien Agent, and "Agent" means either of them.
"Agreement" means this Amended and Restated Intercreditor Agreement, as it may be amended, restated, supplemented, or otherwise modified from time to time in accordance with the terms hereof.
"Bankruptcy Code" means Title 11 of the United States Code (11 U.S.C. §§ 101 et seq.), as amended from time to time, and any successor statute thereto.
"Bankruptcy Filing" means any voluntary or involuntary case or proceeding commenced under the Bankruptcy Code or any similar federal, state, or foreign law relating to insolvency, reorganization, receivership, liquidation, adjustment of debts, or relief of debtors.
"Collateral" means all assets and property of the Company and the Guarantors, whether real, personal, or mixed, tangible or intangible, now owned or hereafter acquired, upon which Liens have been granted or purported to be granted to secure any of the Obligations, as described in the Security Documents, including, without limitation, the assets described on Exhibit B hereto.
"Company" means Stonefield Logistics Group Inc., a corporation organized and existing under the laws of the State of Delaware, and its successors and permitted assigns.
"DIP Financing" has the meaning set forth in Section 6.01 of this Agreement.
"Discharge of First Lien Obligations" means the date on which (a) the First Lien Obligations have been indefeasibly paid in full in cash, (b) all commitments under the First Lien Credit Agreement have been terminated, and (c) all letters of credit issued under the First Lien Credit Agreement have been terminated, cash collateralized, or backstopped to the satisfaction of the applicable issuing lender.
"Discharge of Super-Priority Obligations" means the date on which (a) the Super-Priority Obligations have been indefeasibly paid in full in cash and (b) all commitments under the Super-Priority Credit Agreement (including, without limitation, the Ten Million Dollar ($10,000,000) delayed-draw term loan commitment) have been terminated.
"Enforcement Action" means any action to foreclose on, collect, realize upon, or otherwise enforce any rights or remedies with respect to the Collateral, including, without limitation, (a) any exercise of any rights or remedies under the UCC, (b) any judicial or non-judicial foreclosure, (c) any setoff or recoupment against Collateral (but excluding setoff against deposits held by First Lien Lenders as permitted under Section 3.01(b)(iv)), (d) any notification to account debtors or other obligors to make payment directly to an Agent, (e) any acceleration of indebtedness coupled with actions against Collateral, (f) the commencement or prosecution of any enforcement proceeding, whether by judicial action, self-help, or otherwise, or (g) the exercise of any right under any lockbox agreement, deposit account control agreement, or similar arrangement with respect to proceeds of Collateral.
"Enforcement Notice" has the meaning set forth in Section 3.01(b) of this Agreement.
"Exchange Agreement" means that certain Exchange Agreement dated as of December 8, 2023, among the Company, the Guarantors, and the holders of the Mezzanine Notes party thereto, pursuant to which the Mezzanine Notes are being or will be exchanged and cancelled.
"First Lien Agent" means Pinnacle National Bank, N.A., in its capacity as administrative agent and collateral agent under the First Lien Credit Agreement, and its successors and assigns in such capacity.
"First Lien Credit Agreement" means that certain Amended and Restated First Lien Credit Agreement dated as of December 1, 2023, among the Company, as borrower, the Guarantors, Pinnacle National Bank, N.A., as Administrative Agent and Collateral Agent, and the Lenders from time to time party thereto, providing for (i) a revolving credit facility in an aggregate commitment amount of Thirty-Five Million Dollars ($35,000,000) and (ii) a term loan B facility in an aggregate principal amount of Two Hundred Eighty-Five Million Dollars ($285,000,000), as the same may be amended, restated, supplemented, refinanced, replaced, or otherwise modified from time to time in accordance with the terms hereof.
"First Lien Documents" means, collectively, the First Lien Credit Agreement and all guaranty agreements, pledge and security agreements, mortgages, deeds of trust, deposit account control agreements, collateral assignments, intercreditor agreements (other than this Agreement), and all other agreements, instruments, and documents executed or delivered in connection therewith or pursuant thereto, in each case as the same may be amended, restated, supplemented, or otherwise modified from time to time.
"First Lien Lenders" means the lenders from time to time party to the First Lien Credit Agreement, including the revolving credit lenders (which, as of the date hereof, include Pinnacle National Bank, N.A., Great Basin Commercial Bank, and Tidewater Lending Corporation) and the term loan B lenders from time to time party thereto, together with their respective successors and permitted assigns.
"First Lien Liens" means all Liens granted or purported to be granted pursuant to the First Lien Documents to secure the First Lien Obligations.
"First Lien Obligations" means all obligations of the Company and the Guarantors secured by the First Lien Liens, including, without limitation, all principal amounts outstanding under the revolving credit facility (in an aggregate commitment amount of Thirty-Five Million Dollars ($35,000,000)) and the term loan B facility (in an aggregate principal amount of Two Hundred Eighty-Five Million Dollars ($285,000,000)), together with all accrued and unpaid interest thereon, and all fees (including commitment fees, agency fees, letter of credit fees, and fronting fees), premiums (if any), costs, expenses (including reasonable attorneys' fees and disbursements), indemnification obligations, reimbursement obligations (including letter of credit reimbursement obligations), and other amounts owing under or in respect of the First Lien Documents, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising.
"First Lien Secured Parties" means, collectively, the First Lien Agent and the First Lien Lenders.
"First Lien Security Documents" means, collectively, all security agreements, pledge agreements, mortgages, deeds of trust, deposit account control agreements, collateral assignments, and other documents creating or purporting to create Liens on the Collateral to secure the First Lien Obligations.
"Grantor" means the Company and each Guarantor that has granted a Lien on its assets to secure any Obligation.
