INTERCREDITOR AGREEMENT
Dated as of May 22, 2025
among
IRONCLAD CAPITAL PARTNERS LP, a Delaware limited partnership, as DIP Administrative Agent
and
PRAIRIE STATE BANK, NATIONAL ASSOCIATION, a national banking association, as Pre-Petition First Lien Administrative Agent
with the acknowledgment and consent of
GREENFIELD AGRICULTURAL PARTNERS LLC, an Iowa limited liability company, as Debtor and Borrower
and
MERIDIAN TRUST COMPANY, a New York-chartered trust company, as Collateral Agent under the DIP Facility
TABLE OF CONTENTS
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INTERCREDITOR AGREEMENT
THIS INTERCREDITOR AGREEMENT (this "Agreement") is entered into as of May 22, 2025, by and among:
(i) IRONCLAD CAPITAL PARTNERS LP, a limited partnership organized and existing under the laws of the State of Delaware, with its principal office located at 600 Lexington Avenue, 34th Floor, New York, New York 10022 (in its capacity as administrative agent under the DIP Credit Agreement (as defined below), the "DIP Agent");
(ii) PRAIRIE STATE BANK, NATIONAL ASSOCIATION, a national banking association organized and existing under the laws of the United States, with its principal office located at 500 Main Street, Suite 1200, Kansas City, Missouri 64105 (in its capacity as administrative agent under the Pre-Petition First Lien Credit Agreement and the ABL Revolver (each as defined below), the "Pre-Petition Agent"); and
with the acknowledgment and consent of:
(iii) GREENFIELD AGRICULTURAL PARTNERS LLC, a limited liability company organized and existing under the laws of the State of Iowa, with its headquarters located at 1400 Prairie Ridge Drive, Cedar Falls, Iowa 50613 ("Greenfield" or the "Debtor"); and
(iv) MERIDIAN TRUST COMPANY, a trust company chartered under the laws of the State of New York, with its principal office located at 101 Park Avenue, 20th Floor, New York, New York 10178 (in its capacity as collateral agent under the DIP Facility security documents, the "Collateral Agent").
Each of the DIP Agent, the Pre-Petition Agent, the Debtor, and the Collateral Agent is sometimes referred to herein individually as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS:
A. The Chapter 11 Case. On May 15, 2025 (the "Petition Date"), Greenfield Agricultural Partners LLC filed a voluntary petition for relief under Chapter 11 of Title 11 of the United States Code (11 U.S.C. §§ 101 et seq.) (as amended from time to time, the "Bankruptcy Code") in the United States Bankruptcy Court for the Northern District of Iowa, Cedar Rapids Division (the "Bankruptcy Court"), commencing Case No. 25-01147 (the "Chapter 11 Case"). The Chapter 11 Case is pending before the Honorable Margaret R. Dunleavy, United States Bankruptcy Judge. The Debtor continues to operate its business and manage its affairs as debtor-in-possession pursuant to Sections 1107 and 1108 of the Bankruptcy Code.
B. Pre-Petition First Lien Credit Facilities. Prior to the Petition Date, the Debtor entered into certain pre-petition credit facilities for which Prairie State Bank, National Association serves as administrative agent, including:
(i) that certain First Lien Term Loan Credit Agreement, dated as of November 12, 2021, as amended, restated, supplemented, or otherwise modified from time to time (the "First Lien Term Loan Credit Agreement"), among the Debtor, Prairie State Bank, National Association, as administrative agent, and the lenders party thereto from time to time, providing for a first lien term loan in the aggregate principal amount of Three Hundred Ten Million Dollars ($310,000,000), maturing November 12, 2026, bearing interest at the Secured Overnight Financing Rate ("SOFR") plus 450 basis points per annum, secured by a first-priority lien on substantially all assets of the Debtor (the "First Lien Term Loan");
(ii) that certain Asset-Based Lending Revolving Credit Agreement, dated as of March 8, 2023, as amended, restated, supplemented, or otherwise modified from time to time (the "ABL Revolver Agreement"), among the Debtor, Prairie State Bank, National Association, as administrative agent, and the lenders party thereto from time to time (including Hawthorn National Bank and Northland Savings Bank, F.S.B., as participating lenders), providing for a revolving credit facility in the aggregate committed amount of Ninety-Five Million Dollars ($95,000,000), of which Seventy-Two Million Three Hundred Thousand Dollars ($72,300,000) was drawn as of the Petition Date, maturing May 8, 2026, bearing interest at SOFR plus 275 basis points per annum, secured by a first-priority lien on receivables and inventory on a split-collateral basis (the "ABL Revolver"); and
The obligations arising under the First Lien Term Loan Credit Agreement and the ABL Revolver Agreement, together with all accrued interest, fees, expenses, and other amounts owing thereunder, are collectively referred to herein as the "Pre-Petition First Lien Obligations."
C. Pre-Petition Defaults. Prior to the Petition Date, the Debtor defaulted on its obligations under the Pre-Petition First Lien Credit Agreement and related instruments. The Debtor's Total Net Leverage Ratio as of December 31, 2024 was 9.82 to 1.00, which exceeded the maximum Total Net Leverage Ratio of 6.50 to 1.00 permitted under the First Lien Term Loan Credit Agreement, constituting an Event of Default thereunder. The Pre-Petition Agent and the Debtor entered into a Forbearance Agreement dated as of January 31, 2025, pursuant to which the Pre-Petition Agent and the participating lenders agreed to forbear from exercising certain remedies through and including May 1, 2025, at which time such forbearance expired. Additionally, the Debtor failed to make a scheduled interest payment of Three Million Six Hundred Eighty-One Thousand Two Hundred Fifty Dollars ($3,681,250) due on March 15, 2025 with respect to the Eighty-Four Million Two Hundred Thousand Dollar ($84,200,000) aggregate principal amount of 9.50% Senior Unsecured Notes due March 2027 (the "Senior Unsecured Notes"), for which Meridian Trust Company serves as indenture trustee. The applicable grace period for such missed interest payment expired on April 14, 2025, resulting in an event of default under the Senior Unsecured Notes indenture.
