SECOND LIEN SECURITY AGREEMENT
Exhibit 10.9
SECOND LIEN
SECURITY AGREEMENT
made by
X. XXXXXXXXX ENTERPRISES, INC.,
HOVNANIAN ENTERPRISES, INC.
and certain of their respective Subsidiaries
in favor of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Collateral Agent
Dated as of May 27, 2008
TABLE OF CONTENTS
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SECTION 1. DEFINED TERMS |
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1.1 |
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Definitions |
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1.2 |
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Other Definitional Provisions |
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SECTION 2. GRANT OF SECURITY INTEREST |
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SECTION 3. REPRESENTATIONS AND WARRANTIES |
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3.1 |
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Title: No Other Liens |
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3.2 |
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Perfected First Priority Liens |
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3.3 |
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Jurisdiction of Organization; Chief Executive Office |
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3.4 |
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Farm Products |
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3.5 |
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Investment Property |
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3.6 |
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Receivables |
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SECTION 4. COVENANTS |
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4.1 |
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Maintenance of Perfected Security Interest; Further Documentation |
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4.2 |
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Changes in Name, etc. |
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4.3 |
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Delivery of Instruments, Certificated Securities and Chattel Paper |
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4.4 |
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Intellectual Property |
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SECTION 5. INVESTING AMOUNTS IN THE SECURITIES ACCOUNTS |
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5.1 |
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Investments |
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5.2 |
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Liability |
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SECTION 6. REMEDIAL PROVISIONS |
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6.1 |
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Certain Matters Relating to Receivables |
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6.2 |
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Communications with Obligors: Grantors Remain Liable |
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6.3 |
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Proceeds to be Turned Over To Agent |
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6.4 |
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Application of Proceeds |
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6.5 |
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Code and Other Remedies |
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6.6 |
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Subordination |
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6.7 |
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Deficiency |
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SECTION 7. THE AGENT |
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7.1 |
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Agent’s Appointment as Attorney-in-Fact. etc. |
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7.2 |
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Duty of Agent |
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7.3 |
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Execution of Financing Statements |
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7.4 |
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Authority of Agent |
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SECTION 8. MISCELLANEOUS |
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8.1 |
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Amendments in Writing |
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8.2 |
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Notices |
15 |
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8.3 |
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No Waiver by Course of Conduct; Cumulative Remedies |
15 |
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8.4 |
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Enforcement Expenses; Indemnification |
15 |
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8.5 |
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Successors and Assigns |
16 |
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8.6 |
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Set-Off |
16 |
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8.7 |
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Counterparts |
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8.8 |
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Severability |
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8.9 |
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Section Headings |
17 |
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8.10 |
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Integration |
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8.11 |
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GOVERNING LAW |
17 |
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8.12 |
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Submission To Jurisdiction; Waivers |
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8.13 |
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Acknowledgements |
17 |
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8.14 |
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Additional Grantors |
18 |
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8.15 |
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Releases |
18 |
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8.16 |
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Automatic Release of Related Collateral |
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8.17 |
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WAIVER OF JURY TRIAL |
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8.18 |
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No Novation |
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Schedule A - Cash Collateral Accounts |
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Schedule B - Commercial Tort Claims |
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Schedule C - Actions Required to Perfect |
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Schedule D - Listing of Certain Information Relating to Grantors |
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Exhibit A – Joinder Agreement |
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SECOND LIEN SECURITY AGREEMENT
THIS SECOND LIEN SECURITY AGREEMENT (the “Agreement”), dated as of May 27, 2008, is made by each of the signatories hereto (together with any other entity that may become a party hereto as provided herein, the “Grantors”), in favor of Deutsche Bank National Trust Company, as Collateral Agent (in such capacity, the “Agent”) for the benefit of itself, the Trustee (as defined below) and the Noteholders (as defined below).
W I T N E S S E T H:
WHEREAS, pursuant to the Seventh Amended and Restated Credit Agreement, dated as of March 7, 2008 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”) among X. Xxxxxxxxx Enterprises, Inc., a California corporation (the “Issuer”), Hovnanian Enterprises, Inc., a Delaware corporation (“Hovnanian”), the Lenders now or hereafter party thereto (the “Lenders”), and PNC Bank National Association, as administrative agent (the “Administrative Agent”), the Lenders have provided certain loans and other financial accommodations to the Issuer;
WHEREAS, the Issuer, Hovnanian and each of the other Guarantors (as defined in the Secured Note Indenture) have entered into the Indenture, dated as of May 27, 2008 (as amended, supplemented, amended and restated or otherwise modified from time to time, the “Secured Note Indenture”) with the Deutsche Bank National Trust Company as trustee (in such capacity, the “Trustee”), pursuant to which the Issuer issued 11 1/2 % Senior Secured Notes due 2013 (collectively, the “Secured Notes”);
WHEREAS, the Issuer, Hovnanian, certain subsidiaries of Hovnanian party thereto, PNC Bank, National Association, as Senior Credit Agent, the Trustee and Wilmington Trust Company, as Mortgage Tax Collateral Agent have entered into the Intercreditor Agreement, dated as of May 27, 2008 (as amended, supplemented, amended or restated or otherwise modified from time to time, the “Intercreditor Agreement”);
WHEREAS, the Issuer is a member of an affiliated group of companies that includes Hovnanian, the Issuer’s parent company, and each other Grantor;
WHEREAS, the proceeds of the issuance of Secured Notes under the Secured Note Indenture will be used in part to enable the Issuer to make valuable transfers to one or more of the other Grantors in connection with the operation of their respective businesses;
WHEREAS, the Issuer and the other Grantors are engaged in related businesses, and each Grantor will derive substantial direct and indirect benefit from the proceeds of the Secured Notes;
NOW, THEREFORE, in consideration of the premises and to induce the Noteholders to purchase Secured Notes, each Grantor hereby agrees with the Agent, for the ratable benefit of the Secured Parties, as follows:
SECTION 1. DEFINED TERMS
1.1 Definitions.
(a) Definitions set forth above are incorporated herein and unless otherwise defined herein, terms defined in the Secured Note Indenture and used herein shall have the meanings respectively
given to them in the Secured Note Indenture or, if not defined herein or therein, in the Intercreditor Agreement, and the following terms are used herein as defined in the New York UCC: Accounts, Chattel Paper, Commercial Tort Claims, Deposit Account, Documents, Equipment, Electronic Chattel Paper, Farm Products, General Intangibles, Goods, Payment Intangibles, Instruments, Inventory, Investment Property, Letter of Credit Rights, Payment Intangibles, Software and Supporting Obligations.
(b) The following terms shall have the following meanings:
“Agreement”: this Second Lien Security Agreement, as the same may be amended, restated, supplemented or otherwise modified from time to time.
“Cash Collateral Account”: any deposit accounts, securities accounts and money market mutual fund shares or similar securities accounts at or maintained or issued by the Administrative Agent or any of the Lenders or any one or more Affiliates of the Administrative Agent or any of the Lenders and which are identified on Schedule A hereto in which the Agent, for the benefit of the Secured Parties, holds a perfected security interest securing payment and performance of the Secured Obligations (including, for the avoidance of doubt, each “Cash Collateral Account” as defined in the Credit Agreement).
“Cash Equivalents”: (i) cash, marketable direct obligations of the United States of America or any agency thereof, and certificates of deposit, demand deposits, time deposits, or repurchase agreements issued by any Lender or any bank with a capital and surplus of at least $25,000,000 organized under the laws of the United States of America or any state thereof, state or municipal securities with a rating of A-1 or better by Standard & Poor’s or by Moody’s or F-1 by Fitch, provided that such obligations, certificates of deposit, demand deposits, time deposits, and repurchase agreements have a maturity of less than one year from the date of purchase, and (ii) investment grade commercial paper or debt or commercial paper issued by a Lender or a bank holding company of a Lender having a maturity date of one year or less from the date of purchase, and (iii) funds holding assets primarily consisting of those described in clause (i) and (ii).
“Collateral”: as defined in Section 2.
“Contracts”: any contracts and agreements for the purchase, acquisition or sale of real or personal property or the receipt or performance of services, any contract rights relating thereto, and all other rights to such contract or agreements and any right to payment for or to receive moneys due or to become due for items sold or leased or for services rendered, together with all rights of any Grantor to damages arising thereunder or to perform and to exercise all remedies thereunder.
“Collateral Account”: any collateral account established by the Perfection Agent as provided in Section 6.1 or 6.3.
“Copyright Licenses”: any written agreement naming any Grantor as licensor or licensee, granting any right under any Copyright, including, without limitation, the grant of rights to distribute, exploit and sell materials derived from any Copyright.
“Copyrights”: (i) all copyrights arising under the laws of the United States, any other country or any political subdivision thereof, whether registered or unregistered and whether published or unpublished, all registrations and recordings thereof, and all applications in connection therewith, including, without limitation, all registrations, recordings and applications in the United States Copyright Office, and (ii) the right to obtain all renewals thereof.
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“Deposit Accounts”: the collective reference to each Deposit Account (as such term is defined in Section 1(a) hereof) in the name of the applicable Grantor, together with any one or more securities accounts into which any monies on deposit in any such Deposit Account may be swept or otherwise transferred now or hereafter and from time to time, and any additional, substitute or successor Deposit Account.
“Discharge of Senior Lender Claims”: has the meaning set forth in the Intercreditor Agreement.
“Excluded Accounts” shall mean at any time those deposit, checking or securities accounts of any of the Grantors (i) that individually have an average monthly balance (over the most recent ended 3-month period) less than $250,000 and which together do not have an average monthly balance (for such 3-month period) in excess of $2,000,000 in the aggregate, (ii) all escrow accounts (in which funds are held for or of others by virtue of customary real estate practice or contractual or legal requirements) and (iii) such other accounts with respect to which the Perfection Agent reasonably determines that the cost of perfecting a Lien thereon is excessive in relation to the benefit thereof.
“First Lien Security Agreement”: the “Security Agreement” as defined in the Credit Agremeent.
“Guarantors”: the collective reference to each Grantor other than the Issuer.
“Intellectual Property”: the collective reference to all rights, priorities and privileges, whether arising under United States, multinational or foreign laws, in, to and under the Copyrights, the Copyright Licenses, the Patents, the Patent Licenses, the Trademarks and the Trademark Licenses, and all rights to xxx at law or in equity for any infringement or other impairment thereof, including the right to receive all proceeds and damages therefrom.
“Investment Property”: the collective reference to (i) all “investment property” as such term is defined in Section 9-102(a)(49) of the New York UCC, and (ii) whether or not constituting “investment property” as so defined, all Pledged Notes.
“Issuers”: the collective reference to each issuer of any Investment Property.
“Law” shall mean any law (including common law), constitution, statute, treaty, regulation, rule, ordinance, opinion, release, ruling, order, injunction, writ, decree, bond, judgment, authorization or approval, lien or award of or settlement agreement with any Official Body.
“New York UCC”: the Uniform Commercial Code as from time to time in effect in the State of New York.
“Noteholder”: “Holder” or “Holder of Notes” as defined in the Secured Note Indenture.
“Noteholder Collateral Document” means any agreement, document or instrument pursuant to which a Lien is granted by the Issuer or any Guarantor to secure any Secured Obligations or under which rights or remedies with respect to any such Liens are governed, as the same may be amended, restated or otherwise modified from time to time.
“Noteholder Document” means collectively (a) the Secured Note Indenture, the Secured Notes and the Noteholder Collateral Documents and (b) any other related document or instrument executed and delivered pursuant to any Noteholder Document described in clause (a) above evidencing or
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governing any Secured Obligations as the same may be amended, restated or otherwise modified from time to time.
“Official Body” shall mean any national, federal, state, local or other governmental or political subdivision or any agency, authority, board, bureau, central bank, commission, department or instrumentality of either, or any court, tribunal, grand jury or arbitrator, in each case whether foreign or domestic.
“Patent License”: all written agreements providing for the grant by or to any Grantor of any right to manufacture, use or sell any invention covered in whole or in part by a Patent.
