INTERCREDITOR AGREEMENT
dated as of March 28, 2025
among
CRESCENT HARBOR BANK, N.A., as First Lien Collateral Agent,
PINNACLE TRUST COMPANY, as Unsecured Notes Trustee,
and
NEXFORD INDUSTRIAL HOLDINGS INC., as Borrower
CUSIP Reference: 65432X AA1 LoanX ID: LX-234567
THIS INTERCREDITOR AGREEMENT (THIS "AGREEMENT") DOES NOT CONSTITUTE A RECOMMENDATION OF ANY SECURITIES BY THE PARTIES HERETO OR BY ANY OF THEIR RESPECTIVE AFFILIATES. THE CUSIP AND LOANX NUMBERS SET FORTH ABOVE HAVE BEEN INCLUDED SOLELY FOR THE CONVENIENCE OF THE PARTIES. NEITHER THE FIRST LIEN COLLATERAL AGENT NOR THE UNSECURED NOTES TRUSTEE SHALL BE RESPONSIBLE FOR THE SELECTION OR ACCURACY OF SUCH NUMBERS, NOR SHALL EITHER PARTY HAVE ANY REPRESENTATION, WARRANTY, OR OBLIGATION WITH RESPECT THERETO.
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INTERCREDITOR AGREEMENT
This INTERCREDITOR AGREEMENT (this "Agreement") is entered into as of March 28, 2025, among:
(1) CRESCENT HARBOR BANK, N.A., a national banking association organized and existing under the laws of the United States, with its principal office at 320 Federal Street, Boston, Massachusetts 02110 (in its capacity as collateral agent under the First Lien Credit Agreement (as defined below) for the benefit of the First Lien Secured Parties (as defined below), the "First Lien Collateral Agent");
(2) PINNACLE TRUST COMPANY, a New York trust company organized and existing under the laws of the State of New York, with its principal office at 101 Park Avenue, New York, New York 10178 (in its capacity as trustee under the Unsecured Notes Indenture (as defined below) for the benefit of the Unsecured Noteholders (as defined below), the "Unsecured Notes Trustee"); and
(3) NEXFORD INDUSTRIAL HOLDINGS INC., a corporation organized and existing under the laws of the State of Delaware (EIN: 36-4178552; Delaware File Number: 5765432), with its principal place of business at 1400 Industrial Parkway, Schaumburg, Illinois 60173 (the "Borrower").
Each of the First Lien Collateral Agent, the Unsecured Notes Trustee, and the Borrower is sometimes referred to herein individually as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, Nexford Industrial Holdings Inc. (the "Borrower"), the Guarantors party thereto, Crescent Harbor Bank, N.A., as Administrative Agent and Collateral Agent, Ironwood Capital Markets, LLC and Northvane Securities, Inc., as Joint Lead Arrangers and Joint Bookrunners, and the Lenders party thereto from time to time have entered into that certain Credit Agreement dated as of March 28, 2025 (as amended, restated, amended and restated, supplemented, or otherwise modified from time to time, the "First Lien Credit Agreement"), providing for, among other things, a senior secured term loan B facility in an aggregate principal amount of One Billion Four Hundred Million Dollars ($1,400,000,000) (the "Term Loan B Facility");
WHEREAS, the obligations of the Borrower and the Guarantors under the First Lien Credit Agreement and the other First Lien Loan Documents (as defined below) are secured by a first-priority security interest in substantially all of the assets of the Borrower and the Guarantors (subject to certain exceptions and exclusions set forth in the First Lien Loan Documents), including the personal property described in the Security Agreement and the real property described in the Mortgages (collectively, the "Collateral");
WHEREAS, the Borrower, the Guarantors party thereto, and Pinnacle Trust Company, as Trustee, are parties to that certain Indenture dated as of November 8, 2021 (as amended, restated, amended and restated, supplemented, or otherwise modified from time to time, the "Unsecured Notes Indenture"), governing the issuance of Two Hundred Fifty Million Dollars ($250,000,000) in aggregate principal amount of 7.250% Senior Unsecured Notes due 2028 (the "Unsecured Notes," and the holders thereof from time to time, the "Unsecured Noteholders");
WHEREAS, the Unsecured Notes are general unsecured senior obligations of the Borrower and are not secured by any lien on the Collateral or any other assets of the Borrower or the Guarantors;
WHEREAS, the Parties desire to set forth their respective agreement regarding the relative priorities and rights with respect to the Collateral, the proceeds of Enforcement Actions, distributions in Insolvency Proceedings, and related matters, in each case for the purpose of clarifying and confirming the rights of the First Lien Secured Parties as holders of secured obligations and the rights of the Unsecured Noteholders as holders of unsecured obligations;
WHEREAS, this Agreement is entered into pursuant to the requirements set forth in Section 9.18 of the First Lien Credit Agreement and Section 4.14 of the Unsecured Notes Indenture, and the Borrower is a party hereto to acknowledge and agree to the terms hereof and to confirm the consistency of the terms hereof with both the First Lien Credit Agreement and the Unsecured Notes Indenture; and
WHEREAS, it is the intention of the Parties that this Agreement set forth the definitive understanding among the First Lien Collateral Agent (acting for the benefit of the First Lien Secured Parties), the Unsecured Notes Trustee (acting for the benefit of the Unsecured Noteholders), and the Borrower with respect to the matters set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and agreements 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 1.01 — Definitions
As used in this Agreement, the following terms shall have the following meanings:
"Administrative Agent" means Crescent Harbor Bank, N.A., in its capacity as administrative agent under the First Lien Credit Agreement, together with its successors and assigns in such capacity.
"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.
"Borrower" means Nexford Industrial Holdings Inc., a Delaware corporation, and its successors and assigns.
"Collateral" means all assets of the Borrower and the Guarantors that are subject to liens under the First Lien Security Documents, as more particularly described in the Security Agreement dated as of March 28, 2025, the Pledge Agreements dated as of March 28, 2025, the intellectual Property Security Agreement dated as of March 28, 2025, the Deposit Account Control Agreements dated as of March 28, 2025, the Securities Account Control Agreements dated as of March 28, 2025, and the Mortgages (to be delivered post-closing), including substantially all personal property and all owned real property with a fair market value exceeding Ten Million Dollars ($10,000,000) as of the date of the delivery thereof (currently consisting of four Mortgaged Properties with an aggregate appraised value of One Hundred Ninety-Three Million Dollars ($193,000,000)). The Collateral is described in greater detail on Schedule 1 hereto.