D. DIP Credit Facility. Greenfield has entered into that certain Senior Secured Superpriority Debtor-in-Possession Credit Agreement, dated as of May 22, 2025 (as may be amended, restated, supplemented, or otherwise modified from time to time in accordance with its terms, the "DIP Credit Agreement"), among the Debtor, Ironclad Capital Partners LP, as administrative agent (in such capacity, the DIP Agent) and as a lender, Ridgeline Opportunity Fund III LP, as a lender, Bramblewood Credit Advisors LLC, as a lender, and Meridian Trust Company, as collateral agent, providing for a senior secured superpriority revolving credit facility in the aggregate committed amount of One Hundred Seventy-Five Million Dollars ($175,000,000) (the "DIP Facility"), with the following terms and commitments:
(i) Ironclad Capital Partners LP — commitment of One Hundred Million Dollars ($100,000,000), representing 57.14% of the total DIP Facility;
(ii) Ridgeline Opportunity Fund III LP — commitment of Fifty Million Dollars ($50,000,000), representing 28.57% of the total DIP Facility;
(iii) Bramblewood Credit Advisors LLC — commitment of Twenty-Five Million Dollars ($25,000,000), representing 14.29% of the total DIP Facility;
(iv) Interest Rate: SOFR plus 850 basis points per annum, with a 4.00% SOFR floor (resulting in a minimum all-in rate of 12.50%); default rate: SOFR plus 1,050 basis points per annum;
(v) Interim Draw: Eighty Million Dollars ($80,000,000) available upon entry of the Interim DIP Order; Final Draw: the remaining Ninety-Five Million Dollars ($95,000,000) available upon entry of the Final DIP Order;
(vi) Fees: a closing fee of 2.00% of the total commitment ($3,500,000); an exit fee of 1.00% of the total commitment ($1,750,000); an unused line fee of 0.50% per annum on undrawn amounts.
E. DIP Liens and Superpriority Claims. The DIP Facility is to be secured by: (i) a superpriority administrative expense claim under Section 364(c)(1) of the Bankruptcy Code, having priority over all other administrative expense claims (subject only to the Carve-Out); (ii) first-priority priming liens on all pre-petition collateral under Section 364(d) of the Bankruptcy Code; and (iii) first-priority liens on all previously unencumbered assets of the Debtor under Sections 364(c)(2) and 364(c)(3) of the Bankruptcy Code. Such liens and claims are collectively referred to herein as the "DIP Liens" and "DIP Superpriority Claim," as applicable.
F. Adequate Protection. Pursuant to the Stipulation Regarding Adequate Protection, filed in the Chapter 11 Case on May 19, 2025 (the "Adequate Protection Stipulation"), and the Interim Order Authorizing Debtor-in-Possession Financing (and upon entry of the Final DIP Order), the Pre-Petition Secured Lenders (as defined below) have been or will be granted adequate protection consisting of: (i) replacement liens on DIP collateral, junior and subordinate to the DIP Liens and the Carve-Out (the "Adequate Protection Liens"); (ii) a superpriority administrative expense claim under Section 507(b) of the Bankruptcy Code, junior to the DIP Superpriority Claim (the "§507(b) Claim"); (iii) current-pay interest at the applicable non-default contract rate on the Pre-Petition First Lien Obligations during the pendency of the Chapter 11 Case; and (iv) monthly reporting packages providing reasonable financial and operational information regarding the Debtor's business.
G. Consent to Priming. Prairie State Bank, National Association, as Pre-Petition Agent, has provided its conditional consent to the priming of the Pre-Petition Liens by the DIP Liens, as evidenced by that certain Consent Letter dated May 20, 2025 (the "Consent Letter"), signed by Thomas Whitaker, Senior Vice President, Loan Workout Group, on behalf of Prairie State Bank, National Association, and the Pre-Petition Secured Lenders. Such consent is conditioned upon the entry of the Interim DIP Order and the Final DIP Order incorporating the agreed adequate protection terms set forth in the Adequate Protection Stipulation and is further subject to the terms and conditions set forth in this Agreement.
H. ABL Roll-Up. In connection with the DIP Facility and as a condition of the support of the ABL lenders (including Prairie State Bank, National Association, Hawthorn National Bank, and Northland Savings Bank, F.S.B.), Twenty Million Dollars ($20,000,000) of pre-petition ABL obligations under the ABL Revolver Agreement are being rolled up into the DIP Facility (the "ABL Roll-Up"). Following the ABL Roll-Up, the rolled-up amount shall be treated as DIP Obligations for all purposes, including lien priority and the proceeds waterfall set forth herein.
I. Purpose of Agreement. The Parties desire to set forth their agreement regarding: (i) the relative priority of their respective liens and security interests in and to the Collateral; (ii) the application of proceeds of Common Collateral; (iii) standstill and remedy-exercise protocols; (iv) the treatment of the ABL Roll-Up; and (v) related intercreditor matters, all as more fully set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements and covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE I — DEFINITIONS AND INTERPRETATION
Section 1.1 — Definitions
As used in this Agreement, the following terms shall have the meanings set forth below. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the DIP Credit Agreement or, if not defined therein, in the Pre-Petition First Lien Credit Agreement.
"ABL Collateral" means all receivables, inventory, and related proceeds (including the proceeds of receivables and inventory) that are subject to the split-collateral first-priority lien held by the Pre-Petition Agent on behalf of the ABL lenders under the ABL Revolver Agreement, as more particularly described in Exhibit A attached hereto.
"ABL Revolver" has the meaning set forth in Recital B.
"ABL Revolver Agreement" has the meaning set forth in Recital B.
"ABL Roll-Up" means the rolling up of Twenty Million Dollars ($20,000,000) of pre-petition ABL obligations into the DIP Facility, as described in Recital H.
"ABL Roll-Up Amount" means Twenty Million Dollars ($20,000,000), being the aggregate principal amount of pre-petition ABL obligations rolled up into the DIP Facility.
"Adequate Protection Liens" means the replacement liens granted to the Pre-Petition Secured Lenders on DIP Collateral pursuant to the Adequate Protection Stipulation and the DIP Orders, which Adequate Protection Liens are junior and subordinate to the DIP Liens and the Carve-Out.
"Adequate Protection Stipulation" means that certain Stipulation Regarding Adequate Protection between the Debtor and the Pre-Petition Agent, filed in the Chapter 11 Case (Case No. 25-01147) on May 19, 2025, as approved by the Bankruptcy Court.
"Agreement" means this Intercreditor Agreement, as the same may be amended, restated, supplemented, or otherwise modified from time to time in accordance with Section 12.5.