"Guarantors" means, collectively, Stonefield Logistics Holdings LLC, a limited liability company organized and existing under the laws of the State of Delaware, Stonefield Freight Services LLC, a limited liability company organized and existing under the laws of the State of Texas, Stonefield Last Mile Inc., a corporation organized and existing under the laws of the State of Delaware, and Stonefield Warehousing LLC, a limited liability company organized and existing under the laws of the State of Texas, and, in each case, their respective successors and permitted assigns.
"Insolvency or Liquidation Proceeding" means (a) any case or proceeding commenced by or against the Company or any Guarantor under the Bankruptcy Code, (b) any case or proceeding commenced by or against the Company or any Guarantor under any similar federal, state, or foreign insolvency, reorganization, receivership, or debtor relief law, (c) any assignment for the benefit of creditors by the Company or any Guarantor, (d) any receivership, conservatorship, or similar proceeding with respect to the Company or any Guarantor or any substantial part of the assets of the Company or any Guarantor, or (e) any proceeding for the liquidation, dissolution, or winding up of the Company or any Guarantor.
"Lien" means any mortgage, pledge, hypothecation, assignment for security, security interest, encumbrance, lien (statutory or otherwise), charge, or deposit arrangement of any kind, whether voluntarily incurred or arising by operation of law or otherwise, including any agreement to grant or submit to any of the foregoing, any conditional sale or other title retention agreement, any lease in the nature thereof, and the filing of, or agreement to give, any financing statement under the UCC or comparable law of any jurisdiction.
"Mezzanine Notes" means the Company's 11.50% Senior Secured Second Lien Notes due June 15, 2025 (CUSIP 861537 AA 2), which have been or will be exchanged and cancelled pursuant to the Exchange Agreement and the Supplemental Indenture.
"Obligations" means, collectively, the Super-Priority Obligations and the First Lien Obligations.
"Original First Lien Credit Agreement" has the meaning set forth in Recital A.
"Original Intercreditor Agreement" means that certain Intercreditor Agreement dated as of December 15, 2017, among Pinnacle National Bank, N.A. (as First Lien Agent) and Continental Fiduciary Trust Company (as Second Lien Collateral Agent), as amended, restated, supplemented, or otherwise modified prior to the date hereof.
"Person" means any individual, corporation, limited liability company, partnership (whether general or limited), joint venture, trust, estate, unincorporated organization, governmental authority, or other entity.
"Purchase Option" has the meaning set forth in Section 5.01 of this Agreement.
"RSA" has the meaning set forth in Recital F.
"Secured Parties" means, collectively, the Super-Priority Secured Parties and the First Lien Secured Parties.
"Security Documents" means, collectively, the Super-Priority Security Documents and the First Lien Security Documents.
"SOFR" means the Secured Overnight Financing Rate as administered by the Federal Reserve Bank of New York (or a successor administrator) or, if such rate ceases to be available, a replacement benchmark rate determined in accordance with the Super-Priority Credit Agreement.
"Standstill Period" has the meaning set forth in Section 3.01(b) of this Agreement.
"Supplemental Indenture" means that certain Supplemental Indenture dated as of December 8, 2023, among the Company, the Guarantors, and Continental Fiduciary Trust Company, as trustee and second lien collateral agent, pursuant to which the Mezzanine Notes are being or will be cancelled.
"Super-Priority Agent" means Belvedere Credit Opportunities Fund LP, a limited partnership organized and existing under the laws of the State of Delaware, in its capacity as administrative agent and collateral agent under the Super-Priority Credit Agreement, and its successors and assigns in such capacity.
"Super-Priority Credit Agreement" means that certain Super-Priority Credit Agreement dated as of November 17, 2023, among the Company, as borrower, the Guarantors, Belvedere Credit Opportunities Fund LP, as Administrative Agent and Collateral Agent, and the Lenders from time to time party thereto, providing for a super-priority term loan facility in an aggregate principal amount of Fifty-Five Million Dollars ($55,000,000) (bearing interest at a rate per annum equal to Term SOFR plus 700 basis points, with a SOFR floor of 100 basis points, subject to an original issue discount of 2.00%, and maturing on December 19, 2027), as the same may be amended, restated, supplemented, refinanced, replaced, or otherwise modified from time to time in accordance with the terms hereof.
"Super-Priority Documents" means, collectively, the Super-Priority Credit Agreement and all guaranty agreements, pledge and security agreements, deposit account control agreements, collateral assignments, and all other agreements, instruments, and documents executed or delivered in connection therewith or pursuant thereto, in each case as the same may be amended, restated, supplemented, or otherwise modified from time to time.
"Super-Priority Lenders" means the lenders from time to time party to the Super-Priority Credit Agreement, together with their respective successors and permitted assigns.
"Super-Priority Liens" means all Liens granted or purported to be granted pursuant to the Super-Priority Documents to secure the Super-Priority Obligations.
"Super-Priority Obligations" means all obligations of the Company and the Guarantors secured by the Super-Priority Liens, including, without limitation, all principal amounts outstanding under the super-priority term loan facility (in an aggregate principal amount of Fifty-Five Million Dollars ($55,000,000)), together with all accrued and unpaid interest thereon (whether at the contract rate or the default rate), and all fees, premiums (including call protection premiums of 103% in year one, 102% in year two, 101% in year three, and par thereafter), costs, expenses (including reasonable attorneys' fees and disbursements), indemnification obligations, and other amounts owing under or in respect of the Super-Priority Documents, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising.
"Super-Priority Secured Parties" means, collectively, the Super-Priority Agent and the Super-Priority Lenders.