"DIP Financing" means debtor-in-possession financing obtained by or on behalf of the Borrower or any other Loan Party in any Insolvency Proceeding, whether pursuant to Section 364 of the Bankruptcy Code or any comparable provision of any other applicable law.
"Discharge of First Lien Claims" means the occurrence of all of the following: (a) the payment in full in cash of all First Lien Claims (other than contingent indemnification obligations for which no claim has been asserted), (b) the termination or expiration of all commitments to extend credit under the First Lien Credit Agreement, (c) the cancellation, cash collateralization, or backstopping (in each case, in a manner satisfactory to the issuing bank) of all outstanding letters of credit issued under the First Lien Credit Agreement, and (d) the termination of all hedging obligations secured by the Collateral, if any.
"Enforcement Action" means any action to enforce, collect, or realize upon any lien on or security interest in the Collateral, including (a) any foreclosure or sale (whether judicial or non-judicial) of any Collateral, (b) any action to take possession or control of any Collateral, (c) any action to collect or otherwise realize upon any Collateral, (d) the exercise of any rights of set-off against any Collateral, (e) any action to commence or continue any legal proceeding against any Loan Party to the extent such proceeding seeks a judgment or remedy against or in respect of any Collateral, or (f) any other exercise of remedies against the Collateral under the Uniform Commercial Code, any real property law, or any other applicable law.
"First Lien Claims" means all obligations, liabilities, and indebtedness (including all principal, interest (including post-petition interest to the extent permitted by applicable law), premium, fees, costs, charges, expenses, reimbursement obligations, indemnities, and all other amounts) owing by the Loan Parties to the First Lien Secured Parties under or in connection with the First Lien Credit Agreement and the other First Lien Loan Documents, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising. As of the date hereof, the First Lien Claims include (without limitation) principal in an aggregate amount of One Billion Four Hundred Million Dollars ($1,400,000,000), bearing interest at the Adjusted Term SOFR Rate (with a SOFR floor of 0.75%) plus 400 basis points per annum, together with all fees, expenses, indemnities, and other amounts as provided in the First Lien Credit Agreement.
"First Lien Collateral Agent" means Crescent Harbor Bank, N.A., in its capacity as collateral agent under the First Lien Credit Agreement, together with its successors and assigns in such capacity.
"First Lien Credit Agreement" has the meaning set forth in the recitals to this Agreement.
"First Lien Loan Documents" means, collectively, the First Lien Credit Agreement, the Guarantee Agreement dated as of March 28, 2025, the Security Agreement dated as of March 28, 2025, the Holdings Pledge Agreement dated as of March 28, 2025, the Borrower Pledge Agreement dated as of March 28, 2025, the Subsidiary Pledge Agreements dated as of March 28, 2025, the CFC Holdco Limited Pledge Agreement dated as of March 28, 2025, the intellectual Property Security Agreement dated as of March 28, 2025, the Deposit Account Control Agreements dated as of March 28, 2025, the Securities Account Control Agreements dated as of March 28, 2025, the Intercompany Note dated as of March 28, 2025, and all Mortgages (to be delivered post-closing by April 30, 2025), in each case as amended, restated, supplemented, or otherwise modified from time to time. The First Lien Loan Documents are listed on Schedule 2 hereto.
"First Lien Secured Parties" means, collectively, the Administrative Agent, the First Lien Collateral Agent, and the Lenders party to the First Lien Credit Agreement from time to time, together with their respective successors and assigns.
"Guarantors" means, collectively, (a) Granite Peak NIH Holdings, LLC, a Delaware limited liability company (the "Holdings Guarantor" or "Holdings"), and (b) each of the following Subsidiary Guarantors: Nexford Precision Components, Inc.; Nexford Engineered Systems, LLC; Nexford Coatings & Surface Technologies, Inc.; Nexford Manufacturing Services, LLC; Nexford Properties, LLC; Nexford International Holdings, Inc.; Clearfield Tool & Die, Inc.; Summit Industrial Fabrication Co.; Ridgepoint Specialty Coatings, LLC; and Lakeshore Precision Engineering, Inc., together with any additional subsidiary that becomes a Guarantor after the date hereof pursuant to the First Lien Credit Agreement or the Unsecured Notes Indenture.
"Holdings" means Granite Peak NIH Holdings, LLC, a Delaware limited liability company, and its successors and assigns.
"Insolvency Proceeding" means (a) any voluntary or involuntary case or proceeding under the Bankruptcy Code or any comparable federal, state, or foreign law relating to bankruptcy, insolvency, receivership, reorganization, liquidation, winding-up, composition, or adjustment of debts, (b) any receivership, conservatorship, or similar proceeding, or (c) any proceeding for the appointment of a trustee, receiver, liquidator, custodian, sequestrator, or other similar official for any Loan Party or any substantial part of the assets of any Loan Party.
"Lien" means any mortgage, pledge, hypothecation, security interest, encumbrance, charge, assignment, deposit arrangement, or lien (statutory or otherwise) of any kind or nature whatsoever.
"Loan Parties" means the Borrower and the Guarantors, collectively, and "Loan Party" means any one of them.
"Mortgaged Properties" means the following owned real properties of the Loan Parties:
(i) 1400 Industrial Parkway, Schaumburg, Illinois 60173 (Cook County), owned by Nexford Properties, LLC, with an appraised value of Eighty-Five Million Dollars ($85,000,000);
(ii) 2750 Commerce Drive, Rockford, Illinois 61101 (Winnebago County), owned by Nexford Properties, LLC, with an appraised value of Forty-Two Million Dollars ($42,000,000);
(iii) 600 Manufacturers Row, Greenville, South Carolina 29607 (Greenville County), owned by Nexford Engineered Systems, LLC, with an appraised value of Thirty-Eight Million Dollars ($38,000,000); and
(iv) 9100 Westpark Industrial Boulevard, Houston, Texas 77063 (Harris County), owned by Nexford Manufacturing Services, LLC, with an appraised value of Twenty-Eight Million Dollars ($28,000,000).
The aggregate appraised value of the Mortgaged Properties as of the date hereof is One Hundred Ninety-Three Million Dollars ($193,000,000).
"Permitted Liens" has the meaning ascribed to such term in the First Lien Credit Agreement.
