Exhibit 10.1

 

THIRD AMENDMENT TO CREDIT AGREEMENT

 

DATED AS OF DECEMBER 12, 2014

 

Reference is made to the Credit Agreement, dated as of December 28, 2012, (as supplemented, amended or otherwise modified, the “ Credit Agreement ”) among The PrivateBank and Trust Company, as Collateral Agent, Administrative Agent and Co-Lead Arranger, (“ The PrivateBank ”), the other financial institutions party to the Credit Agreement (together with The PrivateBank and any additional lenders included on Annex A hereto, the “ Lenders ”) and Primoris Services Corporation, a Delaware corporation, (the “ Borrower ”).  Any terms not defined herein shall have the meanings set forth in the Credit Agreement.

 

RECITALS

 

WHEREAS, pursuant to Section 2.7 of the Credit Agreement, the Borrower has decided to incur additional indebtedness pursuant to a Revolving Facility Increase in the amount of Fifty Million and 00/100 Dollars ($50,000,000);

 

WHEREAS, Section 2.7.1 of the Credit Agreement provides that the aggregate principal amount of all additional Commitments added pursuant to Section 2.7 (whether or not still outstanding or in effect) shall not exceed the Incremental Increase Amount; and

 

WHEREAS, the $50,000,000 Revolving Facility Increase is the Incremental Increase Amount per Section 2.7 of the Credit Agreement; and

 

WHEREAS, subject to the terms and conditions set forth herein, the Lenders (including additional lenders as identified on Annex A hereto) have agreed to the aforementioned Revolving Facility Increase.

 

In consideration of the mutual agreements herein contained, the Lenders and Borrower hereto agree as follows:

 

SECTION  A.                     AMENDMENTS TO CREDIT AGREEMENT

 

Subject to the satisfaction of the conditions set forth in Section B hereof and the accuracy of the representations and warranties set forth in Section C hereof, the Lenders hereby agree with the Borrower to amend, effective on and as of the date first above written, the Credit Agreement as follows:

 

1.                                       The definition of “ L/C Sublimit ” in Section 1 “DEFINITIONS” is hereby deleted in its entirety and replaced with the following definition:

 

L/C Sublimit means One Hundred Twenty-Five Million and 00/100 Dollars ($125,000,000).

 

 

2.                                       The definition of “Loan Documents” in Section 1 “DEFINITIONS” is hereby deleted in its entirety and replaced with the following definition:

 

Loan Documents means this Agreement, the Notes, the Letters of Credit, the Master Letter of Credit Agreement, the L/C Applications, the Agent Fee Letter, the Collateral Documents, the Subordination Agreements and the Intercreditor Agreement as all such documents may be supplemented, amended or otherwise modified from time to time and all documents, instruments and agreements delivered in connection with the foregoing.

 

3.                                       The definition of “ Revolving Commitment ” in Section 1 “DEFINITIONS” is hereby deleted in its entirety and replaced with the following definition:

 

Revolving Commitment means One Hundred Twenty-Five Million and 00/100 Dollars ($125,000,000), as reduced from time to time pursuant to Section 6 .

 

4.                                       Annex A is hereby replaced in its entirety with the attached Annex A.

 

5.                                       Annex B is hereby replaced in its entirety with the attached Annex B.

 

SECTION B.                        CONDITIONS OF AMENDMENT

 

B-1                             Section A of this Third Amendment shall be effective as of the date first written above subject to the receipt by the Collateral Agent of each of the following from the Borrower, all of which must be satisfactory to the Lenders and their counsel in form, substance and execution:

 

(a)                                  This Third Amendment duly executed and delivered by each of the parties hereto;

 

(b)                                  A Counterpart of the Acknowledgement and Consent, a form of which is attached hereto as EXHIBIT A, duly executed and delivered by each of the Guarantors;

 

(c)                                   One original of each Note executed in connection with the Revolving Facility Increase duly executed and delivered by the Borrower;

 

(d)                                  Opinion of counsel to the Borrower;

 

(e)                                   Evidence as requested by the Lenders that the representations and warranties of the Borrower made in Section C of this Third Amendment are true and correct as of the date first written above;

 

(f)                                    Certificate of Secretary of the Borrower certifying as to Good Standing, Articles of Incorporation, Bylaws and corporate Resolutions approving this Third Amendment and the Notes executed in connection with the Revolving Facility Increase;

 

(g)                                   Satisfactory Uniform Commercial Code, pending suit and judgment, tax lien and bankruptcy search results relative to the Borrower and each Guarantor; and

 

(h)                                  Counterpart originals or certified or other copies of all corporate and other proceedings, pertaining directly to this Third Amendment and all documents and instruments directly incident to this Third Amendment as the Lenders or their counsel may reasonably request.

 

 

SECTION C.                        MISCELLANEOUS

 

C-1.                          The Borrower and the Lenders hereby acknowledge and reaffirm the following Terms and Conditions to the Revolving Facility Increase as set forth in Section 2.7.2 of the Credit Agreement:

 

(i) no Default or Event of Default shall exist immediately prior to or after giving effect to such Revolving Facility Increase, and, after giving effect to such Revolving Facility Increase on a pro forma basis, the Borrower shall be in compliance with the financial covenants set forth herein based on the financial information most recently delivered to the Administrative Agent;

 

(ii) the terms and documentation in respect of any Revolving Facility Increase shall be consistent with the Revolving Loans,

 

(iii) any loans made pursuant to a Revolving Facility Increase shall be incurred by the Borrower and will be secured and guaranteed on a pari passu basis with the other obligations of the Borrower,

 

(iv) any such Revolving Facility Increase shall have a maturity date on the Termination Date,

 

(v) any Lenders providing such Revolving Facility Increase shall be entitled to the same voting rights as the existing Lenders, (vi) any such Revolving Facility Increase shall be in a minimum principal amount of (A) $5,000,000 and integral multiples of $5,000,000 in excess thereof,

 

(vi) the proceeds of any such Revolving Facility Increase will be used for the purposes set forth in the Credit Agreement,

 

(vii) the Borrower shall execute a promissory note in favor of any new Lender or any existing Lender requesting a promissory note, as applicable, who provides a Revolving Facility Increase or whose Revolving Commitment is increased, as applicable, pursuant to the Credit Agreement, and

 

(viii) the conditions to Extensions of Credit in the Credit Agreement have been satisfied.

 

C-2.                          The Borrower hereby represents to the Collateral Agent, the Administrative Agent and the Lenders that, (A) no Default or Event of Default shall exist immediately prior to or after giving effect to the Revolving Facility Increase, and (B) after giving effect to any such Revolving Facility Increase on a pro forma basis, the Borrower will be in compliance with the financial covenants set forth in the Credit Agreement.

 

C-3.                          The Borrower hereby represents to the Collateral Agent, the Administrative Agent and the Lenders that as of the date hereof, the representations, warranties and covenants set forth in the Credit Agreement are and shall be and remain true and correct in all material respects (except that the financial covenants shall be deemed to refer to the most recent financial statements of the Borrower delivered to the Lenders) and the Borrower is in full compliance with all other terms and conditions of the Credit Agreement.

 

 

C-4.                          The Borrower hereby represents to the Collateral Agent, the Administrative Agent and the Lenders that there are no Uniform Commercial Code financing statements in effect with respect to the collateral of the Borrower or any Loan Party (other than those Uniform Commercial Code financing statements on file for the benefit of the Bank as Collateral Agent) that secure collateral other than equipment.

 

C-5.                          The Borrower hereby represents to the Collateral Agent, the Administrative Agent and the Lenders that there are no pending lawsuits against the Borrower or any Loan Party that, if decided adversely against the Borrower or any Loan Party, would not be covered by insurance.

 

C-6.                          The Borrower confirms its agreement, pursuant to Section 15.5 of the Credit Agreement to pay promptly all reasonable expenses of the Administrative Agent and the Lenders related to this Third Amendment and all matters contemplated hereby, including, without limitation, all reasonable fees and expenses of counsel to the Lenders and all expenses and fees of Corporation Service Company.