"Super-Priority Security Documents" means, collectively, all security agreements, pledge agreements, deposit account control agreements, collateral assignments, and other documents creating or purporting to create Liens on the Collateral to secure the Super-Priority Obligations, including, without limitation, that certain Pledge and Security Agreement dated as of November 17, 2023, among the Company, the Guarantors, and the Super-Priority Agent.
"UCC" means the Uniform Commercial Code as from time to time in effect in the State of New York or, where the context requires, the Uniform Commercial Code (or any similar or equivalent legislation) as from time to time in effect in any other applicable jurisdiction.
"Waterfall" has the meaning set forth in Section 4.01 of this Agreement.
Section 1.02 — Rules of Interpretation
For purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires:
(a) References in this Agreement to any Article, Section, Exhibit, Schedule, or other subdivision are to the corresponding Article, Section, Exhibit, Schedule, or other subdivision of or to this Agreement.
(b) The headings and captions of the Articles, Sections, and other subdivisions of this Agreement are inserted for convenience of reference only and shall not control or affect the meaning or construction of any of the provisions hereof.
(c) Whenever the context may require, any pronoun used herein shall include the corresponding masculine, feminine, or neuter forms, and the singular form of nouns, pronouns, and verbs shall include the plural and vice versa.
(d) The words "include," "includes," and "including" shall be deemed to be followed by the phrase "without limitation."
(e) The words "hereof," "herein," "hereunder," and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.
(f) All references herein to "dollars" or "$" shall mean the lawful currency of the United States of America.
(g) All references herein to any agreement, instrument, or document shall mean such agreement, instrument, or document as amended, restated, supplemented, or otherwise modified from time to time in accordance with the terms hereof and thereof, unless otherwise specified.
(h) The principles of construction set forth in this Section 1.02 shall be governed by and construed in accordance with the laws of the State of New York, including Section 5-1401 of the New York General Obligations Law.
(i) Any reference to "law" or "applicable law" shall include any statute, law, rule, regulation, ordinance, order, code, judgment, decree, injunction, or requirement of any governmental authority.
Section 1.03 — Effectiveness of this Agreement
This Agreement shall become effective upon execution and delivery hereof by all Parties hereto on November 10, 2023. Upon the effectiveness of this Agreement, the Original Intercreditor Agreement dated as of December 15, 2017, is hereby amended and restated in its entirety and is superseded hereby, and shall be of no further force or effect except to the extent the provisions thereof are incorporated herein by reference. All references in any document or instrument to the Original Intercreditor Agreement shall hereafter be deemed to refer to this Agreement. For the avoidance of doubt, Continental Fiduciary Trust Company, as the former Second Lien Collateral Agent under the Original Intercreditor Agreement, shall have no further rights or obligations under this Agreement, the Original Intercreditor Agreement having been amended and restated in its entirety hereby.
ARTICLE II
LIEN PRIORITIES
Section 2.01 — Relative Priorities of Liens
Notwithstanding (a) the order of granting, attachment, or perfection of any Super-Priority Liens or First Lien Liens, (b) the date, time, manner, or order of filing or recording of any financing statements, mortgages, deeds of trust, or other documents filed or recorded to perfect such Liens, (c) any provision of the UCC or any other applicable law, or (d) any defect or deficiency in, or failure to perfect or lapse of, any such Lien:
(i) the Super-Priority Liens on the Collateral shall at all times be senior and prior to the First Lien Liens on all Collateral; and
(ii) the First Lien Liens on the Collateral shall at all times be junior and subordinate to the Super-Priority Liens on all Collateral.
The priority provisions set forth in this Section 2.01 establish a "first-out / second-out" waterfall structure with respect to the Collateral, pursuant to which the Super-Priority Obligations shall be entitled to be satisfied first-out from the proceeds of Collateral, and the First Lien Obligations shall be entitled to be satisfied second-out from the proceeds of Collateral, in each case in accordance with the Waterfall set forth in Article IV. The priorities set forth in this Section 2.01 shall apply regardless of whether the Super-Priority Liens or the First Lien Liens are perfected or unperfected, and regardless of the method of perfection, whether by attachment, possession, filing of financing statements, control, or otherwise.
Each Agent, on behalf of itself and its respective Secured Parties, hereby acknowledges and agrees to the priority of Liens set forth in this Section 2.01. The First Lien Agent, on behalf of itself and the First Lien Secured Parties, hereby acknowledges and agrees that the Super-Priority Liens shall be senior and prior to the First Lien Liens and that the First Lien Liens shall be and are hereby subordinated to the Super-Priority Liens in all respects.
Section 2.02 — Nature of Lien Subordination
The subordination of the First Lien Liens to the Super-Priority Liens as provided in Section 2.01 is a subordination of Liens only. Except as specifically provided in Article IV (Payment Waterfall; Application of Proceeds) and Article VI (Insolvency Proceedings), nothing in this Agreement shall be construed to constitute a subordination of the First Lien Obligations to the Super-Priority Obligations in right of payment. Without limiting the generality of the foregoing, nothing in this Agreement shall impair, restrict, or otherwise affect the obligation of the Company or any Guarantor to pay the First Lien Obligations as and when the same shall become due and payable in accordance with the terms of the First Lien Documents, or the right of the First Lien Agent or the First Lien Secured Parties to receive payment of the First Lien Obligations in accordance with the terms thereof, in each case subject to the provisions of this Agreement.
Section 2.03 — Prohibition on Contesting Liens