"Bankruptcy Code" means Title 11 of the United States Code, 11 U.S.C. §§ 101 et seq., as amended from time to time.
"Bankruptcy Court" means the United States Bankruptcy Court for the Northern District of Iowa, Cedar Rapids Division, or such other court as may have jurisdiction over the Chapter 11 Case.
"Borrower" means Greenfield Agricultural Partners LLC, an Iowa limited liability company.
"Business Day" means any day other than a Saturday, Sunday, or other day on which commercial banks in New York, New York or Kansas City, Missouri are authorized or required by law to close.
"Carve-Out" means (a) prior to the occurrence of a Carve-Out Trigger Event, all accrued but unpaid professional fees and expenses of estate professionals and the United States Trustee, without cap; and (b) following the occurrence of a Carve-Out Trigger Event, (i) Two Million Five Hundred Thousand Dollars ($2,500,000) in the aggregate for professional fees and expenses of estate professionals retained by the Debtor or any official committee appointed in the Chapter 11 Case (including fees and expenses of counsel and financial advisors), and (ii) Five Hundred Thousand Dollars ($500,000) for fees payable to the United States Trustee under 28 U.S.C. § 1930, for an aggregate post-trigger Carve-Out amount of Three Million Dollars ($3,000,000), in each case as more fully defined and described in the DIP Credit Agreement and the DIP Orders.
"Carve-Out Trigger Event" has the meaning ascribed to such term in the DIP Credit Agreement and the DIP Orders.
"Chapter 11 Case" means the chapter 11 case of Greenfield Agricultural Partners LLC, Case No. 25-01147, pending in the Bankruptcy Court.
"Collateral" means all property of the Debtor (whether real, personal, or mixed, and whether tangible or intangible) that is subject to liens securing either the DIP Obligations or the Pre-Petition First Lien Obligations, including all DIP Collateral, all Pre-Petition Collateral, all Common Collateral, and all Unencumbered Collateral.
"Collateral Agent" means Meridian Trust Company, a New York-chartered trust company, in its capacity as collateral agent under the DIP Facility security documents, or any successor collateral agent appointed in accordance with the DIP Credit Agreement.
"Common Collateral" means all Collateral that is subject to both DIP Liens and Pre-Petition Liens (including Adequate Protection Liens), representing the overlapping collateral pools of the DIP Lenders and the Pre-Petition Secured Lenders.
"Consent Letter" has the meaning set forth in Recital G.
"Debtor" means Greenfield Agricultural Partners LLC, an Iowa limited liability company, as debtor and debtor-in-possession in the Chapter 11 Case.
"DIP Agent" means Ironclad Capital Partners LP, a Delaware limited partnership, in its capacity as administrative agent under the DIP Credit Agreement, or any successor administrative agent appointed in accordance with the DIP Credit Agreement.
"DIP Budget" means the 13-week cash flow budget attached to the DIP Credit Agreement as an exhibit, covering the initial period from May 15, 2025 through August 13, 2025, together with any rolling extensions thereof prepared and delivered in accordance with the DIP Credit Agreement.
"DIP Collateral" means all assets of the Debtor subject to DIP Liens, as more particularly described in Exhibit B attached hereto.
"DIP Credit Agreement" has the meaning set forth in Recital D.
"DIP Documents" means, collectively, the DIP Credit Agreement, the DIP Notes, the DIP Security Agreement, the DIP IP Security Agreement, the DIP Mortgages, this Agreement, and all other agreements, instruments, and documents executed and delivered in connection with the DIP Facility.
"DIP Facility" means the senior secured superpriority revolving credit facility in the aggregate committed amount of One Hundred Seventy-Five Million Dollars ($175,000,000) established pursuant to the DIP Credit Agreement.
"DIP IP Security Agreement" means the intellectual Property Security Agreement, dated as of the date hereof, between the Debtor and the Collateral Agent, for the benefit of the DIP Lenders.
"DIP Lenders" means, collectively, Ironclad Capital Partners LP, Ridgeline Opportunity Fund III LP, and Bramblewood Credit Advisors LLC, and their respective successors, assigns, participants, and transferees that become party to the DIP Credit Agreement from time to time.
"DIP Liens" means (a) the first-priority priming liens on all Pre-Petition Collateral granted pursuant to Section 364(d) of the Bankruptcy Code, and (b) the first-priority liens on all Unencumbered Collateral granted pursuant to Sections 364(c)(2) and 364(c)(3) of the Bankruptcy Code, in each case as authorized by the DIP Orders.
"DIP Mortgages" means the three mortgages or deeds of trust executed by the Debtor in favor of the Collateral Agent, for the benefit of the DIP Lenders, encumbering the real property located at: (i) 1400 Prairie Ridge Drive, Cedar Falls, Iowa 50613; (ii) 2200 Industrial Boulevard, Decatur, Illinois 62521; and (iii) 815 County Road 740, Jonesboro, Arkansas 72401.
"DIP Notes" means the promissory notes issued by the Debtor to the DIP Lenders evidencing the DIP Obligations under the DIP Credit Agreement.
"DIP Obligations" means all obligations of the Debtor under or in connection with the DIP Credit Agreement, the DIP Notes, the DIP Security Agreement, the DIP IP Security Agreement, the DIP Mortgages, and all other DIP Documents, including all principal, interest (at the applicable rate, including default interest), fees (including the closing fee, exit fee, and unused line fee), costs, expenses, indemnification obligations, and other amounts owing thereunder, in each case whether now existing or hereafter arising. For the avoidance of doubt, "DIP Obligations" includes the ABL Roll-Up Amount.
"DIP Orders" means, collectively, the Interim DIP Order and the Final DIP Order.
"DIP Security Agreement" means the Security Agreement, dated as of the date hereof, between the Debtor and the Collateral Agent, for the benefit of the DIP Lenders, granting liens on substantially all personal property of the Debtor.
"DIP Superpriority Claim" means the superpriority administrative expense claim granted to the DIP Lenders under Section 364(c)(1) of the Bankruptcy Code, having priority over all other administrative expense claims and all other claims against the Debtor (subject only to the Carve-Out).
"Enterprise Value" means the estimated total enterprise value of the Debtor, estimated as of the date hereof to be in the range of Two Hundred Eighty Million Dollars ($280,000,000) to Three Hundred Forty Million Dollars ($340,000,000) (mid-point: Three Hundred Ten Million Dollars ($310,000,000)), based on preliminary analyses conducted by the Debtor's financial advisor, subject to further refinement.
