Exhibit 10.1


 


SECOND AMENDMENT


TO


LOAN AND SECURITY AGREEMENT


 


DATED AS OF SEPTEMBER 30, 2010


 


Reference is made to that certain LOAN
AND SECURITY AGREEMENT dated as of October 28, 2009 (the “Loan
and Security Agreement”), by and between PRIMORIS
SERVICES CORPORATION, a  Delaware
corporation  (the “Borrower”), which has its
chief executive office located at 26000 Commercentre Drive, Lake Forest,
California 92630, and THE PRIVATEBANK AND
TRUST COMPANY, (the “Bank”), whose address is 120 South LaSalle
Street, Chicago, Illinois 60603, Chicago, Illinois 60603.  All capitalized terms used herein without
definition shall have the same meanings herein as those terms have been defined
in the Loan and Security Agreement.


 


NOW THEREFORE, in consideration of the
premises, and the mutual covenants and agreements set forth herein, the
Borrower and Bank hereby agree to amend the Loan and Security Agreement as
follows:


 


Section A.             AMENDMENT


 


1.             Section 1.1 Definitions
is hereby amended by adding the following definition in proper alphabetical
order:


 


“First Amended Revolving Notes” shall mean the revolving notes,
dated as of September 30, 2010, each in the amount of the Revolving Loan A
Commitment and the Revolving Loan B Commitment and maturing on the Revolving
Loan A Maturity Date and the Revolving Loan B Maturity Date, duly executed by
the Borrower and payable to the order of the Bank, together with any and all
renewal, extension, modification or replacement notes executed by the Borrower
and delivered to the Bank and given in substitution therefor.


 


2.             The definition
of “Guarantor” and “Guaranties” in Section 1.1 Definitions
is hereby deleted and the following is inserted therefor:


 


“Guarantor” and “Guaranties” shall mean, respectively,
each of and collectively, the following Persons:  ARB, Inc.; ARB Structures, Inc.;
Cardinal Contractors, Inc.; Cardinal Mechanical, Inc.; Juniper Rock
Corporation; Onquest, Inc.; Stellaris, LLC; and any other Person signing a
Guaranty.


 


3.             The definition
of “Revolving Loan A Maturity Date” in Section 1.1 Definitions
is hereby deleted and the following is inserted therefor:


 


“Revolving Loan A Maturity Date” shall mean October 26,
2013, unless extended by the Bank pursuant to any modification, extension or
renewal note executed by the Borrower and accepted by the Bank in its sold and
absolute discretion in substitution for the Revolving Note.


 

















 


4.             The definition
of “Revolving Loan B Maturity Date” in Section 1.1 Definitions
is hereby deleted and the following is inserted therefor:


 


“Revolving Loan B Maturity Date” shall mean October 26,
2011, unless extended by the Bank pursuant to any modification, extension or
renewal note executed by the Borrower and accepted by the Bank in its sold and
absolute discretion in substitution for the Revolving Note.


 


5.             The Revolving Notes are
hereby replaced with the First Amended Revolving Notes in the forms attached
hereto as EXHIBIT A and EXHIBIT B.


 


6.             The Guaranty of Cardinal
Mechanical, LP is hereby released and replaced with the Guaranty of Cardinal
Mechanical, Inc.  Any reference to
the Guaranty of Cardinal Mechanical, LP shall be a reference to the Guaranty of
Cardinal Mechanical, Inc.


 


7.             The Security Agreement of
Cardinal Mechanical, LP is hereby released and replaced with the Security
Agreement of Cardinal Mechanical, Inc. 
Any reference to the Security Agreement of Cardinal Mechanical, LP shall
be a reference to the Security Agreement of Cardinal Mechanical, Inc.


 


Section B.             NO OTHER CHANGE OF TERMS.


 


Except
as amended by the foregoing, no other terms of the Loan and Security Agreement
are in any way changed in this Second Amendment and the Loan and Security
Agreement shall continue in full force and effect in accordance with its
original terms.  Reference to this
specific Amendment need not be made in the Loan and Security Agreement, or any
other instrument or document executed in connection therewith, any reference in
any such items to the Loan and Security Agreement being sufficient to refer to
the Loan and Security Agreement as amended hereby.


 


Section C.             CONDITIONS OF AMENDMENT.


