FIRST LIEN PATENT SECURITY AGREEMENT
Exhibit 4.11
Execution Version
THIS FIRST LIEN PATENT SECURITY AGREEMENT (this “Agreement”), dated as of August 31,
2010, is entered into by and among U.S. CONCRETE, INC., a Delaware corporation, SAN DIEGO PRECAST
CONCRETE, INC., a Delaware corporation (each a “Grantor”, and collectively, the
“Grantors”), and U.S. BANK NATIONAL ASSOCIATION, a national banking association, in its
capacity as trustee and noteholder collateral agent (the “Noteholder Collateral Agent”) for
the Secured Parties.
Capitalized terms not otherwise defined herein shall have the meanings set forth in that
certain Pledge and Security Agreement dated as of the date hereof among the Grantors and the
Noteholder Collateral Agent (as such agreement may be amended, restated, supplemented or modified
from time to time, the “Security Agreement”).
WHEREAS, pursuant to the Security Agreement, each Grantor is required to grant a security
interest to the Noteholder Collateral Agent, for the benefit of the Secured Parties, in all of the
Grantors’ patents and all registrations and recordings thereof and applications in connection
therewith, whether now owned or hereafter acquired, and wherever located, including the patents
listed on Schedule 1 hereto (collectively, the “Secured Patents”).
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the Grantors and the
Noteholder Collateral Agent hereby agree as follows:
1. Grant of Security Interest.
(a) Each Grantor hereby pledges, collaterally assigns and grants to the Noteholder
Collateral Agent, on behalf of and for the ratable benefit of the Secured Parties, a
security interest in all of such Grantor’s right, title and interest in, to and under the
Secured Patents of such Grantor, including all reissues, extensions or renewals thereof.
(b) The security interest granted hereby is granted in conjunction with the security
interest granted to the Noteholder Collateral Agent under the Security Agreement and is
subject to the terms and conditions of the Intercreditor Agreement. The rights and remedies
of the Secured Parties with respect to the security interest granted hereby are further set
forth in the Security Agreement. In the event of any conflict between the terms of this
Agreement and the terms of the Security Agreement, the terms of the Security Agreement shall
control.
2. Termination of Security Interest.
The security interest created hereby shall terminate in accordance with the terms and
conditions set forth in the Security Agreement.
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3. Modification of Agreement.
This Agreement or any provision hereof may not be changed, waived, or terminated except in
accordance with the amendment provisions of the Security Agreement. Notwithstanding the foregoing,
the Noteholder Collateral Agent may modify this Agreement, after obtaining the Grantors’ signatures
to such modification, by amending Schedule 1 hereto to include reference to any right,
title or interest in any patents currently owned by the Grantors or any patents acquired by the
Grantors after the execution hereof or to delete any reference to any right, title or interest in
any patents in which the Grantors no longer have or claim any right, title or interest.
4. Governing Law.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK AND, TO THE EXTENT
CONTROLLING, LAWS OF THE UNITED STATES OF AMERICA, EXCEPT TO THE EXTENT THAT THE LAWS OF ANY STATE
IN WHICH ANY OF THE COLLATERAL IS LOCATED NECESSARILY GOVERNS THE VALIDITY, PERFECTION, PRIORITY
AND ENFORCEABILITY, AND THE EXERCISE OF ANY REMEDIES WITH RESPECT TO ANY LIEN OR SECURITY INTEREST
INTENDED TO BE CREATED OR GRANTED HEREBY ON COLLATERAL LOCATED IN SUCH STATE.
5. Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of the Noteholder Collateral
Agent and the Grantors and their respective successors and permitted assigns. The Grantors shall
not, without the prior written consent of the Noteholder Collateral Agent given in accordance with
the Security Agreement, assign any right, duty or obligation hereunder.