"Event of Default" has the meaning ascribed to such term in the DIP Credit Agreement.
"Final DIP Order" means the final order of the Bankruptcy Court authorizing the DIP Facility and granting the DIP Liens and DIP Superpriority Claim on a final basis, which order is targeted for entry on or before June 19, 2025.
"First Lien Term Loan" has the meaning set forth in Recital B.
"First Lien Term Loan Credit Agreement" has the meaning set forth in Recital B.
"Interim DIP Order" means the interim order of the Bankruptcy Court authorizing the DIP Facility and granting the DIP Liens and DIP Superpriority Claim on an interim basis, which order is targeted for entry on or before May 22, 2025.
"Maturity Date" means the earliest to occur of: (a) May 15, 2026; (b) the effective date of a confirmed plan of reorganization in the Chapter 11 Case; (c) the consummation of a sale of substantially all of the Debtor's assets pursuant to Section 363 of the Bankruptcy Code; and (d) the acceleration of the DIP Obligations upon the occurrence and continuation of an Event of Default under the DIP Credit Agreement.
"Party" and "Parties" have the meanings set forth in the preamble.
"Permitted Liens" has the meaning ascribed to such term in the DIP Credit Agreement.
"Person" means any individual, corporation, partnership, limited liability company, joint venture, association, trust, unincorporated organization, governmental authority, or any other entity.
"Petition Date" means May 15, 2025, the date on which the Debtor filed its voluntary petition for relief under Chapter 11 of the Bankruptcy Code.
"Pre-Petition Agent" means Prairie State Bank, National Association, a national banking association, in its capacity as administrative agent under the First Lien Term Loan Credit Agreement and the ABL Revolver Agreement, or any successor administrative agent appointed in accordance with such agreements.
"Pre-Petition Collateral" means all property of the Debtor that was subject to Pre-Petition Liens as of the Petition Date, as more particularly described in Exhibit A attached hereto.
"Pre-Petition First Lien Credit Agreement" means, collectively, the First Lien Term Loan Credit Agreement and the ABL Revolver Agreement.
"Pre-Petition First Lien Obligations" means all obligations of the Debtor under or in connection with the First Lien Term Loan Credit Agreement and the ABL Revolver Agreement (less the ABL Roll-Up Amount), including all principal, accrued interest, fees, costs, expenses, and other amounts owing thereunder.
"Pre-Petition Liens" means the pre-petition first-priority liens and security interests held by the Pre-Petition Agent, for the benefit of the Pre-Petition Secured Lenders, on the Pre-Petition Collateral.
"Pre-Petition Secured Lenders" means, collectively, all lenders and other secured parties holding Pre-Petition First Lien Obligations, including Prairie State Bank, National Association, Hawthorn National Bank, and Northland Savings Bank, F.S.B., and their respective successors, assigns, participants, and transferees.
"Proceeds" has the meaning ascribed to such term in Article 9 of the Uniform Commercial Code as in effect in the applicable jurisdiction, and as further defined in the DIP Security Agreement and the DIP Documents.
"Required Lenders" has the meaning ascribed to such term in the DIP Credit Agreement.
"Secured Parties" means, collectively, the DIP Lenders and the Pre-Petition Secured Lenders.
"Senior Unsecured Notes" means the Eighty-Four Million Two Hundred Thousand Dollar ($84,200,000) aggregate principal amount of 9.50% Senior Unsecured Notes due March 2027, issued by the Debtor pursuant to that certain Indenture, dated as of March 15, 2020, between the Debtor and Meridian Trust Company, as indenture trustee. For the avoidance of doubt, the Senior Unsecured Notes are not secured obligations and the holders thereof are not parties to this Agreement for lien priority purposes.
"SOFR" means the Secured Overnight Financing Rate as administered by the Federal Reserve Bank of New York (or a successor administrator), as published on the applicable Federal Reserve Bank of New York's website.
"Standstill Period" has the meaning set forth in Section 3.2.
"UCC" means the Uniform Commercial Code as in effect from time to time in the State of New York or, where the context requires, in any other applicable jurisdiction (including the States of Iowa, Illinois, and Arkansas).
"Unencumbered Collateral" means all assets of the Debtor that were not subject to Pre-Petition Liens as of the Petition Date, on which first-priority DIP Liens have been granted pursuant to Sections 364(c)(2) and 364(c)(3) of the Bankruptcy Code.
"§507(b) Claim" means the superpriority administrative expense claim under Section 507(b) of the Bankruptcy Code granted to the Pre-Petition Secured Lenders as adequate protection, which claim is junior and subordinate in all respects to the DIP Superpriority Claim.
Section 1.2 — Rules of Interpretation
(a) Unless the context otherwise requires, all references herein to the Bankruptcy Code shall mean 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, and all references to specific sections of the Bankruptcy Code shall include any successor provisions thereto. All references to the UCC shall mean the Uniform Commercial Code as in effect in the applicable jurisdiction, including the States of New York, Iowa, Illinois, and Arkansas, as applicable. All references to other statutes, rules, or regulations shall be deemed to refer to such statutes, rules, or regulations as amended, supplemented, or otherwise modified from time to time, including any successor provisions thereto.
(b) References to "Sections," "Articles," "Exhibits," and "Schedules" are to sections, articles, exhibits, and schedules of this Agreement unless otherwise specified. References to this "Agreement" include all exhibits and schedules attached hereto, which are incorporated herein by reference.
(c) The headings and captions contained in this Agreement are for convenience of reference only and shall not affect the interpretation or construction of this Agreement.
(d) Any reference herein to a "day" or "days" shall mean a calendar day or calendar days, unless expressly stated to be a Business Day or Business Days.
(e) The terms "herein," "hereof," "hereunder," and words of similar import refer to this Agreement as a whole and not to any particular section, subsection, or clause thereof.
(f) The use of the terms "including," "includes," or "include" shall be deemed to be followed by the words "without limitation."
(g) References to any Person include such Person's successors, assigns, and transferees (to the extent permitted hereunder).
(h) Where the context requires, the singular shall include the plural and vice versa, and the masculine gender shall include the feminine and neuter genders and vice versa.