 

C-7.                          Except as expressly provided herein, the execution, delivery and effectiveness of this Third Amendment shall not operate as a waiver of any right, power or remedy of any Lender nor constitute a waiver of any provision of the Credit Agreement, any Loan Document or any other document, instrument or agreement executed and delivered in connection with any of the foregoing.

 

C-8.                          THIS THIRD AMENDMENT SHALL BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ILLINOIS APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.

 

C-9.                          The Lenders hereby consent to the execution and delivery of this Third Amendment and further agree that the Noteholders shall be entitled to rely on the foregoing consent.

 

C-10.                   Except as waived and amended by the foregoing, no other terms of the Credit Agreement are in any way changed by this Third Amendment and the aforementioned documents shall continue in full force and effect in accordance with their original terms.  This Agreement may be executed in counterpart, and by facsimile and by the different parties on different counterpart signature pages, which taken together, shall constitute one and the same Agreement.

 

C-11.                   By executing this Third Amendment, the additional lenders listed on Annex A hereto agree to the terms and conditions of the Credit Agreement and any other Loan Documents and, as such, this Third Amendment shall serve as a joinder agreement per Section 2.7.4 of the Credit Agreement.  The Administrative Agent consents to the addition of the lenders as listed on Annex A hereto.

 

[Signature Page to Follow]

 

 

The parties hereto have caused this Third Amendment to be duly executed and delivered by their duly authorized officers as of the date first set forth above.

 

	PRIMORIS SERVICES CORPORATION
	By:	/s/ John Perisich
		EVP
	THE PRIVATEBANK AND TRUST COMPANY ,
	as Administrative Agent, Collateral Agent and as a Lender
	By:	/s/ John M. O’Connell
		Managing Director
	THE BANK OF THE WEST ,
	as Co- Lead Arranger and as a Lender
	By:	/s/Nabil B. Khoury
		Vice President, Commercial Banking Group
	IBERIABANK ,
	as a Lender
	By:	/s/ Erin D. Fremin
		Senior Vice President
	BRANCH BANKING AND TRUST COMPANY,
	as a Lender
	By:	/s/ Allen K. King
		Senior Vice President
	UMB BANK, n.a.
	as a Lender
	By:	/s/ S. Scott Heady
		S.V.P.

 

Signature Page to Third Amendment

 

 

ANNEX B

 

ADDRESSES FOR NOTICES

 

PRIMORIS SERVICES CORPORATION , as Borrower:

 

John M. Perisich

Sr. Vice President/General Counsel

26000 Commercentre Dr.

Lake Forest, CA  92630

Telephone:  (949) 454-7110

Facsimile:  (949) 595-5544

 

THE PRIVATEBANK AND TRUST COMPANY , as Administrative Agent, Issuing Lender and a Lender:

 

Notices of Borrowing , Conversion, Continuation and Letter of Credit Issuance

 

120 South LaSalle Street
Chicago, Illinois 60603
Attention: John M. O’Connell
Telephone: (312) 564-1239
Facsimile:  (312) 564-6888

 

All Other Notices

 

120 South LaSalle Street

Chicago, Illinois 60603

Attention:  Brad Nelson

Telephone: (312) 564-1351

Facsimile:  (312) 564-1794

 

With a Copy to :

 

James E. Carroll

Perkins Coie LLP

131 South Dearborn Street, Suite 1700

Chicago, Illinois 60603

Telephone:  (312) 324-8445

Facsimile:  (312) 324-9445

 

 

IBERIABANK , as a Lender:

 

Erin D. Fremin

Senior Vice President

Commercial Relationship Manager

NMLS # 585725

601 Poydras Street, Suite 2075

New Orleans, LA 70130

Telephone: (504) 310-7312

Facsimile: (504) 310-7307

Email:  efremin@iberiabank.com

 

With a copy to:

 

William H. Langenstein III

Chaffe McCall, LLP

1100 Poydras Street, Suite 2300

New Orleans, LA 70163

Telephone: (504) 585-7037

Facsimile: (504) 585-7075

 

THE BANK OF THE WEST , as Co-Lead Arranger and as a Lender:

 

Nabil B. Khoury

Commercial Banking Group

15165 Ventura Blvd., Ste. 220

Sherman Oaks, CA 91403

Telephone:  (818) 728-3620

Facsimile:  (818) 728-3611

Email:  nabil.khoury@bankofthewest.com

 

 

UMB BANK, N.A ., as a Lender:

 

S. Scott Heady

Senior Vice President

UMB Bank, n.a.

1010 Grand Boulevard

Kansas City, MO 64106

Telephone:  (816) 860-8513

Facsimile:  (816) 860-7143

Email:  scott.heady@umb.com

 

Blake Smith

Senior Vice President, Corporate Banking

UMB Bank, n.a.

1010 Grand Boulevard

Kansas City, MO 64106

Telephone:  (816) 860-7927 Direct

Facsimile:  (816) 691-6857 Fax

Email:  blake.smith@umb.com

 

BRANCH BANKING AND TRUST COMPANY , as a Lender:

 

Allen K. King

Senior Vice President, Corporate Banking

BB&T Capital Markets

2001 Ross Avenue, Suite 2700

Dallas, TX 75201

Telephone:  (214) 234-7775

Facsimile:  (214) 234-7780

Email:  akking@bbandt.com

 

Janet Wheeler

Vice President, Sales and Service Officer

Capital Markets Corporate Banking

2001 Ross Avenue, Suite 2700

Dallas, TX 75201

Telephone:  (972) 707-6775

 

 

EXHIBIT A

 

FORM OF ACKNOWLEDGEMENT AND CONSENT

 

DATED AS OF DECEMBER             , 2014

 

Each of the undersigned, as a Loan Party, hereby acknowledges and consents to the Third Amendment, of even date herewith, to the Credit Agreement dated as of December 28, 2012, (as supplemented, amended or otherwise modified, the “ Credit Agreement ”) among The PrivateBank and Trust Company, as Administrative Agent and Co-Lead Arranger, the other financial institutions party to the Credit Agreement (together with The PrivateBank, the “ Lenders ”) and Primoris Services Corporation, a Delaware corporation, and hereby confirms and agrees that the Loan Documents to which each Loan Party is a party are, and shall continue to be, in full force and effect and are hereby confirmed and ratified in all respects.  Each of the undersigned Loan Parties further acknowledges and consents, per the Third Amendment and the Notes executed in connection with the Third Amendment, to the increase of the Revolving Commitment to $125,000,000.

 

[Signature Page to Follow]

 

 

IN WITNESS WHEREOF, each of the undersigned has caused its duly authorized officer to execute this Acknowledgement and Consent as of the date first written above.

 

 

PRIMORIS SERVICES CORPORATION			VADNAIS TRENCHLESS SERVICES, INC.
By:			By:
Title:			Its:
ARB, INC.			FORCE SPECIALTY SERVICES, INC.
By:			By:
Title:			Its:
ARB STRUCTURES, INC.			ALASKA CONTINENTAL PIPELINE, INC.
By:			By:
Title:			Its:
CARDINAL CONTRACTORS, INC.			ONQUEST HEATERS, INC.
By:			By:
Title:			Its:
JUNIPER ROCK CORPORATION			BTEX MATERIALS, LLC
By:			By:
Title:			Its:
ONQUEST, INC.			MILLER SPRINGS MATERIALS, L.L.C.
By:			By:
Title:			Its:
STELLARIS LLC			GML COATINGS, LLC
By:			By:
Title:			Its:
JAMES CONSTRUCTION GROUP, L.L.C.			SAXON CONSTRUCTION, INC.
By:			By:
Title:			Its:
ROCKFORD CORPORATION			Q3 CONTRACTING, INC.
By:			By:
Title:			Its:
PRIMORIS ENERGY SERVICES CORPORATION
By:
Title:

 

[Signature Page to Acknowledgement and Consent]

 

Exhibit 10.2

 

WAIVER AND AMENDMENT AGREEMENT

 

DATED AS OF APRIL 30, 2013

 

Reference is made to the Credit Agreement, dated as of December 28, 2012, (the “ Credit Agreement ”) among The PrivateBank and Trust Company, as Administrative Agent and Co-Lead Arranger, (“ The PrivateBank ”), the other financial institutions party to the Credit Agreement (together with The PrivateBank, the “ Lenders ”) and Primoris Services Corporation, a Delaware corporation, (the “ Borrower ”).  Any terms not defined herein shall have the meanings set forth in the Credit Agreement.