Each Agent, on behalf of itself and its respective Secured Parties, agrees that it shall not (and hereby waives any right to) contest, challenge, question, or object to (and shall not support or encourage any other Person in contesting, challenging, questioning, or objecting to) the validity, perfection, priority, or enforceability of any Lien held by or on behalf of the other Agent or its Secured Parties in any of the Collateral, whether in any Insolvency or Liquidation Proceeding or otherwise. Without limiting the generality of the foregoing, no Agent shall, and each Agent agrees that it shall not, seek to avoid, invalidate, set aside, subordinate, recharacterize, or declare unenforceable any Lien of the other Agent or its Secured Parties under any applicable fraudulent conveyance, fraudulent transfer, preferential transfer, equitable subordination, or similar theory, whether under the Bankruptcy Code, applicable state law, or otherwise.
Section 2.04 — No New Liens
(a) If, at any time after the date hereof, any Grantor shall grant a Lien on any asset or property to secure any Obligation owing to one Agent or its Secured Parties and such Grantor shall not have also granted a corresponding Lien on such asset or property to the other Agent to secure the Obligations owing to such other Agent's Secured Parties, then such Grantor shall, promptly (and in any event within ten (10) business days after the granting of such Lien), grant a corresponding Lien on such asset or property to such other Agent to secure the Obligations owing to such other Agent's Secured Parties, subject in all respects to the priorities established in this Article II. Each Agent shall cooperate with the other Agent and the applicable Grantor to effectuate the foregoing, including by executing and delivering such documents, instruments, and agreements as may be reasonably necessary or appropriate.
(b) Anti-marshaling. No Agent shall be required to marshal any Collateral or any other assets in favor of the other Agent or any other Person, and each Agent waives any right to require marshaling of assets or Collateral. Each Agent, on behalf of itself and its respective Secured Parties, hereby irrevocably waives any and all rights to require any marshaling of assets or Collateral that might otherwise be available under applicable law.
Section 2.05 — Perfection; Shared Collateral
(a) Each Agent may, in its sole discretion, file or record such financing statements, mortgages, deeds of trust, assignments, and other documents and take all other actions as it may deem necessary or appropriate to perfect its respective Liens on the Collateral. No Agent shall be under any obligation to the other Agent to file any financing statements, mortgages, or other documents or to take any other action to perfect any Lien for the benefit of the other Agent.
(b) In the event that any Agent holds possession or control of any Collateral or any portion thereof (including, without limitation, certificates representing equity interests, promissory notes, instruments, chattel paper, deposit accounts subject to control agreements, securities accounts, or any other Collateral as to which perfection may be achieved by possession or control), such Agent shall, to the extent necessary, hold such Collateral as bailee for the benefit of the other Agent, in each case subject to the priorities established in this Article II. The duty of any Agent serving as bailee hereunder shall be limited to the duty of reasonable care in the custody and preservation of Collateral in such Agent's possession or control, and such Agent shall have no other duty or liability with respect to any Collateral held for the benefit of the other Agent.
(c) The filing of UCC financing statements by each Agent shall be independent and neither Agent shall have any obligation to include the other Agent's Collateral description in its financing statements. Each Agent's financing statements may describe the Collateral in whatever manner such Agent deems appropriate, and neither Agent shall be required to coordinate or conform its financing statement filings with those of the other Agent.
Section 2.06 — Similar Liens on Same Collateral
(a) All Super-Priority Liens and all First Lien Liens shall attach to the same Collateral, which shall consist of substantially all assets of the Company and the Guarantors, as more fully described on Exhibit B hereto.
(b) Except for immaterial exceptions with respect to de minimis assets (having an individual value not exceeding Fifty Thousand Dollars ($50,000) or an aggregate value not exceeding Two Hundred Fifty Thousand Dollars ($250,000)), neither the Super-Priority Documents nor the First Lien Documents shall grant Liens on any Collateral that does not also secure the other series of Obligations. In the event that either series of Obligations is secured by any Collateral that does not also secure the other series of Obligations (other than such de minimis exceptions), Section 2.04(a) shall apply.
ARTICLE III
ENFORCEMENT RIGHTS; STANDSTILL
Section 3.01 — Enforcement Actions
(a) Super-Priority Agent's Right to Enforce. Subject to the terms of this Agreement, the Super-Priority Agent shall have the exclusive right to take Enforcement Actions with respect to the Collateral at any time following the occurrence and during the continuance of an event of default under the Super-Priority Credit Agreement. The Super-Priority Agent may exercise all rights and remedies available to it and the Super-Priority Secured Parties under the Super-Priority Documents, applicable law (including the UCC), equity, and this Agreement, in such order and in such manner as the Super-Priority Agent, in its sole and absolute discretion, may determine. Without limiting the generality of the foregoing, the Super-Priority Agent shall have the right to take any and all actions to foreclose upon, collect, realize upon, or otherwise enforce the Super-Priority Liens against the Collateral, to credit bid the Super-Priority Obligations in any sale or disposition of the Collateral, and to take any other action that the Super-Priority Agent deems necessary or appropriate to protect the interests of the Super-Priority Secured Parties. The First Lien Agent, on behalf of itself and the First Lien Secured Parties, agrees that it will not object to, oppose, or seek to prevent any Enforcement Action taken by the Super-Priority Agent. The First Lien Agent further acknowledges and agrees that the Super-Priority Agent has no obligation to exercise any right or remedy or to take any Enforcement Action, and the Super-Priority Agent's failure to do so shall not impair or otherwise affect the rights of the Super-Priority Agent or the Super-Priority Secured Parties under this Agreement or any of the Super-Priority Documents.
