EXECUTION COPY Joinder, amendment no. 1 and REAFFIRMATION OF pledge and SECURITY AGREEMENT
Exhibit 10.2
EXECUTION COPY
Joinder, amendment no. 1 and REAFFIRMATION
OF pledge and SECURITY AGREEMENT
THIS JOINDER, AMENDMENT NO. 1 AND REAFFIRMATION OF PLEDGE AND SECURITY AGREEMENT (this “Agreement”), dated as of June 30, 2016, is by and among MYR Group Inc. (the “Borrower”), the Subsidiaries of the Borrower listed on Exhibit A hereto (together with the Borrower, the “Existing Grantors”), High Country Line Construction, Inc. (“High Country”), GSW Integrated Services, LLC (“GSW”), Xxxxxxxx Electric California, LLC (together with High Country and GSW, the “New Grantors”), those additional Subsidiaries of the Borrower which become party to the Security Agreement (as defined below) (together with the Existing Grantors and the New Grantors, each a “Grantor” and collectively, the “Grantors”) and JPMorgan Chase Bank, N.A., in its capacity as administrative agent (the “Administrative Agent”) for itself and the other Lenders from time to time party to the Amended and Restated Credit Agreement, dated as of the date hereof, among the Borrower, the Lenders from time to time party thereto and the Administrative Agent (as further amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), which Credit Agreement amends and restates that certain Credit Agreement, dated as of December 21, 2011, among the Borrower, the Lenders party thereto and the Administrative Agent (as amended, supplemented or otherwise modified prior to the effectiveness of the Credit Agreement, the “Previous Credit Agreement”). Undefined capitalized terms which are used herein shall have the meanings ascribed to such terms in the Credit Agreement and the Security Agreement, as applicable.
WITNESSETH
WHEREAS, the Existing Grantors and the Administrative Agent are currently party to that certain Pledge and Security Agreement (as amended, restated, supplemented or otherwise modified prior to the date hereof, the “Security Agreement”), dated as of December 21, 2011 and executed in connection with the Previous Credit Agreement;
WHEREAS, the New Grantors agree to join the Security Agreement as a “Grantor” thereunder;
WHEREAS, the Grantors are willing to amend the Security Agreement and reaffirm their obligations under the Security Agreement in connection with execution of the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual covenants contained herein, and other good and valuable consideration the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Joinder to Security Agreement. Each of the New Grantors agrees to become, and does hereby become, a “Grantor” under the Security Agreement and agrees to be bound by such Security Agreement as if originally a party thereto. Each of the New Grantors, subject to the terms and conditions of the Security Agreement, hereby grants the Administrative Agent a security interest in its Collateral. Each of the New Grantors represents and warrants that the Exhibits to the Security Agreement attached hereto as Schedule 1 are true and correct in all respects with respect to such Grantor and such Exhibits set forth all information required to be scheduled as of the date hereof under the Security Agreement with respect to such Grantor. To the extent required under the Security Agreement, each of the New Grantors shall take all steps necessary to perfect, in favor of the Administrative Agent, a security interest in and lien against such New Grantor’s Collateral.
SECTION 2. Amendment to Security Agreement. Effective as of the date hereof but subject to the satisfaction of the conditions precedent set forth in Section 4 below, the Security Agreement is hereby amended as set forth below:
(a) Section 3.9 is hereby deleted in its entirety and replaced with the following:
| GRANTOR | Federal Employer Identification Number | Type of Organization | State of Organization or Incorporation | State Organization Number | ||||
| MYR Group Inc. | 00-0000000 | Corporation | Delaware | 0930305 | ||||
| The X.X. Xxxxx Co. | 00-0000000 | Corporation | Delaware | 0838798 | ||||
| Xxxxxx Electric Company | 00-0000000 | Corporation | Michigan | 159796 | ||||
| Xxxxxxxx Electric Company, Inc. | 00-0000000 | Corporation | Michigan | 034502 | ||||
| Great Southwestern Construction, Inc. | 00-0000000 | Corporation | Colorado | 19871328104 | ||||
| MYR Transmission Services, Inc. | 00-0000000 | Corporation | Delaware | 3032475 | ||||
| X. X. Xxxxxx Company | 00-0000000 | Corporation | Delaware | 5692132 | ||||
| MYR Equipment, LLC | 00-0000000 | Limited liability company | Delaware | 5305719 | ||||
| MYR Real Estate Holdings, LLC | 00-0000000 | Limited liability company | Delaware | 5299621 | ||||
| High Country Line Construction, Inc. | 00-0000000 | Corporation | Nevada |
NV Business ID: NV20131238366
Entity Number: E0195802013-9 | ||||
| GSW Integrated Services, LLC | 00-0000000 | Limited liability company | Delaware | 5823773 | ||||
| Xxxxxxxx Electric California, LLC | 00-0000000 | Limited liability company | Delaware | 5793577 |
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(b) Section 8.14.2 is hereby amended by deleting the word “nonexclusive” therefrom and substituting the word “exclusive” therefor.