 

RECITALS

 

WHEREAS, the Borrower is the sole shareholder of Onquest Heaters, Inc., a Delaware corporation (“Onquest Heaters”);

 

WHEREAS, Section 10.9 of the Credit Agreement requires that the Borrower provide to the Administrative Agent within 30 days of the date of the Credit Agreement evidence satisfactory to the Administrative Agent that Onquest Heaters has been dissolved.  The Borrower did not dissolve Onquest Heaters as required by the Credit Agreement and, as a result, an Event of Default exists under the Credit Agreement (the “Onquest Heaters Event of Default”);

 

WHEREAS, the Lenders have agreed to waive the Onquest Heaters Event of Default and have agreed to a limited waiver of Section 10.9 of the Credit Agreement conditioned upon the addition of Onquest Heaters as a Guarantor and the execution by Onquest Heaters of a Joinder to the Guaranty and Collateral Agreement within fourteen (14) days of the date of this Waiver and Amendment Agreement;

 

WHEREAS, the Borrower is the sole shareholder of Primoris Energy Services Corporation, a Texas corporation (“Primoris Energy Services”).  Primoris Energy Services consummated an Acquisition pursuant to the Asset Purchase Agreement dated March 8, 2012 (the “Purchase Agreement”) with Force Specialty Services, Inc., a Texas corporation (“Force Specialty Services”).  The Acquisition of Force Specialty Services does not constitute a Permitted Acquisition under the Credit Agreement and, as a result, an Event of Default exists under Section 11.5 and Section 11.11 of the Credit Agreement (the “Force Acquisition Event of Default”);

 

WHEREAS, Section 10.9 of the Credit Agreement requires that within 30 days of the acquisition of a Subsidiary, the Borrower shall ensure that the Obligations under the Loan Documents are secured by a first priority perfected Lien in favor of the Collateral Agent on certain of the assets of such acquired Subsidiary and shall ensure that the Obligations are guaranteed by such acquired Subsidiary.  The Borrower did not comply with Section 10.9 as described herein and, as a result, an Event of Default exists under the Credit Agreement (the “New Subsidiary Event of Default” and together with the Force Acquisition Event of Default, the “Force Events of Default”);

 

WHEREAS, the Lenders have agreed to waive the Force Events of Default and have agreed to a limited waiver of Section 10.9 of the Credit Agreement conditioned upon the addition of Force Specialty Services as a Guarantor and the execution by Force Specialty Services of a Joinder to the Guaranty and Collateral Agreement within fourteen (14) days of the date of this Waiver and Amendment Agreement; and

 

 

WHEREAS, the Lenders have also agreed to amend the definition of Permitted Acquisition in Section 1.1 of the Credit Agreement in order to create flexibility for the Borrower in the event that  consideration for an acquisition is less than $10,000,000;

 

In consideration of the mutual agreements herein contained, the Lenders, the Borrower, Onquest Heaters and Force Specialty Services hereto agree as follows:

 

SECTION A.                        LIMITED WAIVER OF CREDIT AGREEMENT; WAIVER OF ONQUEST HEATERS EVENT OF DEFAULT; ADDITION OF ONQUEST HEATERS AS GUARANTOR

 

A-1.                          Effective as of the date of this Waiver and Amendment Agreement, the Lenders hereby (i) waive, on a limited basis, that portion of Section 10.9 of the Credit Agreement requiring the dissolution of Onquest Heaters and (ii) waive the Onquest Heaters Event of Default.

 

A-2.                          Notwithstanding the foregoing, Onquest Heaters hereby agrees to become a party to the Guaranty and Collateral Agreement and agrees to execute a Joinder to the Guaranty and Collateral Agreement (a form of which is attached hereto as EXHIBIT A) within fourteen (14) days of the date of this Waiver and Amendment Agreement.

 

SECTION  B.                     LIMITED WAIVER OF CREDIT AGREEMENT; WAIVER OF FORCE EVENTS OF DEFAULT; ADDITION OF FORCE SPECIALTY SERVICES AS GUARANTOR

 

B-1.                          Effective as of the date of this Waiver and Amendment Agreement, the Lenders hereby (i) waive, on a limited basis, the requirements contained in the definition of Permitted Acquisition in Section 1.1 of the Credit Agreement and waive, on a limited basis, those portions of Section 11.5 and Section 11.11 pertaining to a Permitted Acquisition to allow for the acquisition by Primoris Energy Services Corporation of Force Specialty Services and (ii) waive the Force Events of Default.

 

B-2.                          Notwithstanding the foregoing, Force Specialty Services hereby agrees to become a party to the Guaranty and Collateral Agreement and agrees to execute a Joinder to the Guaranty and Collateral Agreement (a form of which is attached hereto as EXHIBIT A) within fourteen (14) days of the date of this Waiver and Agreement.

 

SECTION C.                        AMENDMENT TO CREDIT AGREEMENT

 

C-1.                          Subject to the requirements of Section D herein, the Lenders and the Borrower hereby agree to amend and restate the definition of Permitted Acquisition in its entirety in Section 1.1 of the Credit Agreement as follows:

 

Permitted Acquisition means any Acquisition by Borrower or any Loan Party where:

 

(A) the business or division acquired are for use, or the Person acquired is engaged, in the construction and engineering businesses engaged in by the Loan Parties on the date hereof or otherwise as required to preserve compliance with Section 11.5 ;

 

 

(B) immediately before such Acquisition, and as a consequence of such Acquisition, no Default or Event of Default shall exist;

 

(C) immediately after giving effect to such Acquisition, the Company is in compliance, on a pro forma basis, with the financial covenants set forth in Section 11.14 herein;

 

(D) immediately after giving effect to such Acquisition, Debt to EBITDA on a pro forma basis is less than 1.75x;

 

(E) in the case of the Acquisition of any Person, the board of directors or similar governing body of such Person has approved such Acquisition;

 

(F) within 30 days following such Acquisition, the Administrative Agent and the Collateral Agent shall have received complete execution copies of each material document, instrument and agreement to be executed in connection with such Acquisition together with all lien search reports and lien release letters and other documents as the Administrative Agent and/or the Collateral Agent may require to evidence the termination of Liens on the assets or business to be acquired;

 

(G) not less than ten Business Days prior to such Acquisition, Administrative Agent shall have received an acquisition summary with respect to the Person and/or business or division to be acquired, such summary to include a reasonably detailed description thereof (including financial information) and operating results (including financial statements for the most recent 12 month period for which they are available and as otherwise available), the terms and conditions, including economic terms, of the proposed Acquisition, and Borrower’s calculation of Pro Forma EBITDA, and a pro forma balance sheet of Borrower taking into account the effect of any proposed Acquisition on the most recent quarterly balance sheet per the Compliance Certificate of the Borrower, provided that with respect to any Acquisition the consideration for which is less than $10,000,000, the Borrower may deliver the foregoing promptly when available and, in any event, within forty-five (45) days following the end of each fiscal quarter along with the delivery of a copy of the management prepared consolidated financial statements of the Borrower and the Subsidiaries as required pursuant to Section 10.l.1 of the Credit Agreement;

 

(H) Administrative Agent shall have approved the Borrower’s computation of Pro Forma EBITDA, provided that the foregoing shall not be required in respect of Acquisitions the consideration for which is less than $10,000,000;

 