"Person" means any individual, corporation, limited liability company, partnership, joint venture, association, trust, unincorporated organization, governmental authority, or other entity of any kind.
"Proceeds" has the meaning ascribed to such term in the applicable UCC, and also includes all proceeds (as defined in the applicable UCC) of Collateral, including all cash and non-cash proceeds, insurance proceeds, and condemnation awards.
"Recovery" means any payment, distribution, recovery, or other realization in respect of the Collateral or Proceeds thereof, whether received in cash, in kind, by set-off, or otherwise.
"Required First Lien Lenders" has the meaning ascribed to such term in the First Lien Credit Agreement.
"Second Lien Intercreditor Agreement" means any intercreditor agreement that may be entered into in the future among the First Lien Collateral Agent (or its successor), a second lien collateral agent, the Borrower, and any other parties thereto, in connection with the incurrence by the Borrower or any Loan Party of second lien indebtedness as permitted under the First Lien Credit Agreement.
"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.
"Unsecured Claims" means all obligations, liabilities, and indebtedness (including all principal, interest, premium, if any, fees, costs, charges, expenses, and all other amounts) owing by the Loan Parties to the Unsecured Notes Trustee and the Unsecured Noteholders under or in connection with the Unsecured Notes Indenture and the Unsecured Notes, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising. As of the date hereof, the Unsecured Claims include (without limitation) principal in an aggregate amount of Two Hundred Fifty Million Dollars ($250,000,000), bearing interest at a rate of 7.250% per annum, together with all other amounts payable under the Unsecured Notes Indenture.
"Unsecured Noteholders" means the holders of the Unsecured Notes from time to time.
"Unsecured Notes" means the 7.250% Senior Unsecured Notes due 2028 issued under the Unsecured Notes Indenture, in an original aggregate principal amount of Two Hundred Fifty Million Dollars ($250,000,000), as such notes may be amended, restated, supplemented, or otherwise modified from time to time in accordance with the Unsecured Notes Indenture and this Agreement. The Unsecured Notes Documents are listed on Schedule 3 hereto.
"Unsecured Notes Indenture" has the meaning set forth in the recitals to this Agreement.
"Unsecured Notes Trustee" means Pinnacle Trust Company, in its capacity as trustee under the Unsecured Notes Indenture, together with its successors and assigns in such capacity.
Section 1.02 — Rules of Interpretation
Unless the context otherwise requires:
(a) Terms used but not defined in this Agreement shall have the meanings ascribed to such terms in the First Lien Credit Agreement as in effect on the date hereof (or, in the case of terms relating to the Unsecured Notes, in the Unsecured Notes Indenture as in effect on the date hereof).
(b) References to "Sections," "Articles," "Exhibits," and "Schedules" are to the Sections, Articles, Exhibits, and Schedules of this Agreement, unless otherwise specified.
(c) 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.
(d) The headings and table of contents contained in this Agreement are for convenience of reference only, shall not be deemed to be a part of this Agreement, and shall not affect the construction or interpretation of any provision hereof.
(e) The term "including" means "including without limitation" and shall not be construed to limit any general statement to the specific or similar items or matters immediately following such term.
(f) References to any Person include such Person's successors and permitted assigns.
(g) References to any agreement, instrument, or other document mean such agreement, instrument, or document as amended, restated, amended and restated, supplemented, or otherwise modified from time to time, unless otherwise expressly stated.
(h) References to any statute or regulation shall be deemed to refer to such statute or regulation as amended or modified from time to time and to any successor statute or regulation.
(i) This Agreement shall be interpreted and construed in accordance with the laws of the State of New York, as further provided in Section 10.01 hereof.
(j) In the computation of any period of time from a specified date to a later specified date, the word "from" means "from and including" and the words "to" and "until" each mean "to but excluding."
Section 1.03 — UCC Terms
Terms defined in the Uniform Commercial Code of the State of New York (including Articles 8 and 9 thereof) and used but not otherwise defined in this Agreement shall have the meanings set forth in the Uniform Commercial Code of the State of New York. To the extent that the definition of any term used herein is modified by the Uniform Commercial Code of any other applicable jurisdiction, as the context may require, the definition of such term shall be governed by the Uniform Commercial Code of the applicable jurisdiction.
ARTICLE II — PRIORITY OF CLAIMS; LIEN SUBORDINATION
Section 2.01 — Relative Priority of First Lien Claims and Unsecured Claims
(a) The Parties acknowledge and agree that the First Lien Claims are secured by first-priority liens on the Collateral pursuant to the First Lien Loan Documents. The Unsecured Claims are general unsecured senior obligations of the Loan Parties and are not secured by any lien on the Collateral or any other assets of the Borrower or the Guarantors.
(b) In the event of any Enforcement Action, Insolvency Proceeding, or any other distribution of, or realization upon, the Collateral or Proceeds thereof (whether by voluntary disposition, foreclosure, judicial sale, collection, set-off, or otherwise), the First Lien Claims shall be satisfied in full in cash (including all principal, accrued and unpaid interest (including post-petition interest to the extent permitted by applicable law), premium, if any, fees, costs, expenses, indemnities, and all other amounts constituting First Lien Claims) before any Recovery from the Collateral or Proceeds thereof is applied, distributed, or made available for application to the Unsecured Claims. Until the Discharge of First Lien Claims has occurred, any Recovery from the Collateral or Proceeds thereof shall be applied exclusively to the First Lien Claims in accordance with the waterfall set forth in Section 3.04 hereof.
(c) For the avoidance of doubt, the Unsecured Claims are general unsecured obligations of the Loan Parties and have no lien on, or security interest in, any of the Collateral whatsoever. Nothing in this Agreement shall be construed to create, grant, or convey any lien on or security interest in the Collateral or any other property in favor of the Unsecured Notes Trustee or any Unsecured Noteholder.
Section 2.02 — Nature of Unsecured Claims
(a) The Unsecured Notes Trustee, on behalf of itself and each Unsecured Noteholder, hereby acknowledges and agrees that the Unsecured Claims are unsecured obligations of the Loan Parties and that neither the Unsecured Notes Trustee nor any Unsecured Noteholder has any lien on or security interest in any of the Collateral. The Unsecured Notes Trustee further acknowledges and agrees that the Unsecured Notes were issued, and are outstanding, as general unsecured senior obligations of the Borrower and that the Unsecured Notes Indenture does not grant any lien on or security interest in any assets of the Borrower or any Guarantor.