(b) First Lien Agent Standstill Period. Notwithstanding any rights that the First Lien Agent or the First Lien Secured Parties may have under the First Lien Documents or applicable law, following the occurrence and during the continuance of an event of default under the First Lien Credit Agreement, the First Lien Agent shall not take any Enforcement Action with respect to the Collateral for a period of one hundred eighty (180) days from the date on which the First Lien Agent delivers written notice (an "Enforcement Notice") to the Super-Priority Agent of (x) such event of default and (y) the First Lien Agent's intention to commence Enforcement Actions (such 180-day period, the "Standstill Period"). During the Standstill Period, the First Lien Agent shall not exercise any right of foreclosure, any right to realize upon or otherwise enforce any Lien on the Collateral, or any other remedy against the Collateral, whether judicial or non-judicial, whether under the UCC, the Bankruptcy Code, or otherwise.
Notwithstanding the foregoing, during the Standstill Period the First Lien Agent shall be permitted to:
(i) accelerate the First Lien Obligations in accordance with the terms of the First Lien Credit Agreement;
(ii) file proofs of claim and make other filings necessary to preserve and protect the claims of the First Lien Secured Parties;
(iii) take actions to preserve and protect the Collateral (including, without limitation, actions to prevent the waste, destruction, or diminution in value of the Collateral), provided, that such actions shall not include any sale, lease, or other disposition of, or any realization upon, the Collateral; and
(iv) exercise setoff rights against deposit accounts and other funds held by the First Lien Lenders (or any of them) in the ordinary course of their banking relationships with the Company or the Guarantors, to the extent such setoff rights exist independently under applicable law or contract and are not exercised for the purpose of circumventing the Standstill Period.
(c) Termination of Standstill Period. The Standstill Period shall automatically terminate upon the earliest to occur of the following:
(i) the expiration of one hundred eighty (180) days from the date of delivery of the applicable Enforcement Notice to the Super-Priority Agent;
(ii) the commencement of any Insolvency or Liquidation Proceeding by or against the Company or any Guarantor;
(iii) the Super-Priority Agent's commencement of any Enforcement Action with respect to the Collateral; or
(iv) the Discharge of Super-Priority Obligations.
Upon the termination of the Standstill Period in accordance with clauses (i) through (iii) above, the First Lien Agent shall be entitled to take Enforcement Actions with respect to the Collateral, provided, that any proceeds of Collateral received by the First Lien Agent in connection with any such Enforcement Action shall be applied in accordance with the Waterfall set forth in Article IV.
(d) Waivers During Standstill. The First Lien Agent, on behalf of itself and the First Lien Secured Parties, agrees that during the Standstill Period it shall not (and hereby waives any right to) object to, oppose, or seek to prevent, delay, or otherwise interfere with any Enforcement Action taken by the Super-Priority Agent with respect to the Collateral. The First Lien Agent further agrees that it shall not, and hereby waives any right to, seek a judicial stay, injunction, restraining order, or other equitable or legal restraint against the Super-Priority Agent's exercise of remedies with respect to the Collateral during the Standstill Period or at any other time while Super-Priority Obligations remain outstanding. The foregoing waivers are made with full knowledge of their significance and consequences and are intended to be enforceable to the fullest extent permitted by applicable law.
Section 3.02 — Application of Proceeds from Enforcement Actions
All proceeds received by either Agent from any Enforcement Action with respect to the Collateral shall be applied in accordance with the Waterfall set forth in Article IV of this Agreement. Each Agent agrees to promptly deliver to the other Agent any proceeds of Collateral received by it that are required to be turned over or applied in a different manner pursuant to Article IV.
Section 3.03 — Cooperation
(a) Each Agent agrees to cooperate reasonably and in good faith with the other Agent in connection with any Enforcement Action with respect to the Collateral, including, without limitation, providing reasonable access to books, records, and other information in such Agent's possession or control relating to the Collateral, identifying the locations of Collateral, and facilitating the orderly and efficient realization upon the Collateral.
(b) The Company and each Guarantor hereby consent to the cooperation described in Section 3.03(a) and agree to cooperate with each Agent in connection with any Enforcement Action, including, without limitation, providing reasonable access to the Company's and the Guarantors' books, records, premises, and personnel. Nothing in this Section 3.03 shall be construed to impose any obligation on either Agent that is inconsistent with its duties under the applicable credit agreement or its fiduciary obligations to its respective Secured Parties.
ARTICLE IV
PAYMENT WATERFALL; APPLICATION OF PROCEEDS
Section 4.01 — Application of Collateral Proceeds
All proceeds of Collateral received by any Agent or any Secured Party in connection with (a) any Enforcement Action, (b) any Insolvency or Liquidation Proceeding, (c) any other realization upon or disposition of Collateral, or (d) any distribution on account of any Lien on any Collateral, shall be distributed and applied in the following order of priority (the "Waterfall"):
First, to the payment of all reasonable and documented costs and expenses of the Super-Priority Agent and the First Lien Agent incurred in connection with such collection, enforcement, realization, or distribution (including reasonable attorneys' fees and disbursements, appraisers' fees, consultants' fees, and any other costs of administration and collection), on a pro rata basis between the Agents based on the respective amounts of such costs and expenses incurred by each Agent;
Second, after the application described in "First" above, to the payment in full of all Super-Priority Obligations (including, without limitation, all outstanding principal, all accrued and unpaid interest (including default interest), all make-whole premiums and call protection premiums, all fees, all expenses, and all indemnification obligations owing to the Super-Priority Agent and the Super-Priority Secured Parties), until the Discharge of Super-Priority Obligations shall have occurred;