 


Notwithstanding
any other provisions of this Second Amendment, the Bank shall not be required
to continue all or any portion of the Loans if any of the following conditions
shall have occurred:


 


1.             Documents.   The Borrower shall have failed to execute
and deliver or shall have failed to cause to have executed and delivered to
Bank any of the following Documents, all of which must be satisfactory to the
Bank and the Bank’s counsel in form, substance and execution:


 


(a)           Amendment.   Two copies of the Second Amendment duly
executed by the Borrower, as well as continued satisfaction of all conditions
set forth in the Loan and Security Agreement.


 


(b)           First Amended Revolving
Notes.   One original of each of the
First Amended Revolving Notes.


 


(c)           Acknowledgements and
Reaffirmations of Guaranties and Security Agreements and Acknowledgements of
First Amended Revolving Notes. Two copies of the
Acknowledgements and Reaffirmations of Guaranties and Security Agreements and
the Acknowledgements of the First Amended Revolving Notes, of even date
herewith, duly executed by the Guarantors.


 

















 


(d)           Guaranty of Cardinal
Mechanical, Inc.   Two copies
of the Guaranty, of even date herewith, duly executed by Cardinal Mechanical, Inc.


 


(e)           Security Agreement of
Cardinal Mechanical, Inc.   Two copies of the Security Agreement, of
even date herewith, duly executed by Cardinal Mechanical, Inc.


 


(f)            Uniform Commercial Code
Financing Statement - Cardinal Mechanical, Inc.  A Uniform Commercial Code Financing Statement
which grants to the Bank, upon filing in the State of Texas, a first perfected
security interest in certain collateral, as determined by the Bank, of Cardinal
Mechanical, Inc.


 


(g)           Review of Financial
Information.  
Satisfactory review by the Bank of the Borrower’s audited historical and
projected financial information.


 


(h)           Business Examination.   Satisfactory examination by the Bank of the
Borrower’s business.


 


(i)            Organizational and
Authorization Documents.  
Copies of (i) Resolutions of the board of directors of the Borrower
approving and authorizing the execution, delivery and performance of the Second
Amendment and any further extensions, renewals or modifications of the Loan and
Security Agreement; (ii) signature and incumbency certificates of the
officers of the Borrower, executing the Second Amendment and certifying as to
the Articles of Incorporation and Bylaws, each of which the Borrower hereby
certifies to be true and complete, and in full force and effect without
modification, it being understood that the Bank may conclusively rely on each
such document and certificate until formally advised by the Borrower of any
changes therein; (iii) a Good Standing Certificate of the Borrower issued
by the State of Delaware; and (iv) Good Standing Certificates and
certificates of tax status, as applicable, of the Guarantors issued by their
respective states of incorporation or organization.


 


(j)            Organizational and  Authorization
Documents of Cardinal Mechanical, Inc. 
Copies of (i) Resolutions of the board of directors of Cardinal
Mechanical, Inc. approving the Guaranty and Security Agreement of Cardinal
Mechanical, Inc. and acknowledging the Loan and Security Agreement, the
First Amendment to Loan and Security Agreement and this Second Amendment to
Loan and Security Agreement; (ii) Good Standing Certificate of Cardinal
Mechanical, Inc. issued by the Secretary of State of Texas; (iii) certified
Articles of Incorporation of Cardinal Mechanical, Inc; and (iv) Bylaws
of Cardinal Mechanical, Inc.


 


(k)           Uniform Commercial Code
Searches.   UCC
Searches of the Borrower and the Guarantors in their respective states of
incorporation or organization.


 


(l)            Additional Documents.   Such other certificates, financial
statements, schedules, resolutions, opinions of counsel and other documents
which are provided for hereunder or which the Bank shall require.


 

















 


2.             Event of
Default.   The Borrower hereby
represents to the Bank that no Event of Default or Unmatured Event of Default
or Material Adverse Effect has occurred or is continuing.


 


3.             Representations,
Warranties and Covenants. The Borrower hereby represents to the Bank
that as of the date hereof, the representations, warranties and covenants set
forth in the Loan and Security Agreement, as amended to date, 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 Bank) and the Borrower is in full compliance with
all other terms and conditions of the Loan and Security Agreement.


 


[Signature Page to Follow]


 


 

















 


This
Amendment 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.  This
Amendment shall be governed by internal laws of the State of Illinois.


 


Dated
as of this 30th day of September, 2010.