Section 1.3 — DIP Orders Control
This Agreement is subject to and shall be interpreted consistently with the Interim DIP Order and the Final DIP Order. In the event of any conflict or inconsistency between the terms and provisions of this Agreement and the terms and provisions of the DIP Orders, the terms and provisions of the DIP Orders shall control and govern. Each Party hereto agrees that it shall not take any action, or assert any position, that is inconsistent with the DIP Orders. The Parties acknowledge that this Agreement is intended to supplement, and not to supersede, the provisions of the DIP Orders relating to the relative priority of liens and the rights and obligations of the DIP Lenders and the Pre-Petition Secured Lenders.
ARTICLE II — LIEN PRIORITY
Section 2.1 — Relative Priority of Liens
(a) DIP Liens Senior to Pre-Petition Liens. The Parties hereby agree and acknowledge that the DIP Liens constitute (i) first-priority priming liens on all Pre-Petition Collateral under Section 364(d) of the Bankruptcy Code, and (ii) first-priority liens on all Unencumbered Collateral under Sections 364(c)(2) and 364(c)(3) of the Bankruptcy Code, and that such DIP Liens are senior in right and priority to all Pre-Petition Liens on the Collateral (including both the liens securing the First Lien Term Loan and the liens securing the ABL Revolver). The Pre-Petition Agent, on behalf of itself and the Pre-Petition Secured Lenders, hereby consents to, and acknowledges the seniority and priority of, the DIP Liens with respect to all Collateral.
(b) Adequate Protection Liens. The Adequate Protection Liens granted to the Pre-Petition Secured Lenders are junior and subordinate to the DIP Liens and the Carve-Out in all respects, but are senior to all other claims, liens, and encumbrances on the Collateral (other than Permitted Liens as specified in the DIP Credit Agreement and the DIP Orders). The DIP Agent, on behalf of itself and the DIP Lenders, acknowledges the grant and priority of the Adequate Protection Liens as so described.
(c) Priority Waterfall. The relative priority of liens on the Collateral shall be as follows, from highest to lowest priority:
(1) First Priority: The Carve-Out, in the aggregate post-trigger amount of Three Million Dollars ($3,000,000) (consisting of Two Million Five Hundred Thousand Dollars ($2,500,000) for estate professionals and Five Hundred Thousand Dollars ($500,000) for fees payable to the United States Trustee);
(2) Second Priority: The DIP Liens, securing all DIP Obligations under the DIP Facility (up to the aggregate committed amount of One Hundred Seventy-Five Million Dollars ($175,000,000), plus all accrued interest, fees, expenses, and other amounts owing thereunder);
(3) Third Priority: The Adequate Protection Liens, securing the Pre-Petition First Lien Obligations (as reduced by the ABL Roll-Up Amount); and
(4) Fourth Priority: All other liens and encumbrances on the Collateral, as permitted by the DIP Orders.
(d) No Alteration. Nothing in this Agreement shall be construed to create, grant, or confer any lien or security interest in any Collateral in favor of any Party, except as expressly provided herein, in the DIP Documents, or in the DIP Orders. This Agreement establishes and confirms the relative priority of existing liens; it does not grant new liens.
Section 2.2 — Split-Collateral Acknowledgment
(a) The Parties acknowledge that, prior to the Petition Date, the Pre-Petition Liens were structured on a split-collateral basis: (i) the Pre-Petition Agent, on behalf of the lenders under the ABL Revolver, held a first-priority lien on the ABL Collateral (receivables, inventory, and related proceeds), and (ii) the Pre-Petition Agent, on behalf of the lenders under the First Lien Term Loan, held a first-priority lien on substantially all other assets of the Debtor, including equipment, real property, intellectual property, general intangibles, deposit accounts, and related proceeds.
(b) The Parties further acknowledge that the DIP Liens prime both categories of Pre-Petition Liens — that is, the DIP Liens are first in priority with respect to all Pre-Petition Collateral, including both the ABL Collateral and the collateral securing the First Lien Term Loan.
(c) ABL Roll-Up Treatment. The ABL Roll-Up Amount of Twenty Million Dollars ($20,000,000) of pre-petition ABL obligations that have been rolled up into the DIP Facility shall be treated as DIP Obligations for all purposes under this Agreement. Such rolled-up amount is secured by the DIP Liens at first-priority status and shall be paid in accordance with the waterfall set forth in Article IV as part of the DIP Obligations. The remaining pre-petition ABL balance (approximately Fifty-Two Million Three Hundred Thousand Dollars ($52,300,000)) retains its status as Pre-Petition First Lien Obligations and is secured by the Adequate Protection Liens at the third-priority level in the waterfall.
Section 2.3 — No Challenge to Lien Priority
(a) The Pre-Petition Agent, on behalf of itself and the Pre-Petition Secured Lenders, hereby agrees that it will not, directly or indirectly, contest, challenge, or seek to avoid or otherwise question the priority, validity, perfection, or enforceability of the DIP Liens or the DIP Superpriority Claim in any court or other forum, including the Bankruptcy Court. The Pre-Petition Agent further agrees that it will not support or encourage any other Person to contest, challenge, or seek to avoid or otherwise question the DIP Liens or the DIP Superpriority Claim.
(b) The DIP Agent, on behalf of itself and the DIP Lenders, hereby agrees that it will not, directly or indirectly, contest, challenge, or seek to avoid or otherwise question the validity or enforceability of the Pre-Petition Liens or the Adequate Protection Liens, subject to the agreed subordination of such liens to the DIP Liens and the Carve-Out as set forth in this Article II. The DIP Agent further agrees that it will not support or encourage any other Person to contest, challenge, or seek to avoid or otherwise question the Pre-Petition Liens or the Adequate Protection Liens. The foregoing shall not limit the right of the DIP Agent to enforce the subordination provisions of this Agreement.
Section 2.4 — Lien Priority Regardless of Perfection
The lien priorities established in this Article II shall apply irrespective of: (a) the time, manner, method, or order of attachment, grant, creation, or perfection of any lien or security interest held by any Party; (b) the order of filing of any financing statements, mortgages, deeds of trust, or other instruments or documents of title; (c) whether any lien or security interest was perfected by filing, possession, control, or otherwise; (d) the time of giving or failure to give notice of the purchase or acquisition of any Collateral; and (e) any provision of the UCC, the Bankruptcy Code, or any other applicable law to the contrary. The Parties intend that the lien priorities set forth in this Agreement shall be effective and enforceable regardless of any subsequently enacted statute, regulation, or rule that might otherwise alter such priorities.
