SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT
Exhibit
10.25
SECOND
AMENDMENT TO LOAN AND SECURITY AGREEMENT
Reference
is made to that certain Loan and Security Agreement dated as of March 22,
2007 (the “Loan and Security Agreement”) between the undersigned Primoris
Corporation (the “Borrower”) and LaSalle Bank National Association (the “Bank”).
All capitalized terms used herein without definition shall have the same
meanings herein as those terms have in the Loan and Security Agreement. The
Borrower and Bank hereby amend the Loan and Security Agreement as set forth
below.
1. The
definition of “Change in Control” in Section 1.1 of the Loan and Security
Agreement is hereby deleted and the following is inserted
therefore:
“Change
in Control”
shall
mean if Xxxxx Xxxxx shall cease to own and control, directly or indirectly,
at
least 25% of the outstanding Capital Securities of the Borrower. For the purpose
hereof, the terms “control” or “controlling” shall mean the possession of the
power to direct, or cause the direction of, the management and policies of
the
Borrower by contract or voting of securities or ownership
interests.
2. Section
10.1 of the Loan and Security Agreement is hereby deleted in its entirety and
the following is inserted therefore:
Tangible
Net Worth.
As of
the end of each of its fiscal quarters, the Borrower shall maintain Tangible
Net
Worth in an amount not less than Thirty-Five Million and 00/100 Dollars
($35,000,000.00). The Tangible Net Worth shall be reset annually commencing
with
the Fiscal Year ending December 31, 2009 to increase by Forty Percent (40%)
of
the prior Fiscal Year’s Net Income. Investments in any Subsidiary, Affiliate and
third party entity, which is not either (a) Born Heaters Canada, or (b) a
Guarantor, in excess of Ten Million and 00/100 Dollars ($10,000,000.00) shall
be
deducted from Tangible Net Worth.
3. The
first
sentence only of Section 10.4 of the Loan and Security Agreement is hereby
deleted and the following is inserted therefore:
The
Borrower shall not incur Capital Expenditures in an amount greater than Twelve
Million and 00/100 Dollars ($12,000,000.00) for Fiscal Year 2008 and Eight
Million and 00/100 Dollars ($8,000,000.00) for Fiscal Year 2009.
4. The
Bank
hereby waives Section 9.4(a) of the Loan and Security Agreement and consents
to
the merger (the “Merger”) between the Borrower and Rhapsody Acquisition Corp.
with the surviving entity to be called “Primoris Corporation.” The Bank’s waiver
of Section 9.4(a) of the Loan and Security Agreement applies to the Merger
only
and does not constitute a future waiver of any other merger or consolidation,
purchase or other acquisition as described in Section 9.4(a) of the Loan and
Security Agreement. The Bank further consents to the Borrower’s distribution
prior to the Merger of up to Fifty Million and 00/100 Dollars ($50,000,000.00)
of cash to existing shareholders of the Borrower.
Except
as
specifically amended herein, 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 in
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.
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 11th
day of
July, 2008
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LA
SALLE BANK NATIONAL ASSOCIATION
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By:
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/s/
Xxxxx Xxxxxxxx
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Xxxxx
Xxxxxxxx
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Its:
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Senior
Vice President
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PRIMORIS
CORPORATION
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By:
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/s/
Xxxx X. Xxxxxxxxxx
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Xxxx
X. Xxxxxxxxxx
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Its:
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Senior
Vice President
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