(b) Nothing in this Agreement shall be construed to grant the Unsecured Notes Trustee or any Unsecured Noteholder any lien on or security interest in the Collateral or any other assets of the Loan Parties. The Parties acknowledge that the rights of the Unsecured Notes Trustee and the Unsecured Noteholders with respect to the Collateral are limited to the rights expressly set forth in this Agreement.
Section 2.03 — Prohibition on Contesting Liens
(a) The Unsecured Notes Trustee, on behalf of itself and each Unsecured Noteholder, agrees that it shall not (and hereby waives any right to) contest, challenge, object to, or raise any defense to the validity, priority, enforceability, perfection, or non-avoidability of any lien on the Collateral securing the First Lien Claims, whether in any Insolvency Proceeding or otherwise. Without limiting the generality of the foregoing, the Unsecured Notes Trustee and each Unsecured Noteholder shall not assert or support any claim or contention that any lien securing the First Lien Claims is not valid, is not enforceable, is not properly perfected, is avoidable under any provision of the Bankruptcy Code (including Sections 544, 545, 547, 548, 549, 550, or 553 thereof) or any comparable provision of applicable state or foreign law, or is subject to recharacterization, subordination (equitable or otherwise), or disallowance.
(b) The First Lien Collateral Agent, on behalf of itself and each First Lien Secured Party, agrees that it shall not contest the validity or enforceability of the Unsecured Claims as general unsecured obligations of the Loan Parties. For the avoidance of doubt, nothing in this Section 2.03(b) shall limit the rights of any First Lien Secured Party to assert defenses, counterclaims, or other rights against the Unsecured Notes Trustee or the Unsecured Noteholders in connection with any dispute as to the amount, priority, or treatment of Unsecured Claims in an Insolvency Proceeding or otherwise.
Section 2.04 — No New Liens
(a) The Unsecured Notes Trustee, on behalf of itself and each Unsecured Noteholder, agrees that neither the Unsecured Notes Trustee nor any Unsecured Noteholder shall acquire, accept, hold, or obtain any lien on the Collateral or any other assets of the Loan Parties, whether by contract, operation of law, judicial process, or otherwise. If any such lien is nonetheless acquired, accepted, held, or obtained, the Unsecured Notes Trustee or such Unsecured Noteholder shall promptly take all actions necessary to release, discharge, and terminate such lien.
(b) Notwithstanding the foregoing, the provisions of this Section 2.04 shall not prohibit the Unsecured Notes Trustee or any Unsecured Noteholder from acquiring or holding liens on the Collateral in connection with any future second lien indebtedness incurred in accordance with the terms of the First Lien Credit Agreement and the Unsecured Notes Indenture; provided that any such second lien indebtedness shall be governed by a separate Second Lien Intercreditor Agreement entered into by the First Lien Collateral Agent, the second lien collateral agent, the Borrower, and any other parties thereto, and such Second Lien Intercreditor Agreement shall establish the relative priority of the first lien and second lien obligations with respect to the Collateral.
ARTICLE III — ENFORCEMENT OF COLLATERAL
Section 3.01 — Exclusive Enforcement Rights of First Lien Collateral Agent
(a) The Parties acknowledge and agree that, until the Discharge of First Lien Claims has occurred, only the First Lien Collateral Agent (acting at the direction of the Required First Lien Lenders in accordance with the First Lien Credit Agreement) shall have the right to take any Enforcement Action with respect to the Collateral. The First Lien Collateral Agent shall have the exclusive right to manage, perform, and enforce the terms of the First Lien Security Documents with respect to the Collateral, to exercise and enforce all privileges, rights, and remedies thereunder, and to collect and receive all Recoveries from the Collateral and Proceeds thereof.
(b) The Unsecured Notes Trustee, on behalf of itself and each Unsecured Noteholder, agrees that it shall not take, or cause to be taken, any Enforcement Action with respect to the Collateral, including:
(i) initiating, joining, or supporting any foreclosure, sale, or other disposition of any Collateral;
(ii) commencing or continuing any legal proceeding against any Loan Party to the extent such proceeding seeks a judgment, remedy, or recovery against, from, or in respect of any Collateral;
(iii) exercising any right of set-off against any Collateral, including any deposit accounts or securities accounts constituting Collateral;
(iv) taking possession or control of any Collateral; or
(v) otherwise enforcing, collecting, or realizing upon any lien on or security interest in any Collateral.
(c) Notwithstanding anything to the contrary in this Section 3.01, the Unsecured Notes Trustee (on behalf of itself and the Unsecured Noteholders) retains the right to:
(i) file proofs of claim or statements of interest in any Insolvency Proceeding to preserve and protect the Unsecured Claims as unsecured obligations;
(ii) vote on any plan of reorganization or other restructuring proposal in any Insolvency Proceeding (subject to Section 4.05 hereof); and
(iii) otherwise participate in any Insolvency Proceeding to the extent necessary to preserve and protect the Unsecured Claims as unsecured obligations, in each case in accordance with applicable law and the terms of this Agreement.
Section 3.02 — Standstill on Unsecured Claims Enforcement
(a) The Unsecured Notes Trustee, on behalf of itself and each Unsecured Noteholder, agrees that, for so long as the First Lien Claims remain outstanding (i.e., until the Discharge of First Lien Claims has occurred), it shall not commence or pursue any Enforcement Action against the Collateral, regardless of whether the First Lien Collateral Agent is then exercising any rights or remedies with respect to the Collateral.
(b) The standstill set forth in this Section 3.02(a) shall remain in effect at all times so long as any First Lien Claims remain outstanding, whether or not the First Lien Collateral Agent is then diligently pursuing remedies with respect to the Collateral. For the avoidance of doubt, the Unsecured Notes Trustee shall not be entitled to take any Enforcement Action against the Collateral during any period when the First Lien Collateral Agent has elected not to exercise remedies with respect to the Collateral or has delayed or suspended the exercise of such remedies.
(c) Notwithstanding the foregoing, nothing in this Section 3.02 shall affect or limit the Unsecured Notes Trustee's right or ability to:
(i) accelerate the Unsecured Notes or declare a default or an event of default under the Unsecured Notes Indenture in accordance with the terms thereof;
(ii) bring an action for a money judgment against any Loan Party on account of the Unsecured Claims (provided that the Unsecured Notes Trustee shall not levy on, attach, garnish, or otherwise enforce any such judgment against any Collateral until the Discharge of First Lien Claims has occurred);
(iii) exercise any rights or remedies against any assets of the Loan Parties that do not constitute Collateral; or
(iv) take any other action with respect to the Unsecured Claims that does not constitute an Enforcement Action against the Collateral.