Third, after the application described in "Second" above, to the payment in full of all First Lien Obligations (including, without limitation, all outstanding principal, all accrued and unpaid interest (including default interest), all fees, all expenses, and all indemnification obligations owing to the First Lien Agent and the First Lien Secured Parties), until the Discharge of First Lien Obligations shall have occurred; and
Fourth, after the application described in "Third" above, to the Company or as otherwise required by applicable law.
The priority of payments set forth in this Section 4.01 constitutes the "first-out / second-out" payment waterfall referenced herein and shall govern the application of all Collateral proceeds as between the Super-Priority Secured Parties (as first-out creditors) and the First Lien Secured Parties (as second-out creditors).
Section 4.02 — Turnover Provisions
(a) If the First Lien Agent or any First Lien Secured Party shall at any time receive any Collateral proceeds, payments, or other distributions on account of the First Lien Liens that should have been applied to the Super-Priority Obligations pursuant to the Waterfall set forth in Section 4.01 (including, without limitation, any amounts received by the First Lien Agent or any First Lien Secured Party in violation of this Agreement), such amounts shall be segregated, held in trust for the benefit of the Super-Priority Agent, and promptly (and in any event within two (2) business days of receipt) turned over and paid to the Super-Priority Agent, in the same form as received (with any necessary endorsements or instruments of transfer), for application in accordance with Section 4.01.
(b) If the Super-Priority Agent or any Super-Priority Secured Party shall at any time receive any Collateral proceeds, payments, or other distributions in excess of the amount required for the full payment and satisfaction of all Super-Priority Obligations (after application in accordance with the Waterfall), such excess amounts shall be segregated, held in trust for the benefit of the First Lien Agent, and promptly (and in any event within two (2) business days of receipt) turned over and paid to the First Lien Agent, in the same form as received (with any necessary endorsements or instruments of transfer), for application in accordance with Section 4.01.
(c) All amounts required to be turned over pursuant to this Section 4.02 shall be turned over in the form received, without deduction, setoff, or counterclaim (other than for any applicable withholding taxes required by law), and the receiving Agent shall have the right to apply such amounts in accordance with Section 4.01 without any obligation to first pursue any other remedy or to give any prior notice.
Section 4.03 — Payments Permitted
(a) Regular Payments. Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement shall prohibit the Company or any Guarantor from making regularly scheduled payments of principal, interest (at the contract rate or, if applicable, the default rate), fees, and other amounts to the First Lien Agent and the First Lien Secured Parties in accordance with the terms of the First Lien Documents, so long as (i) no Enforcement Action is pending or being pursued by either Agent with respect to the Collateral and (ii) no Insolvency or Liquidation Proceeding has been commenced by or against the Company or any Guarantor.
(b) Mandatory Prepayments. The mandatory prepayment provisions of the Super-Priority Credit Agreement (including, without limitation, the excess cash flow sweep requiring the prepayment of seventy-five percent (75%) of excess cash flow in excess of a Twenty Million Dollar ($20,000,000) liquidity threshold) shall have priority over any mandatory prepayment obligations under the First Lien Credit Agreement, to the extent such mandatory prepayments arise from the same event, occurrence, or cash flow period. In the event that the same event, occurrence, or cash flow period gives rise to mandatory prepayment obligations under both the Super-Priority Credit Agreement and the First Lien Credit Agreement, the mandatory prepayment obligations under the Super-Priority Credit Agreement shall be satisfied first, and the mandatory prepayment obligations under the First Lien Credit Agreement shall be subordinated to such Super-Priority mandatory prepayment obligations.
(c) Voluntary Prepayments. Voluntary prepayments of the First Lien Obligations shall be permitted at any time so long as (i) no event of default exists and is continuing under the Super-Priority Credit Agreement at the time of such voluntary prepayment and (ii) after giving effect to such voluntary prepayment, no event of default would exist under the Super-Priority Credit Agreement.
Section 4.04 — Discharge of Super-Priority Obligations
"Discharge of Super-Priority Obligations" means the indefeasible payment in full in cash of all Super-Priority Obligations (including all outstanding principal, all accrued and unpaid interest, all premiums, all fees, all expenses, and all other amounts owing under or in respect of the Super-Priority Documents) and the irrevocable termination of all commitments and obligations of the Super-Priority Lenders under the Super-Priority Credit Agreement (including, without limitation, the Ten Million Dollar ($10,000,000) delayed-draw term loan commitment). Upon the Discharge of Super-Priority Obligations, (a) this Agreement shall automatically terminate and be of no further force or effect, subject to the survival provisions of Section 9.09, (b) all Liens granted to or held by the Super-Priority Agent for the benefit of the Super-Priority Secured Parties shall automatically be released, and (c) the First Lien Liens shall automatically become the senior Liens on the Collateral. The Super-Priority Agent shall, at the Company's expense, promptly execute and deliver such instruments, documents, and agreements as may be reasonably necessary or appropriate to evidence the termination of this Agreement and the release of the Super-Priority Liens, including UCC-3 termination statements and mortgage releases.
ARTICLE V
PURCHASE OPTION
Section 5.01 — Purchase Option
(a) The First Lien Agent (on behalf of the First Lien Secured Parties, or any designee thereof, including any one or more First Lien Lenders or any of their respective affiliates) shall have the option (the "Purchase Option"), exercisable at any time following the occurrence and during the continuance of an event of default under the Super-Priority Credit Agreement, to purchase all (but not less than all) of the Super-Priority Obligations from the Super-Priority Secured Parties.