(I) to the extent requested by the Administrative Agent, consents have  been obtained in favor of Collateral Agent, the Administrative Agent and the Lenders to the collateral assignment of rights and indemnities under the related acquisition documents and opinions of counsel for the Loan Parties and (if delivered to the Loan Parties) the selling party in favor of the Collateral Agent, the Administrative Agent and the Lenders have been delivered, provided that the foregoing shall not be required in respect of Acquisitions the consideration for which is less than $10,000,000;

 

(J) the provisions of Section 10.10 have been satisfied, provided that in respect of any Acquisition the consideration for which is less than $10,000,000, within 30 days after the closing of such Acquisition, the Borrower may, as an alternative to the requirements of Section 10.10 , execute and deliver documentation reasonably satisfactory to the Lenders establishing control (within the meaning of the UCC) in favor of the Collateral Agent over any Deposit Accounts acquired pursuant to such Acquisition;

 

 

(K) simultaneously (or at such other time as is required to comply with the terms of Section 10.9 ) with the closing of such Acquisition, the target company (if such Acquisition is structured as a purchase of Capital Securities) or the Loan Parties (if such Acquisition is structured as a purchase of assets or a merger and a Loan Party is the surviving entity) executes and delivers to the Collateral Agent, the Administrative Agent and the Lenders the Security Agreement and such documents necessary to grant to the Collateral Agent a Lien in all of the assets (subject to any exceptions in the applicable Security Document) of such target company or surviving company, and their respective Subsidiaries, each in form and substance and with such perfection and priority as is satisfactory to the Collateral Agent, the Administrative Agent and the Lenders and, in the event of an Acquisition structured as a purchase of Capital Securities, the issuer, unless such issuer is a CFC, of such Capital Securities becomes a party to the Guaranty and Collateral Agreement as a Guarantor thereunder, in accordance with the terms thereof;

 

(L) if the Acquisition is structured as a merger involving the Borrower, the Borrower is the surviving entity, or if the Acquisition is structured as a merger involving a Guarantor, a Guarantor is the surviving entity; and

 

(M) Administrative Agent shall have received a summary of sources and uses of funds for any Acquisition at the time of the consummation of such Acquisition, provided that with respect to any Acquisition the consideration for which is less than $10,000,000, the Borrower may deliver the foregoing promptly when available and, in any event, within forty-five (45) days following the end of each fiscal quarter along with the delivery of a copy of the management prepared consolidated financial statements of the Borrower and the Subsidiaries as required pursuant to Section 10.l.1 of the Credit Agreement.

 

SECTION D.                        CONDITIONS OF AMENDMENT

 

D-1                             Sections A and B of this Waiver and Amendment Agreement shall be effective as of the date first written above.  Section C of this Waiver and Amendment Agreement shall be effective as of the date first written above subject to the receipt by the Collateral Agent of each of the following Documents, all of which must be satisfactory to the Lenders and their counsel in form, substance and execution:

 

(a)                                  The Waiver and Amendment Agreement duly executed by the Borrower, as well as continued satisfaction of all conditions set forth in the Credit Agreement;

 

(b)                                  A Counterpart of the Acknowledgement and Consent, a form of which is attached hereto as EXHIBIT B, duly executed and delivered by each of the Guarantors;

 

(c)                                   A copy of a fully executed amendment to the Note Purchase Agreement that amends the Note Purchase Agreement in the same manner as the Credit Agreement is amended by this Waiver and Amendment Agreement (including Written Consent to this Waiver and Amendment Agreement from the Noteholders under the Note Purchase Agreement with such Written Consent included in the amendment to the Note Purchase Agreement); and

 

(d)                                  Satisfactory Uniform Commercial Code or other applicable search reports.

 

 

D-2                             Within fourteen (14) days of the date of this Waiver and Amendment Agreement, the Borrower must provide the Collateral Agent with each of the following Documents, all of which must be satisfactory to the Lenders and their counsel in form, substance and execution:

 

(a)                                  Joinders to the Guaranty and Collateral Agreement (a form of which is attached hereto as EXHIBIT A) executed and delivered by Onquest Heaters and Force Specialty Services;

 

(b)                                  A Perfection Certificate executed by Onquest Heaters and Force Specialty Services;

 

(c)                                   Updated schedules to the Credit Agreement to include information relative to Onquest Heaters and Force Specialty Services;

 

(d)                                  For each of Onquest Heaters and Force Specialty Services, such Person’s (a) charter (or similar formation document), certified by the appropriate governmental authority; (b) good standing certificates in its state of incorporation (or formation) and in each other state requested by Administrative Agent; (c) bylaws (or similar governing document); (d) resolutions of its board of directors (or similar governing body) approving and authorizing such Person’s execution, delivery and performance of the Loan Documents to which it is party and the transactions contemplated thereby; and (e) signature and incumbency certificates of its officers executing any of the Loan Documents (it being understood that Administrative Agent and each Lender may conclusively rely on each such certificate until formally advised by a like certificate of any changes therein), all certified by its secretary or an assistant secretary (or similar officer) as being in full force and effect without modification;

 

(e)                                   Uniform Commercial Code-1 financing statements to perfect the pledge of Collateral of Onquest Heaters and Force Specialty Services to the Collateral Agent recorded in the respective states of incorporation of Onquest Heaters and Force Specialty Services;

 

(f)                                    opinions in form and substance satisfactory to the Collateral Agent and the Administrative Agent, dated the date hereof, from the General Counsel of the Borrower, pertaining to the matters set forth in this Waiver and Amendment Agreement as the Collateral Agent or the Administrative Agent may reasonably request; and

 

(g)                                   Such other certificates, financial statements, schedules, resolutions, opinions of counsel and other documents which are provided for hereunder or which the Collateral Agent, the Administrative Agent and the Lenders shall require.

 

SECTION E.                        MISCELLANEOUS

 

E-1.                          The Borrower hereby represents to the Collateral Agent, the Administrative Agent and the Lenders that no Event of Default or Unmatured Event of Default or Material Adverse Effect has occurred or is continuing.

 

E-2.                          The Borrower hereby represents to the Collateral Agent, the Administrative Agent and the Lenders that as of the date hereof, the representations, warranties and covenants set forth in the Credit Agreement are and shall be and remain true and correct in all material respects (except that the financial covenants shall be deemed to refer to the most recent financial statements of the Borrower delivered to the Lenders) and the Borrower is in full compliance with all other terms and conditions of the Credit Agreement.

 

 

E-3.              The Borrower confirms its agreement, pursuant to Section 15.5 of the Credit Agreement to pay promptly all reasonable expenses of the Administrative Agent and the Lenders related to this Waiver and Amendment Agreement and all matters contemplated hereby, including, without limitation, all reasonable fees and expenses of counsel to the Lenders.

 

E-4.              Except as expressly provided herein, the execution, delivery and effectiveness of this Waiver and Amendment Agreement shall not operate as a waiver of any right, power or remedy of any Lender nor constitute a waiver of any provision of the Credit Agreement, any Loan Document or any other document, instrument or agreement executed and delivered in connection with any of the foregoing.

 

E-5                 THIS WAIVER AND AMENDMENT AGREEMENT SHALL BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ILLINOIS APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.

 

E-6.              The Lenders hereby consent to the execution and delivery of this Waiver and Amendment Agreement and further agree that the Noteholders shall be entitled to rely on the foregoing consent.

 

E-7.              Except as waived by the foregoing, no other terms of the Credit Agreement and the Guaranty and Collateral Agreement are in any way changed in this Waiver and Amendment Agreement and the aforementioned documents shall continue in full force and effect in accordance with their original terms.  This Agreement may be executed in counterpart, and by facsimile and by the different parties on different counterpart signature pages, which taken together, shall constitute one and the same Agreement.

 

[Signature Page to Follow]

 

 

The parties hereto have caused this Waiver and Amendment Agreement to be duly executed and delivered by their duly authorized officers as of the date first set forth above.