Section 3.03 — Reinstatement
If, at any time after the Discharge of First Lien Claims has occurred, any Recovery previously applied to the First Lien Claims is subsequently required to be returned, disgorged, or repaid by any First Lien Secured Party (whether by reason of the avoidance of such Recovery as a voidable preference under Section 547 of the Bankruptcy Code, as a fraudulent transfer under Section 548 of the Bankruptcy Code, or otherwise), the relative priorities and other provisions of this Agreement shall be reinstated and shall be in full force and effect as though such Recovery had not been made. In such event, the Unsecured Notes Trustee and each Unsecured Noteholder shall promptly return to the First Lien Collateral Agent any Recovery from the Collateral or Proceeds thereof that was received by the Unsecured Notes Trustee or such Unsecured Noteholder after the purported Discharge of First Lien Claims and that would not have been received but for such purported Discharge. The provisions of this Section 3.03 shall survive the termination of this Agreement.
Section 3.04 — Application of Proceeds
All Proceeds of Collateral received by any Person in connection with any Enforcement Action, Insolvency Proceeding, or other disposition or realization upon the Collateral shall be applied in the following order of priority:
First, to the payment of all costs, expenses, fees, and indemnities of the First Lien Collateral Agent (including reasonable attorneys' fees, consultants' fees, appraisers' fees, and other out-of-pocket costs and expenses) incurred in connection with the enforcement, collection, or realization upon the Collateral or the administration of the First Lien Security Documents;
Second, to the payment in full in cash of all First Lien Claims (including all outstanding principal, accrued and unpaid interest (including post-petition interest to the extent permitted by applicable law and default rate interest), premium, if any, all fees, all expenses, all indemnification obligations, and all other amounts constituting First Lien Claims), in such order and manner as provided in the First Lien Credit Agreement;
Third, after the Discharge of First Lien Claims has occurred, to the payment of the Unsecured Claims in accordance with the terms of the Unsecured Notes Indenture, including payment to the Unsecured Notes Trustee for distribution to the Unsecured Noteholders in such order and manner as provided in the Unsecured Notes Indenture (or to such other Person or Persons as may be entitled to such Proceeds under applicable law); and
Fourth, after payment in full in cash of all First Lien Claims and all Unsecured Claims, any remaining surplus shall be paid to the Borrower, or as a court of competent jurisdiction may otherwise direct.
Section 3.05 — Turnover of Collateral Proceeds
(a) If the Unsecured Notes Trustee or any Unsecured Noteholder receives any Recovery from the Collateral or Proceeds thereof at any time prior to the Discharge of First Lien Claims (whether by payment, distribution, set-off, or otherwise), in contravention of the terms of this Agreement, the Unsecured Notes Trustee or such Unsecured Noteholder, as applicable, shall:
(i) hold such Recovery in trust for the benefit of the First Lien Collateral Agent and the First Lien Secured Parties;
(ii) segregate such Recovery from all other funds and property of the Unsecured Notes Trustee or such Unsecured Noteholder;
(iii) not commingle such Recovery with any other funds or property; and
(iv) promptly (and in any event within five (5) Business Days of receipt thereof) turn over and deliver such Recovery, in the form received (with any necessary endorsements or assignments), to the First Lien Collateral Agent for application in accordance with Section 3.04 hereof.
(b) The First Lien Collateral Agent is hereby authorized to make any endorsements or assignments necessary to effectuate the turnover and delivery of any such Recovery. The Unsecured Notes Trustee and each Unsecured Noteholder hereby irrevocably appoint the First Lien Collateral Agent as attorney-in-fact, with full power of substitution, for the limited purpose of endorsing or assigning any instruments, documents, or other items representing such Recovery to the First Lien Collateral Agent.
ARTICLE IV — INSOLVENCY PROCEEDINGS
Section 4.01 — General Provisions in Insolvency
(a) The provisions of this Agreement shall continue in full force and effect notwithstanding the commencement of any Insolvency Proceeding by or against the Borrower or any other Loan Party. The relative rights and priorities established in this Agreement shall not be altered, modified, or affected in any way by the commencement of any such Insolvency Proceeding, and all references herein to the Borrower or any Loan Party shall include such Person as a debtor-in-possession and any trustee, receiver, conservator, liquidator, or similar official appointed for or in respect of such Person or its assets.
(b) This Agreement is a "subordination agreement" within the meaning of Section 510(a) of the Bankruptcy Code and shall be enforceable in any Insolvency Proceeding in accordance with its terms. The Parties agree that the provisions of this Agreement are intended to be and shall be enforceable under applicable non-bankruptcy law and, to the extent applicable, under Sections 510(a), 1129(b), and other relevant provisions of the Bankruptcy Code.
Section 4.02 — DIP Financing
(a) The Unsecured Notes Trustee, on behalf of itself and each Unsecured Noteholder, agrees that, in any Insolvency Proceeding involving the Borrower or any other Loan Party, it shall not object to (and hereby consents to) any DIP Financing or any motion for the use of cash collateral (as defined in Section 363(a) of the Bankruptcy Code) filed by the Borrower or any Loan Party (or any trustee appointed in respect of the Borrower or any Loan Party) if such DIP Financing or use of cash collateral has been consented to by the First Lien Collateral Agent (acting at the direction of the Required First Lien Lenders); provided, however, that such DIP Financing does not require the Unsecured Noteholders to be subordinated in right of payment with respect to their Unsecured Claims (as opposed to subordination of lien priority with respect to the Collateral, which is contemplated by this Agreement and to which the Unsecured Notes Trustee consents). For the avoidance of doubt, the Unsecured Notes Trustee acknowledges that any DIP Financing may be secured by liens on the Collateral that are senior to, junior to, or pari passu with the liens securing the First Lien Claims, and the Unsecured Notes Trustee shall not object to the granting of such liens.