Section 2.5 — Prohibition on Additional Liens
(a) The Pre-Petition Agent shall not acquire, obtain, or hold (and shall not permit any Pre-Petition Secured Lender to acquire, obtain, or hold) any lien on or security interest in any Collateral that would be senior to or pari passu with the DIP Liens, except as expressly authorized by the DIP Orders and the Adequate Protection Stipulation.
(b) The DIP Agent shall not acquire, obtain, or hold (and shall not permit any DIP Lender to acquire, obtain, or hold) any lien on or security interest in any Collateral that would be senior to or pari passu with the Adequate Protection Liens (other than the DIP Liens themselves), except as expressly authorized by the DIP Orders.
(c) Nothing in this Section 2.5 shall prohibit the DIP Agent or the Pre-Petition Agent from obtaining additional liens or security interests as expressly provided for in the DIP Credit Agreement, the Pre-Petition First Lien Credit Agreement, the DIP Orders, or the Adequate Protection Stipulation, provided that such additional liens or security interests are consistent with the priority waterfall set forth in Section 2.1(c).
ARTICLE III — ENFORCEMENT AND EXERCISE OF REMEDIES
Section 3.1 — DIP Agent's Exclusive Right to Enforce
(a) Subject to the DIP Orders and the Carve-Out, the DIP Agent (acting on behalf of the DIP Lenders and in accordance with the DIP Credit Agreement) shall have the exclusive right to exercise and enforce all rights and remedies with respect to the Collateral, including, without limitation, the right to: (i) foreclose upon any Collateral (or cause the Collateral Agent to foreclose upon any Collateral); (ii) sell, lease, license, assign, or otherwise dispose of any Collateral; (iii) collect, receive, and retain all Proceeds of Collateral; (iv) exercise remedies under the DIP Security Agreement, the DIP IP Security Agreement, and the DIP Mortgages; (v) credit bid (in whole or in part) the DIP Obligations in connection with any sale of Collateral; and (vi) exercise any and all other rights and remedies available to a secured creditor under the UCC, the Bankruptcy Code, or other applicable law.
(b) The Pre-Petition Agent shall not, and shall cause the Pre-Petition Secured Lenders not to, exercise any rights or remedies against the Collateral (including any enforcement, collection, foreclosure, sale, or other realization upon Collateral), without the prior written consent of the DIP Agent, which consent may be withheld in the DIP Agent's sole discretion during the Standstill Period, and shall not be unreasonably withheld, conditioned, or delayed following the expiration of the Standstill Period.
Section 3.2 — Standstill Period
(a) The Pre-Petition Agent hereby agrees that, following written notice to the DIP Agent of the occurrence and continuation of any Event of Default under the Pre-Petition First Lien Credit Agreement (or any default or event of default under any document related thereto), the Pre-Petition Agent shall not exercise any remedy against the Collateral for a period of one hundred eighty (180) calendar days following the delivery of such written notice (the "Standstill Period"). During the Standstill Period, the Pre-Petition Agent shall refrain from: (i) seeking relief from the automatic stay of Section 362 of the Bankruptcy Code to enforce any lien on or security interest in the Collateral; (ii) commencing or joining in any action or proceeding to foreclose upon, execute against, or otherwise realize upon the Collateral; (iii) exercising any right of setoff against any deposit accounts or other assets of the Debtor; and (iv) taking any action that would directly or indirectly interfere with the DIP Agent's exercise of remedies with respect to the Collateral.
(b) The Standstill Period shall automatically terminate upon the earliest to occur of: (i) the acceleration of the DIP Obligations by the DIP Agent following an Event of Default under the DIP Credit Agreement; (ii) the termination of the DIP Facility in accordance with its terms; and (iii) the indefeasible payment in full in cash of all DIP Obligations.
(c) Permitted Actions During Standstill. Notwithstanding the foregoing, during the Standstill Period, the Pre-Petition Agent shall retain the right to: (i) file proofs of claim in the Chapter 11 Case (and any successor case); (ii) vote on any plan of reorganization proposed in the Chapter 11 Case; (iii) object to any motion, application, or other request filed in the Chapter 11 Case that is inconsistent with the Adequate Protection Stipulation or the adequate protection rights granted to the Pre-Petition Secured Lenders; and (iv) exercise any and all rights in the Bankruptcy Court that do not involve the direct enforcement of liens or security interests against the Collateral, including the right to appear and be heard on matters affecting the Pre-Petition First Lien Obligations.
Section 3.3 — DIP Agent Right to Initiate Enforcement
(a) The DIP Agent may exercise and enforce all rights and remedies with respect to the Collateral at any time following the occurrence and continuation of an Event of Default under the DIP Credit Agreement, subject to: (i) the automatic stay imposed by Section 362 of the Bankruptcy Code (to the extent such stay has not been modified, lifted, or terminated by the DIP Orders or by further order of the Bankruptcy Court); and (ii) the Carve-Out. The DIP Agent shall provide written notice to the Pre-Petition Agent of the commencement of any enforcement action promptly following the initiation thereof.
(b) The Pre-Petition Agent shall, and shall cause the Pre-Petition Secured Lenders to, cooperate with the DIP Agent in connection with any enforcement action, including by: (i) permitting access to Collateral records, files, and documentation in the possession or control of the Pre-Petition Agent; (ii) facilitating any sale, transfer, or other disposition of Collateral, including executing or delivering releases, termination statements, and other instruments reasonably requested by the DIP Agent; and (iii) refraining from any action that would impede, delay, or interfere with the DIP Agent's exercise of remedies. The DIP Agent shall reimburse the Pre-Petition Agent for reasonable, documented, out-of-pocket costs and expenses incurred by the Pre-Petition Agent in providing such cooperation, to the extent such costs and expenses are not otherwise reimbursable under the Pre-Petition First Lien Credit Agreement or the Adequate Protection Stipulation.