“Patents”: (i) all letters patent of the United States, any other country or any political subdivision thereof, all reissues and extensions thereof, (ii) all applications for letters patent of the United States or any other country and all divisions, continuations and continuations-in-part thereof, and (iii) all rights to obtain any reissues or extensions of the foregoing.
“Perfection Agent”: (i) prior to the Discharge of Senior Lender Claims (as defined in the Intercreditor Agreement), the Administrative Agent (including, with respect to any Collateral delivered to or held by the Perfection Agent hereunder, in its capacity as bailee for the Trustee, the Agent and the Noteholders under Section 5.5 of the Intercreditor Agreement) and (ii) thereafter, the Agent.
“Permitted Encumbrance”: set forth in Section 3.1.
“Pledged Notes”: all promissory notes issued to or held by any Grantor.
“Proceeds”: all “proceeds” as such term is defined in Section 9-102(a)(64) of the New York UCC and, in any event, shall include, without limitation, all dividends or other income from the Investment Property, collections thereon or distributions or payments with respect thereto.
“Receivable”: any right to payment for real or personal property sold or leased or for services rendered, whether or not such right is evidenced by a Contract, an Instrument or Chattel Paper and whether or not it has been earned by performance (including, without limitation, any Account).
“Secured Obligations”: all now existing and hereafter arising Second Priority Lien Obligations (as defined in the Secured Note Indenture) of the Issuer and each and every other Grantor, together with any extensions, renewals, replacements or refundings thereof and all costs and expenses of enforcement and collection, including reasonable attorney’s fees.
“Secured Parties”: the collective reference to the Agent, the Trustee and the Noteholders, in each case to which any Secured Obligations are owed.
“Securities Accounts”: the collective reference to the securities accounts in the name of the applicable Grantor and any additional, substitute or successor account.
“Trademark License”: any written agreement providing for the grant by or to any Grantor of any right to use any Trademark.
“Trademarks”: (i) all trademarks, trade names, corporate names, company names, business names, fictitious business names, trade styles, service marks, logos and other source or business identifiers, and all goodwill associated therewith, now owned or hereafter acquired, all registrations and recordings thereof, and all applications in connection therewith, whether in the United States Patent and
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Trademark Office or in any similar office or agency of the United States, any State thereof or any other country or any political subdivision thereof, and all common-law rights related thereto, and (ii) the right to obtain all renewals thereof.
“Vehicles”: all cars, trucks, trailers, construction and earth moving equipment and other vehicles covered by a certificate of title law of any state and all tires and other appurtenances to any of the foregoing.
1.2 Other Definitional Provisions.
(a) The words “hereof,” “herein”, “hereto” and “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, and Section and Schedule references are to this Agreement unless otherwise specified.
(b) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.
(c) Where the context requires, terms relating to the Collateral or any part thereof, when used in relation to a Grantor, shall refer to such Grantor’s Collateral or the relevant part thereof.
SECTION 2. GRANT OF SECURITY INTEREST
Each Grantor hereby grants to the Agent, for the ratable benefit of the Secured Parties, a security interest in all of the following property now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (collectively, the “Collateral”), as collateral security for the prompt and complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of the Secured Obligations:
(a) all Accounts;
(b) all Cash Collateral Accounts;
(c) all Chattel Paper (including, Electronic Chattel Paper);
(d) all Commercial Tort Claims (including those claims listed on Schedule B hereto, in which the claim amount individually exceeds $2,000,000, as such schedule is amended or supplemented from time to time);
(e) all Contracts;
(f) all Securities Accounts;
(g) all Deposit Accounts;
(h) all Documents (other than title documents with respect to vehicles);
(i) all Equipment;
(j) all Fixtures;
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(k) all General Intangibles;
(l) all Goods;
(m) all Instruments;
(n) all Intellectual Property;
(o) all Inventory;
(p) all Investment Property;
(q) all Letters of Credit;
(r) all Letter of Credit Rights;
(s) all Payment Intangibles;
(t) all Vehicles and title documents with respect to Vehicles;
(u) all Receivables;
(v) all Software;
(w) all Supporting Obligations;
(x) to the extent, if any, not included in clauses (a) through (w) above, each and every other item of personal property whether now existing or hereafter arising or acquired;
(y) all books and records pertaining to any of the Collateral; and
(z) to the extent not otherwise included, all Proceeds, Supporting Obligations and products of any and all of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing;
provided, however, that notwithstanding any of the other provisions set forth in this Section 2 (and notwithstanding any recording of the Agent’s Lien in the U.S. Patent and Trademark Office or other registry office in any jurisdiction), this Agreement shall not constitute a grant of a security interest in, and the Collateral shall not include, (i) any property or assets designated as “Excluded Property” pursuant to paragraph (c) of the definition of “Permitted Investment” in the Secured Note Indenture or (ii) any property to the extent that such grant of a security interest is prohibited by any applicable Law of an Official Body, requires a consent not obtained of any Official Body pursuant to such Law or is prohibited by, or constitutes a breach or default under or results in the termination of or gives rise to any right of acceleration, modification or cancellation or requires any consent not obtained under, any contract, license, agreement, instrument or other document evidencing or giving rise to such property or, in the case of any Investment Property, or Pledged Note, any applicable shareholder or similar agreement, except to the extent that such Law or the term in such contract, license, agreement, instrument or other document or shareholder or similar agreement providing for such prohibition, breach, default or termination or requiring such consent is ineffective under applicable Law including Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC (or any successor provision or provisions); provided, further,
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that no security interest shall be granted in United States “intent-to-use” trademark or service xxxx application unless and until acceptable evidence of use of the trademark or service xxxx has been filed with and accepted by the U.S. Patent and Trademark Office pursuant to Section 1(c) or Section 1(d) of the Xxxxxx Act (U.S.C. 1051, et. seq.), and to the extent that, and solely during the period in which, the grant of a security interest therein would impair the validity or enforceability of such intent-to-use trademark or service xxxx applications under applicable federal Law. After such period and after such evidence of use has been filed and accepted, each Grantor acknowledges that such interest in such trademark or service xxxx applications will become part of the Collateral. The Agent agrees that, at any Grantor’s reasonable request and expense, it will provide such Grantor confirmation that the assets described in this paragraph are in fact excluded from the Collateral during such limited period only. Notwithstanding the foregoing, in the event that Rule 3-16 of Regulation S-X under the Securities Act requires (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC of separate financial statements of any Guarantor, then the capital stock or other securities of such Guarantor shall automatically be deemed released and not to be and not to have been part of the Collateral but only to the extent necessary to not be subject to such requirement. In such event, this Agreement may be amended or modified, without the consent of any Noteholder, to the extent necessary to evidence the release of the lien created hereby on the shares of capital stock or other securities that are so deemed to no longer constitute part of the Collateral.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Noteholders to purchase the Secured Notes, each Grantor hereby represents and warrants to the Agent and each other Secured Party that:
3.1 Title: No Other Liens.
Except for the security interest granted to the Agent for the ratable benefit of the Secured Parties pursuant to this Agreement: (i) such Grantor owns each item of the Cash Collateral Accounts free and clear of any and all Liens or claims of others, except for the first priority perfected security interest securing the Senior Lender Claims (as defined in the Intercreditor Agreement) and the third priority security interests securing the Third Lien Obligations (as defined in the Intercreditor Agreement) and (ii) such Grantor owns each other item of the Collateral free and clear of any and all Liens or claims of others except, with respect to the Collateral referred to in this clause (ii), for the Liens permitted to exist on the Collateral by Section 7.2.2 of the Credit Agreement and Section 4.08 of the Secured Note Indenture (“Permitted Encumbrances”). No financing statement or other public notice with respect to all or any part of the Collateral is on file or of record in any public office, except with respect to Permitted Encumbrances.
3.2 Perfected Second Priority Liens.
The security interests granted pursuant to this Agreement (a) upon completion of the filings and other actions specified on Schedule C (which, in the case of all filings and other documents referred to on said Schedule, have been delivered to the Agent in completed form) will constitute valid perfected (to the extent such security interest can be perfected by such filings or actions) security interests in all of the Collateral in favor of the Agent, for the ratable benefit of the Secured Parties, as collateral security for the Secured Obligations, enforceable in accordance with the terms hereof against all creditors of such Grantor and any Persons purporting to purchase any Collateral from such Grantor and (b) are prior to all other Liens on the Collateral in existence on the date hereof except, (i) in the case of Collateral other than the Cash Collateral Accounts, for Permitted Encumbrances and (ii) in the case of the Cash Collateral Accounts, for the first priority perfected security interest securing the Senior Lender Claims (as defined in
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the Intercreditor Agreement) and the third priority security interests securing the Third Lien Obligations (as defined in the Intercreditor Agreement).
3.3 Jurisdiction of Organization; Chief Executive Office.
On the date hereof, such Grantor’s exact legal name, jurisdiction of organization and identification number from the jurisdiction of organization (if any), are specified on Schedule D hereto.
3.4 Farm Products.
None of the Collateral constitutes, or is the Proceeds of, Farm Products.
3.5 Investment Property.
Such Grantor is the record and beneficial owner of, and has good title to, the Investment Property pledged by it hereunder, free of any and all Liens or options in favor of, or claims of, any other Person, except the Permitted Encumbrances.
3.6 Receivables.
No amount payable in excess of $2,000,000 in the aggregate to all Grantors under or in connection with any Receivables is evidenced by any Instrument or Chattel Paper which has not been delivered to the Perfection Agent.
SECTION 4. COVENANTS
Each Grantor covenants and agrees with the Agent and the other Secured Parties that, from and after the date of this Agreement until the payment in full of all outstanding Secured Obligations:
4.1 Maintenance of Perfected Security Interest; Further Documentation.
(a) Such Grantor shall maintain the security interest created by this Agreement as a perfected security interest to the extent required by this Agreement having at least the priority described in Section 3.2 and shall defend such security interest against the claims and demands of all Persons whomsoever other than (i) in the case of Collateral other than the Cash Collateral Accounts, any holder of Permitted Encumbrances and (ii) in the case of the Cash Collateral Accounts, for the first priority perfected security interest securing the Senior Lender Claims (as defined in the Intercreditor Agreement) and the third priority security interests securing the Third Lien Obligations (as defined in the Intercreditor Agreement), in each case, subject to the rights of such Grantor under the Noteholder Documents to dispose of the Collateral.
(b) At any time and from time to time such Grantor will promptly and duly execute and deliver, and have recorded, such further instruments and documents and take such further actions as shall be necessary, or that the Agent may reasonably request, for the purpose of obtaining, perfecting or preserving the security interests purported to be granted under this Agreement and of the rights and remedies herein granted, including, without limitation, (i) filing any financing or continuation statements under the Uniform Commercial Code (or other similar laws) in effect in any jurisdiction with respect to the security interests created hereby and (ii) in the case of the Deposit Accounts, Investment Property, Letter of Credit Rights and the Securities Accounts and any other relevant Collateral, taking any actions necessary to enable the Perfection Agent to obtain “control” (within the meaning of the applicable Uniform Commercial Code) with respect thereto, provided that the Grantor shall not be required to take
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any of the actions set forth in this clause (ii) with respect to (x) Excluded Accounts and (y) prior to the Discharge of Senior Lender Claims, any Deposit Account or Securities Account with respect to which the Administrative Agent (or other Senior Credit Agent as defined in the Intercreditor Agreement) does not have “control” (within the meaning of the applicable Uniform Commercial Code); provided, further that following the Discharge of Senior Lender Claims, the Grantor shall only be required to take the actions set forth in this clause (ii) with respect to Deposit Accounts and Securities Accounts if reasonably requested by the Agent.
(c) If any Grantor shall at any time acquire a Commercial Tort Claim, in which the claim amount individually exceeds $2,000,000, such Grantor shall promptly notify the Agent in a writing signed by such Grantor of the details thereof and grant to the Agent for the benefit of the Secured Parties in such writing a security interest therein and in the Proceeds thereof, with such writing to be in form and substance satisfactory to the Agent and such writing shall constitute a supplement to Schedule B hereto.
4.2 Changes in Name, etc.
Such Grantor will, within thirty (30) calendar days after any change its jurisdiction of organization or change its name, provide written notice thereof to the Agent.