(b) The Unsecured Notes Trustee, on behalf of itself and each Unsecured Noteholder, shall not request, accept, or receive any adequate protection with respect to the Collateral in any Insolvency Proceeding that would be senior to or pari passu with the liens securing the First Lien Claims (or any DIP Financing consented to by the First Lien Collateral Agent), unless the First Lien Secured Parties have been granted adequate protection in a manner satisfactory to the First Lien Collateral Agent (acting at the direction of the Required First Lien Lenders). The Unsecured Notes Trustee acknowledges that, as the holder of unsecured claims, neither the Unsecured Notes Trustee nor any Unsecured Noteholder is entitled to adequate protection of any interest in the Collateral.
Section 4.03 — Relief from Stay
(a) The Unsecured Notes Trustee, on behalf of itself and each Unsecured Noteholder, agrees that it shall not seek, request, or cause to be sought or requested, relief from the automatic stay under Section 362 of the Bankruptcy Code (or any comparable stay, injunction, or other restraining order under applicable law) with respect to the Collateral without the prior written consent of the First Lien Collateral Agent. The Unsecured Notes Trustee acknowledges that the First Lien Collateral Agent is the only party with standing to seek relief from stay with respect to the Collateral.
(b) If the First Lien Collateral Agent seeks relief from the automatic stay or any other stay of proceedings with respect to any Collateral, the Unsecured Notes Trustee agrees that it shall not oppose, contest, or otherwise interfere with such request, and the Unsecured Notes Trustee hereby consents to any such relief from stay sought by the First Lien Collateral Agent.
(c) Nothing in this Section 4.03 shall prevent the Unsecured Notes Trustee from seeking relief from the automatic stay with respect to assets that do not constitute Collateral.
Section 4.04 — Asset Sales in Insolvency
(a) The Unsecured Notes Trustee, on behalf of itself and each Unsecured Noteholder, agrees that it shall not object to any sale, transfer, or other disposition of any Collateral under Section 363 of the Bankruptcy Code (or any comparable provision of applicable law) if such sale, transfer, or disposition has been consented to by the First Lien Collateral Agent (acting at the direction of the Required First Lien Lenders); provided that (i) the liens of the First Lien Secured Parties attach to the proceeds of such sale, transfer, or disposition with the same priority, validity, and enforceability as such liens had with respect to the Collateral sold, transferred, or disposed of, and (ii) the proceeds of such sale are applied in accordance with Section 3.04 hereof, such that the priority provisions of this Agreement are preserved in all respects.
(b) The Unsecured Notes Trustee and each Unsecured Noteholder acknowledge that neither the Unsecured Notes Trustee nor any Unsecured Noteholder has any right to credit bid on any Collateral in any sale under Section 363 of the Bankruptcy Code (or under any plan of reorganization or otherwise) unless and until the First Lien Claims have been satisfied in full in cash and the Discharge of First Lien Claims has occurred. Following the Discharge of First Lien Claims, the Unsecured Notes Trustee and the Unsecured Noteholders may exercise any credit bid rights to the extent permitted under applicable law.
Section 4.05 — Plans of Reorganization
(a) The Unsecured Notes Trustee, on behalf of itself and each Unsecured Noteholder, agrees that it shall not oppose, object to, or vote against any plan of reorganization, liquidation, or adjustment that has been accepted or supported by the First Lien Collateral Agent (acting at the direction of the Required First Lien Lenders) solely on the basis of the treatment of liens on the Collateral under such plan; provided that such plan preserves the priority of the First Lien Claims with respect to the Collateral in a manner consistent with the terms of this Agreement. The foregoing shall not limit the Unsecured Notes Trustee's right to object to any plan on any other basis.
(b) Notwithstanding anything to the contrary in this Section 4.05, nothing herein shall limit the right of the Unsecured Notes Trustee or any Unsecured Noteholder to:
(i) vote on any plan of reorganization in the class or classes in which the Unsecured Claims are classified;
(ii) seek, propose, or support any treatment of the Unsecured Claims as unsecured claims under any plan of reorganization, including distributions from unencumbered assets, equity interests in the reorganized debtor, or other consideration in respect of the Unsecured Claims;
(iii) object to any plan to the extent that such plan does not provide for the treatment of the Unsecured Claims in accordance with the Bankruptcy Code; or
(iv) propose or support an alternative plan of reorganization, subject to the Unsecured Notes Trustee's obligations under this Agreement with respect to the Collateral.
Section 4.06 — Avoidance Actions
The Unsecured Notes Trustee, on behalf of itself and each Unsecured Noteholder, agrees that it shall not assert, support, or otherwise participate in any claim, action, or proceeding seeking to avoid, invalidate, recharacterize, subordinate (whether equitable or otherwise), or otherwise challenge the liens securing the First Lien Claims under Section 544, 545, 547, 548, 549, 550, 551, 553, or any other provision of the Bankruptcy Code or under any comparable provision of applicable state or foreign law. The Unsecured Notes Trustee and each Unsecured Noteholder further agree that they shall not join in or support any other party in bringing any such claim, action, or proceeding.
Section 4.07 — Post-Petition Interest
The Unsecured Notes Trustee, on behalf of itself and each Unsecured Noteholder, acknowledges and agrees that, in any Insolvency Proceeding, the First Lien Secured Parties are entitled to receive post-petition interest on the First Lien Claims (including interest at the default rate, which is 200 basis points (2.00%) per annum above the otherwise applicable rate under the First Lien Credit Agreement) to the extent of the value of the Collateral in accordance with Section 506(b) of the Bankruptcy Code. The Unsecured Notes Trustee shall not object to, oppose, or otherwise challenge any claim by the First Lien Secured Parties for such post-petition interest, fees, costs, or charges to the extent of the value of the Collateral. For the avoidance of doubt, the foregoing shall not limit the rights of the Unsecured Notes Trustee to object to any claim for post-petition interest to the extent that such claim exceeds the value of the Collateral.
ARTICLE V — WAIVERS AND AGREEMENTS
Section 5.01 — Waivers by the Unsecured Notes Trustee
The Unsecured Notes Trustee, on behalf of itself and each Unsecured Noteholder, hereby irrevocably waives:
(a) Waiver of marshaling. Any right to assert the doctrine of marshaling with respect to the Collateral. The Unsecured Notes Trustee agrees that the First Lien Collateral Agent shall have no obligation to marshal any particular Collateral for the benefit of the Unsecured Notes Trustee or any Unsecured Noteholder, and the First Lien Collateral Agent may apply, or direct the application of, any Collateral or Proceeds thereof in any order and in any manner that the First Lien Collateral Agent (acting at the direction of the Required First Lien Lenders) determines in its discretion.