Section 3.4 — Limitation on Pre-Petition Agent Actions
Without the prior written consent of the DIP Agent (which consent shall not be unreasonably withheld, conditioned, or delayed following expiration of the Standstill Period), the Pre-Petition Agent shall not, and shall cause the Pre-Petition Secured Lenders not to:
(i) seek relief from the automatic stay of Section 362 of the Bankruptcy Code to foreclose on, execute against, or otherwise realize upon any Collateral;
(ii) seek to surcharge any Collateral under Section 506(c) of the Bankruptcy Code against the DIP Lenders, the DIP Agent, the Collateral Agent, or the DIP Liens;
(iii) object to any sale, transfer, lease, license, assignment, or other disposition of Collateral by the DIP Agent (or by the Debtor at the direction or with the consent of the DIP Agent) undertaken in accordance with the DIP Credit Agreement and the DIP Orders;
(iv) take any action, or support any other Person in taking any action, to interfere with, impede, delay, or prevent the DIP Agent's exercise of rights and remedies with respect to the Collateral; or
(v) seek to lift, modify, or terminate the automatic stay for the purpose of pursuing any direct enforcement action against the Collateral.
Nothing in this Section 3.4 shall limit or affect the Pre-Petition Agent's rights under Section 3.2(c) to exercise the specifically enumerated permitted actions during the Standstill Period.
Section 3.5 — Insurance Proceeds
(a) All casualty insurance proceeds, business interruption insurance proceeds, and condemnation awards received or receivable with respect to the Collateral (or any portion thereof) shall be deemed Proceeds of Common Collateral (or Proceeds of Unencumbered Collateral, as applicable) and shall be applied in accordance with the proceeds waterfall set forth in Article IV of this Agreement.
(b) Notwithstanding the foregoing, the Parties acknowledge that the directors' and officers' liability insurance policy issued by Stonebridge Insurance Group Ltd. (Policy No. SIG-DO-2024-07821), providing aggregate coverage of Fifteen Million Dollars ($15,000,000), is not Collateral, is not subject to any lien or security interest granted hereunder or under the DIP Documents or the Pre-Petition First Lien Credit Agreement, and is not subject to the terms of this Agreement. Nothing in this Agreement shall be construed to limit, impair, or otherwise affect the availability or application of proceeds under such directors' and officers' liability insurance policy.
ARTICLE IV — APPLICATION OF PROCEEDS; WATERFALL
Section 4.1 — Application of Proceeds from Common Collateral
All Proceeds of Common Collateral, whether received through enforcement, disposition, collection, casualty, condemnation, or otherwise, shall be applied by the Collateral Agent (or by the DIP Agent, if acting in lieu of the Collateral Agent) in the following order of priority:
(1) First: To the payment of all reasonable and documented costs, fees, and expenses of the DIP Agent and the Collateral Agent incurred in connection with the enforcement, collection, or realization upon the Collateral, including, without limitation, reasonable attorneys' fees and expenses of Harmon & Keach LLP, as counsel to the DIP Agent, and all other costs of sale, collection, or disposition;
(2) Second: To the payment of the Carve-Out, in the aggregate post-trigger amount of Three Million Dollars ($3,000,000), consisting of: (a) Two Million Five Hundred Thousand Dollars ($2,500,000) for professional fees and expenses of estate professionals retained by the Debtor or any official committee appointed in the Chapter 11 Case; and (b) Five Hundred Thousand Dollars ($500,000) for fees payable to the United States Trustee under 28 U.S.C. § 1930;
(3) Third: To the payment in full of all DIP Obligations, including, without limitation: (a) all outstanding principal amounts; (b) all accrued and unpaid interest at the applicable rate (SOFR plus 850 basis points per annum, or the default rate of SOFR plus 1,050 basis points per annum, as applicable); (c) the closing fee of Three Million Five Hundred Thousand Dollars ($3,500,000); (d) the exit fee of One Million Seven Hundred Fifty Thousand Dollars ($1,750,000); (e) all accrued and unpaid unused line fees at 0.50% per annum on undrawn amounts; (f) all indemnification obligations; and (g) all other fees, costs, expenses, and amounts owing under the DIP Credit Agreement and the related DIP Documents, until all DIP Obligations are indefeasibly paid in full in cash;
(4) Fourth: To the payment of all reasonable and documented costs, fees, and expenses of the Pre-Petition Agent incurred in connection with the Adequate Protection Liens, including reasonable attorneys' fees and expenses;
(5) Fifth: To the payment in full of all Pre-Petition First Lien Obligations, including: (a) all outstanding principal amounts (Three Hundred Ten Million Dollars ($310,000,000) under the First Lien Term Loan and the remaining drawn ABL Revolver amount of approximately Fifty-Two Million Three Hundred Thousand Dollars ($52,300,000) after giving effect to the Twenty Million Dollar ($20,000,000) ABL Roll-Up); (b) all accrued and unpaid interest at the applicable non-default contract rate (SOFR plus 450 basis points per annum for the First Lien Term Loan; SOFR plus 275 basis points per annum for the ABL Revolver); and (c) all fees, costs, expenses, and other amounts owing under the Pre-Petition First Lien Credit Agreement, until all Pre-Petition First Lien Obligations are indefeasibly paid in full in cash; and
(6) Sixth: Any surplus remaining after the indefeasible payment in full in cash of all amounts described in clauses (1) through (5) above shall be paid to the Debtor's estate, or as the Bankruptcy Court may otherwise direct by order entered in the Chapter 11 Case.
Section 4.2 — Application of Proceeds from Unencumbered Collateral
All Proceeds of Unencumbered Collateral (that is, assets not subject to Pre-Petition Liens as of the Petition Date, on which first-priority DIP Liens have been granted under Sections 364(c)(2) and 364(c)(3) of the Bankruptcy Code) shall be applied by the Collateral Agent (or by the DIP Agent, if acting in lieu of the Collateral Agent) in the following order of priority:
(1) First: To the payment of the Carve-Out (as described in Section 4.1(2));
(2) Second: To the payment in full of all DIP Obligations (as described in Section 4.1(3)); and
(3) Third: Any surplus remaining after the indefeasible payment in full in cash of all amounts described in clauses (1) and (2) above shall be paid to the Debtor's estate, or as the Bankruptcy Court may otherwise direct.
For the avoidance of doubt, the Pre-Petition Secured Lenders hold no liens on Unencumbered Collateral (other than Adequate Protection Liens, which are junior to DIP Liens), and accordingly, no Proceeds of Unencumbered Collateral shall be applied to the Pre-Petition First Lien Obligations unless and until all DIP Obligations have been indefeasibly paid in full in cash and the Bankruptcy Court otherwise directs.