 


 


	
   

  	
  PRIMORIS SERVICES CORPORATION,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Peter J. Moerbeek

  
	
   

  	
  Name:

  	
  Peter
  J. Moerbeek

  
	
   

  	
  Title:

  	
  CFO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Agreed
  and accepted:

  
	
   

  	
   

  
	
   

  	
  THE PRIVATEBANK AND TRUST COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  John M. O’Connell

  
	
   

  	
  Name:

  	
  John
  M. O’Connell

  
	
   

  	
  Title:

  	
  Associate
  Managing Director

  



 

















 


EXHIBIT A


 


FIRST AMENDED REVOLVING NOTE


 


	
  $20,000,000.00

  	
  Dated as of September 30, 2010

  
	
  Chicago, Illinois

  	
   

  



 


FOR
VALUE RECEIVED, PRIMORIS SERVICES CORPORATION,
a  Delaware corporation  (the “Borrower”), whose address is
26000 Commercentre Drive, Lake Forest, California 92630, promises to pay to the
order THE PRIVATEBANK AND TRUST COMPANY
(hereinafter, together with any holder hereof, the “Bank”), whose address is
120 South LaSalle Street, Chicago, Illinois 60603, on or before the
Revolving Loan A Maturity Date, the lesser of (i) TWENTY MILLION and
00/100 DOLLARS ($20,000,000.00), or (ii) the aggregate principal amount of
all Revolving Loans A outstanding under and pursuant to that certain Loan and
Security Agreement dated as of October 28, 2009, executed by and between
the Borrower and the Bank, as amended from time to time (as amended,
supplemented or modified from time to time, the “Loan and Security Agreement”),
and made available by the Bank to the Borrower at the maturity or maturities
and in the amount or amounts stated on the records of the Bank, together with
interest (computed on the actual number of days elapsed on the basis of a 360
day year) on the aggregate principal amount of all Revolving Loans A
outstanding from time to time as provided in the Loan and Security Agreement.  Capitalized words and phrases not otherwise
defined herein shall have the meanings assigned thereto in the Loan and
Security Agreement.


 


This
First Amended Revolving Loan replaces the Revolving Note evidencing the
Revolving Loans A dated as of October 28, 2009.


 


This
Revolving Note evidences the Revolving Loans A, Letters of Credit and other indebtedness incurred by the
Borrower under and pursuant to the Loan and Security Agreement, to which
reference is hereby made for a statement of the terms and conditions under
which the Revolving Loan A Maturity Date or any payment hereon may be
accelerated.  The holder of this
Revolving Note is entitled to all of the benefits and security provided for in
the Loan and Security Agreement.  All
Revolving Loans A shall be repaid by the Borrower on the Revolving Loan A
Maturity Date, unless payable sooner pursuant to the provisions of the Loan and
Security Agreement.


 


Principal
and interest shall be paid to the Bank at its address set forth above, or at
such other place as the holder of this Revolving Note shall designate in
writing to the Borrower.  Each Revolving
Loan A made, and all Letters of Credit issued by, the Bank, and all payments on
account of the principal and interest thereof shall be recorded on the books
and records of the Bank and the principal balance as shown on such books and
records, or any copy thereof certified by an officer of the Bank, shall be
rebuttably presumptive evidence of the principal amount owing hereunder.


 

















 


Except for such notices as may be required under the terms of the Loan
and Security Agreement, the Borrower waives presentment, demand, notice,
protest, and all other demands, or notices, in connection with the delivery,
acceptance, performance, default, or enforcement of this Revolving Note, and
assents to any extension or postponement of the time of payment or any other
indulgence.


 


The
Revolving Loans A and the Letters of
Credit evidenced hereby have been made and/or issued and this Revolving Note has been delivered at the
Bank’s main office set forth above.  This
Revolving Note shall be governed and construed in accordance with the laws of
the State of Illinois, in which state it shall be performed, and shall be
binding upon the Borrower, and its legal representatives, successors, and
assigns.  Wherever possible, each
provision of the Loan and Security Agreement and this Revolving Note shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of the Loan and Security Agreement or this Revolving Note
shall be prohibited by or be invalid under such law, such provision shall be
severable, and be ineffective to the extent of such prohibition or invalidity,
without invalidating the remaining provisions of the Loan and Security
Agreement or this Revolving Note.  The
term “Borrower” as used herein shall mean all parties signing this Revolving
Note, and each one of them, and all such parties, their respective successors
and assigns, shall be jointly and severally obligated hereunder.


 


IN
WITNESS WHEREOF, the Borrower has executed this First Amended Revolving Note as
of the date set forth above.