4.3 Delivery of Instruments, Certificated Securities and Chattel Paper.
If any amount in excess of $2,000,000 in the aggregate payable under or in connection with any of the Collateral shall be or become evidenced by any Instrument, certificated security or Chattel Paper, such Instrument, certificated security or Chattel Paper shall be promptly delivered to the Perfection Agent, duly indorsed in a manner reasonably satisfactory to the Perfection Agent.
4.4 Intellectual Property.
(a) Prior to the Discharge of Senior Lender Claims, such Grantor, if requested to do so with respect to the Senior Lender Claims by the Administrative Agent pursuant to Section 4.4 of the First Lien Security Agreement, shall execute and deliver to Agent, and have recorded, any and all agreements, instruments, documents, and papers to evidence the Agent’s and the other Secured Parties’ second lien security interest in any Copyright, Patent or Trademark and the goodwill and General Intangibles of such Grantor relating thereto or represented thereby. On and after the Discharge of Senior Lender Claims, such Grantor shall promptly execute and deliver, and have recorded, any and all agreements, instruments, documents, and papers as may be necessary to create and perfect the Agent’s and the other Secured Parties’ security interest in any Copyright, Patent or Trademark and the goodwill and General Intangibles of such Grantor relating thereto or represented thereby.
(b) Such Grantor’s obligations under Section 4.4(a) above shall include executing and delivering, and having recorded, with respect to such Collateral, the Intellectual Property Security Agreement attached hereto as Exhibit A .
SECTION 5. INVESTING AMOUNTS IN THE SECURITIES ACCOUNTS
5.1 Investments.
If requested by the Issuer, the Perfection Agent will, from time to time, invest amounts on deposit in the Deposit Accounts or Securities Accounts in which the Agent for the benefit of the Secured Parties holds perfected security interest, in Cash Equivalents pursuant to the written instructions of the Issuer. All investments may, at the option of the Perfection Agent, be made in the name of the Perfection Agent
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or a nominee of the Perfection Agent and in a manner that preserves the Issuer’s ownership of, and the Agent’s perfected Lien on, such investments. Subject to the Intercreditor Agreement, all income received from such investments shall accrue for the benefit of the Issuer and shall be credited (immediately upon receipt by the Perfection Agent) to a Deposit Account or Securities Account, in which Agent for the benefit of the Secured Parties holds a perfected security interest. The Agent, as the Perfection Agent, will only make investments in which it can obtain a perfected security interest, and the Issuer hereby agrees to execute promptly any documents which the Perfection Agent may reasonably require the Issuer to execute to implement or effectuate the provisions of this Section.
5.2 Liability.
The Agent shall have no responsibility to the Issuer for any loss or liability arising in respect of the investments in the Deposit Accounts or Securities Accounts in which the Agent for the benefit of the Secured Parties holds a perfected security interest (including, without limitation, as a result of the liquidation of any thereof before maturity), except to the extent that such loss or liability is found to be based on the Agent’s gross negligence or willful misconduct as determined by a final and nonappealable decision of a court of competent jurisdiction.
SECTION 6. REMEDIAL PROVISIONS
6.1 Certain Matters Relating to Receivables.
(a) At any time during the continuance of an Event of Default, the Agent shall have the right to make test verifications of the Receivables in any manner and through any medium that it reasonably considers advisable, and each Grantor shall furnish all such assistance and information as the Agent may require in connection with such test verifications. The Agent shall endeavor to provide the Issuer with notice at or about the time of such verifications, provided that the failure to provide such notice shall not in any way compromise or adversely affect the exercise of such remedy or the Agent’s rights hereunder.
(b) The Agent hereby authorizes each Grantor to collect such Grantor’s Receivables and, subject to the Intercreditor Agreement, the Agent may curtail or terminate said authority at any time after the occurrence and during the continuance of an Event of Default. The Agent shall endeavor to provide the Issuer with notice at or about the time of the exercise of its rights pursuant to the preceding sentence, provided that the failure to provide such notice shall not in any way compromise or adversely affect the exercise of any rights or remedies hereunder. Subject to the Intercreditor Agreement, if requested in writing by the Agent at any time after the occurrence and during the continuance of an Event of Default, any payments of Receivables, when collected by any Grantor, (i) shall be forthwith (and, in any event, within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Perfection Agent if required, in a Collateral Account maintained under the sole dominion and control of the Perfection Agent, subject to withdrawal by the Perfection Agent to be applied (x) prior to the Discharge of Senior Lender Claims, in accordance with the First Lien Security Agreement and (y) thereafter pursuant to Section 6.4 below, and (ii) until so turned over, shall be held by such Grantor in trust for the Perfection Agent, segregated from other funds of such Grantor.
(c) At the Agent’s written request at any time after the occurrence and during the continuance of an Event of Default, each Grantor shall deliver to the Perfection Agent all original and other documents evidencing, and relating to, the agreements and transactions which gave rise to the Receivables, including without limitation, all original orders, invoices and shipping receipts.
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6.2 Communications with Obligors: Grantors Remain Liable.
(a) Subject to the Intercreditor Agreement, the Agent in its own name or in the name of others may after the occurrence and during the continuance of an Event of Default communicate with obligors under the Receivables and parties to the Contracts to verify with them to the Agent’s satisfaction the existence, amount and terms of any Receivables or Contracts. The Agent shall endeavor to provide the Issuer with notice at or about the time of the exercise of its rights pursuant to the preceding sentence, provided that the failure to provide such notice shall not in any way compromise or adversely affect the exercise of any rights or remedies hereunder.
(b) Subject to the Intercreditor Agreement, upon the written request of the Agent at any time after the occurrence and during the continuance of an Event of Default, each Grantor shall notify obligors on the Receivables and parties to the Contracts that the Receivables and the Contracts, as the case may be, have been assigned to the Agent for the ratable benefit of the Secured Parties and that payments in respect thereof shall be made directly to the Agent.
(c) Anything herein to the contrary notwithstanding, each Grantor shall remain liable under each of the Receivables and Contracts to observe and perform all the conditions and obligations to be observed and performed by it thereunder, all in accordance with the terms of any agreement giving rise thereto. Neither the Agent nor any Secured Party shall have any obligation or liability under any Receivable (or any agreement giving rise thereto) or Contract by reason of or arising out of this Agreement or the receipt by the Agent or any Secured Party of any payment relating thereto, nor shall the Agent or any Secured Party be obligated in any manner to perform any of the obligations of any Grantor under or pursuant to any Receivable (or any agreement giving rise thereto) or Contract, to make any payment, to make any inquiry as to the nature or the sufficiency of any payment received by it or as to the sufficiency of any performance by any party thereunder, to present or file any claim, to take any action to enforce any performance or to collect the payment of any amounts which may have been assigned to it or to which it may be entitled at any time or times.
6.3 Proceeds to be Turned Over To Agent.
In addition to the rights of the Agent and the Secured Parties specified in Section 6.1 with respect to payments of Receivables, and subject to the Intercreditor Agreement, if an Event of Default shall occur and be continuing, upon written request from the Agent, all Proceeds received by any Grantor consisting of cash, checks and other near-cash items shall be held by such Grantor in trust for the Perfection Agent and the Secured Parties, segregated from other funds of such Grantor, and shall, forthwith upon receipt by such Grantor, be turned over to the Perfection Agent in the exact form received by such Grantor (duly indorsed by such Grantor to the Perfection Agent, if requested). All Proceeds received by the Perfection Agent hereunder shall be held by the Perfection Agent in a Collateral Account maintained under its sole dominion and control. All such Proceeds while held by the Perfection Agent in a Collateral Account (or by such Grantor in trust for the Agent and the Secured Parties) shall continue to be held as collateral security for all the Secured Obligations and shall not constitute payment thereof until applied as provided in Section 6.4.
6.4 Application of Proceeds.
If an Event of Default shall have occurred and be continuing, at any time at the Agent’s election, subject to the Intercreditor Agreement, the Agent may apply all or any part of the Collateral, whether or not held in the Deposit Accounts, the Securities Accounts or any other Collateral Account, in payment of the Secured Obligations in the order set forth in the Secured Note Indenture.
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6.5 Code and Other Remedies.
Subject to the Intercreditor Agreement, if an Event of Default shall occur and be continuing, the Agent, on behalf of the Secured Parties, may exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the New York UCC or any other applicable law. Without limiting the generality of the foregoing, the Agent, without prior demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any prior notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may in such circumstances, subject to the Intercreditor Agreement, forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of the Agent or any Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. The Agent shall endeavor to provide the Issuer with notice at or about the time of the exercise of remedies in the proceeding sentence, provided that the failure to provide such notice shall not in any way compromise or adversely affect the exercise of such remedies or the Agent’s rights hereunder. The Agent or any Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of redemption in any Grantor, which right or equity is hereby waived and released. Each Grantor further agrees, at the Agent’s request, to assemble the Collateral and make it available to the Agent at places which the Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. The Agent shall apply the net proceeds of any action taken by it pursuant to this Section 6.5, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the Agent and the Secured Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Secured Obligations, in such order as the Agent may elect, and only after such application and after the payment by the Agent of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the New York UCC, need the Agent account for the surplus, if any, to any Grantor. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against the Agent or any Secured Party arising out of the exercise by them of any rights hereunder. If any prior notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition.
6.6 Subordination.
Each Grantor hereby agrees that, upon the occurrence and during the continuance of an Event of Default, unless otherwise agreed by the Agent, all Indebtedness owing to it by the Issuer or any Subsidiary of the Issuer shall be fully subordinated to the indefeasible payment in full in cash of the Secured Obligations.
6.7 Deficiency.
Each Grantor shall remain liable for any deficiency if the proceeds of any sale or other disposition of the Collateral are insufficient to pay the Secured Obligations and the fees and disbursements of any attorneys employed by the Agent or any Secured Party to collect such deficiency.
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SECTION 7. THE AGENT
7.1 Agent’s Appointment as Attorney-in-Fact. etc.
(a) Subject to the Intercreditor Agreement, each Grantor hereby irrevocably constitutes and appoints the Agent and any officer or agent thereof, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Grantor and in the name of such Grantor or in its own name, for the purpose of carrying out the terms of this Agreement, to take any and all appropriate action and to execute any and all documents and instruments which may be necessary or desirable to accomplish the purposes of this Agreement, and, without limiting the generality of the foregoing, each Grantor hereby gives the Agent the power and right, on behalf of such Grantor, without prior notice to or assent by such Grantor, to do any or all of the following:
(i) in the name of such Grantor or its own name, or otherwise, take possession of and indorse and collect any checks, drafts, notes, acceptances or other instruments for the payment of moneys due under any Receivable or Contract or with respect to any other Collateral and file any claim or take any other action or proceeding in any court of law or equity or otherwise deemed appropriate by the Agent for the purpose of collecting any and all such moneys due under any Receivable or Contract or with respect to any other Collateral whenever payable;
(ii) in the case of any Intellectual Property, execute and deliver, and have recorded, any and all agreements, instruments, documents and papers as the Agent may request to evidence the Agent’s and the Secured Parties’ security interest in such Intellectual Property and the goodwill and General Intangibles of such Grantors relating thereto or represented thereby;
(iii) pay or discharge taxes and Liens levied or placed on or threatened against the Collateral, effect any repairs or any insurance called for by the terms of this Agreement and pay all or any part of the premiums therefor and the costs thereof;
(iv) execute, in connection with any sale provided for in Section 6.5, any endorsements, assignments or other instruments of conveyance or transfer with respect to the Collateral; and
(v) (1) direct any party liable for any payment under any of the Collateral to make payment of any and all moneys due or to become due thereunder directly to the Agent or as the Agent shall direct; (2) ask or demand for, collect, and receive payment of and receipt for, any and all moneys, claims and other amounts due or to become due at any time in respect of or arising out of any Collateral; (3) sign and indorse any invoices, freight or express bills, bills of lading, storage or warehouse receipts, drafts against debtors, assignments, verifications, notices and other documents in connection with any of the Collateral; (4) commence and prosecute any suits, actions or proceedings at law or in equity in any court of competent jurisdiction to collect the Collateral or any portion thereof and to enforce any other right in respect of any Collateral; (5) defend any suit, action or proceeding brought against such Grantor with respect to any Collateral; (6) settle, compromise or adjust any such suit, action or proceeding and, in connection therewith, give such discharges or releases as the Agent may deem appropriate; (7) assign any Copyright, Patent or Trademark (along with the goodwill of the business to which any such Copyright, Patent or Trademark pertains), through the world for such term or terms, on such conditions, in such manner, as the Agent shall in its sole discretion determine; and (8) generally, sell, transfer, pledge and make any agreement with respect to or otherwise deal with any of the
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Collateral as fully and completely as though the Agent were the absolute owner thereof for all purposes, and do, at the Agent’s option and such Grantor’s expense, at any time, or from time to time, all acts and things which the Agent deems necessary to protect, preserve or realize upon the Collateral and the Agent’s and the Secured Parties’ security interests therein and to effect the intent of this Agreement, all as fully and effectively as such Grantor might do.