(c) Section 8.18 is hereby amended and restated in its entirety as follows:
“8.18 Counterparts. This Security Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Security Agreement by telecopy, e-mailed .pdf or any other electronic means that reproduces an image of the actual executed signature page shall be effective as delivery of a manually executed counterpart of this Security Agreement. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to any document to be signed in connection with this Security Agreement and the transactions contemplated hereby shall be deemed to include Electronic Signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.”
SECTION 3. Reaffirmation of Security Agreement. In connection with the execution and delivery of the Credit Agreement, as of the date hereof and immediately after giving effect to this Agreement, each Grantor hereby (a) consents to the Credit Agreement and the transactions contemplated thereby, (b) ratifies and reaffirms all of its obligations, contingent or otherwise, under the Security Agreement (as modified by this Agreement) and each other Loan Document executed by such Grantor, and (c) ratifies and reaffirms its grant of liens on and security interests in its properties pursuant to the Security Agreement (as modified by this Agreement) and each other Loan Document executed by such Grantor, and confirms that such liens and security interests continue to secure the Secured Obligations.
SECTION 4. Conditions of Effectiveness. This Agreement shall become effective and be deemed effective as of the date hereof, if, and only if, the Administrative Agent shall have received executed copies of this Agreement from each Grantor and the Administrative Agent.
SECTION 5. Updating of Exhibits to Security Agreement. Effective as of the date hereof, the Exhibits to the Security Agreement are hereby amended and restated in their entirety in the form of Schedule 1 hereto.
SECTION 6. Representations and Warranties of the Grantors. Each Grantor hereby represents and warrants as follows:
(a) The Security Agreement as previously executed and as amended and modified prior to the date hereof hereby constitutes the legal, valid and binding obligation of each Grantor and is enforceable against each Grantor in accordance with its terms, except as enforceability may be limited by (i) bankruptcy, insolvency, fraudulent conveyances, reorganization, moratorium or similar laws relating to or affecting the enforcement of creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law), and (iii) requirements of reasonableness, good faith and fair dealing.
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(b) As of the date hereof and immediately after giving effect to this Agreement, each Grantor hereby (i) reaffirms all covenants, representations and warranties made by it in the Security Agreement, and (ii) agrees that all such covenants, representations and warranties shall be deemed to have been remade as of the effective date of this Agreement, provided that any such covenant, representation or warranty that references a specific date is reaffirmed as of such referenced date.
SECTION 5. Effect on the Loan Documents.
(a) Upon the effectiveness of this Agreement, on and after the date hereof, each reference in the Security Agreement to “this Agreement,” “hereunder,” “hereof,” “herein” or words of like import shall mean and be a reference to the Security Agreement, as amended and modified hereby.
(b) Except as specifically amended and modified above, the Security Agreement and all other documents, instruments and agreements executed and/or delivered in connection therewith shall remain in full force and effect, and are hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this Agreement shall neither, except as expressly provided herein, operate as a waiver of any right, power or remedy of the Lenders or the Administrative Agent, nor constitute a waiver of any provision of the Credit Agreement, Security Agreement or any other documents, instruments and agreements executed and/or delivered in connection therewith.
(d) All references in the Security Agreement to the Previous Credit Agreement shall hereafter mean and refer to the Previous Credit Agreement as amended and restated by the Credit Agreement.
(e) All references to the Security Agreement in the other Loan Documents and the Credit Agreement shall hereafter mean and refer to the Security Agreement, as amended and modified hereby.
SECTION 6. Governing Law. This Agreement shall be construed in accordance with and governed by the internal law of the State of New York.
SECTION 7. Headings. The title of and section headings in this Agreement are for convenience of reference only, and shall not govern the interpretation of any of the terms and provisions of this Agreement.