 


	
   

  	
   

  	
  PRIMORIS SERVICES CORPORATION,

  
	
   

  	
   

  	
  a  Delaware
  corporation

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Peter
  J. Moerbeek

  
	
   

  	
   

  	
   

  	
  Executive
  Vice President, Chief Financial Officer

  



 

















 


EXHIBIT B


 


FIRST AMENDED REVOLVING NOTE


 


	
  $15,000,000.00

  	
  Dated as of September 30, 2010

  
	
  Chicago, Illinois

  	
   

  



 


FOR
VALUE RECEIVED, PRIMORIS SERVICES CORPORATION,
a  Delaware corporation  (the “Borrower”), whose address is
26000 Commercentre Drive, Lake Forest, California 92630, promises to pay to the
order THE PRIVATEBANK AND TRUST COMPANY
(hereinafter, together with any holder hereof, the “Bank”), whose address is
120 South LaSalle Street, Chicago, Illinois 60603, on or before the
Revolving Loan B Maturity Date, the lesser of (i) FIFTEEN MILLION and
00/100 DOLLARS ($15,000,000.00), or (ii) the aggregate principal amount of
all Revolving Loans B outstanding under and pursuant to that certain Loan and
Security Agreement dated as of October 28, 2009, executed by and between
the Borrower and the Bank, as amended from time to time (as amended,
supplemented or modified from time to time, the “Loan and Security Agreement”),
and made available by the Bank to the Borrower at the maturity or maturities
and in the amount or amounts stated on the records of the Bank, together with
interest (computed on the actual number of days elapsed on the basis of a 360
day year) on the aggregate principal amount of all Revolving Loans outstanding
from time to time as provided in the Loan and Security Agreement.  Capitalized words and phrases not otherwise
defined herein shall have the meanings assigned thereto in the Loan and
Security Agreement.


 


This
First Amended Revolving Loan replaces the Revolving Note evidencing the
Revolving Loans B dated as of October 28, 2009.


 


This
Revolving Note evidences the Revolving Loans B and other indebtedness incurred by the Borrower under and
pursuant to the Loan and Security Agreement, to which reference is hereby made
for a statement of the terms and conditions under which the Revolving Loan B
Maturity Date or any payment hereon may be accelerated.  The holder of this Revolving Note is entitled
to all of the benefits and security provided for in the Loan and Security
Agreement.  All Revolving Loans B shall
be repaid by the Borrower on the Revolving Loan B Maturity Date, unless payable
sooner pursuant to the provisions of the Loan and Security Agreement.


 


Principal
and interest shall be paid to the Bank at its address set forth above, or at
such other place as the holder of this Revolving Note shall designate in
writing to the Borrower.  Each Revolving
Loan made  by the Bank, and all payments on account of the principal and
interest thereof shall be recorded on the books and records of the Bank and the
principal balance as shown on such books and records, or any copy thereof
certified by an officer of the Bank, shall be rebuttably presumptive evidence
of the principal amount owing hereunder.


 

















 


Except for such notices as may be required under the terms of the Loan
and Security Agreement, the Borrower waives presentment, demand, notice,
protest, and all other demands, or notices, in connection with the delivery,
acceptance, performance, default, or enforcement of this Revolving Note, and
assents to any extension or postponement of the time of payment or any other
indulgence.


 


The
Revolving Loans evidenced hereby have been made and/or issued and this Revolving Note has been delivered at the
Bank’s main office set forth above.  This
Revolving Note shall be governed and construed in accordance with the laws of
the State of Illinois, in which state it shall be performed, and shall be
binding upon the Borrower, and its legal representatives, successors, and
assigns.  Wherever possible, each
provision of the Loan and Security Agreement and this Revolving Note shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of the Loan and Security Agreement or this Revolving Note
shall be prohibited by or be invalid under such law, such provision shall be
severable, and be ineffective to the extent of such prohibition or invalidity,
without invalidating the remaining provisions of the Loan and Security
Agreement or this Revolving Note.  The
term “Borrower” as used herein shall mean all parties signing this Revolving
Note, and each one of them, and all such parties, their respective successors
and assigns, shall be jointly and severally obligated hereunder.


 


IN
WITNESS WHEREOF, the Borrower has executed this First Amended Revolving Note as
of the date set forth above.


 


	
   

  	
  PRIMORIS SERVICES CORPORATION,

  
	
   

  	
  a  Delaware
  corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Peter
  J. Moerbeek

  
	
   

  	
   

  	
  Executive
  Vice President, Chief Financial Officer