The Agent shall endeavor to provide the Issuer with notice at or about the time of the exercise of its rights in the preceding clause (a), provided that the failure to provide such notice shall not in any way compromise or adversely affect the exercise of any rights or remedies hereunder.
(b) If any Grantor fails to perform or comply with any of its agreements contained herein, the Agent, at its option, but without any obligation so to do, may perform or comply, or otherwise cause performance or compliance, with such agreement.
(c) The expenses of the Agent incurred in connection with actions undertaken as provided in this Section 7.1, together with, if past due, interest thereon at a rate per annum equal to the Default Rate, from the date when due to the Agent to the date reimbursed by the relevant Grantor, shall be payable by such Grantor to the Agent upon not less than five (5) Business Days notice.
(d) Each Grantor hereby ratifies all that said attorneys shall lawfully do or cause to be done by virtue hereof. All powers, authorizations and agencies contained in this Agreement are coupled with an interest and are irrevocable until this Agreement is terminated and the security interests created hereby are released.
7.2 Duty of Agent.
The Agent’s sole duty with respect to the custody, safekeeping and physical preservation of the Collateral in its possession, under Section 9-207 of the New York UCC or otherwise, shall be to deal with it in the same manner as the Agent deals with similar property for its own account. Neither the Agent, any Secured Party nor any of their respective officers, directors, employees or agents shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any Grantor or any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof. The powers conferred on the Agent and the Secured Parties hereunder are solely to protect the Agent’s and the Secured Parties’ interests in the Collateral and shall not impose any duty upon the Agent or any Secured Party to exercise any such powers. The Agent and the Secured Parties shall be accountable only for amounts that they actually receive as a result of the exercise of such powers, and neither they nor any of their officers, directors, employees or agents shall be responsible to any Grantor for any act or failure to act hereunder, except for their own gross negligence or willful misconduct.
7.3 Execution of Financing Statements.
Pursuant to any applicable law, each Grantor authorizes the Agent to file or record financing statements and other filing or recording documents or instruments with respect to the Collateral without the signature of such Grantor in such form and in such offices as the Agent determines appropriate to perfect the security interests of the Agent under this Agreement. Each Grantor authorizes the Agent to use the collateral description “all personal property” or “all assets” in any such financing statements or in any other manner that the Agent, in its sole discretion, deems necessary, advisable or prudent to ensure the perfection of the security interests granted hereunder.
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7.4 Authority of Agent.
Each Grantor acknowledges that the rights and responsibilities of the Agent under this Agreement with respect to any action taken by the Agent or the exercise or non-exercise by the Agent of any option, voting right, request, judgment or other right or remedy provided for herein or resulting or arising out of this Agreement shall, as between the Agent and the Secured Parties, be governed by the Secured Note Indenture and by such other agreements with respect thereto as may exist from time to time among them, but, as between the Agent and the Grantors, the Agent shall be conclusively presumed to be acting as agent for the Secured Parties with full and valid authority so to act or refrain from acting, and no Grantor shall be under any obligation, or entitlement, to make any inquiry respecting such authority.
SECTION 8. MISCELLANEOUS
8.1 Amendments in Writing.
None of the terms or provisions of this Agreement may be waived, amended, supplemented or otherwise modified except in accordance with Article 9 of the Secured Note Indenture.
8.2 Notices.
All notices, requests and demands to or upon the Agent or any Grantor hereunder shall be effected in the manner provided for in Section 13.03 of the Secured Note Indenture.
8.3 No Waiver by Course of Conduct; Cumulative Remedies.
Neither the Agent nor any Secured Party shall by any act (except by a written instrument pursuant to Section 8.1), delay, indulgence, omission or otherwise be deemed to have waived any right or remedy hereunder or to have acquiesced in any Default or Event of Default. No failure to exercise, nor any delay in exercising, on the part of the Agent or any Secured Party, any right, power or privilege hereunder shall operate as a waiver thereof. No single or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. A waiver by the Agent or any Secured Party of any right or remedy hereunder on any one occasion shall not be construed as a bar to any right or remedy which the Agent or such Secured Party would otherwise have on any future occasion. The rights and remedies herein provided are cumulative, may be exercised singly or concurrently and are not exclusive of any other rights or remedies provided by law.
8.4 Enforcement Expenses; Indemnification.
(a) Each Grantor agrees to pay or reimburse each Secured Party and the Agent for all its costs and expenses incurred in enforcing or preserving any rights under this Agreement and the other Noteholder Documents to which such Grantor is a party, including, without limitation, the reasonable fees and disbursements of counsel (including the allocated fees and expenses of in-house counsel) to the Agent and the Secured Parties.
(b) Each Grantor agrees to pay, and to save the Agent and the Secured Parties harmless from, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any of the Collateral or in connection with any of the transactions contemplated by this Agreement.
(c) Each Grantor agrees to pay, and to save the Agent and the Secured Parties harmless from, any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
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costs, expenses or disbursements of any kind or nature whatsoever with respect to the execution, delivery, enforcement, performance and administration of this Agreement to the extent the Issuer would be required to do so pursuant to Section 7.07 of the Secured Note Indenture except those resulting from the Agent’s or any Secured Party’s willful misconduct or gross negligence.
(d) The agreements in this Section 8.4 shall survive repayment of the Secured Obligations and termination of the Noteholder Documents.
8.5 Successors and Assigns.
This Agreement shall be binding upon the successors and assigns of each Grantor and shall inure to the benefit of the Agent and the Secured Parties and their successors and assigns; provided that except as permitted by the Secured Note Indenture, no Grantor may assign, transfer or delegate any of its rights or obligations under this Agreement without the prior written consent of the Agent.
8.6 Set-Off.
Subject to the Intercreditor Agreement, each Grantor hereby irrevocably authorizes the Agent and each other Secured Party at any time and from time to time while an Event of Default has occurred and is continuing, without notice to such Grantor or any other Grantor, any such notice being expressly waived by each Grantor, to set-off and appropriate and apply any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by the Agent or such other Secured Party to or for the credit or the account of such Grantor, or any part thereof in such amounts as the Agent or such other Secured Party may elect, against and on account of the obligations and liabilities of such Grantor to the Agent or such other Secured Party hereunder and claims of every nature and description of the Agent or such other Secured Party against such Grantor, in any currency, whether arising hereunder, under the Secured Note Indenture or any other Noteholder Document, as the Agent or such other Secured Party may elect, whether or not the Agent or any other Secured Party has made any demand for payment and although such obligations, liabilities and claims may be contingent or unmatured. The Agent and each other Secured Party shall endeavor to notify the Issuer promptly of any such set-off and the application made by the Agent or such other Secured Party of the proceeds thereof, provided that the failure to give such notice shall not affect the validity of such set-off and application. The rights of the Agent and each other Secured Party under this Section 8.6 are in addition to other rights and remedies (including, without limitation, other rights of set-off) which the Agent or such other Secured Party may have.
8.7 Counterparts.
This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts (including by telecopy), and all of said counterparts taken together shall be deemed to constitute one and the same instrument.
8.8 Severability.
Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
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8.9 Section Headings.
The Section headings used in this Agreement are for convenience of reference only and are not to affect the construction hereof or be taken into consideration in the interpretation hereof.
8.10 Integration.
This Agreement and the other Noteholder Documents represent the agreement of the Grantors, the Agent and the Secured Parties with respect to the subject matter hereof and thereof, and there are no promises, undertakings, representations or warranties by the Agent or any Secured Parties relative to subject matter hereof and thereof not expressly set forth or referred to herein or in the other Noteholder Documents.
8.11 GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
8.12 Submission To Jurisdiction; Waivers.
Each Grantor hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or proceeding relating to this Agreement and the other Noteholder Documents to which it is a party, or for recognition and enforcement of any judgment in respect thereof, to the non-exclusive general jurisdiction of the courts of the State of New York, the courts of the United States of America for the Southern District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such courts and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to such Grantor at its address referred to in Section 8.2 or at such other address of which the Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit the right to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding referred to in this Section any special, exemplary, punitive or consequential damages.
8.13 Acknowledgements.
Each Grantor hereby acknowledges that:
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(a) it has been advised by counsel in the negotiation, execution and delivery of this Agreement and the other Noteholder Documents to which it is a party;
(b) neither the Agent nor any Secured Party has any fiduciary relationship with or duty to any Grantor arising out of or in connection with this Agreement or any of the other Noteholder Documents, and the relationship between the Grantors, on the one hand, and the Agent and Secured Parties, on the other hand, in connection herewith or therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Noteholder Document or otherwise exists by virtue of the transactions contemplated hereby among the Secured Parties or among the Grantors and the Secured Parties; and
(d) the Agent may at any time and from time to time appoint a collateral agent to maintain any of the Collateral, maintain books and records regarding any Collateral, release Collateral, and assist in any aspect arising in connection with the Collateral as Agent may desire; and the Agent may appoint itself, any affiliate or a third party as the Collateral Agent, and all reasonable costs of the collateral agent shall be borne by the Grantors.
8.14 Additional Grantors.
Each Restricted Subsidiary of Hovnanian shall become a Grantor for all purposes of this Agreement upon execution and delivery by such Subsidiary of a Joinder Agreement, substantially in the form of Exhibit A hereto.
8.15 Releases.
(a) Upon the indefeasible payment in full of all outstanding Secured Obligations, the Collateral shall be automatically released from the Liens created hereby, and this Agreement and all obligations (other than those expressly stated to survive such termination) of the Agent and each Grantor hereunder shall automatically terminate, all without delivery of any instrument or performance of any act by any party, and all rights to the Collateral shall revert to the Grantors. At the request and sole expense of any Grantor following any such termination, the Agent shall deliver to such Grantor any Collateral held by the Agent hereunder, and execute and deliver to such Grantor such documents as such Grantor shall reasonably request to evidence such termination.
(b) If any of the Collateral shall be sold or otherwise transferred pursuant to a transaction permitted by the Secured Note Indenture, the Liens created hereby on such Collateral shall automatically terminate to the extent provided for in Section 11.04 of the Secured Note Indenture. If the Liens on any Collateral are released by the Administrative Agent, the Liens created hereby shall be automatically, unconditionally and simultaneously released as provided in the Intercreditor Agreement. At the request and sole expense of such Grantor, the Agent shall deliver to such Grantor any Collateral held by the Agent hereunder, and execute and deliver to such Grantor such documents as the Grantor shall reasonably request to evidence such termination or release.
8.16 Automatic Release of Collateral.
At any time after the initial execution and delivery of this Agreement to the Secured Parties, Grantors and their respective Collateral may be released from this Agreement pursuant to Section 11.04 of the Secured Note Indenture, or at the times and to the extent required by the Intercreditor Agreement. No notice of such release of any Grantor or such Grantor’s Collateral shall be required to be given to any other Grantor and each Grantor hereby consents thereto.
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8.17 WAIVER OF JURY TRIAL.