(b) The Purchase Option shall be exercised by delivery of a written notice (the "Purchase Notice") from the First Lien Agent (or its designee) to the Super-Priority Agent, specifying (i) the identity of the purchasing party or parties, (ii) the proposed closing date for the purchase, which shall not be later than ten (10) business days after the date of delivery of the Purchase Notice, and (iii) the wire transfer or other payment instructions for the consummation of the purchase.
(c) The purchase price for the Super-Priority Obligations (the "Purchase Price") shall be equal to the sum of (i) one hundred percent (100%) of the outstanding principal amount of the Super-Priority Obligations as of the closing date, plus (ii) all accrued and unpaid interest on the Super-Priority Obligations through and including the closing date (at the contract rate or, if applicable, the default rate), plus (iii) all applicable premiums (including any make-whole premium or call protection premium at 103% in year one, 102% in year two, 101% in year three, and par thereafter, as determined in accordance with the Super-Priority Credit Agreement), plus (iv) all fees and expenses (including reasonable attorneys' fees and disbursements and any other amounts) owing to the Super-Priority Agent and the Super-Priority Secured Parties under the Super-Priority Documents as of the closing date.
(d) Upon consummation of the purchase and payment of the Purchase Price in full in immediately available funds, the purchasing party shall be subrogated to all of the rights of the Super-Priority Agent and the Super-Priority Secured Parties under the Super-Priority Documents, including, without limitation, the benefit of the Super-Priority Liens, and shall be deemed to be the "Super-Priority Agent" for all purposes under this Agreement and the Super-Priority Documents.
Section 5.02 — Mechanics of Purchase
(a) Upon receipt of the Purchase Price in full in immediately available funds, the Super-Priority Agent shall, promptly and in any event within two (2) business days, deliver to the purchasing party (i) all promissory notes, if any, evidencing the Super-Priority Obligations, duly endorsed or accompanied by duly executed allonges, (ii) executed assignments and assumptions in form reasonably satisfactory to the purchasing party, pursuant to which the Super-Priority Secured Parties shall assign all of their respective rights, title, and interest in and to the Super-Priority Obligations and the Super-Priority Documents (other than rights to indemnification and expense reimbursement that survive repayment) to the purchasing party, and (iii) such other documents and instruments as may be reasonably necessary to effectuate the purchase and assignment contemplated herein.
(b) The purchase and assignment contemplated by this Article V shall be without recourse to, and without any representation or warranty by, the Super-Priority Agent or the Super-Priority Secured Parties, other than representations and warranties (i) that the Super-Priority Agent and each Super-Priority Secured Party has good and valid title to the Super-Priority Obligations being assigned, free and clear of any adverse claim, (ii) that the Super-Priority Agent has the requisite authority to consummate the assignment, and (iii) that the execution and delivery of the assignment documents has been duly authorized. The Super-Priority Agent and the Super-Priority Secured Parties shall not be required to make any representation or warranty regarding the creditworthiness of the Company or any Guarantor, the value of the Collateral, the enforceability of the Super-Priority Documents, or any other matter.
(c) The Company hereby consents to any purchase of the Super-Priority Obligations pursuant to this Article V and agrees to cooperate reasonably with the Super-Priority Agent, the First Lien Agent, and the purchasing party to effectuate any such purchase.
ARTICLE VI
INSOLVENCY PROCEEDINGS
Section 6.01 — DIP Financing
If any Insolvency or Liquidation Proceeding is commenced by or against the Company or any Guarantor:
(a) The First Lien Agent, on behalf of itself and the First Lien Secured Parties, agrees that it will not object to, oppose, or vote against, any post-petition financing (a "DIP Financing") provided by, arranged by, or consented to by the Super-Priority Agent or the Super-Priority Secured Parties, provided, that all of the following conditions are satisfied:
(i) the aggregate principal amount of such DIP Financing (together with all Super-Priority Obligations outstanding at the time of the commencement of such Insolvency or Liquidation Proceeding) does not exceed one hundred fifteen percent (115%) of the aggregate Super-Priority Obligations outstanding immediately prior to the commencement of such proceeding;
(ii) the First Lien Agent's Liens on the Collateral are not primed or subordinated by the Liens securing such DIP Financing, except to the extent that the Super-Priority Liens already prime and are senior to the First Lien Liens under this Agreement (it being understood that DIP Financing Liens that replace or are pari passu with the Super-Priority Liens shall not constitute priming of the First Lien Liens for purposes of this clause (ii)); and
(iii) the terms of such DIP Financing, taken as a whole, are commercially reasonable under the circumstances (including pricing, maturity, covenants, milestones, and other material terms).
(b) The First Lien Agent, on behalf of itself and the First Lien Secured Parties, agrees that it shall not seek, propose, or support any DIP Financing that would prime or subordinate the Super-Priority Liens without the prior written consent of the Super-Priority Agent.
(c) If neither the Super-Priority Agent nor any of the Super-Priority Secured Parties proposes to provide or arrange DIP Financing within thirty (30) days of the commencement of an Insolvency or Liquidation Proceeding, then the First Lien Agent shall be permitted to propose, arrange, or provide DIP Financing on terms reasonably satisfactory to the First Lien Agent, provided, that (x) such DIP Financing does not prime or subordinate the Super-Priority Liens (unless the Super-Priority Agent has provided its prior written consent thereto), and (y) the proceeds of such DIP Financing are applied in a manner consistent with the priorities established in this Agreement.
Section 6.02 — Relief from Stay; Adequate Protection
