Assumption and Supplement to Security Agreement
Exhibit 10.2
Assumption and Supplement to Security Agreement
This Assumption and Supplement to Security Agreement (this “Agreement”) dated as of this 21st day of March, 2018 from Xxxxxxx Holdings, Inc., a Delaware corporation (the “New Debtor”), to Fifth Third Bank, an Ohio banking corporation (“Fifth Third”), as administrative agent for the Secured Creditors (defined in the Security Agreement hereinafter identified and defined) (Fifth Third acting as such agent and any successor or successors to Fifth Third in such capacity being hereinafter referred to as the “Administrative Agent”).
Preliminary Statements
X. Xxxxxxx Facility Services LLC (the “Borrower”) and certain other parties have executed and delivered to the Administrative Agent that certain Security Agreement dated as of July 20, 2016 (such Security Agreement, as the same may from time to time be amended, modified or restated, including supplements thereto which add additional parties as Debtors thereunder, being hereinafter referred to as the “Security Agreement”), pursuant to which such parties (the “Existing Debtors”) have granted to the Administrative Agent for the benefit of the Secured Creditors a Lien on and security interest in the Existing Debtors’ Collateral (as such term is defined in the Security Agreement) to secure the Secured Obligations (as such term is defined in the Security Agreement).
B. The Borrower provides the New Debtor with substantial financial, managerial, administrative, and technical support and the New Debtor will benefit, directly and indirectly, from credit and other financial accommodations extended by the Secured Creditors to the Borrower.
Now, therefore, for value received, and in consideration of advances made or to be made, or credit accommodations given or to be given, to the Borrower by the Secured Creditors from time to time, the New Debtor hereby agrees as follows:
1. The New Debtor acknowledges and agrees that it shall become a “Debtor” party to the Security Agreement effective upon the date of the New Debtor’s execution of this Agreement and the delivery of this Agreement to the Administrative Agent, and that upon such execution and delivery, all references in the Security Agreement to the terms “Debtor” or “Debtors” shall be deemed to include the New Debtor. Without limiting the generality of the foregoing, the New Debtor hereby repeats and reaffirms all grants (including the grant of a Lien and security interest), covenants, agreements, representations, and warranties contained in the Security Agreement as amended hereby, each and all of which are and shall remain applicable to the Collateral from time to time owned by the New Debtor or in which the New Debtor from time to time has any rights. Without limiting the foregoing, in order to secure payment of the Secured Obligations, whether now existing or hereafter arising, the New Debtor does hereby grant to the Administrative Agent for the benefit of the Secured Creditors, and hereby agrees that the Administrative Agent has and shall continue to have for the benefit of the Secured Creditors a continuing Lien on and security interest in, among other things, all of the New Debtor’s Collateral (as such term is defined in the Security Agreement), including, without limitation, all of the New Debtor’s Accounts, Chattel Paper, Instruments, Documents, General Intangibles Letter-of-Credit Rights, Supporting Obligations, Deposit Accounts, Investment Property, Inventory, Equipment, Fixtures, Commercial Tort Claims, and all of the other Collateral described in Section 2 of the Security Agreement, each and all of such granting clauses being incorporated herein by reference with the same force and effect as if set forth herein in their entirety except that all references in such clauses to the Existing Debtors or any of them shall be deemed to include references to the New Debtor. Nothing contained herein shall in any manner impair the priority of the liens and security interests heretofore granted in favor of the Administrative Agent under the Security Agreement.