Section 4.3 — Adequate Protection Payments
Current-pay interest at the applicable non-default contract rate (SOFR plus 450 basis points per annum for the First Lien Term Loan; SOFR plus 275 basis points per annum for the ABL Revolver) shall continue to be paid to the Pre-Petition Secured Lenders during the pendency of the Chapter 11 Case, in accordance with the terms of the Adequate Protection Stipulation and the DIP Orders. Such adequate protection payments shall be made as and when due under the Adequate Protection Stipulation, and the making of such payments shall not be subject to, and shall not diminish or reduce, the proceeds waterfall set forth in Section 4.1. The Parties acknowledge that adequate protection payments are not Proceeds of Common Collateral for purposes of this Article IV.
Section 4.4 — Turnover
(a) Pre-Petition Agent Turnover Obligation. If the Pre-Petition Agent or any Pre-Petition Secured Lender receives or obtains any Proceeds of Common Collateral or Proceeds of Unencumbered Collateral (other than adequate protection payments expressly permitted under the Adequate Protection Stipulation, the DIP Orders, and Section 4.3 of this Agreement), the Pre-Petition Agent shall hold such Proceeds in trust for the DIP Agent and shall promptly (and in any event within two (2) Business Days of receipt) turn over such Proceeds to the DIP Agent (or the Collateral Agent, as directed by the DIP Agent) for application in accordance with the proceeds waterfall set forth in Section 4.1 or Section 4.2, as applicable. Any Proceeds so received by the Pre-Petition Agent shall not be commingled with other funds or assets of the Pre-Petition Agent or any Pre-Petition Secured Lender.
(b) DIP Agent Turnover Obligation. If the DIP Agent or any DIP Lender receives or obtains any Proceeds of Common Collateral that are properly allocable to the Pre-Petition Liens after the indefeasible payment in full in cash of all DIP Obligations, the DIP Agent shall hold such excess Proceeds in trust for the Pre-Petition Agent and shall promptly (and in any event within two (2) Business Days of receipt) turn over such excess Proceeds to the Pre-Petition Agent for application in accordance with the Pre-Petition First Lien Credit Agreement. Any Proceeds so received by the DIP Agent shall not be commingled with other funds or assets of the DIP Agent or any DIP Lender.
Section 4.5 — §507(b) Claims
The §507(b) superpriority administrative expense claim granted to the Pre-Petition Secured Lenders as adequate protection is junior and subordinate in right, priority, and payment to the DIP Superpriority Claim under Section 364(c)(1) of the Bankruptcy Code. In the event that the §507(b) Claim and the DIP Superpriority Claim are both asserted against the Debtor's estate, the DIP Superpriority Claim shall be satisfied in full in cash before any distribution is made on account of the §507(b) Claim. Proceeds of Collateral shall be applied consistently with this subordination, and the Pre-Petition Agent shall not assert the §507(b) Claim in a manner that would diminish, impair, or delay any payment or distribution on account of the DIP Superpriority Claim.
ARTICLE V — REPRESENTATIONS AND WARRANTIES
Section 5.1 — DIP Agent Representations
The DIP Agent hereby represents and warrants to the Pre-Petition Agent as follows, as of the date hereof:
(a) Organization. The DIP Agent is a limited partnership duly organized, validly existing, and in good standing under the laws of the State of Delaware, and has full power and authority to own and hold its assets and to carry on its business as presently conducted.
(b) Authority. The DIP Agent has all requisite limited partnership power and authority to execute, deliver, and perform its obligations under this Agreement. The execution, delivery, and performance of this Agreement by the DIP Agent have been duly authorized by all necessary limited partnership action on the part of the DIP Agent and its general partner.
(c) Enforceability. This Agreement constitutes the legal, valid, and binding obligation of the DIP Agent, enforceable against the DIP Agent in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, and other similar laws affecting creditors' rights generally, and to general principles of equity (whether considered in a proceeding in equity or at law).
(d) DIP Credit Agreement. The DIP Credit Agreement has been duly executed and delivered by the DIP Agent and each DIP Lender and constitutes a valid and binding obligation of each such party thereto.
(e) DIP Liens. The DIP Liens have been or will be properly authorized by the DIP Orders, and upon entry of the Interim DIP Order (and the Final DIP Order), will constitute valid, binding, and enforceable liens and security interests in the DIP Collateral, with the priority described in Article II of this Agreement and in the DIP Orders.
(f) No Conflicts. The execution, delivery, and performance by the DIP Agent of this Agreement do not and will not conflict with, result in a breach of, or constitute a default under, any agreement, instrument, or document to which the DIP Agent is a party or by which it is bound.
Section 5.2 — Pre-Petition Agent Representations
The Pre-Petition Agent hereby represents and warrants to the DIP Agent as follows, as of the date hereof:
(a) Organization. The Pre-Petition Agent is a national banking association duly organized and validly existing under the laws of the United States, chartered by the Office of the Comptroller of the Currency (the "OCC"), and has full power and authority to own and hold its assets and to carry on its business as presently conducted.
(b) Authority. The Pre-Petition Agent has all requisite corporate power and authority to execute, deliver, and perform its obligations under this Agreement. The execution, delivery, and performance of this Agreement by the Pre-Petition Agent have been duly authorized by all necessary corporate action on the part of the Pre-Petition Agent.
(c) Enforceability. This Agreement constitutes the legal, valid, and binding obligation of the Pre-Petition Agent, enforceable against the Pre-Petition Agent in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, and other similar laws affecting creditors' rights generally, and to general principles of equity.
(d) Pre-Petition Credit Agreements. The First Lien Term Loan Credit Agreement and the ABL Revolver Agreement have been duly executed and delivered by the Pre-Petition Agent and each Pre-Petition Secured Lender and constitute valid and binding obligations of each such party thereto.
(e) Pre-Petition Liens. The Pre-Petition Liens were properly created, attached, and perfected prior to the Petition Date in accordance with applicable law, including the UCC as in effect in the States of Iowa, Illinois, and Arkansas, and in the applicable real property recording offices, and constitute valid, binding, and enforceable liens and security interests in the Pre-Petition Collateral.
(f) Agent Authority. The Pre-Petition Agent has the authority, pursuant to the terms of the First Lien Term Loan Credit Agreement and the ABL Revolver Agreement, to act on behalf of all Pre-Petition Secured Lenders (including the participating ABL lenders, Hawthorn National Bank and Northland Savings Bank, F.S.B.) in entering into this Agreement and in binding the Pre-Petition Secured Lenders to the terms and provisions hereof.