 

		PRIMORIS SERVICES CORPORATION
		By:	/s/ Pete Moerbeek
		CFO
		ONQUEST HEATERS, INC.
		By:	/s/ John Perisich
		Secretary
		FORCE SPECIALTY SERVICES, INC.
		By:	/s/ John Perisich
		Secretary
		THE PRIVATEBANK AND TRUST COMPANY ,
		as Administrative Agent, Collateral Agent and as a Lender
		By:	/s/ John M. O’Connell
			Managing Director
		THE BANK OF THE WEST ,
		as Co- Lead Arranger and as a Lender
		By:	/s/ Nabil B. Khoury
			Vice President
		IBERIABANK ,
		as a Lender
		By:	/s/Edgar Santa Cruz
			Senior Vice President

 

Signature Page to Waiver and Amendment Agreement

 

 

EXHIBIT A

 

FORM OF JOINDER TO GUARANTY AND COLLATERAL AGREEMENT

 

This JOINDER AGREEMENT (this “ Agreement ”) dated as of [      ] is executed by the undersigned for the benefit of The PrivateBank and Trust Company, as collateral agent (the “ Collateral Agent ”)for itself, the Lenders and certain Affiliates of the Lenders, and the holders of the Company’s senior secured notes (the “ Noteholders ”) issued from time to time pursuant to the Note Purchase Agreement  in connection with that certain Guaranty and Collateral Agreement dated as of December 28, 2012 (the “Guaranty and Collateral Agreement”) among Primoris Services Corporation , a Delaware corporation (the “ Company ”) and each other Person signatory thereto as a Grantor in favor of the Collateral Agent, the Lenders and certain Affiliates of the Lenders and the Noteholders.  Capitalized terms not otherwise defined herein are being used herein as defined in the Guaranty and Collateral Agreement.

 

Each Person signatory hereto is required to execute this Agreement pursuant to Section 8.16 of the Guaranty and Collateral Agreement.

 

In consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each signatory hereby agrees as follows:

 

1.                                       Each such Person assumes all the obligations of a Grantor and a Guarantor under the Guaranty and Collateral Agreement and agrees that such person or entity is a Grantor and a Guarantor and bound as a Grantor and a Guarantor under the terms of the Guaranty and Collateral Agreement, as if it had been an original signatory to such agreement.  In furtherance of the foregoing, such Person hereby assigns, pledges and grants to the Collateral Agent, for its benefit and the benefit of the Creditors, a security interest in all of its right, title and interest in and to all of its the Collateral to secure the Secured Obligations.

 

2.                                       Schedules 1, 2, 3, 4, 5, 6, 7 [and 8] of the Guaranty and Collateral Agreement are hereby amended to add the information relating to each such Person set out on Schedules 1, 2, 3, 4, 5, 6, 7 [and 8] respectively, hereof.  Each such Person hereby makes to the Collateral Agent and the Creditors the representations and warranties set forth in the Guaranty and Collateral Agreement applicable to such Person and the applicable Collateral and confirms that such representations and warranties are true and correct after giving effect to such amendment to such Schedules.

 

3.                                       In furtherance of its obligations under Section 5.2 of the Guaranty and Collateral Agreement, each such Person agrees to deliver to the Collateral Agent appropriately complete UCC financing statements (which may, where permitted by law, use language such as “all assets of the Grantor and all proceeds thereof” or such other language as the Collateral Agent deems necessary or appropriate) naming such person or entity as debtor and the Collateral Agent as secured party, and describing its Collateral and such other documentation as the Collateral Agent (or its successors or assigns) may require to evidence, protect and perfect the Liens created by the Guaranty and Collateral Agreement, as modified hereby.  Each such Person acknowledges the authorizations given to the Collateral Agent under the Section 6.1(d) of the Guaranty and Collateral Agreement and otherwise.

 

4.                                       Each such Person’s address for notices under the Guaranty and Collateral Agreement shall be the address of the Company set forth in the Guaranty and Collateral Agreement and each such Person hereby appoints the Company as its agent to receive notices hereunder.

 

 

5.                                       This Agreement shall be deemed to be part of, and a modification to, the Guaranty and Collateral Agreement and shall be governed by all the terms and provisions of the Guaranty and Collateral Agreement, with respect to the modifications intended to be made to such agreement, which terms are incorporated herein by reference, are ratified and confirmed and shall continue in full force and effect as valid and binding agreements of each such person or entity enforceable against such person or entity.  Each such Person hereby waives notice of the Collateral Agent’s and the Administrative Agent’s acceptance of this Agreement.  Each such Person will deliver an executed original of this Agreement to the Collateral Agent and the Administrative Agent.

 

[add signature block for each new Grantor]

 

 

EXHIBIT B

 

FORM OF ACKNOWLEDGEMENT AND CONSENT

 

DATED AS OF APRIL 30, 2013

 

Each of the undersigned, as a Loan Party, hereby acknowledges and consents to the Waiver and Amendment Agreement, of even date herewith, to the Credit Agreement dated as of December 28, 2012, (the “ Credit Agreement ”) among The PrivateBank and Trust Company, as Administrative Agent and Co-Lead Arranger, the other financial institutions party to the Credit Agreement (together with The PrivateBank, the “ Lenders ”) and Primoris Services Corporation, a Delaware corporation, and hereby confirms and agrees that the Loan Documents to which each Loan Party is a party are, and shall continue to be, in full force and effect and are hereby confirmed and ratified in all respects.

 

[Signature Page to Follow]

 

 

IN WITNESS WHEREOF, each of the undersigned has caused its duly authorized officer to execute this Acknowledgement and Consent as of the date first written above.

 

 

PRIMORIS SERVICES CORPORATION			PRIMORIS RENEWABLES, LLC
By:			By:
Title:			Its:
ARB, INC.			ALL DAY ELECTRIC COMPANY, INC.
By:			By:
Title:			Its:
ARB STRUCTURES, INC.			ALASKA CONTINENTAL PIPELINE, INC.
By:			By:
Title:			Its:
CARDINAL CONTRACTORS, INC.			ONQUEST HEATERS, INC.
By:			By:
Title:			Its:
JUNIPER ROCK CORPORATION			BTEX MATERIALS, LLC
By:			By:
Title:			Its:
ONQUEST, INC.			MILLER SPRINGS MATERIALS, L.L.C.
By:			By:
Title:			Its:
STELLARIS LLC			GML COATINGS, LLC
By:			By:
Title:			Its:
JAMES CONSTRUCTION GROUP, L.L.C.			SAXON CONSTRUCTION, INC.
By:			By:
Title:			Its:
ROCKFORD CORPORATION			Q3 CONTRACTING, INC.
By:			By:
Title:			Its:
PRIMORIS ENERGY SERVICES CORPORATION
By:
Title:

 

[Signature Page to Acknowledgement and Consent]

 

EXHIBIT 10.3

 

SECOND AMENDMENT AND WAIVER AGREEMENT

 

DATED AS OF AUGUST 25, 2014

 

Reference is made to the Credit Agreement, dated as of December 28, 2012, (as supplemented, amended or otherwise modified, the “ Credit Agreement ”) among The PrivateBank and Trust Company, as Administrative Agent and Co-Lead Arranger, (“ The PrivateBank ”), the other financial institutions party to the Credit Agreement (together with The PrivateBank, the “ Lenders ”) and Primoris Services Corporation, a Delaware corporation, (the “ Borrower ”).  Any terms not defined herein shall have the meanings set forth in the Credit Agreement.