(b) Waiver of Right to Require Enforcement in Particular Order. Any right to require the First Lien Collateral Agent to marshal, sequence, or enforce the liens on the Collateral in any particular order, against any particular Collateral, or in any particular manner. The First Lien Collateral Agent may exercise its remedies against the Collateral in any order, at any time, and in any manner it deems appropriate, without regard to the existence, value, or condition of any particular item of Collateral or to any claim or interest of the Unsecured Notes Trustee or any Unsecured Noteholder.
(c) Waiver of Right to Direct Enforcement. Any right to direct the time, manner, method, or place of exercising any remedy with respect to the Collateral. The Unsecured Notes Trustee acknowledges that the First Lien Collateral Agent (acting at the direction of the Required First Lien Lenders) has the exclusive right to determine the time, manner, method, and place of all Enforcement Actions with respect to the Collateral, and the Unsecured Notes Trustee shall have no right to participate in, direct, or control any such determination.
(d) Waiver of Subrogation. To the fullest extent permitted by applicable law, any right of subrogation that the Unsecured Notes Trustee or any Unsecured Noteholder may have to the liens of the First Lien Secured Parties until the Discharge of First Lien Claims has occurred.
Section 5.02 — Agreements Regarding Collateral Release
(a) If the First Lien Collateral Agent releases (or agrees to release) any lien on any Collateral in connection with a sale, transfer, or other disposition of such Collateral that is permitted under the terms of the First Lien Credit Agreement, the Unsecured Notes Trustee shall be deemed to have consented to such release (to the extent of any inchoate, future, or other interest that the Unsecured Notes Trustee or any Unsecured Noteholder may have in such Collateral). The Unsecured Notes Trustee shall, upon the reasonable request of the First Lien Collateral Agent or the Borrower, promptly execute and deliver such instruments, documents, and agreements as may be reasonably necessary to evidence or confirm such release.
(b) All proceeds of any permitted disposition of Collateral shall be applied in accordance with the terms of the First Lien Credit Agreement, including the mandatory prepayment provisions set forth therein. The Parties acknowledge that, under the First Lien Credit Agreement as in effect on the date hereof, the Borrower is required to apply one hundred percent (100%) of the net cash proceeds from asset sales (subject to (i) a reinvestment right of three hundred sixty-five (365) days from the date of receipt of such net cash proceeds, extendable to five hundred forty-five (545) days if the Borrower has entered into a binding commitment to reinvest such proceeds within the initial 365-day period, and (ii) an annual de minimis basket of Twenty-Five Million Dollars ($25,000,000)) to the mandatory prepayment of the Term Loan B Facility.
Section 5.03 — Acknowledgment of Separate Obligations
(a) The Unsecured Notes Trustee acknowledges and agrees that the First Lien Claims and the Unsecured Claims are separate and distinct obligations of the Loan Parties. The First Lien Claims arise under the First Lien Credit Agreement and the other First Lien Loan Documents, and the Unsecured Claims arise under the Unsecured Notes Indenture and the Unsecured Notes. Nothing in this Agreement is intended to create, or shall be construed as creating, any joint obligation, cross-default, or cross-collateralization between the First Lien Claims and the Unsecured Claims.
(b) Nothing in this Agreement shall impair, limit, or otherwise affect the right of any holder of Unsecured Notes to receive payment in full of the Unsecured Claims from sources other than the Collateral, including from (i) unencumbered assets of the Loan Parties, (ii) distributions from unencumbered assets in an Insolvency Proceeding to the extent of available unencumbered assets, (iii) payments from sources other than the Loan Parties, or (iv) any other source that does not involve a Recovery from the Collateral or Proceeds thereof. The provisions of this Agreement relate solely to the relative rights and priorities of the First Lien Secured Parties and the Unsecured Noteholders with respect to the Collateral and do not otherwise affect the rights of any party hereto or any holder of Unsecured Notes.
ARTICLE VI — AMENDMENTS TO FIRST LIEN CREDIT AGREEMENT AND UNSECURED NOTES INDENTURE
Section 6.01 — Permitted Amendments — First Lien Credit Agreement
(a) The First Lien Credit Agreement and the other First Lien Loan Documents may be amended, restated, amended and restated, supplemented, refinanced, replaced, or otherwise modified from time to time without notice to or consent of the Unsecured Notes Trustee or any Unsecured Noteholder, and without affecting the rights and obligations set forth in this Agreement. Without limiting the generality of the foregoing:
(i) The aggregate principal amount of first lien indebtedness outstanding under the First Lien Credit Agreement (or any replacement or refinancing thereof) may be increased from time to time, including through the incurrence of incremental term loans or incremental revolving commitments, in an amount up to the greater of (A) Two Hundred Eighty Million Dollars ($280,000,000) and (B) one hundred percent (100%) of Last Twelve Months ("LTM") Adjusted EBITDA of the Borrower and its restricted subsidiaries (as a "free-and-clear" basket), plus unlimited additional amounts subject to pro forma compliance with a first lien net leverage ratio not to exceed 4.50 to 1.00 (the "Ratio-Based Incremental Amount"), without the consent of the Unsecured Notes Trustee or any Unsecured Noteholder. Any such incremental first lien indebtedness shall constitute First Lien Claims for purposes of this Agreement and shall be entitled to the benefits hereof.
(ii) The interest rate (including the applicable margin, benchmark rate, floor, and any default rate), maturity date, amortization schedule, prepayment provisions, covenants, events of default, and other terms of the First Lien Credit Agreement may be amended, modified, or waived from time to time without notice to or consent of the Unsecured Notes Trustee or any Unsecured Noteholder.
(iii) The Collateral may be supplemented, modified, released, or otherwise changed in accordance with the terms of the First Lien Loan Documents, including the addition of new collateral and the release of existing collateral in connection with permitted transactions, without the consent of the Unsecured Notes Trustee or any Unsecured Noteholder.
(iv) Any replacement or refinancing administrative agent or collateral agent under a replacement or refinancing First Lien Credit Agreement shall become the "Administrative Agent" and/or "First Lien Collateral Agent" hereunder upon execution and delivery of a joinder or acknowledgment in substantially the form attached hereto as Exhibit A (or in such other form as may be reasonably satisfactory to the Parties).