SECTION 8. Counterparts. This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Agreement by telecopy, e-mailed .pdf or any other electronic means that reproduces an image of the actual executed signature page shall be effective as delivery of a manually executed counterpart of this Agreement. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to any document to be signed in connection with this Agreement and the transactions contemplated hereby shall be deemed to include Electronic Signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
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[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first written above.
| MYR GROUP INC. | GSW INTEGRATED SERVICES, LLC | |||
| By: | /s/ Xxxxxx X. Xxxxx | By: | /s/ Xxxx X. Xxxxxx | |
| Name: | Xxxxxx Xxxxx | Name: | Xxxx X. Xxxxxx | |
| Title: | Secretary | Title: | Secretary and Treasurer |
| THE X.X. XXXXX CO. | XXXXXXXX ELECTRIC CALIFORNIA, LLC | |||
| By: | /s/ Xxx X. Xxxxxx | By: | /s/ Xxxxxxxx X. Xxxxxx | |
| Name: | Xxx X. Xxxxxx | Name: | Xxxxxxxx X. Xxxxxx | |
| Title: | President | Title: | Treasurer |
| XXXXXX ELECTRIC COMPANY | XXXXXXXX ELECTRIC COMPANY, INC. | |||
| By: | /s/ Xxx X. Xxxxxx | By: | /s/ Xxxxxx X. XxXxx | |
| Name: | Xxx X. Xxxxxx | Name: | Xxxxxx X. XxXxx | |
| Title: | President | Title: | Chief Executive Officer |
| GREAT SOUTHWESTERN CONSTRUCTION, INC. | MYR TRANSMISSION SERVICES, INC. | |||
| By: | /s/ Xxxx X. Xxxxxx | By: | /s/ Xxxx X. Xxxxxx | |
| Name: | Xxxx X. Xxxxxx | Name: | Xxxx X. Xxxxxx | |
| Title: | Secretary and Treasurer | Title: | Secretary and Treasurer |
| X.X. XXXXXX COMPANY | MYR REAL ESTATE HOLDINGS, LLC | |||
| By: | /s/ Xxx X. Xxxxxx | By: | /s/ Xxxxxxx Xxxxxxx | |
| Name: | Xxx X. Xxxxxx | Name: | Xxxxxxx Xxxxxxx | |
| Title: | President | Title: | Secretary and Treasurer |
| MYR EQUIPMENT, LLC | HIGH COUNTRY LINE CONSTRUCTION, INC. | |||
| By: | /s/ Xxxxxxx Xxxxxxx | By: | /s/ Xxxxxxxx X. Xxxxxx | |
| Name: | Xxxxxxx Xxxxxxx | Name: | Xxxxxxxx X. Xxxxxx | |
| Title: | President | Title: | Treasurer |
Signature Page to
MYR Group Joinder, Amendment No. 1 and Reaffirmation of Pledge and Security Agreement
| Agreed and Accepted: | ||
| JPMORGAN CHASE BANK, N.A., | ||
| as Administrative Agent | ||
| By: | /s/ Xxxxxxxxxxx X. Xxxxxxx | |
| Name: | Xxxxxxxxxxx X. Xxxxxxx | |
| Title: | Authorized Officer |
Signature Page to
MYR Group Joinder, Amendment No. 1 and Reaffirmation of Pledge and Security Agreement
Exhibit A
Existing Grantors
The X.X. Xxxxx Co.
Xxxxxx Electric Company
Xxxxxxxx Electric Company, Inc.
Great Southwestern Construction, Inc.
MYR Transmission Services, Inc.
X.X. Xxxxxx Company
MYR Real Estate Holdings, LLC
MYR Equipment, LLC
Schedule 1
Attached.