 

RECITALS

 

WHEREAS, the Borrower formed BW Primoris, LLC, a Texas limited liability company (“ BW Primoris ”), on January 15, 2014 and the Borrower formed Vadnais Trenchless Services, Inc., a California corporation (“ Vadnais Trenchless Services ” and together with BW Primoris, the “ New Subsidiaries ”), on May 29, 2014;

 

WHEREAS, Section 10.9 Further Assurances of the Credit Agreement requires that within 30 days of the acquisition or creation of a Subsidiary, the Borrower shall ensure that the Obligations under the Loan Documents are secured by a first priority perfected Lien in favor of the Collateral Agent on certain of the assets of such acquired or created Subsidiary and shall ensure that the Obligations are guaranteed by such acquired or created Subsidiary.  The Borrower’s formation of BW Primoris and Vadnais Trenchless Services did not comply with Section 10.9 Further Assurances as described herein and, as a result, Events of Default exist under the Credit Agreement (the “ New Subsidiary Defaults ”);

 

WHEREAS, BW Primoris consummated an Acquisition pursuant to the Membership Interest Purchase Agreement, dated as of January 22, 2014, with each of the members of Blaus Wasser, LLC, a Wyoming limited liability company (“ Blaus Wasser ”), and the other parties thereto (such Acquisition, the “ Blaus Wasser Acquisition ”).

 

WHEREAS, Vadnais Trenchless Services consummated an Acquisition pursuant to the Asset Purchase Agreement, dated as of June 5, 2014, with Vadnais Corporation, a California corporation, Vadnais Equipment, LLC, a California limited liability company, ORCIM, LLC, a California limited liability company, and the other parties thereto (such Acquisition, together with the Blaus Wasser Acquisition, the “ Subject Acquisitions ”).

 

WHEREAS, Section 11.11 Investments of the Credit Agreement prohibits any Loan Party from making or permitting to exist any Investment in any other Person with certain exceptions as listed in Section 11.11.

 

WHEREAS, the Subject Acquisitions do not constitute Permitted Acquisitions excepted from the restrictions of Section 11.11 Investments of the Credit Agreement and, as a result, Events of Default exist under the Credit Agreement (the “ Acquisition Defaults ”, and together with the New Subsidiary Defaults, the “ Subject Defaults ”).

 

 

WHEREAS, the Borrower ceased operations of and dissolved (a) Primoris Renewables, LLC, a California limited liability company and a Guarantor, on December 13, 2013; and (b) Calidus, LLC, a Nevada limited liability company and a Guarantor, on May 2, 2014 (together, the “Subject Dissolutions”).

 

WHEREAS, in the absence of the consent and waiver provided pursuant to this Second Amendment and Waiver Agreement, the Subject Dissolutions contravene the terms of Section 10.5 of the Credit Agreement that requires the Guarantors at all times to maintain and preserve their existence and good standing in the jurisdictions of their organization and Section 5.6 of the Guaranty and Collateral Agreement that requires that the Guarantors comply with the covenants set forth in the Credit Agreement.

 

WHEREAS, the Borrower has requested, among other things as set forth herein, that the Lenders (i) waive the Subject Defaults; (ii) consent to the creation of the New Subsidiaries; (iii) consent to the Subject Acquisitions; and (iv) consent to the Subject Dissolutions.  Subject to the terms and conditions set forth herein, the Lenders have agreed to the foregoing requests.

 

WHEREAS, the Lenders have also agreed to amend certain terms and provisions contained in the Credit Agreement as set forth herein including an amendment to permit the acquisition or creation of Immaterial Subsidiaries (as defined herein and to include BW Primoris, Blaus Wasser and the subsidiaries of Blaus Wasser) without requiring that such Immaterial Subsidiaries become Guarantors and deliver Joinders to the Guaranty and Collateral Agreement.

 

In consideration of the mutual agreements herein contained, the Lenders and Borrower hereto agree as follows:

 

SECTION  A.                     LIMITED WAIVERS OF CREDIT AGREEMENT; WAIVER OF SUBJECT DEFAULTS; CONSENTS

 

(a)                                  Effective as of the date of this Second Amendment and Waiver Agreement and subject to subsection (d) of this Section A, the provisions of Section 10.9 Further Assurances of the Credit Agreement which require that the Borrower cause each subsequently formed or Acquired Subsidiary, within 30 days after such formation or acquisition, to execute and deliver (i) a joinder to the Guaranty and Collateral Agreement pursuant to which such Subsidiary becomes a Guarantor and guarantees the Obligations and (ii) each Collateral Document required in order to grant the Collateral Agent a first priority perfected pledge or security interest in substantially all of the assets and properties of such Subsidiary, are hereby waived in respect of, and only in respect of, (1)  BW Primoris, Blaus Wasser and the subsidiaries of Blaus Wasser in each case insofar as, and only insofar as, the Borrower causes each such Subsidiary, within 30 days after such Subsidiary ceases to be an Immaterial Subsidiary (as defined in Section B below) to execute and deliver a joinder to the Guaranty and Collateral Agreement and each required Collateral Document and to otherwise comply with the terms of Section 10.9 Further Assurances (as amended hereby) of the Credit Agreement and the other Loan Documents, and (2) Vadnais Trenchless Services, insofar as, and only insofar as, the Borrower causes such Subsidiary within

 

 

45 days after the execution and delivery of this Second Amendment and Waiver Agreement, to execute a joinder to the Guaranty and Collateral Agreement and each required Collateral Document and to otherwise comply with Section 10.9 Further Assurances (as amended hereby) of the Credit Agreement and the other Loan Documents.  The Lenders hereby consent to the formation of the New Subsidiaries.

 

(b)                                  Effective as of the date of this Second Amendment and Waiver Agreement and subject to subsection (d) of this Section A, the Lenders hereby (i) waive, on a limited basis only as it pertains to the Subject Acquisitions that portion of Section 11.11 Investments of the Credit Agreement that requires that Investments in the form of Acquisitions must satisfy the requirements of a Permitted Acquisition under the Credit Agreement; (ii) waive the Acquisition Defaults; and (iii) consent to the Subject Acquisitions.

 

(c)                                   Effective as of the date of the Subject Dissolutions and subject to subsection (d) of this Section A, the Lenders hereby (i) waive, on a limited basis only as it pertains to the Subject Dissolutions Section 10.5 Maintenance of Existence, Etc. of the Credit Agreement and Section 5.6 Credit Agreement of the Guaranty and Collateral Agreement; and (ii) consent to the Subject Dissolutions.

 

(d)                                  Subject to the satisfaction of the conditions set forth in Section C hereof and the accuracy of the representations and warranties set forth in Section D hereof, the limited waivers and consents set forth in this Section A shall be effective upon the execution and delivery of this Second Amendment and Waiver Agreement by each of the parties hereto and only for the specific instance and for the specific purpose set forth herein.  Except as set forth in this Section A, nothing in this Second Amendment and Waiver Agreement constitutes a waiver of, or consent to, (i) any other existing or future Default or Event of Default under the Credit Agreement or (ii) any other provision of any Loan Document.

 

SECTION  B.                     AMENDMENTS TO CREDIT AGREEMENT

 

Subject to the satisfaction of the conditions set forth in Section C hereof and the accuracy of the representations and warranties set forth in Section D hereof, the Lenders hereby agree with the Borrower to amend, effective on and as of the date first above written, the Credit Agreement as follows:

 

(a)                                  Section 1 “DEFINITIONS” is hereby amended by inserting the following new definitions in proper alphabetical order:

 

Immaterial Subsidiary means any Subsidiary of the Borrower designated as such by the Borrower; provided, that (i) the Subsidiary Tangible Net Worth of any Immaterial Subsidiary as of the date of the most recent financial statements delivered pursuant to Section 10.1.1, shall not exceed $4,000,000 at any time, and (ii) the Subsidiary Tangible Net Worth of all Immaterial Subsidiaries collectively as of the date of the most recent financial statements delivered pursuant to Section 10.1.1, shall not exceed ten percent (10%) of the Tangible Net Worth of the Borrower and its Subsidiaries at any time.

 

 

Subsidiary Tangible Net Worth means, with respect to any Subsidiary of the Borrower, at any date, the Net Worth, plus the aggregate amount of Subordinated Debt, less patents, trademarks, copyrights, deferred charges and other Intangible Assets (including, but not limited to, unamortized discounts and expenses, organizational expenses, experimental and developmental expenses, but excluding prepaid expenses) in each case, determined in accordance with GAAP.