(a) The First Lien Agent, on behalf of itself and the First Lien Secured Parties, agrees that it shall not seek or request relief from the automatic stay imposed under Section 362 of the Bankruptcy Code (or any similar stay or injunction under any comparable law) with respect to the Collateral during the Standstill Period (as such Standstill Period may be extended or deemed to apply in the context of any Insolvency or Liquidation Proceeding), unless the Super-Priority Agent has also sought or requested relief from the automatic stay with respect to the Collateral.
(b) If adequate protection of the Super-Priority Agent's interest in the Collateral is provided in any Insolvency or Liquidation Proceeding in the form of (x) replacement liens on the Collateral and/or the proceeds thereof, (y) superpriority administrative expense claims under Section 507(b) of the Bankruptcy Code, or (z) any combination thereof, the First Lien Agent, on behalf of itself and the First Lien Secured Parties, agrees that it shall not object to or contest such adequate protection on the basis that the First Lien Secured Parties should receive senior or equal adequate protection.
(c) The First Lien Agent may seek adequate protection of the First Lien Liens in any Insolvency or Liquidation Proceeding in the form of (x) replacement liens on the Collateral and/or the proceeds thereof, and/or (y) superpriority administrative expense claims under Section 507(b) of the Bankruptcy Code, provided, that in each case such adequate protection (including any replacement liens and any superpriority administrative expense claims) shall be junior and subordinate to any adequate protection provided to the Super-Priority Agent, and the First Lien Agent shall so stipulate in any motion or order relating to such adequate protection.
(d) Any adequate protection payments (whether in the form of current cash payments, replacement liens, or otherwise) received by the First Lien Agent or any First Lien Secured Party in any Insolvency or Liquidation Proceeding shall be applied in accordance with the Waterfall set forth in Section 4.01. To the extent any adequate protection payments received by the First Lien Agent should have been applied first to the Super-Priority Obligations in accordance with the Waterfall, such payments shall be promptly turned over to the Super-Priority Agent in accordance with Section 4.02.
Section 6.03 — Asset Dispositions in Insolvency Proceedings
The First Lien Agent, on behalf of itself and the First Lien Secured Parties, agrees that it shall not object to, oppose, or otherwise seek to prevent any sale, use, or lease of the Collateral (in whole or in part) that is approved or consented to by the Super-Priority Agent in any Insolvency or Liquidation Proceeding, including, without limitation, any sale of substantially all of the assets of the Company and the Guarantors under Section 363 of the Bankruptcy Code (or any comparable provision of applicable law), provided, that the proceeds of any such sale, use, or lease are applied in accordance with the Waterfall set forth in Section 4.01. The First Lien Agent further agrees that it shall not object to any such sale on the grounds that the First Lien Agent's or the First Lien Secured Parties' rights under this Agreement are impaired by such sale, so long as the Waterfall is observed in the application of the proceeds thereof. For the avoidance of doubt, nothing in this Section 6.03 shall prevent the First Lien Agent from credit bidding the First Lien Obligations in any sale of Collateral, subject to the prior right of the Super-Priority Agent to credit bid the Super-Priority Obligations.
Section 6.04 — Plan of Reorganization
The First Lien Agent, on behalf of itself and the First Lien Secured Parties, agrees that it shall not propose, vote in favor of, or otherwise support any plan of reorganization or plan of liquidation in any Insolvency or Liquidation Proceeding that is inconsistent with the priorities and waterfall established in this Agreement. If any plan of reorganization or plan of liquidation provides for distributions on account of Liens on the Collateral (whether in the form of cash, new debt, new equity, or other consideration), the Waterfall set forth in Section 4.01 shall apply to such distributions, and the First Lien Agent agrees not to accept any distribution on account of the First Lien Liens unless and until all Super-Priority Obligations have been indefeasibly paid in full in cash.
Section 6.05 — Post-Petition Interest
(a) The Super-Priority Agent shall have the right, and is hereby authorized by the First Lien Agent, to claim, assert, and recover post-petition interest, fees, costs, and expenses to the fullest extent permitted by the Bankruptcy Code, including as an oversecured creditor entitled to post-petition interest under Section 506(b) of the Bankruptcy Code.
(b) The First Lien Agent, on behalf of itself and the First Lien Secured Parties, agrees that it shall not oppose, contest, or object to any claim for post-petition interest, fees, costs, or expenses asserted by the Super-Priority Agent in any Insolvency or Liquidation Proceeding.
(c) The First Lien Agent shall be entitled to claim post-petition interest on the First Lien Obligations only to the extent that the value of the Collateral exceeds the sum of (i) all Super-Priority Obligations (including post-petition interest, fees, costs, and expenses claimed by the Super-Priority Agent) and (ii) all First Lien Obligations (excluding post-petition interest on the First Lien Obligations). In no event shall any claim for post-petition interest on the First Lien Obligations reduce or impair the recovery of the Super-Priority Secured Parties on account of the Super-Priority Obligations.
Section 6.06 — Avoidance Actions
If any payment, distribution, or transfer of Collateral proceeds to the Super-Priority Agent or any Super-Priority Secured Party for the account of the Super-Priority Obligations is avoided, set aside, invalidated, declared fraudulent, or required to be repaid, returned, or disgorged to any Person (including the Company, any Guarantor, or any trustee, receiver, or similar fiduciary) under any Insolvency or Liquidation Proceeding or otherwise (including as a preference, fraudulent transfer, or fraudulent conveyance under the Bankruptcy Code or applicable state law), then (a) the Super-Priority Liens and the subor

AMENDED AND RESTATED INTERCREDITOR AGREEMENT

TABLE OF CONTENTS

AMENDED AND RESTATED INTERCREDITOR AGREEMENT

RECITALS

WHEREAS:

ARTICLE I

DEFINITIONS AND INTERPRETATION

ARTICLE II

LIEN PRIORITIES

ARTICLE III

ARTICLE IV

ARTICLE V

PURCHASE OPTION

ARTICLE VI

INSOLVENCY PROCEEDINGS

Record

Parties

Dates

Amounts