EACH GRANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER NOTEHOLDER DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
8.18 Intercreditor Agreement.
Notwithstanding anything herein to the contrary, the lien and security interest granted to the Agent pursuant to this Agreement and the exercise of any right or remedy by the Agent hereunder are subject to the provisions of the Intercreditor Agreement. In the event of any conflict between the terms of the Intercreditor Agreement and this Agreement, the terms of the Intercreditor Agreement shall govern.
8.19 Control Agreements.
In connection with each agreement made at any time pursuant to Sections 9-104 or 8-106 of the Uniform Commercial Code among the Agent, any one or more Grantors, and any depository financial institution or issuer of uncertificated mutual fund shares or other uncertificated securities and any other Persons party thereto, the Agent shall not deliver to any such depository or issuer, instructions directing the disposition of the deposit or uncertificated fund shares or other securities unless an Event of Default has occurred and is continuing at such time.
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[SIGNATURE PAGE 1 OF 54 TO THE AMENDED AND RESTATED SECURITY AGREEMENT]
IN WITNESS WHEREOF, each of the undersigned has caused this Security Agreement to be duly executed and delivered as of the date first above written.
Secured Party:
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DEUTSCHE BANK NATIONAL TRUST COMPANY, as |
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[SIGNATURE PAGE 2 OF 54 TO THE SECOND LIEN SECURITY AGREEMENT]
Debtors:
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X. XXXXXXXXX ENTERPRISES, INC. |
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Xxxxx X. Xxxx |
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Senior Vice-President — Finance and Treasurer |
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[SIGNATURE PAGE 3 OF 54 TO THE SECOND LIEN SECURITY AGREEMENT]
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HOVNANIAN ENTERPRISES, INC. |
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Senior Vice-President — Finance and Treasurer |
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EASTERN TITLE AGENCY, INC. |
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FOUNDERS TITLE AGENCY, INC. |
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GOVERNOR’S ABSTRACT CO., INC. |
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HOVNANIAN DEVELOPMENTS OF FLORIDA, INC. |
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K. HOV INTERNATIONAL, INC. |
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K. HOV IP, II, INC. |
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K. HOV IP, INC. |
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X. XXXXXXXXX ACQUISITIONS, INC. |
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X. XXXXXXXXX AT BERNARDS IV, INC. |
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X. XXXXXXXXX AT BRANCHBURG III, INC. |
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X. XXXXXXXXX AT BRIDGEPORT, INC. |
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X. XXXXXXXXX AT BRIDGEWATER VI, INC. |
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X. XXXXXXXXX AT BURLINGTON III, INC. |
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X. XXXXXXXXX AT BURLINGTON, INC. |
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X. XXXXXXXXX AT CALABRIA, INC. |
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X. XXXXXXXXX AT XXXXXXX XXXXX, INC. |
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X. XXXXXXXXX AT CARMEL DEL MAR, INC. |
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X. XXXXXXXXX AT CASTILE, INC. |
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By: |
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Xxxxx X. Xxxx |
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On behalf of, and as Senior
Vice-President — Finance |
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Attest: |
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Xxxxx X. Xxxxxxxx |
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Secretary |
[SIGNATURE PAGE 4 OF 54 TO THE SECOND LIEN SECURITY AGREEMENT]
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X. XXXXXXXXX AT CHAPARRAL, INC. |
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X. XXXXXXXXX AT CLARKSTOWN, INC. |
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X. XXXXXXXXX AT CRESTLINE, INC. |
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X. XXXXXXXXX AT XXXXXXXXX HILLS, INC. |
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X. XXXXXXXXX AT EAST WHITELAND I, INC. |
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X. XXXXXXXXX AT FREEHOLD TOWNSHIP I, INC. |
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X. XXXXXXXXX AT HERSHEY’S MILL, INC. |
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X. XXXXXXXXX AT HACKETTSTOWN, INC. |
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X. XXXXXXXXX AT HIGHLAND VINEYARDS, INC. |
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X. XXXXXXXXX AT HOPEWELL IV, INC. |
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X. XXXXXXXXX AT HOPEWELL VI, INC. |
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X. XXXXXXXXX AT XXXXXX TOWNSHIP, INC. |
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X. XXXXXXXXX AT KINGS GRANT I, INC. |
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X. XXXXXXXXX AT LA TERRAZA, INC. |
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X. XXXXXXXXX AT LAKEWOOD, INC. |
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X. XXXXXXXXX AT LOWER SAUCON, INC. |
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X. XXXXXXXXX AT MAHWAH II, INC. |
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X. XXXXXXXXX AT MAHWAH VI, INC. |
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X. XXXXXXXXX AT MAHWAH VII, INC. |
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X. XXXXXXXXX AT MANALAPAN, INC. |
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X. XXXXXXXXX AT MARLBORO II, INC. |
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X. XXXXXXXXX AT MARLBORO TOWNSHIP III, INC. |
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X. XXXXXXXXX AT MARLBORO TOWNSHIP IV, INC. |
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X. XXXXXXXXX AT XXXXXXXXXX I, INC. |
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X. XXXXXXXXX AT XXXXXX XX, INC. |
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By: |
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Xxxxx X. Xxxx |
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On behalf of, and as Senior
Vice-President — Finance |
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Attest: |
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Xxxxx X. Xxxxxxxx |
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Secretary |
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[SIGNATURE PAGE 5 OF 54 TO THE SECOND LIEN SECURITY AGREEMENT]
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X. XXXXXXXXX AT NORTHERN WESTCHESTER, INC. |
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X. XXXXXXXXX AT NORTHLAKE, INC. |
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X. XXXXXXXXX AT OCEAN TOWNSHIP, INC. |
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X. XXXXXXXXX AT OCEAN WALK, INC. |
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X. XXXXXXXXX AT PERKIOMEN I, INC. |
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X. XXXXXXXXX AT PERKIOMEN II, INC. |
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X. XXXXXXXXX AT RANCHO CRISTIANITOS, INC. |
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X. XXXXXXXXX AT RESERVOIR RIDGE, INC. |
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X. XXXXXXXXX AT SAN SEVAINE, INC. |
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X. XXXXXXXXX AT SARATOGA, INC. |
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X. XXXXXXXXX AT SAWMILL, INC. |
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X. XXXXXXXXX AT SCOTCH PLAINS II, INC. |
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X. XXXXXXXXX AT SMITHVILLE, INC. |
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X. XXXXXXXXX AT SOUTH BRUNSWICK V, INC. |
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X. XXXXXXXXX AT STONE CANYON, INC. |
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X. XXXXXXXXX AT STONY POINT, INC. |
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X. XXXXXXXXX AT SYCAMORE, INC. |
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X. XXXXXXXXX AT TANNERY HILL, INC. |
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X. XXXXXXXXX AT THE BLUFF, INC. |
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X. XXXXXXXXX AT THORNBURY, INC. |
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X. XXXXXXXXX AT TIERRASANTA, INC. |
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X. XXXXXXXXX AT TROVATA, INC. |
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X. XXXXXXXXX AT TUXEDO, INC. |
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X. XXXXXXXXX AT UNION TOWNSHIP I, INC. |
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By: |
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Xxxxx X. Xxxx |
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On behalf of, and as Senior
Vice-President — Finance |
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Attest: |
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Xxxxx X. Xxxxxxxx |
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|
Secretary |
|
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[SIGNATURE PAGE 6 OF 54 TO THE SECOND LIEN SECURITY AGREEMENT]
|
|
X.
XXXXXXXXX AT UPPER FREEHOLD TOWNSHIP I, |
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X. XXXXXXXXX AT UPPER MAKEFIELD I, INC. |
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X. XXXXXXXXX AT XXXX RANCH, INC. |
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X. XXXXXXXXX AT WALL TOWNSHIP VI, INC. |
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X. XXXXXXXXX AT WALL TOWNSHIP VIII, INC. |
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X. XXXXXXXXX AT WASHINGTONVILLE, INC. |
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X. XXXXXXXXX AT XXXXX III, INC. |
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X. XXXXXXXXX AT XXXXX V, INC. |
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X. XXXXXXXXX AT WILDROSE, INC. |
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X. XXXXXXXXX COMMUNITIES, INC. |
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X. XXXXXXXXX COMPANIES NORTHEAST, INC. |
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X. XXXXXXXXX COMPANIES OF CALIFORNIA, INC. |
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X. XXXXXXXXX COMPANIES OF MARYLAND, INC. |
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X. XXXXXXXXX COMPANIES OF NEW YORK, INC. |
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X. XXXXXXXXX COMPANIES OF PENNSYLVANIA, INC. |
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X.
XXXXXXXXX COMPANIES OF SOUTHERN |
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X. XXXXXXXXX COMPANIES OF VIRGINIA, INC. |
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X. XXXXXXXXX CONSTRUCTION II, INC. |
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||||
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X. XXXXXXXXX CONSTRUCTION III, INC. |
||||
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||||
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X. XXXXXXXXX CONSTRUCTION MANAGEMENT, INC. |
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||||
|
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X. XXXXXXXXX DEVELOPMENTS OF VIRGINIA, INC. |
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X. XXXXXXXXX DEVELOPMENTS OF ARIZONA, INC. |
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X. XXXXXXXXX DEVELOPMENTS OF CALIFORNIA, INC. |
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||||
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||||
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By: |
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|
|
Xxxxx X. Xxxx |
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|
|
On behalf of, and as Senior
Vice-President — Finance |
|
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|
|
Attest: |
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|
|
Xxxxx X. Xxxxxxxx |
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|
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|
|
Secretary |
|
|
[SIGNATURE PAGE 7 OF 54 TO THE SECOND LIEN SECURITY AGREEMENT]
|
|
X.
XXXXXXXXX DEVELOPMENTS OF CONNECTICUT, |
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X. XXXXXXXXX DEVELOPMENTS OF D.C., INC. |
||||
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|
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X. XXXXXXXXX DEVELOPMENTS OF DELAWARE, INC. |
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|
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X. XXXXXXXXX DEVELOPMENTS OF GEORGIA, INC. |
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X. XXXXXXXXX DEVELOPMENTS OF ILLINOIS, INC. |
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X. XXXXXXXXX DEVELOPMENTS OF INDIANA, INC. |
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X. XXXXXXXXX DEVELOPMENTS OF KENTUCKY, INC. |
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X. XXXXXXXXX DEVELOPMENTS OF MARYLAND, INC. |
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X. XXXXXXXXX DEVELOPMENTS OF MICHIGAN, INC. |
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X. XXXXXXXXX DEVELOPMENTS OF MINNESOTA, INC. |
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X.
XXXXXXXXX DEVELOPMENTS OF NEW JERSEY II, |
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X. XXXXXXXXX DEVELOPMENTS OF NEW JERSEY, INC. |
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X. XXXXXXXXX DEVELOPMENTS OF NEW YORK, INC. |
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X.
XXXXXXXXX DEVELOPMENTS OF NORTH |
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X. XXXXXXXXX DEVELOPMENTS OF OHIO, INC. |
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X.
XXXXXXXXX DEVELOPMENTS OF PENNSYLVANIA, |
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X.
XXXXXXXXX DEVELOPMENTS OF SOUTH |
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X. XXXXXXXXX DEVELOPMENTS OF TEXAS, INC. |
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||||
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X.