6. Counterparts.
This Agreement may be executed in any number of counterparts and by the parties hereto on
separate counterparts, each of which when so executed, shall be deemed to be an original and all of
which taken together shall constitute one and the same instrument. Delivery of an executed
counterpart of a signature page of this Agreement by facsimile or other electronic communication
(including via email or PDF) shall be effective as delivery of a manually executed counterpart of
this Agreement.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Grantors and the Noteholder Collateral Agent have caused this
Agreement to be duly executed and delivered as of the date first above written.
[SIGNATURE PAGES FOLLOW]
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| SAN DIEGO PRECAST CONCRETE, INC., a Delaware corporation | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
STATE OF
|
) | |||||||
| ) | ss: | |||||||
COUNTY OF
|
) | |||||||
On August __, 2010, before me, the undersigned, a notary public in and for said state and
county, personally appeared __________________, personally known to me (or proved to me on the
basis of satisfactory evidence), to be the person who executed the within instrument as the
_______________, on behalf of San Diego Precast Concrete, Inc., a Delaware corporation, the company
herein named, and acknowledged to me that the company executed the within instrument pursuant to
its bylaws and/or the resolutions of its board of directors.
WITNESS MY HAND AND/OR OFFICIAL SEAL.
(NOTARIAL STAMP OR SEAL)
My Commission Expires:
[Signature Page to Patent Security Agreement]
| U.S. CONCRETE, INC., a Delaware corporation |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
STATE OF
|
) | |||||||
| ) | ss: | |||||||
COUNTY OF
|
) | |||||||
On August __, 2010, before me, the undersigned, a notary public in and for said state and
county, personally appeared __________________, personally known to me (or proved to me on the
basis of satisfactory evidence), to be the person who executed the within instrument as the
_______________, on behalf of U.S. Concrete, Inc., a Delaware corporation, the company herein
named, and acknowledged to me that the company executed the within instrument pursuant to its
bylaws and/or the resolutions of its board of directors.
WITNESS MY HAND AND/OR OFFICIAL SEAL.
(NOTARIAL STAMP OR SEAL)
___________________________
Notary Public
Notary Public
My Commission Expires:
______________________
[Signature Page to Patent Security Agreement]
| U.S. BANK NATIONAL ASSOCIATION, as Noteholder Collateral Agent |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
STATE OF
|
) | |||||||
| ) | ss: | |||||||
COUNTY OF
|
) | |||||||
On August __, 2010, before me, the undersigned, a notary public in and for said state and
county, personally appeared __________________, personally known to me (or proved to me on the
basis of satisfactory evidence), to be the person who executed the within instrument as a
_______________ on behalf of U.S. Bank National Association, a national banking association, and
acknowledged to me that the bank executed the within instrument pursuant to its bylaws or a
resolution of its board of directors.
WITNESS MY HAND AND/OR OFFICIAL SEAL.
(NOTARIAL STAMP OR SEAL)
___________________________
Notary Public
Notary Public
My Commission Expires:
______________________
[Signature Page to Patent Security Agreement]
SCHEDULE 1
PATENT SECURITY AGREEMENT
Patents:
| Date | Grantor | Patent No. | Title | Country | ||||||
5/17/2005
|
San Diego Precast Concrete, Inc. | 6,892,722 | GRILLING APPARATUS | US | ||||||
9/17/2002
|
U.S. Concrete, Inc. | 6,451,105 | CEMENTITIOUS
COMPOSITION WITH LIMESTONE ACCELERATOR |
US | ||||||
Patent Applications:
| Date | Grantor | Application No. |
Title | Country | ||||
7/15/2009
|
U.S. Concrete, Inc. | 12/503,610 | Confidential | US | ||||
7/15/2009
|
U.S. Concrete, Inc. | 12/503,622 | Confidential | US | ||||
7/15/2010
|
U.S. Concrete, Inc. | PCT US2010/042109 | Confidential | PCT | ||||
7/15/2010
|
U.S. Concrete, Inc. | PCT US2010/042056 | Confidential | PCT |
Schedule 1-1