(b) For the avoidance of doubt, no consent or approval of the Unsecured Notes Trustee or any Unsecured Noteholder shall be required in connection with any refinancing, replacement, extension, renewal, or modification of the First Lien Credit Agreement or any other First Lien Loan Document.
Section 6.02 — Permitted Amendments — Unsecured Notes Indenture
(a) The Unsecured Notes Indenture and the Unsecured Notes may be amended, restated, amended and restated, supplemented, refinanced, replaced, or otherwise modified from time to time without the consent of the First Lien Collateral Agent or any First Lien Secured Party; provided that no such amendment, restatement, supplement, refinancing, replacement, or modification shall grant any lien on the Collateral (or any other assets of the Loan Parties) to the Unsecured Notes Trustee or any Unsecured Noteholder (other than through a separate Second Lien Intercreditor Agreement as contemplated by the First Lien Credit Agreement and Section 9.01 of this Agreement).
(b) For the avoidance of doubt, the Unsecured Notes Indenture may be amended to increase the aggregate principal amount of Unsecured Notes outstanding, modify the interest rate, extend or shorten the maturity, add or remove covenants, or otherwise modify the terms of the Unsecured Notes, in each case without the consent of the First Lien Collateral Agent or any First Lien Secured Party, so long as such amendment does not grant any lien on the Collateral in violation of Section 6.02(a).
Section 6.03 — Refinancing
(a) In the event of any refinancing of all or any portion of the First Lien Claims (whether through a new credit agreement, an amendment and restatement of the existing First Lien Credit Agreement, or otherwise), the holders of the refinancing first lien indebtedness (and their administrative agent and collateral agent) shall be entitled to the benefits of this Agreement upon execution and delivery by such collateral agent of a joinder agreement in substantially the form attached hereto as Exhibit A, at which point such collateral agent shall become the "First Lien Collateral Agent" hereunder and such refinancing indebtedness shall constitute "First Lien Claims" hereunder. No consent of the Unsecured Notes Trustee or any Unsecured Noteholder shall be required in connection with any such refinancing or joinder.
(b) In the event of any refinancing of all or any portion of the Unsecured Claims (whether through a new indenture, an exchange offer, an amendment and restatement of the existing Unsecured Notes Indenture, or otherwise), the holders of the refinancing unsecured indebtedness (and their trustee or agent) shall be bound by the terms of this Agreement upon execution and delivery by such trustee or agent of a joinder agreement in substantially the form attached hereto as Exhibit A, at which point such trustee or agent shall become the "Unsecured Notes Trustee" hereunder and such refinancing indebtedness shall constitute "Unsecured Claims" hereunder.
ARTICLE VII — REPRESENTATIONS AND ACKNOWLEDGMENTS
Section 7.01 — Representations of the First Lien Collateral Agent
Crescent Harbor Bank, N.A., in its capacity as First Lien Collateral Agent, represents and warrants to the other Parties that:
(a) It has been duly and validly appointed as collateral agent under the First Lien Credit Agreement and has full power, authority, and legal right to execute, deliver, and perform this Agreement in its capacity as First Lien Collateral Agent.
(b) The execution and delivery of this Agreement by the First Lien Collateral Agent has been duly authorized by the First Lien Credit Agreement and does not require the separate vote, consent, or approval of any Lender or any other First Lien Secured Party (other than any authorization or direction provided by the Required First Lien Lenders as contemplated by the First Lien Credit Agreement).
(c) This Agreement constitutes the legal, valid, and binding obligation of the First Lien Collateral Agent, enforceable against the First Lien Collateral 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.
Section 7.02 — Representations of the Unsecured Notes Trustee
Pinnacle Trust Company, in its capacity as Unsecured Notes Trustee, represents and warrants to the other Parties that:
(a) It has been duly and validly appointed as trustee under the Unsecured Notes Indenture and has full power, authority, and legal right to execute, deliver, and perform this Agreement in its capacity as Unsecured Notes Trustee.
(b) The execution and delivery of this Agreement by the Unsecured Notes Trustee is authorized under and in accordance with the terms of the Unsecured Notes Indenture, and the Unsecured Notes Trustee is authorized to execute and deliver this Agreement and to bind the Unsecured Noteholders to the terms hereof.
(c) This Agreement constitutes the legal, valid, and binding obligation of the Unsecured Notes Trustee, enforceable against the Unsecured Notes Trustee 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.
Section 7.03 — Representations and Acknowledgments of the Borrower
Nexford Industrial Holdings Inc., as Borrower, represents, warrants, acknowledges, and agrees as follows:
(a) The Borrower acknowledges and agrees to all of the provisions of this Agreement and confirms that the terms and conditions set forth herein are consistent with the requirements and provisions of the First Lien Credit Agreement and the Unsecured Notes Indenture.
(b) The Borrower confirms that the Unsecured Notes (Two Hundred Fifty Million Dollars ($250,000,000) in aggregate principal amount of 7.250% Senior Unsecured Notes due 2028 issued under the Unsecured Notes Indenture) are not secured by any lien on the Collateral or any other assets of the Borrower or any Guarantor, and that the Unsecured Notes constitute general unsecured senior obligations of the Borrower.
(c) The Borrower represents that the board of directors of Nexford Industrial Holdings Inc. duly authorized the entry by the Borrower into this Agreement at a meeting held on January 13, 2025, and that the officer executing this Agreement on behalf of the Borrower has been duly authorized to do so.
(d) This Agreement constitutes the legal, valid, and binding obligation of the Borrower, enforceable against the Borrower 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.
(e) The execution, delivery, and performance of this Agreement by the Borrower do not and will not (i) conflict with or violate the organizational documents of the Borrower, (ii) conflict with or violate any applicable law, rule, or regulation, or (iii) result in any breach of, or constitute a default under, the First Lien Credit Agreement, the Unsecured Notes Indenture, or any other material agreement to which the Borrower is a party or by which the Borrower or its properties may be bound.
ARTICLE VIII — PROVISIONS RELATING TO THE AGENTS
Section 8.01 — First Lien Collateral Agent
(a) Crescent Harbor Bank, N.A. enters into and performs this Agreement solely in its capacity as First Lien Collateral Agent under the First Lien Credit Agreement and not in its individual or personal capacity. All actions taken by the First Lien Collateral Agent hereunder are taken in its capacity as agent for and representative of the First Lien Secured Parties. In no event shall the First Lien Collateral Agent be deemed to have any personal or individual liability arising under or in connection with this Agreement.