XXXXXXXXX DEVELOPMENTS OF WEST VIRGINIA, |
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||||
|
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X. XXXXXXXXX FORECAST HOMES NORTHERN, INC. |
||||
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X. XXXXXXXXX HOMES OF NORTH CAROLINA, INC. |
||||
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||||
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||||
|
|
By: |
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|
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|
|
Xxxxx X. Xxxx |
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|
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|
|
On behalf of, and as Senior
Vice-President — Finance |
|
|
|
|
|
|
|
|
|
|
Attest: |
|
|
|
|
|
|
Xxxxx X. Xxxxxxxx |
|
|
|
|
|
Secretary |
|
|
[SIGNATURE PAGE 8 OF 54 TO THE SECOND LIEN SECURITY AGREEMENT]
|
|
X. XXXXXXXXX HOMES OF VIRGINIA, INC. |
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X. XXXXXXXXX PA REAL ESTATE, INC. |
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||||
|
|
X. XXXXXXXXX PORT IMPERIAL URBAN RENEWAL, INC. |
||||
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||||
|
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X. XXXXXXXXX PROPERTIES OF NORTH BRUNSWICK V, INC. |
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||||
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X. XXXXXXXXX PROPERTIES OF RED BANK, INC. |
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KHC ACQUISITION, INC. |
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|
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LANDARAMA, INC. |
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M&M AT LONG BRANCH, INC. |
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MCNJ, INC. |
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SEABROOK ACCUMULATION CORPORATION |
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||||
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STONEBROOK HOMES, INC. |
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||||
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THE MATZEL & MUMFORD ORGANIZATION, INC. |
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|
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WASHINGTON HOMES, INC. |
||||
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|
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WH LAND I, INC. |
||||
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WH PROPERTIES, INC. |
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||||
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By: |
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|
|
Xxxxx X. Xxxx |
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|
|
On behalf of, and as Senior
Vice-President — Finance |
|
|
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|
|
|
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|
|
Attest: |
|
|
|
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|
|
Xxxxx X. Xxxxxxxx |
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|
|
Secretary |
|
|
[SIGNATURE PAGE 9 OF 54 TO THE SECOND LIEN SECURITY AGREEMENT]
|
|
X. XXXXXXXXX HOMES OF D.C., L.L.C. |
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By: |
X. Xxxxxxxxx Developments of D.C., Inc., as the |
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By: |
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|
|
Xxxxx X. Xxxx |
||
|
|
|
Senior Vice-President — Finance and Treasurer |
||
|
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|
||
|
|
|
Attest: |
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|
|
Xxxxx X. Xxxxxxxx |
||
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|
|
Secretary |
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|
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FOUNDERS TITLE AGENCY OF MARYLAND, L.L.C. |
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GREENWAY FARMS UTILITY ASSOCIATES, L.L.C. |
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HOMEBUYERS FINANCIAL SERVICES, L.L.C. |
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HOVNANIAN
LAND INVESTMENT GROUP OF |
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HOVNANIAN LAND INVESTMENT GROUP, L.L.C. |
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X. XXXXXXXXX AT XXXX FARM, L.L.C. |
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X. XXXXXXXXX AT RODERUCK. L.L.C. |
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X. XXXXXXXXX AT WILLOW BROOK, L.L.C. |
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X.
XXXXXXXXX COMPANIES OF METRO D.C. NORTH, |
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X. XXXXXXXXX HOMES AT CAMP SPRINGS, L.L.C. |
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X. XXXXXXXXX HOMES AT CIDER MILL, L.L.C. |
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|
By: |
X. Xxxxxxxxx Developments of Maryland, Inc., as the |
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||
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By: |
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|
|
|
Xxxxx X. Xxxx |
||
|
|
|
Senior Vice-President — Finance and Treasurer |
||
|
|
|
|
||
|
|
|
Attest: |
|
|
|
|
|
Xxxxx X. Xxxxxxxx |
||
|
|
|
Secretary |
||
[SIGNATURE PAGE 10 OF 54 TO THE SECOND LIEN SECURITY AGREEMENT]
|
|
X. XXXXXXXXX HOMES AT FOREST RUN, L.L.C. |
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X.
XXXXXXXXX HOMES AT GREENWAY FARM PARK |
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X. XXXXXXXXX HOMES AT GREENWAY FARM, L.L.C. |
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|
X.
XXXXXXXXX HOMES AT RENAISSANCE PLAZA, |
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|||
|
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X. XXXXXXXXX HOMES AT XXXXXXX, L.L.C. |
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X. XXXXXXXXX HOMES OF MARYLAND, L.L.C. |
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|||
|
|
X.
XXXXXXXXX’X FOUR SEASONS AT KENT ISLAND |
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|
X.
XXXXXXXXX’X FOUR SEASONS AT KENT ISLAND, |
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|
X.
XXXXXXXXX’X FOUR SEASONS AT ST. MARGARETS |
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|||
|
|
RIDGEMORE UTILITY, L.L.C. |
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|
|||
|
|
WASHINGTON
HOMES AT COLUMBIA TOWN CENTER, |
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|
|
|
|||
|
|
WH/PR LAND COMPANY, LLC |
|||
|
|
|
|||
|
|
WOODLAND
LAKES CONDOS AT BOWIE NEWTOWN, |
|||
|
|
|
|||
|
|
By: |
X. Xxxxxxxxx Developments of Maryland, Inc., as the |
||
|
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|
||
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|
|||
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|
|
By: |
|
|
|
|
|
Xxxxx X. Xxxx |
||
|
|
|
Senior Vice-President — Finance and Treasurer |
||
|
|
|
|
||
|
|
|
Attest: |
|
|
|
|
|
Xxxxx X. Xxxxxxxx |
||
|
|
|
Secretary |
||
[SIGNATURE PAGE 11 OF 54 TO THE SECOND LIEN SECURITY AGREEMENT]
|
|
XXXXXX, L.L.C. |
|||
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|
|||
|
|
DULLES COPPERMINE, L.L.C. |
|||
|
|
|
|||
|
|
HOVNANIAN
LAND INVESTMENT GROUP OF VIRGINIA, |
|||
|
|
|
|||
|
|
X. XXXXXXXXX AT LAKE RIDGE CROSSING, L.L.C. |
|||
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|
|||
|
|
X. XXXXXXXXX AT LAKE TERRAPIN, L.L.C. |
|||
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|
|||
|
|
X.
XXXXXXXXX FOUR SEASONS @ HISTORIC VIRGINIA, |
|||
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|||
|
|
X. XXXXXXXXX FRANCUSCUS HOMES, L.L.C. |
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|||
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|
X. XXXXXXXXX HOMES AT CAMERON STATION, L.L.C. |
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|||
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|
X.
XXXXXXXXX HOMES AT BELMONT OVERLOOK, |
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|||
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|
X. XXXXXXXXX HOMES AT XXXXX STREET, L.L.C. |
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|||
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|
X. XXXXXXXXX HOMES AT VICTORIA STATION, L.L.C. |
|||
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|||
|
|
X. XXXXXXXXX SUMMIT HOLDINGS, L.L.C. |
|||
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X.
XXXXXXXXX’X FOUR SEASONS AT ASHBURN |
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X.
XXXXXXXXX’X FOUR SEASONS AT |
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X.
XXXXXXXXX’X FOUR SEASONS AT DULLES |
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X.
XXXXXXXXX’X FOUR SEASONS AT DULLES |
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X. XXXXXXXXX’X FOUR SEASONS AT NEW KENT, L.L.C. |
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X. XXXXXXXXX’X FOUR SEASONS AT VINT HILL, L.L.C. |
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By: |
X. Xxxxxxxxx Developments of Virginia, Inc., as the |
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By: |
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Xxxxx X. Xxxx |
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Senior Vice-President — Finance and Treasurer |
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Attest: |
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Xxxxx X. Xxxxxxxx |
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Secretary |
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[SIGNATURE PAGE 12 OF 54 TO THE SECOND LIEN SECURITY AGREEMENT]
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AUDDIE ENTERPRISES, L.L.C. |
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BUILDER SERVICES NJ, L.L.C. |
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HOVNANIAN
LAND INVESTMENT GROUP OF NEW |
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X.
XXXXXXXXX AT ABERDEEN URBAN RENEWAL, |
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X. XXXXXXXXX AT ALLENDALE, L.L.C. |
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X. XXXXXXXXX AT BARNEGAT I, L.L.C. |
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X. XXXXXXXXX AT BARNEGAT II, L.L.C. |
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X. XXXXXXXXX AT BARNEGAT III, L.L.C. |
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X. XXXXXXXXX AT BERKELEY, L.L.C. |
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X. XXXXXXXXX AT XXXXXXXX V, L.L.C. |
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By: |
X. Xxxxxxxxx Holdings NJ, L.L.C., as the sole member |
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By: |
X. Xxxxxxxxx Developments of New Jersey, |
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By: |
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Xxxxx X. Xxxx |
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Senior Vice-President — Finance and |
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Attest: |
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Xxxxx X. Xxxxxxxx |
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Secretary |
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AND |
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By: |
X. Xxxxxxxxx Developments of New Jersey II, |
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By: |
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Xxxxx X. Xxxx |
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Senior Vice-President — Finance and |
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Attest: |
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Xxxxx X. Xxxxxxxx |
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Secretary |
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[SIGNATURE PAGE 13 OF 54 TO THE SECOND LIEN SECURITY AGREEMENT]
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X. XXXXXXXXX AT BLUE HERON PINES, L.L.C. |
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X. XXXXXXXXX AT BRIDGEWATER I, L.L.C |
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X. XXXXXXXXX AT CAMDEN I, L.L.C. |
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X. XXXXXXXXX AT CEDAR GROVE III, L.L.C. |
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X. XXXXXXXXX AT CEDAR GROVE IV, L.L.C. |
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X. XXXXXXXXX AT XXXXXXX I, L.L.C. |
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X. XXXXXXXXX AT CHESTERFIELD, L.L.C. |
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X. XXXXXXXXX AT CHESTERFIELD II, L.L.C. |
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X. XXXXXXXXX AT XXXXXXX XX, L.L.C. |
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X. XXXXXXXXX AT XXXXXXX, L.L.C. |
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X. XXXXXXXXX AT CRANBURY, L.L.C. |
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X. XXXXXXXXX AT CURRIES XXXXX, L.L.C. |
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By: |
X. Xxxxxxxxx Holdings NJ, L.L.C., as the sole member |
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By: |
X. Xxxxxxxxx Developments of New Jersey, |
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By: |
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Xxxxx X. Xxxx |
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Senior Vice-President — Finance and |
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Attest: |
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Xxxxx X. Xxxxxxxx |
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Secretary |
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AND |
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By: |
X. Xxxxxxxxx Developments of New Jersey II, |
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By: |
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Xxxxx X. Xxxx |
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Senior Vice-President — Finance and |
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Attest: |
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Xxxxx X. Xxxxxxxx |
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Secretary |
||||||
[SIGNATURE PAGE 14 OF 54 TO THE SECOND LIEN SECURITY AGREEMENT]
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X. XXXXXXXXX AT DENVILLE, L.L.C. |
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X. XXXXXXXXX AT DEPTFORD TOWNSHIP, L.L.C. |
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X. XXXXXXXXX AT DOVER, L.L.C. |
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X. XXXXXXXXX AT EDGEWATER II, L.L.C. |
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X. XXXXXXXXX AT EDGEWATER, L.L.C. |
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X. XXXXXXXXX AT EGG HARBOR TOWNSHIP, L.L.C. |
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X. XXXXXXXXX AT EGG HARBOR TOWNSHIP II, L.L.C. |
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X. XXXXXXXXX AT ELK TOWNSHIP, L.L.C. |
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|||||||
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X. XXXXXXXXX AT FIFTH AVENUE, L.L.C. |
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|||||||
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By: |
X. Xxxxxxxxx Holdings NJ, L.L.C., as the sole member |
||||||
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By: |
X. Xxxxxxxxx Developments of New Jersey, |
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By: |
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||||
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Xxxxx X. Xxxx |
||||
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Senior Vice-President — Finance and |
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||||
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Attest: |
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||||
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Xxxxx X. Xxxxxxxx |
||||
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Secretary |
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AND |
||||||
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||||||||
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By: |
X. Xxxxxxxxx Developments of New Jersey II, |
||||||
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||||||||
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By: |
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||||||
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Xxxxx X. Xxxx |
||||||
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|
Senior Vice-President — Finance and |
||||||
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||||||
|
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Attest: |
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||||||
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Xxxxx X. Xxxxxxxx |
||||||
|
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|
Secretary |
||||||
[SIGNATURE PAGE 15 OF 54 TO THE SECOND LIEN SECURITY AGREEMENT]
|
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X. XXXXXXXXX AT XXXXXXXX I, L.L.C. |
|||||||
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X. XXXXXXXXX AT XXXXXXXX XX, L.L.C. |
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X. XXXXXXXXX AT FOREST XXXXXXX, L.L.C. |
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X. XXXXXXXXX AT FRANKLIN, L.L.C. |
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X. XXXXXXXXX AT FREEHOLD TOWNSHIP, L.L.C. |
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X. XXXXXXXXX AT XXXXXXXX, L.L.C. |
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X. XXXXXXXXX AT GREAT NOTCH, L.L.C. |
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X. XXXXXXXXX AT XXXXXXXXXX, L.L.C. |
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|||||||
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X. XXXXXXXXX AT HACKETTSTOWN II, L.L.C. |
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|||||||
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X. XXXXXXXXX AT HAMBURG CONTRACTORS, L.L.C. |
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|||||||
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X. XXXXXXXXX AT HAMBURG, L.L.C. |
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|||||||
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X. XXXXXXXXX AT XXXXXXXXX, L.L.C |
|||||||
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|||||||
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By: |
X. Xxxxxxxxx Holdings NJ, L.L.C., as the sole member |
||||||
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||||||
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By: |
X. Xxxxxxxxx Developments of New Jersey, |
|||||
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|||||
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|||||
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By: |
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||||
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Xxxxx X. Xxxx |
||||
|
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|
|
Senior Vice-President — Finance and |
||||
|
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|
||||
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|
|
Attest: |
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||||
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|
|
Xxxxx X. Xxxxxxxx |
||||
|
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|
|
Secretary |
||||
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||||
|
|
|
AND |
||||||
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||||||||
|
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By: |
X. Xxxxxxxxx Developments of New Jersey II, |
||||||
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||||||||
|
|
By: |
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||||||
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|
|
Xxxxx X. Xxxx |
||||||
|
|
|
Senior Vice-President — Finance and |
||||||
|
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|
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||||||
|
|
Attest: |
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||||||
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|
|
Xxxxx X. Xxxxxxxx |
||||||
|
|
|
Secretary |
||||||
[SIGNATURE PAGE 16 OF 54 TO THE SECOND LIEN SECURITY AGREEMENT]
|
|
X. XXXXXXXXX AT HAZLET, L.L.C. |
|||||||
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|||||||
|
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X. XXXXXXXXX AT HILLTOP, L.L.C. |
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|||||||
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X. XXXXXXXXX AT XXXXXXX I, L.L.C. |
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|||||||
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X. XXXXXXXXX AT XXXXXXX, L.L.C. |
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|||||||
|
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X. XXXXXXXXX AT JERSEY CITY IV, L.L.C. |
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|||||||
|
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X.