EXHIBIT “A” (See Sections 3.3 and 4.1.7 of Security Agreement)
Place of business (if Grantor has only one place of business) or chief executive office (if Grantor has more than one place of business) and mailing address:
| MYR GROUP INC. 0000 Xxxx Xxxx, Xxxxx 0-0000 Xxxxxxx Xxxxxxx, XX 00000 |
THE X.X. XXXXX CO. 0000 Xxxx Xxxx, Xxxxx 0-0000 Xxxxxxx Xxxxxxx, XX 00000 |
| XXXXXX ELECTRIC COMPANY 0000 Xxxxxx Xxxx Xxxxxxxxx Xxxxx, XX 00000 |
XXXXXXXX ELECTRIC COMPANY, INC. 00000 Xxxx 000xx Xxxxxx Xxxxxxxxx, XX 00000 |
|
GREAT SOUTHWESTERN CONSTRUCTION, INC. 0000 Xxxxxx Xxx, XX Xxx 000 Xxxxxx Xxxx, XX 00000 |
MYR TRANSMISSION SERVICES, INC. 000 Xxxx Xxxxxxxxxx Xxxx, Xxxxx 0000 Plymouth Meeting, PA 19462 |
| X. X. XXXXXX COMPANY 00 Xxxxxxx Xxxxx Xxxxxxxxx, Xxxxx, 00000 | MYR EQUIPMENT, LLC 0000 Xxxx Xxxx, Xxxxx 0-0000 Xxxxxxx Xxxxxxx, XX 00000 |
| MYR REAL ESTATE HOLDINGS, LLC 0000 Xxxx Xxxx, Xxxxx 0-0000 Xxxxxxx Xxxxxxx, XX 00000 | HIGH COUNTRY LINE CONSTRUCTION, INC. 000 X Xxxxx Xx Xxxxxx, XX 00000 |
|
GSW INTEGRATED SERVICES, LLC 0000 Xxxxxx Xxx, X.X. Xxx 000 Xxxxxx Xxxx, XX 00000 |
XXXXXXXX ELECTRIC CALIFORNIA, LLC 00000 Xxxxxx Xxx. Xxxxx, XX 00000 |
EXHIBIT “B” (See Section 3.7 of Security Agreement)
Patents, copyrights, trademarks protected under federal law*:
U.S. Patent 8,613,426 B1 to Holland, et al. Dated December, 2013, Power Line Puller Control Package
U.S. Copyright TXu000476985. Dated July 26, 1991, Buy Best Purchasing Program
* For (i) trademarks, show the trademark itself, the registration date and the registration number; (ii) trademark applications, show the trademark applied for, the application filing date and the serial number of the application: (iii) patents, show the patent number, issue date and a brief description of the subject matter of the patent; and (iv) patent applications, show the serial number of the application, the application filing date and a brief description of the subject matter of the patent applied for. Any licensing agreements for patents or trademarks should be described on a separate schedule.
EXHIBIT “C”
[Reserved]
EXHIBIT “D”
List of Equity Interests of Pledge Securities (See Section 3.10 of Security Agreement)
| Issuer | Description of Collateral | Percentage Ownership Interest | ||
| The X. X. Xxxxx Co. | Share Certificate representing 100 issued shares ($1.00 par value) | 100% by Borrower | ||
| Xxxxxx Electric Company | Share Certificate representing 100 issued shares ($1.00 par value) | 100% by Borrower | ||
| Great Southwestern Construction, Inc. | Share Certificate representing 50,000 issued shares ($1.00 par value) | 100% by Borrower | ||
| Xxxxxxxx Electric Company, Inc. | Share Certificate representing 100 issued shares ($0.01 par value) | 100% by Xxxxxx Electric Company | ||
| MYR Transmission Services, Inc. (formerly MYRcom, Inc.) | Share Certificate representing 100 issued shares ($0.01 par value) | 100% by Borrower | ||
| X. X. Xxxxxx Company | Share Certificate representing 100 issued shares ($0.01 par value) | 100% by Borrower | ||
| MYR Equipment, LLC | Membership Certificate representing 100 membership interest units | Borrower as sole member | ||
| MYR Real Estate Holdings, LLC | Membership Certificate representing 100 membership interest units | Borrower as sole member | ||
| High Country Line Construction, Inc. | Share Certificate representing 60,000 issued shares ($0.01 par value) | 100% by Xxxxxxxx Electric Company, Inc. | ||
| GSW Integrated Services, LLC | Uncertificated | Great Southwestern Construction, Inc. as sole member | ||
| Xxxxxxxx Electric California, LLC | Uncertificated | Xxxxxxxx Electric Company, Inc. as sole member | ||
| MYR Group Construction Canada, Ltd. | Share Certificate representing 65 issued shares (without par value) | 65% by Borrower |
EXHIBIT “E” (See Section 3.1 of Security Agreement)
OFFICES IN WHICH FINANCING STATEMENTS HAVE BEEN FILED
Secretary of the State of the State of Delaware
Secretary of the State of the State of Oregon
Secretary of the State of the State of Colorado
Secretary of the State of the State of Michigan
Secretary of the State of the State of Nevada
EXHIBIT “F” (See Section 4.11 of Security Agreement)
COMMERCIAL TORT CLAIMS
None