2. Schedules A (Locations), Schedule B (Other Names), Schedule C (Intellectual Property Rights), Schedule D (Real Estate Legal Descriptions), Schedule E (Investment Property, Subsidiary Interests and Deposits) and Schedule F (Commercial Tort Claims) to the Security Agreement shall be supplemented (or amended and restated) by the information stated below with respect to the New Debtor:
Schedule A
Locations
(Amended and Restated)
Name
of Debtor (and State of |
Chief
Executive Office (and |
Additional
Places of Business |
|
Xxxxxxx Holdings, Inc. (Delaware Organization Number: 5516912
|
00-00xx Xxxxxx Xxxxxxxxxx, XX 00000 (Giant Eagle, 35th Xxxxxxx Associates)
|
|
|
Xxxxxxx Holdings LLC (Delaware Organization Number: 3588231
|
00-00xx Xxxxxx Xxxxxxxxxx, XX 00000 (Giant Eagle, 35th Xxxxxxx Associates)
|
|
|
Limbach Facility Services LLC (Delaware Organization Number: 3555584
|
00-00xx Xxxxxx Xxxxxxxxxx, XX 00000 (Giant Eagle, 35th Xxxxxxx Associates)
|
0000 Xxxxxxxxxx Xxxxx Xxxxxxxxxx, XX 00000 (Record Owner: The Buncher Company)
|
|
000 Xxxx Xxxx Xxxxxx Suites 400 and 450 Xxxxxxx, XX 00000 (Record Owner: Highwoods Realty Limited Partnership)
| ||
|
000 Xxxxxxx Xxxx Xxxxxx Xx. 00 Xxxxxxxxxx, XX 00000 (Record Owner: Xxxxxxx Parkway, LLC)
|
| Name
of Debtor (and State of Organization and Organizational Registration Number) |
Chief
Executive Office (and name of record owner of such location) |
Additional
Places of Business and Collateral Locations (and name of record owner of such locations) |
|
Xxxxxxx Company LLC (Delaware Organization Number: 3555572
|
00-00xx Xxxxxx Xxxxxxxxxx, XX 00000 (Giant Eagle, 35th Xxxxxxx Associates)
|
0000 Xxxxx Xxxxxx Xxxxxxxxxx, XX 00000 (Record Owner: Transpac, Inc.)
|
|
000 Xxxxx Xxxxxx Xxxxx 000 Xxxxxxxxxx, XX 00000 (Record Owner: 175 Xxxxx Partners, LP)
| ||
|
0X Xxxxx Xxxxx Xxxxxx, XX 00000 (Record Owner: LIT-XXXXX/RIDGE LLC)
| ||
|
000 Xxxxxxxxxxxx Xxxx Xxxxxxx, XX 00000 (Record Owner: Xxxxxxx Company LLC)
| ||
|
00 Xxxxx Xxxxx Xxx Xxxxx 000 Xxxxxxx, XX 00000 (Record Owner: 45 Grand River LLC)
| ||
|
000 Xxxxx Xxxxx Xxxxxxx, XX 00000 (Record Owner: Xxxxxx L.L.C.)
| ||
|
000 Xxxxxxxxx Xxx Xxxxxxxx, XX 00000 (Record Owner: 243 Limited Partnership)
| ||
|
000 Xxxxxxxx Xxx. Xxxxxxxx, XX 00000 (Record Owner: 243 Limited Partnership)
| ||
|
00000 Xxxxxxxxxxx Xxxxx Xx Xxxxxx, XX 00000 (Record Owner: JBH Investments, LLC)
|
| Name
of Debtor (and State of Organization and Organizational Registration Number) |
Chief
Executive Office (and name of record owner of such location) |
Additional
Places of Business and Collateral Locations (and name of record owner of such locations) |
|
00 Xxxxxxx Xxxx Xxxxxxxxxx, XX 00000 (Record Owner: Jonspin Realty Trust)
| ||
|
00000 Xxx-Xxxxxxxx Xxxx. Xxxxxx, XX 00000 (Record Owner: Xxxxxxx-Xxxx / Brickyard LP)
| ||
|
Xxxxxxx Company LP (Delaware Organization Number: 3598729
|
00-00xx Xxxxxx Xxxxxxxxxx, XX 00000 (Giant Eagle, 35th Xxxxxxx Associates)
|
0000 Xxxxxx Xxxxx Xxxx Xxxxx, XX (Record Owner: TPX Apollo, LLC)
|
|
Xxxxxx Xxxxxxx LLC (Delaware Organization Number: 3555571
|
00-00xx Xxxxxx Xxxxxxxxxx, XX 00000 (Giant Eagle, 35th Xxxxxxx Associates)
|
000 Xxxxxxxxx Xxxx Xxxxx Xxxx Xxxx, XX 00000 (Record Owner: Butters Realty & Mtg.)
|
|
(Warehouse) 0000 Xxxxxx Xxxxxx, Xxxxx 000 Xxxxxxx, XX 00000 (Record Owner: Global Commercial Properties LLC)
| ||
|
00000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000 Xxxxx, XX 3307 (Record Owner: Xxxxx Pyramid, LLC)
| ||
|
Xxxxxx Xxxxxxx Construction LLC (Delaware Organization Number: 5223617
|
00-00xx Xxxxxx Xxxxxxxxxx, XX 1520 (Giant Eagle, 35th Xxxxxxx Associates)
|
00000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000 Xxxxx, XX 3307 (Record Owner: Xxxxx Pyramid, LLC)
|
|
000 Xxxxxxxxx Xxxx Xxxxx Xxxx Xxxx, XX 00000 (Record Owner: Butters Realty & Mtg.)
|
Supplement to Schedule B
| Name of Debtor | Prior Legal Names of Such Debtor |
|
Xxxxxxx Holdings, Inc.
|
1347 Capital Corp. |
|
Name of Debtor
Xxxxxxx Holdings, Inc.
|
Trade Names of Such Debtor
N/A
|
Supplement to Schedule C
Intellectual Property Rights
None.