XXXXXXXXX AT JERSEY CITY V URBAN RENEWAL |
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|||||||
|
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X. XXXXXXXXX AT KEYPORT, L.L.C. |
|||||||
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|||||||
|
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X. XXXXXXXXX AT LAFAYETTE ESTATES, L.L.C. |
|||||||
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|||||||
|
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X. XXXXXXXXX AT XXXXXXXX V, L.L.C. |
|||||||
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|||||||
|
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X. XXXXXXXXX AT XXXXXXX, L.L.C. |
|||||||
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|||||||
|
|
X.
XXXXXXXXX AT LITTLE EGG HARBOR TOWNSHIP II, |
|||||||
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|||||||
|
|
By: |
X. Xxxxxxxxx Holdings NJ, L.L.C., as the sole member |
||||||
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||||||
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By: |
X. Xxxxxxxxx Developments of New Jersey, |
|||||
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|||||
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|||||
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By: |
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||||
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Xxxxx X. Xxxx |
||||
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|
|
Senior Vice-President — Finance and |
||||
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||||
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Attest: |
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||||
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Xxxxx X. Xxxxxxxx |
||||
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|
|
Secretary |
||||
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||||
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||||||||
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By: |
X. Xxxxxxxxx Developments of New Jersey II, |
||||||
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||||||||
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By: |
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||||||
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|
|
Xxxxx X. Xxxx |
||||||
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|
|
Senior Vice-President — Finance and |
||||||
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||||||
|
|
Attest: |
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||||||
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|
Xxxxx X. Xxxxxxxx |
||||||
|
|
|
Secretary |
||||||
[SIGNATURE PAGE 17 OF 54 TO THE SECOND LIEN SECURITY AGREEMENT]
|
|
X.
XXXXXXXXX AT LITTLE EGG HARBOR |
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|||||||
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X. XXXXXXXXX AT LITTLE EGG HARBOR, L.L.C. |
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|||||||
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X. XXXXXXXXX AT LITTLE EGG HARBOR III, L.L.C. |
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|||||||
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X. XXXXXXXXX AT LONG BRANCH I, L.L.C. |
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X. XXXXXXXXX AT MANALAPAN III, L.L.C. |
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X. XXXXXXXXX AT XXXXXXXXX I, L.L.C. |
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|||||||
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X. XXXXXXXXX AT MANSFIELD II, L.L.C. |
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X. XXXXXXXXX AT XXXXXXXXX III, L.L.C. |
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X. XXXXXXXXX AT MAPLE AVENUE, L.L.C. |
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|||||||
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X. XXXXXXXXX AT MARLBORO TOWNSHIP IX, L.L.C. |
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|||||||
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X. XXXXXXXXX AT MARLBORO TOWNSHIP V, L.L.C. |
|||||||
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|||||||
|
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X. XXXXXXXXX AT MARLBORO TOWNSHIP VIII, L.L.C. |
|||||||
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|||||||
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By: |
X. Xxxxxxxxx Holdings NJ, L.L.C., as the sole member |
||||||
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||||||
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By: |
X. Xxxxxxxxx Developments of New Jersey, |
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|||||
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By: |
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||||
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Xxxxx X. Xxxx |
||||
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|
Senior Vice-President — Finance and |
||||
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||||
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Attest: |
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||||
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Xxxxx X. Xxxxxxxx |
||||
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Secretary |
||||
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||||
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AND |
||||||
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||||||||
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By: |
X. Xxxxxxxxx Developments of New Jersey II, |
||||||
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||||||||
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By: |
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||||||
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|
Xxxxx X. Xxxx |
||||||
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|
Senior Vice-President — Finance and |
||||||
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||||||
|
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Attest: |
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||||||
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|
Xxxxx X. Xxxxxxxx |
||||||
|
|
|
Secretary |
||||||
[SIGNATURE PAGE 18 OF 54 TO THE SECOND LIEN SECURITY AGREEMENT]
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X. XXXXXXXXX AT MARLBORO VI, L.L.C. |
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X. XXXXXXXXX AT MARLBORO VII, L.L.C. |
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X. XXXXXXXXX AT MENDHAM TOWNSHIP, L.L.C. |
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X. XXXXXXXXX AT MIDDLE TOWNSHIP, L.L.C. |
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X. XXXXXXXXX AT MIDDLE TOWNSHIP II, L.L.C. |
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X. XXXXXXXXX AT MIDDLETOWN II, L.L.C. |
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X. XXXXXXXXX AT MIDDLETOWN, L.L.C. |
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X. XXXXXXXXX AT MILLVILLE I, L.L.C. |
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X. XXXXXXXXX AT MILLVILLE II, L.L.C. |
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X. XXXXXXXXX AT MILLVILLE III, L.L.C. |
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X. XXXXXXXXX AT XXXXXX III, L.L.C. |
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|||
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By: |
X. Xxxxxxxxx Holdings NJ, L.L.C., as the sole member |
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||
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By: |
X. Xxxxxxxxx Developments of New Jersey, |
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By: |
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Xxxxx X. Xxxx |
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|
|
Senior Vice-President -- Finance and |
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|
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Treasurer |
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Attest: |
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Xxxxx X. Xxxxxxxx |
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Secretary |
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AND |
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By: |
X. Xxxxxxxxx Developments of New Jersey II, |
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By: |
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Xxxxx X. Xxxx |
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Senior Vice-President -- Finance and |
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Treasurer |
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Attest: |
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Xxxxx X. Xxxxxxxx |
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Secretary |
[SIGNATURE PAGE 19 OF 54 TO THE SECOND LIEN SECURITY AGREEMENT]
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X. XXXXXXXXX AT XXXXXX XX, L.L.C. |
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X. XXXXXXXXX AT MONROE NJ, L.L.C. |
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X. XXXXXXXXX AT MONTVALE, L.L.C. |
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X. XXXXXXXXX AT MT. OLIVE TOWNSHIP, L.L.C. |
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X.
XXXXXXXXX AT NEW BRUNSWICK URBAN |
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X. XXXXXXXXX AT NORTH BERGEN, L.L.C. |
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X. XXXXXXXXX AT NORTH BRUNSWICK VI, L.L.C. |
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X. XXXXXXXXX AT NORTH XXXXXXXX II, L.L.C. |
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X. XXXXXXXXX AT NORTH XXXXXXXX III, L.L.C. |
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X. XXXXXXXXX AT NORTH XXXXXXXX, L.L.C. |
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X. XXXXXXXXX AT NORTH HALEDON, L.L.C. |
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Xxxxxxxxx Holdings NJ, L.L.C., as the sole member |
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By: |
X.
Xxxxxxxxx Developments of New Jersey, |
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By: |
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Xxxxx X. Xxxx |
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Senior Vice-President — Finance and |
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Treasurer |
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Attest: |
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Xxxxx X. Xxxxxxxx |
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Secretary |
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AND |
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By: |
X.
Xxxxxxxxx Developments of New Jersey II, |
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By: |
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Xxxxx X. Xxxx |
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Senior Vice-President — Finance and |
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Treasurer |
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Attest: |
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Xxxxx X. Xxxxxxxx |
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Secretary |
[SIGNATURE PAGE 20 OF 54 TO THE SECOND LIEN SECURITY AGREEMENT]
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X. XXXXXXXXX AT NORTH WILDWOOD, L.L.C. |
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X. XXXXXXXXX AT NORTHFIELD, L.L.C. |
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X. XXXXXXXXX AT OCEANPORT, L.L.C. |
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X. XXXXXXXXX AT OLD BRIDGE, L.L.C. |
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X. XXXXXXXXX AT PARAMUS, L.L.C. |
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X. XXXXXXXXX AT PARSIPPANY-XXXX HILLS, L.L.C. |
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X. XXXXXXXXX AT PEAPACK-GLADSTONE, L.L.C. |
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X. XXXXXXXXX AT PITTSGROVE, L.L.C. |
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X.
XXXXXXXXX AT PORT IMPERIAL URBAN RENEWAL |
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X.
XXXXXXXXX AT PORT IMPERIAL URBAN RENEWAL |
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Xxxxxxxxx Holdings NJ, L.L.C., as the sole member |
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By: |
X.
Xxxxxxxxx Developments of New Jersey, |
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By: |
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Xxxxx X. Xxxx |
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Senior Vice-President — Finance and |
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Treasurer |
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Attest: |
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Xxxxx X. Xxxxxxxx |
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Secretary |
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AND |
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By: |
X.
Xxxxxxxxx Developments of New Jersey II, |
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By: |
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Xxxxx X. Xxxx |
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Senior Vice-President — Finance and |
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Treasurer |
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Attest: |
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Xxxxx X. Xxxxxxxx |
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Secretary |
[SIGNATURE PAGE 21 OF 54 TO THE SECOND LIEN SECURITY AGREEMENT]
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X. XXXXXXXXX AT PRINCETON LANDING, L.L.C. |
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X. XXXXXXXXX AT PRINCETON NJ, L.L.C. |
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X. XXXXXXXXX AT XXXXXXXX I, L.L.C. |
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X. XXXXXXXXX AT READINGTON II, L.L.C. |
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X. XXXXXXXXX AT RED BANK, L.L.C. |
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X. XXXXXXXXX AT RIDGEMONT, L.L.C. |
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X. XXXXXXXXX AT SAYREVILLE, L.L.C. |
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X. XXXXXXXXX AT SCOTCH PLAINS, L.L.C. |
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X. XXXXXXXXX AT SMITHVILLE III, L.L.C. |
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X. XXXXXXXXX AT XXXXXX POINT, L.L.C. |
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By: |
X.
Xxxxxxxxx Holdings NJ, L.L.C., as the sole member |
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By: |
X.