 

(b)                                  The definition of Loan Party in Section 1 “DEFINITIONS” is hereby deleted in its entirety and replaced with the following definition:

 

Loan Party means Borrower and each Guarantor.  Notwithstanding anything herein to the contrary, for the purposes of (a) determining compliance with any covenant in Section 10 or Section 11 of this Agreement (other than Section 10.9), or related definitions in Section 1 of this Agreement, and (b) determining whether an Event of Default has occurred and is continuing under Section 13.1.5 of this Agreement, Loan Party shall also include each Immaterial Subsidiary.

 

(c)                                   Section 10.1.4 Compliance Certificates is hereby amended by (i) deleting the word “and” appearing at the end of clause (i) thereof and inserting a semicolon (“;”) in lieu thereof, (ii) deleting the “period (“.”) appearing at the end of clause (ii) thereof and inserting a semicolon (“;”) followed by the word “and” in lieu thereof; and (iii) adding the following clause (iii) immediately following such “and”:

 

(iii)                                a list of Immaterial Subsidiaries of the Borrower, including the Subsidiary Tangible Net Worth of (a) each Immaterial Subsidiary and (b) the Immaterial Subsidiaries taken as a whole, in each case, determined as of the measurement date of the compliance certificate.

 

(d)                                  Section 10.9 Further Assurances is hereby deleted in its entirety and replaced with the following:

 

Section 10.9                              Further Assurances .

 

(a)                                  Take, and cause each other Loan Party to take, such actions as are necessary or as  Administrative Agent or the Lenders may reasonably request from time to time to ensure that the Obligations of each Loan Party under the Loan Documents are secured by a first priority perfected Lien in favor of Collateral Agent (subject to Permitted Liens) on certain of the assets of Borrower and each Loan Party and guaranteed by each Loan Party, in each case as Administrative Agent may determine. It is the intent of the parties that all obligations of the Loan Parties under the Loan Documents shall be guaranteed by (i) each Subsidiary of the Borrower (other than an Immaterial Subsidiary), whether now existing or hereafter acquired or created, (ii) each Subsidiary of the Borrower that ceases to be an Immaterial Subsidiary and (iii) any other Subsidiary that guarantees or otherwise becomes liable at any time in respect of any Debt under the Note

 

 

Agreement or the other Senior Note Documents, and shall be, to the extent set forth in the Collateral Documents, secured by substantially all the property  and assets of each of the Loan Parties, whether now existing or hereafter acquired, including, without limitation, securities accounts, accounts, chattel paper, instruments, deposit accounts, investment property, documents, contracts, letter-of-credit rights, general intangibles, equipment, inventory, permits, patents, trademarks, copyrights, trade names, service marks, Capital Securities issued by the Borrower’s Subsidiaries or other Persons and other properties acquired after the date hereof, to the extent required by the Collateral Documents.

 

(b)                               At the Borrower’s expense, the Borrower shall execute and deliver (and, where applicable, authorize the filing of), and shall cause the other Loan Parties to execute and deliver (and, where applicable, authorize the filing of), any and all financing statements, continuation statements and amendments and other instruments, agreements or other documents, and take all action (including, without limitation, filing all Uniform Commercial Code financing statements, continuation statements and amendments, filing or recording mortgages and deeds of trust and filing assignments or other documents customarily filed with the U.S. Patent and Trademark Office or the U.S. Copyright Office) that may be required under applicable law, or that the Lenders or the Collateral Agent may reasonably request in order to effectuate the transactions contemplated by the Loan Documents and in order to grant, preserve, protect and perfect the validity and first priority of the security interests and Liens created or purported to be created by the Collateral Documents or in order to effectuate the intent of the parties set forth in clause (a) of this Section 10.9.

 

(c)                                At the Borrower’s expense, the Borrower shall:  (a) (x) cause each subsequently acquired or organized Subsidiary of the Borrower (other than an Immaterial Subsidiary) and each Subsidiary of the Borrower that ceases to be an Immaterial Subsidiary, within 30 days after such acquisition or organization or cessation of Immaterial Subsidiary status (or, if earlier, on the date such Subsidiary guarantees or otherwise becomes liable at any time in respect of any Debt under the Note Agreement or the other Senior Note Documents), and (y) cause any other Subsidiary that guarantees or otherwise becomes liable at any time in respect of any Debt under the Note Agreement or the other Senior Note Documents, concurrently therewith, to execute and deliver (1) a joinder to the Guaranty and Collateral Agreement (in the form contemplated thereby), pursuant to which such Subsidiary shall become a Guarantor and shall agree to be bound by the terms and provisions thereof, (2) an opinion of counsel reasonably satisfactory to the Lenders covering such matters relating to such Subsidiary as the Lenders may reasonably request, (3) certificates in form and substance substantially similar to the certificates described in Section 12.1.2, and (4) each Collateral Document that the Lenders or the Collateral Agent may request in order to grant the Collateral Agent a valid, first priority perfected pledge or security interest in, to the extent required by the Collateral Documents, substantially all of the assets and properties of such Subsidiary, including without limitation, any outstanding Capital Securities of any other Subsidiary or other Person which may be held by such Subsidiary; (b) deliver or cause such Subsidiary to deliver to the Collateral Agent all certificates, stock powers and other documents required by the Collateral Documents executed by such Subsidiary, or take or cause such Subsidiary to take such other actions, all as may be necessary to provide the

 

 

Collateral Agent with a first priority perfected pledge of and security interest in all outstanding Capital Securities owned or held by such Subsidiary, to the extent so required by the Collateral Documents; provided, that nothing in this clause (c) shall in any way limit or modify the right of the Lenders to enforce the provisions of Section 11.

 

(d)                               Any security interests and Liens described in this Section 10.9 shall be created under the Collateral Documents and other security agreements, pledge agreements, assignments and other instruments, agreements and other documents in form, scope and substance reasonably satisfactory to the Lenders and to the Collateral Agent, and at the Borrower’s expense, the Borrower will deliver or cause to be delivered to the Collateral Agent all such instruments, agreements and other documents, including, without limitation, legal opinions, landlord and warehousemen Lien waivers and lien searches, as the Lenders or the Collateral Agent shall reasonably request to evidence compliance with this Section 10.9.

 

(e)                                   EXHIBIT B of the Credit Agreement is hereby amended and restated in its entirety as set forth in the attached EXHIBIT B.

 

SECTION C.                        CONDITIONS OF LIMITED WAIVERS, CONSENTS AND AMENDMENTS

 

C-1                             Sections A and B of this Second Amendment and Waiver Agreement shall be effective as of the date first written above subject to the receipt by the Administrative Agent of each of the following Documents, all of which must be satisfactory to the Lenders and their counsel in form, substance and execution:

 

(a)                                  This Second Amendment and Waiver Agreement duly executed and delivered by each of the parties hereto;

 

(b)                                  A Counterpart of the Acknowledgement and Consent, a form of which is attached hereto as EXHIBIT A, duly executed and delivered by each of the Guarantors;

 

(c)                                   A copy of the Second Letter Amendment and Waiver to the Note Purchase and Private Shelf Agreement (“Second Amendment to Note Agreement”) that amends the Note Agreement in the same manner as the Credit Agreement is amended by this Second Amendment and Waiver Agreement, duly executed and delivered by each of the parties thereof;

 

(d)                                  Written Consent to this Second Amendment and Waiver Agreement from the Noteholders under the Note Agreement;

 

(e)                                   Evidence that the representations and warranties of the Borrower made in Section D of this Second Amendment and Waiver Agreement are true and correct as of the date first written above; and

 

(f)                                    Counterpart originals or certified or other copies of all corporate and other proceedings, pertaining directly to this Second Amendment and Waiver Agreement and all documents and instruments directly incident to this Second Amendment and Waiver Agreement as the Lenders or their counsel may reasonably request.

 

 

SECTION D.                        MISCELLANEOUS

 

D-1.                          The Borrower hereby represents to the Administrative Agent and the Lenders that no Event of Default or Unmatured Event of Default or Material Adverse Effect has occurred or is continuing.