Supplement to Schedule D
|
Real Estate Legal Descriptions
|
None.
Supplement to Schedule E
Investment Property, Subsidiary Interests and Deposits
| A. | Investment Property (Other Than Subsidiary Interests) |
None.
| B. | Subsidiary Interests |
| Name of Debtor | Name of Subsidiary Issuer | Type of Organization (e.g., Corporation, Partnership, Limited Liability Company |
Jurisdiction of Organization | No. of Issued Shares/Units | Certificate No. (If Any) | Percentage of Issuer’s Ownership Interests |
| Xxxxxxx Holdings, Inc. | Xxxxxxx Holdings LLC | Corporation | Delaware | N/A | N/A | 100% |
| C. | Deposits |
| Name of Debtor | Name of Depository | Type of Account | Account Number |
| Xxxxxxx Holdings, Inc. | Fifth Third Bank | Operating Account |
x6917 |
| Xxxxxxx Company LLC, d/b/a Xxxxxxx Xxxxxx XX II | The Private Bank & Trust | Joint Venture Account | x7242± |
| Xxxxxxx Company LLC, d/b/a HMP II XX | Xxxxxxx Bank & Trust Company | Joint Venture Account | X1742± |
* Note: Accounts to include such other deposit accounts maintained from time to time with the Administrative Agent.
** Note: Accounts marked with ± are Excluded Deposit Accounts (as defined in the Credit Agreement).
Supplement to Schedule F
Commercial Tort Claims
None.
3. The New Debtor hereby acknowledges and agrees that the Secured Obligations are secured by all of the Collateral according to, and otherwise on and subject to, the terms and conditions of the Security Agreement to the same extent and with the same force and effect as if the New Debtor had originally been one of the Existing Debtors under the Security Agreement and had originally executed the same as such an Existing Debtor.
4. All capitalized terms used in this Agreement without definition shall have the same meaning herein as such terms have in the Security Agreement, except that any reference to the term “Debtor” or “Debtors” and any provision of the Security Agreement providing meaning to such term shall be deemed a reference to the Existing Debtors and the New Debtor. Except as specifically modified hereby, all of the terms and conditions of the Security Agreement shall stand and remain unchanged and in full force and effect.
5. The New Debtor agrees to execute and deliver such further instruments and documents and do such further acts and things as the Administrative Agent may deem necessary or proper to carry out more effectively the purposes of this Agreement.
6. No reference to this Agreement need be made in the Security Agreement or in any other document or instrument making reference to the Security Agreement, any reference to the Security Agreement in any of such to be deemed a reference to the Security Agreement as modified hereby.
7. This Agreement may be executed in any number of counterparts, and by the different parties on different counterpart signature pages, all of which taken together shall constitute one and the same agreement. Any of the parties hereto may execute this Agreement by signing any such counterpart and each of such counterparts shall for all purposes be deemed to be an original. Delivery of a counterpart hereof by facsimile transmission or by e-mail transmission of an Adobe portable document format file (also known as a “PDF” file) shall be effective as delivery of a manually executed counterpart hereof. This Agreement shall be governed by and construed in accordance with the law of the State of New York, without regard to conflicts of law provisions (other than Sections 5-1401 and 5-1402 of the New York General Obligations law).
| Xxxxxxx Holdings, Inc. | |||
| By | Xxxxx Xxxxxx | ||
| Name: | Xxxxx Xxxxxx | ||
| Title: | Corporate Secretary | ||
Accepted and agreed to as of the date first above written.
| Fifth Third Bank, as Administrative Agent | |||
| By | S. Xxxxxxx XxXxxxxxx | ||
| Name: | S. Xxxxxxx XxXxxxxxx | ||
| Title: | Vice President | ||
[Signature Page to Assumption and Supplement to Security Agreement (Third Amendment)—
Xxxxxxx Facility Services LLC]