Xxxxxxxxx Developments of New Jersey, |
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By: |
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Xxxxx X. Xxxx |
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Senior Vice-President — Finance and |
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Treasurer |
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Attest: |
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Xxxxx X. Xxxxxxxx |
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Secretary |
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AND |
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By: |
X.
Xxxxxxxxx Developments of New Jersey II, |
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By: |
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Xxxxx X. Xxxx |
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Senior Vice-President — Finance and |
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Treasurer |
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Attest: |
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Xxxxx X. Xxxxxxxx |
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Secretary |
[SIGNATURE PAGE 22 OF 54 TO THE SECOND LIEN SECURITY AGREEMENT]
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X. XXXXXXXXX AT SOUTH BRUNSWICK, L.L.C. |
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X. XXXXXXXXX AT SPARTA, L.L.C. |
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X. XXXXXXXXX AT SPRINGCO, L.L.C. |
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X. XXXXXXXXX AT SPRINGFIELD, L.L.C. |
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X. XXXXXXXXX AT TEANECK, L.L.C. |
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X. XXXXXXXXX AT THE MONARCH, L.L.C. |
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X. XXXXXXXXX AT TRENTON, L.L.C. |
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X. XXXXXXXXX AT TRENTON URBAN RENEWAL, L.L.C. |
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X. XXXXXXXXX AT UNION TOWNSHIP II, L.L.C. |
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X. XXXXXXXXX AT UPPER FREEHOLD TOWNSHIP II, L.L.C. |
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X. XXXXXXXXX AT UPPER FREEHOLD TOWNSHIP III, L.L.C. |
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By: |
X.
Xxxxxxxxx Holdings NJ, L.L.C., as the sole member of |
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By: |
X.
Xxxxxxxxx Developments of New Jersey, |
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By: |
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Xxxxx X. Xxxx |
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Senior Vice-President — Finance and |
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Treasurer |
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Attest: |
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Xxxxx X. Xxxxxxxx |
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Secretary |
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AND |
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By: |
X.
Xxxxxxxxx Developments of New Jersey II, |
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By: |
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Xxxxx X. Xxxx |
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Senior Vice-President — Finance and |
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Treasurer |
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Attest: |
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Xxxxx X. Xxxxxxxx |
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Secretary |
[SIGNATURE PAGE 23 OF 54 TO THE SECOND LIEN SECURITY AGREEMENT]
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X. XXXXXXXXX AT XXXXXX XXXXX RENEWAL, L.L.C. |
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X. XXXXXXXXX AT VINELAND, L.L.C. |
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X. XXXXXXXXX AT WANAQUE, L.L.C. |
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X. XXXXXXXXX AT XXXXXX TOWNSHIP, L.L.C. |
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X. XXXXXXXXX AT WASHINGTON, L.L.C. |
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X. XXXXXXXXX AT XXXXX IX, L.L.C. |
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X. XXXXXXXXX AT XXXXX VIII, L.L.C. |
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X. XXXXXXXXX AT WEST MILFORD, L.L.C. |
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X. XXXXXXXXX AT WEST WINDSOR, L.L.C. |
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X. XXXXXXXXX AT WILDWOOD BAYSIDE, L.L.C. |
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X. XXXXXXXXX AT WOODHILL ESTATES, L.L.C. |
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X. XXXXXXXXX AT WOOLWICH I, L.L.C. |
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By: |
X.
Xxxxxxxxx Holdings NJ, L.L.C., as the sole member |
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By: |
X.
Xxxxxxxxx Developments of New Jersey, |
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By: |
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Xxxxx X. Xxxx |
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Senior Vice-President — Finance and |
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Treasurer |
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Attest: |
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Xxxxx X. Xxxxxxxx |
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Secretary |
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AND |
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By: |
X.
Xxxxxxxxx Developments of New Jersey II, |
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By: |
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Xxxxx X. Xxxx |
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Senior Vice-President — Finance and |
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Treasurer |
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Attest: |
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Xxxxx X. Xxxxxxxx |
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Secretary |
[SIGNATURE PAGE 24 OF 54 TO THE SECOND LIEN SECURITY AGREEMENT]
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X. XXXXXXXXX CENTRAL ACQUISITIONS, L.L.C. |
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X. XXXXXXXXX CHESTERFIELD INVESTMENT, L.L.C. |
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X. XXXXXXXXX CLASSICS, L.L.C. |
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X. XXXXXXXXX CLASSICS CIP, L.L.C. |
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X. XXXXXXXXX XXXXXX POINTE INVESTMENTS, L.L.C. |
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X. XXXXXXXXX HOMES — DFW, L.L.C. |
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X. XXXXXXXXX HOMES OF HOUSTON, L.L.C. |
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X. XXXXXXXXX OF HOUSTON II, L.L.C. |
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X. XXXXXXXXX INVESTMENTS II, L.L.C. |
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X.
XXXXXXXXX NORTH CENTRAL ACQUISITIONS, |
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X. XXXXXXXXX NORTH JERSEY ACQUISITIONS, L.L.C. |
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By: |
X.
Xxxxxxxxx Holdings NJ, L.L.C., as the sole member |
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By: |
X.
Xxxxxxxxx Developments of New Jersey, |
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By: |
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Xxxxx X. Xxxx |
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Senior Vice-President — Finance and |
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Treasurer |
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Attest: |
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Xxxxx X. Xxxxxxxx |
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Secretary |
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AND |
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By: |
X.
Xxxxxxxxx Developments of New Jersey II, |
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By: |
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Xxxxx X. Xxxx |
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Senior Vice-President — Finance and |
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Treasurer |
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Attest: |
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Xxxxx X. Xxxxxxxx |
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Secretary |
[SIGNATURE PAGE 25 OF 54 TO THE SECOND LIEN SECURITY AGREEMENT]
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X. XXXXXXXXX NORTHEAST SERVICES, L.L.C. |
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X. XXXXXXXXX SHORE ACQUISITIONS, L.L.C. |
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X. XXXXXXXXX SOUTHERN NEW JERSEY, X.XX. |
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X. XXXXXXXXX SOUTH JERSEY ACQUISITIONS, L.L.C. |
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X. XXXXXXXXX T&C INVESTMENT, L.L.C. |
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X. XXXXXXXXX VENTURE I, L.L.C. |
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X. XXXXXXXXX’X PRIVATE HOME PORTFOLIO, L.L.C. |
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TERRAPIN REALTY, L.L.C. |
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KHIP, L.L.C. |
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By: |
X.
Xxxxxxxxx Holdings NJ, L.L.C., as the sole member |
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By: |
X.
Xxxxxxxxx Developments of New Jersey, |
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By: |
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Xxxxx X. Xxxx |
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Senior Vice-President — Finance and |
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Treasurer |
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Attest: |
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Xxxxx X. Xxxxxxxx |
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Secretary |
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AND |
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By: |
X.
Xxxxxxxxx Developments of New Jersey II, |
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By: |
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Xxxxx X. Xxxx |
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Senior Vice-President — Finance and |
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Treasurer |
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Attest: |
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Xxxxx X. Xxxxxxxx |
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Secretary |
[SIGNATURE PAGE 26 OF 54 TO THE SECOND LIEN SECURITY AGREEMENT]
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F&W MECHANICAL SERVICES, L.L.C. |
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By: |
X.
Xxxxxxxxx Holdings NJ, L.L.C., as the managing |
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By: |
X.
Xxxxxxxxx Developments of New Jersey, |
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By: |
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Xxxxx X. Xxxx |
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Senior Vice-President — Finance and |
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Treasurer |
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Attest: |
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Xxxxx X. Xxxxxxxx |
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Secretary |
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AND |
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By: |
X.
Xxxxxxxxx Developments of New Jersey II, |
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By: |
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Xxxxx X. Xxxx |
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Senior Vice-President — Finance and |
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Treasurer |
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Xxxxx X. Xxxxxxxx |
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Secretary |
[SIGNATURE PAGE 27 OF 54 TO THE SECOND LIEN SECURITY AGREEMENT]
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XXXXXX POINTE JOINT DEVELOPMENT, L.L.C. |
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Xxxxxxxxx Xxxxxx Pointe Investments, L.L.C., its |
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Xxxxxxxxx Holdings NJ, L.L.C., its sole |
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Xxxxxxxxx Developments of New |
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By: |
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Xxxxx X. Xxxx |
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Senior Vice-President — Finance |
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and Treasurer |
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Attest: |
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Xxxxx X. Xxxxxxxx |
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Secretary |
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AND |
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Xxxxxxxxx Developments of New Jersey II, |
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By: |
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Xxxxx X. Xxxx |
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Senior Vice-President — Finance and |
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Treasurer |
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Xxxxx X. Xxxxxxxx |
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Secretary |
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[SIGNATURE PAGE 28 OF 54 TO THE SECOND LIEN SECURITY AGREEMENT]
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X. XXXXXXXXX AT XXXXXX POINTE, L.L.C. |
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Xxxxxx
Pointe Joint Development, L.L.C., its sole |
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Xxxxxxxxx Xxxxxx Pointe Investments, |
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Xxxxxxxxx Developments of |
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By: |
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Xxxxx X. Xxxx |
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Senior Vice-President — Finance |
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and Treasurer |
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Attest: |
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Xxxxx X. Xxxxxxxx |
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Secretary |
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AND |
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Xxxxxxxxx Developments of New Jersey II, |
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By: |
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Xxxxx X. Xxxx |
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Senior Vice-President — Finance and |
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Treasurer |
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Xxxxx X. Xxxxxxxx |
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Secretary |
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[SIGNATURE PAGE 29 OF 54 TO THE SECOND LIEN SECURITY AGREEMENT]
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PARK TITLE COMPANY, L.L.C. |
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X. Xxxxxxxxx of Houston II, L.L.C., its sole member |
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Xxxxxxxxx Holdings NJ, L.L.C., its sole |
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Xxxxxxxxx Developments of |
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By: |
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Xxxxx X. Xxxx |
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Senior Vice-President — Finance |
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and Treasurer |
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Attest: |
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Xxxxx X. Xxxxxxxx |
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Secretary |
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AND |
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By: |
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Xxxxxxxxx Developments of New Jersey II, |
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By: |
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Xxxxx X. Xxxx |
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Senior Vice-President — Finance and |
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Treasurer |
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Attest: |
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Xxxxx X. Xxxxxxxx |
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Secretary |
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[SIGNATURE PAGE 30 OF 54 TO THE SECOND LIEN SECURITY AGREEMENT]
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PI INVESTMENTS II, L.L.C. |
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By: |
X. Xxxxxxxxx Investments II, L.L.C., its sole member |
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By: |
X.
Xxxxxxxxx Holdings NJ, L.L.C., its sole |
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By: |
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Xxxxxxxxx Developments of New |
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By: |
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Xxxxx X. Xxxx |
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Senior Vice-President — Finance and |
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Treasurer |
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Attest: |
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Xxxxx X. Xxxxxxxx |
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Secretary |
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AND |
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By: |
X.
Xxxxxxxxx Developments of New Jersey II, |
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By: |
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Xxxxx X. Xxxx |
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Senior Vice-President — Finance and |
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Treasurer |
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Attest: |
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Xxxxx X. Xxxxxxxx |
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Secretary |
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[SIGNATURE PAGE 31 OF 54 TO THE SECOND LIEN SECURITY AGREEMENT]
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X.
XXXXXXXXX AT PORT IMPERIAL URBAN RENEWAL |
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X.
XXXXXXXXX AT PORT IMPERIAL URBAN RENEWAL |
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X.
XXXXXXXXX AT PORT IMPERIAL URBAN RENEWAL |
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By: |
PI Investments II, L.L.C., its sole member |
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By: |
X.
Xxxxxxxxx Investments II, L.L.C., its sole |
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By: |
X.
Xxxxxxxxx Holdings NJ, L.L.C., its |
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By: |
X.
Xxxxxxxxx Developments of |
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By: |
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Xxxxx X. Xxxx |
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Senior Vice-President — Finance |
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and Treasurer |
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Attest: |
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Xxxxx X. Xxxxxxxx |
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Secretary |
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AND |
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By: |
X.
Xxxxxxxxx Developments of New Jersey II, |
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By: |
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