 

D-2.                          The Borrower hereby represents to the Administrative Agent and the Lenders that as of the date hereof, the representations, warranties and covenants set forth in the Credit Agreement are and shall be and remain true and correct in all material respects (except that the financial covenants shall be deemed to refer to the most recent financial statements of the Borrower delivered to the Lenders) and the Borrower is in full compliance with all other terms and conditions of the Credit Agreement.

 

D-3.                          The Borrower confirms its agreement, pursuant to Section 15.5 of the Credit Agreement to pay promptly all reasonable expenses of the Administrative Agent and the Lenders related to this Second Amendment and Waiver Agreement and all matters contemplated hereby, including, without limitation, all reasonable fees and expenses of counsel to the Lenders.

 

D-4.                          Except as expressly provided herein, the execution, delivery and effectiveness of this Second Amendment and Waiver Agreement shall not operate as a waiver of any right, power or remedy of any Lender nor constitute a waiver of any provision of the Credit Agreement, any Loan Document or any other document, instrument or agreement executed and delivered in connection with any of the foregoing.

 

D-5                                     THIS SECOND AMENDMENT AND WAIVER AGREEMENT SHALL BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ILLINOIS APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.

 

D-6.                                  The Lenders hereby consent to the execution and delivery of the Second Amendment to Note Agreement dated August [                     ], 2014 among the Borrower, Prudential Investment Management, Inc. and the Noteholders.  The Lenders further agree that the Noteholders shall be entitled to rely on the foregoing consent.

 

D-7.                                  Except as waived and amended by the foregoing, no other terms of the Credit Agreement or the other Loan Documents are in any way changed by this Second Amendment and Waiver Agreement and the aforementioned documents shall continue in full force and effect in accordance with their original terms.  This Second Amendment and Waiver Agreement may be executed in counterpart, and by facsimile and by the different parties on different counterpart signature pages, which taken together, shall constitute one and the same Second Amendment and Waiver Agreement.

 

 

The parties hereto have caused this Second Amendment and Waiver Agreement to be duly executed and delivered by their duly authorized officers as of the date first set forth above.

 

		PRIMORIS SERVICES CORPORATION
		By:	/s/ John Perisich
			EVP
		THE PRIVATEBANK AND TRUST COMPANY ,
		as Administrative Agent, Collateral Agent and as a Lender
		By:	/s/ John M. O’Connell
			Managing Director
		THE BANK OF THE WEST ,
		as Co- Lead Arranger and as a Lender
		By:	/s/ Nabil B. Khoury
			Vice President, National Banking Division
		IBERIABANK ,
		as a Lender
		By:	/s/ Erin D. Fremin
			Senior Vice President

 

Signature Page to Second Amendment and Waiver Agreement

 

 

EXHIBIT A

 

FORM OF ACKNOWLEDGEMENT AND CONSENT

 

DATED AS OF AUGUST                     , 2014

 

Each of the undersigned, as a Loan Party, hereby acknowledges and consents to the Second Amendment and Waiver Agreement, of even date herewith, to the Credit Agreement dated as of December 28, 2012, (as supplemented, amended or otherwise modified, the “ Credit Agreement ”) among The PrivateBank and Trust Company, as Administrative Agent and Co-Lead Arranger, the other financial institutions party to the Credit Agreement (together with The PrivateBank, the “ Lenders ”) and Primoris Services Corporation, a Delaware corporation, and hereby confirms and agrees that the Loan Documents to which each Loan Party is a party are, and shall continue to be, in full force and effect and are hereby confirmed and ratified in all respects.

 

[Signature Page to Follow]

 

 

IN WITNESS WHEREOF, each of the undersigned has caused its duly authorized officer to execute this  Acknowledgement and Consent as of the date first written above.

 

 

ONQUEST HEATERS, INC.			ARB, INC.
By:			By:
Title:			Its:
FORCE SPECIALTY SERVICES, INC.			ARB STRUCTURES, INC.
By:			By:
Title:			Its:
ALASKA CONTINENTAL PIPELINE, INC.			CARDINAL CONTRACTORS, INC.
By:			By:
Title:			Its:
JUNIPER ROCK CORPORATION			BTEX MATERIALS, LLC
By:			By:
Title:			Its:
ONQUEST, INC.			MILLER SPRINGS MATERIALS, L.L.C.
By:			By:
Title:			Its:
STELLARIS LLC			GML COATINGS, LLC
By:			By:
Title:			Its:
JAMES CONSTRUCTION GROUP, L.L.C.			SAXON CONSTRUCTION, INC.
By:			By:
Title:			Its:
ROCKFORD CORPORATION			Q3 CONTRACTING, INC.
By:			By:
Title:			Its:
PRIMORIS ENERGY SERVICES CORPORATION
By:
Title:

 

[Signature Page to Acknowledgement and Consent]

 

 

EXHIBIT B

 

[FORM OF COMPLIANCE CERTIFICATE]

 

Date:                                             

 

[Address for each Lender]

 

Ladies and Gentlemen:

 

Please refer to that certain Credit Agreement dated as of December 28, 2012 (as amended, restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”) between Primoris Services Corporation, a Delaware corporation (the “ Borrower ”), various financial institutions and The PrivateBank and Trust Company, as Administrative Agent.  Terms used but not otherwise defined herein are used herein as defined in the Credit Agreement.

 

The undersigned hereby delivers this certificate pursuant to Section 10.1.4 of the Credit Agreement and certifies to each of the Lenders in his capacity as the [Chief Financial Officer] of the Borrower, as follows:

 

(i)                                      Enclosed herewith is a copy of the [annual audited/quarterly unaudited] financial statements of the Borrower as at                                    (the “ Measurement Date ” and the period of four consecutive fiscal quarters most recently ended as of the Measurement Date, taken as a single period, the “ Measurement Period ”), which statements fairly present in all material respects the financial condition and results of operations of the companies being reported on as of the Measurement Date [(subject to changes resulting from year-end adjustments)].

 

(ii)                                   I reviewed the relevant terms of the Credit Agreement and I made, or caused to be made, under my supervision, a review of the transactions and conditions of the Borrower and its Subsidiaries from the beginning of the Measurement Period covered by the statements dated the Measurement Date and such review did not disclose the existence during such period of any condition or event that constitutes a Default or an Event of Default [or, if any such condition or event existed or exists (including, without limitation, any such event or condition resulting from the failure of the Borrower or any Subsidiary to comply with any Environmental Law), specifying the nature and period of existence thereof and what action the Borrower shall have taken or proposes to take with respect thereto.]

 

(iii)                                As of the Measurement Date, the Borrower is in compliance with the representations, warranties and covenants set forth in Sections 9, 10 and 11 of the Credit Agreement.

 

(iv)                               Schedule 1 attached hereto contains a list of all Subordinated Debt of the Loan Parties.

 

(v)                                  The computations and amounts set forth herein in Schedule 2 correspond to the ratios and/or financial restrictions contained in Section 11.14 of the Credit Agreement and such computations are true and correct as of the Measurement Date.

 

(vi)                               Schedule 3 attached hereto contains a true and correct list of any additional Subsidiaries (excluding Immaterial Subsidiaries) that have been acquired or created since the delivery of the last Compliance Certificate as well as a list of any additional Affiliates or Investments since the delivery of the last Compliance Certificate.

 

(vii)                            Schedule 4 attached hereto contains a true and correct list of the Immaterial Subsidiaries of the Borrower as of the Measurement Date, including the Subsidiary Tangible Net Worth of (a) each Immaterial Subsidiary and (b) the Immaterial Subsidiaries taken as a whole, in each case determined as of the Measurement Date.

 

 

IN WITNESS WHEREOF, the Borrower has caused this Compliance Certificate to be executed and delivered by its authorized officer on [Date].

 

 

	PRIMORIS SERVICES CORPORATION
	By:
	Title: